David v. Poe - Brion dissent

7/24/2019 David v. Poe - Brion dissent

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SET Case No. 001-15 RIZALITO Y. DAVID, petitioner v. MARY

GRACEPOELLAMANZARES, respondent.

Promulgated: _______________

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SEPARATEDISSENTINGOPINION

BRION, J.:

I.

INTRODUCTION

I write this Separate Dissenting Opinion to explain my vote todisqualify the respondent Senator Mary Grace Poe Llamanzares (respondent

or Grace Poe) from the position of Senator of the Republic of the

Philippines.

I.A. The Need to Explain My Vote

I feel bound to explain my vote as before this Tribunal (the Senate

Electoral Tribunal or SET) is a nationally elected public official whoreceived the highest number of votes in the 2013 senatorial elections. The

Filipino people who elected her deserve a full and exhaustive explanation ofthe votes the SET members cast.

I take this Separate Dissenting Opinion, too, as an opportunity to offer

my thoughts (in my capacity as an Associate Justice of the Supreme Court

nominated to represent the Court in the SET) on points of law that I feel arecritical in understanding the present case. I specifically refer to the

understanding of how our treaty obligations and the general principles ofinternational law form part of the Philippine legal system, and how they

interact with the Constitution.

I also believe that as an Associate Justice of the Court (who can no

longer take part if and when the present case comes up to the Court for

review), I have the duty to express my views on any interpretation of theapplicable provisions of the 1987 Constitution particularly on a point that

I believe had been erroneously applied for to condone an error and thepractices that spring from it, is to violate my oath of office by permitting a

continuing violation of the Constitution.

I speak of this duty in relation with the Court s decision inBengzon

v. House of Representatives Electoral Tribunal,1 which held that the

1 409 Phil. 633, 637-638 (2001).


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Separate Dissenting Opinion 2 SET Case No. 001-15

reacquisition of Philippine citizenship includes the reacquisition of the

natural-born status.

While the SET has no power to reverse or declare the reversal of

the Bengzonruling, it is not withoutthe power to undertake its own readingof the Constitution. As the constitutionally designated sole judge of the

returns, elections, and qualifications 2 of members of the Senate, ourimmutable task is to apply the Constitution in accordance with its terms, as

these terms have been approved by the sovereign Filipino people, subjectonly to the Supreme Court s exercise of its power of judicial review under

Article VIII, Section 1 of the 1987 Constitution.

I.B. The Case is Justiciable

As my last point in this Introduction, the disqualification case before

us and its issues are fully justiciable and is not a dispute that the people

resolved when they elected the respondent to the Senate.

The 1987 Constitution provides, in unequivocally clear and negatively

structured language, that no person shall be a senator unless he is anatural-born citizen of the Philippines... 3 The Constitution even defined

who natural-born citizens are.4 These terms embody standards that are

required of every senator holding office under the 1987 Constitution, and areterms that this Tribunal is bound to apply until they are changed by thesovereign Filipino people.

When judicially discoverable and manageable standards for the

resolution of a case are in place, the SET as the sole judge of all contestsinvolving the election, returns, and qualifications of senators cannot and

should not refuse to rule on the contest before it under the guise ofupholding the will of the electorate.5 In the present case, the presence of

these standards renders the disqualification case against the respondent a

justiciable one that the SET cannot choose to ignore because of the votesthat the respondent received when she was elected Senator.

2 CONSTITUTION, Article VI, Section 17.3 Id., Section 3 provides:

SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the

Philippines, and, on the day of the election, is at least thirty-five years of age, able to read

and write, a registered voter, and a resident of the Philippines for not less than two years

immediately preceding the day of the election.4 Id., Section 2 provides:

SECTION 2. Natural-born citizens are those who are citizens of the Philippines from

birth without having to perform any act to acquire or perfect their Philippine citizenship.Those who elect Philippine citizenship in accordance with paragraph (3), Section 1

hereof shall be deemed natural-born citizens.5 The Court cannot, on the ground of the political question doctrine, rule upon a matter brought

before it where it lack[s] of judicially discoverable and manageable standards for resolving it,

Garcia v. Executive Secretary, 602 Phil. 64, 74 (2009), citing Taada v. Cuenco, 103 Phil. 1051

(1957) and Baker v. Carr, 369 U.S. 186 (1962). Conversely, the presence of judicially

discoverable and manageable standards for resolving a case brings a case out of the coverage of

the political question doctrine, and makes it justiciable.


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The principle of vox populi est suprema lex cannot prevail over the

clear eligibility requirements for holding public office; the wil l of the people

expressed through the ballot cannot cure the vice of ineligibi li ty, especiall y

when th is question was not raised when they voted the respondent intooffice.

6 Our republican and democratic government is a government of lawsthat are intended to reflect the higher will of the sovereign people as

expressed through these laws.7 And there can be no law higher than theConstitution that was ratified by the Filipino people as the ultimate

governing rules in running our country. The citi zenship requirement is aconstitutional requirement for nationally elected representatives to the

legislature. This requirement, first provided in the 1935 Constitution andreiterated in the 1987 Constitution, cannot be amended or cured by electoral

mandate to allow an unqualified candidate to hold office.

II.

THE CASE

II.A. The Facts

GracePoe was found abandoned on September 3, 1968, by a certain

Edgardo Militar in front of the Parish Church in Jaro, Iloilo. Edgardo laterturned her over to the care of Emiliano Militar and his wife, residents of

Jaro, Iloilo.

On November 27, 1968, Emiliano registered Grace Poe s birth with

the Office of the Civil Registrar, Jaro, Iloilo, as a foundling under the name Mary Grace Natividad Contreras Militar. 8

Sometime in 1974, the spouses Ronald Allan Poe (a.k.a. Fernando

Poe, Jr. ) and Jesusa L. Sonora (a.k.a. Susan Roces ) filed before theMunicipal Trial Court (MTC) of San Juan, Rizal a petition to adopt Grace

Poe.

In its decision9dated May 13, 1974, the MTC approved the spouses

Poe s petition for adoption. It ordered, among others, that Grace Poe sname be changed to Mary Grace Natividad Sonora Poe from Mary

Grace Natividad Contreras Militar.

6 Jacot v. Dal, 592 Phil. 661, 680 (2008), citing Frivaldo v. Commission on Elections, G.R. No.

87193, June 23, 1989, 174 SCRA 245, 2557 See:Aquino v. Commission on Elections, G.R. No. 120265, September 18, 1995, 248 SCRA 400,

429.8 See: Certified True Copy of Foundling Certificate and Certificate of Live Birth, Exhibit P for

the petitioner and Exhibit 1 for the respondent. Jesusa Sonora Poe (a.k.a. Susan Roces )

registered Grace Poe s birth with the National Statistics Office on May 4, 2006. See: NSO

Certificate of Live Birth, Registry No. 4175, Exhibit O for the petitioner and Exhibit 3 for

the respondent.9 Docketed as Special Proceeding No. 138 entitled In the Matter of the Adoption of the Minor

Mary Grace Natividad Contreras Militar. See: Exhibit Q-Q1 for the petitioner and Exhibit

2 2for the respondent.


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When she turned 18 years old, Grace Poe applied for registration as

voter in Greenhills, San Juan, Metro Manila. On December 13, 1986, theCommission on Elections (Comelec) issued in her favor a Voter s

Identification Card10 for Precinct No. 196, Greenhills, San Juan, Metro

Manila.

On April 4, 1988, she obtained Philippine Passport No. F92728711from the Department of Foreign Affairs (DFA). She renewed her passport

on April 5, 1993 and on May 19, 1998.12

In 1988, Grace Poe went to the United States of America (U.S.) for

her tertiary studies. She graduated in 1991 with a degree of Bachelor of Artsin Political Science from the Boston College in Chestnut Hill,

Massachusetts.

On July 27, 1991, Grace Poe married Teodoro Misael Daniel V.Llamanzares, a Filipino-American citizen, at the Sanctuario de San Jose

Parish in San Juan, Metro Manila.

On July 29, 1991, Grace Poe went to live with her husband in the U.S.They have three children, namely: Brian Daniel, born in the U.S. in 1992;

Hanna MacKenzie, born in the Philippines in 1998; and Jesusa Anika,likewise born in the Philippines in 2004.

On October 18, 2001, Grace Poe became an American citizen through

naturalization. She subsequently obtained U.S. Passport No. 17037793.13

On April 8, 2004, Grace Poe returned to the Philippines to give moral

support to her adoptive father, Fernando Poe, Jr., in his bid to be thecountry s President in the May 2004 elections. She went back to the U.S.

on July 8, 2004.

On December 11, 2004, Fernando Poe, Jr. was hospitalized and

eventually slipped into coma. Grace Poe immediately returned to thePhilippines on December 13, 2004 after learning of her father s condition.

