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GROUNDS FOR DISQUALIFICATION A perusal of the issues raised by DIANGKA readily shows that there is an attempt to discredit the factual findings of the COMELEC that DIANGKA, directly or indirectly through her husband, who was then incumbent mayor of the municipality, committed acts of terrorism which is a ground for disqualification under Section 68 of the Omnibus Election Code. The said section enumerates the instances where a candidate can be disqualified by the COMELEC, to wit: SEC. 68. – Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions: (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Section 80, 83,85,86 and 261, paragraphs d,e,k,v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant of a foreign country shall not be qualified to run for any elective office under this code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Sec. 25, 1971 EC)." (emphasis supplied) The following are excerpts from the Resolution dated August 24, 1999 of the COMELEC en banc affirming the Resolution dated September 2,1998 of the COMELEC (Second Division): "There is enough evidence to support the findings of the Commission (Second division) that the alleged acts of terrorism and violation of election laws, which transpired in her presence, are sufficiently established by the evidence submitted by the Petitioner and that the same were perpetrated to enhance her candidacy and are attributable to her. It is not denied by respondent that then incumbent Mayor of Ganassi is Omra Maning Diangka, her husband. A preponderance of evidence shows that it was an ambulance car that was used in the distribution of ballots and other election paraphernalia. In fact, in her affidavit, respondent explicitly stated that it was an ambulance that was used. She had not denied that the same is under the control of and being used by Omra Maning Diangka and his family. No specific denial of this fact can be found in her Answer. And as shown by the evidence, the respondent was in that ambulance, at the front seat beside the driver where she can easily give directions for the latter to follow during the time material to the petition.
EFFECT OF DISQUALIFICATION This is a petition for certiorari to annul the resolution, dated May 10, 1998, of the First Division of the Commission on Elections, dismissing petitioner Marcita Mamba Perez’s petition for the disqualification of private respondent Rodolfo E. Aguinaldo as a candidate for Representative of the Third District of Cagayan in the May 11, 1998 elections, as well as the resolution of the COMELEC en banc, dated June 11, 1998, denying petitioner’s motion for reconsideration. The facts are not in dispute. On March 26, 1998, private respondent filed his certificate of candidacy for Representative of the Third District of Cagayan in the May 11, 1998 elections. Four days later, on March 30, 1998, petitioner, as a voter and citizen, filed in the COMELEC a petition for the disqualification of private respondent as a candidate on the ground that he had not been a resident of the district for at least one (1) year immediately before the day of the elections as required by Art. VI, §6 of the Constitution. Misedp In support of her claim, petitioner presented private respondent’s certificates of candidacy1 [Rollo, pp. 39-42; Annexes A, B, and C of the Petition for Disqualification, Annex D, Petition.] for governor of Cagayan in the 1988, 1992, and 1995 elections; his voter’s affidavit2 [Id., p. 43; Annex D, id.] which he used in the 1987, 1988, 1992, 1995, and 1997 elections; and his voter registration record dated June 22, 1997,3 [Id., p. 44; Annex E, id.] in all of which it is stated that he is a resident of Barangay Calaoagan Dackel, Municipality of Gattaran, which is outside the Third District of Cagayan. Petitioner alleged that private respondent filed an application4 [Id., p. 88; Annex F, id.] for the transfer of his registration as voter from Gattaran, Cagayan (First District) to Tuguegarao, Cagayan (Third District) only on December 17, 1997 and that said application was approved only on January 7, 1998. Petitioner prayed that in the event the case was not finally decided before the elections and private respondent obtained the highest number of votes, the latter’s proclamation be suspended.In his answer, private respondent claimed that while he had been a resident of Gattaran, Cagayan in 1990, he transferred his residence to Tuguegarao, Cagayan by renting an apartment at No. 13-E Magallanes St., Tuguegarao, Cagayan, in order to hide his mistress from public view because, at that time, his marriage to his former wife was still subsisting. In support of his claim, he presented the affidavit5 [Id., p. 66; Annex 3, Answer to Petition for Disqualification.] of the owner of the apartment, Engineer Alfredo Ablaza, in which it is stated that private respondent had been his lessee since July 1990. In addition, private respondent presented the contract of lease6 [Id., pp. 67-69; Annex 4, id.] of another residential apartment at Kamias Street, Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to June 30, 1996, between him, as lessee, and Tomas T. Decena, as lessor; his marriage license dated January 7, 1997;7 [Id., p. 73; Annex 6, id.] the marriage certificate between him and his present wife, Lerma Dumaguit, dated January 18, 1998;8 [Id., p. 74; Annex 7, id.] the birth certificate9 [Id., p. 75; Annex 8, id.] of their daughter, Geniah Laureen D. Aguinaldo; and various letters,10 [Id., pp. 76-84; Annexes 9 to 11, id.] all of which show that he had been a resident of Tuguegarao, Cagayan for at least one (1) year before the May 11, 1998 elections. On May 10, 1998, the First Division of the COMELEC, in a unanimous resolution,11 [Per Commissioner Teresita Dy-Liacco Flores and concurred in by Presiding Commissioner Manolo B. Gorospe and Commissioner Evelyn I. Fetalino.] dismissed the petition for disqualification, finding private respondent Aguinaldo qualified to run as representative for the Third District of Cagayan. On May 11, 1998, private respondent was elected Representative of the Third