ANNOTATION

RESIDENCY REQUIREMENT IN ELECTION LAW*

By
Emmanuel LJ. Mapili**
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1.Introduction, p. 662
2.Residence vis--vis domicile, p. 662
a.Domicile of Origin, p. 663
b. Domicile of Dependence, p. 663
c. Domicile of Choice, p. 663
d.Domicile by Operation of Law, p. 664
3. Residence a Matter of Intention, p. 665
4. Purpose of residency requirement, p. 667
5.Recent cases, p. 670
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* Svetlana P. Jalosjos vs. Commission on Elections, Edwin Elim Tumpag and Rodolfo Y.
Estrellada, G.R. No. 193314, February 26, 2013
** Atty. Emmanuel LJ. Mapili, a Career Service Executive Eligible (CSEE), is Hearing
Commissioner since 1996 at the House of Representatives Electoral Tribunal (HRET). He was
law partner at the Buhain Soriano & Mapili Law Offices from 1995-1996. He was Law Books
Editor of Rex Bookstore and Managing Editor of its Supreme Court Advance Decisions
(SCAD). He is co-author of six (6) books: Omnibus Election Code with Rules of Procedure &
Jurisprudence in Election Law (2007); Fundamentals of Nursing Law, Jurisprudence & Ethics
(2008); Fundamentals of Dental Jurisprudence, Ethics & Practice Management (2009); Basics
of Philippine Medical Jurisprudence & Ethics (2010); Introduction to Nursing Law, Ethics,
Leadership and Management (2011); and Effective Litigation & Adjudication of Election
Contests (2012).
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1.Introduction
Petitioner was disqualified as mayoralty candidate of Baliangao, Misamis Occidental for
failure to prove compliance with the one-year residency requirement therefor. The Supreme
Court held that petitioner never acquired a new domicile in Baliangao, because she failed to
prove her bodily presence at that place, her intention to remain there, and her intention
never to return to her domicile of origin which is Dapitan City.
2.Residence vis--vis domicile
The term residence has a settled meaning. It is synonymous with domicile, which is
defined as a fixed permanent residence to which when absent for business or pleasure or
for like reasons, one intends to return.1 This has been the consistent ruling of the Supreme
Court whether construing the previous Constitutions or the present one. 2 The term does not
refer to a mere actual stay in a place of abode or to habitual physical presence in a place
during a period of either limited or unlimited duration. It has been held:
.... Residence is used to indicate a place of abode, whether permanent or temporary;
domicile denotes a fixed permanent residence to which when absent, one has the intention
of returning. A man may have a residence in one place and a domicile in another. Residence
is domicile, but domicile is residence coupled with the intention to remain for an unlimited
time. A man can have but one domicile for the same purpose at any time, but he may have
numerous places of residence. His place of residence is generally his place of domicile, but it
is not by any means necessarily so since no length of residence without intention of
remaining will constitute domicile.3

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1 Nuval vs. Guray, 52 Phil. 645 (1928).
2 Co vs. Electoral Tribunal of the House of Representatives, 199 SCRA 692 (1991).
3 Uytengsu vs. Republic, 95 Phil. 890 (1954).
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The term residence, therefore, is to be understood not in its common acceptation as
referring to dwelling or habitation, but rather to domicile or legal residence, that is,
the place where a party actually or constructively has his permanent home, where he, no
matter where he may be found at any given time, eventually intends to return and remain.
a.Domicile of Origin:
A persons initial domicile is fixed by law. At the moment of his birth, he is ipso facto
assigned a domicile, known as the domicile of origin. This domicile of origin ensures that at
birth every person possesses a domicile, that no legal gaps occur in the adherence of
domicile, and that every person has a domicile all the time. 4
Generally, the domicile of origin is recognized as the domicile of the legitimate childs
father at the time of his birth. 5 Under our present laws, however, the domicile of origin is the
family domicile jointly fixed by the parents of the child. 6
b.Domicile of Dependence:
From birth and until a person becomes legally capacitated, his domicile is also fixed by
law as the domicile chosen by the person having parental authority over him. This is known
as the domicile of dependence or constructive domicile. Thus, the domicile of a minor is the
domicile of the parent with whom he lives, and that of a mentally incapacitated person is the
domicile of his parent or guardian.
c.Domicile of Choice:
Once a person is emancipated from his legal disability, he may choose to change his
domicile of origin or his constructive domicile. This results in the adoption of a domicile of
choice
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4 R. H. Graveson, The Conflict of Laws 156 (5th ed., 1965).
5 Go Chen vs. Collector of Customs of Cebu, 56 Phil. 550 (1932).
6 Family Code, Art. 69.
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that which is voluntarily chosen by a person as his permanent home, the place to which,
whenever absent for business or pleasure, one intends to return, and depends on facts and
circumstances, in the sense that they disclose intent. 7
In order to acquire a new domicile of choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there (animus manendi), and (3) an
intention to abandon the old domicile (animus non revertendi).8
d.Domicile by Operation of Law:
There are additional rules applicable to married women arising from their duty to live
with their husbands. Traditionally, marriage has been viewed as imposing a legal disability
on the woman. A married woman could not choose her own domicile, and her domicile was
designated as the domicile fixed by her husband. Thus Art. 110 of the Civil Code provided:
Art.110.The husband shall fix the residence of the family. But the court may exempt the
wife from living with the husband if he should live abroad unless in the service of the
Republic.
Like the term residence in the constitutional provision, the term residence in Art. 110
meant domicile. Art. 110 was adopted from Art. 48 9 of the Law of Civil Marriage of 1870

