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

SEPARATE OPINION

TINGA, J.:

Unabated, the “interesting” times march on.[1]

No sooner had the dust of battle settled in the impeachment case,[2]
where this writer noted the unfurling saga of profound events that dominated
the country’s recent past,[3] the
cavalcade of occurrences of the last three months reached a crescendo with the
filing of the instant cases before this Court. After the case involving the
Chief Justice, we now address the question on the citizenship qualification for
President of the land.

How the Chinese customary wish of “interesting” times will turn
out for the Filipinos’ lot, whether as a curse or a blessing, still remains to
be seen. But definitely, more than much depends on the Court’s disposal of the
present controversy.

The instant cases are unique and unprecedented.  For the first time the Court is tasked to
ascertain the farthest reach of the term “natural-born citizen” in the context
of an out-of-wedlock birth. For the first time too, the Court is disposed to
resolve the citizenship qualification, affecting no less than a leading
candidate for President before, in fact some time reasonably before and not
after the elections, as was the Court’s wont in prior instances.[4]

To a man, the members of the Court are agreed that the Tecson and Velez petitions (G.R. No. 161434 and G.R. No.
161634) deserve unceremonious dismissal for prematurity and lack of
jurisdiction.  A different view though
obtains as regards the Fornier petition
(G.R. No. 161824). As it seeks to set aside rulings of the Commission of
Elections (COMELEC), the Court’s jurisdiction over the petition finds mooring
in no less than the Constitution.[5]

COMELEC Acted With Grave Abuse of
Discretion

Fornier posits that the COMELEC acted with grave abuse of
discretion in promulgating the assailed resolutions. The contention is
meritorious.

In seeking outright dismissal of the Fornier petition, private respondent Poe proceeds from the premise
that it is exclusively a petition for certiorari under Rule 65 of the 1997
Rules of Civil Procedure.  It is not.

The petition invokes as its basis Rule 64 of the Rules of Court,
which is captioned “Review of Judgments and Final Orders or Resolutions of the
Commission on Elections and the Commission on Audit.”

The 1997 Rules of Civil Procedure introduced this mode of review
separate and distinct from the Rule 65 special civil action. The innovation is
consonant with the constitutional provision[6]
which allows the institution of a new review modality for rulings of
constitutional commissions. It ordains that “(U)nless otherwise provided by
this Constitution or by law,” the
mode of review is certiorari.  The Supreme Court introduced the new mode in
the exercise of its power under the Constitution[7]
to promulgate rules of pleading, practice and procedure in all courts.

Rule 64 appears to be a fusion of sorts of at least three other
Rules, i.e., Rule 65, Rule 46 and
Rule 43.  Notably, as in a special civil
action for certiorari under Rule 65,
the Commission concerned is joined as party respondent unlike in an ordinary
appeal or petition for review; the contents of the petition are similar to
those required under Section 3 of Rule 46; the order to comment is similar to
Section 6 of Rule 65; the effect of filing a petition is similar to Section 12
of Rule 43; and the provision on when the case is deemed submitted for decision
is similar to Section 13 of Rule 43.[8]

A Rule 64 petition must be filed within thirty days from notice
of the judgment, final order or resolution sought to be reviewed,[9]
whereas a Rule 65 petition for certiorari
calls for a sixty day period. The distinction gains greater significance in the
context that great public interest inheres in the goal to secure expeditious
resolution of election cases before the COMELEC.

In form, a petition under Rule 64 takes on the characteristics of
a Rule 43 petition, which may allege errors of fact or law.[10]
Similar to Rule 43, Rule 64 also provides that findings of fact that are
supported by substantial evidence are binding.[11]
As a new and independent mode of review a Rule 64 petition may as well be
treated as a petition for review, under which errors of fact or law may also be
rectified.

However, the Fornier petition
also alleges grave abuse of discretion tantamount to lack or excess of
jurisdiction. Verily, he prefaced all the grounds and arguments he raised with
the common statement that the COMELEC
committed grave and reversible errors of law and even acted with grave abuse of
discretion.

Hence, while the Fornier
petition comes out as an inelegant pastiche of Rule 64 and Rule 65 initiatory
pleadings, it is not defective in form but on the contrary it can stand on its
own merits.  Aside from errors of law, it
also raised errors of jurisdiction amounting to grave abuse of discretion.

