En Banc: in The Matter of The Petition For Disqualification of Tess Dumpit-MICHELENA G.R. Nos. 163619-20
En Banc: in The Matter of The Petition For Disqualification of Tess Dumpit-MICHELENA G.R. Nos. 163619-20
En Banc: in The Matter of The Petition For Disqualification of Tess Dumpit-MICHELENA G.R. Nos. 163619-20
163619-20
EN BANC
Present:
Davide, Jr., C.J.,
Puno,
TESS DUMPIT-MICHELENA,
Panganiban,
Petitioner,
Quisumbing,
Ynares-Santiago,
- versus Sandoval-Gutierrez,
Carpio,
CARLOS BOADO,
Austria-Martinez,
FERNANDO CALONGE,
Corona,
SALVADOR CARRERA,
Carpio Morales,
BENITO CARRERA,
Callejo, Sr.,
DOMINGO CARRERA, and
Azcuna,
ROGELIO DE VERA,
Tinga,
Respondents.
Chico-Nazario, and
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Garcia, JJ.
IN THE MATTER OF THE PETITION
TO DENY DUE COURSE OR
TO CANCEL CERTIFICATE
OF CANDIDACY FOR MAYOR,
TESS DUMPIT-MICHELENA,
Petitioner,
DECISION
CARPIO, J.:
The Cases
Before this Court is a petition for certiorari[1] assailing the 9 March 2004
Resolution[2] of the Commission on Elections (COMELEC) Second Division and
the 7 May 2004 Resolution[3] of the COMELEC En Banc in SPA 04-015 [4] and SPA
04-016.[5]
Dumpit-Michelena
(Dumpit-Michelena)
on
the
ground
of
material
resident and was a registered voter of Naguilian, La Union and that DumpitMichelena only transferred her registration as voter to San Julian West, Agoo, La
Union on 24 October 2003. Her presence in San Julian West, Agoo, La Union was
noticed only after she filed her certificate of candidacy. Boado, et al. presented,
among other things, a joint affidavit of all barangay officials of San Julian West to
prove that Dumpit-Michelena is not a resident of the barangay.
SO ORDERED.[8]
The Issues
1.
2.
time;
3.
Within twenty-four (24) hours from the filing thereof, the Clerk of the
Commission shall notify the Presiding Commissioner. The latter shall, within two
(2) days thereafter, certify the case to the Commission en banc.
The Clerk of the Commission shall calendar the motion for reconsideration for the
resolution of the Commission en banc within three (3) days from the certification
thereof.
On call of these cases today for promulgation, counsels for the respondent
appeared. There was no appearance for the petitioners. Counsel manifested that
they filed a manifestation and motion and an urgent motion holding in abeyance
the promulgation of the resolution of these cases. The motions to hold in abeyance
the promulgation is hereby denied. However, the respondent may file a motion
for reconsideration within five (5) days from receipt of the decision if the
decision is adverse to their client. (Emphasis supplied)
Apparently, the COMELEC committed an oversight in declaring that DumpitMichelena had five days within which to file her motion for reconsideration. The
COMELEC overlooked Resolution No. 6452. For her part, Dumpit-Michelena
only followed the period provided in the Order. She filed her motion for
reconsideration on 15 March 2004 since 14 March 2004 fell on a Sunday. This
Court can hardly fault her for following the COMELEC Order.
Dumpit-Michelena asserts that she was denied due process when the COMELEC
summarily resolved the disqualification case against her without giving her a fair
opportunity to submit additional evidence to support her case.
6.
a.
c.
officer designated to receive the evidence of the parties. She alleged that Boado, et
al.s counsel was the former Regional Director of the COMELEC Regional Office
and undue influence might be exerted over Atty. Salas. In the meanwhile, she
submitted a semblance of a memorandum if only to insure x x x that she would be
able to convey her opposition to the petitions filed against her.[12] DumpitMichelena alleged that she wanted to submit her evidence to a hearing officer who
would not be biased and would not be inclined to side with Boado, et al.
