ANTONIO Y. CO, PETITIONER, VS. ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG, JR., RESPONDENTS.

DISSENTING OPINION

PADILLA, J.:

I dissent.

These separate petitions for certiorari and mandamus
seek to annul the decision*
of respondent House of Representatives Electoral Tribunal (hereinafter referred
to as the tribunal) dated 6 November 1989 which declared private respondent
Jose L. Ong, a natural-born citizen of the
Philippines and a legal resident of Laoang, Northern Samar, and the resolution of the tribunal dated 22 February
1990 denying petitioners’ motions for reconsideration.

In G.R. Nos. 92191-92, petitioner Co also prays that the Court
declare private respondent Ong not qualified to be a
Member of the House of Representatives and to declare him (petitioner Co) who
allegedly obtained the highest number of votes among the qualified candidates,
the duly elected repre­sentative of the second legislative district of Northern
Samar.

In G.R. Nos. 92202-03, petitioner Balanquit
prays that the Court declare private respondent Ong
and Co (petitioner in G.R. Nos. 92191-92) not qualified for membership in the
House of Representatives and to proclaim him (Balanguit)
as the duly elected representative of said district.

Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and private respondent Jose Ong Chuan, Jr. were among the candidates for the position
of Representative or Congressman for the second district of Northern Samar during the 11
May 1987 congressional elections. 
Private respondent was proclaimed duly-elected on 18 May 1987 with a plurality of some sixteen
thousand (16,000) votes over petitioner Co who obtained the next highest number
of votes.

Petitioners Co and Balanquit then filed separate election protests against private respondent with the tribunal,
docketed as HRET Cases Nos. 13
and 15 respectively.  Both protests
raised almost the same issues and were thus considered and decided jointly by
the tribunal.

The issues raised before the tribunal
were the following:

1.  Whether or not protestee (meaning, Ong) is a natural-born citizen of the
Philippines in contemplation of Section 6, Article VI of the 1987 Constitution
in relation to Sections 2 and 1(3), Article IV thereof; and

2.  Whether or not protestee was a resident of Laoang,
Northern Samar, in
contemplation of Section 6, Article VI of the same Constitution, for a period
of not less than one year immediately preceding the congressional elections of
May 1987.

The respondent tribunal in its decision dated 6 November 1989 held that respondent
Jose L. Ong is a natural-born citizen of the Philippines
and was a legal resident of Laoang, Northern
Samar for the required period prior to
the May 1987 congressional elections.  He
was, therefore, declared qualified to continue in office as Member of the House
of Representatives, Congress of the Philippines,
representing the second legislative district of Northern Samar.

The factual antecedents taken from the consolidated proceedings
in the tribunal are the following:

“1.   The Protestee
(Ong) was born on June 19, 1948 to the legal spouses Ong
Chuan also known as Jose Ong Chuan and Agrifina E. Lao.  His
place of birth is Laoang which is now one of the
municipa­lities comprising the province
of Northern Samar
(Republic Act No. 6132 approved on August 24, 1970 and the Ordinance appended
to the 1987 Consti­tution).

“2.   On the other hand, Jose
Ong Chuan was born in China
and arrived in Manila on December 16, 1915.  (Exhibit zz)
Subsequently thereafter, he took up residence in Laoang,
Samar.

“3.   On February 4, 1932, he married Agrifina
E. Lao.  Their wedding was celebrated
according to the rites and practices of the Roman Catholic Church in the Municipality
of Laoang
(Exh. E).

“4.   At the time of her
marriage to Jose Ong Chuan, Agrifina
E. Lao was a natural-born Filipino citizen, both her parents at the time of her
birth being Filipino citizens.  (Exhibits
E & I)

“5.   On February 15, 1954, Jose Ong
Chuan, desiring to acquire Philippine citizenship, filed his petition for
naturalization with the Court of First Instance of Samar,
pursuant to Commonwealth Act No. 473, otherwise known as the Revised Naturalization
Law.

“6.   On April 28, 1955, the Court of First Instance of Samar rendered a decision approving the application of Jose
Ong Chuan for naturalization and declaring said
petitioner a Filipino citizen “with all the rights and privileges and
duties, liabilities and obligations inherent to Filipino citizens.  (Exh.
E)

“7.   On May 15, 1957, the same Court issued
an order:

‘(1)   declaring the decision of this Court of April 28, 1955 final and executory;

‘(2)    directing
the clerk of court to issue the corresponding Certificate of Naturalization in
favor of the applicant Ong Chuan who prefers to take
his oath and register his name as Jose Ong
Chuan.  Petitioner may take his oath as
Filipino citizen under his new christian name, Jose Ong Chuan.’ (Exh.
F)

“8.     On the same day,
Jose Ong Chuan having taken the corresponding oath of
allegiance to the Constitution and the Government of the Philippines
as prescribed by Section 12 of Commonwealth Act No. 473,
was issued the corresponding Certificate of Naturalization.  (Exh.
G)

“9.     On November 10, 1970, Emil L. Ong, a full-brother of the protestee
and a son born on July 25, 1937
at Laoang, Samar
to the spouses Jose Ong Chuan and Agrifina
E. Lao, was elected dele­gate from Northern Samar
to the 1971 Consti­tutional Convention.

“10.   By protestee’s own testimony, it was established that he had
attended grade school in Laoang.  Thereafter, he went to Manila
where he finished his secondary as well as his college education.  While later employed in Manila,
protestee however went home to Laoang
whenever he had the opportunity to
do so which invariably would be as frequent as twice to four times a year.

“11.   Protestee also showed that being a native and legal
resident of Laoang, he registered as a
voter therein and correspondingly voted in said municipality in the 1984
and 1986 elections.

