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[G.R. No. 147409.May 4, 2001]
PABLO D. LUNA, JR. vs. HON. TAMIN
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated MAY 4 2001.
G.R. No. 147409 (Pablo D. Luna, Jr. vs. Hon. Camilo E. Tamin, in his capacity as Presiding Judge of the RTC, Br. 23 in Molave, Zamboanga del Sur, et al.)
On January 31, 2001, herein private respondents Jullendo C. Mag-usara, Gregorio T. Dalion, Porferio C. Angot, Jr., Perly Rey Flores, and Yolando B. Mahinay filed a petition in the Municipal Circuit Trial Court (MCTC) of Mahayag-Dumingag and Josefina, Zamboanga del Sur, seeking the exclusion of petitioner Pablo D. Luna, Jr. from the list of registered voters in Precinct No. 10-A of Barangay Dawa, Josefina, Zamboanga del Sur.Private respondents, registered voters of Barangay Dawa, presented affidavits of their barangay officials (Albertson C. Mag-usara, barangay chairman since 1979; Bernardo R. Jumawan, barangay secretary since 1985; Lenie M. Quipit, barangay district kagawad since 1997), all attesting that petitioner had never been a resident of said barangay.They also presented an affidavit of Joel Ursonal, who conducted an enumeration of the individual residents in Barangay Dawa, Josefina, Zamboanga del Sur in the 2000 Census of Population and Housing, stating that petitioner was not a resident of said barangay and a certification from Nenita Salera, Municipal Election Officer of Josefina, Zamboanga del Sur, to the effect that petitioner was not among those included in the verification of voters in any barangay of Josefina, Zamboanga del Sur during the National Precinct Mapping and CVL Verification Project conducted pursuant to COMELEC Resolution No. 3116.
The petition for exclusion was, however, dismissed.The MCTC cited Resolution No. 2946-A of the COMELEC and ruled that the last day for filing petitions for exclusion was on January 30, 1998.
On appeal, the Regional Trial Court, Branch 23, Molave, Zamboanga del Sur, reversed the MCTC's decision and ordered the exclusion of petitioner from the permanent list of voters of Precinct No. 10-A of Barangay Dawa, Josefina, Zamboanga del Sur.It rules that under R.A. No. 8189, �35, private respondents' petition was seasonably filed and that petitioner failed to prove that he was domiciled in Barangay Dawa, Josefina.Citing Aquino v. Commission on Elections, 248 SCRA 400 (1995), the RTC held that petitioner's transfer of residence to Josefina was not to acquire a new domicile but only to qualify him as a candidate for Mayor of Josefina.
On the basis of this decision, private respondents filed a petition in the Commission on Elections for the disqualification of petitioner as a candidate for mayor of the Municipality of Josefina, Zamboanga del Sur on the ground that he is not a registered voter nor a resident of the said municipality.The petition is pending in the COMELEC.
Hence, this petition for certiorari.Petitioner prays that a preliminary mandatory injunction be issued ordering his inclusion in the permanent list of voters of Josefina, Zamboanga del Sur, and that a temporary restraining order be issued enjoining the COMELEC from hearing the disqualification case against him.
Petitioner argues:
1. RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF DISCRETION IN DISENFRANCHISING PETITIONER AS A VOTER FOR LACK OF RESIDENCE, CONTRARY TO THE EVIDENCE PRESENTED AND TO APPLICABLE LAWS AND JURISPRUDENCE.
2. RESPONDENT JUDGE ALSO COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT APPLIED THE DOCTRINE OF AQUINO VS. COMELEC, 248 SCRA 400, TO THE CASE AT BAR.
3. RESPONDENT JUDGE FINALLY COMMITTED GRAVE ABUSE OF DISCRETION IN NOT HOLDING THAT THE PETITION FOR EXCLUSION HAD PRESCRIBED.
First.Petitioner argues that under COMELEC Resolution No. 2946-A, private respondents' petition for exclusion was filed out of time and that R.A. No. 8189, �35 applies only to petitions for the exclusion of voters registered under the system of continuing registration after the May 11, 1998 elections and not to those voters who, like him (petitioner), had been registered under the general registration of voters in 1997.
The contention has no merit.
R.A. No. 8189, �35 provides:
Petition for Exclusion of Voters from the List. - Any registered voter, representative of a political party or the Election Officer, may file with the court a sworn petition for the exclusion of a voter from the permanent list of voters giving the name, address and the precinct of the challenged voter at any time except one hundred (100) days prior to a regular election or sixty-five (65) days before a special election.The petition shall be accompanied by proof of notice to the Board and to the challenged voter and shall be decided within ten (10) days from its filing.