The Fornier petition
before the COMELEC is grounded on Section 1, Rule 23 of the COMELEC Rules of
Procedure, which recognizes and allows petitions to deny due course to or
cancel certificates of candidacy:

Section 1. Grounds for Denial of Certificate of Candidacy.  – A petition to deny due course to or cancel,
a certificate of candidacy for any elective office may be filed with the Law
Department of the Commission by any citizen of voting age or a duly registered
political party, organization, or coalition of political parties on the exclusive ground that any
material representation contained therein as required by law is false.

Section 1, Rule 23 of said Rules, in turn, gives flesh to Section
78 of the Omnibus Election Code, which provides:

SEC. 78. Petition to deny due course to or 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 notice and hearing, not later than fifteen
days before the election.

Section 74, to which Section 78 refers,
states:

Sec. 74. Contents of certificate of candidacy. — The certificate of
candidacy shall state that the person filing it is announcing his candidacy for
the office stated therein and that he is
eligible for said office; if for Member of the Batasang Pambansa, the
province, including its component cities, highly urbanized city or district or
sector which he seeks to represent; the political party to which he belongs;
civil status; his date of birth; residence; his post office address for all
election purposes; his profession or occupation; that he will support and
defend the Constitution of the Philippines and will maintain  true faith and allegiance thereto; that he
will obey the laws, legal orders, and decrees promulgated by the duly
constituted authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that the
facts stated in the certificate of candidacy are true to the best of his
knowledge.

Unless a candidate has officially changed his name through a court
approved proceeding, a candidate shall use in a certificate of candidacy the
name by which he has been baptized, or he has not been baptized in any church
or religion, the name registered in the office of the local civil registrar or
any other name allowed under the provisions of existing law or, in the case a
Muslim, his Hadji name after
performing the prescribed religious pilgrimage: Provided, That when there are two or more candidates for an office
with the same name and surname, each candidate, upon being made aware or such
fact, shall state his paternal and maternal surname, except the incumbent who
may continue to use the name and surname stated in this certificate of
candidacy when he was elected. He may also include one nickname or stage name
by which he is generally or popularly known in the locality.

The person filing a certificate of candidacy shall also affix his
latest photograph, passport size; a statement in duplicate containing his
bio-data and program of government not exceeding one hundred words, if he so
desires. [Emphasis supplied]

Thus, in accordance with Section 78, supra, the petitioner in a petition to deny due course or to cancel
a certificate of candidacy need only prove three elements.  First,
there is a representation contained in the certificate of candidacy. Second, the representation is required
under Section 74. Third, the
representation must be “material,” which, according to jurisprudence,[12]
means that it pertains to the eligibility of the candidate to the office.  Fourth,
the representation is false.

Asserting that proof of intent to conceal is also necessary for a
petition under Section 78 to prosper, Mr. Justice Kapunan wrote in Romualdez-Marcos v. Commission on Elections,[13]
thus:

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 [C]onstitution’s 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.  It would be plainly ridiculous for a
candidate to deliberately and knowingly make a statement in a certificate of
candidacy which would lead to his or her disqualification.[14]
[Emphasis supplied]

The Court, reiterated the Kapunan pronouncement in Salcedo II v. Commission on Elections.[15]

Adverting to Romualdez-Marcos
and Salcedo II, the COMELEC En Banc ruled that while the element of
materiality was not in question the intent to deceive was not established, not
even the knowledge of falsity, thus:

Undeniably, the question on the citizenship or respondent falls
within the requirement of materiality under Section 78.  However, proof of misrepresentation with a
deliberate attempt to mislead must still be established.  In other words, direct and substantial
evidence showing that the person whose certificate of candidacy is being sought
to be cancelled or denied due course, must have known or have been aware of the
falsehood as appearing on his certificate.[16]

The pronouncements in Romualdez-Marcos
and Salcedo II, however, are clearly not supported by a plain
reading of the law.  Nowhere in Section
78 is it stated or implied that there be an intention to deceive for a
certificate of candidacy to be denied due course or be cancelled.  All the law requires is that the “material
representation contained [in the certificate of candidacy] as required under
Section 74… is false.”  Be it noted that
a hearing under Section 78 and Rule 23 is a quasi-judicial proceeding where the
intent of the respondent is irrelevant. 
Also drawing on the principles of criminal law for analogy, the
“offense” of material representation is malum
prohibitum not malum in se.  Intent is irrelevant.  When the law speaks in clear and categorical
language, there is no reason for interpretation or construction, but only for application.[17]

The reason for the irrelevance of intent or belief is not
difficult to divine.  Even if a candidate
believes that he is eligible and purports to be so in his certificate of
candidacy, but is subsequently proven in a Rule 23 proceeding to be, in fact or
in law, not eligible, it would be utterly foolish to allow him to proceed with
his candidacy.  The electorate would be
merely squandering its votes for – and the COMELEC, its resources in counting
the ballots cast in favor of – a candidate who is not, in any case, qualified
to hold public office.

