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REPUBLIC OF THE PHILIPPINES·-- -SUPREME COURT 2815 DEC 28 A

MANILA HID: 11

MARY GRACE NATIVIDAD S. POE-LLAMANZARES,

Petitioner,

EN BANC

•) --~· .. c :' ,,, 1.." ·~ l n 0 1

-versus- G.R. No. SUPREME COURT

OFFICE OF THE CLERK OF COURT EN BANC

COMMISSION ON ELECTIONS and ESTRELLA C. ELAMPARO,

Respondents.

RECEIVED

DEC 2 8 2015 BY: }uu?l TIME: ID ~zi) 9

x--------------------------------------------------------------------------x

PETITION FOR CERTIORARI -~:~

-with-

Extremely Urgent Application· for Ex Parte Issuance of Temporary Restraining Order I

Status Quo Ante Order and/ or Writ of Preliminary Injunction

Petitioner Senator MARY GRACE NATIVIDAD S. POE­LLAMANZARES, by counsel, respectfully states:

PREFATORY

The will of the people. is paramount. Section 1, Article II of the 1987 Constitution states that "(s)overeignty resides in the people and all government authority emanates from them."

Petitioner is before the Supreme Court-the court of last resort-because the Commission on Elections ("COMELEC") has, in a series of acts and pronouncements, reeking not just of the usual grave abuse of discretion, but of outright hostility and arrogance, has chosen to disenfranchise the sovereign people and de_prive them of something rightfully theirs: the consideration of petitioner as a viable and valid choice for President in the next elections. The latest act of thinly disguised

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oppression meted out by the COMELEC is the timing of the release of its En Bane's 23 December 2015 Resolution, affirming the COMELEC Second Division's 1 December 2015 Resolution in SPA 15-001, cancelling Petitioner's certificate of candidacy, with an ominous citation of its own Rule 37 that its decision will "become final and executory after the lapse of five days from their promulgation, unless restrained by the Supreme Court."l The Resolution was released on 23 December 2015, a day that the Supreme Court had priorly declared it would be closed, and on the eve of a four (4) day holiday stretch, thereby leaving the Petitioner only the fifth day-28 December 2015-to file her petition with and to ask for a temporary restraining order from this Honorable Court. The deliberate intent to inflict maximum prejudice on Petitioner, by obstructing her opportunity to seek injunctive relief, is obvious. Surely, this is irreparable damage not just to Petitioner, but more importantly, to at least fifty (50) million voters who are being deprived of a valid choice in the electoral process, which must be urgently addressed.

The "maximum prejudice" was actually doubled, because there were in fact two Resolutions released on 23 December 2015. The other Resolution was rendered in SPA Cases Nos. 15-002, 15-007 and 15-139, originally handled by the COMELEC's First Division, separate from the SPA No. 15-001 handled by the Se,cond Division, which the COMELEC inexplicably failed to

:1, consolidate despite Petitioner's repeated pleas for consolidatiQ!J;·· as after all, all four (4) cases concerned one and the same CQ,C Gl!l.d involved common questions of fact and law. Petitioner asked fb~ consolidation both at the division level, and before the Ert Banc, ,but to no avail. Now she is doubly damaged by tlie COMELEC's oppression as she is constrained to file two (2k .. petitions on the 28th of December-the only day left of her fr~· (5)-day period. That the assailed Resolutions all commonly cancelled one and the same COC anyway, and yet Petitioner Js forced to file two petitions, show the senselessness of the actions taken by the CO MELEC.

'i'· Petitioner thus asks for immediate relief from this

Honorable Court to prevent the COMELEC from inflicting ev~ ' fl more injustice, by enjoining the COMELEC from treating~ As

Resol:utions as final and executory in any manner and dele~~.t~:;;· Petitioner's name from the official list of candidates a~~'*e ~ .. ,;:

.. official ballots to be printed for . the 2016 elections. On~x~· ?l;~~· t TRO pr status quo ante order will the COMELEC be pre\?'ettj;:R ,

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: ·~~titioner does not concede the validity of this Rule which shortens the period to q"4f}tj~~·. the decision of the COMELEC, given under Rule 64 and the Omnibus Election Cod,~ ;;tna .·

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from subverting the very electoral process it is mandated to uphold.

Petitioner is a top choice for President-emerging as the top contender with another Presidential candidate according to the latest Social Weather Stations ("SWS") survey released on the very day that the COMELEC released its 23 December 2015 Resolutions.2 More than this, she is an incumbent Senator who enjoys a mandate from over twenty (20) million Filipino voters­the highest number of votes cast for a Senator in Philippine election history. Such mandate was challenged, but ultimately upheld, by the Senate Electoral Tribunal, the sole and exclusive judge of Petitioner's qualifications as Senator, including her natural-born Filipino citizenship.

Even before she was elected a Senator of the Republic, Petitioner's life story has been an open book. The Filipino people knew that Petitioner is a foundling, abandoned as a new-born infant in Iloilo City and later adopted by Ronald Allan Kelly Poe ("Fernando Poe, Jr.") and Jesusa Sonora Poe ("Susan Roces"). The Philippine government, if not the Philippine state (through its sovereign electorate), has consistently recognized Petitioner, from infancy until adulthood, as a Filipino, if not a natural-born Filipino, citizen.

Private respondent accused Petitioner,., of committing a material misrepresentation in her COC for President when she indicated therein that: (1) she is a natural-born citizen of the Philippines; and (2) by 9 May 2016, she will be a resident of the Philippines for ten ( 10) years and eleven ( 11) months. Private respondent's theory is that Petitioner is not a natural-born Filipino because she supposedly does not fall under any of the five categories of citizens under Section 1, Article IV of the 1935 Constitution (which was in force at the time of Petitioner's birth in 1968). According to private respondent, since a foundling is not mentioned in the enumeration of Philippine citizens in the 1 935 Constitution, the Latin maxim "expresio unius est exclusio alterius" applies - the expression of one thing is the exclusion of the other.

In "excluding" Sen. Poe from the categories of Filipinos, private respondent simply argued that since Sen. Poe is a foundling whose parents are unknown. From here, she jumps to the illogical conclusion that she cannot show that she is a Filipino. She supposedly cannot rely on jus sanguinis because

2 See, e.g., news article by Patricia Lourdes Viray, "Binay, Poe, tied in latest SWS poll" at http:/ /www.philstar.com/ headlines/ 2015 / 12 /23 / 1535652 /binay-poe-tied-latest-sws-poll (date of last access: 23 December 2015)

4

she cannot establish that her biological parents are Filipinos. She is unable to show a blood relation.

Private respondent's theory is based on her misconception of the nature and essence of a petition to deny due course to or cancel a COC. It is premised on the erroneous assumption that a candidate has the burden of proof whenever her qualifications are questioned.

Sen. Poe is a natural-born citizen, and by 9 May 2016, she will be a resident of the Philippines for ten ( 10) years and eleven ( 11) months. The Philippine Government (through the official acts of the Office of the President, the Commission on Elections, the Department of Foreign Affairs and the Bureau of Immigration), has repeatedly recognized her as Filipino, if not a natural-born Philippine citizen, thereby giving rise to the presumption that she possesses that status. The Filipino people themselves recognized her as a natural-born Filipino when they elected her as Senator. When that status was finally challenged this year, it was upheld by no less than the Senate Electoral Tribunal, which categorically ruled that Sen. Poe is a "natural­born Filipino citizen under the 1935 Constitution, who continues to be so under the 1987 Constitution."

It is settled that the burden in an action under Section 78 of the Omnibus Election Code ("OEC") lies first and foremost with whoever questions the qualifications of a candidate. Upon him or her lies the burden of proving that a candidate is disqualified. A candidate is not required to prove his or her qualifications for the office, because the law presumes that he or she is being truthful when he or she accomplished his or her COC. Just as a person enjoys a presumption of innocence, he or she also enjoys the presumption of being innocent of any wrong. 3 It is also a basic rule in litigation that the party who initiates the case, and who therefore stands to lose if neither party presents evidence, has the burden of proof. This rule is applied in favor of persons accused of the vilest crimes in criminal cases, and of defendants in civil and administrative cases. If private respondent would have her way, the rule should be denied to Sen. Poe with respect to her eligibility for public office, simply because she is a foundling.

The COMELEC gravely abused its discretion when, instead of requiring private respondent to prove, in the first instance, her allegation that Sen. Poe is not a natural-born citizen, it placed the burden on Sen. Poe to prove that she is born of Filipino

3 Sec. 3 (a), Rule 131, Rules of Court

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parents. But the only way that private respondent can prove that Sen. Poe committed a false representation, with the intent to deceive, is for her to prove that Sen. Poe indeed was born of alien parents, and hence cannot be a natural-born citizen. It is not enough for private respondent to prove that Sen. Poe is -.... foundling, for all that this proves is that Sen. Poe's parents are unknown, not that they are not Filipino citizens, and that therefore private respondent cannot prove that Sen. Poe is an alien. Under the circumstances, all that private respondent was able to accomplish is to create doubt on Sen. Poe's qualifications. But a doubt as to a candidate's qualifications is not sufficient justification for the COMELEC to cancel a COC. The candidate's disqualification must be proven, and the material misrepresentation proven as a fact, before it can cancel aCOC.

As a final note, Petitioner submits that the core issue in this case-whether a foundling is a natural-born Filipino­transcends Petitioner's candidacy for President. What is at stake in this case is not only a foundling's right to run for high public offices, but the enjoyment of a host of even seemingly ordinary rights or positions which our laws reserve only for natural-born citizens.

The reality that a foundling will be deprived of these simply because she was abandoned at birth, without any trace of her

,,biological parents, (a circumstance that is not of her own doiqg) is highly material in this case. In the words of the Hon. J~sti~; lat.er Chief Justice, Artemio Panganiban in the landµiark

· fa~valdo vs. COMELEC, "(i)n cases where the sovereignty of the'' penple, is at stake, we must not only be legally right but also politically correct." ''

4

. Ror this and other reasons, this Petition must be grant~, the assailed Resolutions of the COMELEC reversed and s~t aside, and Petitioner must be allowed to continue her candidacy, and the electorate allowed to decide for themselves whether she is qualified to be the President of the Republic of the Philippine~ .

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:; I. PARTIES

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/~·:.::· ~~~·.·· ~\ 1. Petit~oner ("Petiti~ner" or "Sen. Poe") i~ a Fili~~~Q~.·:: .9~~: •.·.·

legal age, marned and a resident of 106 Rodeo Dnve, Con~ Hills, 1Brgy. Ugong Norte, Quezon City. She may be served ~.

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p\~adings, processes, orders and the decision in this, c~.~~' · through undersigned counsel. ·

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2. Public respondent Commission on Elections ("COMELEC" or the "Commission") is a body established under Section 1, Article IX-C of the 1987 Constitution. It holds office at the Palacio del Gobernador, Gen. Luna St., Intramuros, Manila, where it may be served with pleadings, processes, orders and the decision in this case.

3. Private respondent Estrella C. Elamparo ("private respondent" or "Elamparo") is, on information and belief, a Filipino and of legal age. She may be served with pleadings, processes, orders and the decision in this case at the 8th Floor, Pacific Star Building, Sen. Gil Puyat Avenue car. Makati Avenue, Makati City

II. NATURE OF THE PROCEEDINGS

4. This is a petition for certiorari under Rule 64, in relation to Rule 65, of the 1997 Rules of Civil Procedure. It seeks to nullify, for having been issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, the COMELEC's Resolution dated 1 December 2015,4 rendered through its Second Division, and the Resolution dated 23 December 2015 of the Commission- En Banc5 in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent.

4.1. Certified true copies of the assailed Resolutions are attached hereto as Annexes "A" and "B". s

III. TIMELINESS OF THIS PETITION

5. On 1 December 2015, Petitioner, through her counsel of record at the COMELEC, received a copy of the Resolution promulgated by the COMELEC's Second Division on even date. Under Section 7, Rule 23 of the COMELEC Rules of Procedure9

("COMELEC Rules") Petitioner had five (5) days from receipt thereof within which to file a motion for reconsideration. Since

4 Hereinafter, "1 December 2015 Resolution" or "COMELEC Second Division Resolution" s Hereinafter, "23 December 2015 Resolution" or "COMELEC En Banc Resolution" s Copies of the Separate Opinion of Commissioner Luie Tito F. Guia, and Concurring and Dissenting Opinion of Chairman J. Andres D. Bautista in SPA No. 15-001 (DC), as received by Petitioner's counsel of record in the COMELEC, are attached hereto as Annexes "B-1" and "B-2" respectively. 9 As amended by COMELEC Resolution No. 9523

7

the fifth day, 6 December 2015, was a Sunday, Petitioner filed her Verified Motion for Reconsideration the fallowing day, 7 December 2015.

6. Petitioner's Verified Motion for Reconsideration was denied in the 23 December 2015 Resolution, which her counsel of record received on that same day. Under Section 3, Rule 64 of the Rules of Court, Petitioner has thirty (30) days from notice of judgment or final order or resolution to be reviewed within which to file a pe"tition for certiorari with this Honorable Court, which period is interrupted by the filing of a motion for reconsideration if allowed by the procedural rules of the Commission concerned. Under the same Rule, if the motion for reconsideration is denied, the aggrieved party may file a petition for certiorari within the remaining period, which shall not be less than five (5) days in any event, reckoned from notice of denial. Hence, this Petition is timely filed.

IV. ANTECEDENT PROCEEDINGS AT THE COMELEC, THE FACTS, AND THE ASSAILED RESOLUTIONS

A. Antecedent Proceedings

7. On 15 October 2015, Sen. Poe filed her Certificate of Candidacy10 for President in the 9 May 2016 national elections ("COC for President" or "2015 COC"). The following day, herein private respondent Elamparo filed a verified Petition to Deny Due Course or Cancel Certificate of Candidacy ("Petition a quo" or "Elamparo Petition"), 11 which was refiled on 21 October 2015. 12

Said Petition questioned Sen. Poe's citizenship and residence qualifications. In gist, Elamparo argued that: (a) as Sen. Poe was a foundling, she is not a natural-born Filipino; (b) assuming Sen. Poe is a natural-born Filipino, she could not have regained such status under Republic Act No. 9225 ("R.A. No. 9225"); (c) and natural-born citizenship must be continuous from birth. Elamparo likewise argued that Sen. Poe did not have the required ten years' residence in the Philippines as her residence could be counted at the earliest only from July 2006 when she reacquired citizenship under R.A. No. 9225. Respondent Elamparo also contended that Sen. Poe was bound by the declaration in her 2012 Certificate of Candidacy for Senator ("COC for Senator" or "2012 COC") that her residence before the May 2013 elections was six (6) years and six (6) months only.

10 Annex "C" hereof 11 Annex "D" hereof 12 Annex "E" hereof

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8. Summons 13 was served on Sen. Poe on 4 November 2015. She timely filed her Verified Answer. 14 In gist, Sen. Poe argued that: (a) the petition did not state a cause of action as it did not state that Sen. Poe's parents were aliens; (b) the petition did not make sufficient allegations that there was an intent to misrepresent on the part of Sen. Poe; (c) the COMELEC did not have jurisdiction as the petition was actually a petition for quo warranto, which could be filed only if Sen. Poe wins the Presidency; (d) the burden of proof was on Elamparo, and it is not sufficient for her to merely state that Sen. Poe's parents were unknown; (e) the 1934 Constitutional Convention deliberations show that foundlings were considered citizens; and (f) foundlings are presumed under international law to have been born of citizens of the place where they are found, which presumption is supported by the Rules of Court and the admitted circumstances of Sen. Poe's birth. In respect of the other questioned qualification, Sen. Poe argued that: (a) residence is a matter of evidence and she reacquired her domicile in the Philippines as early as 24 May 2005; (b) that she could reestablish residence even before she reacquired natural­born citizenship under R.A. No. 9225; and (c) the statement regarding the period of residence in her 2012 Certificate of Candidacy for Senator was a mistake made in good faith, not binding and should give way to evidence on her true date of reacquisition of domicile pursuant to Romualdez-Marcos vs.

\I, COMELEc.1s Sen. Poe likewise argued that there being no cl~ case of misrepresentation, the Elamparo Petition is merely ~,p. <ilc~tio~ to usurp the sovereign's. right to decide 8: .politi6.aj ;i.

quest10n-whom to elect as their leader. Her pos1t10n wp.s, outlined under the following affirmative defenses: '·~;· ··:i

A. AFFIRMATIVE DEFENSES.

A.I.

THE PETITION A QUO FAILS TO STATE A CAUSE OF ACTION AGAINST SEN. POE.

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1 ~ Annex "F" hereof. The following day, or on 5 November 2015, herein Petitio~r:~ri(tf a' Motio.n for Immediate Consolidation and Motion to Defer Proceedings, praying 'for <tj}.e c°-~1Solidation of SPA No. 15-001 (DC) with SPA No. 15-002 (DC), filed by Fra,pC,is .. ,

··'F~tad, and SPA No. 15-007 (DC), filed by Antonio P. Contreras, both questio~ candjfi8FY of herein Petitioner. An Amended Motion for Immediate Consolidqtion -. likewise filed by herein Petitioner on 11 November 2015. Copies of the foregoing mot*°' foJ? .. consolidation are attached hereto as Annexes "F-1" and "F-2" respectively. · · r<1 Annex "G" hereof · ,,. 15 G.R. Nos. 119976, 18 September 1995 • '

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A.1.1.

A.1.2.

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The Petition does not contain allegations which, if hypothetically admitted, would make false the statement in Sen. Poe's COC that she is a natural­born Filipino citizen; and

The Petition does not allege that Sen. Poe's representations in her COC regarding her natural­born Filipino citizenship and her period of residency in the Philippines (assuming these representations are false) were done wilfully or deliberately to "mislead, misinform or hide a fact which would otherwise render (her) ineligible."

A.2.

THE COMMISSION ON ELECTIONS LACKS JURISDICTION OVER THE PETITION A QUO.

A.2.1.

A.2.2.

The DOJ, and not the Commission on Elections, has primary jurisdiction to revoke the B.I. 's 18 July 2006 Order which: (a) found Sen. Poe presumptively a former natural-born Filipino; and (b) approved her petition for reacquisition of natural-born Filipino citizenship. Insofar as the Petition assails the B.I. 's Order, the same is a prohibited collateral attack on Sen. Poe's natural-born Filipino citizenship.

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The Petition is essentially a petition for quo warranto because it seeks to establish the ineligibility of Sen. Poe for the Presidency. The Petition is therefore within the exclusive jurisdiction of the Presidential Electoral Tribunal, and it may be filed only if Sen. Poe is proclaimed President of the Philippines in May 2016.

B.

SEN. POE DID NOT MAKE ANY MATERIAL MISREPRESENTATION IN HER CERTIFICATE OF CANDIDACY FOR THE OFFICE OF PRESIDENT IN THE 9 MAY 2016 ELECTIONS.

B.1.

SEN. POE IS A NATURAL-BORN CITIZEN OF THE PHILIPPINES.

B.1.1.

B.1.2.

B.1.3.

B.1.4.

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Even though foundlings are not expressly mentioned in Section 1, A11icle IV of the 1935 Constitution, it was nevertheless the intent of the framers of the 1935 Constitution to include them as citizens of the Philippines under paragraphs (3) and/or (4) of Section 1, Article IV of the 1935 Constitution.

Under applicable treaties and "generally accepted principles of international law," a child born in the Philippines in 1968 of unknown parents, is a natural­born Filipino.

Sen. Poe re-acquired her natural-born Philippine citizenship under the provisions of R.A. No. 9225.

Sen. Poe executed a sworn renunciation of her U.S.A. citizenship prior to the filing of her COC as President in the May 9, 2016 elections. This sworn renunciation is in full force and effect and has not been withdrawn or recanted.

B.2.

ON 9 MAY 2016, SEN. POE WILL BE A RESIDENT OF THE PHILIPPINES FOR AT LEAST 10 YEARS AND 11 MONTHS.

B.2.1. It is well-settled that in order to re'establish one's domicile of choice in the Philippines, only the following requisites must concur: (a) residence or bodily presence in the Philippines; (b) an intention to remain in the country (animus manendi); and (c) an intention to abandon the old domicile (animus non revertendi). Sen. Poe satisfied all three (3) requisites no later than 24 May 2005.

B.2.1.a.

B.2.1.b.

B.2.1.c.

From 24 May 2005 up to today, Sen. Poe has been physically or "bodily" present in the Philippines.

Animus Manendi Sen. Poe's physical presence in the Philippines ·since 24 May 2005 was always coupled with an intent to stay permanently in the country.

Animus Non Revertendi Sen. Poe had abandoned her residence in the U.S.A. since the first quarter of

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B.2.3.

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2005, without the intention of returning there.

Sen. Poe could legally reestablish her domicile of choice in the Philippines even before she reacquired her natural-born Philippine citizenship on 7 July 2006.

Sen. Poe committed an honest mistake, on a difficult question of law, when she stated in her COC for Senator in the 13 May 2013 elections that her "period of residence in the Philippines before 13 May 2013" is "6" years and "6" months. Sen. Poe had the legal duty to correct this honest error, and could not be bound (by estoppel) to repeat it, when she filed her COC for President in the 9 May 2016 elections.

c. CONSIDERING THAT THE PETITION NOT ONLY FAILS TO STATE, BUT LACKS A CAUSE OF ACTION, AND IS ALSO BEYOND THE JURISDICTION OF THE COMMISSION ON ELECTIONS, IT IS RELEGATED TO NOTHING BUT AN ACTION TO USURP THE SOVEREIGN RIGHT OF THE FILIPINO PEOPLE TO ANSWER A PURELY POLITICAL QUESTION - SHOULD SENATOR POE SERVE AS THE NEXT PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES? "

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9. The Summons received by Sen. Poe contained a Noif!J€;. qf J-iearing directing the parties to pre-mark their evidence 16· on .9;1•· November 2015 and to attend a hearing on 10 November 20l;Q. The parties complied with both directives. · ·

· 10. During the 10 November 2015 clarificatory hearing~,.· the parties exhaustively discussed their respective positions. At, the end of the hearing, the parties were given time to file the'ir respective memoranda with formal offers of evidence 17 , which they eventually did. ls

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16 ~en. Poe's marked exhibits in the proceeding a quo, which were also marked in .. t~e .. , pr6ceedings for SPA No. 15-002 (DC) (entitled Francisco S Tatad, petitioner, vs. Mqry cf!fiGieY(i Natividad Sonora Poe-Llamanzares, respondent), SPA No. 15-007 (DC) (entitled Antonio .J>f !;~1;;.

,:· · Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, responden,t),4 - . · SPA N01. 15-139 (DC) (entitled Amado D. Valdez, petitioner, vs. Mary Grace Nat&,1

Sonora Poe- Llamanzares, respondent), are summarized in a table attached to thi~'~ a~i Anne}I: "H". Faithful reproductions of Petitioner's exhibits which were marked

·offered in the proceeding a quo are attached hereto as Annex "I-series". :z~~ 17 A C£P¥ of Sen. Poe's Memorandum with Formal Offer of Evidence ("Poe Memora~au· attacfied as Annex "J" hereof. A copy of Elamparo's Memorandum ("Elam .M~morandum") is attached as Annex "K" hereof. ·' . · __ ::~/ ," , la,J\ copy of the 24 November 2015 Order of the COMELEC Second Division is attael}ed .. hereto as Annex "L". +· ..

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B. The Facts

11. The fallowing facts are culled from the admissions of the parties in the pleadings or otherwise supported by the evidence or found by the COMELEC itself. The respective bases are appropriately footnoted.

12. Sen. Poe is a foundling; she does not know who her biological parents are. She was born on September 3, 1968 in Jaro, Iloilo. However, immediately after her mother gave birth to her, she was abandoned in the Parish Church of Jaro, where a certain Mr. Edgardo Militar found her .19 Mr. Edgardo Militar chose to place herein petitioner in the care and custody of his relatives, the spouses "Mr. and Mrs. Emiliano Militar."20

13. On 6 September 1968, Mr. Emiliano Militar reported to the Office of the Civil Registrar of Ilalio ("OCR-Iloilo") the fact that, on 3 September 1968, herein petitioner was found in the Parish Church of Jaro.21 In her Foundling Certificate,22 herein petitioner's full name was indicated to be "Mary Grace Natividad Contreras Militar."

14. When herein Petitioner was five (5) years old, the spouses Ronald Allan Kelley Poe (a.k.a. Fernaudo Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Races) filed a petition for her adoption. On 13 May 1974, the Municipal Court of San Juan ("San Juan Court") rendered a Decision granting the petition of the Spouses Poe,23 and ordering a change in herein petitioner's name "from Mary Grace Natividad Contreras Militar to Mary Grace Natividad Sonora Poe."24

14.1. In a Certificate of Finality dated 27 October 2005,25 Clerk of Court III Eleanor A. Soria, certified that the San Juan Court's Decision dated 13 May 1974 "has never been supplemented, amended or modified by any subsequent Order coming from the Court and therefore has

• qlr_e~dy _become F~NAJ.J._"

19 Elamparo Petition, p. 3, par. 5; Poe Memorandum, par. 2.1; Sen. Poe's Foundling Certificate/Certificate of Live Birth marked as Exhibit "l"; COMELEC Second Division Resolution, p.2, Fact No. 2. 20 See Exhibit "l" 21 Elamparo Petition, p. 3, par. 6; Poe Memorandum, par. 2.2; COMELEC Second Division Resolution, pp. 2-3, Fact No.2 22 See Exhibit "l" 23 Elamparo Petition, p. 3, par. 7; Poe Memorandum par. 2.3; COMELEC Second Division Resolution, p. 3, Fact No. 3. 24 See Exhibit "2" 2s Exhibit "2-A"

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14.2. On 11 April 1980, the OCR-floilo received the San Juan Court's Decision which was "included in the Official Record File of the Office."26 Thereafter, OCR-floilo noted on herein petitioner's Foundling Certificate27 that she had been adopted by the Spouses Poe on 13 May 197 4. The following hand-written notation appears in the column on the right-hand side of herein petitioner's Foundling Certificate reserved for "accomplish(ment)" by OCR-floilo:

NOTE: Adopted child by the Spouses Ronald Allan Poe and Jesusa Sonora Poe as per Court Order, Mun. Court, San Juan, Rizal, by Hon. Judge Alfredo M. Gorgonio dated May 13, 1974, under Sp. Proc. No. 138.

14.3. In compliance with the San Juan Court's Decision, the OCR-floilo also appears to have indicated on herein petitioner's Foundling Certificate that her middle name ("Contreras") and last name ("Militar") would be replaced with "Sonora" and "Poe," respectively. The names of Ronald Allan Poe and Jesusa Sonora Poe were also written on herein petitioner's Foundling Certificate, in the boxes or spaces reserved for the names of those legally considered as herein petitioner's parents.

15. Soon after herein Petitioner turned eighteen, she applied for registration as a voter with the local office of the COMELEC in San Juan City. On 13 December 1986, the COMELEC issued in her favor a "Voter's Identification Card" for Precinct No. 196 in Greenhills, San Juan, Metro Manila.2s

16. On 4 April 1988, the Ministry of Foreign Affairs of the Republic of the Philippines issued to Petitioner a Philippine Passport (with No. F927287)29 which was valid for five (5) years, or until 4 April 1993. This passport stated, in part, that "(t)he Government of the Republic of the Philippine requests all concerned to permit the bearer, a citizen of the Philippines to pass safely and freely and, in case of need, to give (her) lawful aid and protection."

26 A copy of OCR-floilo's Certification dated 11 November 2005 was marked as Exhibit "2-B''. 27 See Exhibit "1" 28 Elamparo Petition, pp. 3 to 4, par. 8; Poe Memorandum, par. 2.4; COMELEC Second Division Resolutton, p. 3, Fact No. 4. Sen. Poe's 1986 Voter's Identification Card was marked as Exhibit"3" 29 Marked as Exhibit "4". See also, Poe Memorandum, par. 2.5; COMELEC Second Division Resolution, p.3 Fact No. 5

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1 7. Petitioner initially pursued a college degree in Development Studies at the University of the Philippines, Manila. However, in 1988, she transferred to the Boston College in Chestnut Hill, Massachusetts, U.S.A. In 1991, she graduated from Boston College with a degree of Bachelor of Arts in Political Studies.3o

18. On 27 July 1991, Petitioner married Teodoro Misael Daniel V. Llamanzares31 at Sanctuario de San Jose Parish at San Juan City, Metro Manila. Petitioner's husband is a citizen of both the Philippines and the U.S.A. from birth. 32 When Petitioner married her husband, he was already based in the U.S.A.

19. Petitioner had been raised a Filipina, and her parents had instilled Filipino values in her.33 Petitioner thus willingly chose to live with her husband in the U.S.A. and to raise their children there. Thus, on 29 July 1991, Petitioner left for the U.S.A. 34

20. Petitioner and her husband have three children. Their eldest child, Brian Daniel ("Brian"), was born on 16 April 1992 in the U.S.A. Their daughters, Hanna MacKenzie ("Hanna") and Jesusa Anika ("Anika"), were both born in the Philippines, on 10 July 1998 and 5 June 2004, respectively.35

,.,.

, _\4 ; 21. Although Petitioner and her family lived in the U.S:::~t~ they kept close ties to the Philippines. They travelled frequeh~ .

. to. the country to visit relatives and friends. Petitioner and ;he~'"'

.; Jilisband had always intended to return to the Philippines.36 c, '

r '\~· . : ·-~· ~~

22. After July 1991, Petitioner continued to secure·· ';,: Philip:gine Passports from the DFA. On 5 April 1993, the DFA :

' ~ .

issued to petitioner Philippine Passport No. L881511,37 and .. on. 19 May 1998, the DFA issued in her favor Philippine Passport No. DD156616.38

..... .,, ·~

",·.

-·~ ,,

;t;:,:,;.. 3o. Efamparo Petition; p. 4, par. 9; Poe Memorandum, par. 2.6; COMELEC Second Di.visio~-~)~

. j?esolution, p. 3, Fact No. 6 .... ,, ' ,;,/> _31 Elamparo Petition, p. 4, par. 10; Poe Memorandum, par. 2.7; COMELEC Second IJ.i.qis"·'

,. Resolutior, p. 3, Fact No. 7 ···~ ,32 £lamparo Petition, p. 4, par. 10, second sentence; Poe Memorandum, par. 2.8; COMEL

· Sep9nd Division Resolution, p. 3, Fact No. 8 ,; .j/ f9e Memoran?-i:m, par. 2.8 ... · 34 Elamparo Petztzon, p. 4, par. 11; Poe Memorandum, par.2.8

35 Poe Jfeinorandum, par. 2.8.1 36 Poe Memorandum, par. 2. 9 37;Mttrked as Exhibit "4-A" 38 Marked as Exhibit "4-B"

't,,

.. <'·~; -~-

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15

23. Despite living in the United States for more than ten (10) years, it was only on 18 October 2001 that Petitioner became naturalized as a citizen of the U.S.A.39 On 19 December 2001, the U.S.A. "Passport Agency" in Washington issued U.S.A. Passport No. 01703779340 to her.

24. In 2003, Petitioner's father declared his candidacy for President of the Philippines in the May 2004 elections. 41

25. On 8 April 2004, Petitioner travelled to the Philippines together with her daughter, Hanna.42 Petitioner was pregnant at the time with her youngest daughter, Anika. Petitioner returned to the Philippines as she wanted to give moral support to her parents during her father's campaign. She also wanted to give birth to Anika in the Philippines. As discussed earlier, Anika was born on 5 June 2004. On 8 July 2004, petitioner returned to the U.S.A. 43 with her two daughters.

26. In May 2004, in an election marred with controversy and widespread reports of cheating, Petitioner's father lost the Presidency.

27. A few months later, or on 11 December 2004, Petitioner's father was admitted at the St. Luke's Medical Center in Quezon City. 44 He eventually slipped into a coma.45

/

28. As soon as she was informed of her father's fast­deteriorating medical condition, Petitioner, who was then in the U.S.A., rushed to leave for the Philippines.46 She arrived in the country in the evening of 13 December 2004, but her father died shortly thereafter, on 14 December 2004.47

29. The untimely death of petitioner's father was a severe emotional shock to the family. Thus, Petitioner stayed in the country to comfort her grieving mother. 48 She also wanted to assist in taking care of the funeral arrangements for her father and settling his estate. Petitioner stayed in the Philippines until 3 February 2005. 49

39 Elamparo Petition, p. 4, par. 12; Poe Memorandum par. 2.10; COMELEC Second Division Resolution, p. 3, Fact No. 10 40 Marked as Exhibit "5" 41 See also Exhibit "41", p. 2, par. 5; Poe Memorandum, par. 2.11 4 2 See Exhibit "5"; Poe Memorandum, par. 2.12 43 See Exhibit "5"; Poe Memorandum, par. 2.12 44 See also Exhibit "41", p. 2, par. 5; Poe Memorandum, par. 2.14 45 Id., p.2, par. 5; Poe Memorandum, par. 2.14 46 Id., p. 2, par. 6; Poe Memorandum, par. 2.15 47 Id., p. 2, par. 6; Poe Memorandum, par. 2.15 4s Id., p. 2, par. 7; Poe Memorandum, par. 2.16 49 See Exhibit "5"; Poe Memorandum, par. 2.16

16

30. As a result of the untimely demise of her father, and her desire to be with and to comfort her grieving mother, Petitioner and her husband, sometime in the first quarter of 2005, decided to return to the Philippines for good. 50 They consulted their children, who likewise expressed their wish to relocate permanently to the Philippines. 51 The children also wanted to support their grandmother and Petitioner.

31. 1!1 2004, petitioner had already resigned from her work in the U.S.A. and she never again sought employment there. In early 2005, Brian and Hanna's schools in Virginia, U.S.A., were likewise notified that they would be transferring to Philippine schools for the next semester.52

32. As early as March 2005, Petitioner and her husband began obtaining quotations and estimates from property movers regarding the total cost of relocating to Manila all of their household goods, furniture, and cars then in Virginia, U.S.A. One of these property movers was Victory Van International, a private freight forwarding company, with whom Petitioner and her husband had a series of e-mail correspondence from 2005 up to 2006. 53 The spouses also intended to bring along their pet dog, and they inquired with Philippine authorities on the procedure to accomplish this in August 2005.

,;'

33. On 24 May 2005, or shortly before the start of the academic year in the Philippines, Petitioner returned to the country.54 Her three (3) children also arrived in the country in the first half of 2005.55 Petitioner's husband, on the other hand, stayed in the U.S.A. to finish pending projects, and to arrange for the sale of the family home there. 56

34. After their arrival in the Philippines from the U.S.A., Petitioner and her children initially lived with Petitioner's mother at 23 Lincoln St., Greenhills West, San Juan City. 57 The existing living arrangements at the house of Petitioner's mother even had to be modified to accommodate Petitioner and her children.58

Petitioner's mother also assigned to Petitioner her father's long-

50 See also Exhibit "41'', p. 2, par. 8; Poe Memorandum, par. 2.17 51 Id., p. 2, par. 8 52 Poe Memorandum, par. 2.18 53 These email correspondence were marked as Exhibits "6-series," and attached to the Affidavit of Teodoro V. Llamanzares, which was marked as Exhibit "42". See also, Poe Memorandum, par. 2. 19 54 See Exhibit "5" , at p. 10; Poe Memorandum, par. 2.20 55 See also Exhibit "41", p. 2, par. 9; Poe Memorandum, par. 2.20 56 Id., p. 2, par. 9; Poe Memorandum par. 2.20 57 Id., p. 2, par. 8; Poe Memorandum par. 2.21 58 Id., pp. 2 to 3, par. 10; Poe Memorandum, par. 2.21

17

time driver, because Petitioner and her family would henceforth be based in the Philippines. sg Meanwhile, Petitioner and her children prepared for the start of the school year, with Brian and Hanna attending Philippine schools starting June 2005.

34. l. Petitioner enrolled Brian in Grade 8 at the Beacon School in Taguig City, for the Academic Year 2005 to 2006.60 In 2006, Brian transferred to La Salle Green Hills, where he graduated from high school in 2009.61

34.2. Hanna was enrolled in Grade 2 at Assumption College in Makati City for Academic Year 2005 to 2006. She eventually finished her elementary and secondary education at the same school. 62

34. 3. Anika was just under a year old when Petitioner and her family relocated to the Philippines in May 2005. Anika was therefore not yet of school age at the time. However, she celebrated her first birthday (not to mention her succeeding birthdays) in the Philippines on 5 June 2005. Anika eventually attended pre-school at the Learning Connection in San Juan City, from January to March 2007, 63 and thereafter, at the Greenmeadows Learning Center in Quezon City, for Academic Year 2007 to 2008.64 Anika's Kindergarten and Elementary school years6s were spent at Assumption College {the same school as her sister, Hanna), which is where she is curreatly enrolled as a sixth grader. · ·· .. ·.

~·~,

t~' .• , 35. Shortly after arriving in the Philippines, Petitione~~-~,, ;; immediately submitted herself to the local tax jurisdiction by registering and securing a TIN from the BIR (dated 22 July 2005).p6 .:,

';~·.

36. Sometime in the second half of 2005, Petitioner~~~ mother discovered that her former lawyer who had handled Petitioner's adoption in 197 4, and who was then already deceased, had failed to secure from the OCR-floilo, a new ·

·if._

5\!,Jsi., pp. 2 to 3, par. 10; Poe Memorandum, par. 2. 21 ''· '~ .• ! 21 60 E'xhibit "7" is Brian's Official Transcript of Records from the Beacon School. .· ·., ,i, ~~L

r,61 Exhibit "7-A" is a Certification dated 15 April 2015 issued by the Registrar of La Salle...,:''· Green Hills, Ms. Sandra Bernadette F. Firmalino. . .. ·,·~ \"".<J.';~·~· 1,; <>2 Exhibits "7-B" and "7-C" are Hanna's Perma~ent Records at the Assumption Coll~'. i'.s< ~.,t an Elementary and Secondary Student, respectively. . ' .if d:;>., 63.!$xhibi't "7-D" is a Certificate of Attendance dated 8 April 2015 issued by the D1r~~~,:;::

f":~.<l!l· the ~e~rning Co~nection, -~s. ~ulie Pascual Penal?za. . . :lf:{·:. '::~~" ·~ ·~ · M Exh1b~t "7-E" is a Certlf1cat10n dated 14 Apnl 2015 issued by Directress .. of 1'l-~'.·~.;,;; Greenfueadows Learning Center, Ms. Anna Villaluna-Reyes. : ) ··' 65, Exhibit "7-F" is Anika's Permanent Record at the Assumption College as an Elemen~J:Y i'"' S'tu"dent. · · 66 Marked.as Exhibit"8"

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18

Certificate of Live Birth indicating Petitioner's new name ("Mary Grace Natividad Sonora Poe") and stating that her parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora." Thus, on 8 November 2005, Petitioner's mother executed an affidavit67 attesting to the lawyer's omission which she submitted to the OCR-floilo. Eventually, on 4 May 2006, OCR-floilo issued a new Certificate of Live Birth68 in the name of "Mary Grace Natividad Sonora Poe."

37. In the meantime, in the second half of 2005, Petitioner and her husband had acquired Unit 7F of One Wilson Place Condominium (and its corresponding parking slot), located at 194 Wilson Street, San Juan Metro Manila, to be used as the family's temporary residence.

37 .1. On 20 February 2006, the Register of Deeds for San Juan City issued to Petitioner and her husband CCT No. l l 985-R69 covering Unit 7F of One Wilson Place, and CCT No. 11986-R70 covering the parking slot for Unit 7F.

37.2. On 25 April 2006, Unit 7F of One Wilson Place and its corresponding parking slot were declared, for real estate tax purposes, in Petitioner's and her husband's names. 71

,.,,

37 .3. Petitioner and her family lived at One Wilson Place until the completion of their family home at Corinthian Hills, Quezon City.n This matter is discussed in paragraph 41.1. below and sub-paragraphs.

38. On 14 February 2006, Petitioner briefly travelled to the U.S.A. for the purpose of supervising the disposal of some of the family's remaining household belongings. Around this time, Petitioner and her family's furniture and other household goods were still in the process of being packed for collection, storage, and eventual transport to the Philippines. 73 Petitioner donated to the Salvation Army some of the family's personal properties

67 Marked as Exhibit "9" 68 Marked as Exhibit "10" 69 Marked as Exhibit "11" 10 Marked as Exhibit "12" 11 Marked as Exhibits "13" and "14" are Declarations of Real Property Nos. 96-39721 and 96-39722 issued by the Office of the City Assessor of San Juan City, respectively covering Unit 7F and its parking slot. 72 See also Exhibit "41", p.3, par. 11 73 Exhibit "6-series", e-mails dated 8 February 2006, 10 February 2006, and 15 February 2006 from Victory Van International to Petitioner

19

which could no longer be shipped to the Philippines. 74 Petitioner returned to the Philippines shortly after, or on 11 March 2006. 75

39. In late March 2006, petitioner's husband officially informed the United States Postal Service of the family's change, and abandonment, of their former address in the U.S.A. 76 The family home in the U.S.A. was eventually sold on 27 April 2006. 77

40. !n April 2006, Petitioner's husband resigned from his work in the U.S.A., and on 4 May 2006, he returned to the Philippines. Beginning July 2006, he worked in the Philippines for a major Philippine company.

41. Meanwhile, in early 2006, Petitioner and her husband acquired a vacant 509-square meter lot at No. 106, Rodeo Drive, Corinthian Hills, Barangay Ugong Norte, Quezon City (the "Corinthian Hills Lot") where her family could finally establish their new family home.

41. 1. On 1 June 2006, the Register of Deeds for Quezon City issued to Petitioner and her husband Transfer Certificate of Title ("TCT") No. 29026078 covering the Corinthian Hills Lot.

41.2. Petitioner and her husbanel: eventually built a house on the Corinthian Hills Lot. To this day, this house is their family home. 79

42. After Petitioner and her family settled themselves, she turned her attention to regaining her natural-born Filipino citizenship. She was advised that she could legally reacquire her natural-born Philippine citizenship by taking an oath of allegiance to the Republic of the Philippines, pursuant to the provisions of R.A. No. 9225, otherwise known as the "Citizenship Retention and Re-acquisition Act of 2003."80

74 Marked as Exhibits "15" and "15-A" are receipts dated 23 February 2006 issued by the Salvation Army showing the donation of these household belongings. 75 See Exhibit "E" for Elamparo 76 Exhibit "16" is an e-mail from the U.S.A. Postal Service, sent on 28 March 2006 to Petitioner's husband, confirming the latter's submission of a request for change of address to the U.S.A. Postal Service. 77 Exhibit "17" is a Final Statement issued by First American Title Insurance Company which indicate

0

s as Settlement Date: "04-27 /2006". 78 Marked as Exhibit "18" 79 See also Exhibit "42", p. 3, par. 11 80 Poe Memorandum, par. 2.30

,?

·~

20

43. On July 7, 2006, Petitioner took her Oath of Allegiance to the Republic of the Philippines, as required under Section 3 of R.A. No. 9225,81 to wit:82

I, Mary Grace Poe Llamanzares, solemnly swear that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.

44. On 10 July 2006,83 Petitioner filed with the B.I. a sworn petition84 to reacquire her natural-born Philippine citizenship pursuant to R.A. No. 9225 and its implementing rules and regulations. Upon advice, and simultaneous with her own petition, Petitioner filed petitions for derivative citizenship8S on behalf of her three children who were all below eighteen (18) years of age at that time. 86

44.1. In support of her application, and in compliance with the implementing rules and regulations of R.A. No. 9225, Petitioner submitted to the B.I. a copy of her Philippine Passport which the DFA had issued to her on 19 May 1998.87 ,.,,

45. On 18 July 2006,88 the B.I. issued an Order89 gra~~ng herein Petitioner's applications, which states in pertinent part: ·~. ·, ·~·· (j:

A careful review of the documents submitted in support of . the instant petition indicate that the petitioner was a former citizen of the Republic of the Philippines being born to Filipino parents and is presumed to be a natural born Philippine citizen; thereafter, became an American citizen and is now a holder of an American ' passport; was issued an ACT and ICR and has taken her oath of . allegiance to the Republic of the Philippines on July 7, 2006 and

"

;.,

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ii'

. . 8 1 Elamparo Petition, pA., par. 13; Poe Memorandum, par. 2.31; COMELEC Second Division

Re~olutton, p. 4, Fact No. 10 ,, ... ,, , s~ Herei~ petitioner's Oath of Allegiance under R.A. 9225 was marked as Exhibit "19'" 1 ·.~{:.?

4 83 Elamparo Petition, p. 14, par. 14; Poe Memorandum, par. 2.32; COMELEC $econ~ Resolution, p. 4, Fact No. 11 \'f•·· ,.,~.:;"'lf!l. 84 See Exhibit "20" · if 1"tf""c;;'

· 85 See Exhibits "21", "21-A" and "21-B" ': .t§;,, }6. ~l~mparo Pe!ition, p. 14, par. 14; Poe Memorandum, par. 2.32; COMEL~~ ~~GR~ti 'DwzswnResolutzon, p. 4, Fact No. 11 Jc: ... fi..~; \l}~~; 87 See Exhibit "4-B" '"14,~ .,,,, · •. ~ 88 fkldmparo Petition, p. 14, par. 15: Poe Memorandum, par. 2.33; COMELEC ·~cq.~/

.~ . .Division Resolution, p. 4, Fact No. 12 . · !', 1

·. J9 A certified true copy of Office Order No. AFF-06-9133 dated 18 July 2006 was mar1<:ed ~~· Exhibi\"22". It is also marked as Exhibit "D" for private respondent Elamparo. k · ,.

!£,_

'

21

so is thereby deemed to have re-acquired her Philippine Citizenship. 90

In the same 18 July 2006 Order, Petitioner's three children, Brian, Hanna and Anika, were "deemed Citizens of the Philippines in accordance with Section 4 of R.A. No. 9225."

46. On 31 July 2006,91 the B.I. issued Identification Certificates ("I.C.") in Petitioner's name and in the names of her three children. 92 Petitioner's I.C. states, in part, that she is a "citizen of the Philippines pursuant to the Citizenship Retention and Re-acquisition Act of 2003 (RA 9225) in relation to Administrative Order No. 91, Series of 2004 and Memorandum Circular No. AFF-2-005 per Office Order No. AFF-06-9133 signed by Associate Commissioner Roy M. Almoro dated July 18, 2006."

47. On 31 August 2006, the COMELEC registered Petitioner as a voter at Barangay Santa Lucia, San Juan City. 93

48. On 13 October 2009, or over two (2) years before her U.S.A. Passport was set to expire (on 18 December 2011),94

herein Petitioner secured from the DFA her new Philippine Passport with No. XX4 73199995 (which was valid until 12 October 2014).

49. On 6 October 2010,96 President Benigno S. Aquino III appointed Petitioner as Chairperson of the MTRCB,97 a post which requires natural-born Philippine citizenship. Petitioner did not accept the appointment immediately, because she was advised that, before assuming any appointive public office, Section 5(3), R.A. No. 9225 required her to: (a) take an Oath of Allegiance to the Republic of the Philippines; and (b) renounce her U.S.A. citizenship. She complied with both requirements before assuming her post as MTRCB Chairperson on 26 October 2010.98

90 Underscoring supplied 91 Elamparo Petition, p. 14, par. 16; Poe Memorandum, par. 2.34; COMELEC Second Division Resolution, p. 4, Fact No. 13 92 Certified true copies of Identification Certificate Nos. 06-10918 (in herein petitioner's name), 06-10919 (in Brian's name), 06-10920 (in Hanna's name), and 06-10921 (in Anika's name), were marked as Exhibits "23", "23-A", "23-B" and "23-C". 93 The stub of herein petitioner's application form, showing the date of such application was marked as Exhibit "24". See also, Poe Memorandum, par. 2.35; COMELEC Second Division Resolution, p. 4, Fact No. 14 94 See Exhibit "5" 95 Marked as Exhibit "25". See also, Poe Memorandum, par. 2.36; COMELEC Second Division Resolution, p. 4, Fact No. 16 96 Elamparo Petition, p. 5, par. 18; Poe Memorandum, par. 2.37; COMELEC Second Division Resolution, p. 4, Fact No. 17 97 See Exhibit "26" 98 A certified true copy of petitioner's Certificate of Assumption of office as MTRCB Chairperson was marked as Exhibit "26-A".