“12.   Again in December
1986, during the general re-registration of all voters in the country, Protestee registered as a voter in Precinct No. 4 of Barangay Tumaguinting in Laoang.  In his voter’s
affidavit, Protestee indicated that he is a resident
of Laoang since birth.” (Exh.
7)^[1]

Petitioners’ motions for reconsideration of the tribunal’s
decision having been denied, petitioners filed the present petitions.

In their comments, the respondents first raise the issue of the
Court’s jurisdiction to review the decision of the House Electoral Tribunal,
considering the constitutional provision vesting upon said tribunal the power
and authority to act as the sole judge of all contests relating to the qualifications of
the Members of the House of Represen­tatives.^[2]

On the question of this Court’s jurisdiction over the present
controversy, I believe that, contrary to the respondents’ contentions, the
Court has the jurisdiction and competence to review the questioned decision of
the tribunal and to decide the present controversy.

Article VIII, Section 1 of the 1987 Constitution provides that:

“Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and
enforceable, and 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.”

The Constitution, it is true, constitutes the tribunal as the sole
judge of all contests
relating to the election, returns, and qualifications of Members of the House
of Repre­sentatives.  But as early as
1938, it was held in Morrero vs.
Bocar,^[3]
construing Section 4, Article VI of the 1935 Constitution which provided that
“x x x The Electoral
Commis­sion shall be the sole judge of all contests relating to the election,
returns and qualifications of the Members of the National Assembly,” that:

“The judgment rendered by the (electoral) commission in the
exercise of such an acknowledged power is beyond judicial interference, except,
in any event, ‘upon a clear showing of such arbitrary and improvident use of
the power as will consti­tute a denial of due process of law.’ (Barry vs. US ex
rel. Cunningham, 279 US
597; 73 Law. ed., 867; Angara
vs. Electoral Commission, 35 Off. Gaz., 23.)”

And then under the afore-quoted provisions of Article VIII,
Section 1 of the 1987 Constitution, this Court is duty-bound to determine
whether or not, in an actual controversy, 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.

The present controversy, it will be observed, involves more than
perceived irregularities in the conduct of a congressional election or a disputed appreciation of ballots,
in which cases, it may be contended with great legal force and persuasion that
the decision of the electoral tribunal should be final and conclusive, for it is, by constitutional directive, made
the sole judge of contests relating to such matters.  The present controversy, however, involves no
less than a determination of whether the qualifications for membership in the
House of Representatives, as prescribed by
the Constitution, have been met.  Indeed, this Court would be unforgivably
remiss in the performance of its duties, as mandated by the Constitution, were
it to allow a person, not a natural-born Filipino citizen, to
continue to sit as a Member of
the House of Representatives, solely because the House Electoral Tribunal has
declared him to be so.  In such a case,
the tribunal would have acted with grave abuse of discretion amounting to lack
or excess of jurisdiction as to require the exercise by this Court of its power
of judicial review.

Besides, the citizenship and residence qualifications of private
respondent for the office of Member of the House of Representatives,
are here controverted by petitioners who, at the same
time, claim that they are entitled to the office illegally held by private
respondent.  From this additional
direction, where one asserts an earnestly perceived right that in turn is
vigorously resisted by another, there is clearly a justiciable controversy proper for this Court to consider
and decide.

Nor can it be said that the Court, in reviewing the decision of
the tribunal, asserts supremacy over it in contravention of the time-honored
principle of constitutional separation of powers.  The Court in this instance simply performs a
function entrusted and assigned to it by the Constitution of interpreting, in a justiciable
controversy, the pertinent provisions of the Constitution with finality.

“It is the role of the Judiciary to refine and, when
necessary, correct constitutional (and/or statutory) interpretation, in the
context of the interactions of the three branches of the government, almost
always in situations where some agency of the State has engaged in action that
stems ultimately from some legitimate area of governmental power (the Supreme
Court in Modern Role, C.B. Sevisher, 1958, p.
36).”^[4]

Moreover, it is decidedly a
matter of great public interest and concern to determine whether or not
private respondent is qualified to hold so important and high a public office which
is specifically reserved by the Consti­tution only to natural-born Filipino
citizens.

After a careful consideration of the issues and the evidence, it
is my considered opinion that the respondent tribunal committed grave abuse of
discretion amounting to lack or excess of jurisdiction in rendering its
questioned decision and resolution, for reasons to be presently stated.

The Constitution^[5]
requires that a Member of the House of Representatives must be a natural-born
citizen of the Philippines and, on the day of the election, is at least
twenty-five (25) years of age, able to read and write, and, except the party-list representatives,
a registered voter in the district in which he shall be elected, and a resident
thereof for a period of not less than one (1) year imme­diately preceding the
day of the election.

Article IV, Section 2 of the 1987 Constitution defines
natural-born (Filipino) citizens as:

“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.  Those who elect Philippine citizenship in accordance with
paragraph (3), Section 1 hereof shall be deemed
natural-born citizen.”

Article IV, Section 1, paragraph (3) of the 1987 Constitution
provides that:

“Section 1.  The following are citizens of the Philippines:

x x
x

“(3)
Those born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon reaching the age of
majority.”

The Court in this case is faced with the duty of interpreting the
above-quoted constitutional provisions. 
The first sentence of Section 2 of Article IV states the basic
definition of a natural-born Filipino citizen. 
Does private respondent fall within said definition?

