Friday, April 8, 2016

Poe decision: Is it unconstitutional?

(First of a series)

“A person who aspires to occupy the highest position in the land must obey the highest law of the land.” Elamparo v. Poe, SPA No. 15-001 (DC) Comelec, Second Division, Resolution, Dec. 1, 2015. 

The term “unconstitutional” means not allowed by the constitution of a country; not according or consistent with the constitution of a body politic.” Merriam-Webster Dictionary. The term also means “in violation of the requirements of the constitution of a nation or state.”

On March 3, 2016, the Philippine Supreme Court rendered a decision by a vote of 9 to 6, granting the petition to annul and set aside three Comelec resolutions canceling the Certificate of Candidacy (COC) of Mary Grace Natividad S. Poe-Llamanzares (“Poe”) for President of the Philippines in the May 9, 2016 elections. The Comelec had ruled that Poe is not a natural born citizen, that she failed to complete the 10-year residency requirement, and that she committed material misrepresentation in her COC when she declared therein that she has been a resident of the Philippines for 10 years and eleven months as of May 9, 2016. The Supreme Court held that Poe is a qualified candidate for President in the May 9, 2016 elections and that the procedure and conclusions from which the Comelec resolutions emanated are tainted with grave abuse of discretion amounting to lack of jurisdiction.

Mary Grace Natividad S. Poe-Llamanzares (“Poe”) was found abandoned as a new born infant in a Catholic church in Iloilo City, Philippines on September 3, 1968 by a certain Edgardo Militar. He turned over custody of Poe to Emiliano Militar and his wife. On September 6, 1968, Emiliano reported Poe as a foundling in the Civil Registrar of Iloilo City. The name given Poe was Mary Grace Natividad Contreras Militar.

When Poe was 5 years old, Ronald Allan Kelley Poe (Fernando Poe, Jr.) and Jesusa Sonora Poe (Susan Roces) filed a petition for Poe’s adoption in San Juan, Rizal. On May 13, 1974, the court granted the petition and ordered Poe’s name to be changed to Mary Grace Natividad Sonora Poe.

On July 27, 1991, Poe married Teodoro Misael Daniel V. Llamanzares, a dual Filipino-American citizen, in San Juan City. They went back to the U.S. where they had been residing. On October 18, 2001, Poe became a naturalized American citizen. On December 13, 2004, Poe returned to the Philippines upon learning of her adoptive father’s deteriorating health condition. After her father died, Poe went back to the U.S. on February 3, 2005. On May 24, 2005, Poe returned to the Philippines, obtained a tax identification number, her three children followed, she purchased a condominium unit in San Juan City in the latter part of 2005. On February 14, 2006 Poe traveled to the U.S. to supervise the disposal of the family’s belongings and returned to the Philippines on March 11, 2006.

On July 7, 2006, Poe took her oath of allegiance to the Republic of the Philippines pursuant to Republic Act 9225. On July 10, 2006, Poe filed with the Bureau of Immigration a petition to reacquire Philippine citizenship. On July 18, 2006, the BI issued an Order that Poe had reacquired her Philippine citizenship. On July 12, 2011, Poe executed before the U.S. Embassy an Oath/Affirmation of Renunciation of Nationality of the United States. She stated that she had resided outside of the U.S. (specifically the Philippines) from September 3, 1968 to July 29, 1991 and from May 2005 to the present. On October 2, 2012, Poe filed with the Comelec a COC for Senator for the 2013 elections wherein she answered “6 years and 6 months” to the question “Period of residence in the Philippines before May 13, 2013.”  Poe was elected senator on May 16, 2013.

On October 15, 2015, Poe filed her COC for the Presidency in the May 9, 2016 elections, stating that she is a natural born citizen and that her residence in the Philippines up to the day before the May 9, 2016 elections would be 10 years and 11 months counted from May 24, 2005. Four petitions were filed with the Comelec to deny due course or cancel Poe’s COC. The petitions basically alleged that Poe committed material misrepresentation in her COC when she stated that she is a natural-born citizen and a resident of the Philippines for 10 years and 11 months before the May 9, 2016 elections. Two divisions of the Comelec granted the petitions and cancelled her COC. Poe then filed a petition for certiorari with the Supreme Court, which on March 8, 2016, granted her petition and set aside the Comelec resolutions by a vote of 9 to 6.

Primary issue
The ponente of the majority opinion, Justice Jose Portugal Perez, correctly stated that the issue before the Comelec was whether Poe’s COC should be denied due course or cancelled on the ground that she made a “false material misrepresentation”. For the majority opinion see

But the opinion incorrectly stated that the Comelec “cannot itself, in the same cancellation case, decide the qualification or lack thereof of the candidate.” How can the Comelec decide whether there is a “false material misrepresentation”, unless it determines whether the candidate is qualified for the position that he/she filed a COC for?  Did the majority read our book with retired Judge Artemio S. Tipon “Winning by Knowing Our Election Laws” where we cite cases decided by the Supreme Court stating or recognizing that the Comelec has jurisdiction under Sec. 78 of the Omnibus Election Code over a petition to deny due course or cancel a certificate of candidacy and determine whether a false representation as to material facts was made in the COC? See Domino v. Comelec, 310 SCRA 546 (1999) (Comelec has jurisdiction under Section 78 of the Omnibus Election Code over petition to deny due course or cancel COC and can determine whether false representation was made as to residence of candidate; Labo v. Comelec, 211 SCRA 297 (1992) (Comelec cancelled COC of candidate stating he was a “natural born” Filipino when in fact he had become an Australian citizen. The most recent decision is Caballero v. Comelec, G.R. No. 209835, decided on 09/22/2015, where the Supreme Court held that the Comelec did not commit an error in cancelling the COC of a mayoral candidate for material misrepresentation when he stated in his COC that he had been a resident of Uyugan, Batanes, for one year prior to the May 13, 2013 elections, but failed to present competent evidence to prove it. The Comelec’s jurisdiction is founded on Section 2(1), Article IX-C of the Constitution empowering it to “[e]nforce and administer all laws and regulations relative to the conduct of an election.” As Justice Carpio pointed out in his dissenting opinion “Screening initially the qualifications of all candidates lies within this specific power.” For Justice Carpio’s dissenting opinion, see (To be continued)

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has also a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: Website: He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with retired Manila RTC Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)

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