Fernando Poe, Jr. died the following day. Grace Poe stayed in thePhilippines until February 3, 2005, for her father s funeral and to help settle

her father s estate.14

10 See: Exhibit R for the petitioner and Exhibit 4 for the respondent.11 See: Exhibit B1 for the petitioner and Exhibit 5 for the respondent.12 See: Copies of her Philippine Passport Nos. L881511 and DD156616, Exhibits B3 and B4 for

the petitioner and Exhibits 5-1 and 5-2 for the respondent.13 On December 18, 2001. See: Exhibit KK for the petitioner and Exhibit 20 for the

respondent.14 For the purpose of settling her father s estate, Grace Poe secured a Bureau of Internal Revenue

Identification Card issued on July 22, 2005. See: Exhibit S for the petitioner and Exhibit 6

for the respondent.


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On May 24, 2005, Grace Poe returned to the Philippines with the

intent to resettle in the country for good.15

On July 10, 2006, Grace Poe filed with the Bureau of Immigration

(BI) a sworn Petition

16

to reacquire Philippine citizenship under theprovisions of the Republic Act No. 9225 (RA 9225) or the Citizenship

Retention and Reacquisition Act of 2003. On July 7, 2006, she took herOath of Allegiance under the Act.17

Grace Poe also filed petitions for derivative citizenship on behalf ofher three children,18who were all below 18 years of age at that time.

In its July 18, 2006 Order,19 the BI approved Grace Poe s petitions

for the reacquisition of Philippine citizenship and for the derivativecitizenship of her children. The BI issued Identification Certificates20 in

Grace Poe s name and in the name of her three children.

On August 31, 2006, Grace Poe registered anew as voter, this time inBarangaySanta Lucia, San Juan City.21

On October 13, 2009, Grace Poe obtained Philippine Passport No.XX473199,22which she renewed on March 18, 2014.23

15 Between October 18, 2001 (when Grace Poe became a naturalized American citizen) and July 18,

2006 (when the Philippine BI approved Grace Poe s petition for reacquisition of Philippine

citizenship), Grace Poe returned to the Philippines on numerous occasions, often under a

Balikbayan Visa or under the Philippine Government s Balikbayan program. The following

entries/stamped dates in Grace Poe s U.S. Passport were on December 27, 2001; January 13,

2002; November 9, 2003; April 8, 2004; December 13, 2004; March 11, 2006; and July 5, 2006.

See: copy of Grace Poe s U.S. Passport, Exhibit KK for the petitioner and Exhibit 20 for

the respondent.16 See: Exhibit C for the petitioner and Exhibit 7 for the respondent.17 See: Exhibit A for the petitioner and Exhibit 8 for the respondent. Grace Poe s Oath of

Allegiance reads:

I, Mary Grace Poe Llamanzares, solemnly swear that I will support and defend

the Constitution of the Republic of the Philippines and obey the laws and legal

orders promulgated by the duly constituted authorities of the Philippines; and I

hereby declare that I recognize and accept the supreme authority of the

Philippines and will maintain true faith and allegiance thereto; and that I impose

this obligation upon myself voluntarily without mental reservation or purpose of

evasion.18 See: Exhibits F, I and L for the petitioner and Exhibits 9, 9-1 and 9-2 for the respondent.19 Certified True Copy of the July 18, 2006 Order in CRR No. 06-7/ 10-9474 No. AFF-06-9133

signed by BI Associate Commissioner Roy M. Almoro on behalf of BI Commissioner Alipio F.

Fernandez, Jr. See: Exhibit E for the petitioner and Exhibit 10 for the respondent.20 See: Exhibits N, G, J, and M for the petitioner and Exhibits 11, 11-1, 11-2, and 11-3 for

the respondent.21 See: stub of Grace Poe s application form No. 7405300002355 for registration as voter at

Precinct No. 0349-A, San Juan City, Exhibit T for the petitioner and Exhibit 12 for therespondent.

22 See: Exhibit B-5 for the petitioner and Exhibit 5-3 for the respondent.

Between July 18, 2006 (when when the Philippine BI approved Grace Poe s petition for

reacquisition of Philippine citizenship) and October 13, 2009 (when Grace Poe obtained a new

Philippine Passport after reacquiring her Philippine citizenship under RA 9225), Grace Poe still

used her U.S. Passport on several occasions in her trips abroad and to and from the Philippines.

But the Philippine BI-stamped marks on her U.S. Passport for her travels to and from the


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On October 6, 2010, President Benigno S. Aquino III appointed Grace

Poe as Chairperson of the Movie and Television Review and ClassificationBoard (MTRCB).24 To comply with the legal requirements, Grace Poe

executed on October 20, 2010 an Affidavit of Renunciation of Allegiance

to the United States of America and Renunciation of AmericanCitizenship. 25 The following day, October 21, 2010, Grace Poe took her

oath of office as Chairperson of the MTRCB before President Aquino.26Sheassumed office as Chairperson on October 26, 2010.27

On July 12, 2011, Grace Poe executed before the Vice Consul of the

U.S. Embassy in Manila an Oath/Affirmation of Renunciation ofNationality of the United States. 28 She likewise accomplished on the same

date a sworn Questionnaire29 stating that she had taken her oath asMTRCB Chairperson on October 21, 2010 with the intent, among others, of

relinquishing her American citizenship.

Philippines on these occasions either classified her as RC (resident citizen) or indicated her

Identification Certificate No. 06-10918 issued pursuant to RA 9225 in relation with

Administrative Order No. 91, series of 2004, and Memorandum Circular No. AFF-2-005 after the

BI approved her petition for reacquisition of Philippine citizenship. See: copy of her U.S.

Passport, Exhibit KK for the petitioner and Exhibit 20 for the respondent.23 See: Philippine Passport No. EC0588861, Exhibit B-6 for the petitioner and Exhibit 5-5 for

the respondent.24 See: Exhibit U for the petitioner and Exhibit 13 for the respondent25 See: Exhibit V for the petitioner and Exhibit 14 for the respondent.

The Affidavit of Renunciation of Allegiance to the United States of America and Renunciation of

American Citizenship reads:

I, MARY GRACE POE-LLAMANZARES, Filipino, of legal age, and

presently residing at No. 107 Rodeo Drive, Corinthian Hills, Quezon City,

Philippines, after having been duly sworn to in accordance with the law, do

hereby depose and state that with this affidavit, I hereby expressly and

voluntarily renounce my United States nationality/American citizenship,

together with all rights and privileges and all duties and allegiance and fidelity

thereunto pertaining. I make this renunciation intentionally, voluntarily, and of

my own free will, free of any duress or undue influence.26 Grace Poe took the oath of office pursuant to Presidential Decree No. 1986 and Section 5(3) of RA

9225. See: Exhibit X for the petitioner and Exhibit 16 for the respondent.

Her Oath of Office stated:

Ako, si MARY GRACE POE-LLAMANZARES, na itinalaga sa katungkulan

bilang Chairperson, Movie and Television Review and Classifiication Board, ay

taimtim na nanunumpa na tutuparin ko nang buong husay at katapatan, sa abot

ng aking kakayahan, ang mga tungkulin ng aking kasalukuyang katungkulan at

ng mga iba pang pagkaraan nito y gagampanan ko sa ilalim ng Republika ng

Pilipinas; na tunay na mananalig at tatalima ako rito; na susundin ko ang mga

batas, mga kautusang legal, at mga dekretong pinaiiral ng mga sadyang

itinakdang may kapangyarihan ng Republika ng Pilipinas; at kusa kongbabalikatin ang pananagutang ito, nang walang ano mang pasubali o

hangaring umiwas. 27 See: Certified True Copy of Grace Poe s Certificate of Assumption of Office as MTRCB

Chairperson dated October 26, 2010, Exhibit V for the petitioner and Exhibit 14 for the

respondent.28 The Oath was taken before Vice Consul Somer E. Bessire-Briers. See: Exhibit Y for the

petitioner and Exhibit 17 for the respondent.29 See: Exhibit Z to Z-4 for the petitioner and Exhibit 18 for the respondent.


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On December 9, 2011, the U.S. Vice Consul issued a Certificate of

Loss of Nationality30

certifying that as of October 21, 2010, Grace Poe hadlost her U.S. citizenship when she took her oath of office as MTRCB

Chairperson.

On October 2, 2012, Grace Poe filed her certificate of candidacy31

(CoC) for Senator in the May 13, 2013 elections. Petitioner Rizalito David(petitioner orDavid) likewise filed his CoC for the same post.

Grace Poe obtained a total of Twenty Million Three Hundred Thirty-Seven Thousand Three Hundred Twenty-Seven (20,337,327) votes in the

May 13, 2013 senatorial elections. This was the highest number of votescast for a senatorial candidate. She was proclaimed as winner on May 16,

2013, and she subsequently took her oath and assumed the duties of a

senator. David, on the other hand, failed to obtain sufficient votes to securea senatorial seat.

II.B. The Petition for Quo Warr anto

On August 5, 2015, David filed the present quo warranto petition

against Grace Poe, challenging her qualifications for the position of Senatorof the Republic of the Philippines.

