EN BANC

[G.R. No. 105111. July 3, 1992.]

RAMON L. LABO, Jr. , petitioner, vs. COMMISSION ON ELECTIONS, and

ROBERTO ORTEGA , respondents

[G.R. No. 105384. July 3, 1992.]

ROBERTO C. ORTEGA , petitioner, vs. COMMISSION ON ELECTIONS

and RAMON L. LABO, Jr. , respondents.

Oscar C . Fernandez, Ricardo C . Tangalin and Romeo Q . Baliton for Ramon L.

Labo.
Roberto Fangayen, Dominador R. Santiago for Roberto Ortega.

SYLLABUS

1. POLITICAL LAW; CITIZENSHIP; OPPORTUNITY TO PRESENT ONE'S CASE;

NOT DENIED IN CASE AT BAR. — Petitioner also faults the Comelec for the supposed
proceedings in SPA No. 92-029 which denied him adequate opportunity to present a
full-dress presentation of his case. Thus: a) only one (1) day was set for hearing of the
case; i.e., May 4, 1992; b) two days later, May 6, 1992 the hearing was set; c) instead of
holding a hearing, the Comelec issued the questioned resolution on May 9, 1992. If only
to refresh the mind of petitioner Labo, as well as that of his counsel, records disclose
that that summons were issued by respondent Comelec as early as March 27, 1992
followed by a telegram on April 1, 1992, petitioner chose to ignore the same. Came
April 15, 1992, petitioner Ortega led a motion to declare petitioner Labo in default.
Over extending him (Labo) the bene t of due process respondent Comelec issued
another order dated April 24, 1992, this time directing the Acting City Election Registrar
of Baguio to personally serve the summons. The alleged delay in the resolution of SPA
No. 92-029 can only be attributed to petitioner Labo and no one else.
2. ID.; ID.; REACQUISITION THEREOF, MUST BE PROVED BY PREPONDERANCE
OF EVIDENCE; NOT SATISFIED IN CASE AT BAR. — Petitioner cites the 1980 US case of
Vance v Terrazas (444 US 252), wherein it was held that in proving expatriation act and
an intent to relinquish citizenship must be proved by preponderance of evidence.
Su ce it to state that petitioner has already pleaded Vance in his motion for
reconsideration in Labo v. Comelec. Having been previously passed upon, the Court
sees no pressing need to re-examine the same and make a lengthy dissertation
thereon. At any rate, the fact remains that he has not submitted in the instant case any
evidence, if there be any, to prove his reacquisition of Philippine citizenship either
before this Court or the Comelec. On this score alone, We nd no grave abuse of
discretion committed by respondent Comelec in cancelling his (Labo's) certi cate of
candidacy and declaring that he is NOT a Filipino citizen pursuant to our ruling in the
long case of Labo v. Comelec (supra).
3. ID.; ID.; ID.; CANNOT BE MADE THROUGH ELECTION. — We reiterate what we
have stated in Labo v. Comelec (supra), viz.,: "Under CA No. 62, as amended by PD No.
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725, Philippine citizenship may be reacquired by direct act of Congress, by
naturalization or by repatriation. It does not appear in the record nor does the petitioner
claim, that he has reacquired Philippine citizenship by any of these methods. He does
not point to any judicial decree of naturalization or to any statute directly conferring
Philippine citizenship upon him. . . ." Petitioner Labo's status has not changed in the
case at bar. To reiterate, he (Labo) was disquali ed as a candidate for being an alien.
His election does not automatically restore his Philippine citizenship, the possession of
which is an indispensable requirement for holding public o ce (Sec. 39, Local
Government Code).
4. ID.; ID.; ID.; MERE APPLICATION THEREOF, DOES NOT AUTOMATICALLY
AMOUNT TO REACQUISITION. — Petitioner takes pain in raising a new argument not
litigated before the respondent Comelec. Petitioner claims that he has reacquired his
Filipino citizenship by citing his application for reacquisition of Philippine citizenship
led before the O ce of the Solicitor General pursuant to PD 725 and Letter of
Instruction No. 270. To date, however, and despite favorable recommendation by the
Solicitor General, the Special Committee on Naturalization has not yet acted upon said
application for repatriation. Indeed, such fact is even admitted by petitioner. In the
absence of any o cial action or approval by the proper authorities, a mere application
for repatriation does not, and cannot, amount to an automatic reacquisition of the
applicant's Philippine citizenship.
5. ELECTION LAW; EFFECT OF DISQUALIFICATION CASES; RULE. — Petitioner
Labo claims, however, that Sec 72 of the Omnibus Election Code "operates as
legislatively mandated special repatriation proceeding" and that it allows his
proclamation as the winning candidate since the resolution disqualifying him was not
yet nal at the time the election was held. The Court nds petitioner Labo's strained
argument quixotic and untenable. In the rst place, Sec. 72 of the Omnibus Election
Code has already been repealed by Sec. 6 of RA No. 6646, to wit: "Sec. 6. Effect of
Disquali cation Case. — Any candidate who has been declared by nal judgment to be
disquali ed 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 nal judgment before an election to be
disquali ed and he is voted for and receives the winning number of votes in such
election, the Court or the Commission shall continue with the trial and hearing of the
action, inquiry, or protest and, upon motion of the complaint 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." A perusal of the above provision
would readily disclose that the Comelec can legally suspend the proclamation of
petitioner Labo, his reception of the winning number of votes notwithstanding,