To the respondent tribunal,

“Protestee may even be declared a
natural-born citizen of the Philippines
under the first sentence of Sec. 2 of Article IV of the 1987 Constitution
because he did not have ‘to perform any act to acquire or perfect his
Philippine citizenship.’ It bears to repeat that on 15 May 1957, while still a minor of 9 years he
already became a Filipino citizen by declaration of law.  Since his mother was a natural-born citizen at the time of her marriage, protestee had an inchoate right to Philippine citizenship
at the moment of his birth and, consequently the declaration by virtue of Sec.
15 of CA 473 that he was a Filipino
citizen retroacted to the moment of his birth without his having to perform any act to acquire or perfect such
Philippine citizenship.”^[6]

I regret that I am neither convinced nor persuaded by such
kaleidoscopic ratiocination.  The records
show that private respondent was born on 19 June 1948 to the spouses Jose Ong Chuan, a Chinese citizen, and Agrifina
E. Lao, a natural-born Filipino citizen, in Laoang,
Northern Samar. 
In other words, at birth, private respondent was a Chinese
citizen (not a natural-born Filipino citizen) because his father was then a
Chinese citizen (not a naturalized Filipino citizen).  Under the 1935 Constitution which was
enforced at the time of private respondent’s birth on 19 June 1948, only those whose fathers were
citizens of the Philippines
were considered Filipino citizens.  Those
whose mothers were citizens of the Philippines
had to elect Philippine citizenship upon reaching the age of majority, in order
to be considered Filipino citizens.^[7]

Following the basic definition in the 1987 Constitution of a
natural-born citizen, in relation to the 1935 Consti­tution, private respondent
is not a natural-born Filipino citizen, having been born
a Chinese citizen by virtue of the
Chinese citizenship of his father at the
time of his birth, although from birth, private respondent had the right to
elect Philippine citizenship, the citizenship of his mother, but only upon his
reaching the age of majority.

While under Section 15 of the Revised Naturalization Law (C.A.
473) minor children of a naturalized citizen (father), who were born in the
Philippines prior to the naturalization of the parent automatically become
Filipino citizens,^[8]
this does not alter the fact that private respondent was not born to a Filipino
father, and the operation of Section 15 of CA 473 did not confer upon him the
status of a natural-born citizen merely because he did not have to
perform any act to acquire or perfect his status as a Filipino citizen.

But even assuming arguendo that
private respondent could be considered a natural-born citizen by virtue of the
operation of CA 473, petitioners however contend that the naturalization of
private respondent’s father was invalid and void from the beginning, and,
therefore, private respondent is not even a
Filipino citizen.

Respondent tribunal in its questioned decision ruled that only a direct proceeding for nullity of
naturalization as a Filipino
citizen is permissible, and, therefore, a collateral attack on Ong Chuan’s naturalization is
barred in an electoral contest which does not even involve him (Ong Chuan).

Private respondent, for his part, avers in his Comment that the
challenge against Ong Chuan’s
naturalization must emanate from the Government and must be made in a
proper/appropriate and direct proceeding for de-naturalization directed against
the proper party, who in such case is Ong Chuan, and
also during his lifetime.

A judgment in a naturalization proceeding is not, however,
afforded the character of impregnability under the principle of res judicata.^[9]
Section 18 of CA 473 provides that a certificate of naturalization may be
cancelled upon motion made in the proper proceeding by the Solicitor General or
his representative, or by the proper provincial fiscal.

In Republic vs. Go Bon Lee,^[10]
this Court held that:

“An alien friend is offered under certain conditions the
privilege of citizenship.  He may accept
the offer and become a citizen upon compliance with the prescribed conditions,
but not otherwise.  His claim is of
favor, not of right.  He can only become a citizen upon and after a
strict compliance with the acts of Congress. 
An applicant for this high privilege is bound, therefore, to conform to
the terms upon which alone the right he seeks can be conferred.  It is his province, and he is bound, to see
that the jurisdictional facts upon which the grant is predicated actually
exist, and if they do not he takes nothing by this paper grant.

x        x          x

“Congress having limited this privilege to a specified class
of persons, no other person is entitled to such privilege, nor to a certificate
purporting to grant it, and any such certificate issued to a person not so
entitled to receive it must be treated as a mere nullity, which confers no
legal rights as against the government, from which it has been obtained without
warrant of law.”

“Naturalization is not a right, but a privilege of the most
discriminating as well as delicate and exacting nature, affecting public
interest of the highest order, and which may be enjoyed only under the precise
conditions prescribed by law therefor.”^[11]

Considering the legal implications of the allegation made by the
petitioners that the naturalization of private respondent’s father Ong Chuan, is a nullity, the Court
should make a ruling on the validity of said naturalization proceedings.  This course of action becomes all the more
inevitable and justified in the present case where, to repeat for stress, it is
claimed that a foreigner is holding a public office.^[12]

It cannot be overlooked, in this connection, that the citizenship
of private respondent is derived from his father.  If his father’s Filipino citizenship is void from
the beginning, then there is nothing from which private respondent can derive
his own claimed Filipino citizenship. 
For a spring cannot rise higher than its source.  And to allow private respondent to avail of
the privileges of Filipino citizenship by virtue of a void naturalization of
his father, would constitute or at least sanction a continuing offense against
the Constitution.

The records show that private respondent’s father, Jose Ong Chuan, took the oath of allegiance to the Constitution
and the Philippine Government, as prescribed
by Section 12 of CA 473 on the same day (15 May 1957) that the CFI issued its
order directing the clerk of court to issue the corres­ponding Certificate of
Naturalization and for the applicant to take the oath of allegiance.

However, it is settled that an order granting a petition to take
the requisite oath of allegiance of one who has previously obtained a decision
favorable to his appli­cation for naturalization, is appealable.  It
is, therefore, improper and illegal to authorize the taking of said oath upon
the issuance of said order and before the expiration of the reglementary
period to perfect any appeal from said order.^[13]

In Cua Sun Ke vs. Republic,^[14]
this Court held that:

“Administration of the oath of allegiance on the same day as
issuance of order granting citizen­ship is irregular and makes the proceedings
so taken null and void.  (Republic vs. Guy, 115 SCRA 244 [1982]; citing the case of Ong So vs. Republic of the Philippines, 121 Phil.
1381).”