District of Cagayan, with 65,058 votes over his rival Manuel N. Mamba’s 58,507 votes.12 [Rollo, p. 117; Annex 1, Comment.] Accordingly, on May 16, 1998, he was proclaimed elected and, on May 17, 1998, he was sworn in office. On May 22, 1998, petitioner filed a motion for reconsideration reiterating her allegation that private respondent lacked the requisite residency in the Third District of Cagayan and arguing that the proclamation of private respondent was not a legal impediment to the continuation of the hearing on her motion in view of R.A. No. 6646, §6. Her motion was, however, denied by the COMELEC en banc in its resolution of June 11, 1998. Hence, this petition. Petitioner contends that the COMELEC committed grave abuse of discretion in holding that private respondent had been a resident of Tuguegarao, Cagayan since July 1990 when he rented an apartment there in order to hide his mistress. Petitioner contends that transfer of residence to the place where private respondent is keeping his mistress cannot amount to a change of domicile because one’s domicile is the place where one and one’s legitimate family resides. She also argues that private respondent could not have changed his residence to Tuguegarao in 1990 considering that his certificates of candidacy for governor of Cagayan in the 1988, 1992, and 1995 elections, as well as his voter registration records, the latest of which was made on June 22, 1997, indicate that he is a resident of Gattaran, which is in the First District of Cagayan. Petitioner avers that in the absence of clear and positive proof, one’s domicile of origin should be deemed to continue and that to successfully effect a change of domicile, one must prove an actual change of domicile, a bonafide intention of abandoning the former place of residence and of establishing a new one, and unequivocal acts which correspond with the intention. On the other hand, private respondent asks that the instant petition be dismissed. He argues that after his proclamation on May 16, 1998 and his assumption of office on June 30, 1998, the COMELEC lost jurisdiction to pass upon his qualifications for the office of Representative. He argues further that this case should have been filed with the House of Representatives Electoral Tribunal which has jurisdiction over the subject matter of the case. Scjj In a supplemental pleading,13 [Rollo, pp. 158-166.] petitioner replies that the COMELEC retained jurisdiction over the case because she filed the petition for disqualification on March 30, 1998, before the elections on May 11, 1998, and that pursuant to R.A. No. 6646, §6, the COMELEC could continue the proceedings for the determination of the disqualification of private respondent. The threshold issue, therefore, is whether the Court has jurisdiction to entertain the instant petition for certiorari and eventually pass upon private respondent’s eligibility for the office of Representative of the Third District of Cagayan. Petitioner, in sustaining the affirmative side of the question, invokes the following provision of R.A. No. 6646: As already stated, the petition for disqualification against private respondent was decided by the First Division of the COMELEC on May 10, 1998. The following day, May 11, 1998, the elections were held. Notwithstanding the fact that private respondent had already been proclaimed on May 16, 1998 and had taken his oath of office on May 17, 1998, petitioner still filed a motion for reconsideration on May 22, 1998, which the COMELEC en banc denied on June 11, 1998. Clearly, this could not be done. Sec. 6 of R.A. No. 6646 authorizes the continuation of proceedings for disqualification even after the elections if the respondent has not been proclaimed. The COMELEC en banc had no jurisdiction to entertain the motion because the proclamation of private respondent barred further consideration of petitioner’s action. In the same vein, considering that at the time of the filing of this petition on June 16, 1998, private respondent was already a member of the House of Representatives, this Court has no jurisdiction over the same. Pursuant to Art. VI, §17 of the Constitution, the House of Representatives Electoral Tribunal has the exclusive original jurisdiction over the petition for the declaration of private respondent’s ineligibility. As this Court held in Lazatin v. House of Representatives Electoral Tribunal:14 [168 SCRA 391, 401 (1988)]Petitioner’s remedies should have been (1) to reiterate her prayer in the petition for disqualification, and move for the issuance of an order by the COMELEC suspending the proclamation of private respondent pending the hearing of the said petition and, in the event the motion was denied before the proclamation of private respondent, file a petition for certiorari in this Court with a prayer for a restraining order to enjoin the proclamation of private respondent; or (2) to file a petition for quo warranto in the House of Representatives Electoral Tribunal within ten (10) days after the proclamation of private respondent as Representative-elect on May 16, 1998.15 [Revised Rules of the House of Representatives Electoral Tribunal, Rule 17.] Obviously, neither of these remedies can be availed of now.En Banc, Justice Mendoza,MARCITA MAMBA PEREZ, petitioner, vs. COMMISSION ON ELECTIONS and RODOLFO E. AGUINALDO, respondents. [G.R. No. 133944. October 28, 1999]
+ + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + ++ + + + + + + + + COMELEC Resolution No. 2050, adopted on November 3, 1988, reads: WHEREAS, there remain pending before the Commission, a number of cases of disqualification filed by virtue of the provisions of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. 6646, otherwise known as the Electoral Reforms Law of 1987; WHEREAS, opinions of the members of the Commission on matters of procedure in dealing with cases of this nature and the manner of disposing of the same have not been uniform; WHEREAS, in order to avoid
conflicts of opinion in the disposition or disqualification cases contemplated
under Section 68 of the Omnibus Election Code in relation to Section 6 of Rep.
