Professional Documents
Culture Documents
Perez (J) Sereno (CJ) Velasco Jr. (J) Leonen (J) Jardeleza (J) Caguioa (J) Carpio (J) Brion (J) Del Castillo (J) Perlas-Bernabe (J) Leonardo-De Castro (J)
Perez (J) Sereno (CJ) Velasco Jr. (J) Leonen (J) Jardeleza (J) Caguioa (J) Carpio (J) Brion (J) Del Castillo (J) Perlas-Bernabe (J) Leonardo-De Castro (J)
221697 &
221698-700, March 8, 2016
♦ Decision, Perez [J]
♦ Concurring Opinion, Sereno [CJ] Velasco Jr. [J] Leonen [J] Jardeleza [J]
♦ Separate Concurring Opinion, Caguioa [J]
♦ Dissenting Opinion, Carpio [J] Brion [J] Del Castillo [J] Perlas-Bernabe [J]
♦ Separate Dissenting Opinion, Leonardo-De Castro [J]
EN BANC
March 8, 2016
x-----------------------x
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation to
Rule 65 of the Rules of Court with extremely urgent application for an ex
parte issuance of temporary restraining order/status quo ante order and/or
writ of preliminary injunction assailing the following: (1) 1 December 2015
Resolution of the Commission on Elections (COMELEC) Second Division; (2)
23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001
(DC); (3) 11 December 2015 Resolution of the COMELEC First Division; and
( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-
002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having been
issued without jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction.
The Facts
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley
Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed
a petition for her adoption with the Municipal Trial Court (MTC) of San Juan
City. On 13 May 1974, the trial court granted their petition and ordered that
petitioner's name be changed from "Mary Grace Natividad Contreras
Militar" to "Mary Grace Natividad Sonora Poe." Although necessary
notations were made by OCR-Iloilo on petitioner's foundling certificate
reflecting the court decreed adoption,2 the petitioner's adoptive mother
discovered only sometime in the second half of 2005 that the lawyer who
handled petitioner's adoption failed to secure from the OCR-Iloilo a new
Certificate of Live Birth indicating petitioner's new name and the name of her
adoptive parents. 3 Without delay, petitioner's mother executed an affidavit
attesting to the lawyer's omission which she submitted to the OCR-Iloilo. On 4
May 2006, OCR-Iloilo issued a new Certificate of Live Birth in the name of
Mary Grace Natividad Sonora Poe.4
Having reached the age of eighteen (18) years in 1986, petitioner registered as
a voter with the local COMELEC Office in San Juan City. On 13 December
1986, she received her COMELEC Voter's Identification Card for Precinct
No. 196 in Greenhills, San Juan, Metro Manila.5
On 4 April 1988, petitioner applied for and was issued Philippine Passport No.
F9272876 by the Department of Foreign Affairs (DFA). Subsequently, on 5
April 1993 and 19 May 1998, she renewed her Philippine passport and
respectively secured Philippine Passport Nos. L881511 and DD156616.7
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel
(Brian) on 16 April 1992.12 Her two daughters Hanna MacKenzie (Hanna)
and Jesusa Anika (Anika) were both born in the Philippines on 10 July 1998
and 5 June 2004, respectively. 13
On 8 April 2004, the petitioner came back to the Philippines together with
Hanna to support her father's candidacy for President in the May 2004
elections. It was during this time that she gave birth to her youngest daughter
Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed back
to the Philippines upon learning of her father's deteriorating medical
condition. 17 Her father slipped into a coma and eventually expired. The
petitioner stayed in the country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in the settlement of his
estate.18
According to the petitioner, the untimely demise of her father was a severe
blow to her entire family. In her earnest desire to be with her grieving mother,
the petitioner and her husband decided to move and reside permanently in the
Philippines sometime in the first quarter of 2005.19 The couple began
preparing for their resettlement including notification of their children's
schools that they will be transferring to Philippine schools for the next
semester;20 coordination with property movers for the relocation of their
household goods, furniture and cars from the U.S. to the Philippines;21 and
inquiry with Philippine authorities as to the proper procedure to be followed
in bringing their pet dog into the country.22 As early as 2004, the petitioner
already quit her job in the U.S.23
The petitioner and her children briefly stayed at her mother's place until she
and her husband purchased a condominium unit with a parking slot at One
Wilson Place Condominium in San Juan City in the second half of 2005.27 The
corresponding Condominium Certificates of Title covering the unit and
parking slot were issued by the Register of Deeds of San Juan City to
petitioner and her husband on 20 February 2006.28 Meanwhile, her children
of school age began attending Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise
the disposal of some of the family's remaining household belongings.29 She
travelled back to the Philippines on 11 March 2006.30
In late March 2006, petitioner's husband officially informed the U.S. Postal
Service of the family's change and abandonment of their address in the
U.S.31 The family home was eventually sold on 27 April 2006.32 Petitioner's
husband resigned from his job in the U.S. in April 2006, arrived in the
country on 4 May 2006 and started working for a major Philippine company
in July 2006.33
In early 2006, petitioner and her husband acquired a 509-square meter lot in
Corinthian Hills, Quezon City where they built their family home34 and to this
day, is where the couple and their children have been residing.35 A Transfer
Certificate of Title covering said property was issued in the couple's name by
the Register of Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the
Philippines pursuant to Republic Act (R.A.) No. 9225 or the Citizenship
Retention and Re-acquisition Act of 2003.36 Under the same Act, she filed with
the Bureau of Immigration (BI) a sworn petition to reacquire Philippine
citizenship together with petitions for derivative citizenship on behalf of her
three minor children on 10 July 2006.37 As can be gathered from its 18 July
2006 Order, the BI acted favorably on petitioner's petitions and declared that
she is deemed to have reacquired her Philippine citizenship while her children
are considered as citizens of the Philippines.38 Consequently, the BI issued
Identification Certificates (ICs) in petitioner's name and in the names of her
three (3) children. 39
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S.