especially so where, as in this case. Labo failed to present any evidence before the
Comelec to support his claim of reacquisition of Philippine citizenship.
6. LOCAL GOVERNMENT; QUALIFICATIONS OF LOCAL OFFICIALS; PHILIPPINE
CITIZENSHIP; NOT SATISFIED IN CASE AT BAR. — One of the quali cations of an
elective o cial is that he must be a citizen of the Philippines. Undoubtedly, petitioner
Labo, not being a Filipino citizen, lacks the fundamental quali cation for the contested
o ce. Philippine citizenship is an indispensable requirement for holding an elective
o ce. As mandated by law: "An elective local o cial must be a citizen of the
Philippines."
7. ID.; ID.; ID.; NON-SATISFACTION THEREOF; CANNOT BE CURED BY THE
ELECTORATE ALONE. — The issue here is citizenship and/or Labo's alienage — the very
essence which strikes at the very core of petitioner Labo's quali cation to assume the
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contested o ce, he being an alien and not a Filipino citizen. The fact that he was
elected by the majority of the electorate is of no moment. As we have held in Frivaldo v.
Commission on election (174 SCRA 245 [1989]): ". . . The fact that he was elected by
the people of Sorsogon does not excuse this patent violation of the salutary rule,
limiting public o ce and employment only to the citizens of this country. The
quali cation prescribed for elective o ce 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
quali ed. Obviously, this rule requires strict application, when the de ciency 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 delity to any
other state."
8. ID.; ID.; DISQUALIFICATION OF A CANDIDATE; DOES NOT ENTITLE THE
CANDIDATE WITH THE NEXT HIGHEST NUMBER OF VOTE TO THE POSITION. —
Whether the disquali cation of petitioner Labo entitles the candidate (Ortega) receiving
the next highest number of votes to be proclaimed as the winning candidate for mayor
of Baguio City. While Ortega may have garnered the second highest number of votes for
the o ce of city mayor, the fact remains that he was the choice of the sovereign will.
Petitioner Labo was overwhelmingly voted by the electorate for the o ce of mayor in
the belief that he was then quali ed to serve the people of Baguio City and his
subsequent disquali cation 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 SPA No . 88-546 was originally a petition to deny due
course to the certi cate of candidacy of Larrazabal and was led before Larrazabal
could be proclaimed, the fact remains that the local elections on Feb. 1, 1988 in the
province of Leyte proceeded with Larrazabal considered as a bone de candidate. The
voters of the province voted for her in the sincere belief that she was a quali ed
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 obtained the highest number of votes is
disquali ed 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." The rule, therefore, is: the
ineligibility of a candidate receiving majority of 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.
9. ID.; ID.; ID.; ID.; REASON THEREFOR. — It is therefore incorrect to argue that
since a candidate has been disquali ed, the votes intended for the disquali ed
candidates 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 de , without
any intention to misapply 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 disquali ed and cannot
assume the o ce. 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 o ce. Surely, the 12,602 votes cast for petitioner Ortega is not
a larger number than the 27,471 votes cast for petitioner Labo (as certi ed by the
Election Registrar of Baguio City).
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10. ID.; ID.; ID.; ID.; EXCEPTION; NOT APPLICABLE IN CASE AT BAR. — The rule
would have been different if the electorate fully aware in fact and in law of a candidate's
disquali cation so as to bring such awareness within the realm of notoriety, would
nonetheless cast their votes in favor of the ineligible candidate. In such case, the
electorate may be said to have waived the validity and e cacy of their votes by
notoriously misapplying their franchise or throwing away their votes, in which case, the
eligible candidate obtaining the next higher number of votes may be deemed elected.
But this is not the situation obtaining in the instant dispute. It has not been shown, and
none was alleged, that petitioner Labo was notoriously known as the ineligible
candidate, much less the electorate as having known of such fact. On the contrary,
petitioner Labo was even allowed by no less than the Comelec itself in its resolution
dated may 10, 1992 to be voted for the o ce of the city mayor as its resolution dated
May 9, 1992 denying due course to petitioner Labo's certi cate of candidacy has not
yet become nal and subject to the nal outcome of this case. As aforesaid, the
ineligibility of a candidate receiving majority votes does entitle the candidate receiving
the next highest number of votes to be declared elected. Ortega failed to satisfy the
necessary requisite of winning the election either by a majority or mere plurality of
votes su cient to elevate him in public o ce as mayor of Baguio City. Having lost in
the election for mayor, petitioner Ortega was obviously not the choice of the people of
Baguio City.
11. ID.; VACANCY IN THE OFFICE OF THE MAYOR; SHOULD BE FILLED BY THE
VICE-MAYOR. — As a consequence of petitioner's ineligibility, a permanent vacancy in
the contested o ce has occurred. This should now be lled by the vice-mayor, in
accordance with Sec. 44 of the Local Government Code.