It would appear from the foregoing discussion that the
naturalization of Jose Ong Chuan (private
respondent’s father) was null and void. 
It follows that the private respondent did not acquire any legal rights
from the void naturalization of his father and thus he cannot himself be
considered a Filipino citizen, more so, a natural-born Filipino citizen.

But assuming that the CFI order of 15 May 1957 directing the
clerk of court to issue the certificate of naturalization to Ong Chuan and for the latter to take the oath of allegiance
was final and not appealable, the resulting
naturalization of Ong Chuan effected, as previously
stated, an automatic naturalization of private respondent, then a minor, as a Filipino citizen on 15 May 1957, but
not his acquisition or perfection of the status of a natural-born Filipino
citizen.

Let us now look into the question of whether or not private
respondent acquired the status of a natural-born Filipino citizen by reason of
the undisputed fact that his mother was a natural-born Filipino citizen.  This in turn leads us to an examination of
the second sentence in Article IV,
Section 2 of the 1987 Constitution.  It
expands, in a manner of speaking, in relation to Section 1, paragraph (3) of
the same Article IV, the status of a natural-born Fili­pino citizen to those
who elect Philippine citizenship upon reaching the age of majority.  The right or privilege of election is
available, however, only to those born to Filipino mothers under the 1935
Constitution, and before the 1973 Constitution took effect on 17 January 1973.

The petitioners contend that the respondent tribunal acted in
excess of its jurisdiction or gravely abused its discretion as to exceed its
jurisdiction in “distorting” the conferment by the 1987 Constitution
of the status of “natural-born” Filipino citizen on those who elect
Philip­pine citizenship – all in its strained effort, according to petitioners,
to support private respondent’s qualification to be a Member of the House of
Representatives.^[15]

Petitioners argue that the clear, unambiguous wording of section
1(3) of Article IV of the 1987 Constitution contemplates that only the
legitimate children of Filipino mothers with alien fathers, born before 17
January 1973 and who would reach the age of majority (and thus elect Philippine
citizenship) after the effectivity of the 1987
Constitution are entitled to the status of natural-born Filipino citizen.^[16]

The respondent tribunal in
resolving the issue of the constitutional provisions’ interpretation,
found reason to refer to the interpellations made during the 1986 Consti­tutional
Commission.  It said:

“That the benevolent provisions of Sections 2 and 1(3) of
Article IV of the 1987 Constitution was (sic) intended by its (sic) framers to be
endowed, without distinction, to all Filipinos by election pursuant to the 1935
Constitution is more than persuasively established by the extensive
interpellations and debate on the issue as borne by the official records of the
1986 Constitutional Commission.”^[17]

Although I find the distinction as to when election of Philippine citizenship was made
irrelevant to the case at bar, since private respondent, contrary to the
conclusion of the respondent tribunal, did not elect Philippine citizenship, as
provided by law, I still consider it necessary to settle the controversy
regarding the meaning of the consti­tutional provisions in question.

I agree with respondent tribunal that the debates,
interpellations and opinions expressed in the 1986 Constitutional Commission
may be resorted to in ascertaining the meaning of somewhat elusive and even
nebulous constitutional provisions.  Thus
–

“The ascertainment of that intent is but in keeping with the
fundamental principle of consti­tutional construction that the intent of the
framers of the organic law and of the people adopting it should be given
effect.  The primary task in
constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of
the Constitution.  It may also be safely
assumed that the people in ratifying the constitution were guided mainly by the
explanation offered by the framers.”^[18]

The deliberations of the 1986 Constitutional Commission relevant
to Section 2, Article IV in relation to Section 1(3) of the same Article,
appear to negate the contention of petitioners that only those born to Filipino
mothers before 17 January 1973 and who would elect Philippine citizenship after the effectivity of the 1987
Constitution, are to be considered natural-born Filipino citizens.

During the free-wheeling discussions on citizenship, Commissioner
Treñas specifically asked Commissioner Bernas regarding the provisions in question, thus:

“MR. TRENAS.  The
Committee on Citizenship, Bill of Rights, Political Rights and Obligations and
Human Rights has more or less decided to extend the interpretation of who is a
natural-born Filipino citizen as provided in Section 4 of the 1973
Constitution, by adding that persons who have elected Philippine citizenship
under the 1935 Constitution shall be considered natural-born.  Am I right, Mr. Presiding Officer?

“FR. BERNAS:  Yes.

“MR. TRENAS:  And does
the Commissioner think that this addition to Section 4 of the 1973 Constitution
would be contrary to the spirit of that section?

“FR. BERNAS.  Yes, we
are quite aware that it is contrary to the letter really.  But whether it is contrary to the spirit is something that has been debated before
and is being debated even now.  We will
recall that during the 1971 Constitutional Convention, the status of
natural-born citizenship of one of the delegates, Mr. Ang,
was challenged precisely because he was a citizen by election.  Finally, the 1971 Constitutional Convention
considered him a natural-born citizen, one of the requirements to be a Member
of the 1971 Constitutional Convention. 
The reason behind that decision was that a person under his
circumstances already had the inchoate right to be a citizen by the fact that
the mother was a Filipino.  And as a
matter of fact, the 1971 Constitutional Convention formalized that recognition
by adopting paragraph 2 of Section 1 of the 1971 Constitution.  So, the entire purpose of this proviso is
simply to perhaps remedy whatever injustice there may be so that these people
born before January 17, 1973 who are not naturalized and people who are not
natural born but who are in the same situation as we are considered
natural-born citizens.  So, the intention
of the Committee in proposing this is to equalize their status.”^[19]

When asked to clarify the provision on natural-born citizens,
Commissioner Bernas replied to Commissioner Azcuna thus:

“MR. AZCUNA.  With respect to the proviso in Section
4, would this refer only to those who elect Philippine citizenship after the effectivity of the 1973 Constitution or would it also cover
those who elected it under the 1935 Constitution?