Embassy in Manila an "Oath/Affirmation of Renunciation of Nationality of
the United States."49 On that day, she accomplished a sworn questionnaire
before the U.S. Vice Consul wherein she stated that she had taken her oath as
MTRCB Chairperson on 21 October 2010 with the intent, among others, of
relinquishing her American citizenship.50 In the same questionnaire, the
petitioner stated that she had resided outside of the U.S., specifically in the
Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to
present.51
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of
Candidacy (COC) for Senator for the 2013 Elections wherein she answered "6
years and 6 months" to the question "Period of residence in the Philippines
before May 13, 2013."53 Petitioner obtained the highest number of votes and
was proclaimed Senator on 16 May 2013. 54
On 15 October 2015, petitioner filed her COC for the Presidency for the May
2016 Elections. 56 In her COC, the petitioner declared that she is a natural-
born citizen and that her residence in the Philippines up to the day before 9
May 2016 would be ten (10) years and eleven (11) months counted from 24
May 2005.57 The petitioner attached to her COC an "Affidavit Affirming
Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary
public in Quezon City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections
triggered the filing of several COMELEC cases against her which were the
subject of these consolidated cases.
A day after petitioner filed her COC for President, Estrella Elamparo
(Elamparo) filed a petition to deny due course or cancel said COC which was
docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second
Division.59 She is convinced that the COMELEC has jurisdiction over her
petition.60 Essentially, Elamparo's contention is that petitioner committed
material misrepresentation when she stated in her COC that she is a natural-
born Filipino citizen and that she is a resident of the Philippines for at least
ten (10) years and eleven (11) months up to the day before the 9 May 2016
Elections.61
(1) the COMELEC did not have jurisdiction over Elamparo's petition as it
was actually a petition for quo warranto which could only be filed if Grace Poe
wins in the Presidential elections, and that the Department of Justice (DOJ)
has primary jurisdiction to revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not contain
allegations which, if hypothetically admitted, would make false the statement
in her COC that she is a natural-born Filipino citizen nor was there any
allegation that there was a willful or deliberate intent to misrepresent on her
part;
(3) she did not make any material misrepresentation in the COC regarding
her citizenship and residency qualifications for:
e. the burden was on Elamparo in proving that she did not possess natural-
born status;
After the parties submitted their respective Memoranda, the petition was
deemed submitted for resolution.
This case stemmed from three (3) separate petitions filed by Francisco S.
Tatad (Tatad), Antonio P. Contreras (Contreras) and Amado D. Valdez
(Valdez) against petitioner before the COMELEC which were consolidated
and raffled to its First Division.
Tatad theorized that since the Philippines adheres to the principle of jus
sanguinis, persons of unknown parentage, particularly foundlings, cannot be
considered natural-born Filipino citizens since blood relationship is
determinative of natural-born status.73 Tatad invoked the rule of statutory
construction that what is not included is excluded. He averred that the fact
that foundlings were not expressly included in the categories of citizens in the
193 5 Constitution is indicative of the framers' intent to exclude
them.74 Therefore, the burden lies on petitioner to prove that she is a natural-
born citizen.75
Referring to petitioner's COC for Senator, Tatad concluded that she did not
comply with the ten (10) year residency requirement.80 Tatad opined that
petitioner acquired her domicile in Quezon City only from the time she
renounced her American citizenship which was sometime in 2010 or
2011.81 Additionally, Tatad questioned petitioner's lack of intention to
abandon her U.S. domicile as evinced by the fact that her husband stayed
thereat and her frequent trips to the U.S.82
In support of his petition to deny due course or cancel the COC of petitioner,
docketed as SPA No. 15-139 (DC), Valdez alleged that her repatriation under
R.A. No. 9225 did not bestow upon her the status of a natural-born
citizen.83 He advanced the view that former natural-born citizens who are
repatriated under the said Act reacquires only their Philippine citizenship and
will not revert to their original status as natural-born citizens.84
He further argued that petitioner's own admission in her COC for Senator
that she had only been a resident of the Philippines for at least six (6) years
and six (6) months prior to the 13 May 2013 Elections operates against her.
Valdez rejected petitioner's claim that she could have validly reestablished
her domicile in the Philippines prior to her reacquisition of Philippine
citizenship. In effect, his position was that petitioner did not meet the ten (10)
year residency requirement for President.
First, Tatad's petition should be dismissed outright for failure to state a cause
of action. His petition did not invoke grounds proper for a disqualification
case as enumerated under Sections 12 and 68 of the Omnibus Election
Code.89 Instead, Tatad completely relied on the alleged lack of residency and
natural-born status of petitioner which are not among the recognized grounds
for the disqualification of a candidate to an elective office.90
Second, the petitions filed against her are basically petitions for quo
warranto as they focus on establishing her ineligibility for the Presidency.91 A
petition for quo warranto falls within the exclusive jurisdiction of the
Presidential Electoral Tribunal (PET) and not the COMELEC.92
Third, the burden to prove that she is not a natural-born Filipino citizen is on
the respondents.93 Otherwise stated, she has a presumption in her favor that
she is a natural-born citizen of this country.