Before filing the present petition, David filed with the Comelec s

Law Department an Affidavit-Complaint32 charging Grace Poe with anelection offense.

The relevant provision of the 1987 Constitution with respect to theposition of Senator is Article VI, Section 3 which reads:

Section 3. No person shall be a Senator unless he is a natural-born

citizenof the Philippines and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident

of the Philippines for not less than two yearsimmediately preceding theday of the election. [emphases supplied]

The quo warranto petition is based on the above provision s

citizenship and the residency requirements. The challenge to her residencyqualification was subsequently dropped33 at the Tribunal s suggestion and

recognition that this ground was filed beyond the required period.34

30 Issued by U.S. Vice Consul Jason Gallian. See: Exhibit AA for the petitioner and Exhibit

19 for the respondent.31 See: Exhibit MM for the petitioner and Exhibit 21 for the respondent.32 Filed on August 17, 2015 at 10:05 a.m., or hours before David filed the petition for quo warranto

before the SET. See: Exhibit 22 for the respondent.33 See: SET Resolution No. 15-07 dated September 17, 2015, p. 3.34 2013 Rules of the SET, Rule 18.


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The question regarding the respondent s Philippine citizenship is

itself based on two grounds:

first, that the respondent is not a natural-born Filipino because she is a

foundling; and

second, she could not have re-acquired a natural-born Filipino status

through RA 9225, as she was not a Filipino to begin with.

II.C. My Position and Vote

After considering these challenges and the issues they gave rise to, I

vote as follows:

(1) As a foundling whose parents are both unknown, therespondent s Philippine citizenship cannot be established, recognized,

or presumed under the 1935 Constitution:

a.

the 1935 Constitution did not grant citizenship to children

born in the Philippines whose parents were unknown;

b. the presumption that the respondent claims that a

foundling s parents are citi zens of the terr itory where thefoundling is found inherently contradicts the terms and

underlying principles of the 1935 Constitution. Thus, the

presumption cannot be recognized as part of the law of the

land applicable to her case;

c. the Philippines treaty obligations do not grant Philippinecitizenship outright to foundlings. These obligations simply

require the country to recognize a foundling s ri ght to acquire

Philippines citizenship.

(2)

The respondent cannot also be considered a natural-born

Philippine citizen:

a. since her citizenship cannot be established, recognized, or

presumed, she had no citi zenship to reacquireunder RA 9225;

b. even if she had been a natural-born Philippine citizen, her

naturalization in the U.S. rendered her ineligible to beconsidered natural-born. As a foreigner who had undergone

an expedited form of natur ali zationunder RA 9225, she had to

perform acts to acquire Philippine citizenship and did not,

therefore fall under the Constitution s definition of a natural-

born citizen.


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I, therefore, vote to disqualify the respondent Grace Poe for the

position of Senator of the Republic of the Philippines.

III.

EXPLANATION OF MY VOTE

III.A. Threshold Considerations

III.A.1. The SET & the Quo WarrantoProceedings

Before It.

From its inception, the purpose of a quo warranto petition is to

determine whether a person holding a public office is eligible for the

position he or she holds.35

Quo warranto started as a prerogative writ,issued by the King, against anyone alleged to have usurped or claimed any

office, franchise or liberty of the English Crown, to inquire into the allegedusurper s authority.36 The English translation of quo warranto by

what warrant? captures the very purpose of this writ.

In the present times, the original purpose of a quo warranto

proceeding remains, i.e.,to determine the legality of a person, association, orcorporation s right to hold an office or franchise. 37

The method to achieve this purpose has evolved to reflect our

tripartite, republican system of government. Instead of being answerable toa sovereign king, the public official or franchisee holder now answers to the

sovereign State, as represented by its executive, legislative, and judicial

branches of government.

Our Rules of Court contains procedural rules unique to quo warrantoproceedings, which reflect their origin as a prerogative writ. 38

As a rule, a petition for quo warrantomay be instituted only by the

Solicitor General and brought in the name of the Republic of thePhilippines.39 This step replaces the quo warrantodemand by the King that

his subject show the basis under which he or she enjoys his or her office or

franchise.

Under specific instances, the Solicitor General is duty-bound to file apetition for quo warranto, as follows:

35 See: Act No. 190 or the Code of Civil Procedure, Section 519 (1901); 1964 and 1997 RULES OFCOURT, Rule 66, Section 1.

36 Agcaoili v. Suguitan, 48 Phil. 676, 692 (1926). The writ of quo warranto originated from a 13th

century statute of King Edward I. It directed an alleged usurper of royal office a privilege to show

by what warrant he maintained his or her claim. For a history of the writ of quo warranto, see: D.

Sutherland. Quo Warranto Proceedings in the Reign of Edward I, 1278-1294 (1963).37 RULES OF COURT, Rule 66, Section 1.38 Id.,Section 2.39 Id., Sections 1, 2 and 3.


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Section 2. When Solicitor General or public prosecutor must

commence action. The Solicitor General or a public prosecutor, when

directed by the President of the Philippines, or when upon complaint orotherwise he has good reason to believe that any case specified in the

preceding section can be established by proof, must commence such

action.

Courts with jurisdiction over quo warranto proceedings thendetermine, based on the parties arguments and evidence, the right or

qualification of a challenged public officer or franchise holder to hold his orher office or franchise.

The SET is the unique constitutional body specifically tasked to be the

sole judge of all contests relating to the election, returns, and

qualificationsof members of the Senate under Article VI, Section 17 of the1987 Constitution.40

As the sole judge, the SET s jurisdiction exercised through quo

warrantoproceedings is exclusiveandoriginal.41

Interestingly, the Constitution does not specifically require that the

contests under the SET s jurisdiction be resolved through the remedy ofquo warranto.42 But in the light of evolved history, tradition, practice,43and

the exclusive and independent nature of the constitutional grant, the SETadopted a quo warranto proceedingas its procedural remedy,as embodied

in its own Rules of Procedure.44

In this sense, a quo warrantoproceeding in the SET is different fromquo warrantoproceedings in ordinary courts, and is governed by a different

set of rules. Notably, a quo warranto proceeding in the SET may beinitiated by any registered voter, and carries different prescriptive periods.45

Despite these differences, the purpose behind the SET s quo

warranto is very much the same as the writ of quo warranto that King

Edward I first issued, i.e., to determine whether a person holding office is

40 1935 CONSTITUTION,Article, VI, Section 11, which states:

Section. 11. The Senate and the House of Representatives shall each have an Electoral

Tribunal which shall be the sole judge of all contests relating to the election, returns, and

qualifications of their respective Members. Each Electoral Tribunal shall be composed of

nine Members, three of whom shall be Justices of the Supreme Court to be designated by

the Chief Justice, and the remaining six shall be Members of the Senate or the House of

Representatives, as the case may be, who shall be chosen by each House, three upon

nomination of the party having the largest number of votes and three of the party having

the second largest number of votes therein. The senior Justice in each Electoral Tribunalshall be its Chairman.

41 See:Defensor Santiago v. Sen. Guingona, Jr., 359 Phil. 276, 294 (1998), citing Co v. HRET, G.R.

No. 92202-03, July 30, 1991, 199 SCRA 692 andLazatinv.HRET, 250 Phil. 390 (1988).42 See: CONSTITUTION, Article VI, Section 17.43 See Angara v. ElectoralCommission, 63 Phil. 139 (1936); Rasul v. Comelec, 371 Phil. 760, 766

(1999).44 2013RULES OF THE SET, Rules 15 and 18.45 Id., Rule 18.


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qualified to his or her position.46 That the SET has exclusive jurisdiction

over contests involving the election, returns, and qualifications of Senatorseven reinforces this purpose.

Further discussions of the powers of the SET shall be made under theproper topic below.

III.A.2. Burden of Proof and the Presumption of

Regularity of the Respondent s Cited Government

Documents.

As part of her defense, the respondent paints the present quo warrantoproceeding as one where the petitioner carries the burden of proving the

respondent s disqualification. To discharge this burden, the respondentposits that the petitioner must establish that both of the respondent s

parents are foreigners. The respondent claims, too, that in the absence ofsuch proof, the government documents acknowledging her status as a

natural-born Filipino should prevail.

These documents, according to the respondent, are presumed to havebeen issued legally and in the regular course of business. Thus, the

information contained in these documents regarding the respondent scitizenship should be deemed correct until proven otherwise.