“FR. BERNAS.  It would
apply to anybody who elected Philippine citizenship by virtue of the provision
of the 1935 Constitution, whether the election was done before or after 17 January 1973.”^[20]

And during the period of amendments, Commissioner Rodrigo
explained the purpose of what now appear as Section 2 and Section 1, paragraph
(3) of Article IV of the 1987 Constitution, thus:

“MR. RODRIGO.  The
purpose of that proviso is to remedy an inequitable situation.  Between 1935 and 1973, when we were under the
1935 Constitution, those born of Filipino fathers but alien mothers were
natural-born Filipinos.  However, those
born of Filipino mothers but alien fathers would have to elect Philippine
citizenship upon reaching the age of majority; and, if they do elect, they
become Filipino citizens, yet, but not natural-born Filipino citizens.

The 1973 Constitution equalized the status of those born of
Filipino mothers and those born of Filipino fathers.  So that from January 17, 1973 when the 1973
Constitution took effect, those born of Filipino mothers but of alien fathers
are natural-born Filipino citizens. 
Also, those who are born of Filipino fathers and alien mothers are
natural-born Filipino citizens.

If the 1973 Constitution equalized the status of a child born of a
Filipino mother and that born of a Filipino father, why do we not give a chance
to a child born before January 17,
1973, if and when he elects Philippine citizenship, to be in the
same status as one born of a Filipino father – namely, natural-born citizen.

Another thing I stated is equalizing the status of a father and a
mother vis-a-vis the child.  I would like to state also that we should
equalize the status of a child born of a Filipino mother the day before January 17, 1973 and a child born
also of a Filipino mother on January 17 or 24 hours later.  A child born of a Filipino mother but an
alien father one day before January
17, 1973 is a Filipino citizen, if he elects Philippine
citizenship, but he is not a natural-born Filipino citizen.  However, the other child who luckily was born
24 hours later – maybe because of parto laborioso – is a natural-born Filipino citizen.”^[21]

It would appear then that the intent of the framers of the 1987
Constitution in defining a natural-born Filipino citizen was to equalize the
position of Filipino fathers and Filipino mothers as to their children becoming
natural-born Filipino citizens.  In other
words, after 17 January 1973,
effectivity date of the 1973 Constitution, all
those born of Filipino fathers (with alien spouse) or Filipino mothers (with
alien spouse) are natural-born Filipino citizens.  But those born to Filipino mothers prior to 17 January 1973
must still elect Philippine citizenship upon their reaching the age of
majority, in order to be deemed natural-born Filipino citizens.  The election, which is related to the
attainment of the age of majority, may be made before or after 17 January 1973.  This interpretation appears to be in
consonance with the fundamental purpose of the Constitution which is to protect
and enhance the people’s individual interests,^[22]
and to foster equality among them.

Since private respondent was born on 19 June 1948 (or before 17
January 1973) to a Filipino mother (with an alien spouse) and should have
elected Philippine citizenship on 19 June 1969 (when he attained the age of
majority), or soon thereafter, in order to have the status of a natural-born Filipino citizen under
the 1987 Constitution, the vital question is: 
did private respondent really elect Philippine citizenship?  As earlier stated, I believe that private
respondent did not elect Philippine citizenship, contrary to the ruling of the
respondent tribunal.

The respondent tribunal, on this issue, ruled as follows:

“Where a person born to a Filipino mother and an alien father
had exercised the right of suf­frage when he came of age, the same constitutes
a positive act of election of Philippine citizen­ship.  (Florencio vs. Mallare) [sic] The acts of the
petitioner in registering as a voter, participating in elections and
campaigning for certain candidates were held by the Supreme Court as sufficient
to show his preference for Philippine citizenship.  Accordingly, even without complying with the
formal requisites for election, the petitioner’s Filipino citizenship was
judicially upheld.”^[23]

I find the above ruling of the respondent tribunal to be patently
erroneous and clearly untenable, as to amount to grave abuse of
discretion.  For it is settled doctrine
in this jurisdiction that election of Philippine citizenship must be made in
accordance with Commonwealth Act 625. 
Sections 1 and 2^[24]
of the Act mandate that the option to elect
Philippine citizenship must be effected expressly, not impliedly.

The respondent tribunal cites In re: Florencio Mallare^[25]
which held that Esteban Mallare’s exercise of the
right of suffrage when he came of age, constituted a positive act of election
of Philippine citizenship.

Mallare, cited by respondent
tribunal as authority for the doctrine of implied election of Philippine
citizenship, is not applicable to the case at bar.  The respondent tribunal failed to consider
that Esteban Mallare reached the age of majority in
1924, or seventeen (17) years before CA 625 was approved and, more importantly, eleven (11) years
before the 1935 Constitution (which granted the right of election) took effect.

To quote Mr. Justice Fernandez in Mallare:

“Indeed, it would be unfair to expect the presentation of a
formal deed to that effect consi­dering that prior to the enactment of
Commonwealth Act 625 on June 7, 1941, no particular proceeding was required to
exercise the option to elect Philippine citizenship, granted to the proper
party by Section 1, subsection 4, Article IV of the 1935 Philippine
Constitution.”^[26]

Moreover, Esteban Mallare
was held to be a Filipino
citizen because he was an illegitimate (natural) child of
a Filipino mother and thus followed her citizenship.  I therefore agree with the petitioners’
submission that, in citing the Mallare case,
the respondent tribunal had engaged
in an obiter dictum.

The respondent tribunal also erred in ruling that by operation of CA 473, the Revised
Naturalization Law, providing for private respondent’s acquisition of Filipino
citizenship by reason of the naturalization of his father, the law itself had
already elected Philippine citizenship for him. 
For, assuming arguendo that the
naturalization of private respondent’s father was valid, and that there was no
further need for private respondent to elect Philippine citizenship (as he had automatically become a Filipino citizen) yet, this did
not mean that the operation of the
Revised Naturalization Law amounted to an election by him of Philippine
citizenship as contemplated by the Constitution.  Besides, election of Philippine citizenship
derived from one’s Filipino mother, is made upon reaching the age of majority,
not during one’s minority.

