Sunday, October 5, 2014

maquiling: The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship.


EN BANC

[ G.R. No. 195649, April 16, 2013 ]

CASAN MACODE MAQUILING, PETITIONER, VS. COMMISSION ON ELECTIONS, ROMMEL ARNADO Y CAGOCO, LINOG G. BALUA, RESPONDENTS.

D E C I S I O N


SERENO, C.J.:

THE CASE

This is a Petition for Certiorari under Rule 64 in conjunction with Rule 65 of the Rules of Court to review the Resolutions of the Commission on Elections (COMELEC). The Resolution[1] in SPA No. 10-109(DC) of the COMELEC First Division dated 5 October 2010 is being assailed for applying Section 44 of the Local Government Code while the Resolution[2] of the COMELEC En Banc dated 2 February 2011 is being questioned for finding that respondent Rommel Arnado y Cagoco (respondent Arnado/Arnado) is solely a Filipino citizen qualified to run for public office despite his continued use of a U.S. passport.

FACTS

Respondent Arnado is a natural born Filipino citizen.[3] However, as a consequence of his subsequent naturalization as a citizen of the United States of America, he lost his Filipino citizenship.

Arnado applied for repatriation under Republic Act (R.A.) No. 9225 before the Consulate General of the Philippines in San Franciso, USA and took the Oath of Allegiance to the Republic of the Philippines on 10 July 2008.[4] On the same day an Order of Approval of his Citizenship Retention and Re-acquisition was issued in his favor.[5]

The aforementioned Oath of Allegiance states:

I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.[6]

On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit of Renunciation of his foreign citizenship, which states:

I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce all allegiance and fidelity to the UNITED STATES OF AMERICA of which I am a citizen, and I divest myself of full employment of all civil and political rights and privileges of the United States of America.

I solemnly swear that all the foregoing statement is true and correct to the best of my knowledge and belief.[7]

On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del Norte, which contains, among others, the following statements:
I am a natural born Filipino citizen / naturalized Filipino citizen.
I am not a permanent resident of, or immigrant to, a foreign country.
I am eligible for the office I seek to be elected to.
I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto. I will obey the laws, legal orders and decrees promulgated by the duly constituted authorities.
I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.[8]
On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition to disqualify Arnado and/or to cancel his certificate of candidacy for municipal mayor of Kauswagan, Lanao del Norte in connection with the 10 May 2010 local and national elections.[9]   Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that he is a foreigner, attaching thereto a certification issued by the Bureau of Immigration dated 23 April 2010 indicating the nationality of Arnado as “USA-American.”[10]

To further bolster his claim of Arnado’s US citizenship, Balua presented in his Memorandum a computer-generated travel record[11] dated 03 December 2009 indicating that Arnado has been using his US Passport No. 057782700 in entering and departing the Philippines. The said record shows that Arnado left the country on 14 April 2009 and returned on 25 June 2009, and again departed on 29 July 2009, arriving back in the Philippines on 24 November 2009.

Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010, certifying that the name “Arnado, Rommel Cagoco” appears in the available Computer Database/Passenger manifest/IBM listing on file as of 21 April 2010, with the following pertinent travel records:

DATE OF Arrival
:
01/12/2010
NATIONALITY
:
USA-AMERICAN
PASSPORT
:
057782700



DATE OF Arrival
:
03/23/2010
NATIONALITY
:
USA-AMERICAN
PASSPORT
:
057782700[12]
On 30 April 2010, the COMELEC (First Division) issued an Order[13] requiring the respondent to personally file his answer and memorandum within three (3) days from receipt thereof.

After Arnado failed to answer the petition, Balua moved to declare him in default and to present evidence ex-parte.

Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado garnered the highest number of votes and was subsequently proclaimed as the winning candidate for Mayor of Kauswagan, Lanao del Norte.

It was only after his proclamation that Arnado filed his verified answer, submitting the following documents as evidence:[14]

  1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated 03 April 2009;
  2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio Daligdig, and Jessy Corpin, all neighbors of Arnado, attesting that Arnado is a long-time resident of Kauswagan and that he has been conspicuously and continuously residing in his family’s ancestral house in Kauswagan;
  3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated 03 June 2010 stating that Arnado is a bona fide resident of his barangay and that Arnado went to the United States in 1985 to work and returned to the Philippines in 2009;
  4. Certification dated 31 May 2010 from the Municipal Local Government Operations Office of Kauswagan stating that Dr. Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from January 1964 to June 1974 and from 15 February 1979 to 15 April 1986; and
  5. Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has been a registered voter of Kauswagan since 03 April 2009.

THE RULING OF THE COMELEC FIRST DIVISION

Instead of treating the Petition as an action for the cancellation of a certificate of candidacy based on misrepresentation,[15] the COMELEC First Division considered it as one for disqualification.  Balua’s contention that

Arnado is a resident of the United States was dismissed upon the finding that “Balua failed to present any evidence to support his contention,”[16] whereas the First Division still could “not conclude that Arnado failed to meet the one-year residency requirement under the Local Government Code.”[17]

In the matter of the issue of citizenship, however, the First Division disagreed with Arnado’s claim that he is a Filipino citizen.[18]

We find that although Arnado appears to have substantially complied with the requirements of R.A. No. 9225, Arnado’s act of consistently using his US passport after renouncing his US citizenship on 03 April 2009 effectively negated his Affidavit of Renunciation.

x x x x

Arnado’s continued use of his US passport is a strong indication that Arnado had no real intention to renounce his US citizenship and that he only executed an Affidavit of Renunciation to enable him to run for office. We cannot turn a blind eye to the glaring inconsistency between Arnado’s unexplained use of a US passport six times and his claim that he re-acquired his Philippine citizenship and renounced his US citizenship. As noted by the Supreme Court in the Yu case, “[a] passport is defined as an official document of identity and nationality issued to a person intending to travel or sojourn in foreign countries.” Surely, one who truly divested himself of US citizenship would not continue to avail of privileges reserved solely for US nationals.[19]

The dispositive portion of the Resolution rendered by the COMELEC First Division reads:

WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel the certificate of candidacy of Rommel C. Arnado is hereby GRANTED. Rommel C. Arnado’s proclamation as the winning candidate for Municipal Mayor of Kauswagan, Lanao del Nore is hereby ANNULLED. Let the order of succession under Section 44 of the Local Government Code of 1991 take effect.[20]

The Motion for Reconsideration and
the Motion for Intervention

Arnado sought reconsideration of the resolution before the COMELEC En Banc on the ground that “the evidence is insufficient to justify the Resolution and that the said Resolution is contrary to law.”[21]  He raised the following contentions:[22]

  1. The finding that he is not a Filipino citizen is not supported by the evidence consisting of his Oath of Allegiance and the Affidavit of Renunciation, which show that he has substantially complied with the requirements of R.A. No. 9225;
  2. The use of his US passport subsequent to his renunciation of his American citizenship is not tantamount to a repudiation of his Filipino citizenship, as he did not perform any act to swear allegiance to a country other than the Philippines;
  3. He used his US passport only because he was not informed of the issuance of his Philippine passport, and that he used his Philippine passport after he obtained it;
  4. Balua’s petition to cancel the certificate of candidacy of Arnado was filed out of time, and the First Division’s treatment of the petition as one for disqualification constitutes grave abuse of discretion amounting to excess of jurisdiction;[23]
  5. He is undoubtedly the people’s choice as indicated by his winning the elections;
  6. His proclamation as the winning candidate ousted the COMELEC from jurisdiction over the case; and
  7. The proper remedy to question his citizenship is through a petition for quo warranto, which should have been filed within ten days from his proclamation.

Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and who garnered the second highest number of votes in the 2010 elections,  intervened in the case and filed before the COMELEC En Banc a Motion for Reconsideration together with an Opposition to Arnado’s Amended Motion for Reconsideration.  Maquiling argued that while the First Division correctly disqualified Arnado, the order of succession under Section 44 of the Local Government Code is not applicable in this case.  Consequently, he claimed that the cancellation of Arnado’s candidacy and the nullification of his proclamation, Maquiling, as the legitimate candidate who obtained the highest number of lawful votes, should be proclaimed as the winner.

Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his Motion for Reconsideration. Arnado opposed all motions filed by Maquiling, claiming that intervention is prohibited after a decision has already been rendered, and that as a second-placer, Maquiling undoubtedly lost the elections and thus does not stand to be prejudiced or benefitted by the final adjudication of the case.

RULING OF THE COMELEC EN BANC

In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6 of Republic Act No. 6646, the Commission “shall continue with the trial and hearing of the action, inquiry or protest even after the proclamation of the candidate whose qualifications for office is  questioned.”

As to Maquiling’s intervention, the COMELEC En Banc also cited Section 6 of R.A. No. 6646 which allows intervention in proceedings for disqualification even after elections if no final judgment has been rendered, but went on further to say that Maquiling, as the second placer, would not be prejudiced by the outcome of the case as it agrees with the dispositive portion of the Resolution of the First Division allowing the order of succession under Section 44 of the Local Government Code to take effect.

The COMELEC En Banc agreed with the treatment by the First Division of the petition as one for disqualification, and ruled that the petition was filed well within the period prescribed by law,[24] having been filed on    28 April 2010, which is not later than 11 May 2010, the date of proclamation.