Fifth, she claimed that as a natural-born citizen, she has every right to be
repatriated under R.A. No. 9225 or the right to reacquire her natural-born
status.96 Moreover, the official acts of the Philippine Government enjoy the
presumption of regularity, to wit: the issuance of the 18 July 2006 Order of
the BI declaring her as natural-born citizen, her appointment as MTRCB
Chair and the issuance of the decree of adoption of San Juan RTC.97 She
believed that all these acts reinforced her position that she is a natural-born
citizen of the Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she started
reestablishing her domicile of choice in the Philippines as demonstrated by
her children's resettlement and schooling in the country, purchase of a
condominium unit in San Juan City and the construction of their family home
in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of choice in
the Philippines even before she renounced her American citizenship as long as
the three determinants for a change of domicile are complied with.100 She
reasoned out that there was no requirement that renunciation of foreign
citizenship is a prerequisite for the acquisition of a new domicile of choice.101
Eighth, she reiterated that the period appearing in the residency portion of
her COC for Senator was a mistake made in good faith.102
The procedure and the conclusions from which the questioned Resolutions
emanated are tainted with grave abuse of discretion amounting to lack of
jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in
the 9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner
should be denied due course or cancelled "on the exclusive ground" that she
made in the certificate a false material representation. The exclusivity of the
ground should hedge in the discretion of the COMELEC and restrain it from
going into the issue of the qualifications of the candidate for the position, if, as
in this case, such issue is yet undecided or undetermined by the proper
authority. The COMELEC cannot itself, in the same cancellation case, decide
the qualification or lack thereof of the candidate.
Section 2. The Commission on Elections shall exercise the following powers and
functions:
(1) Enforce and administer all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and
city officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.
(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling
places, appointment of election officials and inspectors, and registration of
voters.
(4) Deputize, with the concurrence of the President, law enforcement agencies
and instrumentalities of the Government, including the Armed Forces of the
Philippines, for the exclusive purpose of ensuring free, orderly, honest,
peaceful, and credible elections.
(6) File, upon a verified complaint, or on its own initiative, petitions in court
for inclusion or exclusion of voters; investigate and, where appropriate,
prosecute cases of violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.
(8) Recommend to the President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation or
disregard of, or disobedience to its directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive report on the
conduct of each election, plebiscite, initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the
provisions of Article VI, Section 17 of the same basic law stating that:
The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members. Each Electoral
Tribunal shall be composed of nine Members, three of whom shall be Justices
of the Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the Senate or the House of Representatives,
as the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or organizations
registered under the party-list system represented therein. The senior Justice
in the Electoral Tribunal shall be its Chairman.
The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice-
President, and may promulgate its rules for the purpose.
The tribunals which have jurisdiction over the question of the qualifications of
the President, the Vice-President, Senators and the Members of the House of
Representatives was made clear by the Constitution. There is no such
provision for candidates for these positions.
Grounds for disqualification. - Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing
law or who commits any act declared by law to be grounds for disqualification
may be disqualified from continuing as a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is
no necessity for determining his eligibility for the office. In contrast, whether
an individual should be disqualified as a candidate for acts constituting
election offenses (e.g., vote buying, over spending, commission of prohibited
acts) is a prejudicial question which should be determined lest he wins
because of the very acts for which his disqualification is being sought. That is
why it is provided that if the grounds for disqualification are established, a
candidate will not be voted for; if he has been voted for, the votes in his favor
will not be counted; and if for some reason he has been voted for and he has
won, either he will not be proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g., his
citizenship or, as in this case, his domicile, may take a long time to make,
extending beyond the beginning of the term of the office. This is amply
demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence was still pending in
the COMELEC even after the elections of May 8, 1995. This is contrary to the
summary character proceedings relating to certificates of candidacy. That is why
the law makes the receipt of certificates of candidacy a ministerial duty of the
COMELEC and its officers. The law is satisfied if candidates state in their
certificates of candidacy that they are eligible for the position which they seek
to fill, leaving the determination of their qualifications to be made after the
election and only in the event they are elected. Only in cases involving charges
of false representations made in certificates of candidacy is the COMELEC
given jurisdiction.
Grounds for disqualification. -Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing
law or who commits any act declared by law to be grounds for disqualification
may be disqualified from continuing as a candidate.107
The factual issue is not who the parents of petitioner are, as their identities are
unknown, but whether such parents are Filipinos. Under Section 4, Rule 128:
The Solicitor General offered official statistics from the Philippine Statistics
Authority (PSA)111 that from 1965 to 1975, the total number of foreigners
born in the Philippines was 15,986 while the total number of Filipinos born in
the country was 10,558,278. The statistical probability that any child born in
the Philippines in that decade is natural-born Filipino was 99.83%. For her
part, petitioner presented census statistics for Iloilo Province for 1960 and
1970, also from the PSA. In 1960, there were 962,532 Filipinos and 4,734
foreigners in the province; 99.62% of the population were Filipinos. In 1970,
the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also
presented were figures for the child producing ages (15-49). In 1960, there
were 230,528 female Filipinos as against 730 female foreigners or 99.68%. In
the same year, there were 210,349 Filipino males and 886 male aliens,
or 99.58%. In 1970, there were 270,299 Filipino females versus 1, 190 female
aliens, or 99.56%. That same year, there were 245,740 Filipino males as
against only 1,165 male aliens or 99.53%. COMELEC did not dispute these
figures. Notably, Commissioner Arthur Lim admitted, during the oral
arguments, that at the time petitioner was found in 1968, the majority of the
population in Iloilo was Filipino.112
From 1965 to 1975, the total number of foreigners born in the Philippines is
15,986 while the total number of Filipinos born in the Philippines is
15,558,278. For this period, the ratio of non-Filipino children is 1:661. This
means that the statistical probability that any child born in the Philippines on
that decade would be a natural born Filipino is 99.83%.
