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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 120265 September 18, 1995

AGAPITO A. AQUINO, petitioner,

vs.
COMMISSION ON ELECTIONS, MOVE MAKATI, MATEO BEDON and JUANITO ICARO, respondents.

KAPUNAN, J.:

The sanctity of the people's will must be observed at all times if our nascent democracy is to be preserved. In any
challenge having the effect of reversing a democratic choice, expressed through the ballot, this Court should be ever
so vigilant in finding solutions which would give effect to the will of the majority, for sound public policy dictates that
all elective offices are filled by those who have received the highest number of votes cast in an election. When a
challenge to a winning candidate's qualifications however becomes inevitable, the ineligibility ought to be so noxious
to the Constitution that giving effect to the apparent will of the people would ultimately do harm to our democratic
institutions.

On March 20, 1995, petitioner Agapito A. Aquino filed his Certificate of Candidacy for the position of Representative
for the new Second Legislative District of Makati City. Among others, Aquino provided the following information in
his certificate of candidacy, viz:.

(7) RESIDENCE (Complete Address): 284 AMAPOLA COR. ADALLA STS., PALM VILLAGE, MAKATI.

xxx xxx xxx

(8) RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY

PRECEDING THE ELECTION: ______ Years and 10 Months.

xxx xxx xxx

THAT I AM ELIGIBLE for said Office; That I will support and defend the Constitution of the Republic of
the Philippines and will maintain true faith and allegiance thereto; That I will obey the law, rules and
decrees promulgated by the duly constituted authorities; That the obligation imposed to such is
assumed voluntarily, without mental reservation or purpose of evasion, and that the facts therein are
true to the best of my knowledge.1

On April 24, 1995, Move Makati, a duly registered political party, and Mateo Bedon, Chairman of the LAKAS-NUCD-
UMDP of Barangay Cembo, Makati City, filed a petition to disqualify Agapito A. Aquino2 on the ground that the latter
lacked the residence qualification as a candidate for congressman which, under Section 6, Art. VI of the 1987 the
Constitution, should be for a period not less than one (1) year immediately preceding the May 8, 1995 elections. The
petition was docketed as SPA No. 95-113 and was assigned to the Second Division of the Commission on Elections
(COMELEC).

On April 25, 1995, a day after said petition for disqualification was filed, petitioner filed another certificate of
candidacy amending the certificate dated March 20, 1995. This time, petitioner stated in Item 8 of his certificate that
he had resided in the constituency where he sought to be elected for one (l) year and thirteen (13) days.3
On May 2, 1995, petitioner filed his Answer dated April 29, 1995 praying for the dismissal of the disqualification
case.4

On the same day, May 2, 1995, a hearing was conducted by the COMELEC wherein petitioner testified and
presented in evidence, among others, his Affidavit dated May 2, 1995,5 lease contract between petitioner and
Leonor Feliciano dated April 1, 1994,6 Affidavit of Leonor Feliciano dated April 28,19957 and Affidavit of Daniel
Galamay dated April 28, 1995.8

After hearing of the petition for disqualification, the Second Division of the COMELEC promulgated a Resolution
dated May 6, 1995, the decretal portion of which reads:

WHEREFORE, in view of the foregoing, this Commission (Second Division) RESOLVES to DISMISS
the instant: petition for Disqualification against respondent AGAPITO AQUINO and declares him
ELIGIBLE to run for the Office of Representative in the Second Legislative District of Makati City.

SO ORDERED.9

On May 7, 1995, Move Makati and Mateo Bedon filed a Motion for Reconsideration of the May 6, 1995 resolution
with the COMELEC en banc.

