Vous êtes sur la page 1sur 150

J.

~
~{
'I ;, L~.J {~ -~, . . i~..)l.. -'. L'

~\l-" ~U :~ C'ET'\~y:. ;.~

:.; .l ,,-~-~-~-- ..... -.-.~-~.~~ .. --"-~

REPUBLIC OF THE PHILIPPINES


SUPREME COURT . 2016 JAN -4 PM 3: 50
MANILA

EN BANC
---~-p--~-

RIZALITO Y. DAVID,
Petitioner,

-versus- r' -=~


\_T.J, __ .Ll\T,- L ') ,-> J"'-->--
/-/...i
c:: 'Jg

SENATE ELECTORAL TRIBUNAL


and l\/IARY GRACE POE
\ 1Yl!'
~ LLAMANZARES,
Respondents.

)(- - - - - - - - - - - - - -- --- -- - -- - -- --- - -- -- - -- -- -- -- --- -- - ... - - -- - -- ... - - - - - - - - -- -.. . . .. ;\

COMMENT ON. THE PETI'rION


-~. O"T""',,..........,,...,.~T"'

.P nvaLe , d.ent s
- - . . 1-espon . '- . n....x.RA(-'
,__ enator MAJ=>y lArl'J'"VJl-il
L"' P
, . A> . . _11 \f')' "I\

SONORA POE LLAM:ANZARES ("Sen. Poe:' or ''Prh.iR~f


Respondent")!, by counsel, respectfully states:
I

PREFATORY STATEMENT

f,'The choice of the governed on who shaJl be theu


goverr:wr inerits the pighest c9nsideratiqn~ by an agencies nr
goveni.ment In cases where the sovereignty of the people is nt
stake, we n1ust not only be legally right but abo politically
correct. \Ale cannot fail by 1naking the people succeed.":~

So wrote Justice, later Chief ,Justice, H.eynato Puu-10)


concurring in the pon.enci.a penned by .Justice, later C'hicf
Justice, Artemio Panganiban for the Supren1e .Court in the
landn1ark 1996 case of Fri.valdo vs. Com.m.ission en Election.<;_.;

1 Private Respondent may be served with pleadings, processes, o;clers 8 ncl the deciE;tuu
in this case through undersigned counsel.
2 ,J. Puno, Concurring Opinion in frivaldo y,_ __ Commission on~_.l;;J~~Jilln_q, G.R. 1\:0.
120295, 28 June 1996.
"G.R. No. 120295, 28 June 1996.
2

The Frivaldo Court laid down the judicial philosophy of due


regard and deference to a sovereign mandate, in the absence
of a clear demonstration of ineligibility so patently antagonistic
to constitutional and legal principles. Thus, fullest e~fect must
be given to the manifest will of the people, "for in case of
'
doubt, political laws must be interpreted to give life and spirit
to the popular mandate freely expressed through the ballot" 4 ,
., _ /and considering our republican form of government, "'it would
' , . be far better to err in favor of popular sovereignty than to be
right in complex but little understood legalisms."5

The lesson, so emphatically stated that it cannot be


;II' missed, is this: in deciding cases which may jeopardize
expression of sovereign will, a judge must be guided not only
by his understanding of the law, but by a mindful
consideration of the core principle of our very theory of
government-that is, "sovereignty resides in the people and all
governmental authority emanates from them." As the ultimate
source of all governmental authority, including judicial power,
the sovereign people is "legally omnipotent and absolute in
relation to other legal institutions." 6 Hence, the expression of
its people's will, especially in this case where Petitioner himself
has admitted that the issue of Private Respondent's citizenship
was raised doing the 2013 elections, must be considered as
the people's own judgment on those issues, and as such must
be deferred to in recognition of the collective wisdom of the
people in whom sovereignity resides. The power of the people
as a sovereign is "a final power of final legal adjustment of all
legal issues," 7 and their will cannot so easily be disregarded by
pretensions of legal might.

In its 17 November 2015 Decisions and 3 December 2015


Resolution, 9 the Senate Electoral Tribunal ("SET")-the sole
and exclusive judge of the qualifications of sitting Senators of
the Republic-correctly gave life to these core republican
principles when it dismissed the quo warranto petition filed by
Petitioner on the finding that, among others, he failed to
discharge his burden of proving the very fact of Private
Respondent's alleged disqualification. The SET, in the exercise
of its constitutional authority to interpret the law, also

4 Jd.
5 Id.
6 J. Puno, Concurring Opinion in Frivaldo v. Commission on Elections, G.R. No.
120295, 28 June 1996, citing DEAN VICENTE SINCO, PHILIPPINE POLITICAL LAW, PRINCIPLES
AND CONCEPTS, 1954, ed., p. 22.
7 Id., citing BARKER, PRINCIPLES OF SOCIAL AND POLITICAL THEORY, p. 59 (1952 ed.).

B Annex "1" hereof


9 Annex "2" hereof
'
l ' .::-::. 3

~;f
.~ declared that, notwithstanding her admitted status as a, .
~
foundling, Sen. Poe is a natural-born Filipino citizen under the
1935 Constitution, and continues to be one under the 1987
.1!,. Constitution, as she "is a 'citizen of the Philippines from birth,
:.'
without having to perform any act to acquire or perfect (her)
;{ :. i:{.
Philippine citizenship. "'IO In doing so, it used recognized aids
in interpretation to determine the original intent of the framers
of the 1935 Constitution; harmonized the ostensibly
conflicting provisions cited by both parties; gave effect to
international commitments of the Philippines; recognized the
applicability of generally accepted principles of international
law with respect to foundlings; and, as importantly, upheld the
fundamental principles animating the Constitution-giving life
not only to the letter and spirit of the law, but also to justice
and fairness.

Unsatisfied, Petitioner is now before this Honorable Court


imputing grave abuse of discretion "or reversible error" against
the SET on the pretended tbeo:ry that the majority voted solely
on the basis of "personal and political considerations," simply
because they happen to be Senators. He invokes this
Honorable Court's limited jurisdiction to review errors of
jurisdiction that may have been committed by the SET, but in
so doing, effectively asks this Honorable Court to throw open
the entire proceedings without even bothering to show how or
why such curtailment on the SET's exclusive jurisdiction could
be justified. He cites columnists and tabloid reporters to
~1: :":"~ !

"substantiate" his baseless ascriptions of improper motives-


or worse, general ignorance-among the Senator-Members
who compose the SET majority. Petitioner, while ostensibly
.,.
'.~ invoking the law, himself does not rely on it, but instead puts
his faith on the mere opinion of media men, who in his
estimation are more knowledgeable about the law than the
SET which voted to dismiss his Petition. Petitioner's contempt
and blatant abuse of judicial processes-a characteristic that
has defined his efforts from the start-should no longer be
countenanced. This Petition for Certiorari sh01,;i.ld be denied,
and due respect given to the exclusive jurisdiction of the SET
to decide the issue of Senator Poe's citizenship qualification
posed before it, especially considering that Petitioner
absolutely failed to prove grave abuse of discretion, but at
most, errors of judgment (or, in his words, "reversible errors")
allegedly committed by the SET, which is beyond review even
by this Honorable Court.

1017 November 2015 Decision of the SET in SET Case No. 001-15 (hereinafter, "SET
Decision"), p. 27
4

TIMELINESS OF THIS COMMENT


... ( . .-jl

. 1. On 17 December. 2015, under,sign~d:,~~,f~?~~[r~%"i'


. __ e1ved a copy of the Notice of the. Resolu~1~t;i> ~<?f~:ht~~~/.
norable Court dated 16 December 2'015, requ1nitfg;tBt~v~e-
...:spondent to comment on the Petition and ~P:~ayJflcf\:~9'.t;'''
,.:;~~,niporary restraining order ("TRO") or writ of pre!im~~l:ify
1r"mjunction within a non -:-extendible periqd 0 fifleeniit.~.P.)i;:'..~i~l?,~
L '':l
, , " ,.,, ~ '.'' , f ~"i f.. \\\ :~ -{_,,,,' ,<

"ft6m notice ~, 1 ,, 1'' 1

.: . . . :; ':; ; :; t}l~i~ '


~f!;' ,,~, Since Private Respondent's fifteenth day tO fil~/H~f\
2.
;':Comment was on 1 January 2016, a legal holiday,: she ,,has
if'', . ,';,,"i - : . ~- 1,r ,'; '( .,J'l
1
, . I'

:{'qntil the next working day, or until 4 January 20:1,fi; .tt<j,.jftle,,


f. '. ',j!I, ' '' ' . .f , ~1<' ~.. ,, '

~~a.id Comment. Hence, this Comment is timely filed. t ~1:'.ri!;;}


..'
,.

COUNTER-STATEMENT OF FACTS
AND ANTECEDENT PROCEEDINGS. ~
~'[;:~i .
;ij~J~:,
.21,~A.'.:1,.,
,'le,

The Facts -:4'i


\.',
ft\' .

~:~~~;: . , :, r.< :~J:~j;i';. r.,


3. The following facts are culled from the adfuissioris of
the parties in the pleadings, or otherwise supported by the
evidence, or found by the Senate Electoral Tribunal ("SET" or
"Honorable Tribunal"). The respective bases are appropriately
footnoted.

4. Sen. Poe is a foundling; 11 she does not know who


her biological parents are. She was born on 3 September 1968
in Jaro, Iloilo. However, immediately after her mother gave
birth to her, 12 she was abandoned in the Parish Church of
Jaro,13 where a certain Mr. Edgardo Militar found her. 14 Mr.
Edgardo Militar chose to place Private Respondent in the care
and custody of his relatives, the spouses "Mr. and Mrs.
Emiliano Militar."1s

5. On 6 September 1968, Mr. Emiliano Militar reported


to the Office of the Civil Registrar of Iloilo City ("OCR-Iloilo"),
the fact that, on 3 September 1968, herein Private Respondent

11 Admitted by the parties. See Amended Petition (hereinafter, "Petition"), par. 10, p.5,

and par. 24, p.10; Verified Answer (hereinafter, "Answer"), par. 1.1, p. 5, and par. 2.19,
p.18; Decision dated 17 November 2015 of the SET (hereinafter, "SET Decision"), p. 1. A
copy of the SET Decision is attached as Annex "C" of the Petition.
12 Par. 4.1, Petition
13 Admitted - Petitioner's Preliminary Conference Brief dated 8 September 2015, p. 1,

second par.; p, 1, SET Decision


14 Admitted in par. 10, p.5, and par. 25, p.11, Petition; par. 1.1, p. 5, and par. 2.19,
p.18, Answer; p. 1, SET Decision
15 See Exhibit "1"
5
-1
~
;~
~:-
was found in the Parish Church of Jara. In her Foundling
~
i ,, Certificate,1 6 Sen. Poe's full name was indicated to be "Mary
Grace Natividad Contreras Militar."
~
6. When Sen. Poe was five (5) years old, the spouses

'
~!~

~' :_:::
Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.) and Jesusa
~j
"\
:
Sonora Poe (a.k.a. Susan Races) filed a petition for her
adoption. 17 On 13 May 1974, the Municipal Court of San Juan
;1~1
' ("San Juan Court") rendered a Decision granting the petition of
the Spouses Poe,1s and ordering a change in Private
Respondent's name "from Mary Grace Natividad Contreras
Militar" to "Mary Grace Natividad Sonora Poe." 19

6.1. In a Certificate of Finality dated 27 October


2005,20 Clerk of Court III Eleanor A. Soria, certified that
the San Juan Court's Decision dated 13 May 1974 "has
never been supplemented, amended or modified by any
subsequent Order coming from the Court and therefore
has already become FINAL."

6.2. On 11 April 1980, the OCR-floilo received the


San Juan Court's Decision which was "included in the
Official Record File of the Office."21 Thereafter, OCR-floilo
noted on herein Private Respondent's Foundling
Certificate22 that she had been adopted by the Spouses
Poe on 13 May 1974. The following hand-written
notation appears in the column on the right-hand side of
Private Respondent's Foundling Certificate reserved for
"accomplish(ment)" by OCR-floilo:

NOTE: Adopted child by the Spouses Ronald Allan Poe


and Jesusa Sonora Poe as per Court Order, Mun. Court,
San Juan, Rizal, by Hon. Judge Alfredo M. Gorgonio
dated May 13, 1974, under Sp. Proc. No. 138.

6.3. In compliance with the San Juan Court's


Decision, the OCR-floilo also appears to have indicated on
Sen. Poe's Foundling Certificate that her middle name

16 Exhibit "1", Certified True Copy of Foundling Certificate and Certificate of Live Birth

(hereinafter, "Original Certificate of Live Birth"); p. 1, SET Decision


17 Admitted - par. 12, p.5, and par. 31, p.13, Petition; par. 1.2, pp. 5 to 6, and par. 2.19,
p.18, Answer; Petitioner's Preliminary Conference Brief dated 8 September 2015, p.5,
Item No. (17); Petitioner's Exhibit "Q"; pp. 1-2, SET Decision
18 A certified true copy of this Decision is Exhibit "2" in the proceeding a quo.
19 See Exhibit "2"
20 Marked as Exhibit "2-2" below
21 A copy of OCR-Iloilo's Certification dated 11 November 2005 was marked as Exhibit

"2-1".
22 See Exhibit "l"

-.,,.._.,.,.,.,.......f<~ ._,,_.....,_,,,,,.-. - - ~ ---~ -"T"'"O"T"'~"'~'"


6

("Contreras") and last name ("Militar") would be replaced


with "Sonora" and "Poe," respectively. The names of

Ronald Allan Poe and Jesusa Sonora Poe were also
written on Sen. Poe's Foundling Certificate, in the boxes
or spaces reserved for the names of those legally
considered as her parents.

7. As a natural-born Filipino citizen raised in a Filipino


household, Sen. Poe exercised rights and observed
responsibilities appurtenant to such citizenship.

7.1. Soon after she turned eighteen (18) years old,


she applied for registration as a voter. On 13 December
1986, the COMELEC issued in her favor a "Voter's
Identification Card" for Precinct No. 196 in Greenhills,
San Juan, Metro Manila.23

7.2. Likewise, on 4 April 1988, 5 April 1993, 19


May 1998, 13 October 2009, and on 18 March 2014, the
Ministry /Department of Foreign Affairs of the Philippines
issued Philippine passports in Sen. Poe's favor, all
uniformly stating that she is a citizen of the Philippines.2 4
A Philippine diplomatic passport was likewise issued in
her favor on 19 December 2013.25 Said passports
uniformly state, in part, that "(t)he Government of the
Republic of the Philippines26 requests all concerned to
permit the bearer, a citizen of the Philippines to pass
safely and freely and, in case of need, to give (her) lawful
aid and protection."

8. Sen. Poe initially pursued a college degree in


Development Studies at the University of the Philippines,
Manila. However, in 1988, she tr an sferred to the Boston
College in Chestnut Hill, Massachusetts, U.S.A. In 1991, she
graduated from Boston College with a degree of Bachelor of
Arts in Political Studies. 21
.
9. On 27 July 1991, Sen. Poe married Teodoro Misael
Daniel V. Llamanzares at Sanctuario de San Jose Parish at
San Juan City, Metro Manila. 28 Sen. Poe's husband is a
23 Admitted - Petitioner's Preliminary Conference Brief dated 8 September 2015, p. 5,
Item No. (18); Petitioner's Exhibit "R"; p. 2, SET Decision. A copy of respondent's 1986
voter's identification card is Exhibit"4".
24 Admitted - Petitioner's Preliminary Conference Brief, p. 2, second par., p. 4, Item No.

(2); Petitioner's Exhibit "B-series"; p. 2, SET Decision


25 SET Decision, p.2. Copies of these passports are Exhibit "5-series".

26 The Secretary of Foreign Affairs, in case of the Diplomatic Passport.


27 Admitted - par. 12, p.5, Petition; par. 1.4, p. 6, Answer; p. 2, SET Decision

2s Admitted - par. 13, p.1, Petition; par. 1.5, p. 6, Answer; p. 2, SET Decision

----------- ---------------------
7
: ;"<:'"-ii' . ':-:::\ / ' .
'\! " .~. / ~ic(...,,lf'"' .,,. ,
.. )1 ~'i~~-, . ~'""~t~rB~'(:::,.
"~:itjzen of both the Philippines and th~ U.S.A. frotri
. . . ..
bi~~;3~" 1

,. -?i;"r .
.~hen Sen. Poe married her husband, he was alread~",b,as~~~1n.
~: ., ~Vfli
. e U . S .A. . :':r.\,:"':)IP''
'. ' : .''!!' }; II . : ~t,,:i<i' . f.!/

10. Sen. Poe had been raised a Filipina, and 11.~ff>ai]e~ltl~ :~': (,, ,.,\ _t,: ">"',.,. .,

. d instilled Filipino values in her. 30 She thus willit;(gly ci11.C>s'~:''"


.l-O: live with her husband in the U.S.A .. and to r8.ise 1tlie'l'.r
A~':"' I'~ .. . . . ' f:I .

-;~~hildren there. On 29 July 1991, she left fqr.the U.81~.31,.ff'i:~tli*.f:.


. ,.! .~- ., .. ~(.i> w 1'.l:,;st~'('''
.. . 11. Sen. Poe and her husband have three., bnild~~p.
1~ ./their eldest child, Brian Daniel ("Briari"r, was born 01116-Ap:rit
. \'.)}~92 in the U.S.A.32 Their daughters, Hanna MacKenzie
',;t-OJHanna") and Jesusa Anika ("Anika"); were both bo,;p,,iri\~thd.
-1/

.:i~~hilippines on 10 July 199833 and 5 June 2004 '3 4 . resp.~qt~;V~ly;~''


1~i'A!ii . { i . ~ ,!p~ / .
;~:~~:L~, 12. Although Sen. Poe and her family liv~d,, i,;;'f#1e
; i.
*&'i!S.A., they kept close ties t? .the P~ilippines .. ~~etCt~~~~~ft1(ll
it~t.-.~~.:quently to the country to v1s1t r~latives and .fne~d. ~.._.:'i'S_e~~~F_:_.r_:.p,e_
i~d her husband had always intended to return ~;~o,~!f~lre,
1'bfi'' 1 . 35
:-.,._r-, 11pp1nes. .- . '..,,,.,,.:i;s:r''/......1 '
- , ,:;1~,-~:.v~;r:.6
tf...,. 13. Despite living in the United States for more thanten
(10) years, it was only on 18 October 2001 that Private
Respondent became naturalized as a citizen of the U.S.A.36 On
19 December 2001, the U.S.A. "Passport Agency" in
Washington issued U.S.A. Passport No. 01703779337 to her.

14. In 2003, Sen. Poe's father declared his candidacy for


President of the Philippines in the May 2004 elections. 38

15. On 8 April 2004, Private Respondent travelled to the


Philippines together with her daughter, Hanna.39 Private
Respondent was pregnant at the time with her youngest
daughter, Anika. She returned to the Philippines as she
wanted to give moral support to her parents during her
father's campaign. She also wanted to give birth to Anika in
the Philippines. As discussed earlier, Anika was born on 5

SET Decision, p. 2
29
Memorandum for the Respondent (hereinafter, "Poe Memorandum"), par. 1.5
30
31 SET Decision, p. 2
32 Admitted - Petitioner's Preliminary Conference Brief, p.6. item (1); Petitioner's
Exhibits "C" and "F"
33 Id., Petitioner's Exhibits "C", "H" and "I"
34 Id., Petitioner's Exhibits "C", "K" and "L"
35 Poe Memorandum, par. 1.7
36 Admitted - par. 13, p.5, and par. 44, p. 20, Petition; par. 1.8, p. 7, and par. 2.24, p.
22, Answer
37 Marked as Exhibit "20"
38 Poe Memorandum, par. 1. 9
39 See Exhibit "20"; Poe Memorandum, par. 1.9

-'~''''Y" .. Y',.""~'WN<'"'.W '<'"' '" ~>'hXi'<'l'~'''''l~~'"'' ,,


8

June 2004. On 8 July 2004, Private Respondent returned to


the U.S.A.40 with her two daughters.

16. In May 2004, in an election marred with controversy


and widespread reports of cheating, Sen. Poe's father lost the
Presidency.

17. A few months later, or on 11 December 2004, Sen.


Poe's father was admitted at the St. Luke's Medical' Center in
Quezon City. 41 He eventually slipped into a coma. 42

18. As soon as she was informed of her father's fast-


deteriorating medical condition, Private Respondent, who was
then in the U.S.A., rushed to leave for the Philippines.43 She
arrived in the country in the evening of 13 December 2004,
but her father died shortly thereafter, on 14 December 2004. 44

19. The untimely death of Private Respondent's father


was a severe emotional shock to the family. Thus, she chose
to stay in the country to comfort her grieving mother.45 She
also wanted to assist in taking care of the funeral
arrangements for her father and settling his estate. Sen. Poe
stayed in the Philippines until 3 February 2005. 46

20. As a result of the untimely demise of her father, and


her desire to be with and to comfort her grieving mother, Sen.
Poe and her husband, sometime in the first quarter of 2005,
decided to return to the Philippines for good. 47 They consulted
their children, who likewise expressed their wish to relocate
permanently to the Philippines. 48 The children also wanted to
support their grandmother and mother.

21. In 2004, Sen. Poe had already resigned from her


work in the U.S.A. and she never again sought employment
there. In early 2005, Brian and Hanna's schools in Virginia,
U.S.A., were likewise notified that they would be transferring
to Philippine schools for the next semester.49

40 See Exhibit "20"; Poe Memorandum, par. 1. 9


41 Poe Memorandum, par. 1.10
42 Poe Memorandum, par. 1.10
43 Poe Memorandum, par. 1.10
44 Exhibit "20"; Poe Memorandum, par. 1.10
45 Poe Memorandum, par. 1.11
46 Poe Memorandum, par. 1.11
47 Poe Memorandum, par. 1. 12
48 Id.
49 Poe Memorandum, par. 1. 13
9

22. On 24 May 2005, or shortly before the start of the


academic year in the Philippines, Sen. Poe returned to the
country. 50 Her three (3) children also arrived in the country in
the first half of 2005. Sen. Poe's husband, on the other hand,
stayed in the U.S.A. to finish pending projects, and to arrange
for the sale of the family home there.51

23. Shortly after arriving in the Philippines, Sen. Poe


immediately submitted herself to the local tax jurisdiction by
registering and securing a Tax Identification Number ("TIN")
from the BIR (dated 22 July 2005).52

24. On 4 May 2006, OCR-floilo issued a new Certificate


of Live Birth53 in the name of "Mary Grace Natividad Sonora
Poe."

25. After Sen. Poe and her family settled themselves,


she turned her attention to regaining her natural-born Filipino
citizenship. She was advised that she could legally reacquire
her natural-born Philippine citizenship by taking an oath of
allegiance to the Republic of the Philippines, pursuant to the
provisions of R.A. No. 9225, otherwise known as the
"Citizenship Retention and Re-acquisition Act of 2003." 54

26. On 7 July 2006, Sen. Poe took her Oath of


Allegiance to the Republic of the Philippines, as required
under Section 3 of R.A. No. 9225 55 to wit:56

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.

27. On 10 July 2006,57 Sen. Poe filed with the Bureau


of Immigration ("B.I.") a sworn petition5s to reacquire her

50 Admitted - Petitioner's Preliminary Conference Brief, 8 September 2015, p.6 Item


Nos. (7) and (10); Petitioner's Exhibit "LL"; p. 2, SET Decision
51 Poe Memorandum par. 1.14
5 2 Id.,p.5 Item No. (19); Petitioner's Exhibit "S"; p. 2, SET Decision. A copy of
Respondent's TIN Identification Card dated 22 July 2005 is Exhibit "6".
53 Marked as Exhibit "3"
54 Poe Memorandum, par. 1.18
5 5 Admitted - Petitioner's Preliminary Conference Brief, 8 September 2015, p.4, Item
No. (l); Petitioner's Exhibit "A"; p. 2, SET Decision
56 Herein petitioner's Oath of Allegiance under R.A. 9225 was marked as Exhibit "8"

"'""' ~--.-- "" ________________________


J,'

10

': , . ,,'f,. ", i f1/:f~~r;,1]M'..;',


'natural-born
.., . . to-. R.A.'>.,~.~.
Philippine citizenship pur.s:uanb . . . d(#;,9
. ..."~..:.'~f/!rf.".,,.,1:.
.:'. .t-i'h". $.::...
d its implementing rules and regulations. Upon ~dyi~e;. ~91~'..
ultaneous with her own application, Sen. . t:fde ' :i~~~~,'
. plications for derivative citizenship59 on behalf of, her ;tf-t1~~\
. ildren who were all below eighteen (1"8) years of ~ge ,I a,~'~t,:af .
, e. 60 ,. , ,~l:./ \i ~i(,>.
. . ,. ' f} '/,; ' . . if/~:~t .
~7 .1. . In support of ~er~ ap.171.i~atio~~t",.m~.~Mt.
compliance with the implementing rules and r:,egufati:~;es,
"'';!!'''''
of R.A. No. 9225, Sen. Poe submitted to the B.I.,a cot1Y:i;pf
her Philippine Passport which the DFA had issued t6"11er'
on 19 May 1998.6 1 r
; )~:'; ..~.~\'.\ '

28. On 18 July 2006,62 the B.I. issued ~ 'dril@f63?i


Sen. Poe's applications, which states .iJ:;L;p.ertibetit
~
't --~ ~
,,~ : l\'
P:- careful r.e:ie~ o~ the documents ~~bmitted ih s~~(. ,:
of the mstant petit10n md1cate that the petitioner was' a , ,(firrn.~t!
.. I"'.,
citizen of the Republic of the Philippii;ies being bon;i ~o Fili,p1nq,~
parents and is presumed to be a natural bdm Philippine citizen;\,w;-, .,., "'I \1,,,,

thereafter, became an American citizen and is now a holder of:' :;>


an American passport; was issued an ACT and ICR and has
taken her oath of allegiance to the Republic of the Philippines
on July 7, 2006 and so is thereby deemed to have re-acquired
her Philippine Citizenship. 64

In the same 18 July 2006 Order, Sen. Poe's three children,


Brian, Hanna and Anika, were "deemed Citizens of the
Philippines in accordance with Section 4 of R.A. No. 9225."
To date, the B.I.'s 18 July 2006 Order has not been set aside
by the Department of Justice or any other agency of
Government.

29. On 31 July 2006,65 the B.I. issued Identification


Certificates ("I.C.") in Sen. Poe's name and in the names of her

57 Admitted - Petitioner's Preliminary Conference Brief, 8 September 2015, p.4, Item


No. (3); Petitioner's Exhibit "C"; p. 2, SET Decision
58 A certified true copy of Respondent's Petition is Exhibit "7".
59 Certified true copies of these Petitions are Exhibit "9-series".
60 Admitted - Petitioner's Preliminary Conference Brief, p.4, Item Nos. (6), (9) and (12);
Petitioner's Exhibits "F", "I" and "L"; p. 2, SET Decision
61 See Exhibit "5-2"
62 Id., p.4, Item No. (5); Petitioner's Exhibit "E"; p. 2, SET Decision

63 A certified true copy of Office Order No. AFF-06-9133 dated 18 July 2006 is Exhibit
"10".
64 Underscoring supplied
65 Admitted - Petitioner's Preliminary Conference Brief, pp.4 to 5, Item Nos. (7), (10)
and (13); Petitioner's Exhibits "G", "J" and "M"
11

three children.66 Sen. Poe's l.C. states, in part, that she is a


"citizen of the Philippines pursuant to the Citizenship
Retention and Re-acquisition Act of 2003 (RA 9225) in relation
to Administrative Order No. 91, Series of 2004 and
Memorandum Circular No. AFF-2-005 per Office Order No.
AFF-06-9133 signed by Associate Commissioner Roy M.
Almoro dated July 18, 2006."
)
30. On 31 August 2006, the COMELEC registered Sen.
Poe as a voter at Barangay Santa Lucia, San Juan City. 67

31. On 6 October 2010,68 President Benigno S. Aquino


1"1'C:
III appointed Private Respondent as Chairperson of the
MTRCB,69 a post which requires natural-born Philippine
citizenship. Private Respondent did not accept the
appointment immediately, because she was advised that,
before assuming any appointive public office, Section 5(3), R.A.
No. 9225 required her to: (a) take an Oath of Allegiance to the
Republic of the Philippines; and (b) renounce her U.S.A.
citizenship. She complied with both requirements before
assuming her post as MTRCB Chairperson on 26 October
2010.7

32. On 20 October 2010,71 Sen. Poe executed before a


notary public in Pasig City an "Affidavit of Renunciation of
Allegiance to the United States of America and Renunciation of
American Citizenship" of even date.72 The affidavit states:

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

66 Certified true copies of Identification Certificate Nos. 06-10918 (in Respondent's


name), 06-10919 (in Brian's name), 06-10920 (in Hanna's name), and 06-10921 (in
Anika's name), are Exhibit "11-series".
67 Admitted - Petitioner's Preliminary Conference Brief, p.5 Item No. (20); Petitioner's

Exhibit "T"; A copy of the stub of Respondent's application form, showing the date of
such application, is Exhibit "12".
68 Admitted - par. 15, p. 6, Petition; par. 1.22, p. 10, Answer; Preliminary Conference

Brief dated 8 September 2015, p.5, Item No. (21); Petitioner's Exhibit "U"; p. 2, SET
Decision
69 A copy of Respondent's Appointment is Exhibit "13".
70 A certified true copy of petitioner's Certificate of Assumption of office as MTRCB

Chairperson was marked as Exhibit "16-1".


7 1 Admitted - Petitioner's Preliminary Conference Brief, 8 September 2015, p. 5, Item
No. (22); Petitioner's Exhibit "V"; p. 3, SET Decision
72 A notarized copy of Respondent's Affidavit of Renunciation is Exhibit "14".
12

allegiance and fidelity thereu_nto pertaining. I make this


renunciation intentionally, voluntarily, and of my own free will,
free of any duress or undue influence.

IN WITNESS WHEREOF, I have hereunto affixed my


signature this 20th day of October 2010 at Pasig City,
Philippines. 73

32.1. Sen. Poe, through counsel, submitted74


the above affidavit to the B.I. on 21October2010. 75

32.2. At no time after Sen. Poe executed the


above affidavit did she ever use her U.S.A. Passport
again.76 Thus, Sen. Poe's U.S.A. Passport No.
017037793 77 and her travel records from the B.I.
(subpoenaed by Petitioner) 78 indicate no use of Private
Respondent's U.S.A. Passport after her renunciation of
U.S.A. citizenship on 20 October 2010. As the SET
found, 79 after having taken her oath of allegiance to the
Republic on 7 July 2006, Sen. Poe's travel records from
the B.I. indicate only the following dates of use of her
U.S.A. Passport:

Departures Flight No.


1 November 2006 SQ071
20 July 2007 PR730
31 October 2007 PR300
2 October 2008 PR358
20 April 2009 PR104
31July2009 PR730
19 October 2009 PR102
15 November 2009 PR103
27 December 2009 PR112
27 March 2010 PR102

Arrivals Flight No.


4 November 2006 SQ076
23 July 2007 PR73t
5 November 2007 PR337

73 Underscoring supplied
74 Admitted - Petitioner's Preliminary Conference Brief, p. 5, Item No. (23); Petitioner's
Exhibit "W"; p. 3, SET Decision
7 s This transmittal letter to the B.I. is Exhibit "15 and the attached affidavit is Exhibit

"15-1"
7 6 See Exhibit "II" for the Petitioner (Sen. Poe's B.I. certified travel records) and Exhibit

"20" for Private Respondent (Sen. Poe's former U.S.A. Passport)


11 Exhibit "20".
7 s Exhibit "II".

79 SET Decision, p. 30.


13
": ~i_

8 May 2008 PR103


5 October 2008 PR359
21May2009 PR105
3 August 2009 PR733
15 November 2009 PR103 ; ;~; i
J . ' ' ....\; .
32.3. Sen. Poe's "Affidavit of RenunC1.at~op.;.:af
Allegiance to the United States of .America .:,ape:].
Renunciation of American Citizenship;, dated 2(5" 6ctt~1$,~r
2010 has never been recanted or withdrawn .and,
therefore, remains in full force and effect. In fact,.this
affidavit of renunciation was effectively affirtned ap.d
reiterated on 12 July 2011, as discussed, i~ <.the
paragraphs below. !;.

33. On 21 October 2010,so in accordance .;wi,th


~"~ijresidenti~ Decree No. 1986 and Section 5 (3) o~.:.~1\i:t~,,1'6:
$.h,:~225, Pnvate Respondent took her oath of' .offie~j~i~~s
:~:;;~hairperson of the MTRCB, before President Behigi-\!dg.;:~!:S.
:~ Aquino III. Her oath of office8 1 states.: '

PANUNUMASAKATUNGKULAN

Ako, si MARY GRACE POE LLAMANZARES, na


itinalaga sa katungkulan bilang Chairperson, Movie and
Television Review and Classification 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 aking
itataguyod at ipagtatanggol ang Saligang Batas 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 kong babalikatin ang pananagutang ito, nang
walang ano mang pasubali o hangaring umiwas.

Kasihan nawa ako ng Diyos.

NILAGDAAN AT PINANUMPAAN sa harap ko


ngayong ika-21 ng Oktubre 2010, Lungsod ng Maynila,
1 .
P11pmas. 82

80 Admitted - par. 15, p. 6, Petition; par. 1.18, pp. 8 to 9, Answer; Preliminary


Conference Brief dated 8 September 2015, pp. 4 to 5, Item Nos. (1) and (24); Petitioner's
Exhibits "A" and "X"; p. 3, SET Decision
8I A certified true copy Respondent's Oath of Office as MTRCB Chairperson is Exhibit
"16".
82 Underscoring supplied

.... ---- ---------


14

34. To ensure that even under the laws of the U.S.A.,


she would no longer be considered its citizen, Sen. Poe
likewise renounced her U.S.A. citizenship in accordance with
the laws of that country. However, she was not legally required
under Philippine law to make another renunciation, as her
earlier renunciation of U.S.A. citizenship on 20 October 2010
was sufficient to qualify her for public office. 83

34.1. On 12 July 2011,8 4 Sen. Poe executed


before the Vice Consul at the U.S.A. Embassy in Manila,
l~i

an Oath/ Affirmation of Renunciation of Nationality of the


United States.85
?!w.l !:

34.2. On the same day, Sen. Poe accomplished


a sworn "Questionnaire" 86 before the U.S. Vice Consul,
wherein she stated that she had taken her oath as
MTRCB Chairperson on 210ctober 2010, with the intent,
among others, of relinquishing her U.S.A. citizenship.

35. On 9 December 2011,87 the U.S.A. Vice Consul


issued to Sen. Poe a "Certificate of Loss of Nationality of the
United States."88 Said Certificate attests that under U.S.A.
laws, Sen. Poe lost her U.S.A. citizenship effective 21 October
2010, which is when she took her oath of office as MTRCB
Chairperson. 89 This fact is likewise reflected on the last page
of Sen. Poe's former U.S.A. Passport.90

36. On 27 September 2012,91 Private Respondent


accomplished her COC for Senator,92 which she filed with the
Commission on Elections ("COMELEC") on 2 October 2012.
Section 12 of the COC was, again, an affirmation of the Oath
of Allegiance to the Republic of the Philippines which Sen. Poe
had taken on 7 July 2006 (and which she had re-affirmed on
21 Octa ber 2010 when she took her oath of office as MTR CB
Chairperson). Section 12 of the COC states:

83 SET Decision, pp. 28-29.


84 Admitted -Petitioner's Preliminary Conference Brief, p. 5, Item No. (25); Petitioner's
Exhibit "Y"; SET Decision, p. 3
85 Petitioner's Oath/ Affirmation of Renunciation of Nationality of the United States was

marked as Exhibit "30" below


86 A copy of this Questionnaire is Exhibit "18".
87 SET Decision, p. 3
88 A copy of Respondent's Certificate of Loss of Nationality of the United States is
Exhibit "19".
89 Admitted - Petitioner's Preliminary Conference Brief, pp. 5 to 6, Item No. (27) and
(28); Petitioner's Exhibits "AA" and "BB"
90 Respondent's U.S.A. passport is Exhibit "20".
9l Admitted - Petitioner's Preliminary Conference Brief, 8 September 2015, p. 6 Item No.
(11); Petitioner's Exhibit "MM"; SET Decision, p. 3
92 A copy of Respondent's Certificate of Candidacy for Senator is Exhibit "21".
15

I WILL SUPPORT AND DEFEND THE CONSTITUTION OF


THE REPUBLIC OF THE PHILIPPINES AND WILL
MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO.
I WILL OBEY THE LAWS, LEGAL ORDERS, AND
DECREES PROMULGATED BY THE DULY
CONSTITUTED AUTHORITIES. I IMPOSE THIS
OBLIGATION UPON MYSELF VOLUNTARILY,
WITHOUT MENTAL RESERVATION OR PURPOSE OF
EVASION.

37. During the 13 May 2013 National Elections, Private


Respondent ran for and was overwhelmingly elected as
Senator.93 She garnered over 20 million votes, the highest
among her fellow Senatorial candidates, and a record in
Philippine election history. On 16 May 2013, she was
proclaimed Senator of the Republic of the Philippines. 94 From
her proclamation until 5 August 2015, no petition to
disqualify, quo warranto, or any similar action questioning her
eligibility or qualifications as Senator of the Philippines, had
been filed against her.