III.A.2.i. Burden of proof, burden of evidence, and

presumptions in quo warrantoproceedings

Jurisprudence characterizes a quo warranto proceeding as a civil

proceeding47 where the parties must prove their allegations bypreponderance of evidence, or by that degree of evidence that is more

worthy of belief to the court when compared with the opposing evidencepresented.48 Facts established in civil proceedings are thus considered to

46 The writ of quo warrantooriginated from a thirteenth century statute of King Edward the Statute

of Quo Warranto 1290, which grants the King the right to direct an alleged usurper of a royal

office or privilege to show by what warrant he maintained his claim. Shel Herman, The Code of

Practice of 1825: The Adaptation of Common Law Institutions, 24 Tul. Eur. & Civ. L.F. 207,

230 (2009) citing Donald W. Sutherland, Quo Warranto Proceedings in the Reign of Edward I

(1963); Helen Cam, The Quo Warranto Proceedings Under Edward I, in Liberties and

Communities of Medieval England (1963); T.F.T. Plucknett, Legislation of Edward I, at 38-50

(1949); J.H. Baker, An Introduction to English Legal History 145 (4th ed. 2002).

Notably, the Statute of the Writ of Quo Warranto 1290 was said to have been a compromise

between the King and the barons in order to settle their disputes over titles. The king had been

asking the barons to present their titles to their royal offices, in order to reassert his authorityagainst the growing independence of the barons, who had forced him to sign the Magna Carta. See

the California Attorney General s Office, Quo Warranto: Resolution of Disputes -- Right to

Public Office (1990) p. 1 accessed from

https://oag.ca.gov/sites/all/files/agweb/pdfs/ag_opinions/quo-warranto-guidelines.pdf, citing

Baker, An Introduction to English Legal History (1979) pp. 125-126.47 Casin v. Caluag, 80 Phil 758, 760-761 (1948).48 RULES OF COURT, Rule 133, Section 1. See:Magdiwang Realty Corporation v. Manila Banking

Corporation, 694 Phil. 392, 407 (2012).
https://oag.ca.gov/sites/all/files/agweb/pdfs/ag_opinions/quo-warranto-guidelines.pdfhttps://oag.ca.gov/sites/all/files/agweb/pdfs/ag_opinions/quo-warranto-guidelines.pdf


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embody the probable truth regarding the factual issues resolved, not the truth

beyond reasonable doubt that criminal proceedings require.49

The SET has similarly characterized its own quo warranto

proceeding. Accordingly, its Rules of Procedure also recognize that thequantum of evidence necessary to establish a claim is preponderance of

evidence.50

Thus, in quo warranto, the petitioner who challenges the

respondent s qualification to office carries the burden of proving, bypreponderance of evidence, the facts constituting the disqualification. 51

Upon such proof, the burden shifts to the respondent who must now presentopposing evidence constituting his or her defense or establishing his or her

affirmative defense.52

These dynamics highlight the difference between burden of proof andburden of evidence: burden of proofinvolves the duty of a party to present

evidence establishing the facts in issue in his claim or defense, to the degreerequired by law. 53Burden of evidence, on the other hand, involves the duty

of a party to present evidence to counter the prima facieevidence presentedagainst him.54 In the present case, prima facie evidence is the proof

sufficient to establish the respondent s disqualification unless disproved by

her opposing evidence.

A distinct difference between burden of proof and burden of evidence

is that the burden of proof never shifts, and is always on the party claiming aright or a defense;55the burden of evidence shifts from one party to the other

as they adduce proof of their respective claims and defenses.

In civil proceedings, the plaintiff (the petitioner in the present case)

always carries the burden to prove that he is entitled to the relief he or she

prays for (in the present petition, the disqualification of Grace Poe as a

Senator).56The defendant (or the respondent in the present case) can alsoraise his or her affirmative and other defenses that he or she has to prove.57

Both the petitioner and the respondent yield to the rule that he or she whoalleges the aff irmative of the issue has the burden of proving it.58

49 Go v. Court of Appeals, 403 Phil. 883, 890-891 (2001).50 2013RULES OF THE SET, Rule 73.51 SupraNote 47.52 Asian Construction and Development Corporation v. Tulabut, 496 Phil. 777-778, 786 (2005).53 RULES OF COURT, Rule 131, Section 1.

54 See:Agile Maritime Resources, Inc. v. Siador, G.R. No. 191034, October 1, 2014, 737 SCRA 360-361, 371; Commissioner of Internal Revenue v. PNB. G.R. No. 180290, September 29, 2014, 736

SCRA 609, 620; and,DBP Pool of Accredited Insurance Companies v. Radio Mindanao Network,

Inc., 516 Phil. 110, 118-119 (2006).55 Bautista v. Hon. Sarmiento, 223 Phil 181, 185-186 (1985).56 Jison v. Court of Appeals,350 Phil. 138, 173 (1998).57 Bank of the Phil. Islands v. Spouses Royeca, 581 Phil. 188, 194 (2008).58 Ibid. See also:Bank of Commerce v. Radio Philippines Network, Inc. G.R. No. 195615, April 21,

2014.


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In contrast, the burden of evidence shifts when a party has presented

evidence prima facie establishing a case against the other party.59

Thus,after the petitioner has met the burden of proof that he or she carries, the

burden of presenting evidence to oppose and defeat the petitioner s

evidence shifts to the respondent. 60

Should the respondent successfully negate the evidence presentedagainst him or her, the petitioner s case fails unless he or she can present

evidence responding to the respondent s evidence; thus, the burden ofevidence shifts back to the petitioner. The burden of evidence shifts back

and forth between the parties in this manner as the case progresses.61

In the end, the party able to present the more convincing evidence

enjoys the greater weight of evidence; he or she is the party who has proven

his or her claim or defense with preponderance of evidence.62

Presumptions affect the burden of evidence, by drawing an

established inference from a set of facts proven by evidence.63A disputablepresumption provides an inference that can be rebutted, thus shifting the

burden of evidence to the other party to disprove the facts supporting thepresumption; otherwise, the presumption will be considered an established

fact.64

III.A.2.ii. The petitioner has successfully discharged the

burden of proof.

The petitioner in a disqualification case must prove the allegationscited as grounds for disqualification, otherwise, his or her action will not

prosper.65

In the present case, the petitioner has alleged that the respondent is afoundling. He posits that, as a foundling has no known parents from whom

to trace the origins of her citizenship, the respondent is not a Filipino citizenand is, therefore, not eligible for the position of senator.

Signi f icantl y, the respondent admitted her status as a foundl ing,thus, lifting the petitioner s burden of proving his claim that she is a

foundling. With the admission, the fact necessary to establish thepetitioner s claim is considered established.

59 SupraNote 55 at 186.60 SupraNote 54.61 SupraNote 56 at 173.62 RULES OF COURT, Rule 133, Section 1.63 Metropolitan Bank Corporation v. Tobias,680 Phil.173, 188-189 (2012).64 See Gupilan-Aguilar v. Office of the Ombudsman, G.R. No. 197307, February 26, 2014, 717

SCRA 503, 533.65 Fernandez v. House of Representatives Electoral Tribunal, 623 Phil. 628, 656 (2009).


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This evidentiary situation now presents to the Tribunal solely the legal

question of whether a person who, as a foundling found in the Phi li ppines

and who has no known parents fr om whom her citizenship may be traced,

can be considered a natur al-born F il ipino citizen.

I reach my conclusion on the respondent s citizenship and

ineligibility after considering a very critical legal reality: that theConstitution requires with no exceptions or qualifications that Filipino

senators must be natural-born Philippine citizens.

Article VII, Section 3 of the 1987 Constitution provides a clear,

absolute command, couched in the strongest language possible, that is,through a negative phraseology Noperson shall be a Senator unless he

is a natural-born citi zenof the Philippines.

In Valdez v. Tuason,66 the Court held that negative statutes aremandatoryand must be presumed to have been intended as a repeal of all

conflicting provisions, unless the contrary can clearly be shown. The Courtthen said:

Conformably with this idea, it will be found that constitutional provisions

which are intended to operate with universal force and to permit of no

exceptions are commonly expressed in negative form; as No person shall

be imprisoned for debt; No law impairing the obligation of contractsshall be enacted; No person shall be held to answer for a criminal

offense without due process of law; No money shall be paid out of the

treasury except in pursuance of an appropriation by law, etc.67

The negative form and its mandatory character connote that no

exceptions or qualifications can be allowed to the requirement of natural-born Phil ippine citizenship. This absolute command affects the evidence

necessary to prove that a senator is disqualified because of his or her

citizenship. This means that a petitioner alleging lack of citizenship as a

ground for disqualification should establish facts proving that the senatordoes not fall under any of the modes for acquiring Philippine citizenship

under the Constitution. Conversely, he or she does not need to prove that therespondent is actually a foreigner.

To repeat the consequence of this strict rule, proof of foreigncitizenship is not required. By the negative terms used, proof that the

claimant to the office is not a Fi lipino or, even i f F il ipino, is not natural-

born would suffice to disqualify a claimant or holder of the position of

senator.

As the petitioner has alleged and established his cause of action, theburden of evidence now shifts to the respondent. She has the option to

66 40 Phil. 943 (1920).67 Id. at 947.


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present evidence contradicting the petitioner s allegation that she is a

foundling (i.e., a negative defense) and/or present an aff irmative defense,i.e.,that despite her admitted status as a foundling, she was actually born of

Filipino parents.

