file:tecson vs comelec 161434 march 3, 2004 j_ austria-martine.htm

SEPARATE OPINION

AUSTRIA-MARTINEZ, J.:

There are three petitions before this Court which seek the
disqualification of a prominent presidential aspirant in the forthcoming May
10, 2004 elections.  The petitions are common
in their allegation that Fernando Poe, Jr. (FPJ) is not a qualified candidate
for the position of the President of the Philippines since he is not a
natural-born Filipino citizen for the following reasons: (a) FPJ’s father,
Allan F. Poe, was not a Filipino citizen, but a Spanish citizen; (b) FPJ is an
illegitimate child having been born out of wedlock; (c) the subsequent marriage
of his parents did not inure to his benefit since they failed to comply with
the procedural requirements for legitimation; and (d) FPJ, as an illegitimate
child, follows the citizenship of his American mother, Bessie Kelley.

G.R. Nos. 161434 and 161634 invoke the
Court’s exclusive jurisdiction under the last paragraph of Section 4, Article
VII of the 1987 Constitution.[1] I
agree with the majority opinion that these petitions should be dismissed
outright for prematurity.  The Court has
no jurisdiction at this point of time to entertain said petitions.

The Supreme Court, as a Presidential Electoral Tribunal (PET),
the Senate Electoral Tribunal (SET) and House of Representatives Electoral
Tribunal (HRET)[2]
are electoral tribunals, each specifically and exclusively clothed with
jurisdiction by the Constitution to act respectively as “sole judge of all
contests relating to the election, returns, and qualifications” of the
President and Vice-President, Senators, and, Representatives.[3]
In a litany of cases, this Court has long recognized that these electoral
tribunals exercise jurisdiction over election contests only after a candidate
has already been proclaimed winner in an election.[4]
Rules 14 and 15 of the Rules of the Presidential Electoral Tribunal[5]
provide that, for President or Vice-President, election protest or quo warranto may be filed after the proclamation of the winner.

Prior to the proclamation
of winners, questions on the eligibility and qualifications of a candidate may
be addressed to the COMELEC only if they fall under Section 78 of the Batas
Pambansa Blg. 881 (Omnibus Election Code) which provides:

Section 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[6] 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. (Emphasis supplied)

In his Certificate of Candidacy, respondent FPJ asserts that he
is a natural-born citizen and therefore eligible to the position of President
of the Philippines.[7]
Petitioner assails the truthfulness of such material representation.  Thus, the issue whether or not respondent Poe
made a material representation which is false is within the jurisdiction of the
COMELEC to resolve under Section 78 of the Omnibus Election Code.  And when the COMELEC denied the cancellation
of the Certificate of Candidacy, petitioner, ascribing grave abuse of
discretion on the part of COMELEC in denying his petition, appropriately filed
G.R. No. 161824 under Rule 64 in relation to Rule 65 of the Rules of Court
which provides that the mode of review of a judgment of the COMELEC may be
brought by the aggrieved party to the Court on certiorari under Rule 65.  Needless to stress, certiorari is an
extraordinary remedy that can be availed of only for an error of jurisdiction,
that is, one where the act complained of was issued by the court, officer or a
quasi-judicial body without or in excess of jurisdiction, or with grave abuse
of discretion which is tantamount to lack or in excess of jurisdiction.[8]

In Salcedo
II vs. COMELEC,[9]
the Court held that in order to justify the cancellation of the certificate of
candidacy under Section 78 of the Omnibus Election Code, it is essential that:
(1) the false representation mentioned therein pertains to a material matter on the contents of the
certificate of candidacy as provided in Section 74, that is, the qualifications
for elective office as provided in the Constitution; and (2) the false
representation must consist of a deliberate
attempt to mislead, misinform, or hide a fact which would otherwise render a
candidate ineligible.

The Court’s jurisdiction in the present petition for certiorari
is limited only to the question whether the COMELEC has acted with grave abuse
of discretion amounting to lack or excess of jurisdiction in finding that the
evidence of petitioner is weak and not convincing.  Is it a capricious, whimsical and arbitrary
exercise of discretion?  The answer is
definitely in the negative.

