255 Phil.

934

EN BANC

[ G.R. No. 87193, June 23, 1989 ]

JUAN GALLANOSA FRIVALDO, PETITIONER, VS. COMMISSION ON
ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON
CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR
NEE ESTUYE, RESPONDENTS.

DECISION

CRUZ, J.:

Petitioner Juan G. Frivaldo was proclaimed governor-elect of the

province of Sorsogon on January 22, 1988, and assumed office in due
time. On October 27, 1988, the League of
Municipalities, Sorsogon Chapter (hereafter, League), represented by its
President, Salvador Estuye, who was also suing in his personal capacity,
filed with the Commission on Elections a petition for the annulment
of Frivaldo's election and proclamation on the ground that he was not a
Filipino citizen, having been naturalized in the United States on January 20,
1983. In his answer dated May 22, 1988, Frivaldo admitted that he was
naturalized in the United States as alleged but pleaded the special and
affirmative defenses that he had sought American citizenship
only to protect himself against President Marcos. His naturalization, he
said, was "merely forced upon himself as a means of survival against the
unrelenting persecution by the Martial Law Dictator's agents abroad." He
added that he had returned to the Philippines after the EDSA revolution to
help in the restoration of democracy. He also argued that the challenge to
his title should be dismissed, being in reality a quo warranto petition that
should have been filed within ten days from his proclamation, in
accordance with Section 253 of the Omnibus Election Code. The League,
moreover, was not a proper party because it was not a voter and so could
not sue under the said section.
Frivaldo moved for a preliminary hearing on his affirmative defenses but
the respondent Commission on Elections decided instead by its Order
of January 20, 1988, to set the case for hearing on the merits. His
motion for reconsideration was denied in another Order dated February 21,
1988. He then came to this Court in a petition for certiorari and prohibition
to ask that the said orders be set aside on the ground that they had been
rendered with grave abuse of discretion. Pending resolution of the petition,
we issued a temporary order against the hearing on the merits scheduled
by the COMELEC and at the same time required comments from the
respondents.
In their Comment, the private respondents reiterated their assertion
that Frivaldo was a naturalized American citizen and had not reacquired
Philippine citizenship on the day of the election on January 18, 1988. He
was therefore not qualified to run for and be elected governor. They also
argued that their petition in the Commission on Elections was not really
for quo warranto under Section 253 of the Omnibus Election Code. The
ultimate purpose was to preventFrivaldo from continuing as governor, his
candidacy and election being null and void ab initio because of
his alienage. Even if their petition were to be considered as one
for quo warranto, it could not have been filed within ten days
from Frivaldo's proclamation because it was only in September 1988 that
they received proof of his naturalization. And assuming that the League
itself was not a proper party, Estuye himself, who was suing not only for the
League but also in his personal capacity, could nevertheless institute the
suit by himself alone.
Speaking for the public respondent, the Solicitor General supported the
contention that Frivaldo was not a citizen of the Philippines and had not
repatriated himself after his naturalization as an American citizen. As an
alien, he was disqualified from public office in the Philippines. His election
did not cure this defect because the electorate of Sorsogon could not
amend the Constitution, the Local Government Code, and the
Omnibus Election Code. He also joined in the private respondent's
argument that Section 253 of the Omnibus Election Code was not
applicable because what the League and Estuye were seeking was not
only the annulment of the proclamation and election of Frivaldo. He agreed
that they were also asking for the termination of Frivaldo's incumbency as
governor of Sorsogon on the ground that he was not a Filipino.
In his Reply, Frivaldo insisted that he was a citizen
of the Philippines because his naturalization as an American citizen was
not "impressed withvoluntariness." In support he cited
the Nottebohm Case, [1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a
German national's naturalization in Liechtenstein was not recognized
because it had been obtained for reasons of convenience only. He said he
could not have repatriated himself before the 1988 elections because the
Special Committee on Naturalization created for the purpose by LOI No.
270 had not yet been organized then. His oath in his certificate of
candidacy that he was a natural-born citizen should be a sufficient
act of repatriation. Additionally, his active participation in the 1987
congressional elections had divested him of American citizenship under the
laws of the United States, thus restoring his Philippine citizenship. He
ended by reiterating his prayer for the rejection of the move to disqualify
him for being time-barred under Section 253 of the Omnibus Election Code.
Considering the importance and urgency of the question herein raised,
the Court has decided to resolve it directly instead of allowing the normal
circuitous route that will after all eventually end with this Court, albeit only
after a long delay. We cannot permit this delay. Such delay will be inimical
to the public interest and the vital principles of public office to be here
applied.
It is true that the Commission on Elections has the primary jurisdiction
over this question as the sole judge of all contests relating to the election,
returns and qualifications of the members of the Congress and elective
