file:tecson vs comelec 161434 march 3, 2004 j_ azcuna en banc.htm

SEPARATE OPINION

AZCUNA, J.:

“Present your evidence and don’t be nervous . . . .”

– Alice
in Wonderland

“[This gets] curioser and curioser . . . .“

– Through the Looking Glass

These are petitions that, directly or indirectly, seek to disqualify
a candidate for the Presidency of the land.

Two of the petitions seek a direct action for this purpose, those
of petitioners Tecson, et al., and Velez.  These two petitions fail outright.  The “contest” they rely on is as yet
non-existing, since it refers to a situation when someone has been proclaimed a
winner after the elections and his proclamation is challenged in a
“contest.”  The provision in the
Constitution (Art. VII, Sec. 4, par. 7, Constitution) that says that “the
Supreme Court, sitting en banc, shall be the sole judge of all
contests relating to the election, returns, and qualifications of
the President or Vice-President,” cannot be invoked before the
elections.

The petition of Fornier, on the other hand, took a different
route.  Fornier started by filing a
petition in the Commission on Elections and, having lost there, he now comes to
us for relief.

Precisely what was Fornier’s case in the Comelec?

Fornier sought to disqualify Fernando Poe, Jr. from running for
the Presidency on the ground that he stated in his certificate of candidacy a
material statement that is false. 
What was that?  The statement that
he was a natural-born Filipino.  And what
did the Comelec do?  It first held, in
its First Division, that it had no jurisdiction to rule on the issue, then, en
banc, it held that, in any event, Fernando Poe, Jr. has not been shown to
have deliberately misrepresented his citizenship even assuming that what
he said was false.  It then concluded
that there is no ground to cancel his certificate of candidacy because by “a
material statement that is false” is meant a deliberate falsehood.

Now, Fornier seeks to declare the Comelec en banc decision
as erroneous and/or done with grave abuse of discretion amounting to lack or
excess of jurisdiction.

Fornier argues that the Comelec en banc erred and/or
gravely abused its discretion in that it should have squarely ruled on whether
or not the statement of Poe, Jr. regarding his citizenship is false.  Fornier further argues that the statement is
in fact false so that Poe, Jr. is not qualified to run for President and should
have been so declared and/or should be so declared by us now.

The first question is, do we have power or jurisdiction to review
the Comelec en banc decision?

I say that we do, on two counts: 
First, under the specific provision of the Constitution stating that any
decision, order, or ruling of the Comelec may be brought to us on certiorari
by the aggrieved party within thirty days from receipt of a copy thereof (Art.
IX, A., Sec. 7, Constitution).  And
second, under our power to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government (Art. VIII, Sec. 1,
Constitution).

Addressing the subject at hand, how do we proceed?

First, by recognizing that we can only resolve questions of law
and of jurisdiction, not of facts.

Is the question whether or not Fernando Poe, Jr. made a material
representation that is false in his certificate of candidacy one of law, of
jurisdiction, or of facts?

I submit that it has aspects of all three.  We can resolve only the first and second (law
and jurisdiction) but not the third (factual) aspects.

Accordingly, we shall proceed on the basis principally of three
undisputed facts.  These are:

1.  The fact that Fernando
Poe, Jr. was born on August 20, 1939 (Birth Certificate);

2.  The fact that Fernando
Poe, Sr. and Bessie Kelley (Poe, Jr.’s mother) were married on September 16,
1940 (Marriage Contract); and

3.  The fact that Bessie
Kelley was an American citizen (Admission in the Answer of Poe, Jr.).

I first wanted to refer the case back to the Comelec for
reception of more evidence to cover gaps in the factual premises.  There being no majority to sustain that
course, I have to proceed by seeking to resolve the issues raised on the basis
of the facts available to us now.

From the foregoing facts, Fornier argues that Poe, Jr. is shown
to be an illegitimate child, since he was born before, or outside of, marriage,
and thus, applying a number of our decisions in the past,[1]
he follows the citizenship of his mother. 
Poe, Jr., therefore, was an American citizen at birth.  Thus, he is not a natural-born Filipino, for
the Constitution defines that term to mean one who is so at birth without
having to perform any act to acquire or perfect his citizenship (Art. IV, Sec.
2, Constitution).  Upon this reasoning,
Fornier rests his case, arguing that the Comelec cannot evade this issue as its
goes into the falsity of the statement made in the certificate of candidacy
(which Fornier claims was deliberately made) and, it also goes into the
qualifications of a candidate for President, which the Comelec is empowered to
determine even before the elections.

Is he right?

I submit that he is not.  Fornier’s
case rests on the premise that Fernando Poe, Jr. is an illegitimate child at
birth.

This takes us into the realm of civil law, regarding which we are
thankful for the excellent presentation of amicus curiae Professor Ruben
C. Balane, and under which an illegitimate (natural) child becomes legitimated
by the subsequent marriage of his parents.

It is true that under the Old Civil Code, prevailing when Poe,
Jr. was born, the effects of legitimation retroact only to the time of the
marriage, and not to the time of birth.[2]
However, the New Civil Code, effective on August 30, 1950, made the effects
retroact to the time of the birth of the child.[3]
It is also true that the Old Civil Code required, in addition to the marriage,
an acknowledgment by the parent(s) in the birth certificate, a will or any
public instrument.[4]
Under the New Civil Code, however, this was liberalized so that acknowledgment
can be done also in a statement before a court of record or in any authentic writing.[5]
Furthermore, these new provisions of the law are made expressly applicable to
persons born under the old regime if these are beneficial to them.[6]  And, finally, under the Family Code of 1988,
even the need for acknowledgment has been dropped, and retroactivity is also
provided for, without prejudice to vested rights.[7]

Now, what we are concerned with here are not the civil rights of
the person — whether to support or to succession in the estate.  And, as admitted by Fornier’s counsel during
the oral arguments, violation of vested rights are not presumed but must be
proved, which has not been done here. 
Accordingly, at issue here is simply political status as a citizen, as
ably pointed out by amicus curiae Justice Vicente V. Mendoza.  Therefore, I hold the view that the new
legislations retroact to benefit Poe, Jr., so that he must be deemed
legitimated as of his birth.  Since a
legitimated child has all the rights of a legitimate child (and here, as
stated, we refer only to citizenship), it is clear that, pursuant to the law, not
being illegitimate at birth, Poe, Jr. does not follow the citizenship of his
mother.

As to the point that such legitimation needed an act after birth,
namely, the marriage of the parents, the same would not detract from the
concept of a natural-born citizen.  For
the definition in the Constitution refers to those who are citizens from birth without
having to perform any act to acquire or perfect their citizenship (Art. IV,
Sec. 2, Constitution).  Thus, it speaks
of an act having to be done by the child, to acquire or perfect his
citizenship, and does not cover acts of his parents.

From this it follows that Fornier’s case falls, since he has not
proven that Poe, Jr. was not a Filipino citizen at birth, a point that as
petitioner he has the burden of showing.

For the nonce, this suffices. 
The rest of the questions, fortunately or unfortunately, will have to be
resolved in an election contest, should one become appropriate in the future,
in which the points brilliantly covered by amici curiae Rev. Joaquin G.
Bernas, S.J. and Dean Merlin M. Magallona regarding the determination of the
citizenship of Poe, Jr.’s father, may find application once the pertinent
factual premises shall have been duly presented and established.

I VOTE, THEREFORE, to
DISMISS the petitions of Tecson, et al., and Velez for lack of
jurisdiction, and to DENY the petition of Fornier for lack of merit.