The Certificate of Candidacy was executed by respondent FPJ under
oath.  The law always presumes good
faith.[10]
One who alleges malice has the burden of proving the same.[11]
It is elementary that contentions must be proved by competent evidence and
reliance must be based on the strength of the party’s own evidence and not upon
the weakness of the opponent’s defense.[12]
To lay the burden of proof upon FPJ to prove his citizenship simply because
petitioner assails the same is anathema to the well-recognized rule on the
burden of proof.

The burden of proof is on the party who would be defeated if no
evidence is given on either side.[13]

In other words, petitioner should have established by competent
evidence before the COMELEC that the subject material representation is false
and that it must have been made by respondent FPJ deliberately to deceive the
electorate as to his eligibility for the position of President of the
Philippines.

Justice Puno, in his separate opinion, has extensively discussed
the evidence that were correctly considered by the COMELEC as weak and not
convincing to which I fully subscribe, with the following additional
observations:

Under Section 1 of Article IV of the 1935 Constitution, the
following are citizens of the Philippines:

1.            Those who are citizens of the
Philippines at the time of the adoption of this Constitution.

. . .

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.

. . .

Pertinent in the determination of who were the citizens of the
Philippines at the time of the adoption of the 1935 Constitution are the Treaty
of Paris of 1898, the Philippine Bill of 1902 and the Philippine Autonomy Act
of 1916, otherwise known as the Jones Law.

Article IX of the Treaty of Paris of 1898 reads:

Spanish subjects, natives of
the peninsula, residing in the territory over which Spain by the present treaty
relinquished or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either
event all their rights or property, including the right to sell or dispose of
such property or of its proceeds; and they shall also have the right to carry
on their industry, commerce and professions, being subject in respect thereof
to such laws as are applicable to other foreigners.  In
case they remain in the territory they may preserve their allegiance to the
Crown of Spain by making, before a court of record, a year from the date
of the exchange of ratification of this 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.  (Emphasis
supplied)

Section 4 of the Philippine Bill of 1902 enacted by U.S.
Congress, reads:

That all inhabitants of the
Philippines 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 Philippines 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 in Paris December
tenth, eighteen hundred and ninety eight, and except such others as have since
become citizens of some other country; Provided, That the Philippine
Legislature, herein provided for, is hereby authorized to provide by law for
the acquisition of Philippines citizenship by those natives of the Philippine
Islands who do not come within the foregoing provisions, the natives of the
insular possessions of the United States, and such other persons residing in
the Philippines Islands who are citizens of the United States, or who could
become citizens of the United States under the laws of the United States if
residing therein.  (Emphasis supplied)

Section 2 of the Jones Law reads:

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 Philippines 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: 
Provided, that the Philippine Legislature, herein provided for, is
hereby authorized to provide by law for the acquisition of Philippine
citizenship by those natives of the Philippine Islands who do not come within
the foregoing provisions, the natives of the insular possessions of the United
States, and such other persons residing in the Philippine Islands who are
citizens of the United States, or who could become citizens of the United
States under the laws of the United States if residing therein.  (Emphasis supplied)

Petitioner’s Exhibit “D”, a certification of the National
Archives that it has no record that respondent’s grandfather Lorenzo Pou
entered or resided in the Philippines before 1907, seeks to establish that
respondent FPJ is Spanish as his grandfather was a Spanish citizen for which
reason, his son, Allan Poe, FPJ’s father, was a Spanish citizen under the
aforequoted provisions of the Treaty of Paris and Philippine Bill of 1902.  Said exhibit is neither here nor there
considering that, as noted by Justice Puno, the petitioner had failed to
demonstrate that the National Archives has a complete record of all persons who
lived in the Philippines during the Spanish and American occupation.

Moreover, petitioner Fornier
failed to present competent evidence that respondent FPJ’s grandfather had
preserved his allegiance to the Crown of Spain by having made a declaration to
that effect before a court of record, pursuant to the Treaty of Paris.  Consequently, in the absence of such
evidence, it cannot be validly concluded that FPJ’s grandfather remained a
Spanish citizen and transmitted his citizenship to FPJ’s father.  It is also true that neither could anyone
conclusively conclude on that basis, that FPJ’s grandfather did not retain his
Spanish citizenship.  In either case, it
sustains the view of the COMELEC that the evidence of petitioner is weak and
not convincing.

