JULIO OZAMIZ, PETITIONER, VS. HONORABLE MARIANO ZOSA AS JUDGE OF THE COURT OF FIRST INSTANCE OF MISAMIS OCCIDENTAL AND ELEUTERIO QUIMBO, RESPONDENTS.

Petitioner Julio Ozamiz seeks to annul
an order of dismissal of respondent Honorable Mariano Zosa
as Judge of the Court of First Instance of Misamis
Occidental.

Said petitioner is a resident of the municipality
of Jimenez, province
of Misamis Occidental,
and a registered voter of Precinct No. 1 of the same municipality.  On September
30, 1967, he filed with the Court of First Instance of said
province, presided over by respondent Judge, a petition for the exclusion of
respondent Eleuterio Quimbo
from the list of voters of Precinct No. 16 of said municipality, alleging that
he is a citizen, not of the Philippines,
but of China.  At the hearing of the petition on October 7,
1967, Quimbo filed a motion to dismiss upon the
ground “that the petition fails to allege jurisdictional facts” –
namely, that he had “applied for registration” and that the same had
been “validated or approved”; that “the petition fails to
include the election registrar and members of the election board as
indispensable parties”; and that having previously exercised the right of
suffrage and been elected vice-mayor, he is “presumed to be a Filipino
citizen.” In an order of the same date, respondent Judge granted the
motion and dismissed the petition for exclusion, without costs, upon the theory
that the court “has no jurisdiction to inquire into the citizenship”
of Quimbo and “that an inquiry” into such
question “does not come within the purview of Secs.
7 and 15, Republic Act No. 3588 and Sec. 123 of the Revised Election Code,
Republic Act 180, as amended,” in view of the summary nature of such proceedings.  A reconsideration of said order having been
denied, petitioner commenced the present action, alleging that respondent Judge
had acted with grave abuse of discretion in issuing the order of October 7,
1967, and, accordingly, prayed that the same be annulled.

More specifically, petitioner maintains that, in proceedings for
the exclusion of voters, the court may pass upon any question necessary to
decide the issue therein raised, including the question of citizenship of the
person sought to be stricken from the list of voters, if the determination of
said issue depends – as in the case at bar – upon his political status; and
that, if the exclusion case were heard on the merits, he would introduce the
documentary evidence attached to the petition herein, showing:  (1) that, according to the records in the
office of the local civil registrar of Jimenez, Misamis
Occidental, Eleuterio Quimbo
was born a Chinese citizen, the legitimate son of Laureano
Quimbo, born in “Amoy, China,” and Angela Azcuna, born in said municipality of Jimenez; and (2) that unlike
his brothers, Pedro and Camilo Quimbo,
and their mother, Angela Azcuna – after the death of
her husband – who filed the requisite affidavits of election of Philippine
citizenship and took their respective oaths of allegiance to the Republic of
the Philippines, Eleuterio Quimbo
had filed no such affidavit of election of Philippine citizenship.

In his unverified answer to the petition herein, respondent Quimbo, inter alia,
adopted and reiterated the allegations made, on his behalf, by the Provincial
Fiscal of Misamis Occidental, in his likewise,
unverified answer to the petition for exclusion, to the effect that his father,
Laureano Quimbo:  “was born in Mandawe,
Cebu, as an illegitimate son of Victoria Quimbo (deceased), who was a Filipino citizen”; that,
accordingly, Laureano Quimbo
had followed the Philippine citizenship of his mother; and that his son, Eleuterio Quimbo, did not have to
elect, therefore, such citizenship.  Said
respondent averred, also, that “the issue at bar has become purely
academic,” inasmuch as the 1967 elections – to which said petition
“refers naturally” – “are over”.