Instead of presenting evidence regarding her parentage, the

respondent presented various government documents proclaiming that she isa natural-born Filipino, and claimed that the presumption of regularity of

official acts should first be disproven by the petitioner before she could beburdened with proof of her citizenship.

The respondent, by putting forward the presumption of regularity inofficial acts, effectively offered the submitted documents as proof of her

natural-born citizenship and thus attempted to shift the burden of evidence

back to the petitioner. She effectively argued that the government documentsattesting to her status as a natural-born Philippine citizen should be given

credit unless the petitioner can prove that her parents are both foreigners.

In other words, the respondent wants us to deduce and to infer her

natural-born citizenship status from the government documents shepresented, and asks us to take this inference as true until the petitioner can

establish that both her parents are foreigners. I find this position to be

legal ly incorr ectfor the following reasons:

First, like all presumptions, the presumption of regularity in the

performance of official duty may be disproven by contrary evidence.68Thus,the presumption of regularity vanishes upon proof of irregularity behind the

government acts, such as when the government officials involved actedoutside the standard of conduct required by law. The presumption cannot

also prevail when faced with proof disproving the contents of the public

document. 69

The implementing rules and regulations of Act No. 375370or theLawon Registry of Civil Status require a separate registry for foundl ings,71 as

well as a dif ferent form for a foundling s bir th certif icate.72The form fora foundling s certificate of live birth does not contain any information

regarding the foundling s citizenship, presumably because the foundling sparents are unknown; hence, the child s citizenship cannot be determined

on the basis of the foundling s certificate.73 Because of these legal and

68 People v. Delos Reyes, 672 Phil. 77, 121 (2011), citingPeople v. Sy Chua, 444 Phil. 757 (2003)

69 See:People v. Capuno, 655 Phil. 226, 244 (2011).70 Approved on November 26, 1930.71 Office of the Civil Registrar-General (OCRG) Administrative Order No. 1, series of 1993 or the

Implementing Rules and Regulations of Act No. 3753 and Other Laws on Civil Registration, Rule

7(1)(b)72 Id., Rule 29(a).73 See: OCRG Form No. 101, revised January 1993, available from

http://www.nsor12.ph/pdf_files/CIVIL%20REGISTRATION%20LAWS/AO1-

1993%20(IRR%20on%20Civil%20Registration%20Laws%20&%20Procedures).pdf
http://h/http://h/http://h/http://h/http://h/


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factual realities, the respondent s first certificate of live birth74 cannot

contain any conclusive information establishing the identity of therespondent s birth parents or her citizenship.

The respondent s birth certificate was subsequently amended on May4, 2006,75with the respondent s adoptive mother, Susan Roces, acting as

the informant. The amended birth certificate now shows that the respondentis a Filipino.76

The implementing rules and regulations of Act No. 3753 allow theamendment of an adopted foundling s birth certificate to reflect a

foundling s change in civil status and citizenship.77 The amendment of therespondent s birth certificate to attest to her Philippine citizenship,

however, ignores the evidentiary reality (that exists up to the present time)

that at the time her birth certificate was amended,NO BASIS existed to

recognize the respondent as a natural-born Phi l ippine citizen.

The following established facts contradict the information in therespondent s amended birth certificate regarding her natural-born

Philippine citizenship:

(1)at the time the respondent s birth certificate was amended, both

her birth parents were (and still are) unknown and hence her

citizenship could not have been traced to them;

(2) the respondent had not successfully undergone the naturalizationprocess to become a Filipino;

(3)

the respondent s adoption, which was the basis for the

amendment of her birth certificate, did not confer on her thepolitical privilege of citizenship; and

(4) the informant who provided information on the respondent s

citizenship was her adoptive mother, not her birth mother whowas then still unknown.

In these lights, I cannot give weight to the respondent s amendedbirth certificate as a prima facie evidence of her natural-born Philippine

citizenship.

Consequently, given that neither of the respondent s birth certificatescould validly serve as evidence of her Philippine citizenship, the other

government documents that the respondent submitted to show her Philippinecitizenship cannot likewise be used to prove her citizenship. These other

74 See: Certified True Copy of Foundling Certificate and Certificate of Live Birth, Exhibit P for

the petitioner and Exhibit 1 for the respondent.75 See: Exhibit O for the petitioner and Exhibit 3 for the respondent.76 See: Item No. 7 in the Certificate of Live Birth,supraNote 8.77 OCRG Administrative Order No. 1, series of 1993, Rule 55 (1)(d).


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government documents only rel ied on the respondent s bir th certi f icates

for i nformation on her citizenship and, hence, cannot have any higherprobative value than these bir th certi f icates. In short, all of them cannot be

consideredprima facieevidence of her natural-born Philippine citizenship.

At most, these government documents her passport, travel

documents, voter s ID and reacquisition of Philippine citizenship showthat the respondent had been exercising the rights and privileges of a

Philippine citizen. That a person exercises the privileges of Philippine

citizen, however, does not prove that he or she is one. Philippine

citizenship cannot be presumed from the exercise of the rights and privilegesof a Philippine citizen; the fact of citizenship must be proven by competent

evidence by the party claiming it.

Second, since the petitioner s ground for disqualifying therespondent is based on her status as a foundling, the allegation that she is a

child of Filipino parents, made after her admission that she is a foundling, isan affirmative defense that the respondent has the burden of proving.

The Rules of Court define an affirmative defense as an allegation ofa new matterthat, while hypothetically admitting the material allegations in

the pleading of the claimant, would nevertheless prevent or bar recovery. 78

An affirmative defense thus introduces a new fact or a set of facts

that would negate the petitioner s claim even assuming this claim to be

true. Because it is a positive allegation of a different set of facts that therespondent relies on as a defense, the burden of proving this affirmative

defense is always with the respondent.79

In the present case, the petitioner claimed and the respondent admitted

that she is a foundling. Despite this status and its legal consequences on her

citizenship, the eventual identification and proof of citizenship of her birth

parents can be the basis to declare her a Filipino: should the respondent sbirth parents be identified and be proven to be Filipinos, then she would not

in fact be a foundling and should be considered a Philippine citizen frombirth even if she had been considered a foundling all her life.

As an affirmative defense, the identification of the respondent s

parents and of their citizenship are facts that the respondent has the burden

of proving by preponderance of evidence. Without this evidence, the

petitioner does not have the burden of disproving the identities and Filipino

citizenship of the respondent s birth parents, or of proving that her birthparents are in fact foreigners. The burden of presenting contrary evidenceshifts to the petitioner only after the respondent has established her

affirmative defense.

78 RULES OF COURT, Rule 5, Section 6(b).79 See: Vitarich Corporation v. Losin, G.R. No. 181560, November 15, 2010, 634 SCRA 671, 684.


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I discuss all these factual and legal intricacies to support my position

that I cannot and should not immediately and unquestioningly acceptthe information laid out in the respondent s presented government

documents.

III.B. CITIZENSHIP UNDER THE 1935

CONSTITUTION

III.B.1. As a foundling, the respondent could not

have acquired the status of a natural-born Philippine

citizen through any of the modes enumerated under

the 1935 Constitution.

The respondent was foundin Jaro, Iloilo, on September 3, 1968. Theprevailing law at the time she was found (and born, considering theundisputed circumstances under which she was found) was the 1935

Constitution whose Article on Citizenship provide:

ARTICLE IV

CITIZENSHIP

Section 1. The following are citizens of the Philippines:

(1)

Those who are citizens of the Philippine Islands at the time of theadoption of this Constitution.

(2)Those born in the Philippine Islands of foreign parents who, before

the adoption of this Constitution, had been elected to public officein the Philippine Islands.

(3)Those whose fathers are citizens of the Philippines.

(4)Those whose mothers are citizens of the Philippines and, upon

reaching the age of majority, elect Philippine citizenship.

(5)Those who are naturalized in accordance with law.

Section 2. Philippine citizenship may be lost or reacquired in the mannerprovided by law.

I conclude based on my consideration of these provisions, theirbackground and history, and relevant jurisprudence that the respondent

could not have acquired Philippine citizenship through any of the above

listed modes.

As a foundling, the respondent s parentage is unknown. This is an

undisputed point. And because the identities of the respondent s parentsare unknown, their citizenship cannot as well be determined.

Thus, the respondent could not have acquired Philippine citizenshipthrough paragraph (3) of Section 1which requires that the respondent s

birth father be a Philippine citizen so she herself can be a Philippine citizen.


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Neither could the respondent have acquired her Philippine citizenship

through her mother under paragraph (4)since her birth mother s identity(and consequently, her citizenship) is also unknown.

Parenthetically, under the 1935 Constitution, a person born of aFilipino mother but whose father is a foreigner (or is unknown) has the

option to elect Philippine citizenship upon reaching the age of majority.