However, the COMELEC En Banc reversed and set aside the ruling of the First Division and granted Arnado’s Motion for Reconsideration, on the following premises:

First:

By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced his Philippine citizenship as though he never became a citizen of another country. It was at that time, April 3, 2009, that the respondent became a pure Philippine Citizen again.

x x x x

The use of a US passport […] does not operate to revert back his status as a dual citizen prior to his renunciation as there is no law saying such. More succinctly, the use of a US passport does not operate to “un-renounce” what he has earlier on renounced. The First Division’s reliance in the case of In Re: Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The petitioner in the said case is a naturalized citizen who, after taking his oath as a naturalized Filipino, applied for the renewal of his Portuguese passport. Strict policy is maintained in the conduct of citizens who are not natural born, who acquire their citizenship by choice, thus discarding their original citizenship. The Philippine State expects strict conduct of allegiance to those who choose to be its citizens. In the present case, respondent is not a naturalized citizen but a natural born citizen who chose greener pastures by working abroad and then decided to repatriate to supposedly help in the progress of Kauswagan. He did not apply for a US passport after his renunciation. Thus the mentioned case is not on all fours with the case at bar.

x x x x

The respondent presented a plausible explanation as to the use of his US passport. Although he applied for a Philippine passport, the passport was only issued on June 18, 2009. However, he was not notified of the issuance of his Philippine passport so that he was actually able to get it about three (3) months later. Yet as soon as he was in possession of his Philippine passport, the respondent already used the same in his subsequent travels abroad. This fact is proven by the respondent’s submission of a certified true copy of his passport showing that he used the same for his travels on the following dates: January 31, 2010, April 16, 2010, May 20, 2010, January 12, 2010, March 31, 2010 and June 4, 2010. This then shows that the use of the US passport was because to his knowledge, his Philippine passport was not yet issued to him for his use. As probably pressing needs might be undertaken, the respondent used whatever is within his control during that time.[25]

In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the use of foreign passport is not one of the grounds provided for under Section 1 of Commonwealth Act No. 63 through which Philippine citizenship may be lost.

“[T]he application of the more assimilative principle of continuity of citizenship is more appropriate in this case. Under said principle, once a person becomes a citizen, either by birth or naturalization, it is assumed that he desires to continue to be a citizen, and this assumption stands until he voluntarily denationalizes or expatriates himself. Thus, in the instant case respondent after reacquiring his Philippine citizenship should be presumed to have remained a Filipino despite his use of his American passport in the absence of clear, unequivocal and competent proof of expatriation. Accordingly, all doubts should be resolved in favor of retention of citizenship.”[26]

On the other hand, Commissioner Rene V. Sarmiento dissented,  thus:

[R]espondent evidently failed to prove that he truly and wholeheartedly abandoned his allegiance to the United States. The latter’s continued use of his US passport and enjoyment of all the privileges of a US citizen despite his previous renunciation of the afore-mention[ed] citizenship runs contrary to his declaration that he chose to retain only his Philippine citizenship. Respondent’s submission with the twin requirements was obviously only for the purpose of complying with the requirements for running for the mayoralty post in connection with the May 10, 2010 Automated National and Local Elections.

Qualifications for elective office, such as citizenship, are continuing requirements; once any of them is lost during his incumbency, title to the office itself is deemed forfeited. If a candidate is not a citizen at the time he ran for office or if he lost his citizenship after his election to office, he is disqualified to serve as such. Neither does the fact that respondent obtained the plurality of votes for the mayoralty post cure the latter’s failure to comply with the qualification requirements regarding his citizenship.

Since a disqualified candidate is no candidate at all in the eyes of the law, his having received the highest number of votes does not validate his election. It has been held that where a petition for disqualification was filed before election against a candidate but was adversely resolved against him after election, his having obtained the highest number of votes did not make his election valid. His ouster from office does not violate the principle of vox populi suprema est lex because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity. To apply it is to breath[e] life to the sovereign will of the people who expressed it when they ratified the Constitution and when they elected their representatives who enacted the law.[27]

THE PETITION BEFORE THE COURT

Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run for public office despite his continued use of a US passport, and praying that Maquiling be proclaimed as the winner in the 2010 mayoralty race in Kauswagan, Lanao del Norte.

Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC En Banc for ruling that Arnado is a Filipino citizen despite his continued use of a US passport, Maquiling now seeks to reverse the finding of the COMELEC En Banc that Arnado is qualified to run for public office.

Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First Division’s disqualification of Arnado, Maquiling also seeks the review of the applicability of Section 44 of the Local Government Code, claiming that the COMELEC committed reversible error in ruling that “the succession of the vice mayor in case the respondent is disqualified is in order.”

ISSUES

There are three questions posed by the parties before this Court which will be addressed seriatim as the subsequent questions hinge on the result of the first.

The first question is whether or not intervention is allowed in a disqualification case.

The second question is whether or not the use of a foreign passport after renouncing foreign citizenship amounts to undoing a renunciation earlier made.

A better framing of the question though should be whether or not the use of a foreign passport after renouncing foreign citizenship affects one’s qualifications to run for public office.

The third question is whether or not the rule on succession in the Local Government Code is applicable to this case.

OUR RULING

Intervention of a rival candidate in a
disqualification case is proper when
there has not yet been any
proclamation of the winner.


Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed a Motion for Reconsideration of the First Division Resolution before the COMELEC En Banc. As the candidate who garnered the second highest number of votes, Maquiling contends that he has an interest  in the disqualification case filed against Arnado, considering that in the event the latter is disqualified, the votes cast for him should be considered stray and the second-placer should be proclaimed as the winner in the elections.

It must be emphasized that while the original petition before the COMELEC is one for cancellation of the certificate of candidacy and / or disqualification, the COMELEC First Division and the COMELEC En Banc correctly treated the petition as one for disqualification.

The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:

Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

Mercado v. Manzano[28] clarified the right of intervention in a disqualification case. In that case, the Court said:

That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered.[29]

Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc has already ruled that Maquiling has not shown that the requisites for the exemption to the second-placer rule set forth in Sinsuat v. COMELEC[30] are present and therefore would not be prejudiced by the outcome of the case, does not deprive Maquiling of the right to elevate the matter before this Court.

Arnado’s claim that the main case has attained finality as the original petitioner and respondents therein have not appealed the decision of the COMELEC En Banc, cannot be sustained. The elevation of the case by the intervenor prevents it from attaining finality. It is only after this Court has ruled upon the issues raised in this instant petition that the disqualification case originally filed by Balua against Arnado will attain finality.

The use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of representation as to one’s nationality and citizenship; it does not divest Filipino citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify one to run for an elective position.
 


Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:

Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

x x x x

(2) Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.        x x x[31]

Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of Allegiance and renounced his foreign citizenship. There is no question that after performing these twin requirements required under Section 5(2) of R.A. No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, he became eligible to run for public office.

Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when he applied for repatriation before the Consulate General of the Philippines in San Francisco, USA, and again on 03 April 2009 simultaneous with the execution of his Affidavit of Renunciation. By taking the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the time, however, he likewise possessed American citizenship. Arnado had therefore become a dual citizen.

After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing an Affidavit of Renunciation, thus completing the requirements for eligibility to run for public office.

By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the effect of such renunciation under the laws of the foreign country.[32]

However, this legal presumption does not operate permanently and is open to attack when, after renouncing the foreign citizenship, the citizen performs positive acts showing his continued possession of a foreign citizenship.[33]

Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign citizenship, he continued to use his US passport to travel in and out of the country before filing his certificate of candidacy on 30 November 2009. The pivotal question to determine is whether he was solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby rendering him eligible to run for public office.

Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the date he filed his COC, he used his US passport four times, actions that run counter to the affidavit of renunciation he had earlier executed. By using his foreign passport, Arnado positively and voluntarily represented himself as an American, in effect declaring before immigration authorities of both countries that he is an American citizen, with all attendant rights and privileges granted by the United States of America.

The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship.

Mercado v. Manzano[34] already hinted at this situation when the Court declared:

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago,  we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against anyone who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship.

While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No. 63 constituting renunciation and loss of Philippine citizenship,[35]  it is nevertheless an act which repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen of another country to be qualified to run for a local elective position.

When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his American citizenship, he recanted his Oath of Renunciation[36] that he “absolutely and perpetually renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA”[37] and that he “divest(s) [him]self of full employment of all civil and political rights and privileges of the United States of America.”[38]

We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented himself as an American citizen by using his US passport.

This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid for public office, as it effectively imposed on him a disqualification to run for an elective local position.

Arnado’s category of dual citizenship is that by which foreign citizenship is acquired through a positive act of applying for naturalization. This is distinct from those considered dual citizens by virtue of birth, who are not required by law to take the oath of renunciation as the mere filing of the certificate of candidacy already carries with it an implied renunciation of foreign citizenship.[39]  Dual citizens by naturalization, on the other hand, are required to take not only the Oath of Allegiance to the Republic of the Philippines but also to personally renounce foreign citizenship in order to qualify as a candidate for public office.

By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen enjoying the rights and privileges of Filipino and American citizenship. He was qualified to vote, but by the express disqualification under Section 40(d) of the Local Government Code,[40] he was not qualified to run for a local elective position.

In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or from 3 April 2009 until 14 April 2009, on which date he first used his American passport after renouncing his American citizenship.

This Court has previously ruled that:
Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. x x x.[41]

The citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time of the renunciation of the foreign citizenship but continuously. Any act which violates the oath of renunciation opens the citizenship issue to attack.

We agree with the pronouncement of the COMELEC First Division that “Arnado’s act of consistently using his US passport effectively negated his “Affidavit of Renunciation.”[42]  This does not mean, that he failed to comply with the twin requirements under R.A. No. 9225, for he in fact did. It was after complying with the requirements that he performed positive acts which effectively disqualified him from running for an elective public office pursuant to Section 40(d) of the Local Government Code of 1991.

The purpose of the Local Government Code in disqualifying dual citizens from running for any elective public office would be thwarted if we were to allow a person who has earlier renounced his foreign citizenship, but who subsequently represents himself as a foreign citizen, to hold any public office.

Arnado justifies the continued use of his US passport with the explanation that he was not notified of the issuance of his Philippine passport on 18 June 2009, as a result of which he was only able to obtain his Philippine passport three (3) months later.[43]

The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national who sought naturalization as a Filipino citizen and later applied for the renewal of his Portuguese passport. That Arnado did not apply for a US passport after his renunciation does not make his use of a US passport less of an act that violated the Oath of Renunciation he took. It was still a positive act of representation as a US citizen before the immigration officials of this country.

The COMELEC, in ruling favorably for Arnado, stated “Yet, as soon as he was in possession of his Philippine passport, the respondent already used the same in his subsequent travels abroad.”[44] We cannot agree with the COMELEC. Three months from June is September. If indeed, Arnado used his Philippine passport as soon as he was in possession of it, he would not have used his US passport on 24 November 2009.