Meanwhile, on May 8, 1995, elections were held. In Makati City where three (3) candidates vied for the
congressional seat in the Second District, petitioner garnered thirty eight thousand five hundred forty seven (38,547)
votes as against another candidate, Agusto Syjuco, who obtained thirty five thousand nine hundred ten (35,910)
votes.10

On May 10, 1995, private respondents Move Makati and Bedon filed an Urgent Motion Ad Cautelum to Suspend
Proclamation of petitioner. Thereafter, they filed an Omnibus Motion for Reconsideration of the COMELEC's Second
Division resolution dated May 6, 1995 and a 2nd Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner.

On May 15, 1995, COMELEC en banc issued an Order suspending petitioner's proclamation. The dispositive
portion of the order reads:

WHEREFORE, pursuant to the provisions of Section 6 of Republic Act No. 6646, the Board of
Canvassers of the City of Makati is hereby directed to complete the canvassing of election returns of
the Second District of Makati, but to suspend the proclamation of respondent Agapito A. Aquino should
he obtain the winning number of votes for the position of Representative of the Second District of the
City of Makati, until the motion for reconsideration filed by the petitioners on May 7, 1995, shall have
been resolved by the Commission.

The Executive Director, this Commission, is directed to cause the immediate implementation of this
Order. The Clerk of Court of the Commission is likewise directed to inform the parties by the fastest
means available of this Order, and to calendar the hearing of the Motion for Reconsideration on May
17, 1995, at 10:00 in the morning, PICC Press Center, Pasay City.

SO ORDERED.11

On May 16, 1995, petitioner filed his Comment/Opposition with urgent motion to lift order of suspension of
proclamation.

On June 1, 1995, petitioner filed a "Motion to File Supplemental Memorandum and Motion to Resolve Urgent Motion
to Resolve Motion to Lift Suspension of Proclamation" wherein he manifested his intention to raise, among others,
the issue of whether of not the determination of the qualifications of petitioner after the elections is lodged
exclusively in the House of Representatives Electoral Tribunal pursuant to Section 17, Article VI of the 1987
Constitution.

Resolving petitioner's motion to lift suspension of his proclamation, the COMELEC en banc issued an Order on June
2, 1995, the decretal portion thereof residing:

Pursuant to the said provisions and considering the attendant circumstances of the case, the
Commission RESOLVED to proceed with the promulgation but to suspend its rules, to accept the filing
of the aforesaid motion, and to allow the parties to be heard thereon because the issue of jurisdiction
now before the Commission has to be studied with more reflection and judiciousness. 12

On the same day, June 2, 1995, the COMELEC en banc issued a Resolution reversing the resolution of the Second
Division dated May 6, 1995. The fallo reads as follows:
 WHEREFORE, in view of the foregoing, petitioners' Motion for Reconsideration of the Resolution of the
Second Division, promulgated on May 6, 1995, is GRANTED. Respondent Agapito A. Aquino is
declared ineligible and thus disqualified as a candidate for the Office of Representative of the Second
Legislative District of Makati City in the May 8, 1995 elections, for lack of the constitutional qualification
of residence. Consequently, the order of suspension of proclamation of the respondent should he
obtain the winning number of votes, issued by this Commission on May 15, 1995 is now made
permanent.

Upon the finality of this Resolution, the Board of Canvassers of the City of Makati shall immediately
reconvene and, on the basis of the completed canvass of election returns, determine the winner out of
the remaining qualified candidates, who shall be immediately be proclaimed.

SO ORDERED. 13

Hence, the instant Petition for Certiorari 14 assailing the orders dated May 15, 1995 and June 2, 1995, as well as the
resolution dated June 2, 1995 issued by the COMELEC en banc. Petitioner's raises the following errors for
consideration, to wit:

THE COMELEC HAS NO JURISDICTION TO DETERMINE AND ADJUDGE THE DISQUALIFICATION

ISSUE INVOLVING CONGRESSIONAL CANDIDATES AFTER THE MAY 8, 1995 ELECTIONS, SUCH
DETERMINATION BEING RESERVED TO AND LODGE EXCLUSIVELY WITH THE HOUSE OF
REPRESENTATIVE ELECTORAL TRIBUNAL

ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, SAID JURISDICTION

CEASED IN THE INSTANT CASE AFTER THE ELECTIONS, AND THE REMEDY/IES AVAILABLE TO
THE ADVERSE PARTIES LIE/S IN ANOTHER FORUM WHICH, IT IS SUBMITTED, IS THE HRET
CONSISTENT WITH SECTION 17, ARTICLE VI OF THE 1987 CONSTITUTION

THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT PROCEEDED TO

PROMULGATE ITS QUESTIONED DECISION (ANNEX "C", PETITION) DESPITE IT OWN
RECOGNITION THAT A THRESHOLD ISSUE OF JURISDICTION HAS TO BE JUDICIOUSLY
REVIEWED AGAIN, ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, THE
COMELEC COMMITTED GRAVE ABUSE OF DISCRETION, AND SERIOUS ERROR IN DIRECTING
WITHOUT NOTICE THE SUSPENSION OF THE PROCLAMATION OF THE PETITIONER AS THE
WINNING CONGRESSIONAL CANDIDATE AND DESPITE THE MINISTERIAL NATURE OF SUCH
DUTY TO PROCLAIM (PENDING THE FINALITY OF THE DISQUALIFICATION CASE AGAINST THE
PETITIONER) IF ONLY NOT TO THWART THE PEOPLE'S WILL.

THE COMELEC'S FINDING OF NON-COMPLIANCE WITH THE RESIDENCY REQUIREMENT OF

ONE YEAR AGAINST THE PETITIONER IS CONTRARY TO EVIDENCE AND TO APPLICABLE
LAWS AND JURISPRUDENCE.

IN ANY CASE, THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL
IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF
CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE
ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY FOUR
MONTHS IN THE CASE OF PETITIONER'S DISTRICT IN MAKATI OF CONGRESSIONAL.

THE COMELEC COMMITTED SERIOUS ERROR AMOUNTING TO LACK OF JURISDICTION WHEN

IT ORDERED THE BOARD OF CANVASSERS TO "DETERMINE AND PROCLAIM THE WINNER
OUT OF THE REMAINING QUALIFIED CANDIDATES" AFTER THE ERRONEOUS
DISQUALIFICATION OF YOUR PETITIONER IN THAT SUCH DIRECTIVE IS IN TOTAL DISREGARD
OF THE WELL SETTLED DOCTRINE THAT A SECOND PLACE CANDIDATE OR PERSON WHO
 WAS REPUDIATED BY THE ELECTORATE IS A LOSER AND CANNOT BE PROCLAIMED AS
SUBSTITUTE
WINNER.15

In his first three assignments of error, petitioner vigorously contends that after the May 8, 1995 elections, the
COMELEC lost its jurisdiction over the question of petitioner's qualifications to run for member of the House of
Representatives. He claims that jurisdiction over the petition for disqualification is exclusively lodged with the House
of Representatives Electoral Tribunal (HRET). Given the yet unresolved question of jurisdiction, petitioner avers that
the COMELEC committed serious error and grave abuse of discretion in directing the suspension of his
proclamation as the winning candidate in the Second Congressional District of Makati City. We disagree.

Petitioner conveniently confuses the distinction between an unproclaimed candidate to the House of
Representatives and a member of the same. Obtaining the highest number of votes in an election does not
automatically vest the position in the winning candidate. Section 17 of Article VI of the 1987 Constitution reads:

The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns and qualifications of their respective Members.

