G.R. No.

161434 March 3, 2004

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners,

vs.
The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO
POE, JR.) and VICTORINO X. FORNIER, respondents.

x-----------------------------x

G.R. No. 161634 March 3, 2004

ZOILO ANTONIO VELEZ, petitioner,

vs.
RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent.

x-----------------------------x

G. R. No. 161824 March 3, 2004

VICTORINO X. FORNIER, petitioner,

vs.
HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO
KNOWN AS FERNANDO POE JR., respondents.

DECISION

VITUG, J.:

Citizenship is 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,"1 that cannot be taken
lightly by anyone - either by those who enjoy it or by those who dispute it.

Before the Court are three consolidated cases, all of which raise a single question of profound
importance to the nation. The issue of citizenship is brought up to challenge the qualifications of
a presidential candidate to hold the highest office of the land. Our people are waiting for the
judgment of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now
one of the main contenders for the presidency, a natural-born Filipino or is he not?

The moment of introspection takes us face to face with Spanish and American colonial roots and
reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a
hybrid of laws and jurisprudence that could be no less than distinctly Filipino.

Antecedent Case Settings

On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr.
(hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic
of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the
forthcoming national elections. In his certificate of candidacy, FPJ, representing himself to be a
natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan"
Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila.

Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner,
versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando
Poe, Jr., Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before
the Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to
cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in
his certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth,
according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an
American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a
Spanish subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he
could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of
an alien mother. Petitioner based the allegation of the illegitimate birth of respondent on two
assertions - first, Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his
marriage to Bessie Kelley and, second, even if no such prior marriage had existed, Allan F. Poe,
married Bessie Kelly only a year after the birth of respondent.

In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in
support of his claim, presented several documentary exhibits - 1) a copy of the certificate of birth
of FPJ, 2) a certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez
attesting to her having filed a case for bigamy and concubinage against the father of respondent,
Allan F. Poe, after discovering his bigamous relationship with Bessie Kelley, 3) an English
translation of the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan
F. Poe, 5) a certification issued by the Director of the Records Management and Archives Office,
attesting to the fact that there was no record in the National Archives that a Lorenzo Poe or
Lorenzo Pou resided or entered the Philippines before 1907, and 6) a certification from the
Officer-In-Charge of the Archives Division of the National Archives to the effect that no
available information could be found in the files of the National Archives regarding the birth of
Allan F. Poe.

On his part, respondent, presented twenty-two documentary pieces of evidence, the more
significant ones being - a) a certification issued by Estrella M. Domingo of the Archives Division
of the National Archives that there appeared to be no available information regarding the birth of
Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a certification issued by the
Officer-In-Charge of the Archives Division of the National Archives that no available
information about the marriage of Allan F. Poe and Paulita Gomez could be found, c) a
certificate of birth of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the
Registry of Deeds for the Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax
Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a
copy of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage contract
between Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil
Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said office during
the period of from 1900 until May 1946 were totally destroyed during World War II.
On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days
later, or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied
on 06 February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the
decision of the COMELEC before this Court conformably with Rule 64, in relation to Rule 65,
of the Revised Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise
prayed for a temporary restraining order, a writ of preliminary injunction or any other resolution
that would stay the finality and/or execution of the COMELEC resolutions.

The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434,
entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on
Elections, Ronald Allan Kelley Poe (a.k.a. ‘Fernando Poe, Jr.’), and Victorino X. Fornier," and
the other, docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley
Poe, a.k.a. Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting
that, under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court
had original and exclusive jurisdiction to resolve the basic issue on the case.

Jurisdiction of the Court

In G. R. No. 161824

In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due
course to or cancel FPJ’s certificate of candidacy for alleged misrepresentation of a material fact
(i.e., that FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked
Section 78 of the Omnibus Election Code –

"Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A
verified petition seeking to deny due course or to cancel a certificate of candidacy may be
filed by any person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false" –

in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus
Election Code -

"Section 52. Powers and functions of the Commission on Elections. In addition to the
powers and functions conferred upon it by the Constitution, the Commission shall have
exclusive charge of the enforcement and administration of all laws relative to the conduct
of elections for the purpose of ensuring free, orderly and honest elections" -

and in relation to Article 69 of the Omnibus Election Code which would authorize "any
interested party" to file a verified petition to deny or cancel the certificate of candidacy of
any nuisance candidate.

Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court
per Rule 642 in an action for certiorari under Rule 653 of the Revised Rules of Civil Procedure.
Section 7, Article IX, of the 1987 Constitution also reads –
 "Each Commission shall decide by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or resolution upon the
filing of the last pleading, brief, or memorandum, required by the rules of the
Commission or by the Commission itself. Unless otherwise provided by this Constitution
or by law, any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a
copy thereof."

Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is
vested in one Supreme Court and in such lower courts as may be established by law which power
"includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and 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."