Besides, Arnado’s subsequent use of his Philippine passport does not correct the fact that after he renounced his foreign citizenship and prior to filing his certificate of candidacy, he used his US passport. In the same way that the use of his foreign passport does not undo his Oath of Renunciation, his subsequent use of his Philippine passport does not undo his earlier use of his US passport.

Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and political rights  accorded by the state to its citizens. It likewise demands the concomitant duty to maintain allegiance to one’s flag and country. While those who acquire dual citizenship by choice are afforded the right of suffrage, those who seek election or appointment to public office are required to renounce their foreign citizenship to be deserving of the public trust. Holding public office demands full and undivided allegiance to the Republic and to no other.

We therefore hold that Arnado, by using his US passport after renouncing his American citizenship, has recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code applies to his situation. He is disqualified not only from holding the public office but  even from becoming a candidate in the May 2010 elections.

We now resolve the next issue.

Resolving the third issue necessitates revisiting Topacio v. Paredes[45] which is the jurisprudential spring of the principle that a second-placer cannot be proclaimed as the winner in an election contest.  This doctrine must be re-examined and its soundness once again put to the test to address the ever-recurring issue that a second-placer who loses to an ineligible candidate cannot be proclaimed as the winner in the elections.

The facts of the case are as follows:

On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the office of municipal president. The petitioner, Felipe Topacio, and the respondent, Maximo Abad, were opposing candidates for that office. Topacio received 430 votes, and Abad 281. Abad contested the election upon the sole ground that Topacio was ineligible in that he was reelected the second time to the office of the municipal president on June 4, 1912, without the four years required by Act No. 2045 having intervened.[46]

Abad thus questioned the eligibility of Topacio on the basis of a statutory prohibition for seeking a second re-election absent the four year interruption.

The often-quoted phrase in Topacio v. Paredes is that “the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots.”[47]

This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing “the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections x x x [with] that produced by declaring a person ineligible to hold such an office.”

The complete sentence where the phrase is found is part of a comparison and contrast between the two situations, thus:

Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections is quite different from that produced by declaring a person ineligible to hold such an office. In the former case the court, after an examination of the ballots may find that some other person than the candidate declared to have received a plura[l]ity by the board of canvassers actually received the greater number of votes, in which case the court issues its mandamus to the board of canvassers to correct the returns accordingly; or it may find that the manner of holding the election and the returns are so tainted with fraud or illegality that it cannot be determined who received a [plurality] of the legally cast ballots. In the latter case, no question as to the correctness of the returns or the manner of casting and counting the ballots is before the deciding power, and generally the only result can be that the election fails entirely. In the former, we have a contest in the strict sense of the word, because of the opposing parties are striving for supremacy. If it be found that the successful candidate (according to the board of canvassers) obtained a plurality in an illegal manner, and that another candidate was the real victor, the former must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. In the one case the question is as to who received a plurality of the legally cast ballots; in the other, the question is confined to the personal character and circumstances of a single individual.[48] (Emphasis supplied)

Note that the sentence where the phrase is found starts with “In the other case, there is not, strictly speaking, a contest” in contrast to the earlier statement, “In the former, we have a contest in the strict sense of the word, because of the opposing parties are striving for supremacy.”

The Court in Topacio v. Paredes cannot be said to have held that “the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots.”

A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is without jurisdiction to try a disqualification case based on the eligibility of the person who obtained the highest number of votes in the election, its jurisdiction being confined “to determine which of the contestants has been duly elected” the judge exceeded his jurisdiction when he “declared that no one had been legally elected president of the municipality of Imus at the general election held in that town on 4 June 1912” where “the only question raised was whether or not Topacio was eligible to be elected and to hold the office of municipal president.”

The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be proclaimed in his stead. The Court therein ruled:

For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his jurisdiction in declaring in those proceedings that no one was elect[ed] municipal president of the municipality of Imus at the last general election; and that said order and all subsequent proceedings based thereon are null and void and of no effect; and, although this decision is rendered on respondents' answer to the order to show cause, unless respondents raised some new and additional issues, let judgment be entered accordingly in 5 days, without costs. So ordered.[49]

On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to stand on. It was a mere pronouncement of the Court comparing one process with another and explaining the effects thereof. As an independent statement, it is even illogical.

Let us examine the statement:

“x x x the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots.”

What prevents the transfer of the wreath of victory from the ineligible candidate to another candidate?

When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of the legally cast ballots and ineligibility is thereafter established, what stops the Court from adjudging another eligible candidate who received the next highest number of votes as the winner and  bestowing upon him that “wreath?”

An ineligible candidate who receives the highest number of votes is a wrongful winner. By express legal mandate, he could not even have been a candidate in the first place, but by virtue of the lack of material time or any other intervening circumstances, his ineligibility might not have been passed upon prior to election date.  Consequently, he may have had the opportunity to hold himself out to the electorate as a legitimate and duly qualified candidate.  However, notwithstanding the outcome of the elections,  his ineligibility as a candidate remains unchanged.   Ineligibility does not only pertain to his qualifications as a candidate but necessarily affects his right to hold public office. The number of ballots cast in his favor cannot cure the defect of failure to qualify with the substantive legal requirements of eligibility to run for public office.

The popular vote does not cure the
ineligibility of a candidate
.

The ballot cannot override the constitutional and statutory requirements for qualifications and disqualifications of candidates. When the law requires certain qualifications to be possessed or that certain disqualifications be not possessed by persons desiring to serve as elective public officials, those qualifications must be met before one even becomes a candidate. When a person who is not qualified is voted for and eventually garners the highest number of votes, even the will of the electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications and disqualifications of candidates. We might as well write off our election laws if the voice of the electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions in our republic.

This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC[50] when we pronounced:

x x x.  The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state.[51] (Emphasis supplied)

This issue has also been jurisprudentially clarified in Velasco v. COMELEC[52] where the Court ruled that the ruling in Quizon and Saya-ang cannot be interpreted without qualifications lest “Election victory x x x becomes a magic formula to bypass election eligibility requirements.”[53]

[W]e have ruled in the past that a candidate’s victory in the election may be considered a sufficient basis to rule in favor of the candidate sought to be disqualified if the main issue involves defects in the candidate’s certificate of candidacy.  We said that while provisions relating to certificates of candidacy are mandatory in terms, it is an established rule of interpretation as regards election laws, that mandatory provisions requiring certain steps before elections will be construed as directory after the elections, to give effect to the will of the people. We so ruled in Quizon v. COMELEC and Saya-ang v. COMELEC:

The present case perhaps presents the proper time and opportunity to fine-tune our above ruling.  We say this with the realization that a blanket and unqualified reading and application of this ruling can be fraught with dangerous significance for the rule of law and the integrity of our elections.  For one, such blanket/unqualified reading may provide a way around the law that effectively negates election requirements aimed at providing the electorate with the basic information to make an informed choice about a candidate’s eligibility and fitness for office.

The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC which specifies the basic qualifications of local government officials. Equally susceptive of being rendered toothless is Section 74 of the OEC that sets out what should be stated in a COC.  Section 78 may likewise be emasculated as mere delay in the resolution of the petition to cancel or deny due course to a COC can render a Section 78 petition useless if a candidate with false COC data wins.  To state the obvious, candidates may risk falsifying their COC qualifications if they know that an election victory will cure any defect that their COCs may have.  Election victory then becomes a magic formula to bypass election eligibility requirements. (Citations omitted)

What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing any disqualification, and employing every strategy to delay any disqualification case filed against him so he can submit himself to the electorate and win, if winning the election will guarantee a disregard of constitutional and statutory provisions on qualifications and disqualifications of candidates?

It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring that its exercise respects the rule of law. To allow the sovereign voice spoken through the ballot to trump constitutional and statutory provisions on qualifications and disqualifications of candidates is not democracy or republicanism. It is electoral anarchy. When set rules are disregarded and only the electorate’s voice spoken through the ballot is made to matter in the end, it precisely serves as an open invitation for electoral anarchy to set in.

Maquiling is not a second-placer as he obtained the highest number of votes from among the qualified candidates.
 


With Arnado’s disqualification, Maquiling then becomes the winner in the election as he obtained the highest number of votes from among the qualified candidates.

We have ruled in the recent cases of Aratea v. COMELEC[54] and Jalosjos v. COMELEC[55] that a void COC cannot produce any legal effect. Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election.

Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate candidates form part of that voice and must also be respected.

As in any contest, elections are governed by rules that determine the qualifications and disqualifications of those who are allowed to participate as players. When there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates.

There is no need to apply the rule cited in Labo v. COMELEC[56] that when the voters are well aware within the realm of notoriety of a candidate’s disqualification and still cast their votes in favor said candidate, then the eligible candidate obtaining the next higher number of votes may be deemed elected. That rule is also a mere obiter that further complicated the rules affecting qualified candidates who placed second to ineligible ones.

The electorate’s awareness of the candidate’s disqualification is not a prerequisite for the disqualification to attach to the candidate. The very existence of a disqualifying circumstance makes the candidate ineligible. Knowledge by the electorate of a candidate’s disqualification is not necessary before a qualified candidate who placed second to a disqualified one can be proclaimed as the winner.  The second-placer in the vote count is actually the first-placer among the qualified candidates.

That the disqualified candidate has already been proclaimed and has assumed office is of no moment. The subsequent disqualification based on a substantive ground that existed prior to the filing of the certificate of candidacy voids not only the COC but also the proclamation.

Section 6 of R.A. No. 6646 provides:

Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

There was no chance for Arnado’s proclamation to be suspended under this rule because Arnado failed to file his answer to the petition seeking his disqualification. Arnado only filed his Answer on 15 June 2010, long after the elections and after he was already proclaimed as the winner.

The disqualifying circumstance surrounding Arnado’s candidacy involves his citizenship. It does not involve the commission of election offenses as provided for in the first sentence of Section 68 of the Omnibus Election Code, the effect of which is to disqualify the individual from continuing as a candidate, or if he has already been elected, from holding the office.

The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado was both a Filipino and an American citizen when he filed his certificate of candidacy. He was a dual citizen disqualified to run for public office based on Section 40(d) of the Local Government Code.

Section 40 starts with the statement “The following persons are disqualified from running for any elective local position.” The prohibition serves as a bar against the individuals who fall under any of the enumeration from participating as candidates in the election.