Without resolving the Motion to Inhibit, Atty. Salas forwarded the records of
the case to COMELEC Manila. However, to obviate suspicion of partiality, Atty.
Salas did not make any recommendation as required under Resolution No. 6452.
We rule that there was no denial of due process in the cases before the Court.
7.
The hearing must be completed within ten (10) days from the date of the
filing of the answer. The Hearing Officer concerned shall personally or
through his authorized representative submit to the Clerk of the Commission
his Hearing/Case report(s) indicating his findings and recommendations
within five (5) days from the completion of the hearing and reception of
evidence together with the complete records of the case;
8.
Upon receipt of the records of the case [indicating] the findings and
recommendations of the Hearing Officer concerned, the Clerk of the
Commission shall immediately docket the case consecutively and calendar
the same for raffle to a division;
9. The division to whom the case is raffled shall, after evaluation and
consultation, assign immediately the same to a member who shall pen the
decision within five (5) days from the date of consultation.
Resolution No. 6452 is clear. The hearing officer is only designated to hear and
receive evidence. His conclusions are merely recommendatory upon the
COMELEC. Dumpit-Michelena knew fully well that the entire records of the case
would be forwarded to COMELEC Manila for the resolution of the cases. She had
all the opportunity to present her evidence to support her stand. Instead, she chose
to file a Memorandum which she described as one done in half-hearted compliance
with the rules.[13] She may not claim now that she was denied due process because
she was unable to present all her evidence before the hearing officer.
On Residency Requirement
Dumpit-Michelena failed to prove that she has complied with the residency
requirement.
Section 65 of the Omnibus Election Code provides that the qualifications for
elective provincial, city, municipal and barangay officials shall be those provided
for in the Local Government Code. Section 39(a) of the Local Government Code
of 1991[14] states:
SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province or,
in the case of a member of the sangguniang panlalawigan, sangguniang
panglungsod, or sangguniang bayan, the district where he intends to be elected; a
resident therein for at least one (1) year immediately preceding the day of the
election; and able to read and write Filipino or any other local language or dialect.
(Emphasis supplied)
x x x The term residence has been understood as synonymous with domicile not
only under the previous Constitutions but also under the 1987 Constitution.
xxx
M[r]s. Rosario Braid: Yes, So, would the gentlemen consider at the
proper time to go back to actual residence rather than mere intention
to reside?
(2) a bona fide intention of abandoning the former place of residence and
establishing a new one; and
(3) acts which correspond with the purpose.[19]
The Court agrees with the COMELEC Second Division that DumpitMichelena failed to establish that she has abandoned her former domicile. Among
the documents submitted by Dumpit-Michelena is a Special Power of
Attorney[23] authorizing Clyde Crispino (Crispino) to apply, facilitate and follow up
the issuance of a building permit of the beach house she intended to put up in her
lot. She also authorized Crispino to help her caretaker oversee the lot and the
construction of the beach house. As correctly pointed out by the COMELEC
Second Division, a beach house is at most a place of temporary relaxation. It can
hardly be considered a place of residence.
Hence, the COMELEC Second Division did not commit grave abuse of
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
Pundaodaya v. COMELEC
EN BANC
Present:
Puno, C.J.,
Quisumbing,
Ynares-Santiago,
Carpio,
Corona,
Carpio Morales,
- versus - Chico-Nazario,
Velasco, Jr.,
Nachura,
Leonardo-De Castro,
Brion,
Peralta,
Bersamin,
Del Castillo, and
Abad, JJ.
COMMISSION ON ELECTIONS
and ARSENIO DENSING NOBLE, Promulgated:
Respondents.
September 17, 2009
x ---------------------------------------------------------------------------------------- x
DECISION
YNARES-SANTIAGO, J.:
This petition[1] for certiorari under Rule 65 assails the August 3, 2007
Resolution[2] of the Commission on Elections (COMELEC) En Banc in SPA No.
07-202, which declared private respondent Arsenio Densing Noble (Noble)
qualified to run for municipal mayor of Kinoguitan, Misamis Oriental, in the May
14, 2007 Synchronized National and Local Elections.