To deny full Filipino citizenship to all foundlings and render them stateless
just because there may be a theoretical chance that one among the thousands
of these foundlings might be the child of not just one, but two, foreigners is
downright discriminatory, irrational, and unjust. It just doesn't make any
sense. Given the statistical certainty - 99.9% - that any child born in the
Philippines would be a natural born citizen, a decision denying foundlings
such status is effectively a denial of their birthright. There is no reason why
this Honorable Court should use an improbable hypothetical to sacrifice the
fundamental political rights of an entire class of human beings. Your Honor,
constitutional interpretation and the use of common sense are not separate
disciplines.
Sr. Rafols: For an amendment. I propose that after subsection 2, the following
is inserted: "The natural children of a foreign father and a Filipino mother
not recognized by the father.
xxxx
President:
[We] would like to request a clarification from the proponent of the
amendment. The gentleman refers to natural children or to any kind of
illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of
unknown parentage, natural or illegitimate children of unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes
consider them Filipino, that is, I refer to the Spanish Code wherein all
children of unknown parentage born in Spanish territory are considered
Spaniards, because the presumption is that a child of unknown parentage is
the son of a Spaniard. This may be applied in the Philippines in that a child of
unknown parentage born in the Philippines is deemed to be Filipino, and
there is no need ...
Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to
be Filipino.
Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for
amendment.
Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized
by one, or the children of unknown parentage."
Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown
parentage.
Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize
the child, is not unknown.
President:
Does the gentleman accept the amendment or not?
Sr. Rafols:
I do not accept the amendment because the amendment would exclude the
children of a Filipina with a foreigner who does not recognize the child. Their
parentage is not unknown and I think those of overseas Filipino mother and
father [whom the latter] does not recognize, should also be considered as
Filipinos.
President:
The question in order is the amendment to the amendment from the
Gentleman from Cebu, Mr. Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the
hands of the Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in
between, that the constitution need [not] refer to them. By international law the
principle that children or people born in a country of unknown parents are
citizens in this nation is recognized, and it is not necessary to include a provision
on the subject exhaustively.116
Though the Rafols amendment was not carried out, it was not because there
was any objection to the notion that persons of "unknown parentage" are not
citizens but only because their number was not enough to merit specific
mention. Such was the account,117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:
This explanation was likewise the position of the Solicitor General during the
16 February 2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what was
declined was the proposal for a textual and explicit recognition of foundlings
as Filipinos. And so, the way to explain the constitutional silence is by saying
that it was the view of Montinola and Roxas which prevailed that there is no
more need to expressly declare foundlings as Filipinos.
The Solicitor General makes the further point that the framers "worked to
create a just and humane society," that "they were reasonable patriots and
that it would be unfair to impute upon them a discriminatory intent against
foundlings." He exhorts that, given the grave implications of the argument
that foundlings are not natural-born Filipinos, the Court must search the
records of the 1935, 1973 and 1987 Constitutions "for an express intention to
deny foundlings the status of Filipinos. The burden is on those who wish to use
the constitution to discriminate against foundlings to show that the
constitution really intended to take this path to the dark side and inflict this
across the board marginalization."
Domestic laws on adoption also support the principle that foundlings are
Filipinos. These laws do not provide that adoption confers citizenship upon
the adoptee. Rather, the adoptee must be a Filipino in the first place to be
adopted. The most basic of such laws is Article 15 of the Civil Code which
provides that "[l]aws relating to family rights, duties, status, conditions, legal
capacity of persons are binding on citizens of the Philippines even though
living abroad." Adoption deals with status, and a Philippine adoption court
will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v.
Republic,119 a child left by an unidentified mother was sought to be adopted by
aliens. This Court said:
Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing
the Rules to Govern the Inter-Country Adoption of Filipino Children and For
Other Purposes" (otherwise known as the "Inter-Country Adoption Act of
1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies on
the Adoption of Filipino Children and For Other Purposes" (otherwise known
as the Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC
or the "Rule on Adoption," all expressly refer to "Filipino children" and
include foundlings as among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a foundling
leading to the issuance of a foundling certificate under these laws and the
issuance of said certificate are acts to acquire or perfect Philippine citizenship
which make the foundling a naturalized Filipino at best. This is erroneous.
Under Article IV, Section 2 "Natural-born citizens are those who are citizens
of the Philippines from birth without having to perform any act to acquire or
perfect their Philippine citizenship." In the first place, "having to perform an
act" means that the act must be personally done by the citizen. In this
instance, the determination of foundling status is done not by the child but by
the authorities.121 Secondly, the object of the process is the determination of
the whereabouts of the parents, not the citizenship of the child. Lastly, the
process is certainly not analogous to naturalization proceedings to acquire
Philippine citizenship, or the election of such citizenship by one born of an
alien father and a Filipino mother under the 1935 Constitution, which is an
act to perfect it.