which had been construed to mean that:

[A]s a general principle of laws the domicile of the wife follows that of her husband. This rule
is founded upon the theoretic identity of person and of interest between the husband and
the wife, and the presumption that, from the nature of the relation, the home of the
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7 Aala vs. Alvarez, HRET Case No. 98-004, 14 HRET Reports 90 [1999].
8 Sangki vs. Matalam, HRET Case No. 01-042, March 18, 2004.
9 Art.48.The Wife must obey her husband, live with him, and follow him when he
changes his domicile or residence.
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one is that of the other. It is intended to promote, strengthen, and secure the interests in this
relation, as it ordinarily exists, where union and harmony prevail. . . .10
This provision is analogous to the common law principle that a wife who lives with her
husband has the same domicile he has unless the special circumstances of the wife make
such result unreasonable,11 and that the domicile of a married woman shall be that of her
husband: Provided, That a married woman who has been separated from her husband by the
order of a court of competent jurisdiction shall be treated as a single woman. 12
Although under Art. 69 of the Family Code this obligation has been somewhat tempered by
leaving the determination of the family domicile to the joint decision of husband and wife,
the marriage of a woman may still result in a change of her original domicile. Perhaps the
most that can be said is that because of this provision in the Family Code, the original
domicile of both spouses is liable to be changed as a result of marriage.
3.Residence a Matter of Intention
The question of residence for the purposes of the Election Law is largely one of intention. 13
A persons immigration to the U.S., with intention to live there permanently as evidenced by
his application for an immigrants visa, constitutes an abandonment of his domicile and
residence in the Philippines.14
The determination of a persons legal residence or domicile largely depends upon intention
which may be inferred from
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10 De la Via vs. Villareal, 41 Phil. 13 (1920).
11 Restatement, Second, Conflicts of Law, 21(1).
12 R. H. Graveson, The Conflict of Laws 140 (5th ed., 1965).
13 Yra vs. Abao, 52 Phil. 380 [1928].
14 Caasi vs. Court of Appeals, 191 SCRA 229 [1990].
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his acts, activities and utterances. In Abella vs. Comelec,15 there is no evidence to prove that
the petitioner temporarily left her residence in Kananga, Leyte in 1975 to pursue any calling,
profession or business. What is clear is that she established her residence in Ormoc City with
her husband and considers herself a resident therein. The intention of animus revertendi not
to abandon her residence in Kananga, Leyte, therefore, is not present. The fact that she
occasionally visits Kananga, Leyte, through the years does not signify an intention to
continue her residence therein.
In Romualdez vs. RTC, Br. 7, Tacloban City,16 petitioners going into self-exile together with
his immediate family until conditions favorable to them would have somehow stabilized is
understandable. Certainly, their sudden departure from the country cannot be described as
voluntary, or as abandonment of residence at least in the context that these terms are
used in applying the concept of domicile by choice.