There is no doubt in my mind, therefore, that private respondent
did not elect Philippine citizenship upon reaching the age of majority in 1969 or within a reasonable time
thereafter as required by CA 625.  Consequently, he cannot be deemed a
natural-born Filipino citizen under Sections 2 and 1(3), Article IV of the 1987
Constitution.

Based on all the foregoing considerations and premises, I am
constrained to state that private respondent is not a natural-born citizen of
the Philippines in contemplation of Section 6, Article VI of the 1987
Constitution in relation to Sections 2 and 1(3), Article IV thereof, and hence
is disqualified or ineligible to be a Member of the House of Representatives.

At this point, I find it no longer necessary to rule on the issue
of required residence, inasmuch as the Consti­tution requires that a Member of
the House of Representa­tives must be both a natural-born Filipino
citizen and a resident for at
least one (1) year in the district in which he shall be elected.

The next question that comes up is whether or not either of the
petitioners can replace private respondent as the Representative of the second
legislative district of Northern Samar in the House
of Representatives.

I agree with respondent tribunal that neither of the petitioners may
take the place of private respondent in the House of Representatives
representing the second district of Northern Samar.  The ruling of this Court in Ramon L. Labo, Jr.
vs. The Commission on Elections (COMELEC)
EN BANC and Luis L. Lardizabal,^[27]
is controlling.  There we held that Luis
L. Lardizabal, who filed the quo warranto petition, could not
replace Ramon L. Labo, Jr. as mayor of Baguio City
for the simple reason that as he obtained only the second highest number of
votes in the election, he was obviously not the choice of the people of Baguio City
for mayor of that City.

A petition alleging that the candidate-elect is not qualified for
the office is, in effect, a quo warranto
proceeding even if it is labelled an election
protest.^[28]
It is a proceeding to unseat the ineligible person from office but not
necessarily to install the protestant in his place.^[29]

The general rule is that the fact that a plurality or a majority
of the votes are cast for an ineligible candidate in an election does not
entitle the candidate receiving the next highest number of votes to be declared
elected.  In such a case, the electors
have failed to make a choice and the election is a nullity.^[30]

“Sound policy dictates that public elective offices are filled
by those who have the highest number of votes cast in the election for that
office, and it is a fundamental idea in all republican forms of government that
no one can be declared elected and no measure can be declared carried unless he
or it receives a majority or plurality of the legal votes cast in the
election.  (20 Corpus Juris
2nd, S 243, p. 676).

“As early as 1912, this Court has
already declared that the candidate who lost in an election cannot be
proclaimed the winner in the event that the candidate who won is found ineligible
for the office to which he was elected. 
This was the ruling in Topacio v. Paredes (23 Phil. 238) –

‘Again, the effect of a decision that a candidate is not entitled
to the office because of fraud or irregula­rities in the election is quite diffe­rent from that produced by
declaring a person ineligible to hold such an office.  xxx If it be found
that the successful candidate (according to the board of canvassers) obtained a
plura­lity in an illegal manner, and that another candidate was the real
victor, the former must retire in favor of the latter.  In the other case, there is not, stricly speaking, a contest, as the wreath of victory
cannot be transferred from an ineligible candidate to any other candidate when
the sole question is the eligibility of the one receiving a plurality of the
legally cast ballots.  x
x x.”^[31]

The recognition of Emil L. Ong by the 1971 Constitutional Convention as a natural-born
Filipino citizen, in relation to the present case.

Private respondent, as previously stated, is a full brother of
Emil L. Ong, both of them having the same father and
mother.

Private respondent, relying on a resolution of the 1971
Constitutional Convention^[32]
to the effect that Emil L. Ong was a natural-born
Filipino citizen, alleged before the House Electoral Tribunal that, by analogy,
he is himself a natural-born Filipino citizen. 
This submission, while initially impressive, is, as will now be shown,
flawed and not supported by the evidence. 
Not even the majority decision of the electoral tribunal adopted the
same as the basis of its decision in favor of private respondent.  The tribunal, in reference to this
submission, said:

“Be that as it may and in the light of the Tribunal’s
disposition of protestee’s citizenship based on an
entirely different set of circums­tances, apart from the indisputable fact that
the matters attempted to be brought in issue in connection therewith are too
far removed in point of time and relevance from the decisive events relied upon
by the Tribunal, we view these two issues as being already
inconsequential.”^[33]

The electoral tribunal (majority) instead
chose to predicate its decision on the alleged citizenship by naturalization of
private respondent’s father (Ong Chuan) and on the
alleged election of Philippine citizenship by private respondent.

Emil L. Ong, was elected delegate to the 1971 Constitu­tional
Convention.  Electoral protests, numbers
EP-07 and EP-08, were filed by Leonardo D. Galing and
Gualberto D. Luto against
Emil L. Ong, contesting his citizenship
qualification.  The Committee on Election
Protests and Credentials of the 1971 Constitutional Convention heard the
protests and submitted to the Convention a report dated 4 September 1972, the dispositive portion of which stated:

“It appearing that protestee’s
grandfather was himself a Filipino citizen under the provi­sions of the
Philippine Bill of 1902 and the Treaty of Paris of December 10, 1898, thus
conferring upon protestee’s own father, Ong Chuan, Philippine citizenship at birth, the conclusion
is inescapable that protestee himself is a
natural-born citizen, and is therefore qualified to hold the office of delegate
to the Constitutional Convention.”^[34]