It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and
could well be taken cognizance of by, this Court. A contrary view could be a gross denial to our
people of their fundamental right to be fully informed, and to make a proper choice, on who
could or should be elected to occupy the highest government post in the land.

In G. R. No. 161434 and G. R. No. 161634

Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the
provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the
jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the
Supreme Court to instead take on the petitions they directly instituted before it. The
Constitutional provision cited reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may
promulgate its rules for the purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973
Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential
contests, has constrained this Court to declare, in Lopez vs. Roxas, 4 as "not (being) justiciable"
controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to
enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral
Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the
Vice-President-Elect of the Philippines and Providing for the Manner of Hearing the Same."
Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court
to be the members of the tribunal. Although the subsequent adoption of the parliamentary form
of government under the 1973 Constitution might have implicitly affected Republic Act No.
1793, the statutory set-up, nonetheless, would now be deemed revived under the present Section
4, paragraph 7, of the 1987 Constitution.
Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election
contests consist of either an election protest or a quo warranto which, although two distinct
remedies, would have one objective in view, i.e., to dislodge the winning candidate from office.
A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential
Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would
support this premise -

"Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President of the Philippines.

"Rule 13. How Initiated. - An election contest is initiated by the filing of an election
protest or a petition for quo warranto against the President or Vice-President. An election
protest shall not include a petition for quo warranto. A petition for quo warranto shall not
include an election protest.

"Rule 14. Election Protest. - Only the registered candidate for President or for Vice-
President of the Philippines who received the second or third highest number of votes
may contest the election of the President or the Vice-President, as the case may be, by
filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty
(30) days after the proclamation of the winner."

The rules categorically speak of the jurisdiction of the tribunal over contests relating to the
election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and
not of "candidates" for President or Vice-President. A quo warranto proceeding is generally
defined as being an action against a person who usurps, intrudes into, or unlawfully holds or
exercises a public office.5 In such context, the election contest can only contemplate a post-
election scenario. In Rule 14, only a registered candidate who would have received either the
second or third highest number of votes could file an election protest. This rule again
presupposes a post-election scenario.

It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph
7, of the 1987 Constitution, would not include cases directly brought before it, questioning the
qualifications of a candidate for the presidency or vice-presidency before the elections are held.

Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on
Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley
Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction.

The Citizenship Issue

Now, to the basic issue; it should be helpful to first give a brief historical background on the
concept of citizenship.

Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in
384 to 322 B.C., described the "citizen" to refer to a man who shared in the administration of
justice and in the holding of an office.6Aristotle saw its significance if only to determine the
constituency of the "State," which he described as being composed of such persons who would
be adequate in number to achieve a self-sufficient existence.7 The concept grew to include one
who would both govern and be governed, for which qualifications like autonomy, judgment and
loyalty could be expected. Citizenship was seen to deal with rights and entitlements, on the one
hand, and with concomitant obligations, on the other. 8 In its ideal setting, a citizen was active in
public life and fundamentally willing to submit his private interests to the general interest of
society.

The concept of citizenship had undergone changes over the centuries. In the 18th century, the
concept was limited, by and large, to civil citizenship, which established the rights necessary for
individual freedom, such as rights to property, personal liberty and justice. 9 Its meaning
expanded during the 19th century to include political citizenship, which encompassed the right to
participate in the exercise of political power.10 The 20th century saw the next stage of the
development of social citizenship, which laid emphasis on the right of the citizen to economic
well-being and social security.11 The idea of citizenship has gained expression in the modern
welfare state as it so developed in Western Europe. An ongoing and final stage of development,
in keeping with the rapidly shrinking global village, might well be the internationalization of
citizenship.12

The Local Setting - from Spanish Times to the Present

There was no such term as "Philippine citizens" during the Spanish regime but "subjects of
Spain" or "Spanish subjects."13 In church records, the natives were called 'indios', denoting a low
regard for the inhabitants of the archipelago. Spanish laws on citizenship became highly codified
during the 19th century but their sheer number made it difficult to point to one comprehensive
law. Not all of these citizenship laws of Spain however, were made to apply to the Philippine
Islands except for those explicitly extended by Royal Decrees.14

Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in
Spain on 16 July 1805 but as to whether the law was extended to the Philippines remained to be
the subject of differing views among experts;15 however, three royal decrees were undisputably
made applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August
1841,16 the Royal Decree of 23 August 1868 specifically defining the political status of children
born in the Philippine Islands,17 and finally, the Ley Extranjera de Ultramar of 04 July 1870,
which was expressly made applicable to the Philippines by the Royal Decree of 13 July 1870. 18

The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the
express mandate of its Article 89, according to which the provisions of the Ultramar among
which this country was included, would be governed by special laws. 19

It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889,
which came out with the first categorical enumeration of who were Spanish citizens. -

"(a) Persons born in Spanish territory,

"(b) Children of a Spanish father or mother, even if they were born outside of Spain,
 "(c) Foreigners who have obtained naturalization papers,

"(d) Those who, without such papers, may have become domiciled inhabitants of any
town of the Monarchy."20

The year 1898 was another turning point in Philippine history. Already in the state of decline as a
superpower, Spain was forced to so cede her sole colony in the East to an upcoming world
power, the United States. An accepted principle of international law dictated that a change in
sovereignty, while resulting in an abrogation of all political laws then in force, would have no
effect on civil laws, which would remain virtually intact.