Under the above-stated provision, the electoral tribunal clearly assumes jurisdiction over all contests relative to the
election, returns and qualifications of candidates for either the Senate or the House only when the latter become
members of either the Senate or the House of Representatives. A candidate who has not been proclaimed 16 and
who has not taken his oath of office cannot be said to be a member of the House of Representatives subject to
Section. 17 of the Constitution. While the proclamation of a winning candidate in an election is ministerial, B.P. 881
in conjunction with Sec 6 of R.A. 6646 allows suspension of proclamation under circumstances mentioned therein.
Thus, petitioner's contention that "after the conduct of the election and (petitioner) has been established the winner
of the electoral exercise from the moment of election, the COMELEC is automatically divested of authority to pass
upon the question of qualification" finds no basis, because even after the elections the COMELEC is empowered by
Section 6 (in relation to Section 7) of R.A. 6646 to continue to hear and decide questions relating to qualifications of
candidates Section 6 states:

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 guilt is strong.

Under the above-quoted provision, not only is a disqualification case against a candidate allowed to continue after
the election (and does not oust the COMELEC of its jurisdiction), but his obtaining the highest number of votes will
not result in the suspension or termination of the proceedings against him when the evidence of guilt is strong. While
the phrase "when the evidence of guilt is strong" seems to suggest that the provisions of Section 6 ought to be
applicable only to disqualification cases under Section 68 of the Omnibus Election Code, Section 7 of R.A. 6646
allows the application of the provisions of Section 6 to cases involving disqualification based on ineligibility under
Section 78 of B.P. 881. Section 7 states:

Sec. 7. Petition to Deny Due Course or to Cancel a Certificate of Candidacy. — The procedure
hereinabove provided shall apply to petition to deny due course to or cancel a certificate of candidacy
based on Sec. 78 of Batas Pambansa 881.

II

We agree with COMELEC's contention that in order that petitioner could qualify as a candidate for Representative of
the Second District of Makati City the latter "must prove that he has established not just residence but domicile of
choice. 17

The Constitution requires that a person seeking election to the House of Representatives should be a resident of the
district in which he seeks election for a period of not less than one (l) year prior to the elections. 18 Residence, for
election law purposes, has a settled meaning in our jurisdiction.

In Co v. Electoral Tribunal of the House of Representatives 19 this Court held that the term "residence" has always
been understood as synonymous with "domicile" not only under the previous Constitutions but also under the 1987
Constitution. The Court there held: 20

The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the
qualifications of a candidate for Congress continues to remain the same as that of domicile, to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional
Convention, there was an attempt to require residence in the place not less than one year
immediately preceding the day of elections. So my question is: What is the Committee's
concept of domicile or constructive residence?

Mr. Davide: Madame President, insofar as the regular members of the National Assembly
are concerned, the proposed section merely provides, among others, and a resident
thereof', that is, in the district, for a period of not less than one year preceding the day of
the election. This was in effect lifted from the 1973 Constitution, the interpretation given to
it was domicile (emphasis ours) Records of the 1987 Constitutional Convention, Vol. II,
July 22, 1986, p. 87).

xxx xxx xxx

Mrs. Rosario Braid: The next question is on section 7, page 2. I think Commissioner
Nolledo has raised the same point that "resident" has been interpreted at times as a
matter of intention rather than actual residence.

Mr. De Los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go back to
actual residence rather than mere intention to reside?

Mr. De los Reyes: But We might encounter some difficulty especially considering that the
provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may
vote as enacted by law. So, we have to stick to the original concept that it should be by
domicile and not physical and actual residence. (Records of the 1987 Constitutional
Commission, Vol. II, July 22, 1986, p. 110).

The framers of the Constitution adhered to the earlier definition given to the word "residence" which
regarded it as having the same meaning as domicile.

Clearly, the place "where a party actually or constructively has his permanent home," 21 where he, no matter where
he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the
Constitution refers when it speaks of residence for the purposes of election law. The manifest purpose of this
deviation from the usual conceptions of residency in law as explained in Gallego vs. Vera at 22 is "to exclude
strangers or newcomers unfamiliar with the conditions and needs of the community" from taking advantage of
favorable circumstances existing in that community for electoral gain. While there is nothing wrong with the practice
of establishing residence in a given area for meeting election law requirements, this nonetheless defeats the
essence of representation, which is to place through the assent of voters those most cognizant and sensitive to the
needs of a particular district, if a candidate falls short of the period of residency mandated by law for him to qualify.
That purpose could be obviously best met by individuals who have either had actual residence in the area for a
given period or who have been domiciled in the same area either by origin or by choice. It would, therefore, be
imperative for this Court to inquire into the threshold question as to whether or not petitioner actually was a resident
for a period of one year in the area now encompassed by the Second Legislative District of Makati at the time of his
election or whether or not he was domiciled in the same.