DECISION

BIDIN , J : p

This is the second time 1 that this Court is called upon to rule on the citizenship
of Ramon Labo, Jr., who, believing that he is a Filipino citizen, launched his candidacy for
mayor of Baguio City in the last May 11, 1992 elections by ling his certi cate of
candidacy on March 23, 1992.
Petitioner Roberto Ortega (GR No. 105384), on the other hand, also led his
certificate of candidacy for the same office on March 25, 1992. prLL

Shortly after petitioner Labo led his certi cate of candidacy, petitioner Ortega
led on March 26, 1992, led a disquali cation proceeding against Labo before the
Commission on Elections (Comelec), docketed as SPA No. 92-029, seeking to cancel
Labo's certi cate of candidacy on the ground that Labo made a false representation
when he stated therein that he (Labo) is a "natural-born" citizen of the Philippines.
Summons in the disquali cation case was issued by the Comelec on March 27,
1992 to petitioner Labo followed by a telegram dated April 1, 1992, requiring him to le
his Answer within three (3) non-extendible days but the latter failed to respond.
On April 15, 1992, Ortega led a motion to declare Labo in default for failure to
file his Answer. cdphil

On April 24, 1992, the Comelec issued another order directing the Election
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Registrar of Baguio City to personally deliver the summons. On May 4, 1992, the
disquali cation case was set for reception of evidence. At the said hearing, Ortega
presented the decision of this Court in Labo v. Commission on Elections (176 SCRA 1
[1989]) declaring Labo not a citizen of the Philippines. Labo, on the other hand, though
represented by counsel, did not present any evidence. It was only on May 5, 1992 that
petitioner submitted his Answer claiming Filipino citizenship.
On May 9, 1992, respondent Comelec issued the assailed resolution, the
dispositive portion of which reads:
"WHEREFORE, premises considered, the Commission RESOLVED, as it hereby
resolves, to grant the petition; respondent's (Labo's) certi cate of candidacy is
hereby DENIED due course and ordered CANCELLED; the City Election Registrar of
Baguio City is hereby directed to delete the name of the respondent (Labo) from
the list of candidates for City Mayor of Baguio City." (Rollo, pp. 47-48; GR No.
105111)

On the same date, Labo led a motion to stay implementation of said resolution
until after he shall have raised the matter before this Court.
On May 10, 1992, respondent Comelec issued an Order which reads:
"Acting on the 'Urgent Ex-Parte Motion for Clari cation', led by respondent
(Labo) on May 9, 1992, the Commission resolves that the decision promulgated
on May 9, 1992 disqualifying respondent Ramon L. Labo, Jr., shall become nal
and executory only after ve (5) days from promulgation pursuant to Rule 18,
Section 13, Paragraph (b) of the Comelec Rules of Procedure.
"Accordingly, respondent (Labo) may still continue to be voted upon as candidate
for City Mayor of Baguio City on May 11, 1992 subject to the final outcome of this
case in the event the issue is elevated to the Supreme Court either on appeal or
certiorari." (Rollo, p. 53; GR No. 105111; emphasis supplied)