With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus rendered void from the beginning. It could not have produced any other legal effect except that Arnado rendered it impossible to effect his disqualification prior to the elections because he filed his answer to the petition when the elections were conducted already and he was already proclaimed the winner.

To hold that such proclamation is valid is to negate the prohibitory character of the disqualification which Arnado possessed even prior to the filing of the certificate of candidacy. The affirmation of Arnado’s disqualification, although made long after the elections, reaches back to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at all in the May 2010 elections.

Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves Maquiling as the qualified candidate who obtained the highest number of votes. Therefore, the rule on succession under the Local Government Code will not apply.

WHEREFORE, premises considered, the Petition is GRANTED.  The Resolution of the COMELEC En Banc dated 2 February 2011 is hereby ANNULLED and SET ASIDE.  Respondent ROMMEL ARNADO y CAGOCO is disqualified from running for any local elective position. CASAN MACODE MAQUILING is hereby DECLARED the duly elected Mayor of  Kauswagan, Lanao del Norte in the 10 May 2010 elections.

This Decision is immediately executory.

Let a copy of this Decision be served personally upon the parties and the Commission on Elections.

No pronouncement as to costs.

SO ORDERED.

Velasco, Jr., Peralta Bersamin, Villarama, Jr., Perez, Reyes, and Perlas-Bernabe, JJ., concur.
Carpio, J., see concurring opinion.
Leonardo-De Castro, Del Castillo, Mendoza, and Leonen, JJ., joins the dissent of J. Brion.
Brion, J., see: dissent.
Abad, J., see separate and concurring opinion.



[1] Rollo, pp. 38-49.

[2] Id. at 50-67.

[3] Id. at 229, Exhibit “1-MR,” Certificate of Live Birth.

[4] Id. at 241, Exhibit “12-MR,” Oath of Allegiance.

[5] Id. at 239, Exhibit “10-MR,” Order of Approval.

[6] Ibid, Note 2 and Annex “1” of Duly Verified Answer, Rollo, p. 160 and Annex “2” of Memorandum for Respondent, Rollo, p. 178.

[7] Ibid, p. 160 and 178.

[8] Id. at 139, Annex “B” of Petition for Disqualification; Id. at 177, Annex “1” Memorandum for Respondent.

[9] Id. at 134, Petition to Disqualify Rommel Cagoco Arnado and/or to Cancel his Certificate of Candidacy for Municipal Mayor of Kauswagan, Lanao del Norte in Connection with May 10, 2010 Local and National Elections.

[10] Id. at 140, Certification.

[11] Id. at 191, Exhibit “A” of Memorandum for Petitioner filed before the Commission on Elections.

[12] Id. at 192, Exhibit “C” of Memorandum for Petitioner filed before the Commission on Elections.

[13] Records, pp. 76-77.

[14] Rollo, p. 42, Resolution dated 5 October 2010, penned by Commissioner Rene V. Sarmiento, and concurred in by Commissioner Armando C. Velasco and Gregorio Y. Larrazabal.

[15] Id.

[16] Id. at 43.

[17] Id. at 44.

[18] Id.

[19] Id. at 46-47, Resolution dated 5 October 2010.

[20] Id at 48.

[21] Id. at 214, Amended Motion for Reconsideration.

[22] Id. at 193-211, Verified Motion for Reconsideration; id. at 212-246, Amended Motion for Reconsideration; id. at 247-254, Rejoinder to Petitioner’s Comment/Opposition to Respondent’s Amended Motion for Reconsideration.

[23] Id. at 224, Amended Motion for Reconsideration.

[24] A verified petition to disqualify a candidate pursuant to Sec. 68 of the OEC and the verified petition to disqualify a candidate for lack of qualifications or possessing some grounds for disqualification may be filed on any day after the last day for filing of certificates of candidacy but not later than the date of proclamation. (Sec. 4.B.1. COMELEC Resolution No. 8696).

[25] Rollo, pp. 64-66, COMELEC En Banc Resolution dated 2 February 2011.

[26] Id. at 69, Separate Concurring Opinion.

[27] Id. at 72-73, Dissenting Opinion of Commissioner Rene V. Sarmiento, citing the cases of Torayno, Sr. v. COMELEC, 337 SCRA 574 [2000]; Santos v. COMELEC, 103 SCRA 628 [1981]; Sanchez v. Del Rosario, 1 SCRA 1102 [1961]; and Reyes v. COMELEC, 97 SCRA 500 [1980].

[28] 367 Phil. 132 (1999).

[29] Id. at 142-143.

[30] G.R. No. 105919, 6 August 1992, 212 SCRA 309.

[31] Section 5(2) of R.A. No. 9225.

[32] See excerpts of deliberations of Congress reproduced in AASJS v. Datumanong, G.R. No. 160869,  11 May 2007, 523 SCRA 108.

In resolving the aforecited issues in this case, resort to the deliberations of Congress is necessary to determine the intent of the legislative branch in drafting the assailed law. During the deliberations, the issue of whether Rep. Act No. 9225 would allow dual allegiance had in fact been the subject of debate. The record of the legislative deliberations reveals the following:
x x x x

Pursuing his point, Rep. Dilangalen noted that under the measure, two situations exist — the retention of foreign citizenship, and the reacquisition of Philippine citizenship. In this case, he observed that there are two citizenships and therefore, two allegiances. He pointed out that under the Constitution, dual allegiance is inimical to public interest. He thereafter asked whether with the creation of dual allegiance by reason of retention of foreign citizenship and the reacquisition of Philippine citizenship, there will now be a violation of the Constitution. IEAacT

Rep. Locsin underscored that the measure does not seek to address the constitutional injunction on dual allegiance as inimical to public interest. He said that the proposed law aims to facilitate the reacquisition of Philippine citizenship by speedy means. However, he said that in one sense, it addresses the problem of dual citizenship by requiring the taking of an oath. He explained that the problem of dual citizenship is transferred from the Philippines to the foreign country because the latest oath that will be taken by the former Filipino is one of allegiance to the Philippines and not to the United States, as the case may be. He added that this is a matter which the Philippine government will have no concern and competence over.

Rep. Dilangalen asked why this will no longer be the country's concern, when dual allegiance is involved.

Rep. Locsin clarified that this was precisely his objection to the original version of the bill, which did not require an oath of allegiance. Since the measure now requires this oath, the problem of dual allegiance is transferred from the Philippines to the foreign country concerned, he explained.

x x x x

Rep. Dilangalen asked whether in the particular case, the person did not denounce his foreign citizenship and therefore still owes allegiance to the foreign government, and at the same time, owes his allegiance to the Philippine government, such that there is now a case of dual citizenship and dual allegiance.

Rep. Locsin clarified that by swearing to the supreme authority of the Republic, the person implicitly renounces his foreign citizenship. However, he said that this is not a matter that he wishes to address in Congress because he is not a member of a foreign parliament but a Member of the House.

x x x x

Rep. Locsin replied that it is imperative that those who have dual allegiance contrary to national interest should be dealt with by law. However, he said that the dual allegiance problem is not addressed in the bill. He then cited the Declaration of Policy in the bill which states that "It is hereby declared the policy of the State that all citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act." He stressed that what the bill does is recognize Philippine citizenship but says nothing about the other citizenship.

Rep. Locsin further pointed out that the problem of dual allegiance is created wherein a natural-born citizen of the Philippines takes an oath of allegiance to another country and in that oath says that he abjures and absolutely renounces all allegiance to his country of origin and swears allegiance to that foreign country. The original Bill had left it at this stage, he explained. In the present measure, he clarified, a person is required to take an oath and the last he utters is one of allegiance to the country. He then said that the problem of dual allegiance is no longer the problem of the Philippines but of the other foreign country. (Emphasis supplied)
[33] See Discussion of Senators Enrile and Pimentel on Sec. 40(d) of the Local Government Code, reproduced in Cordora v. COMELEC, G.R. No. 176947, 19 February 2009, 580 SCRA 12.
By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on §40(d) between Senators Enrile and Pimentel clearly shows:

SENATOR ENRILE:

Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual citizenship " is disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural-born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship.

On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position?

SENATOR PIMENTEL:

To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships.

SENATOR ENRILE:

Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world.

SENATOR PIMENTEL:

Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered a Filipino citizen.

SENATOR ENRILE:

But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship.

SENATOR PIMENTEL:

Yes. What we are saying, Mr. President, is: Under the Gentleman's example, if he does not renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship."

SENATOR ENRILE:

But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic.

SENATOR PIMENTEL:

That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships, then he will probably fall under this disqualification.
[34] Supra note 28 at 153.

[35] Under Commonwealth Act No. 63, a Filipino citizen may lose his citizenship:

(1) By naturalization in a foreign country;

(2) By express renunciation of citizenship;

(3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more;

(4) By accepting commission in the military, naval or air service of a foreign  country;

(5) By cancellation of the certificate of naturalization;

(6) By having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted: and

(7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws in force in her husband’s country, she acquires his nationality.

[36] See Note 7.

[37] Id.

[38] Id.

[39] See Cordora v. COMELEC,  G.R. No.  176947, 19 February 2009, 580 SCRA 12.

[40] Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position: x  x  x x

(d) Those with dual citizenship; x x x.

[41] Fivaldo v. COMELEC, 255 Phil. 934, 944 (1989).

[42] Rollo, p. 46, Resolution dated 5 October 2010.

[43] Id. at 219, Amended Motion for Reconsideration.

[44] Id. at 66, Resolution dated 02 February 2011.

[45] 23 Phil. 238 (1912).

[46]Id. at 240.

[47] Id. at 255.

[48] Id at 254-255.

[49] Id. at 258

[50] Supra note 41.

[51] Id. at 944-945.

[52] G.R. No. 180051, 24 December 2008, 575 SCRA 590, 614-615.

[53] Id. at 615, citing Quizon v. COMELEC, G.R. NO. 177927, 15 February 2008, 545 SCRA 635, Saya-ang v. COMELEC, 462 Phil. 373 (2003).

[54] G. R. No. 195229, 9 October 2012.