B. The Antecedent Proceedings

38. On 6 August 2015, Petitioner filed before the Senate


Electoral Tribunal a Petition for Quo Warranto ("Petition a quo"
or "quo warranto Petition") against Private Respondent,
contesting her election as Senator of the Republic, for alleged
failure to comply with the (1) citizenship and (2) residence
requirements mandated by the 1987 Constitution. 95 The SET
required Petitioner to correct the formal defects of his
Petition,96 which Petitioner complied with by filing an
Amended Petition on 17 August 2015.97

39. Summons with a copy of the Amended Petition was


served on Private Respondent on 20 August 2015.98 Sen. Poe
timely filed her Verified Answer on 1 September 2015. 99
However, before the submission of Sen. Poe's Verified Answer,

93 Admitted - par. 16, p. 7, Petition; par. 1 [prefatory statement], p. l, par. 1.29, p. 13.
and par. 2.16, p. 17, Answer
94 SET Decision, p. 3
95 SET Decision, p. 3
96 SET Decision, p. 4; see also, Resolution No. 15-03, copy of which is attached hereto
as Annex "3".
97 SET Decision, p. 4
98 SET Decision, p. 4. A copy of the Summons, sans the Amended Petition which was
already attached as Annex "K" of the Petition, is attached hereto as Annex "4".
99 A copy of Private Respondent's Verified Answer is attached hereto as Annex "5".
16

{.I \'11'
i~ I. ~

- ', , ,'(' "


.::J~etitioner moved to subpoena the B.I. and the ''pliilil:?pl~e,
. jjt~jatistics Authority ("PSA")(previously the "National Statistics
'" Qffice" or "NSO") for the records of Sen. Poe's applicafioh'.J9~1
.;;,tizenship re-acquisition and other related documetit\~;.
.. ~luding her travel records and NSO-kept birth certifit,a11'~.~e0.
,,,dd Motion was granted by the Executive CommittC'e; dt:the
;:,:;ET. 1o1

40. Thus, on 1 September 2015, representativ~s offhe .


.\;BJ. and PSA attended the hearing and submitted the
i ,subpoenaed documents. 102 Private Respondent . filed ' a
. Manifestation 10 3 regarding this matter on 2 September 2015,
... ,;::'wherein she manifested that, while she has nothing to hide
m~d would not have objected to subpoena, it was nevertheless
.@proper for the SET Executive Committee to have acted oil
)and granted said subpoena, as Petitioner did not even serve
i~~~r a copy of his motion as required under the 201 ~. Rul~::'2f.
;!';~;?ph.e SET ("SET Rules"), and she was not afforded the tifudk@:nd
'~Jiqpportunity to comment on the same under said Rules. .,, ':
,'l,~','}

. 41. After the issues were joined, the Executive


Committee of the SET scheduled a preliminary conference, 10 4
and required the parties to file their respective Preliminary
Conference Briefs no later than 9 September 2015, which the
parties complied with.10s

42. During the 11 September 2015 preliminary


conference, Petitioner agreed to drop the issue of residency on
the ground of prescription.106 The SET issued its Preliminary
Conference Order on 14 September 2015,101 which, among
others, summarized the issues agreed upon by the parties, the
admitted facts, and the documents the existence and/or due
execution and authenticity of which are admitted by the
parties. The same Order also set the case for pre-marking of
the parties' evidence,1os and for oral arguments. In an
Advisory109 for the oral arguments, the parties were also

loo SET Decision, p. 4


101 A copy of Resolution No. 15-04 is attached hereto as Annex "6"
102 A copy of the TSN for this hearing is attached hereto as Annex "7"
103 A copy of this Manifestation is attached hereto as Annex "8"
104 Resolution No. 15-05, A copy of which is attached hereto as Annex "9"

10 5 A copy of Private Respondent's Preliminary Conference Brief, filed on 9 September


2015, is attached hereto as Annex "10". A copy of Petitioner's Preliminary Conference
Brief is likewise attached as Annex "11"
106 SET Decision, p. 5; The TSN for the 11 September 2015 Preliminary Conference is
attached hereto as Annex "12"
107 A copy of this Preliminary Conference Order is attached hereto as Annex "13"
los Pre-marking was held on 17 September 2015.
109 A copy of this Advisory is attached hereto as Annex "13-A"
17

required to submit their respective Position Papers110 on the


agreed-upon issues no later than 16 September 2015. Pre-
marking was held on 17 September 2015.111

43. The case was heard on oral arguments on 21


September 2015, 112 at the conclusion of which, the parties
were required to submit their respective Memorandal 13 and
. Fgrmal Offers of Evidence, 114 without prejudice to the
submission of DNA evidence by Private Respondent within
thirty (30) days from said date. The parties timely submitted
their Memoranda.

:~' 44. Private Respondent moved for an extension of time


to submit DNA evidence until 5 November 2015,11s which
motion was granted by the Executive Committee. However,
due to inconclusive results of DNA tests undergone by her,
Private Respondent filed a Manifestation 116 on 5 November
2015, stating that none of the tests she took so far provided
results that would shed light on the identity of her biological
parents. The Tribunal noted said manifestation and thereafter
considered the case submitted for resolution.111

45. On 17 November 2015, the SET promulgated its


Decision of even date ("assailed Decision"), 11s the dispositive
portion of which states:

WHEREFORE, in view of the foregoing, the petition


for quo warranto is DISMISSED.

45.1. In said Decision, the SET, without citing


any political or emotional considerations and relying

110 Copies of Private Respondent's and Petitioner's Position Papers are attached hereto
as Annexes "14" and "15" respectively.
111 Prior to pre-marking, Private Respondent, in compliance with the Tribunal's directive

during the 11 September 2015 preliminary conference, submitted a Compliance dated


14 September 2015, furnishing Petitioner and the SET with a compilation of relevant
foundling statutes of foreign countries. A copy of this Compliance with attached Judicial
Affidavit, and the Submission with respect to the typographical errors in said Judicial
Affidavit, are attached hereto as Annexes "16" and "16-A" respectively.
112 A copy of the TSN for the 21 September 2015 oral arguments is attached as Annex

"L" of the Petition.


113 Copies of Private Respondent's and Petitioner's respective Memoranda are attached
hereto as Annexes "17" and "18" respectively.
114 Copies of Private Respondent's and Petitioner's respective Formal Offers of Evidence,

sans its annexes, are attached hereto as Annexes "19" and "20" respectively. Private
Respondent also filed a Comment on Petitioner's Formal Offer of Evidence, a copy of
which is attached hereto as Annex "21"
11 5 A copy of this Manifestation with Motion for Leave for Extension is attached hereto

as Annex "22"
11 6 A copy of this Manifestation is attached hereto as Annex "22-A".
117 Resolution No. 15-10, a copy of which is attached hereto as Annex "23"

118 Annex "C" of the Petition

...... ---~- *"'" -~"'-~~m-.~~~----~- . . .-----


18

solely on the Constitution, applicable law and


jurisprudence, ruled that: (a) Petitioner is not guilty of
forum-shopping;119 (b) the petition is not barred by
laches;120 (c) considering that Respondent (Sen. Poe)
enjoyed in her favor the disputable presumption that she
was born of Filipinos, it remained incumbent upon
Petitioner to destroy such presumption by proving that
her parents are foreigners, and since he was not able to
do this, the burden of proof did not shift to Sen. Poe;121
(d) Sen. Poe is a natural-born Filipino citizen under the
1935 Constitution, and continues to be one under the
1987 Constitution, as she is "a citizen of the Philippines
from birth, without having to perform any act to acquire
or perfect {her) Philippine citizenship";122 (e) Sen. Poe
validly re-acquired her natural-born Filipino citizenship
upon taking her oath of allegiance to the Republic of the
Philippines, as required by Sec. 3 of R.A. No. 9225; 123 (f)
the affidavit of renunciation executed by Sen. Poe in
accordance with R.A. No. 9225 was sufficient to qualify
her for her appointive position, and later, her elective
office; 124 and (g) Sen. Poe never used her USA Passport
from the moment she renounced her American
citizenship on 20 October 2010, and thus remained
solely a natural-born Filipino citizen from that time on
until today.12s

45.2. Senators Paolo Benigno "Barn" Aquino IV,


Cynthia A. Villar, Loren B. Legarda, Vicente C. Sotto III,
and Pia S. Cayetano voted for the dismissal of the quo
warranto Petition. Senators Aquino IV, Villar, Legarda
and Sotto III also submitted separate concurring
op1n1ons.

45.3. Justices Antonio T. Carpio, Teresita J.


Leonardo-De Castro, and Arturo D. Brion, together with
Senator Maria Lourdes Nancy S. Binay, dissented, with
Justices Carpio, De Castro and Brion submitting
separate dissenting opinions.

119 SET Decision, p. 15


120 Id., p. 17
121 Id., p. 21
122 Id., p. 27
123 Id., p. 28
12 4 Id., p. 29
125 Id., p. 31

-~- :;i,....,,~~-rvw.,._~ <;


,,
l''J
1,

19 'I,,.
:.,,

,:; : :r , i .~,,~ i~F,'~1{ .


.: 46. On 23 November 2015, Petitioner filed hi~,i,V~ri}i~~:. .5;, 1
fon for Reconsideration. Private Respondent timely'fileg h.ev'::,,:'
1
ent/ Opposition 126 to said motion for reconsideratioh1 " r Yy;,,;;\k
' '. ;.J:~~),~"'~.
r:47. On 3 December 2015, 121 the SET issued its ass'.rul~id<({i.'::;
~1ution denying Petitioner's motion for reconsictetiti6:H'.;',h+ --
ording to the SET, "aside from ascribing unfounded and
ieless ill and improper motives to the Senator.-Members
,,?'.. '
,\v:htt ..
:~. ~ 1iJ, .;: ~},.~,,~:v.:.,'~1:r:''. 1

,,, nposed the majority(,) and citing some opinion colunihs M~i
'!i'':f~i. ''
1.;W
\i ' . '.' ' ;, ''. '
~~o~oid reports that carry no evidentiary weight whatso.ev~:N,:\<
~~~.itioner utterly failed to present any new issue or argt.Iments .
that/ would warrant a reversal of the 17 November 2015
~.1sion of the Tribunal."12s Under Rule 80 of the SE'T Rules,.,
,. ~ 17 November 2015 SET Decision therefore became fm~l
r.:~\:executory on 3 December 2015.129 ii+ /

GROUNDS FOR DENIAL OF THE PETITION''

A.

'
1
, THE PETITIONER FAILED TO SUFFICIENTLY
MAKE OUT A CASE OF GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION ON THE PART OF THE SET IN
ISSUING ITS ASSAILED 17 NOVEMBER 2015
DECISION AND 3 DECEMBER 2015
RESOLUTION.

A.1

The SET is the sole and exclusive judge of


the qualifications (or lack thereof) of a
Senator. Absent a clear showing of grave
abuse of discretion, its ruling thereon,
including any interpretation of law it made,

126 A copy of this Comment/ Opposition is attached hereto as Annex "24"


127 Not 4 December 2015 as Petitioner erroneously claims. See Petition, par. 3.1., p. 5
12 8 Resolution No. 15-12, p. 3. A copy of this Resolution is attached as Annex "B" of the
Petition.
12 9 Under Rule 80 of the SET Rules, a decision becomes final and executory upon

receipt by the parties of a copy of the resolution denying a motion for reconsideration of
the decision. On 3 December 2015, Private Respondent received a copy of Resolution
No. 15-12 denying Petitioner's motion for reconsideration. While Petitioner claims,
under oath, in his Petition that he received a copy of the 3 December 2015 Resolution
only on 8 December 2015, the very certified true copy thereof he attached as Annex "A"
of his Petition shows that it was requested and certified on 7 December 2015, curiously
a day earlier than his alleged date of receipt of his copy of the Resolution.

------- --,~----,---------- ......


~,-.,~,,--~ -----------~
20

is final and not reviewable even by this


Honorable Court.

A.2

Petitioner woefully failed to show that the


17 November 2015 Decision was contrary to
law, or even that the Honorable Members of
the SET committed grave abuse of
discretion.

A.2.a. The SET majority rendered a


decision with sound bases in
law. Petitioner failed to
substantiate his allegations of
"personal" or "political
considerations" on the part of
the majority.

A.2.b. The Constitution itself


mandates the composition of
the SET to be partly political,
and its members are allowed,
and have full and complete
authority, to take into account
policy considerations and the
will of the people in their vote.

A.3.

The SET did not commit any "reversible


error" in its 17 November 2015 Decision
and 3 December 2015 Resolution. Even
assuming arguendo that it did, such is not
sufficient to constitute grave abuse of
discretion.

A.3.a. Petitioner was not able to


discharge his burden of proof.
Hence, the burden of evidence
could not have in any way
shifted to Private Respondent.

A.3.b. Private Respondent is a natural-


born citizen under the 1935
Constitution and continues to
be so under the 1987
21

Constitution. Petitioner's
reliance on the dissenting
opinion of the three Justices-
Members of the SET is
unavailing.

A.3.c. Private Respondent validly


reacquired her natural-born
Filipino citizenship upon
taking the Oath of Allegiance to
the Republic of the Philippines,
as required under Section 3 of
Republic Act No. 9225.

A.3.d. The execution of Private


Respondent's Affidavit of
Renunciation was sufficient to
qualify her for appointive
position, and later, her elective
office.

A.3.e. Private Respondent did not


recant her Affidavit of
Renunciation, as she never
used her U.S.A. Passport after
renouncing her U.S.A.
citizenship.

B.
THE SET DID NOT ABUSE, MUCH LESS
GRAVELY, ITS DISCRETION, SO AS TO AMOUNT
TO A LACK OR EXCESS OF JURISDICTION,
WHEN IT ISSUED THE ASSAILED 17 NOVEMBER
2015 DECISION SUSTAINING SENATOR POE'S
NATURAL-BORN FILIPINO CITIZENSHIP.
PRIVATE RESPONDENT IS A NATURAL-BORN.
FILIPINO CITIZEN UNDER THE APPLICABLE
PROVISIONS OF THE 1935 AND 1987
CONSTITUTIONS.

B.1.

The burden in a quo warranto proceeding


does not lie on the elected and incumbent
Senator, but on the petitioner who is
assailing her natural-born citizenship .

------ "' -- ------


~

22

B.2.
The SET correctly concluded that ~
foundling like Sen. Poe is not ~'.exclude(P'.
from the enumeration of Philippine citiz~fi$
under Section 1, Article IV of tpe,; 1935
Constitutio~. ;he letter and Sfirft/ Of ~,th~ . .
1935 Const1tut1on teach us that..Joundbngs:.,.
are natural-born Filipinos.

B.3.

The SET correctly ruled that under


applicable international law principles;; 11a),
foundling found in the territory of rthe .
Philippines is a natural-born FilipiD.~f .; >':.
c1t1zen. . ''~ ''t,,,
'flt ,,.
oi~y
b\

.;"
I

B.3.a. Under applicable international


human rights instrument~
signed and/or ratified by the 11
'

Philippines, it has an
affirmative obligation to
consider foundlings as natural-
born citizens of the country.

B.3.b. The SET correctly took into


consideration generally
accepted principles of
international law with respect
to the citizenship of foundlings
pursuant to the incorporation
clause in the Constitution.

B.4.

The SET correctly held that Private


Respondent is a natural-born Filipino on
the basis of the presumption of descent
from a Filipino parent in favor of
foundlings, derived not only from the Rules
of Court but from international law as well.

B.4.a. A distinction on the basis of


factual certainty of Filipino
parentage in determining
23

natural-born status is
discriminatory and violates the
Equal Protection Clause.

B.5.
Contrary to the dissenting opinions of SET
members which Petitioner cited, a
foundling can be considered a "natural-
born" Filipino because (a) the presumption
of descent under applicable principles of
international law does not violate the jus
sanguinis principle, or the Constitutional
definition of "natural-born" citizenship; (b)
in statutory construction, an interpretation
which harmonizes and gives effect to all
applicable provisions of law should be
favoured, especially in this case where
there is no clear prohibition in the
Constitution; and (c) the interpretation
given by the SET is one that gives effect to
the fundamental principles animating the
present Constitution.

DISCUSSION

A.
THE PETITIONER FAILED TO SUFFICIENTLY
MAKE OUT A CASE OF GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICION ON THE PART OF THE SET IN
ISSUING ITS 17 NOVEMBER 2015 DECISION AND
3 DECEMBER 2015 RESOLUTION.

48. The SET is constitutionally mandated to be the "sole


judge" of all contests relating to the election, returns, and
qualifications of Members of the Senate. 130 In the 1936 case of
Angara vs. Electoral Commission,131 this Honorable Court
characterized this grant of power as "full, clear, and
complete";132 the use of the word "sole" emphasizing the

130 Sec. 17, Art. VI, 1987 Constitution


131 G.R. No. L-45081, 15 July 1936
132 Citing Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888

,_.. ____ - --,,.,=._........,,"".'""'"". ";{{!


24

"exclusive character" of the jurisdiction conferred. 133 As the


"highest authority" within the scope of its limited jurisdiction
to, among others, resolve the issue of qualification or
disqualification of Senators, it is "exclusive" and "supreme"
whenever it decides this issue. Thus, absent "a clear showing
of such arbitrary and improvident use of the power as will
constitute a denial of due process of law," "any final action
taken by the [SET] on a matter within its jurisdiction shall, as
a rule, not be reviewed by this Honorable Court."134

A. l. The SET is the sole and exclusive


judge of the qualifications (or lack
thereof) of a Senator. Absent a clear
showing of grave abuse of discretion,
its ruling thereon, including any
interpretation of law it made, is final
and not reviewable even by this
Honorable Court.

49. The extraordinary writ of certiorari will issue only in


clear cases of grave abuse of discretion that amounts to lack
or excess of jurisdiction. A special civil action for certiorari is
only a limited form of review, justified only in "truly
extraordinary cases wherein the act of the lower court or
quasi-judicial body is wholly void."135 The burden rests upon
Petitioner to show that the tribunal committed not merely a
reversible error, but a grave abuse of discretion amounting to
lack or excess of jurisdiction.136 Showing mere abuse of
discretion is not enough, for the abuse must be shown to be
grave. 137

50. In Alliance for Nationalism and Democracy vs.


COMELEC, l38 this Honorable Court defined "grave abuse of
discretion," as "the whimsical, arbitrary, or capricious exercise
of power that amounts to an evasion or a refusal ~o perform a
positive duty enjoined by law or to act at all in contemplation
of law." 139

133 Id.
134 Lazatin vs. HRET, G.R. No. 84297, 8 December 1988
135 Bases Conversion and Development Authority vs. Commission on Audit, G.R. No.
209219, 19 December 2014
136 Tze Sun Wong vs. Kenny Wong, G.R. No. 180364, 3 December 2014
137 Id.
138 G.R. No. 206987, 10 September 2013
139 Underscoring supplied
' ~t
25
,'

In Lazatin vs. House


. 'J::!~~;~.
. ., ., :!;
of Repre$eritativ~5:~ ._.EleC~fi&rJf/:;[~(i'w(:
}::tnal, this Honorable Court had the occasion ' 1tb~i<des6rjJ5~f~;i~\:
Jbns on the part of the Electoral Tribunals 'that~li\tdt:(r
tlunt to "grave abuse of discretion" sufficienf to justify' t~r's ,r
iorable Court's exercise of its extraordinary i'''Cerl,i6~~u~1;1i''
t"~d. t . . _, *'Jf:.) h'1,,:,;,_',,,,
,$. IC ion, VlZ. : ' } ; ;, ;,< '~! \'':i\'~;Jj'
, .. , ',, .':;::~~F',,
[S]o long as the Constitution grants the HRETit~e,power tq,t;?e,
the sole judge of all contests relating to the election, returns ,ar}d .
qualifications of Members of the House of RepresentatiY'.~S, ;.mtr,
final action taken by the HRET on.:. a matter within its
jurisdiction shall, as a rule, not be reviewed by this Court~ As
1

stated earlier, the power granted to the Electoral Tribunal,is''full,.


clear and complete and "excludes the exercise of any authority',.
on the part of this Court that would in any wise restrict ,or' 1: .
curtail it or even affect the same." (Lachica .v. Yap, ~upr:a, .at ,
143.) As early as 1938 in Morrero v. Bocar (66 Phil. 429,: .,,,143'.fr' ..
(1938)), the Court declared that "[the judgment rendered by'the~\..
[Electoral] Commission in the exercise of such ah, 1 ;1'.;
" acknowledged power is beyond judicial. interference"e2Scept,
t ' ' ,. : '' .. '
fof ~
' .. .:/: ..
: . any event, upon a clear showing of such . arbitraiy. . and
improvident use of the power as will constitute a denial 'of due ,
process of law." Under the 1987 Constitution, the scope of the
Court's authority is made explicit. The power granted to the
Court includes the duty "to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government" (Art. VIII, Sec. 1). Thus, only where such grave
abuse of discretion is clearly shown shall the Court interfere
with the HRET's judgment. In the instant case, there is no
occasion for the exercise of the Court's collective power, since
no grave abuse of discretion that would amount to lack or
excess of jurisdiction and would warrant the issuance of the
writs prayed for has been clearly shown.

52. Thus, not all cases of error committed by an


Electoral Tribunal could qualify as "grave abuse of discretion."
The act, ruling or decision complained of must be one clearly
demonstrated to be "whimsical, arbitrary or capricious", or one
that constitutes "an improvident use of power as will
constitute a denial of due process of law." Absent a clear
showing of such acts and there was definitely no denial of due
process as the parties had full opportunity to adduce evidence
and file pleadings, the decision of the Senate Electoral
Tribunal, even if allegedly erroneous, is final and non-
reviewable even by this Honorable Court; any contrary
interpretation would render the word "sole" in the Constitution
26

inutile. In the words of Lazatin, absent a "clear showing" of


grave abuse of discretion, "the exercise of such an
acknowledged power" by the Senate Electoral Tribunal "is
beyond judicial interference", as the grant of a "full, clear and
complete" authority "excludes the exercise of any authority on
the part of this Court that would in any wise restrict or curtail
it or even affect the same."140

53. A becoming regard for its constitutional jurisdiction


dictates that for as long as the Senate Electoral Tribunal
makes a decision with clear legal basis, not motivated by
partisan considerations, any perceived error, imagined or real,
. should not the subject of review, much less of corrective
certiorari jurisdiction.

54. An examination of the Petition will readily reveal


that the Petitioner did not sufficiently make out a case of grave
abuse of discretion on the part of the SET; at most, all he was
able to establish are alleged errors of judgment.

55. On page 9 of the Petition, Petitioner referred to the


grounds for his Petition as mere "ERRORS," and then
proceeded to "assign" "errors." In his assignment of "errors,"
Petitioner does not even categorically characterize the SET's
acts as pure abuses of discretion and in fact equates grave
abuse of discretion with "reversible errors."

56. As discussed earlier, it is well-settled that in a


petition for certiorari, "(t)he burden is on the part of the
petitioner to prove not merely reversible error, but grave
abuse of discretion amounting to lack or excess of jurisdiction
on the part of the public respondent issuing the impugned
order. 141 Clearly, Petitioner's repeated concession that the
SET's acts may be considered as mere "reversible errors" is
fatal to his Petition.

57. That said, Petitioner does not at all allege that the
SET, at any stage of the proceedings, capriciously or arbitrarily
exercised its powers, or that he or any party was denied of due
process. Instead, he imputes grave abuse of discretion on the
Senate Electoral Tribunal on the basis of: (1) what he perceives
to be erroneous interpretations of law (based primarily on the
dissenting opinions of other members of the SET); and (2)

141 See Tan vs. Spouses Antazo, G.R. No. 187208, 23 February 2011; Tze Sun Wong vs.

Kenny Wong, G.R. No. 180364, 3 December 2014


141 See Tan vs. Spouses Antazo, G.R. No. 187208, 23 February 2011; Tze Sun Wong vs.

Kenny Wong, G.R. No. 180364, 3 December 2014

...........~~~~....~~~..........................................................................""'
~~~~'~'~"'~f~~-.,.,.,.,~~~""'"""~~,-~~
27

baseless inference of ill or improper motives on the part of the


SET majority, grounded on the say-so of sopie opinion
columnists.

58. In effect, the only thing that Petitioner was able to


demonstrate in his Petition is that there are some people
(including members of the SET and the media) who disagree
with the SET's Decision. The fact that the SET's Decision does
not appeal to everyone is hardly proof that the SET acted with
grave abuse of discretion; otherwise, any decision of an
electoral tribunal could be nullified and set aside, by way of
certiorari, simply by pointing out to this Honorable Court that
the decision was not unanimous, or that several columnists
were offended by the tribunal's decision.

59. If we accept Petitioner's theory, then the "sole judge"


of the qualifications of a member of the Senate is no longer the
Senate Electoral Tribunal, but its dissenting members or,
worse, the members of the media who side with the latter.
This cannot be countenanced. The most that we can conclude
from differing opinions on an issue is that someone may be
wrong. But if all that Petitioner can show is that the SET
may be wrong or that it "erred," then the law tells us that
its decision must be respected, especially in this instance
where the issue was one of first impression. For this and
the reasons discussed below, Private Respondent respectfully
beseeches this Honorable Court to dismiss the Petition.

A.2. Petitioner woefully failed to show that


the 17 November 2015 Decision or the
3 December 2015 Resolution was
contrary to law, or even that the
Members of the SET committed grave
abuse of discretion in issuing the
same.

.
60. Petitioner seeks to discredit the 17 November 2015
Decision in its entirety by painting the picture that it was
arrived at solely by reason of "political accommodations" made
in favor of Private Respondent. This, he infers from: (1) the fact
that the majority who voted for the dismissal of the quo
warranto petition happened to be Senators; and (2) the three
Justices-Members of the SET happened to dissent from the
majority ruling. Putting aside for now the discussion of why
the SET did not commit "reversible errors" in its assailed
;t~

28
.If
i\-,:~ '
''
. :11, . &;.~
. '" ~ ' i~, \''\,, 'i':i)"i\'\. 'c'

, . '":;~; t .:;: ::.:re~{~ /J)"!t\; .


cision, 142 Private Respondent will, in the''paragrapb,.~l help~,~::;\:
'.'.J. ,''. :' . ' ' ,! ' ~'~ .t ': ' ,:: ~ti'''
.uss why the "inference" of "political accommodation" i1sinoft::(
" 'r '"if . ~ ' ~\'' "', ,.~ .'.I,."

baseless and unwarranted, but also insufficient to1tjus~


, ~;'.conclusion that grave abuse of discretion, att~~ded,',~tfc
~ance of the 17 November 2015 Decisionand 3,/f1e~Jirl:be
~ Resolution of the SET
'Y.
';,,,,~,; ~:-~' ~i, 1/i,'.1~ 1.; ~l'.('.i:;I/
....
:;.:.)~~;"'.:~Jp' ' l" "

';*r;-;-"'
61. In Petitioner's mind, the mere . fact
.
that
. '
the)':S)?]\,.,.
J .. ~~ ~1~: ,1:--~,gi;,;.~~.1,:i,,::;/;f:;:~'.:\,!\"''"

ajority is composed of Senators warr::f1+'bed an atitdrrla'.t~qA( .


!erence that they voted on the basis ... of. . ~Jphihiq~~,.~'
ediency"l43, thus rendering the Decisioh:"patently puil~ati:c( '
1
I

fd'.';'14 4 This argument is absurd. Following Petition~r's logio,i


e.ry
1 decision rendered by the SET would have to be ~et,a$id~r
having been rendered with grave abuse of disc:retiop;~ ,1~~':.
~ty. vote from a Senator, precisely because he dr\.:sne 1 'rs ~:g;:~
p.~tor, would be considered politically motivated.
1 ' .\' ;i >!~.'.!;\~."
Petitioner devotes a substantial . portiorl~
,..
62. ':
''Q.f~WN~.~~.
. ' .. \'!!, ,
. :W~. ~~"
if:i,on citing opinion columns and tabloid rep<;Jrt~, ,~~~~:,:
. gedly show that the assailed Decision is complet~ly berefvrr~
.Jal basis. According to these columnists, the m~jo,~~!~i;
:~'decided in favor of [Private Respondent] not entirely because
it is legally correct but because it is more politically advisable
and proper to do so."1 4s Moreover, the majority "acted as a
cabal" who "voted not according to the Constitution and the
law and the documented facts of the case, but for reasons
known only to themselves and having nothing to do with the
merits of the case."146

63. The Petitioner curiously did not even bother to


identify or quote specific passages or sentences from the SET
Decision or from any of the concurring opinions to support his
position that politics or emotion motivated the outcome of the
case. The SET Decision and the concurring opinions show the
exact opposite. They show that they were based on the law
and merits of the case. This explains Petitioner's, perhaps,
unprecedented and unorthodox resort to opinion columns and
reports of various members of the media to bolster his legal
position.

142 This will be discussed in detail in Part B of this Discussion.


143 Petition, par. 6.27, pp. 25-26, reproducing par. 21 of Petitioner's Motion for
Reconsideration
144 Id.
145 Petition, p. 1, also in par. 20 of Petitioner's Motion for Reconsideration, citing a

column purportedly written by Jose C. Sison and published in the 20 November 2015
edition of the Philippine Star.
146 Petition, par. 6.27, p. 32, reproducing par. 34 of Petitioner's Verified Motion for

Reconsideration, citing a column purportedly written by Francisco S. Tatad and


published in the 20 November 2015 edition of the Manila Times.
29

64. But who are these columnists whose opinions about


the majority's alleged improper motivations Petitioner wishes
to elevate to the level of proof? Petitioner cites Jose C. Sison,
Emil P. Jurado, and Francisco S. Tatad, among others, to
"substantiate" his position that the SET "gravely abused its
discretion" in rendering the assailed Decision. Bias and
improper motives are factual issues, and these writers were
not presented as witnesses. Notably, none of these columnists
appear to have even read, niuch less made any judicious study
of, the legal position of each Member prior to writing or
publishing their contemptuous remarks. The articles that
Petitioner cited were all published on 19 to 20 November 2015,
at a time when the Decision and the Separate Opinions of the
Members of the SET were not yet made publicly available in its
website. Petitioner does not likewise hint how these writers
may have been qualified to speak "authoritatively" on any of
the issues, none of them having any involvement in any
capacity whatsoever in the quo warranto proceedings below.
Indeed, one of them, Mr. Tatad is even a petitioner in a case
filed before the COMELEC and now in this Honorable Court,
against Private Respondent; 147 how can even a tinge of
objectivity be accorded to his opinion?

65. Petitioner forgets that the SET, acting through its


Members, has "full, clear and complete"1 4s authority to rule on
the issue of whether Private Respondent, who was
overwhelmingly elected by the people as their representative in
the Senate, is qualified to occupy her office. That its Members
ruled one way or another is no reason to conclude that they
thereby committed "grave abuse of discretion", simply because
their interpretation of the law does not jive with Petitioner's
espoused interpretation.

A.2.a. The SET majority rendered a


decision with sound bases in law.
Petitioner failed to substantiate
his allegations of "personal" or
"political considerations" on the
part of the majority.

66. After restating the opinion of the columnists he had


cited at length in his Motion for Reconsideration, Petitioner

Now also pending before this Honorable Court


147
Angara v. Electoral Commission, G.R. No. L-45081, 15 July 1936, citing Veloso v.
148
Boards of Canvassers of Leyte and Samar, 39 Phil., 886, 888 (1919)

~~-- ----------- ------- ------------"""' -' ,,,,__,,.~,w-""'--~--------.-"""'""""""'""".,...,.. _______,........_ __


30

then concluded that "it is not unlikely that the five senator-
members of the SET who voted to declare [Private Respondent]
natural-born despite the absence of proof of blooa ties to a
Filipino father, did so based on personal and/ or political
considerations", all because they allegedly "fail[ed] to provide
substantive justifications for their decision."149

67. Petitioner chooses to turn a blind eye to the fact


that 17 November 2015 assailed Decision is the final action
and determinative pronouncement of said Tribunal on the
issues presented before it. Thus, the fact that four (4) out of
five (5) Members in the majority later issued separate
concurring opinions supposedly alluding to certain policy
considerations, does not thereby mean that they decided the
issues without any legal basis at all. The Decision itself
contains the legal grounds behind the majority ruling, which
fully and fairly addressed all issues submitted to the SET.
Indeed, Petitioner himself does not argue that the SET
neglected to rule on an issue squarely raised before it, or
consider evidence presented by the parties. He cannot. An
examination of the Decision will readily show that it complied
with Sections 13 and 14 of Article VIII of the Constitution, as
required by Rule 7 8 of the SET Rules. It fully summarized the
facts as borne by the evidence on record, restated the issues
and sub-issues as framed by the parties during the
preliminary conference, explained the Tribunal's
understanding of the legal position of both parties, and then
carefully resolved both procedural and substantive issues
raised, citing legal provisions on which these rulings were
based.

68. That said, a judicious study of the Separate


Concurring Opinions of the SET majority, i.e., Senators
Aquino IV, Sotto III, Legarda, and Villar, will show that their
opinions are anchored on legal provisions that have full force
and effect in the Philippines, and not on any "political
consideration", much less "personal motive" imputed by
Petitioner. To illustrate:

68.1. Senator Aquino IV anchored his vote on,


inter alia, the rights of a child enshrined in the UN
Convention on the Rights of Child ("UNCRC"), the right
against discrimination and right to a nationality
recognized in the Universal Declaration of Human Rights
("UDHR"), and the principles in determination of

149 Petition, par. 6.59, p. 67

- - - - - - --------
i'"'
31
~~

,.. ',; .'.~,:{~:,f!::L.


nationality of foundlings laid dovxn in ttl.~;,,'. '.19~:Q,,. 1 . J'
. Convention on Certain Questions Relating to th~'"Con.flict;:~:hfr
of Nationality Laws (" 1930 Hague Convention")~ Coijtf~\:~~~i~-'
to Petitioner's assertions, the UNCRC is legally bi~diU:g [l]'.'.t~":''''f'
the country and may be used as a direct sbh~c~'tq,fit~ni'
judicially enforceable rights, the Philippines., ,.,hayin'g
:.ratified the same. Moreover, the 1930 HqgJJe Conventfor;t .~
embodies generally accepted principles 9~ i:ot~rll:ltig~~l:;:i:\;i,~:.
law that are binding on the Philippines, without tieecr.'di&;t:'ftf
further legislative enactment. Senator Aquino, IY :cc;>rtcltt1Y:i'~:1;:,)
read the intention of the framers of:the 1935 Constitutiori:-:>;,,;: .\
''.to not exclude foundlings from the definition of who' are .,
, considered Filipino citizens, recognizing (as <early ,.,as;: r 1

. 1934) that under international law, they are aJrea:?.Y'' .,.


,; , , , cpnsidered citizens of the country in . which theYi, Y.,~te:.; l
.found. Moreover, Senator Aquino IV correctly ,uphel4 ';,:
social justice in favor of foundlings, who as child~efr: ~~/.W4'
"persons accorded special protection by YJ ~-it~~;:~fr'
Constitution"150 entitled to special and aifirfrl~~~~j.::t~<
protection by the State.1 51 ,~, ,:,::i\ftFfi''
i , i )' :)l' ',,;;,;0~1;1\;
I ,

68.2. Senator Villar took care to note that


Petitioner absolutely failed to show any proof that Private
Respondent is in fact not a natural-born citizen of the
Philippines, i.e., that her biological father and mother are
both aliens. Like Senator Aquino IV, Senator Villar
correctly relied on the deliberations of the framers of the
1935 Constitution and the generally accepted principles of
international law to arrive at the conclusion that the "fact
of being a foundling, by itself, will not necessarily make
an individual not a natural-born citizen of the
Philippines."152 Senator Villar's concurring opinion is
thus consistent with the Tribunal's ruling that Petitioner
failed to discharge his burden of proof in a quo warranto
proceeding, i.e., to "prove the very fact of
disqualification" 153 by "proving that [Private
1
Respondent's] parents are foreigners" . 54 As Senator
Villar correctly observed, the "need for proof becomes
even more compelling in the present case, where [the

150 See Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, 24 March 2009,
wherein the Supreme Court laid down a new standard of strict judicial scrutiny of
legislative acts and governmental actions which prejudice the right to equal protection
of constitutionally protected groups such as labor, women, and children.
151 A copy of the Sen. Aquino IV's Separate Opinion in SET Case No. 001-15 is attached
as Annex "1-A" hereof
152 Sen. Villar, Separate Opinion in SET Case No. 001-15, p. l. A copy of the Separate
Opinions is attached as Annex "1-B" hereof
153 SET Decision dated 17 November 2015, p. 18
154Jd.,p.21

-~--.-~~ -~------
32

Tribunal] is being asked to unseat someone who has


been overwhelmingly elected to her position by majority
of our countrymen."155

68.3. Senator Legarda, meanwhile, correctly


relied on the landmark case of Frivaldo vs. Commission
on Elections, 156 where the Supreme Court laid down the
judicial philosophy of due deference to the sovereign will
absent a clear demonstration by the Petitioner of an
"ineligibility so patently antagonistic to constitutional
and legal principles." Frivaldo remains good law and has
been cited consistently over the years. And as Senator
')~~f,
Legarda correctly observed, what is involved in this case
is not a clear violation of the Constitution, but rather an
issue of first impression.157 Being the sole judge with the
"highest authority" to rule on such issue,158 there is
nothing amiss in Senator Legarda's decision to interpret
the provisions of the 1935 Constitution, international
treaties and customary international law in a manner
that "enable[s] [the] people to express their sovereign
supremacy", which is but an act upholding the most
sacred provision in our Constitution-i.e., our very theory
of government-that the Philippines is a democratic and
republican State, where sovereignty resides in the people,
from whom all government authority emanates. 159

68.4. Lastly, Senator Sotto Ill's thesis with


respect to the nature and composition of the Senate
Electoral Tribunal and its plenary authority to take into
consideration not only legal provisions but also the
"judgment of the whole Filipino nation"l60 is supported
not only by the text of the Constitution, but by the
history of the power of electoral tribunals in this country,
and jurisprudence established by the Supreme Court, the
case of Frivaldo being only one among them. In providing
for a majority of Senators as Members of an Electoral
Tribunal, the people clearly intended that those who sit
in judgment of the qualifications of their elected
representative must themselves be their representatives.

155 Sen. Villar, Separate Opinion in SET Case No. 001-15, p.1
156 G.R. No. 120295, 28 June 1996
157 Sen. Legarda, Separate Opinion in SET Case No. 001-15, p. 4. A copy is attached
hereto as Annex "1-C"
lss See J. Brion, Separate Dissenting Opinion in SET Case No. 001-15, p. 61
159 Sec. 1, art. III, 1987 Constitution
160 Sen. Sotto III, Separate Opinion in SET Case No. 001-15, p.1. A copy is attached
hereto as Annex "1-D"
33

This point will be discussed in more detail in paragraphs


73 to 84 below.

69. Clearly, Petitioner cannot-and should not-


irresponsibly allege that the Senator-Members of the SET
"indisputably" voted "solely" on the basis of "personal and
political considerations", without even deigning to address or
refute the legal bases relied upon by these Senators in their
separate concurring opinions. This refutation is essential for
Petitioner to discharge his burden of showing to this
Honorable Court why the SET majority's reliance on said legal
bases amounts to an "arbitrary, capricious or whimsical"
exercise of an admitted power. When a power is admitted,
mere allegation of improper exercise of such power is not
sufficient to constitute grave abuse of discretion, especially in
this case when such exercise is shown to be backed by
sufficient legal bases.

70. Petitioner also imputes bias or partiality, specifically


on the part of Honorable Senators Sotto III, Legarda, and
Cayetano on the basis of their alleged close personal
relationship with Private Respondent and/ or her late adoptive
father, Fernando Poe, Jr. But these are circumstances already
known to the Petitioner from the start. If he had reason to
believe that the three Senators would be partial or would
prejudice his case, he should have moved for their inhibition.
Having neglected to do so, he cannot be permitted to make
belated (and baseless) accusations simply because he lost
their votes. A litigant cannot be permitted to speculate on the
action of the court only to raise an objection of this sort after
the decision has been rendered. 161

71. Petitioner relies on his so-called "Lerias doctrine" for


a reversal of the assailed Decision. Petitioner is referring to the
case of Lerias vs. House of Representatives Electoral
Tribunal, 162 wherein this Honorable Court, in a rare
occurrence, reversed the House of Representatiyes Electoral
Tribunal ("HRET") after consideration of "indubitable evidence
on record" showing electoral fraud perpetrated against the
petitioner therein. Contrary to Petitioner's position, however,
Lerias is not on all fours with the instant case, and the
doctrine he cites, correctly and responsibly read, does not
support his case.