22

50. On 20 October 2010,9 9 Petitioner executed before a notary public in Pasig City an "Affidavit of Renunciation of Allegiance to the United States of America and Renunciation of American Citizenship" of even date. 100 The affidavit states:

I, MARY GRACE POE-LLAMANZARES, Filipino, of legal age, and presently residing at No. 107 Rodeo Drive, Corinthian Hills, Quezon City, Philippines, after having been duly sworn to in accordance with the law, do hereby depose and state that with this affidavit, I hereby expressly and voluntarily renounce my United States nationality/ American citizenship, together with all rights and privileges and all duties and allegiance and fidelity thereunto pertaining. I make this renunciation intentionally, voluntarily, and of my own free will, free of any duress or undue influence.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 20th day of October 2010 at Pasig City, Ph 'l' · IOI 1 1ppmes.

50.1. Petitioner, through counsel, submitted102 the above affidavit to the B.I. on 21 October 2010. 103

50.2. At no time after Petitioner executed the above affidavit did she ever use her 1,U.S.A. Passport again.104 Thus, Petitioner's U.S.A. Passport No. 0170377931os and her travel records from the BJ. 106

indicate no use of petitioner's U.S.A. Passport after her renunciation of U.S.A. citizenship on 20 October 2010. 107

Since taking her oath of allegiance to the Republic on 7 July 2006, Petitioner's travel records from the B.I. indicate only the following dates of use of her U.S.A. Passport:

Departures 1 November 2006 20 July 2007 31 October 2007 2 October 2008

Flight No. SQ071 PR730 PR300 PR358

99 Elamparo Petition, p. 6, par. 19; Poe Memorandum, par. 2.38; COMELEC Second Division ,Resolution, p. 4,' Fact No. 18 · _,. · · 100 Herein Petitioner's Affidavit of Renunciation was marked as Exhibit "27". 101 Underscoring supplied 102 Elamparo Petition, p. 6, par. 20; Poe Memorandum, par. 2.38. l; COMELEC Second Division Resolution, p. 6, Fact No. 19 103 The transmittal letter to the B.I. was marked as Exhibit "28" and the Affidavit referred to therein was marked as Exhibit "28-A". J04 See Exhibit "5" and Exhibit "I" 105 See Exhibit "5" 106 Sen Poe's travel records with the B.l. were marked as Exhibit "I" below. 101 Poe Memorandum, par. 2.38.2; COMELEC Second Division Resolution, p. 5, Fact No. 15

fr ;,!

20 April 2009 31 July 2009 19 October 2009 15 November 2009 27 December 2009 27 March 2010

Arrivals 4 November 2006 23 July 2007 5 November 2007 8 May 2008 5 October 2008 21May2009 3 August 2009 15 November 2009

23

PR104 PR730 PR102 PR103 PRl 12 PR102

Flight No. SQ076 PR731 PR337 PR103 PR359 PR105 PR733 PR103

50.3. Petitioner's "Affidavit of Renunciation ot Allegiance to the United States of America and Renunciation of American Citizenship" dated 20 October 2010 has never been recanted or withdrawn and, therefore, remains in full force and effect. In fact, this affidavit of renunciation was effectively affirmed and reiterated on 12 July 2011 and on 14 October 2015, as discussed in the paragraphs below.

,,, 51. On 21 October 2010, in accordance with Presid~ntial

Decree No. 1986 and Section 5 (3) of R.A. No. 9225, Petitiqper took her oath of office as Chairperson of the MTRCB, before:~

'· lRresident Benigno S. Aquino III. Her oath of officeios states: ';"

,,· :)

.&

,•

PANUNUMASAKATUNGKULAN

Ako, si MARY GRACE POE LLAMANZARES, na ... itinalaga sa katungkulan bilang Chairperson, Movie and · ., Television Review and Class(fication Board, ay taimtim na nanunumpa na tutuparin ko nang buong husay at katapatan, sa abot ng aking kakayahan, ang mga tungkulin ng aking kasalukuyang katungkulan at ng mga iba pang pagkaraan nito'y gagampanan ko sa ilalim ng Republika ng Pilipinas; na aking ,., '. itataguyod at ipagtatanggol ang Saligang Batas ng Pilipinas; na ~· ,. tunay na mananalig at tatalima ako rito; na susundin ko ang mga ,4~,~ {

batas, mga kautusang legal, at mga dekretong pinaiiral ng m&,a;~,!~F. sadyang itinakdang may kapangyarihan ng Republika ng ~. . . .·~ii

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,.10s A certified true copy Sen. Poe's Oath of Office as MTRCB Chairperson was mar~~d aj). ·~~hibit "29"; Poe Memorandum, par. 2.39; COMELEC Second Division Resolution, p. ~{fact No. 17

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24

Pilipinas; at kusa kong babalikatin ang pananagutang ito, nang walang ano mang pasubali o hangaring umiwas.

Kasihan nawa ako ng Diyos.

NILAGDAAN AT PINANUMPAAN sa harap ko ngayong ika-21 ng Oktubre 20 I 0, Lungsod ng Maynila, Pilipinas. 109

52. To ensure that even under the laws of the U.S.A., she would no longer be considered its citizen, Petitioner likewise renounced her U.S.A. citizenship in accordance with the laws of that country. However, Petitioner was not legally required under Philippine law to make another renunciation, as her earlier renunciation of U.S.A. citizenship on 20 October 2010 was sufficient to qualify her for public office.110

52.1. On 12 July 2011, 111 Petitioner executed before the Vice Consul at the U.S.A. Embassy in Manila, an Oath/ Affirmation of Renunciation of Nationality of the United States.112

52.2. On the same day, Petitioner accomplished a sworn "Questionnaire"113 before the U.S. Vice Consul, wherein she stated that she had taken her oath as MTRCB Chairperson on 210ctober 2010, with the intent, among others, of relinquishing her U.S.A. citizenship.

52 .3. In the same Questionnaire, Petitioner stated that she had resided "Outside of the United States," i.e., in the "Philippines," from 3 September 1968 to 29 July 1991 and from "05 2005" to "Present." On page 4 of the Questionnaire, Petitioner stated:

I became a resident of the Philippines once again since 2005. My mother still resides in the Philippines. My husband and I are both employed and own properties in the Philippines. As a dual citizen (Filipino-American) since 2006, I've voted in two Philippine national elections. My three children study and reside in the Philippines at the time I performed the act as described in Part I item 6. 1 14

109 Underscoring supplied 110 Poe Memorandum, par. 2 .40 111 Elamparo Petition, p. 6, par. 21; Poe Memorandum, par. 2.40.1; COMELEC Second Division Resolution, p. 6, Fact No. 20 112 Petitioner's Oath/ Affirmation of Renunciation of Nationality of the United States was marked as Exhibit "30" below 113 The Questionnaire was marked as Exhibit "30-A''. 114 Undescoring supplied

I

25

53. On 9 December 2011,1 15 the U.S.A. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the United States." 116 Said Certificate attests that under U.S.A. laws, Petitioner lost her U.S.A. citizenship effective 21 October 2010, which is when she took her oath of office as MTRCB Chairperson. This fact is likewise reflected on the last page of Petitioner's former U.S.A. Passport. 117

54. On 27 September 2012, Petitioner accomplished her COC for Senator, 11 8 which she filed with the COMELEC on 2 October 2012. Section 12 of the COC was, again, an affirmation of the Oath of Allegiance to the Republic of the Philippines which Petitioner had taken on 7 July 2006 (and which she had re­affirmed on 21 October 2010 when she took her oath of office as MTRCB Chairperson). Section 12 of the COC states:

I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO. I WILL OBEY THE LAWS, LEGAL ORDERS, AND DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES. I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF EVASION.

55. During the 13 May 2013 National Elections, Petitioner ran for and was overwhelmingly elected as Senator. She garnered over 20 million votes, the highest among her fellow Senatorial candidates, and a record in Philippine election history. On 16 May 2013, Petitioner was proclaimed Senator of the Republic of the Philippines.119

56. On 19 December 2013, the DFA issued to Sen. Poe Diplomatic Passport No. DE0004530 120 (valid until 18 December 2018), and on 18 March 2014, the DFA issued in her favor Philippine Passport No. EC058886l121 (valid until 1 7 March 2019). Like her earlier Philippine passports, these two (2) most

115 Elamparo Petition, p. 6, par. 22; Poe Memorandum, par. 2.41; COMELEC Second Division Resolution, p. 6, Fact No. 21 116 Petitioner's Certificate of Loss of Nationality of the United States was marked as Exhibit "31". 11 7 See Exhibit "5" 118 A copy of petitioner's Certificate of Candidacy for Senator is marked as Exhibit "32". See also, Poe Memorandum, par. 2.42 119 Elamparo Petition, p. 6, par. 24; Poe Memorandum, par. 2.43; COMELEC Second Division Resolution, p. 6, Fact No. 23 120 Marked a~ Exhibit "33". See also, Poe Memorandum, par. 2.44; COMELEC Second Division Resolution, p. 6, Fact No. 24 121 Marked as Exhibit "34". See also, Poe Memorandum, par. 2.44; COMELEC Second Division Resolution, p. 6, Fact No. 25

·J.

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26

recent passports uniformly state that Sen. Poe is a "citizen of the Philippines."

57. On 15 October 2015, Sen. Poe filed with COMELEC her COC for President in the 9 May 2016 national and local elections. 122 In her COC, she stated that she is a "NATURAL­BORN FILIPINO CITIZEN' and that her "RESIDENCE IN THE PHILIPPINES UP TO THE DAY BEFORE MAY 09, 2016' would be "10" years and "11" months (counted from 24 May 2005).

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57 .1. In her COC for President, Sen. Poe again affirmed the Oath of Allegiance to the Republic of the Philippines which she had taken on 7 July 2006 (when she reacquired her natural-born Filipino citizenship), on 21 October 2010 (when she took her oath of office as MTR CB Chairperson), and on 27 September 2012 (which she executed her COC for Senator in the 13 May 2013 election). Item No. 13 of Sen. Poe's COC for President states:

I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO. I WILL OBEY THE LAWS, LEGAL ORDERS, AND DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES. ,,,. I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY,':"· WITHOUT MENTAL RESERVATION OR PURPOSE OF ~,j;ti' EVASION. , ii .. t

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57.2. Attached to Sen. Poe's COC for President)s ,,,. ·an "Affidavit Affirming Renunciation of U.S.A. Citizenship"~ subscribed and sworn to before a notary public in Quezon:· ,

· City on 14 October 2015. In this affidavit, Sen. ·Poe ... stressed, among others, that her "Affidavit of Renunciati©n ·· of Allegiance to the United States of America and ::

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Renunciation of American Citizenship" 123 executed on 20 . October 2010 had not been recanted. She also emphasized. ~f that, effective 21 October 2010, she was no longer a U.S.A. '· · citizen, even under U.S.A. laws. .~

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57.3. However, in order to obviate any f~r~'l: objection to her qualifications, in paragraph 3 of sa~i,4 Octobe~ 2? 15 affidavit, Sen. Poe af~~med ~d reit~rat~.9~~~€ . renunc1at10n of her former U.S.A. c1tizensh1p, to wit: · '<;'i .... ,, ~

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Although I have long ceased to be a U.S.A. citizen, and without implying that my previous renunciation of U.S.A. citizenship was in any manner ineffective or recanted, but solely for the purpose of complying with the requirements for filing my Certificate of Candidacy ('COC') for President in the 9 May 2016 election (specifically. Item 10 of the COC) and in light of the pronouncement of the Supreme Court in Amado vs. COMELEC (G.R. No. 210164, 18 August 2015) that '(t)here is no law prohibiting (me) from executing an Affidavit of Renunciation every election period if only avert possible questions about (my) qualifications." I hereby affirm and reiterate that I personally renounce my previous U.S.A. citizenship, together with all rights, privileges, duties, allegiance and fidelity pertaining thereto. I likewise declare that, aside from that renounced U.S.A. citizenship, I have never possessed any other foreign citizenship. 124

C. The COMELEC Resolutions

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58. In its Resolution dated 1 December 2015, the Second Division of the COMELEC ("Second Division") first ruled that herein petitioner's statements in her 2015 COC, i.e., that she would have a residence of ten ( 10) years and eleven ( 11) months up to the day prior to the May 2016 elections, and that she is a natural-born Filipino, were false. "

58.1. On residence, the Second Division said that since Petitioner put six years and six months in her COC for Senator in the May 2013 elections, then she was a resident only from November 2006 and was therefore six months short of the required residence for the Presidency. The 2012 COC was considered as an admission against interest binding on Sen. Poe, and her claim of honest mistake was disregarded. The Second Division likewise stated that assuming that Sen. Poe was once a natural­born Filipino, her residence could be counted only from July 2006 when she reacquired citizenship under Rep. Act No. 9225. All of Sen. Poe's evidence showing that she was a resident from 24 May 2005 when she returned from the U.S.A. were not even discussed and plainly disregarded by the Second Division.

58.2. The Second Division likewise ruled that Sen. Poe was not a natural-born Filipino. It said that foundlings are not in the enumeration of citizens under the 1935

124 Underscoring supplied

28

Constitution and applied expressio unius est exclusio alterius. The Second Division also disagreed that the framers of the 1935 Constitution had intended that foundlings be included within the enumeration. It also said that the international law principles and conventions cited by Sen. Poe were inapplicable for being inconsistent with the jus sanguinis requirement in the Constitution or not binding or adhered to by the country.

59. On the issue of whether there was a deliberate attempt fo mislead, misinform or hide a fact from the electorate, the Second Division ruled that that there was such intent with respect to the claim of residency. It said that the declaration of ten years and eleven months in the 2015 COC was intended to hide the fact that Sen. Poe had earlier stated under oath in her 2012 COC that she had been residing in the Philippines only since November 2006.

59 .1. The Second Division threw a bone on the issue of citizenship, saying that the citizenship of foundlings is a question of first impression and until it is resolved by the Supreme Court, Sen. Poe's assertion that she is a natural-born Filipino may be presumed to have been made "in utmost good faith."

60. Sen. Poe promptly filed a Verified Motion for Reconsideration125 She argued, first, that there was no deliberate intent to hide anything false with respect to her claim of residence. She pointed out that several months before the filing of her 2015 COC, Rep. Tobias "Toby" Tiangco of the United Nationalist Alliance {"UNA") had already brought out in public the matter of petitioner's stated period of residency in her 2012 COC, and that Sen. Poe had already acknowledged the mistake and publicly explained how she committed the error. She likewise said that several months before the filing of her 2015 COC, a petition for quo warranto had been filed against her at the Senate Electoral Tribunal by one Rizalito David, who had also questioned her 2012 COC. Sen. Poe demonstrated that in her 31 August 2015 Verified Answer in that casel26 ("SET Answer"), she already made it of record that as of 13 May 2013, she had been residing in the Philippines "for more than six (6) years and six {6) months" already. Pertinent clippings, videos and the SET Answer were attached to Petitioner's Motion for Reconsideration.

125 Annex "M" hereof. Faithful reproductions of the Annexes to this Verified Motion for Reconsideration are likewise attached. 126 SET Case No. 001-15, entitled "Rizalito Y. David, petitioner, vs. Mary Grace Poe­Llamanzares, respondent"

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60.1. Sen. Poe likewise showed that her claim of residence of ten ( 10) years and eleven ( 11) months was true. She cited Romualdez-Marcos vs. Commission on Elections127 (already previously cited in her Verified Answer in the proceeding a quo yet inexplicably ignored by the Second Division) to show that a mistake in a COC committed in good faith may be corrected, that residence is principally a question of fact, and that the mistaken statement in the COC is not decisive. Sen. Poe also presented her proof of residence since May 2005, which were all disregarded by the Second Division.

60.2. Sen. Poe also showed that the Second Division had misapplied the rule on admission against interest. This rule means that it is only a piece of evidence which may be admitted, but it is not conclusive. Likewise, Sen. Poe argued that the application by the Second Division of the rule on estoppel meant that a party who is already aware of a previous error would be compelled to repeat such error and would never be permitted to correct it.

60.3. With respect to the formulation of the Second Division that her residence could be counted only from July 2006 at the earliest when she reacquired citizenship under R.A. No. 9225, Sen. Poe cited jurisprudence that said law treated citizenship· independently of residence. Sen. Poe also distingUitihed Coquilla vs. COMELEC, relied upon by the Second Divisiqn~ from her case. She demonstrated that in Coquilla, t):lere', was a dearth of evidence showing that the candidate .hat1 : actually established residence, or even intended to r~sid€;;:k in the Philippines. In contrast, Sen. Poe had numeroli~ ~ proof, all disregarded by the Second Division, showingrth~t ·

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she had re-established residence here for more than a year before she reacquired her natural born citizenship.

60.4. On the matter of citizenship, Sen. ~Po~ showed that her claim of natural born citizenship .. was correct. There is nothing in the Constitution or in any ;l~~ or jurisprudence excluding a foundling from natural~ ho~ citizenship. The Senate Electoral Tribunal in its .p · dated 17 November 2015 in SET Case No. 001-1-S_,·'"' Decision"), s8:id t~at the fact that she is "a foun~;Jltri:ict\~· not carry wit?. it the proof. ~h~t (Sen. Poe's) , ~e1i1:8=, were/are not citizens of the Philippines. On the contrary;'~\

.127 G.I}. No. 119976, September 18, 1995

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did not exclude the possibility that her parents are citizen<:> of the Philippines. xx x."128 She further argued that there is nothing in the language of Section 1, Article IV of the 1935 Constitution which definitely excludes foundlings from the enumeration of who are Filipino citizens, and that there is no way that she, as a foundling, can be categorically excluded from the enumeration of who are Filipino citizens under the 1935 Constitution, unless herein private respondent Elamparo herself presents evidence that Petitioner's father and mother are both aliens.

60.5. Addressing the Second Division's formulation that a recognition of the natural-born citizenship of a foundling would result to an "absurd situation" wherein natural-born citizenship is accorded to a person "with no known bloodline to a Filipino parent" yet denied "to a child with a known bloodline to a Filipino mother"129, Sen. Poe pointed out that a child with a known bloodline to a Filipino mother is a natural-born citizen under the 1987 Constitution, and that moreover, a child born of a Filipino mother under the 1935 Constitution is not placed at a disadvantage vis-a-vis a foundling. The former is actually given the right to choose her citizenship, which is denied not only to a foundling, but to other citizens as well. Once the election is made, such child is considered a natural-born citizen. A f6undling is only presumed to be natural-born.

60.6. Sen. Poe further contended that there is nothing in the Constitutional definition of natural-born Filipino citizenship130 which confines such status "solely and exclusively" to actual proof of blood relationship to a Filipino father or mother.131 The definition of natural-born citizenship does not say "those born of a Filipino father or mother proven as a fact", or even "those born of a Filipino father or mother", but rather, "those who do not have to perform any act to acquire or perfect their Filipino

128 Decision dated November 17, 2015 in SET Case No. 001-15 (hereinafter, "SET Decision"), p. 19 (Underscoring supplied) 129 COMELEC Second Division Resolution, pp. 23-24 130 Sec. 2, art. IV, 1987 Constitution 131 Indeed, considering that the filiation of children is sometimes also a presumption created by law (e.g., children conceived or born during the marriage of their parents are presumed to be the child of the husband, and their legitimate filiation cannot be impugned but by the husband himself or his heirs and only on limited grounds during a limited period), the Constitution cannot provide for such definition. In other words, tying natural­born Filipino status to actual proof of the existence of a blood tie between a child and a Filipino parent would be tantamount to requiring each Filipino citizen to prove, through scientific evidence such as DNA, that they are beyond the shadow of doubt the biological child of a parent who is Filipino.

31

citizenship."132 Clearly, the definition of natural-born citizenship is broad enough to contemplate citizenship ex lege or by operation of law, apart from naturalization, which always involves a positive act on the part of an alien who wishes to acquire Philippine citizenship.

60.7. Sen. Poe likewise contended that the Second Division's conclusion that the international conventions and other evidence of generally accepted principles of international law she invoked, was erroneous and· made out of jurisdiction, and that instead, it ought to have given persuasive weight to the final and executory SET Decision which ruled that: "(Sen. Poe) is a natural-born citizen under the 1935 Constitution and continue (sic) to be a natural-born citizen as defined under the 1987 Constitution, as she is a 'citizen of the Philippines from birth, without having to perform any act to acquire or perfect (her) Philippine citizenship."'

61. Private respondent Elamparo also filed a Motion for Partial Reconsideration133 on 7 December 2015, wherein she sought a reconsideration of the Second Division's finding that Petitioner did not commit a material misrepresentation with respect to her citizenship. Private respondent also filed, on 2 December 2015, even before the finality of the Second Division Resolution, an Urgent Motion to Exclude134 Sen-:· Poe from the list of candidates and the ballots for the 2016 elections. Petitioner opposed these motions through an Omnibus Comment/Opposition135 filed on 14 December 2015.

62. On 23 December 2015 (or on a day that this Honorable Court was closed and therefore unable to grant any relief to Sen. Poe, and just before the start of a four (4) day long holidays from 24 to 27 December 2015), the COMELEC En Banc, by a vote of five (5) to one (1) (with Chairman Andres Bautista dissenting and Commissioner Christian Robert Lim abstainingt36), promulgated its Resolution of even date denying Sen. Poe's Motion for Reconsideration, for the reasons discussed

132 Underscoring supplied 133 Annex "N" hereof 134 Annex "0" hereof 135 Annex "P" hereof. On 16 December 2015, herein Petitioner filed before the COMELEC En Banc an Omnibus Motion (a) to consolidate cases before the Commission en bane,· and (b) to set the cases for clarificatory hearing, which, however, was not acted upon by the COMELEC. As mentioned, the COMELEC En Banc decided to promulgate on 23 December 2015 two separate Resolutions for the motions for reconsideration of the First Division and Second Division Resolutions cancelling herein Petitioner's COC. A copy of herein Petitioner's Omnibus Motion dated 16 December 2015 is attached hereto as Annex "P-1". 136 Reportedly, he and private respondent used to be associates in the same law office.

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in the 1 December 2015 Resolution, and further on the following grounds:

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Re: Sen. Poe's residency in the Philippines

62.1. It is not true that the Second Division supposedly "rel(ied) on a single piece of evidence" (Sen. Poe's 2012 COC), "to the exclusion of all others," in deciding when Sen. Poe commenced her residence in the Philippines. That the Second Division "entirely omitted" to mentioned the evidence of respondent," does not mean it "did not consider them at all."

62.2. After taking a look "one by one" at Sen. Poe's evidence, it appears that they were all "executed before July 2006." This is supposedly "fatal" because, according to Coquilla vs. COMELEC, Japzon vs. COMELEC and Caballero vs. COMELEC, "the earliest possible date (Sen. Poe) could have re-established her residence in the Philippines is when she re-acquired her Filipino Citizenship on July 2006."

62.3. Supposedly, Coquilla teaches that it is the act of "obtain(ing) an immigrant visa .... and an Immigrant Certificate of Residence (ICR)" that "effectively waives an alien's status as a non-resident." Sen. Poe "does not·· appear to have perf armed this act." '-.,

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62.4. Sen. Poe's 2012 COC, which shows thaf stJ.ei started residing in the Philippines only "on Novemb'~r\ 2006," is "entirely inconsistent with her declaration" irt.her ... present 2015 COC that she "was a resident since . Mayt 2005." Sen. Poe's arguments were correctly struck dowh. "on the basis of this contradiction." , · · .

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62.5. Sen. Poe's statement on her residenc·e in her 2012 COC is an "admission against interest," which i~: the "best evidence" "afford(ing) greatest certainty of· th~· facts in dispute." It is "fair to presume" that the 2012 COC "corresponds with the truth, and it is (her) fault if it :tf.o not." Also, a COC, "being a notarial document, has ib. · favor the presumption of regularity," and to "contr~(;i~Cf.:t fact stated therein, there must be evidence that iffi: .. convincing and more than merely prepor..derant." .,J,:l~~~¥ .... """.

62.6. Therefore, while the COMELEC En ~fifia/A*\) appeared to have abandoned the Second Division's stanee that Sen. Poe's 2012 COC is "binding," it still held tha1fSen+

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Poe "failed to discharge" her "heavy burden" of presenting "clear, convincing and more than preponderant evidence" that it is the 2015 COC "that is correct and that the statements made in the 201(2) COC were done without bad faith."

62. 7. Although Sen. Poe acknowledged and explained her honest mistake in her 2012 COC, in a public interview in June 2015 and in her Verified Answer before the SET, these were "nonetheless delivered at a time when, at the very least, the possibility of respondent running for President of the country in 2016, was already a matter of public knowledge." "By then, [Sen. Poe] could have already been aware that she cannot maintain her declaration in the 201 (2) COC as it would be insufficient to meet the 10-year residency requirement for President."

62.8. "That there does not appear on record 'any significant event in (Sen. Poe's) life which would lead to her reckoning her residency in the Philippines as of November 2006, is not a definitive badge of good faith by (Sen. Poe)." "That a thing does not appear on record does not translate to it being inexistent."

Re: Sen. Poe's natural-born Philippine citizenship ,,,

62. 9. "The burden of proving that she 1s a natural-born Filipino citizen is upon respondent [ Sen. Poe]."

62.10. The COMELEC is "not completely bound by the SET Decision," and, despite the "final and executory" nature of the Decision, the COMELEC is "not precluded from making decisions on the cases . . . that (are) inconsistent with or even against the Decision of the SET." Unless the SET Decision is affirmed by the Supreme Court, it does not "form part of our legal system entitled to adherence." Moreover, the issue before the SET was the "eligibility of respondent for Senator," whereas the issue before the COMELEC was "the existence of material representation in (Sen. Poe's) subject COC."

63. In the same 23 December 2015 Resolution, the COMELEC En Banc also resolved two (2) other motions that were pending before it, as follows:

(a) It granted the Motion for Partial Reconsideration filed by private respondent and, therefore, held that Sen.

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Poe deliberately attempted to mislead, misinform or hide a fact from the electorate when she stated in her 2015 COC that she is a natural-born Filipino citizen. The COMELEC En Banc relied on three (3) of Sen. Poe's exhibits which supposedly demonstrate a "pattern of misrepresenting" her status as a Filipino citizen. It also held that "jurisprudence" on the issue of the foundling's citizenship is "not necessary," because the Constitution is "clear and unequivocal." Finally, the COMELEC En Banc accepted private

· respondent's position that the Second Division should not have taken judicial notice of circumstances which would "engender in (Sen. Poe) a well-founded belief that she is a true Filipino." In granting this motion, it does not appear that the COMELEC En Banc considered Sen. Poe's arguments in her Omnibus Comment/ Opposition to that motion. These arguments, and even the filing of said Comment/ Opposition, are definitely nowhere mentioned in the 23 December 2015 Resolution.

(b) The COMELEC En Banc also DENIED private respondent's Motion to Exclude Sen. Poe's name from the ballot in the 2016 elections. The COMELEC En Banc pointed out that, under its rules, "it is clear and express that no execution of the r December 2015 Resolution of the Commission's Second Division may be done while this Resolution on the motions for reconsideration has yet to attain finality. Therefore, Petitioner's Motion to Exclude may not be entertained as of this moment."137

64. Hence, this Petition. Sen. Poe has no other plain, adequate and speedy remedy apart from this Petition, especially considering the undue haste with which Petitioner's opponents would like her name stricken out of the list of candidates and the ballots, and the COMELEC En Bane's ominous citation of its own Rule 37 that its decision will become "final and executory after the lapse of five days from [its] promulgation, unless restrained by the Supreme Court." In fact, this petition for certiorari is the only remedy that Petitioner has, given by Section 7, Article IX-A of the 1987 Constitution and Rule 64, in relation to Rule 65 of the Rules of Court, and recognized by applicable jurisprudence.

137 Underscoring supplied.

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v. GROUNDS FOR THIS PETITION

THE COMELEC138 ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ORDERING THE CANCELLATION OF SEN. POE'S CERTIFICATE OF CANDIDACY FOR PRESIDENT IN THE 9 MAY 2016 ELECTIONS.

A.

THE COMELEC ACTED WHIMSICALLY AND CAPRICIOUSLY, IGNORED SETTLED JURISPRUDENCE AND DISREGARDED THE EVIDENCE ON RECORD IN RULING THAT SEN. POE MADE A FALSE MATERIAL REPRESENTATION IN HER COC FOR PRESIDENT WHEN SHE STATED THEREIN THAT HER "PERIOD OF RESIDENCE IN THE PHILIPPINES UP TO THE DAY BEFORE MAY 09, 2016" WOULD BE "10" YEARS AND "11" MONTHS.

A.1. ,-~'{

The COMELEC had the positive duty to consider and weigh Sen. Poe's evidence showing that she had reestablished her domicile of choice in the Philippines as early as 24 May 2005. The COMELEC's refusal to perform this positive duty, and its gross and inexcusable misappreciation of Sen. Poe's evidence, are unquestionably acts of grave abuse of discretion amounting to lack or excess of jurisdiction, which warrant setting aside the COMELEC's findings of fact on the issue of Sen. Poe's residence.

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A.1.a. The COMELEC disregarded the settled principle enunciated in Romualdez­Marcos vs. COMELEC, reiterated in Perez vs. COMELEC, that a candidate's statement in her certificate of candidacy is not decisive of the issue of residence. The fact of residence always prevails over a candidate's statement about his or her residence.

A.Lb.The COMELEC acted whimsically and capriciously in automatically concluding that Sen. Poe's statement in her COC for President concerning her period of residence is false, simply because her earlier COC for Senator supposedly contradicts that statement. The COMELEC should have determined, independent of Sen. Poe's COC for Senator, whether the period of residence stated in her COC for President is false.

A.2.

The COMELEC disregarded the basic principle that residence is an issue of fact, and cited

_ _ __ .. _ _ _ inapplicable jurisp_rqqep~e_, wh=e-=-n=-­it ruled that the commencement of Sen. Poe's domicile in the Philippines should start, at the earliest, when she reacquired her natural-born Philippine citizenship under R.A. No. 9225.

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A.3.

Considering that: (a) Sen. Poe's statement in her COC for Senator is not binding or conclusive; and (b) a foreigner may legally establish her residence in the Philippines even before repatriation and even without a permanent resident visa, the COMELEC had the positive duty to consider Sen. Poe's evidence showing that she had reestablished her domicile of choice in the Philippines as early as 24 May 2005. The COMELEC's refusal to perform this positive duty and its utter disregard of Sen. Poe's evidence are unquestionably acts of grave abuse of discretion amounting to lack or excess of jurisdiction.

A.4.

In ruling that Sen. Poe was "estopped" from asserting a period of residence inconsistent with her COC for Senator, and in ruling further that a person's domicile of choice may commence only upon repatriation and/ or the possession of a permanent resident visa, the COMELEC applied a "very legalistic, academic and technical approach to the residence requirement" which "does not satisfy" and is completely divorced from the "simple, practical and common-sense rationale for the resill~nce

requirement."

A.5.

The COMELEC ignored evidence of Sen. Poe's honesty and good

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faith when it ruled that she had concealed her supposed "ineligibility" for the Presidency, and that she supposedly intended to mislead or deceive the Philippine electorate, when she stated in her COC for President that her "PERIOD OF RESIDENCE UP TO THE DAY BEFORE MAY 09, 2016" would be "10" years and "11" months.

B.

THE COMELEC ACTED WHIMSICALLY AND CAPRICIOUSLY, IGNORED SETTLED JURISPRUDENCE AND DISREGARDED THE EVIDENCE ON RECORD IN RULING THAT SEN. POE MADE A FALSE MATERIAL REPRESENTATION IN HER COC FOR PRESIDENT WHEN SHE STATED THEREIN THAT SHE IS A "NATURAL BORN FILIPINO CITIZEN."

B.1. 1··

The COMELEC disregarded the legal impact of the 17 November 2015 Decision of the Senate Electoral Tribunal ("SET") in SET Case No. 001-15, which became final and executory on 3 December 2015, or after the petition a quo was deemed submitted for resolution. The SET Decision negates the falsity of Petitioner's representation in her COC for President that she is a natural-born Filipino. Sen. Poe cannot be a natural-born Filipino as a Senator, but not a natural­born Filipino as a candidate for the Presidency.

B.2.

The COMELEC disregarded settled and long-standing

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jurisprudence that the burden of proof in proceedings under Section 78 of the OEC, in relation to Rule 23 of the COMELEC Rules, is on the petitioner, when it ruled that Sen. Poe had the burden of proving her natural­born citizenship.

B.3.

The COMELEC acted whimsically, capriciously, contrary to common sense and logic, and in contravention of the letter and spirit of the fundamental law, in concluding that a foundling like Sen. Poe is excluded from the enumeration of Philippine citizens under Section 1, Article IV of the 1935 Constitution.

B.4.

The COMELEC disregarded applicable international human rights instruments ratified by the Philippines which create an affirmative obligation to consider foundlings as natural-born citizens of the country.

B.5.

The COMELEC disregarded the basic constitutional law concept of "incorporation" and igi:iored applicable settled jurisprudence on the matter, when it ruled that the Philippines is supposedly "not bound" by the 1930 Hague Convention and Certain Questions Relating to the Conflict of Nationality Laws (the "1930 Hague Convention") and the 1961 Convention on the Reduction of Statelessness ("Convention on Statelessness"),

40

simply because the Philippines "is not a signatory" to these two treaties.

B.6.

The COMELEC gravely abused its discretion when it chose to interpret the provisions on citizenship in a manner that runs contrary to the fundamental principles animating the 1987 Constitution.

B.7.

The COMELEC ignored the Constitutional and settled jurisprudential definition of a "natural-born Philippine citizen" when it ruled that: (a) although every child has a right to acquire a nationality, Sen. Poe cannot be considered a "natural-born" Filipino; and (b) a foundling cannot be considered a "natutal-born" Filipino under international law because applicable international conventions and instruments do not use the phrase "natural-born" in referring to citizenship or nationality.

B.8.

The COMELEC acted with grave abuse of discretion in ruling that the recognition of foundlings as natural-born Filipinos would contravene the 1935 Constitution and the principle of jus sanguinis.

B.9.

The DOJ, and not the COMELEC, has the primary jurisdiction to

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revoke the B.I.'s 18 July 2006 Order which: (a) found Sen. Poe to be presumptively a former natural-born Filipino; and (b) approved her petition for reacquisition of natural-born Filipino citizenship. Insofar as the COMELEC held that Sen. Poe was not qualified for the B.I. 's Order, the same is a prohibited collateral attack on Sen Poe's natural-born Filipino citizenship.

B.10.

The COMELEC ignored evidence of Sen. Poe's honesty and good faith when it ruled that she supposedly intended to mislead or deceive the Philippine electorate, when she stated in her COC for President that she is a "NATURAL BORN FILIPINO CITIZEN."

,.,-c.

THE COMELEC ACTED WITHOUT JURISDICTION WHEN IT GRANTED THE PETITION A QUO, DESPITE THE ABSENCE OF ANY FALSE MATERIAL REPRESENTATION IN SEN. POE'S COC FOR PRESIDENT.

C.1.

In the absence of a false material representation in Sen. Poe's COC for President, the petition a quo should have been dismissed outright for being a premature petition for quo warranto which is within the sole and exclusive jurisdiction of the Presidential Electoral Tribunal ("PET").

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C.2.

In the absence of a false material representation in Sen. Poe's COC for President, the cancellation thereof effectively deprives the Filipino people of their sovereign prerogative to decide a purely political question, that is-who will be the 16th President of the Republic of the Philippines?

VI. DISCUSSION

THE COMELEC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ORDERING THE CANCELLATION OF SEN. POE'S CERTIFICATE OF CANDIDACY FOR PRESIDENT IN THE 9 MAY 2016 ELECTIONS.

65. The extraordinary writ of certiorari which Sen. Poe respectfully prays for in this Petition may be issued if the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in ordering the cancellation of her COC for President.

66. In Alliance for Nationalism and Democracu vs. COMELEC, 139 this Honorable Court defined "grave abuse of discretion" as "the arbitrary or despotic exercise of power due to passion, pr~iudice or personal hostility; or the whimsical, arbitrary, or capricious exercise of power that amounts to an evasion or a refusal to perform a positive duty enjoined by law or to act at all in contemplation of law."140

67. The COMELEC gravely abuses its discretion when it acts in contravention of settled law, jurisprudence and rules of evidence or procedure.

67 .1. In Information Technology Foundation of the Philippines, et al. vs. COMELEC, 141 this Honorable Court held that there is grave abuse of discretion "when an act is

139 G.R. No. 206987, 10 September 2013 140 Underscoring supplied 141 G.R. No. 159139, 13 January 2004

43

done contrary to the Constitution, the law or jurisprudence."

67.2. Regio vs. COMELEC, 142 is authority for the proposition that the COMELEC commits grave abuse of discretion when it "ignor(es) the rules on evidence" or "issues a ruling in "gross cdntravention of established rules on evidence."

97.3 In Varias vs. COMELEC,143 the Supreme Court held that the "(u)se . of wrong or irrelevant considerations in deciding an issue is sufficient to taint a decision makers action with grave abuse of discretion." In footnote 25 of the Varias case, the High Court noted that in Pecson vs. COMELEC, 144 citing Almeida v. Court of Appeals, 145 the High Court ruled that "a court abuses its discretion when it . . . relies on clearly erroneous factual findings, considers clearly irrelevant or improper factors, clearly gives too much weight to one factor, relies on erroneous conclusions of law or equity, or misapplies its factual or legal conclusions."

68. The COMELEC correctly heldl 46 that the elements of a Petition to Deny Due Course to or Cancel a Certificate of Candidacy under Section 78 of the OEC, in relation to Section 74 of the OEC and Rule 23 of the COMELEC,.,Rules, are three­fold:

a. First, there must be a "false" representation in the COC. Both Section 78 of the OEC and Section 1, Rule 23 of the COMELEC Rules state that the "exclusive" ground that may be raised in the Petition is that a "representation contained (in the COC) as required by law is false." --

b. Second, the false representation must pertain to a "material" fact, or those which concern the "candidate's qualifications for elective office," including her citizenship and residence.14 7

c. Third, the false material representation in the COC must amount to a "deliberate attempt to mislead,

142 G.R. No. 204828, 3 December 2013 143 G.R. No. 189078, 11 February 2010 144 G.R. No. 182?65, 24 December 2008 145 489 Phil 649 (2005) 146 1 December 2015 Resolution, at p. 15 147 Mitra vs. COMELEC, G.R. No. 191938, 2 July 2010; Dela Pena vs. Osmena and COMELEC, G.R. No. 209286, 23 September 2014

~ I

44

misinform, or hide a fact that would otherwise render a candidate ineligible," or it should have been made "with the intention to deceive the electorate as to the would-be candidate's qualifications for public office." 14s

69. The COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it ruled that the first and third elements were established in the proceeding a quo. If the COMELEC had weighed and considered Sen. Poe's evidence and relied on settled and applicable law and jurisprudence, it would have inevitably realized that Sen. Poe's assertions in her COC for President about her citizenship and residency were neither false nor intended to deceive. Unfortunately, the COMELEC arbitrarily disregarded Sen. Poe's evidence. The COMELEC likewise ignored basic law, rules and jurisprudence on the definition of "natural-born" citizenship, the burden of proof in petitions under Section 78 of the OEC, the international law doctrines of "transformation" and "incorporation," the doctrine of primary jurisdiction, the basic elements of reestablishment domicile of choice in the Philippines and the non-"decisive" nature of statements on residence in et.

certificate of candidacy.

70. As a consequence, the COMELEC evaded its positive duty to dismiss the petition a quo and, instead, ordered the 4~ancellation of Sen. Poe's COC for President. For these, and 'ilie. reasons to be discussed in detail below, Sen. Poe respectfuify submits that a writ of certiorari is in order in this case. . " .

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THE CO MEL EC ACTED WHIMSICALLY AND CAPRICIOUSLY, IGNORED SETTLED JURISPRUDENCE AND DISREGARDED THE EVIDENCE ON RECORD IN RULING THAT SEN. POE MADE A FALSE MATERIAL REPRESENTATION IN HER COC FOR PRESIDENT WHEN SHE STATED THEREIN THAT HER "PERIOD OF RESIDENCE IN THE PHILIPPINES UP TO THE DAY BEFORE MAY 09, 2016" WOULD BE "10" YEARS AND "11" MONTHS. t_J ______________________________________________ _

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148 Id.

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45

A. l. The COMELEC had the positive duty to consider Sen. Poe's evidence showing that she had reestablished her domicile of choice in the Philippines as early as 24 May 2005. The COMELEC's refusal to perform this positive duty and its utter disregard of Sen. Poe's evidence are unquestionably acts of grave abuse of discretion amounting to lack or excess of jurisdiction, which warrant setting aside the COMELEC's findings of fact on the issue of Sen, Poe's residence.

71. The settled definition of "residence" in election law is that it is "synonymous with 'domicile,' which imports not only intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention."1 4 9

In Romualdez-Marcos vs. COMELEC, 150 this Honorable Court held: I

In Ong vs. Republic this court took the concept of domicile to mean an individual's "permanent home", "a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent." Based on the foregoing, domicile includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the intention of returning there permanently.151

In other words, "domicile" is simply a function of "presence" and "intention." It is ultimately a question of fact. Therefore, when an issue of residency is brought before the COMELEC, its positive duty, which it cannot evade, is to carefully evaluate and weigh the evidence. The same formulation applies to the determination of whether one has established a new domicile of choice.

149 Gallego vs. Verra, G.R. No. 48641, 24 November 1941 (citing Nuval vs. Guray, 52 Phil. 645); Japzon v. Commission on Elections, G.R. No. 180088, 19 January 2009; Jalosjos vs. COMELEC, G.R. No. 191970, 24 April 2012 (citing Lim bona v. Commission on Elections, G.R. No. 181097, June 25, 2008, 555 SCRA 391, 401) 150 G.R. Nos. 119976, 18 September 1995, citing Gallego vs. Vera, 73 Phil. 453 (1941) 151 Underscoring supplied

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72. It is well-settled that in order to acquire a new domicile of choice, three (3) requisites must concur: 152

(a) residence or bodily presence in the new locality;

(b) an intention to remain there (animus manendi); and

(c) an intention to abandon the old domicile (animus ·nan revertendi)

Curiously, the COMELEC did not even mention these three basic requirements for reestablishing domicile of choice in the Philippines in any of its assailed Resolutions.

72.1. Even in Japzon153 (which the COMELEC cited in its assailed Resolutions and which is the primary legal basis for this Honorable Court's recent ruling in Caballero1 S4 ), the High Court stressed the significance of the elements of intention and physical presence in determining domicile of choice. In Japzon, this Honorable Court stated that "(t)he length of his residence . . . shall be determined from the time he made it his domicile of choice .... "155 Japzon156 also relied on Papandayan, Jr. vs. COMELEC157 which provided a "summatie5n of the different principles and concepts in jurisprudence relating to the residency qualification for elective local officials." This summary again emphasized that residence is essentially a factual issue of "physical presence" and "intention."

72.2. After summarizing the core principles related to the residency qualification, this Honorable Court in Japzon158 stressed that this matter is ultimately a question of fact, which requires a careful examination of the evidence presented by the parties, thus:

Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is the decisive factor in determining whether or not an individual has satisfied the residency qualification requirement.

152 Mitra vs. COMELEC, G.R. No. 191938, 2 July 2010; Japzon v. Commission on Elections, G.R. No. 180088, 19 January 2009, citing Papandayan, Jr. v. Commission on Elections, 430 Phil. 754 (2002) 153 G.R. No. 180088, 19 January 2009 154 G.R. No. 209835, 22 September 2012 155 Underscoring supplied 156 G.R. No. 180088, 19 January 2009 151 G.R. No. 147909, 16 April 2002 158 G.R. No. 180088, 19 January 2009

_______________________________________________________ ....._

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As espoused by Ty, the issue of whether he complied with the one-year residency requirement for running for public office is a question of fact. Its determination requires the Court to review, examine and evaluate or weigh the probative value of the evidence presented by the parties before the COMELEC.159

73. Sen. Poe's documentary and testimonial evidence proving her residence in the Philippines since 24 May 2005 are summarized below (See Annexes "H" and "I-series" hereof):

Exh. No. "5"

"6-series

"

.;l le

{

":f

Description

U.S.A. Passport No. 017037793 which the U.S.A.­Washington Passport Agency issued to Sen. Poe on 18 December 2001, consisting of 13 pages

Formally offered by Sen. Poe (among other ouroosesJ to orove that:

Sen. Poe returned permanently to the Philippines on 24 May 2005, and from that point onwards would always return to the Philippines after every trip to a foreign country

E-mail exchanges I 1. on various dates from March 18, 2005 to September 29, 2006 between Sen. Poe and/or I 2. her husband and

Sen. Poe's family decided to return and permanently reside in the Philippines soon after the death of Sen. Poe's father, i.e.,f sometime in the first quarter of 2005; , .. As early as March 2005, Sen. Poe a?'i.tJ her family already had the definj,te

representatives of: ( 1) Victory Van Corporation, and (2) National Veterinary Quarantine Service of the Bureau of Animal Industry of the Philippines, consisting of 23 pages

intention to abandon their U.S.A. residence and return to the Philippines for good;

3. As early as March 2005, Sen. Poe had begun the process of relocating and ~~ re-establishing her residence in the Philippines;

4. This process continued from March· 2005 to early 2006;

5. As early as February 2006, but no later than April of the same year, Sen. Poe and her family had all their valuable movable properties, including household goods, furniture, toys an~ vehicles, packed and stored for relocation to the Philippines; ai:-d ,:· ;_;;

6. By May 9, 2016, Sen. Poe will b"(}4EC resident of the Philippines for ten ('.l:Ql .,.,. .,. __ ,x-years and eleven (11) months t",,f: L•

·~ +a·i·

" 8 "' · 1 Official Transcriot I 1. Sen. Poe enrolled her ,,_·:i.,···

1f 1s9 Underscoring supplied

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of Records for children in Philippine schools before Brian Daniel Poe June 2005; Llamanzares, 2. Sen. Poe's school-aged children issued by The transferred to and began attending Beacon School, Philippine schools starting June 2005; consisting of 1 3. Sen. Poe's children had been

a e continuously attending Philippine "7-A" I Certification dated schools since June 2005;

April 15, 2015 4. Sen. Poe intended to reside, and had issued by the been actually residing, permanently in Registrar of La the Philippines since May 2005; and Salle Green Hills, 5. By May 9, 2016, Sen. Poe will be a Ms. Sandra resident of the Philippines for ten ( 10) Bernadette F. years and eleven (11) months Firmalino, consisting of 1 page

"7-B" I Elementary Pupil's Permanent Record for Hanna Mackenzie P. Llamanzares, issued by the Assumption College, consisting of 2 pages

"7-C" I Secondary Student's Permanent Record for Hanna Mackenzie P. Llamanzares, issued by the Assumption College, consisting of 2 pages

,,.