In this instance, such issue is moot because there is no dispute that petitioner
is a foundling, as evidenced by a Foundling Certificate issued in her
favor.122 The Decree of Adoption issued on 13 May 1974, which approved
petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley Poe,
expressly refers to Emiliano and his wife, Rosario Militar, as her "foundling
parents," hence effectively affirming petitioner's status as a foundling.123
Foundlings are likewise citizens under international law. Under the 1987
Constitution, an international law can become part of the sphere of domestic
law either by transformation or incorporation. The transformation method
requires that an international law be transformed into a domestic law through
a constitutional mechanism such as local legislation.124 On the other hand,
generally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the land
even if they do not derive from treaty obligations. Generally accepted
principles of international law include international custom as evidence of a
general practice accepted as law, and general principles of law recognized by
civilized nations.125 International customary rules are accepted as binding as a
result from the combination of two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known
as the opinionjuris sive necessitates (opinion as to law or necessity). Implicit in
the latter element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it.126 "General principles
of law recognized by civilized nations" are principles "established by a
process of reasoning" or judicial logic, based on principles which are "basic to
legal systems generally,"127 such as "general principles of equity, i.e., the
general principles of fairness and justice," and the "general principle against
discrimination" which is embodied in the "Universal Declaration of Human
Rights, the International Covenant on Economic, Social and Cultural Rights,
the International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention Against Discrimination in Education, the
Convention (No. 111) Concerning Discrimination in Respect of Employment
and Occupation."128 These are the same core principles which underlie the
Philippine Constitution itself, as embodied in the due process and equal
protection clauses of the Bill of Rights.129
The Philippines has also ratified the UN Convention on the Rights of the Child
(UNCRC). Article 7 of the UNCRC imposes the following obligations on our
country:
Article 7
1. The child shall be registered immediately after birth and shall have the
right from birth to a name, the right to acquire a nationality and as far as
possible, the right to know and be cared for by his or her parents.
In 1986, the country also ratified the 1966 International Covenant on Civil
and Political Rights (ICCPR). Article 24 thereof provide for the right of every
child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex,
language, religion, national or social origin, property or birth, the right, to
such measures of protection as are required by his status as a minor, on the
part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a
name.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Philippines to grant nationality from birth and ensure that no child is
stateless. This grant of nationality must be at the time of birth, and it cannot
be accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which
require the applicant to be at least eighteen (18) years old.
Article 14
A child whose parents are both unknown shall have the nationality of the
country of birth. If the child's parentage is established, its nationality shall be
determined by the rules applicable in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on
the territory of the State in which it was found. (Underlining supplied)
The second is the principle that a foundling is presumed born of citizens of the
country where he is found, contained in Article 2 of the 1961 United Nations
Convention on the Reduction of Statelessness:
Article 2
That the Philippines is not a party to the 1930 Hague Convention nor to the
1961 Convention on the Reduction of Statelessness does not mean that their
principles are not binding. While the Philippines is not a party to the 1930
Hague Convention, it is a signatory to the Universal Declaration on Human
Rights, Article 15(1) ofwhich131 effectively affirms Article 14 of the 1930
Hague Convention. Article 2 of the 1961 "United Nations Convention on the
Reduction of Statelessness" merely "gives effect" to Article 15(1) of the
UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had not
signed or ratified the "International Convention for the Protection of All
Persons from Enforced Disappearance." Yet, we ruled that the proscription
against enforced disappearances in the said convention was nonetheless
binding as a "generally accepted principle of international law." Razon v.
Tagitis is likewise notable for declaring the ban as a generally accepted
principle of international law although the convention had been ratified by
only sixteen states and had not even come into force and which needed the
ratification of a minimum of twenty states. Additionally, as petitioner points
out, the Court was content with the practice of international and regional
state organs, regional state practice in Latin America, and State Practice in
the United States.
Another case where the number of ratifying countries was not determinative
is Mijares v. Ranada, 134 where only four countries had "either ratified or
acceded to"135 the 1966 "Convention on the Recognition and Enforcement of
Foreign Judgments in Civil and Commercial Matters" when the case was
decided in 2005. The Court also pointed out that that nine member countries
of the European Common Market had acceded to the Judgments Convention.
The Court also cited U.S. laws and jurisprudence on recognition of foreign
judgments. In all, only the practices of fourteen countries were considered and
yet, there was pronouncement that recognition of foreign judgments was
widespread practice.
Our approach in Razon and Mijares effectively takes into account the fact that
"generally accepted principles of international law" are based not only on
international custom, but also on "general principles of law recognized by
civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of
the ICJ Statute. Justice, fairness, equity and the policy against discrimination,
which are fundamental principles underlying the Bill of Rights and which are
"basic to legal systems generally,"136 support the notion that the right against
enforced disappearances and the recognition of foreign judgments, were
correctly considered as "generally accepted principles of international law"
under the incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North and
South America, and Europe have passed legislation recognizing foundlings as
its citizen. Forty-two (42) of those countries follow the jus sanguinis regime.
Of the sixty, only thirty-three (33) are parties to the 1961 Convention on
Statelessness; twenty-six (26) are not signatories to the Convention. Also, the
Chief Justice, at the 2 February 2016 Oral Arguments pointed out that in 166
out of 189 countries surveyed (or 87.83%), foundlings are recognized as
citizens. These circumstances, including the practice of jus
sanguinis countries, show that it is a generally accepted principle of
international law to presume foundlings as having been born of nationals of
the country in which the foundling is found.