161Cf. Bangayan v. Rizal Commercial Banking Corooration, GR. No. 149193, 4 April
2011
162 G.R. No. 97105, 15 October 1991
\ ;.~~
y

34

'.:'of"" ': .
71.1. Lerias involved an election ,prote;.sfafl>r.~i
,position of Representative for the lone district;ti
southern Leyte. The protestant therein, R9sette Y. ti!'ri'ai\';.
contested the results of the election in fou~ (4) pr~c~nc~'~
of the Municipality of Libagon, asserting that th~ ~qill
1

::1votes credited to her in the four precincts .were ''sl;i:~:frt1~a~


four hundred (400) votes than the votes. ci;ctualiy tec:eiye4;r 1'..~t
by her. The protestee the~e.in, Roge~ f ercado,, ~:"~l~~;J~i~~i~; .
counter-protest. After rev1s1on of ballots, the/::.,H~E~~\1~~
. dismissed Lerias' protest and ruled irl,:favor. of Mer~~e:g9;~),~. ;;:,
., ' from which decision the three (3) Justices.of the ~1:1-preme ,. ~ .,
:",Court and one (1) Representative sittiJ;1g as Members' of.:''
,~t./: .:i,~:"
1
the HRET dissented.
~~.)
'. -fl,. 1'' if "):. . , ,/
71.2. In dismissing Lerias' protest, ifia..,pp~a~Jd ~
the majority, "by sheer force of ; :hti~.9e~~.:~.{
1, 'overturned rulings earlier made by the HR;~[~.. ~,
1

respect to the appreciation of ballots in favor". df .~~~M.~,_T,, .,


'' and also inexplicably ignored basic rules of e.Ji~~D;c~!~};~/;
refusing to consider original copies of election. i;etUtJ;'t~,1:\f;
.. .submitted to it, instead relying only on , a photocopy,.);>f\y:f~:~\''.
.~
the certificate of canvass. On the other hand, the "original
tabulation of results in the counter-protest filed by
Mercado (which showed Lerias a winner by twenty (20)
votes over Mercado) was also reconsidered and ultimately
replaced with a revised tabulation, this time with
Mercado winning by a margin of forty-two (42) votes. In
the words of one dissenting Member, the majority
"magically changed [the results of the election] twice and,
in both instances, always against the protestant Lerias."
Significantly, the five-member majority in Lerias all came
from the same political party, with the protestee therein
(Mercado) also being their party-mate.

71.3. Unlike in Lerias, where the majority's


partisan motivations can be clearly inferred, there is no
evidence at all of partisan considerations in this case.
Indeed, instead of being partisan, the assailed SET
Decision even crossed or transcended party lines. The five
(5) Senators who voted to dismiss the quo warranto
petition did not belong to the same party but instead to
three (3) different political parties-the Liberal Party
("LP"), the Nationalist People's Coalition ("NPC"), and the
Nacionalista Party ("NP"). Indeed, Senator Aquino's party
has a presidential candidate of its own for the next
elections, and it would have been entirely expectedly
partisan if he had voted to unseat Private Respondent
35

and thereby disqualify her too from the 2016 presidential


elections. The fact that he did not speaks very loudly of
his strong adherence to his understanding of the law, an
interpretation which he is qualified to make as a Member
of the Tribunal which is the sole and exclusive judge of
the issue. Under these circumstances, partisan
motivations cannot be inferred simply from the fact that
the majority vote happened to come from five Senators.
r~'

71.4. Moreover, unlike in Lerias, Private


Respondent herein does not belong to any party at all.
Private Respondent is running as an independent
candidate, and is not a member of any political party
within the Senate. Thus, partisan accommodations,
much less grave abuse of discretion, cannot be inferred
merely from the circumstance that those who voted to
dismiss the instant Petition happened to be her
colleagues at the Senate.

71.5. Correctly read, Lerias actually supports


Private Respondent's case, because the reversal therein
was based on the Supreme Court's consideration of
overwhelming evidence on record showing a systematic
design to fraudulently take away votes from the
petitioner, thereby "thwarting the true will of the
electorate in the lone district of Southern Leyte." In this
case, it is Petitioner who is the one seeking to thwart the
will of the electorate which had overwhelmingly elected
Private Respondent into office, without presenting any
evidence at all to show that Sen. Poe's parents are aliens,
and therefore, she is not and could not have been a
natural-born Filipino citizen qualified to occupy her
present office.

71.6. Clearly, Petitioner cannot seek refuge in


Lerias, which teaches that this Honorable Court can (and
will) reverse the decision of an Electoral Tribunal in case
of clear showing that it ignored overwhelming evidence on
record in order to vote along party lines. This
circumstance is entirely absent in this case.

72. Moreover, the "Lerias doctrine" is inapplicable, for


the simple reason that, unlike in Lerias, the proceeding a quo
did not involve an election protest with revision of ballots or
mathematical counting of votes. An election protest is
governed by clear provisions of law and jurisprudence, from
which an Electoral Tribunal cannot appreciably depart without
36

thereby committing grave abuse of discretion. Rather, the quo


warranto petition in this case involved a resolution of a legal
question of first impression, 163 i.e., whether a foundling found
in the Philippines can be deemed to be a natural-born Filipino
citizen for purposes of qualifying for a seat in the Senate.
Since the SET is possessed of "original" and "exclusive"
jurisdiction to resolve this question-a jurisdiction which
Petitioner himself invoked-Petitioner cannot fault the SET,
much less charge it with grave abuse of discretion, in ruling
that Private Respondent, despite being a foundling, is a
natural-born Filipino citizen. In so doing, the SET, in the
proper exercise of its jurisdiction, simply made its own
interpretation of applicable provisions of law; an interpretation
it is qualified to make as the "sole" and "exclusive" judge of
said issue. In so doing, the SET did not commit any "clear" or
patent violation of the Constitution (for the Constitution is
admittedly silent about the citizenship of foundlings), much
less misapply any existing law or jurisprudence (for there is
none), such that Petitioner can now charge it with grave abuse
of discretion for the simple reason that it did not adopt his
proposed interpretation.

A.2.b. The Constitution itself mandates


the com position of the SET to be
partly political, and its members
are allowed, and have full and
complete authority, to take into
account policy considerations and
the will of the people in their
vote.

73. Petitioner completely disregards the interpretations


of law made by the majority and argues that the dissenting
opinions of the three (3) Justices should be given more weight,
as they "are considered more knowledgeable about our
laws."1 64 In paragraph 55 of his Verified Motion for
Reconsideration filed before the SET16s (which he' substantially
restates in par. 6.27 of his Petition before this Honorable
Court), Petitioner asserted that the "dissenting opinions of
Senior Justice Carpio, Justice Leonardo-De Castro, [and]
Justice Brion ... 166 mirror the correct reading, analyses, and

163 Petitioner admits this in par. 6.43 of his Petition


164 Petition, p. 2
165 Annex "B" of the Petition
166
Petitioner erroneously ascribes a dissenting opinion to have been written by Senator-
Member Ma. Lourdes Nancy S. Binay. To Respondent's knowledge, Senator Binay did
not submit a separate opinion explaining her vote in detail.

.,,,,.. " " " " " h = -,..._ ~ _ _ , ---~=~--..,,,~~ ~",, '"';;~~"'""''~~m.'"''"- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
:,!
37

'' , .:. ' .~~~~~\


.'lication of the article on citizenship , in tqe_;.1,:~~~' .:i.H<
astitution ... other laws, jurisprudence, procedural ruf~s'~':Y .
. international law, among others." Petitione~ 1 ~ t~~~:;jj~.
1

';orporates" these dissenting opinions in his Petit~~n~ ~d''r,,~1


es this Honorable Court to "seriously consider the's~e,1t;;;,ts.11,,iS
~- < '!'1~ ,J '\('li" ,j/:)
Implicit in Petitioner's theory is t~~~: .the S~n~tqt~t:>
' bers of the SET, not being judges, ar~ ilkequ~PJ!<?c;\?t9 .. ~
]\~lake interpretations of law. For Petitioner,. b~cause:tlio~f;\~:~~f1f::_
:;$;K~!f~. Senator-Members are not lawyers: they shouJd Ha,i~:<
. . ;J\~~f~rred to the three Justice-Members,' interpretations,;. which i:
;,., .. ;,,:~~b;bld be controlling and given more weight in resolving the .
'ides. Petitioner essentially ascribes infallible wisdom pn rtfieJ(' .
!!Q;~lected Members of the SET, conveniently disregar&'irig':tb~
;}:,fo\~i0' 1: \.~' q ~. ,:

r.i:3tlom of the elected Members when it suits his purpo~e:. Tni-s/ .


'
''$.'
erroneous, if not unconstitutional, interpretation ofi th;e ;, ..
, ~~ 1'.(;~ ' 1

J!i:wers and nature of the SET. ' '.t.:i~1: ';T;/


1 1

;ii;~ .: . i . ~ v!;;~~~1(t1!1;.
,.:e:F 75. Section 17, Article VI, of the Constituf16n,~1';'i~>~
ablishing the SET, provides: .... .. ,,. n;

y
Sec. 17. 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 on
the basis of proportional representation from the political
parties and the parties or organizations registered under the
party-list system represented therein. The senior Justice in the
Electoral Tribunal shall be its Chairman. 167

76.
The provision for an Electoral Tribunal under the
1987 Constitution is nothing new. This constitutional body was
introduced as early as the 1935 Constitution, Section 4 of
Article VI of which provides:

SEC. 4. There shall be an Electoral Commission composed of


three Justice of the Supreme Court designated by the Chief
Justice, and of six Members chosen by the National Assembly,
three of whom shall be nominated by the party having the
largest number of votes, and three by the party having the
second largest number of votes therein. The senior Justice in the
Commission shall be its Chairman. The Electoral Commission

161 Underscoring supplied

,~....,....~--~- ---"""""""'"""""''"-"''"""''' ~'*>.""<~..,.,,,~ -~~'AA\!~W'~------------------"''


38

shall be the sole judge of all contests relating to the election,


returns and qualifications of the members of the National
Assembly."

77.
The 1936 case of Angara vs. Electoral
Commission, 168 construing Section 4, Article VI of the 1935
Constitution, traced the history of the Electoral Commission
(i,::iow "Electoral Tribunal") and the nature of its power as sole
judge of the elections, returns, and qualifications of members
of the National Assembly:

The original provision regarding this subject in the Act of


"'\~
Congress of July 1, 1902 (sec. 7, par. 5) laying down the rule
that "the assembly shall be the judge of the elections, returns,
and qualifications of its members", was taken from clause 1 of
section 5, Article I of the Constitution of the United States
providing that "Each House shall be the Judge of the Elections,
Returns, and Qualifications of its own Members, .... " The Act
of Congress of August 29, 1916 (sec. 18, par. 1) modified this
provision by the insertion of the word "sole" as follows: "That
the Senate and House of Representatives, respectively, shall be
the sole judges of the elections, returns, and qualifications of
their elective members ... " apparently in order to emphasize
the exclusive character of the jurisdiction conferred upon each
House of the Legislative over the particular cases therein
specified. This court has had occasion to characterize this grant
of power to the Philippine Senate and House of
Representatives, respectively, as "full, clear and complete"
(Veloso vs. Boards of Canvassers of Leyte and Samar [1919],
39 Phil., 886, 888.) (underscoring supplied)

78. As the foregoing shows, prior to the 1935


Constitution, the power to judge all contests relating to the
elections, returns, and qualifications of Members of Congress
was exclusively vested in the legislative department, following
the U.S. Constitution and the system then prevailing in the
United Kingdom. The 1935 Constitution introduced the
innovation of creating an independent tribunal composed of
six (6) Members from the National Assembly and three (3)
Members from the Supreme Court, "to transfer in its totality
all the powers previously exercised by the legislature in
matters pertaining to contested elections of its members, to
[such] independent and impartial tribunal."169 This Honorable
Court went on to characterize this transfer of power to be as

168 G.R. No. L-45081, 15 July 1936


169 Id.
39

"complete and unimpaired as if it had remained originally in


the legislature", viz:

The Electoral Commission is a constitutional creation,


invested with the necessary authority in t.h~ performance and
execution of the limited and specific function assigned to it by
the Constitution. Although it is not a power in our tripartite
scheme of government, it is, to all intents and purposes, when
acting within the limits of its authority, an independent organ. It
is, to be sure, closer to the legislative department than to any
other. The location of the provision (section 4) creating the
Electoral Commission under Article VI entitled "Legislative
Department" of our Constitution is very indicative. Its
composition is also significant in that it is constituted by a
majority of members of the legislature. But it is a body separate
from and independent of the legislature.

The grant of power to the Electoral Commission to judge


all contests relating to the election, returns and qualifications of
members of the National Assembly, is intended to be as
complete and unimpaired as if it had remained originally in the
170 .
legislature. x x x

79. In Abbas vs. Senate Electoral Tribunal,111 this


Honorable Court explained that the Members of the SET from
both the legislative and the judicial branches of the
government "share the duty and authority of deciding all
contests relating to the election, returns and qualifications of
Senators." In other words, no one vote carries more weight
than the other. In the same manner, no one interpretation of
the law is to be accorded "more weight" than the other, simply
because the power and function of the SET as "sole judge"
with exclusive competence to decide on all issues pertaining to
a sitting Senator's qualification, is one that is exercised
through every Member of the Tribunal.

80. Indeed, the history of the powers of the Electoral


Tribunal as exclusively legislative, and the fact 'that Members
from the legislative department predominate its composition,
clearly show that the intention of the people is the reverse of
what Petitioner is now postulating-the people intended to
entrust the question of unseating an elected representative to
the competence of persons who are also their elected
representatives.112 Apt is the observation of the Supreme Court
110 Id. (Underscoring supplied)
111 G.R. No. 83767, 27 October 1988
172 This is not the only instance when the people clearly provided that judicial power be

exercised not solely by judges, who while being learned in the law, are unelected, but by
ft

40

: ,ri.; .;:.~J~ :~:'.f.:i;...


0

-ain in Angara vs. Electoral Commisqionl 73 to . a.,d:di::e~( "~ .


;tijcism against the creation and composition of theElectt
'" mission: "All that can be said now i~ that, :tPdn~';,~~:~>
roval of the Constitution, the creation. of the .~Bl~c~~~Jl'.f~
mission is the expression of the wisdom and !t*l1i~~~Ji;'.
ice of the people'. (Abraham Lincoln, First '.Iijl!tt:u!?;tlr~:t?. u
dress, March 4, 1861.)." " . ':\):~:'t''.

:~ . 81. Clearly, in providing for a predbrifinantly i~~~ii~~~::';


trrembership of an Electoral Tribunal, th~ ,pe.opl_e prov~q~d f9~{;~ .
rp~chanism where by their opinion on ;the issues niay be tak~n;
fiJ:tf:r consideration, through representatives . who enj~y thejL
~j;tect mandate, and whose decision would reflect the:c91lectiY,b
:.igment of the sovereign people. Again, this Honqr~qfo Cb!f~t
1

bbas vs. Senate Electoral Tribunal1 74 explained: l< .~, ~.~~~~;,:/


<. . , ~
: , -r' i ; , f1~~+f','.,:(.;

It seems quite clear to us that in thus providing fuf a,;(J~!):r


Tribunal to be staffed by both Justices of the Supreme\(~~!~.
and Members of the Senate, the Constitution intended that. bdtb ~f
"{'. those 'judicial' and 'legislative' components commonly''.sh~e J
the duty and authority of deciding all 'contests rdatin'.g to.'the
election, returns and qualifications of Senators. The respondent .
Tribunal correctly stated one part of this proposition when it
held that said provision " ... is a clear expression of an intent that
all (such) contests ... shall be resolved by a panel or body in
which their (the Senators') peers in that Chamber are
represented." The other part, of course, is that the constitutional
provision just as clearly mandates the participation in the same
process of decision of a representative or representatives of the
Supreme Court.

Said intent is even more clearly signalled by the fact that


the proportion of Senators to Justices in the prescribed
membership of the Senate Electoral Tribunal is 2 to 1-an
unmistakable indication that the "legislative component" cannot
be totally excluded from participation in the resolution of
senatorial election contests, without doing violence to the spirit
and intent of the Constitution. 175

82. This intention to respect the will of the sovereign by


ensuring that a majority of those who sit in judgment of an
elected representative are themselves elected, is but consistent
with our republican and democratic theory of government. The

representatives directly elected by the people. An example of another sui generis


proceeding, which is at once legal and political, is impeachment.
173 G.R. No. 45081, 15 July 1936
174 G.R. No. 83767, 27 October 1988
175 Underscoring supplied

--.........,..,,.~~~~~--~~~~~~~~ ..... .........................................,,_.,,.,,....,.........,_,..,.....................................................................................................................


~
41

participation of Members from the legislative branch in the


Electoral Tribunals is as important-if not more important-
than the participation of Members from the judiciary, because
under a republican form of government, the participation of an
elected representative is considered the participation of the
people themselves. Petitioner cannot argue that, by listening to
"what the people want", the Senator-Members thereby
,, ;1, committed "grave abuse of discretion", for in the last analysis,
1~ ,t it is the people, as sovereign, who is "legally omnipotent and
, absolute in relation to other legal institutions."176 Moreover,
the Senator Members of the SET who ruled in favor of Private
Respondent actually based their respective votes on the law
1
" ' and applicable jurisprudence. In the words of Justice, later
Chief Justice, Puna in his concurring opinion in Frivaldo vs.
Commission on Elections: 111

The sovereignty of our people is the primary postulate of


the 1987 Constitution. For this reason, it appears as the first in
our declaration of principles and state policies. Thus, Section 1
of Article II of our fundamental law proclaims that 11 [t]he
Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates
from them. 11 The same principle served as the bedrock of our
1973 and 193 5 Constitutions. x x x

To be sure, the sovereignty of our people is not a


kabalistic principle whose dimensions are buried in mysticism.
Its metes and bounds are familiar to the framers of our
Constitutions. They knew that in its broadest sense, sovereignty
is meant to be supreme, the }us summi imperu, the absolute
right to govern. Former Dean Vicente Sinco states that an
essential quality of sovereignty is legal omnipotence, viz:
"Legal theory establishes certain essential qualities inherent in
the nature of sovereignty. The first is legal omnipotence. This
means that the sovereign is legally omnipotent and absolute in
relation to other legal institutions. It has the power to determine
exclusively its legal competence. Its powers are original, not
derivative. It is the sole judge of what it should do at any given
time. 11 Citing Barker, he adds that a more amplified definition
of sovereignty is that of 11 a final power of final legal adjustment
of all legal issues." The U.S. Supreme Court expressed the same
thought in the landmark case of Yick Wo v. Hopkins, where it
held that 11 x x x sovereignty itself is, of course, not subject to
law, for it is the author and source of law; but in our system,

176 J. Puno, Separate Concurring Opinion, Frivaldo v. Commission on Elections, G.R.


No. 120295, 28 June 1996
177 G.R. No. 120295, 28 June 1996

,_"'''"'"''"'""""'''" "'"'" ............. --~-------~---~-


42

while sovereign powers are delegated to the agencies of


government, sovereignty itself remains with the people, by
whom and for whom all government exists and acts." 118

83. Thus, contrary to Petitioner's assertions, the


assailed Decision is not made "legally infirm" simply because
certain Members took into account what Petitioner erroneously
considers as non-legal considerations in casting their votes.
The majority's reliance on the people's expression of sovereign
will in the 2 0 13 elections cannot be considered as "non -legal".
As earlier emphasized, it is in full accord with the
jurisprudence established by this Honorable Court, among
them Frivaldo vs. Commission on Elections. The Members of
the SET have "full, clear and complete authority"I79 to decide
the issue of whether Private Respondent, a known foundling
whose biological parents are at present unknown, is
nevertheless a natural-born Filipino citizen qualified to occupy
her position. Such "full" and "complete" authority necessarily
includes the power to take into account the electorate's
expression of sovereign will on an issue of first impression,
especially in a case where "there is no clear violation of [the]
Constitution and [the] laws."Iso As the Honorable Associate
Justice Brion concedes in his Separate Dissenting Opinion:

[T]he SET is supreme in its independent and exclusive


power to resolve the issue of qualification or disqualification of
senators, it is considered the highest authority in this given
function. The position the SET occupies in the exercise of its
limited adjudicatory power allows it the same option that the
Supreme Court has in matters where the Court has the highest
authority, i.e., it can [even] choose not to apply a judicial
precedent should it find a strong compelling reason not to do so
"181

84. Besides, even this Honorable Court is not absolutely


prevented from taking into account "non-legal considerations"
in arriving at their decisions. Courts in the Philippines are not
only courts of law, but also courts of equity. it is precisely
because of this that Article 10 of the Civil Code contains a
general directive that in interpreting a law, justice should be
made to prevail, viz: "[i]n case of doubt in the interpretation or
application of laws, it is presumed that the law-making body
intended right and justice to prevail." This is certainly

178 Citations omitted; underscoring supplied


17 9 See Angara v. Electoral Commission, G.R. No. L-45081, 15 July 1936
180 Sen. Legarda, Separate Concurring Opinion in SET Case No. 001-15, p. 4
18 1 J. Brion, Separate Dissenting Opinion in SET Case No. 001-15, p. 61 (Italics in the

original; underscoring supplied)


..,~""l!f''"' 43

~}~~~'
.,,,.< ,:t'~;applicable in interpreting the Constitution, for the sovere~gn
'.' '
pe.ople, in the very Preamble of the Constitution, have inad~:,if
.)'~ar that their aim is "to build a just and humane )~bcie,~~::~i
(rFllis point is discussed in more detail in paragraph~ 2 lJ) ::to
~r&:~,2;l0.1 below.) There is certainly nothing humane or}us~ i:fi
depriving a foundling-who has been abandoned and does not
~?i/Bave the love of his/her biological parents-oLcitizenship and
",:o.. t ... ';

\~yen the protection of the State as parens patriae: ,\

SET did not commit any


"reversible error" in its 17 November
2015 Decision and 3 December 2015
Resolution. Even assuming arguendo
that it did, such is not sufficient to
constitute grave abuse of discretion.
,'J:

' ,' ' ( ... ,

85. Petitioner next ascribes "grave abuse of dis~red~n"


to: the SET for allegedly committing th(! fallowing "reversibly
:::~.~::ierrors": (1) when it ruled that Private Respondent is a natu~~,~
born Philippine citizen despite the absence of proof of blood
ties to a Filipino father; (2) when it considered Private
Respondent a citizen of the Philippines when she allegedly did
not validly reacquire Philippine citizenship under R.A. No.
9225; and (3) when it dismissed the petition for quo warranto
and denied Petitioner's motion for reconsideration as well. In
paragraph 6.27 of his Petition, Petitioner restates the alleged
errors of law he imputed to the SET in his motion for
reconsideration, viz:

a) That the burden ofproof did not shift to Respondent.

ii. That Respondent is a natural-born citizen under the 1935


Constitution and continue (sic) to be so under the 1987
Constitution.

iii. That Respondent validly reacquired her natural-born


Filipino citizenship upon taking her Oath of Allegiance to the
Republic of the Philippines, as required under Section 3 of
Republic Act No. 9225.

iv. That the execution of Respondent's Affidavit of


Renunciation was sufficient to qualify her for appointive
position, and later, her elective office; and

-- _
..... ...... -- -- -~---..---~~.. - ..---------------
44

v. That Respondent did not recant her Oath ofRenunciation


for using her US.A. passport after renouncing her US.A.
..
cztzzens h.zp. 182

86. Petitioner's very language is telling: what he seeks


from this Honorable Court is not really the limited form of
certiorari review, but an appeal wherein this Honorable Court
reviews alleged "reversible errors" of judgment committed by
the SET. As the SET is mandated to be the "sole" judge of the
\; issue of Private Respondent's qualifications, its decisions are
non-appealable, even to this Honorable Court. A petition for
certiorari is not an appeal; it is rather a special civil action
!!'., designed to correct not errors of judgment, but errors of
jurisdiction. Without a clear showing of such error of
~i, jurisdiction, the certiorari jurisdiction of this Honorable Court
cannot be invoked.

87. Nevertheless, and for the full resolution of these


issues, Private Respondent will address Petitioner's allegations
of "reversible errors" committed by the SET, and will show in
the paragraphs below that no such "reversible error" has been
committed.

A.3.a. Petitioner was not able to


discharge his burden of proof.
Hence, the burden of evidence
could not have in any way shifted
to Private Respondent.

88. Notably, by contending that the burden of evidence


had purportedly shifted to Private Respondent, Petitioner
acknowledges that the burden of proof was his and the burden
of evidence was his initially. (Burden of proof will be discussed
more extensively in paragraphs 89 to 94 below) Contrary to
Petitioner's allegation,1s3 however, the "burden of evidence"
could not have shifted to Private Respondent, since he
absolutely failed to establish a prima facie case that she was
disqualified, i.e., that both her biological parents were or are
not Filipino citizens.

88.1. Burden of evidence is the duty of a party


to present evidence to counter the prima facie evidence
presented against him or her. In the proceeding below,

182 Petition, par. 6.27, pp. 19-20, restating par. 4 of Petitioner's Motion for
Reconsideration. (italics in the original)
183 Id., restating par. 5 of Petitioner's Motion for Reconsideration
45

Private Respondent's burden of evidence would arise only


after Petitioner presented prima facie evigence of her
disqualification.

88.2. Petitioner could not shift the burden of


evidence to Private Respondent by simply saying that
since she is a foundling, there is therefore no proof as to
her parent's citizenship. For one, the absence of
evidence, which springs from the fact that Sen. Poe is a
foundling, obviously cannot in any way be considered
prima [acie evidence that she is not a natural-born
Filipino. For another, in the absence of proof as to the
citizenship of the parents of Sen. Poe, the presumption of
law applies that she is a natural-born citizen.

89. Petitioner concedes that the burden of proof was


his, but contends that he discharged such burden when
Private Respondent admitted her status as a foundling. 184
Citing the dissenting opinions of Honorable Associate Justices
Arturo D. Brion and Teresita J. Leonardo-De Castro in the
proceeding a quo, he argues that Private Respondent's
admission of her status as a foundling "lifted [his] burden of
proving his claim that she is a foundling."185 That is true, but
all that Private Respondent's status as a foundling proves is
that her parents are unknown; it does not prove that her
parents are foreigners and she is therefore not a natural-born
Filipino citizen. Indeed to make the conclusion that she is not
natural-born, the presumption will have to be made that a
foundling's parents are foreigners. Petitioner, however, does
not cite any legal basis for such a presumption.

90. Contrary to Justice Brion's dissenting position, 186


proof of foreign citizenship is required, and that proof must
come from Petitioner, as this is the only way that a petitioner
in a quo warranto proceeding can definitely exclude Private
Respondent-or any Senator for that matter-from the
enumeration of who are Filipino citizens. As Justice Brion
himself admits, "a petitioner alleging lack of citizenship as a
ground for disqualification should establish facts proving that
the senator does not fall under any of the modes for acquiring
Philippine citizenship under the Constitution."187 The only way
these "facts" can be established is to definitely exclude Private
Respondent via proof that she was actually born of aliens.

18 4 Id., restating par. 6 of Petitioner's Motion for Reconsideration


185 Petition, par. 6.32, p. 38
186 Id.
187 Id.

--- .. --~---. -----~


f

46

'R.~ducing the burden of a petitioner in a quo: warnanito


Ff.fely establishing a "doubt" in the qualificationsar.~;.sit
tiator is not enough, for this is tantamou,nt to nulti~ fa,
ular mandate b the mere ex edientof rai'sin a, ddti 1 '~asff.'.
ublic officer's qualifications for office. .);t;1:'-~l\:!~i
. . . . . \: l,t {r;;~.~
.,,,}, 91. As the assailed Decision coqectly;;,pointed. o:ut, :~f~)
-~~re .fact that Private Respondent is a fo11n<l.~~pg/'?~~5p~,~~~' .
with 1t the proof that [her] parents weretare not citizens of:~~ '
Philippines. On the contrary, it did not Jexclude .the po:g~i~iI~~
t)\i.t her parents are citizens of the Pl;iil'i.ppines."188,. This is~ca_
:P~~ibility that is admitted by Petitioner~s c~unsel hlmself?.}~ 9 ..
Gl;fid as correctly appreciated by the SE'(~ is 'strengtjld}1:;l;')y
ijiixate Respondent's physical features and the repotta;,f~9ts
~.~:rounding her discovery in J aro, Iloilo in 1968. ' . l: i: ' 9 <~: y
1

.;k .'
::,~,~sl~,.i,;. .1l .~ i

ii~'W;:i:'-~92. Nevertheless, Petitioner insis.ts on thro~~q;,_nl't~_~


&U,rden of evidence to Private Respdnden t "oeeJ!fM~i~i~if~~#~ .
cii.tizenship
:~ ~I
qualification . . . is prescribed no less'~(
, ~
:l:?y~rjfi~g
~, \ ' ' '. / , , ' , \ k.'

C@hstitution". For him at least, "once assailed, .the c<;>I;J.cem~4 .


-~. , 't " . I", w.;:1 ..... .;,, ,

'':I:?'t;tblic official ... is duty-bound to establish through com,pe~~::~'


ij': proof - such as positive DNA results or "match" - that he 'br
she possesses such qualification" .190

Again, Petitioner is mistaken.

bears emphasizing that a petition for quo


93. It
warranto is not a suit wherein a duly-proclaimed Senator is
called upon to prove that she is eligible for her post. On the
contrary, a petition for quo warranto is, by definition, an
action to "contest the election of a Member of the Senate" on
the ground of "ineligibility."191 Therefore, the petitioner in a
quo warranto case must allege and prove the facts which
would disqualify the Senator. Again, the "facts which would
disqualify" Private Respondent is not her status of being a
foundling (for Petitioner admits that a foundling could have
Filipino parents), but the fact that both her biological parents
are definitely not Filipino citizens.

94. Tested by the foregoing, was Petitioner able to


"prove the very fact of [Private Respondent's] disqualification"
so that she should now be called upon to defend herself with

188 SET Decision dated 17 November 2015, pp. 18-19


189 SeeTSN, Oral Argument, 21September2015, pp. 24-27
190 Petition, par. 6.27, p.21, restating par. 10 of Petitioner's Motion for Reconsideration
191 Rule 18, SET Rules (Underscoring supplied) Note: the other ground, which is not

relevant in this case, is "disloyalty to the Republic of the Philippines"


47

countervailing evidence?l9 2 The clear and resounding answer


is "no". Petitioner did not present any evidence at all to prove
that Sen. Poe is not a natural-born citizen because both her
parents are or were foreigners.

A.3.b. Private Respondent is a natural-


born citizen under the 1935
,:.i.. Constitution and continues to be
so under the 1987 Constitution.
Petitioner's reliance on the
dissenting opinion of the three
Justices-Members of the SET is
unavailing.

95. Petitioner ascribes grave abuse of discretion to the


SET when it ruled that Private Respondent enjoys a disputable
presumption that she was born of Filipino parents.193 Adopting
the position taken by Honorable Senior Associate Justice
Antonio T. Carpio in his Separate Dissenting Opinion, 194
Petitioner argues that "a matter as paramount as citizenship
cannot be made to rest upon a presumption; it must clearly be
established through competent evidence. And in case of doubt,
the same should be resolved against the person claiming to
possess it." 195 Petitioner does not cite any legal basis for this
statement, which would in effect repeal the rules on
presumptions of law as provided in the Rules of Court and
upheld in Supreme Court cases, and deny their application to
Respondent.

95.1. Justice Carpio's dissenting opinion, i.e.,


that "any person who claims to be a citizen of the
Philippines has the burden of proving his or her
Philippine citizenship", relies on another dissenting
opinion he himself rendered in Tecson vs. Commission on
Elections. 196 Obviously, this was not adopted by the
Supreme Court in Tecson, where the late Fernando Poe,
Jr. 's Filipino citizenship was ultimately upheld based on
a presumption that his grandfather, Lorenzo Pou, who
died at San Carlos, Pangasinan, was a resident thereof
even before his death, and "in the absence of any other
evidence ... would have benefited from the en masse

l92 Fernandez v. House of Representatives Electoral Tribunal, G.R. No. 187478, 21


December 2009
193 Petition, p. 9
194 See J. Carpio, Separate Dissenting Opinion in SET Case No. 001-15, p. 78

195 Petition, par. 6.27, p. 22, restating par. 13 of Petitioner's Motion for Reconsideration.
196 468 Phil. 421 (2004)

~-- ---------- ----,-~-"' "'="''''i">'""'"'"~'-'"""''~-------------------------------------- ..


48

Filipinization that the Philippine Bill had effected 1n


1902."

95.2. Contrary to Justice Carpio's op1n1on


adopted by the Petitioner, it is not true that "f nlo
presumption can be indulged in favor of the claimant of
Philippine citizenship" and "any doubt regarding
citizenship must be resolved in favor of the State", for as
the cases of Tecson vs. Commission on Elections, Board of
Commissioners, et al. vs. Hon. Dela Rosa,197 and Japzon
vs. Commission on Elections, among others, would show,
a presumption may be the basis of a claim for
citizenship. This point will be discussed in more detail in
paragraphs 118 to 118.3 below.

96. Petitioner next suggests, following Honorable


Associate Justice Brion's dissenting opinion, that no
presumption can be made that Private Respondent was born of
Filipino parents "as there is absolutely no established fact
leading to the inference that the Private Respondent's
biological parents are Philippine citizens" .19s It is in effect
suggested that Sen. Poe cannot be presumed to have been
born of Filipino parents unless there is evidence that her
parents were Filipino citizens.

96.1. This is simply illogical as Petitioner


requires Private Respondent to prove what the
presumption of law provides. If Sen. Poe has to prove
who her parents were and what their citizenship was,
why would she even resort to a presumption that she is
natural born? If her parents are known, then obviously,
she would not have to resort to any presumptions.

96.2. The law itself which provides for


presumptions states the facts from which the
presumption arises. These are the only facts which
Private Respondent must prove. For example, to invoke
the presumption under Section 3(1), Rule 131 of the
Rules of Court, 199 the only evidence that Private
Respondent is required to present to accord her the
presumption of law is that she is a foundling and that
she was elected to the Senate in 2013, which requires
natural-born citizenship as a qualification. From that

197 G.R. Nos. 95122-23, 31May1991


198 J. Brion, Separate Dissenting Opinion in SET Case No. 001-15, p.38
l99 Section 3(1), Rule 131 of the Rules of Court provides for a disputable presumption
that "a person acting in a public office was regularly appointed or elected to it."

._..~'"=------------------------------------------------
} ~~

49.

fact, the presumption of law can


' t~t:: Jt~1
' . ' ' . th~t,J'~b~':W~~::,
be ;flpp1ied
regularly elected to the Senate in 2013, whi'ch, Jrie~$,
that she was qualified to run for the. office\ .f}tfef::~~S}r
' ' ; .
. J'&L.~.1< 111.~'
elected to. , l, ...~'~t~~:'.;.
I i' ', 'i~~' '-'~;) ~ '.' .''~":, (-,:,',::i.::~\;t ,
...~ . ., jj\ '~ . h l!~r

96.3. On the other hand, to .: a~~j~ ~~~-


presumption under Article 2 of the,,UNJJonventiO'n: qn,1:1~~~- ~ ' 1. ' :. -~ 1\):: ': '

Red-t1:~ti?n of Statelessness ("UN .cRs;') ,p~a.:tct~he 1 ~~-~~r~P~r,


of Fihp1no parents, all that Pnva~e: Responde!l~:has,:;ii~
prove is that she was a foundling . founq, ilJ jn ', ..t~~ .
Philippines, a fact which is adn;Htted by bothi' part{&s:
From that fact, the presumption arises that she was bo:t;n . .
of Filipino citizens. ._ ,~'/;" /'.~<;, .
.,. . :.~ ! ; 1, J'\:!;;i ..
97. It is suggested in one of the dissenting opini6nsth:at ' 'fl':,; ,_. ' .

. presumptions under Section 3(1) and 3 (ff) 200 ; Rule t3i.;:9f


.. .' "~\ ' .. , '; ! .

.i;uvr.tf Rules of Court canr:o~ ~T?ply since there 1s no sh9~~1 E~~~,1, .


I

.,m.vate Respondent's ehg1b1hty, or lack thereof, as ro f6~tl~


fl;(s ever raised before the public in 2013. This pla.inL~;ig~
P'le:-,fact that Sen. Poe's status as a foundling ~~s WidelY::.;~
;1!1":!':'.:Q\i:blicly known even before the May 2013 elec,tions, yetPc~s13~1 ";t
,y such public knowledge of a supposed disqualificatiori,. she~was
overwhelmingly elected as Senator-a position which requires
natural-born Filipino citizenship.

97 .1. Public knowledge of Sen. Poe's supposed


disqualification is admitted by Petitioner himself, who
alleged in paragraph 16 of his Amended Petition that
"fblefore she became MTRCB Chairman, Private
Respondent attempted to run for the Senate. She did not
pursue it, but she eventually ran in 2013 and was elected
as senator. And it was at rthatl time up to the present
that she is hounded by her disqualification to hold such
office."

97.2. Moreover, Sen. Poe's life story as a


foundling adopted by the showbiz power couple Fernando
Poe, Jr. and Susan Roces (Jesusa Sonora Poe) has long
been of public knowledge. It was even featured in the
primetime weekend drama program, Maalaala Mo Kaua,
broadcasted by nationwide by ABS-CBN Broadcasting
Corporation. Private Respondent's life story was
broadcasted on 2 February 2013, months before the
elections held on 9 May 2013.

200Section 3(ff), Rule 131 of the Rules of Court provides for a disputable presumption
that "the law has been obeyed."

---------------..-----------.......... ___ ____ ____


, , ,,
...............,..~-~--"~~--~~-------
50

97.3. If Petitioner is to be believed, more than


twenty (20) million Filipinos willingly thre~ away their
votes and "notoriously misapplied their franchise" when
they knowingly elected Private Respondent-a publicly
known foundling-into an office which requires natural-
born Filipino citizenship. Clearly, this cannot be the case,
and the fact that the public elected Private Respondent
into office despite knowledge of her status as afqundling
should be considered their sovereign judgment on her
qualification to sit as Senator of the land.

98. Petitioner next argues that applying the


1
'' '' presumption that Private Respondent is natural-born because
her parents are presumed to be Filipino citizens, would in
effect negate the constitutional requirement that a Senator
must be natural-born and must establish a blood tie to a
Filipino parent.

98.1. Petitioner misrepresents the intendment


and effect of a presumption of law. A presumption of law
merely establishes a mode of establishing the factual
basis for determining that a candidate is a natural-born
citizen. It does not do away with the substantive
requirement itself or even carve out an exception
therefrom.

98.2. By way of analogy, when the presumption


of innocence of the accused in a criminal case is upheld
and he is acquitted on the basis of reasonable doubt, the
penal statute itself is not negated by applying the
presumption of innocence. The presumption relates only
to the mode of establishing the factual basis for applying
a substantive law; it does not negate the substantive law
itself. In this case, applying a presumption that Private
Respondent is born of Filipino parents will not negate the
constitutional requirement that a person must be born of
a Filipino father or mother in order to be considered
natural-born.

98.3. What is more, the innocence of the


accused, borne of a presumption that has not been
overcome, is not innocence by legal fiction; it is
innocence arrived at because his guilt has not been
proven. In this case, if Petitioner fails to prove Private
Respondent's disqualification, affirming her qualification
would not amount to according her a qualification by
51

leg~ fiction. It would simply be a ruling that her


disqualification has uQ! been proven by evidence.

99. Presumptions are generally founded upon basic


principles of justice, laws of nature, the experienced course of
human conduct and affairs or the connection usually found to
exist between specific agencies.20 1 Presumptions arise from
motives of public policy and for the sake of greater certainty.
They owe their existence to necessity and are based on general
experience. The necessity which brings them into existence is
. the fact that in their absence many meritorious causes would
fail through inability to produce affirmative evidence of
essential facts, concerning the existence of which the general
experience of men leaves but slight doubt.202 Since
presumptions take the place of facts in the absence of
evidence, 203 there is no valid basis to distingish between
persons who can establish their bloodline by proof and those
who can do so by presumption.