On May 13, 1992, respondent Comelec resolved, motu proprio, to suspend the
proclamation of Labo in the event he wins in the elections for the City Mayor of Baguio.
(Rollo, pp. 64-65; GR No. 105111)
On May 15, 1992, petitioner Labo led the instant petition for review docketed as
GR No. 105111 with prayer, among others, for the issuance of a temporary restraining
order to set aside the May 9, 1992 resolution of respondent Comelec; to render
judgment declaring him as a Filipino citizen; and to direct respondent Comelec to
proceed with his proclamation in the event he wins in the contested elections.
On the same date, or on May 15, 1992, petitioner Ortega filed before the Comelec
an urgent motion for the implementation of its May 9, 1992 resolution cancelling Labo's
certificate of candidacy. prLL

After an exchange of pleadings, respondent Comelec, in its resolution dated May

26, 1992, denied Ortega's motion in view of the pending case (GR No. 105111) earlier
filed by Labo of the same nature before this Court.
On June 1, 1992, Ortega led a petition for mandamus docketed as GR No.
105384 praying for the implementation of the Comelec's May 9, 1992 resolution.
Petitioner Ortega argues that respondent Comelec committed grave abuse of
discretion when it refused to implement its May 9, 1992 resolution notwithstanding the
fact that said resolution disqualifying Ramon Labo has already become nal and
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executory.
After the parties have submitted their respective pleadings, the Court, on June
16, 1992, Resolved to consider the case submitted for decision.
I. GR No. 105111
In essence, it is the contention of petitioner Labo that he is a Filipino citizen.
Alleging lack of trial on the merits as well as the lack of opportunity to be heard in Labo
v. Commission on Elections ( supra), it is the submission of petitioner that he can prove
his Filipino citizenship.
Petitioner cites the 1980 US case of Vance v. Terrazas (444 US 252), wherein it
was held that in proving expatriation, an expatriating act and an intent to relinquish
citizenship must be proved by a preponderance of evidence.
Petitioner contends that no nding was made either by the Commission on
Immigration or the Comelec as regards his speci c intent to renounce his Philippine
citizenship.
Petitioner also faults the Comelec for the supposed abbreviated proceedings in
SPA No. 92-029 which denied him adequate opportunity to present a full-dress
presentation of his case. Thus: a) only one (1) day was set for hearing of the case, i.e.,
May 4, 1992; b) two days later, May 6, 1992 the hearing was set; c) instead of holding a
hearing, the Comelec issued the questioned resolution on May 9, 1992.
If only to refresh the mind of petitioner Labo, as well as that of his counsel,
records disclose that summons were issued by respondent Comelec as early March
27, 1992 followed by a telegram on April 1, 1992. But petitioner chose to ignore the
same. Came April 15, 1992, petitioner Ortega led a motion to declare petitioner Labo
in default. Over-extending him (Labo) the bene t of due process, respondent Comelec
issued another order dated April 24, 1992, this time directing the Acting City Election
Registrar of Baguio to personally serve the summons. The alleged delay in the
resolution of SPA No. 92-029 can only be attributed to petitioner Labo and no one else.
This, the respondent Comelec in its resolution dated May 9, 1992 stated:
"On May 4, 1992, the Acting Regional Election Registrar called this case for
reception of evidence. Surprisingly, while as of that date respondent had not yet
filed his Answer, a lawyer appeared for him.
"The petitioner (Ortega) presented the certi cate of candidacy of respondent
Ramon L. Labo, Jr., which contained in item 9 thereof the veri ed statement that
respondent is a 'natural-born' Filipino citizen. To prove that respondent is not a
Filipino citizen, petitioner submitted the decision of the Supreme Court in 'Ramon
L. Labo, Jr., petitioner, v. Comelec, et al.,' GR No. 86564, August 1, 1989, the
dispositive portion of which states:
"WHEREFORE, petitioner Ramon L. (sic) Labo, Jr. is hereby declared NOT a
citizen of the Philippines and therefore DISQUALIFIED from continuing to
serve as Mayor of Baguio City. He is ordered to VACATE his o ce and
surrender the same to the Vice-Mayor of Baguio City once this decision
becomes final and executory."cdrep

