EN
BANC
G.R. No. 191938 (Abraham Kahlil B. Mitra v. Commission on Elections, Antonio V.
Gonzales and
Promulgated:
October 19, 2010
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D I S S E N T I N G O P I N
I O N
(to the Resolution Denying the Motions for
Reconsideration)
VELASCO, JR., J.:
In my dissent to the July 2, 2010 Decision in this case, I
excepted to the majority’s factual finding that petitioner Mitra has, during
the period material, transferred his residence from Puerto Princesa City,
Palawan to Aborlan, Palawan. In its
strained disquisition, the majority agreed that the COMELEC grossly misread the
import of the evidence submitted by the parties by using wrong considerations
to arrive at the faulty conclusion that Mitra has not transferred his residence
to Aborlan, Palawan from
Then as now, I maintain my original
position and offer another dissent to the Resolution denying respondents’
separate motions for reconsideration.[1]
The Office of the Solicitor General,
for the COMELEC, urges reconsideration on the sole argument that the Court
erred when it reviewed the probative value of the evidence presented by the
parties and substituted its own factual findings with that of the poll body.
On the other hand, private
respondents raised several assignments of error, which may be summarized into
six: first, the petition failed
to point out how the COMELEC committed grave abuse of discretion; the Court took the cudgels for Mitra and
compensated for a burden Mitra failed to discharge; second, the Court
erred in concluding that the COMELEC used subjective and non-legal standards in
assessing the photographs Mitra submitted; third, the Court erred in
finding that the uncorroborated evidence
submitted by Mitra is sufficient to overcome and overturn the findings of fact
of the COMELEC; fourth, the Court erred when it focused on the COMELEC’s
opinion regarding the photographs submitted by Mitra, but did not consider the
other pieces of evidence showing that Mitra did not transfer his residence to
or reside in Aborlan, Palawan; fifth, considering that Mitra did not
reside in or transfer his residence to Aborlan, Palawan, the entry made in his
certificate of candidacy (COC) that he is a resident of Aborlan, Palawan is a deliberate misrepresentation;
and sixth, the jurisprudence relied upon by the majority is inapplicable
to the instant case.
The ponente brushes all these
assignments and arguments aside for being mere repetitions of respondents’
previous arguments already addressed in the underlying Decision. And while
stating that no new and substantial arguments have been raised in the subject
motions, the ponencia nonetheless
addresses some points in a bid to reinforce the said decision.
I vote to grant the motions for
reconsideration.
First, the ponente’s
assertion in the Resolution that “[s]pecifically, the respondents’
evidence failed to show that Mitra remained a
The
foregoing notwithstanding, the evidence on record does persuasively show that
Mitra remained and continued to be a
resident of Sta. Monica, Puerto Princesa City. The punong barangay of Sta. Monica,
that city, attested to the fact that Mitra continued to reside in that barangay. Of the same tenor is the affidavit executed
by the punong barangay’s
neighbor, one Commodore
Nicanor Hernandez. These sworn
statements have remained uncontroverted.
Verily, the
ponente accords probative value to the sworn statement of the punong
barangay of Isaub, where Mitra purportedly transferred his new residence to,
on the postulate that “the sworn statement of the Punong Barangay
of Isaub, Aborlan should carry a lot more weight than the statements of punong
barangay officials elsewhere since it is the business of a punong barangay to
know who the residents are in his own barangay.”[4]
Following the ponente’s line,
is it not logical to say that the certification of the punong barangay of
Sta. Monica, Puerto Princesa City, supported as it is with the sworn statement
of Commodore Hernandez, deserves equal if not greater probative weight? Indeed, it
is the business of the punong barangay of Sta. Monica,
Needless to
say, Commodore Hernandez’s declaration as to Mitra’s continued stay in Sta.
Monica,
Second, Mitra, in his petition before the
Court, did not even allege that the COMELEC committed grave abuse of discretion
in its determination of the facts. To
reiterate what I said in my earlier dissent:
The ponencia did not even specify which of Mitra’s issues merited this Court’s exercise of its limited certiorari jurisdiction. It merely concluded that grave abuse of discretion was committed and proceeded to evaluate and calibrate the evidence submitted by the parties. A mere allegation of grave abuse of discretion, no matter how adamant, should not merit affirmative action from this Court when the same is not supported by clear and convincing examples or evidence. Otherwise, we will be constrained to review the factual findings on each and every case submitted to our jurisdiction.[6]
In an attempt to settle this issue,
the ponente offers this ratiocination:
Our Decision clearly pointed out Mitra’s submissions and arguments on grave abuse of discretion, namely, that the COMELEC failed to appreciate that the case is a cancellation of COC proceeding and that the critical issue is the presence of deliberate false material representation to deceive the electorate. In fact, Mitra’s petition plainly argued that the COMELEC’s grave abuse of discretion was patent when it failed to consider that the ground to deny a COC is deliberate false representation. We completely addressed this issue and in the process analyzed the reasoning in the assailed COMELEC decision. At every step, we found that the COMELEC committed grave abuse of discretion in the appreciation of evidence.[7] (Emphasis supplied.)