Petitioner’s contention is well taken, inasmuch as the authority
to order the inclusion in or exclusion from the list of voters necessarily
carries with it the power to inquire into and settle all matters essential to
the exercise of said authority, unless the law provides otherwise.  We are not aware of, and respondents have not
pointed out, any such law.  Apparently,
respondent Judge could not conceive that so important an attribute as one’s
nationality could be left for determination in an exclusion proceeding,
considering the summary nature thereof, and that the decision therein of the
Court of First Instance is not – he thought – appealable
to a higher court.  This process of
reasoning overlooks, however, the fact that – except insofar as the right to
remain in the list of voters for the elections in relation to which the
proceedings had been held -said decision does not constitute res adjudicata, not
only as regards the nationality of the person concerned, but, even as to his
right to vote.  In other words, whatever
said decision may be, it would neither be conclusive on his political status,
nor bar subsequent proceedings on his right to be registered as a voter in any
other election.  Thus, in Tan Cohon v. Election Registrar,^[1]
this Court, speaking through Mr. Justice Barredo,
stated:

“x x x in
view of the fact that the two matters involved in the assigned alleged errors
are of public interest, those of inclusion in the permanent list of voters and
of the alleged Filipino citizenship of appellant (Abañil,
et al. v. Justice of the Peace Court of Bacolod, Negros Occidental, et al. , 70 Phil. 28), it is made clear
that even as it is here held that the order of the City Court in question has
become final, the same does not constitute res
adjudicata as to any of the matters therein
contained.  It is ridiculous to suppose
that such an important and often intricate matter of citizenship may be passed
upon and determined with finality in such a summary and peremptory proceeding
as that of inclusion and exclusion of persons in the registry list of
voters.  Even if the City Court had
granted appellant’s petition for inclusion in the permanent list of voters on
the allegation that she is a Filipino citizen qualified to vote, her alleged
Filipino citizenship would still have been left open to question.”

Insofar as decisions in cases of exclusion do not bar subsequent
litigations or constitute res adjudicata, the foregoing view reiterates that taken in
Mayor v. Villacete,^[2]
on May 31, 1961, and first
expressed, on December 29, 1928,
in Nuval v. Guray.^[3]

We have not overlooked the fact that the Mayor case was dismissed
upon the ground that it had become academic, in that the case served no
useful purpose, since it sought to dispute the lower court’s order of
exclusion insofar as the 1959 elections were concerned, and said elections had
taken place before the Supreme Court could render its decision.  It should be noted, however, that the
exclusion proceedings involved therein were held under Rep. Act No. 180, known
as the Revised Election Code, pursuant to which a list of voters was prepared
for each election, regular or special (Rep. Act No. 180, sections 101
and 102).  The case at bar refers,
however, to proceedings conducted under Rep. Act No. 3588, as amended by Rep.
Acts Nos. 4730 and 5178, the main feature of which is the establishment of a permanent
list of voters, substantially distinct and different from that provided for in
the Revised Election Code.  Under such
Code, the inclusion and exclusion proceedings were held in connection with the preparation
of the list of voters for each election, so that, after such election, the
proceedings became moot, since another list would be prepared for each
subsequent election.  Upon the other
hand, under Rep. Act No. 3588, as amended, inclusion and exclusion proceedings
take place always in relation to the contents of one and the same
list of voters, the permanent one.

It is true that, unlike the decisions of courts of first instance
in inclusion and exclusion proceedings, under Rep. Act No. 180, as amended,
which could not be appealed, those rendered under Rep. Act No. 3588, as
amended, are appealable to the Supreme Court,^[4]
and that petitioner herein contests the order complained of in a pleading
captioned “petition for certiorari“.  Inasmuch, however, as the same was filed on
November 3, 1967, or ten (10) days after notice of said order,^[5]
and, hence, within the period to appeal therefrom, We
hold that said petition may and should be regarded as one for review of the
order in question.

Then, again, in the Cohon case, a
decision of the City Court of Cebu, denying the
inclusion of Mrs. Cohon in the list of voters, was
brought for review to the Court of First Instance, which dismissed the
proceedings upon the ground that the same raised questions of fact, and that
the decision of the City Court is – pursuant to Rep. Act No. 5178 –
“immediately executory and x x
x final as to questions of fact.”
Thereupon, petitioner gave notice of her intention to appeal from said order of
dismissal.  The notice, likewise, stated
“that an appeal will also x x x be taken from the order of the City Court x x x.” In the Supreme Court,
appellant assailed, however, not the order of dismissal of the Court of
First Instance, but the decision of the City Court.  After finding that the Court of First Instance
had not erred in dismissing the case and that the records did not disclose
any appeal taken from the decision of the City Court, We held it
“impossible” for Us to consider the errors allegedly committed by the
latter.  As a consequence, the ruling
therein made is not controlling on the question whether the case at bar should
be dismissed as moot, by reason of the fact that the 1967 and 1969 elections
have taken place long ago.