provincial and city officials. However, the decision on Frivaldo's citizenship
has already been made by the COMELEC through its counsel, the Solicitor
General, who categorically claims that Frivaldo is a foreigner. We assume
this stance was taken by him after consultation with the public
respondent and with its approval. It therefore represents the decision of
the COMELEC itself that we may now review. Exercising our discretion to
interpret the Rules of Court and the Constitution, we shall consider the
present petition as having been filed in accordance with Article IX-A,
Section 7, of the Constitution, to challenge the aforementioned Orders of
the COMELEC.
The basic question we must resolve is whether or not Juan
G. Frivaldo was a citizen of the Philippines at the time of his election
on January 18, 1988, as provincial governor of Sorsogon. All the other
issues raised in this petition are merely secondary to this basic question.
The reason for this inquiry is the provision in Article XI, Section 9, of the
Constitution that all public officials and employees owe the State and the
Constitution "allegiance at all times" and the specific requirement in Section
42 of the Local Government Code that a candidate for local elective office
must beinter alia a citizen of the Philippines and a qualified voter of the
constituency where he is running. Section 117 of the Omnibus Election
Code provides that a qualified voter must be, among other qualifications, a
citizen of the Philippines, this being an indispensable requirement for
suffrage under Article V, Section 1, of the Constitution.
In the certificate of candidacy he filed on November 19,
1987, Frivaldo described himself as a "natural-born" citizen of
the Philippines, omitting mention of any subsequent loss of such
status. The evidence shows, however, that he was naturalized as a citizen
of the United States in 1983 per the following certification from the United
States District Court, Northern District of California, as duly authenticated
by Vice Consul Amado P. Cortez of the Philippine Consulate General
in San Francisco, California, U.S.A.
OFFICE OF THE CLERK
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
September 23, 1988
TO WHOM IT MAY CONCERN:
Our records show that JUAN GALLANOSA FRIVALDO, born on October 20,
1915, was naturalized in this Court on January 20, 1983, and issued
Certificate of Naturalization No. 11690178.
Petition No. 280225.
Alien Registration No. A23 079 270.
Very truly yours,
WILLIAM L. WHITTAKER, Clerk
by: (Sgd.)
ARACELI V. BARENG
Deputy Clerk
This evidence is not denied by the petitioner. In fact, he expressly
admitted it in his answer. Nevertheless, as earlier noted, he claims it was
"forced" on him as a measure of protection from the persecution of the
Marcos government through his agents in the United States.
The Court sees no reason not to believe that the petitioner was one the
enemies of the Marcos dictatorship. Even so, it cannot agree that
as aconsequence thereof he was coerced into embracing American
citizenship. His feeble suggestion that his naturalization was not the result
of his own free and voluntary choice is totally unacceptable and must be
rejected outright.
There were many other Filipinos in the United States similarly situated
as Frivaldo, and some of them subject to greater risk than he, who did not
find it necessary - nor do they claim to have been coerced - to abandon
their cherished status as Filipinos. They did not take the oath of allegiance
to the United States, unlike the petitioner who solemnly declared "on oath,
that I absolutely and entirely renounce and abjure all allegiance and fidelity
to any foreign prince, potentate, state or sovereignty of whom or
which I have heretofore been a subject or citizen," meaning in his case the
Republic of the Philippines. The martyred Ninoy Aquino heads the
impressive list of those Filipinos in exile who, unlike the petitioner held fast
to their Philippine citizenship despite the perils of their resistance to the
Marcos regime.
The Nottebohm case cited by the petitioner invoked the international
law principle of effective nationality which is clearly not applicable to the
case at bar. This principle is expressed in Article 5 of the Hague
Convention of 1930 on the Conflict of Nationality Laws as follows:
Art. 5. Within a third State a person having more than one nationality shall
be treated as if he had only one. Without prejudice to the application of its
law in matters of personal status an of any convention in force, a third State
shall, of the nationalities which any such personpossesses, recognize
exclusively in its territory either the nationality of the country in which he is
habitually and principally resident or the nationality of the country with
which in the circumstances he appears to be in fact most closely connected.
Nottebohm was a German by birth but a resident of Guatemala for 34
years when he applied for and acquired naturalization in Liechtenstein one
month before the outbreak of World War II. Many members of his family
and his business interests were in Germany. In 1943, Guatemala, which
had declared war on Germany, arrested Nottebohm and confiscated all his
properties on the ground that he was a German national. Liechtenstein
thereupon filed suit on his behalf, as its citizen, against Guatemala. The
International Court of Justice held Nottebohm to be still a national of
Germany, with which he was more closely connected than with
Liechtenstein.
 That case is not relevant to the petition before us because it dealt
with a conflict between the nationality laws of two states as decided
by a third state. No third state is involved in the case at bar; in fact, even
the United States is not actively claiming Frivaldo as its national. The sole
question presented to us is whether or not Frivaldo is a citizen of the