As found by the COMELEC en banc petitioner in his Certificate of Candidacy for the May 11, 1992 elections,
indicated not only that he was a resident of San Jose, Concepcion, Tarlac in 1992 but that he was a resident of the
same for 52 years immediately preceding that election. 23 At the time, his certificate indicated that he was also a
registered voter of the same district. 24 His birth certificate places Concepcion, Tarlac as the birthplace of both of his
parents Benigno and Aurora. 25 Thus, from data furnished by petitioner himself to the COMELEC at various times
during his political career, what stands consistently clear and unassailable is that this domicile of origin of record up
to the time of filing of his most recent certificate of candidacy for the 1995 elections was Concepcion, Tarlac.

Petitioner's alleged connection with the Second District of Makati City is an alleged lease agreement of
condominium unit in the area. As the COMELEC, in its disputed Resolution noted:

The intention not to establish a permanent home in Makati City is evident in his leasing a condominium
 unit instead of buying one. While a lease contract maybe indicative of respondent's intention to reside
in Makati City it does not engender the kind of permanency required to prove abandonment of one's
original domicile especially since, by its terms, it is only for a period of two (2) years, and respondent
Aquino himself testified that his intention was really for only one (l) year because he has other
"residences" in Manila or Quezon City. 26

While property ownership is not and should never be an indicia of the right to vote or to be voted upon, the fact that
petitioner himself claims that he has other residences in Metro Manila coupled with the short length of time he
claims to be a resident of the condominium unit in Makati (and the fact, of his stated domicile in Tarlac) "indicate that
the sole purpose of (petitioner) in transferring his physical residence" 27 is not to acquire's new residence or domicile
"but only to qualify as a candidate for Representative of the Second District of Makati City." 28 The absence of clear
and positive proof showing a successful abandonment of domicile under the conditions stated above, the lack of
identification — sentimental, actual or otherwise — with the area, and the suspicious circumstances under which the
lease agreement was effected all belie petitioner's claim of residency for the period required by the Constitution, in
the Second District of Makati. As the COMELEC en banc emphatically pointed out:

[T]he lease agreement was executed mainly to support the one year residence requirement as a
qualification for a candidate of Representative, by establishing a commencement date of his residence.
If a perfectly valid lease agreement cannot, by itself establish; a domicile of choice, this particular lease
agreement cannot do better. 29

Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is a bare assertion which is hardly
supported by the facts in the case at bench. Domicile of origin is not easily lost. To successfully effect a change of
domicile, petitioner must prove 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.30 These requirements are hardly met by the evidence adduced in support of petitioner's claims of a change
of domicile from Tarlac to the Second District of Makati. In the absence of clear and positive proof, the domicile of
origin be deemed to continue requirements are hardly met by the evidence adduced in support of petitioner's claims
of a change of domicile from Tarlac to the Second District of Makati. In the absence of clear and positive proof, the
domicile of origin should be deemed to continue.

Finally, petitioner's submission that it would be legally impossible to impose the one year residency requirement in a
newly created political district is specious and lacks basis in logic. A new political district is not created out of thin air.
It is carved out from part of a real and existing geographic area, in this case the old Municipality of Makati. That
people actually lived or were domiciled in the area encompassed by the new Second District cannot be denied.
Modern-day carpetbaggers cannot be allowed take advantage of the creation of new political districts by suddenly
transplanting themselves in such new districts, prejudicing their genuine residents in the process of taking
advantage of existing conditions in these areas. It will be noted, as COMELEC did in its assailed resolution, that
petitioner was disqualified from running in the Senate because of the constitutional two-term limit, and had to shop
around for a place where he could run for public office. Nothing wrong with that, but he must first prove with
reasonable certainty that he has effected a change of residence for election law purposes for the period required by
law. This he has not effectively done.

