(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.” http://www.thefreedictionary.com/unconstitutional.
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 http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/march2016/221697.pdf
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 http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/march2016/221697_carpio.pdf.
(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: filamlaw@yahoo.com. Website: www.MilitaryandCriminalLaw.com.
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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