100. Petitioner next alleges that the 1930 Hague


Convention "supports [his) theory that municipal law or the
constitution finds application in the case at bar."20 4 Firstly,
Private Respondent never argued against the application of the
1935 Constitution. What she argued is that the silence of the
1935 Constitution on foundlings found in the Philippines did
not exclude them from being natural born citizens, and resort
must be made to accepted aids in constitutional interpretation
such as the deliberations of framers. Secondly, Petitioner
persistently misrepresents not only to the SET, but to this
Honorable Court as well, the text of Article 1 of the 1930
Hague Convention. Correctly cited, the said provision reads:

Article I.

It is for each State to determine under its own law who are its
nationals. This law shall be recognised by other States in so far
as it is consistent with international conventions, international
custom, and the principles of law generally recognised with
regard to nationality. (underscoring supplied)

101. Petitioner consistently omits the underlined portion


of this provision, often without ma.king any indication that he
made such omission. It can only be inferred that Petitioner is
20l PADILLA, EVIDENCE, Vol. 2, 1994 ed. P.62, citing 20 Am. Jur Sec. 158, p.162
202 Id. citing 31 CJS, Sec.114, pp.723-724
203 See Section 3, Rule 131 of the Rules of Court
201 See Oath/ Affirmation of Renunciation of Nationality of United States dated 12 July
2011, attached as Annex "17" of the Answer
52

motivated by a desire to mislead, as the omitted prov1s1on


actually supports Private Respondent's theory that
international law cannot be wholly disregarded in determining
citizenship, as sovereign competence is recognized only "in so
far as it is consistent with international conventions,
international custom, and the principles of law generally
recognised with regard to nationality."

102. Lastly, Petitioner attempts to inject "new"


arguments in his Petition, this time by saying that Private
Respondent ought to submit evidence on the identity of her
biological mother for her to be considered "at least a
naturalized Filipino citizen. "205 Seemingly taking his cue from
the dissenting opinion of the Honorable Justice Carpio,
Petitioner attempts to portray Private Respondent as a
naturalized citizen who "performed acts . . . approximating
those required under the Naturalization Law (C.A. 473, as
amended)."206 With respect to these arguments, suffice it to
say that Petitioner is barred from raising the issue of whether
Private Respondent can be considered a naturalized Filipino
citizen. He made repeated judicial admissions that Private
Respondent is not a naturalized citizen falling within
paragraph (5) of Section 1, Article IV of the 1935 Constitution
(and therefore is a natural born Filipino unless shown to be an
alien). He cannot now be heard to argue the contrary. This
point will be discussed in more detail in paragraph 188.1
below.

103. Other arguments of Petitioner with respect to


Private Respondent's natural-born citizenship, taken here and
there from his motion for reconsideration and the dissenting
opinions, will be addressed in the appropriate sections in Part
B of the discussion below.

A.3.c. Private Respondent validly


reacquired her natural-born
Filipino citizenship upon taking
the Oath of Allegiance to the
Republic of the Philippines, as
required under Section 3 of
Republic Act No. 9225.

207 See Oath/ Affirmation of Renunciation of Nationality of United States dated 12 July
2011, attached as Annex "17" of the Answer
20 7 See Oath/ Affirmation of Renunciation of Nationality of United States dated 12 July

2011, attached as Annex "17" of the Answer


53

104. On 18 October 2001, Private Respondent became a


citizen of the U.S.A. through naturalization.201 However, she
later applied for re-acquisition of Philippine citizenship under
Republic Act No. 9225. On 18 July 2006, the BI granted her
petition to reacquire her natural-born Philippine citizenship
nder R.A. No. 9225. These are admitted facts.2oa
I

105. Thus, the SET's ruling that, being a natural-born


Filipino citizen, Private Respondent validly reacquired her
natural-born Filipino citizenship under R.A. No. 9225 is but in
accordance with the rulings of this Honorable Court in Parreno
vs. Commission on Audit,209 Sobejana-Condon vs.
COMELEc,210 Maquiling vs. COMELEc,211 Bengson III vs. HRET
and Cruzi12, and Tabasa vs. Court of Appeals.213

105.1. Instead of relying on jurisprudence, in


paragraph 6.45 of his Petition, Petitioner cited the
dissenting opinion of Ret. Justice Sandoval-Guttierrez in
Bengson. Suffice it to state that a dissent is not law, and
that the ruling in Bengson is that repatriation results in
the restoration of one's original nationality. In Sen. Poe's
case, her original nationality was her "natural-born"
Philippine citizenship. Accordingly, her "natura-born"
status is what she reacquired when she was repatriated
under R.A. No. 9225.

106. Aside from his reliance on a dissenting opinion in


Bengson, Petitioner did not have anything new to add to his
argument that Sen. Poe could not have reacquired Philippine
citizenship under R.A. 9225. He merely insists on the alleged
submission of "spurious birth certificate (2006), non-
signing/ non-approval of the order and memorandum in
connection with her petition for reacquisition and/or retention
of Philippine citizenship by Immigration Commission [sic]
Alipio Fernandez, Jr., etc .... "214 However, Petitioner completely
failed to substantiate these allegations. Private Respondent
never submitted her 2006 birth certificate to the Bureau of
Immigration. Moreover, Petitioner already admitted the due
execution and authenticity of Private Respondent's Certificate
of Live Birth issued in 2006, and the Order dated 18 July
201 See Oath/ Affirmation of Renunciation of Nationality of United States dated 12 July
2011, attached as Annex "17" of the Answer
20s See Preliminary Conference Order, par. B, items no. (7) and (11), p. 3
209 G.R. No. 162224, 7 June 2007
210 G.R. No. 198742, 10 August 2012
211 G.R. No. 195649, 16 April 2013
212 G.R. No. 142840, 7 May 2001
213 G.R. No. 125793, 29 August 2006
214 Petition, p. 33
54

2006 signed by Associate Commissioner Roy M. Almoro on


behalf Commissioner Fernandez, Jr., among others.
Petitioner's insistence on these non-issues only betray how he
is grasping at straws to create an issue where there is none.

A.3.d. The execution of Private


Respondent's Afftdavi.t of
Renunciation was sufficient to
qualify her for appointive
position, and later, her elective
office.

107. In compliance with R.A. No. 9225, Sen. Poe


executed on 20 October 2010, before a notary public in Pasig
City an affidavit renouncing her U.S. citizenship. This is also
an admitted fact. 215

108. Thus, the SET correctly ruled that "the affidavit of


renunciation that Private Respondent executed was sufficient
to qualify her for her appointive position, and later, her
elective office" and that "R.A. No. 9225 [does] not require that
[Private Respondent's] Certificate of Loss of Nationality filed
before the Embassy of the United States of America be first
approved in order that she may qualify for public ofice."216 The
SET was merely applying the ruling of this Honorable Court in
Sobejana-Condon vs. COMELEc,211 which clearly states that
R.A. 9225 does not concern itself with the actual status of the
other citizenship, and re-acquisition under said law is to be
measured solely by compliance with its provisions.

A.3.e. Private Respondent did not


recant her Afftdavi.t of
Renunciation, as she never used
her U.S.A. Passport after
renouncing her U.S.A. citizenship.

109. Petitioner insists on his perjurious allegation that


Sen. Poe "may have recanted her oath or affidavit [of
renunciation] by traveling to and from the U.S.A. using a U.S.
passport in 2011. "218 Petitioner must be reprimanded for
repeatedly trying to mislead not only the SET, but even this

215 See Preliminary Conference Order, par. B, item no. (9), p. 3


216 SETDecision dated 17 November 2015, p. 29
211 G.R. No. 198742, 10 August 2012
21a Petition, par. 4.1, p. 9
55

Honorable Court, despite certifying under oath that the


allegations in his Petition are "true based on [his] own
personal knowledge, authentic documents, and the laws."219

110. Petitioner's own "authentic document" (i.e., the B.I.


certified travel records of Sen. Poe)220 shows that Private
Respondent's last use of her U.S.A. Passport was before she
renounced her U.S.A. citizenship. Thus, the SET correctly
ruled that Maquiling vs. Commission on Elections has no
application in the instant case, as "during the times that
Respondent used her American passport, she was still a dual
citizen."221

111. All told, the SET did not commit an error of law,
much less grave abuse of discretion, when it ruled that
"Respondent is a natural-born citizen under the 1935
Constitution and continue(s) to be a natural-born citizen as
defined under the 1987 Constitution, as she is a citizen of the
Philippines from birth, without having to perform any act to
acquire or perfect (her Philippine citizenship. "222

B.

THE SET DID NOT ABUSE, MUCH LESS


GRAVELY, ITS DISCRETION, SO AS TO AMOUNT
TO A LACK OR EXCESS OF JURISDICTION,
WHEN IT ISSUED THE ASSAILED 17 NOVEMBER
2015 DECISION SUSTAINING SENATOR POE'S
NATURAL-BORN FILIPINO CITIZENSHIP.
PRIVATE RESPONDENT IS A NATURAL-BORN
FILIPINO CITIZEN UNDER THE APPLICABLE
PROVISIONS OF THE 1935 AND 1987
CONSTITUTIONS.
-----------------------------------------------------------------------
112. The core of Petitioner's thesis is that the SET
gravely abused its discretion in dismissing his petition for quo
warranto, for, being a foundling, Sen. Poe cannot be
considered a natural-born Filipino citizen. Since her
citizenship is being assailed, it is incumbent upon her to
present direct proof that she was born of Filipino parents.
Absent such proof, she cannot be considered Filipino, much

219 Verification, p. 73 of the Petition


220 Exhibit "II" below
221 SET Decision dated 17 November 2015, p. 30
222 SET Decision dated 17 November 2015, p. 27
56

less natural-born, all her legal arguments to the contrary


notwithstanding. Private Respondent will, in the following
paragraphs, show that a foundling is not excluded from the
definition of a Filipino citizen. And because foundlings found
in the Philippines, by virtue of the presumption of descent
from a Filipino parent, acquire citizenship by operation of law
without having to perform any act to acquire or perfect their
Filipino citizenship, they fall within the definition of "natural-
born citizens" under the Constitution. Hence, the SET was
correct when it arrived at the conclusion that Sen. Poe is a
natural-born Filipino under the 1935 Constitution, and
continues to be one under the 1987 Constitution.

B.1. The burden in a quo warranto


proceeding does not lie on the elected
and incumbent Senator, but on the
petitioner who is assailing her natural-
born citizenship.

113. First and foremost, Petitioner's conviction that Sen.


Poe is not a natural-born Filipino citizen stems from his
erroneous belief that the burden in a quo warranto proceeding
lies on the public officer to prove that he is qualified for office
whenever a challenge as to his qualifications is raised. This is
simply not the case. In a long line of jurisprudence, this
Honorable Court has consistently upheld the rule that the
burden in a quo warranto petition is upon the petitioner, who
must prove the very fact of disqualification before the elective
officer will be called upon to make his defense. This rule is but
logical, as Section 3 (1), Rule 131 of the Rules of Court lays
down the presumption that a person acting in a public office
was regularly appointed or elected to it.

114. Section 1, Rule 131 of the Rules of Court defines


"burden of proof' as "the duty of a party to present evidence on
the facts in issue to establish his claim or defense by the
amount of evidence required by law."

115. At least two (2) settled principles involving the


concept of "burden of proof' support this rule.

115.1. The Supreme Court has held that "(t)he


burden of proof is, in the first instance, with the plaintiff
57

who initiated the action. "223 Thus, the Petitioner has the
burden of proof (in the first instance). He must, initially,
prove that Sen. Poe is disqualified. The burden of
evidence or the duty to "go forward with the evidence"
would shift to the Private Respondent only after
Petitioner has presented evidence that the Private
Respondent is disqualified because she is not natural-
born.

115.2. Another oft-cited principle is that "(t)he


burden of proof is on the party who would be defeated if
no evidence is given on either side."22 4 Thus, a party
would not have the burden of proof if she would prevail
in the absence of evidence from both parties.

115.3. Section 1 , Rule 131 of the Rules of Court


places the burden of proof on the claimant to prove his
claim. The form of the proposition, whether it is in the
affirmative or the negative form is immaterial. "The
authorities hold that whoever asserts a claim or defense
which is negative in form or depends upon a negative has
the burden of establishing the truth of the allegation."
(Jones on Evidence, Fifth Edition, p.380) In Venzon v.
Santos et az.22s, the Supreme Court ruled:

Whoever asserts a right dependent upon a


negative, must establish the truth of the negative by a
preponderance of evidence. This must be the rule, or it
must follow that rights, of which a negative forms an
essential element, may be enforced without proof. Thus,
whenever the petitioner's right depends upon the truth of
a negative, upon him is cast the onus probandi, except in
cases where the matter is peculiarly within the knowledge
of the adverse party.

115.4. Applying this principle, Petitioner has the


burden of proving his allegation or claim that Private
Respondent is disqualified, because she is not a natural-
born Filipino, even if these propositions are cast in

223 Republic vs. Sandiganbayan, G.R. Nos. 166859, 169203 & 180702, 12 April 2011;
Republic vs. Vda. De Neri, G.R. No. 139588, 4 March 2004; See separate concurring
opinion of Justice Callejo in Tecson vs. COMELEC, G.R. Nos. 161434, 161634 &
161824, 3 March 2004
224 Spouses Hanopol vs. Shoemar, Inc., G.R. Nos. 137774 & 148185, 4 October 2002,

citing Borlongan vs. Madrideo, G.R. No. 120267, 25 January 2000, which in tum, cited
Summa Insurance Corporation vs. Court of Appeals, 253 SCRA 175 (1996)
2 2s G.R. No. 128308, 14 April 2004
58

negative form. And he can do so only by proving that


Private Respondent's parents are foreigners.

115.5. In the cases of Japzon vs. COMELEC,


Mitra vs. COMELEC, and Sabili vs. COMELEC, among
others, this Honorable Court held that when the evidence
on the "lack" of a qualification is "weak and
inconclusive," the case must be resolved in favour of the
elected official (because the will of the electorate must be
upheld). If Private Respondent would triumph in the face
of "weak and inconclusive" evidence, what more if there
is no evidence whatsoever against her? Clearly, the
burden of proof cannot rest on Private Respondent, for
she stands to prevail in the event that neither party
presents evidence in this case. In contrast, since
Petitioner stands to be "defeated" if neither party
presents evidence, with him lies the "burden of proof."

116. Petitioner did not-and cannot-discharge his


burden by merely proving that Private Respondent is a
foundling, because Private Respondent's status as a foundling
could not constitute the "fact" of her disqualification. The
status of being a foundling does not exclude the possibility
that her parents are Filipino citizens, and therefore, that she is
a natural-born Filipino.

116.1. Fernandez vs. House of Representatives


Electoral TribunaP.26 is instructive. Fernandez, which
involved a quo warranto challenge on the ground of
failure to comply with the residency requirement, teaches
that, in order to successfully discharge the burden of
proof, the petitioner in a quo warranto proceeding must
"categorically" and "conclusively" establish that the
respondent could not have possibly complied with the
Constituti6nal residency requirement. As long as the
evidence made room for the possibility that the
requirement was complied with, the petitioner would not
have discharged his burden of proof. In other words, it
was incumbent upon the petitioner to categorically
exclude the possibility of respondent's compliance with a
constitutional requirement, before the respondent could
be "even be called upon to defend himself with
countervailing evidence."221

226 G.R. No. 187478, 21 December 2009


221 Underscoring supplied
59

116.2. Curiously, Justice De Castro, the ponente


in Fernandez, instead of applying this strict rule,
accepted Petitioner's "evidence" that Private Respondent
is a foundling (an admitted fact) as sufficient to prove the
"very fact" of Sen. Poe's disqualification. As discussed,
the status of a foundling does not by itself prove a
disqualification, and a burden of proof cannot be
discharged precisely by the very absence of evidence.

116.3. Applying this Honorable Court's analysis


in Fernandez, it is not enough to show simply that
Respondent's parents are unknown. To successfully oust
Respondent from office, Petitioner must categorically
exclude the possibility that her parents were or are
Filipihos. As Senator Legarda ably drew out from
Petitioner's counsel at the 21 September 2015 oral
arguments: 228

SEN. LEGARDA. So the unknown father could be a


foreigner but the unknown father could also be a
Filipino. Is that correct?

ATIY. LUNA. Yes, Your Honor.

x x x

SEN. LEGARDA. Thank you. So just like the case of


the father, the unknown mother could be, may be,
can be Filipino. Is that correct?

ATIY. LUNA. That's correct, Your Honor.

x x x

SEN. LEGARDA. And you cannot exclude for certain


the possibility that one or both of the parents of
Senator Poe are Filipinos.

ATIY. LUNA. Yes, Your Honor.

x x x

SEN. LEGARDA. So in the end there's always a


possibility that one or both parents were actually
Filipinos.

22 s TSN, Oral Argument, 21 September 2015, pp. 24- 27


60

ATTY. LUNA. That's possible, Your Honor. 229

11 7. It is precisely because Sen. Poe's biological parents


are unknown that there is, at least, a possibility (and
considering the admitted circumstantial evidence of her birth,
a very high probability) that they are Filipinos. Hence,
Petitioner cannot simply rely on Private Respondent's
admission of her status as a foundling. He is required to prove
that Private Respondent's parents were foreigners, as this
would be the only way to negate the possibility that she was
born of Filipino parents under paragraphs (3) or (4) of Section
1, Article IV of the 1935 Constitution.

118. Moreover, a person whose Philippine citizenship is


assailed may rely on presumptions to uphold his claim to the
same. This is the import of this Honorable Court's rulings in
Tecson vs. COMELEC, Board of Commissioners, et al. vs. Hon.
Dela Rosa,230 and Japzon vs. COMELEC, among other cases.

118.1. The cases of Tecson vs. COMELEC and


Japzon vs. COMELEC, among others, show that a
presumption may be the basis of a claim of citizenship.
In Tecson vs. COMELEC, the late Fernando Poe, Jr.'s
Filipino citizenship was ultimately upheld based on the
presumption that his grandfather, Lorenzo Pou, who died
at San Carlos, Pangasinan, was a resident thereof even
before his death, and "in the absence of any other
evidence . . . would have benefited from the en masse
Filipinization that the Philippine Bill had effected in
1902." The COMELEC itself, in its Resolution (upheld by
this Honorable Court) denying the Motion for
Reconsideration filed by petitioner Manuel B. Japzon in
Japzon vs. COMELEC, even summarized certain
presumptions which may be indulged in even if the issue
involved is citizenship, viz:

It must be noted that absent any showing of


irregularity that overturns the prevailing status of a
citizen, the presumption of regularity remains.
Citizenship is an important aspect of every individual's
constitutionally granted rights and privileges. This is
essential in determining whether one has the right to
exercise pre-determined political rights such as the right
to vote or the right to be elected to office and as such
rights spring from citizenship.

229 Underscoring supplied


230 G.R. Nos. 95122-23, 31May1991
61

Owing to its primordial importance, it is thus


presumed that every person is a citizen of the country in
which he resides; that citizenship once granted is
presumably retained unless voluntarily relinquished; and
that the burden rests upon who alleges a change in
citizenship and allegiance to establish the fact.231

118.2. In Board o.f Commissioners, et al. vs. Hon.


Dela Rosa,232 the Supreme Court applied a "presumption
of citizenship" in favour of a certain Mr. William
Gatchalian because the last official act of then Acting
Commissioner of Immigration was the issuance of an
order "admitting" Mr. Gatchalian as a "Filipino citizen"
and "revalidating" his Identification Certificate.

118.3. In Japzon vs. Commission on Elections,233


the Supreme Court quoted with approval the Resolution
of the Commission on Elections denying the Motion for
Reconsideration filed by petitioner therein. Said
Resolution summarized certain presumptions which may
be indulged in even if the issue involved is citizenship,
VtZ:

It must be noted that absent any showing of


irregularity that overturns the prevailing status of a
citizen, the presumption of regularity remains.
Citizenship is an important aspect of every individual's
constitutionally granted rights and privileges. This is
essential in determining whether one has the right to
exercise pre-determined political rights such as the right
to vote or the right to be elected to office and as such
rights spring from citizenship.

Owing to its primordial importance, it is thus


presumed that every person is a citizen of the country in
which he resides; that citizenship once granted is
presumably retained unless voluntarily relinquished; and
that the burden rests upon who alleges a change in
citizenship and allegiance to establish the fact. 234

119. In this regard, as earlier discussed, Petitioner's


reliance on the dissenting opinions of Justices Carpio, Brion,
and De Castro, to the effect that the a person claiming

231 Underscoring supplied


232 G.R. Nos. 95122-23, 31 May 1991
233 G.R. No. 180088, 19 January 2009
234 Underscoring supplied.
62

Philippine citizenship cannot do so by presumption, but must


present no less than direct proof of blood ties to a Filipino
parent, is without a leg to stand on. Their common reliance on
Paa vs. Chan, 235 is erroneous, as Paa vs. Chan is inapplicable
in this instant case.

119 .1. The instant case must be differentiated


from Paa vs. Chan236 (a case decided in 1967). In Paa,
this Honorable Court made the fallowing sweeping
statement:

It is incumbent upon the respondent, who claims


Philippine citizenship, to prove to the satisfaction of the
court that he is really a Filipino. No presumption can be
indulged in favor of the claimant of Philippine
citizenship, and any doubt regarding citizenship must be
resolved in favor of the State. 237

119.2. Private Respondent submits that the


foregoing pronouncement is obiter dictum because there
was no "doubt" in Paa regarding the alien citizenship of
the candidate in question. Accordingly, it was not
necessary for the Supreme Court to rely on any
"presumption." On the contrary, the parties in Paa
"stipulated on," and the evidence proved, the facts
showing that the respondent was not a Filipino (but a
Chinese citizen), to wit:

As against the circumstances relied upon by


respondent on his claim of Philippine citizenship, the
record shows that in 1941 respondent registered himself
as an alien (Exhibit M); and that on April 30, 1946, he
and his father, Leoncio Chan, whom respondent claims to
be a Fliipino, registered themselves as aliens in the
Bureau of Immigration, and had reported yearly to said
Bureau, thru the Municipal Treasurer of San Fernando,
La Union, up to 1949; that in 1948 he filed a sworn a
petition for naturalization (Case No. 6) before the Court
of First Instance of La Union, alleging that he is a
Chinese citizen, that he was born in Amoy, China, on
March 13, 1915, and that he emigrated to the Philippines
in 1917; and that he filed war damage claim No. 997394
with the United States Philippine War Damage
Commission, but it was rejected because he is a Chinese.

23s G.R. No. L-25945, 31October1967


236 G.R. No. L-25945, 31 October 1967
23 7 Underscoring supplied
63

If it is true that respondent has always considered


himself a Filipino citizen, why did he file a petition for
naturalization declaring under oath that he is a Chinese
citizen? If, as respondent claims, he was born in San
Fernando, La Union on March 24, 1917, why did he
declare under oath in his petition for naturalization that
he was born in Amoy, China, on March 13, 1915, and
that it was in 1917 when he came to Manila? Again, if he
really believed that he is a Filipino, why did he register
himself in the Bureau of Immigration as an alien in 1941
and again in 1946?7 Respondent explained that he had to
register as a Chinese because "during the Japanese time .
. . the Japanese have a feeling of associating with the
Chinese in town and they hated Filipinos for the reason
that there were guerrillas so to evade my identity in
helping the guerrillas I have to register as Chinese. "8 But
this explanation is flimsy, considering that in 1941,
before the Japanese occupation, his name already
appeared in the Chinese registry of aliens in the
Philippines, and in 1946 he registered himself again as
alien and reported yearly with the Bureau of Immigration
until 1949. There were no more Japanese in the
Philippines in 1946. By his own acts and statements
respondent has given reason for the conclusion that he
claimed and appeared to be Chinese when the sailing is
rough for the Filipinos in time of war, and then claim and
appear as Filipino when every!hing is calm in time of
peace. And considering further that, as testified to by
respondent himself, five out of his eight children are
enrolled at the local Chinese High School, respondent
can not claim with sincerity, that he is more a Filipino, as
he claims to be, than a Chinese.

Respondent also tried to show that he is a Filipino


citizen because he is the legitimate son of Leoncio Chan,
a Filipino, and Teofila Tangot alias Tan Hit a Chinese
woman. Assuming that Leoncio Chan is a Filipino, the
evidence in the record does not establish that respondent
is the legitimate son of Leoncio Chan. According to the
evidence of respondent, he was born on March 24, 1917
and his parents were legally married four years later, or
in 1921. The respondent, therefore, was born out of
wedlock. Being born out of wedlock, the subsequent
marriage of his parents did not ipso facto legitimize him,
because Article 121 of the old Civil Code, "Children
shall be considered legitimated by a subsequent marriage
only when they have been acknowledged by the parents
64

before or after the celebration thereof." Here the record is


devoid of any evidence to show that respondent was
acknowledged by his 12arents before or after their
marriage. And although there is an insinuation contained
in the joint affivadit of Pio Ancheta and Leon Lacsamana
(Exhibit 13) attesting to the fact that respondent had
enjoyed the uninterrupted status of a natural child of his
parents (Article 135, old Civil Code, now Article 383,
new Civil Code), such statement does not legally
establish his status as an acknowledged natural child.
This is so not only because the affidavit containing the
statement is inadmissible under the hearsay rule, 10 but
also because granting that what is stated in the affidavit is
true, it is imperative upon respondent to institute an
action for compulsory recognition so that upon being
recognized his legitimation would take place. This,
respondent has failed to do up to the present, hence he
cannot claim Filipino citizenship for being the legitimate
son of a Filipino father. 238

119.3. Petitioner does not claim that Respondent


is a citizen of another country. He presented no evidence
whatsoever to prove that Respondent was born a
foreigner or born of foreigners. Unlike in Paa, there is no
proof that Respondent's biological parents registered
themselves as aliens. Precisely, Respondent is a
foundling whose parents are unknown.

119.4. Besides, the Supreme Court's dictum in


Paa on the supposed absence of any presumption of
Philippine citizenship must be deemed to have been
superseded and overturned by the more recent decisions
in Tecson vs. COMELEC (2003), Japzon vs. COMELEC
(2009), Fernandez vs. HRET (2009) and Mitra vs.
COMELEC (2010), where the Supreme Court ruled that
the petitioner questioning the qualifications of the
candidate has the "burden" of proving the grounds for
disqualification.

120. Unlike in Paa, moreover, the Private Respondent's


citizenship in this instant case is not challenged because she
represented herself to be an alien. Instead, it is being
challenged becaltse she is a foundling, and according to
Petitioner, cannot be a Filipino citizen. Petitioner ignores the
fact that foundlings are in fact considered by the Philippine
government as Philippine citizens, with the DFA issuing
239 See Exhibit "23"
65

passports to them by mere showing of their foundling


certificates. Moreover, Private Respondent, a known foundling,
was effectively recognized by the sovereign power as a natural-
born Filipino citizen when they overwhelmingly elected her to
the Senate in 2013. These acts, taken together, give rise to a
presumption that Sen. Poe is certainly a Filipino, and in fact, a
natural-born Filipino.

i. Official acts in recognition


of Sen. Poe's natural-born
Philippine citizenship

120.1. On 18 July 2006, the B.I. issued an


Order granting Sen. Poe's petition for reacquisition of
natural born citizenship under R.A. No. 9225, which
states that Sen. Poe is "presumed to be a natural born
Philippine citizen." R.A. No. 9225 applies only to natural-
born Filipinos.

120.2. On 31 July 2006, the B.I. issued


Identification Certificate No. 06-10918239 which certifies
that Sen. Poe was "recognized as a citizen of the
Philippines as per (sic) pursuant to the Citizenship
Retention and Re-acquisition Act of 2003 (RA 9225) x x
x."

120.3. On 6 October 2010, the President of the


Philippines appointed Sen. Poe the Chairperson of the
MTRCB;2 40 a position which can only be occupied by a
"natural-born" Philippine citizen.241

120.4. Sen. Poe's coc242 for the 2013 Senatorial


elections was accepted by the COMELEC and no
disqualification case was filed against her. She stated in
her COC that she is a natural-born Filipino. Thereafter,
she was overwhelmingly elected by the Filipino people.

120.5. On 17 November 2015, the SET rendered


its now assailed Decision, which also recognized, even
declared, Sen. Poe a natural-born citizen of the
Philippines.243

239 See Exhibit "23"


240 See Exhibit "26"
241 Section 2, Presidential Decree No. 1986
242 See Exhibit "32"
24 3 Id., at p. 26
66

ii. Official acts in recognition


of Sen. Poe's Philippine
citizenship

120.6. On 13 May 1974, the San Juan Court


issued a Decision244 granting the Spouses Poe's petition
to adopt Sen. Poe. Sen. Poe does not argue that her
citizenship is derived from her Filipino adoptive parents;
rather it is her position that the adoption affirms that she
was a Filipino in the first place. The San Juan Court
could not have applied Philippine adoption law (which
relates to "family rights and duties" and to "status" of
persons), if it did not in the first place, consider Sen. Poe
to be a Filipino who would be "bound" by such laws.

120.7. On 13 December 1986, the COMELEC


issued to Sen. Poe a Voter's Identification Card 24 5 for
Precinct No. 196, Greenhills, San Juan, Metro Manila.
On 31 August 2006, the COMELEC registered Sen. Poe
as voter. Under the 1973246 and 1987247 Constitutions,
the right of suffrage may be exercised only by those who
are "citizens of the Philippines."

120.8. The Ministry/Department of Foreign


Affairs of the Philippines issued passports to Sen. Poe on
4 April 1988, 5 April 1993, 19 May 1998, 13 October
2009, and 18 March 2014.248 A diplomatic passport249
was even issued in her favor on 19 December 2013.
Passports typically state that the bearer is "a citizen of
the Philippines." Under R.A. No. 8239, the Philippine
government issues a passport only if it is "satisfied that
the applicant is a Filipino citizen. "250 A passport is a
document certifying the citizenship of the holder,251 and
under R.A. No. 8293, is not issued in cases of a doubtful
claim to Philippine citizenship.252

244 See Exhibit "2"


245 See Exhibit "3"
2 46 Section 1, Article VI of the 1973 Constitution

241 Section 1, Article V of the 1987 Constitution


24a See Annexes "H" and "I-series"; Exhibits "4", "4-A", "4-B", "25" and"34"

2 49 See Annexes "H" and "I-series"; Exhibit "33"


250 See Sections 3(d) in relation to Section 5 of R.A. No. 8293 and Maquiling vs.
Commission on Elections, G.R. No. 195649, 2 July 2013
251 RONALDO P. LEDESMA, PHILIPPiNE IMMIGRATION ACT (COMMONWEALTH ACT NO. 613)
COMMENTS AND CASES p. 17 (1994), citing sec. 136 if the 1983 Foreign Service Code
252 See Sec. 3 (e), R.A. 8293. Under Sec. 13 (e) of the same law, a "travel document", in
lieu of a passport, may be issued to a stateless person who is likewise a permanent
resident, or a refugee granted such status or asylum in the Philippines.
67

120.9. The presumption that the San Juan


Court, the D.F.A., the B.I., the President, and the
COMELEC "regularly performed" their respective "official"
duties in issuing the above-mentioned documents in Sen.
Poe's favor, logically carries with it the presumption that
she qualified for their issuance. In other words, the
application of the presumption of regularity in the
issuance of the aforementioned documents, and the
regularity in Sen. Poe's election (as Senator) and
appointment (as MTRCB Chairperson) necessarily entails
the presumption that she is a "natural-born" citizen of
the Philippines. Therefore, it remained incumbent upon
Petitioner to destroy the evidentiary value of these
presumptions by categorically proving that Sen. Poe is
not a natural-born Filipino because her parents were
aliens.

121. Another presumption in the Rules of Court, coupled


with the unrefuted circumstantial evidence of her birth, will
lead to the conclusion that Sen. Poe is born of Filipino
parents, and is therefore natural-born. Contrary to Petitioner's
claims, the presumption that she is born of Filipino parents is
supported not only by international law principles, but
presumptions found in the Rules of Court, as well as ordinary
deductive reasoning applied to unrebutted circumstantial
evidence.

121.1. Section 3(y), Rule 131 of the Rules of


Court states:

Section 3. Disputable presumptions. - The following


presumptions are satisfactory if uncontradicted, but may
be contradicted and overcome by other evidence:

x x x

(y) That things have happened according to the ordinary


course of nature and ordinary nature habits of life; 253

The "ordinary course of nature" and the "ordinary habits


of life," taken together with the admitted facts, which
also constitute unrebutted circumstantial evidence in
Sen. Poe's favor, lead to the conclusion that Sen. Poe's
biological parents were most likely Filipinos, and not
foreigners.
253 Underscoring supplied
68

121.2. Sen. Poe is only 5 ft. 2 inches tall.254


She has brown almond-shaped eyes, a low nasal bridge,
straight black hair and an oval-shaped face. 2 55 Her
height and facial features are consistent with physical
traits ordinarily associated with Filipinos.

121.3. Sen. Poe was found, as a new-born baby,


in Iloilo City which is located in the Philippines. Her
biological parents were therefore likely to have been
residents of Iloilo City. In 1968, as at any time, an
overwhelming majority of the population of Iloilo City
were Filipinos.

121. 4. Sen. Poe was abandoned in a Roman


Catholic Church.256 A great majority of Filipinos are
Roman Catholics, and only a Roman Catholic would be
expected to entrust his/her new-born child to a church.
Even in 1968, the Philippines was the only
predominantly Roman Catholic country in Asia. In the
ordinary course of things, only Filipinos with Roman
Catholic faith would leave Private Respondent in a
church in Iloilo City.

121.5. Sen. Poe's abandonment as a new-born


child is also far more consistent with her biological
parents being Filipinos. New-born children are
abandoned usually because their parents are poor and
cannot afford to take care of them. On the other hand,
foreigners impoverished in their own country would not
likely have the means to travel and find themselves
impoverished in the Philippines. Therefore, abandoned
children found in the Philippines are more likely to have
been born of poor Filipino parents, as opposed to
foreigners.

121.6. By insisting that Private Respondent has


the burden of proving that her parents are Filipinos,
Petitioner essentially wanted the SET, and now this
Honorable Court, to accept the most far-fetched and
implausible scenarios surrounding Private Respondent's
birth. The following exchange between the Hon. Senator
Legarda and Petitioner's counsel is telling:

254 See Exhibit "4", p. 1


255 Jd.
2s6 Id.
69

SEN. LEGARDA: And do you have proof that in 1968 or


at any other time, the population of Iloilo, the city
where she was found in the Philippines, were
predominantly foreigners?
ATTY. LUNA: No data, Your Honor.
xxx xxx

SEN. LEGARDA: Remember the question is


predominantly, meaning majority of the people in
Iloilo at that time were foreigners.
ATTY. LUNA: What I'm sure about is that majority are
Filipinos, Your Honor.
SEN. LEGARDA: I would just like to ask you, could you
possibly give me a reason why pregnant foreigner
who is about to give birth would actually leave her
country of origin to give birth in the Philippines?
Would it perhaps not be more reasonable to
assume that the pregnant foreigner would give
birth in her own country for her family is there and
a state support?
ATTY. LUNA: Maybe many reasons, Your Honor, and
your guess may be as good as mine because we're
just basing all of these on probabilities. So we
cannot certainly say what was the reason for that
decision on the part of the mother to abandon a
poor child.
SEN. LEGARDA: In 1968, did Iloilo already have an
international airport?
ATTY. LUNA: I'm not sure, Your Honor.
xxx xxx
SEN. LEGARDA: And a pregnant foreigner in 1968
would have found it easier to give birth in Manila
perhaps where the international airport was. But
what boggles the mine is why would she want to
give birth in Iloilo? Would you have a reason for
that?
ATTY. LUNA: It would be very difficult for us to
speculate, your Honor, and we are not sure even if
her mother is a foreigner because as you have
said, it's also possible that her mother is a Filipino.
70

SEN. LEGARDA: Would you agree with me that most of


the time, parents, people who abandon children is
due to poverty?
ATTY. LUNA: Correct, Your Honor.
SEN. LEGARDA: Could you kindly tell me how in 1968
an impoverished foreigner would leave the
country, travel to the Philippines, and travel all the
way to Philippines to give birth and abandon her
baby?
ATTY. LUNA: We cannot speculate on that, Your
Honor, because that's clearly without foundation
considering that the question is anchored on
probabilities. We are not sure of the particular
circumstances that led that mother to abandon her
257
poor child on September 3, 1968.

121.7. In the absence of evidence, the law does


not require the SET, or this Honorable Court for that
matter, to accept the improbable, the unlikely and the
absurd. As discussed, "unless overcome by evidence,"
the "ordinary" must be presumed. In this case, the
"ordinary course of nature" and the "ordinary habits of
life" tell us that a new-born baby with brown eyes, black
hair and an oval-shaped face, found in a Parish Church
in Iloilo City hours after her birth, was born of Filipinos.
Occam's Razor teaches us that the sim12lest answer is
often correct.

121.8. Would the presumption of natural born


citizenship be rendered absurd if the foundling had blond
curly hair, blue eyes and freckles? What if the foundling
had ebony skin and dark curly hair? The answer is "NO."

121.9. A natural-born Filipino does not have to


look like a typical Filipino. He or she may be of
Caucasian, Indian, African or other foreign descent, but
still be a natural-born Filipino citizen. The Constitution
simply provides that a person be born of parents who are
citizens of the Philippines. This means that a foundling's
parents may be naturalized Filipinos, but with
Caucasian, Indian, African or other foreign descent. It is
wrong to presume that natural-born Filipinos must
always be of the Malay race, as there are many Filipinos

2s1 TSN 21 September 2015, pp. 28 to 30


71

who are mestizos, Chinoys and others of mixed stock.


Therefore, a foundling may look like a foreigner, but sti~l
be a natural-born Filipino. That said, this discourse is
more academic than decisive, because, as discussed,
Sen. Poe look~ entirely Filipina. This obvious fact only
strengthens the presumption that she was born of
Filipinos.

122. The above-mentioned circumstances of Sen. Poe's


discovery as an abandoned new-born baby in a Roman
Catholic Church in Iloilo in 1968, and her physical features
which resemble a typical Filipina, must also be considered as
circumstantial evidence that she was indeed born of Filipino
parents. Circumstantial evidence, which may suffice for
conviction even in criminal proceedings requiring the highest
degree of proof, is certainly admissible in the proceeding a quo,
as a petition for quo warranto is classified as a special civil
action requiring only preponderance of evidence to prove that
Sen. Poe is born of Filipino parents, and is therefore a natural-
born Filipino citizen.

122. 1. The concept of "preponderance of


evidence" refers to evidence which is of greater weight, or
more convincing, that which is offered in opposition to it;
at bottom, it means probability of truth. 2 5 8 In determining
where the preponderance or superior weight of evidence
on the issues involved lies, the court may consider all the
facts and circumstances of the case, 2s9 including the
probability or improbability of the inferences that may be
derived from the admitted facts.

122.2. Thus, the SET was correct in considering


the uncontroverted circumstances of Private
Respondent's birth, discovery as a new-born infant, and
physical features, as sufficient relevant evidence
adequately justifying a conclusion that she was most
likely born of Filipino parents. A rule requiring conclusive
identification of blood ties to a Filipino parent is neither
supported by law (as the definition of natural-born
citizenship under the Constitution does not even require
actual proof of blood relationship) nor by jurisprudence
(as the cases of Board of Commissioners vs. Dela Rosa
and Tecson show, wherein a claim of citizenship was
upheld based on a presumption).