III

The next issue here is whether or not the COMELEC erred in issuing it Order instructing the Board of Canvassers of
Makati City to proclaim as winner the candidate receiving the next higher number of votes. The answer must be in
the negative.

To contend that Syjuco should be proclaimed because he was the "first" among the qualified candidates in the May
8, 1995 elections is to misconstrue the nature of the democratic electoral process and the sociological and
psychological underpinnings behind voters' preferences. The result suggested by private respondent would lead not
only to our reversing the doctrines firmly entrenched in the two cases of Labo vs. Comelec 31 but also to a massive
disenfranchisement of the thousands of voters who cast their vote in favor of a candidate they believed could be
validly voted for during the elections. Had petitioner been disqualified before the elections, the choice, moreover,
would have been different. The votes for Aquino given the acrimony which attended the campaign, would not have
automatically gone to second placer Syjuco. The nature of the playing field would have substantially changed. To
simplistically assume that the second placer would have received the other votes would be to substitute our
judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was
repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates
because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We
are not prepared to extrapolate the results under such circumstances.

In these cases, the pendulum of judicial opinion in our country has swung from one end to the other. In the early
case of Topacio v. Paredes. 32 we declared as valid, votes cast in favor of a disqualified, ineligilble or dead
candidate provided the people who voted for such candidate believed in good faith that at the time of the elections
said candidate was either qualified, eligible or alive. The votes cast in favor of a disqualified, ineligible or dead
candidate who obtained the next higher number of votes cannot be proclaimed as winner. According to this Court in
the said case, "there is not, strictly speaking, a contest, that 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 the plurality of
the legally cast ballots."

Then in Ticson v. Comelec, 33 this Court held that votes cast in favor of a non-candidate in view of his unlawful
change of party affiliation (which was then a ground for disqualification) cannot be considered in the canvassing of
election returns and the votes fall into the category of invalid and nonexistent votes because a disqualified candidate
is no candidate at all and is not a candidate in the eyes of the law. As a result, this Court upheld the proclamation of
the only candidate left in the disputed position.

In Geronimo v. Ramos 34 we reiterated our ruling in Topacio v. Paredes that the candidate who lost in an election
cannot be proclaimed the winner in the event the candidate who ran for the portion is ineligible. We held in
Geronimo:

[I]t would be extremely repugnant to the basic concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner
and imposed as the representative of a constituency, the majority of which have positively declared
through their ballots that they do not choose him.

Sound policy dictates that public elective offices are filled by those who have received the highest
number of votes cast in the election for that office, and it is fundamental idea in all republican forms of
government that no one can be declared elected and no measure can be declared carried unless he or
it receives a majority or plurality of the legal votes cast in the elections. (20 Corpus Juris 2nd, S 243, p.
676.)

However, in Santos v. Comelec 35 we made a turnabout from our previous ruling in Geronimo v. Ramos and
pronounced that "votes cast for a disqualified candidate fall within the category of invalid or non-existent votes
because a disqualified candidate is no candidate at all in the eyes of the law," reverting to our earlier ruling in Ticson
v. Comelec.