In Aquino vs. Comelec,17 the Supreme Court agreed with Comelecs contention that in order
that petitioner could qualify as candidate for Representative of the Second District of Makati
City, the latter must prove that he has established not just residence but domicile of
choice. The Constitution requires that a person seeking election to the House of
Representatives should be a resident of the district in which he seeks election for a period of
not less than one (1) year prior to the elections. Residence, for election law purposes, has a
settled meaning in our jurisdiction. The absence of clear and positive proof showing a
successful abandonment of domicile under the conditions stated above, the lack of
identificationsentimental, actual or otherwisewith the area, and the suspicious
circumstances under which the lease agreement was effected all belie petitioners claim of
residency for the
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15 201 SCRA 253 [1991].
16 226 SCRA 408 [1993].
17 248 SCRA 400 [1995].
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period required by the Constitution, in the Second District of Makati.
In Domino vs. Comelec,18 it was the contention of petitioner that his actual physical presence
in Alabel, Sarangani, since December 1996 was sufficiently established by the lease of a
house and lot located therein in January 1997 and by the affidavits and certifications under
oath of the residents of that place that they have seen petitioner and his family residing in
their locality. While this may be so, actual and physical is not in itself sufficient to show that
from said date he had transferred his residence in that place. To establish a new domicile of
choice, personal presence in the place must be coupled with conduct indicative of that
intention. While residence simply requires bodily presence in a given place, domicile
requires not only such bodily presence in that place but also a declared and probable intent
to make it ones fixed and permanent place of abode, ones home.
In Coquilla vs. Comelec,19 petitioner lost his domicile of origin in Oras by becoming a U.S.
citizen after enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000,
when he reacquired Philippine citizenship, petitioner was an alien without any right to reside
in the Philippines save as our immigration laws may have allowed him to stay as a visitor or
as a resident alien.
4.Purpose of residency requirement
Citing jurisprudence, the Supreme Court began the case of Mitra vs. Comelec20 with a
discussion of the purpose of the residency requirement under the law:
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18 310 SCRA 546 [1999].
19 G.R. No. 151914, July 31, 2002, 385 SCRA 607.
20 G.R. No. 191938, July 2, 2010, 622 SCRA 744.
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The minimum requirement under our Constitution21 and election laws22 for the candidates
residency in the political unit they seek to represent has never been intended to be an
empty formalistic condition; it carries with it a very specific purpose: to prevent stranger[s]
or newcomer[s] unacquainted with the conditions and needs of a community from seeking
elective offices in that community.23
The requirement is rooted in the recognition that officials of districts or localities should not
only be acquainted with the metes and bounds of their constituencies; more importantly,

they should know their constituencies and the unique circumstances of their constituents
their needs, difficulties, aspirations, potentials for growth and development, and all matters
vital to their common welfare. Familiarity, or the opportunity to be familiar, with these
circumstances can only come with residency in the constituency to be represented.
The purpose of the residency requirement is best met by individuals who have either had
actual residence in the area for a given period or who have been domiciled in the same area
either by origin or by choice.24 At the same time, the constituents themselves can
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21 Section 3, Article X of the 1987 Constitution pertinently provides:
SEC. 3.The Congress shall enact a local government code which shall provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions and
duties of local officials, and all other matters relating to the organization and operation of
the local units.
22 Section 39 of the Local Government Code of 1991 states:
SEC.39.Qualifications.(a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city, or province x x x 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.
23 Torayno, Sr. v. Comelec, 337 SCRA 574 [2000], citing Romualdez-Marcos v. Comelec, 248
SCRA 300, 313 [1995], citing Gallego vs. Vera, 73 Phil. 453, 459 [1941].
24 Ibid.
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best know and evaluate the candidates qualifications and fitness for office if these
candidates have lived among them.25
Read and understood in this manner, residency can readily be appreciated as a requirement
that goes into the heart of our democratic system; it directly supports the purpose of
representationelecting those who can best serve the community because of their
knowledge and sensitivity to its needs. It likewise adds meaning and substance to the
voters freedom of choice in the electoral exercise that characterizes every democracy.
In Torayno, Sr. vs. Comelec,26 former Governor Vicente Y. Emano re-occupied a house he
owned and had leased out in Cagayan de Oro City to qualify as a candidate for the post of
Mayor of that city (like Puerto Princesa City, a highly urbanized city whose residents cannot
vote for and be voted upon as elective provincial officials). The Supreme Court said in that
case that
In other words, the actual, physical and personal presence of herein private respondent in
Cagayan de Oro City is substantial enough to show his intention to fulfill the duties of mayor
and for the voters to evaluate his qualifications for the mayorship. Petitioners very
legalistic, academic and technical approach to the residence requirement does not satisfy
this simple, practical and common-sense rationale for the residence requirement.
In Asistio vs. Hon. Trinidad Pe-Aguirre,27 the Supreme Court also had occasion to rule on the
residency and right to vote of former Congressman Luis A. Asistio who had been a
congressman for Caloocan in 1992, 1995, 1998 and 2004, and, in the words of the Decision,
is known to be among the prominent political families in Caloocan City. 28 The Supreme
Court recognized Asistios position that a mistake had been committed in his residency
statement, and concluded that the
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25 Ibid.
26 337 SCRA 574 [2000].
27 G.R. No. 191124, April 27, 2010, 619 SCRA 518.
28 Ibid.
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mistake is not proof that Asistio has abandoned his domicile in Caloocan City, or that he has
established residence outside of Caloocan City. By this recognition, the Supreme Court
confirmed that Asistio has not committed any deliberate misrepresentation in his certificate
of candidacy.
5.Recent cases
(1)In Jalosjos vs. Comelec,29 the following facts were established: Petitioner was born in
Quezon City in 1973. He migrated to Australia in 1981 and there acquired Australian
citizenship. In 2008, he returned to the Philippines and lived with his brother, gave up his
Australian citizenship, and renounced his allegiance to that country. In addition, (1) he
reacquired his old citizenship by taking an oath of allegiance to the Republic of the
Philippines, resulting in his being issued a Certificate of Reacquisition of Philippine
Citizenship by the Bureau of Immigration; (2) acquired several properties in Zamboanga
Sibugay; (3) became a registered voter of the province; (4) filed his Certificate of Candidacy
(COC) for Governor of Zamboanga Sibugay Province for the May 10, 2010 elections.
However, the Comelec disqualified him as candidate for failure to meet the statutory oneyear residency requirement under the law.
The Supreme Court set aside the Decision of the Comelec for the following reasons:
One.It is clear from the facts that Quezon City was petitioner domicile of origin, the
place of his birth. It may be taken for granted that he effectively changed his domicile from
Quezon City to Australia when he migrated there, acquired Australian citizenship, and lived
in that country for some time. Australia became his domicile by operation of law and by
choice.
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29 G.R. No. 191970, April 24, 2012, 670 SCRA 572.
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671