In this connection, Dr. Jose P. Laurel – a foremost constitutionalist
and one of the outstanding framers of our Fundamental Law, whose wealth of
experience in the practical operation of our political system is acknowledged –
had the following to say, on behalf of the Court, in Abañil
v. Justice of the Peace Court of Bacolod^[6]:

“While the present controversy may seem academic because the
1938 election is over, we have nevertheless assumed the task of deciding the
same on its merits in view of the imperative necessity and importance of having
a correct electoral census in the municipality of Talisay,
Negros Occidental, and for that matter in any
municipality or city in the Philippines, for use in future elections.  In the scheme of our present republican
government, the people are allowed to have a voice therein through the instrumentality
of suffrage to be availed of by those possessing certain prescribe
qualifications (Article V, Constitution of the Philippines;
sections 93 and 94, Election Code).  The
people in clothing a citizen with the elective franchise for the purpose of securing
a consistent and perpetual administration of the government they ordain, charge
him with the performance of a duty in the nature of a public trust, and in that
respect constitute him a representative of the whole people.  This duty requires that the privilege thus
bestowed should be exercised, not exclusively for the benefit of the citizen or
class of citizens professing it, but in good faith and with an intelligent zeal
for the general benefit and welfare of the state.  (U.S.
vs. Cruikshank, 92 U.S.,
588.) In the last analysis, therefore, the inclusion in or exclusion from the
permanent electoral list of any voter concerns not only the latter in his
individual capacity but the public in general.”

The considerations that impelled this Court to decide the Abañil case on the merits, despite the fact that the
election therein contemplated was over, acquire greater significance in the
present case.  Indeed, the right of
suffrage involved therein is dependent upon the question whether or not
respondent Eleuterio Quimbo
is a foreigner, and our laws are particularly, as well as justifiably,
concerned about any form of alien intervention in our political life, whereas
the Abañil case hinged merely on the ability of some Filipinos
to prepare their own ballots as one of the requirements for the possession and
exercise of the right of suffrage.

Needless to stress, this right is but an attribute of
sovereignty, which, in a democratic state, particularly one of the republican
type, like ours, resides in the Filipino people, and “it is
elementary that such sovereignty be exercised exclusively by
nationals.”^[7]
For this reason, it has been deemed necessary to warn courts “that they
should ever endeavor to bar the possibility that judicial proceedings
should be utilized to circumvent the policy of our constitution and laws, even
temporarily.”^[8]
In the case at bar, by adopting a theory -neither supported by any statute,
decision or legal principle, nor advanced by any of the parties, who thus
impliedly accept the jurisdiction of the lower court – the same allowed
respondent Quimbo to vote in two (2) general
elections, despite the debatable nature of his right to participate
therein.  What is more, he would, also,
manage to participate in the processes for the amendment or revision of no less
than our Fundamental Law, soon scheduled to begin, even if he were not entitled
thereto, unless the exclusion proceedings against him were finally disposed of
soon enough, and this is likely to suffer delays, if the present case were dismissed
as moot, to give way to a new proceeding for his exclusion.

WHEREFORE, the order complained of is hereby set aside,
and respondent Judge or the Court of First Instance of Misamis
Occidental is hereby directed to immediately hear and decide on the merits the
petition for exclusion of respondent Eleuterio Quimbo, with the costs of this instance against him.

IT IS SO ORDERED.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, and Villamor, JJ., concur.

Castro, Teehankee, and Barredo, JJ., in the result.

Makasiar, J., did not take part.

^[1] L-29166,
August 29, 1969.

^[2] L-16190
and L-16369.

^[3] 52
Phil. 645, 648.

^[4] Tan
Cohon v.
Election Registrar, supra.

^[5] October 24, 1967.

^[6] 70
Phil. 28, 30-31.

^[7] Co
Chiong v. Cuaderno, 83 Phil. 242, 251; italics supplied.

^[8] Board
of Commissioners v. Domingo, L-21274,
July 31, 1963.