"No evidence was adduced for the respondent as in fact he had no Answer as of
the hearing.
"On May 5, 1992, respondent (Labo) led his veri ed Answer, insisting that he is a
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Filipino citizen and continue to maintain and preserve his Filipino citizenship; that
he does not hold an Australian citizenship; that the doctrine of res judicata does
not apply in citizenship; and that 'existing facts support his continuous
maintenance and holding of Philippine citizenship' and 'supervening events now
preclude the application of the ruling in the Labo v. Comelec case and the
respondent (Labo) now holds and enjoys Philippine citizenship.'
"No evidence has been offered by respondent to show what these existing facts
and supervening events are to preclude the application of the Labo decision."
(emphasis supplied)
"The Commission is bound by the nal declaration that respondent is not a
Filipino citizen. Consequently, respondent's veri ed statement in his certi cate of
candidacy that he is a "natural-born" Filipino citizen is a false material
representation." (Rollo, pp. 45-48; GR No. 105111)

Up to this moment, petitioner Labo still failed to submit a scintilla of proof to

shore his claim before this Court that he has indeed reacquired his Philippine
citizenship.
Instead, petitioner relies in the US case of Vance v. Terrazas ( supra). Su ce it to
state that petitioner has already pleaded Vance in his motion for reconsideration in
Labo v. Comelec ( supra; Rollo. p. 375). Having been previously passed upon, the Court
sees no pressing need to re-examine the same and make a lengthy dissertation
thereon.
At any rate, the fact remains that he has not submitted in the instant case any
evidence, if there be any, to prove his reacquisition of Philippine citizenship either
before this Court or the Comelec. On this score alone, We nd no grave abuse of
discretion committed by respondent Comelec in cancelling his (Labo's) certi cate of
candidacy and declaring that he is NOT a Filipino citizen pursuant to our ruling in the
1989 case of Labo v. Comelec (supra). LLphil

Petitioner Labo claims however, that Sec. 72 2 of the Omnibus Election Code
"operates as a legislatively mandated special repatriation proceeding" and that it allows
his proclamation as the winning candidate since the resolution disqualifying him was
not yet final at the time the election was held.
The Court nds petitioner Labo's strained argument quixotic and untenable. In
the rst place, Sec. 72 of the Omnibus Election Code has already been repealed by Sec.
6 of RA No. 6646, to wit:
"Sec. 6. Effect of Disquali cation Case . — Any candidate who has been declared
by nal judgment to be disquali ed shall not be voted for, and the votes case for
him shall not be counted. If for any reason a candidate is not declared by nal
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 the 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." (emphasis supplied)
A perusal of the above provision would readily disclose that the Comelec can
legally suspend the proclamation of petitioner Labo, his reception of the winning
number of votes notwithstanding, especially so where, as in this case, Labo failed to
present any evidence before the Comelec to support his claim of reacquisition of
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Philippine citizenship.
Furthermore, we need only reiterate what we have stated in Labo v. Comelec
(supra), viz.,:
"Under CA No. 63, as amended by PD No. 725, Philippine citizenship may be
reacquired by direct act of Congress, by naturalization, or by repatriation. It does
not appear in the record, nor does the petitioner claim, that he has reacquired
Philippine citizenship by any of these methods. He does not point to any judicial
decree of naturalization or to any statute directly conferring Philippine citizenship
upon him. . . ." LLpr

