file:tecson vs comelec 161434 march 3, 2004 j_ sandoval-gutier.htm

CONCURRING OPINION

SANDOVAL-GUTIERREZ, J.:

This Court has repeatedly stressed the importance of giving
effect to the sovereign will in order to ensure the survival of our
democracy.  In cases where the
sovereignty of the people is at stake, we must not only be legally right but
also politically correct.  We cannot fail
by making the people succeed.[1]
“In resolving election cases, a dominant consideration is the need to
effectuate the will of the electorate x x x. 
We cannot frustrate this sovereign will on highly arguable technical
considerations.  In case of doubt, we
should lean towards a rule that will give life to the people’s political
judgment.”[2]

I

May this Court exercise
its

“judicial power” to
disqualify a

candidate before the election?

The candidates for President, Gloria Macapagal-Arroyo, Fernando
Poe (or FPJ), Raul Roco, Ping Lacson, and Eddie Villanueva are on the campaign
trail.  But petitioner Fornier would have
this Court pull out FPJ  from the track.

I submit that while the campaign for the Presidency is on, this
Court may not exercise its “judicial power” to disqualify a candidate.  That would definitely wreck the
constitutional right of the people to choose their candidate.  Only after the election is over and a winner
is proclaimed and the result of the election is contested, may this Court
participate and decide the contest.

How is the President elected? 
Only by “direct vote of the people.” He shall not be chosen by the
incumbent President.  He shall not be
elected by Congress nor by the Commission on Elections.  And neither by this Court.  Only by “direct vote of the people.”

While the President is elected by “direct vote of the people,”
they may only vote for one who is a candidate. 
It does not matter whether they believe he would not be the best
President.

Petitioner Fornier would have this Court, in the exercise of its
“judicial power,” intrude into the right of the voters to elect by “direct
vote” the President by removing respondent Fernando Poe, Jr. from among those
whom they may vote for President, thereby constricting or limiting the
“candidates,” and consequently, the
right of the people to vote (or not to vote) for respondent Poe.

The Constitution does not allow such intervention.  Mr. Justice Vicente V. Mendoza, a retired
member of this Court, in his Separate Opinion in Romualdez-Marcos vs. COMELEC,[3]
said, “In my view, the issue in this case is whether the Commission on
Elections has the power to disqualify candidates on the ground that they lack eligibility
for the office to which they seek to be elected.  I think that it has none and that the
qualifications of candidates may be questioned only in the event they are
elected, by filing a petition for quo
warranto or an election protest in the appropriate forum.”

The assailed ruling of the COMELEC dismissing Fornier’s petition
is consistent with the above view.

The impact of a proceeding to disqualify a candidate,
particularly a leading candidate for President, after the electoral process has
started, is shown by the contemporary events. 
The instant cases have agitated the people.  Those who support respondent Poe, and their
number is not miniscule, openly accuse the supporters of President Arroyo as
those behind the effort to disqualify respondent Poe.  From well-publicized reports of the campaign,
his campaign sorties have been welcomed with enthusiasm exceeding those of
President Estrada.  What can not be
ignored is that those who support respondent Poe come principally from the
“masses” – those whose “voices,” albeit an integral part of the sovereign will
of the people, are generally silent and heard only through the ballots.  The intervention by this Court, through the
exercise of its “judicial power” on grounds that are at best highly
disputable,_can not but be viewed as political. 
Indeed, what is worrisome is that the termination of the candidacy of
respondent Poe, who appears to be a leading candidate, will in the long term impair the mandate of the people.

What is at stake is not just the candidacy of respondent Poe or
the right of the “masses” to vote for him. 
Equally at stake is the credibility of this Court.  It should not enter the “political thicket.”
Intrusion into a campaign for President, and worse, in the right of the people
to choose their candidate, is an intrusion into their vested right to elect by
“direct vote” the President.

History will judge whether this Court ought to have declined in
determining if FPJ is a natural born Filipino citizen even before the
presidential election.  I am not certain
whether history will judge kindly.  What
I can foresee is that disqualifying respondent Poe will be viewed as directed
against the “masses,” a situation not allowed by the Constitution.

While this Court, in exercising its judicial power, should not
cater to popular support, the force of its Decisions springs from the faith of
the people reposed in its fairness and integrity.  That faith is not strengthened and respect
and obedience to its Decisions are not enhanced had this Court intruded in the
choice of President by the people.

