(Conclusion)
Ultimate issues
Whether Mary Grace Natividad S. Poe-Llamanzares (“Poe”) made a
material misrepresentation in her Certificate of Candidacy (COC) for President
hinges on whether (1) she is a natural-born citizen of the Philippines, and (2)
she is a resident of the Philippines for 10 years immediately preceding the May
9, 2016 election.
Citizenship
The majority opinion accuses the Comelec of bordering on
“bigotry” when it ruled that since foundlings are not mentioned in the
enumeration of citizens under the 1935 Constitution, they cannot be citizens.
The majority said that the burden of proof was on the complaining petitioners
to show that Poe was not natural born;
there is a presumption that Poe has Filipino parents and is therefore a
natural born citizen; the statistical probability that a child born from 1965
to 1975 in the Philippines is a natural-born Filipino is 99.83%; Poe has
typical Filipino features; there is more than a 99% chance that a child born in
the province would be a Filipino; while the 1935 Constitution is silent on
foundlings, there is no restrictive language either that would exclude
foundlings; under international law foundlings are citizens of the country of
birth and that international law forms part of the law of the land. The
majority opinion said that when a Filipino reacquires citizenship under RA
9225, the repatriation results in the recovery of the original nationality, and
that since Poe was a natural-born citizen, she reacquired such status when she
repatriated under RA 9225.
In the main dissenting opinion
by Justice Antonio T. Carpio, he said that the Philippines adheres to the jus
sanguinis principle of the “law of the blood” to determine citizenship at
birth, which means that an individual acquires Filipino citizenship at birth
solely by virtue of biological descent from a Filipino father or mother; the
framers of the Constitution rejected the proposal to include foundlings as
citizens of the Philippines; foundlings whose parents are unknown cannot be
considered Filipino citizens; each independent nation has the right to
determine who are its citizens; there is no customary international law
presuming a foundling as a citizen of the country where the foundling is found;
the Philippines is not a signatory to the Hague Convention on foundlings; the
only way a foundling can be considered a Filipino citizen is for the foundling
to be naturalized; there is no law conferring natural-born citizenship on a
foundling based alone on statistical probability; the position of the Solicitor
General that a foundling with blond hair, blue eyes, white Caucasian skin, no
Asian genes, is a natural born Filipino citizen is the height of absurdity and
amends the Constitution and makes jus soli the governing principle for
foundlings, contrary to the jus sanguinis principle in the constitution; it is
incumbent on the person who claims Philippine citizenship to prove to the
satisfaction of the court that he is really a Filipino, and no presumption can
be indulged in favor of the claimant of Philippine citizenship.
Justice Mariano del Castillo
noted in his dissenting opinion that it is not improbable that Poe was born to
Filipino parents and that she should continue to obtain deoxyribonucleic acid
(DNA) evidence to prove her genealogy. Even if the court rules on her citizenship
now, that ruling can be changed at any time when there is certainty about her
biological lineage because generally there is no res judicata on citizenship
issues.
Residence
The majority opinion said that Poe’s claim that she will
have been a resident for 10 years and 11 months on the day before May 9, 2016
election is true, citing her U.S. passport showing her arrival in the
Philippines on May 24, 2005; school records of her children showing enrollment
in the Philippines since June 2005; title to a condominium issued in February
2006; a March 2006 e-mail to U.S. Postal Service confirming a change of
address; the sale of U.S. home on April 27, 2006.
With respect to Poe’s
declaration in her COC for President that she will be a Philippine resident for
10 years and 11 months by May 9, 2016, which the Comelec said was contrary to
her declaration in her COC for Senator which put six years and six months as
her residence before May 13, 2013, which would mean that she started being a
Philippine resident only in November 2006, the Supreme Court justified it
saying Poe misunderstood the date required in her senatorial COC as the period
of residence as of the day she submitted the COC in 2012. The Supreme Court
said that Poe’s senatorial COC was not conclusive as to the period of residence
and that Poe physically returned to the Philippines on May 24, 2005. The court
concluded that to constitute material misrepresentation the misrepresentation
must not only refer to material facts but there must be a deliberate intent to
mislead.
The dissenting opinion by
Justice Mariano del Castillo said that Poe made contrasting declarations as to
her period of residence in the Philippines in her senatorial COC and
presidential COC which rendered her vulnerable to the charge that she committed
material misrepresentation in her COC for president. For Justice del Castillo’s
dissenting opinion, see
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/march2016/221697_delcastillo.pdf
Justice del Castillo pointed
out that from May 24, 2005 (when Poe entered the Philippines as a visa-free
balikbayan for one year) to July 18, 2006 (when the Bureau of Immigration
approved Poe’s petition to reacquire Philippine citizenship), Poe was an alien
on temporary sojourn in the Philippines. Obtaining a Tax Identification Number
is not conclusive proof of intent to remain in the Philippines, but merely
indicates an intention to pay taxes. Buying a condominium or buying land do not
evince an intent to remain in the Philippines for good. Poe also acquired a
house in the U.S. in 2008, and still maintained the one she bought in 1992.
Poe’s intention to mislead in her COC for president is shown by making it
appear that she met the 10-year residency requirement when in fact, she did
not.
(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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