This election is governed by Commonwealth Act No. 625 (CA 625),

which requires that a person electing Philippine citizenship file before thenearest civil registry a signed and sworn statement expressing his intent to

become a Filipino. He or she shall also accompany this statement with anoath of allegiance to the Constitution and the Philippine government.80

Furthermore, no election of Philippine citizenship shall be accepted

for registration under CA 625 unless the party exercising the right ofelection has complied with the requirements of the Alien Registration Act of

1950. In other words, he or she should first be required to register as analien. Pertinently, the person electing Philippine citizenship is required to

file a petition with the Commission of Immigration and Deportation (now,the BI) for the cancellation of his or her alien certificate of registration based

on his or her election of Philippine citizenship; the Commission will initially

decide, based on the evidence presented, the validity or invalidity of the

election made. The election shall thereafter be elevated to the Ministry (nowDepartment) of Justice for final determination and review.81

This procedure should be followed, otherwise the person tracing his

Philippine citizenship from his or her mother would not be considered aPhilippine citizen.82 The election of Philippine citizenship should also be

made within a reasonable time after reaching the age of majority.83

The records show that the respondent has never formally elected

Philippine citizenship after reaching the age of majority. The respondent,however, was issued a voter s identification card on December 1986, and

hence was a registered voter since turning 18 years old. As discussed

80 Section 1 of Commonwealth Act No. 625 provides:

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.81 Republic v. Sagun, 682 Phil 303, 315 (2012).82 Id. at 314.83 In Re: Application for the Admission to the Philippine Bar v. Vicente D. Ching, 374 Phil 342

(1999), the Court held that a person can no longer elect Philippine citizenship 14 years after

reaching the age of majority; while in Republic v. Sagun, supraNote 81 at 316, the Court noted

that 12 years after reaching the age of majority is likewise not a reasonable period to allow to lapse

before electing Philippine citizenship. Both cases recognize that the reasonable period for electing

Philippine citizenship is three years after reaching the age of majority.


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elsewhere in this Separate Dissenting Opinion, registration as a voter doesnot amount to an election of Philippine citizenship . Voting is a rightgranted by virtue of being a Philippine citizen, and is not a proof or a means

of electing to become one. Neither can Philippine citizenship be presumed

from exercising the rights attendant to citizenship.84

The other categories under paragraphs (1) and (2)do not apply togrant the respondent Philippine citizenship. The respondent had not yet

been born in 1935, and thus could not have been a Filipino at the time of theadoption of the 1935 Constitution, as paragraph (1)above requires.

Neither could she have held public elective office before the adoptionof the 1935 Constitution; hence, she cannot claim citizenship under

paragraph (2).

The respondent has admittedly undergone the expedited proceedingsunder RA 9225 and could possibly claim citizenship through naturalization

in accordance with law, as provided under paragraph (5). Her RA9225 application, however, was tainted with fatal irregularities, as I explain

elsewhere in this Opinion. Hence, neither can she claim to be naturalizedin accordance with law under paragraph (5).

In sum, since the respondent has not met any of the conditions that

Article IV, Section 1, of the 1935 Constitution requires to be a Filipino, then

she cannot be a Philippine citizen.

At most, she can as a foundling claim the right to acquirePhilippine citizenship pursuant to international law. This point of law is

explained below. But in the absence of any statute specif ically governing

the acquisition of Phi li ppine citizenshipby foundl ings, she would need toundergo the naturalization process currently in place. This is under

Commonwealth Act No. 63 (CA 63), which she can sti l l avail ofpursuant to

Philippine commitments under existing treaties as fully explained below.

III.B.2. The 1935 Constitution did not expressly or

impliedly include foundlings within its terms.

The express terms of, as well as the framers debates under,85 the1935 Constitution show that the Philippines adheres to the principle ofjus

sanguinis (or blood relationship)in determining citizenship.

Ei ther or both parents of a chil d must be Phi li ppine ci tizens at thetime of the child s birth so that the child can claim Phil ippinecitizenship.86 Significantly, none of the 1935 constitutional provisions

84 Paa v. Chan, 128 Phil 815, 824 (1967).85 Constitutional Convention, Vol. No. VI, Journal No. 96, November 26, 1934.86 This is also the prevailing rule under Section 1(2), Article IV of the 1987 Constitution.


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contemplate the situation where both parents identities (and consequently,

their citizenships) are unknown, as in the case of foundlings.

The silence of Article IV, Section 1, of the 1935 Constitution on the

citizenship of foundlings in the Philippines in fact speaks loudly about theirlegal situation. It can only mean that the 1935 Consti tuti on l eft the decision

of granting Phi li ppine citizenship to foundl ings to Congress which can, bylaw, provide the means for the acquisit ion of Phi li ppine cit izenship.

Furthermore, the enumeration of who are citizens of the Philippines inArticle IV, Section 1 of the 1935 Constitution is an exclusive list.

According to the principle of expressio unius est exclusio alterius, items notprovided in a list are presumed not to be included in it.87

As the list of Philippine citizens under Article IV, Section 1 does not

include foundlings, then they are not included among those constitutionallygranted or recognized to be Philippine citizens. Established rules of legal

interpretation tell us that noth ing is to be added to what the text states or

reasonably impl ies; a matter that is not covered is to be treated as notcovered.

88

This situation, of course, does not mean that foundlings cannot bePhilippine citizens, but their inclusion rests with Congress, as Article IV,

Section 5 allows individuals not specifically included in the list to be

naturalized in accordance with law. This view is shared by Sr. Buslon, a

member of the 1934 Constitutional Convention, when another member (Sr.Rafols) proposed to include foundlings among the list of Philippine citizens

in Article IV, Section 1, viz:89

Espaol English

SR. RAFOLS: Para una enmienda,Seor Presidente. Propongo que

despus del inciso 2 se inserte losiguiente: "Los hijos naturales de unpadre extranjero y de una madrefilipina no reconocidos por aquel,"

xxx

EL PRESIDENTE: La Mesa deseapedir una aclaracin del proponente de

la enmienda. Se refiere Su Seora a

hijos naturales o a toda clase de hijosilegtimos?

SR: RAFOLS: For an amendment, Mr.President/Chairman. I propose that after the

second subsection, the following be inserted:"The natural children of a foreigner fatherand a Filipino mother whom (referring to thechildren) the former does not recognize"

xxx

THE PRESIDENT: The Chair wishes to ask aclarification from the proposer of the

amendment. Does Your Honor refer to

natural children or to all kinds of illegitimatechildren?

87 Initiatives for Dialogue and Empowerment Through Alternative Legal Services, Inc. v. Power

Sector Assets and Liabilities Management Corporation, G.R. No. 192088, October 9, 2012, 682

SCRA 602, 649.88 A. Scalia and B. Garner.Reading Law: The Interpretation of Legal Texts(2012) at 93.89 1934 Constitutional Convention, Vol.VI, Journal No. 96, November 26, 1934.


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SR. RAFOLS: A toda clase de hijosilegtimos. Tambin se incluye a los

hijos naturales de padres conocidos, y

los hijos naturales o ilegtimos de

padres desconocidos.

SR. MONTINOLA: Para una

aclaracin. All se dice "de padres

desconocidos". Los Cdigos actualesconsideran como filipino, es decir, me

refiero al Cdigo espaol, que

considera como espaoles a todos loshijos de padres desconocidos nacidos

en territorio espaol, porque la

presuncin es que el hijo de padres

desconocidos es hijo de un espaol, yde igual manera se podr aplicar eso

en Filipinas, de que un hijo de padre

desconocido y nacido en Filipinas seconsideraque es filipino, de modo que

no hay necesidad...

SR. RAFOLS: Hay necesidad, porqueestamos relatando las condiciones de

los que van a ser filipinos.

SR. MONTINOLA: Pero esa es la

intepretacin de la ley ahora, demanera que no hay necesidad de la

enmienda.

SR. RAFOLS: La enmienda debeleerse de esta manera: "Los hijos

naturales o ilegtimos de un padre

extranjero y de una madre filipina, noreconocidos por aquel, o los hijos de

padres desconocidos."

xxx

SR. BUSLON: Mr. President, don t

you think it would be better to leave

this matter to the hands of the

Legislature? (original in English)

xxx

SR. ROXAS: Seor Presidente, miopinin humilde es que stos son

casos muy insignificantes y contados,

para que la Constitucin necesite

referirse a ellos. Por las leyes

SR. RAFOLS: To all kinds of illegitimatechildren. Also included are the natural

children of known parents and the natural or

illegitimate children of unknown parents.

SR. MONTINOLA: To clarify, the text says

"of unknown parents". The present Codes

consider as Filipino, that is to say, I refer to

the Spanish Code, which consider asSpaniards all the children of unknown parents

born in Spanish territory, because the

presumption is that the child of unknownparents is child of a Spaniard, and, similarly,

that can be applied in the Philippines,

namely, that the child of an unkown father

born in the Philippines will be considered asFilipino, such that there is no need...