Let it not be forgotten
that the historic core of our democratic system is political liberty, which is
the right and opportunity to choose those who will lead the governed with their
consent.  This right to choose cannot be
subtly interfered with through the elimination of the electoral choice.  The present bid to disqualify respondent Poe
from the presidential race is a clear attempt to eliminate him as one of the
choices.  This Court should resist such
attempt.  The right to choose is the single factor that controls the ambitions of
those who would impose – through force or stealth – their will on the majority
of citizens.  We should not only
welcome electoral competition, we should cherish it.  Disqualifying a candidate, particularly the
popular one, on the basis of doubtful claims does not result to a genuine, free
and fair election.  It results to violence.  In
some countries, incumbents have manipulated every resource at their disposal to
eliminate electoral choice.  The result
is a frustrated and angry public; a public that has no place to express this
anger because the electoral system is rigged to guarantee the re-election of
the incumbents in office.  We have seen
Edsa I and Edsa II, thus, we know that when democracy operates as intended, an
aroused public can replace those who govern in a manner beyond the parameters
established by public consent.

The Philippines is not alone in her predicament.   Iran is besieged by the same political
crisis.  The Guardian Council, an
unelected hard-line constitutional watchdog, has barred more than 3,000 of the
8,200 candidates in the 290–member parliament. 
State broadcast media controlled by hard-liners said that the candidates
were disqualified because they lack “the necessary legal qualifications.” This
prompted Iran’s largest reformist party, the Islamic Iran Participation Front,
to state: “We consider the
disqualification as national treason and an attempt to transform the Republic
into a despotic establishment. Disqualifications deny the people of their
constitutional right to choose and be chosen…” Thus, threatening to resign,
Iran’s reformist government stressed that, “if
the government feels that it cannot fulfill its responsibilities in protecting
legitimate freedoms, such as defending the rights of the nation for a free and
fair elections, then it does not believe that there is any reason to stay in
power.”

This Court, as the last
guardian of democracy, has the duty to protect the right of our nation to a
genuine, free and fair election.  Article
25 of the International Covenant on Civil and Political Rights guarantees that
“every citizen shall have the right and
the opportunity… to vote and be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors.” There can be
no genuine, free and fair election when the people’s right to choose is
manipulated or eliminated.  Political
liberty cannot be subverted to the personal ambitions of some politicians.  This Court should take an active stance in
crushing the devious ploy, for in the last analysis, its handling of the
electoral issues is the fundamental measure of the present government’s
credibility.

When the people vote on May 10 and cast their ballots for
President, they will be exercising a sovereign right.  They may vote for respondent Poe, or they may
not.  When they vote, they will consider
a myriad of issues, some relevant, others trivial, including the eligibility of
the candidates, their qualities of leadership, their honesty and sincerity,
perhaps including their legitimacy.  That
is their prerogative.  After the election,
and only after, and that is what the Constitution mandates – the election of
whoever is proclaimed winner may be challenged in an election contest or a
petition for quo warranto.  Where the challenge is because of
ineligibility, he will be ousted only if this Court “exerts utmost effort to
resolve the issue in a manner that would give effect to the will of the
majority, for it is merely sound public policy to cause elective offices to be
filled by those who are the choice of the majority.”[4]

II

Whether the COMELEC
committed

grave abuse of
discretion in dismissing

Fornier’s petition for
disqualification

against respondent.

To begin with, in Salcedo
II vs. Commission on Elections,[5]
we emphasized that there is only one
instance where a petition questioning the qualifications of a registered
candidate to run for the office for which his certificate of candidacy was
filed can be raised before election.  That only instance is when the petition is based on Section 78 of the Omnibus Election
Code, quoted as follows:

“Section 78. Petition to deny
due course or to cancel a certificate of candidacy. – A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed
by any person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false.  The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later than
fifteen days before the election.’

As stated in the above provisions, in order to justify the cancellation
of the certificate of candidacy, it is essential that the false representation
mentioned therein pertains to a material matter for the sanction imposed by
this provision would affect the substantive rights of a candidate – the right
to run for the elective post for which he filed the certificate of candidacy.[6]

Aside from the requirement of materiality, a false representation
under Section 78 must consist of a “deliberate attempt to mislead, misinform,
or hide a fact which would otherwise render a candidate ineligible.”[7]
In other words, it must be made with an intention to deceive the electorate as
to one’s qualifications for public office.[8]

The Fornier petition before this Court is one brought under Rule
65 of the 1997 Rules of Civil Procedure, as amended.  What is to be determined, therefore, is
whether the COMELEC acted with “grave abuse of discretion” in issuing its
assailed Resolutions of January 23, 2004 and February 6, 2004 holding that
“considering that the evidence presented by petitioner is not substantial, we
declare that respondent did not commit any material misrepresentation when he
stated in his Certificate of Candidacy that he is natural born Filipino
citizen.”