Adopting these legal principles from the 1930 Hague Convention and the 1961
Convention on Statelessness is rational and reasonable and consistent with
the jus sanguinis regime in our Constitution. The presumption of natural-born
citizenship of foundlings stems from the presumption that their parents are
nationals of the Philippines. As the empirical data provided by the PSA show,
that presumption is at more than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter
of nationality of foundlings were designed to address the plight of a
defenseless class which suffers from a misfortune not of their own making. We
cannot be restrictive as to their application if we are a country which calls
itself civilized and a member of the community of nations. The Solicitor
General's warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court that
those treaties and conventions were drafted because the world community is
concerned that the situation of foundlings renders them legally invisible. It
would be tragically ironic if this Honorable Court ended up using the
international instruments which seek to protect and uplift foundlings a tool to
deny them political status or to accord them second-class citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006 under
the provisions of R.A. No. 9225 did not result in the reacquisition of natural-
born citizenship. The COMELEC reasoned that since the applicant must
perform an act, what is reacquired is not "natural-born" citizenship but only
plain "Philippine citizenship."
In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as
follows:
R.A. No. 9225 is a repatriation statute and has been described as such in
several cases. They include Sobejana-Condon v. COMELEC141 where we
described it as an "abbreviated repatriation process that restores one's Filipino
citizenship x x x." Also included is Parreno v. Commission on Audit,142 which
cited Tabasa v. Court of Appeals,143 where we said that "[t]he repatriation of
the former Filipino will allow him to recover his natural-born
citizenship. Parreno v. Commission on Audit144 is categorical that "if petitioner
reacquires his Filipino citizenship (under R.A. No. 9225), he will ... recover his
natural-born citizenship."
It is apparent from the enumeration of who are citizens under the present
Constitution that there are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in accordance with law. A
citizen who is not a naturalized Filipino, ie., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a
natural-born Filipino. Noteworthy is the absence in said enumeration of a
separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized depending on the reasons for
the loss of their citizenship and the mode prescribed by the applicable law for
the reacquisition thereof. As respondent Cruz was not required by law to go
through naturalization proceedings in order to reacquire his citizenship, he is
perforce a natural-born Filipino. As such, he possessed all the necessary
qualifications to be elected as member of the House of Representatives.146
Lastly, it was repeatedly pointed out during the oral arguments that petitioner
committed a falsehood when she put in the spaces for "born to" in her
application for repatriation under R.A. No. 9225 the names of her adoptive
parents, and this misled the BI to presume that she was a natural-born
Filipino. It has been contended that the data required were the names of her
biological parents which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted.
One of the effects of adoption is "to sever all legal ties between the biological
parents and the adoptee, except when the biological parent is the spouse of the
adoptee."149 Under R.A. No. 8552, petitioner was also entitled to an amended
birth certificate "attesting to the fact that the adoptee is the child of the
adopter(s)" and which certificate "shall not bear any notation that it is an
amended issue."150 That law also requires that "[a]ll records, books, and
papers relating to the adoption cases in the files of the court, the Department
[of Social Welfare and Development], or any other agency or institution
participating in the adoption proceedings shall be kept strictly
confidential."151 The law therefore allows petitioner to state that her adoptive
parents were her birth parents as that was what would be stated in her birth
certificate anyway. And given the policy of strict confidentiality of adoption
records, petitioner was not obligated to disclose that she was an adoptee.
On Residence
The tainted process was repeated in disposing of the issue of whether or not
petitioner committed false material representation when she stated in her
COC that she has before and until 9 May 2016 been a resident of the
Philippines for ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and
eleven (11) months on the day before the 2016 elections, is true.
When petitioner immigrated to the U.S. in 1991, she lost her original domicile,
which is the Philippines. There are three requisites to acquire a new domicile:
1. Residence or bodily presence in a new locality; 2. an intention to remain
there; and 3. an intention to abandon the old domicile.152 To successfully effect
a change of domicile, one must demonstrate an actual removal or an actual
change of domicile; a bona fide intention of abandoning the former place of
residence and establishing a new one and definite acts which correspond with
the purpose. In other words, there must basically be animus manendi coupled
with animus non revertendi. The purpose to remain in or at the domicile of
choice must be for an indefinite period of time; the change of residence must
be voluntary; and the residence at the place chosen for the new domicile must
be actual.153
Petitioner presented voluminous evidence showing that she and her family
abandoned their U.S. domicile and relocated to the Philippines for good.
These evidence include petitioner's former U.S. passport showing her arrival
on 24 May 2005 and her return to the Philippines every time she travelled
abroad; e-mail correspondences starting in March 2005 to September 2006
with a freight company to arrange for the shipment of their household items
weighing about 28,000 pounds to the Philippines; e-mail with the Philippine
Bureau of Animal Industry inquiring how to ship their dog to the Philippines;
school records of her children showing enrollment in Philippine schools
starting June 2005 and for succeeding years; tax identification card for
petitioner issued on July 2005; titles for condominium and parking slot issued
in February 2006 and their corresponding tax declarations issued in April
2006; receipts dated 23 February 2005 from the Salvation Army in the U.S.
acknowledging donation of items from petitioner's family; March 2006 e-mail
to the U.S. Postal Service confirming request for change of address; final
statement from the First American Title Insurance Company showing sale of
their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire
submitted to the U.S. Embassy where petitioner indicated that she had been a
Philippine resident since May 2005; affidavit from Jesusa Sonora Poe
(attesting to the return of petitioner on 24 May 2005 and that she and her
family stayed with affiant until the condominium was purchased); and
Affidavit from petitioner's husband (confirming that the spouses jointly
decided to relocate to the Philippines in 2005 and that he stayed behind in the
U.S. only to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed by the
COMELEC, particularly in its Resolution in the Tatad, Contreras and Valdez
cases.