Philippines under our own laws, regardless of other nationality laws. We
can decide this question alone us sovereign of our own territory,
conformably to Section 1 of the said Convention providing that "it is for
each State to determine under its law who are its nationals."
It is also worth noting that Nottebohm was invoking his naturalization in
Liechtenstein whereas in the present case Frivaldo is rejecting his
naturalization in the United States.
If he really wanted to disavow his American citizenship and reacquire
Philippine citizenship, the petitioner should have done so in accordance
with the laws of our country. Under CA No. 63 as amended by CA No. 473
and PD No. 725, Philippine citizenship may be reacquired by direct act of
Congress, by naturalization, or by repatriation.
While Frivaldo does not invoke either of the first two methods, he
nevertheless claims he has reacquired Philippine citizenship by virtue of a
valid repatriation. He claims that by actively participating in the elections in
this country, he automatically forfeited American citizenship under the laws
of the United States. Such laws do not concern us here. The alleged
forfeiture is between him and the United States as his adopted country. It
should be obvious that even if he did lose his naturalized American
citizenship, such forfeiture did not and could not have the effect of
automatically restoring his citizenship in the Philippines that he had earlier
renounced. At best, what might have happened as a result of the loss
of his naturalized citizenship was that he became a stateless individual.
Frivaldo’s contention that he could not have repatriated himself under
LOI 270 because the Special Committee provided for therein had not
yet been constituted seems to suggest that the lack of that body rendered
his repatriation unnecessary. That is far-fetched if not specious. Such a
conclusion would open the floodgates, as it were. It would allow all
Filipinos who have renounced this country to claim back their abandoned
citizenship without formally rejecting their adopted state and reaffirming
their allegiance to the Philippines.
It does not appear that Frivaldo has taken these categorical acts. He
contends that by simply filing his certificate of candidacy he had, without
more, already effectively recovered Philippine citizenship. But that is hardly
the formal declaration the law envisions - surely, Philippine citizenship
previously disowned is not that cheaply recovered. If the Special
Committee had not yet been convened, what that meant simply was that
the petitioner had to wait until this was done, or seek naturalization by
legislative or judicial proceedings.
The argument that the petition filed with the Commission on Elections
should be dismissed for tardiness is not well-taken. The herein private
respondents are seeking to prevent Frivaldo from continuing to discharge
his office of governor because he is disqualified from doing so as a
foreigner. Qualifications for public office are continuing requirements and
must be possessed not only at the time of appointment or election or
assumption of office but during the officer's entire tenure. Once any of the
required qualifications is lost, his title may be seasonably challenged. If,
say, a female legislator were to marry a foreigner during her term and by
her act or omission acquires his nationality, would she have a right to
remain in office simply because the challenge to her title may no longer be
made within ten days from her proclamation? It has been established, and
not even denied, that the evidence of Frivaldo's naturalization was
discovered only eight months after his proclamation and his title was
challenged shortly thereafter.
This Court will not permit the anomaly of a person sitting as provincial
governor in this country while owing exclusive allegiance to another
country. The fact that he was elected by the people of Sorsogon does not
excuse this patent violation of the salutary rule limiting public office and
employment only to the citizens of this country. The qualifications
prescribed for elective office cannot be erased by the electorate alone. The
will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed, as in this case, that the
candidate was qualified. Obviously, this rule requires strict application
when the deficiency is lack of citizenship. If a person seeks to serve in the
Republic of the Philippines, he must owe his total loyalty to this country
only, abjuring and renouncing all fealty and fidelity to any other state.
It is true as the petitioner points out that the status of the natural-born
citizen is favored by the Constitution and our laws, which is all the more
reason why it should be treasure like a pearl of great price. But once it is
surrendered and renounced, the gift is gone and cannot be lightly
restored. This country of ours, for all its difficulties and limitations, is like a
jealous and possessive mother. Once rejected, it is not quick to welcome
back with eager arms its prodigal if repentant children. The returning
renegade must show, by an express and unequivocal act, the renewal of
his loyalty and love.
WHEREFORE, the petition is DISMISSED and petitioner JUAN G.
FRIVALDO is hereby declared not a citizen of the Philippines and therefore
DISQUALIFIED from serving as Governor of the Province
of Sorsogon. Accordingly, he is ordered to vacate his office and surrender
the same to the duly elected Vice-Governor of the said province once this
decision becomes final and executory. The temporary restraining order
dated March 9, 1989, is LIFTED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco,
Padilla, Bidin, Griño-Aquino, Medialdea, and Regalado, JJ., concur.
Gutierrez, Jr., J., concurred with a brief concurring statement.
Sarmiento, J., no part, Petitioner is my client.
Cortes, J., in the result.