On 28 November 1972,
during a plenary session of the 1971 Constitutional Convention, the election
protests filed against Emil L. Ong were dismissed,
following the report of the Committee on Election Protests and Credentials.^[35]

It is evident, up to this point, that the action of the 1971
Constitutional Convention in the case of Emil
L. Ong is, to say the least, inconclusive to
the case at bar, because –

a)  the
1971 Constitutional Convention decision in the Emil L. Ong
case involved the 1935 Constitution; the present case, on
the other hand involves the 1987 Constitution:

b)  the
1935 Constitution contained no specific definition of a “natural-born
citizen” of the Philippines;
the 1987 Constitution contains a precise and specific definition of a
“natural-born citizen” of the Philippines
in Sec. 2, Art. IV thereof and private respondent does
not qualify under such definition in the 1987 Constitution;

c)  the
decision of the 1971 Constitutional Convention in the case of Emil L. Ong was a decision of a political body, not
a court of law. 
And, even if we have to take such a decision as a decision of a quasi-judicial
body (i.e., a political body exercising quasi-judicial functions), said
decision in the Emil L. Ong case can not have the
category or character of res judicata in the present judicial controversy,
because between the two (2) cases, there is no identity of parties (one
involves Emil L. Ong, while the other involves
private respondent) and, more importantly, there is no identity of causes of
action because the first involves the 1935 Constitution while the second
involves the 1987 Constitution.

But even laying aside the foregoing reasons based on procedural
rules and logic, the evidence submitted before the electoral tribunal
and, therefore, also before this Court, does not support the allegations made
by Emil L. Ong before the 1971 Constitutional
Convention and, inferentially adopted by private respondent in the present
controversy.  This leads us to an
interesting inquiry and finding.

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).”^[36]

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.

Petitioners (protestants) submitted and offered in evidence
before the House Electoral Tribunal exhibits W, X, Y, Z, AA, BB, CC, DD and EE
which are copies of entries in the “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 respondent’s 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 of 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:^[37]

 “x x x.  Everytime the
citizenship of a person is material or 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 adjudicate, hence it has to be threshed out again
and again as the occasion may demand.”

Which finally brings us to the resolution of
this Court in Emil L. Ong vs. COMELEC, et al.,
G.R. No. 67201, 8 May 1984.  In connection with said resolution, it is
contended by private respondent that the resolution of the 1971 Constitutional
Convention in the Emil L. Ong case was elevated to
this Court on a question involving Emil L. Ong’s
disqualification to run for membership in the Batasang
Pambansa and that, according to private respondent,
this Court allowed the use of the Committee Report to the 1971 Constitutional
Convention.

To fully appreciate the implications of such contention, it would
help to look into the circumstances of the case brought before this Court in
relation to the Court’s action or disposition. 
Emil L. Ong and Edilberto
Del Valle were both candidates for the Batasang Pambansa in the 14
May 1984 election.  Valle
filed a petition for disqualification with the Commission on Election on 29 March 1984 docketed as SPC No.
84-69 contending that Ong is not a natural-born
citizen.  Ong
filed a motion to dismiss the
petition on the ground that the judgment of the 1971 Constitutional Convention
on his status as a natural-born citizen of the Philippines
bars the petitioner from raising the identical issue before the COMELEC.  (G.R. No. 67201, Rollo,
p. 94) The motion was denied by
the COMELEC, thus, prompting Emil L. Ong to file with
this Court a petition for certiorari, prohibition and mandamus
with preliminary injunction against the COMELEC, docketed as G.R. No. 67201.

In a resolution dated 8 May 1984, this Court resolved to issue a
writ of preliminary injunction enjoining respondent COMELEC from holding any
further hearing on the disqualification case entitled “Edilberto
Del Valle vs. Emil Ong (SPC No. 84-69) except to
dismiss the same.  (G.R. Nos. 92202-03, Rollo, p. 335)

This Court, in explaining
its action, held that:

“Acting on the prayer of the petitioner for the issuance of a
Writ of Preliminary Injunction, and considering that at the hearing this
morning, it was brought out that the 1971 Constitutional Convention, at its
session of November 28, 1972, after considering the Report of its Committee on
Election Protests and Credentials, found that the protest questioning the
citizenship of the protestee (the petitioner herein)
was groundless and dismissed Election Protests Nos. EP 07 and EP 08 filed
against said petitioner (p. 237, Rollo), the
authenticity of the Minutes of said session as well as of the said Committee’s
Report having been duly admitted in evidence without objection and bears out, for
now, without need for a full hear­ing, that petitioner is a natural-born
citizen, the Court Resolved to ISSUE, effective immediately, a Writ of Preliminary Injunction
enjoining respondent COMELEC from holding any further hearing on the disqualification case entitled Edilberto
Del Valle vs. Emil Ong (SPC No. 84-69) scheduled at
3:00 o’clock this afternoon, or any other day, except to dismiss the same.  This is without prejudice to any
appropriate action that private respondent may wish to take after the elections.”
(underscoring supplied)

It is thus clear that the resolution of this Court in G.R. No.
67201 was rendered without the benefit of a hearing on the merits either by the
Court or by the COMELEC and merely on the basis of a Committee’s Report to the 1971 Constitutional Convention, and
that this Court (and this is quite significant) did not foreclose any
appropriate action that Del Valle (therein petitioner) may wish to take after
the elections.

It is thus abundantly clear also that to this Court, the
resolution of the 1971 Constitutional Convention recognizing Emil L. Ong as a natural-born citizen under the 1935 Constitution did not foreclose a future or further
proceeding in regard to the same question and that, conse­quently, there is no vested
right of Emil L. Ong to such recognition.  How much more when the
Constitution involved is not the 1935 Constitution but the 1987 Constitution
whose provisions were never considered in all such proceedings because the 1987
Constitution was still inexistent.

