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TORRES, JR., J., concurring opinion:

Although I entertain no illusion of absolute certainty, as to whether or not the petitioner in the above-entitled case is a "fugitive from justice" within the purview of Section 40 paragraph (e) of Republic Act No. 7160 of the Local Government Code of 1991, and which would result to a disqualification for any elective local position, I, however, share the view of my distinguished colleague, Mr. Justice Ricardo J. Francisco, that petitioner Eduardo T. Rodriguez, is not a "fugitive from justice."

Petitioner should not be considered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province.

Petitioner returned to the Philippines from the United States on June 25, 1985 while the criminal complaint against him for fraudulent insurance claims, grand theft and attempted grand theft of personal property before the Municipal Court of Los Angeles, California was filed almost 5 months later, or on November 12, 1985. Verily, it cannot be said that he fled to avoid prosecution for at the time he left the United States, there was yet no case or prosecution to avoid. It would not be reasonable to assume that he returned to the Philippines aware that he has committed some transgressions of law or that he was anticipating the filing of the complaint. To assume that he was not unaware of his own prior misdeeds is tantamount to presuming his guilt.

That petitioner did not know of the imminent filing of charges against him and that he did not flee to avoid prosecution are bolstered by the facts that: 1.) he returned to the United States twice: on August 14 and October 7 of the same year but arrived in the Philippines on October 26 likewise in the same year; 2.) he left his wife in the United States; and 3.) his wife was later on arrested for the same charges. Had petitioner been aware of the imminent filing of charges against him, he would never have returned to the United States and he would not have left his wife in there.

Petitioner is a citizen of this country. Why should he not come home? Coming home to the Philippines was the most natural act of the petitioner, who happens to maintain his residence in the country. The fact that he remains here even after he was formally accused cannot be construed as an indication of an intent to flee, there being no compelling reason for him to go to the United States and face his accusers. On the contrary, it is his official duty, as an incumbent Governor of Quezon, to remain in the country and perform his duties as the duly elected public official.

In her report entitled "Evidence of the Parties and Commission's Evaluation," Commissioner Teresita Dy-Liacco Flores aptly pointed out:

"x x x When, in good faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed against him while in the relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction of the former state does not qualify him outright as a fugitive from justice.

"The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of another state while already in his country or else be disqualified from office, is more apparent when applied in petitioner's case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In the absence of an intent to evade the laws of the United Sates, petitioner had every right to depart therefrom at the precise time that he did and to return to the Philippines. No justifiable reason existed to curtail of fetter petitioner's exercise of his right to leave the United States and return home. Hence, sustaining the contrary proposition would be to unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances that brought him within Philippine territory at the time he was sought to be placed under arrest and to answer for charges against him.

Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only later, and under his circumstances, is there a law that requires petitioner to travel to the United States and subject himself to the monetary burden and tedious process of defending himself before the country's courts?" ¹cräläwvirtualibräry

This Court cannot be oblivious of the fact that the provision disqualifying fugitives from justice in criminal or non-political cases here or abroad was allegedly tailored to affect petitioner. The provision is short of saying that Eduardo Rodriguez is disqualified. As I trace the legislative history of the subject provision, I find that the principal sponsor of the Local Government Code, Aquilino O. Pimentel, Jr., then a Senator and Chairman of the Senate Committee on Local Government commented on this, in his book "The Local Government Code of 1991," thus:

"5. Fugitives Disqualified. Persons fleeing from local of foreign justice in criminal or non-political cases are likewise disqualified from local government elective positions. This particular disqualification was a House of Representatives innovation. This was a 'camaraderie' provision proposed by the House because a congressman of a southern Tagalog province had intended to run for governor against an incumbent who had reportedly fled from U.S. justice". ² (Italics supplied)

To borrow the language of former Chief Justice Moran in his dissent in Torres v. Tan Chim, 69 Phil. 518, 535:

"x x x when this Court continues to uphold a ruling known to be erroneous, with no plausible excuse therefor but public acquiescence therein, it may soon find itself compelled to make more mistakes in an effort to justify the previous ones. We may thus be building one error upon another until, by their accumulation, we shall come to a point when going further would be perilous and turning backward impossible."

To rule in favor of private respondent is to license a wrongdoing to succeed and injustice to prevail in applying a law, the facts and circumstances obtaining in the particular case must be taken into consideration. In the case at bar, the following circumstances must be taken into consideration: that petitioner was not aware of the imminent filing of charges against him; the same was filed after he has returned home; it is impractical and unjust to require petitioner to subject himself to the jurisdiction of the United States while already in this country or else be disqualified from office; and that the subject provision appears to have been a 'camaraderie provision' proposed by the House for the sake of private respondent who was then a Congressman.

In Marquez v. COMELEC (243 SCRA 538), this court held that: Art. 73 of the Rules and Regulations Implementing the Local Government Code of 1991 is an inordinate and undue circumscription of the law, to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment." Said ruling notwithstanding, the court must not insist that petitioner is still a fugitive by the mere fact that there are pending charges against the petitioner in the United States and that petitioner Rodriguez is in the Philippines.

It was Justice Oliver Wendel Holmes who said that

"A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." ³cräläwvirtualibräry

"Fugitive from justice" must be given a meaning in the instant case having regard to "the circumstances and the time it is used." Philosophers and jurists have tried unsuccessfully at an exact definition of such an abstruse term as justice. Unfortunately, whether in the metaphysical sense or otherwise, the question of justice is still unanswered as it ever was albeit characterized by secular skepticism. If the question is asked: What standard of justice should we enforce? The American sense of justice or the Philippine sense of justice? Undoubtedly, the forum in which it is raised should be controlling. By way only of hypothesis, if an American flees to escape from Philippine Laws to the United States, may we enforce in the United States our standard of justice based on Philippine Laws? I am tempted to ask these questions considering our zealousness to solve legal problems in the light of laws obtaining in the United States.

At any rate, an accused charged with a crime in the Philippines cannot be a candidate and at the same time flee from prosecution. Once he goes campaigning his opponent would have him arrested. For this and the reasons above discussed, the provision on disqualification of fugitive from justice, being unnecessary and serving only to undermine one's constitutional right to equal access to opportunities for public service, ⁴ should even be scantily considered.

Finally, petitioner appears to have garnered 285,202 votes. According to the election results, petitioner won over private respondent by a majority of 140, 000 votes more or less. As it is, to disqualify petitioner on the shaky ground of being a "fugitive from justice" would amount to disenfranchising the electorate in whom sovereignty resides. ⁵cräläwvirtualibräry

Learned Hand, had this to say:

"Hand preached that the security of liberty was too important to be left entirely to the judges: '(I)t is the voters, speaking through their delegates, who have the final word and the final responsibility; and . . . in the end it is they and they alone who can and will preserve our liberties, if preserved they are to be.'" ⁶cräläwvirtualibräry

This is a populist judicial response.

Thus, where a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible doubts should be resolved in favor of the candidate's eligibility, for to rule otherwise is to defeat the will of the people. ⁷ Above and beyond all, the determination of the true will of the electorate should be paramount. It is their voice, not ours or of anyone else, that must prevail. This, in essence, is the democracy we continue to hold sacred. ⁸cräläwvirtualibräry

I vote to grant the petition.