[55] G.R. Nos. 193237/193536, 9 October 2012.

[56] G.R. No. 105111, 3 July 3 1992, 211 SCRA 297, 312.





CONCURRING OPINION


CARPIO, J.:

I concur in the ponencia.  Respondent Rommel Arnado (Arnado) is disqualified from running for any local elective position.  The Commission on Elections (COMELEC) should be directed to proclaim Petitioner Casan Macode Maquiling (Maquiling) as the duly elected Mayor of Kauswagan, Lanao del Norte in the May 2010 elections.

Arnado received the highest number of votes in the May 2010 elections and was proclaimed Mayor of Kauswagan, Lanao del Norte.  Respondent Linog G. Balua (Balua), one of Arnado’s opponents, filed a petition before the COMELEC against Arnado.  Balua’s petition to disqualify Arnado and/or to cancel his certificate of candidacy rests on the allegation that Arnado lacks the residency and citizenship requirements. Balua presented evidence to show that Arnado used his American passport to enter and depart the Philippines.  Maquiling, on the other hand, was also one of Arnado’s opponents.  Maquiling received the second highest number of votes next to Arnado. Maquiling filed motions for intervention and for reconsideration before the COMELEC En Banc.  Maquiling asserted that he should have been proclaimed as Mayor for being the legitimate candidate with the highest number of votes.

Arnado is a natural-born Filipino citizen who lost his Filipino citizenship upon his naturalization as an American citizen.  Arnado applied for repatriation, and subsequently took two Oaths of Allegiance to the Republic of the Philippines, then renounced his American citizenship.  The relevant timeline is as follows:

10 July 2008 - Arnado pledged his Oath of Allegiance to the Republic of the Philippines.

3 April 2009 - Arnado again pledged his Oath of Allegiance to the Republic of the Philippines and executed an Affidavit of Renunciation of his American citizenship.

14 April to 25 June 2009 - Arnado used his United States of America (USA) Passport No. 057782700 to depart and enter the Philippines.

29 July to 24 November 2009 - Arnado again used his USA Passport No. 057782700 to depart and enter the Philippines.

30 November 2009 - Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del Norte.

A certification from the Bureau of Immigration showed that Arnado arrived in the Philippines on 12 January 2010, as well as on 23 March 2010. Both arrival dates show that Arnado used the same USA passport he used in 2009.

Despite Balua’s petition before the COMELEC, the elections proceeded without any ruling on Arnado’s qualification.  Arnado received the highest number of votes in the May 2010 elections and was proclaimed Mayor of Kauswagan, Lanao del Norte.

The COMELEC First Division issued its ruling on Arnado’s qualification after his proclamation.  The COMELEC First Division treated Balua’s petition to disqualify Arnado and/or to cancel his certificate of candidacy as a petition for disqualification.  The COMELEC First Division granted Balua’s petition and annulled Arnado’s proclamation. The COMELEC First Division stated that “Arnado’s continued use of his US passport is a strong indication that Arnado had no real intention to renounce his US citizenship and that he only executed an Affidavit of Renunciation to enable him to run for office.” The COMELEC First Division decreed that the order of succession under Section 44 of the Local Government Code of 1991[1] should take effect.

Arnado filed a motion for reconsideration before the COMELEC En Banc.   Maquiling intervened, and asserted that although the COMELEC First Division correctly disqualified Arnado, the law on succession should not apply.  Instead, Maquiling should have been proclaimed as Mayor for being the legitimate candidate with the highest number of votes.

The COMELEC En Banc reversed and set aside the ruling of the COMELEC First Division.  In granting Arnado’s motion for reconsideration, the COMELEC En Banc stated that Arnado’s use of his USA passport “does not operate to revert back [sic] his status as a dual citizen prior to his renunciation as there is no law saying such.”  COMELEC Chair Sixto Brillantes concurred, and stated that Arnado “after reacquiring his Philippine citizenship should be presumed to have remained a Filipino despite his use of his American passport in the absence of clear, unequivocal and competent proof of expatriation.”  Commissioner Rene Sarmiento dissented, and declared that Arnado failed to prove that he abandoned his allegiance to the USA and that his loss of the continuing requirement of citizenship disqualifies him to serve as an elected official.  Moreover, having received the highest number of votes does not validate Arnado’s election.

The ponencia granted Maquiling’s petition before this Court, and annulled and set aside the ruling of the COMELEC En Banc.  The  ponencia declared that Arnado’s use of his USA passport did not divest him of his Filipino citizenship but vested back in him the American citizenship he earlier renounced.  The ponencia also directed the COMELEC to proclaim Maquiling as the duly elected Mayor of Kauswagan, Lanao del Norte in the May 2010 elections for being the qualified candidate who received the highest number of votes.

On Arnado’s Use of a Non-Philippine Passport

Philippine courts have no power to declare whether a person possesses citizenship other than that of the Philippines. In Mercado v. Manzano,[2] Constitutional Commissioner Joaquin G. Bernas was quoted as saying, “[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control.”[3] In the present case, we have no authority to declare that Arnado is an American citizen.  Only the courts of the USA, using American law, have the conclusive authority to make an assertion regarding Arnado’s American citizenship.

Arnado, as a naturalized American citizen and a repatriated Filipino, is required by law to swear to an Oath of Allegiance to the Republic of the Philippines and execute a Renunciation of Foreign Citizenship before he may seek elective Philippine public office.  The pertinent sections of R.A. No. 9225 read:

Section 3. Retention of Philippine Citizenship. — Any provision of law to the contrary notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic:

“I _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion.”

Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.

Section 5. Civil and Political Rights and Liabilities. — Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

x x x x

(2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath;

x x x x.

Arnado’s use of his American passport after his execution of an Affidavit of Renunciation of his American Citizenship is a retraction of his renunciation. When Arnado filed his Certificate of Candidacy on 30 November 2009, there was no longer an effective renunciation of his American citizenship.  It is as if he never renounced his American citizenship at all.  Arnado, therefore, failed to comply with the twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship as found in Republic Act No. 9225.  We previously discussed the distinction between dual citizenship and dual allegiance, as well as the different acts required of dual citizens, who may either have involuntary dual citizenship or voluntary dual allegiance, who desire to be elected to Philippine public office in Cordora v. COMELEC:[4]

We have to consider the present case in consonance with our rulings in Mercado v. Manzano, Valles v. COMELEC, and AASJS v. Datumanong. Mercado and Valles involve similar operative facts as the present case. Manzano and Valles, like Tambunting, possessed dual citizenship by the circumstances of their birth. Manzano was born to Filipino parents in the United States which follows the doctrine of jus soli. Valles was born to an Australian mother and a Filipino father in Australia. Our rulings in Manzano and Valles stated that dual citizenship is different from dual allegiance both by cause and, for those desiring to run for public office, by effect. Dual citizenship is involuntary and arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. Thus, like any other natural-born Filipino, it is enough for a person with dual citizenship who seeks public office to file his certificate of candidacy and swear to the oath of allegiance contained therein. Dual allegiance, on the other hand, is brought about by the individual’s active participation in the naturalization process. AASJS states that, under R.A. No. 9225, a Filipino who becomes a naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the supreme authority of the Republic of the Philippines. The act of taking an oath of allegiance is an implicit renunciation of a naturalized citizen’s foreign citizenship.

R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was enacted years after the promulgation of Manzano and Valles. The oath found in Section 3 of R.A. No. 9225 reads as follows:
I __________ , solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.
In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual citizenship per se, but with the status of naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Section 5(2) of R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and desire to run for elective public office in the Philippines shall “meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of filing the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath” aside from the oath of allegiance prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship served as the bases for our recent rulings in Jacot v. Dal and COMELEC, Velasco v. COMELEC, and Japzon v. COMELEC, all of which involve natural-born Filipinos who later became naturalized citizens of another country and thereafter ran for elective office in the Philippines. In the present case, Tambunting, a natural-born Filipino, did not subsequently become a naturalized citizen of another country. Hence, the twin requirements in R.A. No. 9225 do not apply to him.[5]

Hence, Arnado’s failure to comply with the twin requirements of R.A. No. 9225 is clearly a failure to qualify as a candidate for Philippine elective public office. He is still deemed, under Philippine law, holding allegiance to a foreign country, which disqualifies him from running for an elective public office. Such failure to comply with the twin requirements of R.A. No. 9225 is included among the grounds for disqualification in Section 68 of the Omnibus Election Code:  “Disqualifications. – x x x. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as a permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in election laws.”

On the Selection of the Lawful Mayor of Kauswagan, Lanao del Sur

Arnado used his USA passport after his Renunciation of American Citizenship and before he filed his Certificate of Candidacy. This positive act of retraction of his renunciation before the filing of the Certificate of Candidacy renders Arnado’s Certificate of Candidacy void ab initio.  Therefore, Arnado was never a candidate at any time, and all the votes for him are stray votes.  We reiterate our ruling in Jalosjos v. COMELEC[6] on this matter:

Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer is disqualified or declared ineligible should be limited to situations where the certificate of candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled because of a violation of law that took place, or a legal impediment that took effect, after the filing of the certificate of candidacy. If the certificate of candidacy is void ab initio, then legally the person who filed such void certificate of candidacy was never a candidate in the elections at any time. All votes for such non-candidate are stray votes and should not be counted. Thus, such non-candidate can never be a first-placer in the elections. If a certificate of candidacy void ab initio is cancelled on the day, or before the day, of the election, prevailing jurisprudence holds that all votes for that candidate are stray votes. If a certificate of candidacy void ab initio is cancelled one day or more after the elections, all votes for such candidate should also be stray votes because the certificate of candidacy is void from the very beginning. This is the more equitable and logical approach on the effect of the cancellation of a certificate of candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab initio can operate to defeat one or more valid certificates of candidacy for the same position.[7]

It is undisputed that Arnado had to comply with the twin requirements of allegiance and renunciation.  However, Arnado’s use of his USA passport after the execution of his Affidavit of Renunciation constituted a retraction of his renunciation, and led to his failure to comply with the requirement of renunciation at the time he filed his certificate of candidacy.  His certificate of candidacy was thus void ab initio. Garnering the highest number of votes for an elective position does not cure this defect.  Maquiling, the alleged “second placer,” should be proclaimed Mayor because Arnado’s certificate of candidacy was void ab initio. Maquiling is the qualified candidate who actually garnered the highest number of votes for the position of Mayor.