"7-D" I Certificate of Same as Exhibit "7", and further, to prove Attendance dated that Sen. Poe enrolled her youngest child, April 8, 2015 Anika, in Philippine schools as soon as issued by the she was of schooling age, and that she Directress of the had been continuously attending school Learning in the Philippines Connection, Ms. Julie Pascual Penaloza, consisting of 1 page

"7-E" I Certification dated April 14, 2015 issued by Directress of The Greenmeadows Learning Center, Ms. Anna Villaluna-Reyes,

~

consisting of 1 page

49

"7-F" I Elementary Pupil's Permanent Record for Jesusa Anika Carolina P. Llamanzares, issued by the Assumption College, consisting of 1 page

"8" I Identification Card 1. Shortly after Sen. Poe returned to the

"11"

"12"

"13"

issued by the Philippines permanently in May 2005, Bureau of Internal she secured for herself a T.I.N. (239-Revenue ("B.I.R.") 290-513-000) from the B.l.R.; to Sen. Poe on 2. In the first quarter of 2005 and no July 22, 2005, later than May 2005, Sen. Poe had consisting of 1 abandoned her residence in the page U.S.A., and, from then on, she

intended to reside permanently in the Philippines; and

I Condominium Certificate of Title ("CCT") No. 11985-R covering Unit 7F of One Wilson Place, which the Registry

3. By May 9, 2016, Sen. Poe will be a resident of the Philippines for ten (10) years and eleven (11) months

1 i. In the first quarter of 2005 and no later than May 2005, Sen. Poe had abandoned her residence in the U.S.A., and, from then on, she intended to reside, a-S she did actually and physically reside, permanently in the Philippines;

of Deeds for San I 2. In the second half of 2005, Sen. Poe and her husband acquired a residential condominium with parking slot in San Juan City, which they used as a family residence until the completion of their intended permanent family home at Corinthian Hills, Quezon City; and

Juan City issued on February 20, 2006, consisting

I of 4 pages CCT No. 11986-R covermg the parking slot for Unit 7F of One I 3. Wilson Place, which the Registry of Deeds for San Juan City issued on February 20, 2006, consisting of 2 2ages

I Declaration of Real Property No. 96-39721 covering Unit 7F of One Wjlson Place, issued by the Office of the City

By May 9, 2016, Sen. Poe will be a resident of the Philippines for ten ( 10) years and eleven (11) months

-

i.i, ;· I

1. 1\

Assessor of San Juan City on April 25, 2006, consisting of 1

ae:e "14" I Declaration of

Real Property No. 96-39722 covering the parking slot for Unit 7F of One Wilson Place, issued by the Office of the City Assessor of San Juan City on April 25, 2006 consisting of 1

ae:e

so

"15" I Receipt No. To prove that: 8217172 issued 1. In February 2006, Sen. Poe briefly by the Salvation travelled to the U.S.A. for the sole Army on February purpose of supervising the packing 23, 2006, and/ or disposal of some of the family's consisting of 1 remaining household belongings;

12age "15-A" Receipt No.

, 2. Sen. Poe had definitely abandoned her residence in the U.S.A. and did not intend to return there anymore;

"16"

"17"

,,

8220421 issued by the Salvation I 3. Army on February 23, 2006,

1

consisting of 1 14. page

E-mail from the \ 1. U.S.A. Postal Service, sent on March 28, 2006 to Sen. Poe's 12. husband, confirming the latter's submission of a request for change I 3. of address to the U.S.A. Postal Service, consisting

I of 1 2age I Final Statement 1. issued by First

Since May 2005, Sen. Poe intended to reside, and actually resided permanently in the Philippines; and By May 9, 2016, Sen. Poe will b<: .. Jl resident of the Philippines for ten r:k:Q). years and eleven ( 11) months "' :·

Sen. Poe and her family definitely abandoned their former residence 1n the U.S.A. and did not intend to return there anymore; No later than May 2005, Sen. Poe l:;l;~tj abandoned her residence in the U.S.A., and, from then on, st,ie intended to reside permanently in the Philippines; and By May 9, 2016, Sen. Poe will be a resident of the Philippines for ten ( lQ) 1"

years and eleven (11) months 1,c

,;;;

On April 27, 2006, Sen. Poe an.d,.~r·{ husband sold their family home irY~e

American Title Insurance Company which indicates as

U.S.A.; ...•. _7;,; ..

2. Sen. Poe and her family deflrt~fy ~" abandoned their former residence ''11. the U.S.A. and did not intend ··to

I 1:~$c·

Settlement Date: "04-27 I 2006,"

return there anymore; ·.::~ 3. No later than Mav 2005, Sen. Poe Had

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51

consisting pages

of 2 I abandoned her residence in the U.S.A., and, from then on, she intended to reside permanently in the Philippines; and

4. By May 9, 2016, Sen. Poe will be a resident of the Philippines for ten ( 10) years and eleven (11) months

"18" I Transfer 1. No later than May 2005, Sen. Poe had Certificate of Title abandoned her residence in the No. 290260 U.S.A., and, from then on, she covering a 509- intended to reside permanently in the square meter lot Philippines; at No. 106, Rodeo 2. In early 2006, shortly after selling Drive, Corinthian their house in the U.S.A., Sen. Poe Hills, Barangay and her husband acquired a vacant lot Ugong Norte, in Quezon City, where they built their Quezon City, new home; and issued by the 3. By May 9, 2016, Sen. Poe will be a Registry of Deeds resident of the Philippines for ten (10) for Quezon City on years and eleven (11) months. June 1, 2006, consisting of 4 pages

"30-A" I The Questionnaire - Information for Determining Possible Loss of U.S. Citizenship (issued by the U.S. Department of State - Bureau of Consular Affairs), which Sen. Poe accomplished on 12 July 2011, consisting of 5 pages

"41" I Affidavit of Jesusa Sonora Poe dated 8 November 2015 consisting of 3 pages

1. As stated on page 1 of the Questionnaire, even before she ran for an elective office, and long before the question of her residence in the Philippines became an issue, Sen. Poe considered herself a resident of the Philippines since "05 2005" or May 2005;

2. As stated on page 4 of the Questionnaire, Sen. Poe maintained her ties in the Philippines, re­established her residence in the Philippines since May 2005, and exercised her civil and political rights as a Filipino citizen;

3. No later than May 2005, Sen. Poe had abandoned her residence in the U.S.A., and, from then on, she intended to reside permanently in the Philippines; and

4. By 9 May 2016, Sen. Poe will be a resident of the Philippines for ten ( 10) years and eleven ( 11) months

1. Shortly after the death of Sen. Poe's father, i.e., in early 2005, Sen. Poe and her family decided to move back and come home to the Philippines for good to be with Sen. Poe's mother;

2. Sen. Poe arrived in the Philippines in May 2005 and her children also arrived at or around that time;

"42" Affidavit Teodoro Daniel

of Misael

v. Llamanzares dated 8 November 2015 consisting of 3 pages

52

3. Sen. Poe enrolled Brian and Hanna in schools in the Philippines for the school year 2005-2006;

4. Upon their return to the Philippines in 2005, Sen. Poe and her children initially lived with Sen. Poe's mother at her residence in San Juan City until they could find their own place to stay;

5. Sen. Poe's mother reassigned their long-time family driver to work as Sen. Poe's driver since 2005 precisely because Sen. Poe would and her children would henceforth be based in the Philippines;

6. In the first quarter of 2005 and no later than May 2005, Sen. Poe had abandoned her residence in the U.S.A., and, from then on, she intended to reside permanently in the Philippines; and

7. By 9 May 2016, Sen. Poe will be a resident of the Philippines for ten (10) years and eleven ( 11) months

1. Shortly after the death of Sen. Poe's father, i.e., in the first quarter of 2005, Sen. Poe and her husband decided to return to and permanently reside in the Philippines;

2. As early as March 2005, Sen. Poe and her husband started making arrangements to tr an sf er her family's personal belongings and household goods from the U.S.A. to the Philippines;

3. In the first quarter of 2005 and no later than May 2005, Sen. Poe had abandoned her residence in the U.S.A., and, from then on, she intended to reside permanently in the Philippines;

4. By 9 May 2016, Sen. Poe will be a resident of the Philippines for ten (10) years and eleven (11) months;

5. The documents marked as Exhibits "6-series" are authentic print-outs accurately reflecting digitally stored electronic data messages or electronic documents pertaining to the conversations between Sen. Poe and/ or her husband and representatives of (a) Victory Van International; and (b) National Veterinary Quarantine Service of the Bureau of Animal Industry of the Philippines; and

73.1.

53

6. The document marked as Exhibit "16" is an authentic print-out accurately reflecting digitally stored electronic data message or electronic document from the United States Postal Service.

Additionally, Exhibit "42" is being offered to:

Authenticate Exhibit "6-series" and Exhibit "16" in accordance with Rules 5 and 9 of A.M. No. 01-7-01-SC16o, promulgated by the Supreme Court on 1 7 Julv 2001.

As held in Sabili vs. COMELEC161 and Mitra vs. COMELEC, 162 the various pieces of evidence showing that Sen. Poe established her domicile of choice in the Philippines starting on 24 May 2005, must be viewed "collectively" and not "separately" or in isolation.

74. Treating the issue of Sen. Poe's residence as a question of fact, it is evident that when she returned to the Philippines on 24 May 2005, she satisfied the three (3) requisites for reestablishing her domicile of choice in the country. If the COMELEC had carefully examined and weighed her evidence, it would have arrived at the inevitable conclusion that Sen. Poe's animus manendi (in the Philippines) and animus non revertendi (to the U.S.A.) concurred with her physicar presence in the country on 24 May 2005.

·t, 74.1. Sen. Poe returned to the Philippines.on ·;2f May 2005,163 and, except for brief trips abroad, 164 has beep'

' continuously residing in the Philippines since that periodt.~·,. Notably, in 2011 or two (2) years prior to her ever runnfr'.ig: for an elective office, Sen. Poe already stated in a sworn document that she "became a resident of the Philippines

160 The Rules on Electronic Evidence 161 G.R. No. 193261, 24 April 2012, citing Enojas, Jr. v. Commission on Elections, 34z7, Phil. 510 ( 1997)

, /62 G.R. No. 191938, 2 July 2010 ::~} 163 See An~exes "~" a.nd "1-ser.i~s";. Exhibit "I" (Sen. Poe's travel records) and Exhil:>it ~::i·

·' p.10, showmg arrival m the Ph1hppmes on May 24, 2005. ·· :r<· 16 4 Sen. Poe's trips abroad during the contested period from May 2005 to July 2Q061~'i;l,re:·:.t~~~

. 1) Hong Kong - Philippin~ departure: September 11, 2005, Philippin"~Jfiirriv·;~ September 14, 2005, lastmg only four (4) days; · ·· · · ·· ·

\

f 2) USA - Philippine departure: December 16, 2005, Philippine arrival: ... ~a~y .. -..., .,. . . ; r . 2006, lasting only twenty two (221 days; ,.~" 11* "';,·~ ... ~.

rt 3} US~ - Philippine def:larture: February 14, 2006, Philippine arrival: March 111:'2~~; ·." " · lastmg only twenty five (251 days; _,,· · ;;

. v 4) Thailand - Philippine departure: July 2, 2006, Philippine arrival: July -~. ·2006, lasting only four (4) days. (See Exhibits "I" for the Petitioner and "5" for ~he Sen. Poe)

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once again since 2005", 165 specifically from "05 2005" (May 2005) to "present" .166

74.2. Sen. Poe's animus manendi, or intent to stay permanently in the Philippines, is evidenced by, among others:

a) Sen. Poe's travel records, which show that whenever absent for a trip abroad, she would consistently return to the Philippines; 167

b) Affidavit of Jesusa Sonora Poe,16s attesting to, inter alia, the fact that after their arrival in the Philippines in early 2005, Sen. Poe and her children first lived with her at 23 Lincoln St., Greenhills West, San Juan City, which even necessitated a modification of the living arrangements at her house to accommodate Sen. Poe's family; 169

c) School records of Sen. Poe's children,170 which show that they had been attending Philippine schools continuously since June 2005;

d) Sen. Poe's TIN I.D.,171 which shows that shortly after her return in May 2005, she considered herself a taxable resident and submitted herself to the Philipp in es' tax jurisdiction;

e) Condominium Certificates of Title for Unit 7F and a parking slot at One Wilson Place<172 purchased in early 2005, and its corresponding Declarations of Real Property I 73 for real property tax purposes, which clearly establish intent to reside permanently in the Philippines; 174

165 See Annexes "H" and "I-series"; Exhibit "30-A'', p. 4, in response to item no. 7 appearing on the same page. 166 Id. p.1. 167 Supra note 164 and infra note 185. 168 Annexes "H" and "I-series"; Exhibit "41" 169 See Jalosjos vs. COMELEC, G.R. No. 191970, 24 April 2012 [citing Co v. Electoral Tribunal of the House of Representatives, G.R. Nos. 92191-92 and 92202-03, July 30, 1991, 199 SCRA 692, 715, citing Delos Reyes v. Solidum, 61 Phil. 893, 899 (1935)], where the Supreme Court reiterated the principle that "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." 170 Annexes "H" and "I-series"; Exhibits "7" to "7-F" for Sen. Poe 171 Annexes "H" and "I-series"; Exhibit "8" for Sen. Poe 172 Annexes "H" and "I-series"; Exhibits "11" and "12" for Sen. Poe 173 Annexes "H" and "I-series"; Exhibits "13" and "14" for Sen. Poe 174 The candidate's purchase of real property in a locality is a strong evidence of his intent to reside or live therein. In Jalosjos v. COMELEC, (G.R. No. 191970, 24 April 2012, citing Co v. Electoral Tribunal of the House of Representatives, G.R. Nos. 92191-92 and 92202-03, July 30, 1991, 199 SCRA 692, 715), the candidate's purchase of a residential lot and a fish pond in the locality were considered evidence of his establishment of domicile there. In Mitra vs. COMELEC (G.R. No. 191938, October 19, 2010), the following were considered as proof of establishment of residence: (a) "the purchase of a lot for (the candidate's) permanent home;" and (b) the construction of a house on the said lot." In Gallego vs. Vera

55

f) Sen. Poe's reacquisition of her natural-born Filipino citizenship, 175 and applications for derivative citizenship for her minor children; 176

g) Sen. Poe's registration as a voter on August 31, 2006;177

h) Sen. Poe's renunciation of her U.S.A. citizenship on October 20, 2010;178

i) Sen. Poe's acceptance of her appointment as MTRCB Chairperson on October 21, 2010;179

j) Questionnaire - Information for Determining Possible Loss of U.S. Citizenship, 180 wherein Sen. Poe, long before the commencement of any controversy with respect to her residency, indicated that she considered herself a resident of the Philippines starting in May 2005.

74.3. On the other hand, Sen. Poe's animus non-revertendi, or definite intent to abandon her U.S.A. domicile as early as first quarter of 2005, is evidenced by, among others:

a) Affidavit of Jesusa Sonora Poe, 18 1 attesting to, among others, the reasons which prompted Sen. Poe to leave the United States and return permanently to the Philippines;

b) Affidavit of Sen. Poe's husband, Teodoro Misael Daniel V. Llamanzares, 182 corroborating Mrs. Poe's statement and explaining how he and Sen. Poe had been actively attending to the logistics of their permanent relocation to the Philippines since March 2005;

c) Sen. Poe and her husband's documented conversations with property movers regarding the relocation of their household goods, furniture, and cars, then in Virginia, US.A., to the Philippines, which show that they intended to leave the United States for good as early as March 2005;183

(73 Phil. 453 [ 1941]), the fact that the candidate had "bought a piece of land" in Abuyog was deemed evidence of his animus manendi therein. 175 Annexes "H" and "I-series"; Exhibits "19" (Sen. Poe's Oath of Allegiance to the Republic of the Philippines), "20" (Sen. Poe's Petitiop filed with the Bureau of Immigration J"B.I."]), and "22" (Order of B.I. granting Sen. Poe's Petition) 176 Annexes "H" and "I-series"; Exhibits "21", "21-A", and "21-B" 177 Annexes "H" and "I-series"; Exhibit "24" 178 Annexes "H" and "I-series"; Exhibit "27" 179 Annexes "H" and "I-series"; Exhibit "29" 180 Annexes "H" and "I-series"; Exhibit "30-A" 181 Annexes."H" and "I-series"; Exhibit "40" 182 Annexes "H" and "I-series"; Exhibit "42" 183 See Annexes "H" and "I-series"; Exhibits "6-series" and "42" for Sen. Poe. These e-mail conversations (Exhibit "6-series"), authenticated by Sen. Poe's husband (Exhibit "42") show, among others, that as early as March 18, 2005, she was already in touch with

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d) Relocation of their household goods, furniture, cars, and other personal property then in Virginia, US.A., to the Philippines, which were packed and collected for storage and transport to the Philippines on February and April 2006;

e) Sen. Poe's husband's act of informing the United States Postal Service of their abandonment of their former U.S.A. address on March 2006;

f) Sen. Poe and her husband's act of selling their family home in the U.S.A. on April 27, 2006;

g) Sen. Poe's husband's resignation from his work in the U.S.A. in April 2006 and return to the Philippines on May 4, 2006;

h) Questionnaire - Information for Determining Possible Loss of U.S. Citizenship, 184 wherein Sen. Poe, long before the commencement of any controversy with respect to her residency in the Philippines, indicated that she considered herself no longer a resident of the United States since May 2005 until present.

74.4. If the COMELEC considered these pieces of evidence, it would have found that Sen. Poe's statement that she will be a resident of the Philippines for 10 years and 11 months by May 2016 is not false. The COMELEC would have correctly appreciated the fact that she had been a resident of the Philippines continuously starting May 2005. 185 This is why her children had been contin~usly

.. 4'itli

., . ~,proper~y i:i~vers asking for an. estim~~e o.f the total cost.of relocating their househ'61a g9o\is ;;!, ~from Virginia, U.S.A., to Manila, Phihppmes (see e-mail dated March 18, 2005). Sen. Pae

and her husband eventually obtained the services of Victory Van International,,: wrh~ll packed, collected, and stored their household goods and other moveable properties fQr. transport to the Philippines in two (2) batches: one in February 2006 (supervised by Sen/ Poe, who was then in the United States), and another in April 2006 (supervised by Sen .

. Poe's husband, who was still at the United States at that time) shortly before Sen. Poe's 'husband returned to the Philippines in May 2006. (See e-mails dated February' a;· 2006, February 10, 2006, and April 7, 2006). · . ,, 184 Annexes "H" and "I-series"; Exhibit "30-A", p.1 185 Sen. Poe's travel records (Exhibit "I" for the private respondent Elamparo) and U.S.A. Passport (Exhibit "5" for Sen. Poe) show that she was physically present in the Philippines continuously from May 24, 2005 to December 16, 2005, except for a brief four {4l dav travel to Hong Kong from September 11 to 14, 2005, after which she returned to 'the Philippines. On December 16, 2005, Sen. Poe briefly travelled to the U.S.A. to attend toher

zJamily's ongoing relocation, staying there for only twenty two (22) days. She return~ to.~ ''Philippines on January 7, 2006. Sen. Poe's last lengthy stay in the U.S.A. W;aS' {:Jtpi

February 14, 2006 to March 11, 2006, or twenty five (25) days (less than one m6nthJ/fo supervise the packing and collection of her family's household goods, and wrai'PU·P'i'· ~

,, : ' ~~):-

fapiily's affairs in the United States. (See Exhibits "6-series" [e-mail correspo11~~ Victo~ .van Interna.tional] and "15" to "!~-~'.' [rece~pts f~r do~ated goods""'troi:n)tt.

•} Salvation Army], which show Sen. Poe's activities durmg this penod.) Sen. ~Qi~ic:hd~;~ ·· ~. leave the country again until July 2, 2006, for a brief four (4) day visit to Thai1fpd, ~t~t

w~i~h she returned to the ~hilippines on J~l~ 5, 2~06. On November. 1, 2096, 51',n.·;~,9~ agam went overseas for a bnef four (4) day V!Slt to Singapore, after which she rewrned):o

., ,,,the Philippines on November 4, 2006. These uncontroverted pieces of evidenc.~cl~rly . "show that Sen. Poe had been continuously staying in the Philippines since May 2Q05, only

. leaving for brief periods of overseas business, but always returning to the Philippines.

·~.

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attending Philippine schools since June 2005; this is why she and her husband purchased a condominium unit in San Juan in late 2005; this is why they purchased a vacant lot to build a family home in Quezon City in early 2006; this is why they had their household belongings in the U.S.A. packed and collected for storage and eventual transport to the Philippines as early as February and no later than April 2006; 186 this is why they sold their house in the U.S.A. in April 2006, 187 the same month that Sen. Poe's husband resigned from work and eventually returned to the Philippines to join his family.

75. In Varias vs. COMELEC, 188 the High Court ruled that ignoring evidence constitutes grave abuse of discretion. Indeed, when the question brought before a tribunal is one of fact (which the issue on residence undoubtedly is), there is really nothing more whimsical, capricious and arbitrary than disregarding evidence. Such utter disregard of evidence constitutes grave abuse of discretion because it amounts to an evasion of a positive duty enjoined by law, that is, the duty of the COMELEC to treat the issue of residence as a question of fact and to carefully weigh the evidence presented by the parties.

76. It is noteworthy that this Honorable Court has ruled that several candidates established their respective domiciles of choice in their respective localities based oIY· significantly less evidence than that presented by Sen. Poe in the proceeding a quo.

76.1. In Perez vs. COMELEC,189 this Honorable Court upheld the COMELEC's ruling that private respondent therein had "changed his residence from Gattaran to Tuguegarao, the capital of Cagayan, in July 1990 on the basis of only the fallowing (five [ 5] pieces/ types of evidence):" (a) "the affidavit of Engineer Alfredo Ablaza,

186 See Annexes "H" and "I-series"; Exhibit "6-series" for Sen. Poe, which show that as early as March 2005, Sen. Poe and her husband had been in touch with property movers and obtaining estimates regarding the total cost of relocating their household goods, furniture, and other movable properties to the Philippines. The spouses eventually obtained the services of Victory Van International, which scheduled the collection and storage (for eventual transport to the Philippines) of the Llamanzares family's household goods in two (2) batches: the first in February 2006 (see e-mail dated February 10 and 15, 2006), and the second in April 2006 (see e-mail dated April 7 and 27, 2006). This timeline is consistent with the fact that Sen. Poe's house in the U.S.A. was sold on April 27, 2006. These pieces of evidence indubitably show that Sen. Poe and her family abandoned their U.S.A. domicile and could no longer have been living in the United States during this period. This logical conclusion is consistent with the fact that Sen. Poe and her children returned to the country with the intention to reside here permanently starting May 2005. 187 Annexes "H" and "I-series"; Exhibit "17" 188 G.R. No. 189078, 30 March 2010 189 G.R. No. 133944, 28 October 1999

58

the owner of the residential apartment at 13-E Magallanes St., Tuguegarao, Cagayan, where private respondent had lived in 1990;" (b) "the contract of lease between private respondent, as lessee, and Tomas T. Decena, as lessor, of a residential apartment at Kamias St., Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to June 30, 1996;" (c) "the marriage certificate, dated January 18, 1998, between private respondent and Lerma Dumaguit;" (d) "the certificate of live birth of private respondents second daughter;" and (5) "various letters addressed to private respondent and his family."

76.2. In Japzon, this Honorable Court held that Mr. Ty had established a new domicile of choice in the Municipality of General Macarthur, Eastern Samar, Philippines based on only four (4) pieces of evidence, namely: (a) his application for a Philippine passport "indicating in his application that his residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur,Eastern Samar;" (b) community tax certificates for the years 2006 and 2007 "stating therein his address as A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar," and showing that "Ty voluntarily submitted himself to the local tax jurisdiction of the Municipality of General Macarthur, Eastern Samar;" and (c) Ty's registratic5h as a voter on 17 July 2006 in Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar.

76.3. It is notable that Ty did not even present independent evidence that he had abandoned his domicile in the U.S.A. (i.e., proof of animus non-revertendi). Nevertheless, this Honorable Court sided with him. Why should the outcome be different in Sen. Poe's case when, on top of her proof on animus manendi, she proved her animus non-revertendi separately and through distinct pieces of evidence, such as her and her husband's resignation from work, the donation of some of the family's household goods, collection and transport of the family's household belongings, and the sale of the family home in the U.S.A.? · ··-·

76.4. Similarly, in Jalover vs. Osmena and COMELEC, 190 this Honorable Court affirmed the COMELEC's finding that "Osmeiia had sufficiently established by substantial evidence his residence in Toledo

190 G.R No. 209286, 23 September 2014

59

City, Cebu." The COMELEC relied on only six (6) acts: (a) "Osmefla applied for the transfer of his voter's registration

record to Toledo City;" (b) "Osmefla likewise purchased a parcel of land in Ibo, Toledo City in 1995;" (c) he "commenced the construction of an improvement, which would eventually serve as his residence since 2004;" (d) "Osmefla even acguired another parcel of land in Das, Toledo City in December 2011; (e) he "transferred his headquarters to Poblacion and Bato, Toledo City as early as 2011; and (f) "Osmefla has always maintained profound political and socio-civic linkages in Toledo City."

76.5. It bears stressing that the petitioner against Osmefla presented his own evidence to controvert the latter's evidence. Yet, Osmefla still prevailed on the issue of residence. In contrast, in this case, private respondent presented nothing (save for Sen. Poe's COC for Senator which is neither binding nor decisive on the issue of her residency) to refute Sen. Poe's evidence. Applying Jalover, wasn't there even more reason for Sen. Poe to prevail in the proceeding a quo?

77. Despite Sen. Poe's overwh.elming and unrefuted evidence, the COMELEC still insisted that she failed to comply with the 10-year residence requirement for Presidential candidates. In arriving at that decision, the COMELEC focused on Sen. Poe's apparent statement in her COC for Senator that she had resided in the Philippines for only "6" years and "6" months on 13 May 2013. According to the COMELEC, this was proof that Sen. Poe had resided in the Philippines only since November 2006 and, therefore, for just 9 years and 6 months by 9 May 2016. This singular fact does not constitute "substantial evidence," and thus cannot negate Sen. Poe's other evidence (discussed in pars. 73 to 74) clearly and overwhelmingly showing that the fact of her residence is that she had reestablished her domicile in the Philippines as early as 24 May 2005.

A.1.a.

..

The COMELEC disregarded the settled principle e1191ciated in Romualdez-Marcos vs. COMELEC, reiterated in Perez vs. COMELEC, that a candidate's statement in her certificate of candidacy is not decisive of the issue of residence.

ti ;;. .......

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60

The fact of residence always prevails over a candidate's statement about residence.

78. On pages 18 to 19 of the 1 December 2015 Resolution, the COMELEC Second Division pointed out that Sen. Poe cannot comply with the 10-year residence requirement under Section 2, Article VII of the 1987 Constitution, because by her own admission in her COC for Senator, Sen. Poe was a resident of the Philippines "since November 2006" only. The COMELEC En Banc upheld this finding in its 23 December 2015 Resolution. Therefore, (for the COMELEC) by 9 May 2016, she will be resident of the Philippines for only 9 years and 6 months. The COMELEC's sole basis for this conclusion is Item No. 7 of Sen. Poe's COC as Senator, wherein she indicated that her "period of residence in the Philippines before May 13, 2013" is "6" years and "6" months.

79. The Second Division initially characterized this statement as supposedly "binding" on petitioner. It also held that Sen. Poe is "estopped" from "declaring an earlier period of residence."

80. However, the COMELEC En Banc/ in ruling on Sen. Poe's Motion for Reconsideration, clearly softened its position. In its 23 December 2015 Resolution, the COMELEC En Banc effectively acknowledged that Sen. Poe's statement on her residence in her 2012 COC is not "binding" and may be overcome by contrary evidence. Thus, it simply stated that Sen. Poe's statement in her 2012 COC is an "admission against interest," which is the "best evidence" "afford(ing) greatest certainty of the facts in dispute." It is "fair to presume" that the 2012 COC "corresponds with the truth, and it is (her) fault if it does not." The COMELEC En Banc also pointed out that a COC, "being a notarial document, has in its favor the presumption of regularity," and to "contradict the fact stated therein, there must be evidence that is clear, convincing and more than merely

I a. Ii 8 " • • . preponderant." However, despite Sen. Poe's overwhelming and uncontroverted evidence showing that she started residing in the country on 24 May 2005, the COMELEC En Banc still found that Sen. Poe started residing in the Philippines only "in November 2006."

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81. The COMELEC clearly ignored this Honorable Court's landmark ruling in Romualdez-Marcos vs. COMELEC.191 In that case, this Honorable Court categorically held 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 constitution's residency qualification requirement." In the same case, the Supreme Court ruled that an "honest mistake" in a certificate of candidacy "should not ... be allowed to negate the fact of residence . . . if such fact were established by means more convincing than a mere entry on a piece of paper." Romualdez applies squarely to Sen. Poe's case because:

(a) Like Mrs. Marcos in Romualdez (who stated that her period of residence in the locality was 7 months, instead of "since childhood"), Sen. Poe stated a period of residence in her COC for Senator ("6" years and "6" months) which is shorter than the period she should have stated therein ("7" years and "11" months);

(b) Like Mrs. Marcos in Romualdez, Sen. Poe's error in her COC for Senator was the result of an honest mistake rooted in the confusing entries and questions in the certificate of candidacy itself; and

(c) Like Mrs. Marcos in Romualdez, Sen. Poe was honest and open about her mistake, and she corrected it the first chance she had, and with every succeeding opportunity thereafter.

82. Sen. Poe committed an honest mistake when she stated in her COC for Senator that her "PERIOD OF RESIDENCE BEFORE MAY 13, 2013" is "6" years and "6" months.

82.1. Only a two-year period of residence in the Philippines is required to qualify as a member of the Senate of the Republic of the Philippines. Sen. Poe sincerely had no doubt that she had satisfied this residence requirement. She even accomplished her COC for Senator without the assistance of a lawyer. Indeed, even Chairman Andres Bautista of the COMELEC, in his Concurring and Dissenting Opinion promulgated on 23 December 2015, noted that the "residency requirement for Senator is two (2) years. Hence, when [Sen. Poe] stated in her 2013 COC that she was a resident ... for [6 years and 6 months], it would seem that she did so without really considering the legal or

191 G.R. No. 119976, 18 September 1995

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.... ~

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constitutional requirement as contemplated by law. After all, she had already fully complied with the two-year residence requirement." 192 (Because of this, Chairman Bautista ruled that the supposed "admission" in the 2013 COC was not.knowingly made.)

82.2. It is no wonder that Sen. Poe did not know that the use of the phrase "Period of Residence in the Philippines before May 13, 2013" in her COC for Senator, actually ref erred to the period immediately preceding 13 May 2013, or to her period of residence on the day right before the 13 May 2013 elections. Sen. Poe therefore interpreted this phrase to mean her period of residence in the Philippines as of the submission of COCs in October 2012 (which is technically also a period "before May 13, 2013").

82. 3. In terms of abandoning her domicile in the U.S.A. and permanently relocating to the Philippines, nothing significant happened in "November 2006." Moreover, private respondent was not able to present any evidence which would show that Sen. Poe returned to the Philippines with the intention to reside here permanently only in November 2006. Thus, there would have been no logical reason for Sen. Poe to reckon the start of her residence in the Philippines in "November 2006." This bolsters the fact that Sen. Poe's representation in her COC for Senator regarding her period of residence was ba~ed on her honest misunderstanding of what was asked· d(b~;r;n Item No. 7 of her COC for Senator, and that she indeed counted backward from October 2012 (instead of frqmfJ3 May2013). t~

82.4. The COMELEC apparently realized tkat Ule phrase "Period of Residence in the Philippines before --~fhe date of the election)" (which appears in Sen. Poe's COC for Senator) might cause some confusion or misunderstanding among prospective candidates in the 9 May 2016 electi0p.s . Thus, Item No. 7 of the latest COC forms which the COMELEC prepared for the 9 May 2016. ·e~ctwns (including Sen. Poe's COC for President193) was significcfhtly amended and revised. It now states: ., ·:·~~~:·,:

~~l .,·.~

it'::: ,,. '(

~~ ~

'1i9/ Chairman Bautista, Concurring and Dissenting Opinion in SPA No. 15-001 (pci.'i5:t 19 ,· • 1. (Annex "B-2" hereof) , •'-"· .1'!11.

193 See Annex "C" hereof, and Exhibit "B" for the private respondent, which is a,ttach,ed to " Anqexes "E" and "F"

·I:,;

~

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63

PERIOD OF RESIDENCE IN THE PHILIPPINES UP TO THE DAY BEFORE MAY 09, 2016:194

The COMELEC's recent insertion of the phrase "UP TO THE DAY" in the entry above is significant because it bolsters Sen. Poe's claim that she was misled by the earlier version of that question in her COC for Senator.

82.5. If a question is, in the COMELEC's mind, confusing, shouldn't the COMELEC expect that a candidate would give a wrong answer to that question, and that the candidate who gave such wrong answer did not lie but was simply confused? If a question is concededly imprecise, shouldn't the COMELEC excuse a candidate's honest imprecise answer to that imprecise question?

82.6. It must also be noted that when Sen. Poe accomplished her COC for Senator, she reckoned her residence in the Philippines from March-April 2006, which is when (to her recollection at the time she signed this COC) she and her family had substantially wound up their affairs in the U.S.A. in connection with their relocation to the Philippines. Specifically, March 2006 was when Sen. Poe arrived in the Philippines after her last lengthy stay in the U.S.A., and April 2006 was when she and her husband were finally able to sell their house irf the U.S.A. The month of April 2006 is also when her husband had resigned from his job in the U.S.A. The period between March-April 2006 to September 2012 is around six (6) years and six (6) months.

82. 7. This erroneous understanding of the commencement of her residence in the Philippines, together with the confusing question in Item No. 7 of her COC for Senator, explains why Sen. Poe mistakenly indicated in that COC that her "Period of Residence in the Philippines before May 13, 2013" would be "6" years and "6" months.

82.8. Sen. Poe was later advised (only this year) by legal counsel that the concept of "residence," for purposes of election law, takes into account the period when she was physically present in the Philippines starting from 24 May 2005, (after having already abandoned her residence in the U.S.A., coupled with the intent to reside in the Philippines) and not just the period after her U.S.A. residence was sold and when her family was already

194 Underscoring supplied

*.~·

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complete in the country, after her husband's return. Sen. Poe's period of residence in her COC for Senator should, therefore, have been counted frqm 24 May 20Q5, and extended all the way "up to the day before" the 13 May 2013 elections. Sen. Poe realized o~ly this year that she should have stated "7" y~ars ~~d "11" 1nonths (instead of "6" years and "6" months) as her period of residence in her COC for Senator. Significantly, the issue regarding Sen. Poe's correct period of residence in the Philippines was raised for the first time only this year.

83. Nonetheless, the COMELEC did not believe that Sen. Poe had committed an "honest mistake" in her COC for Senator. According to the COMELEC Second Division, "no evidence ha(d) been shown that there was an attempt to rectify the so-called mistake."195 The COMELEC further pointed out that "the attempt to correct it in her present COC filed only on October 15, 2015 cannot serve to outweigh the probative weight that has to be accorded to the admission against interest in her 2013 COC for Senator." Bbased on this Honorable Court's ruling in Romualdez, a candidate's "attempt" to correct her "honest mistake" and the timing of that attempt are both immaterial in determining whether the mistake was, indeed, "honest."

: ~ .. ,

.. I

'

.. rr ,,

83.1. Mrs. Marcos's "honest mistake" 1n Romualdez was rooted in the misleading questions and ' entries in the COC, and not in her attempt to rectify that mistake or the timing of that attempt. In the words of ~is Honorable Court, the "source(s) of confusion" of Mr$,. ,, Marcos were the items in the COC itself (i.e., "the entry ,:foi: residence [Item No. 7]") which was "followed immediately:;·by'r the entry for residence in the constituency wher~ a- ~.

i ;eandidate seeks election." In the same vein, as discusstd in par. 82, the "source of confusion" in Sen. Poe's COC '{or Senator was also in Item No. 7 thereof, specifically the use of the phrase "Period of Residence in the Philippines beffjre ~, May 13, 2013."196 As discussed, the COMELEC< acknowledged the possibility for such confusion when it~t substantially amended Item No. 7 of the COC to t\9W,

'· specifically state in the revised forms, that the inf orma'f#2.l' sought is residence "up to the day" before the 9 May ZOl

t

elections.

' 83.2. It would be absurd to suggest tg~t: mistaken statement in Mrs. Marcos's COC would suO:tli

"' ·:~

1

• 1 L

;!,?S See Annex "A" hereof, 1December2015 Resolution, p. 19 .1ti6 Italics supplied.

«~

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65

have become "decisive" on the issue of her residence if she had failed to seek the correction of that mistake. This Honorable Court would definitely still have ruled that residence is ultimately an "issue of fact" even if Mrs. Marcos had failed to seek such amendment. At any rate, Mrs. Marcos was not able to successfully amend her COC. Her amended COC was no longer accepted by the Provincial

' ' '

Election Supervisor because the period to file COCs had already lapsed at the time. And when she filed her amended COC with the head office of the COMELEC, its Second Division even "struck" the same from the records.

83.3. Sen. Poe, on the other hand, could not have sought to "amend" her COC for Senator immediately after she had filed the same, because Sen. Poe discovered her honest mistake only this year (2015), or two years after her election and proclamation as Senator in May 2013. Soon after she discovered her mistake, Sen. Poe corrected it publicly in media interviews, and officially before the SET and in her COC for President in the 2016 elections. This is discussed in detail in Argument A.6.

83 .4. Sen. Poe's conduct after she discovered her honest error is comparable and analogous to that of Mrs. Marcos. Like Mrs. Marcos, Sen. Poe was honest and open about her mistake, and she corrected it the first chance she had, and in every succeeding opportunity thereafter.

84. What if a candidate's statement on her residence in a previous certificate of candidacy was not the result of an "honest mistake," would that statement be considered "decisive" or "binding" with respect to her future COCs? Would the candidate in that scenario be "estopped," as the COMELEC held, from claiming a different period of residence in a subsequent COC? Perez vs. COMELEC197 tells us that both questions must be answered in the negative.

85. In Perez, the Supreme Court reiterated the undisturbed principle previously enunciated in Romualdez that an erroneous statement in a COC is not decisive of the issue of residence. However, the High Court did not make any determination, and therefore did not consider as material, whether the candidate had committed "honest mistakes" in his previous COCs (and even in his prior affidavits), when he had stated therein that he was a resident of a locality other than the

197 G.R. No. 133944, 28 October 1999

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locality in which he sought to run for office. The High Court stressed that residence is an issue of fact, thus:

In support of her claim, petitioner presented private respondent's certificates of candidacy for governor of Cagayan in the 1988, 1992, and 1995 elections his voter's affidavit which he used in the 1987, 1988, 1992, 1995, and 1997 elections; and his voter registration record dated June 22, 1997, in all of which it is stated that he is a resident of Barangay Calaoagan Dackel, Municipality of Gattaran, which is outside the Third District of Cagayan.

x x x

In the case at bar, the COMELEC found that private respondent changed his residence from Gattaran to Tuguegarao, the capital of Cagayan, in July 1990 on the basis of the following: ( 1) the affidavit of Engineer Alfredo Ablaza, the owner of the residential apartment at 13-E Magallanes St., Tuguegarao, Cagayan, where private respondent had lived in 1990; (2) the contract of lease between private respondent, as lessee, and Tomas T. Decena, as lessor, of a residential apartment at Kamias St., Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to June 30, 1996; (3) the marriage certificate, dated January 18, 1998, between private respondent and Lerma Dumaguit; ( 4) the certificate of live birth of private respondents se,cond daughter;

I'

and (5) various letters addressed to private respondent and his family, which all show that private respondent was a resident of Tuguegarao, Cagayan for at least one ( 1) year immediately

;;. · preceding the elections on May 11, 1998.

·.if( c .~

,r·

There is thus substantial evidence supporting the finding .f

that private respondent had been a resident of the Third District of Cagayan and there is nothing in the record to detract from the ·,i,

merit of this factual finding.

Petitioner contends that the fact that private respondent was a resident of Gattaran, at least until June 22, 1997, is shown by the following documentary evidence in the record, to wit: ( 1) his certificates of candidacy for governor of Cagayan in the 1988, 1992 and 1995 elections; (2) his voters registration records, the latest of which was made on June 22, 1997; and (3) the fact that private respondent voted in Gattaran, Cagayan, in the elections of 1987, 1988, 1992 and 1995. ·· ·

x x x

Nor is it of much importance that in his certificates of candidacy for provincial governor in the elections of 1988, 1992,

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and 1995, private respondent stated that he was a resident of Gattaran. Under the law, what is required for the election of governor is residency in the province, not in any district or municipality, one year before the election.

Moreover, as this Court said in Romualdez-Marcos v. COMELEC:

It 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 said statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible.

In this case, although private respondent declared in his certificates of candidacy prior to the May 11, 1998 elections that he was a resident of Gattaran, Cagayan, the fact is that he was actually a resident of the Third District not just for one ( 1) year prior to the May 11, 1998 elections but for more than seven (7) years since July 1990. His claim that he had been a resident of Tuguegarao since July 1990 is credible considering that he was governor from 1988 to 1998 and, therefore, it would be convenient for him to maintain his residence in Tuguegarao, which is the capital of the province of Cagayan. 1 :s

86. Applying Perez, in relation to Romualdez, whether the erroneous statement on residence in an earlier COC was made intentionally or mistakenly, the fact of residence will always control. This is but logical, for while a candidate is required to state in his or her COC certain information pertaining to his or her eligibility for office, the law itself does not discount the possibility of error or mistake, as it only requires the candidate to certify under oath that such information in his or her COC are "true to the best of his knowledge."199 Certainly, a candidate's "knowledge" could turn out to be wrong, without bad faith on the part of such candidate.

87. Consistent with what is apparently stated in her COC for Senator, does the "fact" of Sen. Poe's residence show that the earliest she started residing in the Philippines was in November 2006? The answer is "NO." This explains why neither the COMELEC nor private respondent could (or bothered to) identify any fact or piece of evidence which would explain why Sen. Poe's residence should be reckoned from November 2006. On the

198 Underscoring supplied 1g9 Sec. 74, Omnibus Election Code

68

contrary, the "fact" of Sen. Poe's residence, as discussed in detail above, is that she reestablished her domicile of choice in the Philippines as early as 24 May 2005.

88. Still, in its 23 December 2015 Resolution, instead of simply admitting there is absolutely no evidence of anything significant in November 2006 to which Sen. Poe may have pegged the beginning of her residence, the COMELEC curiously held that there could possibly be such an event but that Sen. Poe may be concealing evidence thereof:

That there does not appear on record "any significant event in Respondent's life which would lead to her reckoning her residency in the Philippines as of November 2006 is not a definitive badge of good faith by respondent. That a thing does not appear on record does not translate to it being inexistent. In other words, it is still very much possible that such "significant event" happened in November 2006, just that it was not now brought to the attention of this Commission by respondent (who could not be expected to present such incriminating information) or petitioner (who, possibly, has not discovered the same).

The foregoing passage is disturbing. Is the COMELEC En Banc suggesting that it has the power to assume a fact, even without evidence? Does it have the power, in the absence of an applicable presumption, independent of Seq,, Poe's 2012 COC and despite all of the other evidence on record, to simply assume that Sen. Poe started residing in the country only in November 2006? The answer is obviously in the negative because in any adversarial proceeding, a "fact" must be proven before the tribunal can find that it exists (unless, of course, there is an applicable presumption of fact or law which may be invoked to replace proof). Indeed, why should the COMELEC even suggest that there is such evidence, and that Sen. Poe is concealing it? For the COMELEC to, in effect, accuse Sen. Poe of suppression of evidence shows not just grave abuse of discretion, but outright bias and hostility.

88.1. The COMELEC's decision to rely on mere conjectures, in place of evidence presented by Petitioner proving facts consistent with her good faith, is a blatant display of its arbitrary resort to "subjective non-legal standards"2oo in its analysis of whether herein Petitioner met the ten-year period of residence required by law.

200 See Mitra v. COMELEC, G.R. No. 191938, 19 October 2010

t·

69

89. As for the COMELEC's supplied excuse for herein private respondent failure to provide evidence "(who, possibly, has not discovered the same)", it should be reminded of the passage in Tongko vs. The Manufacturers Life Insurance Company (Phils.}, Inc.201: "This Court (and all adjudicators for that matter) cannot and should not fill in the evidentiary gaps in a party's case that the party failed to support; we cannot and should not take the cudgels for any party. Tongko failed to support his cause and we should simply view him and his case as they are; our duty is to sit as a judge in the case that he and the respondent presented."

90. Since Sen. Poe's COC for Senator does not coincide with the fact of her residence, this document should have been disregarded by the COMELEC, and not declared to be "binding" or decisive on the issue of Sen. Poe's compliance with the 10-year residence requirement. The COMELEC should disregard what is stated in a COC when it does not jive with the rest of the evidence. Conversely, it should not throw away or, worse, ignore the rest of the evidence when these do jive with what is stated in the COC.

A.1.b.

~

The COMELEC acted whimsically and capriciously in 1,

automatically concluding that Sen. Poe's statement in her COC for President concerning her period of residence is false, simply because her earlier COC for Senator contradicts that statement. The COMELEC should have determined, independent

.....

... ~

,~

<I,:;

of Sen. Poe's COC for Senator, whether the period of residence stated

i

in her COC for President ,li

is false.

.. . ./ "" .,, 91. In its 23 December 2015 Resoluti?n, the CO~~~L;~~ ,~ En ¥qnc ruled that Sen. Poe's 2012 COC which shows thfit' ~~ii ,\

r 'Ji.ef~ (: 1~'..-~~J' ·J,c.

'l'.. F

201 G.R. No. 167622, June 29, 2010, 622 SCRA 58

4 .~j,.. '

.....

70

started residing in the Philippines only "on November 2006," is "entirely inconsistent with her declaration" in her present 2015 COC that she "was a resident since May 2005." According to the COMELEC En Banc, Sen. Poe's arguments were correctly struck down "on the basis of this contradiction." This ruling is illogicstl and arbitrary.

92. The fact that a person's prior sworn statement contradicts her current sworn statement does not automatically render the current statement false. The inconsistency between two assertions simply means that one assertion is false. Whoever asserts that the current claim is false, must prove its falsity independent of the prior inconsistent claim.

92.1. Grounded, as it is, in basic logic and common sense, this principle has been applied consistently in the law on perjury. In Masangkay vs. People,202 this Honorable Court held as follows:

We have held before that a conviction for perjury cannot be obtained by the prosecution by merely showing the inconsistent or contradictory statements of the accused, even if both statements are sworn. The prosecution must additionally prove which of the two statements is false and must show the statement to be false by evidence other than the contradictory statement. The rationale for requiring evidence other than a contradictory statement is explained thus:

x x x Proof that accused has given contradictory testimony under oath at a different time will not be sufficient to establish the falsity of his testimony charged as perjury, for this would leave simply one oath of the defendant as against another, and it would not appear that the testimony charged was false rather than the testimony contradictory thereof. The two statements will simply neutralize each other; there must be some corroboration of the contradictory testimony. Such corroboration, however, may be furnished by evidence aliunde tending to show perjury independently of the declarations of testimony of the accused.203

92.2. The felony of perjury, like an action under Section 78 of the OEC, includes "deliberate falsehood" as a necessary element. The principle enunciated above may therefore apply by analogy in Sen. Poe's case.

202 G.R. No. 164443, 18 June 2010 203 Underscoring supp lied

-

71

93. The COMELEC acted with grave abuse of discretion in concluding that Sen. Poe's claim about her period of residence in her COC for President is "false," based solely and exclusively on her apparently inconsistent statement in her COC for Senator. The COMELEC ought to have looked for evidence, other than Sen. Poe's COC for Senator, which would show that her claim about her period of residence in her COC for President is "false." The COMELEC did not cite any such evidence aliunde, and understandably so, because all of the evidence in the proceeding a quo proves that what Sen. Poe stated in her COC for Preside11t is "true." All the evidence shows that Sen. Poe started residing in the Philippines on 24 May 2005 (See pars. 73 to 74 above). In contrast, none of the evidence proves that Sen. Poe started residing in the Philippines only in "November 2006." Therefore, Sen. Poe was being truthful when she stated in her COC for President that her "PERIOD OF RESIDENCE IN THE PHILIPPINES UP TO THE DAY BEFORE MAY 09, 2016" would be " 1 O" years and " 11" months.