The Kapunan pronouncement
in the Romualdez-Marcos case did not
establish a doctrine.  It is not
supported by law, and it smacks of judicial legislation.  Moreover, such judicial legislation becomes
even more egregious considering that it arises out of the pronouncement of only
one Justice, or 6% of a Supreme Court. While several other Justices joined
Justice Kapunan in upholding the residence qualification of Rep. Imelda Romualdez-Marcos,
they did not share his dictum.[18]
It was his by his lonesome.  Justice Puno
had a separate opinion, concurred in by Justices Bellosillo and Melo.  Justice Mendoza filed a separate opinion too,
in which Chief Justice Narvasa concurred. 
Justices Romero and Francisco each had separate opinions.[19]
Except for Chief Justice Narvasa and Justice Mendoza, the Justices in the
majority voted to grant Rep. Marcos’ petition on the ground that she
reestablished her domicile in Leyte upon being widowed by the death of former
President Marcos.

On the other hand, the reiteration of the Kapunan pronouncement
in Salcedo is a mere obiter dictum.  The Court dismissed the disqualification case
on the ground that the respondent’s use of the surname “Salcedo” in her certificate
of candidacy is not a material representation since the entry does not refer to
her qualification for elective office.[20]
Being what it is, the Salcedo obiter
cannot elevate the Kapunan pronouncement to the level of a doctrine regardless
of how many Justices voted for Salcedo. Significantly,
Justice Puno concurred in the result only.[21]

Thus, in this case, it does not matter that respondent knows that
he was not a natural-born Filipino citizen and, knowing such fact, proceeded to
state otherwise in his certificate of candidacy, with an intent to deceive the
electorate. A candidate’s citizenship eligibility in particular is determined
by law, not by his good faith.  It was,
therefore, improper for the COMELEC to dismiss the petition on the ground that
petitioner failed to prove intent to mislead on the part of respondent.

I submit, therefore, that the COMELEC acted with grave abuse of
discretion in failing to make a determination of the findings of fact, as well
as rule on the evidence before it. This failure is even violative of the
Constitution, as well as relevant statutes and rules of procedure.[22]
Especially blatant to my mind was the conclusion of the COMELEC that Lorenzo
Pou “had ceased to be a Spanish subject and had become a Filipino citizen” by
operation of the Philippine Bill of 1902 and the Jones Law, despite the absence
of substantial evidence to support this claim. 
The relevant provisions of these laws are explicit.  Those who were considered citizens of the
Philippines under the Philippine Bill of 1902 and the Jones Law were those who,
on 11 April 1899, were inhabitants of the Philippines who were Spanish
subjects, and then resided in the Philippines, and did not elect to preserve
their allegiance to the Crown of Spain.[23]

In In Re: Bosque,[24]
petitioner therein, a Spanish national, had left the Philippines on 30 May
1899, returning only in 1901.  The Court
considered the established fact that Bosque had been in the Philippines on 11
April 1899. By operation of the Treaty of Paris, Bosque retained his Spanish
citizenship by virtue of his presence in the Philippines on 11 April 1899.
Furthermore, Bosque did not lose such Spanish citizenship because he failed to
comply with the provisions of the Treaty of Paris that a Spanish national in
the Philippines should expressly renounce his foreign allegiance within the
eighteen-month period provided for in the Treaty of Paris that expired in 11
October 1900.[25]

It was possible that Lorenzo Pou, just like Bosque, failed to
duly renounce his Spanish allegiance, assuming he was here in 11 April 1899.
The COMELEC could have only concluded as it did that Lorenzo Pou was among
those naturalized by the Treaty of Paris and relevant laws if it was
established that Lorenzo Pou was present in the Philippines on 11 April 1899.
No such proof was submitted to the COMELEC, and its baseless conclusion that
Lorenzo Pou became a Filipino citizen constitutes grave abuse of discretion.