Noble filed a motion for reconsideration of the above resolution. In the meantime,
he garnered the highest number of votes and was proclaimed the winning candidate
on May 15, 2007. Pundaodaya then filed an Urgent Motion to Annul Proclamation.
[7]
SO ORDERED.[9]
Pundaodaya filed the instant petition for certiorari, alleging that the
COMELEC En Banc acted with grave abuse of discretion when it declared Noble
qualified to run; when it did not annul Nobles proclamation; and when it failed to
proclaim the true winning candidate, Judith Pundaodaya.
In a resolution dated November 13, 2007,[10] the Court required the respondents to
comment on the petition.
Public respondent, through the Office of the Solicitor General, filed a
Manifestation and Motion[11] praying that it be excused from filing a separate
comment and that the said pleading be considered sufficient compliance with the
November 13, 2007 Resolution.
Meanwhile, for Nobles failure to comply, the Court issued Resolutions [12] dated
July 15, 2008 and December 9, 2008 requiring him to show cause why he should
not be disciplinarily dealt with or held in contempt, imposing a fine ofP1,000.00,
and requiring him to file a comment. On June 2, 2009, the Court deemed Noble to
have waived the filing of the comment.[13]
The issues for resolution are: whether the COMELEC En Banc gravely abused its
discretion: 1) in declaring Noble qualified to run for the mayoralty position; and 2)
in failing to order the annulment of Nobles proclamation and refusing to proclaim
Judith Pundaodaya as the winning candidate.
Section 39 of Republic Act No. 7160, otherwise known as the Local Government
Code, requires that an elective local official must be a resident in the barangay,
municipality, city or province where he intends to serve for at least one year
immediately preceding the election.[14]
In Japzon v. Commission on Elections,[15] it was held that the term residence is to
be understood not in its common acceptation as referring to dwelling or habitation,
but rather to domicile or legal residence, that is, the place where a party actually or
constructively has his permanent home, where he, no matter where he may be
found at any given time, eventually intends to return and remain (animus
manendi).
In Domino v. Commission on Elections,[16] the Court explained that domicile
denotes a fixed permanent residence to which, whenever absent for business,
pleasure, or some other reasons, one intends to return. It is a question of intention
and circumstances. In the consideration of circumstances, three rules must be borne
in mind, namely: (1) that a man must have a residence or domicile somewhere; (2)
when once established it remains until a new one is acquired; and (3) a man can
have but one residence or domicile at a time.
If one wishes to successfully effect a change of domicile, he must
demonstrate an actual removal or an actual change of domicile, a bona
fide intention of abandoning the former place of residence and establishing a new
one, and definite acts which correspond with the purpose.[17] Without clear and
positive proof of the concurrence of these three requirements, the domicile of
origin continues.[18]
Records show that Nobles domicile of origin was Lapasan, Cagayan de Oro
City. However, he claims to have chosen Kinoguitan, Misamis Oriental as his new
domicile. To substantiate this, he presented before the COMELEC his voter
registration records;[19] a Certification dated April 25, 2007 from Election Officer II
Clavel Z. Tabada;[20] his Marriage Certificate;[21] and affidavits of residents of
Kinoguitan[22] attesting that he established residence in the municipality after his
marriage to Bernadith Go. In addition, he presented receipts[23] from the Provincial
Treasurer for payment of his water bills, and Certifications from the Municipal
Treasurer and Municipal Engineer that he has been a consumer of the Municipal
Water System since June 2003. To prove ownership of property, he also presented a
Deed of Sale[24] over a real property dated June 3, 1996.
The above pieces of documentary evidence, however, fail to convince us that
Noble successfully effected a change of domicile. As correctly ruled by the
COMELEC Second Division, private respondents claim that he is a registered
voter and has actually voted in the past 3 elections in Kinoguitan, Misamis Oriental
do not sufficiently establish that he has actually elected residency in the said
municipality. Indeed, while we have ruled in the past that voting gives rise to a