93.1. From a mathematical standpoint, Petitioner's 7-year and 11-month period of residence in the Philippines (as of 13 May 2013, reckoned from 24 May 2005) necessarily includes a 6-year and 6-month period. Therefore, Sen. Poe's statement on her residence in Item No. 7 of her COC for Senator was not aMsolutely false, but simply incomplete. (What would have been outright false is a representation in her COC for Senator that, by 13 May 2013, she would have resided in the Philippines for any period longer than 7 years and 11 months, but Sen. Poe made no such claim in her COC).

93.2. Sen. Poe's COC for Senator was incomplete only insofar as it was short of a 1 year and 5-month period. However, this period was immaterial insofar as Sen. Poe's COC for Senator was concerned, because adding that missing period would not have made Sen. Poe any more or less qualified for a seat in the Senate. Stated differently, when she mistakenly omitted this 1 year and 5-month period, Sen. Poe did not conceal or hide a "lack" of

_ iA+roa e If ~nmttr•11tion as 11·~~n.at6rial candidate. She also had nothing to gain as a Senatorial candidate by intentionally omitting this period from her COC for Senator, because she undoubtedly possessed more than 2 years of residence in the Philippines immediately preceding the 13 May 2013 elections.

'&fl'«!:'.~~

~-'

72

94. Like the High Court's rulings in Romualdez vs. COMELEC and Perez vs. COMELEC, and the basic concepts of "admission against interest," the foregoing discussion explains why Sen. Poe's COC for Senator cannot, in and of itself (divorced from the rest of the evidence in this case), constitute factual or legal basis for the falsity of Sen. Poe's representation in her COC for President that by 9 May 2016, she would have resided in the Philippines for "10" years and "11" months.

A.2. The COMELEC disregarded the basic principle that residence is principally an issue of fact and intention, and cited inapplicable jurisprudence, when it ruled that the commencement of Sen. Poe's domicile in should start, when she natural-born citizenship 9225.

the Philippines at the earliest, reacquired her

Philippine under R.A. No.

95. The COMELEC disregarded Sen. ,1·Poe's evidence of ,1, residence before July 2006, because it found that "the earliest

starting point from which (it) should reckon [Sen. · Po,~'s r~sidency is July 18, 2006204 when [she] was grahted reacquisition of Philippine citizenship under R.A. 9225." This ruling',is purportedly based on three decisions of this Honorable ., ,, Court, i.e., Coquilla vs. COMELEc,2os Japzon vs. COMELEC206 · ~·· and Caballero vs. COMELEc.2o7 The COMELEC committed grave abuse of discretion when it misapplied these three decisions·~iQ decidirtg when to count the commencement of Sen. Poe's residence in the Philippines .

., 96. The facts in Coquilla, Japzon and Caballero have two· '{2) things in common: (a) the candidates presented negligible or n@ evidence of reestablishment of domicile of choice .in 'tij~ •. ·

~ Philippines before they were repatriated; and/ or (b) the evidehe~ :~;;~~-~[~''

:,~·~ ~~

204 Sen., Poe submits that she reacquired her natural-born Filipino citizenship ~~n'· -q·,-..,

tO,bk her oath of allegiance on 7 July 2006, for that is what Section 3 of R.A. ~ .. ~ provides. Be that as it may, the difference between dates is immaterial bec'ci'Ufj~~ comq;}eqcement of Sen. Poe's domicile in the Philippines should be counted before·~, repatriation under R.A. No. 9225. :''} ;0:;1p.R. No. 151914, 31July2002, 385 SCRA 607 ":~;: v 20µ G.R. No. 180088, 19 January 2009 ,' 207 G.R. No. 209835, 22 September 2015

. ,t J

~.

73

(other than the candidates' previous COCs) showed that they had not reestablished residence in the Philippines before they were repatriated.

96. 1. In Coquilla, the only pieces of evidence showing that he might have had the intent to reside in the Philippines were: (a) his Community Tax Certificate; and (b) his verbal declarations that he intended to run for office. The candidate's balikbayan stamps in his U.S. passport, by themselves, showed that the candidate's intention was only to vacation temporarily in the Philippines.

96.2. In Japzon, there was absolutely no evidence of the candidate's residence before he reacquired his natural born citizenship. In fact, all of his evidence pertained to events after repatriation.

96. 3. Finally, in Caballero, the candidate clearly failed to prove that he had reestablished his domicile of choice in Uyugan, Batanes, at least one year before the May 13, 2013 elections. On the contrary, he admitted that his place of work was abroad, his visits to the_Philippines were "vacations" from work, and he had only 9 months "actual stay" in Uyugan, Batanes.

97. In other words, in Coquilla, Japzon and Caballero, this Honorable Court was left with no choice but to reckon the start of the candidate's domicile, at the earliest, on the day he reacquired his Philippine citizenship, because there was simply insufficient proof that the candidates in question had resided in the Philippines before repatriation. Accordingly, in these three decisions, the High Court did not lay down (and could not have laid down) an absolute rule that residence may start only from the date of reacquisition of Philippine citizenship or when the candidate secures a permanent resident visa. There was also no pronouncement in these three cases that evidence of residence before reacquisition (or before securing a permanent resident visa) must be ignored or set aside. The High Court had no opportunity to tackle this specific issue because there was no proof of residence before repatriation or while the candidate did not possess a permanent resident visa.

97.1. Indeed, even Commissioner Louie Guia, in his Separate Opinion, reconsidered his previous position and held that, based on a proper appreciation of Coquilla, Japzon, Caballero, and Caasi vs. COMELEC, and the undisputed evidence on record, Sen. Poe "effectively transferred her domicile from the US to the Philippines as

""'

74

of May 2005", as "[r]e-acquisition of former citizenship is not a condition for one to be deemed to have re-established his or her domicile in the country."208 After taking a second look at Sen. Poe's unrebutted evidence, Comm. Guia correctly concluded that while "[t]he circumstance of ... being solely a US citizen before July 2006 should of course be considered in evaluating [Sen. Poe's] intent to stay in the Philippines and abandon her US domicile permanently," "[e]vidence abound" to show that the intention to change their domicile from the US to the Philippines "have already been present as of May 2005." "Entertaining the probability of [Sen. Poe] still intending to maintain US as her domicile [simply] because she was still a US citizen at that time, despite proof to the contrary, can be considered as employing a 'subjective non-legal standard' which the Supreme Court rejected in the case of [Mitra vs. COMELECJ. "209

98. The facts which Coquilla, Japzon and Caballero share in common are the very same facts which distinguish these decisions from Sen. Poe's case. As explained in pars. 73 to 74 above, unlike these three cases, Sen. Poe was able to present overwhelming and unrefuted evidence that she had reestablished her domicile of choice in the Philippines before her repatriation on 7 July 2006, or as early as 24 May 2005. Unlike th~se three cases, not a single piece of"' evidence in the

, 4u:>roceeding a quo (other than Sen. Poe's non-binding COC ,f,er 'Senator) proved that Sen. Poe had resided elsewhere before'~'.{

'.~lll~( 2~06 or th~t. sh~ had failed t~ reestablish her domicilej~{~"'i ''';.;:C!lb1ce 1n the Ph1hpp1nes before this date. The stark contra.st~;'"' , o~tween the factual milieu in Coquilla, Japzon and Caballero:oii the one hand, and Sen. Poe's case, on the other, is illustrated in :.' the t~I,le below: >' ·.~ t

;}' ' . ~· .

~ : -;

Evidence of the candidate's

~~stablishment Pf donilcize In i','#~l Ph;lippines ·oefore ~repatriation

;',

Coquilla

The candidate's Balikbayan .. visas, his community tax certificate and his declarations that he

Japzon

None

Caballero

None

Sen. Poe's case (SPA).§.· 001 [DC]) (See Argument · , A.5. 210 • .i'.fi. ·'ft

1. Entry in U.S.A. · . Passport showing that , Sen. Poe returned,Jo , the Philippines on\~:' May 2.005 · ~e Exhibit "5")· · .,;; ~

' . tt:../ ~· 2. E-mail excha ···

between Sen.:' , ,_. :- '"* and/ or her hq1i and reoreserita

·~:~·- \

·1 1 2°:~ Co:p,~· Guia, Separate Opinion dated 23 December 2015 in SPA No. 15-001 (qC), ,.(Anne;t'"~-1" hereof) • 29,11 1Id., at p. 7

:tfo. See Annexes "H" and "I-series" hereof

··~ . ""11. '

..;'"

;;t ·~ ,::.;

'\!;

!);.

J

t.,-

·,'f· r

intends to run for office

75

/

of: (1) Victory Van Corporation, and (2) National Veterinary Quarantine Service of the Bureau of Animal Industry of the Philippines, showing that, as early as March 2005, the family started planning their move back to the Philippines (Exhibits "6-series");

3. School records of Sen. Poe's two older children showing that they were enrolled in Philippines schools for the Academic Year 2005 to 2006 (Exhibits "7-series");

4. Identification Card bearing Sen. Poe's TIN which the BIR issued on 22 July 2005 (Exhibit "8");

5. Condominium Certificates of Title Nos. 11985-R and 11986-R showing that Sen. Poe and her husband had acquired a condominium unit (and parking slot) in San Juan. City no" later tf1art w. · 20 February

1 '2006 . ~) ' "

(Exhibits "11" . ~nd '·'i"" .-

"12"); 6. Declarations of, Real

Property Nos. J '96".~. 39721 and 96-39722. covering the ~me : condominium unit (and parking'. stotl, in San Juan . ·• City showing that these real properties were declared for tax purposes in S~n .. Poe's and ))er husband's name 'on 25 April: . , ~06 (Exhibits · ".13" 1 ed

" ·~.. )J,

"14"); ··,,, '.

7. Receipts .i~;;t":bj~i the Salva~ ~ri::nt- ~ both dated }·.~g February ·"li~' ~~-0 . ·-· ,.· . -~'4 showmg tha , had denate~·;~ ~.a l,J;

number of '''')'her household · goods Pin the U.S.A. fExbibits

~~'

'

-

-------------------------------..-...... ·.~ 76

Coquilla Japzon Caballero

Evidence cited I Balikbauan Candidate Candidate

,.

"15" and "15-A"); 8. E-mail from the

U.S.A. Postal Service, sent on 28 March 2006 to Sen. Poe's husband, confirming the latter's submission of a request for change of address to the U.S.A. Postal Service (Exhibit "16");

9. Final Statem"nt issued by First American Title Insurance Company which indicates as Settlement Date: "04-27 /2006," which shows that Sen. Poe and her husband sold their family home in the U.S.A. on 27 April 2006 (Exhibit "1 7");

10. Transfer Certificate of Title No. 290260 covering a 509-square meter lot at No. 106, Rodeo Drive, Corinthian Hills, Baran gay Ugong Norte, Quezon City, issued by the Registry of Deeds for Quezon City on 1 June 2006 (Exhibit "18");

11. The Questionnaire -Information for Determining Possible Loss of U.S. Citizenship (issued by the U.S. Department of State - Bureau of Consular Affairs), which Sen. Poe accomplished on 12 July 2011 (Exhibit "30-A")

12. Affidavit Affidavit of Jesusa Sonora Poe dated 8 November 2015 (Exhibit "41");

13. Affidavit of Teodoro Misael Daniel V. Llamanzares dated 8 November 2015 (Exhibit "42");

14. Sen. Poe's verified statements in her Answer and other pleadings

Sen. Poe's case (SPA 15-001 [DC]) (See Argument A.5.) None

or offered to prove that the candidate had not established residence in the Philippines before repatriation (other than the candidate's non-binding COC)

visas which, Qy themselves, showed that the candidate intended to stay only temporarily in the Philippines

77

admittedly started residing in the Philippines only after repatriation.

admitted that his place of work was abroad, his visits to the Philippines were "vacations" from work, and he had only 9 months "actual stay" in Uyugan, Batanes.

99. Obviously, in Coquilla, Japzon and Caballero, the evidence of establishment of domicile in the Philippines before repatriation was nothing compared to Sen. Poe's evidence in the proceeding a quo. So, why should Sen. Poe's residence be decided in the same way that the issue was decided in Coquilla, Japzon and Caballero? Why should these three cases be controlling in Sen. Poe's case? Only similar cases should be decided similarly, and, as clearly demonstrated above, Coquilla, Japzon and Caballero are anything but "similar" to Sen. Poe's case.

100. It bears stressing that Coquilla nowhere stated an absolute rule that a foreigner's residence in the Philippines may commence only upon repatriation. As a matter of fact, as the COMELEC itself pointed out, Coquilla is authority for the proposition that a foreigner can establish residence in the Philippines "as a visitor" allowed by immigration laws to stay as such. In other words, what Coquilla prohibits, for purposes of determining compliance with statutory or constitutional residence requirement for elective offices, is not residence in the Philippines while being an alien, but residence obtained through unlawful entry in the Philippines. Sen. Poe's cancelled U.S.A. Passport (Exhibit "5"21 1) shows that her presence in the Philippines from 24 May 2005 onwards was always legal. Therefore, under the terms of Coquilla, Sen. Poe could reestablish her domicile of choice in the Philippines even before her repatriation on 7 July 2006.

100.1. Indeed, to qualify a balikbayan as a mere visitor, as if he or she is not inclined nor permitted to stay even without a resident visa, is inconsistent with the law itself. To start, the term balikbayan is defined by law to include "a former Filipino citizen and his or her family, as

211 See Annexes "H" and "I-series"

78

this term is defined hereunder, who had been naturalized in a foreign country and comes or returns to the Philippines."212 Under the law, the visa-free entry period of one year afforded by a balikbayan stamp is of a length indicative of something more than just transient stay. The law also envisions a balikbayan program instituted by the Department of Tourism which "shall include a kabuhayan shopping privilege allowing tax-exempt purchase of livelihood tools and 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."213

100.2. That "balikbayans" can avail themselves of livelihood programs designed to make them "become economically self-reliant members of society upon their return to the country," and are allowed to bring in personal effects, vehicles, motorcycles and household goods,214 show that the law does not treat them as transients with no intent to stay. The obvious intent of the law is to help balikbayans reestablish residence here.

101. Not only did the COMELEC apply inapplicable jurisprudence, it also failed to apply applicable jurisprudence. Jalosjos vs. COMELEC2 15 is the case which the COMELEC should have applied in deciding the length of Sen. Poe's residence in the

·Philippines. In Jalosjos, the Supreme Court started counting the candidate's residence in the Philippines even befor~~i, he ·.

.,,

\reacquired his natural born Filipino citizenship under R:f¥. l\{iP·,c :<, 9225 (and without mentioning the need for a "permaneJ:),t ·.

resident visa," as the High Court did in Coquilla). This· i~(.

212 Sedtion 2, RA No. 6768 as amended by RA No. 9174 (underscoring supplied) ~-.

213 Section 1, RA No. 6768 as amended by RA No. 9174. The law also provides for training programs thus: ' "'· '

'i

The Department of Labor and Employment (DOLE), through the OWWA, in coordination with the Technology and Livelihood Resource Center (TLRC), Technical Education and Skills Development Authority (TESDA), livelihood corporation and other concerned government agencies, shall provide the necessary entrepreneurial training and livelihood skills programs and marketing assistance to a balikbayan, · ,"

.... including his or her immediate family members, who shall avail of the kabuhay~n' ...

~."

;~ . '-_-- . ;. ·~:.': ~ .,,,.,.. program in accordance with the existing rules on the government's reinteg~atjoa·'}t . .,; program. ~· F··

·.. '.~~'·1 .... :; In the case of non-OFW balikbayan, the Department of Tourism shall m~~:rp~·, ~,~ · .. ~

necessary arrangements with the TLRC and other training institutions for pol$~!~ .. . A .·' ~ - . ' -(~ - ~ :'·. :

.: livelihood training. • r~ ~~'.""'·~'4

" '',214 Wh.ile the Bureau o.f Customs requires registr~tion of importers, such requit~.: ... ,~.·# ~-t~ .. ;;.~~.~.'.;·u .. ~·.»' .. :

no\,al}ply to "Importation of personal effects, vehicles, motorcycles and househoJd ~,$ii~~. • . a balikbayan and his/her family under R.A. No. 6768, as amended, Overseas Cpn~1 .,,..

, )Yorkers and other returning resident". (See Bureau of Customs Memorandum Orcftx .N'9,9. · 011-14, dated 22 May 2014) "''

215 G.R, No. 191970, 24 April 2012 '1

~-

,:,,,

79

because the candidate was able to prove that he started living with his brother prior to his repatriation, thus:

There is no hard and fast rule to determine a candidate's compliance with residency requirement since the question of residence is a question of intention. Still, jurisprudence has laid down the following guidelines: (a) every person has a domicile or residence somewhere; (b) where once established, that domicile remains until he acquires a new one; and ( c) a person can have but

. . . " . . - .

one domicile at a time.

x x x

But it is clear from the facts that Quezon City was Jalosjos' 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 at the age of eight, acquired Australian citizenship, and lived in that country for 26 years. Australia became his domicile by operation of law and by choice.

On the other hand, when he came .to the Philippines in November 2008 to live with his brother in Zamboanga Sibugay, it . ' '; . .

is evident that Jalosi,os did so with intent t<;> change his domicile for good. He left Australia, gave up his Australian citizenship, and renounced his allegiance to that country. In addition, 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. By his acts, Jalosjos 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 Ipil, Zamboanga Sibugay.

To hold that Jalosjos has not establ.ished 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.216

101. 1. Jalosjos teaches us that evidence of reestablishment of domicile of choice before repatriation or in the absence of a permanent resident visa cannot be ignored (as the COMELEC did in its assailed Resolutions). This ruling makes perfect sense in light of the basic and fundamental principle that residence is an issue of fact, as discussed extensively in Argument A. l.

216 Underscoring supplied

80

101.2. Even if Sen. Poe had not yet been repatriated under R.A. No. 9225 and even if she did not possess a permanent resident visa2 11, the COMELEC should have at least examined, weighed and given probative value to Sen. Poe's overwhelming and unrefuted evidence showing that she resided in the Philippines as early as 24 May 2005 (See pars.73 to 74 above).

102. On page 41 of the 11 December 2015 Resolution, the COMELEC implied that "getting a permanent resident visa" is supposedly the only way to "waive" one's "non-resident status." In its 23 December 2015 Resolution, the COMELEC En Banc held that according to Coquilla, it is the act of "obtain(ing) an immigrant visa .... and an Immigrant Certificate of Residence (ICR)" that "effectively waives an alien's status as a non­resident." This is a misreading of Coquilla and other applicable jurisprudence.

102. 1. As shown in the excerpt of Coquilla quoted on page 40 of the 11 December 2015 Resolution, this Honorable Court did not say that the procurement of an "immigrant visa" and an "immigrant Certificate of Residence" are the only ways for a foreigner "waive" her non-resident status.

102.2. On the contrary, jurisprudence shows that there are other acts, especially per~anent relocation to the Philippines, which would indubitably show an alien's a "waiver" or "forfeiture" of her non-resident status.

102.3. In Caasi vs. Court of Appeals (which was cited in Coquilla and in U.qdoracion vs. COMELECJ2IB), this Honorable Court held that the waiver of one's non-resident status (in that case, the possession of a green card) "should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country," which are shown by "clear" and "indubitable" . . . . . .

evidence. A candidate's unequivocal acts may be indicative of her waiver of her non-resident status. This is consistent with jurisprudence holding that residence is ultimately a

"question of presenceana: imen'i:ion.

211 It must be emphasized that Sen. Poe did not have to secure a permanent resident visa at that time, for her residence in the country was at any rate lawful and allowed under the balikbayan program. 21sa.R. No. 179851, 18Apri12008

~\

i

f

.,

;t

81

102.4. In Jalosjos,2 19 the candidate returned to the Philippines to live with his brother even before he reacquired his natural born Filipino citizenship under R.A. No. 9225. This Honorable Court held that his act of residing (as an Australian) with his brother was among the acts by which he "forfeited his legal right to live in Australia."

102.5. In the same vein, in Gayo vs. Verceles, 220

the High Court considered the act of "relocating" to the Philippines "for good," as a "waiver" of ones "permanent residency status" in a foreign country, and the commencement of one's legal residence, thus:

Applying case law to the present case, it can be said that the respondent effectively abandoned her residency in the Philippines by her acquisition of the status of a permanent U.S. resident. Nonetheless, we find that the respondent reacquired her residency in the Philippines even before the holding of the May 2001 elections. The records show that she surrendered her green card to the Immigration and Naturalization Service of the American Embassy way back in 1998. By such act, her intention to abandon her U.S. residency could not have been made clearer. Moreover, when she decided to relocate to the Philippines for good in 1993, she continued living here and only wrnt to the U.S.A. on periodic visits to her children who were residing there,., Moreover, she was elected Mayor in the 1998 elections anij,. served as such for the duration of her term. We find slich acts sufficient to establish that the respondent intended .to .,. ;, stay in the Philippines indefinitely and, ultimately, that she

y£',

has once again made the Philippines her permanent residence. 221

,:\•

l ,_

102.6. In Sen. Poe's case, on 24 May 20U5, sfie clearly and undoubtedly waived and forfeited her status a,s a non-resident alien when she relocated to the Philippines "for good." Therefore, even under the terms of Coqui.l~a, starting on 24 May 2005, Sen. Poe could reestablish per domicile in the Philippines.

219 G.R. No. 191970, 24 April 2012 220 G.R. No. 150477, 28 February 2005 221 Underscoring supplied

~··;

...

:.ff'';.· ~ L"'~

::+. _!if'·;

~

.r..._'J'.:

. ,··~·

82

103. As discussed in pars. 71 to 72 above, it is well-settled that there are only three (3) requisites for establishing a new domicile of choice, to wit:222

(a) residence or bodily presence in the new locality;

(b) an intention to remain there (animus manendz); and

(c) an intention to abandon the old domicile (animus non revertendz)

103.1. Upholding the COMELEC's ruling would be tantamount to adding a fourth requisite, i.e., the possession of: (a) "permanent resident visa;" and/ or (b) Philippine citizenship, throughout the period of . . establishment of domicile of choice in the Philippines.

103.2. If the COMELEC is correct, then despite established jurisprudence on the subject, "residence" would !!Q longer be an issue solely of "physical presence" and "intention," but of alien documentation and/ or Filipino citizenship as well.

104. The ruling of the COMELEC that the possession or reacquisition of Philippine citizenship is a condition sine qua non for establishing domicile in the Philippines, n1ns contrary to the

4d:}asic principle that residence is independent of citizenship. '··!"":• . . \~.·

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104. l. In Cordora vs. COMELEC223 and Frivaldo ~"''" <:;,OMELEC, 224 this Honorable Court ruled that residence As · "~eparate," "distinct" and not ciependent upon citizenship· .. ,~

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Similarly, that R.A.

in Japzon,22s this No. 9225 treats

independently of residence, thus:

Honorable '. ·' :. citizens)iip. ·~~1 ·

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It bears to point out that Republic Act No. 9225 governs the manner in which a natural-born Filipino may reacquire or-· retain his .. Philippine citizenship despite -acquiring a foreign citizenship, and provides for his rights and liabilities under such circumstances. A close scrutiny of said statute would reveal that it does not at all touch on th$.«\·~~ matter of residence of the natural-born Filipino taking~ir'

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~jti2~· Mitra vs. COMELEC, G.R. No. 191938, 2 July 2010; Japzon v. CommisS.loq 'i, ·,E!ectio;u~.1 G.R. No. 180088, 19 January 2009, citing Papandayan, Jr. v. Commissioii" , ; Electi6ns, 430 Phil. 754 (2002) 2~9.R. No. 176947, 19 February 2009 :22t,G.R. No. 120295, 28 June 1996

. 22,5 O.R. No. 180088, 19 January 2009

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advantage of its provisions. Republic Act No. 9225 imposes no residency requirement for the reacquisition or retention of Philippine citizenship; nor does it mention any effect of such reacquisition or retention of Philippine citizenship on the current residence of the concerned natural-born Filipino. Clearly, Republic Act No. 9225 treats citizenship independently of residence. This is only logical and consistent with the general intent of the law to allow for dual citizenship. Since a natural-born Filipino may hold, at the same time, both Philippine and foreign citizenships, he may establish residence either in the Philippines or in the foreign country of which he is also a citizen.

x x x

As has already been previously discussed by this Court herein, Ty's reacquisition of his Philippine citizenship under Republic Act No. 9225 had no automatic impact or effect on his residence/domicile. He could still retain his domicile in the USA, and he did not necessarily regain his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines. Ty merely had the option to again establish his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines, said place becoming his new domicile of choice. The length of his residence therein shall be determined from the time he made it his domicile of choice, and it shall not retroa'ct to the time of his birth. 226

104.3. If R.A. No. 9225 is supposed to have "no effect" on residence, then one's repatriation thereunder should not (in all instances) be the starting point of one's residence in the Philippines.

104.4. It bears stressing that the Constitution simply requires that a Presidential candidate be a natural­born Filipino. There is no added condition in the fundamental law that she be a natural-born Filipino for ten years immediately preceding the election.

105. To reiterate, in Japzon, 227 this Honorable Court stressed that the issue of whether a candidate complied with the residence requirement is ultimately a question of fact, requiring a careful examination of the evidence presented by the parties. As held in Sabili vs. COMELEC22 8 and Mitra vs. COMELEC,229 the

226 Underscoring supplied 221 G.R. No. 180088, 19 January 2009 22s G.R. No. 193261, 24 April 2012, citing Enojas, Jr. v. Commission on Elections, 347 Phil. 510 (1997)

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pieces of evidence showing the establishment of domicile of choice must be viewed "collectively" and not "separately" or in iso~ation. Thus, as discussed at the outset, in Romualdez,230 the High Court stressed that even the statement of a candidate in her COC regarding her period of residence is not "decisiv~," because the "residence requirement" is ultimately a question of fact. A single statement "should not ... be allowed to negate the fact of residence . . . if such fact were established by means more convincing than a mere entry on a piece of paper."231

105.1. Applied to Sen. Poe's case, one cannot ignore the numerous pieces of evidence showing that she . .

reestablished her domicile of choice in the Philippines as early as 24 May 2005, simply because she did not possess a: (a) "permanent resident visa", or (b) Philippine citizenship, at the time.

105.2. The absence of a single document (like an "permanent resident visa," or an Oath of Allegiance under Section 3 of R.A. No. 9225) should not be viewed in "isolation," or considered (in itself) "decisive" of the issue of residence, especially in the face of voluminous unrefuted evidence proving Sen. Poe's reestablishment of her domicile in the Philippines as early as 24 May 2005. A contrary ruling would violate the basic principle that compliance with the "residence requirement" is ultimately a question of fact.

106. When the COMELEC placed undue stress and emphasis on Sen. Poe's COC for Senator and the date of her repatriation, the COMELEC "used Wr<?ng. and irrelevant considerations" and "clearly g(ave) t<?O much weight to one factor" in deciding the issue of Sen. Poe's residence. In Varias vs. COMELEC, 232 this Honorable Court ruled that these acts amount to grave abuse of discretion. As discussed, the "relevant considerations" in reckoning the commencement of Sen. Poe's residence are the overwhelming and unrefuted evidence discussed in pars. 73 to 74 above, which collectively show that Sen. Poe had reestablished her domicile of choice in the Philippines starting on 24 May 2005.

A.5. In placing undue weight on Sen. Poe's statement on residence in her COC for

229 G.R. No. 191938, 2 July 2010 230 G.R. No. 119976, September 18, 1995 231 Id. 232 G.R. No. 189078, 11 February 2010

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Senator, and in ruling further that a person's domicile of choice may commence only upon repatriation and/ or the possession of a permanent resident visa, the COMELEC applied a "very legalistic, academic and technical approach to the residence requirement" which "does not satisfy" and is completely divorced from the "simple, practical and common-sense rationale for the residence requirement."

107. In Torayno vs. COMELEC,233 the Supreme Court warned against applying a "very legalistic, academic and technical approach to the residence requirement" which "does not satisfy this simple, practical and common-sense rationale for the residence requirement." On page 17 of the assailed 1 December 2015 Resolution, the COMELEC (citing Limbona vs. COMELEC234 ) noted that "(t)he manifest intent of the law in fixing a residence qualification is to exclude a stranger or newcomer, unacquainted with the conditions and neecfs of a community and not identified with the latter, from an elective office to serve that community."

108. The COMELEC's ruling giving undue weight to Sen. Poe's statement on residence in her COC for Senator, and its ruling that Sen. Poe's residence should be reckoned, at the earliest, from the moment she secures a permanent resident visa and/ or reacquires her natural-born Philippine citizenship are also "very legalistic, academic and technical approach(es) to the residence requirement" which are totally oblivious to the rationale behind the residence requirement.

108.1. Familiarity with a locality is a function of physical presence and time, not a single statement in a persons' previous COC, her alien documentation or her citizenship.

108.2. Thus, one who has spent at least 10 years 1n the country, without securing a "permanent resident

233 G.R. No. 137329, 9 August 2000 234 G.R. No. 181097, 25 June 2008

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visa" or before reacquiring her natural-born citizenship, is not necessarily less acquainted with the problems that beset the Filipino people, than one who secured "permanent resident visa" or reacquired her natural-born citizenship before the start of her 10-year period of residence in the country, but leaves the country for long periods of time. By the same token, one who has 10 years of familiarity with the problems and issues of the Philippines does not become any less familiar simply be<?ause her earlier statement seems to indicate a period or residence in the country shorter than 10 years.

108.3. Therefore, binding a person to a statement on residence in her earlier COC, or reckoning a candidate's period of domicile in the Philippines only from the moment she secures "permanent resident visa" or reacquires her natural-born citizenship, "does not satisfy th(e) simple, practical and common-sense rationale for the residence requirement."

109. As discussed, Sen. Poe reestablished her domicile and has been physically present in the Philippines as early as 24 May 2005. Thus, by 9 May 2016, Sen. Poe would be far from a "stranger or newcomer" to the country. On the contrary, Qy_2. May 2016, she would have been well "acquainted with the needs" of her countrymen and women for at if east 10 years and 11 months.

110. Considering that Sen. Poe's statement in her COC for President regarding her period of residence in the Philippines satisfies the "simple, practical and common sense" rationale for the residence requirement, the same cannot be considered false. In the absence of a "false" representation in Sen. Poe's COC for President, the COMELEC gravely abused its discretion in cancelling the same.

A.6. The COMELEC ignored evidence of Sen. Poe's honesty and good faith when it ruled that she had concealed her supposed "ineligibility" for the Presidency, and that she supposedly intended to mislead or deceive the Philippine electorate, when she stated in her COC for President that her "PERIOD OF

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RESIDENCE UP TO THE DAY BEFORE MAY 09, 2016" would be "10" years and "11" months.

------------------------------------------

111. The COMELEC held that "the declaration of '10 years and 11 months' in (Sen. Poe's) present COC for President" was simply "intended to hide the fact earlier stated under oath in her 2013 COC for Senator that she had actually resided in the Philippines only since November 2006."235 Sen. Poe's "contradiction", according to the COMELEC, "betrays an indubitable attempt to mislead or misinform the electorate and hide from them the fact that she is actually not compliant with the [residence] requirement prescribed in the Constitution".236

112. In the first place, Sen. Poe does not lack the residence qualification for the Presidency, as discussed extensively in Argument A. l. Second, she never "hid" from the public the fact that she mistakenly indicated in her COC for Senator her period of residence to be "6 years and 6 months", in order to "mislead" them into thinking that she is compliant with the residence requirement prescribed in the Constitution. As shown by her evidence submitted to the COMELEC (in pars. 73 to 74 above), Sen. Poe's alleged failure to meet the ten-year residence requirement on the basis of her COC for Senator was already known by the public as early as June 2015, and she, reacting to this issue the first opportunity that she had, already publicly acknowledged and went on record that she committed an honest mistake in accomplishing her COC for the Senator with respect to her correct period of residence in the Philippines. Under these circumstances, the intention to deceive the public (or to conceal anything from them) is clearly negated by Sen. Poe's public explanations made long before she ever announced her candidacy for President and filed her now assailed COC.

113. To Sen. Poe's knowledge, the statement in her COC for Senator that she had been a resident of the Philippines for "6 years and 6 months" "before" May 2013 was first reported in the media on 2 June 2015, when it was raised by Navotas City

--.... R--epresentative and tnen·united Nationalist Alliance ("UNA") Secretary General Tobias "Toby" M. Tiangco during a press conference held at the House of Representatives.237 During this

235 1December2015 Resolution, pp. 31-32. (Underscoring in the original) 236 1 December

0

2015 Resolution, p. 32. 237 A video clip of this press conference was uploaded on video-sharing site Youtube by SunStar Philippines on 2 June 2015, at https://www.youtube.com/watch?v=-OrIG5ns2yE. A compact disk containing a copy of this video clip is attached as Annex "A" of herein

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press conference, Representative Tiangco, using the same theory propounded by those seeking to obstruct Sen. Poe's run for the Presidency, raised doubts regarding her compliance with the residence requirement for the Presidency and Vice-Presidency (i.e., that following her COC for Senator, Sen. Poe would be a resident of the Philippines for only 9 years and 6 months by May 2016). 238 The press conference called by Rep. Tiangco was held late in the afternoon. Sen. Poe could simply have kept her silence and said nothing in response to Rep. Tiangco's allegations. Instead, the very next day, she chose to publicly admit the truth-that she had committed an honest mistake in her COC for Senator, 239 explaining that her period of residence indicated therein was only "6 years, 6 months" because at the time she executed said document, she "thought to err on the side of prudence" by counting her residence in the Philippines only from April 2006, when she and her husband sold their family home in the U.S.A., until October 2012, when she filed her COC for Senator. 240

Petitioner's Verified Motion for Reconsideration (Annex "M" hereof), and re-attached as Annex "Q" hereof. 238 Several media outfits, reporting on the press conference held by Rep. Tiangco, ran front-page stories regarding Sen. Poe's alleged failure to meet the ten-year residence requirement on the basis of her COC for Senator. A sampling of these articles which indubitably show that the public was aware of this issue as early as June 2, 2015, are attached as Annex "B-series" of Sen. Poe's Verified Motion for Reconsideration (Annex "M" hereof). , 239 Again, Sen. Poe's statements during this ambush intervieW: i.e., that she mistakenly reckoned her period of residence in her 2013 COC only from April 2006 (when she and her husband sold their house in the U.S.A.) despite living in the country with her children since early 2005_,, were reported by several media outfits via print and broadcast media. Sen. Poe's alleged failure to meet the ten-year residence requirement, and her assertion that she was able to comply with the same-were on the news for several days. A sampling of these news reports are attached as Annex "C-series" of Sen. Poe's Verified Motion for Reconsideration (Annex "M" hereof). A compact disc containing video clips of news reports broadcasted during this relevant period was also attached as Annex "D" of the Motion for Reconsideration, and re-attached hereto as Annex "R". 240 Excerpts of her answers to the ambush interview by media reporters on June 3, 2015 are quoted below:

REPORTER: [Ano ang masasabi nyo] on the residency issue na ni-raise po ni Rep. Tiangco?

SEN. POE: Naaawa ako sa kanila na pinagdidiskitahan nila ang isyu na iyan na parang ganoon na rin ang ginawa ng mga nawawalan ng pag-asa noong tumatakbo si FPJ. Gayun pa man, tama rin naman na malaman ng ating mga kababayan ang aking tunay na pagkatao, sapagkat ako ay kanilang inihalal at wala naman po akong itinatago. Isang public document po ang COC na iyan. Ngayon, sasagutin ko ito.

Unang-una, bakit nakalagay, six years and six months. Nakalagay po doon sa COC, "resident in the Philippines before May 2013." Hindi po sinasabi by May 2013 or on May 2013. Alam mo, sa experience ko sa COMELEC, dapat nag-iingat kang mabuti. Ang ginawa ko, it was my actual residence on the day of my filing, which is in October 2012.

Bakit ko napili ang 6 years and 6 months? Simple Jang po. Kasi kung presence in the Philippines, I was here 2005 pa Jang. Yung mga anak ko, naka­enroll na sa paaralan, ready po ang transcripts diyan, ready din po ang titulo ng

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113.1. The pieces of evidence that Sen. Poe mentioned during her June 2015 interview-i.e., her actual physical presence in the Philippines since May 2005; her children's attendance in Philippine schools since June 2005; her family's purchase of a condominium unit for use as a temporary residence while they are looking for a new family home-were all presented in evidence by Sen. Poe in the proceedings a quo.

aming kinuhang lugar para matirahan. Pero nilagay ko iyon sapagkat noong 2006 lang naibenta yung bahay namin sa America--April 2006, which can be proven.

So sabi ko, at that time, baka iyon ang ibig nilang sabihin. Di ako abogado, pero ako po ay tapat at truthful at kung bibilangin mo talaga ang oras na nadito ako sa Pilipinas, lagpas pa nga po sa requirement. Kaya para po sabihin nila na kulang, marami po kaming mapapatunay na sobra pa nga at maraming magpapatunay diyan.

Pero, ito rin po ang gusto kong sabihin. Ang pinaka-nakakainsulto sa akin ay ginamit pa nila na hindi daw ako tapat dahil di naman daw ako kwalipikado. Bakit hindi ko daw sinabi iyon. Unang-una, hindi po totoo na ako ay hindi kwalipikado. Kwalipikado po ako pero hindi pa po ako kandidato. Ang iba may mga commercial na. Ako naman po ay nag-iisip at nagninilay-nilay pa. Sasagutin ko naman iyan kung ako ay nag-file, at iyan nga po ang kasagutan. xx x

x x x

REPORTER: Ano dapat ang nilagay na taon at buwan sa residency? Ano dapat ang correct year? ,,. SEN. POE: Ang correct is, actually early 2005. 1 think if I am not mistaken mga ... [pauses to think]. Alam mo kasi yung tatay ko namatay nung 2004 eh, so bandang huli na po iyon ng December 14 [2014] na po iyon. So January pa lang alam ko, or mga February 2005 nandito na po ako. Mapapatunayan po iyan, yung mga anak ko naka-enroll na po dito ng June 2005, bumili na po kami ng matitirhan namin ng pansamantala noong 2005, hanggang pinapatayo pa namin yung aming lilipatan. Ang bahay po ng aking nanay sa San Juan ay naiwan na po sa aming mag-ina ng aking namayapang tatay. Ang korporasyon po ng aking pamilya ay tinulungan kong maipagpatuloy noong 2005 pa. In fact, pwede na naman ninyong hindi sabihin ito, yung isang network nag-release ng pelikula ni FPJ, patuloy po ang paguusap namin sa kanilang mga liderato as early as of that that time kaya sila can provide that witness.

REPORTER: Ma'am June 2015 na po ngayon, so as of today you already met the residency ... ?

SEN. POE: As of today po, lagpas lagpas na. In fact nga kung sasabihin nila na nagsinungaling ako doon, kulang nga ang nilagay ko eh. Kung saka-sakali nga dapat pa mas makatulong sa akin iyon, pero hindi nga po ako abogado at teknikalidad po. Parang sinasabi nila, before May, so that's any month, so ! thought to err on the side of prudence na it's the day of my actual filing to show that I was eligible first for Senate, and if ever, sa mga darating po na panahon kung matutuloy man, ay talagang lagpas pa sa kinakailangan. xx x

A video clip of this ambush interview was uploaded on video-sharing site Youtube by GMA News and Public Affr1irs on June 3, 2015, at https: I /www.youtube.com/watch?v=6VOXlJXr},J_J_cg. A compact disk containing a copy of this vid~o clip was attached as Annex "E" of Sen. Poe's Verified Motion for Reconsideration, and re-attached hereto as Annex "S". The transcript of Sen. Poe's statements during this June 3, 2015 interview is also publicly available at the Senate website, at https://www.senate.gov.ph/press release/2015/0603 poel.asp.

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114. Consistent with Sen. Poe's public admission that she committed an honest mistake in accomplishing her COC for Senator, Sen. Poe, as early as September 1, 2015, in her Verified Answer filed before the SET in SET Case No. 001-15 (a petition for quo warranto filed by Rizalito David), already made it of record that as of May 13, 2013, she had been residing in the Philippines "for more than six (6) years and six (6) months" already. 241

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114.1. The SET Answer was the first opportunity that Sen. Poe had to go on record in any formal proceeding to explain the erroneous entry in her COC for Senator. Prior to this, her residence in the Philippines was never assailed in any judicial, quasi-judicial, or administrative proceeding.

114.2. Sen. Poe also could not have withdrawn her COC for Senator nor corrected the same earlier, as she learned of her honest mistake in her COC for Senator only early this year (2015), or around 2 years after she had already been elected and proclaimed Senator of the Republic of the Philippines in May 2013. Her first chance to correct her mistake in the records of the COMELEC was when she filed her COC for President on 15 October 2015.

114.3. Sen. Poe's Verified Answer in SET Case No. 001-15 is a later document made under oath. It is a1"public record, made widely accessible when it was uploade~iI1 full

' ~:. 1 '·'-

{l: ,, 24 1 Pars. 2.6.1 to 2.6.3 of Sen. Poe's SET Answer, attached as Annex "F" of'Sen. ··pJe's Verified Motion for Reconsideration (Annex "M" hereof), state: · · -~;r.

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, ·~' i 2.6.l. The truth is that, as of 13 May 2013, [Sen. Poe] had been.

· residing in the Philippines for more than six (6) years and six (6) months. [Seli:1.' Poe]'s statement in her COC that she had been residing in the Philippineis.,~for a . period of six (6) years and six (6) months before the May 13, 2013 electiorts" wa~1

·

therefore technically wrong. However, this mistake was an excusable error 'aAsing . from complex legal principles that a layman is not expected to fully know, much,; less understand. It was an honest mistake made in good faith. In fact, [Sen. Po~J was not assisted by counsel when she accomplished her COC. .·

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2.6.2. [Sen. Poe]'s good faith is made more manifest by the fact tltat .· she had nothing to gain by indicating a period shorter than her actual resid~C):'.;lif: the Philippines. On the contrary, it would have been to her advantage to incpcat~"" longer period. The fact that she did not so indicate, clearly shows that she hcme~~­misunderstood what was being asked of her in her COC, and that s}1e ~1d ftc!t\-,: intend to mislead or deceive anyone. '_;;~jl · ' .. ft~

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2.6.3. This is not the first time a candidate committed l

mistake in stating her period---;;-f residency in her COC. The Suprem~';~llit ~\~ .. faced with precisely this problem in Romualdez-Marcos vs. COMELEC. 24 __ 1 tttlf:e~r~\. instead of making the candidate pay for her mistake by disqualifying ~~' ;,tl'ff• · Supreme Court stressed that the "residency requirement" is ultimately a ~stjsm of fact. The statement in the COC is not "decisive." ~ · --- !~

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in the online news website Rappler.242 Thus, apart from the news reports in June 2015,243 her explanation, this time under oath, regarding her "honest mistake" in her 2013 COC was already communicated to the public244 as early as September 2015, or before Sen. Poe filed her COC now in question.

115. The foregoing clearly shows that, in indicating her period of residence in the Philippines in Item No. 7 of her COC for President to be " 10 years, 11 months", she could not have intended to mislead or misinform the public as to the actual period of her residence in the Philippines. She did not indicate such period simply to "create the impression on the part of the unsuspecting electorate that she is compliant with the residence requirement, hence eligible to run."245 To the contrary, Sen. Poe indicated such period in order to correct a previous error committed in her COC for Senator, which error she already publicly recognized long before filing her now assailed COC for President.

116. Still, in its 23 December 2015 Resolution, the COMELEC En Banc held that although Sen. Poe acknowledged and explained her honest mistake in her 2012 COC, in a public interview in June 2015 and in her SET Answer, these were "nonetheless delivered at a time when, at the very least, the possibility of (Sen. Poe) running for President of the country in 2016, was already a matter of public knowledge." "By then, the (Sen. Poe) could have already been aware that she cannot maintain her declaration in the 201 (2) COC as it would be insufficient to meet the 10-year residence requirement for President." This is another conjectural reasoning which evinces the COMELEC's arbitrariness in appreciating the import of the evidence before it, ignoring established facts in favor of an unwarranted conjecture that Sen. Poe's explanations may have been made in bad faith.

242 See "FULL TEXT: Grace Poe's response to disqualification case before the SET", published on September 1, 2015, available at http: //www.rappler.com I nation I politics/ elections/ 2016 / l 04418-full-text-grace-poe­response-disqualification-case. (date of last access: December 2, 2015) A computer print­out of this news article was attached as Annex "G" of Sen. Poe's Verified Motion for Reconsideration (Annex "M" hereof) 243 See Annex "C-series" of Annex "M" hereof 244 See Annexes "B-series", "C-series", and "D" of Annex "M" hereof. See also news article written by Camille Elemia for online news site Rappler, published on September 4, 2015, reporting on the "honest mistake" committed by Sen. Poe in her 2013 COC, available at http: //www.rappler.com/ nation I politics/ elections/ 20 l 6 / 104 731-grace-poe-citizenship­residency-timeline-arguments. = A computer print-out of this news article is attached as Annex "H" of Annex "M" hereof. 245 1 December 2015 Resolution, p. 31

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116.1. That Sen. Poe publicly admitted and explained her honest mistake in her COC for Senator, months before she filed her COC for President, wholly negates the COMELEC's claim that Sen. Poe supposedly "hid" this fact from the Philippine electorate or anyone else.

116.2. That Sen. Poe "rectified" her honest mistake only in June of this year, when the "possibility" of her running for President was "already a matter of public knowledge" does not make her explanations incredible. Sen. Poe's explanations are consistent with news reports regarding her return to the country, all published long before her residence in the Philippines was put into question. Insofar as the COMELEC En Banc insinuates that Sen. Poe's public statements were driven by some personal motive to mislead or to show that she would qualify for the Presidency, there is simply no factual basis therefor. Bad faith or ill motive is never presumed. On the contrary, good faith is presumed. These are basic principles and there is no excuse for the COMELEC's refusal to adhere to them.

117. Moreover, since a Petition to Deny Course to or Cancel a Certificate of Candidacy under Section 78 of the OEC is concerned not with the qualification of a candidate per se, but whether a candidate committed any deliberate misrepresentation in relation to those qualifications,246 the Petitioner in such action is duty-bound to establish bad faith on the part of the candidate as an indispensable element. Good faith is an available defense; thus, an allegedly ineligible candidate (and Sen. Poe is not ineligible) who made an erroneous declaration in an honest belief that he possesses such qualification cannot come under the prov1s1on.

118. Indeed, Sen. Poe cited in support of her position the ruling of the Supreme Court in the case of Romualdez-Marcos vs. Commission on Elections, i.e., that the statement of a candidate in her COC regarding the period of her residence is not "decisive" and cannot prevent the candidate from proving her actual period of residence as a "question of fact"; Jalosjos vs. Commission on Elections,248 that a candidate may reestablish her residence before reacquiring her citizenship under Republic Act No. 9225; and even Coquilla vs. Commission on Elections,249

where it was ruled that a foreigner can reestablish residence in the Philippines "as a visitor" allowed by immigration laws to stay as such. Sen. Poe also cited the ruling in Cordora vs.

246 See Fermin v. Commission on Elections, G.R. No. 179695, 18 December 2008 248 G.R. No. 191970, 24 April 2012 249 G.R. No. 151914, 31 July 2002

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Commission on Elections25° and Frivaldo vs. Commission on Elections25l that residence is "separate", "distinct" and not dependent upon citizenship; and the ruling in Japzon vs. Commission on Elections, 252 reiterated in Caballero vs. Commission on Elections, 253 that R.A. No. 9225 treats citizenship independently of residence.