Petitioner Labo's status has not changed in the case at bar. To reiterate, he
(Labo) was disquali ed as a candidate for being an alien. His election does not
automatically restore his Philippine citizenship, the possession of which is an
indispensable requirement for holding public office (Sec. 39, Local Government Code).
Still, petitioner takes pains in raising a new argument not litigated before the
respondent Comelec. Petitioner claims that he has reacquired his Filipino citizenship by
citing his application for reacquisition of Philippine citizenship led before the O ce of
the Solicitor General pursuant to PD 725 and Letter of Instruction No. 270 3 (Rollo, pp.
116-119; GR No. 105111).
To date, however, and despite favorable recommendation by the Solicitor
General, the Special Committee on Naturalization had not yet acted upon said
application for repatriation. Indeed, such fact is even admitted by petitioner. In the
absence of any o cial action or approval by the proper authorities, a mere application
for repatriation does not, and cannot, amount to an automatic reacquisition of the
applicant's Philippine citizenship.
II. GR No. 105384
Petitioner Ortega submits that since this Court did not issue a temporary
restraining order as regards the May 9, 1992 resolution of respondent Comelec
cancelling Labo's certi cate of candidacy, said resolution has already become nal and
executory. Ortega further posits the view that as a result of such nality, the candidate
receiving the next highest number of votes should be declared Mayor of Baguio City.
We agree with Ortega's first proposition.
At the time petitioner Labo led his petition (GR No. 105111) on May 15, 1992,
the May 9, 1992 resolution of respondent Comelec cancelling his (Labo's) certi cate of
candidacy had already become nal and executory a day earlier, or on May 14, 1992,
said resolution having been received by petitioner Labo on the same day it was
promulgated, i.e., May 9, 1992 and in the interim no restraining order was issued by this
Court.
Thus, Sec. 78 of the Omnibus Election Code provides:
"Sec. 78. Petition to deny due course or to cancel a certificate of candidacy —
xxx xxx xxx
"(e) The decision, order, or ruling of the Commission shall, after ve (5)
days from receipt of a copy thereof by the parties, be nal and executory
unless stayed by the Supreme Court." (emphasis supplied)
A similar provision is also found in Sec. 3, Rule 39 of the Comelec Rules of
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Procedure, to wit:
"Sec. 3. Decisions final after five days. — Decisions in pre-proclamation cases and
petitions to deny due course to or cancel certi cates of candidacy , to declare a
candidate as nuisance candidate or to disqualify a candidate, and to postpone or
suspend elections shall become nal and executory after the lapse of ve (5)
days from their promulgation, unless restrained by the Supreme Court." (emphasis
supplied)

The resolution cancelling Labo's certi cate of candidacy on the ground that he is
not a Filipino citizen having acquired nality on May 14, 1992 constrains Us to rule
against his proclamation as Mayor of Baguio city.
To begin with, one of the quali cation of an elective o cial is that he must be a
citizen of the Philippines. Thus, the Local Government Code provides:
"Sec. 39. Qualifications. — (a) An elective local o cial 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
panlungsod, 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)

Undoubtedly, petitioner Labo, not being a Filipino citizen, lacks the fundamental
quali cation for the contested o ce. Philippine citizenship is an indispensable
requirement for holding an elective o ce. As mandated by law: "An elective local
official must be a citizen of the Philippines." llcd

The issue here is citizenship and/or Labo's alienage — the very essence which
strikes at the very core of petitioner Labo's quali cation to assume the contested
o ce, he being an alien and not a Filipino citizen. The fact that he was elected by the
majority of the electorate is of no moment. As we held in Frivaldo v. Commission on
Elections (174 SCRA 245 [1989]):
". . . The fact that he was elected by the people of Sorsogon does not excuse this
patent violation of the salutary rule limiting public o ce and employment only to
the citizens of this country. The quali cations prescribed for elective o ce
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 quali ed. Obviously, this rule
requires strict application when the de ciency 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 delity to any other
state."

This brings us to the second issue raised by petitioner Ortega, i.e., whether the
disquali cation of petitioner Labo entitles the candidate (Ortega) receiving the next
highest number of votes to be proclaimed as the winning candidate for mayor of
Baguio City.
We hold in the negative. The disquali cation of petitioner Labo does not
necessarily entitle petitioner Ortega as the candidate with the next highest number of
votes to proclamation as the mayor of Baguio City.
We make mention of petitioner Ortega because in his petition, he alleges that:
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". . . the May 11, 1992 elections were held with both herein petitioner (Roberto
Ortega) and respondent LABO having been voted for the position of Mayor and
uno cial results indicate that if the name of respondent LABO were deleted from
the list of candidates, herein petitioner (Ortega) will be entitled to be proclaimed
as Mayor-elect of Baguio City." (Rollo, p. 7, GR No. 105384; emphasis supplied)
and further prays this Court "to proclaim as the Mayor-elect of Baguio City the
candidate who may have garnered the most number of votes after the exclusion of the
name of respondent candidate LABO." (Rollo, p. 15, Ibid.) Implicit, therefore, is
petitioner Ortega's desire to be proclaimed Mayor-elect of Baguio City.
As discussed hereunder, however, the Court nds Ortega's prayer devoid of
merit.
While Ortega may have garnered the second highest number of votes for the
o ce 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 o ce of mayor in
the belief that he was then quali ed to serve the people of Baguio City and his
subsequent disquali cation 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 certi cate of candidacy of Larrazabal and was led before Larrazabal
could be proclaimed, the fact remains that the local elections of February 1, 1988
in the province of Leyte proceeded with Larrazabal considered as a bona de
candidate. The voters of the province voted for her in the sincere belief that she
was a quali ed 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 disquali ed 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 Abellaapplies 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. Cdpr