The Appreciation of the Evidence

The COMELEC failed in its duty as a trier of facts in refusing to
appreciate the evidence presented before it. 
Instead, it chose to treat the matter as one of a pure question of law,
despite that the allegations in the petition and arguments in rebuttal were
grounded on factual matters.

Similarly before the Court, the resolution of the questions
before us hinge on a definitive finding of fact. Ideally, this should entail
deliberate appreciation of evidence, rulings on the admissibility, materiality
and veracity of the documents.  The
Supreme Court is not a trier of facts,[26]
nor does it appreciate evidence at the first instance.[27]
The Court was not precluded by rule of procedure to remand the case to the
COMELEC for the reception and trial on the facts. Moreover, the Court could
have referred the Fornier petition to
the Court of Appeals for the reception and trial on the evidence.

The Court however, has chosen not to remand the case either to
the COMELEC or the Court of Appeals. The duty therefore, is to rule on the
evidence as presented right now, even if its mettle has not been tested before
a trier of facts. There is no substantial evidence at this point that
indubitably proves the claim that Ronald Poe is a natural-born Filipino. Thus,
as with the rest of my colleagues, I am compelled to primarily employ legal
presumptions in formulating my opinion.

I am very mindful of the Court’s pronouncement that no presumption can be indulged in favor of
the claimant of Philippine citizenship, and any doubt regarding citizenship
must be resolved in favor of the State.[28]

This doctrine provides the Court guidance on how to resolve the
several doubtful factual issues in the case. There may be several matters under
the law that may be liberally construed, but I believe citizenship is not one
of them. Filipino citizenship is conferred by law and nothing else, not even
good faith or colorable possession thereof. Citizenship is a privilege, and not
a right.[29]
To cheapen citizenship by according it through haphazard presumptions is
tantamount to cheapening our nation’s worth and soul.

Thus, any unresolved doubt cannot be adjudged in favor of
Poe.  His claim to natural-born
citizenship must be established by law, and evidence in accord with the law.

I am willing to consider as authentic the following documents:
the 1939 Birth Certificate of Poe, the 1941 Marriage Contract between Allan F.
Poe and Bessie Kelley, the 1951 Death Certificate of Allan F. Poe, and the 1954
Death Certificate of Lorenzo Pou. These are official public documents which
carry with them the presumption of regularity in execution, and moreover, their
authenticity is not challenged by the parties. These documents are, at the very
least, conclusive as to the facts of birth, marriage and death.

These documents were submitted by Poe before the COMELEC, in
order to rebut Fornier’s allegations. Yet these documents establish facts that
are actually damaging to Poe’s very claims The Marriage Contract contradicts
the notation in the Birth Certificate that in 1939, Allan F. Poe and Bessie
Kelley were married. Since it is the Marriage Contract, and not the Birth
Certificate that indubitably establishes the fact of marriage, it is more
believable that Allan F. Poe and Bessie Kelley were married in 1941, two years
after the birth of Poe.  The conclusion
that Poe was born illegitimate thus arises.

The submission of these documents effectively shifted the burden
of evidence to Poe. The documents constitute prima facie evidence that Poe was born illegitimate, and
correspondingly, carry no presumption of paternity. The duty falls on Poe to
controvert the prima facie case.[30]
Burden of proof remains immutable, but the burden of evidence can shift
depending on the exigencies of the case.[31]

Apart from these documents, there really are no other factual
findings that deserve consideration by this Court, not even the findings of a
Senate Committee since they cannot be binding on this Court, as stressed by
Justice Puno in another case.[32]

Paternity of Ronald Allan Poe Not Duly
Established

The paternity of Ronald Allan Poe has not been conclusively
established. Some may take stock in the purported admission of petitioner
Fornier in his pleadings before both the COMELEC and this Court that respondent
Poe is the son of Allan F. Poe.  I am not
as hasty to conclude that such an admission dispenses with proof.  The rule on judicial admissions[33]
is but an application of the law on estoppel.[34]
The State is not put in estoppel by the mistakes or errors of its officials,[35]
much less by those who, not being an agent thereof, is in no position to bind
it.  To hold otherwise would be to compel
the State to recognize as a citizen one who is not by its most fundamental of
laws, and in effect “sanction a monstrosity known as citizenship by estoppel.”[36]