119. In other words, there were ample legal bases for Sen. Poe to state in her COC for President a period of residence that was reckoned from a date prior to April 2006 (November 2006 as the Second Division erroneously concludes), and prior to her reacquisition of citizenship under R.A. No. 9225. That the COMELEC does not agree with Sen. Poe's position based on these legal authorities only highlights that the reckoning of her period of residence is a matter of legal dispute; and given that this Honorable Court has not itself definitively ruled on it, that legal dispute (on a difficult legal issue) is itself a basis for good faith negating any supposed intention to deceive on the part of Sen. Poe.

120. Sen. Poe's good faith in indicating her period of residence to be "10 years, 11 months" is bolstered by the opinion of respected legal figures, such as Former Chief Justice Artemio Panganiban (who in one column254 expressed his opinion that Petitioner complied with the constitutional residence requirement for President), election law exyJert Atty. Romulo Macalintal,255 Atty. Oscar Franklin Tan,256 and even .Se,nate, President Franklin Drilon, among others, who, citing sOitled

: .: .. Jurisprudence on residence, are also of the opinion · that.), ~" }, statement in a COC is not binding and would not prevent Sep:·.

Poe ·from proving her compliance with the ten-year residence " II·.

requirement. At the very least, these published opinions ar.et evidence of Sen. Poe's good faith in reckoning her period: Pf residence from May 2005, which is when she returned to the Philippines with a definite intention to reside here permanentlY: Surely, if these legal personalities say that Sen. Poe is not bbun(b by an honest mistake in her COC for Senator, and can prove

. through evidence a longer period of residence in the Philippines; '"Jt

,1250 G.R. No. 176947, 19 February 2009 .. ,;;;;,,

251 G.R. No. 120295, 28 June 1996 ;; ' 4. 252 G.R. No. 180088, 19 January 2009 .s:•'";'~'!,v.·. 253 G.R. No. 209835, 22 September 2015 ' .. ""~L• 254 . See Annexes "H" and "I-series"; Exhibit "36-A" for Sen. Poe. . .Jf·;·

· / 255 See report by Tetch Torres-Tupas, "l~esidency issue even helps Grace P<;ie~ec~'Jt .,; ;, ' expert", available online at http:// ne\\'sinfo. inc uirer. net 695806 residenc '- ··· "~e~ih-

he,ws,-grace-poe-election-expert. A print-out of this article is attached as Anne*'f.Jji §f. Annex "M" hereof. · , ••,'!It,·

, •1}56 See article published on June 3, 2015 issue of the Philippine Daily Inquirer, 4y~if~le online at http: I I opinion.inquirer.net/ 85455 /instantly-debunking-toby-tiangco. A print­out of,this article is attached as Annex "K" of Annex "M" hereof. :if ·, . '

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Sen. Poe's assertion in her COC for President that by May 9, 2016, she will be a resident of the Philippines for "10" years and "11" months," especially in light of uncontroverted evidence she presented, cannot be said to be baseless, much less intentionally deceptive.

B. THE COMELEC ACTED WHIMSICALLY AND CAPRICIOUSLY, IGNORED SETTLED JURISPRUDENCE AND DISREGARDED THE EVIDENCE ON RECORD IN RULING THAT SEN. POE MADE A FALSE MATERIAL REPRESENTATION IN HER COC FOR PRESIDENT WHEN SHE STATED THEREIN THAT SHE IS A "NATURAL BORN FILIPINO CITIZEN."

B.1. The COMELEC disregarded the legal impact of the 17 November 2015 Decision of the SET in SET Case No. 001-15 which became final and ,. executory on 3 December 2015, or after the petition a quo was deemed submitted for resolution. The SET Decision negates the falsity of Petitioner's representation in her COC for President that she is a natural-born Filipino. Sen. Poe cannot be a natural-born Filipino as a Senator, but not a natural-born Filipino as a candidate for the Presidency. -----------------------------------------

121. On 17 November 2015, the SET, in SET Case 001-15 entitled David vs. Poe-Llamanzares, declared Sen. Poe (and, by inference, other foundlings), as natural-born citizens of the Philippines, to wit:2s1

2s1 SET Decision, Exhibit "43", p. 26

95

We rule that [Sen. Poe] is a natural-born citizen under the 1935 Constitution and cgntinue (sic) to be a natural-born citizen as

'' • • ' f ' •

defined under the 1987 Constitution, as she is a "citizen of the Philippines from birth, without having to perform any act to acquire or perfect (her) Philippine citizenship."

122. The SET has sole jurisdiction to rule directly on the qualifications of an incumbent Senator. In the words of the

I ; ~ ; .

Constitution,258 the SET is the "sole judge of all contests relating to the ... gua,J.ific;:ations" of members of the Senate of the Republic of the Pnilippines. In contrast, under the present state of the law, the COMELEC may touch upon the qualifications of candidates of specific public posts, but only for the narrow and liµiited purpose of determining whether the candidate committed a false material representation in his or her COC.

123. The SET's 17 November 2015 Decision2s9 ("SET Decision") is therefore the first and only ruling rendered to date,

' which passed squarely upon the issue of whether Sen. Poe, as a foundling 1 is a natural-born Filipino. This Decision is the first

' I ~

and only ruling per se on Sen. Poe's citizenship qualification, which just so happens to be exactly the same citizenship qualification for the Presidency.

124. On 3 December 2015, or after the petition a quo was deemed submitted for resolution but before ,.the COMELEC En Banc issued its assailed 23 December 2015 Resolution, the SET Decision became final apd executory. Under Rule 80 of the 2013 Rules of the SET, a decision becomes final and executory upon receipt by the parties of a copy of the resolution denying a motion for reconsideration of the decision. On 3 December 2015, the parties to SET Case No. 001-15 received the SET's Resolution denying petitioner Rizalito David's motion for

' reconsideration. Therefore, the 17 November 2015 Decision became "final and executory" on that date. The fact that Mr. David elevated the SET Decision to this Honorable Court does not change the final and executory nature of the Decision, unless the High Court issues a temporary restraining order enjoining the implementation of the SET Decision. To Sen. Poe's knowledge, no such TRO has been issued by the Supreme Court. The SET Decision was the:refme ·-"final and executory" as early as 3 December 2015.

125. In sum, even if the COMELEC disagreed with the SET, it could not have ruled that it was false for Sen. Poe (or that it was an -intentional misrepresentation for her) to assert in her

258 Section 17, Article VI, 1987 Constitution 259 See Annexes "H" and "I-series"; Exhibit "43" for Sen. Poe

96

COC for President that she is a "NATURAL-BORN FILIPINO CITIZEN," because the first st?llding, fi9al and executory ruling on this issue is that Sen. Poe is a natural-born Filipino. A person can only assume on~ status. Sen. Poe cannot be a natural-born citizen as a Senator and at the same time, lack

. . --such citizenship as a Presidential candidate, or commit deliberate misrepresentation by stating that she is a natural­born Filipino as found by the SET.

126. The COMELEC's disregard of the SET Decision in exercising its own limited jurisdiction to determine whether Sen. Poe made a material misrepresentation in her COC, highlights the grave abuse of discretion committed by the Commission. It cannot be overemphasized that the COMELEC is not a court or a tribunal which possesses an original power to interpret the law, such that it can freely ignore a Decision rendered by a co-equal constitutional body on the same issue, and conclude with certainty that the representation on Sen. Poe's COC was false.

127. Notably, at the time the COMELEC En Banc issued its 23 December 2015 Resolution, it was already of public knowledge and widely reported in the media that the SET's Decision had been elevated to this Honorable Court. In view of that development, and in the spirit of showing due deference and respect to this Honorable Court, the COMELEC En Banc should have avoided making any categorical ruliRg on Sen. Poe's

"'' · citizenship.

·11

. . 128. Assuming arguendo that the COMELEC has· the. 'S, , , , cJ1•: "'

power to render a separate ruhng specifically, squarel~ aqd« finally on the issue of the citizenship of a foundling (as the· SET. undoubtedly had the power to do), but which is in conflict witp;; ·. that of the SET, the COMELEC's ruling would create, at the v.ezy. least, equipoise on the issue. Moreover, the two conflicting rulings would show that the issue of Sen. Poe's citizensl)ip~'is really an unsettled legal issue, of first impression, which only the Supreme Court can decide with finality.

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129. Since the issue of Sen. Poe's citizenship is of first ,impression and that this Honorable Court has yet to defi~itely resolve the same, it follows that there was a distinct possihilik that Sen. Poe might be found to be a natural-born Filigitt'4!>. light of that possibility, it would also follow that Sen. Poe~.

;·,·~

. {very least, might ?ave been tellii;g the truth when she ~t.~: ;. e~c;b.,·~ ... ~ ·· her COC for President that she is a "NATURAL BORN Pllil?INd ···

. CITIZEN." This is significant because someone who migKt::~ ; ·,telling the truth cannot be categorically found to be asser;tjn~a , · falsehood (or, worse, telling a lie). · ., ~

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130. Considering that the issue of Sen. Poe's citizenship is still unsettled, the COMELEC acted il~ogically, whimsically and capriciously when it considered as definitely false, Sen. Poe's assertion in her COC for President that she is a "NATURAL BORN FILIPINO CITIZEN."

B.2. The COMELEC disregarded settled and long-standing jurisprudence that the burden of proof in proceedings under Section 78 of the OEC, in relation to Rule 23 of the COMELEC Rules, is on the petitioner, when it ruled that Sen. Poe had the burden of proving her natural-born citizenship.

131. The COMELEC's ruling on citizenship is based on its finding that Sen. Poe had the burden of proving that she is a natural-born Filipino; that she has a "bloodline" to a Filipino parent. In its 23 December 2015 Resolution, the COMELEC En Banc reiterated that "[t]he burden of proving that she is a natural-born Filipino citizen is upon respondent [Sen. Poe]."260 This ruling was rendered in utter disregard of prevailing law and jurisprudence, and thus with grave abuse of discretion. The decisions of this Honorable Court uniformly show that the petitioner (Elam.para) (not the respondent) has the burden of proof, at the first instance, in a petition filed under Section 78 of the OEC.

131.1. In Aznar vs. COMELEC,261 this Honorable Court held that it was "incumbent" upon the petitioner to "positively establish," "by substantial and convincing evidence," that the candidate "had lost his Philippine citizenship." In other words, it was the burden of the petitioner to prove that the candidate was an alien.

131.2. In Salcedo II vs. COMELEC,262 the High Court found that "petitioner has failed to discharge the burden of proving that the misrepresentation allegedly

260 COMELEC En Banc Resolution, p. 26 261 G.R. No. 83820, 25 May 1990 262 G.R. No. 135886, 16 August 1999

~

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98

made by private respondent in her certificate of candidacy pertains to a material matter."

131.3. The concluding paragraph of the majority decision in Tecson vs. COMELEC shows that it was the petitioner who had the burden of proving that the late

' Ronald Allan Kelly Poe (Sen. Poe's late father) made a false material representation in his COC for President in the May 2004 elections. The same paragraph found in the opinion of the majority in Tecson (which the COMELEC quoted on the fast page of the 1 December 2015 Resolution) also shows that, contrary to the COMELEC's ruling, it is not necessm for a candidate to prove with certainty that he or she is a natural-born Filipino or that he or she has a "bloodline" to a Philippine citizen, thus:

But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in ' .. relation to Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties to present their position and eyidence, and to prove whether 0! J!Ot there has been material misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC, must not only be material, but also deliberate and willful.263

131. 4. In Fermin, 264 this Honorable Court ordered the dismissal of the petition on the ground that the petitioner had not made out a "prima facie case." According to the High Court, the petitioner had not presented "(c)onvincing evidence" to "substantiate every allegation," "sufficiently strong for his opponent to be called on to answer it."

131.5. In Japzon vs. COMELEC,26s the High Court held that "Japzon failed to substantiate his claim that Ty is ineligible to be Mayor of the Municipality of General Macarthur, Eastern Samar, Philippines." This Honorable

263 Underscoring supplied 264 G.R. Nos. 179695 and 182369, 18 December 2008 265 G.R. No. 180088, 19 January 2009, cited in Sabili vs. COMELEC, G.R. No. 193261, 24 April 2012) .

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99

Court upheld the En Banc resolution of the COMELEC which had ruled:

Owing to its primordial importance, it is thus presumed that every person is a citizen of the country in which he resides; that citizenship once granted is presumably retained unless voluntarily relinquished; and that the burden rests upon who alleges a change in citizenship an4 allegian.ce ~o establish the fact. 266

131.6. In Mitra vs. COMELEC,267 this Honorable Court placed the burden of evidence on the elected member of the House of Representatives only after the private respondents had "successfully established," and the elected official had "admitted," that his domicile of origin was in a city other than where he was elected to office. The burden of proof was, initially, on the parties who asserted that the official lacked the residence qualification.

131.7. In Reyes vs. COMELEC,268 the majority held that the petitioner before the COMELEC (Joseph Tan) initially had the burden of proof to show that the candidate (Regina Reyes) was not a Filipino. The High Court held that the "burden" shifted to Reyes only after Tan had proven that Reyes was a U.S. Passport holder and a "balikbayan." However, Reyes was not,.,·required to prove · that she was a natural-born Filipino to begin with,,_ .She~

only had to prove that she had complied witfl: #.the requirements under R.A. No. 9225 to qualify for fJublic

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131.8. At least two (2) settled principles involvin,i~J , the concept of "burden of proof' support the abqve- ,

mentioned jurisprudence. Under Section 1, Rule 13 t~of the . Rules of Court, burden of proof is the duty "of a pa}q,··7to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence· required by law." Thus, this Honorable Court has consistently held that "(t)he burden of proof is, in the Jitst instance, with the plaintiff who initiated the action,"26.9 ap;d it becomes incumbent on the defendant to prove ~r defense only after plaintiff has proven his claim. I!, foH~.I

. . . . . ' . ...;~~.:.,'ft: . /266 Underscoring supplied , ,.'t1 1i,:{f~*'· , '267 G.R. No. 191938, 2 July 2010 ~'4'1 i,';i:' '~;.

268 G.R. No. 207264, 25 June 2013 . • )"i"·:~~ " 269*R~public vs. Sandiganbayan, G.R. Nos. 166859, 169203 & 180702, 12 Apr:il '~"i'l'·;· · Republic vs. Vda. De Neri, G.R. No. 139588, 4 March 2004; See separate copclJ,it;ipg

1 1bpinion of Justice Callejo in Tecson vs. COMELEC, G.R. Nos. 161434, 161634 & lql8~4, 3 March2004 ;;

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that private respondent has the burden of proof (in the first instance) to prove her claim. It is private respondent's duty to initially prove that Sen. Poe's representations in her COC concerning her citizenship and residence are "false." Another oft-cited principle is that "(t)he burden of proof is on the party who would be defeated if no evidence is given on either side."270 Thus, a party would !!Q! have the burden of proof if she would prevail in the absence of evidence from both parties. The burden of proof could not rest on Sen. Poe, for she stands to prevail in the event that neither party presents evidence in this case. In contrast, since private responde~t stood to be "defeated" if neither party presented evidence, upon her rested the "burden of proof."

132. To reiterate, the "exclusive" ground that may be raised in a petition to deny due course to or cancel a COC under Section 78 of the OEC is that the "representation(s) contained as required by law (are) false." Therefore, if the purported falsehood in the COC involves the candidate's citizenship, the petitioner must prove that she is not a natural-born Filipino. While this - '

statement is negative in form, it constitutes the very basis of private respondent's claim that Sen. Poe is disqualified. Whenever the petitioner's right depends upon the truth of a negative statement, upon him is the onus probandi.271 To repeat this fundamental rule, Section 1 of Rule 131 imposes on the claimant the "duty" to prove his claim, regarcUess of the form in which his claim is cast.

133. Thus, a candidate should not be compelled to prove the truth of the representation in her COC that she is a "NATURAL-BORN FILIPINO CITIZEN." The law assumes that a perso~ is honest and truthful. A person is presumed innocent of any wrong doing (including lying or deceiving). 272 It is no wonder that in proceedings under Section 78 of the OEC, jurisprudence places the burden of proof squarely on the petitioner (the one accusing the respondent of lying), and not on the respondent (the one accused of lying). There are more reasons why private respondent had the burden of proving that Sen. Poe is not a natural-born Filipino.

134. Under Section 23, Rule 132 of the Rules of Court, "(d)ocuments consisting of entries in public records made in the

210 Spouses Hanopol vs. Shoemar. Inc., G.R. Nos. 137774 & 148185, 4 October 2002, citing Borlongan vs. Madrideo, G.R. No. 120267, 25 January 2000, which in turn, cited Summa Insurance Corporation vs. Court of Appeals, 253 SCRA 175 ( 1996) 211 Venzon v. Spouses Santos et al., G.R. No. 128328, 14 April 2004 212 Section 3(a), Rule 131 of the Rules of Court

--------------~--------------------~..,,~-.~------... .... ~ 101

performance of a duty by a public officer" "are prima facie eviQ.ence of the facts stated therein ... "213

134.1. Thus, in Board of Commissioners, et al. vs. Hon. Dela Rosa, 214 this Honorable Court applied a "presumption of citizenship" in favour of a certain Mr.

< ' ; • '

William Gatchalian because the last official act of then Acting Commissioner of Immigration was the issuance of an order "admitting" Mr. Gatchalian as a "Filipino citizen" and "revalidating" his Identification Certificate. Conversely, in Aznar vs. COMELEc,27 s the Supreme Court held that "lqss of citizenship" could not be presumed for a "holder of a valid and subsisting Philippif1-e pas~port" who "ha(d) continuously participated in the electoral process in this country since 1963 up to the present, both as a voter and as a candidate."

134.2. Under Section 3, Rule 131 of the Rules of Court, the following "presumptions are satisfactory if uncontradicted":

(I) That a person acting in a public office was regularly a1mointed or elected to it;

I .

(m) That official duty has been regularly performed; x x x /

(ff) That the law has been obeyed;276

135. The Philippine Government has, through official acts, repeatedly and consistently recognized Sen. Poe as a natural­born Filipino, or a Filipin,o. Taken together, these acts give rise to a presumption that Sen. Poe is certainly a Filipino, and in fact, a natuq:tl-born Filipino. The COMELEC should have placed the burden on private respondent to overcome this presumption.

273 In Gonzles vs'. Pennisi, G.R. No. 169958, 5 March 2010, this section was applied to a certificate of live birth which the Supreme Court held to be "valid unless declared invalid by competent authority." See also Cacho vs. Court of Appeals, G.R. No. 123361, 3 March 1997, where the Supreme Court held that: "The execution of public documents, as in the case of the Affidavit of Adjudication, is entitled to a presumption of regularity and proof is required to assail and controvert the same. Thus, the burden of proof rests upon him who alleges the contrary and respondents cannot shift the burden to petitioner by merely casting doubt as to his existence and his identity without presenting preponderant evidence to controvert such presumption. With more reason shall the same rule apply in the case of the Special Power of Attorney duly sworn before the Philippine Consulate General of the Republic of the Philippines in Chicago, the act of the administering oath being of itself a performance of duty by a public official." 214 G.R. Nos. 95122-23, 31May1991 21s G.R. No. 83820, 25 May 1990 276 Underscoring supplied

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i. Official acts in recognition of Sen. Poe's natural-born Philippine citizenship

135.1. On 18 July 2006, the B.I. issued an Order granting Sen. Poe's petition for reacquisition of natural born citizenship under R.A. No. 9225, which states that Sen. Poe is "presumed to be a natural born Philippine citizen." R.A. No. 9225 applies only to natural-born Filipinos.

135.2. On 31 July 2006, the B.I. issued Identification Certificate No. 06-10918277 which certifies that Sen. Poe was "recognized as a citizen of the Philippines as per (sic) pursuant to the Citizenship Retention and Re-acquisition Act of 2003 (RA 9225) xx x."

135.3. On 6 October 2010, the President of the Philippines appointed Sen. Poe the Chairperson of the MTRCB;278 a position which can only be occupied by a "natural-born" Philippine citizen.279

135.4. Sen. Poe's coc2so for the 2013 Senatorial elections was accepted by the CO MELEC and no disqualification case was filed against her. She stated in her COC that she is a natural-born Fil.ipino. Thereafter, she was overwhelmingly elected by the Filipino people.. "' '""'

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135.5. On 17 November 2015, the SET, in ,SET Case 001-15 entitled David vs. Poe-Llamanzares, render€'~ a Decision2s1 of even date which declared Sen. Poe;~~a

· natural-born citizen of the Philippines. 2s2 As discussed. ~ .. arlier, the SET Decision became final and executory on .. 3.

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December 2015. .. · •',It ,:'"P

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issued a Decision283 granting the Spouses Poe's peti'" '' I

' ?71 See £xhibit "23" ·h4/~}1f, See ~xhibit "2~" . • '. · .... 279 Section 2, Presidential Decree No. 1986

'250 ~e Exhibit "32" -~ .. . 281 See Exhibit "43"

4;?s!i Id., at p. 26 .283 See ~xhibit "2"

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adopt Sen. Poe. Sen. Poe does not argue that her citizenship is derived from her Filipino adoptive parents; rather it is her position that the adoption affirms that she was a Filipino in the first place. The San Juan Court could not have applied Philippine adoption law (which relates to "family rights and duties" and to "status" of persons), if it did not in the first place, consider Sen. Poe to be a Filipino who would be "bound" by such laws.

135.7. On 13 December 1986, the COMELEC issued to Sen. Poe a Voter's Identification Card284 for Precinct No. 196, Greenhills, San Juan, Metro Manila. On 31 August 2006, the COMELEC registered Sen. Poe as voter. Under the 1973285 and 1987286 Constitutions, the right of suffrage may be exercised only by those who are "citizens ~f the Philippines."

135.8. The Ministry /Department of Foreign Affairs of the Philippines issued passports to Sen. Poe on 4 April 1988, 5 April 1993, 19 May 1998, 13 October 2009, and 18 March 2014.287 A diplomatic passport288 was even issued in her favor on 19 December 2013. Passports typically state that the bearer is "a c;it~zen <?f ~he Philippines." Under R.A. No. 8239, the Philippine government issues a passport only if it is "satisfied that the applicant is a Filipino citizen."289 A passport is a document certifying the>· citizenship of the holder,290 and under R.A. No. 8293, is not issued in cases of a doubtful claim to Philippine citizenship.291

135.9. The presumption that the San Juan Court, the D.F.A., the B.I., the President, and the COMELEC "regularly performed" their respective "official" duties in issuing the above-mentioned documents in Sen. Poe's favor, logically carries with it the presumption that she qualified for their issuance. In other words, the application of the presumption of regularity in the issuance of the aforementioned documents, and the regularity in Sen. Poe's election (as Senator) and appointment (as MTRCB

284 See Exhibit "3" 285 Section 1, Article VI of the 19 7 3 Cons ti tu ti on 286 Section 1, Article V of the 1987 Constitution 287 See Annexes "H" and "I-series"; Exhibits "4", "4-A", "4-B", "25" and"34" 288 See Annexes "H" and "I-series"; Exhibit "33" 289 See Sections 3(d) in relation to Section 5 of R.A No. 8293 and Maquiling vs. Commission on Elections, G.R. No. 195649, 2 July 2013 290 RONALDO P. LEDESMA, PHILIPPINE IMMIGRATION ACT (COMMONWEALTH ACT NO. 613) COMMENTS AND CASES p. 17 ( 1994), citing sec. 136 if the 1983 Foreign Service Code 291 See Sec. 3 (e), R.A. 8293. Under Sec. 13 (e) of the same law, a "travel document", in lieu of a passport, may be issued to a stateless person who is likewise a permanent resident, or a refugee granted such status or asylum in the Philippines.

104

Chairperson) necessarily entails the presumption that she is a "natural-born" citizen of the Philippines. Therefore, it was private respondent's burden to prove that Sen. Poe is not a natural-born Filipino.

135.10. Lastly, the cases of Tecson vs. COMELEC and Japzon vs. COMELEC, among others, show that a presumption may be the basis of a claim of citizenship. In Tecson vs. COMELEC, the late Fernando Poe, Jr.'s Filipino citizenship was ultimately upheld based on the pre~umption that his grandfather, Lorenzo Pou, who died at San Carlos, Pangasinan, was a resident thereof even before his death, and "in the absence of any other evidence . . . would have benefited from the en masse Filipinization that the Philippine Bill had effected in 1902." The COMELEC itself, in its Resolution (upheld by this Honorable Court) denying the Motion for Reconsideration filed by petitioner Manuel B. Japzon in Japzon vs. COMELEC, even summarized certain presumptions which may be indulged in even if the issue involved is citizenship, viz:

It must be noted that absent any showing of irregularitY. that overturns the prevailing status of a citizen, the presumption of regular\ty remains. Citizenship is an important aspect of every individual's,, constitutionally granted rights and privileges. This is essential in determining whether one has the right to exercise pre­determined political rights such as the right to vote or the right to be elected to office and as such rights spring from citizenship.

Owing to its primordial importance, it is thus presumed tha~ every person i~ a ci~izen of the country in which he resides; that citizenship once granted is . . .

presumably retained unless voluntarily relinquished; and '

that the burden r~sts upon who alleges a change in citizenship and allegiance to establish the fact.292

'' .

136. Common sense tells us that Sen. Poe was born of Filipinos and is therefore nati.:iral-born. Given this strong probability, her statement in her COC for President that she is a natural born citizen of the Philippines cannot automatically be considered "false." The presumption that she is born of Filipino parents is supported not only by international law principles, but presumptions found in the Rules of Court, as well as

292 Underscoring supplied

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ordinary deductive reasoning circumstantial evidence.

applied to unrebutted

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136.1. states:

Section 3 (y), Rule 131 of the Rules of Court

Section 3. Disputable presumptions. - The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

x x x

(y) That things have happened according to the ordinary course of nature and ordinary nature habits of life;293

.. . . .

The "ordinary course of nature" and the "ordinary habits of life," taken together with the admitte<.l facts, which also constitute unrebutted circumstantial evidence in Sen. Poe's favor, lead to the conclusion that Sen. Poe's biological parents were m~st likely Filipinos, and not foreign~rs.

136.2. Sen. Poe is only 5 ft. 2 inches tall.294 She has brown almond-shaped eyes, a low nasal bridge, straight black hair and an oval-shaped face.295 Her height .. and facial features are consistent with physical traits . "' ordinarily associated with Filipinos. ., ;·.

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136.3. Sen. Poe was found, as a new-born ba~ · ip Iloilo City which is located in the Philippines.296 .~r· "'biological parents were therefore likely to have been ,residents of Iloilo City. In 1968, as at any time, ¥1 overwhelming majority of the population of Iloilo City w.<:(te

. Filipinos. .,

136.4. Sen. Poe was abandoned in a Romdn .;£;

Catholic Church.297 A great majority of Filipinos ~e Roman Catholics, and only a Roman Catholic would ~ expected to entrust his/her new-born child to a chur:f:~. ,;..[:' Even in 1968,. the Philipi;>ines .was the only .predomina~~~~''.·; Roman Catholic country in Asia. In the ordinary cou:r- ~

ithings, only Filipinos with Roman Catholic faith/~·'• ~leave Petitioner in a church in Iloilo City. I,_-./

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. ·) .' , 293. ~nqerscoring supplied , . 294 :see Exhibit "4'', p. 1 ·. ;.;:n~ Id. · t•J6 Elamparo Petition, p. 6, first paragraphs under "Relevant Facts"

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136.5. Sen. Poe's abandonment as a new-born child is also far more consistent with her biological parents being Filipinos. New-born children are abandoned usually because their parents are poor and cannot afford to take care of them. On the other hand, foreigners impoverished in their own country would not likely have the means to travel and find themselves impoverished in the Philippines. Therefore, abandoned children found in the Philippines are more likely to have been born of poor Filipino parents, as opposed to foreigners.

136.6. In the absence of evidence, the law does not require the COMELEC to accept the improbable, the unlikely and the absurd. As discussed, "unless overcome by evidence," the "ordinary" must be presumed. In this case, the "ordinary course of nature" and the "ordinary habits of life" tell us that a new-born baby with brown eyes, black hair and an oval-shaped face, found in a Parish Church in Iloilo City hours after her birth, was born of Filipinos. Occam's Razor teaches us that the simplest answer is often correct.

136.7. Would the presumption of natural born citizenship be rendered absurd if the foundling had blond curly hair, blue eyes and freckles? What if the foundling had ebony skin and dark curly hair? The answer is "NO."

136.8. A natural-born Filipino does not have to look like a typical Filipino. He or she may be of Caucasian, Indian, African or other foreign descent, but still be a natural-born Filipino citizen. The Constitution simply provides that a person be born of parents who are citizens of the Philippines. This means that a foundling's parents may be naturalized Filipinos, but with Caucasian, Indian, African or other foreign descent. It is wrong to presume that natural-born Filipinos must always be of the Malay race, as there are many Filipinos who are mestizos, Chinoys and others of mixed stock. Therefore, a found[ng may look like a foreigner, but still be a natural-born

I ;

Filipino. That said, this discourse is more academic than decisive, because, as discussed, Sen. Poe looks entirely Filipina. This obvious fact only strengthens the presumption that she was born of Filipinos.

137. The above-mentioned circumstances of Sen. Poe's discovery as an abandoned new-born baby in a Roman Catholic Church in Iloilo in 1968, and her physical features which

llm ............................. 1111111111 ....................................................... __ .... __________ .~

107

resemble a typical Filipina, must also be considered as circumstantial evidence that she was indeed born of Filipino parents. Circumstantial evidence, which may suffice for conviction even in criminal proceedings requiring the highest degree of proof, is certainly admissible in an administrative 12roceeding requiring only S\,lbs~ant~al evidence to prove that Sen. Poe is most likely born of Filipino parents, and did not "lie" when she stated in her COC that, "to the best of [her] knowledge", she is a natural-born Filipino citizen.

137.1. Substantial evidence is defined as "that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. "298 Thus, the COMELEC should have considered the uncontroverted circumstances of Petitioner's birth, discovery as a new-born infant, and physical features, as sufficient relevant evidence adequately justifying a conclusion that she was most likely born of Filipino parents. A rule requiring conclusive identification of blood ties to a Filipino parent is neither supported by law (as the definition of natural-bo.,..n citizenship under the Constitution does not even require actual proof of blood relationship) nor by jurisprudence (as the cases of Board of Commissioners vs. Dela Rosa and Tecson show, wherein a claim of citizenship was upheld based on a presumption).

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137.2. Section 4 of Rule 133, on the sufficiency of circumstantial evidence to sustain a conviction in a criminal case, may be applied by analogy. Under said rule, circumstantial evidence is sufficient if: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. In this case, there are several circumstances which lead to the inference that Sen. Poe is likely born of Filipino parents, to wit: ( 1) she was found as a new-born baby in Iloilo City in 1968; (2) Iloilo is, then as now, predominantly populated by Filipino citizens; (3) there is no international airport or seaport in Iloilo City in 1968, and no evidence to show that it is considered a main port of

_ L.- r ~-entry ior aliens; ~~ £en. ~was reportedly abandoned in a Roman Catholic Church, which is the religion practiced by a majority of the Filipino population in 1968, as in present times; and (5) Sen. Poe's physical features are consistent with those normally associated with Filipino citizens. These "circttmstances" are not disputed by private respondent.

298 Sec. 5, Rule 133, Rules of Court

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The combination of these circumstances is sufficient to produce a "moral certainty" "or conviction in an unnrejudiced mind" that Sen. Poe is indeed born of Filipino

; ';

parents who abandoned her as a new-born infant in a Roman Catholic Church in Iloilo City in 1968.

137.3. It is grave abuse of discretion for the COMELEC to insist on nothing less than direct proof from Petitioner that she was born of Filipino parents. To repeat, the proceeding a quo was administrative in nature, requiring only substantial evidence-the lowest quantum of evidence in judicial or quasi-judicial proceedings. Even criminal proceedings, which require proof beyond reasonable doubt, do not require direct proof, much less proof producing "absolute certainty" of guilt. The highest quantum of proof under the rules on evidence require merely "moral certainty" that a person has more likely than not committed the crime he is charged with. To require Sen. Poe to prove with "absolute certainty" her "blood tie" to a Filipino parent is to require her to meet a quantum of evidence even greater than that required in criminal . ~;

proceedings. This is certainly unjust, arbitrary, whimsical, and despotic.

138. All told, there was no legal basis for the COMELEC to p~ace the burden of proof on Sen. Poe to prove her natural born ' ~qitizenship or to prove her bloodline to a Filipino parent. Private ""

' respondent ought to have proven that Sen. Poe was not te1Iitlg _ -J}le truth when she claimed in her COC for President that she)~, ,~'" :: '~'NATURAL-BORN FILIPINO CITIZEN." The COMELEC should'.'\,

" ,.. :~.,., ~ .,('·'·

-have demanded proof from the private respondent that Sen. P,pe -· -is not a natural born Filipino. ·

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139. Was private respondent able to discharge her burden? ,<'. -·The answer is NO. The only way to prove that Sen. Poe is not,. a .,. . _natural-born Filipino is to prove that both of her parents qre -~ foreigners. No such proof was presented. The only fact

. ,established in the proceeding a quo is that Sen. Poe's parents 0,.te Junknown. But this fact can!l.Q! discharge private responden,~;s t ~~th;trden. How can private respondent's failure to present evidet:i&~,&.,j, ~-that Sen. Poe's parents were foreigners discharge their burde:fl',~&~t;· · prove that Sen. Poe is a foreigner or stateless and not a nat- · .• ;tt .... :"·

"' -~qrn Filipino? A burden of proof is not and cannot be disc:f _ .;-bf th~- abs~nce of evide~ce; to hold ot~er'"'.'ise is to supp~ft\;}d

:;;t<!'t~absur,~ lo.gic that th~ exi~tence of a thing is proved by t~~~~ ,· lack-di' evidence that it exists. . ~~

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109

139.1. Nqt kriowing ~s different from not being. A person who is not sure that she is a natural-born Filipino may in fact be a natural-born Filipino. "Unknown" parents may in fact be Filipino parents. Thus, Sen. Poe may in fact be a natural-barf} Fi_lipino. If it is entirely possible that Sen. Poe was telling the truth when she stated in her COC that she is a "NATURAL-BORN FILIPINO CITIZEN," then the COMELEC cannot conclude that what she said was false. --.-The mere fact that Petitioner's parents are unknown does not render false her claim in her COC that she is a "NATURAL-BORN FILIPINO CITIZEN."

139.2. Ignoring for the time being that presumptions of law apply in favor of her natural-born citizenship which have not been disproven, and that the burden of proof is not hers but private respondent's, Sen. Poe's statement in her COC that she is a natural-born Filipino cannot be false, but at most only not proven. The mere fact that a statement is not proven does not mean that it is false.

140. At the end of the day, the COMELEC acted with grave abuse of discretion when it declared "false" Sen. Poe's assertion in her COC for President regarding her citizenship, despite private respondent's complete and utter failure to prove such falsity. In the absence of proof, presumptions stand, and the

' presumption in this case is that Sen. Poe was telling the truth in her COC when she stated therein that she is a "NATURAL-BORN FILIPINO CITIZEN."

B.3. The COMELEC acted whimsically, capriciously, contrary to common sense and logic, and in contravention of the letter and spirit of the fundamental law, in concluding that a foundling like Sen. Poe is "excluded" from the enumeration of Philippine citizens under Section 1, Article IV of the 1935 Constitution. -------------------------------------------

141. Section l, Article IV of the 1935 Constitution enumerates those who are considered Philippine citizens:

110

( 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.

(3) Those whose fa~hers are citizens of the Philippines. ( 4) Those whose mothers are citizens of the Philippines and,

upon reaching the age of majority, elect Philippine citizenship.

(5) Those who are naturalized in accordance with law.300

142. On page 24 of the 1 December 2015 Resolution, applying the Latin maxim "expressio unius est exclusio alterius," the COMELEC concluded that a foundling is supposedly "not in the enumerations (sic)" of Philippine citizens above. This position was adopted in the 23 December 2015 Resolution of the COMELEC En Banc. This conclusion is whimsical and capricious because it is illogical.

143. Sen. Poe concededly does not fall under sub­paragraphs (1), (2) and (5). Therefore, she does not need to be "excluded" from these three (3) categories. However, the mere fact that she is a foundling does not, by any stretch of logic, categorically "exclude" Sen. Poe from sub-paragraphs (3) and (4).

144. Philippine citizens under paragraphs (3) and (4) are simply those whose parents are Filipinos. There is nothing in the provision which requires that the identity of such parents be proven with absolute certainty, or even that such identity be proven as a fact.301

145. The biological parents of a foundling are simply unknown, and therefore they may in fact be Filipinos. Thus, as discussed in paragraph 136 (and sub-paragraphs), Sen. Poe will most probably fall under any of these two (2) types of Filipinos. Thus, a foundling is NOT necessarily EXCLUDED from these two categories of citizens. Therefore, the COMELEC should not have applied the latin maxim "exclusio unius est exclusio

300 Underscoring supplied 301 This is true not only with respect to foundlings, but even with respect to legitimate children, whose filiation (or biological tie) to their father is merely presumed by law. In other words, a legitimate child may in fact be not biologically related to his or her Filipino father, but the law will still consider him or her a Filipino citizen, because of the quasi­conclusive presumption that he or she is born of the husband of his or her mother. There are therefore situations wherein a person is presumed by law to be a Filipino citizen, notwithstandirtg the absence of any actual "blood tie" to a Filipino parent, as in the case of a child conceived or born within a valid marriage between a Filipino father and an alien mother, but is actually the product of artificial insemination with a donor, or of adulterous relations.

.~

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alterius." Simple logic and common sense (neither of which the COMELEC wanted to use) are enough arrive at this conclusion.

146. Considering that foundlings are not categorically excluded from the letter of pars. (3) and (4) of Section 1, Article IV of the 1935 Constitution, and there is am:IJiguity in the application of this Article to foundlings, the issue becomes, in essence, one of constitutional construction. Contrary to the COMELEC's Resolution,302 a verba legis approach will not solve the problem, as the "express terms" of the Constitution, when "applied", will not lead to the conclusion that foundlings are not Filipino citizens.

14 7. Since the issue is fundamentally one of construction, it is proper to apply acceptable methods of constitutional construction, among them, ascertainment of intent behind a particular provision. In this regard, the deliberations of the framers of the organic law must be consulted in order to discern their intent with respect to the citizenship of foundlings.

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147.1. In Nitafan vs. Commissioner, 303 this Honorable Court ruled:

The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in··'-···"':'·' ~·,,. constitutional construction is to ascertain and thereafter' assure the realization of the purpose of the framers and of the'~ ''~ :;'.'· people in the adoption of the Constitution. It may also be.. ·~~·~. f\ safely assumed that the people in ratifying the Constitution were guided mainly by the expl.anation offered by the framers. 304

~ ·~'

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147.2. In In re Aquino, Jr. vs. Enrile,3os the High"1''

Court stated that "it is generally held that, in construipg constitutional provisions which are ambiguous or 'of.' doubtful meaning, the courts may consider the debates ;iu;;:;.'.

'""'ii-

~ 302 1 December 2015 Resolution, p. 25 , · 303 G.R. No. 7870, 23 July 1980 .:. '304 Un4erscoring supplied

.~os G.l\. No. L-35536, 17 September 1974, citing Pollock vs. Farmer's Loan & T . . J,p7 U.S. 429, 39 L. ed. 759; See also Legal Tender cases (1884) 110 U.S. 421, ~S'.~

1;\,~04, 70 A.L.R. 30). The Supreme Court also examined the deliberation~,Jbf ~· ... ConstiWtional Commission/ Convention in construing applicable provisions . of ' ''Constitution in the following cases: Feliciano vs. Commission on Audit, G.R. No. 14 . . ~~4 January 2004; Province of North Cotabato vs. Government of the Republic oft •1(pf'filippines Peace Panel on Ancestral Domain, G.R. Nos. 183591, etc., 14 October~'.;W08;

· ,Gamb~ vs. Teves, G.R. No. 176579, 28 June 2011. · · ('

_·:A"

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the C<?n~titutiqnal convention as throwing light on the intent of the framers of the Constitution."

148. The COMELEC ought to have examined the deliberations of the 1934 Constitutional Convention306 in the hope of discovering why foundlings were not categorically excluded from the enumeration of citizens under Section 1, Article IV of the 1935 Constitution. If the COMELEC had done so, it would have learned that there is a perfectly good expl?-Pation for the silence in the text of the Constitution, and the explanation was not that foundlings should be considered stateless or !!Q!!-Filipinos under Philippine law. On the contrary, the Constitution was silent, only because foundlings are already included in the concept of }us sanguinis Filipinos.

149. The pertinent deliberations of the 1934 Constitutional Convention, on what eventually became Article IV of the 1935 Constitution, show that the intent of the framers was not to exclude foundlings from the term "citizens of the Philippines." According to them, "(b)y international law the principle that children or people born in a country of unknown parents are citizens in this nation is recognized, and it was not necessary to include a provision on the subject exhaustively." There was certainly !!Q intent to consider foundlings as "stateless" persons or foreigners. Thus:

Spanish SR. RAFOLS: Para una enmienda. Propongo que despues del inciso 2 se inserte lo siguiente: "Los hijos naturales de un padre extranjero y de una madre filipina no reconocidos por aquel.

xxx

El Presidente. La Mesa desea pedire una aclaracion del proponente de la enmienda. Se refiere Su Senoria a hijos naturales or a toda clase de hijos ilegitimos?

Sr. Rafols. A toda clase de hijos ilegitimos. Tambien se incluye a los hijos naturales de padres desconocidos, los hijos naturales or ilegitimos, de padres desconocidos.

/

English Translation 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.

xxx

[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?

To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or illegitimate children of unknown parents.

Sr. Montinola. Para una aclaracion. I For clarification. The gentleman said

306 Annexes "H" and "I-series"; Exhibit "37"

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Alli se dice "de padres "of unknown 12arents." Current l ' • · iF I .

desconocidos." Los Codigos actuales codes consider them Filipino, that is, consideran como filipino, es decir, I refer to the Spanish Code wherein me refiero al codigo espanol quien all children of unknown parentage considera como espanoles a todos born in Spanish territory are los hijos de padres desconocidos considered Spaniards, because the nacidos en territorio espanol, porque presumptio,n is tha} a child of la presuncion es que el hijo de unknown parentage is the son of a padres desconocidos es hijo de un S12aniard. This may be applied in the espanol, y de esa manera se podra Philippines in that a child of aplicar en Filipinas de que un hijo unknown parentage born in the desconocido aqui y nacido en Philippines is deemed to be Filipino, Filipinas se considerara que es hijo and ·there is no need.· .. filipino y no hay necesidad ...

Sr. Rafols. Hay necesidad, porque There is a need, because we are estamos relatando las condiciones relating the conditions that are de los que van a ser filipinos. [required] to be Filipino.

Sr. Montinola. Pero esa es la But that is the interpretation of the interpretacion de la ley, ahora, de law, therefore, there is no [more] manera que no hay necesidad de la need for the amendment. enmienda.

Sr. Rafols. La enmienda debe leerse de esta manera: "Los hijos naturales o ilegitimos de un padre extranjero y de una madre filipina reconocidos por aquel o los hijos de padres desconocidos.

The amendment should read thus: "Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the childreri of unknown parentage."

/

Sr. Briones. Para una enmienda con The amendment [should] mean el fin de significar los hijos nacidos children born in the Philippines of en Filipinas de padres desconocidos. unknown parentage.

Sr. Rafols. Es que el hijo de una The son of a Filipina to a foreigner, filipina con un extranjero, aunque although this [person] does not este no reconozca al hijo, no es recognize the child, is not unknown. desconocido.

El Presidente. Acepta Su Senoria o I Does the gentleman accept the no la enmienda? amendment or not?

Sr. Rafols. No acepto la enmienda, porque la enmienda excluiria a los hijos de una filipina con un extranjero que este no reconoce. No son desconocidos y yo creo que esos hijos de madre filipina con extranjero y el padre no reconoce, deben ser tambien considerados como filipinos.

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 children of overseas Filipino mother and father [whom the latter] does not recognize, should also be considered as Filipinos.

El President. La cuestion en orden The question in order is the es la enmienda a la enmienda del amendment to the amendment from

-

.-~~·

Delegado por Cebu, Sr. Briones.

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the Gentlemen from Cebu, Mr. Briones.

Mr. Bulson. Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?

Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?

t

Sr. Roxas. Senor Presidente, mi opinion humilde es que estos son cases muy pequenos y contados, para que la constitucion necesite referirse a ellos. Por leyes in ternacionales se reconoce el principio de que los hijos o las personas nacidas en un pais de padres desconocidos son ciudadanos de esa nacion , y no es necesario incluir una disposicion taxativa sobre el particular. 307

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 th.at children or people born in a country of unknm.yn parents are citizens in this nation i~ reco,gnized, and it is not neces~ary to include a provision on the subject exhaustively.308

150. Under which of the five (5) categories of Philippine citizens enumerated in Section 1, Article IV of the 1935 Constitution does a foundling belong? The exchanges between the delegates of the 1934 Constitutional Convention quoted above show that foundlings were intended to be jus sanquinis Philippine citizens, that is - those born of "a father or mother who is a citizen of the Philippines."

,.

150.1. The citizenship of a "foundling" ":was "'

y

discussed specifically in the course of the debates Of~tl;le, framers on )us sanguinis Philippine citizens who,· ~t t~.~,

, time, fell under paragraph (2) of the then proposed draft ~t't. the Article on Citizenship, thus:309 ,, ·

(2) All persons born in the Philippines or in foreign territory of a father or mother who is a citizen of the'' Philippines;

* ~'

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" ~

The framers of the 1935 Constitution did not discuss the . citizenship of a foundling in the context of the other typ'i=fs·. of Filipinos under Section 1, Article IV of the '1935 si

Constitution, much less considered them in the contex(:;wJ.:. "naturalized" Filipinos. · ·. ~:· "· ""~,~·:)'

150.2. Specifically, Delegate Rafols wanted to it ·· in the enumeration of Philippine citize.ns, immediay,;~~~~~h~"

1

,, paragraph (2) quoted above, the following sub-sect10?~ft~~~;~·\~:"" .~ ??1 See Annexes "H" and "I-series"; Exhibit "37", pp. 186 to 187 \~Underscoring supplied

' 4·~ •• ·.:.t·'.'

, '309 See f>nnexes "H" and "I-series"; Exhibit "37", p. 135

.--

"'.~(

115

The natural children of a foreign father and a Filipino mother not recognized by the father. 310

150. 3. Delegate Raf ols explained that the phrase "natural children" was meant to include "natural children of unknown parentage."31 1 Delegate Montinola objected to the amendment,' citing Spanish Law which applies a "presumption" that "a child of unknown parentage is the son of a Spaniard." He then suggested that this apply to the Philippines. In other words, Delegate Montinola suggested that a foundling be presumed born of F,ilipinos. As discussed, Delegate Roxas essentially agreed with Delegate Montinola when the former expressed the view that "(b)y international law the principle that children or people born in a country of unknown parents are citizens in this nation."312 However, Delegate Roxas added that since the cases of foundlings are "few and far in between", and international law already recognizes a rule with respect to their citizenship, there is no more need to include a provision on the subject exhaustively. No one expressed any disagreement, and this was the fina~ statement on the matter of "foundlings" before Delegate Rafols' amendment was put to a vote.313 This explains why foundlings were not mentioned in Article IV of the 1935 Constitution.