In the more recent cases of Labo, Jr. v. Comelec 36 Abella v. Comelec; 37 and Benito v. Comelec, 38 this Court
reiterated and upheld the ruling in Topacio v. Paredes and Geronimo v. Ramos to the effect that the ineligibility of a
candidate receiving the next higher number of votes to be declared elected, and that a minority or defeated
candidate cannot be declared elected to the office. In these cases, we put emphasis on our pronouncement in
Geronimo v. Ramos that:

The fact that a candidate who obtained the highest number of votes is later declared to be disqualified
or not eligible for the office to which he was elected does not necessarily entitle the candidate who
obtained the second highest number of votes to be declared the winner of the elective office. The votes
cast for a dead, disqualified, or non-eligible person may be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in sincere belief that candidate was alive,
qualified, or eligible; they should not be treated as stray, void or meaningless.

Synthesizing these rulings we declared in the latest case of Labo, Jr. v. COMELEC that: 39

While Ortega may have garnered the second highest number of votes for the office of city mayor, the
fact remains that he was not the choice of the sovereign will. Petitioner Labo was overwhelmingly voted
by the electorate for the office of mayor in the belief that he was then qualified to serve the people of
Baguio City and his subsequent disqualification does not make respondent Ortega the mayor-elect.
This is the import of the recent case of Abella v. Comelec (201 SCRA 253 [1991]), wherein we held
that:

While it is true that SPC No. 88-546 was originally a petition to deny due course to the
certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed
the fact remains that the local elections of Feb. 1, 1988 in the province of Leyte proceeded
with Larrazabal considered as a bona fide candidate. The voters of the province voted for
her in the sincere belief that she was a qualified candidate for the position of governor.
Her votes was counted and she obtained the highest number of votes. The net effect is
that petitioner lost in the election. He was repudiated by the electorate. . . What matters is
 that in the event a candidate for an elected position who is voted for and who obtains the
highest number of votes is disqualified for not possessing the eligibility, requirements at
the time of the election as provided by law, the candidate who obtains the second highest
number of votes for the same position cannot assume the vacated position. (Emphasis
supplied).

Our ruling in Abella applies squarely to the case at bar and we see no compelling reason to depart
therefrom. Like Abella, petitioner Ortega lost in the election. He was repudiated by the electorate. He
was obviously not the choice of the people of Baguio City.

Thus, while respondent Ortega (G.R. No. 105111) originally filed a disqualification case with the
Comelec (docketed as SPA-92-029) seeking to deny due course to petitioner's (Labo's) candidacy, the
same did not deter the people of Baguio City from voting for petitioner Labo, who, by then, was allowed
by the respondent Comelec to be voted upon, the resolution for his disqualification having yet to attain
the degree of finality (Sec. 78, Omnibus Election Code).

And in the earlier case of Labo v. Comelec. (supra), We held:

Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is
that as he obtained only the second highest number of votes in the election, he was
obviously not the choice of the people of Baguio City.

The latest ruling of the Court in this issue is Santos v. Commission on Election, (137
SCRA 740) decided in 1985. In that case, the candidate who placed second was
proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat
and considered a non-candidate, were all disregarded as stray. In effect, the second
placer won by default. That decision was supported by eight members of the Court then
(Cuevas J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente,
Alampay, and Aquino, JJ., concurring) with three dissenting (Teehankee, acting C.J., Abad
Santos and Melencio-Herrera) and another two reserving their votes (Plana and Gutierrez,
Jr.). One was on official leave (Fernando, C.J.)

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the
earlier case of Geronimo v. Santos (136 SCRA 435), which represents the more logical and democratic
rule. That case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes (23 Phil.
238) was supported by ten members of the Court. . . .

The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be declared elected. A minority or defeated
candidate cannot be deemed elected to the office.

Indeed, this has been the rule in the United States since 1849 (State ex rel. Dunning v. Giles, 52 Am.
Dec. 149).

It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the
disqualified candidate should, in effect, be considered null and void. This would amount to
disenfranchising the electorate in whom, sovereignty resides. At the risk of being repetitious, the people
of Baguio City opted to elect petitioner Labo bona fide without any intention to missapply their
franchise, and in the honest belief that Labo was then qualified to be the person to whom they would
entrust the exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be
disqualified and cannot assume the office.