The truth is that no incontestable proof establishes that
respondent Poe had been acknowledged by Allan F. Poe as his son. Allan F. Poe
might have been listed as the father in the 1939 Birth Certificate, but such
document was not signed by him. As Justice Vitug explains in his Separate
Opinion, the birth certificate can be utilized to prove voluntary
acknowledgment of filiation of paternity only if signed or sworn to by the father.[37]

I disagree with some of my colleagues who would utilize the Affidavit executed by one Ruby Kelley Mangahas
as conclusive proof of respondent’s paternity. This particular declaration does
not fall under the evidentiary rule on “act or declaration about pedigree”. The
rule requires that the declaration about pedigree be made before the controversy has occurred.[38]
The Mangahas Affidavit was executed
on 12 January 2004, three days after Fornier filed his petition before the COMELEC. This declaration
was clearly made only after the
controversy had arisen, and reinforces the notion that it is a self-serving statement
made by a relative of Poe.

Moreover, the Mangahas Affidavit
is hearsay[39]
and therefore inadmissible in evidence. 
Mangahas never testified as to her due execution of the affidavit.  Perhaps her testimony was unnecessary before
the summary proceedings in the COMELEC, but it is urged here that we accept the
same as conclusive.  To do so will create
an ignominious precedent that would allow for all sorts of affidavits
unverified by testimony to be introduced before this Court and be deemed
admissible and conclusive.

Neither do I put much value as proof of filiation, the 1947
Philippine Army Affidavit purportedly executed by Allan F. Poe,. Therein, Allan
F. Poe acknowledged one “Ronnie, age 5,” as his son. This document does not
clearly establish that Allan F. Poe had acknowledged respondent Poe who was
born in 1939. On its face, the document refers to a child born in 1942. This
affidavit also contains other inconsistencies that contradict the other
evidence which I deem as authentic. It adverts to a 1939 marriage between Allan
F. Poe and Bessie Kelley, an item inconsistent with the Marriage Contract
itself. I am not prepared to declare respondent Poe a Filipino citizen or the
son of Allan F. Poe on the basis of such a dubious document.

In the end, there is nothing left but the Birth Certificate of
1939 and the Marriage Contract of 1940 that could be taken as proper evidence
to establish filiation. Not only do they fail to prove filiation, they actually
caution us against any hasty presumptions of paternity. These documents
establish the illegitimacy of Poe, and illegitimate birth does not carry any
presumption on paternity.  Indeed,
paternity has to be established by independent evidence. No such independent
evidence is before this Court.

Since paternity has not been proven, there is no choice but to
deem Poe as following the citizenship of his mother, the only parent
conclusively established. This conclusion is militantly opposed by Poe, and
even the amici curiae maintain that
when Section 1(3), Article IV of the 1935 Constitution speaks of children
“whose fathers are citizens of the Philippines,” it does not distinguish
between legitimate and illegitimate children. 
So long as the father is a Filipino, so the argument goes, his child
shall also be a Filipino.

Whether existing jurisprudence supports Fornier’s thesis has been the subject of
extensive debate.  Of these cases,
perhaps Ching Leng v. Galang[40]
comes the closest.  There, the Court was
confronted with the question of whether a naturalized Filipino transmits his
Filipino citizenship when he adopts his illegitimate children by his Chinese
wife.  The Court held that the Civil Code
did not extend the father’s privilege of citizenship to his adopted
children.  Although the Court found that
—

….  The fact that the
adopted persons involved in the case at bar are illegitimate children of
appellant Ching Leng does not affect substantially the legal situation before
us, for, by legal fiction, they are now being sought to be given the status of
legitimate children of said appellant, despite the circumstances that the Civil
Code of the Philippines does not permit their legitimation.[41]

— it nevertheless foreclosed any question on the significance of
the children’s illegitimacy.  In definite
terms, the Court ruled, thru Justice Roberto Concepcion, that “[in] fact, illegitimate children are under
the parental authority of the mother and follow her nationality, not
that of the illegitimate father.”[42]

This principle, enunciated in Ching
Leng and cases cited therein, is supported by international custom and the
principles of law generally recognized with regard to nationality.[43]
Thus, the delegates to the 1935 Constitutional Convention even voted down a
proposed amendment to include as Filipino citizens the illegitimate children
with a foreign father of a mother who was a citizen of the Philippines,
believing “that the rules of international law were already clear to the effect
that illegitimate children followed the citizenship of the mother.”[44]

This principle rests on sound policy.  It is not rare that in cases of children born
out of wedlock, the paternity is either unknown or disputed.  Logically, the nationality of the illegitimate
child cannot follow that of the father. 
For States adhering to the rule of jus
sanguinis, therefore, the
nationality of the mother, the child’s only known parent, becomes the only
basis for the child’s nationality.  The
principle thus benefits the child, saving him from a limbic, stateless
existence.