It is true that Mitra, in his
petition, imputed grave abuse of discretion on the COMELEC when the poll body
determined his residency eligibility instead of outrightly holding that the
former intentionally and deliberately committed false representation in his
COC.[8]
On one hand, a close perusal of the
COMELEC En Banc Resolution, viewed against the backdrop of the pieces of
evidence submitted, would readily show that the electoral body found Mitra
deliberately misrepresenting his residence to be at Aborlan, Palawan when he,
in fact, did not establish and transfer his residence or domicile to that
town. If one has not established a
transfer of residence from his domicile of origin to another place, but states
in his COC that he is a resident of the new place when, in fact, he is not,
then it logically and necessarily follows that a deliberate misrepresentation
of fact has been committed.
Consequently, the COC must be canceled on account of such a deliberate
misrepresentation. Thus, the majority
gravely errs in its holding on Mitra not deliberately misrepresenting, in his
COC, the matter of his residence. The substantiated findings of facts by the
COMELEC pointed to such misrepresentation.
On the other hand, a close scrutiny
of Mitra’s petition would reveal that he never alleged that the COMELEC
committed grave abuse of discretion in its findings of fact. He merely described the COMELEC’s findings of
fact as being based on “sheer speculation”[9] without,
however, offering any substantial proof to validate and corroborate his
description.
As I posited in my earlier dissent,
the COMELEC’s rulings were not based on sheer speculation, as the ponencia, echoing Mitra’s posture, would have
it. Contrary to the ponencia’s conclusion, the COMELEC was
not fixated on what were shown by the stark photographs of the room at the
mezzanine of the feed mill, for the evidence adduced by private respondents and
those submitted by Mitra himself do show that he could not have transferred his
residence to Aborlan,
The ponencia also points out
that the photographs Mitra presented are not reasonable incremental proofs to
disprove that he resided in the feed mill structure. It makes much of the
alleged personal and subjective assessment standards used by
the COMELEC in assessing the photographs.
Contrary to the ponente’s
views, the assessment of the pieces of evidence, like the photographs thus
presented, was not made in a piecemeal fashion. It was made in an integral
manner, treating and taking a piece of evidence in conjunction with other
evidentiary materials submitted by the parties.
Verily, as I earlier pointed out, the COMELEC’s rulings did not rely mainly
on the aforesaid photographs, but merely indicated in the assailed COMELEC
Resolutions its impression of his supposed residential room. As it were, the
poll body indeed pointed out other pieces of substantial evidence supporting
its conclusion. In addition, the ponente
points out that the law is replete with standards relative to personal and subjective assessment, but
conveniently does not cite any statutory standard hewing to the credibility of
the fact of Mitra’s residency vis-à-vis the uncontroverted sworn statements of
the feed mill’s customers, former employees and some Aborlan residents, who
unanimously attested that Mitra never resided at the mezzanine of said feed
mill.
Consequently, the COMELEC en banc
indisputably neither grossly erred nor gravely abused its discretion in
affirming its Division’s well-premised findings that Mitra, despite his
expressed intent to transfer his residence outside Puerto Princesa City to
qualify to run as Governor, did not actually transfer to and reside in Aborlan,
Palawan.
Third,
much less can it be said that Mitra’s “transfer of residence was accomplished, not
in one single move but, through an incremental process,” as the ponencia would have
it. The ponencia attempts to
buttress this incremental process transfer theory by ratiocinating that “Mitra
made definite, although incremental transfer moves, as shown by the undisputed
business interests he has established in Aborlan in 2008; by the lease of a
dwelling where he established his base; by the purchase of a lot for his
permanent home; by his transfer of registration as a voter in March 2009; and
by the construction of house.”[10]
Indeed, the fact that Mitra bought a
lot in Aborlan and was in the process of constructing a house thereon may well
reflect his intent to transfer his residence to said municipality. But the fact of purchase does not amount
either to a transfer of residence or an incremental transfer of his residence
viewed from the clear statutory standards.