[1] Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor.  x x x.

[2] 367 Phil. 132 (1999) citing 1 Record of the Constitutional Commission 203 (23 June 1986).

[3] Id. at 147.

[4] G.R. No. 176947, 19 February 2009, 580 SCRA 12. Citations omitted.

[5] Id. at 23-25.

[6] G.R. Nos. 193237 and 193536, 9 October 2012.  Citations omitted.  See also Cayat v. COMELEC, G.R. Nos. 163776 and 165736, 24 April 2007, 522 SCRA 23; and Aratea v. COMELEC, G.R. No. 195229, 9 October 2012.

[7] Id.




SEPARATE AND CONCURRING OPINION


ABAD, J.:

I fully concur with the majority but would add another argument in support of the decision.

Sec. 5(2) of Republic Act 9225 provides the means by which a former Philippine citizen who has acquired foreign citizenship to later reacquire his old citizenship by complying with certain requirements. Respondent Rommel Arnado complied with these requirements for regaining Philippine citizenship but, because he wanted to run for public office, he also renounced his United States (U.S.) Citizenship when he filed his certificate of candidacy, conformably with the provisions of Republic Act 9225 that reads:

(2)
Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.
But his compliance with the above was challenged before the Commission on Elections (Comelec) because Arnado afterwards twice used his U.S. passport in going to and coming from the U.S., the country whose citizenship he had renounced.

The majority opinion amply states that by his acts, Arnado showed that he did not effectively renounce his U.S. citizenship.  To this I add that he also failed to comply with the U.S. requirements for citizens wishing to renounce their citizenships.

Section 349 (a)(5) of the Immigration and Nationality Act (INA)[1] sets the procedure that those who have moved their residence to other countries must observe when renouncing their U.S. citizenship.  It provides that “(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality – x x x (5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State.”  He does not effectively renounce his citizenship who does not comply with what his country requires of him.

Here, there is no showing that Arnado, a U.S. citizen, fulfilled the above requirement.  To the eyes of the U.S. government, Arnado remains its citizen, owing obligations of loyalty to it and subject to its laws wherever he may be. Indeed, the U.S. government had not cancelled his passport, permitting him to use the same a number of times after he reacquired his Philippine citizenship.  If the U.S. continues to regard Arnado as its citizen, then he has two citizenships, a ground for cancelling his certificate of candidacy for a public office in the Philippines.



[1] 8 U.S.C. 1481(a)(5)





DISSENTING OPINION


BRION, J.:

I dissent from the ponencia’s conclusions that:

(1) respondent Rommel C. Arnado’s (Arnado) use of his US passport in traveling twice to the US violated his Oath of Renunciation so that he reverted back to the status of a dual citizen – a distinct ground for disqualification under Section 40(d) of the Local Government Code (LGC) that barred him from assuming the office of Mayor of Kauswagan, Lanao del Norte; and

(2) the petitioner, Casan Macode Maquiling  (Maquiling), the “second placer” in the 2010 elections, should be rightfully seated as Mayor of Kauswagan, Lanao del Norte.

I base this Dissent on the following grounds:

1)  Arnado has performed all acts required by Section 5(2) of Republic Act No. 9225[1] (RA 9225) to re-acquire Philippine citizenship and to qualify and run for public office;

2)  The evidence on record shows that Arnado’s use of his US passport in two trips to the US after re-acquiring his Philippine citizenship under RA 9225 and renouncing his US citizenship, were mere isolated acts that were sufficiently justified under the given circumstances that Arnado fully explained;

3) Arnado’s use of his US passport did not amount to an express renunciation of his Philippine citizenship under Section 1 of Commonwealth Act No. 63 (CA 63);

4) Under the circumstances of this case, Arnado did not do anything to negate the oath of renunciation he took;

5) At any rate, all doubts should be resolved in favor of Arnado’s eligibility after this was confirmed by the mandate of the people of Kauswagan, Lanao del Norte by his election as Mayor; and

6) The assailed findings of facts and consequent conclusions of law are based on evidence on record and are correct applications of law; hence, no basis exists for this Court to rule that the Comelec en banc committed grave abuse of discretion in ruling on the case.

The Antecedent Facts

Respondent Rommel Cagoco Arnado is a natural born Filipino citizen, born to Filipino parents on July 22, 1957 at Iligan City, Lanao del Norte.[2]  In 1985, he immigrated to the United States for job purposes.[3]  He was deemed to have lost his Filipino citizenship by operation of law[4] when he became a naturalized citizen of the United States of America while in America.

In 2003, Congress declared it the policy of the State that all Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship upon compliance with the statute Congress passed – RA 9225.[5]

Arnado, like many other Filipinos before him, at age 51 and after a stay of 23 years in the U.S., opted to re-affirm his Filipino citizenship by filing the required application and taking his oath before the Philippine Consulate General in San Francisco, USA.  His application was approved by Consul Wilfredo C. Santos, evidenced by an Order of Approval dated July 10, 2008.[6]  He took his Oath of Allegiance to the Republic of the Philippines (Republic) on the same day and was accordingly issued Identification Certificate Number SF-1524-08/2008 declaring him once more purely a citizen of the Republic.[7]

On April 3, 2009, Arnado took another Oath of Allegiance to the Republic and executed an Affidavit of Renunciation of his foreign citizenship.[8]

Eleven days later or on April 14, 2009, Arnado left the country for the United States.  According to Bureau of Immigration records, Arnado then used a passport – US Passport (No. 057782700) – that identified his nationality as “USA-AMERICAN.”  The same record also indicated that Arnado used the same U.S. Passport when he returned to the country on June 25, 2009.  This happened again when he left for the United States on July 29, 2009 and returned to the country on November 24, 2009.[9]

The record does not show the exact date when Arnado applied for a Philippine passport; it shows however that Consulate General of the Philippines in San Francisco, USA, approved and issued a Philippine Passport (No. XX 3979162) for Arnado on June 18, 2009.[10] He received this passport three (3) months later.[11]  Thereafter, he used his Philippine passport in his travels on the following dates: December 11, 2009 (Departure), January 12, 2010 (Arrival), January 31, 2010 (Departure), March 31, 2010 (Arrival), April 11, 2010 (Departure) April 16, 2010 (Arrival), May 20, 2010 (Departure) and June 4, 2010 (Arrival).[12]

On November 30, 2009 or six months after he fully complied with the requirements of R.A. No. 9225, Arnado filed his Certificate of Candidacy (CoC) for the position of Mayor of Kauswagan, Lanao del Norte.[13]

Five months after or on April 28, 2010, respondent mayoralty candidate Linog C. Balua (Balua) filed a petition to disqualify Arnado and/or to cancel his CoC. Balua contended that Arnado is a foreigner and is not a resident of Kauswagan, Lanao del Norte.  Balua attached to his petition a Bureau of Immigration (BI) certification dated April 23, 2010 indicating Arnado’s nationality as “USA-American” and certifying that the name Arnado Rommel Cagoco appears in the Computer Database/Passenger Manifest with the following pertinent travel records:[14]

DATE OF Arrival
:
01/12/2010
NATIONALITY
:
USA-AMERICAN
PASSPORT
:
057782700



DATE OF Arrival
:
03/23/2010
NATIONALITY
:
USA-AMERICAN
PASSPORT
:
057782700

(Significantly, Arnado also submitted the photocopy of his Philippine passport showing that he used his Philippine passport on travels on these dates.)[15]

Balua also presented a computer generated travel record dated December 3, 2009  indicating  that  Arnado  has  been  using  his  US Passport No. 057782700 in  entering  and  departing the Philippines.  The record showed that Arnado left the  country  on  April 14, 2009 and returned on June 25, 2009; he departed again on  July 29, 2009  and  arrived  back  in  the  country  on  November  24, 2009.[16] In these lights, Arnado’s disqualification was a live election issue, well-known to the Kauswagan electorate, who nevertheless voted Arnado into office as Mayor.[17]

The Comelec First Division ordered Arnado to file his Answer (to Balua’s petition) and a Memorandum.  With the petition filed a mere two weeks from election day, Arnado failed to comply, thus giving Balua the opportunity to move that Arnado be declared in default.  The Comelec, however, failed to act on the motion as the case was overtaken by the May 10, 2010 elections.

Arnado won the election, garnering 5,952 votes over the second placer, Maquiling, who garnered 5,357 votes.  The Municipal Board of Canvassers subsequently proclaimed him as the duly elected mayor of Kauswagan, Lanao del Norte.[18]

In the Answer which he filed after his proclamation, Arnado averred that he did not commit any material misrepresentation in his CoC, and that he was eligible to run for the office of mayor of Kauswagan, Lanao del Norte; he had fully complied with the requirements of RA 9225 by taking the required Oath of Allegiance and executing an Affidavit of Renunciation of his U.S. citizenship.[19] To support his allegations, Arnado also submitted the following documentary evidence:

(1) Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated April 3, 2009;

(2) Joint-Affidavit dated May 31, 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio Daligdig, and Jessy Corpin, all neighbors of Arnado, attesting that Arnado is a long-time resident of Kauswagan and that he has been conspicuously and continuously residing in his family’s ancestral house in Kauswagan;

(3) Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated June 3, 2010 stating that Arnado is a bona fide resident of his barangay and that Arnado went to the United States in 1985 to work and returned to the Philippines in 2009;

(4) Certification dated May 31, 2010 from the Municipal Local Government Operations Office of Kauswagan stating that Dr. Maximo P. Arnado, Sr. served as Mayor of Kauswagan from January 1964 to June 1974 and from February 15 1979 to April 15, 1986;

(5) Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has been a registered voter of Kauswagan since April 3, 2009.[20]

The Comelec First Division Ruling

The Comelec First Division treated Balua’s petition as a petition for disqualification instead of a petition for cancellation of CoC based on misrepresentation. Because Balua failed to present evidence to support his contention that Arnado is a resident of the United States, the First Division found no basis to conclude that Arnaldo did not meet the one-year residency requirement under the LGC.