On the other hand, when he came to the Philippines in 2008 to live with his brother in
Zamboanga Sibugay, it is evident that petitioner did so with intent to change his domicile for
good. By his acts mentioned above, petitioner forfeited his legal right to live in Australia,
clearly proving that he gave up his domicile there. And he has since lived nowhere else
except in Zamboanga Sibugay.
To hold that petitioner has not establish a new domicile in Zamboanga Sibugay despite the
loss of his domicile of origin (Quezon City) and his domicile of choice and by operation of law
(Australia) would violate the settled maxim that a man must have a domicile or residence
somewhere.
Two.As regards the fact that petitioner has merely been staying at his brothers house, a
candidate is not required to have a house in a community to establish his residence or
domicile in a particular place. It is sufficient that he should live there even if it be in a rented
house or in the house of a friend or relative. To insist that the candidate own the house
where he lives would make property a qualification for public office.
(2)In Sabili vs. Comelec,30 the parties are in agreement that the domicile of origin of
petitioner was San Juan, Batangas. Petitioner claims that he abandoned his domicile of origin
and established his domicile of choice in Lipa City, thereby making him qualified to run for
Lipa City mayor. On the other hand, the Comelec held that no such change in domicile or
residence took place and, hence, disqualified to run for Lipa City mayor for failure to meet
the statutory one-year residency requirement under the law.
The Supreme Court ruled otherwise. Petitioners actual physical presence in Lipa City is
established not only by the presence of a place (a house and lot) he can actually live in, but

also the affidavits of various persons in Lipa City, and the Certification of a barangay
captain. Petitioners substantial
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30 G.R. No. 193261, April 24, 2012, 670 SCRA 664.
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and real interest in establishing his domicile of choice in Lipa City is also sufficiently shown
not only by the acquisition of additional property in the area and the transfer of his voter
registration, but also his participation in the communitys socio-civic and religious life, as
well as his declaration in his ITR that he is a resident thereof.
(3)In Jalosjos vs. Comelec,31 the following facts were established: In 2007, petitioner ran for
Mayor of Tampilisan, Zamboanga del Norte, and won. While serving as Tampilisan Mayor, he
bought a residential house and lot in Ipil, Zamboanga Sibugay and in September 2008 he
began occupying the house and later he was able to transfer his voters registration record
in Ipil, Zamboanga Sibugay.
In 2010, petitioner ran for Representative of the Second District of Zamboanga Sibugay and
was thereafter proclaimed winner. Nonetheless, the Comelec disqualified him as candidate
for failure to meet the statutory one-year residency requirement under the law since, by
continuing to hold the position of Mayor of Tampilisan, Zamboanga Del Norte, he should be
deemed not to have transferred his residence from that place to Ipil, Zamboanga Sibugay.
The OSG claims that under Section 17, Article VI of the Constitution, jurisdiction over this
issue lies with the HRET. The Supreme Court agreed with the OSG.
While the Constitution vests in the COMELEC the power to decide all questions affecting
elections, such power is not without limitation. It does not extend to contests relating to the
election, returns, and qualifications of members of the House of Representatives and the
Senate. The Constitution vests the resolution of these contests solely upon the appropriate
Electoral Tribunal of the Senate or the House of Representatives.
o0o
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31 G.R. No. 192474, June 26, 2012, 674 SCRA 530.
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