25
8 Dantis v. Manghinang, Jr., G.R. No. 191696, 10 April 2013
259 Sec. l, Rule 133; Rules of Court
72

122.3. Section 4 of R.ule 133, on the sufficiency


of circumstantial evidence to sustain a conviction in a
criminal case, may be applied by analogy. Under said
rule, circumstantial evidence is sufficient if: (a) there is
more than one circumstance; (b) the facts from which the
inferences are derived are proven; and (c) the
combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. In this
case, there are several circumstances which lead to the
inference that Sen. Poe is likely born of Filipino parents,
to wit: (1) she was found as a new-born baby in Iloilo City
in 1968; (2) Iloilo is, then as now, predominantly
populated by Filipino citizens; (3) there is no
international airport or seaport in Iloilo City in 1968, and
no evidence to show that it is considered a main port of
entry for aliens; (4) Sen. Poe was reportedly abandoned in
a Roman Catholic Church, which is the religion practiced
by a majority of the Filipino population in 1968, as in
present times; and (5) Sen. Poe's physical features are
consistent with those normally associated with Filipino
citizens. These "circumstances" are not disputed, and
indeed admitted, by Petitioner. The combination of these
circumstances is sufficient to produce a "moral certainty"
"or conviction in an unprejudiced mind" that Sen. Poe is
indeed born of Filipino parents who abandoned her as a
new-born infant in a Roman Catholic Church in Iloilo
City in 1968.

122.4. To require Sen. Poe to prove with


"absolute certainty" her "blood tie" to a Filipino parent is
to require her to meet a quantum of evidence even
greater than that required in criminal proceedings. Even
criminal proceedings, which require proof beyond
reasonable doubt, do not require direct proof, much less
proof producing "absolute certainty" of guilt. The highest
quantum of proof under the rules on evidence require
merely "moral certainty" that a person has more likely
than not committed the crime he is charged with. This
will be especially egregious in this case, where the
Petitioner in a quo warranto proceeding did not even
preseht evidence at all to prove his claim that Private
Respondent is disqualified, and cannot, by any stretch of
the imagination, be deemed to have presented
"preponderant evidence" that Sen. Poe is not a natural-
born Filipino citizen.
73

123. It bears emphasizing that, as held by the SET, the


only fact established in the proceeding a quo is that Sen. Poe's
parents are unknown. Again, the fact that her parents are
unknown does not mean that they are not Filipino citizens. As
correctly held by the SET:

To our mind, the fact that Petitioner was able to show


that Respondent is a foundling did not necessarily carry with it
the proof that Respondent's parents were/are not citizens of the
Philippines. On the contrary, it did not exclude the possibility
that her parents are citizens of the Philippines. As admitted by
Petitioner's counsel during the Oral Argument:

SEN. LEGARDA. So the unknown father could


be a foreigner but the unknown father could also
be a Filipino. Is that correct?

ATTY. LUNA. Yes, Your Honor.

x x x
SEN. LEGARDA. So in the end there's always a
possibility that one or both parents were actually
Filipinos.

ATTY. LUNA. That's possible, Your Honor. 260

Such possibility is strengthened by Respondent's


physical features as well as the circumstances surrounding
Respondent's abandonment and discovery. Respondent is only
5 ft. 2 inches tall. She has brown eyes and dark brown (black)
hair, low nasal bridge and an oval-shaped face, which are
consistent with the physical features of the ordinary Filipino.
She was found abandoned in a Roman Catholic Church in Jaro,
Iloilo, the population of which was predominantly Filipinos.
These undisputed facts, are in accord with "things that
happened according to the ordinary course of nature and
ordinary habits of life" that give rise to a disputable
presumption that her parents are Filipinos. Such disputable
presumption is satisfactory if uncontradicted. Thus, as elicited
by Tribunal Member Senator Loren B. Legarda during the Oral
Argument:

SEN. LEGARDA: So perhaps Senator Poe has a


typical height of a Filipino, just probably. I am not
even talking about legalities here, just possibilities.

260 Underscoring supplied


74

ATTY. LUNA: Usually, southeast Asian people


have that particular profile

x x x

SEN. LEGARDA: ... You've seen the hair of


Senator Poe, it is black, and she has typical
Filipino features, and she was found in a Roman
Catholic Church. Are we not 80% Catholics in this
country, more or less?

ATIY. LUNA: I think so, Your Honor.

SEN. LEGARDA: And do you have proof that in


1968 or at any other time, the population of Iloilo,
the city where she was found in the Philippines,
were predominantly foreigners?

x x x

AITY. LUNA: What I'm sure about is that


majority are Filipinos, Your Honor.

SEN. LEGARDA: I would just like to ask you,


could you possibly give me a reason why pregnant
foreigner who is about to give birth would actually
leave her country of origin to give birth in the
Philippines? Would it perhaps not be more
reasonable to assume that the pregnant foreigner
would give birth in her own country for her family
is there and a state support?

ATIY. LUNA: Maybe many reasons, Your


Honor, and your guess may be as good as mine
because we're just basing all of these on
probabilities. So we cannot certainly say what
was the reason for that decision on the part of the
mother to abandon a poor child.

124. The foregoing shows why it is not an error, much


less grave abuse of discretion, for the SET to hold that
Petitioner was not able to discharge his burden to prove the
very fact of Private Respondent's disqualification. It cannot be
overemphasized that a burden of proof is not and cannot be
discharged by the absence of evidence; to hold otherwise is to
support the absurd logic that the existence of a thing is proved
by the very lack of evidence that it exists. Not knowing is
75

different from not being. A person who is not sure that she is
a natural-born Filipino may in fact be a natural-born Filipino.

B.2. The SET correctly concluded that a


foundling like Sen. Poe is not
"excluded" from the enumeration of
Philippine citizens under Section 1,
Article IV of the 1935 Constitution.
The letter and spirit of the 1935
Constitution teach us that foundlings
are natural-born Filipinos.
---------------------------------------------------------
125. Section 1, Article IV of the 1935 Constitution
enumerates those who are considered Philippine citizens:

(1) Those who are citizens of the Philippine Islands at the


time of the adoption 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 office in 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. 261

126. Petitioner insists on the application of the Latin


maxim "expressio unius est exclusio alterius" to conclude that
a foundling is supposedly not included in the enumeration
above, and hence not a Filipino citizen. This was adopted in
the dissenting opinion of Honorable Associate Justice Teresita
Leonardo-De Castro, and by implication, the dissenting
opinions of Justices Carpio and Brion as well, in insisting that
a foundling cannot be considered a Filipino citizen because of
the absence of a "blood tie" to a known Filipino parent. With
all due respect, this position is baseless and illogical and
contrary to our collective desire to have a just and humane
society as expressed in the Constitution's preamble.

127. Sen. Poe concededly does not fall under sub-


paragraphs (1), (2) and (5). Therefore, she does not need to be
"excluded" from these three (3) categories. However, the mere
fact that she is a foundling does not, by any stretch of logic,

261 Underscoring supplied


76

categorically "exclude" Sen. Poe from sub-paragraphs (3) and


(4).

128. Philippine citizens under paragraphs (3) and (4) are


simply those whose parents are Filipinos. There is nothing in
the provision which requires that the identity of such parents
be proven with absolute certainty, or even that such identity
be proven as a fact. 262

129. The biological parents of a foundling are simply


unknown, and therefore they may in fact be Filipinos. Thus,
as discussed in paragraphs 121 (and sub-paragraphs), Sen.
Poe will most probably fall under any of these two (2) types of
Filipinos. Thus, a foundling is NOT necessarily EXCLUDED
from these two categories of citizens. Therefore, there is no
occasion for the application the latin maxim "exclusio unius est
exclusio alteri.us." Simple logic and common sense (neither of
which Petitioner wanted to use) are enough arrive at this
conclusion.

130. Considering that foundlings are not categorically


excluded from the letter of pars. (3) and (4) of Section 1, Article
IV of the 1935 Constitution, and there is ambiguity in the
application of this Article to foundlings, the issue becomes, in
essence, one of constitutional construction. Contrary to the
Petitioner's position, a verba legis approach will not solve the
problem, as the "express terms" of the Constitution, when
"applied", will not lead to the conclusion that foundlings are
not Filipino citizens.

131. Since the issue is fundamentally one of


construction, it is proper to apply acceptable methods of
constitutional construction, among them, ascertainment of
intent behind a particular provision. In this regard, the
deliberations of the framers of the organic law must be
consulted in order to discern their intent with respect to the
citizenship of foundlings.

262 This is true not only with respect to foundlings, but even with respect to legitimate
children, whose filiation (or biological tie) to their father is merely presumed by law. In
other words, a legitimate child may in fact be not biologically related to his or her
Filipino father, but the law will still consider him or her a Filipino citizen, because of the
quasi-conclusive presumption that he or she is born of the husband of his or her
mother. There are therefore situations wherein a person is presumed by law to be a
Filipino citizen, notwithstanding the absence of any actual "blood tie" to a Filipino
parent, as in the case of a child conceived or born within a valid marriage between a
Filipino father and an alien mother, but is actually the product of artificial insemination
with a donor, or of adulterous relations.
77

131. 1. In Nitafan vs. Commissioner, 263 this


Honorable Court ruled:

The ascertainment of that intent is but in keeping with


the fundamental principle of constitutional construction
that the intent of the framers of the organic law and of the
people adopting it should be given effect. The primary task
in constitutional construction is to ascertain and thereafter
assure the realization of the purpose of the framers and of
the people in the adoption of the Constitution. It may also
be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation
offered by the framers. 264

131.2. In In re Aquino, Jr. vs. Enrile,26s the High


Court stated that "it is generally held that, in construing
constitutional provisions which are ambiguous or of
doubtful meaning, the courts may consider the debates
in the constitutional convention as throwing light on the
intent of the framers of the Constitution."

132. In view of the silence of the Constitutional provision,


the SET correctly resorted to an extraneous recognized aid in
construction, i.e., the deliberations of the 1934 Constitutional
Convention,2 66 in order to discover "the true intent of the
framers of the 1935 Constitution."267
I
133. The pertinent deliberations of the 1934
Constitutional Convention, on what eventually became Article
IV of the 1935 Constitution, show that the intent of the framers
was not to exclude. foundlings from the term "citizens of the
Philippines." According to them, "(b)y international law the
principle that children or people born in a country of unknown
parents are citizens in this nation is recognized, and it was not
I

necessary to include a provision on the subject exhaustively."


There was certainly no intent to consider foundlings as
"stateless" persons or foreigners. Thus:

263 G.R. No. 7870, 23 July 1980


26 4 Underscoring supplied
2
65 G.R. No. L-35536, 17 September 1974, citing Pollock vs. Farmer's Loan & T. Co.
(1895) 157 U.S. 429, 39 L. ed. 759; See also Legal Tender cases (1884) 110 U.S. 421, 28
L. ed. 204, 70 A.L.R. 30). The Supreme Court also examined the deliberations of the
Constitutional Commission/ Convention in construing applicable provisions of the
Constitution in the following cases: Feliciano vs. Commission on Audit, G.R. No.
147402, 14 January 2004; Province of North Cotabato vs. Government of the Republic
of the Philippines Peace Panel on Ancestral Domain, G.R. Nos. 183591, etc., 14 October
2008; Gamboa vs. Teves, G.R. No. 176579, 28 June 2011.
266 Exhibit "32" below
267 SET Decision, p. 22
78

Soanish I English Translation


SR. RAFOLS: Para una enmienda. For an amendment. I propose that
Propongo que despues del inciso 2 after subsection 2, the following is
se inserte lo siguiente: "Los hijos inserted: "The natural children of a
naturales de un padre extranjero y foreign father and a Filipino mother
de una madre filipina no not recognized by the father.
reconocidos por aquel.
xxx
xxx

El Presidente. La Mesa desea [We] would like to request a


pedire una aclaracion del clarification from the proponent of
proponente de la enmienda. Se the amendment. The gentleman
refiere Su Senoria a hijos naturales refers to natural children or to any
or a toda clase de hijos ilegitimos? kind of illegitimate children?

Sr. Rafols. A toda clase de hijos To all kinds of illegitimate children.


ilegitimos. Tambien se incluye a It also includes natural children of
los hijos naturales de padres unknown parentage, natural or
desconocidos, los hijos naturales or illegitimate children of unknown
ilegitimos, de padres desconocidos. parents.

Sr. Montinola. Para una For clarification. The gentleman


aclaracion. Alli se dice "de padres said "of unknown parents." Current
desconocidos." Los Codigos codes consider them Filipino, that
actuales consideran como filipino, is, I refer to the Spanish Code
es decir, me refiero al codigo wherein all children of unknown
espanol quien considera como parentage born in Spanish territory
espanoles a todos los hijos de are considered Spaniards, because
padres desconocidos nacidos en the presumption is that a child of
territorio espanol, porque la unknown parentage is the son of a
presuncion es que el hijo de padres Spaniard. This may be applied in
desconocidos es hijo de un espanol, the Philippines in that a child of
y de esa manera se podra aplicar unknown parentage born in the
en Filipinas de que un hijo Philippines is deemed to be
desconocido aqui y nacido en Filipino, and there is no need ...
Filipinas se considerara que es hijo
filipino y no hay necesidad ...

Sr. Rafols. Hay necesidad, porque There is a need, because we are


estamos relatando las condiciones relating the conditions that are
de los que van a ser filipinos. [required] to be Filipino.

Sr. Montinola. Pero esa es la But that is the interpretation of the


interpretacion de la ley, ahora, de law, therefore, there is no [more]
manera que no hay necesidad de la need for the amendment.
enmienda.

Sr. Rafols. La enmienda debe The amendment should read thus:


leerse de esta manera: "Los hijos "Natural or illegitimate of a foreign
naturales o ilegitimos de un padre father and a Filipino mother
extranjero y de una madre filipina recognized by one, or the children
reconocidos por aquel o los hijos de of unknown parentage."
padres desconocidos.
79

Sr. Briones. Para una enmienda The amendment [should] mean


con el fin de significar los hijos children born in the Philippines of
nacidos en Filipinas de padres unknown parentage.
desconocidos.

Sr. Rafols. Es que el hijo de una The son of a Filipina to a foreigner,


filipina con un extranjero, aunque although this [person] does not
este no reconozca al hijo, no es recognize the child, is not
desconocido. unknown.

I
El Presidente. Acepta Su Senoria o Does the gentleman accept the
no la enmienda? amendment or not?

Sr. Rafols. No acepto la enmienda, I do not accept the amendment


porque la enmienda excluiria a los because the amendment would
hijos de una filipina con un exclude the children of a Filipina
extranjero que este no reconoce. with a foreigner who does not
No son desconocidos y yo creo que recognize the child. Their parentage
esos hijos de madre filipina con is not unknown and I think those
extranjero y el padre no reconoce, children of overseas Filipino mother
deben ser tambien considerados and father [whom the latter] does
como filipinos. not recognize, should also be
considered as Filipinos.

El President. La cuestion en orden The question in order is the


es la enmienda a la enmienda del amendment to the amendment
Delegado por Cebu, Sr. Briones. from the Gentlemen from Cebu, Mr.
Briones.
I

Mr. Bulson. Mr. President, don't


you think it would be better to Mr. President, don't you think it
leave this matter in the hands of would be better to leave this matter
the Legislature? in the hands of the Legislature?

Sr. Roxas. Senor Presidente, mi Mr. President, my humble opinion


opinion humilde es que estos son is that these cases are few and far
cases muy pequenos y contados, in between, that the constitution
para que la constitucion necesite need [not] refer to them. J2y
referirse a ellos. Por leyes international law the principle that
internacionales se reconoce el children or people born in a
principio de que los hijos o las country of un~nown parents are
personas nacidas en un pais de citizens in this nation is recognized,
padres desconocidos son and it is not necessary to include a
ciudadanos de esa nacion , y no es provision on the subject
26
necesario incluir una disposicion exhaustively. 9
taxativa sobre el particular. 268

134. Under which of the five (5) categories of Philippine


citizens enumerated in Section 1, Article IV of the 1935
Constitution does a foundling belong? The exchanges between

268 Exhibit "32", pp. 186 to 187


269 Underscoring supplied
80

the delegates of the 1934 Constitutional Convention quoted


above show that giundlin@ were jptended to be jys sanguinis
Philippine citizens, that is - those born of "a futhet or mother
who is a ,itizen of the Philippines."
134.1. The citizenship of a "foundling" was
discussed specifically in the course of the debates of the
framers on jus sangu.inis Philippine citizens who, at the
titne, fell under paragraph (2) of the then proposed draft
of the Article on Citizenship, thus:210
(2) All persons born in the Philippines or in foreign
territory of a father or mother who is a citizen of the
Philippines;
The framers of the 1935 Constitution did not discuss the ----
citizenship of a foundling in the context of the other types
of Filipinos under Section l, Article IV of the 1935
Constitution, much less considered them in the context of
"naturalized" Filipinos.
134.2. Specifically, Delegate Rafols wanted to
include in the enumeration of Philippine citizens,
immediately after paragraph (2) quoted above, the
following sub-section:
The natural children of a foreign father and a Filipino
mother not recognized by the father. 271

134.3. Delegate Rafols explained that the phrase


"natural children" was meant to include "natural children
of unknown parentage."272 Delegate Montinola objected
to the amendment, citing Spanish Law which applies a
"presumption" that "a child of unknown parentage is the
son of a Spaniard." He then suggested that this apply to
the Philippines. In other words, Delegate Montinola
suggested that a foundling be presumed born of
Filipinos. As discussed, Delegate Roxas essentially
.greed with Delegate Montinola when the former
expressed the view that "(b)y international law the
principle that children or people born in a country of
unknown parents are citizens in this nation."2 7 3 However,
Delegate Roxas added that since the cases of foundlings

210 Exhibit "32", p. 135


271
Exhibit "32", p. 186 (English translation); Underscoring supplied
212 Underscoring supplied
213 Underscoring supplied
81

are "few and far in between", and international law


already recognizes a rule with respect to their citizenship,
there is no more need to include a provision on the
subject exhaustively. No one expressed any
disagreement, and this was the final statement on the
matter of "foundlings" before Delegate Rafols' amendment
was put to a vote.274 This explains why foundlings were
not mentioned in Article IV of the 1935 Constitution.

134. 4. Paragraph (4), Section 1, Article IV of the


1935 Constitution considers as Philippine citizens "those
whose mothers are citizens of the Philippines, and upon
reaching the age of majority, elect Philippine citizenship."
Mr. Aruego's contemporary account of the debates on
this sub-paragraph confirms that the citizenship of
foundlings was discussed in the context of jus sanguinis
Philippine citizens, thus:

During the debates on this provision, Delegate


Rafols presented an amendment to include as Filipino
citizens the illegitimate children with a foreign father of a
mother who was a citizen of the Philippines, and also
foundlings; but this amendment was defeated primarily
because the Convention believed that the cases, being too
few to warrant the inclusion of a provision in the
Constitution to apply to them, should be governed by
statutory legislation. Moreover, it was believed that the
rules of international law were already clear to the effect
that illegitimate children followed the citizenship of the
mother, and that foundlings followed the nationality of the
place where they were found, thereby making unnecessary
the inclusion in the Constitution of the proposed
amendment. 21s

134.5. Based on the foregoing, when the framers


of the 1 935 Constitution declared that "by international
law," a foundling is a "citizen of this nation," the type of
74
2 It must be noted that the membership of the 1934 Constitutional Convention was
dominated by lawyers. Seventy percent (70%), or one hundred forty two (142) out of two
hundred two (202) members of the Constitutional Convention, were lawyers, so that it is
not unreasonable to conclude that when Delegate Roxas expressed the opinion that an
express provision on children of unknown parentage in the Philippines is not necessary,
for "international law" already recognizes them as citizens of the Philippines anyway,
they understood this to be the case, as the 1930 Hague Convention on Certain
Questions Relating to the Conflict of Nationality Laws was already existing at that time.
This is also supported by Delegate Aruego's contemporary account of the proceedings of
the Convention, as cited in par. 150.4 above. (For the composition of the 1934
Constitutional Convention, see, I JOSE M. ARUEGO, THE FR.A.MING OF THE PHILIPPINE
CONSTITUTION 23-46 (1949).
275
I JOSE M. ARUEGO, THE FRAMING OF THE PHILIPPINE CONSTITUTION 209 ( 1949)
82

Philippine citizenship they had in mind was citizenship


by blood. Under Section 1, Article IV of the 1935
Constitution, jus sanguinis Philippine citizens fall under
paragraphs (3) and (4) thereof. Accordingly, the intent of
the framers was to consider a foundling a Philippine
citizen whose "father" and/or "mother" is a citizen of the
Philippines."

135. From the foregoing, the SET correctly ruled that "(i)t
was never the intention of the framers of the 1935
Constitution to exclude foundlings from natural-born
Philippine citizenship," and "(t)here was a recognition that
'children or people born in a country of unknown parents are
citizens of this nation."276

136. Another reason why the maxim "expressio unius est


exclusio alterius" cannot be applied is this Honorable Court's
pronouncement in People vs. Manantan,211 where it discussed
an exception to the application of this Latin maxim, viz:

Where a statute appears on its face to limit the operation


of its provisions to particular persons or things by enumerating
them, but no reason exists why other persons or things not so
enumerated should not have been included, and manifest
injustice will follow by not so including them, the maxim
expresio 4nius est exclusio alterius, should not be invoked. 278

The exception applies here.

136.1. As discussed, it was precisely the intent


of the framers of the 1935 Constitution to include
foundlings in the definition of Filipino citizens
(specifically, pars. (3) and/ or (4), Section 1, Article IV of
the 1935 Constitution), even though they were not
specifically mentioned in the enumeration of "citizens of
the Philippines." In other words, "no reason exists" to
exclude foundlings from that enumeration.

136.2. Moreover, it would be the height of


injustice to deprive a foundling of Philippine citizenship,
or to punish her with statelessness, for a status and
condition that is not of her own doing. It is not her fault

276 Exhibit "32", p. 24


277 G.R. No. L-14129, 31July1962, citing Blevins vs. Mullally, 135 p. 307, 22 Cal. App.
519)
21s Underscoring supplied
83

that she was abandoned at birth. Worse, she can do little


or nothing to change her status as a foundling.

136.3. Based on the foregoing, in determining


the citizenship of a foundling under the 1935
Constitution, one may not invoke the Latin maxim,
expresio unius est exclusio alterius. "

137. The intent to include foundlings in the classes of jus


sanguinis citizens under the 1 935 Constitution was
undisturbed and repeatedly carried over in succeeding
Philippine Constitutions. Thus, the 1973 and 1987
Constitutions also do not contain any specific provision on the
citizenship of foundlings. The framers of later organic laws
obviously also shared the view that no express provision on
foundlings needs to be included in the text of the
Constitutions, as they are adequately protected under
international law and considered Filipino citizens.

138. The framers of the 1935 Constitution relied primarily


on international law in characterizing the citizenship of a
foundling, because international law is particularly
authoritative on the subject of citizenship. Indeed, the legal
foundation of Article IV of the 1935 Constitution on
"Citizenship" is both "municipal law and international law."
Delegate Aruego of the 1934 Constitutional Convention
expressed this view as follows:279

MR. ARUEGO. Mr. President, and gentlemen of the


Convention: If I take this stand this afternoon, it is because I
realize and I know that you realize with me the importance of
this section of the Constitution. In defining citizenship in the
Constitution, we are at the same time defining the persons to
whom should be extended the rights and duties of citizenship.
Our definition of citizenship in the Philippines involves both
municipal law and international law. It involves the obligations
of Filipinos both under municipal law and those obligations
under international law.2so

138.1. Thus, in proposing, defending and


objecting to, amendments to Article IV on "Citizenship,"
various members of the 1934 Constitutional Convention

219 Exhibit "32", at p. 139


2so Underscoring supplied
84

repeatedly cited rules and principles of international law


to support their respective arguments.2a1

138.2. These repeated reference and desire to


conform with international law is but logical, as Article 1
of the 1930 Hague Convention on Certain Questions
Relating to the Conflict of Nationality Laws (" 1930 Hague
Convention"), which Petitioner mistakenly cites as
support in his Petition, in fact provides that while it is for
the State to "determine under its own law who are its
nationals," this will be recognized only "in so far as it is
consistent with international conventions, international
custom, and the principles of law generally recognised
with regard to nationality."

138.3. The SET correctly appreciated that when


Delegate Roxas mentioned the phrase "by international
law" in 1934, he was referring to the 1930 Hague
Convention, as at that time, this "was the only
international law which dealt with the issue of citizenship
of foundlings. It must also be emphasized that, as
understood by the framers at that time, the 1930 Hague
Convention is meant to be a codification of "generally
accepted principles" of international law with respect to

281 Id., at pp. 178 to 180; Underscoring supplied. The excerpts below briefly illustrate
this point:

MR. CINCO. But suppose a child is born to a Filipino mother; the child has got
a father we cannot tell who he is, but it came out that the child appears to be
very white, it does not seem to be born of a Filipino father, what kind of
citizenship has the child?
MR. SANCHEZ. The general rule in international law will apply that (sic) child
follows the citizenship of his mother.
MR. CINCO. So that he is a Filipino citizen?
MR. SANCHEZ. I think so because that is the rule of international law.28 1
x x x
MR. PAREDES. Mr. President and Gentlemen of the Convention: I have asked
for a chance to talk against all these five amendments, because I find them
destructive of the rules of International Law, converting the Filipino
unnecessarily into a treacherous and enabling every foreigner to be a Filipino
just because he is susceptible of naturalization.
x x x . With regard to No. 2., "All persons born in the Philippines or any
foreign country of a mother who is a citizen of the Philippines." I believe that is
the point of discussion, because as to the first point, if he is born of a Filipino
father in or outside the Philippines, he is a Filipino. We know that according to
the rules of International Law the nationality of a son follows the nationality of
the father. x x x.
x x x
The third reason is that in International Law, as I have stated, we have already
adopted this theory, and if we are going to alter the rules of International Law
which in the body of the article or chapter on principles we have declared to
follow, we will be contradicting the well-settled rules of International Law from
time immemorial, that the children will follow the nationality of the father.
(Underscoring supplied)
85

nationality laws. This point will be discussed in more


detail in paragraph 175. 1 to 175. 2 below.

138.4. Indeed the principle that foundlings are


citizens of the country in which they are found, is an
ancient one predating even the earliest of the
international conventions cited in the following
paragraphs. In the 1881 work of publicist282 Francis
Wharton entitled "A Treatise on the Conflicts of Law or
Private International Law", he already noted that "[t}he
nationality of a foundling is that of the place where he
was born. "283

139. Petitioner, citing Justice De Castro, also argues


against the natural-born Filipino citizenship of foundlings,
supposedly because automatically considering them to be
natural-born Filipinos (despite the absence of proof of blood
line to a Filipino parent), would be unfair to those born of
"mothers who are citizens of the Philippines" (whose
citizenship is, initially, inchoate until they elect Philippine
citizenship upon reaching the age of majority).

139 .1. Sen. Poe submits that there is nothing


unfair about this distinction. A foundling does not know
who her parents are. Therefore, she cannot know for
certain that only her mother is a Filipino and that,
therefore, she must elect Philippine citizenship upon
reaching the age of majority. She could very well be born
of a Filipino father; in which case, the rule on election of
Philippine citizenship would not apply to her. On the
other hand, a person who is fully aware that he is born
only of a Filipino mother has no excuse or justification
for not electing Philippine citizenship when she turns 18
years old. Upon such election, that person would, in
fact, be a natural-born Filipino, whereas a foundling
would only be presumed to be a natural-born Philippine
citizen.

139.2. According to Bengson III vs. HRET,2B4 the


1987 Constitution expressly "considers those born of

28 2A publicist is an expert in international law. (Webster's Third new International


Dictionary, 1993 ed., p.1836)
283 Sec. 10, p.37. While at first blush, this principle appears to be jus soli in nature, it
can nevertheless be applied in countries which follow the jus sanguinis doctrine, based
on the commonsensical presumption that a child found in a particular country is likely
to have been born of residents therein, such residents in all likelihood being citizens of
said country.
284 G.R. No. 142840, 7 May 2001
86

Filipino mothers before the effectivity of the 1973


Constitution and who elected Philippine citizenship upon
reaching the majority age as natural-born." This is
reiterated in Ma vs. Fernandez, 285 where the Supreme
Court clarified that under the 1987 Constitution, children
of Filipino mothers and alien fathers born during the
effectivity of the 1935 Constitution are considered
"natural-born citizens upon election of their citizenship."

139. 3. Moreover, the conclusion that a foundling


is placed in a better position than the child of a Filipina
mother is skewed, as it rests on a presumption of loss of
Philippine citizenship on the part of the Filipino mother.
In other words, this position has to first presume: (1) that
the Filipino mother is married to a foreigner (when he
could very well be unwed); and (2) the alien husband's
national law gives his nationality to the Filipino mother
(when it could very well withhold it). Without these
presumptions, the child will be illegitimate, and will
simply follow the Filipino nationality of the mother.

140. All told, since the text of Section 1, Article IV of the


fundamental law does not categorically exclude foundlings,
and the intent of the framers of the 1935 Constitution was to
include foundlings in the concept of jus sanguinis Filipinos,
the SET did not commit any reversible error, much less grave
abuse of discretion, in ruling that Sen. Poe is a Filipino citizen
under the 1935 Constitution and would fall under the
definition of natural-born citizen under the 1987 Constitution,
as she is a "citizen of the Philippines from birth, without
having to perform any act to acquire or perfect her Philippine
citizenship. "286

B.3. The SET correctly ruled that under


applicable international law principles,
a foundling found in the territory of
the Philippines is a natural-born
Filipino citizen.

141. Under Section 2, Article IV of the 1987 Constitution


(and its predecessor, Section 4, Article IV of the 1973
Constitution) two (2) elements must concur to consider
Respondent a "natural-born citizen of the Philippines:"
2ss G.R. No. 183133, 26 July 2010
2s6 SET Decision, p. 27
87

(a) Private Respondent must be a Philippine citizen


from birth; and
(b) She must possess her Philippine citizenship without
having to perform any act to acquire or perfect that
citizenship. 2 s1

142.The 1935 Constitution did not define the term


"natural-born" Filipino. However, Jose Aruego, a member of
the 1934 Constitutional Convention and noted authority on
the 1935 Constitution, explained that it was the
"understanding by the National Assembly under the original
1935 Philippine Constitution that for the purpose of election to
the bicameral Congress which was instituted with the 1939-
1940 amendments requiring the fact of being natural-born for
election thereto, the term natural-born citizen meant anybody
who was not so by naturalization. "288

143. The understanding of the term "natural-born" under


the 1935 Constitution is virtually identical to the definition of
the Supreme Court in in Bengson III vs. HRET and Cruz.289 In
Bengson, the High Court declared that there are only two types
of citizens under the 1987 Constitution: (a) the natural-born
citizen; and (b) the naturalized citizen; a Filipino who is not
naturalized is necessarily natural-born, thus:

The present Constitution, however, now considers those


born of Filipino mothers before the effectivity of the 1973
Constitution and who elected Philippine citizenship upon
reaching the majority age as natural-born. After defining who
are natural-born citizens, Section 2 of Article IV adds a
sentence: "Those who elect Philippine citizenship in accordance
with paragraph (3), Section 1 hereof shall be deemed natural-
born citizens." Consequently, only naturalized Filipinos are
considered not natural-born citizens. It is apparent from the
enumeration of who are citizens under the present Constitution
that there are only two classes of citizens: ( 1) those who are
natural-born and (2) those who are naturalized in accordance
with law. A citizen who is not a naturalized Filipino, i.e., did
not have to undergo the process of naturalization to obtain
290
Philippine citizenship, necessarily is a natural-born Filipino.

287See Bengson III vs. HRET and Cruz, G.R. No. 142840, 7 May 2001 (Although this
case dealt with Section 4, Article III of the 1973 Constitution, this provision is identical to
the first sentence of Section 2, Article IV of the 1987 Constitution)
288 JOSE M. ARUEGO, THE NEW PHILIPPINE CONSTITUTION EXPLAINED 68 ( 1975)
2s9 G.R. No. 142840, 7 May 2001
290 Underscoring supplied
88

144.Based on the intent of the framers of the 1935


Constitution, discussed above, and (1) applicable international
conventions/treaties and (2) generally accepted principles of
international law, a child born in the Philippines in 1968, of
unknown parents, falls squarely within the constitutional
definition of a natural-born Filipino, because:

(a) She has a right to a nationality291 from birth (which


cannot be a nationality other than that of a
Filipino);

(b) She has a right to protected against statelessness


from birth;

(c) She is presumed to be a citizen of the country in


which she is found (i.e., she is presumed Filipino)
and presumed to have been born of citize~s in the
country in which she is found (i.e., her parents are
Filipinos);

(d) She "does not have to perform any act to acquire or


perfect" her Filipino citizenship; and

(e) She is not a naturalized Filipino and is, perforce, a


natural-born citizen of the Philippines.

B.3.a. Under applicable international


human rights instruments signed
and/ or ratified by the Philippines,
it has an affirmative obligation to
consider foundlings as natural-
born citizens of the country.

145. Petitioner insists in altogether disregarding (1)


applicable international human rights instruments ratified by
the Philippines; and (2) generally accepted principles of
international law that Private Respondent invokes, and the
SET relied upon, in determining the citizenship of foundlings,
on the tenuous assertion that "municipal law is supreme over

291In Philippine law, the terms "nationality" and "citizenship" are used interchangeably.
See, among others, Roa vs. Insular Collector of Customs, G.R. No. 7011, 30 October
1912; Board of Immigration Commissiohers vs. Callano, G.R. No. L-24530, 31 October
1968; In re Oh Hek How vs. Republic, G.R. No. L-27429, 27 August 1969; and the
majority decision, and the dissenting opinion of the Honorable Chairman of this
Honorable Tribunal, in Tecson vs. COMELEC, G.R. Nos. 161434, 161634 & 161824, 3
March 2004.
89

international law in the domestic plane."292 This is misleading.


Firstly, Private Respondent never argued for the primacy of
international law over municipal law. Secondly, it is settled
that international law forms part of Philippine law (i.e.,
municipal law) either through transformation or
incorporation. 2 93 Private Respondent's argument is precisely
that, within the framework of the 1935 and the 1987
Constitutions, international conventions ratified by the
Philippines, as well as generally accepted principles of
international law with respect to the citizenship of foundlings,
will lead to no other conclusion than that foundlings must be
presumptively considered natural-born Filipino citizens.

146. A treaty ratified by the Philippines is "transformed


into municipal law that can be applied to domestic
conflicts;"294 a treaty "forms part of the law of the land. "295 A
State must perform its obligations under a treaty, in good
faith, pursuant to the principle of pacta sunt servanda.'296 In
Pharmaceutical and Health Care Association of the Phil. vs.
Duque III, the Supreme Court discussed the doctrine of
"transformation" as applied to "treaties," as follows: 297

Treaties become part of the law of the land


through transformation pursuant to Article VII, Section 21 of
the Constitution which provides that [n]o treaty or international
agreement shall be valid and effective unless concurred in by at
least two-thirds of all the members of the Senate. Thus, treaties
or conventional international law must go through a process
prescribed by the Constitution for it to be transformed into
municipal law that can be applied to domestic conflicts.298

292 Petition, par. 6.21


293 Pharmaceutical and Health Care Association of the Phil. vs. Dugue III, G.R. No.
173034, 9 October 2007
29 4 Id., citing JOAQUIN G. BERNAS, S.J., AN INTRODUCTION TO PuBLIC INTERNATIONAL LAW,
2002 ed., p. 57
295 See Section 21, Article VII of the 1987 Constitution, referred to as the transformation
clause (as it 'transforms' treaties into municipal or domestic law), which states that
"(n)o treaty or international agreement shall be valid and effective unless concurred in
by at least two-thirds of all the Members of the Senate." See Pharmaceutical and Health
Care Association vs. Dugue Ill, G.R. No. 173034, 9 October 2007; Puma
Sportschuhfabriken Rudolf Dassler. K.G. vs. Intermediate Appellate Court, G.R. No.
75067, 26 February 1988; dictum in Abbas vs. QOMELEC, G.R. Nos. 89651 & 89965,
10 November 1989.
296 See La Chemise Lacoste, S.A. vs. Fernandez, G.R. Nos. 63796-97, 21 May 1984;
Taflada vs. Angara, G.R. No. 118295, 2 May 1997; Bayan vs. Zamora, G.R. Nos.
138570, 138572, 138587, 138680 & 138698, 10 October 2000; Republic vs.
Sandiganbayan, G.R. No. 104768, 21 July 2003; Article 26, Vienna Convention on the
Law of Treaties, which the Philippines ratified on 15 November 1972, states that "Every
treaty in force is binding upon the parties to it and must be performed by them in good
faith."
291 G.R. No. 173034, 9 October 2007
298 Underscoring supplied
90

14 7. On the other hand, Section 3, Article II of the 1935


Constitution, which embodies the incorporation method,299
states:

SECTION 3. The Philippines renounces war as an


instrument of national policy, and adopts the generally accepted
principles of international law as part of the law of the
Nation. 300

148. International laws which become municipal law


pursuant to the doctrines of transformation or incorporation,
do not require further implementing legislation in order to be
binding and enforceable in the Philippines.

148.1. Upon ratification, treaties may already be


"applied to domestic conflicts."301 On the other hand, as
held in Secretary of Justice vs. Lantion,302 under the
doctrine of incorporation, "no further legislative action is
needed" to make "generally accepted principles of
international law" "applicable in the domestic sphere."
Such principles are, by Constitutional declaration, "part
of the law of the Nation", and, by jurisprudence, has the
same status as an act of Congress.

148.2. Indeed, why would Congress need to


enact a statute to "implement" international law, if upon
"transformation" or "incorporation," international law is
already deemed "part of the law of the land" and thus, at
par with laws passed by Congress?

149. On 21 August 1990, the Philippines ratified the UN


Convention on the Rights of the Child. Accordingly, it is legally
binding on the Philippines. Under Article 7 of the UNCRC, the
Philippines undertook to protect the right of a new-born to a
nationality, and to ensure that every child is protected against
statelessness "from birth." The provision reads:

Article 7

299 Pharmaceutical and Health Care Association vs. Duque Ill, G.R. No. 173034, 9
October 2007
JOO The underscored phrase, otherwise known as the "incorporation" clause, was
substantially reproduced in Sections 3 and 2, respectively, of Article II of the 1973 and
1987 Constitutions.
301 G.R. No. 173034, 9 October 2007
302 Secretary of Justice v. Lantion, G.R. No. 13946.5, 18 January 2000
91

1. The child shall be registered immediately after birth and


shall have the right from birth to a name, the right to
acquire a nationality and as far as possible, the right to
know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these


rights in accordance with their national law and their
obligations under the relevant international instruments
in this field, in particular where the child would
otherwise be stateless. 303

150. A similar Article is found in the 1966 International


Covenant on Civil and Political Rights, which the Philippines
also ratified on 23 October 1986. Article 24 of the ICCPR
recognizes the right of every child "to acquire a nationality,"
thus:

Article 24. 1. Every child shall have, without any


discrimination as to race, colour, sex, language, religion,
national or social original, property or birth, the right, to such
measure of protection as are required by his status as a minor,
on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and


shall have a name.