On the issue of citizenship, the First Division held Arnado’s act of using his US passport after renouncing his US citizenship on April 3, 2009, effectively negated his Oath of Renunciation.  As basis, the First Division cited the Court’s ruling in In Re Petition for Habeas Corpus of Willie Yu v. Defensor-Santiago, et al.   It concluded that Arnado’s continued use of his US passport was a strong indication that he had no real intention to renounce his US citizenship and that he only executed an Oath of Renunciation to enable him to run for office. The Division noted in this regard the glaring inconsistency between Arnado’s unexplained use of his US passport and his claim that he had re-acquired Philippine citizenship and had renounced his US citizenship.

Based on these premises, the Comelec First Division disqualified Arnado, annulled his proclamation, and ordered that the order of succession to the mayoralty under Section 44 of the LGC be given effect.[21]

Maquiling’s Intervention

While Arnado’s motion for reconsideration was pending, Maquiling intervened and filed a Motion for Reconsideration and an opposition to Arnado’s motion for reconsideration.

Maquiling argued that while the First Division correctly disqualified Arnado, the order of succession under Section 44 is not applicable; he claimed that with the cancellation of Arnado’s CoC and the nullification of his proclamation, he should be proclaimed the winner since he was the legitimate candidate who obtained the highest number of votes.[22]

The Comelec en banc Ruling

The Comelec en banc affirmed the First Division’s treatment of the petition as a petition for disqualification.  It also agreed with the disposition of the First Division to follow the order of succession under Section 44, thus ruling out second placer Maquiling’s entitlement to the post of Mayor.

The Comelec en banc however, reversed the First Division ruling and granted Arnado’s Motion for Reconsideration.  It held that by renouncing his US citizenship, Arnado became a “pure” Philippine citizen again.  It ruled that the use of a US passport does not operate to revert Arnado’s status as a dual citizen prior to his renunciation; it does not operate to “un-renounce” what had earlier been renounced.

The Comelec en banc further ruled that the First Division’s reliance on In Re Petition for Habeas Corpus of Willie Yu v. Defensor-Santiago, et al.,[23] was misplaced as the facts of this cited case are not the same or comparable with those of the present case.  Unlike the present case, the petitioner in Yu was a naturalized citizen who, after taking his oath as a naturalized Filipino citizen, applied for a renewal of his Portuguese passport.

Finally, the Comelec en banc found that Arnado presented a plausible and believable explanation justifying the use of his  US passport.  While his Philippine passport was issued on June 18, 2009, he was not immediately notified of the issuance so that he failed to actually get it until after three months later.  He thereafter used his Philippine passport in his subsequent travels abroad.[24]

The Separate and Dissenting Opinions

Significantly, Comelec Chairman Sixto S. Brillantes issued a Separate Opinion concurring with the Comelec majority.  He opined that the use of a foreign passport is not one of the grounds provided for under Section 1 of CA 63 through which Philippine citizenship may be lost.  He cites the assimilative principle of continuity of Philippine citizenship: Arnado is presumed to have remained a Filipino despite his use of his American passport in the absence of clear and unequivocal proof of expatriation.  In addition, all doubts should be resolved in favor of Arnado’s retention of citizenship.[25]

In his Dissenting Opinion, Commissioner Rene V. Sarmiento emphasized that Arnado failed to prove that he truly abandoned his allegiance to the United States; his continued use of his US passport and enjoyment of all the privileges of a US citizen ran counter to his declaration that he chose to retain only his Philippine citizenship.  He noted that qualifications for elective office, such as citizenship, are continuing requirements; once citizenship is lost, title to the office is deemed forfeited.[26]

The Issues

The complete issues posed for the Court’s consideration are:

(1)
Whether intervention is allowed in a disqualification case;
(2)
Whether the use of a foreign passport after renouncing foreign citizenship amounts to undoing a renunciation made, and whether the use of a foreign passport after renouncing foreign citizenship affects one’s qualifications to run for public office;
(3)
Assuming Arnado is disqualified, whether the rule on succession in the LGC is applicable in the present case;[27]
(4)
How should doubt in the present case be resolved in light of Arnado’s election; and
(5)
Whether, based on the facts presented and the applicable law, the Comelec en banc committed grave abuse of discretion.
The Ponencia

The ponencia grants Maquiling’s petition for certiorari, thus holding that the Comelec en banc committed grave abuse of discretion in considering the facts and the law presented.  It thus holds that Arnado is a dual citizen disqualified to run for public office under Section 40(d) of the LGC.  On this basis, the ponencia rules that with Arnado’s disqualification, second placer Maquiling should be proclaimed as the duly elected Mayor of Kauswagan, Lanao del Norte.

Based on this conclusion, the ponencia resolves all doubts against Arnado and disregards the democratic decision of the Kauswagan electorate.

As the ponencia reasons it out, the act of using a foreign passport does not divest Arnado of his Filipino citizenship.  By representing himself as an American citizen, however, Arnado voluntarily and effectively reverted to his earlier status as dual citizen.  It emphasizes that such reversion is not retroactive; it took place the instant Arnado represented himself as an American citizen by using his US passport.

Thus, by the time Arnado filed his CoC on November 30, 2009, the ponencia concludes that Arnado was a dual citizen enjoying the rights and privileges of Filipino and American citizenship; he was qualified to vote, but by the express disqualification under Section 40 (d) of the LGC, he was not qualified as a candidate to run for a local elective position.[28]

With Arnado barred from candidacy, the ponencia further concludes that his CoC was void from the beginning.  The affirmation of Arnado’s disqualification, although made long after the elections, reaches back to the filing of the CoC so that he was not a candidate at all in the May 10, 2010 elections.  Hence, the votes cast in his favor should not be counted and Maquiling, as the qualified candidate who obtained the highest number of vote, should be declared the duly elected mayor of Kauswagan, Lanao del Norte.[29] In this manner, the ponencia effectively disenfranchised 5,952 or 52.63% of those who voted for the top two contending candidates for the position of Mayor; it rules for a minority Mayor.

Refutation of the Ponencia

Arnado performed all acts required by
Section 5(2) of RA 9225 to reacquire
Philippine citizenship and run for
public office; in fact, he actively
followed up his re-affirmed citizenship
by running for public office.


RA 9225 was enacted to allow the re-acquisition and retention of Philippine citizenship by: 1) natural-born citizens who were deemed to have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country; and 2) natural-born citizens of the Philippines who, after the effectivity of the law, became citizens of a foreign country.  The law provides that they are deemed to have re-acquired or retained their Philippine citizenship upon taking the oath of allegiance.[30]

Section 3 of RA 9225 on these points reads:

Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic:
"I _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion."
Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.

Arnado falls under the first category as a natural-born Filipino citizen who was deemed to have lost his Philippine citizenship upon his naturalization as an American citizen.

Under the given facts, Arnado indisputably re-acquired Philippine citizenship after taking the Oath of Allegiance not only once but twice – on July 10, 2008 and April 3, 2009.  Separately from this oath of allegiance, Arnado took an oath renouncing his American citizenship as additionally required by RA 9225 for those seeking public office.

Section 5 of RA 9225 on this point provides:

Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:
(2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer  authorized to administer an oath.

In Japzon v. Commission on Elections,[31] we ruled that Section 5(2) of RA 9225 requires the twin requirements of taking an Oath of Allegiance and the execution of a similarly sworn Renunciation of Foreign Citizenship.  We said:

Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or retained his Philippine citizenship under Republic Act No. 9225, to run for public office, he must: (1) meet the qualifications for holding such public office as required by the Constitution and existing laws; and (2) make a personal and sworn renunciation of any and all foreign citizenships before any public officer authorized to administer an oath.[32]

Thus, the respondent in that case, Jaime Ty - a natural born Filipino citizen who subsequently became a naturalized American citizen - became a “pure” Philippine citizen again after taking the Oath of Allegiance and executing an Oath of Renunciation of his American citizenship.  To quote our Decision:

He was born and raised in the Municipality of General Macarthur, Eastern Samar, Philippines. However, he left to work in the USA and eventually became an American citizen. On 2 October 2005, Ty reacquired his Philippine citizenship by taking his Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los Angeles, California, USA, in accordance with the provisions of Republic Act No. 9225.  At this point, Ty still held dual citizenship, i.e., American and Philippine. It was only on 19 March 2007 that Ty renounced his American citizenship before a notary public and, resultantly, became a pure Philippine citizen.[33]

In the present case, Arnado indisputably complied with the second requirement of Section 5(2) of RA 9225.  On April 3, 2009, he personally executed an Affidavit of Renunciation an Oath of Allegiance before notary public Thomas Dean M. Quijano.  Therefore, when he filed his CoC for the position of Mayor of the Municipality of Kauswagan, Lanao del Norte on November 30, 2009, he had already effectively renounced his American citizenship, solely retaining his Philippine citizenship as the law requires.  In this way, Arnado qualified for the position of Mayor of Kauswagan, Lanao del Norte and filed a valid CoC.

The evidence on record shows that Arnado’s
use of his US passport after his compliance
with the terms of RA 9225, was an isolated
act that was sufficiently explained and justified.


The records bear out that Arnado used his US passport in two trips to and from the US after he had executed his Affidavit of Renunciation on April 3, 2009. He travelled on the following dates:

Date
Destination
April 14, 2009
to the U.S.
June 25, 2009
to the Philippines
July 29, 2009
to the U.S.
November 24, 2009
to the Philippines

Arnado’s Philippine passport was issued on June 18, 2009, but he was not immediately notified of the issuance so that and he only received his passport  three months after or sometime in September 2009.[34]  Clearly, when Arnado travelled on April 14, 2009, June 25, 2009 and July 29, 2009, he had no Philippine passport that he could have used to travel to the United States to attend to the winding up of his business and other affairs in America.  A travel document issued by the proper Philippine government agency (e.g., a Philippine consulate office in the US) would not suffice because travel documents could not be used; they are issued only in critical instances, as determined by the consular officer, and allow the bearer only a direct, one-way trip to the Philippines.[35]

Although Arnado received his Philippine passport by the time he returned to the Philippines on November 24, 2009, he could not use this without risk of complications with the US immigration authorities for using a travel document different from what he used in his entry into the US on July 29, 2009.  Plain practicality then demanded that the travel document that he used to enter the US on July 29, 2009 be the same travel document he should use in leaving the country on November 24, 2009.