The Treaty of Paris was entered into on 10 December 1898 between Spain and the United
States.21 Under Article IX of the treaty, the civil rights and political status of the native
inhabitants of the territories ceded to the United States would be determined by its Congress -

"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by
the present treaty relinquishes or cedes her sovereignty may remain in such territory or
may remove therefrom, retaining in either event all their rights of property, including the
right to sell or dispose of such property or of its proceeds; and they shall also have the
right to carry on their industry, commerce, and professions, being subject in respect
thereof to such laws as are applicable to foreigners. In case they remain in the territory
they may preserve their allegiance to the Crown of Spain by making, before a court of
record, within a year from the date of the exchange of ratifications of this treaty, a
declaration of their decision to preserve such allegiance; in default of which declaration
they shall be held to have renounced it and to have adopted the nationality of the territory
in which they reside.

Thus –

"The civil rights and political status of the native inhabitants of the territories hereby
ceded to the United States shall be determined by the Congress."22

Upon the ratification of the treaty, and pending legislation by the United States Congress on the
subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did
not become American citizens, they, however, also ceased to be "aliens" under American laws
and were thus issued passports describing them to be citizens of the Philippines entitled to the
protection of the United States.

The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of
1902, also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive
legislation of the Congress of the United States on the Philippines -

".... that all inhabitants of the Philippine Islands continuing to reside therein, who were
Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and
their children born subsequent thereto, shall be deemed and held to be citizens of the
Philippine Islands and as such entitled to the protection of the United States, except such
 as shall have elected to preserve their allegiance to the Crown of Spain in accordance
with the provisions of the treaty of peace between the United States and Spain, signed at
Paris, December tenth eighteen hundred and ninety eight."23

Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the
Philippines, and a Spanish subject on the 11th day of April 1899. The term "inhabitant" was taken
to include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and
3) an inhabitant who obtained Spanish papers on or before 11 April 1899.24

Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01
July 1902, during which period no citizenship law was extant in the Philippines. Weight was
given to the view, articulated in jurisprudential writing at the time, that the common law
principle of jus soli, otherwise also known as the principle of territoriality, operative in the
United States and England, governed those born in the Philippine Archipelago within that
period.25 More about this later.

In 23 March 1912, the Congress of the United States made the following amendment to the
Philippine Bill of 1902 -

"Provided, That the Philippine Legislature is hereby authorized to provide by law for the
acquisition of Philippine citizenship by those natives of the Philippine Islands who do not
come within the foregoing provisions, the natives of other insular possession of the
United States, and such other persons residing in the Philippine Islands who would
become citizens of the United States, under the laws of the United States, if residing
therein."26

With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the
first time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor
General in the Philippines when he initially made mention of it in his slogan, "The Philippines
for the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated
virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in
1912 -

"That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh
day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their
children born subsequently thereto, shall be deemed and held to be citizens of the
Philippine Islands, except such as shall have elected to preserve their allegiance to the
Crown of Spain in accordance with the provisions of the treaty of peace between the
United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-
eight and except such others as have since become citizens of some other country;
Provided, That the Philippine Legislature, herein provided for, is hereby authorized to
provide for the acquisition of Philippine citizenship by those natives of the Philippine
Islands who do not come within the foregoing provisions, the natives of the insular
possessions of the United States, and such other persons residing in the Philippine Islands
who are citizens of the United States, or who could become citizens of the United States
under the laws of the United States, if residing therein."
Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of
the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing
in the Philippines on said date, and, 3) since that date, not a citizen of some other country.

While there was, at one brief time, divergent views on whether or not jus soli was a mode of
acquiring citizenship, the 1935 Constitution brought to an end to any such link with common
law, by adopting, once and for all, jus sanguinis or blood relationship as being the basis of
Filipino citizenship -

"Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines -

"(1) Those who are citizens of the Philippine Islands at the time of the adoption of this
Constitution

"(2) Those born in the Philippines 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."

Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law
provisions at the time, which provided that women would automatically lose their Filipino
citizenship and acquire that of their foreign husbands, resulted in discriminatory situations that
effectively incapacitated the women from transmitting their Filipino citizenship to their
legitimate children and required illegitimate children of Filipino mothers to still elect Filipino
citizenship upon reaching the age of majority. Seeking to correct this anomaly, as well as fully
cognizant of the newly found status of Filipino women as equals to men, the framers of the 1973
Constitution crafted the provisions of the new Constitution on citizenship to reflect such
concerns -

"Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.

"(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution
of nineteen hundred and thirty-five.