SR. RAFOLS: There is a need, because we

are declaring the conditions of those who aregoing to be Filipinos.

SR. MONTINOLA: But that is how the law

is interpreted now, and so there is no need foran amendment.

SR. RAFOLS: The amendment should read

thus: "The natural or illegitimate children of aforeigner father and a Filipino mother not

recognized by the foreigner father, or the

children of unknown parents".

xxx

SR. BUSLON: Mr. President, don t you

think it would be better to leave this matter tothe hands of the Legislature? (original in

English)

xxx

SR. ROXAS: Mr. Chairman, my humbleopinion is that these cases are very

insignificant or rare for the Constitution to

make a reference to them. The principle is

recognized by international laws that thechildren or the persons born in a country of

unknown parents are children of that country,and it is not necessary to include in the

Constitution a specific stipulation on the

matter.


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internacionales se reconoce el

principio de que los hijos o laspersonas nacidas en un pas y de

padres desconocidos son ciudadanos

de esa nacin, y no es necesario incluir

en la Constitucin una disposicintaxativa sobre el particular.

xxx

EL PRESIDENTE: La Mesa someter

a votacin dicha enmienda. Los que

estn conformes con la misma, quedigan S. (Una minora: S). Los que

no lo estn, que digan No. (Una

mayora: No). Queda rechazada la

enmienda.

xxx

THE PRESIDENT: The Table will submit theamendment to voting. Those who agree with

the amendment will say Yes (A minority:

Yes). Those who do not agree will say No. (Amajority: No). The amendment is rejected.

As the transcripts of the deliberations reflect, Sr. Rafols suggested that

children of unknown parentage be included in the list of Philippine citizens

under the Article on Citizenship. Several Convention members disagreed

with the propositionfor various reasons.

Sr. Montinola believed there was no need to include foundlings in the

list because the Spanish Civil Code already recognizes foundlings to be bornof Spanish citizens, and are thus Spanish. He believed the same rule can beapplied in the Philippines.

Sr. Buslon, on the other hand, posited that the citizenship of

foundlings should be determined by the legislature.

Sr. Roxas lastly opined that international law already covers the

situation of foundlings, and vests in them the citizenship of the country

where they are found.

Regardless of the reasons behind their votes, the major ity of the

members of the 1934 Consti tutional Convention voted not to approve Sr.Rafols s amendment. This vote led to the noninclusion of foundlings in

the list of Philippine citizens under Article IV, Section 1 of the 1935

Constitution.

The respondent argued that the 1934 Constitutional Convention sdiscussion of Sr. Rafol s proposed amendment revealed their intent to

presume foundlings to be born of Filipino parents, and are thus Philippinecitizens from birth. But as shown above, the respondent s position is

simply not supported by the records of the 1934 Constitutional Conventionproceedings.


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To reiterate, if only to meet the respondent s argument head-on, the

discussions reveal that the members of the 1934 Constitutional Conventionhad different reasons for not approving Sr. Rafol s amendment. Thus, aside

from disagreeing with the amendment (as they in fact eventually rejected it),

the members of the Convention did not even agree with each other on thereason for the rejection.

The commonality and this is what should predominate and be the

conclusion from the debates is the framers rejection of the inclusion offoundlings. What ultimately would apply to them given the inapplicability

of the first four (4) paragraphs would be the express terms of paragraph(5), Section 1 of the Article the citizenship of those who are naturalized in

accordance with law.

We should be aware that recourse to the intent behind constitutionalprovisions is only made when an ambiguity exists in the constitutional

provision under consideration, not when there is no provision to speak of atall.90

If at all, what the text does not contain can only be supplied when it isclear from all circumstances that an omission has taken place, not when the

records show the clear intent to exclude what is claimed should be

included.91

In the present case, the respondent argued, not from what the text of

the Constitution states and what these words should, by interpretation,cover; she argued on the basis of the possible intentof the framersin their

debates, thereby going one step beyond the words of the Constitution byinterpreting the framers debate.

In effect, the respondent s argument is based merely on the fact that

foundlings were mentioned in the debates, plainly disregarding in her

reasoning that the framers conclusively denied, for their individually heldreasons, the specific inclusion of foundlings under the terms of Section 1,

Article IV of the 1935 Constitution.

As a rule, the law is understood in its ordinary meaning.92Interpretation is used only when an ambiguity exists; only then is the intent

behind the provision as revealed by the deliberations of the lawmakers

examined and considered.93

Note in this regard that unlike lawmaking in Congress where theframers and approving authority are one i.e., the legislators whose

90 Civil Liberties Union v. Executive Secretary, 272 Phil. 147, 169 (1991).91 Id. at 337.92 Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 884-885 (2003).93 Ibid.,citing Civil Liberties Union v. Executive Secretary, 272 Phil. 147 (1991).


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intents may be seen in their debates and are thus material the framers and

approving authority of the Constitution are different; the framers in case ofthe Constitution are not really the members of the 1934 Constitutional

Convention but the people whose assent gave life to the Constitution.94

Thus, even the debates that the respondent cites are not the mostauthoritative source of the claimed intent on which her natural- born

citizenship is founded.

Article IV, Section 1 of the 1935 Constitution is clear in its terms inlisting who Filipino citizens are. To reiterate, it provided: The following

are citizens of the Philippines: . The listing that followed neitherincluded foundlings nor referred to children of unknown or indeterminable

parentage. The list also did not provide any presumption that the respondentcan claim. To now recognize these matters to be included within the terms

of the 1935 Constitution is for this Tribunal to undertake the unthinkableact of re-wr iting the 1935 Constituti on by including what is not there,

expressly or by impl ication. I, therefore, cannot join any conclusion that therespondent is a natural-born citizen under the terms of the 1935 Constitution.

III. C. THE CLAIM OF PHILIPPINE CITIZENSHIP

UNDER INTERNATIONAL LAW

III.C.1 Our treaty obligations and international

customary law do not establish the respondent s

Philippine citizenship.

Separately from her claimed inclusion of foundlings under the termsof the 1935 Constitution, the respondent argued that she is presumed to be a

citizen of the Philippines based on binding treaties and on the generally

accepted principles of i nternational law.

The respondent cited in this regard the United Nations Convention on

the Rights of the Child (UNCRC)95 and the International Convention onCivil and Political Rights (ICCPR)96which are treaties that the Philippines

has signed and ratified. These treaties require signatory states to ensure

every child s right to acquire a nationality, and State-parties

94 CONSTITUTION, Article XVIII, Section 27. See also: Separate Opinion of CJ Reynato Puno,

Integrated Bar of the Philippines v. Zamora,392 Phil. 618, 668-669 (2000).95 Signed by the Philippines on 26 January 1990 ratified on 21 August 1990 and entered into force

on 2 September 1990, see United Nations Treaty Collection, available from

https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-11&chapter=4&lang=en96 Signed by the Philippines on 19 December 1966, ratified on 23 October 1986 and entered into

force on 23 March 1976, see United Nations Treaty Collection, available from

https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg_no=iv-4&lang=en
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shall ensure the implementation of these rights in accordance with their

national law and their obligations under relevant international instruments

in this field, in particular when the child moved otherwise be stateless.97

To the respondent, this obligation translates into the Philippine

government s duty to recognize foundlings as Philippine citizens frombirth. She also claimed that she cannot rely on domestic laws on

naturalization, as these laws are insufficient means of compliance with thecountry s treaty obligations. Under our domestic laws on naturalization, a

person would have to wait until he or she is 18 years old before he or she canacquire Philippine citizenship, which is allegedly contrary to every child s

right to a nationality from birth.

The respondent further argued that the generally accepted principles

of international law, which form part of the Philippine legal system underthe doctrine of incorporation, presume that foundlings are born of parentswho are citizens of the country where they are found. Under this

presumption, she should be considered a natural-born Philippine citizen.

The respondent sought to prove all these through: (1) the 1935

Constitutional Commission s discussion of international law as basis forthe citizenship of foundlings during its deliberations on the Article on

Citizenship; (2) various international treaties that recognize the right to

acquire nationality and be protected against statelessness, including the 1961United Nations Convention on the Reduction of Statelessness, which

presumes that a foundling s parents are citizens of the territory in which

they are found; and (3)the laws or practice of various States that presume afoundling s parents to be their citizens. According to the respondent, all

these are evidence of widespread state practice and opinio juris the tworequirements before a legal norm can crystallize into a customary

international law.98

III.C.1.a. Application of International Law at the time the

1935 Constitution was passed

I dismiss outright the validity of any claim made during the 1935

Constitutional Commission s deliberations on the binding effect ofinternational treaties and conventions on the Philippines.

Additionally, the passing mention of international law during the 1935constitutional debates cannot, without more, be considered a serious source

of authority that gives rise and validity to the respondent s claimedinterpretation of the 1935 Constitution.