As earlier stated, the onus probandi is on petitioner to
prove his claim, failing which his petition to cancel the certificate of
candidacy of respondent FPJ must necessarily fail.  The COMELEC’s assessment of the evidence
presented before it must perforce be accorded full respect.

It is suggested that the case be remanded to the COMELEC or the
Court of Appeals for the presentation of additional evidence to enable the
Court to finally determine the citizenship of respondent Poe.  With all due respect to the proponents, I
submit that to do so would not only be contrary to basic fair play but also it
is not within the jurisdiction of the Court to make a final determination of
respondent FPJ’s citizenship in the present petition for certiorari which is
specifically on the ground of grave abuse of discretion in not canceling the
certificate of candidacy under Section 78 of the Omnibus Election Code.  The issue on citizenship may be properly
dealt with in a quo warranto proceeding which is available to
protesters only after elections under Section 4, Article VII of the 1987
Constitution.

As a last pitch effort to disqualify respondent FPJ, petitioner
posits that the phrase “those whose
fathers are citizens of the Philippines” in the 1935 Constitution should
refer only to legitimate children, relying upon the cases of Chiongbian vs. De Leon,[14] Serra vs. Republic,[15] Morano vs. Vivo,[16]
and Paa vs. Chan;[17] that
inasmuch as it appears that respondent Poe is an illegitimate son, then he
follows the citizenship of his mother who was an American citizen per
respondent FPJ’s birth certificate.  However,
the cited cases are inapplicable because they are not squarely in point.  These cases did not involve an illegitimate
child of a Filipino father or the issue of citizenship in relation to the
exercise of the right to be elected into office.  Besides, the Court’s pronouncements in these
cases that illegitimacy in relation to citizenship are merely obiter dicta, obviously non sequitur.  Obiter
dictum simply means words of a prior opinion entirely unnecessary for the
decision of the case[18]
or an incidental and collateral opinion uttered by a judge and therefore not
material to his decision or judgment and not binding.[19]
As such, the pronouncements therein on illegitimacy in relation to citizenship
must be disregarded as the ruling of the Court cannot be duly extended to
expand the main thrust of the decisions beyond their true import.

The fundamental principle in constitutional construction is that
the primary source from which to ascertain constitutional intent or purpose is
the language of the provision itself. 
The presumption is that the words in which the constitutional provisions
are couched express the objective sought to be attained. Otherwise stated, verba
legis still prevails.  Only when the
meaning of the words used is unclear and equivocal should resort be made to
extraneous aids of construction and interpretation, such as the proceedings of
the Constitutional Commission or Convention, in order to shed light on and
ascertain the true intent or purpose of the provision being construed.[20]

Section 1, Article IV of
the 1935 Constitution does not provide for a qualification that the child be a
product of a legitimate union for the child to acquire the nationality of the
Filipino father.  Ubi lex non distinguit nec nos distinguere
debemus.  When the law does not
distinguish, neither should we.  There
should be no distinction in the application of the fundamental law where none
is indicated.  The drafters of the
Constitution, in making no qualification in the use of the general word
“father” must have intended no distinction at law.  The Courts could only distinguish where there
are facts or circumstances showing that the lawgiver intended a distinction or
qualification.  In such a case, the
courts would merely give effect to the lawgiver’s intent.[21]

Clearly, the framers of the 1935 Constitution simply provided
that when paternity is known or established, the child follows the father’s
citizenship; otherwise, the citizenship of the mother is followed.  If we concede that the framers of the
Constitution intended a qualification that the child be the product of a
legitimate union, such would lead to clear injustice, and a restricted
interpretation, by creating a distinction when the language of the law is clear
and unambiguous.

Thus, based on the evidence presented before it, the COMELEC did not
commit any grave abuse of discretion in concluding that petitioner failed to
present substantial evidence that FPJ has knowingly or deliberately committed a
material representation that is false in his certificate of candidacy.

For the foregoing reasons, I vote to dismiss all the petitions.