/'

150 .4. Paragraph ( 4), Section 1, Article IV of the 1935 Constitution considers as Philippine citizens "those whose mothers are citizens of the Philippines, and upon reaching the age of majority, elect Philippine citizenship." Mr. Aruego's contemporary account of the debates on this sub-paragraph confirms that the citizenship of foundlings was discussed in the context of jus sangµinis Philippine citizens, thus:

310 See Annexes "H" and "I-series"; Exhibit "37" hereof, p. 186 (English translation); Underscoring supplied 311 Underscoring supplied 312 Underscoring supplied 313 It must be noted that the membership of the 1934 Constitutional Convention was dominated by lawyers. Seventy percent (70%), or one hundred forty two (142) out of two hundred two (202) members of the Constitutional Convention, were lawyers, so that it is not unreasonable to conclude that when Delegate Roxas expressed the opinion that an express provision on children of unknown parentage in the Philippines is not necessary, for "international law" already recognizes them as citizens of the Philippines anyway, they understood this to be the case, as the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws was already existing at that time. This is also supported by Delegate Aruego's contemporary account of the proceedings of the Convention, as cited in par. 150.4 above. (For the composition of the 1934 Constitutional Convention, see, I JOSE M. ARUEGO, THE FRAMING OF THE PHILIPPINE CONSTITUTION 23-46 (1949).

116

During the debates on this provision, Delegate Rafols presented an amendment to include as Filipino citizens the illegitimate children with a foreign father of a mother who w~s a ~itizen of th,e Philipp_ines, and also foundlings; but this amendment was 4efeated primarily because the Convention believed that the cases, being too few to warrant the . .

inclusion of a provis~on in the Constitution to apply to them, should be governed by statutory legislation. Moreover, it was believed that the rules of international law were already clear to the effect that illegitimate children followed the

· citizenship of the mother, and that founqlings followed the nationality of the place where they were found, thereby making unnecessary the inclusion in the Constitution of the

' proposed amendment. 314

150.5. In its 17 November 2015 final and executory Decision, the SET ruled that "(i)t was never the intention of the framers of the 1935 Constitution to exclude foundlings from natural-born Philippine citizenship," and "(t)here was a recognition that 'children or people born in a country of unknown parents are citizens of this nation."315

150.6. Based on the foregoing, when the framers of the 1935 Constitution declared that "by international law," a foundling is a "citizen of this nation," the type of Philippine citizenship they had in mind.;was citizenship :Qy blood. Under Section 1, Article IV of the 1935 Constitution, }us sanguinis Philippine citizens fall under paragraphs (3) and (4) thereof. Accordingly, the intent of the framers was to consider a foundling a Philippine citizen whose "father" and/ or "mother" is a citizen of the Philippines."

151. The fore going discussion illustrates why the COMELEC acted whimsically and capriciously when it applied the Latin maxim "expresio unius est exclusio alterius" in characterizing the enumeration of citizens under Section 1, Article IV of the 1935 Constitution.

152. Another reason why said maxim cannot be applied is this Honorable Court's pronouncement in People vs. Manantan,316 where it discussed an exception to the application of this Latin maxim, viz:

31 4 I JOSE M:ARUEGO, THE FRAMING OF THE PHILIPPINE CONSTITUTION 209 ( 1949) 315 Annexes "H" and "I-series"; Exhibit "43", p. 24 316 G.R. No. L-14129, 31 July 1962, citing Blevins vs. Mullally, 135 p. 307, 22 Cal. App. 519)

) ,:.

117

Where a statute appears on its face to limit the operation of its provisions to particular persons or things by enumerating them, but no reason exists why other persons or things not so enumerated should not have been included, and manifest injustice will follow by not so including them, the maxim expresio unius est exclusio alterius, should not be invoked.317

The exception applies here.

152.1. As discussed, it was precisely the intent of the framers of the 1935 Constitution to include foundlings in the definition of Filipino citizens (specifically, pars. (3) and/or (4), Section 1, Article IV of the 1935 Constitution), even though they were not sp~cifically mentioned in the enumeration of "citizens of the Philippines." In other words, "no reason exists" to exclude foundlings from that enumeration.

152.2. Moreover, it would be the height of injustice to deprive a foundling of Philippine citizenship, or to punish her with statelessness, for a status and condition that is not of her own doing. It is not her fault that she was abandoned at birth. Worse, she can do little or nothing to change her status as a foundling.

152. 3. Based on the fore going, in determining the· citizenship of a foundling under the 1935 Constitutiou, one'" may not invoke the Latin maxim, "expresio uni1.ls11,, est' exclusio alterius." i:. ·

~.·'"". ·' '!,~,~ ·: . . -- . ··ii ~. . .ti.;.

·, , 153. The intent to include foundlings in the classes of ju~-,, $anguinis citizens under the 1 935 Constitution was undisturbed;J1

an,d repeatedly carried over in succeeding Philippi!}e .~ ·.~ Constitutions. Thus, the 1973 and 1987 Constitutions also qp,

not ·contain any specific provision on the citizenshi,p ·"'ot foundlings. The framers of later organic laws obviouslY" ~ shared the view that no express provision on foundlings needs to ' be included in the text of the Constitutions, as they, a.re

'adequately protected under international law and consid~r~Cl~' filipino citizens. ;): <>'o&.: · .r · :t:l"

. . 154. T~e framers ?f the 1935 ~?nstitution .r~lied P,~~~~l'i, ; ~. 9n · 1nternat10nal law 1n charactenz1ng the c1tlzensh1~f'' .. ft·i ,, . .;foundling, because international law is particularly autho~· ., .·. 1

••

·' Jpi7:t;i·;on the subject of citizenship. Indeed, the legal found~ 111d .,. '· Al1tiele IV of the 1935 Constitution on "Citizenship"

•'•. ;,,,,,

, 311 Unperscoring supplied

.1~·

118

"municipal law and in~ernational law." Delegate Aruego of the 1934 Constitutional Convention expressed this view as follows:3 18

MR. ARUEGO. Mr. President, and gentlemen of the Convention: If I take this stand this afternoon, it is because I realize and I know that you realize with me the importance of this section of the Constitution. In defining citizenship in the Constitution, we are at the same time defining the persons to whom should be extended the rights and duties of citizenship. Our definition of citizenship in the Philippines involves both municipal law and international law. It involves the obligations of Filipinos both under municipal law and those obligations under international law.319

154.1. Thus, in proposing, defending and objecting to, amendments to Article IV on "Citizenship," various members of the 1934 Constitutional Convention repeatedly cited rules and principles of international law to support their respective arguments.320

154. 2. These repeated reference and desire to conform with international law is but logical, as Article 1 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws (" 1930 Hague

318 See Annexes "H" and "I-series"; Exhibit "37", at p. 139 319 Underscoring supplied

1'

320 Id., at pp. 178 to 180; Underscoring supplied. The excerpts below briefly illustrate this point:

MR. CINCO. But suppose a child is born to a Filipino mother; the child has got a father we cannot tell who he is, but it came out that the child appears to be very white, it does not seem to be born of a Filipino father, what kind of citizenship has the child? MR. SANCHEZ. The general rule in international law will apply that (sic) child follows the citizenship of his mother. MR. CINCO. So that he is a Filipino citizen? MR. SANCHEZ. I think so because that is the rule of international law. 320

x x x MR. PAREDES. Mr. President and Gentlemen of the Convention: I have asked for a chance to talk against all these five amendments, because I find them destructive of the rules of International Law, converting the Filipino unnecessarily into a treacherous and enabling every foreigner to be a Filipino just because he is susceptible of naturalization. x x x. With regard to No. 2., "All persons born in the Philippines or any foreign country of a mother who is a citizen of the Philippines." I believe that is the point of discussion, because as to the first point, if he is born of a Filipino father in or outside the Philippines, he is a Filipino. We know that according to the rules of International Law the nationality of a son follows the nationality of the father. x x

x. x x x

The third reason is that in International Law, as I have stated, we have already adopted this theory, and if we are going to alter the rules of International Law which in the body of the article or chapter on principles we have declared to follow, we will be contradicting the well-settled rules of International Law from time immemorial, that the children will follow the nationality of the father. (Underscoring supplied)

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Convention"), which private respondent Elamparo mistakenly cite as support in her Petition, in fact provides that while it is for the State to "determine under its own law who are its nationals," this will be recognized only "in so far as it is consistent with international conventions, international custom, and the principles of l~w generally recognised with regard to nationality."

154.3. Indeed the principle that foundlings are citizens of the country in which they are found, is an ancient one predating even the earliest of the international conventions cited in the following paragraphs. In the 1881 work of publicist321 Francis Wharton entitled "A Treatise on the Conflicts of Law or Private International Law", he already noted that "[t]he nationality of a foundling is that of the place where he was born."322

155. In its 1 December 2015 Resolution, the COMELEC Second Division also ruled against the natural-born Filipino citizenship of foundlings, supposedly because automatically considering them to be natural-born Filipinos (despite the absence of proof of blood line to a Filipino parent), would be unfair to those born of "mothers who are citizens of the Philippines" (whose citizenship is, initially, inchoate until they elect Philippine citizenship upon reaching the age of majority).323 This was affirmed by the COMELEC En Banc, which held that "[t]he doctrine that persons falling under [Section 1 (4) of the 1935 Constitution] are not considered natural-born citizens is already cemented in the case of Bengzon (sic) III vs. HRE .. "'," hence, to consider a foundling "natural-born" is to place her "at a better position than persons falling under Section 1 (4) [of the 1935 Constitution] ."324

155. l. Sen. Poe submits that there is nothing unfair about this distinction. A foundling does not know who her parents are. Therefore, she cannot know for certain that only her mother is a Filipino and that, therefore, she must elect Philippine citizenship upon reaching the age of majority. She could very well be born of a Filipino father; in which case, the rule on election of

321 A publicist is an expert in international law. (Webster's Third new International Dictionary, 1993 ed., p.1836) 322 Sec. 10, p.37. While at first blush, this principle appears to be }us soli in nature, it can nevertheless be applied in countries which follow the jus sanguinis doctrine, based on the common sensical presumption that a child found in a particular country is likely to have been born 'bf residents therein, such residents in all likelihood being citizens of said country. 323 1 December 2015 Resolution, pp. 23-24. 324 23 December 2015 Resolution, p. 27

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Philippine citizenship would not apply to her. On the other hand, a person who is fully aware that he is born only of a Filipino mother has no excuse or justification for not electing Philippine citizenship when she turns 18 years old. Upon such election, that person would, in fact, be a natural-born Filipino, whereas a foundling would only be

; ' presumed to be a natural-born Philippine citizen.

155.2. According to Bengson III vs. HRET,325 the 1987 Constitution expressly "considers those born of Filipino mothers before the effectivity of the 1973 Constitution and who elected Philippine citizenship upon reaching the majority age as natural-born." This is reiterated in Ma vs. Fernandez, 326 where the Supreme Court clarified that under the 1987 Constitution, children of Filipino mothers and alien fathers born during the effectivity of the 1935 Constitution are considered "natural­born citizens upon election of their citizenship."

155. 3. Moreover, the conclusion that a foundling is placed in a better position than the child of a Filipina mother is skewed, as it rests on a presumption of loss of Philippine citizenship on the part of the Filipino mother. In other words, this position has to first presume: (1) that the Filipino mother is married to a foreigner (when he could very well be unwed); and (2) the alien husband's national law gives his nationality to the Filipino mother. w;ithout these presumptions, the child will be illegitimate, ahtl· will simply follow the Filipino nationality of the mother; N ·· ~:

"' 156. All told, since the text of Section 1, Article IV of t1;ie

fundamental law does not categorically exclud~ foundlings, ruia t,he intent of the framers of the 1935 Constitution was to incl]!de

r •' foundlings in the concept of jus sanguinis Filipinos,·,,.£t :was indeed illogical, whimsical and capricious for the COMeLEC~·'to conclude that foundlings are "excluded" from Philjppiµe citizenship.

l B.4. The COMELEC disregarded applicable international human rights instruments ratified by the Philippines which create an affirmative obligation to consider foundlings as natural-

'' born citizens of the country.

';' 32s G.R. No. 142840, 7 May 2001 326 q.R. No. 183133, 26 July 2010

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157. In its 1 December 2015 Resolution, the COMELEC Second Division recognized the binding effect of the Universal Declaration on Human Rights ("UDHR"), the International Covenant on Civil and Political Rights ("ICCPR"), and the UN Convention on the Rights of the Child ("UNCRC"), all of which the Philippines signed and/ or ratified. Yet, it refused to give effect to a child's right to a nationality from birth in the case of foundlings, on the tenuous supposition that it will "override the Constitution which requires a bloodline to a Filipino parent to confer the status of being a natural-born citizen."327 This is baseless and illogical. The definition of natural-born citizenship under the Constitution is not restricted to a "bloodline to a Filipino parent"; it merely requires that a person be a citizen by operation of law, without having to perform an act to acquire or perfect such citizenship. Even if it did, the application of the presumption of law as to the citizenship of the parents of the foundling as provided in "generally accepted principles of international law would place the foundling's right to a nationality within the bloodline requirement of natural-born citizenship. Moreover, it simply does not follow that since Article IV of the 1935 Constitution is silent with respect to foundlings, any other article or provision of law which may suggest that they are or may be deemed natural-born citizens is automatically violative of the Constitution. ,,,

158. To the contrary, the silence of the 1935 Constitution allows for an interpretation that can harmonize the provisions of said Constitution with other applicable provisions of law, such as provisions of an international convention transformed into municipal law through the process of ratification. Thus, the COMELEC should have considered the implications of the Philippines' treaty obligations under international human rights instruments, instead of simplistically ruling against the Filipino citizenship of foundlings on the erroneous understanding that upon them rests the burden to prove their citizenship. It must be emphasized that Filipino citizenship is a privilege that foundlings in the country presently enjoy.328 If the COMELEC considered the rights guaranteed by the treaties invoked by herein Petitioner, it would have found that since foundlings are not definitely excluded among the category of Filipino citizens, an

327 1 December 2015 Resolution, p. 30. 328 Under our present system of law, foundlings are recognized by the Philippine government as citizens, if not natural-born citizens, of the Philippines. To repeat, the DFA has been issuing Philippine passports-certainly a durable proof of Filipino citizenship-to foundlings, requiring only a copy of their foundling certificates, and without requiring them to first "prove" their "bloodline" to a Filipino parent before they can be considered citizens entitled to the protection of the state.

122

interpretation upholding their citizenship will be more consistent with the Philippines' positive obligations under the UDHR, the UNCRC, and the ICCPR to "implement" a child's "right to acquire a nationality" or the "right to a nationality" "from the moment of birth" and to ensure that no new-born child is left stateless.

159. On 21 August 1990, the Philippines ratified the UN Convention on the Rights of the Child. Accordingly, it is legally binding on the Philippines. Under Article 7 of the UNCRC, the Philippines undertook to protect the right of a new-born to a nationa:Iity, and to ensure that every child is protected against statelessness "from birth." The provision reads:

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.

2. States Parties shall en.sure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. 329

,...

160. A similar Article is found in the 1966 International Covenant on Civil and Political Rights, which the Philippines also ratified on 23 October 1986. Article 24 of the ICCPR recognizes the right of every child "to acquire a nationality," thus:

Article 24. 1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social original, property or birth, the right, to such measure 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.

3. Every child has the right to acquire a nationality.330

160.1. The UNCRC was adopted, among other reasons, precisely because of the "need to extend particular

329 Underscoring supplied 330 Underscoring supplied

123

care to the child,"331 as provided in Articles 23 and 24 of the 19CPR.

160. 2. Article 2. 1, Part II of the I CCPR states that "(e)ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the pre~ent Covenant, witliout distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

161. As mentioned, the ICCPR and the UNCRC create an ol?ligation on the part of the Philippines to ensure that, "from birth," every child, "without discrimination," "acquires" a "nationality." Conversely, the Philippines has a duty not to leave any new-born stateless.

162. The only way the Philippines can perform its treaty obligations under the UNCRC and the ICCPR in the case of a foundling is to recognize him or her as its own citizen, that is-a Philippine citizen. The Philippines has no authority to consider a foundling a citizen of another county. In the words of the Hon. Justice Carpio in his separate opinion in Maquiling vs. COMELEC, "Philippine courts have no power to declare whether a person possesses citizenship other than that of the

" · · Philippines."332

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162.1. The Philippines has the obligati6,ii,. ;pft simply to recognize a foundling as its citizen, but to·. d~.So from the time of the foundling's birth. To reiterate;·'1JQ<f~t the UNCRC, a child is guaranteed not only the d.ght: · tO' acquire a nationality, but the right to acquire. suqh nationality from birth, especially "where the child>_~··~() .. ~!d otherwise be stateless." ... · ·

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162.2. Domestic laws on naturalization333 are not sufficient to make the Philippines compliant with its tre~ty obligations to ensure that a foundling be consideted Filipino from birth. Under Philippine law, an applic~li naturalization334 must be not less than eighteen {18!"-V(

·~ 331 $ee preamble of the UNCRC r . VI

332 G.R. No. 195649, 16 April 2013, 696 SCRA 420 ,,,. --~ ft.,. 333 Commonwealth Act No. 473, as amended, and Republic Act No. 9139 ~1,~ .. ·;. • ·~'1 · 334 Naturalization can either be judicial (governed by Commonwealth Act.No.~!i--5lt>. aihended), or administrative (governed by Republic Act No. 9139). Both laws cleady rbJe~t6. aliens and not to stateless persons. C.A. No. 4 73 prescribes, inter alia, a minimQ.,Qt a~ of ~wenty o~~ (2.1) years on the day of the heari~g o~ the petition, and a minimum {~si?e.ncy m the Ph1hppmes of five (5) years, under special circumstances, and ten (10) ye~i-s, ~11· the

•·

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124

of age at the time she petitions for naturalization. Moreover, she must have "a known trade, business, profession or lawful occupation to qualify for naturalization. Thus, if the COMELEC's disregard of the UDHR, UN CRC, and ICCPR is accepted, a foundling would be left stateless from birth and for at least eighteen years

' ' . ,, . . ' . .

until she can qualify (by having a trade, business, profession or lawful occupation) for naturalization, in violation of the Philippines' obligations under the UNCRC and the ICCPR. This is another reason why a foundling must be recognized as citizen of the Philippines "from birth."

163. Although neither the ICCPR nor the UNCRC was in force when Sen. Poe was born in 1968, each may apply retroactively to the date of her birth in determining her citizenship. The reasons are as follows:

164. First, the refusal to give retroactive application to the ICCPR and the UNCRC will discriminate against foundlings born before the Philippines' ratification335 of these treaties. This would violate the equal protection clause of the Constitution. 336

164.1. Differential treatment in law is justified only when it is based on a reasonable classification. To be reasonable, a classification: (a) must rest on substantial distinctions; (b) must be germane to the purposes of the law; (c) must not be limited to existing conditions only; and (d) must apply equally to all members of the same class.337

164.2. There is no valid and substantial distinction between foundlings who were born before the ICCPR and the UNCRC came into force, and foundlings who were born after this date. For as long as the identities of their birth parents are not established, they share the same status-that of a foundling. A law made applicable to foundlings born after ratification should apply equally to foundlings born before, as they are all members of the same class.

absence of special qualifications. On the other hand, R.A. 9139, which applies to "aliens born and residing in the Philippines", requires that an applicant be at least eighteen (18) years of age at the time of filing of the petition and be a resident of the Philippines since birth. 335 The Philippines ratified the ICCPR and the UNCRC on 23 October 1986 and on 21 August 1990 respectively. 336 Sec. 1, Art. III of the 1987 Constitution provides: "No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws." (Underscoring supplied) 337 People v. Cayat, G .R. No. L-45987, 5 May 1939

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165. Second, the UNCRC and the ICCPR are "curative" statutes which may apply retroactively.

165.1. To reiterate, as treaties which the Philippines ratified, the UNCRC and the ICCPR form part of the law of the land. These treaties are, therefore,

'\ • t I

considered domestic statutes.

165.2. It is basic that "curative" laws apply retroactively. 338 Curative laws "are intended to supply defects, abridge superfluities and curb certain evils."339 A law may be applied retroactively "when the statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS."340

165.3. Insofar as the ICCPR and UNCRC supply deficiencies in Philippine law on the rights of a new-born to a nationality and to be protected against statelessness, they are curative in nature. Thus, they apply retrospectively to Sen. Poe'~ b~rth in 1968.

166. Third, under Article 28 of the Vienna Convention on the Law of Treaties, there is !!Q prohibition against the retroactive application of treaties (unless a different intention appears). What is prohibited is the application of a treaty to a fact or status which ceased to exist before the-treaty entered into force.

166.1. In the first place, neither the ICCPR nor the UNCRC expressly or impliedly prohibits their retroactive application. There is likewise no indication in these treaties that their respective provisions should be applied only prospectively.

166.2. Secondly, foundlings in the Philippines who were born before the ICCPR and the UNCRC entered into force did not cease to be such after the treaties entered into force. They continue to be foundlings and foundlings continue to be "born" until today. Therefore, these two treaties bind the Philippines "in relation" to determining Sen. Poe's rights at the time of her birth in 1968.

338 Frivaldo vs. COMELEC, G.R. No. 120295, 28 June 1996; Tatad vs. Garcia, Jr., G.R. No. 114222, 6 April 1995; Briad Agro Development Corp. vs. Dela Serna, G.R. Nos. 82805 & 83225, 29 June 1989 339 Narzoles vs. NLRC, G.R. No. 141959, 29 September 2000 340 Frivaldo vs. COMELEC, G.R. No. 120295, 28 June 1996

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167. Fourth, considering that the Philippines was already a signatory to the ICCPR as early as 19 December 1966 (or almost 2 years before Sen. P<?e's ~irth), the Philippines was "obliged (as of that date) to refrain from acts which would defeat the object and purpose" of the ICCPR.341 Article 18 of the Vienna Convention on the Law of Treaties states:

Article 18. OBLIGATION NOT TO DEFEAT THE OBJECT AND PURPOSE OF A TREATY PRIOR TO ITS ENTRY INTO FORCE

A State is obligated to refrain from acts which would defeat the obiect and purpose of a treaty when:

o? ' •

(a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

(b) It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. 342

167.1. To deny Sen. Poe Philippine citizenship, or to leave her stateless at the time of her birth in 1968, as Petitioner argues, would have "defeated the obje~t and purpose" of the ICCPR, among which is to affou::d its subjects (like Sen. Poe) a "right to a nationality." ·

t~,

;~, : 168. Finally, a refusal (at present) to recognize Sen.~ P~"'~ ·;~ ,'right to have "acquired a nationality" "from birth" and "to ensµf~

the implementation of this right" where she "would otherwise. Pf stateless," would be a violation of the obligations · ~f ,~ tp~

?Philippines under the UNCRC and the ICCPR. . .

it

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B.5. The COMELEC also disregarded the basic constitutional law concept of "incorporation" and ignored applicable settled jurisprudence on the matter, when it ruled that the Philippines is supposedly "not bound" by the 1930 Hague Convention and the Convention

y

34 1 See Article 18 of the Vienna Convention on the Law of Treaties, in relation.~ .B.~n· .. , Muna vs. Romulo, G.R. No. 159618, 1 February 2011 . ·~ ' .. ij

i . 342 Ut}derscoring supplied ··

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on Statelessness, simply because the Philippines "is not a signatory" to these two treaties. -------------------------------------------

169. It is a basic principle of statutory construction that the Constitution must be interpreted as a whole. Ut magis valeat quam pereat. Thus, in Francisco vs. House of Representatives,343

citing Civil Liberties Union v. Executive Secretary, 44 this Honorable Court affirmed that:

It is a well-established rule in constitutional construction that n.o ~ne provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together.

In other words, the court must h.armonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory. (Emphasis supplied)344

170. Thus, it was gross error for the COMELEC to consider Article IV of the 1935 Constitution in isolation and give it an interpretation that is patently antagonistic to other provisions of the same Constitution, such as Section 3, Article II (on the applicability of generally accepted principles of international law) of the same Constitution. This error is exacerbated by the fact that another interpretation that harmonizes the different parts of the Constitution is actually applicable, yet ignored, by the COMELEC.

171. The COMELEC held that since the Philippines "is not a signatory" to the 1930 Hague Convention and the Convention on Statelessness, it is supposedly "not bound" thereby. The ruling ignores the basic Constitutional precept that international law principles may form part of the law of the land through incorporation, and not simply by transformation {i.e., ratification of treaties).

343 G.R. No. 160261, 10 November 2003 344 Boldfaced in the original

128

172. It is elementary that international law may form part of Philippine law either through transformation or incoreoration. 345

172.1. As correctly pointed out by the COMELEC, being a "signatory" to a treaty or convention (coupled with ratification) would make the same "binding" on the Philippines. A treaty ratified by the Philippines is "transformed into municipal law that can be applied to dom~stic conflicts;"346 a treaty "forms part of the law of the land."347

172.2. However, a principle in a treaty (and not necessarily the entire treaty which the Philippines has neither signed nor ratified) may still be binding on the Philippines under Section 3, Article II of the 1935 Constitution, which embodies the incorporation clause,348 thus:

SECTION 3. The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles <?f international law as part of the law of the Nation. 349

172.3. This point has been settled as early as the 1949 landmark case of Kuroda v. Jalarrdoni, 350 where this Honorable Court laid down the principle that the Philippines need not be a formal party to an international convention before its courts can give effect to its provisions, for as long as the norm in question is a generally accepted principle of international law, viz:

Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for acts committed in violation of the Hague Convention and the Geneva

345 Pharmaceutical and Health Care Association of the Phil. vs. Dugue III, G.R. No. 173034, 9 October 2007 · · · · 346 Id., citing JOAQUIN G. BERNAS, S.J., AN INTRODUCTION TO PuBLIC INTERNATIONAL LAW, 2002 ed., p. 57 347 See Section 21, Article VII of the 1987 Constitution, referred to as the transformation

.. c,L~';ls~ (i:s it 'transforms' treaties into municiJi>a! o.r domestic law), which states that "(n)o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." See Pharmaceutical and Health Care Association vs. Duque III, G.R. No. 173034, 9 October 2007; Puma Sportschuhfabriken Rudolf Dassler, K.G. vs. Intermediate Appellate Court, G.R. No. 75067, 26 February 1988; dictum in Abbas vs. COMELEC, G.R. Nos. 89651 & 89965, 10 November 1989. 348 Pharmaceutical and Health Care Association vs. Dugue III, G.R. No. 173034, 9 October . . .. 2007 349 The underscored phrase, otherwise known as the "incorporation" clause, was substantially reproduced in Sections 3 and 2, respectively, of Article II of the 1973 and 1987 Constitutions. 350 G.R. No. L-2662, 26 March 1949

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Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulation of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principles of international law. In fact these rules and principles were accepted by the two belligerent nations: the United States and Japan who were signatories to the two Convention. Such rules and principles therefore form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rule and principle of international law as contained in treaties to which our government may have been or shall be a signatory. (emphases supplied)

The case served as precedent in subsequent cases such as Mijares vs. Ranada3sl and Razon vs. Tagitis, which were resolved using principles embodied in international agreements to which the Philippines is not a party.

173. The Constitution itself does not define what is meant by the phrase "generally accepted principles of international law." And while "generally accepted principles of international law" is often associated with "customary international law" as defined under the ICJ Statute, it does ~·appear that this "

.· .... Jfonorable Court has laid down a consistent set of rul~~ . .in.+ \;;J' ··~valuating precepts that would qualify as "generally acce.g,ted

· ,pri,nciples of international law." Jurisprudence applying{ t1lis' .:'k~rase employ varied levels and types of analyses.

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173.1. First, the phrase "generally acceptep ,Principles of international law" is commonly associat;4 .\ with "customary international law," as the phra~~ 'is••· µnderstood in Article 38 (l)(b) of the Statute of· trre '· International Court of Justice ("ICJ Statute"), in which c~se . ' .;

two (2) elements must concur: ·

(a)

(b)

'i,.,c

Established, widespread, and consistent practic~ .~~<;, the part of States; and ·;,;,,, ~"' f A psychological element known as opinio juris >·s'~ ·· . ' ~·. ' . '

necessitates (opinion as to law or necessity). · .· ·

~

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38 (1) (c) of the ICJ Statute. This was the Supreme Court's ruling in International School Alliance of Educators vs. Quisumbing3s2 and in Pharmaceutical and Health Care Association of the Phil. vs. Duque JJJ.353 This principle is discussed in more detail in pars. 187 to 190 hereof.

173.3. Finally, the Supreme Court may simply declar~ a principle, a convention or a set of rules as "generally accepted principles of international law," without any detailed explanation, and without applying the definitions and elements of "customary international law" or "general principles of law recognized by civilized nations."354 The UDHR is one such set of rules which the

352 G.R. No. 128845, 1 June 2000 353 G.R. No. 173034, 9 October 2007 354 These principles include, among others:

Pacta Sunt Servanda

A State may not be sued without its consent (State's Immunity from Suit)

Vienna Convention on Diplomatic Relations adopted in 1961. Diplomatic immunity

La Chemise Lacoste, S.A. vs. Hon. Fernandez, G.R. No. L-63796-97, 2 May 1984; Sujanani vs. Hon. Ongpin, G.R. No. L-65659, 21 May 1984; Tanada vs. Angara, G.R. No. 118295, 2 May 1997; Secretary of Justice vs. Lantion, G.R. No. 139465, 18 January 2000; Bayan vs. Zamora, G.R. Nos. 138570, 138572, 138587, 138680 & 138698, 10 October 2000; See La Bugal-B'laan Tribal Association vs. Ramos, G.R. No. 127882, 27 January 2004; Land Bank of the Philippines vs. Atlanta Industries, Inc., G.R. No. 193796, 2 July 2014

Arigo vs. Swift, G.R. No. 206510, 16 September 2014; Baer vs. Tizon, G.R. No. L-24294, 3 May 1974; Sanders vs. Hon. Verdiano, G.R. No. L-46930, 10 June 1988; U.S.A. vs. Guinto, 182 SCRA 644 (1990); Shauf vs. Hon. Court of Appeals, G.R. No. 90314, 27 November 1990; Wylie vs. Rarang, G.R. No. 74135, 28 May 1992; U.S.A. vs. Hon. Reyes, G.R. No. 79253, 1 March 1993; Parreno vs. Mcgranery, G.R. No. L-4263, 12 March 1953 (which also cited Syquia vs. Lopez, et al., 84 Phil. 312, G.R. No. L-1648; Marvel Building Corp. vs. Philippine War Damage Commission, 85 Phil. 27, G.R. No. L-1822; Marquez Lim vs. Nelson, et al., 87 Phil. 328, G.R. No. L-2412.); The Holy See vs. Rosario, Jr., G.R. No. 101949, 1 December 1994; Jusmag Philippines vs. NLRC, G.R. No. 108813, 15 December 1994; The Department of Health vs. Phil. Pharmawealth, Inc. G.R. No. 169304, 13 March 2007 (Shauf v. Court of Appeals, G. R. No. 90314, November 27, 1990, 191 SCRA 713 cited in United States of America v. Reyes, G.R. No. 79253, March 1, 1993, 219 SCRA 192.)

Reyes vs. Bagatsing, G.R. No. 180016, 29 April 2014

Lasco vs. United Nations Revolving Fund for Natural Resources Exploration, G.R. Nos. 109095 - 109107, 23 February 1995; and Sombilon vs. Romulo, G.R. No. 175888, 11 February 2009

....

"(A) belligerent occupant (like the Japanese in 1942-1945) may legitimately billet or quarter its troops in privately owned land and buildings for the duration of its military operations, or as military necessity should demand."

"(A) foreig11 army allowed to march through a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place."

"(A") state has the right to protect itself and its revenues, a right not limited to its own territory but extending to the high seas."

131

Vda. De Villarual vs. Manila Motor Co., Inc., G.R. No. L-10394, 13 December 1958

Tubb vs. Griess, G.R. No. L-1325, 7 April 194 7; and Dizon vs. The Commanding General of the Philippine Ryukus Command, G.R. No. L-2110, 22 July 1948 (citing Tubb vs. Griess)

Illuh Asaali vs. Commission of Customs, G.R. No. L-24170, 28 February 1969

"(J)udicial acts which are I Etorma vs. Ravelo, G.R. No. L-718, 24 March 1947 not of political complexion of de facto governments established by the military occupant in an enemy territory" (a principle 1 ,.

based on the Regulations of the Hague Convention), are valid

"The Hague Convention, I Kuroda vs. Jalandoni, G.R. No. L-2662, 26 March 1949 the Geneva Convention and significant precedents I Liban vs. Gordon, G.R. No. 175352, 18 January 2011 of international (Geneva Convention only) jurisprudence established by the United Nations" and the "rules and regulations" of the Hague and Geneva conventions

"(S)equestration of cash, I Haw Pia vs. China Banking Corp., G.R. No. L-554, 9 funds, and realizable April 1948 securities in occupied territory (as) proscribed by article 53 of the Hague Regulations"

United Nations Convention I People vs. Jumawan, G.R. No. 187495, 21April2014 on the Elimination of all Forms of Discrimination Against Women (UN-CEDAW) "and its allied issuances" (In 1981, 180 countries,• including the Philippines, ratified this Convention.)

~

132

Supreme Court has consistently declared, in its entirety, as containing "generally accepted principles of international law" without going into detail as to how it has become "customary international law" or why it is a "general principle of law recognized by civilized nations." (See Republic vs. Sandiganbayan, Domingo vs. Scheer, and Government of Hong Kong Special Administrative Region vs. Hon. Olalia, Jr.)

174. In the proceeding a quo, Sen. Poe did not argue that the 1930 Hague Convention, in its entirety, or the Convention on Statelessness, as a whole, should be considered "generally accepted principles of international law." Sen. Poe focused on two specific principles or presuµiptions in these two conventions, to wit:

174. 1. The first sentence of the first paragraph of Article 14 of the 1930 Hague Convention which provides that a child of unknown parents, or a foundling, is presumed to have the "nationality of the country of birth," to wit:

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,, ,J

,~

d1f.

by the rules applicable in cases where the parentage is· "'· . known. ;,

·,~~ 'i-·

I '~,.J.

"~\ •, . 'f:. A foundling is, until the contrary is proved, presumed

to have been born on the territory of the State in which it was found· 355 and ' -.-

The 1968 Vienna I Agustin vs. Edu, G.R. No. L-49112, 2 February 1979 Convention on Road Signs ·~ ~ ·'1; and Signals

"The Paris Convention and I Sehwani, Inc. vs. In-N-Out Burger, Inc., G.R. No: · th:e -- WIPO Joint 171053, 15 October 2007

«i!'. • ~commendation" -:>'> !)'

~(, There is no "duty on the BPI vs. De Reny Fabric Industries, Inc., G.R. -· ' " part of a bank to verify 24821, 16 October 1970 whether what has been

' . . described in letters of

;·~:t

. , ·~'f::redit's · or drafts or ~:shipping documents

i-f ac~ll.apy tallies with .what · wa;§ loaded aboard ship"

355 Und~rscoring supplied

1\1;' ;fl

~

:···'if

133

174.2. Article 2 of the Convention on Statelessness which states that foundling is presumed born of citizens of the county in which she is found, thus:

Article 2

A foundliti,g found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents 12ossessing the nat~onality of that State. 356

175. Sen. Poe's position in the proceeding a quo was that these two presumptions are "generally accepted principles of international law." The COMELEC appears to have missed this point entirely when it kept on harping on the admitted fact that the Philippines is "not a signatory" to the 1930 Hague Convention and the Convention on Statelessness (a stance which might have assumed some relevance if Sen. Poe had argued that the two aforementioned presumptions are binding as international "conventional" or "treaty" law). What the COMELEC should have focused on is whether the two presumptions may be considered "generally accepted principles of international law" under the incorporation clause.

176. As discussed below, had the QOMELEC applied settled law and jurisprudence on international law, it would have realized that the two presumptions may be considered either "customary international law'' under Article 38 (l)(b) of the ICJ Statute, or "general principles of law recognized by civilized nations" under Article 38 (l)(c) of the ICJ Statute.

i. Customary International law

177. As discussed, a principle may be considered "customary international law'' if two (2) elements concur: (a) established, widespread, and consistent practice on the part of States; and (b) a psychological element known as opinio juris sive necessitates (opinion as to law or necessity). Both elements concur as regards: (a) the presumption that a foundling is a citizen of the state in which she is found; and (b) the presumption that a foundling is born of citizens of that state.

i.1. "Widespread and consistent practice"

356 Underscoring supplied

134

178. In Razon vs. Tagitis,357 this Honorable Court had to resolve issues on the use and application of the Rule on the \Vrit of Amparo in an enf arced disappearance case. Since the concept of an "enforced disappearance" was neither defined nor penalized under Philippine law, the High Court sought guidance from international law. The Court noted that under the "International Convention for the Protection of All Persons from Enforced Disappearance," there is a "right not to be suqiect to enforced disappearance." However, the Court also pointed out that the Philippines had n~ither signed nor ratified said Convention. Still, this Honorable Court held that the ban on

~ ,

enforcetj. disappearances is binding on the Philippines as a "generally ac~epted principle of internatio~al law."

1 79. In Razon, this Honorable Court considered the International Convention for the Protection of All Persons from Enforced Disappearances, as part of the "generally accepted principles of international law," even if it had been ratified by only sixteen (16) States (excluding the Philippines), and even if it had not yet entered into force, because the entry into force was conditioned on its ratification by at least 20 States. 358

Specifically, the High Court in Razon considered the ban on enforced disappearances as a "generally accepted principle of international law'' and, thus, part of the law of the land, based on the following "material sources of custom:"

.d'·'

(a) An international treaty (i.e., the 1998 Rome Statute establishing the International Criminal Court [ICC]);

(b) A regional treaty (i.e., Inter-American Convention on Enforced Disappearance of Persons);

(c) The practice of international and regional organs (i.e., the declarations of the UN and the UN Human Rights Committee, and the European Court of Human Rights [in its application of the European Convention on Human Rights]);

(d) Regional State Practice (i.e., legislation of Colombia, Guatemala, Paraguay, Peru and Venezuela, which implement the Inter-American Convention on Enforced Disappearance of Persons); and

357 G.R. No. 182498, 3 December 2009 358 See footnote No. 106, 606 SCRA 598 at 669

135

(e) State Practice of the U.S.A. (i.e., the Third Restatement of Laws and a decision of the U.S. Court of Appeals).

180. Applying the analysis in Razon, the presumption that a foundling is a citizen of the State in which she is found, and

I c I 5 . , •

the presumption that a foundling is born of citizens of the country in which she is found, were "generally accepted

. '

principles of international law" at the time of Sen. Poe's birth in . . . .

1968, and the ref ore ,f ormeq part of the law of the land at that time. As discussed, this is essentially the position that the framers of the 1935 Constitution took in their deliberations on Article IV thereof. 359

181. On the international plane, as of 1966 (or two years before Sen. Poe's birth), no less than nine (9) international instruments (which pursuant to Razon, may be considered "material sources of custom") had already addressed the twin issues of nationality and statelessness, to wit:

,.

(a) the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws (" 1930 Hague Convention");

(b) the 1930 Hague Protocol Relating to a Certain Case of Statelessness; ,,

% •. ~ ,.

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'i ~

I y ~

J.,5·( '",(

:'~

. , ~. :111 •

... :~ I,

(c)

'(d)

, (e)

(f)

(g)

the 1930 Hague Statelessness;

Special Protocol Concetq#ig . . . ~, ; __ , ,..J:J

f .

the 1948 Universal Declaration of Human Rights; '"' ~';',,"'

the 1957 United Nations Convention on the Status~o( .. .~

Married Women; , , · -~

the 1959 United Nations Declaration on the Rights, oC ;,>'$- ~ -~

the Child; " --~ ·~

the 1961 United Nations Convention on the Reduction:;/ ., , •... •.fil

of Statelessness; · ' ·,. 'Ii - >1

(h) t~e 1966 International Covenant on Civil and \~~~~~~ . Rights· and ·'"' ' ·· if

' ··.r".. ·f;· ,} ~: ..

., 359 See par.-.- hereof. 1· "•

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136

(i) the 1966 International Convention on the Elimination of All Forms of Racial Discrimination. 360

181.1. The 1930 Hague Convention is significant, because it is the result of the first attempt to codify international law principles on certain subjects, among them, nationality laws. The 1930 Hague Convention is the product of the First Conference for the Codification of International Law, organized under the auspices of the League of Nations and attended by delegates from f arty seven (4 7) governments (or over half of the existing states in 1930)361 and by observers appointed by the Union of Soviet Socialist Republic. This Conference for the Codification of International Law, and the 1930 Hague Convention it produced, is an important development in international law, as it represented the first concrete action by the League of Nations to "assist in the fixing and codifying of international law" on various questions "the regulation of which, by international agreement, would seem desirable and realizable."362

181.2. Considering its history, the 1930 Hague Convention is considered confirmatory of certain general principles of nationality law. 363 Several of its provisions deal with the acquisition of nationality of several groups who traditionally face statelessness as a result of conflict of laws: married women, children, foundlings, and adopted persons. In 1968, when Sen. Poe was born, the 1930 Hague Convention already had thirty-seven (37) State signatories (or fifty percent [50°/o] of existing states in 1930) and fifteen (15) State parties. The 1930 Hague Convention now has twenty-one (21) State parties. As discussed, Article 14 thereof states that "(a) ch~ld whose parents are both unknown shall have the nationality of the country of birth."

181.3. In 1947, the UN Human Rights Commission urged consideration of nationality questions, a proposal which received concrete expression in Article 15 of

360 This list excludes regional and bilateral agreements. 36! There were only seventy four (74) widely recognized sovereign states, including some historical states, in 1930. The forty seven (4 7) delegates to the first League of Nations Conference for the Codification of International Law represented some of the largest and more established states existing in 1930. 362 United Nations Documents concerning the Development and Codification of International Law, published as supplement to the American Journal of International Law, Volume 41, No. 4, October, 1947. Available online at http: //legal.un.org/ilc/ documentation/ english/ASIL 194 7 study.pdf. 363 Kay Hailbronner, NATIONALITY IN PUBLIC INTERNATIONAL LAW AND EUROPEAN LAW, IN ACQUISITION AND Loss OF NATIONALITY: COMPARATIVE ANALYSES - POLICIES AND TRENDS JN 15 EUROPEAN COUNTRIES, Rainer Baubock, Eva Ersb0ll, Kees Groenendijk, Harald Waldrauch, eds., Amsterdam University Press (2006)

--

137

the United Nations Declaration on Human Rights ("UDHR") (to which the Philippines is a signatory and which the United Nations General Assembly adopted on 10 December 1948).364 Article 15(1) of the UDHR which the Supreme Court has specifically declared to be binding on the Philippines and part of the law of the land, states that all people have a "right to a nationality", and that no one may be arbitrarily deprived of his nationality.

181.4. In 1959, the U.N. General Assembly, through Resolution No. 1386 (XIV) and by a vote of 70 to O (with 2 abstentions), proclaimed the "Declaration of the Rights of the Child" ("UNDRC"). The third "whereas" clause of the UNDRC states that "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth."365 In the UNDRC, the U.N. General Assembly called upon the "national Governmen~s" (among others) "to recogp.i~e (the rights under the UNDRC) and strive for their observance by legislative and other measures progressively taken in accordance with (the principles set forth therein)." Consistent with UDHR, Principle 3 of the UNDRC contains a more empathic provision on the right to nationality as applied to children, making it an entitlement of a child from birth:

;''

The child shall be entitled from his birth to a name and a nationality. 366

181.5. The Convention on Statelessness is the culmination of more than a decade of international negotiations, 367 and over thirty (30) years of international

364 See Myres S. McDougal, Harold D. Lasswell and Lung-chu Chen, Nationality and Human Rights: The Protection of the Individual and External Arenas, 83 Yale L.J. 900, 965 (1974) 365 Underscoring supp lied 366 Underscoring supplied 367 The Convention on Statelessness is the result of over a decade of international negotiations on how to avoid the incidence of statelessness. In 1949, the Secretary General, at the request of the Economic and Social Council, commissioned a study on statelessness which called for the universal acceptance of the following two principles: ( 1) nationality is to be conferred on every child at birth; (2) no person should lose his/her nationality during his lifetime unless and until he has acquired a new one. In August 1950, the Economic and Social Council urged the International Law Commission ("IL~"), the UN body tasked with definitively codifying international legal norms, to prepare at the earliest possible time the necessary draft international convention or conventions for the minimization of statelessness. The ILC responded by adopting the draft Conventions on the Elimination and Reduction of Future Statelessness. This provided the impetus for the convening of an international conference of plenipotentiaries in Geneva in 1959, which later reconvened in 1961. Significantly, since its inception in 1949, the ILC has included "nationality, including statelessness" in its list of topics to be considered for codification. Draft conventions by the ILC are often considered to be good evidence of the existence of customary international law on certain subjects.

,.......

138

covenants on the right to a nationality and the avoidance of statelessness. The Convention on Statelessness provides for rules on the acquisition of nationality by stateless individuals. Under the Convention on Statelessness, States must ensure access to nationality for a person who would otherwise be stateless if the person is born in the State's territory or born abroad to a national of the State. It also protects individuals against the loss or deprivation of nationality if he or she will become stateless as a result. By setting out rules to limit the occurrence of statelessnessJ. the Convention gives effect to Article 15 of the UDHR. It is a matter of record that the UDHR (mentioned in the aforequoted note of the UN High Commissioner for Refugees) was unanimously adopted by the members of the U.N. General Assembly in 1948, including the Philippines. To stress, the High Court has also repeatedly declared that the UDHR embodies "generally accepted principles of international law." Thus, even if the Philippines has not yet signed or ratified the Convention on Statelessness, it is still binding, being merely an implementation of the UDHR signed by the Philippines in 1948. Hence, it cannot 1 ·e seriously disputed that the presumptions provided by the Convention constitute generally accepted principles of international law.

181.6. At the time of Sen. Poe's.1birth in 1968, the ,• .'rl \if.,;, United Kingdom, France, the Netherlands, Israel an:a. t1J..e .·.­

Dominican Republic had already signed the Conventicfrtt1qn . Statelessness. There are Sixty-Four (64) State parties:it'~ i, the Convention on Statelessness. 368 Unlike the internation8.1 .. , \ donvention which this Honorable Court applied in Ra~on (which had not entered into force, as it had only 16 state. parties), the Convention on Statelessness entered into .forte ·· in 1975. Although the Philippines remains neither: .. ·-~ :iii: ·~

!~

If £.

Signatory, nor a party to the Convention on Statelessnessr it · is reported by the United Nations High Commissioner for ··' Refugees to have already "initiated the process for ,., accession" to the Convention on Statelessness. 369 ·As .. discussed, on the nationality of foundlings, Article 2 ther~pf

·states that "(a) foundling found in the territory· cff''~"ii

368 Data provided by the United Nations, availabl~: , ';(•

·· "https: Ntreaties.un.org/doc/Treaties{2007/11 L29 /V-4.en.pdf ·,, 369• See "Submission by the United Nations High Commissioner for Refugees for t

, o;t the Bigh Commissioner for Human Rights' Compilation Report;" "Universe,~ re~i · ;~:t~lJ&view: The Philippines" available .at http://www.refworld.o~g/pdfid/~~e0_7aa22:'p~

;· ~:· ~f~~~lso t~e 21 J~ne 2015 ".With Due .Respect". column m the Ph~hppme J?aily ln.1 of former Chief Justice Artemio Panganiban which reported the mformat10n from , B~rnard Kerblat, country representative of the United Nations High Commissioner for ~efugees that at a ministerial meeting on 7 December 2011, the Philippine panel pledged "tQ.initiate accession to the Convention on Statelessness. ·· ,;, ·

'· ~;.::,'

-

·,..ii

139

Contracting State shall, in the absence of proof to tl-:e contrary, be considered to have been born wi~hin tJ::iat territory of parents possessing the nationality of that State."370 Article 2 of the Convention on Statelessness provides for a rebuttable presumption of descent from a citizen (praesumption iuris sanguinis) in favor of a foundling. This is consistent with the doctrine of jus sanguinis under paragraphs (3) and (4), Section 1, Article IV of the 1935 Constitution.