Thus, while respondent Ortega (GR No. 105111) originally led a disquali cation
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 disquali cation 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 led
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 Elections,
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(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 disquali ed
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 o cial
leave (Fernando, C.J.,)

"Re-examining that decision, the court nds, 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 rst announced in 1912 in Topacio vs. Paredes (23 Phil. 238) was
supported by ten members of the Court (Gutierrez, Jr., J. , ponente, with
Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente,
Cuevas and Alampay, JJ., concurring), without any dissent, . . . There the Court
held:
'. . . it 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 did not choose him.
'Sound policy dictates that public elective o ces are lled by those who
have received the highest number of votes cast in the election for that
o ce, and it is a 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 election. (20 Corpus Juris 2nd, S. 243, p. 676)

'The fact that a candidate who obtained the highest number of votes is
later declared to be disquali ed or not eligible for the o ce 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
o ce. The votes cast for a dead, disquali ed, or non-eligible person may
be valid to vote the winner into o ce 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 the sincere belief
that the candidate was alive, quali ed, or eligible, they should not be
treated as stray, void or meaningless.'"

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 disquali ed, the
votes intended for the disquali ed 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
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petitioner Labo bona de , without any intention to misapply their franchise, and in the
honest belief that Labo was then quali ed 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 o ce. Surely, the 12,602 votes cast for petitioner Ortega is not a larger
number than the 27,471 votes cast for petitioner Labo (as certi ed by the Election
Registrar of Baguio City; rollo, p. 109; GR No. 105111).
The rule would have been different if the electorate fully aware in fact and in law
of a candidate's disquali cation so as to bring such awareness within the realm of
notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such
case, the electorate may be said to have waived the validity and e cacy of their votes
by notoriously misapplying their franchise or throwing away their votes, in which case,
the eligible candidate obtaining the next higher number of votes may be deemed
elected.
But this is not the situation obtaining in the instant dispute. It has not been
shown, and none was alleged, that petitioner Labo was notoriously known as an
ineligible candidate, much less the electorate as having known of such fact. On the
contrary, petitioner Labo was even allowed by no less than the Comelec itself in its
resolution dated May 10, 1992 to be voted for the o ce of the city mayor as its
resolution dated May 9, 1992 denying due course to petitioner Labo's certi cate of
candidacy had not yet become final and subject to the final outcome of this case. LexLib

As aforesaid, the ineligibility of a candidate receiving majority votes does not

entitle the candidate receiving the next highest number of votes to be declared elected.
Ortega failed to satisfy the necessary requisite of winning the election either by a
majority or mere plurality of votes su cient to elevate him in public o ce as mayor of
Baguio City. Having lost in the election for mayor, petitioner Ortega was obviously not
the choice of the people of Baguio City.
As a consequence of petitioner's ineligibility, a permanent vacancy in the
contested o ce has occurred. This should now be lled by the vice-mayor, in
accordance with Sec. 44 of the Local Government Code, to wit:
"Chapter 2. Vacancies and Succession.
"Sec. 44. Permanent Vacancies in the O ces of the Governor, Vice-Governor,
Mayor and Vice-Mayor. — (a) If a permanent vacancy occurs in the o ce of the
governor or mayor, the vice-governor or the vice-mayor concerned shall become
the governor or mayor. . . . (emphasis supplied)
WHEREFORE, the instant petitions are DISMISSED for lack of merit. Petitioners
both being ineligible for the O ce of the City Mayor of Baguio City and in view of the
vacancy created in said o ce, the vice-mayor elect of said city in the May 11, 1992
elections is hereby declared Mayor of Baguio City after proclamation by the City Board
of Canvassers. No costs.
SO ORDERED.
Narvasa, C .J ., Cruz, Paras, Feliciano, Padilla, Griño-Aquino, Medialdea, Regalado,
Davide, Jr., Romero, Nocon and Bellosillo, JJ ., concur.