The argument of respondent is premised on the notion that the
paternity between respondent Poe and his alleged father Allan F. Poe has been
sufficiently proven.  Indeed, if that be
the case, the principle that the citizenship of an illegitimate child follows
that of the mother would lose its rationale and preclude its application.  It is my assertion, however, that paternity
has not been so proven; consequently, the rule invoked by petitioner still
holds.

It has been urged that disqualifying Poe as a consequence of
ruling that he follows the citizenship of his mother would constitute a
violation of international law, particularly the Convention on the Rights of
the Child.  The Convention proscribes the
commission of discriminatory acts against any person by reason of birth.  The submission proceeds from the conviction
that the paternity of Poe and, therefore, his Filipino citizenship, has been
duly established.  Truly, the Convention
would find full application if it were so, but, sadly, it has not.

Surely, it is not suggested that, regardless of his not being a
natural- born Filipino citizen, respondent is eligible to be President by
virtue of such Convention. Obviously, it is municipal law, not international
law, that determines the qualifications of a candidate for public office. It is
also municipal law, not international law, that determines citizenship.[45]

Our Constitution requires natural-born citizenship as a requisite
for holding the office of the Presidency of the Philippines. This is a rule
derived mainly from the American legal experience, which adopted the principle
as a safeguard against foreign subversion. As explained in a popular online
magazine:

Though their concerns may now seem archaic,
the framers were genuinely afraid of foreign subversion. Among their nightmare
scenarios was the prospect of a European noble using his money and influence to
sway the Electoral College, take command of the American army, and return the
nascent nation to the royalist fold. At the time, several European figures such
as France’s Marquis de Lafayette, a hero of the Revolutionary War were quite
popular in the New World, so the idea wasn’t completely far-fetched.

The framers also took a lesson from Europe,
where dynasties constantly schemed against one another. The men who drafted the
Constitution were certainly familiar with the tragic example of Poland, where
agents from Russia, Prussia, and Austria conspired to install a friendly
monarch, Stanislaus II, and subsequently seized upon his weakness and
partitioned the country among themselves. Keep in mind, too, that dynasties
occasionally shuffled around Europe regardless of national origin; England’s
King George I, for example, was a Hanoverian who spoke zero English.

There is scant primary source material
attesting to the 1787 Constitutional debate over Article II, Section I, which
contains the "natural born" provision. The potential scourge of
foreign influence, however, is mentioned several times in the Federalist Papers.
And in a letter dated July 25, 1787, John Jay, the future first Chief Justice
of the Supreme Court, wrote to George Washington:

Permit me to hint, whether it would not be
wise & seasonable to provide a strong check to the admission of Foreigners
into the administration of our national Government; and to declare expressly
that the Command in chief of the American army shall not be given to, nor
devolve on, any but a natural born Citizen.[46]

Historical context notwithstanding, the issues leading to the
adoption of the rule cannot be easily discarded, even with the pretense of
20/20 hindsight. For many, these considerations remain material. Yet whether or
not these concerns maintain to this day is of no moment. It would take a
constitutional amendment, and not a judicial declaration, that would overturn
this requirement of natural-born citizenship.

No Proof of Lorenzo Pou’s Acquisition
of Filipino Citizenship

There is no evidence adduced that Lorenzo Pou was born in the
Philippines, or was even present in the Philippines up until the first few
decades of the 20^th century. However, it is insisted that Lorenzo
Pou obtained his citizenship by virtue of the Treaty of Paris and the
Philippine Bill of 1902. I earlier concluded that the COMELEC acted with grave
abuse of discretion in adopting this theory without any substantial evidence.
Again, there is no proof that exists that Lorenzo Pou, a Spanish subject, was
already present in the Philippines on 11 April 1899. It is the fact of presence
on that date that renders operative the grant of mass naturalization. It is a
fact that must be established, and sadly, the evidence fails to do so.