"(4) Those who are naturalized in accordance with law."

For good measure, Section 2 of the same article also further provided that –

"A female citizen of the Philippines who marries an alien retains her Philippine
citizenship, unless by her act or omission she is deemed, under the law to have renounced
her citizenship."

The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for
subsection (3) thereof that aimed to correct the irregular situation generated by the questionable
proviso in the 1935 Constitution.

Section I, Article IV, 1987 Constitution now provides:

"The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.

"(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and

"(4) Those who are naturalized in accordance with law."

The Case Of FPJ

Section 2, Article VII, of the 1987 Constitution expresses:

"No person may be elected President unless he is a natural-born citizen of the Philippines,
a registered voter, able to read and write, at least forty years of age on the day of the
election, and a resident of the Philippines for at least ten years immediately preceding
such election."

The term "natural-born citizens," is defined to include "those who are citizens of the Philippines
from birth without having to perform any act to acquire or perfect their Philippine citizenship." 27

The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the
1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus
soli, res judicata and jus sanguinis28 – had been in vogue. Only two, i.e., jus soli and jus
sanguinis, could qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per
Roa vs. Collector of Customs29 (1912), did not last long. With the adoption of the 1935
Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor 30 (1947), jus sanguinis
or blood relationship would now become the primary basis of citizenship by birth.

Documentary evidence adduced by petitioner would tend to indicate that the earliest established
direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the
father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in
evidence, his death certificate, however, identified him to be a Filipino, a resident of San Carlos,
Pangasinan, and 84 years old at the time of his death on 11 September 1954. The certificate of
birth of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Español
father, Lorenzo Pou, and a mestiza Español mother, Marta Reyes. Introduced by petitioner was
an "uncertified" copy of a supposed certificate of the alleged marriage of Allan F. Poe and
Paulita Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley
reflected the date of their marriage to be on 16 September 1940. In the same certificate, Allan F.
Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley
to be twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ,
would disclose that he was born on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years
old, married to Bessie Kelly, an American citizen, twenty-one years old and married.

Considering the reservations made by the parties on the veracity of some of the entries on the
birth certificate of respondent and the marriage certificate of his parents, the only conclusions
that could be drawn with some degree of certainty from the documents would be that -

1. The parents of FPJ were Allan F. Poe and Bessie Kelley;

2. FPJ was born to them on 20 August 1939;

3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940;

4. The father of Allan F. Poe was Lorenzo Poe; and

5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old.

Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born
Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate
of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of
a public officer. The documents have been submitted in evidence by both contending parties
during the proceedings before the COMELEC.

The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for
respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit
"21" for respondent. The death certificate of Lorenzo Pou was submitted by respondent as his
Exhibit "5." While the last two documents were submitted in evidence for respondent, the
admissibility thereof, particularly in reference to the facts which they purported to show, i.e., the
marriage certificate in relation to the date of marriage of Allan F. Poe to Bessie Kelley and the
death certificate relative to the death of Lorenzo Pou on 11 September 1954 in San Carlos,
Pangasinan, were all admitted by petitioner, who had utilized those material statements in his
argument. All three documents were certified true copies of the originals.

Section 3, Rule 130, Rules of Court states that -

 "Original document must be produced; exceptions. - When the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document
itself, except in the following cases:

"x x x xxx xxx

"(d) When the original is a public record in the custody of a public office or is recorded in
a public office."

Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F.
Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their
contents. Section 44, Rule 130, of the Rules of Court provides:

"Entries in official records. Entries in official records made in the performance of his
duty by a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts therein stated."

The trustworthiness of public documents and the value given to the entries made therein could be
grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty
which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most
such statements, and 4) the publicity of record which makes more likely the prior exposure of
such errors as might have occurred.31

The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the
age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born
sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would
argue that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902
considering that there was no existing record about such fact in the Records Management and
Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other
place during the same period. In his death certificate, the residence of Lorenzo Pou was stated to
be San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to
conclude, or at least to presume, that the place of residence of a person at the time of his death
was also his residence before death. It would be extremely doubtful if the Records Management
and Archives Office would have had complete records of all residents of the Philippines from
1898 to 1902.

Proof of Paternity and Filiation

Under Civil Law.

Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the
child to the father [or mother]) or paternity (relationship or civil status of the father to the child)
of an illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the
mandatory rules under civil law must be used.
Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up
until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect,
acknowledgment was required to establish filiation or paternity. Acknowledgment was either
judicial (compulsory) or voluntary. Judicial or compulsory acknowledgment was possible only if
done during the lifetime of the putative parent; voluntary acknowledgment could only be had in a
record of birth, a will, or a public document.32 Complementary to the new code was Act No.
3753 or the Civil Registry Law expressing in Section 5 thereof, that -

"In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly
by the parents of the infant or only by the mother if the father refuses. In the latter case, it
shall not be permissible to state or reveal in the document the name of the father who
refuses to acknowledge the child, or to give therein any information by which such father
could be identified."