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Separate Opinions
GUTIERREZ , JR. , J ., concurring and dissenting :

There is no need for me to discuss Mayor Ramon L. Labo, Jr.'s reacquisition of

Philippine citizenship. In the rst case brought to us, Labo, Jr. v. COMELEC, 176 SCRA 1
[1989], I dissented from the resolution denying his motion for reconsideration.
It is my view that since Mayor Labo never validly acquired Australian citizenship,
he never lost his Philippine citizenship. His oath of allegiance to Australia was null and
void because he was not quali ed to be an Australian citizen. This is clear from the
certi cation of Australia's Embassy o cials. To me, a null and void act cannot have the
positive and serious effect of stripping a Filipino of his natural-born citizenship. cdasia

Labo's taking an oath as citizen of a foreign country was based on his marriage
to a citizen of that country. It turns out, however, that Labo's marriage was bigamous
and void because his Australian wife had an existing valid marriage when she tied the
knot with him. Not being married to her, Labo could not become an Australian. Not
being quali ed to become an Australian citizen, his oath of allegiance to that country
was a meaningless act. It should not deprive him of his Philippine citizenship. I cannot
believe that Mayor Labo gave up his citizenship in order to acquire a stateless status.
I, however, concur in the Court's reiteration of the rule that it is the vice-mayor
elect who succeeds the disquali ed mayor-elect and not the losing candidate for
mayor.
I have to be consistent with my ponencia in Geronimo v. Santos, 136 SCRA 435
[1985]. The Geronimo ruling is even more applicable to this case because on May 11,
1992, the day of the elections, Labo was not yet disquali ed. He was allowed to vote
and to be voted for. The COMELEC decision disqualifying him became nal and
executory only on May 14, 1992. In the meantime, the citizens of Baguio had already
stated who was their choice for Mayor. He had already been elected.
I would like to repeat some observations made in my dissent in the rst Labo
case:
xxx xxx xxx
"I agree with the Court that the citizen of the Philippines must take pride in his
status as such and cherish this priceless gift that, out of more than a hundred
other nationalities, God has seen t to grant it to him. We love the Philippines; it is
the land of our birth; it is the home of our people. The emotions kindled by loved
of country cannot be described.

"But precisely because of the inestimable value of Philippine citizenship, we

should never declare a Filipino as having lost his citizenship except upon the
most compelling consideration.

"Let us be realistic. There must be over two million Filipinos who are scattered all
over the world desperately trying to earn a living. They endure loneliness and
separation from loved ones, bear with racial discrimination, suffer rape and other
forms of abuse, brave the perils of foreign cultures, and put up with the failings of
their own Government in looking after their welfare. Being in foreign countries,
most of them yearn for their homeland and realize what they have lost. Only now
do they appreciate what they used to take for granted.
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"If some of them may have been forced by circumstances to seemingly renounce
their citizenship, let us not summarily condemn them."
xxx xxx xxx

Citizenship is a political and civil right no less important than freedom of speech,
liberty of abode, right against unreasonable searches and seizures, and other basic
guarantees of the Bill of Rights.
In deciding cases involving citizenship, I believe that the presumptions should be
in favor of its retention and against its loss. We apply this principle to cases involving
civil liberties. We should also apply it to a sincere invocation of Philippine citizenship.
We should not lightly strip a person of his natural born status but should accord to him
every possible interpretation consistent with the exercise of a right that was vested in
him from birth. cdasia

In view of the foregoing, I vote to GRANT the petition and to order the
proclamation and assumption of office of Baguio Mayor Ramon Labo, Jr.

Footnotes
1. The first time was in Ramon L. Labo, Jr., v. Comelec (176 SCRA 1 [1989]).

2. "Sec. 72. Effects of disquali cation cases and priority . — The Commission and the courts
shall give priority to cases of disquali cation by reason of violation of this Act to the end
that a nal decision shall be rendered not later than seven days before the election in
which the disqualification is sought.
"Any candidate who has been declared by nal judgment to be disquali ed shall
not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for
any reason, a candidate is not declared by nal judgment before an election to be
disquali ed and he is voted for and receives the winning number of votes in such
election, his violation of the provisions of the preceding sections shall not prevent his
proclamation and assumption to office."

3. PD 725 authorizes the Special Committee on Naturalization (created under LOI 270) to
accept and process petitions for repatriation, as follows: "(1) Filipino women who lost
their Philippine citizenship by marriage to aliens; and (2) natural born Filipinos who have
lost their Philippine citizenship may reacquire Philippine citizenship through repatriation
by applying with the Special Committee on Naturalization created by Letter of Instruction
No. 270, and, if their applications are approved, taking the necessary oath of allegiance
to the Republic of the Philippines, after which they shall be deemed to have reacquired
Philippine citizenship. The Commission on Immigration shall thereupon cancel
certificate of registration."

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