97 UNCRC, Article 7(2), 1577 (27531-27541) UN Treaty Series 3, 47 (1990), available from

https://treaties.un.org/doc/Publication/UNTS/Volume%201577/v1577.pdf

See also ICCPR, Article 24(3), 999 (14657-14668) UN Treaty Series 171, 179 (1976), available

from https://treaties.un.org/doc/Publication/UNTS/Volume%20999/v999.pdf98 Bayan Muna v. Romulo, 656 Phil. 246, 303 (2011)
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In 1930, the Philippines was still a colony of the U.S. The existing

government then the Philippine Insular Government neither had thepower nor the authority to enter into foreign agreements, conventions, or

treaties. The administration of the Insular government was under the control

of the U.S. government; foreign relations of the Philippines, in particular,were under the power and control of the U.S. President, subject to the

concurrence of the U.S. Congress.99

What could have been referred to in the constitutional debatesas the instrument that bound the Philippines internationally was the

1930 Hague Convention on Certain Questions relating to Conflicts ofNationality Laws.100 The Convention was the result of the September 22,

1924 resolution of the League of Nations whereby the member nationsrecognized the need to settle, thru international agreement, questions relating

to the conflict of nationality laws in order to abolish all cases of bothstatelessness and double nationality.101The U.S. was not a signatory to the

Convention.

99 See: Sections 7, 9, 10, 84, and 86 of the Philippine Bill of 1902; Sections 6, 9, 10, 19(a), 21 and 23

of the Jones Law of 1916; and, Section 10 of the Tydings-McDuffie Act of 1934, which expressly

provides that [f]oreign affairs shall be under the direct supervision and control of the United

States.100 See United Nations Treaty Collection, available from

https://treaties.un.org/pages/LONViewDetails.aspx?src=LON&id=512&chapter=30&lang=en101

The 1930 Hague Convention was signed by forty (40) countries, namely: Australia, Belgium,Brazil, Burma, Canada, China, India, Monaco, Netherlands, Norway, Poland, Sweden, United

Kingdom, Chile, Columbia, Cuba, Czechoslovakia, Denmark, Egypt, Estonia, France, Free City of

Danzig, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Luxembourg, Mexico,

Peru, Portugal, El Salvador, Spain, Switzerland, Union of South Africa, Uruguay, and Yugoslavia.

Of these 40 signatory-countries, only the following thirteen (13) countries have ratified the

Convention: Australia, Belgium, Brazil, Burma, Canada, China, India, Monaco, Netherlands,

Norway, Poland, Sweden, and United Kingdom. See UN Treaty Collection available from

https://treaties.un.org/pages/LONViewDetails.aspx?src=LON&id=512&chapter=30&lang=en#top

Under Article 14, Chapter IV of the Convention, [a] child whose parents are both unknown

shall have the nationality of the country of birth x x x [and] until the contrary is proved, [is]

presumed tohave been born on the terri toryof the State in which it was found, available from

http://eudo-

citizenship.eu/InternationalDB/docs/Convention%20on%20certain%20questions%20relating%20t

o%20the%20conflict%20of%20nationality%20laws%20FULL%20TEXT.pdf

Article 14 only provides that the foundlings, or children whose parents are both unknown, shall

have the nationality of the country of birth. This shall have the nationality can be automatic,

i.e., they are automatically and at the moment of birth considered as nationals of the State; or, it

can also be subject to the procedures & requirements for acquiring nationality under the State's

nationality laws.

Likewise, the presumption under Article 14 that they are presumed to have been born on the

territory does not establish a natural-born citizen status. Note that the provision does not say

that foundlings are natural-born nationals or citizens, but only that they are presumed to have

been born on the territory. Thus, at most, it only establishes a presumption as to thefoundlings place of birth.

The interpretation that Article 14 establishes a presumption only as to the place of birth, not to a

natural-born citizen status, is clear when we read Article 14 with Article 1 of the Convention.

Article 1 provides that [i]t is for each State to determine under its own laws who are its

nationals. Thus, whether the foundling is the State s national or not and, assuming a national,

whether the foundling is natural-born or not, depends on what the State s nationality laws

provide.
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Even with the establishment of the Philippine Commonwealth

government (which came after the adoption and ratification of the 1935Constitution) and the establishment as well of the Philippine Republic

(which came after Philippine independence from the U.S. on July 4, 1946),

the Philippines neither signed nor acceded to the 1930 Hague Convention .Neither did the U.S. sign nor accede to the Convention during this period.

Interestingly, the U.S. 1940 Nationality Act contained a provision

similar to Article 14 of the 1930 Hague Convention, which grants to afoundling the nationality or citizenship of the territory where the child is

found. Under Section 201(f) of the U.S. 1940 Nationality Act, a child ofunknown parentage found in the United States, until shown not to have been

born in the United States, is deemed a citizen of the U.S.102

The legal effect of Section 201(e) of the U.S. 1940 Nationality Act,however, could not have been extended to the Philippines from the time of

this law s adoption in 1920 up to the Philippines independence from theU.S. in 1946. Under Section 5 of the Jones Law of 1916, the statutory

laws of the United States hereafter enacted shall not apply to the PhilippineIslands, except when specifically so provided, or it is provided in this Act.

The Jones Law did not contain a provision similar to Section 201(e) of the

U.S. 1920 Nationality Law.

Quite conceivably, it might be argued that although the Philippinesand the U.S. were not signatories to the 1930 Hague Convention, the U.S.

Nationality Law nevertheless grants citizenship to foundlings and, therefore,the 1930 Hague Convention could be treated as a customary international

law that, under Section 3, Article II of the 1935 Constitution, formed part of

the law of the land.

This argument likewise carries no merit given that the 1930 HagueConvention itself, under its Article 18, recognizes that its signing by the

several signatory-countries does not make the 1930 Hague Conventioncustomary international law and will not in any way prejudice thequestion of whether they do or do not already form part of international

law. Notably, the 1930 Hague Convention allows any signatory-country

to denounce the Convention (under Article 28), as well as to reserve and

declare that, in accepting the Convention, [it] does not assume anyobligations in respect of all or any of [its] colonies, protectorates, overseas

territories or territories under suzerainty or mandate, or in respect of certainparts of the population of the said territories x x x or that the Convention

shall cease to apply to any or all of these colonies, etc. (under Article29).103

102 U.S. 1940 Nationality Act, 54 Stat. 1137, 1138, available from

http://library.uwb.edu/static/USimmigration/54%20stat%201137.pdf103 For the same reason, the 1961 Convention on the Reduction of Statelessness (United Nations High

Commissioner for Refugees, available from http://www.unhcr.org/3bbb286d8.html

) cannot also

be claimed as a customary international law that should form part of the law. In this light, no

further discussion of this 1961 Convention appears necessary.
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In the light of the inherently tenuous nature of the binding effect of

international law on the Philippines in 1935 (and the mere passing referenceto international law during the constitutional debates), I have left to the

footnotes further discussion of the 1930 Hague Convention.

III.C.1.b. Treaty Obligations under the UNCRC, the

ICCPR and the UDHR

In my view, our UNCRC and ICCPR treaty obligations by theirterms do not operate to automatically grant Philippine citizenship to

foundlings. And while the legal norm presuming foundlings to have beenborn of parents of the country where they are found (or born) may have

found international application elsewhere in the world, this norm cannot be

applied in the Phi l ippines under the terms of the 1935 Constituti on as thi snorm contravened the clear terms of this Consti tuti on.

The Universal Declaration of H uman Rights(UDHR),on the other

hand, is not a binding treaty; it is merely a declaration made by the States ofthe rights and values they hold and believe in.104 Its individual provisions

may be binding only to the extent that they have been recognized asgenerally accepted principles of international law that are not inconsistent

with the Philippine Constitution.

I reach these conclusions after considering how our legal system

enters into and recognizes our international obligations, and after

considering the impact and interaction of international law with domesticlaw.

III.C.1.b.i. The dualist character of

international law in the Philippines

The Philippines has adopted a dualist approach in its treatmentof international law.105 Under this approach, the Philippines seesinternational law and its international obligations from two perspectives:

first, from the international plane, where international law reigns supremeover national laws; and second, from the domestic plane, where the

international obligations and international customary laws are considered inthe same footing as national laws, and do not necessarily prevail over the

latter.106

The first approach springs from the international customary law ofpacta sunt servanda that recognizes that obligations entered into by states

104 See: Chavez v. Gonzales, 569 Phil. 155, 195 (2008). See also: Separate Opinion of J. Puno in

Republic v. Sandiganbayan, 454 Phil. 504, 577 (2003), citing P. Drost. Human Rights as Legal

Rights(1951) at 32-33.105 M. Magallona. The Supreme Court and International Law: Problems and Approaches in

Philippine Practice 85Philippine Law Journal1, 2 (2010).106 See: Secretary of Justice v. Hon. Lantion, 379 Phil. 165, 212-213 (2000).


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are binding on them and requires them to perform their obligations in good

faith.107

This principle finds expression under Article 27 of the ViennaConvention on the Law of Treaties