Petitioner Fornier’s basic allegations in his petition filed with
the COMELEC are:

1. Respondent Poe committed false material representation by
stating in his Certificate of Candidacy that he is a natural born Filipino
citizen; and

2. He knowingly made such false representation.

According to petitioner, respondent Poe is in fact “not a citizen
of the Philippines, much more a natural born Filipino citizen, considering that
both his parents are aliens.” Annexed to the petition as its principal basis is
a copy of a “Marriage Contract” dated July 5, 1936 between “Allan Fernando Poe”
and “Paulita Gomez.” Since the “Marriage Contract” states the “nationality” of
respondent’s father, Allan Fernando Poe, and his grandfather, Lorenzo Pou, as
“Español,” respondent Poe is also “Español.” Even assuming that Allan Fernando
Poe is a Filipino, still, respondent Poe could not have validly acquired
Filipino citizenship from his father because the marriage of his parents is
void.  Respondent Poe’s father married
Paulita Gomez on July 5, 1936, which marriage was subsisting at the time of the
marriage of respondent Poe’s father to his mother, Bessie Kelley, an American
citizen.  Fornier then concluded that
respondent Poe, being illegitimate, follows the citizenship of his mother.

Devastating to the Fornier petition is that the “Contract of
Marriage” between “Allan Fernando Poe” and “Paulita Gomez” (Annex “C”,
Petition; Exhibits “B”, “B-1”, “B-2”) and the “Birth Certificate” of Allan
Fernando Poe (Exhibit “C”), appear to have been falsified by Director Ricardo
L. Manapat of the National Archives.  The
records of the hearing of the Senate Committee on “Constitutional Amendments,
and Revision of Codes and Laws” held on January 21, 2004 and February 2, 2004,
which incidentally were shown live on television and aired over the radio, show
in shocking detail how the falsification was so brazenly done.  The Court may not gloss over these casually.  The details are spread in the record of these
proceedings.  Given this pathetic state
of petitioner’s evidence, we cannot conclude that he has proved his allegations
by sufficient evidence.  Without doubt,
the COMELEC, in dismissing Fornier’s petition for lack of substantial evidence,
did not gravely abuse its discretion.

It bears stressing that petitioner has the burden of establishing
his allegations of respondent’s material misrepresentation in his Certificate
of Candidacy.

Ei incumbit probation qui
dicit, non que negat, otherwise stated, “he who asserts, not he who denies,
must prove.”[9]
What I observe from his allegations is a misconception as to whom the burden of
proof lies.

Section 1, Rule 131 of the Revised Rules on Evidence provides:

“Sec. 1. Burden of proof. – Burden
of proof is the duty of a party to present evidence on the facts in issue
necessary to establish his claim x x x by the amount of evidence required by
law.”

In Borlongan vs. Madrideo,[10]
we held:

“The burden of proof x x x is on the plaintiff who is the party
asserting the affirmative of an issue. 
He has the burden of presenting evidence required to obtain a favorable judgment,
and he, having the burden of proof, will be defeated if no evidence were given
on either side.”

Obviously, petitioner Fornier failed to prove his
allegations.  The documentary evidence he
presented in support of his allegation that respondent Poe made a false
material representation that he is a natural born Filipino citizen are
falsified.  Likewise, Fornier’s
allegation that respondent Poe fully knew such false representation, has not
been substantiated.  Indeed, his
allegations remain as mere allegations. 
Hence, the COMELEC correctly dismissed his petition.

The only way petitioner can be entitled to a writ of certiorari from this Court is to show
that the COMELEC committed grave abuse of discretion.  For this Court to issue the extraordinary writ
of certiorari, the tribunal or administrative body must have issued the
assailed decision, order or resolution in a capricious and despotic manner.[11]
Grave abuse of discretion means “such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or, in other words where the
power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined
or to act at all in contemplation of law.”[12]

We cannot discern from the records any indication that the
COMELEC gravely abused its discretion in dismissing Fornier’s petition.  Indeed, his availment of the extraordinary
writ of certiorari is grossly misplaced.