A final word.  It is regrettable that one (as private
respondent) who unquestionably obtained the highest number of votes for the
elective position of Representative (Cong­ressman) to the House of
Representatives for the second district of Northern Samar,
would have had to cease in office by virtue of this Court’s decision, if
the full membership of the Court had
participated in this case, with the result that the
legislative district would cease to have, in the interim, a representative in
the House of Representatives.  But the
fundamental consideration in cases of this nature is the Constitution and only
the Constitution.  It has to be assumed,
therefore, that when the electorate in the second legislative district of
Northern Samar cast the majority of their votes for
private respondent, they assumed and believed that he was fully eligible and
qualified for the office because he is a natural-born Filipino citizen.  That erroneous assumption and belief can not
prevail over, but must yield to the majesty of the Constitution.

This is a sad day for the Constitution.  As I see it, the Constitution mandates that
members of the House of Representatives should be “natural–born
citizens of the Philippines”.  The voting majority of the present Court
says, “Filipino citizens will do.” This is bad enough.  What is worse is, the same voting majority,
in effect, says, “even aliens will do as well.”

WHEREFORE, my vote is
clear:  to declare private respondent
Jose L. Ong Chuan, Jr., as he clearly is, NOT a
natural-born citizen of the Philippines
and therefore NOT QUALIFIED to
be a Member of the House of Representatives, Congress of the Philippines.

---

*
With the concurrence of Congressmen Mario L. Tagarao,
David A. Ponce De Leon, Simeon E. Garcia, Juanito G. Camasura, Jr. and Jose E. Calingasan;
Justices Ameurfina A. Melencio-Herrera,
Isagani A. Cruz, Florentino
P. Feliciano and Congressman Antonio H. Cerilles
dissented.

^[1]
G.R. Nos. 92191-92, Rollo, pp. 21-23

^[2]
Section 17, Article VI, 1987 Constitution

^[3]
No. 45352, October 31, 1938,
66 Phil. 429

^[4]
Chartered Bank Employees Association vs. Ople,
G.R. No. 44717, August 28, 1985,
138 SCRA 273

^[5]
Article VI, Section 6

^[6]
G.R. No. 92191-92, Rollo, pp. 41-42

^[7]
Article III, Section 1 (3) and (4), 1935 Constitution provide:

Section 1.  The following are citizens of the Philip­pines.

 x x x

(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.

^[8]
Burca vs.
Republic, G.R. No. L-24252, January
30, 1967, 19 SCRA 186

^[9]
Sia Reyes vs.
Deportation Board, No. L-31763, May
30, 1983, 122 SCRA 478

^[10]
G.R. No. L-11499, April 29, 1961, 1 SCRA 1167 citing U.S. vs.
Sponrer, 175 Fed. 440

^[11]
Cuaski Tan
Si vs. Republic, G.R. No. L-18006, October 31, 1962, 6 SCRA 545

^[12]
Labo vs. COMELEC, G.R. No. 86564, August 1, 1989, 176 SCRA 1

^[13]
Tan vs. Republic, G.R. No. L-28706, January 30, 1971, 37 SCRA 353

^[14]
G.R. No. L-29674, April 8, 1988, 159 SCRA 477

^[15]
G.R. No. 92191-92, Rollo, p. 7

^[16]
G.R. No. 92202-03, Rollo, p. 23

^[17]
G.R. No. 92191-92, Rollo, p. 30

^[18]
Nitafan vs.
Commissioner of Internal Revenue, G.R. No. L-78780, July 23, 1987, 152 SCRA 284

^[19]
Record of the Constitutional Commission, Vol. I, p.
189

^[20]
Record of the Constitutional Commission, Vol. I, p.
228

^[21]
Record of the Constitutional Commission, Vol. I, p.
356

^[22]
Acar vs.
Rosal, G.R. No. L-21707, March 18, 1967, 19 SCRA 625

^[23]
G.R. No. 92191-92, Rollo, p. 40

^[24]
Sections 1 and 2, C.A. 625 state:

“SECTION 1.  The option to elect Philippine citizenship in
accordance with subsection (4), section 1, Article IV, of the Constitution
shall be expressed in a statement to be signed and sworn to by the party
concerned before any officer authorized to administer oaths, and shall be filed
with the nearest civil registry.  The
said party shall accompany the aforesaid statement with the oath of allegiance
to the Constitution and the Government of the Philippines.

“SECTION 2.  If the party concerned is absent from the
Philippines, he may make the statement herein authorized before any officer of
the Government of the United States authorized to administer oaths, and he
shall forward such statement together with his oath of allegiance, to the Civil
Registry of Manila.”

^[25]
Administrative Case No. 533, September
12, 1974, 59 SCRA 45

^[26]
In Re:  Florencio
Mallare, supra, p. 52

^[27]
G.R. No. 86564, August 1, 1989, 176 SCRA 1

^[28]
Luison vs.
Garcia, No. L-10981, April 25,
1958, 103 Phil. 453

^[29]
Topacio vs. Paredes,
No. 8069, October 7, 1912,
23 Phil. 238

^[30]
Llamoso vs.
Ferrer, et al. No. L-2470, August 30, 1949, 84 Phil. 490

^[31]
Geronimo vs. Ramos, G.R. No. 60504, May 14, 1985, 136 SCRA 435

^[32]
Two (2) of the members of said 1971 Constitutional Convention are now
distinguished members of the Court, namely, Sarmiento
and Davide, JJ. and
they are part of the voting majority in this case.

^[33]
G.R. Nos. 92191-92, Rollo, pp. 42-43

^[34]
G.R. Nos. 92202-03, Rollo, p. 196

^[35]
G.R. Nos. 92202-03, Rollo, p. 211

^[36]
G.R. Nos. 92202-03, Rollo, p. 193

^[37]
G.R. No. L-23446, 20 December 1971, 42 SCRA 561

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