It is obvious that because of the sparse evidence on residence in the four cases
cited by the respondents, the Court had no choice but to hold that residence
could be counted only from acquisition of a permanent resident visa or from
reacquisition of Philippine citizenship. In contrast, the evidence of petitioner
is overwhelming and taken together leads to no other conclusion that she
decided to permanently abandon her U.S. residence (selling the house, taking
the children from U.S. schools, getting quotes from the freight company,
notifying the U.S. Post Office of the abandonment of their address in the U.S.,
donating excess items to the Salvation Army, her husband resigning from U.S.
employment right after selling the U.S. house) and permanently relocate to the
Philippines and actually re-established her residence here on 24 May 2005
(securing T.I.N, enrolling her children in Philippine schools, buying property
here, constructing a residence here, returning to the Philippines after all trips
abroad, her husband getting employed here). Indeed, coupled with her
eventual application to reacquire Philippine citizenship and her family's
actual continuous stay in the Philippines over the years, it is clear that when
petitioner returned on 24 May 2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she had
entered the Philippines visa-free as a balikbayan. A closer look at R.A. No.
6768 as amended, otherwise known as the "An Act Instituting a Balikbayan
Program," shows that there is no overriding intent to treat balikbayans as
temporary visitors who must leave after one year. Included in the law is a
former Filipino who has been naturalized abroad and "comes or returns to
the Philippines." 163 The law institutes a balikbayan program "providing the
opportunity to avail of the necessary training to enable the balikbayan to
become economically self-reliant members of society upon their return to the
country"164 in line with the government's "reintegration
program."165 Obviously, balikbayans are not ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and help
him reintegrate into society, it would be an unduly harsh conclusion to say in
absolute terms that the balikbayan must leave after one year. That visa-free
period is obviously granted him to allow him to re-establish his life and
reintegrate himself into the community before he attends to the necessary
formal and legal requirements of repatriation. And that is exactly what
petitioner did - she reestablished life here by enrolling her children and
buying property while awaiting the return of her husband and then applying
for repatriation shortly thereafter.
That petitioner could have reckoned residence from a date earlier than the
sale of her U.S. house and the return of her husband is plausible given the
evidence that she had returned a year before. Such evidence, to repeat, would
include her passport and the school records of her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as
a binding and conclusive admission against petitioner. It could be given in
evidence against her, yes, but it was by no means conclusive. There is
precedent after all where a candidate's mistake as to period of residence made
in a COC was overcome by evidence. In Romualdez-Marcos v.
COMELEC,167 the candidate mistakenly put seven (7) months as her period of
residence where the required period was a minimum of one year. We said
that "[i]t is the fact of residence, not a statement in a certificate of candidacy
which ought to be decisive in determining whether or not an individual has
satisfied the constitutions residency qualification requirement." The
COMELEC ought to have looked at the evidence presented and see if
petitioner was telling the truth that she was in the Philippines from 24 May
2005. Had the COMELEC done its duty, it would have seen that the 2012
COC and the 2015 COC both correctly stated the pertinent period of
residency.
For another, it could not be said that petitioner was attempting to hide
anything. As already stated, a petition for quo warranto had been filed against
her with the SET as early as August 2015. The event from which the
COMELEC pegged the commencement of residence, petitioner's repatriation
in July 2006 under R.A. No. 9225, was an established fact to repeat, for
purposes of her senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in
the 2012 COC, petitioner recounted that this was first brought up in the
media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist
Alliance. Petitioner appears to have answered the issue immediately, also in
the press. Respondents have not disputed petitioner's evidence on this point.
From that time therefore when Rep. Tiangco discussed it in the media, the
stated period of residence in the 2012 COC and the circumstances that
surrounded the statement were already matters of public record and were not
hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET
petition for quo warranto. Her Verified Answer, which was filed on 1
September 2015, admitted that she made a mistake in the 2012 COC when she
put in six ( 6) years and six ( 6) months as she misunderstood the question and
could have truthfully indicated a longer period. Her answer in the SET case
was a matter of public record. Therefore, when petitioner accomplished her COC
for President on 15 October 2015, she could not be said to have been attempting
to hide her erroneous statement in her 2012 COC for Senator which was
expressly mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an
intention to hide the 2012 statement and have it covered by the 2015
representation. Petitioner, moreover, has on her side this Court's
pronouncement that:
Meanwhile [petitioner] and her children lived with her mother in San Juan
City. [Petitioner] enrolled Brian in Beacon School in Taguig City in 2005 and
Hanna in Assumption College in Makati City in 2005. Anika was enrolled in
Learning Connection in San Juan in 2007, when she was already old enough
to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of
One Wilson Place Condominium in San Juan. [Petitioner] and her family
lived in Unit 7F until the construction of their family home in Corinthian Hills
was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that her
former lawyer who handled [petitioner's] adoption in 1974 failed to secure
from the Office of the Civil Registrar of Iloilo a new Certificate of Live Birth
indicating [petitioner's] new name and stating that her parents are "Ronald
Allan K. Poe" and "Jesusa L. Sonora."