In order that the birth certificate could then be utilized to prove voluntary acknowledgment of
filiation or paternity, the certificate was required to be signed or sworn to by the father. The
failure of such requirement rendered the same useless as being an authoritative document of
recognition.33 In Mendoza vs. Mella,34 the Court ruled -

"Since Rodolfo was born in 1935, after the registry law was enacted, the question here
really is whether or not his birth certificate (Exhibit 1), which is merely a certified copy
of the registry record, may be relied upon as sufficient proof of his having been
voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While
it contains the names of both parents, there is no showing that they signed the original, let
alone swore to its contents as required in Section 5 of Act No. 3753. For all that might
have happened, it was not even they or either of them who furnished the data to be
entered in the civil register. Petitioners say that in any event the birth certificate is in the
nature of a public document wherein voluntary recognition of a natural child may also be
made, according to the same Article 131. True enough, but in such a case, there must be a
clear statement in the document that the parent recognizes the child as his or her own."

In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document
was the signature of Allan F. Poe found. There being no will apparently executed, or at least
shown to have been executed, by decedent Allan F. Poe, the only other proof of voluntary
recognition remained to be "some other public document." In Pareja vs. Pareja, 35 this Court
defined what could constitute such a document as proof of voluntary acknowledgment:

"Under the Spanish Civil Code there are two classes of public documents, those executed
by private individuals which must be authenticated by notaries, and those issued by
competent public officials by reason of their office. The public document pointed out in
Article 131 as one of the means by which recognition may be made belongs to the first
class."

Let us leave it at that for the moment.

The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into
voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a
record of birth, a will, a statement before a court of record or in any authentic writing. Legal
acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child
who was recognized or judicially declared as natural. Compulsory acknowledgment could be
demanded generally in cases when the child had in his favor any evidence to prove filiation.
Unlike an action to claim legitimacy which would last during the lifetime of the child, and might
pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could
only be brought during the lifetime of the presumed parent.

Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to
be an authentic writing for purposes of voluntary recognition, simply as being a genuine or
indubitable writing of the father. The term would include a public instrument (one duly
acknowledged before a notary public or other competent official) or a private writing admitted
by the father to be his.

The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175
provide:

"Art. 172. The filiation of legitimate children is established by any of the following:

"(1) The record of birth appearing in the civil register or a final judgment; or

"(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

"In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

"(1) The open and continuous possession of the status of a legitimate child; or

"(2) Any other means allowed by the Rules of Court and special laws.

"Art. 173. The action to claim legitimacy may be brought by the child during his or her
lifetime and shall be transmitted to the heirs should the child die during minority or in a
state of insanity. In these cases, the heirs shall have a period of five years within which to
institute the action.

"The action already commenced by the child shall survive notwithstanding the death of
either or both of the parties.

"x x x xxx x x x.

"Art. 175. Illegitimate children may establish their illegitimate filiation in the same way
and on the same, evidence as legitimate children.
 "The action must be brought within the same period specified in Article 173, except when
the action is based on the second paragraph of Article 172, in which case the action may
be brought during the lifetime of the alleged parent."

The provisions of the Family Code are retroactively applied; Article 256 of the code reads:

"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws."

Thus, in Vda. de Sy-Quia vs. Court of Appeals,36 the Court has ruled:

"We hold that whether Jose was a voluntarily recognized natural child should be decided
under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides
that 'the voluntary recognition of a natural child shall take place according to this Code,
even if the child was born before the effectivity of this body of laws' or before August 30,
1950. Hence, Article 278 may be given retroactive effect."

It should be apparent that the growing trend to liberalize the acknowledgment or recognition of
illegitimate children is an attempt to break away from the traditional idea of keeping well apart
legitimate and non-legitimate relationships within the family in favor of the greater interest and
welfare of the child. The provisions are intended to merely govern the private and personal
affairs of the family. There is little, if any, to indicate that the legitimate or illegitimate civil
status of the individual would also affect his political rights or, in general, his relationship to the
State. While, indeed, provisions on "citizenship" could be found in the Civil Code, such
provisions must be taken in the context of private relations, the domain of civil law; particularly -

"Civil Law is that branch of law which has for its double purpose the organization of the
family and the regulation of property. It has thus [been] defined as the mass of precepts
which determine and regulate the relations of assistance, authority and obedience among
members of a family, and those which exist among members of a society for the
protection of private interests."37

In Yañez de Barnuevo vs. Fuster,38 the Court has held:

"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family
rights and duties, or to the status, condition and legal capacity of persons, govern
Spaniards although they reside in a foreign country; that, in consequence, 'all questions of
a civil nature, such as those dealing with the validity or nullity of the matrimonial bond,
the domicile of the husband and wife, their support, as between them, the separation of
their properties, the rules governing property, marital authority, division of conjugal
property, the classification of their property, legal causes for divorce, the extent of the
latter, the authority to decree it, and, in general, the civil effects of marriage and divorce
upon the persons and properties of the spouses, are questions that are governed
exclusively by the national law of the husband and wife."
The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of
the Civil Code, stating that -

"Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad" -

that explains the need to incorporate in the code a reiteration of the Constitutional provisions on
citizenship. Similarly, citizenship is significant in civil relationships found in different parts of
the Civil Code,39 such as on successional rights and family relations. 40 In adoption, for instance,
an adopted child would be considered the child of his adoptive parents and accorded the same
rights as their legitimate child but such legal fiction extended only to define his rights under civil
law41 and not his political status.

Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude
may be traced to the Spanish family and property laws, which, while defining proprietary and
successional rights of members of the family, provided distinctions in the rights of legitimate and
illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of
titles and wealth were strictly according to bloodlines and the concern to keep these bloodlines
uncontaminated by foreign blood was paramount.

These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code,
and the invidious discrimination survived when the Spanish Civil Code became the primary
source of our own Civil Code. Such distinction, however, remains and should remain only in the
sphere of civil law and not unduly impede or impinge on the domain of political law.

The proof of filiation or paternity for purposes of determining his citizenship status should thus
be deemed independent from and not inextricably tied up with that prescribed for civil law
purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although
good law, do not have preclusive effects on matters alien to personal and family relations. The
ordinary rules on evidence could well and should govern. For instance, the matter about pedigree
is not necessarily precluded from being applicable by the Civil Code or Family Code provisions.

Section 39, Rule 130, of the Rules of Court provides -

"Act or Declaration about pedigree. The act or declaration of a person deceased, or

unable to testify, in respect to the pedigree of another person related to him by birth or
marriage, may be received in evidence where it occurred before the controversy, and the
relationship between the two persons is shown by evidence other than such act or
declaration. The word `pedigree’ includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately connected with pedigree."

For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable
to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the
person whose pedigree is in question, (d) declaration must be made before the controversy has
occurred, and (e) the relationship between the declarant and the person whose pedigree is in
question must be shown by evidence other than such act or declaration.

Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe
submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F.
Poe, recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley
and his children (including respondent FPJ) in one house, and as one family -

"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton,
California, U.S.A., after being sworn in accordance with law do hereby declare that:

"1. I am the sister of the late Bessie Kelley Poe.

"2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.

"3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly
known in the Philippines as `Fernando Poe, Jr.,’ or `FPJ’.

"4. Ronald Allan Poe `FPJ’ was born on August 20, 1939 at St. Luke's Hospital,
Magdalena Street, Manila.

"x x x xxx xxx

"7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were
students at the University of the Philippines in 1936. I was also introduced to Fernando
Poe, Sr., by my sister that same year.

"8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.

"9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald,
Allan and Fernando II, and myself lived together with our mother at our family's house
on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945,
except for some months between 1943-1944.

"10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children
after Ronald Allan Poe.

"x x x xxx xxx

"18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan
Poe is a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr.

"Done in City of Stockton, California, U.S.A., this 12th day of January 2004.

Ruby Kelley Mangahas Declarant DNA Testing

In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be
difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the
illegitimate child and any physical residue of the long dead parent could be resorted to. A
positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals,42 this Court
has acknowledged the strong weight of DNA testing -

"Parentage will still be resolved using conventional methods unless we adopt the modern and
scientific ways available. Fortunately, we have now the facility and expertise in using DNA test
for identification and parentage testing. The University of the Philippines Natural Science
Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA
typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA
of a child/person has two (2) copies, one copy from the mother and the other from the father. The
DNA from the mother, the alleged father and the child are analyzed to establish parentage. Of
course, being a novel scientific technique, the use of DNA test as evidence is still open to
challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the
admissibility of DNA evidence. For it was said, that courts should apply the results of science
when competently obtained in aid of situations presented, since to reject said result is to deny
progress."

Petitioner’s Argument For Jurisprudential Conclusiveness

Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have
transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to
petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted
marriage with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley
bigamous and respondent FPJ an illegitimate child. The veracity of the supposed certificate of
marriage between Allan F. Poe and Paulita Gomez could be most doubtful at best. But the
documentary evidence introduced by no less than respondent himself, consisting of a birth
certificate of respondent and a marriage certificate of his parents showed that FPJ was born on 20
August 1939 to a Filipino father and an American mother who were married to each other a year
later, or on 16 September 1940. Birth to unmarried parents would make FPJ an illegitimate child.
Petitioner contended that as an illegitimate child, FPJ so followed the citizenship of his mother,
Bessie Kelley, an American citizen, basing his stand on the ruling of this Court in Morano vs.
Vivo,43 citing Chiongbian vs. de Leo44 and Serra vs. Republic.45

On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most
convincing; he states -

"We must analyze these cases and ask what the lis mota was in each of them. If the
pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement
would be a decision constituting doctrine under the rule of stare decisis. But if the
pronouncement was irrelevant to the lis mota, the pronouncement would not be a decision
but a mere obiter dictum which did not establish doctrine. I therefore invite the Court to
look closely into these cases.
"First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father.
It was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and
a Chinese father. The issue was whether the stepson followed the naturalization of the
stepfather. Nothing about jus sanguinis there. The stepson did not have the blood of the
naturalized stepfather.

"Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a
Filipino father. It was about a legitimate son of a father who had become Filipino by
election to public office before the 1935 Constitution pursuant to Article IV, Section 1(2)
of the 1935 Constitution. No one was illegitimate here.

"Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino
father. Serra was an illegitimate child of a Chinese father and a Filipino mother. The
issue was whether one who was already a Filipino because of his mother who still needed
to be naturalized. There is nothing there about invidious jus sanguinis.

"Finally, Paa vs. Chan.46 This is a more complicated case. The case was about the
citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed
that his father, Leoncio, was the illegitimate son of a Chinese father and a Filipino
mother. Quintin therefore argued that he got his citizenship from Leoncio, his father. But
the Supreme Court said that there was no valid proof that Leoncio was in fact the son of a
Filipina mother. The Court therefore concluded that Leoncio was not Filipino. If Leoncio
was not Filipino, neither was his son Quintin. Quintin therefore was not only not a
natural-born Filipino but was not even a Filipino.

"The Court should have stopped there. But instead it followed with an obiter dictum. The
Court said obiter that even if Leoncio, Quintin's father, were Filipino, Quintin would not
be Filipino because Quintin was illegitimate. This statement about Quintin, based on a
contrary to fact assumption, was absolutely unnecessary for the case. x x x It was obiter
dictum, pure and simple, simply repeating the obiter dictum in Morano vs. Vivo.

"x x x xxx xxx

"Aside from the fact that such a pronouncement would have no textual foundation in the
Constitution, it would also violate the equal protection clause of the Constitution not once
but twice. First, it would make an illegitimate distinction between a legitimate child and
an illegitimate child, and second, it would make an illegitimate distinction between the
illegitimate child of a Filipino father and the illegitimate child of a Filipino mother.

"The doctrine on constitutionally allowable distinctions was established long ago by

People vs. Cayat.47 I would grant that the distinction between legitimate children and
illegitimate children rests on real differences. x x x But real differences alone do not
justify invidious distinction. Real differences may justify distinction for one purpose but
not for another purpose.
 "x x x What is the relevance of legitimacy or illegitimacy to elective public service?
What possible state interest can there be for disqualifying an illegitimate child from
becoming a public officer. It was not the fault of the child that his parents had illicit
liaison. Why deprive the child of the fullness of political rights for no fault of his own?
To disqualify an illegitimate child from holding an important public office is to punish
him for the indiscretion of his parents. There is neither justice nor rationality in that. And
if there is neither justice nor rationality in the distinction, then the distinction transgresses
the equal protection clause and must be reprobated."

The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor
Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis
of petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail.

Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it
did so for the benefit the child. It was to ensure a Filipino nationality for the illegitimate child of
an alien father in line with the assumption that the mother had custody, would exercise parental
authority and had the duty to support her illegitimate child. It was to help the child, not to
prejudice or discriminate against him.

The fact of the matter – perhaps the most significant consideration – is that the 1935
Constitution, the fundamental law prevailing on the day, month and year of birth of respondent
FPJ, can never be more explicit than it is. Providing neither conditions nor distinctions, the
Constitution states that among the citizens of the Philippines are "those whose fathers are
citizens of the Philippines." There utterly is no cogent justification to prescribe conditions or
distinctions where there clearly are none provided.

In Sum –

(1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over
the petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the
Revised Rules of Civil Procedure. G.R. No. 161824 assails the resolution of the
COMELEC for alleged grave abuse of discretion in dismissing, for lack of merit, the
petition in SPA No. 04-003 which has prayed for the disqualification of respondent FPJ
from running for the position of President in the 10th May 2004 national elections on the
contention that FPJ has committed material representation in his certificate of candidacy
by representing himself to be a natural-born citizen of the Philippines.

(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R.
No. 161434 and No. 161634 both having been directly elevated to this Court in the
latter’s capacity as the only tribunal to resolve a presidential and vice-presidential
election contest under the Constitution. Evidently, the primary jurisdiction of the Court
can directly be invoked only after, not before, the elections are held.

(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been
committed by the COMELEC, it is necessary to take on the matter of whether or not
respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the
 father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the
affirmative, whether or not the alleged illegitimacy of respondent prevents him from
taking after the Filipino citizenship of his putative father. Any conclusion on the Filipino
citizenship of Lorenzo Pou could only be drawn from the presumption that having died in
1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when
the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of
residence upon his death in 1954, in the absence of any other evidence, could have well
been his place of residence before death, such that Lorenzo Pou would have benefited
from the "en masse Filipinization" that the Philippine Bill had effected in 1902. That
citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe,
father of respondent FPJ. The 1935 Constitution, during which regime respondent FPJ
has seen first light, confers citizenship to all persons whose fathers are Filipino citizens
regardless of whether such children are legitimate or illegitimate.