Act 6646, there is a strongly felt need to lay down a definite policy in the
disposition of this specific class of disqualification cases;
Jjjuris NOW, THEREFORE, on motion duly seconded, the Commission en banc: RESOLVED, as it hereby resolves, to formulate the following rules governing the disposition of cases of disqualification filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987: 1......Any complaint for the disqualification of a duly registered candidate based upon any of the grounds specifically enumerated under Section 68 of the Omnibus Election Code, filed directly with the Commission before an election in which the respondent is a candidate, shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact been committed. Where the inquiry by the Commission results in a finding before election, that the respondent candidate did in fact commit the acts complained, the Commission shall order the disqualification of the respondent candidate from continuing as such candidate. In case such complaint was not resolved before the election, the Commission may motu propio, or an (sic) motion of any of the parties, refer the complaint to the law Department of the Commission as the instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws. Such recourse may be availed of irrespective of whether the respondent has been elected or has lost in the election. 2......Any complaint for disqualification based on Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act No. 6646 filed after the election against a candidate who has already been proclaimed as winner shall be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department of the Commission. Where a similar complaint is
filed after election but before proclamation of the respondent candidate, the
complaint shall, nevertheless, be dismissed as a disqualification case. However,
the complaint shall be referred for preliminary investigation to the Law
Department. If, before proclamation, the Law Department makes a prima facie
finding of guilt and the corresponding information has been filed with the
appropriate trial court, the complainant may file a petition for suspension of
the proclamation of the respondent with the court before which the criminal case
is pending and the said court may order the suspension of the proclamation if
the evidence of guilt is strong.
3......The Law Department shall terminate the preliminary investigation within thirty (30) days from receipt of the referral and shall submit its study, report and recommendation to the Commission en banc within five (5) days from the conclusion of the preliminary investigation. If it makes a prima facie finding of guilt, it shall submit with such study the Information for filing with the appropriate court. The above-quoted resolution covers two (2) different aspects: First, as contemplated in paragraph 1, a complaint for disqualification filed before the election must be inquired into by the COMELEC for the purpose of determining whether the acts complained of have in fact been committed. Where the inquiry results in a finding before the election, the COMELEC shall order the candidate’s disqualification. In case the complaint was not resolved before the election, the COMELEC may motu propio or on motion of any of the parties, refer the said complaint to the Law Department of the COMELEC for preliminary investigation. Second, paragraph 2 refers to a complaint for disqualification filed after the election against a candidate who has not yet been proclaimed or who has already been proclaimed as a winner. In both cases, the complaint shall be dismissed as a disqualification case but shall be referred to the Law Department of the COMELEC for preliminary investigation. However, if before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said court may order the suspension of the proclamation of the evidence of guilt is strong. Petitioners contend that said resolution is no longer a
good law since it has been nullified in toto by this Court in Sunga v.