181. 7. According to this Honorable Court 1n Razon, the "material sources of custom" include "recitals in treaties and other international instruments" and "resolutions relating to legal questions in the U.N. General Assembly." The "Introductory Note" to the Convention on Statelessness written by the Office of the United Nations High Commissioner on Refugees establishes beyond doubt the status of "generally accepted principles of international law" accorded to the Convention. The U.N. Commission for Refugees stated thus:

x x x . Together, these two treaties371 form the foundation of the international legal framework to address statelessness, a phenomenon which continues to adversely affect the lives of millions of people around the world. The 1961 Convention is the leading intemationw instrument that sets rules for the conferral and non-withdrawal of citizenship to prevent cases of statelessness from arising. By setting out rules to limit the occurrence of statelessness, the Convention gives effect to article 15 of the Universal Declaration of Human Rights which recognizes that "everyone has the right to a nationality."372

181.8. Following the spirit of the UDHR and the Convention on Statelessness, the International Covenant on Civil and Political Rights ("ICCPR") (which has one hundred sixty-eight [ 168] State parties and to which the Philippines is a signatory373) and the 1966 International Convention on the Elimination of All Forms of Racial Discrimination contain provisions recognizing the fundamental right to a nationality of defined minority groups. The ICCPR applies the right specifically to children, thereby stressing that protection against statelessness should start from birth.

310 Underscoring supp lied 371 The other one being the Convention Relating to the Status of Stateless Persons 372 Underscoring supplied 373 As of 1966.

140

Article 24 of the ICCPR states that "(e)very child has the right to acquire a nationality. "374

' '

182. Similar to the adoption of international instruments and conventions, State practice in the domestic sphere in foreign jurisdictions is also widespread and consistent, insofar as Stat~~

I

presume that foundlings are citizens of the State in which they are found or presume that they are born of citizens of that State.

182. 1. In the proceedings a quo, Petitioner was able· to show evidence375 that at least sixty (60) countries, spread throughout Asia, North and South America, and Europe, have enacted statutes which prescribe that a person found within its territory of unknown parentage

; . . ' ; . .

would be considered its citizen. At least forty two (42) of these countries, or more' than two-thirds (2/3) are }us sanguinis countries which grant citizenship on the basis of descent (either through paternal or maternal lines). These countries include, per region:

a) Europe: Forty one (41) countries376, with at least thirty four (34) countries which apply jus sanguinis principle (Albania, Austria, Bosnia and Herzegovina, Belgium, Bulgaria, Croatia, enmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, K0sovo, Lithuania, Luxembourg, Macedonia, Moldova, Montenegro, Netherlands, Poland, Portugal, Romania, Russia, Norway, Slovakia, Slovenia, Spain, Serbia, Switzerland, Turkey, Ukraine);

b) North and South America: At least thirteen (13) countries, with at least three (3) countries which apply )us sanguinis (Belize, Costa Rica, Suriname);

c) East and Southeast Asia: At least six (6) countries, five (5) of which apply )us sanguinis (Japan, China, South Korea, Indonesia, Vietnam).

182.2. Notably, all sixty (60) countries recognize the presumption that a foundling is a citizen of the country where he or she was found, despite only thirty three (33) of them being parties to the Convention on Statelessness. Twenty six (26) of these countries are non-signatories to the Convention on Statelessness, while one country (France) is

374 Underscoring supplied 375 See Annexes "H" and "I-series"; Exhibits "38" and "39-series" 376 Russia was counted as part of the European region and not Asia.

141

a signatory but has not yet ratified said treaty. This strongly suggests that states, irrespective of being a party to the Convention on Statelessness, recognize as obligatory the principle that a foundling is presumed to be a citizen of the country where he or she was found.

183. On the regional level, there are several regional conventions on human rights which uniformly affirm the right of persons, particularly children, to a nationality, and the right of every person not to be arbitrarily deprived of such nationality, viz:

(a) The European Convention on Nationality,377 signed and/ or ratified by twenty nine (29)378 out of forty seven (47) members states of the Council of Europe;

(b) The Arab Charter on Human Rights,379 signed and/ or ratified by seventeen ( 17)380 out of twenty two (22) members of the League of Arab States;

(c) ASEAN Human Rights Declaration,381 adopted unanimously by the ten (10) member states of the ASEAN, including the Philippines;

(d) American Convention on Human Rights,382 ratified by twenty five (25)383 out of thirty five (35) member states of the Organization of American States ("OAS"); and

3.~1 Article 4 - Principles ,. .. ·· ·· The rules on nationality of each State Party shall be based on the following"·

principles: l. everyone has the right to a nationality;

,~,:

• v 4. statelessness shall be avoided; ,,

If)$ ' no one shall be arbitrarily deprived of his or her nationality;

..

.'· ·/4~ . •,?either marri.age nor the dissolution of a.mar~iage between a national of a St:=i-t~ Party and an ahen, nor the change of nat10nahty by one of the spouses dunqg . marriage, shall automatically affect the nationality of the other spouse. · .

378 Albania, Austria, Bosnia and Herzegovina, Bulgaria, Czech Republic, Denmar~', Finland, Germany, Hungary, Iceland, Moldova, Montenegro, Netherlands, No~ay, ,. ·'' ~Pertugal, Romania, Slovakia, Sweden, Macedonia, Ukraine have ratified the Convention. ; The COlJ.:ptries which signed the Convention, but have not yet ratified, are: Croatia, Fran¢; i.<

Greece,'Italy, Latvia, Luxembourg, Malta, Poland, Russia, ' 379 Article 29 "' t

1. Everyone has the right to nationality. No one shall be arbitrarily or unlawfully deprived of his nationality. 2. States parties shall take such measures as they deem appropriate, in accordance "

'with their domestic laws on nationality, to allow a child to acquire the mother·~~~ ~' I m1.ticmality, having due regard, in all cases, to the best interests of the child. , ,;: r~;. J';

,:;, , 3. Non one shall be. denied the right ~o a?quire another nationality, hayin~ 'fl~:lff~:.;i F regard for the domestic legal procedures m his country. · .~, "'' . f'L"

3so Algeria (2006), Bahrain (2006), Egypt (signed 2004, not yet ratified), Iraq (2012),,',~lj . , (2004), Kuwait (2006), Lebanon (2011), Libya (2006), Morocco (signed 200.f;'~tj/?.

•ra'tifiep), Palestine (2007), Qatar (2009), Saudi Arabia (2009), Sudan (signed 200'~0~ · ··· ... ,J ~tified), Syria (2007), Tunisia (signed 2004, not yet ratified), the United Ara~ ~~

• ,,,~:t,b.'f2008), and Yemen (2008). · lftr;~:>~ · ii'< ·, :' ,381 Article 18. Every person has the right to a nationality as prescribed by law., No.

1, "sJ;ia11 be arbitrarily deprived of such nationality nor denied the right to cli.ange ,. ,,.; nationality. ·:~q~ Article 20. Right to Nationality

•:; 1. ~very person has the right to a nationality.

" "

'·

"~i.

(e)

142

1995 Commonwealth Convention on Human Freedoms. 3s4

of Independent States Rights and Fundamental

183.1. The European Convention on Nationality, in particular guarantees the right of a foundling to acquire a nationality ex lege when he would otherwise be stateless. Although only twenty seven (27) countries are signatories, forty-one (41) member states385 of the Council of Europe, with thirty four (34) of them following the jus sanguinis doctrine, already provide for automatic acquisition of citizenship by foundlings found within their respective

~ . . .

territories. The wording of the European Convention on Nationality is in turn drawn from the Convention on Statelessness.

184. Clearly, there is a uniform practice of recognizing the right to nationality of foundlings, spread over different geographic areas, and observed even among jus sanguinis countries, supporting a finding that it is a "generally accepted principle of international law'' that foundlings are presumed born of parent~ who are citizens of the country in which they are found.

i.2. Opinio Juris sive necessitates (opinion as to law or necessity).

185. Implicit in this element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it." As discussed, the State practice alluded to in the case of the presumption that foundlings are citizens of the State in which they are found and the presumption that foundlings are born of citizens of that State, refers to legislation. This indicates that the adoption and application of these

2. Every person has the right to the nationality of the state in whose territory he was born if he does not have the right to any other nationality. 3. No one shall be arbitrarily deprived of his nationality or of the right to change it.

383 Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, Uruguay, and Venezuela. However, Trinidad and Tobago and Venezuela denounced the convention on 26 May 1998 and 10 September 2012 respectively. 384 Article 24

1. Everyone shall have the right to citizenship. 2. No one shall be arbitrarily deprived of his citizenship or of the right to change it.

385 These countries are: Albania, Austria, Belgium, Bosnia & Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Kosovo, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, and the United Kingdom.

~

143

presumptions arises from a belief on the part of the States involved that they are under a legal obligation to follow these

' ' '

presumptions. Moreover, the legislation is also related to, and in line with, a State's ratification of the pertinent International Convention involved.

186. Opinio Juris being a subjective element, it is important to take into consideration the particular state's interpretation of whether a practice alleged as international custom is considered by it to be obligatory. In Nicaragua vs. United States of America,387 which was cited in Mijares vs. Ranada, the International Court of Justice placed particular emphasis on the practice of the U.S.A. (a party to the case) in determining the existence of the element of opinio Juris. This is significant because the Philippines itself, even in the absence of domestic legislation, has performed acts which indicate that it acknowledges the binding effect of the

' presumption that a foundling is a citizen of the country in which she is found, or is born of citizens of that country.

186.1. As discussed, based on the deliberations of the 1934 Constitutional Convention, foundlings were always meant to be included in the concept of Philippine citizens, even though they were not specifically mentioned in Section 1, Article IV of the 1935 Constitution. The basis for that intent is precisely the presumption under international law that a foundling is a citizen of the country in which she is found. Again, this principle was already concretely expressed in the 1930 Hague Convention (which codified existing principles of nationality law), and the members of the Constitutional Convention, who are predominantly lawyers, are presumed knowledgeable of this existing principle.

186.2. Another concrete manifestation that the Philippines has long recognized the generally accepted principle of international law that foundlings are citizens of the country in which they are found is DOJ Opinion No. 189, series of 1951. In this opinion, the Secretary of Justice recognized that foundlings are citizens of the country in which they are found in the context of an application for a passport for that foundling.

186.3. Another instance showing the recognition of the said generally accepted principle of international law is the· fact that the DFA specifically allows passports to be

387 Merits, Judgment, ICJ Reports 1986, p. 14, para. 186.

144

issued to foundlings. This means that the DFA recognizes foundlings as Philippine citizens, as passports can be issued only to citizens of this country. If the State, acting through the DFA, did not find that according foundlings citizenship is a "conduct of a civilized nation" (as discussed below), then the Philippines would not be issuing passports to them.

ii. "General Principles of Law Recognized by Civilized Nations"

187. Even if the presumptions favoring a foundling's citizenship cannot be deemed "customary international law," they could still be considered "general principles of law recognized by civilized nations." Indeed, as earlier stated, the term "generally accepted principles of international law" has been associated with "the generally accepted principles of law recognized by civilized nations." It is not required that they are accepted by all nations or by the majority of nations. It is enough that they are accepted by "civilized nations."

'

188. In fact, in several cases interpreting or applying the incorporation clause, the court's focus of inquiry is not the number of states who accept the legal principle, but whether such a principle can be "established by a process of reasonin~, based on the common identity of all legal isystems".388 For'

·' '"' ~&-example, the principle against non-discrimination is a geneyally Ii''

,accepted principle of international law because it earl:» be r:"cl~duced by the test of reasonableness from basic principles :of '\~guity, fairness and justice, which are valid throughout all kin8,s1'\ .,./of human societies. In International School Alliance of Educa.tor;,

vs. Quisumbing389 the Supreme Court held:

11 .j;l

<,.\,' ;)•

International law, which springs from general principles of'" faw, likewise proscribes discrimination. General principles of law'. .,. include principles of equity, i.e., the general principles of fairness:· and justice, based on the test of what is reasonable. The Universal Declaration of Human Rights, the International Covenant on

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fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws. 390

Hence, any discriminatory act sanctioned by the state against a foundling would violate a generally accepted principle of international law. Denying to foundlings the rules on burden of proof, and presumptions of innocence and regularity which are ordinarily accorded to all persons, including even persons accused of crimes or charged with civil claims, would be discriminatory against foundlings, and would violate their rights under both municipal and international law.

188.1. Similarly, in Pharmaceutical and Health Care Association of the Phil. vs. Duque III, 391 this Honorable Court held:

The concept of g~nerally accepted principles of law has also been depicted in this wise:

Some legal scholars and judges look upon certain general principles of law as a primary source of international law because they have the character of jus rationale and are valid through all kinds of human societies. (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.CJ. 296). O'Connell holds that certain principles are part of international law because theyrare basic to legal systems generally and hence part of the jus gentium. These principles, he believes, are established by a process of reasoning based on the common identity of all legal systems. If there should be doubt or disagreement, one must look to state practice and determine whether the municipal law principle provides a just and acceptable solution.x x x392

189. The principle that a foundling should be deemed, at least presumptively, a citizen of the State in which she is found or born of citizens of that State, is founded on equity, fairness and justice. As discussed, it would be the height of injustice to penalize a foundling with statelessness (and all the limitations that being stateless entails) for a status and condition that is not of her own doing. It is not her fault that she was abandoned at birth. Worse, she can do little or nothing to change her status as a foundling. Therefore, it is but fair and just that a State initially embrace a foundling as its own citizen, pending proof that she

390 Underscoring supplied 391 G.R. No. 173034, 9 October 2007 392 Emphasis in the original

146

would otherwise not qualify for citizenship. Leaving a foundling out in the cold, so to speak, and depriving him or her of parens patriae, is anything but civilized.

190. Given the widespread and uniform enactment and application of the presumption of citizenship of foundlings in various "civilized nations" across continents,393 it is reasonable to conclude that these rules have become "basic to legal systems" and "valid through all kinds of human societies."

191. In sum, the presumption that a foundling is a citizen of the country in which she is found and the presumption that a foundling is born of citizens of that country may also be considered "general principles of l,aw recognized by civilized nations" as defined in Article 38.1 (c) of the !CJ Statute and, therefore, "generally accept~d principles of international law" which form part of the law of the land under the incorporation clause.

192. The assailed Resolutions of the COMELEC did not adopt an analysis as extensive as the one detailed above because the COMELEC appeared to have inexplicably forgotten that international law may form part of the law of land through "incorporation," and not simply through "transformation." Such basic ignorance of the Constitution and applicable settled jurisprudence constitutes grave abuse of discr.etion.

B.6. The COMELEC gravely abused its discretion when it chose to interpret the provisions on citizenship in a manner that runs contrary to the fundamental principles animating the 1987 Constitution. ---------------------------------------------

193. All told, the COMELEC's wholesale rejection of the numerous legal bases supporting the proposition that a foundling found in the Philippines is presumed born of Filipino citizens, and, since he or she did not have to perform an act to acquire or perfect such citizenship, is deemed a natural-born Filipino, if upheld by this Honorable Court, is tantamount to the disenfranchisement and statelessness by judicial fiat (by the COMELEC, which is not even a judicial body) of thousands of

393 See Exhibit "39-series"

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foundlings who have heretofore enjoyed the benefits of citizenship, and were actually recognized by the State as Filipino citizens. This is a matter of transcendental importance that goes beyond herein Petitioner's candidacy, or indeed, the political aspirations of any person.

194. To uphold the COMELEC's inexplicable disregard of elementary principles pertaining to presumptions of law, burden of proof, the applicability of treaties and generally accepted principles of international law, and blind adherence to a supposed "requirement" of Filipino parentage proven as a fact under the Constitution, is to negate the very citizenship-the right to enjoy rights-being enjoyed by thousands of foundlings heretofore considered by the state as Filipino citizens. This is not only in blatant disregard of the Philippines' obligations under the UDHR, the UNCRC, and the ICCPR, among others, but it is also an interpretation that runs counter to the very spirit animating our Constitution.

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194.1. The foremost principle animating the Constitution is the sovereign people's desire to build a "just and humane society". 394 While "independence", "democracy", and "rule of law" are treasured ideals of the sovereign, it is trumped by the primordial principle of justice and primacy of human rights. Indeed, full respect for human rights is guaranteed in Section 11, Article II of the 1987 Constitution. The fact that it is exp.r~ssly, mentioned in the declaration of state principles anc:Fi.state policies, before the article on citizenship, underscores ;jt~ importance in construing other provisions oC t:i~

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B. 7. The COMELEC ignored the Constitutional and settled jurisprudential definition of a "natural born Philippine citizen" when it ruled that: (a) although every child has a right to acquire a nationality, Sen. Poe cannot be considered a "natural-born" Filipino; and (b) a foundling cannot be

1 ~:¥14 Preamble, 1987 Constitution

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considered a "natural-born" Filipino under international law because applicable international conventions and instruments do not use the phrase "natural-born" in referring to citizenship or nationality.

195. In its 1 December 2015 Resolution, the COMELEC Second Division conceded that under the UN CRC and the ICCPR, a "child has a right to acquire a nationality." As discussed, the right "to acquire a nationality" under these treaties must be construed with the UDHR which recognizes in favor of everyone a "right tq ~ nationality". Such nationality, which starts "from birth" (under the UNCRC and UNDRC), could only be the nationality of a Filipino for the Philippines would not have the power to recognize Sen. Poe, or any other person for that matter, as a citizen of any other country. However, the COMELEC insisted that a foundling is not natural-born.

196. The COMELEC acted illogically, incongruously, and therefore with grave abuse of discretion, when it effectively conceded that Sen. Poe is Filipino under the UNCRC, ICCPR and UDHR, but at the same time denied that she is·natural born.

197. It is well-settled, not only in the Constitution, but in applicable jurisprudence, that there are two approaches to determining whether a person who is admittedly a Filipino, is also "natural-born."

197. 1. The first approach is by applying the definition in Section 2, Article IV of the 1987 Constitution which states that natural-born citizens of the Philippines are "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship."

197.2. The second approach is by showing that the foundling is not a naturalized Filipino because, if she is not naturalized, she is perforce, natural-born,395 pursuant to Bengson III vs. HRET, 396 thus:

395 JOSE M. ARUEGO, THE NEW PHILIPPINE CONSTITUTION EXPLAINED 68 (1975). 396 G.R. No. 142840, 7 May 2001

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The present Constitution, however, now considers those born of Filipino mothers before the effectivity of the 1973 Constitution and who elected Philippine citizenship upon reaching the majority age as natural-born. After defining who are natural-born citizens, Section 2 of Article IV adds a sentence: "Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens." Consequently, only naturalized Filipinos are considered not natura.1-born citizens. 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 cit~zen who is not a naturalized Filipino, i.e., did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino.397

197 .3. It is of no moment, as the COMELEC repeatedly pointed out in its assailed Resolutions, that the applicable international law principles, laws and conventions (i.e., the pertinent provisions in the 1930 Hague Convention, the Convention on Statelessness, the UNCRC, the ICCP and the UDHR) do not expressly state that a foundling is a "natural-born" citizen. In the first place, citizens under paragraphs (3) and (4) of Section 1, Article IV of the 1935 Constitution are ~lso not "expressly" referred to therein as "natural-born" citizens. Yet, they are considered as such because they satisfy the definition of natural-born citizens of the Philippines in the Constitution.

197 .4. What matters is that a foundling's citizenship falls under any of the two ways of defining a natural-born citizen of the Philippines. As explained below, a foundling is a natural-born Filipino under both definitions.

198. Under treaty and conventional international law (which the COMELEC accepted as binding on the Philippines) and "generally accepted principles of international law," a foundling is a Filipino from birth. In fact, the U.N. Declaration on the Rights of the Child (adopted by the U.N. General Assembly in 1959) and the U.N. Convention on the Rights of the Child (ratified by the Philippines in 1990) both expressly state that a child's right to a nationality must be recognized "from birth." There is also nothing under international law which requir~s a foundling to "perform an act to acquire or perfect" her

397 Underscoring supplied

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citizenship. Having satisfied the two (2) elements of the Constitutional definition of a natural-born Filipino under Section 2, Article IV of the 1987 Constitution, the COMELEC ought to have concluded that Sen. Poe is natural-born.

198.1. The second sentence of Section 2, Article IV (in relation to Section 1 [3], Article IV) of the 1987 Constitution also considers as "natural-born" Filipinos, those "born before January 17, 1973, of Filipino mothers, who "elect Philippine citizenship."

198.2. Assuming for the sake of argument that Sen. Poe should be considered born of a Filipino mother only (and nQ! of a Filipino father), Sen. Poe was deemed to have "elected" Philippine citizenship "upon reaching the age of majority" (under par. (4), Section 1, Article IV of the 1935 Constitution) when she decided to live a Filipino life and, thereafter, secured: (a) her Voter's Identification Card398 in 1986 (which is the year she turned 18); (b) her first Philippine Passport two years later, or in 1988;399 and (c) her second Philippine Passport, five years later, or in 1993.400

198.3. In Co vs. HRET,401 this Honorable Court reiterated that the "election" of citizenship may be "both a formal and an informal process." The High Court cited In Re: Florencio Mallare, 402 which held that "the exercis.e-.of the right of suffrage and the participation in election ej{•rcises c?i:istitut~ a po~i~ive act of elec~ion of Phifipfi.'Pe citizenship." According to Co, Mallare applies to those "-~o cannot be expected to have elected citizenship." Indeed, Sen. Poe could not have been expected to formally' "ele~f' Philippine citizenship because, when she reached the age. of majority in 1986, she did not know the identity .. of her biological father. (Today, she still does not know who heis). Thus, she had !ill way of finding out whether her biplpgical father was, indeed, a foreigner and that, therefore, she had to formally elect Philippine citizenship by the time she .;~as 18. Informal "election" of Philippine citizenship.}'Tq\ild, therefore, apply to her (as~uming arg_uendo that s~~f:laj,ls only under par. (4), Section 1, Article IV of th,,~·. !~5 Constitution, in relation to Section 1 (3) and ~·~!i~t'~f•' Article IV of the 1987 Constitution). j~l""" - '!··~·-

39& See Exhibit "3" it ' 1 399 See Annexes "H" and "I-series"; Exhibit "4"

, 400 See Annexes "H" and "I-series"· Exhibit "4-A" 'tt 1 , j~';·'·

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199. Sen. Poe is also a natural-born Filipino, because she cannot be considered a F~lipino "naturalized in accordance with law," under paragraph ( 5), Section 1, Article IV of the 1 935 Constitution. 403 Notably, the COMELEC did not rule that a foundling is a naturalized Filipino. On the basis of the COMELEC 's ruling, it would follow that Sen. Poe must be considered a natural-born Filipino. That said, there is no legal basis to consider a "foundling" as a "naturalized" Filipino.

199.1. The phrase "in accordance with law" in par. 5, Section 1 of Article IV of the 1935 Constitution must be construed in relation to the verb "naturalized" which has a well-settled meaning in Philippine law.

(a) In Republic vs. Karbasi, 404 Go vs. Republic, 40s and So vs. Republic, 406 the Supreme Court defined "naturalization" as the legal act of adopting an alien and clothing him with the privilege of a native-born citizen. Under the present laws, the process of naturalization can be judicial or administrative.

(b) In Republic vs. Batugas, 40 7 the Supreme Court held that "(u)nder existing laws, an alien may acquire Philippine citizenship ... "

,,.

(c) In Mo Ya Lim Yao vs. the Commissioner of Immigration, 408 the Supreme Court adopted the following discussion by counsel on paragraph (5), Section 1, Article IV of the 1935 Constitution: "Citizens by naturalization, under this provision, include not only those who are naturalized in accordance with legal proceedings for the acquisition of citizenship, but also those who acquire citizenship by 'derivative naturalization' or by operation of law, as for example, the 'naturalization' of an alien wife through the naturalization of her husband, or by marriage of an alien woman to a citizen."

.. -~ ....... (d) Mr. Aruego defined a "naturalized" citizen as one

"who, at the moment of birth, is an alien but who, by an intervening act, is made a citizen."409

403 Id., at pp. 98 to 104 (Underscoring supplied) 404 G.R. No. 210412, 29 July 2015 40s G.R. No. 202809, 2 July 2013 406 G.R. No. 170603, 29 January 2007 407 G.R. No. 183110, 7 October 2013 408 G.R. No. L-21289, 4 October 1971 409JOSE M. ARUEGO, THE NEW PHILIPPINE CONSTITUTION EXPLAINED 67 (1975).

152

199.2. In sum, the subject of "naturalization" is always an alien who becomes, through an intervening act, a Filipino citizen.

199.3. The "intervening act/ s" vary depending on the law governing his naturalization and this is how the phrase "in accordance with law" should be construed.

(a) Under R.A. No. 9139, otherwise known as the · "Administrative Naturalization Law of 2000," and

Commonwealth Act No. 473, otherwise known as the "Revised Naturalization Law," the alien (who must not be less than 18 years old) must file a petition/application with the Special Committee on Naturalization (under R.A. No. 9139) or with the court (under C.A. No. 473). If the petition is granted, a "decree" or "certificate" of naturalization" is issued and the alien must take an oath of allegiance to the Republic of the Philippines. Under Section 15 of C.A. no. 473, an alien woman married to a Filipino, who might herself be naturalized, will be deemed a citizen of the Philippines.

(c) Aside from the usual process that the passing of a law entails and the lobbying that precedes such enactment, naturalization of an alien by direct act of Congress usually requires the taking of an oath of allegiance and its registration with the Bureau of Immigration. 4lo

199.4. It is noteworthy that when the 1935 Constitution was adopted, the only law in force which granted "naturalization," was Act No. 2927 or the "Naturalization Law." Like the naturalization statutes which succeeded it, this law also applied only to foreigners41 1 and provided for the filing of the necessary petition with the Court of First Instance. Based on available resources, in 1935, there had been no grant of citizenship by direct act of Congress to specific individuals. It follows that when the members of the 1934 Constitutional Convention used the phrase "naturalized in accordance with law," they specifically had the

4 10 See Footnote 321 of Sen. Poe's Memorandum on SPA 15-002 (DC) 411 SEC. 1. Who mau become Philippine citizens. - Philippine citizenship may be acquired by: (a) Nfi.tives of the Philippines who are not citizens thereof under the Jones Law; (b) natives of the other Insular possessions of the United States; (c) citizens of the United States, or foreigners who under the laws of the United States may become citizens of said country if residing therein.

153

"Naturalization Law" in mind and not any municipal law or act of Congress, much less internati~nal law.

199.5. On the other hand, when the members of the 1934 Constitutional Convention discussed the citizenship of foundlings, they did not say (or otherwise express their intention) that a foundling could be considered as a Filipino "naturalized in accordance with law." The sub-paragraph on Filipinos "naturalized in accordance with law" was passed without even mentioning "foundlings."41 2 On the contrary, as discussed, when the framers declared that "by international law," a foundling is a "citizen of this nation," they had a jus sanguinis Philippine citizen in mind. A foundling would fall under either paragraph (3) or (4), Section 1 of the 1935 Constitution, but certainly not paragraph (5) thereof.

200. In sum, the person subject of "naturalization" is, .Qy definition, an alien who, through the performance of an act (i.e., the filing of the appropriate petition/ application/ request, by marriage, and/ or the taking of an oath of allegiance to the Republic of the Philippines), becomes a Filipino. Sen. Poe was definitely not an alien at birth, and never had to undergo any naturalization process.

201. "Naturalization" is clearly not whatttakes place when a foundling is recognized as a Filipino from birth under applicable international law. As explained, a foundling is a Filipino ~(!!ot an

. ;fl.lien) from birth who does not have to do anything to perfec;;~w}:ier ! Filipino citizenship. A foundling, therefore, falls squarely,wrnh\n

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202. Since Sen. Poe is not a Filipino "natura1ized ln accordance with law," she must perforce be considered "natural­born." I

203. In issuing its assailed Resolutions, the COMELEC;.did tJ~·dno· 1 •twnti<in ·aa¥7•M.t9c asettled definitions of a "-nfltiiral .. £f

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't;,t'l. born" Filipino. Had the COMELEC bothered to applY::;· ~b:,~ ... ·. e definitions, it would have found that Sen. Poe is, irl;qped)iidf .natural-born Philippine citizen. Therefore, it was not :fl Sen. Poe to state in her COC for President that · "NATURAL BORN FILIPINO CITIZEN."

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B.8. The COMELEC acted with grave abuse of discretion in ruling that the recognition of foundlings as natural-born Filipinos would contravene the 1935 Constitution and the principle of jus sanguinis.

204. In its assailed Resolutions, the COMELEC repeatedly held that international law could not be the basis for natural­born citizenship, because international law cannot "override" or "prevail" over the principle of }us sanguinis under the Constitution. This ruling is premised on the COMELEC's assumption that there is a conflict between the principle of }us sanguinis on the one hand, and the recognition or presumption of a foundling's natural-born citizenship under international law, on the other. As discussed below, the supposed conflict alluded to by the COMELEC is more imagined than real.

204.1. First, as discussed, even under the 1935 Constitution, international law which is either "transformed" (under the treaty clause) or "incorporated" (under the incorporation clause) forms part of the law of the land.

/.

204.2. Second, Article IV on Citizenship in the 1935 Constitution was based significantly on international law principles. In fact, the presumption of the citizenship of a foundling under international law is the basis for the intent of the framers to include foundlings in the concept of jus sanguinis Philippine citizens. To repeat, they were deliberating what eventually became paragraphs (3) and (4) of Section 1, Article IV of the 1935 Constitution (children of Filipino fathers and mothers) when they discussed the citizenship of foundlings.

204.3. Third, under international law (specifically, the Convention on the Reduction of Statelessness and applicable State legislation), a foundling is presumed born of citizens of the Philippines. This is consistent with the principle of }us sanguinis, as enshrined in paragraphs (3) and (4) of Section l, Article IV of the 1935 Constitution which considers as Filipinos those whose fathers or mothers are "citizens of the Philippines." The situation would, of course, be different if the presumption of natural­born citizenship were applied despite an admitted or proven . . fact that the foundling was born to foreigners. Such

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application of international law would, indeed, contravene the Constitution. But that is not the case here, because it was neither alleged nor proved that Sen. Poe's biological parents are aliens.

204.4. Fourth, presumptions are generally founded upon basic principles of justice, laws of nature, the experienced course of human conduct and affairs or the connection usually found to exist between specific agencies. 41 3 Presumptions arise from motives of public policy and for the sake of greater certainty. They owe their existence to necessity and are based on general experience. The necessity which brings them into existence is the fact that in their absence many meritorious causes would fail through inability to produce affirmative evidence of essential facts, concerning the existence of which the general experience of men leaves but slight doubt. 4 14

Since presumptions take the place of facts in the absence of evidence,41 5 there is no valid basis to distinguish between persons who can establish their bloodline by proof and those who can do so by presumption.

204.5. Fifth, the natural-born citizenship of a person may be established using presumptions. This is precisely what the Supreme Court did in Tecson vs. COMELEC.41 6 In Tecson, the Court found that Sen. Poe's father, the late Fernando Poe, Jr., is a natural-born Filipino, based ultimately on a presumption that his grandfather had resided in the Philippines in 1899, and therefore benefitted from the mass Filipinization that took place in 1902, thus:

In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the COMELEC, it is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking after the Filipino , citizenship of his putative father. Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born

413 Padill~, Evidence, Vol. 2, 1994 ed. P.62, citing 20 Am. Jur Sec. 158, p.162 414 Id., citing 31 CJS, Sec.114, pp. 723-724 415 See Section 3, Rule 131 of the Rules of Court 416 G.R. No. 161434, 3 March 2004

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sometime in the year 1870, when the Philippines was under >: ' • ; ' •

Spanish rul~, and ~hat San Carlos, Pangasinan, his place of residence upon his death in 1954, ip. the absence of any other evidence, could have well been his pl.ace of residence before death, such that Lorenzo Pou would have benefited from the en masse Filipinization that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or ·11 . . 417 i eg1tlmate.

204.6. Sixth, Sen. Poe is more likely to have been born to Filipir~o parents, than aliens. The possibility that she was actually born to foreigners is very slim. Therefore, there is essentially no risk that a foundling (who is, in reality, a foreigner) would enjoy presumptive natural-born Filipino status.

204.7. Seventh, a ruling on citizenship is never final. If someone is later able to specify two foreigners and is able to conclusively show them to be Sen. Poe's parents, then that would be sufficient to overcome the presumption of her natural-born citizenship. ,,

204.8. Eighth, under the 1935 Corl;gtutio:r, natural-born Filipino citizenship is not always p~s~cl on blood relationship. Thus, according to Aruego, a !!lenl~r of the 1934 Constitutional Convention and noted a~,itholjfy on the 1935 Constitution, the "understanding by · t}jj National Assembly under the original 1935 Philipahle Constitution that for the purpose of election .Jd' lh~ bicameral Congress which was instituted with the· 1 ':::139-1940 amendments requiring the fact of being natural-born for election thereto, the term natural-born citizen meant anybody who was not so by naturalization."418 In. o~her words, even some of those who were not Philippine cit~ens by blood, i.e., those citizens "at the time of the ado : "'dx,1i~. 76f the 1935 Constitution" or those "born in the PhJlip ~ · ~ Islands of foreign parents who, before adopt~?P,;:9!~~ Constitution, had been elected to public off1c· Philippine Islands," were still considered "natural-59.trii

417 Underscoring supplied ,'~

~ 418J,OSE M. ARUEGO, THE NEW PHILIPPINE CONSTITUTION EXPLAINED 68 (1975).

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204.9. Finally, by defining natural-born citizens as those who are citizens "from birth," as opposed to "Qy: birth," the intent of the Constitution was not to limit - -.-natural-born citizens to those who are related, by blood, to Filipino parents. Moreover, there is nothing in the Constitutional definition of natural-born Filipino citizenship419 which confines such status "solely and exclusively" to actual proof of blood relationship to a Filipino father or mother.420 The definition of natural-born citizenship does not say "those born of a Filipino father or mother proven as a fact", or even "those born of a Filipino father or mother", but rather, "those who do not have to perform any act to acguire or perfect their Filipino citizenship."421 Clearly, the definition of natural-b,rn citizenship is broad enough to contemplate citizenship ex lege or by operation of law, apart from naturalization, which always involves a positive act on the part of an alien who wishes to acguire Philippine citizenship.

205. Based on the foregoing, there is nothing unconstitutional about presuming that Sen. Poe was born of Filipinos or that she is a natural-born Filipino, even though she

;

cannot, as yet, prove that she is related by blood to citizens of the Philippines. The following pronouncement in Co vs. HRET is highly instructive on the issue of Sen. Poe's citizenship:

,...

Our citizens no doubt constitute the country's greatest wealth. Citizenship is a special privilege which one must forever cherish.

However, in order to truly revere this treasure of citizenship, we do not, on the basis of too harsh an interpretation, have to unreasonably deny it to those who qualify to share in its richness. 422

206. Finally, as a natural-born Filipino, Sen. Poe reacquired that status when she was repatriated under R.A. No. 9225. She was, therefore, telling the truth when she stated in

419 Sec. 2, Art. IV, 1987 Constitution. 420 Indeed, considering that the filiation of children is sometimes also a presumption created by law (e.g., children conceived or born during the marriage of their parents are presumed to be the child of the husband, and their legitimate filiation cannot be impugned but by the husband himself or his heirs and only on limited grounds during a limited period), the Constitution cannot provide for such definition. In other words, tying natural­born Filipino status to actual proof of the existence of a blood tie between a child and a Filipino parent would be tantamount to requiring each Filipino citizen to prove, through scientific evidence such as DNA, that they are beyond the shadow of doubt the biological child of a parent who is Filipino. 421 Underscoring supplied 422 Underscoring supplied

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her COC for President that she is a "NATURAL BORN FILIPINO CITIZEN."

B.9. The DOJ, and not the COMELEC, has the primary jurisdiction to revoke the B.I. 's 18 July 2006 Order which: (a) found Sen. Poe to be presumptively a former

· natural-born Filipino; and (b) approved her petition for reacquisition of natural-born Filipino citizenship. Insofar as the COMELEC held that Sen. Poe was not qualified for the B.I.'s Order, the same is a prohibited collateral attack on Sen Poe's natural-born Filipino citizenship.

207. When the COMELEC held that Sen. Poe was not qualified to apply for repatriation under R.A. No. 9225, it effectively set aside the 18 July 2006 Order issued by the Bureau of Immigration ("B.I.") which: (a)"' found Sen. Poe presumptively a former natural-born Filipino; and (b) approved her petition for reacquisition of natural-born Filipino citizenship.

208. The COMELEC failed to pass upon Sen. Poe's argument, repeatedly stressed in the proceeding a quo, that the DOJ has the "primary jurisdiction" to decide whether said order was legally issued, which necessarily includes the initial inquiry as to whether Sen. Poe was a "former natural-born Filipino" qualified for repatriation under R.A. No. 9225.

209. In Quintas, Jr. vs. National Stud Farm, 423 the Supreme Court held:

It is true that the doctrine of primai:y jurisdiction or prior resort goes no further than to determine whether it is the court or the agency that should make the initial decision. Parker, in his text, would put the matter thus: "The fact that a governmental authority is empowered to deal with a given type of matter gives rise to a presumption that it has exclusive jurisdiction over the matter. If the Jaw delegates A to make decisions this means that in dubio B

423 G.R. No. L-37052, 29 November 1973

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is not so delegated." Davis clarifies the point in this wise: "The precise function of the doctrine of primary jurisdiction is to guide a court in determining whether the court should refrain from exercising ~ts j~risdiction untq after, aq administrative agency has c;letermined som.e question or some aspec_t of some question arising in the proceeding before the court." The important thing is that the dispute be determined according to the judgment, in the language of an American Supreme Court decision, "of a tribunal appointed by law and informed by experience." x x x. When, therefore, as was likewise adverted to by the Solicitor General, the judicial forum was sought by plaintiff, there was in effect fill unwarranted di.sr~gard of the concept of primary jurisdiction.424

209.1. Blue Bar Coconut Philippines vs. Tantuico, Jr.425 is also apropos:

In cases involving specialized disputes, the trend has been to refer the same to an administrative agency of special competence. As early as 1954, the Court in Pambujan Sur United Mine Workers v. Samar Mining Co., Inc. (94 Phil. 932, 941 ), held that under the sense-making and expeditious doctrine of primary jurisdiction' .. the courts cannot or will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal prior to the decision of that question by the administrative tribunal, where the question demands

I'

the exercise of sound administrative discretion requiring the special knowledge, experience, and services of t~! · . administrative tribunal to determine technical and intri".aW "' ·:. .,,_ matters of fact, and a uniformity of ruling is essential· tQ · comply with the purposes of the regulatory statute administered. '426

~ * ' 210. The DOJ has the primary jurisdiction or the powet t~~ · t'm~e the initial decision" to rule on whether reacquisiq·omoif

natural-born Filipino citizenship evidenced by the 18 July ~·006. Order, was valid. Under Section 18 of B.I. Memorandurrt Circular No. AFF. 05-002, the 18 July 2006 Order can _be

·;:,

revoked only by the DOJ, thus:

I ' .. -'J

However, the Order of Approval issued under these Ruf,e~·- -~?~ may be revoked by the Department of Justice upon a substantive· Q

finding of fraud, misrepresentation or concealment on the pa~& ¥.;.,

.. , . 424 U9derscoring supplied . ' "' 42~G:R. No. L-47051, 29 July 1988; see Ros vs. DAR, G.R. No. 132477, 31 Aug~t

,,~avedra vs. Securities and Exchange Commission, G.R. No. 80879, 21 March 19,~8~Bfftt · vs. Intermediate Appellate Court, G.R. Nos. 74222 & 77098, 27 November 1990 · ·· 426 Underscoring supplied ' '

-., -~1~,r ..

~

~·;~~ 1·~

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the applicant and after an administrative hearing initiated by an ; . '

aggrieved party or by the Bureau of Immigration. 427

211. Applying the doctrine of primary jurisdiction, until the DOJ has been given the chance (in the appropriate administrative proceeding) to decide the issue, the COMELEC should have "refrained" from deciding whether Sen. Poe could validly avail herself of the benefits of R.A. No. 9225, i.e., whether she was, indeed, a former natural-born citizen of the Philippines gualified under the terms of that statute. In the meantime, the 18 July 2006 Order which: (a) found that Sen. Poe was born to Filipino parents and presumptively a former natural-born

\ I ' .

Filipino; and (b) approved her petition for reacquisition of natural-born Filipino citizenship, cannot be impugned in this . .

case. It must be presumed valid and regular. . ' (

212. A corollary to the doctrine of primary jurisdiction is the prohibition against collateral attacks against citizenship (which the COMELEC did not discuss in its assailed Resolutions). It is well-settled that "[i]n our jurisdiction, an attack on a person's citizenship may only be done through a direct action for its nullity."428 Before the 18 July 2006 Order

, I

can be assailed, the jurisdiction of the appropriate adri:inistrativy agency (i.e., the DOJ) must first be properly invoked. As a final note, the COMELEC is not a court of general jurisdiction which can pass upon the validity of an administrative proceeding that has long ago been terminated, and the decision in which has long ago attained finality. The COMELEC is of limited jurisdiction and it would have been becoming modesty on its part to respect the determination of the agency specifically tasked with the implementation of Rep. Act No. 9225.

B.10. The COMELEC ignored evidence of Sen. Poe's honesty and good faith when it ruled that she supposedly intended to mislead or deceive the Philippine electorate, when she stated in her COC for President that she is a "NATURAL BORN FILIPINO CITIZEN."

421 Underscoring supplied 428 Vilando vs. House of Representatives Electoral Tribunal, G.R. Nos. 192147 & 192149, 23 August 2011; Co vs. House of Representatives Electoral Tribunal, G.R. Nos. 92191-92, 30 July 1991, citing Queto vs. Catolico,G.R. Nos. L-25204 & L-25219, 23 January 1970.

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213. In its 23 December 2015 Resolution, the COMELEC En Banc partially reversed the Second Division's 1 December 2015 Resolution, and ruled that Sen. Poe deliberately attempted to deceive and mislead the electorate with respect to her citizenship. In so ruling, the COMELEC accepted hook-line-and­sinker, private respondent's theory that Sen. Poe was guilty of a supposed "pattern of misrepresentation"429 "to falsely represent her status as a Filipino citizen."430 The COMELEC En Banc, adopting private respondent's position, relied on Sen. Poe's alleged ''false" statement in her Petition for Reacquisition of Philippine Citizenship under R.A. No. 9225, filed with the B.I. on 10 July 2006, and the Condominium Certificates of Title ("CCT") and Transfer Certificate of Title ("TCT") in Sen. Poe and her husband's name, for properties they purchased after their family's permanent return to the Philippines in May 2005.

214. COMELEC En Bane's ruling cannot hold water, because it was based on a misappreciation, if not an utter disregard, of the evidence on record. What made the ruling of COMELEC En Banc, even more capricious is that it did not even care to mention, and certainly did not address, Sen. Poe's arguments in her Omnibus Comment/ Opposition to private respondent's Motion for Partial Reconsideration (filed on 14 December 2015, or more than a week before the 23 December 2015 Resolution was promulgated), wherein Sen. Poe painstakingly addressed Private respondent's erroneous and baseless position that Sen. Poe deliberately intended to mislead when she stated in her 2015 COC that she is a "NATURAL­BORN FILIPINO CITIZEN."

215. Sen. Poe's actions, viewed fairly and objectively, are actually compatible with the good faith availment of rights and privileges available to former natural-born Filipino citizens (which Sen. Poe was at the time the acts in question were committed). The COMELEC En Banc itself made room for this explanation when it stated on page 30 of the 23 December 2015 Resolution that "this pattern of behavior may be considered as proof of consistency in believing, perhaps in good faith 1 that she is a Filipino ... "

216. The COMELEC En Banc harped on Sen. Poe's alleged false declaration to the B.I. that she was born to Ronald Allan Kelly Poe, and Jesusa Sonora Poe in her Petition for Reacquisition of Philippine Citizenship under R.A. No. 9225

429 Par. 9, Motion for Partial Reconsideration 430 Id.

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("R.A. 9225 Petition"), executed on July 7, 2006 and filed with the B.I. on July 10, 2006. The COMELEC En Banc noted that Sen. Poe declared in the R.A. 9225 Petition that she was BORN TO Filipino parents when in fact, she was not. The COMELEC En Banc implies that Sen. Poe intentionally indkated t1:1-e n8.1Tle of her adoptive parents in her R.A. 9225 Petition in order to deceive the B.I. into thinking that she was a former natural-born Filipino citizen. This allegation is not only false.1 but also downright uninformed.

"'' ,.

216.1. Firstly, Sen. Poe had no intention to mislead or deceive the B.I. when she stated in her "Petition for Re-acquisition of Philippine citizenship" that she was "born ... to" her adoptive parents, Ronald Allan Kelly Poe and Jesusa Sonora Poe. The law itself recognizes them as her legal parents,431 and Sen. Poe's act of indicating their names in the blank spaces provided for "Father's name" and "Mother's name" was not intended to mislead or to gain favor with the B.I.

216.2. An examination of Sen. Poe's R.A. 9225 Petition432 will readily reveal that it was a standard boiler plate form from the B.I., with several blanks that an applicant for re-acquisition under R.A. No. 9225 simply had to fill in. Sen. Poe had no hand in preparing the form, and she did not think that she could modify its structure .

' . . ·~

216.3. By writing the names of her adopMye parents in the blanks in the form reserved for the names'of .the applicant's parents, Sen. Poe was guided by the p:Qr~~ ~~ ~Father's name" and "Mother's name" appearing noticeably~'' underneath these blanks. When she wrote the names'·' of~'~ her adoptive parents, she acted legally, because they W~fe ··;,

her legal parents. However, she definitely never intended.to convey that she was, in fact, "born ... to" her adopt,iv<e·# par~nts. More importantly, Sen. Poe acted instinctiv~J~, ~ as 1n fact she has known no other parents but them .. , · Sen. Poe simply indicated who she recognized as (and knew

0

to be) her father and mother; a recognition that is·. supported by law,433 and indeed reflected in her Certif~$ ... £

i ·~ :Jt,~;~ .. i'i 431 Sec. 16, R.A. No. 8552 ("Domestic Adoption Act of 1998") .. ~·

. 43'2 E h'b't "20" ., " :·· / x 1 1 }i~~··i .. , .

: ;43~ Under the law, among the effects of adoption are: (a) to sever all legal ties be~:N~g~:.:; .·· ,-gtological parent(s) and the adoptee; and (b) to deem the adoptee as a legitimate ~1.?il'!.!'~~~::

, 11\~\ iihe adopters. (See In re Lim, G.R. Nos. 168992-93, 21 May 2009). Even the law:aj ri<ijt-'s~~· l ·· : that tl::i,e adoptive parents, for all intents and purposes, be recognized as the birth' ·ms t

:·pf a:n !doptee, as it requires the local civil registrar to "issue a certificate of birth ..... . .~i~'1.:' · ~~hall not bear any notation that it is a new or amended certificate and which sha\hi~ow,~ · ..

·~·afuong others, the following: registry number, date of registration, name of child, sex, liaqe ,'of birth! place of birth, name and citizenship of adoptive mother and father, and)he date;

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of Live Birth from the National Statistics Office ("NSO", now "Philippine Statistics Authority or "PSA") itself, which reflects Ronald Allan Kelly Poe and Jesusa Sonora Poe as her "father" and "mother". Although Sen. Poe did not submit her NSO-authenticated birth certificate in support of her R.A. 9225 Petition,434 such birth certificate, regularly issued to her by a government agency in May 2006 or prior to executing and filing her R.A. 9225 Petition, nevertheless strongly supports Sen. Poe's good faith, and strongly

. . militates against the insinuation that Sen. Poe intentionally misrepresented the identity of her known parents.