3. Every child has the right to acquire a nationality. 304

150.1. The UNCRC was adopted, among other


reasons, precisely because of the "need to extend
particular care to the child, "305 as provided in Articles 23
and 24 of the ICCPR.

150.2. Article 2.1, Part II of the ICCPR states


that "(e)ach State Party to the present Covenant
undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or
social origin, property, birth or other status."

151. As mentioned, the ICCPR and the UNCRC create an


obligation on the part of the Philippines to ensure that, "from

303 Underscoring supplied


304 Underscoring supplied
30s See preamble of the UNCRC
92

birth," every child, "without discrimination," "acquires" a


"nationality." Conversely, the Philippines has a duty not to
leave any new-born stateless.

152. The only way the Philippines can perform its treaty
obligations under the UNCRC and the ICCPR in the case of a
foundling is to recognize him or her as its own citizen, that
is-a Philippine citizen. The Philippines has no authority to
consider a foundling a citizen of another county. In the words
of the Hon. Justice Carpio in his separate opinion in Maquiling
vs. COMELEC, "Philippine courts have no power to declare
whether a person possesses citizenship other than that of the
Philippines. "306

152.1. The Philippines has the obligation not


simply to recognize a foundling as its citizen, but to do so
from the time of the foundling's birth. To reiterate, under
the UNCRC, a child is guaranteed not only the right to
acquire a nationality, but the right to acquire such
nationality from birth, especially "where the child would
otherwise be stateless."

152.2. Domestic laws on naturalizationso1 are


not sufficient to make the Philippines compliant with its
treaty obligations to ensure that a foundling be
considered Filipino from birth. Under Philippine law, an
applicant for naturalization3os must be not less than
eighteen (18} years of age at the time she petitions for
naturalization. Moreover, she must have "a known trade,
business, profession or lawful occupation to qualify for
naturalization. Thus, if the COMELEC's disregard of the
UDHR, UN CRC, and ICCPR is accepted, a foundling
would be left stateless from birth and for at least eighteen
years until she can qualify (by having a trade, business,
profession or lawful occupation) for naturalization, in
violation of the Philippines' obligations under the UNCRC
and the ICCPR. This is another reason why a foundling

306 G.R. No. 195649, 16 April 2013, 696 SCRA 420


307 Commonwealth Act No. 473, as amended, and Republic Act No. 9139
308 Naturalization can either be judicial (governed by Commonwealth Act No. 4 73, as

amended), or administrative (governed by Republic Act No. 9139). Both laws clearly
refer to aliens and not to stateless persons. C.A. No. 473 prescribes, inter alia, a
minimum age of twenty one (21) years on the day of the hearing of the petition, and a
minimum residency in the Philippines of five (5) years, under special circumstances,
and ten (10) years, in the absence of special qualifications. On the other hand, R.A.
9139, which applies to "aliens born and residing in the Philippines", requires that an
applicant be at least eighteen (18) years of age at the time of filing of the petition and be
a resident of the Philippines since birth.
93

must be recognized as citizen of the Philippines "from


birth."

153. Although neither the ICCPR nor the UNCRC was in


force when Sen. Poe was born in 1968, each may apply
retroactively to the date of her birth in determining her
citizenship. The reasons are as follows:

154. First, the refusal to give retroactive application to


the ICCPR and the UNCRC will discriminate against
foundlings born before the Philippines' ratification39 of these
treaties. This would violate the equal nrotection clause of the
Constitution. 310

154.1. Differential treatment in law is justified


only when it is based on a reasonable classification. To
be reasonable, a classification: (a) must rest on
substantial distinctions; (b) must be germane to the
purposes of the law; (c) must not be limited to existing
conditions only; and (d) must apply equally to all
members of the same class.311

154.2. There is no valid and substantial


distinction between foundlings who were born before the
ICCPR and the UNCRC came into force, and foundlings
who were born after this date. For as long as the
identities of their birth parents are not established, they
share the same status-that of a foundling. A law made
applicable to foundlings born after ratification should
apply equally to foundlings born before, as they are all
members of the same class.

155. Second, the UNCRC and the ICCPR are "curative"


statutes which may apply retroactively.

155.1. To reiterate, as treaties which the


Philippines ratified, the UNCRC and the ICCPR form part
of the law of the land. These treaties are, therefore,
considered domestic statutes.

309 The Philippines ratified the ICCPR and the UNCRC on 23 October 1986 and on 21
August 1990 respectively.
310 Sec. 1, Art. III of the 1987 Constitution provides: "No person shall be deprived of life,
liberty, or property without due process of law, nor shall any person be denied the equal
protection of the laws." (Underscoring supplied)
311 People v. Cayat, G.R. No. L-45987, 5 May 1939
94

155.2. It is basic that "curative" laws apply


retroactiv~ly.312 Curative laws "are intended to supply
defects, abridge superfluities and curb certain evils."3 13 A
law may be applied retroactively "when the statute is
CURATIVE or REMEDIAL in nature or when it CREATES
NEW RIGHTS."314

155.3. Insofar as the ICCPR and UNCRC supply


deficiencies in Philippine law on the rights of a new-born
to a nationality and to be protected against statelessness,
they are curative in nature. Thus, they apply
retrospectively to Sen. Poe's birth in 1968.

156. Third, under Article 28 of the Vienna Convention on


the Law of Treaties, there is no prohibition against the
retroactive application of treaties (unless a different intention
appears). What is prohibited is the application of a treaty to a
fact or status which ceased to exist before the treaty entered
into force.

156.1. In the first place, neither the ICCPR nor


the UNCRC expressly or impliedly prohibits their
retroactive application. There is likewise !!Q indication in
these treaties that their respective provisions should be
applied only prospectively.

156.2. Secondly, foundlings in the Philippines


who were born before the ICCPR and the UNCRC entered
into force did not cease to be such after the treaties
entered into force. They continue to be foundlings and
foundlings continue to be "born" until today. Therefore,
these two treaties bind the Philippines "in relation" to
determining Sen. Poe's rights at the time of her birth in
1968.

157. Fourth, considering that the Philippines was already


a signatory to the ICCPR as early as 19 December 1966 (or
almost 2 years before Sen. Poe's birth), the Philippines was
"obliged (as of that date) to refrain from acts which would
defeat the object and purpose" of the ICCPR.315 Article 18 of
the Vienna Convention on the Law of Treaties states:

312 Frivaldo vs. COMELEC, G.R. No. 120295, 28 June 1996; Tatad vs. Garcia, Jr., G.R.
No. 114222, 6 April 1995; Briad Agro Development Corp. vs. Dela Serna, G.R. Nos.
82805 & 83225, 29 June 1989
3l3 Narzoles vs. NLRC, G.R. No. 141959, 29 September 2000
31 4 Frivaldo vs. COMELEC, G.R. No. 120295, 28 June 1996
315 See Article 18 of the Vienna Convention on the Law of Treaties, in relation to Bayan
Muna vs. Romulo, G.R. No. 159618, 1 February 2011
95

Article 18. OBLIGATION NOT TO DEFEAT THE OBJECT


AND PURPOSE OF A TREATY PRIOR TO ITS ENTRY
INTO FORCE

A State is obligated to refrain from acts which would


defeat the object and purpose of a treaty when:

(a) It has signed the treaty or has exchanged instruments


constituting the treaty subject to ratification,
acceptance or approval, until it shall have made its
intention clear not to become a party to the treaty; or

(b) It has expressed its consent to be bound by the treaty,


pending the entry into force of the treaty and provided
that such entry into force is not unduly delayed. 316

157 .1. To deny Sen. Poe Philippine citizenship,


or to leave her stateless at the time of her birth in 1968,
as Petitioner argues, would have "defeated the object and
purpose" of the ICCPR, among which is to afford its
subjects (like Sen. Poe) a "right to a nationality."

158. Finally, a refusal (at present) to recognize Sen.


Poe's right to have "acquired a nationality" "from birth" and "to
ensure the implementation of this right" where she "would
otherwise be stateless," would be a violation of the obligations
of the Philippines under the UNCRC and the ICCPR.

158.1. This will not be the first time that the


UNCRC, in particular, will be given a retroactive
application to decide an issue on a child's entitlement to
natural-born citizenship. In his separate concurring
opinion in Tecson vs. COMELEC,317 former Justice (later,
Chief Justice) Reynato S. Puno applied the UNCRC in
determining whether Mr. Ronald Allan Poe was a natural-
born Philippine citizen (despite the fact that Mr. Poe was
born in 1939, or before the UNCRC entered into force).
Justice Puno took the position that the UNCRC would be
violated if the Court held that Mr. Poe was not a natural-
born Philippine citizen simply because he was born
illegitimate.

316 Underscoring supplied


311 G.R. Nos. 161434, 161634 & 161824, 3 March 2004
96

B.3.b. The SET correctly took into


consideration generally accepted
principles of international law
with respect to the citizenship of
foundlings pursuant to the
incorporation clause in the
Constitution.

159. Petitioner, citing the dissenting opinion of Justice


Carpio, discounts the application of the 1930 Hague
Convention and the Convention on Statelessness simply
because the Philippines is neither a party nor a signatory
thereto, and thus is supposedly "not bound" thereby. This
argument is erroneous, as it ignores the basic Constitutional
precept that an international law principle may be binding on
the Philippines not only via transformation but also via
incorporation.

160. A principle in a treaty (and not necessarily the


entire treaty which the Philippines has neither signed nor
ratified) may still be binding on the Philippines under Section
3, Article II of the 1935 Constitution, which
embodies the incorporation clause,318 thus:

SECTION 3. The Philippines renounces war


as an instrument of national policy, and adopts the
generally accepted principles of international law as part
of the law ofthe Nation.319

161. This point has been settled as early as the 1949


landmark case of Kuroda v. Jalandoni, 320 (which the SET cites
in its assailed Decision) where this Honorable Court laid down
the principle that the Philippines need not be a formal party to
an international convention before its courts can give effect to
its provisions, for as long as the norm in question is a
generally accepted principle of international law, viz:

Petitioner argues that respondent Military Commission has no


jurisdiction to try petitioner for acts committed in violation of
the Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second

318 Pharmaceutical and Health Care Association vs. Dugue III, G.R. No. 173034, 9
October 2007
3l9 The underscored phrase, otherwise known as the "incorporation" clause, was
substantially reproduced in Sections 3 and 2, respectively, of Article II of the 1973 and
1987 Constitutions.
320 G.R. No. L-2662, 26 March 1949
97

only in 1947. It cannot be denied that the rules and regulation


of the Hague and Geneva conventions form part of and are
wholly based on the generally accepted principles of
international law. In fact these rules and principles were
accepted by the two belligerent nations: the United States and
Japan who were signatories to the two Convention. Such rules
and principles therefore form part of the law ofour nation even
if the Philippines was not a signatory to the conventions
embodying them for our Constitution has been deliberately
general and extensive in its scope and is not confined to the
recognition of rule and principle of international law as
contained in treaties to which our government may have been
or shall be a signatory. (emphases supplied)

161.1. The case served as precedent in


subsequent cases such as Mijares vs. Ranada321 and
Razon vs. Tagitis, which were resolved using principles
embodied in international agreements to which the
Philippines is not a party.

162. The Constitution itself does not define what is


meant by the phrase "generally accepted principles of
international law." And while "generally accepted principles of
international law" is often associated with "customary
international law" as defined under the ICJ Statute, it does not
appear that this Honorable Court has laid down a consistent
set of rules in evaluating precepts that would qualify as
"generally accepted principles of international law."
Jurisprudence applying this phrase employ varied levels and
types of analyses.

162.1. First, the phrase "generally accepted


principles of international law" is commonly associated
with "customruy international law," as the phrase is
understood in Article 38 (l)(b) of the Statute of the
International Court of Justice ("ICJ Statute"), in which
case two (2) elements must concur:

(a) Established, widespread, and consistent practice on


the part of States; and
(b) A psychological element known as opinio juris sive
necessitates (opinion as to law or necessity).

162.2. The phrase, however, may also be


equated with "the general principles of law recognized by
civilized nations," a distinctly different concept defined
321 G.R. No. 139325, 12 April 2005
98

under Article 38 (1) (c) of the !CJ St;atute. This was the
Supreme Court's ruling in International School Alliance of
Educators vs. Quisumbing322 and in Pharmaceutical and
Health Care Association of the Phil. vs. Duque III. 323 This
principle is discussed in more detail in pars. 187 to 190
hereof.

162.3. Finally, the Supreme Court may simply


declare a principle, a convention or a set of rules as
"generally accepted principles of international law,"
without any detailed explanation, and without applying
the definitions and elements of "customary international
law" or "general principles of law recognized by civilized
nations." 324 The UDHR is one such set of rules which the

322 G.R. No. 128845, 1 June 2000


323 G.R. No. 173034, 9 October 2007
324 These principles include, among others:

Pacta Sunt Servanda La Chemise Lacoste, S.A. vs. Hon. Fernandez, G.R. No.
L-63796-97, 2 May 1984; Sujanani vs. Hon. Ongpin,
G.R. No. L-65659, 21 May 1984; Tanada vs. Angara,
G.R. No. 118295, 2 May 1997; Secretary of Justice vs.
Lantion, G.R. No. 139465, 18 January 2000; Bayan vs.
Zamora, G.R. Nos. 138570, 138572, 138587, 138680 &
138698, 10 October 2000; See La Bugal-B'Iaan Tribal
Association vs. Ramos, G.R. No. 127882, 27 January
2004; Land Bank of the Philippines vs. Atlanta
Industries, Inc., G.R. No. 193796, 2 July 2014

A State may not be sued Arigo vs. Swift, G.R. No. 206510, 16 September 2014;
without its consent (State's Baer vs. Tizon, G.R. No. L-24294, 3 May 1974; Sanders
Immunity from Suit) vs. Hon. Verdiano, G.R. No. L-46930, 10 June 1988;
U.S.A. vs. Guinto, 182 SCRA 644 (1990); Shauf vs. Hon.
Court of Appeals, G.R. No. 90314, 27 November 1990;
Wylie vs. Rarang, G.R. No. 74135, 28 May 1992; U.S.A.
vs. Hon. Reyes, G.R. No. 79253, 1 March 1993; Parreno
vs. Mcgranery, G.R. No. L-4263, 12 March 1953 (which
also cited Syquia vs. Lopez, et al., 84 Phil. 312, G.R. No.
L-1648; Marvel Building Corp. vs. Philippine War
Damage Commission, 85 Phil. 27, G.R. No. L-1822;
Marquez Lim vs. Nelson, et al., 87 Phil. 328, G.R. No. L-
2412.); The Holy See vs. Rosario, Jr., G.R. No. 101949,
1 December 1994; Jusmag Philippines vs. NLRC, G.R.
No. 108813, 15 December 1994; The Department of
Health vs. Phil. Pharmawealth, Inc. G.R. No. 169304, 13
March 2007 (Shaufv. Court of Appeals, G.R. No. 90314,
November 27, 1990, 191 SCRA 713 cited in United
States of America v. Reyes, G.R. No. 79253, March 1,
1993, 219 SCRA 192.)

Vienna Convention on Reyes vs. Bagatsing, G.R. No. 180016, 29 April 2014
Diplomatic Relations
adopted in 1961.
Diplomatic immunity Lasco vs. United Nations Revolving Fund for Natural
Resources Exploration, G.R. Nos. 109095 - 109107, 23
February 1995; and Sombilon vs. Romulo, G.R. No.
175888, 11 February 2009
99

"(A) belligerent occupant Vda. De Villarual vs. Manila Motor Co., Inc., G.R. No. L-
(like the Japanese in 1942- 10394, 13 December 1958
1945) may legitimately
billet or quarter its troops
in privately owned land
and buildings for the
duration of its military
operations, or as military
necessity should demand."

"(A) foreign army allowed Tubb vs. Griess, G.R. No. L-1325, 7 April 1947; and
to march through a Dizon vs. The Commanding General of the Philippine
friendly country or to be Ryukus Command, G.R. No. L-2110, 22 July 1948
stationed in it, by (citing Tubb vs. Griess)
permission of its
government or sovereign,
is exempt from the civil
and criminal jurisdiction of
the place."

"(A") state has the right to Illuh Asaali vs. Commission of Customs, G.R. No. L-
protect itself and its 24170, 28 February 1969
revenues, a right not
limited to its own territory
but extending to the high
seas."

"(J)udicial acts which are Etorma vs. Ravelo, G.R. No. L-718, 24 March 1947
not of political complexion
of de facto governments
established by the military
occupant in an enemy
territory" (a principle
based on the Regulations
of the Hague Convention),
are valid

"The Hague Convention, Kuroda vs. Jalandoni, G.R. No. L-2662, 26 March 1949
the Geneva Convention
and significant precedents Liban vs. Gordon, G.R. No. 175352, 18 January 2011
of international (Geneva Convention only)
jurisprudence established
by the United Nations" and
the "rules and regulations"
of the Hague and Geneva
conventions

"(S)equestration of cash,
funds, and realizable
IApril
Haw Pia vs. China Banking Corp., G.R.
1948
No. L-554, 9

securities in occupied
territory (as) proscribed by
article 53 of the Hague
Regulations"

United Nations Convention I People vs. Jumawan, G.R. No. 187495, 21 April 2014
on the Elimination of all
Forms of Discrimination
Against Women (UN-
CEDAW) "and its allied
issuances" (In 1981, 180
countries, including the
Philippines, ratified this
Convention.)
100

Supreme Court has consistently declared, in its entirety,


as containing "generally accepted principles of
international law" without going into detail as to how it
has become "customary international law'' or why it is a
"general principle of law recognized by civilized nations."
(See Republic vs. Sandiganbayan, Domingo vs. Scheer,
and Government of Hong Kong Special Administrative
Region vs. Hon. Olalia, Jr.)

163. Applying the legal framework above, Private


Respondent submits that, apart from treaty or conventional
international law, the: (a) right (from birth) to nationality, (b)
with its corollary right to be protected against statelessness; I

and (c) the presumption that a foundling is a citizen of the


country in which she is found, together with the presumption
that a foundling is born of citizens of the country in which she
is found, are all "generally accepted principles of international
law" which "form part of the law of the Nation."

a. Right to a nationality

164. Article 15 (1) of the Universal Declaration of Human


Rights ("UDHR") states:

1. Everyone has the right to a nationality.


2. No one shall be arbitrarily deprived of his
nationality nor denied the right to change his
nationality. 325

165. As discussed, the Supreme Court has repeatedly


recognized the UDHR as part of "generally accepted principles

. ------------

The 1968 Vienna Agustin vs. Edu, G.R. No. L-49112, 2 February 1979
Convention on Road Signs
and Signals

"The Paris Convention and Sehwani, Inc. vs. In-N-Out Burger, Inc., G.R. No.
the WIPO Joint 171053, 15 October 2007
Recommendation"

There is no "duty on the BPI vs. De Reny Fabric Industries, Inc., G.R. No. L-
part of a bank to verify 24821, 16 October 1970
whether what has been
described in letters of
credits or drafts or
shipping documents
actually tallies with what
was loaded aboard ship"

325 Underscoring supplied


101

of international law."3 2 6 The following pronouncement m


Republic vs. Sandiganbayan321 is particularly instructive:

Although the signatories to the Declaration did not intend


it as a legally binding document, being only a declaration, the
Court has internreted the Declaration as part of the generally
accepted principles of international law and binding on the
State.328

165.1. Similarly, in the 2009 case of Razon vs.


Tagitis,329 the Supreme Court, citing the U.S.A. case of
Filartiga vs. Pena-Irala, 330 ruled that the UDHR "has
become. in toto, a part of binding, customary
international law."331

166. When Private Respondent was born in 1968, Article


15 (1) of the UDHR already formed part of Philippine law,
pursuant to Section 3, Article II of the 1935 Constitution. Thus,
Private Respondent had the "right to a nationalitv': from birth,
and that could only be the nationality of a Filipino from birth,
for the Philippines would not have the power to recognize
Private Respondent as a citizen of any other country.

166.1. To reiterate, a foundling's "right to a


nationality" is protected separately under the ICCPR and
the UNCRC, which are binding on the Philippines under
the doctrine of transformation. It is also unnecessary to
determine the applicability of Article 38.1 (b) or (c) of the
ICJ Statute, because the Supreme Court has itself already
proclaimed that the UDHR (which includes the "right to a
nationality") contains "generally accepted principles of
international law."

b. Avoidance of Statelessness

167. The right to be protected against statelessness is a


corollary of the right to nationality. Thus, to afford a
foundling the right to nationality is to protect her against
statelessness. Conversely, to leave a foundling stateless, is to

326 See Reyes vs. Bagatsing,125 SCRA 553 (1983); Borovsky vs. Commissioner, 90 Phil.
107 (1951); PAFLU vs. Secretary of Labor, 27 SCRA 40, (1969); Boy Scouts of the
Philippines vs. Araos, 102 Phil. 1080 (1958); Mejoff vs. Director, 90 Phil. 70 (1951);
Chirskoff vs. Commissioner, 90 Phil. 256 (1951); and Andreu vs. Commissioner, 90
Phil. 347 (1951)
321 G.R. No. 104768, 21 July 2003
328 Underscoring supplied
329 G.R. No. 182498, 3 December 2009
330 630 F.2d 876 (2d Cir. 1980)
331 Underscoring supplied
102

violate her right to a nationality. Accordingly, the right to be


protected against statelessness ought to be considered a
"generally accepted principle of international law." Petitioner's
counsel conceded this point in response to the Hon.
Chairman's questions:

JUSTICE CARPIO. . . . There is the principle of


customary international law that every state must avoid
statelessness, correct?

ATTY. LUNA. Yes.

JUSTICE CARPIO. And there is also a principle that


every person has a right to acquire nationality.

ATTY. LUNA. Yes.

x x x

JUSTICE CARPIO. Yes, but those two principles I said


"every person has the right to a nationality; every state
must avoid statelessness," that does not contravene any
principle of our Constitution.

ATTY. LUNA. Yes.

x x x

JUSTICE CARPIO. So I think counsel, you will agree


with me that we have to interpret the customary
international law on foundlings liberally because that is
the intention of customary international law - avoid
statelessness.

ATTY. LUNA. Yes, Your Honor.332

168. As will be discussed later, in the same way that the


right against statelessness and the right to a nationality are
corollary rights, the presumption under the Convention on
Statelessness that a foundling is born of citizens of the place
where she is found is a right that is corollary to those rights,
to the extent that the presumption is necessary to implement
those rights in jus sanguinis jurisdictions. In Private
Respondent's peculiar case as a foundling, leaving her
"stateless" would, indeed, violate the very terms of the UDHR,
which is part and parcel of Philippine law. It would cause

332 TSN 21 September 2015, pp. 102 to 103


103

Private Respondent extreme prejudice through no fault of her


own. The first paragraph of Article 2 of the UDHR states:

Article 2

Everyone is entitled to all the rights and freedoms set


forth in this Declaration, without distinction of any kind, such
as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.

x x x333

169. Private Respondent should not be left stateless or


deprived of her fundamental "right to a nationality," merely
because she has the "status" of a foundling. To conclude that
Private Respondent is not a Philippine citizen under
paragraphs (3) and (4) of Section 1, Article IV of the 1935
Constitution, simply because her biological parents are
unknown, would violate the UDHR.

170. As discussed below, the right to a nationality and to


be protected against statelessness also satisfy the criterion for
"customary international law" and "general principles of law
recognized by civilized nations." With specific application to
foundlings, these two rights have been crystalized in the form
of presumptions of citizenship.

c. The Presumption that a Foundling is


a Citizen of the State in which She is
Found and the Presumption that a
foundling is born of citizens of that
State.

i. As Customary International law

171. As . discussed, a principle may be considered


"customary international law" if two (2) elements concur: (a)
established, widespread, and consistent practice on the part of
States; and (b) a psychological element known as opinio juris
sive necessitates (opinion as to law or necessity). Both
elements concur as regards: (a) the presumption that a
foundling is a citizen of the state in which she is found; and (b)
the presumption that a foundling is born of citizens of that
state.

333 Underscoring supplied


104

i.1. "Widespread and consistent practice"

172. In Razon vs. Tagitis,334 this Honorable Court had to


resolve issues on the use and application of the Rule on the
Writ of Amparo in an enforced disappearance case. Since the
concept of an "enforced disappearance" was neither defined
nor penalized under Philippine law, the High Court sought
guidance from international law. The Court noted that under
the "International Convention for the Protection of All Persons
from Enforced Disappearance," there is a "right not to be
subject to enforced disappearance." However, the Court also
pointed out that the Philippines had neither signed nor ratified
said Convention. Still, this Honorable Court held that the ban
on enforced disappearances is binding on the Philippines as a
"generally accepted principle of international law."

173. In Razon, this Honorable Court considered the


International Convention for the Protection of All Persons from
Enforced Disappearances, as part of the "generally accepted
principles of international law," even if it had been ratified by
only sixteen (16) States (excluding the Philippines), and even if
it had not yet entered into force, because the entry into force
was conditioned on its ratification by at least 20 States. 335
Specifically, the High Court in Razon considered the ban on
enforced disappearances as a "generally accepted principle of
international law" and, thus, part of the law of the land, based
on the following "material sources of custom:"

(a) An international treaty (i.e., the 1998 Rome Statute


establishing the International Criminal Court [ICC]);

(b) A regional treaty (i.e., Inter-American Convention on


Enforced Disappearance of Persons);

(c) The practice of international and regional organs


(i.e., the declarations of the UN and the UN Human
Rights Committee, and the European Court of
Human Rights [in its application of the European
Convention on Human Rights]);

(d) Regional State Practice (i.e., legislation of Colombia,


Guatemala, Paraguay, Peru and Venezuela, which
implement the Inter-American Convention on
Enforced Disappearance of Persons); and

33 4 G.R. No. 182498, 3 December 2009


335 See footnote No. 106, 606 SCRA 598 at 669
105

(e) State Practice of the U.S.A. (i.e., the Third


Restatement of Laws and a decision of the U.S.
Court of Appeals).

174. Applying the analysis in Razon, the presumption


that a foundling is a citizen of the State in which she is found,
and the presumption that a foundling is born of citizens of the
country in which she is found, were "generally accepted
principles of international law" at the time of Sen. Poe's birth
in 1968, and therefore formed part of the law of the land at
that time. As discussed, this is essentially the position that
the framers of the 1935 Constitution took in their deliberations
on Article IV thereof.

175. On the international plane, as of 1966 (or two years


before Sen. Poe's birth), no less than nine (9) international
instruments (which pursuant to Razon, may be considered
"material sources of custom") had already addressed the twin
issues of nationality and statelessness, to wit:

(a) the 1930 Hague Convention on Certain Questions


Relating to the Conflict of Nationality Laws (" 1930
Hague Convention");

(b)the 1930 Hague Protocol Relating to a Certain Case


of Statelessness;

(c) the 1930 Hague Special Protocol Concerning


Statelessness;

(d)the 1948 Universal Declaration of Human Rights;

(e) the 1957 United Nations Convention on the Status


of Married Women;

(f) the 1959 United Nations Declaration on the Rights


of the Child;

(g) the 1961 United Nations Convention on the


Reduction of Statelessness;

(h)the 1966 International Covenant on Civil and


Political Rights; and
106

(i) the 1966 International Convention on the


Elimination of All Forms of Racial Discrimination.
336

175.1. The 1930 Hague Convention is significant,


because it is the result of the first attempt to codify
international law principles on certain subjects, among
them, nationality laws. The 1930 Hague Convention is the
product of the First Conference for the Codification of
International Law, organized under the auspices of the
League of Nations and attended by delegates from forty
seven (47) governments (or over half of the existing states
in 1930)337 and by observers appointed by the Union of
Soviet Socialist Republic. This Conference for the
Codification of International Law, and the 1930 Hague
Convention it produced, is an important development in
international law, as it represented the first concrete
action by the League of Nations to "assist in the fixing
and codifying of international law" on various questions
"the regulation of which, by international agreement,
would seem desirable and realizable. "338

175.2. Considering its history, the 1930 Hague


Convention is considered confirmatory of certain general
principles of nationality law.339 Several of its provisions
deal with the acquisition of nationality of several groups
who traditionally face statelessness as a result of conflict
of laws: married women, children, fondlings, and
adopted persons. In 1968, when Sen. Poe was born, the
1930 Hague Convention already had thirty-seven (37)
State signatories (or fifty percent (50o/o] of existing states
in 1930) and fifteen (15) State parties. The 1930 Hague
Convention now has twenty-one (21} State parties. As
discussed, Article 14 thereof states that "(a) child whose
parents are both unknown shall have the nationality of
the country of birth."

336This list excludes regional and bilateral agreements.


337There were only seventy four (74) widely recognized sovereign states, including some
historical states, in 1930. The forty seven (4 7) delegates to the first League of Nations
Conference for the Codification of Ihternational Law represented some of the largest and
more established states existing in 1930.
338 United Nations Documents concerning the Development and Codification of
International Law, published as supplement to the American Journal of International
Law, Volume 41, No. 4, October, 1947. Available online at
http: I I legal. un.org I ilc I documentation I english I ASIL 194 7 study. pdf.
339 Kay Hailbronner, NATIONALITY IN PUBLIC INTERNATIONAL LAW AND EUROPEAN LAW, IN
ACQUISITION AND LOSS OF NATIONALITY: COMPARATIVE ANALYSES - POLICIES AND TRENDS IN 15
EUROPEAN COUNTRIES, Rainer Baubock, Eva Ersb0ll, Kees Groenendijk, Harald
Waldrauch, eds., Amsterdam University Press (2006)
107

175.3. In 1947, the UN Human Rights


Commission urged consideration of nationality questions,
a proposal which received concrete expression in Article
15 of the United Nations Declaration on Human Rights
("UDHR") (to which the Philippines is a signatory and
which the United Nations General Assembly adopted on
10 December 1948).340 Article 15(1) of the UDHR which
the Supreme Court has specifically declared to be
binding on the Philippines and part of the law of the
land, states that all people have a "right to a nationality",
and that no one may be arbitrarily deprived of his
nationality.

175.4. In 1959, the U.N. General Assembly,


through Resolution No. 1386 (XIV) and by a vote of 70 to
0 (with 2 abstentions), proclaimed the "Declaration of the
Rights of the Child" ("UNDRC"). The third "whereas"
clause of the UNDRC states that "the child, by reason of
his physical and mental immaturity, needs special
safeguards and care, including appropriate legal
protection, before as well as after birth. "341 In the
UNDRC, the U.N. General Assembly called upon the
"national Governments" (among others) "to recognize (the
rights under the UNDRC) and strive for their observance
by legislative and other measures progressively taken in
accordance with (the principles set forth therein)."
Consistent with UDHR, Principle 3 of the UNDRC
contains a more empathic provision on the right to
nationality as applied to children, malting it an
entitlement of a child from birth:

The child shall be entitled from his birth to a name and a


nationality. 3 4 2

175.5. The Convention on Statelessness is the


culmination of more than a decade of international
negotiations, 34 3 and over thirty {30) years of international
340 See Myres S. McDougal, Harold D. Lasswell and Lung-chu Chen, Nationality and
Human Rights: The Protection of the Individual and External Arenas, 83 Yale L.J. 900,
965 (1974)
341 Underscoring supplied
342 Underscoring supplied
343 The Convention on Statelessness is the result of over a decade of international
negotiations on how to avoid the incidence of statelessness. In 1949, the Secretary
General, at the request of the Economic and Social Council, commissioned a study on
statelessness which called for the universal acceptance of the following two principles:
(1) nationality is to be conferred on every child at birth; (2) no person should lose
his/her nationality during his lifetime unless and until he has acquired a new one. In
August 1950, the Economic and Social Council urged the International Law
Commission ("ILC"), the UN body tasked with definitively codifying international legal
108

covenants on the right to a nationality and the avoidance


of statelessness. The Convention on Statelessness
provides for rules on the acquisition of nationality by
stateless individuals. Under the Convention on
Statelessness, States must ensure access to nationality
for a person who would otherwise be stateless if the
person is born in the State's territory or born abroad to a
national of the State. It also protects individuals against
the loss or deprivation of nationality if he or she will
become stateless as a result. By setting out rules to limit
the occurrence of statelessness, the Convention gives
effect to Article 15 of the UD HR. It is a matter of record
that the UDHR (mentioned in the aforequoted note of the
UN High Commissioner for Refugees) was unanimously
adopted by the members of the U.N. General Assembly in
1948, including the Philippines. To stress, the High
Court has also repeatedly declared that the UD HR
embodies "generally accepted principles of international
law." Thus, even if the Philippines has not yet signed or
ratified the Convention on Statelessness, it is still
binding, being merely an implementation of the UDHR
signed by the Philippines in 1948. Hence, it cannot be
seriously disputed that the presumptions provided by the
Convention constitute generally accepted principles of
international law.

175.6. At the time of Sen. Poe's birth in 1968,


the United Kingdom, France, the Netherlands, Israel and
the Dominican Republic had already signed the
Convention on Statelessness. There are Sixty-Four (64)
State parties to the Convention on Statelessness. 344
Unlike the international convention which this Honorable
Court applied in Razon (which had not entered into force,
as it had only 16 state parties), the Convention on
Statelessness entered into force in 1975. Although the
Philippines remains neither a signatory, nor a party to
the Convention on Statelessness, it is reported by the
United Nations High Commissioner for Refugees to have

norms, to prepare at the earliest possible time the necessary draft international
convention or conventions for the minimization of statelessness. The ILC responded by
adopting the draft Conventions on the Elimination and Reduction of Future
Statelessness. This provided the impetus for the convening of an international
conference of plenipotentiaries in Geneva in 1959, which later reconvened in 1961.
Significantly, since its inception in 1949, the ILC has included "nationality, including
statelessness" in its list of topics to be considered for codification. Draft conventions by
the ILC are often considered to be good evidence of the existence of customary
international law on certain subjects.
3 44 Data provided by the United Nations, available at
https: //treaties.un.org/doc/Treaties/2007 / l l /29 /V-4.en.pdf
109

already "initiated the process for accession" to the


Convention on St.atelessness. 345 As discussed, on the
nationality of foundlings, Article 2 thereof states that "(a)
foundling found in the territory of a Contracting State
shall, in the absence of proof to the contrary, be
considered to have been born within that territory of
parents possessing the nationality of that State. "346
Article 2 of the Convention on Statelessness provides for a
rebuttable presumption of descent from a citizen
(praesumption iuris sanguinis) in favor of a foundling.
This is consistent with the doctrine of jus sanguinis
under paragraphs (3) and (4), Section 1, Article IV of the
1 935 Constitution.

175.7. According to this Honorable Court in


Razon, the "material sources of custom" include "recitals
in treaties and other international instruments" and
"resolutions relating to legal questions in the U.N.
General Assembly." The Supreme Court also cited in
that case as "evidence of custom" statements of "the UN
Rights Committee under the Office of the High
Commissioner for Human Rights" on the interpretation of
"article 2 (right to an effective domestic remedy)" of the
International Covenant of Civil and Political Rights. The
"Introductory Note" to the Convention on Statelessness
written by the Office of the United Nations High
Commissioner on Refugees establishes beyond doubt the
status of "generally accepted principles of international
law" accorded to the Convention. The U.N. Commission
for Refugees stated thus:

x x x . Together, these two treaties347 form the


foundation of the international legal framework to
address statelessness, a phenomenon which continues to
adversely affect the lives of millions of people around the
world. The 1961 Convention is the leading international
instrument that sets rules for the conferral and non-
withdrawal of citizenship to prevent cases of

3 4sSee "Submission by the United Nations High Commissioner for Refugees for the
Office of the High Commissioner for Human Rights' Compilation Report;" "Universal
Periodic Review: The Philippines" available at
http://www.refworld.org/pdfid/4ee07aa22.pdf
See also the 21 June 2015 "With Due Respect" column in the Philippine Daily
Inquirer of former Chief Justice Artemio Panganiban which reported the information
from Mr. Bernard Kerblat, country representative of the United Nations High
Commissioner for Refugees that at a ministerial meeting on 7 December 2011, the
Philippine panel pledged to initiate accession to the Convention on Statelessness.
346 Underscoring supplied
347 The other one being the Convention Relating to the Status of Stateless Persons
110

statelessness from arising. By setting out rules to limit


the occurrence of statelessness, the Convention gives
effect to article 15 of the Universal Declaration of
Human Rights which recognizes that "everyone has the
right to a nationality. "348

175.8. Following the spirit of the UDHR and the


Convention on Statelessness, the International Covenant
on Civil and Political Rights ("ICCPR") (which has one
hundred sixty-eight [168) State parties and to which the
Philippines is a signatory349) and the 1966 International
Convention on the Elimination of All Forms of Racial
Discrimination contain provisions recognizing the
fundamental right to a nationality of defined minority
I

groups. The ICCPR applies the right specifically to


children, thereby stressing that protection against
statelessness should start from birth. Article 24 of the
ICCPR states that "(e)very child has the right to acquire a
nationality. "350

176. Similar to the adoption of international


instruments and conventions, State practice in the domestic
sphere in foreign jurisdictions is also widespread and
consistent, insofar as States presume that foundlings are
citizens of the State in which they are found or presume that
they are born of citizens of that State.

176.1. In the proceedings a quo, Petitioner was


able to show evidence3s1 that at least sixty (60) countries,
spread throughout Asia, North and South America, and
Europe, have enacted statutes which prescribe that a
person found within its territory of unknown parentage
would be considered its citizen. At least forty two (42) of
these countries, or more than two-thirds (2/3) are jus
sanguinis countries which grant citizenship on the basis
of descent (either through paternal or maternal lines).
These countries include, per region:

a) Europe: Forty one (41) countries3s2, with at least


thirty four (34) countries which apply jus
sanguinis principle (Albania, Austria, Bosnia and
Herzegovina, Belgium, Bulgaria, Croatia, enmark,
348 Underscoring supplied
349 As of 1966.
350 Underscoring supplied
35 1 See Exhibits "26-series" and "39"
35 2 Russia was counted as part of the European region and not Asia.
111

Estonia, Finland, France, Germany, Greece,


Hungary, Iceland, Italy, Kosovo, Lithuania,
Luxembourg, Macedonia, Moldova, Montenegro,
Netherlands, Poland, Portugal, Romania, Russia,
Norway, Slovakia, Slovenia, Spain, Serbia,
Switzerland, Turkey, Ukraine);

b) North and South America: At least thirteen (13)


countries, with at least three (3) countries which
apply jus sanguinis (Belize, Costa Rica,
Suriname);

c) East and Southeast Asia: At least six (6)


countries, five (5) of which apply jus sanguinis
(Japan, China, South Korea, Indonesia, Vietnam).

176.2. Notably, all sixty (60) countries recognize


the presumption that a foundling is a citizen of the
country where he or she was found, despite only thirty
three (33) of them being parties to the Convention on
Statelessness. Twenty six (26) of these countries are non-
signatories to the Convention on Statelessness, while one
country (France) is a signatory but has not yet ratified
said treaty. This strongly suggests that states,
irrespective of being a party to the Convention on
Statelessness, recognize as obligatory the principle that a
foundling is presumed to be a citizen of the country
where he or she was found.