III

Whether the respondent
committed a

material and false
representation when

he declared in his
Certificate of

Candidacy that he is a
natural born

Filipino citizen.

At any rate, in order to show that respondent Poe did not commit
a false material representation in his certificate of candidacy, I believe that
this Court should decide whether respondent Poe is a natural born Filipino
citizen on the basis of the evidence at hand.

The COMELEC’s First Division held that respondent Poe did not
commit any material misrepresentation when he stated in his Certificate of
Candidacy that he is a natural born Filipino citizen because his father, Allan
Fernando Poe, is a Filipino citizen; and that by virtue of the principle of jus sanguinis, he is also a Filipino
citizen under the 1935 Constitution.

In Valles vs. Commission on Eelections,[13]
we emphasized that “the Philippine law on citizenship adheres to the principle
of jus sanguinis.  Thereunder, a child follows the nationality
or citizenship of the parents regardless of the place of his birth.”

Respondent’s Certificate of Birth reveals that he was born on August 20, 1939 at St. Luke’s
Hospital, Magdalena Street, Manila to
Allan Fernando Poe, a Filipino citizen,
and Bessie Kelley, an American citizen. 
This was almost four (4) years
after the 1935 Constitution took effect. 
Under Section 3, Article IV, the following are citizens of the
Philippines:

“(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 fathers 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.”

Pursuant to the above provision, the law in force at the time of
his birth, respondent Poe is a citizen of the Philippines, having been born to
a Filipino father.

That respondent Poe is the son of Allan Fernando Poe is admitted
by the parties.

According to petitioner, Allan Fernando Poe is a citizen of Spain
as shown by the “Marriage Contract” between him and Paulita Gomez stating that
his parents, Lorenzo Pou and Marta Reyes, are citizens of Spain.  It follows that Allan Fernando Poe is also a
Spanish citizen.  And clearly,
“respondent Poe could not have possibly acquired Filipino citizenship from his
father, Allan Fernando Poe, since the latter is a Spanish citizen.”

Suffice it to state that this allegation must fail because the
“Marriage Contract” between Allan Fernando Poe and Paulita Gomez has been shown
to be falsified.

It bears reiterating that petitioner Fornier does not dispute
that Allan Fernando Poe is the father of respondent Poe.  Allan’s father is Lorenzo Pou, a Spanish
subject and an inhabitant of the Philippines on April 11, 1899 when Spain ceded
the Philippines to the United States by virtue of the Treaty of Paris.  Specifically, this Treaty provides that:

“Spanish subjects x x x may remain in such territory x x x.  In case they remain in the territory they may
preserve their allegiance to the Crown of Spain by making, before a court of
record, within a year from the date of the exchange of ratifications of the
treaty, a declaration of their decision to preserve such allegiance; in default
of which declaration they shall be held to have renounced it and to have
adopted the nationality of the territory in which they may reside.”

Relative to this Treaty, Section 4 of the Philippine Bill of 1902
provides:

“That all inhabitants of the Philippine Islands continuing to
reside therein who were Spanish subjects on the leventh day of April, eighteen
hundred and ninety-nine, and then resided to the Philippine Islands, and their
children born subsequent thereto shall be deemed and held to be citizens of the
Philippines and such entitled to the protection of the United States, except
such as shall have elected to preserve their allegiance to the Crown of Spain
in accordance with the provisions of the treaty of peace between the United
States and Spain signed at Paris December tenth, eighteen hundred and
ninety-eight.”

Likewise, the Jones Law provides as follows:

“That all inhabitants of the Philippine Islands who were Spanish
subjects on the eleventh day of April, eighteen hundred and ninety-nine, and
then resided in said Islands, and their children born subsequent thereto, shall
be deemed and held to be citizens of the Philippine Islands, except such as
shall have elected to preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of peace between the United States
and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight,
and except such others as have since become citizens of some other country: x x
x.”

We held in the case of In
Re Bosque:[14]

“With respect to Spanish residents, it was agreed to
accord them the right of electing to
leave the country, thus freeing themselves of subjection to the new
sovereign, or to continue to reside in
the territory, in which case the expiration of the term of eighteen months
(April 11, 1899 to October 1900) without their making an express declaration of
intention to retain their Spanish nationality resulted in the loss of the
latter, such persons thereby becoming subjects of the new sovereign in the
same manner as the natives of these Islands.”