Given these circumstances, Arnado’s use of his US passport in travelling back to the Philippines on November 24, 2009 was an isolated act that could not, by itself, be an express renunciation of the Philippine citizenship he adopted as his sole citizenship under RA 9225.

Arnado’s use of his US passport was not
an express renunciation of his Philippine
citizenship under Section 1 of CA 63.


I disagree with the ponencia’s view that by using his US passport and representing himself as an American citizen, Arnado effectively reverted to the status of a dual citizen.  Interestingly, the ponencia failed to cite any law or controlling jurisprudence to support its conclusion, and thus merely makes a bare assertion.

The ponencia fails to consider that under RA 9225, natural-born citizens who were deemed to have lost their Philippine citizenship because of their naturalization as citizens of a foreign country and who subsequently complied with the requirements of RA 9225, are deemed not to have lost their Philippine citizenshipRA 9225 cured and negated the presumption made under CA 63.  Hence, as in Japzon, Arnado assumed “pure” Philippine citizenship again after taking the Oath of Allegiance and executing an Oath of Renunciation of his American citizenship under RA 9225.

In  this  light,  the  proper  framing of the main issue in this case should be whether Arnado’s use of his US passport affected his status as a “pure” Philippine citizen.  In question form – did Arnado’s use of a US passport amount to a ground under the law for the loss of his Filipino citizenship under CA 63? Or alternatively, the retention of his dual citizenship status?

I loathe to rule that Arnado’s use of his US passport amounts to an express renunciation of his Filipino citizenship, when its use was an isolated act that he sufficiently explained and fully justified.  I emphasize that the law requires express renunciation in order to lose Philippine citizenship. The term means a renunciation that is made distinctly and explicitly and is not left to inference or implication; it is a renunciation manifested by direct and appropriate language, as distinguished from that which is inferred from conduct.[36]

A clear and vivid example, taken from jurisprudence, of what “express renunction” is not transpired in Aznar v. Comelec[37] where the Court ruled that the mere fact that respondent Osmena was a holder of a certificate stating that he is an American did not mean that he is no longer a Filipino, and that an application for an alien certificate of registration did not amount to a renunciation of his Philippine citizenship.

In the present case, other than the use of his US passport in two trips to and from the United States, the record does not bear out any indication, supported by evidence, of Arnado’s intention to re-acquire US citizenship.  To my mind, in the absence of clear and affirmative acts of re-acquiring US citizenship either by naturalization or by express acts (such as the re-establishment of permanent residency in the United States), Arnado’s use of his US passport cannot but be considered an isolated act that did not undo his renunciation of his US citizenship.  What he might in fact have done was to violate American law on the use of passports, but this is a matter irrelevant to the present case. Thus, Arnado remains to be a “pure” Filipino citizen and the loss of his Philippine citizenship cannot be presumed or inferred from his isolated act of using his US passport for travel purposes.

Arnado did not violate his oath of renunciation;
at any rate, all doubts should be resolved in favor
of Arnado’s eligibility considering that he received
the popular mandate of the people of Kauswagan,
Lanao del Norte as their duly elected mayor


I completely agree with the ponencia that the Oath of Renunciation is not an empty or formal ceremony that can be perfunctorily professed at any given day, only to be disregarded on the next.  As a mandatory requirement under Section 5 (2) of RA 9225, it allows former natural-born Filipino citizens who were deemed to have lost their Philippine citizenship by reason of naturalization as citizens of a foreign country to enjoy full civil and political rights, foremost among them, the privilege to run for public office.

I disagree however, with the conclusion that Arnado effectively negated his Oath of Renunciation when he used his US passport for travel to the United States.  To reiterate if only for emphasis, Arnado sufficiently justified the use of his US passport despite his renunciation of his US citizenship; when he travelled on April 14, 2009, June 25, 2009 and July 29, 2009, he had no Philippine passport that he could have used to travel to the United States to attend to the business and other affairs that he was leaving.  If at all, he could be faulted for using his US passport by the time he returned to the Philippines on November 24, 2009 because at that time, he had presumably received his Philippine passport.  However, given the circumstances explained above and that he consistently used his Philippine passport for travel after November 24, 2009, the true character of his use of his US passport stands out and cannot but be an isolated and convenient act that did not negate his Oath of Renunciation.

The People of Kauswagan have spoken and any
doubt should be resolved in favor of their verdict.


Separately from the issue of Arnado’s isolated act of using his US passport, we cannot ignore the fact in a community as small as Kauswagan where the two mayoralty candidates garnered a total of 11,309 votes, Balua’s claim of Arnado’s foreign citizenship and even the latter’s residency status could not be avoided but be live election issues.  The people of Kauswagan, Lanao del Norte, therefore, made their own ruling when they elected Arnado as their mayor despite the “foreigner” label sought to be pinned on him.  At this point, even this Court should heed this verdict by resolving all doubts regarding Arnado’s eligibility in his favor.  This approach, incidentally, is not a novel one[38] as in Sinaca v. Mula,[39] the Court has already ruled:

[When] a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible doubts should be resolved in favor of the candidate's eligibility for to rule otherwise is to defeat the will of the people.  Above and beyond all, the determination of the true will of the electorate should be paramount.  It is their voice, not ours or of anyone else, that must prevail.  This, in essence, is the democracy we continue to hold sacred.

No Basis to Rule that the Comelec Committed
Grave Abuse of Discretion.


As my last point, the Comelec en banc considered and accepted as its factual finding that Arnado’s explanation on the use of his US passport was sufficient justification to conclude that he did not abandon his Oath of Renunciation. This finding is undeniably based on evidence on record as the above citations show.  In a Rule 64 petition, whether this conclusion is correct or incorrect is not material for as long as it is made on the basis of evidence on record, and was made within the contemplation of the applicable law.[40]

In other words, the Comelec en banc properly exercised its discretion in acting on the matter; thus, even if it had erred in its conclusions, any error in reading the evidence and in applying the law was not sufficiently grave to affect the exercise of its jurisdiction.[41]  From these perspectives, this Court has no recourse but to dismiss the present petition for failure to show any grave abuse of discretion on the part of the Comelec.

In these lights, I vote for the dismissal of the petition.



[1] An Act Making The Citizenship Of Philippine Citizens Who Acquire Foreign Citizenship Permanent, Amending For the Purpose Commonwealth Act No. 63, As Amended And For Other Purposes.

[2] Rollo, p. 229.

[3] Id. at 162.

[4] Section 1 of Commonwealth Act No. 63 states:
Section 1. How citizenship may be lost. – A Filipino citizen may lose his citizenship in any of the following ways and/or events:

(1) By naturalization in a foreign country;
[5] Otherwise known as the Citizenship Retention and Re-acquisition Act of 2003.

[6] Rollo, p. 239.

[7] Id. at 240.

[8] Id. at 160.

[9] Id. at 191.

[10] Id. at 218.

[11] Id. at 219.

[12] Id. at 242-245.

[13] Id. at 139.

[14] Id. at 192.

[15] Annexes A-1-A-4 of Respondent’s Motion for Reconsideration, Id. at 204-208.

[16] Id. at 191.

[17] Balua filed the petition to disqualify and/or to cancel Arnado’s CoC on April 28, 2010, prior to the May 10, 2010 elections.  Id. at 134-136.

[18] Id. at 161.

[19] Id. at 148-156.

[20] Id. at 160-164.

[21] Id. at 38-49.

[22] Id. at 89-96.

[23] G.R. No. L-83882, January 24, 1989, 169 SCRA 364.

[24] Rollo, pp. 50-67.

[25] Id. at 68-69.

[26] Id. at 70-73.

[27] Ponencia, p. 10.

[28] Ponencia, p. 17.

[29] Id. at 26.

[30] De Guzman v. Commission on Elections, G.R. No. 180048, June 19, 2009, 590 SCRA 141, 156.

[31] G.R. No. 180088, January 19, 2009, 576 SCRA 331.

[32] Id. at 346.

[33] Id. at 344.

[34] Rollo, p. 219.

[35] See http://www.philippineconsulatela.org/FAQs/FAQS-passport.htm#TD1 (last visited April 14, 2013).

[36] Board of Immigration Commissioners v. Go Callano, G.R. No. L-24530, October 31, 1968, 25 SCRA 890, 899..

[37] G.R. No. 83820, May 25, 1990, 185 SCRA 703.

[38] See J. Panganiban’s Concurring Opinion in Bengson III v. House Representatives Electoral Tribunal (G.R. No. 142840, May 7, 2001, 357 SCRA 545) where respondent Teodoro C. Cruz’ citizenship was also questioned, viz:

4. In Case of Doubt, Popular Will Prevails

Fourth, the court has a solemn duty to uphold the clear and unmistakable mandate of the people. It cannot supplant the sovereign will of the Second District of Pangasinan with fractured legalism. The people of the District have clearly spoken. They overwhelmingly and unequivocally voted for private respondent to represent them in the House of Representatives. The votes that Cruz garnered (80, 119) in the last elections were much more than those of all his opponents combined (66, 182).23 In such instances, all possible doubts should be resolved in favor of the winning candidate's eligibility; to rule otherwise would be to defeat the will of the people.

Well-entrenched in our jurisprudence is the doctrine that in case of doubt, political laws must be so constructed as to give life and spirit to the popular mandate freely expressed through the ballot. Public interest and the sovereign will should, at all times, be the paramount considerations in election controversies. For it would be better to err in favor of the people's choice than to be right in complex but little understood legalisms.

Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrative that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote

See also Fernandez v. House of Representatives Electoral Tribunal, G.R. No. 187478, December 21, 2009, 608 SCRA 733.

[39] 373 Phil. 896 (1999).

[40] Section 5, Rule 64 of the Rules of Court states that “[f]indings of facts of the Commission supported by substantial evidence shall be final and non-reviewable.”

[41] Mitra v. Commission on Elections, G.R. No. 191938, July 2, 2010, 622 SCRA 744.




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