CONCURRING OPINION

GUTIERREZ, JR., J.:

I concur in the pragmatic approach taken by the Court. I agree that

when the higher interests of the State are involved, the public good should
supersede any procedural infirmities which may affect a petition filed with
the Commission on Elections. I fail to see how the Court could allow a
person who by his own admissions is indubitably an alien to continue
holding the office of Governor of any province.
It is an established rule of long standing that the period fixed by law for
the filing of a protest -- whether quo warranto or election contest -- is
mandatoryand jurisdictional.[1]
 As a rule, the quo warranto petition seeking to annul the petitioner's
election and proclamation should have been filed within ten days after the
proclamation of election results.[2] The purpose of the law in not allowing the
filing of protests beyond the period fixed by law is to have a certain and
definite time within which petitions against the results of an election should
be filed and to provide summary proceedings for the settlement of such
disputes.[3] The Rules of Court allow the Republic of the Philippines to file
quo warranto proceedings against any public officer who performs an act
which works a forfeiture of his office.[4] However, where the Solicitor
General or the President feel that there are no good reasons to commence
quo warranto proceedings,[5] the Court should allow a person like
respondent Estuye or his league to bring the action.
I must emphasize, however, that my concurrence is limited to a clear
case of an alien holding an elective public office. And perhaps in a clear
case of disloyalty to the Republic of the Philippines.[6] Where the
disqualification is based on age, residence, or any of the many grounds for
ineligibility,[7] I believe that the ten-day period should be applied strictly.
The pragmatic approach is also shown by the fact that the Court found
it inexpedient to wait for the final decision of COMELEC. This step is most
unusual but considering the total lack of any serious grounds for the
petitioner's claim of having regained his Philippine citizenship, I am
constrained to concur in the procedure pro hac vice.

[1]
Ferrer v. Gutierrez and Lucot, 43 Phil. 795 [1922]; and Nisperos v. Araneta Diaz and Flores,
47 Phil. 806 [1925].
[2]
Section 253, Omnibus Election Code, B.P. Blg. 881.
[3]
Municipal Council of Masantol v. Guevarra, 44 Phil. 580 [1923].
[4]
Rule 66, Section 1, Rules of Court.
[5]
Rule 66, Section 2.
[6]
Section 253, Omnibus Election Code; See Casin v. Caluag, 80 Phil. 758 [1948].
[7]
Among them are corrupting voters or election officials with money or other material
considerations (Section 68, B.P. 881); committing acts of terrorism to enhance one's
candidacy (id); overspending for election expenses (id); soliciting, receiving, or making
prohibited contributions (Sections 89, 95, 96, 97, and 104 of B.P. 881); the use of a void
certificate of candidacy (Section 78, id); engaging in partisan political activity outside of
the campaign period (Section 80, id); destroying or defacing lawful election propaganda
(Section 83, id); using prohibited forms of certificate election propaganda (Section
85, id); unlawful use of mass media (Section 86, id); coercion by a public officer of
subordinates to campaign for or against a candidate (Section 261-d, id); using threats
and intimidation to force a person to campaign or to prevent him from campaigning for or
against a candidate (Section 261-e, id); electioneering within theprohibited space around
or inside a polling place (Section 261-k, id); use of public funds for certain election
purposes (Section 261-u, id); and use of a void certificate of candidacy (Section
78). Under Section 2175 of the Revised Administrative Code, certain persons like
ecclesiastics and soldiers in the active service are disqualified from running for elective
municipal office.

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