COMELEC..8
[288 SCRA 76 (1998)] Contrary to petitioners’ contention, the Court did not nullify in toto COMELEC Resolution No. 2050 in the recent case of Sunga v. COMELEC. There, we held that: xxx We discern nothing in
COMELEC Resolution No. 2050 declaring, ordering or directing the dismissal of a
disqualification case filed before the election but which remained unresolved
after the election. What the Resolution mandates in such a case is for the
Commission to refer the complaint to its Law Department for investigation to
determine whether the acts complained of have in fact been committed by the
candidate sought to be disqualified. The findings of the Law Department then
become the basis for disqualifying the erring candidate. This is totally
different from the other two situations contemplated by Resolution No. 2050, i.e.,
a disqualification case filed after the election but before the proclamation of
winners and that filed after the election and the proclamation of winners,
wherein it was specifically directed by the same Resolution to be dismissed as a
disqualification case. Moreover, Resolution No. 2050 as interpreted in Silvestre v. Duavit infringes on Sec. 6 of RA No. 6646, which provides: SEC. 6. Effects 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 (italics supplied). Clearly, the legislative
intent is that the COMELEC should continue the trial and hearing of the
disqualification case to its conclusion, i.e., until judgment is rendered
thereon. The word ‘shall’ signifies that this requirment of the law is
mandatory, operating to impose a positive duty which must be enforced. The
implication is that the COMELEC is left with no discretion but to proceed with
the disqualification case even after the election. Thus, in providing for the
outright dismissal of the disqualification case which remains unresolved after
the election, Silvestre v. Duavit in effect disallows what RA No. 6646
imperatively requires. xxx.9
[Sunga v. COMELEC, supra, pp. 85-86.] What the Court found objectionable therein was the
second paragraph of paragraph 1 of Resolution No. 2050 as said provision clearly
infringes on Section 6 of R.A. No. 6646 which mandates that should a
disqualification case be not resolved before an election, the COMELEC shall
continue with the trial and hearing of the case. It should not be referred to
the Law Department as the resolution provides. The COMELEC’s failure to
distinguish between a complaint for disqualification filed before an election
and one filed after an election resulted in the controversy. There, the COMELEC
misapplied the rules pertaining to complaints filed after the election to a case
clearly filed prior to the May 8, 1995 elections. As we have already mentioned
above, the rules on disposition and resolution of cases filed before or after an
election vary..10
[See p. 9.] Consequently, the Sunga case cannot apply to the
instant case because here, the disqualification case was filed on May 18, 1998,
seven (7) days after the May 11, 1998 elections. Therefore, the provisions of
paragraph 2 of Resolution No. 2050 must apply, in that, the complaint shall be
dismissed as a disqualification case, but referred to the Law Department of the
COMELEC for preliminary investigation. This is exactly what the COMELEC ruled in
its assailed resolution of June 4, 1998, and rightly so.
Petitioners likewise fault the COMELEC for not ordering the suspension of respondent’s proclamation as mayor despite their timely-filed "Motion to Suspend Immediate Intended Proclamation of Respondent" and which motion was reiterated in a second motion. COMELEC did not err in not ordering the suspension of
respondent’s proclamation. The second paragraph of paragraph 2 of Resolution
No. 2050 provides that where a complaint is filed after the elections but before
proclamation, as in this case, the complaint must be dismissed as a
disqualification case but shall be referred to the Law Department for
preliminary investigation. If before the proclamation, the Law Department makes
a prima facie finding of guilt and the corresponding information has been
filed with the appropriate trial court, the complainant may file a petition for
suspension of the proclamation of respondent with the court before which the
criminal case is pending and that court may order the suspension of the
proclamation if the evidence of guilt is strong..11
[See p. 8.] It appearing that none of the foregoing
circumstances obtain herein as there is no prima facie finding of guilt
yet, a suspension o respondent’s proclamation is not warranted. The mere
pendency of a disqualification case against a candidate, and a winning candidate
at that, does not justify the suspension of his proclamation after winning in
the election. To hold otherwise would unduly encourage the filing of baseless
and malicious petitions for disqualification if only to effect the suspension of
the proclamation of the winning candidate, not only to his damage and prejudice
but also to the defeat of the sovereign will of the electorate, and for the
undue benefit of underserving third parties..12
[Singco v. COMELEC, 101 SCRA 420, 429 (1980)] Before we end, a word of caution to herein petitioners and to future litigants and counsels predisposed to invoke this Court’s jurisdiction without waiting for the resolution of whatever pending motions and motions for reconsideration they have before trial courts and tribunals exercising specialized jurisdiction: The Court will not countenance the practice of taking any shortcuts of the established rules of procedure pertaining to the hierarchy of courts and remedies of last resort. When the petitioners filed the instant petition for certiorari on June 25, 1999, they knew pretty well that the motion for reconsideration they filed to assail the June 4, 1998 resolution of the First Division of the Commission was still pending with the COMELEC en banc. Notwithstanding that knowledge, they went to this Court to seek another remedy which was not exactly available to them at that time. This practice falls short of forum-shopping in the technical sense and will not be allowed. WHEREFORE, the instant petition is hereby DISMISSED.En Banc, Justice Kapunan, AMADO S. BAGATSING,
ERNESTO M. MACEDA, and JAIME LOPEZ, petitioners, vs.
COMMISSION ON ELECTIONS and JOSE L. ATIENZA, respondents.[G.R.
No. 134047. December 8, 1999]
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