216.4. As importantly, in the R.A. 9225 Petition, the word "to" does not immediately follow after the word "born" so as to leave no doubt in the mind of the applicant (Sen. Poe) that she must indicate the names of her biological parents (and no other). The word "born" is followed by a space for the "date of birth," then by a space for the "place of birth," and then by the word "to" (which happens to appear on the next line immediately before the names of the applicant's parents), such that the whole sentence reads "I am a former natural-born Philippine citizen, born on (date of birth) Sep. 3, 1968 at (place of birth) Iloilo City to (Father's name) Ronald Allan Kelly Poe, a (Father's citizenship) Filipino citizen and (Mother's name) Jesusa Sonora Poe, a (Mother's citizenship) Filipino citizen[.]"

216.5. Secondly, Sen. Poe's declaration as to the identity of her parents did not deceive or mislead the B.I. Under R.A. No. 9225 and B.I. Memorandum Circular No. AFF-05-002, Sen. Poe was not required to prove that she was in fact born to Filipino parents, or even that she used to be a natural-born citizen of the Philippines. Sen. Poe's natural-born Filipino citizenship was presumed from her "proof' of Philippine citizenship, i.e., her "Old Philippine

and place of their marriage, when applicable." Section 16, A.M. No. 02-06-02-SC, or the New Rule on Adoption, in relation to Section 14 of R.A. No. 8552 or the Domestic Adoption Act of 1998. Section 14 of R.A. No. 8552, which was already in force when Sen. Poe's new birth certificate was issued on 4 May 2006, provides:

Section 14. Civil Registry Record. - An amended certificate of birth shall be issued by the Civil Registry, as required by the Rules of Court, attesting to the fact that the adoptee is the child of the adopter(s) by being registered with his/her surname. The original certificate of birth shall be stamped "cancelled" with the annotation of the issuance of an amended birth certificate in its place and shall be sealed in the civil registry records. The new birth certificate to be issued to the adoptee shall not bear any notation that it is an amended issue. (underscoring supplied)

434 Sen. Poe opted to submit, instead, her old Philippine passport, as allowed by B.I. Memorandum Circular No. AFF 05-02. (See Par. 1.32.1, Sen. Poe's Verified Answer.)

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Passport." On this point, Section 6 of B.I. Memorandum Circular No. AFF-05-002 provides:

Section 6. Proof as natural-born citizen of the Philippines.-

A former natural-born citizen of the Philippines shall enjoy the presumption that he/she was a natural-born Filipino, Provided, that proof of Philippine citizenship i.s submitted. In determining Philippine citizenship, a copy of at least one of the following shall be submitted, the original

· of which shall be presented and appropriately marked by the evaluating officer "original seen and verified".

1. Philippine Birth Certificate; 2. Old Philippine Passport; 3. Voter's affidavit or voter's identification card; 4. Marriage contract indicating the Philippine

citizenship of the applicant; and 5. Such other document that would show that the

applicant is a former natural-born citizen of the Philippines as may be acceptable to the evaluating officer.

In all cases, the evaluating officer may require the submission of additional documents if there is reasonable ground to believe that the applicant is not a former natural-born Filipino.435 "

216.6. The B.I. stated correctly that Sen. Poe was born of Filipino parents because she was a holder of a Philippine passport and there was no evidence whatsoever that she was born of foreigners. She was therefore presumed to be natural born. Tellingly, the Memorandum recommending approval of Sen. Poe's R.A. 9225 Petition, prepared by Mr. Manuel Ferdinand C. Arbas for then B.I. Commissioner Alipio F. Fernandez, Jr., found that she "was a former Philippine citizen, who is presumed to be a natural born PhilipJ?ine citizen ... and has taken her oath of allegiance to the Republic of the Philippines" on the basis of the following documents only:

a. Petitioner's old Philippine passport (No. DD 156616), showing that she was born on 03 September 1968 at Iloilo City, Philippines;

b. Petitioner's certificate of naturalization issued by the United States of America and issued [sic] American

435 Underscoring and emphasis supplied

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Passport No. 017037793 issued on 19 December 2001 at USA; and

c. Petitioner's oath of allegiance, pursuant to R.A. No. 9225, dated 07 July 2006, thereby deemed [sic] to have re-acquired his [sic] Philippine citizenship. 436

216.7. Sen. Poe stresses, as she did earlier, that this is not the proper venue to assail the grant by the B.I. of her Petition for re-acquisition of natural-born citizenship under R.A. No. 9225, or to determine whether the B.I. was indeed misled by the contents of Sen. Poe's R.A. 9225 Petition. Nevertheless, Sen. Poe maintains the validity of her re-acquisition of citizenship under R.A. 9225, for at the end of the day, what was material to her application under R.A. No. 9225 and B.I. Memorandum Circular No. AFF-05-002 was that she was, in fact, a former natural-born Filipino. As discussed in earlier arguments, she was.

21 7. The COMELEC En Banc also ascribes to Sen. Poe a deliberate intention to misrepresent her Filipino citizenship on the basis of CCT Nos. 11985-R (for Unit 7F in One Wilson Place, San Juan City) and 11986-R (for a corresponding parking slot in the same condominium project) and TCT No. N-290260 (for a parcel of land in Brgy. Murphy, Ugong Norte, Quezon City), which were in the name of "Spouses Teodoro Misael Daniel V. Llamanzares and Mary Grace P. Llamanzare~ both of legal age, •

,·' .. Filipinos", entered on February 9, 2006 and June 1, 2006, p1j_or .·,.;. to Sen. Poe's reacquisition of her Philippine citizenship upon ,t~ing the Oath of Allegiance to the Republic437 in July. 2006.

t ··!fr ~ '·' ' . .; . . 1'.

· ·~e COMELEC En Banc accepted private respondent's claim tl}ar:t ~ ::th:ese~',documents show a "pattern of misrepresentation indicaf;,\Te,.;-'7

~)

• • ,, ,ifi·c of a dehberate intent to falsely represent [Sen. Poe's] status as. a 'tit~~

' "1

Filipi.no citizen."439 ~~· tt

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*

; :"i'· , '

21 7 .1. Firstly, these three certificates of title w~fe4 :

obviously issued by the Registrars of Deeds of San J4an· ' ·i .. , City and Quezon City and, therefore, clearly do no't constitute Sen. Poe's personal representations about her, citizenship. They were not documents which Sen. Pqe·~.·~

''\."'if"~-.··· ~·

prepared, such that the COMELEC En Banc may now.J~.~~f them as evidence of a supposed act which proves a ~sp~9~~':t intent or knowledge, identity, plan, system, scheme,,i:ht

1

••

'~~

i ,436 A cbpy of this Memorandum dated July 17, 2006 is attached as Annex "A" orseo:. · q"·~lfiJ:mibus Comment/Opp?sition filed. in this ca~e on .14 December 2015 (Annex "P",.h,~:~~i' · \; Pars. 6 (b) to (d), Motion for Partial Reconsideration ' · · · . '439 Par°',9, Motion for Partial Reconsideration ·

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custom or usage, and the like" on the part of the Respondent. 440

217.2. Secondly, the supposed "misrepresentation" in the titles (and there is none, because the CCTs and TCTs do not constitute Sen. Poe's personal representations about her citizenship) is irrelevant in this proceeding and incompetent for the purpose that the COMELEC En Banc . ' now suggests, as what is in question here is a supposed misrepresentation committed by Sen. Poe in accomplishing her 2015 COC. Section 34 of Rule 130 of the Rules of Court, which private respondent cites, actually teaches the reverse: evidence that tends to show that what a person has done at one time is not probative of the contention that he has done a similar act at another time. In other words, proof of a past "misrepresentation" (assuming there was, and there is none here proven) is not admissible to prove that a person committed another "misrepresentation" at present. This is especially true in Sen. Poe's case. If documents executed before she reacquired her Philippine citizenship on 7 July 2006 were false for that reason, how can they show a pattern of falsity of a COC which concededly was executed after she reacquired her citizenship (or when she was already unquestionably a Filipino)? In the proceeding a quo, private respondent did not even off er these pieces of evidence f OF the purpose of an alleged pattern drawn from previous conduct. She cannot now unfairly be allowed to use Sen. Poe's own evidence­offered for the purpose of proving her actual residence in the Philippines since May 2005-to violate the rule on res inter alias acta and force Sen. Poe to meet allegations that are not even mentioned in the petition a quo.

217 .3. It must be emphasized that a former natural born Filipino like Sen. Poe is allowed to own land pursuant to Section 8, Article XII of the 1987 Constitution,44 1 in relation to the Foreign Investments Act of 1991 (R.A. 7042)442 and Batas Pambansa Blg. No. 185.443

440 Par. 9, Motion for Partial Reconsideration. See also, sec. 34, Rule 130, Rules of Court 441 Section 8. Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law. 442 SEC. 10. Other Rights of Natural Born Citizen Pursuant to the Provisions of Article XII, Section 8 of the Constitution. - Any natural born citizen who has lost his Philippine citizenship and who has the legal capacity to enter into a contract under Philippine laws may be a transferee of a private land up to a maximum area of five thousand (5,000) square meters in the case of urban land or three (3) hectares in the case of rural land to be used by him for business or other purposes. In the case of married couples, one of them may avail of the privilege herein granted: Provided, That if both shall avail of the same, the total area acquired shall not exceed the maximum herein fixed.

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As for condominium units, aliens are allowed to purchase the same under the provisions of the Condominium Act. 444

Sen. Poe was, at the time the titles were entered, a former natural-born Filipino qualified to purchase said properties. Indeed, she re-acquired her natural-born Filipino citizenship soon thereafter. It must also be mentioned that Sen. Poe's husband (under whose name the properties were jointly registered) is also a Filipino citizen. Hence, it cannot even be said that the alleged "misrepresentations" in these documents were material, in the sense that they allowed respondent to acquire real property which she was prohibited from doing.

217.4. Lastly, the proceeding a quo was not the proper suit to examine the validity of the purchases. The TCTs were issued to prove residence. That was the issue before the COMELEC En Banc. In Mitra vs. Commission on Elections,445 the validity of the lease contract presented by

In the case the transferee already owns urban or rural land for business or other purposes, he shall still be entitled to be a transferee of additional urban or rural land for business or other purposes which when added to those already owned by him shall not exceed the maximum areas herein authorized.

A transferee under this Act may acquire not more than two (2) lots which should be situated in different municipalities or cities anywhere in the Philippines: Provided, That the total land area thereof shall not exceed five thousand (5,000) square meters in the case of urban land or three (3) hectares in the case of rural land for use by him for business or other purposes. A transferee who has already acquired urban 1and shall be disqualified from acquiring rural land and vice versa". (underscoring supplied) 443 Section 1. In implementation of Section fifteen of Article XIV of the Constitution, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private land, for use by him as his residence, subject to the provisions of this Act. Sec. 2. Any natural-born citizen of the Philippines who has lost his Philippine citizenship and who has the legal capacity to enter into a contract under Philippine laws may be a transferee of a private land up to a maximum area of one thousand square meters, in the case of urban land, or one hectare in the case of rural land, to be used by him as his residence. In the case of married couples, one of them may avail of the privilege herein granted; Provided, That if both shall avail of the same, the total area acquired shall not exceed the maximum herein fixed. In case the transferee already owns urban or rural lands for residential purposes, he shall still be entitled to be a transferee of additional urban or rural lands for residential purposes which, when added to those already owned by him, shall not exceed the maximum areas herein authorized. 444 See Section 5 of Republic Act No. 4726 ("The Condominium Act"), which provides:

Sec. 5. Any transfer or conveyance of a unit or an apartment, office or store or other space therein, shall include the transfer or conveyance of the undivided interests in the common areas or, in a proper case, the membership or shareholdings in the condominium corporation: Provided, however, That where the common areas in the condominium project are owned by the owners of separate units as co-owners thereof, no condominium unit therein shall be conveyed or transferred to persons other than Filipino citizens, or corporations at least sixty percent of the capital stock of which belong to Filipino citizens, except in cases of hereditary succession. Where the common areas in a condominium project are held by a corporation, no transfer or conveyance of a unit shall be valid if the concomiilint transfer of the appurtenant membership or stockholding in the corporation will cause the alien interest in such corporation to exceed the limits imposed by existing laws.

445 G.R. No. 191938, 2 July 2010, 622 SCRA 744

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Mitra to prove residence was attacked because the property was on public land which cannot be leased. Dismissing the attack as irrelevant, this Honorable Court said: "The validity of the lease contract, however, is not the issue before us; what concerns us is the question of whether Mitra did indeed enter into an agreement for the lease, or strictly for the use, of the Maligaya Feedmill as his residence (while his house, on the lot he bought, was under construction) and whether he indeed resided there."

218. The foregoing show that instead of showing a "pattern of misrepresentation," the acts imputed against Sen. Poe are instead compatible with good faith exercise of rights and privileges available to former natural-born Filipino citizens (which Sen. Poe was at the time in question).

219. The COMELEC En Banc also held that "jurisprudence" on the issue of a foundling's citizenship is unnecessary, because the language of the 1935 Constitution is "clear" and "unmistakable." As discussed earlier, that stance that foundlings are "clearly" excluded from the article on citizenship in the fundamental law, is simply illogical and contrary to jurisprudence.

220. In the first place, if the nature of citizenship of foundlings is so clear as the COMELEC Ent' Banc posits, why'

, rwould such issue engender the present situation where tw~,;(2)~, independent constitutional bodies made drastically diffat~nt

iJ~ ~ - -,

., ,",~rulings as to the .citizenship o.f Sen. Poe? In ~act, why wo:ikl '!-Qi\ ',~;tissue be the topic of content10us debates since early this ye~'ff'"

with':legal pundits positing differing opinions on the issue? :eve~\ the' various petitioners in the four (4) cases filed against Seri. Poe~~~ befo,re the COMELEC En Banc are not in agreement with res~c\.;~ to her citizenship, with at least two of them447 conceding ·that . ,,,,. ::XF Sen.: Poe is presumed to be a natural-born citizen· notwithstanding her status as a foundling. Following .. 1t!,l~· COMELEC En Bane's logic, they, as well as a host of other_~·' respected legal personalities like former Chief Justice Artemi9 Panganiban, Dean Antonio La Vina, Prof. Elizabeth Angui]jpg~; ,Pangalan, Prof. Katrina Legarda, Justice Mario Guarifia Hf;~;~:

#' . . ., • ~ ,;; ~_j:f·!•; 447 Petitioners Antonio P. Conteras (in SPA No. 15-007 [DC]) and Amado D. Val~~·-(j,~'-~ ' .

ii f':l'o. li,5-139 [DC]) made public statements as to their belief that Sen. Poe's -"~ foundling does not affect her natural-born Filipino citizenship, which is presum

,1 ,Proof'to the contrary is shown. Instead, Petitioner Contreras anchors his Petition ; ~Poe's alleged failure to meet the ten-year residence requirement under the C~ff .. · .. . ,

w.h.~l~:;Pet~t~oner Valdez is of the be.lief ~hat Sen. Poe lost her status as a natur~;~r~~;"" Fihpmo citizen after she was naturalized m the U.S.A. on October 2001. .;, ';: ~;'

.••. , '.'148 In a column published on 10 December 2015 at the Philippine Daily Inquirer~}l:l.S\iG~ ''f;,: tiuarifia joined a roster of prominent legal personalities who maintain that1, pnqer . ,, ~pplicable provisions of the Constitution, state obligations of the Philippiri,es tind~ . ~ ; '; ' ... ~

"-·' '

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among others, were all gr<?s~ly "ignorant" of "simple provisions of the Constitution,''449 for they ought to "know[ ] what a natural­born citizen means" and ought to be as convinced as her that foundlings "do[] not qualify as such."450

221. The COMELEC En Banc clearly ignored the hornbook doctrine that an error as to a difficult question of law may form the basis of good faith. This was the pronouncement of this Honorable Court as early as the 1939 case of Kasilag v. Rodriguez,451 where the Court, quoting Manresa, held:

We do not believe that in real life there are not many cases of good faith founded upon an error of law. When the acquisition appears in a public document, the capacity of the parties has already been passed upon by competent authority, and even established by appeals taken from final judgments and administrative remedies against the qualification of registrars, and the possibility of error is remote under such circumstances; but, unfortunately, private documents and even verbal agreements far exceed public documents in number, and while no one should be ignorant of the law, the truth is that even we who are called upon to know and apply it fall into error not infrequently. However, f! clear, manifest, and truly unexcusable ignorance is one thing, to

; . .

which undoubtedly refers article 2, and another and different thing is possible and excusable error arising from complex legal principles and from the interpretation of conflictiqg doctrines.

But even ignorance of the law may be based upon an error of fact, or better still, ignorance of a fact is possible as to the capacity to transmit and as to the intervention of certain persons, compliance with certain formalities and appreciation of certain acts, and an error of law is possible in the interpretation of doubtful doctrines. (Manresa, Commentaries on the Spanish Civil Code. Volume IV, pp. 100, 101 and 102.)

221.1. As far as Sen. Poe is concerned, she is a natural-born Filipino citizen, a legal position which was upheld by the Senate Electoral Tribunal-the sole judge of her qualifications, including her natural-born citizenship, as a sitting Senator of the Republic. Moreover, Kasilag is authority to the effect that even if this position later turns out to be an "an error of law" based on the "interpretation

international law, and generally accepted principles of international law, a foundling has the right to be deemed natural-born, a presumption which may be applied without violating the principles of natural-born citizenship under the Constitution. A copy of Justice Guarina's article is attached hereto as Annex "T". 449 Par. 21, Motion for Partial Reconsideration (Annex "M" hereof) 450 Id. 451 G.R. No. 46623, 7 December 1939

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of doubtful doctrines", still, such "error" is not incompatible with good faith.

222. The COMELEC En Banc reversed the Seccnd Division's ruling that Sen. Poe had "a well-founded belief that she is a true Filipino" stemming from her being raised in a Filipino household. 452 The COMELEC En Banc ruled that there was no basis for the Second Division to take "judicial notice" of the circumstances surrounding how Sen. Poe was adopted and raised as. a Filipino. The COMELEC En Banc clearly ignored that Sen. Poe's adoption is an admitted fact in the proceeding a quo. It was also a matter of public knowledge since tl~e 1970s, when they publicized their intention to formally adopt Sen. Poe. 453 Sen. Poe's life is an open book, even featured in a primetime weekend drama series,454 that it was whimsical for the COMELEC En Banc to rule that her being raised in the Poe household "is not a matter of public knowledge."

223. Under the circumstances, the Second Division properly took judicial notice of the fact that Sen. Poe was raised in a Filipino household, and indeed, for most of her life as a child until her naturalization in the United States in October 2010, had known no other citizenship but that of the Philippines. The purpose of adoption is precisely to give a chance to a child to be raised in a family environment by the adoptive parents. Since Sen. Poe's adoptive parents are concededly Filipinos, it is logical to assume that Sen. Poe was also raised as a Filipino. Indeed, Sen. Poe's citizenship was never challenged at all until the middle of this year (2015), when she started figuring prominently in pre-election surveys for the people's choice for President.

224. In the final analysis, there is ample evidence on record to show that Sen. Poe had always believed, in good faith, that she is a natural-born Filipino. Therefore, even if she was wrong (and she was not), Sen. Poe did not "deliberately" mislead anyone when she stated in her COC for President that she is a "NATURAL BORN FILIPINO CITIZEN."

224. 1. From her personal knowledge of the material circumstances of her discovery, coupled with her

452 1 December 2015 Resolution, p. 33 453 Attached as Annex "B-series" of Annex "P" hereof are computer print-out of news articles or reports showing that it is publicly and widely known that Sen. Poe is the daughter of the Spouses Poe, adopted by them from an early age and raised by them as their legiti~ate daughter. 454 Sen. Poe's life story as a foundling adopted and raised by the Poe couple was broadcasted by ABS-CBN Corporation on February 2, 2013 in Maalaala Mo Kaya, its long­running primetime weekend drama program.

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physical appearance, Sen. Poe has reasonable grounds to form a well-founded belief that she was in all likelihood born of Filipino parents who live in Jara, Iloilo, who later abandoned her in a Roman Catholic Cathedral mere hours after she was born. 455 As discussed, Sen. Poe is only 5 ft. 2 inches tall, with brown almond-shaped eyes, a low nasal bridge, straight black hair and an oval-shaped face-all physical features ordinarily associated with Filipinos. She was found, as a new-born baby, in Iloilo City, where in 1968, as at any time, an overwhelming majority of the population were Filipinos. It is not reasonable for Sen. Poe-or indeed, for anybody-to assume that in 1968, a pregnant foreigner (together with her foreigner husband or partner), who just so happened to have predominantly Filipino-like physical features, left her motherland in order to give birth in the Philippines, in an island very far from where the international airport and main port of entry are located, all to abandon such baby in a Roman Catholic Church, presumably because of poverty.

224.2. The reported circumstances of Sen. Poe's birth are consistent with her good faith belief that she is a natural-born Filipino citizen. To repeat, the mere fact that Sen. Poe is a foundling, without more, is not sufficient for a finding that Sen. Poe thereby had the intention of deceiving or misleading the electorate 1nto thinking thae

v~. '· she is a natural-born citizen. · ,;.,

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224.3. Moreover, as discussed in paragraph .i~t ~ hereof (and sub-paragraphs), the Government of . th~4. :,: Republic of the Philippines has, through the B.I. (wfii.c~''0.

granted Sen. Poe's petition for reacquisition of natural-born( ' "''

~ .citizenship under R.A. No. 9225 and issued ~ M,11! Identification Certificate in her favour), the Office ·of the· President (which appointed Sen. Poe MTRCB Chairperson) and the COMELEC En Banc (which accepted her COC~ lo\\ Senator), consistently recognized, and therefore repeatedly· led Sen. Poe to believe, that she is a natural-born Filipi~-. These official government acts certainly did not alert hefl~~; the prospect of being legally "stateless," as >pri'f~4J respondent claims. :: 'l ;' -~~'·:';

~~\t-~·,~~ ·:~:; ~r.~;~ .. 224.4. When Sen. Poe prepared her\:

.. Answer in SET Case No. 001-15456 (which she fi1~<$.~i September 2015 or more than a month before she'·~,

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1 !;;~55 See pars. 4.20 to 4.21, et seq., Sen. Poe's Memorandum with Fonnal Offer oFif,.rA"J~ce·· ·~ · (Annex "J" hereof) ,

· .456 Se~ Annex "7" of Annex "M" hereof '·

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COC for President), she was provided with sound legal bases (in a pleading prepared by her legal counsel) for the proposition that she is a natural-born Filipino. Thereafter, - . ' ' on 17 November 2015, the SET agreed with Sen. Poe and declared her to be a natural-born citizen of the Philippines.

I

The SET Decision was affirmed in a Resolution dated 3 December 2015 and it became final and executory on the same date.

225. Finally, the Second Division of the COMELEC initially ruled that "the evidence is not conclusive that Sen. Poe deliberately attempted to mislead, misinform or hide a fact from the electorate when she declared in her subject COC that she is a natural-born Filipino citizen." Although Commissioners Arthur D. Lim and Sheriff M. Abas (members of the Second Division) abandoned this position when the COMELEC En Banc issued its 23 December 2015 Resolution, Commissioner Al A. Parreno (Chairman of the Second Division) maintained (as shown by his hand-written note next to his signature on the last page of the 23 December 2015 Resolution) that "there is no material misrepresentation as to citizenship." In his separate concurring

I

and dissenting opinion, the Chairman of COMELEC, the Hon. Andres D. Bautista, also agreed that Sen. Poe simply had no intent to deceive the Philippine electorate when she stated in her 2015 COC that she is a natural-born Filipino. Since Commissioner Christian Robert S. Lim / abstained from COMELEC En Banc ruling, there were only four Commissioners (namely: Commissioners Arthur Lim, Sheriff Abas, Rowena Guanzon and Lito Guia) out of the seven who categorically found that Sen. Poe intended to mislead when she claimed in her 2015 COC that she is a natural-born Filipino. The fact that the COMELEC En Banc was essentially divided on this issue further bolsters Sen. Poe's position that she actually acted honestly in accomplishing her 2015 COC.

226. The foregoing facts and circumstances, taken together and viewed fairly and objectively and without whim and caprice, wholly negate any intent on Sen. Poe's part to mislead or deceive the Philippine electorate. They show that, when Sen. Poe accomplisp.ed her COC for President, she had good faith and legal basis for her representation therein that she is a "NATURAL BORN FILIPINO CITIZEN."

227. Therefore, assuming arguendo that the representations in Sen. Poe's COC are "false" (and they are not), they would, at most, be tantamount to honest mistakes on difficult questions of law, but certainly not statements which were meant to "deceive" or "mislead" the electorate. Accordingly,

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the COMELEC En Banc should not have cancelled Sen. Poe's COC on the ground that she had deliberately misrepresented therein that she is a natural-born Filipino citizen. There was simply no evidence, much less substantial evidence, to support that factual conclusion. A conclusion unsupported by proof is an arbitrary conclusion, and therefore reversible by certiorari.

C. THE COMELEC ACTED WITHOUT JURISDICTION WHEN IT GRANTED THE PETITION A QUO, DESPITE THE ABSENCE OF ANY FALSE MATERIAL REPRESENTATION IN SEN. POE'S COC FOR PRESIDENT.

C.1. In the absence of a false material representation in Sen. Poe's COC for President, the petition a quo should have been dismissed outright for being a premature petition for quo warranto which is within the sole and exclusive jurisdiction of the PET. ------------------------------------------ ,.

228. As discussed, the COMELEC lacked legal basis to "deny due course to or cancel" Sen. Poe's COC for President. Yet, it cancelled Sen. Poe's COC anyway, thereby sanctioning a premature attack on her citizenship and residence qualifications for the Presidency. By cancelling Sen. Poe's COC for President (despite that absence of any "false material representation" therein), and before the conduct of the May 9, 2016 elections, the COMELEC effectively passed upon her eligibility for the Presidency. This act constitutes grave abuse of discretion because there is no proceeding to specifically declare the "ineligibility" of a candidate before the election. Fermin vs. COMELEQ457is instructive in this regard.

228.1. In Fermin, the petitioner seeking the disqualification of the candidate cited an earlier version of Section 1 of Rule 25 of the COMELEC Rules which stated that "(a)ny candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law x x x may be disqualified

457 G.R. No. 179695, 18 December 2008

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from continuing as a candidate." The petitioner in Fermin also quoted COMELEC Resolution No. 7800 which stated that a candidate could be "disqualified" under Rule 25 of the COMELEC Rules, among other grounds, "(f)or not being a citizen of the Philippines" or "(f)or lack of residence."

228.2. This Honorable Court ruled that the petitioner could not rely on (the earlier version of) Section 1 of Rule 25 of the COMELEC Rules and on COMELEC Resolution No. 7800, because "they cannot supersede the dissimilar requirements of the law for the filing of a petition for disqualification under Section 68, and a petition for the denial of due course to or cancellation of CoC under Section 78 of the OEC." The High Court cited the separate opinion of Justice Vicente V. Mendoza in Romualdez which noted that the COMELEC could not, through the simple passage of a rule of procedure, create a cause of action or remedy to declare the "ineligibility" of a "candidate" which does not exist in law, to wit:

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25, § 1 the following:

Grounds for disqualification. - Any csmdidate who does not possess all the qualifications of a candidate ·· ''-' . as provided for by the Constitution or by existing law

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or who commits any act declared by law to be . M

grounds for disqualification may be disqualified from continuing as a candidate. "'" ·<

The lack of provision for declaring the ineligibility of ,i

candidates, however, cannot be supplied by a mere rul~1,:,.

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Such an act is equivalent to the creation of a cause of action ·~

which is a substantive matter which the COMELEC, in the'. .. exercise of its rule-making power under Art. IX, A, §6 of the; " -r,,.

Constitution, cannot do.458 It is noteworthy that the Constitution withholds from the COMELEC even the power to. ''· decide cases involving the right to vote, which essential .. 1.Y:.·,

'· ,If,

involves an inquiry into qualifications based on age, residern;e;.{ and citizenship of voters. [Art. IX, C, §2(3)] ··. o: ~;, " ·

The assimilation in Rule 25 of the COMELEC rules grounds for ineligibility into grounds for disqualificatioQc contrary to the evident intention of the law. For not only· '1

their grounds but also in their consequences are proceediry~.: •!t7!' ,.

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for "disqualification" different from those for a declaration of "ineligibility." "Disqualification" proceedings, as already stated, are based on grounds specified in §12 and §68 of the Omnibus Election Code and in §40 of the Local Government Code and are for the purpose of barring an individual from becoming a candidate or from continuing as a candidate for public office. In a word, their purpose is to eliminate a candidate from the race either from the start or during its progress. "Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for holding public office and the purpose of the proceedings for declaration of ineligibility is to remove the incumbent from office.459

229. In the words of Justice Vicente V. Mendoza, "the purpose of the proceedings for declaration of ineligibility is to remove the incumbent from office." A petition which seeks to declare "ineligibility" or "lack of qualifications" should therefore be filed against an "incumbent," by way of a petition for quo warranto. In the case of the President, such a quo warranto proceeding must be filed with the PET "within ten days after the proclamation of the winner," pursuant to Rule 16 of A.M. No. 10-, 4-29-SC, otherwise known as "The 2010 Rules of the Presidential Electoral Tribunal," which states:

Rule 16. Quo warranto. - A Vyrified for quo warranto contesting the election of the President or Vice -President on the ground of ineligibility or disloyalty to the Republic of the Philippines may filed by any registered voter who has voted in the election concerned within ten days after the proclamation of the winner. 460

230. In the absence of a "false material representation" in her COC for President, the petition a quo was reduced to nothing but an assault on Sen. Poe's eligibility for the Presidency. The petition a quo was in essence a petition for quo warranto. Since the petition a quo is fundamentally one for quo warranto, it is obviously premature, because no elections have been held yet and Sen. Poe has not been elected or "proclaimed" "winner." Moreover, in the event that Sen. Poe is elected and proclaimed President, private respondent would have to file a petition with the PET (which is the "sole judge" of all contests relating to the "qualifications of the President").461

459 Bold-face font in the original 460 Underscoring supplied 461 Rule 13, A.M. No. 10-4-29-SC; Section 4, Article VII, 1987 Constitution

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231. All told, in ruling on the petition a quo, despite the absence of any "false material representation" in Sen. Poe's COC for President, the COMELEC acted with grave abuse of discretion amounting to lack or exsess of jurisdiction.

C.2. In the absence of a false material representation in Sen. Poe's COC for President, the cancellation thereof effectively deprives the Filipino people of their sovereign prerogative to decide a purely political question, that is-who will be the 16th President of the Republic of the Philippines? ------------------------------------------

232. A political question is defined as a question "which under the Constitution (is) to be decided by the people in their sovereign capacity."462 The choice of elective public officials is granted exclusively to the Filipino people through the right of suffrage.463 Under the Constitution, the President of the Republic of the Philippines "shall be elected by a direct vote of the People."464 Therefore, the issue of who should (as opposed to who may) be elected President is a political 19uestion which is clearly beyond the jurisdiction of the COMELEC.

233. As discussed, the petition a quo lacks a cause of action under Section 78 of the OEC. It was likewise a premature petition for quo warranto which can be filed only with the PET, and only if Sen. Poe is proclaimed President. Moreover, the DOJ, and not the COMELEC, had primary jurisdiction to rule on the legality of Sen. Poe's reacquisition of natural-born Philippine citizenship. Nevertheless, by cancelling Sen. Poe's COC for President, the COMELEC effectively declared that Sen. Poe should not even be given a chance to secure the mandate of the Filipino people.

234. If the assailed Resolutions are not annulled or set aside on the ground of grave abuse of discretion, the COMELEC will be allowed to deprive the Filipino people of their sovereign right to decide the most critical question in a democracy-Is Sen. Poe the popular choice of the Philippine electorate? Should she serve as the 16th President of the Republic of the Philippines?

462 Javellana vs. Executive Secretary, G.R. Nos. L-36142, etc., 31 March 1973 463 Article V, 1987 Constiution 464 Section 4, Article VII, 1987 Constitution

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This is obviously UQ1 a justiciable question, but a purely political one, which is solely within the province of the Filipino people to decide (and not the COMELEC). In the words of former Chief Justice Reynato Puna in Tecson:465

Whether respondent Fernando Poe, Jr. is qualified to run for President involves a constitutional issue but its political tone is no less dominant. The Court is split down the middle on the citizenship of respondent Poe, an issue of first impression made more difficult by the interplay of national and international law. Given the indecisiveness of the votes of the members of this Court, the better policy approach is to let the people decide who will be the next President. F~r on political gue~tions, this Court may err but the sovereign people will not. To be sure, the Constitution did not grant to the unelected members of this Court the right to

0

elect in behalf of the people. 466

VII. URGENT APPLICATION FOR AN EX PARTE

TEMPORARY RESTRAINING ORDER, STATUS QUO ANTE ORDER,

AND/OR WRIT OF PRELIMINARY INJUCTION

235. Petitioner is entitled to the relief sought and the whole or part of such relief is to enjoin the COME~,EC from enforcing

.'., and implementing its assailed Resolutions. The gross and .. J>atent errors, constituting grave abuse of discretion amounting"t~ lack

· , 9f jurisdiction, if not outright absence of jurisdicti~n, : a:re '>, ~. ' . t . : ~f

'~!~obvious. . ..... ,~·~ /11,,, ' '\~: · ..

236. There is extreme urgency for the issuance of '!a: terµporary restraining order, status quo ante order, or writ .. of

r ii preliminary injunction in this case. In fact, not gr~tlng immediate injunctive relief will render this Petition moot and academic, and unjustly deprive over fifty (50) million Filipino

. voters a valid choice for the highest office of the land. ·Tb.is violates not only Petitioner's right to run for public offic~, p:t;it constitutes perhaps the gravest wrong to the sovereign pe()ple;r:-\~

/'violation of their basic and illimitable power as sovereign. /i~· ,· ,. ..

·r 237. Under Section 7, Article IX-A of the Constit:ui,

, Q.ecision of the COMELEC "may be brought to the '·, ·~ . Court on certiorari by the aggrieved party within thirty ~.~f

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466 Upderscoring and emphasis supplied

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receipt of a copy thereof. "467 This is the same period given by Section 3, Rule 64 of the Revised Rules on Civil Procedure. However, the COMELEC's own Rules of Procedure (as amended by its Resolution No. 8523), particularly Section 8, Rule 23, states in pertinent part that:

A Decision or Resolution is deemed final and executory if, in case of a Division ruling, no motion for reconsideration is filed within the reglamentary period, or in cases of rulings of the Commission en bane, no restraining order is issued by the Supreme Court within five days from the receipt of the decision or resolution.

238. While it is obvious that the COMELEC should not be allowed to adopt a rule inconsistent with the Constitution or the law,468 the fact remains that the COMELEC may under its own Rules declare the assailed Resolution final and executory. Indeed, the 23 December 2015 Resolution ominously cites Rule 37 that decisions in petitions to deny due course to or to cancel certificates of candidacy "shall become final and executory after the lapse of five days from their promulgation , unless restrained by the Supreme Court." The effect of such precipitate circumstance will be catastrophic.

239. The 2016 elections will be automated and governed by Rep. Act No. 8436, as amended. The ballots to be used thereat are required by law to carry the names of all official candidates. Section 15 thereof states that the ballots must contain the positions to be filled and that "(U)nder each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. xx x"

240. In other words, because the name of candidate must be on the ballot, the voter cannot vote for any person not on the ballot. Conversely, a candidate whose name is not on the ballot because his candidacy is initially invalidated, though subsequently declared legal by the Supreme Court, cannot hope

46 7 See also Section 257 of the Omnibus Election Code: "Decision in the Commission. -The Commission shall decide all election cases brought before it within ninety days from the date of their submission for decision. The decision of the Commission shall become final thirty days after receipt of judgment." 468 See for example, Fermin v. COMELEC, G.R. No. 179695, 18 December 2008, 574 SCRA 782: "A COMELEC rule or resolution cannot supplant or vary the legislative enactments that distinguish the grounds for disqualification from those of ineligibility, and the appropriate proceedings to raise the said grounds. In other words, Rule 25 and COMELEC Resolution No. 7800 cannot supersede the dissimilar requirements of the law for the filing of a petition for disqualification under Section 68, and a petition for the denial of due course to or cancellation of COC under Section 78 of the OEC."

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to garner as single vote because his or her name is not printed on the ballot, as what happened in Philippine Guardians Brotherhood, Inc. v. COMELEC.469

241. The printing of the ballot is imminent and will commence soon. In a document apparently coming from the COMELEC entitled "2016 National and Local Elections Automation Project OVM-VCM Terms of Reference" dated 14 October 2014410, particularly the "2016 National and Local Elections Implementation Calendar"471 attached thereto, printing of ballots will start on "Mon 1 / 10 / 16" and will finish on "Mon 4/25/ 16". However, in some news media reports, the COMELEC has been quoted as saying it will commence on 15 January 2015472. And in some news reports, no definite day is given, only that it will be in January 2016.473 The COMELEC's Chairman has been quoted confirming that printing of ballots will be sometime in January 2016.474 Regardless of when the actual date is, printing of ballots will start very soon making the need for a temporary restraining order urgent.

242. Injunctive relief may be granted if a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. That is the case here. Unless a TRO or status quo ante order is issued and petitioner's name allowed to remain on the ballot, a final judgment in her favor will be empty and

469 G.R. No. 190529, 22 March 2011, 646 SCRA 63 470 Available at: http: //www.comelec.gov.ph/uploads/AboutCOMELEC/BidsandAwards/ProcurementProje cts I BACO 12014 AESO MR I BA CO 12014 AESO MRITB TermsOfReference. pdf 47 1 The entire document is 67 pages. Only the first page, and pp. 62 to 67 where the Implementation Calendar is found, are attached hereto as Annex "U''. 472 See "Two crucial dates for the candidates in the coming elections" available at http: I I www.tempo.com. ph I 2015 / 12 / 09 /two-crucial-dates-for-the-candidates-in -the­coming-elections/ ("The second important Comelec date is January 15, 2016. The Comelec will start printing the official ballots on this date.); also "Cha-cha referendum proposed" available at http:/ /www.mb.com.ph/cha-cha-referendum-proposed/ ("The Comelec has disclosed that it will start printing the ballots on January 15, 2016.") 473 See "Come lee concludes substitution of candidates for 2016 polls", available at http: I / cnnphilippines.com I news/ 2015 I 12 I 10 I Comelec-concludes-deadline-su bstitution­candidates-2016-elections. html ("According to the Comelec, setting a deadline for substitution is imperative for ballot printing which will commence on January next year. There are 1,953 versions of the ballot specific to each legislative district in the country."). See also "Poe on disqualification case: Roxas, Binay behind Comelec ruling", available at http://cebudailynews.inguirer.net/7668 7 I poe-on-disqualification-case-roxas-binay­behind-comelec-ruling ("Comelec is set to finalize the list of candidates by Dec. 15 and is expected to begin printing ballots in January.") 474 See "Comelec en bane tackles Grace, Diogong cases today", available at http: //www~mb.com.ph/comelec-en-banc-tackles-grace-digong-cases-today/ ("We are also studying that. Remember, the printing of the ballots will happen sometime in January," said Bautista.)

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ineffectual because her name will not be on the ballot and the electorate will not be allowed to vote for her. On the other hand, if this petition is ultimately denied after her name is allowed to remain on the ballots, then any votes cast for her will, by express command of Section 9, Rule 23 of the COMELEC Rules as amended, simply be treated as stray votes and not counted.

243. At this time, it should be pointed out that Petitioner has been consistently ranked among the top, if not the top, voters' choice for President in pre-election surveys. Her leads over the perceived second and third placers in several surveys were substantial. Even with the recent entry of a new candidate (Mayor Rodrigo Duterte), Petitioner remains a major contender, in a close second place. Petitioner's candidacy thus should not be precipitately mooted and the millions of Filipino voters disenfranchised by a non-issuance of a TRO or status quo ante order.

244. It must also be pointed out that the respondent Commission, in an aggravated display of its capriciousness which characterized its entire handling of the cases against Petitioner, issued the assailed 23 December 2015 Resolution two (2) days before Christmas, at a time when it was already widely announced that courts-including this Honorable Court-would be closed and will not be able to grant immediate relief. Under its own Rules (the validity of which Petitioner ,does not ·concede),

~· . ,1~. f. the Commission knows that Petitioner will only have five day;.s, or

,;

o.until 28 December 2015, within which to secure an injunctive ,: ,i.T~lief, otherwise it may consider its own Resolution final' aI1~ ·t~trike out Petitioner's name in the list of candidates. If xt·wa~

/ 1 Irtinded at all to act with fairness towards Petitioner and respeet .. towards this Honorable Court, nothing prevented the respohdept:r: C9mmission from releasing such Resolution on the fcill~wi~g: >lWorking day (December 28), knowing full well that Petitionyr would not be able to secure any kind of relief during four C:l') o1Jt of five (5) limited days it prescribes under its Rules. Iqd~yd1 Petitioner could think of no reason behind the COMELEC en' bane's decision to issue its assailed Resolution on December 43,, but to ensure that Petitioner's time will run out before she cart

it>btain from this Honorable Court an injunctive remedy. l~;:n " not be belabored that even the respondent Commissidn· 'fHl . closed, and the all-important task of ballot-printing will·~

.. '1¢·· ·-~' ... ;accomplished anyway, from December 23 to December 2.~

.. 245. Petitioner is willing to post a bond in such ail:5~:!1, ... . l·: tltis Honorable Court may fix, conditioned upon pay~~~·"'

1~.private respondent of all damages she may suffer, if it is,i{iP~ly· .~

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adjudged that petitioner was not entitled to injunctive relief in the first place.

PRAYER

WHEREFORE, it is respectfully prayed that:

1. Immediately upon filing hereof, and before this Petition can be heard on notice, a temporary restraining order/ status quo ante order (followed by a writ of preliminary injunction, if required by the Honorable Court) issue:

(a) restraining the public respondent COMELEC from:

(i) in any manner treating as final and/ or executory, its Resolution dated 1 December 2015, rendered thru its Second Division, and its Resolution dated 23 December 2015 of the Commission en bane, in SPA No. 15-001 (DC) entitled Estrella C. Elamparo, petitioner vs. Mary Grace Natividad Sonora Poe- Llamanzares, respondent, as final and/ or executory; and

(ii) excluding the petitioner from the list of official candidates for president in;- the May 2016 national elections and from the official ballots to be printed and used in the same elections;

(b) Alternatively, directing the COMELEC to include Petitioner in the ballot and official list of candidates if the COMELEC has already ordered her exclusion; and

2. Judgment be ultimately rendered granting the instant Petition, and nullifying the aforementioned 1 December 2015 and 23 December 2015 Resolutions of the COMELEC in SPA No. 15-001 (DC) .

. Other reliefs, just and equitable, are also prayed for.

Makati City for City of Manila, 24 December 2015.

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POBLADOR BAUTISTA & REYES Counsel for Petitioner

Senator Mary Grace Natividad Sonora Poe Llamanzares 5th Floor, SEDCCO I Building

By:

120 Rada corner Legaspi Streets Legaspi Village, Makati City

Tel No. 893-7623/Fax No. 893-7622 E-Mail: central@pbrlaw.com.ph

~ ... J• le. ALEXANDER J. POBLADOR

PTR No. 4777501/Jan. 27, 2015/Makati City Lifetime IBP No. 00066/Makati City

OR No. 345214/March 1, 1993 Roll of Attorneys No. 29440

MCLE Compliance No. V-0009389/July 22, 2015

PTR

S C RISTOPHER C. MENDOZA . 4777518/Jan. 27, 2015/Makati City

o. 979194/Jan. 08, 2015/Makati City Roll of Attorneys No. 56980

CLE Compliance No. IV-0017855/ April 22, 2013

SA RA PT No. 489641 /May , 201 ati City IBP No. 1007077 /April 14, 2015/Zambales

Roll of Attorneys No. 64795 Newly Admitted, M.C.L.E. Governing Board Order

l.S. 2008, July 4, 2008

... Verification and Certification follows

VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING

I, MARY GRACE NATIVIDAD SONORA POE LLAMANZARES, of legal age, Filipino, and with address care of Poblador Bautista & Reyes Law Offices, 5th Floor, SEDCCO I Building, 120 Rada corner Legaspi Streets, Legaspi Village, Makati City, under oath, hereby depose and state:

1. I am the Petitioner in the above-entitled case.

2. I caused the preparation of, and have read, the foregoing Petition for Certiorari, and confirm that the factual allegations therein are true and correct of my own personal knowledge and/ or based on authentic records.

3. I hereby certify that, except for the Petition entitled "Mary Grace Natividad S. Poe-Llamanzares, petitioner, vs. Commission on Elections, Francisco S. Tatad, Antonio P. Contreras, and Amado D. Valdez, respondents," which is a Petition for Certiorari under Rule 64 in relation to Rule 65 of the Rules of Court which I also intend to file with this Honorable Court, I have not commenced any other action or proceeding involving the same issues raised 1in this case in the Supreme Court, Court of Appeals, or any other court, tribunal or agency. Should it come to my knowledge that another similar action or proceeding initiated by or against me has been filed or is pending before the Supreme Court, Court of Appeals, or any other court, tribunal or agency, I hereby undertake to report said fact to thi~ Honorable Court within five (5) days from knowledge thereof.

4. On 17 August 2015, Mr. Rizalito Y. David filed with the Commission on Elections Law Department an Affidavit­Complaint accusing me of having committed an election offense under Section 262, in relation to Section 7 4 of the Omnibus Election Code. On 8 December 2015, Mr. David also filed a Petition for Certiorari with this Honorable Court, docketed as G.R. No. 221538 and entitled "Rizalito Y. David, petitioner, vs. Senate Electoral Tribunal and Mary Grace Poe Llamnazares, respondents." The criminal complaint pending before the COMELEC Law Department, and G.R. No. 221538 before this Honorable Court, also involve the issue of my natural.born Filipino citizenship.

IN WITNESS WHEREOF, I have hereunto set my hand this 24th day of December 2015 at Quezon City, Philippines.

IVIDAD SONORA POE LLAMANZARES Af.fiant

SUBSCRIBED AND SWORN to before me this 24th day of December 2015 at Quezon City, affiant exhibiting to me her Philippine Passport No. EC0588861, valid until 17 March 2019, as competent evidence of her identity.

Doc. No. O~.c(. ; Page No. ~ ; Book No. I ; Series of 2015. ~

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COPY FURNISHED:

COMMISSION ON ELECTIONS Public Respondent Palacio Del Gobernador Gen. Luna St., Intramuros Manila

185

OFFICE OF THE SOLICITOR GENERAL 134 Amorsolo Street Legaspi Village, Makati City

ATTY. ESTRELLA C. ELAMPARO Private Respondent 8th Floor, Pacific Star Building Sen. Gil Puyat Avenue cor. Makati Avenue Makati City

EXPLANATION

Copies of the fore going Petition for Certiorari were by registered mail instead of the preferred mode of personal service due to distance, time and manpower constraints. Pursuant to

, ,$&ction 6 of A.M. No. 11-9-4-SC (Efficient Use of Paper RU18:h copies of the Annexes to this Petition, except Annexes "T" arltii "lf,1 were no longer served on the respondents, all of the~e bei~;.~,, ' ~ai-i o{ the records of the case that are already 1n their ·'

,. ' ';; ' ;[' . ''possession. A copy of the Petition with a full set of Annexes wa§ · ,, , additionally served to the Office of the Solicitor General. · ,

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