To successfully effect a change of residence, one must demonstrate the
concurrence of the following:
(1)
residence
or bodily presence in a new locality;
(2)
an
intention to remain there;
(3)
an
intention to abandon the old domicile; and
(4)
definite
acts which correspond with the purpose.[11]
Considering the foregoing standards,
the fact that Mitra has business interests in Aborlan, if that really be the
case, would not constitute, without more, an incremental process of a transfer
of residence. Besides, as discussed above,
the lease of a purported mezzanine room at a feed mill without actual physical
presence and residency cannot be equated to a transfer of residence or
domicile.
Even granting arguendo that
having business interests may constitute an incremental transfer of residence,
I strongly note that the ponencia gravely errs in giving credence to
Mitra’s gratuitous claims of business interests in Aborlan,
And in the case of the alleged cock
farm, it is persuasively shown from the statements of Mitra’s own witnesses
that the cock farm was started and came into existence only after the
commencement of the construction of Mitra’s house at the
Consequently, Mitra’s transfer of
registration as a voter to Aborlan in March 2009 ought to be struck down as
without legal effect. The law requires a six-month residency in a municipality
before such transfer.
Fourth, the ponencia equally errs in
its specious reliance on the lease contract, whose validity is dubious for
being antedated as shown by its non-inclusion in the notarial report covering
the time it was supposed to have been notarized. Significantly, the ponencia glosses
over the validity angle. If a seeming official
document is spurious, it stands to reason that it should not be accorded any
evidentiary weight. But without so much
of an explanation, the ponencia
gives credence to the lease contract when precisely the indicators of its
being a sham should have put the Court on guard that what the lease contract
purports to convey could not be true. It
cannot be over-emphasized that Mitra neither controverted allegations of what
amount to forgery nor proffered evidence to prove the lease contract’s veracity
and validity, notwithstanding evidentiary indications to the contrary. Besides, if the lease contract is valid, its
effectivity was only until February 28, 2010, absent showing that it was
renewed considering that Mitra’s house in Aborlan is still under construction. This bolsters the fact that the room at the
mezzanine of the feed mill was not really Mitra’s residence in the time relevant,
i.e., a year before the
election. It bears to state that one intending to run in the place where he has
transferred his voter’s registration must continuously reside in that place for
one year.
The ponencia conveniently
rationalizes that the lease contract in question, like any lease agreement, can
be extended from month to month. While
such a view may be legally correct, it ought to be pointed out that Mitra no
less asserted in his motion for reconsideration before the COMELEC en banc
that he had already abandoned his purported residence (the mezzanine room at
Maligaya Feed Mill) at the very least on February 13, 2010, when he filed said
motion by averring that he had “MOVED
to his own new house physically residing in his newly completed home in
ABORLAN.”[12] Clearly then, the ponencia’s
rationalization must fail for lack of factual basis.
At any event, Mitra’s averment that
his newly constructed house was already completed by then (February 2010)
remained unsubstantiated. And it must be
noted in this regard that Mitra has not shown any proof that he has indeed
continued the lease on a month-to-month basis, if this was the case, when he
had full opportunity to do so during the proceedings at the COMELEC.
As discussed in my earlier dissent, the quantum
of evidence necessary to prove a candidate’s disqualification in a
quasi-judicial or administrative hearing needs only such relevant evidence as a
reasonable mind will accept to support a conclusion.[13] As an independent constitutional body tasked
with specific duty to enforce and administer all election laws, the COMELEC’s
decisions must be given utmost weight and importance. Appropriately, this Court, in its review of
the factual determinations of the COMELEC, must find clear and convincing proof
of grave abuse of discretion to justify a reversal thereof. Else, the Court ought to confine itself to
resolving only questions of law.
For the foregoing reasons, I find the
instant motions for reconsideration to be meritorious. Let me reiterate that the COMELEC en banc
did not gravely abuse its discretion in affirming the findings of its Second
Division, supported as they are by substantial evidence on record. For certiorari
to prosper, there must be a showing that the COMELEC acted with “grave abuse of
discretion,” a term which means such capricious and whimsical exercise of
judgment equivalent to lack of jurisdiction or excess thereof.[14] Such abuse is absent in the instant
case. Accordingly, this Court ought not
to substitute the COMELEC’s findings with its own factual findings, for
certifying in his COC that he is a resident of Aborlan,
At this juncture, I earnestly invite
attention to the Court’s Decision of June 15, 2010, wherein it correctly
dismissed a similar case involving a vice-gubernatorial candidate of
The fact that Mitra garnered the
majority votes in the gubernatorial election in Palawan does not render this
case moot and academic or lift the statutory one-year condition sine qua non residency requirement for him to
qualify to run for the gubernatorial post in that province. As it were, the
requirement on residency is not merely a technical or formal requisite. Verily, winning the election does not
substitute for the specific requirements of law on a person’s eligibility for
public office which he lacked, and does not cure his material misrepresentation
which is a valid ground for the cancellation of his COC.[16]
I subscribe to our ruling in Velasco
v. Commission on Elections and Mozart P. Panlaqui[17]
that, indeed, “x x x in a choice between provisions on material
qualifications of elected officials, on the one hand, and the will of the
electorate in any given locality, on the other, we believe and so hold that we
cannot choose the electorate will. The
balance must always tilt in favor of upholding and enforcing the law. To rule otherwise is to slowly gnaw at the
rule of law.”