Likewise, in Palanca vs.
Republic,[15]
we ruled:

“A person, who was an inhabitant of the Philippine Islands and a
naturalized subject of Spain on the 11^th day of April 1899, is a
Filipino citizen, by virtue of the provisions of Sec. 4 of the Act of Congress
on 1 July 1902 and of Sec. 2 of the Act of Congress of 29 August 1916.  Under the Constitution, he is also a citizen
of the Philippines because he was such at the time of the adoption of the
Constitution.”

Under the above provisions and jurisprudence, Lorenzo Pou was a
citizen of the Philippines.  In turn, his
son Allan Fernando Poe, followed his (Lorenzo’s) citizenship as a
Filipino.  Section 3, Article IV of the
1935 Constitution states that “those
whose fathers are citizens of the Philippines” are Filipino citizens.  We thus follow the principle of jus sanguinis, the rule of blood
relationship.  Consequently, since Allan
Fernando Poe is a Filipino citizen, it follows that respondent Poe is also a Filipino
citizen.  That he is a natural born
Filipino citizen is beyond question.  The
following provisions are in point:

“SECTION 4.  A natural born
citizen is one who is a citizen of the Philippines from birth without having to
perform any act to acquire or perfect his Philippine citizenship.” (Article III
of the 1973 Constitution)

“SECTION 2.  Natural born
citizens are those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship. x
x x.” (Article IV of the 1987 Constitution).

Respondent Poe, being a Filipino citizen from birth without
having to perform any act to acquire or perfect his Philippine citizenship is,
therefore, a natural born Filipino citizen.

Still, petitioner insists that even if respondent Poe’s father is
a Filipino citizen, he (respondent) is not a natural born Filipino citizen
because he is an illegitimate child whose citizenship follows that of his
mother, Bessie Kelley, an American citizen.

On this point, the following amici
curiae have a common opinion – the illegitimacy of respondent Poe is
inconsequential in determining whether he is a natural born Filipino citizen.

Mr. Justice Vicente V. Mendoza said:

“For there is really no difference in principle between, on
the one hand, the illegitimate child of a Filipino mother and an alien father,
and, on the other hand, the illegitimate child of a Filipino father and an
alien mother.   As long as the child’s filiation to his supposed father is established,
it does not matter whether he is legitimate or an illegitimate child.”

Rev. Fr. Joaquin G. Bernas, former Constitutional Commissioner,
advanced the following view:

“In conclusion, therefore,
when the Constitution says: ‘The following are citizens of the Philippines: …
‘Those whose fathers are citizens of the Philippines,’ the Constitution means
just that without invidious distinction. 
Ubi lex non distinguit  nec nos distinguere debemus, especially
if the distinction has no textual foundation in the Constitution, serves no
state interest, and even imposes an injustice on an innocent child.   What flow from legitimacy are civil rights;
citizenship is a political right which flows not from legitimacy but from
paternity.  And paternity begins when the
ovum is fertilized nine months before birth and not upon marriage or
legitimation.”

Dean Merlin M. Magallona’s theory is reproduced as follows:

“The transmissive essence of citizenship here is clearly the core
principle of blood relationship or jus
sanguinis.  On this account, the
derivation of citizenship from a person or the transmission of citizenship to
his child springs from the fact that he is the father.   Thus, paternity as manifestation of blood
relationship is all that is needed to be established.  To
introduce a distinction between legitimacy or illegitimacy in the status of the
child vis-à-vis the derivation of his citizenship from the father defeats the
transmissive essence of citizenship in blood relationship.  The text of the law which reads ‘Those whose
father are citizens of the Philippines’ becomes an embodiment of the kernel
principle of blood relationship, which provides no room for the notion of citizenship by legitimacy or legitimation.”

The ascertainment of the meaning of the provision of the Constitution
begins with the language of the document itself.  The words of the Constitution should as much
as possible be understood in the sense they have in common use and given their
ordinary meaning.  The reason for this is
because the Constitution is not primarily a lawyer’s document but essentially
that of the people, in whose consciousness is should even be present as an
important condition for the rule of law to prevail.[16]
Section 3, Article IV of the 1935 Constitution is very clear.   As the provision does not distinguish
between a legitimate child and an illegitimate child of a Filipino father, we
should not make a distinction.

In fine, I reiterate that the COMELEC did not gravely abuse its
discretion in rendering its assailed Resolutions dated January 23, 2004 and
February 6, 2004.

WHEREFORE, I concur
with Justice Jose C. Vitug in his ponencia
and with Senior Justice Reynato S. Puno in his Separate Opinion DISMISSING Fornier’s petition.