In Co v. Electoral Tribunal,[47]
the majority opinion concluded that the son of a naturalized Filipino and a
natural-born Filipina was a natural-born Filipino by virtue of his election of
Filipino citizenship in accordance with the 1973 Constitution; and the
declaration of the 1971 Constitutional Convention that his brother had been
earlier declared a natural-born citizen by virtue of his grandfather’s
acquisition of Filipino citizenship by operation of the Philippine Bill of
1902.  However, the dissenting opinion of
Mr. Justice Teodoro Padilla raises several points well worth considering,
especially on the residency requirement core to the Philippine Bill of 1902:

The 1971 Constitutional Convention in holding that Emil L. Ong was
a "natural-born citizen" of the Philippines under the 1935
Constitution laid stress on the ‘fact’-and this appears crucial and central to
its decision-that Emil L. Ong’s grandfather, Ong Te, became a Filipino citizen
under the Philippine Bill of 1902 and, therefore, his descendants like Emil L.
Ong (and therefore, also private respondent) became natural-born Filipinos. The
1971 Constitutional Convention said:

"Ong Te, Emil Ong’s grandfather, was a Spanish subject
residing in the Philippines on April 11, 1899 and was therefore one of the many
who became ipso facto citizens of the Philippines under the provisions of the
Philippine Bill of 1902. Said law expressly declared that all inhabitants of
the Philippine Islands who continued to reside therein and who were Spanish
subjects on April 11, 1899 as well as their children born subsequent thereto, ‘shall
be deemed and held to be citizens of the Philippine Islands.’ (Section 4,
Philippine Bill of 1902)."

The "test" then, following the premises of the 1971
Constitutional Convention, is whether or not Ong Te, private respondent’s and
Emil L. Ong’s grandfather was "an inhabitant of the Philippines who
continued to reside therein and was a Spanish subject on April 11, 1899. "
If he met these requirements of the Philippine Bill of 1902, then, Ong Te was a
Filipino citizen; otherwise, he was not a Filipino citizen.

xxx

“Registro de Chinos" from years 1896 to 1897 which show that
Ong Te was not listed as an inhabitant of Samar where he is claimed to have
been a resident. Petitioners (protestants) also submitted and offered in
evidence before the House Electoral Tribunal exhibit V, a certification of the
Chief of the Archives Division, Records and Management and Archives Office,
stating that the name of Ong Te does not appear in the "Registro Central
de Chinos" for the province of Samar for 1895. These exhibits prove or at
least, as petitioners validly argue, tend to prove that Ong Te was NOT a
resident of Samar close to 11 April 1899 and, therefore, could not continue
residing in Samar, Philippines after 11 April 1899, contrary to private
respondents pretense. In the face of these proofs or evidence, private
respondent FAILED TO PRESENT ANY REBUTTAL OR COUNTERVAILING EVIDENCE, except
the decision of the 1971 Constitutional Convention in the case of Emil L. Ong,
previously discussed.

It is not surprising then that, as previously noted, the majority
decision of the House Electoral Tribunal skirted any reliance on the alleged
ipso facto Filipino citizenship of Ong Te under the Philippine Bill of 1902. It
is equally not surprising that Ong Chuan, the son of Ong Te and father or
private respondent, did not even attempt to claim Filipino citizenship by
reason of Ong Te’s alleged Filipino citizenship under the Philippine Bill of
1902 but instead applied for Philippine citizenship, through naturalization.

Nor can it be contended by the private respondent that the House
Electoral Tribunal should no longer have reviewed the factual question or issue
of Ong Te’s citizenship in the light of the resolution of the 1971
Constitutional Convention finding him (Ong Te) to have become a Filipino
citizen under the Philippine Bill of 1902. The tribunal had to look into the
question because the finding that Ong Te had become a Filipino citizen under
the Philippine Bill of 1902 was the central core of said 1971 resolution but as
held in Lee vs. Commissioners of Immigration:

x x x. Everytime the citizenship of a person is material on
indispensable in a judicial or administrative case, whatever the corresponding
Court or administrative authority decides therein as to such citizenship is generally
not considered as res adjudicata,
hence it has to be threshed out again and again as the occasion may demand.[48]

Notably, not one of the Justices in the
majority in the Co case chose to
counter these observations of Justice Padilla. Hence, these pronouncements,
even if in dissent, should not be deemed as discredited, as they have not been
contradicted. Taken together with the rulings of the Court in Bosque and Valles, a doctrinal point is apparent – proof of residence in the
Philippines on and after 11 April 1899 is necessary to establish that one has
acquired the benefits of Filipino citizenship in accordance with the Treaty of
Paris and the Philippine Bill of 1902. This is a matter that has been taken for
granted by Poe, and even by some members of this Court.