177. On the regional level, there are several regional


conventions on human rights which uniformly affirm the right
of persons, particularly children, to a nationality, and the right
of every person not to be arbitrarily deprived of such
nationality, viz:

(a) The European Convention on Nationality,353 signed


and/ or ratified by twenty nine (29)35 4 out of forty
seven (4 7) members states of the Council of Europe;

353 Article 4 - Principles


The rules on nationality of each State Party shall be based on the following
principles:
1. everyone has the right to a nationality;
2. statelessness shall be avoided;
3. no one shall be arbitrarily deprived of his or her nationality;
4. neither marriage nor the dissolution of a marriage between a national of a
State Party and an alien, nor the change of nationality by one of the spouses
during marriage, shall automatically affect the nationality of the other
spouse.
112

(b) The Arab Charter on Human Rights, 355 signed


and/or ratified by seventeen (17)356 out of twenty
two (22) members of the League of Arab States;
(c) ASEAN Human Rights Declaration,357 adopted
unanimously by the ten (10) member states of the
ASEAN, including the Philippines;
(d) American Convention on Human Rights,358 ratified
by twenty five (25)359 out of thirty five (35) member
states of the Organization of American States
("OAS"); and
(e) 1995 Commonwealth of Independent States
Convention on Human Rights and Fundamental
Freedoms. 360

177.1. The European Convention on Nationality,


in particular guarantees the right of a foundling to
acquire a nationality ex lege when he would otherwise be
stateless. Although only twenty seven (27) countries are
signatories, forty-one (41) member states36 1 of the

3 54 Albania, Austria, Bosnia and Herzegovina, Bulgaria, Czech Republic, Denmark,


Finland, Germany, Hungary, Iceland, Moldova, Montenegro, Netherlands, Norway,
Portugal, Romania, Slovakia, Sweden, Macedonia, Ukraine have ratified the Convention.
The countries which signed the Convention, but have not yet ratified, are: Croatia,
France, Greece, Italy, Latvia, Luxembourg, Malta, Poland, Russia,
355 Article 29
1. Everyone has the right to nationality. No one shall be arbitrarily or unlawfully
deprived of his nationality.
2. States parties shall take such measures as they deem appropriate, in
accordance with their domestic laws on nationality, to allow a child to acquire
the mother's nationality, having due regard, in all cases, to the best interests of
the child.
3. Non one shall be denied the right to acquire another nationality, having due
regard for the domestic legal procedures in his country.
356 Algeria (2006), Bahrain (2006), Egypt (signed 2004, not yet ratified), Iraq (2012),
Jordan (2004), Kuwait (2006), Lebanon (2011), Libya (2006), Morocco (signed 2004, not
yet ratified), Palestine (2007), Qatar (2009), Saudi Arabia (2009), Sudan (signed 2005,
not yet ratified), Syria (2007), Tunisia (signed 2004, not yet ratified), the United Arab
Emirates (2008), and Yemen (2008).
357 Article 18. Every person has the right to a nationality as prescribed by law. No
person shall be arbitrarily deprived of such nationality nor denied the right to change
that nationality.
358 Article 20. Right to Nationalitv
1. Every person has the right to a nationality.
2. Every person has the right to the nationality of the state in whose territory he
was born if he does not have the right to any other nationality.
3. No one shall be arbitrarily deprived of his nationality or of the right to change
it.
359 Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica,
Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras,
Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago,
Uruguay, and Venezuela. However, Trinidad and Tobago and Venezuela denounced the
convention on 26 May 1998 and 10 September 2012 respectively.
360 Article 24
1. Everyone shall have the right to citizenship.
2. No one shall be arbitrarily deprived of his citizenship or of the right to change it.
36 1 These countries are: Albania, Austria, Belgium, Bosnia & Herzegovina, Bulgaria,
Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece,
113

Council of Europe, with thirty four (34) of them following


the jus sanguinis doctrine, already provide for automatic
acquisition of citizenship by foundlings found within I

their respective territories. The wording of the European


Convention on Nationality is in turn drawn from the
Convention on Statelessness.

178. Clearly, there is a uniform practice of recognizing


the right to nationality of foundlings, spread over different
geographic areas, and observed even among jus sanguinis
countries, supporting a finding that it is a "generally accepted
principle of international law" that foundlings are presumed
born of Rarents who are citizens of the country in which they
are found.

i.2. Opinio juris sive necessitates (opinion as to law


or necessity).

179. Implicit in this element is a belief that the practice


in question is rendered obligatory by the existence of a rule of
law requiring it." As discussed, the State practice alluded to in
the case of the presumption that foundlings are citizens of the
State in which they are found and the presumption that
foundlings are born of citizens of that State, refers to
legislation. This indicates that the adoption and application of
these presumptions arises from a belief on the part of the
States involved that they are under a legal obligation to follow
these presumptions. Moreover, the legislation is also related
to, and in line with, a State's ratification of the pertinent
International Convention involved.

180. Opinio juris being a subjective element, it is


important to take into consideration the particular state's
interpretation of whether a practice alleged as international
custom is considered by it to be obligatory. In
Nicaragua vs. United States of America,362 which was cited in
Mijares vs. Ranada, the International Court of Justice placed
particular emphasis on the practice of the U.S.A. (a party to
the case) in determining the existence of the element of opinio
Juris. This is significant because the Philippines itself, even in
the absence of domestic legislation, has performed acts which
indicate that it acknowledges the binding effect of the I

Hungary, Iceland, Ireland, Italy, Kosovo, Latvia, Liechtenstein, Lithuania, Luxembourg,


Macedonia, Malta, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal,
Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey,
Ukraine, and the United Kingdom.
362 Merits, Judgment, ICJ Reports 1986, p. 14, para. 186
114

presumption that a foundling is a citizen of the country 1n


which she is found, or is born of citizens of that country.

180.1. As discussed, based on the deliberations


of the 1934 Constitutional Convention, foundlings were
always meant to be included in the concept of Philippine
citizens, even though they were not specifically
mentioned in Section 1, Article IV of the 1935
Constitution. The basis for that intent is precisely the
presumption under international law that a foundling is
a citizen of the country in which she is found. Again, this
principle was already concretely expressed in the 1930
Hague Convention (which codified existing principles of
nationality law), and the members of the Constitutional
Convention, who are predominantly lawyers, are
presumed knowledgeable of this existing principle.

180.2. Another concrete manifestation that the


Philippines has long recognized the generally accepted
principle of international law that foundlings are citizens
of the country in which they are found is DOJ Opinion
No. 189, series of 1951. In this opinion, the Secretary of
Justice recognized that foundlings are citizens of the
country in ,which they are found in the context of an
application for a passport for that foundling.

180.3. Another instance showing the recognition


of the said generally accepted principle of international
law is the fact that the DFA specifically allows passports
to be issued to foundlings. This means that the DFA
recognizes foundlings as Philippine citizens, as passports
can be issued only to citizens of this country. If the State,
acting through the DFA, did not find that according
foundlings citizenship is a "conduct of a civilized nation"
(as discussed below), then the Philippines would not be
issuing passports to them.

ii. As "General Principles of Law Recognized


by Civilized Nations"

181. Even if the presumptions favoring a foundling's


citizenship cannot be deemed "customary international law,"
they could still be considered "general principles of law
recognized by civilized nations." Indeed, as earlier stated, the
term "generally accepted principles of international law'' has
been associated with "the generally accepted principles of law
recognized by civilized nations." It is not required that they are
115

accepted by all nations or by the majority of nations. It is


enough that they are accepted by "civilized nations."
'

182. In fact, in several cases interpreting or applying the


incorporation clause, the court's focus of inquiry is not the
number of states who accept the legal principle, but whether
such a principle can be "established by a process of reasoning,
based on the common identity of all legal systems". 363 For
example, the principle against non-discrimination is a
generally accepted principle of international law because it can
be deduced by the test of reasonableness from basic principles
of equity, fairness and justice, which are valid throughout all
kinds of human societies. In International School Alliance of
Educator, vs. Quisumbing364 the Supreme Court held:

International law, which springs from general principles


of law, likewise proscribes discrimination. General principles of
law include principles of equity, i.e., the general principles of
fairness and justice, based on the test of what is reasonable. The
Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the
International Convention on the Elimination of All Forms of
Racial Discrimination, the Convention against Discrimination
in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation -
all embody the general principle against discrimination, the
very antithesis of fairness and justice. The Philippines, through
its Constitution, has incorporated this principle as part of its
national laws. 365

Hence, any discriminatory act sanctioned by the state against


a foundling would violate a generally accepted principle of
international law. Denying to foundlings the rules on burden
of proof, and presumptions of innocence and regularity which
are ordinarily accorded to all persons, including even persons
accused of crimes or charged with civil claims, would be
discriminatory against foundlings, and would violate their
rights under both municipal and international law.

182.1. Similarly, in Pharmaceutical and Health


Care Association of the Phil. vs. Duque III, 366 this
Honorable Court held:

J63 Pharmaceutical and Health Care Association vs. Duque III, G.R. No. 173034, 9
October 2007
364 G.R. No. 128845, 1 June 2000
365 Underscoring supplied
366 G.R. No. 173034, 9 October 2007
116

The concept of generally accepted principles of law


'
has also been depicted in this wise:

Some legal scholars and judges look upon certain


general principles of law as a primary source of
international law because they have the character
of jus rationale and are valid through all kinds
of human societies. (Judge Tanaka in his
dissenting opinion in the 1966 South West Africa
Case, 1966 I.C.J. 296). O'Connell holds that
certain principles are part of international law
because they are basic to legal systems generally
and hence part of the jus gentium. These
principles, he believes, are established by a process
of reasoning based on the common identity of all
legal systems. If there should be doubt or
disagreement, one must look to state practice and
determine whether the municipal law principle
provides a just and acceptable solution.x x x367

183. The principle that a foundling should be deemed, at


least presumptively, a citizen of the State in which she is
found or born of citizens of that State, is founded on equity,
fairness, justice and reasonableness. As discussed, it would
be the height of injustice to penalize a foundling with
statelessness (and all the limitations that being stateless
entails) for a status and condition that is not of her own doing.
It is not her fault that she was abandoned at birth. Worse, she
can do little or nothing to change her status as a foundling.
Therefore, it is but fair and just that a State initially embrace a
foundling as its own citizen, pending proof that she would
otherwise not qualify for citizenship. Leaving a foundling out
in the cold, so to speak, and depriving him or her of parens
patriae, is anything but civilized. Applying the presumption
would also meet the test of reasonableness, because it is by
this presumption that a foundling found in States which follow
the jus sanguinis principle, can effectively enjoy her right to a
nationality and right against statelessness. On page 8 of his
dissenting opinion at the SET, the Honorable Justice Carpio
cited the article of Dr. Laura Van Waas for the meaning of
Article 2 of the Convention of Statelessness, as follows:

Once more, the wording of this provision is evidence of the


compromise reached between jus solis and jus sanguinis countries.
Rather than determining that a child found abandoned on the

367 Emphasis in the original


117

territory of the state will automatically acquire the nationality of


that state, it declares that the child will be assumed to have both the
}us so/is and jus sanguinis links with the state: born on the territory
to parents possessing the nationality of the state. This means that
the child will simply acquire nationalit ex lege under the normal
operation of the state's nationality regulations-the effect being the
same in bothjus so/is andjus sanguinis regimes.

184. Given the widespread and uniform enactment and


application of the presumption of citizenship of foundlings in
various "civilized nations" across continents,368 it is reasonable
to conclude that these rules have become "basic to legal
systems" and "valid through all kinds of human societies."

185. In sum, the presumption that a foundling is a


citizen of the country in which she is found and the
presumption that a foundling is born of citizens of that
country may also be considered "general principles of law
recognized by civilized nations" as defined in Article 38.1 (c) of
the !CJ Statute and, therefore, "generally accepted principles of
international law" which form part of the law of the land under
the incorporation clause.

B.4. The SET correctly held that Private


Respondent is a naturalwborn Filipino
on the basis of the presumption of
descent from a Filipino parent in favor
of foundlings, derived not only from
the Rules of Court but from
international law as well.
------------------------------------------------------
186. It is well-settled, not only in the Constitution, but in
applicable jurisprudence, that there are two approaches to
determining whether a person who is admittedly a Filipino, is
also "natural-born."

186. 1. The first approach is by applying the


definition in Section 2, Article IV of the 1987 Constitution
which states that natural-born citizens of the Philippines
are "those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect
their Philippine citizenship."

368 See Exhibit "26-series"


118

186.2. The second approach is by showing that


the foundling is not a naturalized Filipino because, if she
is not naturalized, she is perforce, natural-born,369
pursuant to Bengson III vs. HRET,370 thus:

The present Constitution, however, now considers


those born of Filipino mothers before the effectivity of
the 1973 Constitution and who elected Philippine
citizenship upon reaching the majority age as natural-
born. After defining who are natural-born citizens,
Section 2 of Article IV adds a sentence: "Those who elect
Philippine citizenship in accordance with paragraph (3 ),
Section 1 hereof shall be deemed natural-born citizens."
Consequently, only naturalized Filipinos are considered
not natural-born citizens. It is apparent from the
enumeration of who are citizens under the present
Constitution that there are only two classes of citizens:
(1) those who are natural-born and (2) those who are
naturalized in accordance with law. A citizen who is not
a naturalized Filipino, i.e., did not have to undergo the
process of naturalization to obtain Philippine citizenship,
necessarily is a natural-born Filipino.371

186.3. It is of no moment, as the dissenting


opinion of Justice Carpio points out, that the
international conventions and international law
principles that Private Respondents cite do not expressly
state that a foundling is a "natural-born" citizen. In the
first place, citizens under paragraphs (3) and (4) of
Section 1, Article IV of the 1935 Constitution are also not
"expressly" referred to therein as "natural-born" citizens.
Yet, they are considered as such because they satisfy the
definition of natural-born citizens of the Philippines in
the Constitution.

186.4. What matters is that a foundling's


citizenship falls under any of the two ways of defining a
natural-born citizen of the Philippines. As explained
below, a foundling is a natural-born Filipino under both
definitions.

187. Under treaty and conventional international law


(which the COMELEC accepted as binding on the Philippines)
and "generally accepted principles of international law," a

369 JOSE M. ARUEGO, THE NEW PHILIPPINE CONSTITUTION EXPLAINED 68 (1975).


310 G.R. No. 142840, 7 May 2001
371 Underscoring supplied
119

foundling is a Filipino from birth. In fact, the U.N. Declaration


on the Rights of the Child (adopted by the U.N. General
Assembly in 1959) and the U .N. Convention on the Rights of
the Child (ratified by the Philippines in 1990) both e:?g?ressly
state that a child's right to a nationality must be recognized
"from birth." There is also nothing under international law
which requires a foundling to "perform an act to acquire or
perfect" her citizenship. Having satisfied the two (2) elements
of the Constitutional definition of a natural-born Filipino
under Section 2, Article IV of the 1987 Constitution, the SET is
correct in concluding that, notwithstanding the absence of
proof of a "blood tie", Private Respondent is a natural-born
Filipino citizen because "she is a 'citizen of the Philippines
from birth without having to perform any act to acquire or
perfect (her) citizenship. "'372

187.1. The second sentence of Section 2, Article


IV (in relation to Section 1[3], Article IV) of the 1987
Constitution also considers as "natural-born" Filipinos,
those "born before January 17, 1973, of Filipino mothers,
who "elect Philippine citizenship."

187.2. Assuming for the sake of argument that


Sen. Poe should be considered born of a Filipino mother
only (and not of a Filipino father), Sen. Poe was deemed
to have "elected" Philippine citizenship "upon reaching
the age of majority'' (under par. (4), Section 1, Article IV
of the 1 935 Constitution) when she decided to live a
Filipino life and, thereafter, secured: (a) her Voter's
Identification Card373 in 1986 (which is the year she
turned 18); (b) her first Philippine Passport two years
later, or in 1988;374 and (c) her second Philippine
Passport, five years later, or in 1993.375

187.3. In Co vs. HRET,3 7 6 this Honorable Court


reiterated that the "election" of citizenship may be "both a
formal and an informal process." The High Court cited In
Re: Florencio Mallare, 377 which held that "the exercise of
the right of suffrage and the participation in election
exercises constitute a positive act of election of Philippine
citizenship." According to Co, Mallare applies to those
"who cannot be expected to have elected citizenship."
372 SET Decision, p. 27
373 See Exhibit "3"
374 See Exhibit "5"
375 See Exhibit "51"
376 G.R. Nos. 92191-9f & 92202-03, 30 July 1991
311 59 SCRA 45 [19741)
120

Indeed, Sen. Poe could not have been expected to


formally "elect" Philippine citizenship because, when she
reached the age of majority in 1986, she did not know the
identity of her biological father. (Today, she still does not
know who he is). Thus, she had no way of finding out
whether her biological father was, indeed, a foreigner and
that, therefore, she had to formally elect Philippine
citizenship by the time she was 18. Informal "election" of
Philippine citizenship would, therefore, apply to her
(assuming arguendo that she falls only under par. (4),
Section 1, Article IV of the 1935 Constitution, in relation
to Section 1(3) and Section 2, Article IV of the 1987
Constitution).

188. Sen. Poe is also a natural-born Filipino, because


she cannot be considered a Filipino "naturalized in
accordance with law," under paragraph (5), Section 1, Article
IV of the 1935 Constitution.378 Notably, while Petitioner has
admitted, from the start of the proceedings, that Private
Respondent does not fall within item (5) of Section 1, Article
IV of the 1935 Constitution, he unfairly insists on introducing
this "new issue", belatedly adopting the curious dissenting
opinion of Justice Carpio that "any citizenship granted at
birth to a child with no known blood relation to a Filipino
parent can only be allowed by way of naturalization as
mandated by the Constitution under Section 1 (5), Article IV
of the 1935 Constitution"379 For reasons explained below, he
should be estopped from taking or adopting this contrary
position.

188.1. Private Respondent respectfully submits


that the issue of whether Respondent is "naturalized in
accordance with law" is not a legal issue that this
Honorable Court may resolve in this proceeding. Her
reasons are as follows:

(a) First, the allegations in a petition are meant to be the


"embodiment of the essential facts necessary to confer
jurisdiction upon the court." 380 This Honorable Court
has no jurisdiction over the issue of whether Private
Respondent is a Filipino "naturalized in accordance
with law," because it is not one of the issues resolved
by the SET, for the simple reason that Petitioner never

378 Id., at pp. 98 to 104 (Underscoring supplied)


379 Petition, par. 6.33, p.45
380Spouses Munsalud vs. National Housing Authority, G.R. No. 167181, 23 December
2008
121

made the necessary allegations in his quo warranto


petition to support that cause of action or ground for
disqualification. In the proceeding a quo, Petitioner
never sought the disqualification of Private Respondent
from the Senate because she is "naturalized in
accordance with law." In fact, he never took that
stance in any of his pleadings. The first time he raised
such "issue" is in his Verified Motion for
Reconsideration of the 17 November 2015 SET
Decision, apparently inspired by the dissenting opinion
of Justice Carpio, which he also adopts in this Petition.

(b) To reiterate, Petitioner's position has always been


that Private Respondent is allegedly "stateless." In
fact, he effectively alleged in paragraph 21 of his
Amended Petition for quo warranto that Private
Respondent is not naturalized. Thus, in response to
questions from two members of the Hon. Tribunal,
Petitioner's counsel maintained his position, and
repeatedly and categorically stated, that Private
Respondent does not fall under paragraph (),
Section 1, Article IV of the 1935 Constitution, thus:

SEN. LEGARDA. Thank you. In number_.2_, you


will probably agree that Senator Poe is in
fact not naturalized.

ATTY. LUNA. Yes, Your Honor. 381

x x x
JUSTICE DE CASTRO. So what you're saying is
that she's not a natural-born Filipino, neither
is she a naturalized-Filipino citizen.

ATTY. LUNA. Yes, Your Honor. 382

(c) Second, "(i)t is a basic tenet that courts cannot go


beyond the issues in a case."383 The question of
whether Private Respondent is a Filipino
"naturalized in accordance with law" was never an
issue between the parties. As discussed in item (b)
above, both parties concede that Private Respondent

38 1TSN 21September2015, at p. 23; (Underscoring supplied)


382 TSN 21 September 2015, at p. 53; (Underscoring supplied)
383 Film Development Council of the Philippines v. Colon Heritage Realty Corporation,
G.R. No. 203754, 16 June 2015
122

does not fall under paragraph ~), Section 1, Article


IV of the 1935 Constitution. Accordingly, neither
party raised this issue in their respective
preliminary conference briefs, nor was it among the
issues framed by the SET in its Preliminary
Conference Order. Petitioner did not move to amend
the Preliminary Con/erence Order to include this
issue. In fact, the SET itself, in its Preliminary
Conference Order, declared that Private Respondent
"is admittedly not a naturalized Filipino." Hence, it
framed sub-issue 1 (b), 5th sentence, as follows:

Whether or not Respondent is perforce a natural-


bom Filipino, considerin~ that she is admittedly
not a naturalized Filipino3 4

This Honorable Court has held that a petitioner


"should be bound by the delimitation of the issues
during the pre-trial because he himself agreed to
the same."385 Moreover, Rule 44 of the SET Rules
clearly states that "the contents of the (preliminary
conference order) shall control the subsequent
course of the proceedings." Therefore, the SET could
not have considered the issue of whether Private
Respondent is a Filipino "naturalized in accordance
with law," as it is in fact bound to assume as an
established fact that Private Respondent is not a
naturalized Filipino.

(c) Third, it is a basis rule of due process that a party


may not change his theory on appeal. In Villanueva
v. Court of Appeals, 386 this Honorable Court held
that "(t)he determination of issues during the pre-
trial conference bars the consideration of other
questions, whether during trial or on appeal."
Similarly, in Republic vs. Delos Angeles381 and
Spouses Adriano vs. Heris of Avancena, 388 the
Supreme Court stated that "a judgment must
conform to and be supported by both the pleadings
and the proofs, and should be in accordance with
the theory of the action on which the pleadings were
framed and the case was tried (secundum allegata
et probata)." While this special civil action is
384 Underscoring supplied
385 Munasgue vs. Court of Appeals, G .R. No. L-39780, 11 November 1985
386 G.R. No. 143286, 14 April 2004
387 G.R. No. L-26112, 4 October 1971
388 G.R. No. 161387, 13 March 2009
123

concededly not an appeal, it is nevertheless only a


limited form of review. Thus, Private Respondent
submits that this Honorable Court cannot consider
an issue not considered by the SET in rendering the
assailed Decision now in question, and not argued
by the parties or raised by them at all.

188.2. Based on Petitioner's theory of the case


(Private Respondent is allegedly stateless) and the way
the issues were narrowly framed in the parties' pleadings
(i.e., the Petition, Answer, Position Papers and
Preliminary Conference Briefs) and in the Preliminary
Conference Order itself (which declared as "admitted" the
fact that Private Respondent is "not a naturalized
Filipino"), the SET correctly did not rule upon this then
non-existent issue. Thus, the SET was correct in
resolving the issue of whether Private Respondent is a
natural-born Filipino in one of only two ways: (a) Private
Respondent is a natural-born Filipino; or (b) Private
Respondent is stateless. The pleadings and the
Preliminary Conference Order make no room for a third
way of resolving this case, i.e., Private Respondent is a
Filipino citizen "naturalized in accordance with law."

189. That said, Private Respondent also submits that


there is simply no legal basis to consider a "foundling" as a
"naturalized" Filipino.

189.1. The phrase "in accordance with law" in


par. 5, Section 1 of Article IV of the 1935 Constitution
must be construed in relation to the verb "naturalized"
which has a well-settled meaning in Philippine law.

(a) In Republic vs. Karbasi,389 Go vs. Republic,390 and So


vs. Republic, 391 the Supreme Court defined
"naturalization" as the legal act of adopting an alien
and clothing him with the privilege of a native-born
citizen. Under the present laws, the process of
naturalization can be judicial or administrative.

(b) In Republic vs. Batugas,392 the Supreme Court held


that "(u)nder existing laws, an alien may acquire
Philippine citizenship ... "

389 G.R. No. 210412, 29 July 2015


390 G.R. No. 202809, 2 July 2013
391 G.R. No. 170603, 29 January 2007
392 G.R. No. 183110, 7 October 2013
124

(c) In Mo Ya Lim Yao vs. the Commissioner of


Immigration, 393 the Supreme Court adopted the
following discussion by counsel on paragraph (5),
Section 1, Article IV of the 1935 Constitution:
"Citizens by naturalization, under this provision,
include not only those who are naturalized in
accordance with legal proceedings for the
acquisition of citizenship, but also those who
acquire citizenship by 'derivative naturalization' or
by operation of law, as for example, the
'naturalization' of an alien wife through the
naturalization of her husband, or by marriage of an
alien woman to a citizen."

(d) Mr. Aruego defined a "naturalized" citizen as one


"who, at the moment of birth, is an alien but who,
by an intervening act, is made a citizen."394

189.2. In sum, the subject of "naturalization" is


always an alien who becomes, through an intervening
act, a Filipino citizen.

189.3. The "intervening act/s" vary depending


on the law governing his naturalization and this is how
the phrase "in accordance with law" should be construed.

(a) Under R.A. No. 9139, otherwise known as the


"Administrative Naturalization Law of 2000," and
Commonwealth Act No. 4 73, otherwise known as
the "Revised Naturalization Law," the alien (who
must not be less than 18 years old) must file a
petition/application with the Special Committee on
Naturalization (under R.A. No. 9139) or with the
court (under C.A. No. 4 73). If the petition is
granted, a "decree" or "certificate" of naturalization"
is issued and the alien must take an oath of
allegiance to the Republic of the Philippines. Under
Section 15 of C.A. no. 473, an alien woman married
to a Filipino, who might herself be naturalized, will
be deemed a citizen of the Philippines.

(c) Aside from the usual process that the passing of a


law entails and the lobbying that precedes such

393 G.R. No. L-21289, 4 October 1971


39 4JOSE M. ARUEGO, THE NEW PHILIPPINE CONSTITUTION EXPLAINED 67 (1975).
125

enactment, naturalization of an alien by direct act of


Congress usually requires the taking of an oath of
allegiance and its registration with the Bureau of
I C

Immigration. 395

189.4. It is noteworthy that when the 1935


Constitution was adopted, the only law in force which
granted "naturalization," was Act No. 2927 or the
"Naturalization Law." Like the naturalization statutes
which succeeded it, this law also applied only to
foreigners396 and provided for the filing of the necessary
petition with the Court of First Instance. Based on
available resources, in 1935, there had been no grant of
citizenship by direct act of Congress to specific
individuals. It follows that when the members of the
1934 Constitutional Convention used the phrase
"naturalized in accordance with law," they specifically
had the "Naturalization Law" in mind and not any
municipal law or act of Congress, much less international
law.

189.5. On the other hand, when the members of


the 1934 Constitutional Convention discussed the
citizenship of foundlings, they did not say (or otherwise
express their intention) that a foundling could be
considered as a Filipino "naturalized in accordance with
law." The sub-paragraph on Filipinos "naturalized in
accordance with law'' was passed without even
mentioning "foundlings."397 On the contrary, as
discussed, when the framers declared that "by
international law," a foundling is a "citizen of this
nation," they had a jus sanguinis Philippine citizen in
mind. A foundling would fall under either paragraph (3)
or (4), Section 1 of the 1935 Constitution, but certainly
not paragraph (5) thereof.

190. In sum, the person subject of "naturalization" is, !2y


definition, an alien who, through the performance of an act
(i.e., the filing of the appropriate petition/application/request,
by marriage, and/or the taking of an oath of allegiance to the
Republic of the Philippines), becomes a Filipino. Sen. Poe was

395 See Footnote 321 of Sen. Poe's Memorandum on SPA 15-002 (DC)
3 96 SEC. 1. Who may become Philippine citizens. - Philippine citizenship may be
acquired by: (a) Natives of the Philippines who are not citizens thereof under the Jones
Law; (b) natives of the other Insular possessions of the United States; (c) citizens of the
United States, or foreigners who under the laws of the United States may become
citizens of said country if residing therein.
397 See Exhibit "32", p. 203
126

definitely not an alien at birth, and never had to undergo any


naturalization process.

191. "Naturalization" is clearly not what takes place


when a foundling is recognized as a Filipino from birth under
applicable international law. As explained, a foundling is a
Filipino (not an alien) from birth who does not have to do
anything to perfect her Filipino citizenship. A foundling,
therefore, falls squarely within the definition of a natural-born
Filipino, and totally outside the definition of a "naturalized"
Filipino.

192. Since Sen. Poe is not a Filipino "naturalized in


accordance with law," she must perforce be considered
"natural-born."

B.4.a. A distinction on the basis of


factual certainty of Filipino
parentage in determining natural-
born status is discriminatory and
violates the Equal Protection
Clause.

193. Article III, Section 1 of the 1987 Constitution


provides that "[n]o person shall be deprived of life, liberty or
property without the due process of law, nor shall any person
be denied the equal protection of the laws."

194. It is well-settled that this mandate of equal


protection simply means that all persons similarly situated
should be treated alike, both as to rights conferred and
responsibilities imposed. 398 The intention is to "secure and
safeguard equality of right and of treatment against intentional
and arbitrary discrimination, and to work nothing less than
the abolition of all caste and invidious class-based
legislation. "3 9 9 While the clause does not demand that all
persons be dealt with identically, nor require exact or perfect
equality, 400 it nevertheless requires that class distinctions be
based on a reasonable classification. As already stated, to be
reasonable, a classification: (a) must rest on substantial
distinctions; (b) must be germane to the purposes of the law;

398 lchong v. Hernandez, 101 Phil. 1155 (1957), and a host of other cases.
399 16B C.J.S. Constitutional Law 1098.
400 Id.
127

(c) must not be limited to existing conditions only; and (d)


must apply equally to all members of the same class. 401

195. Since all persons, at the moment of their birth,


enjoy equal rights, 402 and since the definition of who is a
natural-born citizen in the Constitution does not per se
distinguish on the basis of parentage, 4 03 any attempt to
distinguish between a child whose parentage is known, and a
child whose parentage is unknown or presumed (i.e., a
foundling) with respect to their acquisition of citizenship
rights-i.e., the acquisition of a "natural-born" status-must
meet the test of valid classification. There can be an equal
protection challenge against a law that is neutral on its face
but is administered in a manner that results to invidious
discrimination against a defined class. 404 Petitioner's theory
that the distinction between foundlings and children with
known parentage is valid fails to recognize that the
"distinction" being proposed does not rest on the language of
any law, but on its application.

195.1. The language of Article IV, Section 4 of


the 1987 Constitution, in defining who are "natural-born"
citizens, does not make any distinction on the basis of
knowledge (or lack thereof) of a person's parentage.
Instead, it simply lays down the requirement that, for a
person to be considered natural-born, he or she must
have been a citizen of the Philippines "without having to
perform any act to acquire or perfect [his or her]
citizenship".

195.2. As will be explained below, there is no


substantial difference between a person whose parentage
is known and a person whose parentage is presumed.
Moreover, a distinction on the basis of known (or
40 1People v. Cayat, G.R. No. L-45987, 5 May 1939
40 2See Article 1 of the UDHR, which provides that "[aJU human beings are born free and
equal in dignity and rights. They are endowed with reason and conscience and should
act towards one another in a spirit of brotherhood." The Philippines is a signatory to the
UDHR and recognizes this instrument in toto as "part of the law of the land."
403 Sec. 2, Article IV of the 1987 Constitution simply defines "natural-born citizens" as

"those who are citizens of the Philippines from birth without having to perform any act
to acquire or perfect their Philippine citizenship." By itself, the constitutional provision
does not require that a person's parentage be proven as a fact before one can be
considered "natural-born".
404 See Yick Wo v. Hopkins, 118 U.S. 356 (1886), where the US Supreme Court, through

Mr. Justice Marshall, held: "Though the law itself be fair on its face and impartial in
appearance, yet, if it is applied and administered by public authority with an evil eye
and an unequal hand. so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights, the denial of equal
justice is still within the prohibition of the Constitution." (underscoring supplied;
citation omitted. This
128

unknown) parentage is not germane to the purpose


sought to be achieved by our citizenship laws. Such a
distinction would in fact prejudice the foundling for an
unfortunate status he/ she is absolutely blameless for

196. To determine whether the distinction in the


acquisition of citizenship between foundlings and children
with known parentage is valid, the decisive questions that
must be answered, are: (1) whether the classification between
foundlings and children with known parentage is justified by
substantial distinctions which make for real differences, and
(2) whether such classification is germane for the achievement
of legitimate state interests served by the law. Clearly, the test
requires that a law which imposes special burdens on a class
of people must have a specific purpose, for the State "may not
draw distinctions between individuals solely on differences
that are irrelevant to a legitimate governmental objective."4os
Moreover, while a State has broad power when it comes to
making classifications, it may not draw a line which
constitutes an "invidious discrimination against a particular
class." 406

197. In a number of cases dealing with the question of


whether a particular person is a citizen, 407 it is apparent that
the purpose behind strict construction of citizenship laws is to
ensure that Philippine citizenship is "cherished and not taken
for granted. "408 Philippine citizenship ought to be considered "a
treasured right conferred on those whom the state believes are
deserving of the privilege. It is a 'precious heritage, as well as
an inestimable acquisition',"409 that ought not be taken lightly
by anyone. On the other hand, according to Justice Callejo,
Jr. in Tecson vs. COMELEC,4Io the distinction between natural-
born citizens and naturalized citizens is justified on the basis
of the presumption that natural-born citizens possess more
patriotism, fidelity, and loyalty to the Republic.

198. Such legitimate governmental objective by itself,


however, is not enough to satisfy the equal protection test. It
must also be shown that (1) substantial differences exist

405 Biraogo v. The Philippine Truth Commission of 2010, G.R. No. 192935, 667 SCRA
78, 167, 7 December 2010
406 Levy v. Louisiana, supra note 63 at 71
4 0 7 Republic v. Li Yao, G.R. No. 35947, 20 October 1992; Go v. Republic, G.R. No.

202809, 2 July 2014; So v. Republic, G.R. No. 170603, 29 January 2007; Tecson v.
COMELEC, G.R. No. 161434, 3 March 2004
408 Republic v. Li Yao, G.R. No. 35947, 20 October 1992
409; Tecson v. COMELEC, G.R. No. 161434, 3 March 2004
410 G.R. No. 161434, 3 March 2004
129

between the two classes; and (2) the classification made to


carry out such objective is relevant and appropriate, that is,
germane for such purpose. In determining whether the
classification between foundlings and children with known
parentage is relevant and germane for the purpose of
safeguarding the sanctity of Philippine citizenship, the strict
scrutiny standard41 l must be observed.

198.1. The presumption of constitutionality with


respect to governmental acts is reversed where the "basic
civil rights of man" are at issue. 412 When the equal
protection clause is invoked to protect basic civil rights, as
opposed to mere economic interest, courts are advised to
undertake a closer scrutiny in drawing the line between
constitutional and unconstitutional discrimination. 413
198.2. Under Section 10, Article II of the 1987
Constitution, the Philippines has an obligation to
"promote social justice in all phases of national
development." Foundlings are "persons accorded special
protection by the Constitution." Children, regardless of
certainty of their parentage, are constitutionally entitled
to "special protection from all forms of neglect, abuse,
cruelty, exploitation, and other conditions prejudicial to
their development."414

198.3. The Constitutional concepts of "equal


protection" and "social justice" work in tandem in favor of
the marginalized and disadvantaged members of
Philippine society. In his book entitled "Equal Dignity
and Respect: The Substance of Equal Protection and
Social Justice," former Chief Justice Reynato S. Puno
stated that the equal protection clause "ought to be
construed in consonance with social justice as 'the heart'
particularly of the 1987 Constitution-a transformative

411 Equal protection jurisprudence has given birth to three distinct standards of
scrutiny: the : a) the deferential or rational basis scrutiny in which the challenged
classification needs only be shown to be rationally related to serving a legitimate state
interest; b) the middle-tier or intermediate scrutiny in which the government must show
that the challenged classification serves an important state interest and that the
classification is at least substantially related to serving that interest; and c) strict
judicial scrutiny in which a legislative classification which impermissibly interferes with
the exercise of a fundamental right or operates to the peculiar dfsadvantage of a suspect
class is presumed unconstitutional. and the burden is upon the government to prove
that the classification is necessary to achieve a compelling state interest and that it is
the least restrictive means to protect such interest. (Serrano v. Gallant Maritime
Services, Inc., G.R. No. 167614, 582 SCRA 254, 277-278, 24 March 2009)
4 12 Skinner v. Oklahoma, 316 U.S. 535, 541(1942)
4 13 Harner v. Virginia Board of Elections 383 U.S. 663 (1966)

414 CONST. art. XV, 3(2) (Emphasis supplied)


130

covenant in which the Filipino people agreed to enshrine


asymmetrical equality to uplift disadvantaged groups and
build a genuinely egalitarian democracy." 415 Chief
Justice Puno stated further that the "The Expanded
Equal Protection Clause, anchored on the human rights
rationale, is designed as a weapon against the indignity
of discrimination so that in the patently unequal
Philippine society, each person may be restored to his or
her rightful position as a person with equal moral
status. "41 6

198.4. Thus, a classification which calls for a


distinction against foundlings calls for strict judicial
scrutiny because it prejudices persons accorded special
protection by the Constitution and hampers the State's
Constitutionally enshrined policy of "promoting social
justice."

199. Considering the foregoing, one must examine


whether, under strict scrutiny, the treatment of foundlings as
a particular class of citizens is relevant and appropriate for the
purpose of ensuring that Philippine citizenship is treasured,
and ensuring that those who are considered natural-born
citizens are loyal. The discriminatory application proposed by
Petitioner fails this test.

199.1. First, there is no substantial distinction


between a person whose Filipino parentage is proven as a
fact, and a person whose Filipino parentage is presumed.
From the point of view evidentiary law, presumptions
substitute for, and are of the same category as, facts. A
presumption is not of a lesser category than a fact that is
judicially proved. It serves precisely the same purpose as
facts in a situation where a fact cannot be proved.

199. 2. Assuming arguendo that there is no


presumption of Filipino parentage for a foundling, there
are still no "substantial distinctions which make for real
differences" between foundlings and children whose
parentage are known. An abandoned child with unknown
facts of birth is no different from another abandoned
child whose facts of birth are thereafter ascertained. To

415 Chief Justice Reynato S. Puno (ret.), "Equal Dignity and Respect: The Substance of
Equal Protection and Social Justice," (2012), p. 546. (Citation lifted from ithe Separate
Opinion of Justice Roberto A. Abad in Garcia vs. Drilon, G.R. No. 179267, 25 June
2013)
416 Id., at p. 523
131

make a distinction between the two classes on the basis


of an event which may or may not happen in the future
(i.e., ascertainment of facts of birth), and over which the
person has absolutely no control, is precisely to invite
'
invidious discrimination on the basis of arbitrary
conditions not found or imposed by any law.

199.3. Second, the distinction between a child


whose Filipino parentage is proven as a fact and a child
whose Filipino parentage is presumed is not germane for
the purpose of achieving the stated purpose of the law. If
Philippine citizenship is conceded, a person's knowledge
or lack thereof of the identity of her parents will not make
her any more or less loyal to her country, nor will it make
her any more or less appreciative of her citizenship. That
foundling would have gone thru the same schools, would
have imbibed the same Filipino culture, and would have
grown up in the same country as the child whose parents
are known.