In sum, it must be noted that
residency or domicile is a matter of personal intention. In deciding and asserting to transfer his
legal residence so he can qualify to run for the gubernatorial seat of
Finally, noting that Mitra is already
barred from running for congressman due to the constitutional consecutive
three-term limit, his purported transfer to Aborlan so that he could continue
further his political career makes his intent and assertions suspect when unsupported
by his actual physical presence and residency in Aborlan. The best test of intention to establish legal
residence comes from one’s acts and not by mere declarations alone.[20]
Accordingly, I vote to GRANT the
motions for reconsideration.
PRESBITERO
J. VELASCO, JR.
Associate Justice
[1] Rollo, pp. 1176-1186, Motion for
Reconsideration dated July 19, 2010 filed by COMELEC; id. at 1188-1252, Motion
for Reconsideration with Motion for Oral Arguments dated July 20, 2010 filed by
private respondents.
[2] Resolution, p. 2.
[3] Rollo,
p. 1144; July 2, 2010 Decision, p. 22.
[4]
[5] Romualdez-Marcos v. Commission on Elections,
G.R. No. 119976, September 18, 1995, 248 SCRA 300, 331; citing 18 AM Jur
219-220.
[6] Rollo, pp. 1163-1164; Dissenting Opinion, pp. 9-10.
[7] Resolution, p. 10.
[8] Rollo, p. 17; petition, p. 15.
[9]
[10]
[11] Limbona v. Commission on Elections, G.R. No. 181097, June 25, 2008, 555 SCRA 391, 402; citing Gallego v. Verra, 73 Phil. 453, 456 (1941); Dumpit-Michelena v. Boado, G.R. Nos. 163619-20, November 17, 2005, 475 SCRA 290.
[12] Rollo, p. 227; Motion for Reconsideration dated February 13, 2010, p. 227.
[13] Id. at 1170; Dissenting Opinion, p. 16; citing Hon. Primo C. Miro v. Reynaldo M. Dosono, G.R. No. 170697, April 30, 2010.
[14] Patalinghug v. Commission on Elections, G.R. No. 178767,
January 30, 2008, 543 SCRA 175, 188, citing Guerrero v. Commission on
Elections, G.R. No. 137004, July 26, 2000, 336 SCRA 458, 466.
[15] Associate Justice Conchita Carpio-Morales, ponente. The explanatory note on the dismissal of the petition reads:
To successfully effect a change of domicile, one must demonstrate (1) an actual removal or change of domicile; (2) a bona fide intention of abandoning the former place of residence and establishing a new one; and (3) definite acts which correspond with the purpose.
Public respondent committed no grave abuse of discretion in finding that petitioner had not sufficiently established a change of his domicile from Coron, Palawan, his domicile of origin, to Aborlan, Palawan, his supposed domicile of choice, for failure to show, among other things, (1) actual presence at Aborlan, Palawan, and (2) abandonment of his residence at Coron, Palawan. It thus correctly relied on the Court’s pronouncement in Dumpit-Michelena v. Boado that without clear and positive proof of concurrence of the requirements for a change of domicile, the domicile of origin continues.
Reading Section 78 of the Omnibus Election Code with the constitutional qualifications for a Member of the House of Representatives, petitioner’s false representation in his CoC regarding his residence, which affects his qualifications, gave cause for the COMELEC to cancel the same.
[16] Ugdoracion, Jr. v. Commission on Elections, G.R. No. 179851,
April 18, 2008, 552 SCRA 231, 243.
[17] G.R. No. 191124, April 27, 2010.
[18] Limbona v. Commission on Elections, supra note 11; citing Domino v. Commission on Elections, G.R.
No. 134015, July 19, 1999, 310 SCRA 546, 568.
[19] 28 C.J.S. § 11.
[20] Tanseco v. Arteche, 57 Phil. 227, 235 (1932).