In late March 2006, [petitioner's] husband informed the United States Postal
Service of the family's abandonment of their address in the US.
In April 2006, [petitioner's] husband resigned from his work in the US. He
returned to the Philippines on 4 May 2006 and began working for a Philippine
company in July 2006.
In light of all these, it was arbitrary for the COMELEC to satisfy its intention
to let the case fall under the exclusive ground of false representation, to
consider no other date than that mentioned by petitioner in her COC for
Senator.
All put together, in the matter of the citizenship and residence of petitioner
for her candidacy as President of the Republic, the questioned Resolutions of
the COMELEC in Division and En Banc are, one and all, deadly diseased with
grave abuse of discretion from root to fruits.
SO ORDERED.
WE CONCUR:
CERTIFICATION
Footnotes
1
Petition for Certiorari in G.R. Nos. 221698-700, pp. 15-16; COMELEC First
Division Resolution dated 11 December 2015 in SPA No. 15-002 (DC), SPA
No. 15-007 (DC) and SPA No. 15-139 (DC), p. 2.
2
Petition for Certiorari, id. at 16-17;
3
COMELEC First Division Resolution, supra note 1 at 4.
4
Petition for Certiorari, supra note 1 at 22.
5
Id. at 17; Comment (on the Petition for Certiorari in G.R. No. 221697) filed
by respondent COMELEC dated 11January 2016, p. 6.
6
Petition for Certiorari, id.; id. at 7.
7
Id. at 18.
8
Supra note 6.
9
Id.
10
COMELEC First Division Resolution, supra note 1 at 3.
11
Petition for Certiorari, supra note 1 at 17.
12
Id. at 18.
13
Id.
14
COMELEC First Division Resolution, supra note 10.
15
Id.
16
Supra note 1 at 17-18.
17
COMELEC First Division Resolution, supra note 10.
18
Id.
19
Id.
20
Petition for Certiorari, supra note 1 at 20.
21
Id.
22
Supra note 3.
23
Supra note 20.
24
Supra note 3.
25
Supra note 20.
26
Supra note 3.
27
Petition for Certiorari, supra note 4.
28
Id.
29
Id. at 23; COMELEC First Division Resolution, supra note 3.
30
Id.; id.
31
Id.; id.
32
Id.; id.
33
Id. at 23-24; COMELEC First Division Resolution, supra note 1 at 5.
34
Id. at 24; id.
35
Id.
36
Supra note 34.
37
Petition for Certiorari, supra note 1 at 25; COMELEC First Division
Resolution, supra note 1 at 5.
38
Id. at 25-26; id.
39
Id. at 26; id.
40
Id.; id.
41
Id.; id.
42
Id. at 32; id. at 6.
43
Supra note 39.
44
Petition for Certiorari, supra note 1 at 26-27; COMELEC First Division
Resolution, supra note 1 at 5.
45
Section 5, R.A. No. 9225 states:
SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or re-
acquire Philippine citizenship under this Act shall enjoy full civil and political
rights and be subject to all attendant liabilities and responsibilities under
existing laws of the Philippines and the following conditions:
xx xx
3. Those appointed to any public office shall subscribe and swear to an oath of
allegiance to the Republic of the Philippines and its duly constituted
authorities prior to their assumption of office: Provided, That they renounce
their oath of allegiance to the country where they took that oath;
xx xx
46
Petition for Certiorari, supra note 1 at 27.
47
Id. at 29.
48
Supra note 46; supra note 1 at 6.
49
Petition for Certiorari, supra note 1 at 30; id.
50
Id.
51
Supra note 48.
52
Petition for Certiorari, supra note 1 at 31; COMELEC First Division
Resolution, supra note 1 at 6.
53
Comment, supra note 5 at 9.
54
Petition for Certiorari, supra note 1 at 31.
55
Id. at 32; Comment, supra note 53 at 10.
56
Id.; COMELEC First Division Resolution, supra note 1 at 6.
57
Id.; id. at 7.
58
Id.; id.
59
Comment (on the Petition in G.R. No. 221697) filed by respondent
Elamparo, dated January 6, 2016, p. 7.
60
COMELEC Second Division Resolution dated December 1, 2015 in SPA No.
15-001 (DC), p. 7.
61
Id. at 7-8.
62
Supra note 60.
63
Id.
64
Id. at 8.
65
Id.
66
Petition for Certiorari in GR. No. 221697, p. 7.
67
Supra note 64.
68
Petition for Certiorari, supra note 65 at 8; COMELEC Second Division
Resolution, supra note 60 at 8-11.
69
COMELEC Second Division Resolution, supra note 60 at 34.
70
Comment, supra note 59 at 10.
71
Section 1 of Rule 25 of the COMELEC Rules of Procedure, as amended,
states:
Sec. 12. Disqualifications. -Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving
moral turpitude, shall be disqualified to be a candidate and to hold any office,
unless he has been given plenary pardon or granted amnesty.
(1) Those who are citizens of the Philippine Islands at the time of the adoption
of this Constitution,
(2) Those born in the Philippine Islands of foreign parents who, before the
adoption of this Constitution, had been elected to public office in the
Philippine Islands.
(4) Those whose mothers are citizens of the Philippines and, upon reaching the
age of majority, elect Philippine citizenship.