Instead, tenuous connections are drawn from Lorenzo Pou’s 1954
Death Certificate. Admittedly, the Death Certificate states that Lorenzo Pou
was a Filipino. But it does not say when he became a Filipino. If, for example,
Lorenzo Pou became a Filipino only in 1953, his death certificate would also
state, without comment, that he was a Filipino. In this case, the date Lorenzo
Pou became a citizen is crucial to Poe’s cause, as he is alleging that he draws
his natural-born citizenship from that of Lorenzo Pou. Yet the Death
Certificate does not establish any presumption, disputable or conclusive, as to
when Lorenzo Pou became a Filipino citizen. More so, it clearly cannot
establish the fact that Lorenzo Pou was present in the Philippines on 11 April
1899. What it only establishes was that Lorenzo Pou was a resident of San
Carlos, Pangasinan at the time of his death in 1954.

Even conceding that the presence of Lorenzo Pou in the
Philippines was established as of 1916, when Allan F. Poe was born, the rule is
that proof of the existence at a particular time of a fact of a continuous
nature gives rise to an inference, that it exists at a subsequent time.[49]
No similar inference can be drawn that such fact existed prior to the time it
had been established.  The presumption of
inference of the continued existence of a condition or state of facts is
generally considered to be prospective, not retrospective.  Indeed, the presumption never runs backward.[50]
The presence of Lorenzo Pou in the Philippines in 1916 or 1954 does not
establish his presence in the Philippines in 1899. In 1916, he was already 46
years old, the average lifespan of the average male during that period, and yet
it remains unanswered where he was prior to that time and more so in 1899.

The following findings are thus binding on the Court. Poe is an
illegitimate child whose paternity has not been duly established.  Even if it is assumed that Allan F. Poe was
respondent’s father, his own nationality has not been duly established Lorenzo
Pou’s presence in the Philippines in 1899 cannot be determined; hence, no
presumption of nationality can be accorded him.

“Let the people decide,” respondent insists. That is also the
battle cry of those among us who opt to take the path of least resistance – to
let the sovereign will chart the course of the Philippine political
landscape.  That argument is also a
malaise, whether caused by academic sloth, intellectual cowardice or judicial
amnesia, which has unfortunately plagued this Court.[51]
It is an easy cop-out that overlooks the fact that the Constitution is itself
an expression of the sovereign will.  The
Filipino people, by ratifying the Constitution, elected to be bound by it, to
be ruled by a fundamental law and not by a hooting throng.

I harbor no pretensions of being wiser than our people when it
comes to political questions.  The
questions raised, however, are not political but legal, and the people, by the
same Charter to which they bound themselves, have reposed upon the members of
this Court a duty to perform and an oath to uphold, to answer the hard legal
questions and to blaze new trails in jurisprudence.

The Constitution prescribes the qualifications for elective
office.  The Omnibus Election Code
outlines the procedures for challenging such qualifications.  The Commission on Elections has rendered a
resolution upholding respondent’s eligibility. 
Petitions assailing that resolution have been filed before this
Court.  I see no reason why the Court
should shirk from its constitutional obligation and allow the electorate to
squander its votes on an ineligible candidate.

Respondent may indeed be at heart, and in mind, a natural-born
Filipino. He may speak the vernacular, partake of the native ale, and portray the
Filipino hero. He may have even exercised rights and enjoy privileges reserved
to Filipino citizens. All these, however, do not constitute conclusive proof
that he is one. For it may be that a person, otherwise disqualified by reason
of citizenship, may exercise and enjoy such rights and privileges by
representing – or mistaking – himself to be a Filipino.[52]
It was incumbent upon the respondent, who claims natural-born status, to prove
to the satisfaction of the Court that he really is such.  Failing thus, and, as no presumption can be
indulged in favor of the claimant of Philippine citizenship, the doubt must be
resolved in favor of the State.[53]

I come to this conclusion without judgment on whether respondent
is a curse about to be inflicted, or a blessing to be bestowed, upon the
Filipino people. The undoubtedly interesting times that lay before us
notwithstanding,

I vote to GRANT the Fornier Petition.