Whether or not the candidate whom the majority voted for can or cannot be installed, under no
circumstances can a minority or defeated candidate be deemed elected to the office. Surely, the 12,602
votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner Labo (as
certified by the Election Registrar of Baguio City; rollo, p. 109; G.R. No. 105111).

This, it bears repeating, expresses the more logical and democratic view. We cannot, in another shift of the
pendulum, subscribe to the contention that the runner-up in an election in which the winner has been disqualified is
actually the winner among the remaining qualified candidates because this clearly represents a minority view
supported only by a scattered number of obscure American state and English court decisions. 40 These decisions
neglect the possibility that the runner-up, though obviously qualified, could receive votes so measly and insignificant
in number that the votes they receive would be tantamount to rejection. Theoretically, the "second placer" could
receive just one vote. In such a case, it is absurd to proclaim the totally repudiated candidate as the voters' "choice."
Moreover, even in instances where the votes received by the second placer may not be considered numerically
insignificant, voters preferences are nonetheless so volatile and unpredictable that the result among qualified
candidates, should the equation change because of the disqualification of an ineligible candidate, would not be self-
evident. Absence of the apparent though ineligible winner among the choices could lead to a shifting of votes to
candidates other than the second placer. By any mathematical formulation, the runner-up in an election cannot be
construed to have obtained a majority or plurality of votes cast where an "ineligible" candidate has garnered either a
majority or plurality of the votes.

In fine, we are left with no choice but to affirm the COMELEC's conclusion declaring herein petitioner ineligible for
the elective position of Representative of Makati City's Second District on the basis of respondent commission's
finding that petitioner lacks the one year residence in the district mandated by the 1987 Constitution. A democratic
government is necessarily a government of laws. In a republican government those laws are themselves ordained
by the people. Through their representatives, they dictate the qualifications necessary for service in government
positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House
of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City
would substitute for a requirement mandated by the fundamental law itself.

WHEREFORE, premises considered, the instant petition is hereby DISMISSED. Our Order restraining respondent
COMELEC from proclaiming the candidate garnering the next highest number of votes in the congressional
elections for the Second District of Makati City is made PERMANENT.

SO ORDERED.

Regalado, Melo, Puno and Hermosisima, Jr., JJ., concur.

Feliciano, J., is on leave.

Separate Opinions

PADILLA, J., concurring:

I agree with the conclusion reached by the majority that petitioner Aquino has not shown by clear and convincing
evidence that he had established his residence in the second district of Makati City for a period of not less than one
(1) year prior to the 8 May 1995 elections. However, I do not fully subscribe to its proposition that petitioner's
residence (in Makati) should be his "domicile of choice".

Article VI, Section 6 of the Constitution provides that:

No person shall be a member of the House of Representatives unless he is a natural-born citizen of the
Philippines and on the day of the election, is at least twenty-five years of age, able to read and write,
and, except the party list representatives, a registered voter in the district in which he shall be elected,
and a resident thereof for a period of not less than one year immediately preceding the day of the
election. (emphasis supplied).

In G.R. No. 119976, Marcos vs. Comelec, I have maintained that the phrase "a resident thereof for a period of not
less than one year" means actual and physical presence in the legislative district of the congressional candidate,
and that said period of one year must be satisfied regardless of whether or not a person's residence or domicile
coincides.

To my mind, petitioner should be declared disqualified to run as representative in the 2nd district of Makati City in
the 8 May 1995 elections not because he failed to prove his residence therein as his domicile of choice, but because
he failed altogether to prove that he had actually and physically resided therein for a period of not less than one (1)
year immediately preceding the 8 May 1995 elections.

Noteworthy is the established fact before the Comelec that petitioner admits having maintained other residences in
Metro Manila apart from his leased condominium unit in Makati's 2nd district.1 This clear admission made by
petitioner against his interest weakens his argument that "where a party decides to transfer his legal residence so