199.4. The position that distinction against


foundlings for the purpose of determining their natural-
born status is valid, is premised on the obviously
baseless assumption that foundlings are ipherently less
loyal because they do not know who their parents are. If
the purpose behind Petitioner's espoused "strict
application" is to ensure loyalty of those who serve in
high offices, a distinction on the basis of knowledge (or
lack thereof) of biological parentage is grossly irrelevant.
Moreover, it will fail the test of strict scrutiny, as it will
not be the "least restrictive means" of protecting a
"compelling state interest".417

200. That discrimination among children on the basis of


certainty of parentage is unconstitutional is likewise supported
by international human rights law. Children, regardless of
certainty of filiation, are inherently equal. This is supported by
the Universal Declaration of Human Rights, the ICCPR, the UN
Declaration on the Rights of the Child, and the UN CRC.

4 17 See Serrano v. Gallant Maritime Inc., 582 SCRA 254


132

200.1. Article 1 of the UDHR4 IB enshrines the


principle of equality of rights and principle of non-
discrimination, viz:

All human beings are born free and ~qual in


digni!)' and rights. They are endowed with reason and
conscience and should act towards one another in a spirit
of brotherhood. 419
Applied to children, a foundling is, by the mere fact of
birth, entitled to stand equal in dignity with his fellow
children, free from artificial distinctions which do not
satisfy the principle of non-discrimination. These
qualities are "essential" for they are enjoyed from birth
without any need of formal recognition by law. 4 20

200.2. Articles 2 and 7 of the UDHR further


elaborate on the corollary principle of non-discrimination:
Article 2.
Everyone is entitled to all the rights and freedoms
set forth in this Declaration, without distinction of any
kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin,
property, birth or other status. Furthermore, no
distinction shall be made on the basis of the political,
jurisdictional or international status of the country or
territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other
limitation of sovereignty .421
Article 7.
All are equal before the law and are entitled
without any discrimination to equal protection of the law.
All are entitled to equal protection against any
discrimination in violation of this Declaration and against
any incitement to such discrimination.

418 The UDHR, adopted by a unanimous vote of the UN General Assembly on December
10, 1948, is an international document which, for the first time in history, spelled out
basic civil, political, economic, sodal and cultural rights that all persons are entitled to
by virtue of their common humanity. Consistent with the Charter of the United
Nations, 4 18 the UDHR was intended to provide for a "common standard of achievement
for all peoples and nations. "418 Although it originally had no binding effect, being a mere
Resolution of the General Assembly, over time the UDHR became widely accepted as
fundamental norms of human rights, to the point that it is referred to as the "Magna
Carta for all humanity." In the Philippines, the instrument in toto is considered part of
the law of the land.
4 19 Art. 1., UDHR
420 Id.
421 Underscoring supplied
133

200.3. Equality of rights and non-discrimination


among children is likewise embodied in Principle 2 of the
UN Declaration on the Rights of the Child ("UNDRC"), 422
adopted unanimously by the UN General Assembly in
1959, viz:

The child shall enjoy all the rights set forth in this
Declaration. Every child, without any exception
whatsoever, shall be entitled to these rights, without
distinction or discrimination on account of race, colour,
sex, language, religion, political or other opinion,
national or social origin, property, birth or other status,
whether ofhimself or ofhis family. 423

200.4. The UNDRC is a unanimous adoption by


the General Assembly and this implies that the
Declaration has a moral force because its principles have
the approval of all the member states of the United
Nation. 424 It is well to note that the Philippines is also a
signatory of the UNDRC.

200.5. The principle of non-discrimination is


also crystallized in Article 2 of the UNCRC 42 5, which
provides:

1) States Parties shall respect and ensure the rights set


forth in the present Convention to each child within
their jurisdiction without discrimination of any kind,
irrespective of the child's or his or her parent's or
legal guardian's race, colour, sex, language, religion,
political or other opinion, national, ethnic or social
origin, property, disability, birth or other status.

2) States Parties shall take all appropriate measures to


ensure that the child is protected against all forms of
discrimination or punishment on the basis of the
status, activities, expressed opinions, or beliefs of the

422 The UNDRC, consisting of a Preamble and ten principles, was adopted by the UN
General Assembly in 1959 with 70 votes to 0, with 2 abstentations.
423 Emphases supplied
4 2 4 GERALDINE VAN BUEREN, THE INTERNATIONAL LAW ON THE RIGHTS OF THE CHILD 7 (1995),

cited in SEDFREY M. CANDELARIA, THE CONVENTION ON THE RIGHTS OF THE CHILD AND THE
PHILIPPINE LEGAL SYSTEM 16 (1997). (Emphasis supplied)
42s The UNCRC entered into force on September 2, 1990. Its mother document is the

1924 Geneva Declaration on the Rights of the Child, adopted by the League of Nations
long before the creation of the United Nations after World War II. The significance of the
1924 Geneva Declaration lies in its recognition, for the first time, of children's rights as
a distinct category of rights subject to international protection. (SEDFREY M. CANDELARIA,
THE CONVENTION ON THE RIGHTS OF THE CHILD AND THE PHILIPPINE LEGAL SYSTEM ( 1997).
134

child's parents, legal guardians, or family


members. 426

The UNCRC is a treaty signed and ratified by the


Philippines, hence, part of domestic law. By ratifying the
Convention, the Philippines accepted an obligation to
respect, ensure, protect, promote and fulfil the
enumerated rights-including adopting or changing
municipal laws and policies in order to confonn with the
provisions of the CRC. This state obligation is
characterized as an active one. According to the CRC
Implementation Handbook:

[I]n terms of international law, the obligation "to respect"


requires States "to refrain from any actions which would
violate any of the rights of the child under the
Convention [ ... ] The obligation 'to ensure' goes well
beyond that of 'to respect', since it implies an affirmative
obligation on the part of the State to take whatever
measures are necessary to enable individuals to enjoy
and exercise the relevant rights. " 427

200.6. Under paragraph 1 of Article 2 of the


UNCRC, there is an affirmative obligation on the part of
the State to review its legislations in order to conform
with the principle of non-discrimination. 428 Paragraph 2,
on the other hand, has wider implications than
paragraph 1, in that it requires action against "all forms
of discrimination" not confined to the issues raised by the
Convention. 42 9 Its import is to obligate State parties to
take affirmative measures to protect the child from
discrimination of any kind, especially those which
operate as a punishment for the status, activities,
opinions, or beliefs of the child's parents or legal
guardians.

201. Petitioner here is not proposing an arbitrary


discrimination with innocuous or harmless effects. What is at
stake is not only a foundling's right to run for high public
offices, but the enjoyment of a host of even seemingly ordinary
rights or positions which our laws reserve only for natural-
426 (Emphases supplied)
427 CRC IMPLEMENTATION HANDBOOK, supra note 140, at 21, citing Philip Alston, The legal
framework of the Convention on the Rights of the Child, 91 BULL. HUM. RTs. 2, 5.
(Emphasis supplied)
42s CRC IMPLEMENTATION HANDBOOK, supra note 140, at 24
429 Id. at 30
135

born citizens. Indeed, if such unconstitutional distinction in


the application of Article IV, Section 2 of the 1987 Constitution
is upheld, this Honorable Court will prevent Private
Respondent, and all other foundlings similarly situated, from
enjoying a host of other rights. 430

430 1) Tobe elected or appointed to the following constitutional offices:


a.Senator (1987 Const., Article VI, Section 3)
b.Member of the House of Representatives (1987 Const., Article VI, Section 6)
c.President (1987 Const., Article VII, Section 2)
d.Vice President (1987 Const., Article VIII, Section 3)
e.Justice of the Supreme Court (1987 Const., Article VIII, Section 7 (1])
f.Chairman and Commissioners of the Civil Service Commission (1987 Const.,
Article IX-B, Section 1)
g. Chairman and Commissioners of the Commission on Elections (1987 Const.,
Article IX-C, Section 1)
h. Chairman and Commissioners of the Commission on Audit (1987 Const.,
Article IX-D, Section 1)
i. Ombudsman and Deputy Ombudsmen (1987 Const., Article XI, Section 8;
RA 6770)
j. Chairman and Commissioners of the Commission on Human Rights (1987
Const., Article XIII, Section 17 [1])

2) To hold the following appointive offices:


a. Commissioner or Deputy Commissioner of Immigration (Sec. 4 (b), CA No.
613)
b. Chairperson and Commissioners of the Securities and Exchange
Commission (Sec. 4.2 , RA No. 8799)
c. Director General and Deputy Directors General of the Intellectual Property
Office (Sec.7.2, RA No. 8293)
d. Governor of the Bangko Sentral ng Pilipinas (Sec. 8, RA No. 7653)
e. Members of the Monetary Board (1987 Const., Article XII, Section 20; Sec. 8,
RA No. 7653)
f. Postmaster General and Assistants Postmaster General (Sec. 20, RA No.
7354)
g. Secretary or Undersecretary of the Department of Agrarian Reform (Sec. 50,
RA No. 6389)
h. Director or Assistant Director of a Bureau, Department of Agrarian Reform
(Section 50-G, RA No. 6389)
i. Administrator, Department of Agrarian Reform (Sec. 101, RA No. 6389)
j. Justice of the Court of Appeals (1987 Const., art. VIII, sec. 5[1])
k. Justice of the Sandiganbayan (1987 Const., art. VIII, sec. 5 (1), Sec. 1, PD
1606)
1. Justice of the Court of Tax Appeals (1987 Const., art. VIII, sec. 5 [lJ)
m. Presiding Judge o( a Family Court (Sec. 4, RA 8369)
n. City Prosecutor and Assistant City Prosecutors of the City of Manila (Sec. 38,
RA No. 409, as amended)
o. Director General and Directors of the Council Secretariat of the National
Manpower and Youth Council (now TESDA) (Sec. 6, RA No. 5462)
p. Commissioner and Deputy Commissioner of the Land Transportation Office
(Sec. 4, R.A. No. 4136)
q. Commissioner and Assistant Commissioner of the Tariff Commission (Sec.
502, RA No. 1937)
r. Chairperson and Members of the Videogram Regulatory Board (now Optical
Media Board) (Sec.1, PD No. 1987)
s. Chairperson and Members of the MTRCB (Sec. 2, PD No. 1986)
t. Director or Assistant Director of the Bureau of Mines and Geo-Sciences (Sec.
2, PD No. 1281 as amended)
u. Executive Director of the Bicol River Basin Council (Sec. 5, EO No. 412)
v. Program Director of the Cotabato-Agusan River Basin Program (Sec. 3, PD
1556)
136

3) To become a member of the following public bodies:


a. Members of the Board of National Historical Commission of the Philippines
(Sec. 9, RA No. 10086)
b. Members of Energy Regulatory Commission (Section 38, RA No. 9136)
c. Members of ARMM Regional Assembly (Section 6, RA No. 9054)
d. Chairperson and Commissioners of the National Commission on Indigenous
Peoples (Sec. 41, RA No. 8371)
e. Commissioners of the National Youth Commission (Sec. 7, RA No. 8044)
f. Members of Legal Education Board (Sec. 4, RA No. 7662)
g. Members of Board of Directors of the Bases Conversion and Development
Authority (Sec. 9. R.A No. 7229)
h. Commissioners of Commission on the Filipino Language (Section 6, RA No.
7104)
i. Members of the Price Control Council (Section 2, RA No. 6361)
j. Members of the Board of the Philippine Coconut Authority (Section 10, RA
No. 6260)
k. Members of the Board of Directors of the Southeastern Samar Development
Authority (Sec. 20, RA No. 5920)
1. Members of the Board of Directors of the Laguna Lake Development
Authority (Sec. 21, RA No. 4850)
m. Members of the Board of Directors of the Bicol Development Corporation
(Sec. 21, RA No. 4690)
n. Members of the Anti- Dummy Board, Department of Justice (Section 1, RA
No. 6082)
o. Board of Directors of the Catanduanes Development Authority (Sec. 20, RA
No. 4412)
p. Members of the Board of Directors of the Mountain Province Development
Authority (Sec. 20, RA No. 4071)
q. Members of the Board of Directors of the Panay Development Authority (Sec.
17, RA No. 3856)
r. Members of the Board of Directors of the Mindanao Development Authority
(Sec. 20, RA No. 3034)
s. Members of Board of Development Bank of the Philippines (Sec. 8, EO No.
81, as amended)
t. Members of Board of Land Bank of the Philippines (Sec. 86, R.A No. 3844, as
amended)
u. President and members of the Board of Directors of the Philippine Export
Credit Insurance and Guarantee Corporation (Sec. 8, RA No. 6424)

4) To become a member of the following professional boards:


a. Members of the Professional Regulatory Board of Geology (Sec. 8, RA No.
10166)
b. Members of the Professional Regulatory Board of Psychology (Sec. 5, RA No.
10029)
c. Members of the Professional Regulatory Board of Respiratory Therapy (Sec.
5, RA No. 10024)
d. Members of the Professional Regulatory Board of Dentistry (Sec. 7, RA No.
9484)
e. Members of the Professional Regulatory Board of Accountancy (Sec. 6, RA
No. 9298)
f. Members of the Board of Chemical Engineering (Section 7, RA No. 9297)
g. Members of the Professional Regulatory Board for Librarians (Section 7, RA
No. 9246)
h. Members of the Professional Regulatory Board for Nursing (Section 4, RA
No. 9173)
i. Members of the Board of Landscape Architecture (Sec. 4, RA No. 9053)
j. Members of the Board of Geodetic Engineering (Sec. 4, RA No. 8560)
k. Members of the Board of Agricultural Engineering (Sec. 5, RA No. 8559)
1. Members of the Board of Mechanical Engineering (Sec. 5, RA No. 8495)
m. Members of the Board of Optometry (Sec. 8, RA No. 8050)
n. Members of the Board of Electrical Engineering (Sec. 5, RA No. 7920)
o. Members of the Board of Examiners for Criminologists (Sec. 3, RA No. 6506)
p. Members of the Board of Examiners for Foresters (Sec. 6, RA No. 6239)
q. Members of the Board of Pharmacy (Sec. 7, RA No. 5921)
137

202. Petitioner's stance that: factual certainty as to


parentage is required for one to be considered a natural-born
Filipino citizen-to repeat, a distinction that is not found in
the law itself.-will result in absurd and discriminatory
consequences. It is settled that an interpretation should be
rejected if it will operate unjustly, lead to absurd results, or
contradict the evident meaning of the statute taken as a
whole.431 The law must be given a reasonable interpretation at
all times,432 especially in this case where the language of the
Constitution itself, in defining who are natural-born citizens,
does not make a distinction between those whose Filipino
parentage is proven as a fact and those whose Filipino
parentage is presumed. It cannot be argued that the citizens,
in ratifying the Constitution, intended such absurd and unjust
consequences as Petitioner is espousing in this case.

B.5. Contrary to the dissenting opinions of


SET members which Petitioner cited, a
foundling can be considered a "natural-
born" Filipino because (a) the
presumption of descent under
applicable principles of international
law does not violate the }us sanguinis
principle, or the Constitutional
definition of "natural-born"
citizenship; (b) in statutory
construction, an interpretation which
r. Members of the Board of Medical Examiners (Sec. 14, RA No. 2382, as
amended)

5) To engage in the following occupations:


a. Registered Pharmacist (Sec. 18, RA No. 5921)
b. Registered Pharmacists who can open a retail drugstore (Sec. 39, RA No.
5921)
c. Officer of the Philippine Coast Guard (Sec. 12, RA No. 9993)
d. Officers of the Regular Force of the Armed Forces (Sec. 4, RA No. 291)

6) To hold a free patent (Sec. 44, CA 141)


7) To receive a state scholarship in science, arts, and letters (Sec. 2, RA No. 4090)
8) To receive a scholarship under the Educational Reform Assistance Package for
Mindanaoan Muslims (AO No. 57, s. 1999)
9) To be a qualified transferee of private lands, notwithstanding loss of Philippine
citizenship (1987 Const., art. XII, sec. 8; BP 185; Sec.10, R.A. 7042)
10) To engage in retail trade with the same rights as Filipino citizens,
notwithstanding loss of Philippine citizenship (Sec. 4, R.A.8762)
11) To have the same investment rights as a Philippine citizen in Cooperatives under
Republic Act No. 6938, Rural Banks under Republic Act No. 7353, Thrift Banks
arid Private Development Banks under Republic Act No. 7906, and Financing
Companies under Republic Act No. 5980, notwithstanding loss of Philippine
citizenship. (Sec. 9, RA 7042 as amended)
431 Secretary of Justice v. Koruga, G.R. No. 166199, 24 April 2009
432 Chavez v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012
138

harmonizes and gives effect to all


applicable provisions of law should be
favoured, especially in this case where
there is no clear prohibition in the
Constitution; and (c) the interpretation
given by the SET is one that gives
effect to the fundamental principles
animating the present Constitution.

(a) The presumption of descent under


applicable principles of international law
does not violate the jus sangum1s
principle, or the Constitutional definition of
"natural-born" citizenship.

203. Petitioner cites the dissenting opinion of Justice De


Castro, to the effect that "the provision of an international
convention on a supposed 'disputable presumption' of
citizenship/ nationality" "cannot be applied in the face of the
constitutional requirement of biological or blood ties to a
Filipino father or mother to be a natural-born citizen." 4 33
Petitioner argues, ad nauseam, that international law could
not be the basis for natural-born citizenship, because
international law cannot "override" or "prevail" over the
principle of jus sanguinis under the Constitution. This ruling
is premised on the assumption that there is a conflict between
the principle of jus sanguinis on the one hand, and the
recognition or presumption of a foundling's natural-born
citizenship under international law, on the other. This
supposed conflict alluded to by Petitioner is more imagined
than real.

203.1. Fi.rst, as discussed, even under the 1935


Constitution, international law which is either
"transformed" (under the treaty clause) or "incorporated"
(under the incorporation clause) forms part of the law of
the land.

203.2. Second, Article IV on Citizenship in the


1935 Constitution was based significantly on
international law principles. In fact, the presumption of
the citizenship of a foundling under international law is
the basis for the intent of the framers to include

433 Petition, par. 6.43, p. 51


139

foundlings in the concept of fus sanguinis Philippine


citizens. To repeat, they were deliberating what
eventually became paragraphs (3) and (4) of Section 1,
Article IV of the 1935 Constitution (children of Filipino
fathers and mothers) when they discussed the citizenship
of foundlings.

203.3. Third, under international law


(specifically, the Convention on the Reduction of
Statelessness and applicable State legislation), a
foundling is presumed born of citizens of the Philippines.
This is consistent with the principle of jus sanguinis, as
enshrined in paragraphs (3) and (4) of Section 1, Article
IV of the 1935 Constitution which considers as Filipinos
those whose fathers or mothers are "citizens of the
Philippines." As discussed earlier, it is by applying this
presumption that a foundling found in jus sanguinis
States may enjoy its right to a nationality and right
against statelessness. The situation would, of course, be
different if the presumption of natural-born citizenship
were applied despite an admitted or proven fact that the
foundling was born to foreigners. Such application of
international law would, indeed, contravene the
Constitution. But that is not the case here, because it
was neither alleged nor proved that Sen. Poe's biological
parents are aliens.

203.4. Fourth, presumptions are generally


founded upon basic principles of justice, laws of nature,
the experienced course of human conduct and affairs or
the connection usually found to exist between specific
agencies. 4 34 Presumptions arise from motives of public
policy and for the sake of greater certainty. They owe
their existence to necessity and are based on general
experience. The necessity which brings them into
existence is the fact that in their absence many
meritorious causes would fail through inability to
produce affirmative evidence of essential facts,
concerning the existence of which the general experience
of men leaves but slight doubt. 4 35 Since presumptions
take the pla:ce of facts in the absence of evidence, 4 36 there
is no valid basis to distinguish between persons who can
establish their bloodline by proof and those who can do
so by presumption.

434 PADILLA, EVIDENCE, Vol. 2, 1994 ed. P.62, citing 20 Am. Jur Sec. 158, p.162
435 Id., citing 31 CJS, Sec.114, pp. 723-724
436 See Section 3, Rule 131 of the Rules of Court
140

203.5. Fifth, the natural-born citizenship of a


person may be established using presumptions. This is
precisely what the Supreme Court did in Tecson vs.
COMELEC,437 as discussed in paragraph 118.1 above. In
Tecson, the Court found that Sen. Poe's father, the late
Fernando Poe, Jr., is a natural-born Filipino, based
ultimately on a presumption that his grandfather had
resided in the Philippines in 1899, and therefore
benefitted from the mass Filipinization that took place in
1902, thus:

203.6. Sixth, Sen. Poe is more likely to have been


born to Filipino parents, than aliens. The possibility that
she was actually born to foreigners is very slim. This is
also the reason behind the international law presumption
that a foundling is a citizen of the country where he or
she is found-because of the likelihood, borne out by
human experience, that said abandoned infant is in fact
born of residents in the locality, who are more likely than
not nationals of that country. Therefore, there is
essentially no risk that a foundling (who is, in reality, a
foreigner) would enjoy presumptive natural-born Filipino
status.

203. 7. Seventh, a ruling on citizenship is never


final. If someone is later able to specify two foreigners
and is able to conclusively show them to be Sen. Poe's
parents, then that would be sufficient to overcome the
presumption of her natural-born citizenship. The reverse
cannot be applied to a foundling-i. e., consider him or
her stateless in the meantime, until and unless he or she
can prove that he or she was born of Filipino parents, for
to do so would violate the Philippines' treaty obligations
under the UNCRC and ICCPR, in relation to UDHR, to
implement the right of a child to acquire a nationality
from birth, and to not leave him at any time stateless.

203.8. Eighth, under the 1935 Constitution,


natural-born Filipino citizenship is not always based on
blood relationship. Thus, according to Aruego, a member
of the 1934 Constitutional Convention and noted
authority on the 1 935 Constitution, the "understanding
by the National Assembly under the original 1935
Philippine Constitution that for the purpose of election to

437 G.R. No. 161434, 3 March 2004


141

the bicameral Congress which was instituted with the


1939-1940 amendments requiring the fact of being
natural-born for election thereto, the term natural-born
citizen meant anybody who was not so by
naturalization. "438 In other words, even some of those
who were not Philippine citizens by blood, i.e., those
citizens "at the time of the adoption" of the 1935
Constitution" or those "born in the Philippine Islands of
foreign parents who, before adoption of the Constitution,
had been elected to public office in the Philippine
Islands," were still considered "natural-born", and in fact
had been elected into offices requiring natural-born
citizenship, including the Presidency.439

203.9. Finally, by defining natural-born citizens


as those who are citizens "from birth," as opposed to ".Qy
birth," the intent of the Constitution was not to limit
natural-born citizens to those who are related, by blood,
to Filipino parents. Moreover, there is nothing in the
Constitutional definition of natural-born Filipino
citizenship44 0 which confines such status "solely and
exclusively" to actual proof of blood relationship to a
Filipino father or mother. 44 1 The definition of natural-
born citizenship does not say "those born of a Filipino
father or mother proven as a fact", or even "those born of
a Filipino father or mother", but rather, "those who do
not have to perform any act to acquire or perfect their
Filipino citizenship."442 Clearly, the definition of natural-
born citizenship is broad enough to contemplate
citizenship ex lege or by operation of law, apart from
naturalization, which always involves a positive act on

438JOSE M. ARUEGO, THE NEW PHILIPPINE CONSTITUTION EXPLAINED 68 ( 1975)


439 It must be noted that, under the interpretation proposed by Petitioner, i.e., that
natural-born citizenship is acquired strictly by proving a "blood tien to a Filipino parent,
the first "natural-born" Filipino President will be Pres. Ramon Magsaysay. All other
Presidents before him, including Presidents Manuel L. Quezon, Sergio Osmefia, and
Elpidio Quirino, elected under the aegis of the 1935 Constitution requiring natural-born
citizenship for the Presidency, were Filipino citizens by reason of the en masse
Filipinization of the Philippine Bill of 1902, and fall within the category of those who
were "Philippine citizens at the time of the adoption of [the 1935) Constitution.
440 Sec. 2, Art. IV, 1987 Constitution
441 Indeed, considering that the filiation of children is sometimes also a presumption
created by law (e.g., children conceived or born during the marriage of their parents are
presumed to be the child of the husband, and their legitimate filiation cannot be
impugned but by the husband himself or his heirs and only on limited grounds during
a limited period), the Constitution cannot provide for such definition. In other words,
tying natural-born Filipino status to actual proof of the existence of a blood tie between
a child and a Filipino parent would be tantamount to requiring each Filipino citizen to
prove, through scientific evidence such as DNA, that they are beyond the shadow of
doubt the biological child of a parent who is Filipino.
442 Underscoring supplied
142

the part of an alien who wishes to acquire Philippine


citizenship.

204. Based on the foregoing, there is nothing


unconstitutional about presuming that Sen. Poe was born of
Filipinos or that she is a natural-born Filipino, even though
she cannot, as yet, prove that she is related by blood to
citizens of the Philippines. To reiterate, the definition of
natural-born citizenship under the Constitution is !!Q!
restricted to a "bloodline to a Filipino parent"; it merely
requires that a person be a citizen by operation of law, without
having to perform an act to acquire or perfect such citizenship.
Even if it did, the application of the presumption of law as to
the citizenship of the parents of the foundling as provided in
"generally accepted principles of international law would place
the foundling's right to a nationality within the bloodline
requirement of natural-born citizenship.

205. The following pronouncement in Co vs. HRET is


highly instructive on the issue of citizenship of foundlings:

Our citizens no doubt constitute the country's greatest


wealth. Citizenship is a special privilege which one must
forever cherish.

However, in order to truly revere this treasure of


citizenship, we do not, on the basis of too harsh an
interpretation, have to unreasonably deny it to those who
qualify to share in its richness. 443

(b) In statutory construction, an


interpretation which hannonizes and
gives effect to all applicable
provisions of law should be favoured,
especially in this case where there is
no clear prohibition in the
Constitution against granting Filipino
citizenship to foundlings.

206. Petitioner's theory is that, because Article IV of the


1935 Constitution is silent with respect to the citizenship of
children with unknown parents, they must perforce be
"excluded" from the enumeration, and considered not Filipino
citizens. However, it simply does not follow that since Article

443 Underscoring supplied


143

IV of the 1935 Constitution is silent with respect to foundlings,


they can be automatically be "excluded" from the enumeration.
Moreover, it does not follow that any other article or provision
of law which may suggest that they are or may be deemed
natural-born citizens is automatically violative of the
Constitution.

207. To the contrary, the silence of the 1 935 Constitution


allows for an interpretation that can harmonize the provisions
of said Constitution with other applicable provisions of law,
such as provisions of an international convention transfonned
into municipal law through the process of ratification. Thus,
the SET majority correctly considered the implications of the
Philippines' treaty obligations under international human
rights instruments, and the applicability of generally accepted
principles of international law to determine the citizenship of
foundlings like Private Respondent. Since foundlings are not
definitely excluded among the category of Filipino citizens, an
interpretation upholding their citizenship will be more
consistent with the Philippines' positive obligations under the
UDHR, the UNCRC, and the ICCPR to "implement" a child's
"right to acquire a nationality" or the "right to a nationality"
"from the moment of birth" and to ensure that no new-born
child is left stateless.

208. It is a basic principle of statutory construction that


the Constitution must be interpreted as a whole. Ut magis
valeat quam pereat. Thus, in Francisco vs. House of
Representatives, 444 citing Civil Liberties Union v. Executive
Secretary, 44 this Honorable Court affirmed that:

It is a well-established rule in constitutional construction


that no one provision of the Constitution is to be separated from
all the others, to be considered alone, but that all the provisions
bearing upon a particular subject are to be brought into view
and to be so interpreted as to effectuate the great purposes of
the instrument. Sections bearing on a particular subject should
be considered and interpreted together as to effectuate the
whole purpose of the Constitution and one section is not to be
allowed to defeat another, if by any reasonable construction, the
two can be made to stand together.

In other .words, the court must . harmonize them, if


practicable, and must lean in favor of a construction which will

444 G.R. No. 160261, 10 November 2003


144

render every word operative. rather than one which may make
the words idle and nugatory. (Emphasis supplied)445

209. Thus, Petitioner's arguments, which effectively


translates to a plea to consider Article IV of the 1 935
Constitution in isolation and give it an interpretation that is
patently antagonistic to other provisions of the same
Constitution, such as Section 3, Article II (on the applicability
of generally accepted principles of international law, is
patently erroneous. The SET majority, on whom he ascribes
grave abuse of discretion, actually adopted the correct
interpretation by favoring one that harmonizes and gives effect
to different parts of the Constitution and other provisions or
principles of international law, which has the same status as
municipal law.

(c) Grave abuse of discretion being


absent, the interpretation given by
the SET should be upheld because it
is one that gives effect to
fundamental principles animating the
present Constitution.

210. All told, the SET's reliance on legal prov1s1ons


supporting the proposition that a foundling found in the
Philippines is presumed born of Filipino citizens, and, since he
or she did not have to perform an act to acquire or perfect
such citizenship, may be considered a natural-born Filipino, is
justified not only by law, but the principles of equity and
fairness. Since Petitioner was not able to show grave abuse of
discretion, this must be upheld, not only because the SET is
the sole judge of the issue of Private Respondent's
qualification, but also because its interpretation upholds the
fundamental principles animating the present Constitution.

210.1. The foremost principle animating the


Constitution is the sovereign people's desire to build a
"just and humane society". 44 6 While "independence",
"democracy", and "rule of law" are treasured ideals of the
sovereign, it is trumped by the primordial principle of
justice and primacy of human rights. This is but logical,
for law, indeed, rule of law, is not an end to itself, but is
designed to promote full enjoyment by the individual of
his or her rights. Indeed, full respect for human rights
is guaranteed in Section 11, Article II of the 1987
445 Boldfaced in the original
446 Preamble, 1987 Constitution
145

Constitution. The fact that it is expressly mentioned in


the declaration of state principles and state policies-the
second Article of the Constitution which precedes even
the Bill of Rights and the Article on citizenship-
underscores its importance in construing other
provisions of the Constitution, to the end that the entire
document may be interpreted in a manner that gives
effect to the people's rights, consistent with the ideals
that permeate the Constitution which they created.

211. Citizenship is the "right to have rights." It is so


fundamental an aspect for the enjoyment of other human
rights, that it cannot be seriously contested that the
recognition of the right to a nationality and the right to be
protected against statelessness are "generally accepted
principles of international law." To uphold Petitioner's
arguments is tantamount to the disenfranchisement and
statelessness by judicial fiat of thousands of foundlings who
have heretofore enjoyed the benefits of citizenship, and were
actually recognized by the State as Filipino citizens. This is a
matter of transcendental importance that goes beyond Private
Respondent's seat in the Senate, or indeed, the political
fortunes of any party.

212. In conclusion, and taking into account the


discussion laid down by Private Respondent so far, upholding
Petitioner's arguments will violate not only Article VI, Section
17 (on the exclusivity of jurisdiction of the SET), but a host of
other Constitutional provisions as well:

Article II, Section 2. The Philippines renounces war as an


instrument of national policy, adopts the generally accepted
principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.

Article II, Section 11. The State values the dignity of every
human person and guarantees full respect for human rights.

Article III, Section 1. No person shall be deprived of life,


liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.

Article II, Section 10. The State shall promote social justice in
all phases of national development.
146

Article II, Section 13. The State recognizes the vital role of the
youth in nation-building and shall promote and protect their
physical, moral, spiritual, intellectual, and social well-being. It
shall inculcate in the youth patriotism and nationalism, and
encourage their involvement in public and civic affairs.

Article XV, Section 3 The State shall defend: x x x (2) The


right of children to assistance, including proper care and
nutrition, and special protection from all forms of neglect,
abuse, cruelty, exploitation and other conditions prejudicial to
their development; x x x

213. Clearly, between a just and humane choice of


upholding these provisions, and an unjust and inhumane
option of sticking to a harsh, if not erroneous, interpretation of
Article IV on citizenship, there is no reason why the SET, or
this Honorable Court for that matter, would not choose to
uphold the former. Private Respondent once again invokes this
Honorable Court's pronouncement in Co vs. HRET, that "in
order to truly revere" the treasure of Philippine citizenship, it
should not, "on the basis of too harsh an interpretation, have
to [be] unreasonably den[ ied] to those who qualify to share in
its richness."4 47 The closing words of Justice Guarifla in his
opinion article published in the 10 December 2015 issue of the
Philippine Daily Inquirer is apt:

Let us not give in so cavalierly to the false theory that


foundlings cannot be natural-born citizens under our
Constitution. In the name of all the civilized values we hold
dear, let us make the principle of equality in our Constitution a
living reality for those whom fate has placed at a disadvantage.

COMMENT /OPPOSITION
ON THE APPLICATION FOR TEMPORARY RESTRAINING
ORDER OR WRIT OF PRELIM:INARY INJUNCTION

214. Petitioner is not entitled to the provisional remedy of


a temporary restraining order or writ of preliminary injunction.
He has utterly failed to establish the requisites for the
issuance of any of these extraordinary provisional reliefs: viz:
(1) clear right in esse to the reliefs demanded; (2) material
substantial invasion of such right; (3) irreparable injury that
may result from such invasion; and (4) extreme urgency.

447 Underscoring supplied


147

215. A writ of preliminary injunction is an extraordinary


event which must be granted only in the face of actual and
existing substantial rights. 448 To be entitled thereto, the
applicant must establish that: (a) the invasion of right sought
to be protected is material and substantial; (b) the right of the
complainant is clear and unmistakable; and (c) there is an
urgent and paramount necessity for the writ to prevent serious
damage.449 While the existence of the right need not be
conclusively established, a clear showing is at least necessary,
and the applicant must show that he has an ostensible right
to the final relief prayed for in his complaint. 4 so

216. Under Section 3, Rule 58 of the Rules of Court, a


TRO and/or writ of preliminary injunction may be granted
when it is established, among others, that "a party, court,
agency or a person is doing, threatening, or is attempting to
do, or is procuring or suffering to be done, some act or acts
probably in violation of the rights of the applicant respecting
the subject of the action or proceeding, and tending to render
the judgment ineffectual. "451

217. Petitioner claims that his right to question the


ineligibility of Private Respondent is being violated by the
assailed Decision and Resolution of the SET. Aside from
alleging that, as a registered voter, he is "a particle of popular
sovereignty", he does not show, indeed even say, how the
implementation of the assailed SET Decision and Resolution
constitutes a material invasion of such "right." It must be
emphasized that Petitioner fully availed of his "right" to
question the qualifications of Private Respondent when he
instituted the quo warranto proceedings below. He does not
allege that such proceedings were void, or even that he was
deprived of due process at any stage.

218. Petitioner was also not able to establish a "clear


right" to the reliefs he prayed for. He himself admits that the
citizenship qualification of Private Respondent is an issue of
first impression, and the SET-the sole judge of such issue-
already gave its final word on the issue. Considering that the
SET is constitutionally mandated to be the "sole judge" of the
qualifications of a sitting Senator, and taking into account
Petitioner's failure to establish even a pri.ma facie case of grave

44a Air Transportation Office v. Court of Appeals, G.R. No. 173616, 25 June 2014
449 Lukang v. Pagbilao Development Corn .. G.R. No. 195374, 10 March 2014
450 Id.
451 Underscoring and emphasis ours
148

abuse of discretion on the part of SET, it is clear that his


alleged "right" to the reliefs he prayed for is at best doubtful.

219. The elements of irreparable injury and urgent


necessity are likewise absent. In fact, Petitioner did not even
care to allege the presence of these two elements. That said,
Private Respondent is a sitting Senator of the Republic. She
represents not just the twenty (20) million voters who elected
her into office, but the sovereign people in its entirety. To the
contrary, it is the public who stands to suffer grave and
irreparable injury, in the form of a deprivation of their
representation in the Senate, in case Private Respondent is
removed from office. While Private Respondent concedes that
Petitioner is a "particle of popular sovereignty", she
respectfully submits that this is not an election case, nor even
a case wherein Petitioner is being deprived of his right as a
voter. To repeat, he has fully availed of his remedies in the
proceedings below. The SET having upheld Private
Respondent's qualification for office, such determination
should be respected, and no reason, urgent or otherwise,
exists in the meantime to prematurely deprive the people of
their representation on the basis of one man's persistent
doubt.

RELIEF

WHEREFORE, Private Respondent Mary Grace Natividad


Sonora Poe-Llamanzares respectfully prays that this
Honorable Court:

a) DENY Petitioner's application for a temporary


restraining order and/ or writ of preliminary
injunction; and

b) DISMISS the instant Petition for Certiorari dated 8


December 2015; and

c) AFFIRM the Senate Electoral Tribunal's Decision


dated 17 November 2015 and its Resolution dated 3
December 2015 in SET Case No. 001-15 entitled
David vs. Poe-Llamanzares.

Other just and equitable reliefs are likewise prayed for.

Makati City for City of Manila, 4 January 2016.


1'19

POBLADOR BAUTISTA & REYES


Counsel for Private Respondent
Senator Mary Grace Natividad Sonora Poe Llamanzares
5th Floor, SEDCCO I Building
120 Rada corner Legaspi Streets
Legaspi Village, Makati City
Tel No. 893-7623/Fax No. 893-7622
E-Mail: centraj@pbrlaw.com.ph

. By: ~ -t -J ./..f' -
ALEXANDER J. POBLADOR
PTR No. 4777501/Jan. 27, 2015/Ma.kati City
Lifetime IBP No. 00066 /Ma.kati City
OR No. 345214/March 1, 1993
Roll of Attorneys No. 29440
MCLE Compliance No. V-0009389/July 22, 2015

0 VIVEaA. TAMAYO
o. "477750 7Jan. 27 2015/Ma.kati City
Lifetime IBP o. 1293/Quezon City
OR No. 449518/December 29, 1997
Roll of Attorneys No. 36289
MCLE Compliance No. IV-0015221/April 2, 2013
. /. //-----j )
.. --~

. / ~-1
:)" _,,./.,,,. "'-:-::.r /'

JJJS~~~Ei~~zA
f>':CRNo. 4777518/Jan. 27, 2015/Makati City
/IBP No. 979194/Jan. 08, 2015/Makati City
/ Roll of Attorneys No. 56980
MCLE Compliance No. IV-0017855/ April 22, 2013

SANDRA M~ T. ir_':'~
No. 4896418/May 8, ~5/Mak~ City
IBP No. 1007077 /April 14, 20
Roll of Attorneys No. 64 795
Newly Admitted, M.C.L.E. Governing Board Order
I.S. 2008, July 4, 2008
150

COPY FURNISHED:

ATTY. MANUELITO R. LUNA


Counsel for Petitioner
Luna Law Office, Room 412
FEMII Building Annex
A. Soriano, Jr. Avenue, Intramuros, Manila

SENATE ELECTORAL TRIBUNAL


COA-NCR Building, Batasan Road
Quezon City

OFFICE OF THE SOLICITOR GENERAL


134 Amorsolo St., Legaspi Village
Makati City

EXPLANATION

Copies of this Comment were served by registered mail


instead of the preferred mode of personal service due to
distance, time and manpower constraints. Pursuant to Section
6 of A.M. No. 11-9-4-SC (Efficient Use of Paper Rule), copies of
the Annexes to this Comment were no longer served on the
parties, all of these being part of the records of the case that
are already in their possession. A copy of the Comment with a
full set of Annexes was additionally served to the Office of the
Solicitor General.