If the decision is for the exclusion of the voter from the list, the Board shall, upon receipt of the final decision, remove the voter's registration record from the corresponding book of voters, enter the order of exclusion therein, and thereafter place the record in the inactive file.
This provision makes no distinction between voters registered under the system of continuing registration of votes established under R.A. No. 8189, �8 and those registered under the general registration in 1997.Indeed, following petitioner's view, there can never be any petition for the exclusion of voters not registered under the continuing system of registration as the January 30, 1998 deadline has long passed.Indeed, COMELEC Resolution No. 2946-A provides for the application of the 100-day limitation under R.A. No. 8189, �35, by fixing January 30, 1998 as the deadline for filing petitions for exclusion insofar as the May 11, 1998 national and local elections are concerned.With respect to the May 14, 2001 national and local elections, applying R.A. No. 8189, �35, petitions for exclusion of non-qualified registered voters should be filed not later than February 2, 2001.(Per COMELEC Resolution No. 3258 issued on September 28, 2000)Clearly, the filing on January 31, 2001 of private respondents' petition to exclude petitioner was timely.
Second. Petitioner contends that he has fulfilled the residency requirement to be a registered voter in Barangay Dawa, Josefina, Zamboanga del Sur.He points out that he has been a registered voter of Precinct No. 10-A of Barangay Dawa since 1997 and, as such, has already voted thrice:in the 1997 barangay elections, in the May 11, 1998 elections where he ran and won as mayor, and in the 2001 plebiscite for the creation of Zamboanga Sibugay.He claims that although he owns land in Josefina, he only lives in a rented house in that municipality because he does not yet have enough funds to build a house.
The term "residence" as used in election law is synonymous with "domicile" which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention (Domino v. Commission on Elections, 310 SCRA 546 (1999); Romualdez v. RTC, Branch 7, Tacloban City, 226 SCRA 408 (1993)).The fact that petitioner is registered as a voter in Josefina does not prove that he is not domiciled somewhere else.It is fact of the place of residence, not where he is registered as a voter, which is decisive in determining whether or not an individual has satisfied the residency qualification requirement under the Voter Registration Act (See Perez v. Commission on Elections, 317 SCRA 641 (1999)).In this case, there is substantial evidence supporting the RTC's finding that petitioner is not a resident of Josefina, thus:
[Petitioner], by his own declaration, is actually residing in Dipolog City, where his wife is working as the accountant of the First Engineering District of the DPWH in Dipolog City; that he has also a residential house in Manabay, Ozamiz City; that he sleeps in Josefina, Zamboanga del Sur only for one or two days every month, and returns every day after office hours, using the motor vehicle of the municipality, to his residences, either [in] Dipolog City or Manabay, Ozamiz City, about 100 kilometers away from Josefina, Zamboanga del Sur where he is the incumbent Mayor; that although he has purchased a residential lot in Dawa, Josefina, Zamboanga del Sur, there is no house of Mr. Catalan for P250 a month in Poblacion Gumahan, Josefina, Zamboanga del Sur, where he stays, when he is in Josefina, Zamboanga del Sur and that the barangay official in Barangay Dawa, Josefina, Zamboanga del Sur, and the COMELEC officials in said municipality, all certify that said private respondent has never in fact resided in Barangay Dawa, Josefina, Zamboanga del Sur, nor was he among those included in the Enumerator's List (PM Form 1) in any of the barangays in Josefina, Zamboanga del Sur during the National Precinct Mapping and CVL Verification Project conducted last April 5 up to May 15, 2000, pursuant to COMELEC Resolution No. 3116, promulgated on February 10, 2000. [RTC Decision, pp. 4-5; Rollo, pp. 34-35]
That an earlier petition for petitioner's exclusion from the list of voters of Barangay Dawa, Josefina (filed in 1997) was denied by the MCTC is not a bar to the present petition because the said denial of the petition was based on a technicality, i.e., failure to furnish petitioner with a copy of the petition.
In view of the conclusion we have reached, it becomes unnecessary to pass upon petitioner's argument that the COMELEC cannot disqualify him for lack of residency prior to his election and that private respondents' remedy is to file a quo warranto case against him if he is elected and proclaimed.
WHEREFORE, the petition is DISMISSED for lack of showing that the Regional Trial Court, Branch 23, Molave, Zamboanga del Sur, committed a grave abuse of its discretion.
Quisumbing, Buena, De Leon, Jr., JJ., abroad.
Very truly yours,
LUZVIMINDA D. PUNO
Clerk of Court
(Sgd.) MA. LUISA D. VILLARAMA
Asst. Clerk of Court
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