(4) But while the totality of the evidence may not establish conclusively that respondent
FPJ is a natural-born citizen of the Philippines, the evidence on hand still would
preponderate in his favor enough to hold that he cannot be held guilty of having made a
material misrepresentation in his certificate of candidacy in violation of Section 78, in
relation to Section 74, of the Omnibus Election Code. Petitioner has utterly failed to
substantiate his case before the Court, notwithstanding the ample opportunity given to the
parties to present their position and evidence, and to prove whether or not there has been
material misrepresentation, which, as so ruled in Romualdez-Marcos vs.
COMELEC,48 must not only be material, but also deliberate and willful.

WHEREFORE, the Court RESOLVES to DISMISS –

1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr.,
Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando
Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo
Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.,
Respondent," for want of jurisdiction.

2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission

on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.," for failure
to show grave abuse of discretion on the part of respondent Commission on Elections in
dismissing the petition in SPA No. 04-003.

No Costs.

SO ORDERED.

Davide, Jr., C.J., see separate opinion, concurring.

Puno, J., on leave but was allowed to vote; see separate opinion.
Panganiban, J., on official leave; allowed to vote but did not send his vote on the matter.
Quisumbing, J., joins the dissent of Justices Tinga and Morales; case should have been
remanded.
Ynares-Santiago, J., concurs and also with J. Puno’s separate opinion.
Sandoval-Gutierrez, J., concurs, please see separate opinion.
Carpio, J., see dissenting opinion.
Austria-Martinez, J., concurs, please see separate opinion.
Corona, J., joins the dissenting opinion of Justice Morales.
Carpio-Morales, J., see dissenting opinion.
Callejo, Sr., J., please see concurring opinion.
Azcuna, J., concurs in a separate opinion.
Tinga, J., dissents per separate opinion.

SEPARATE OPINION

DAVIDE, JR. C.J.:

The procedural and factual antecedents of these consolidated cases are as follows:

On 9 January 2004, petitioner Victorino X. Fornier filed with public respondent Commission on
Elections (COMELEC) a petition to disqualify private respondent Fernando Poe, Jr. (FPJ) and to
deny due course to or cancel his certificate of candidacy for the position of President in the
forthcoming 10 May 2004 presidential elections. As a ground therefore, he averred that FPJ
committed falsity in a material representation in his certificate of candidacy in declaring that he
is a natural-born Filipino citizen when in truth and in fact he is not, since he is the illegitimate
son of Bessie Kelley, an American citizen, and Allan Poe, a Spanish national. The case was
docketed as COMELEC Case SPA No. 04-003 and assigned to the COMELEC’s First Division.

At the hearing before the First Division of the COMELEC, petitioner Fornier offered FPJ’s
record of birth to prove that FPJ was born on 20 August 1939 to Bessie Kelley, an American
citizen, and Allan Poe, who was then married to Paulita Gomez. Upon the other hand, FPJ tried
to establish that his father was a Filipino citizen whose parents, although Spanish nationals, were
Filipino citizens. He adduced in evidence a copy of the marriage contract of Allan Poe and
Bessie Kelley, showing that they were married on 16 September 1940 in Manila.

In its Resolution of 23 January 2004, the First Division of the COMELEC dismissed COMELEC
Case SPA No. 04-003 for lack of merit. It declared that COMELEC’s jurisdiction is limited to all
matters relating to election, returns and qualifications of all elective regional, provincial and city
officials, but not those of national officials like the President. It has, however, jurisdiction to pass
upon the issue of citizenship of national officials under Section 78 of the Omnibus Election Code
on petitions to deny due course or cancel certificates of candidacy on the ground that any
material representation contained therein is false. It found that the evidence adduced by
petitioner Fornier is not substantial, and that FPJ did not commit any falsehood in material
representation when he stated in his certificate of candidacy that he is a natural-born Filipino
citizen.
His motion for reconsideration filed before the COMELEC en banc having been denied,
petitioner Fornier filed a petition with this Court, which was docketed as G.R. No. 161824.

Meanwhile, petitioners Maria Jeanette C. Tecson and Felix B. Desiderio, Jr. came to this Court
via a special civil action for certiorari under Rule 65 of the Rules of Court, docketed as G.R. No.
161434, to challenge the jurisdiction of the COMELEC over the issue of the citizenship of FPJ.
They assert that only this Court has jurisdiction over the issue in light of the last paragraph of
Section 4 of Article VII of the Constitution, which provides:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election
returns, and qualifications of the President or Vice-President, and may promulgate its rules for
the purpose.

On 29 January 2004 petitioner Velez filed a similar petition, which was docketed as G.R. No.
161634.

The core issues in these consolidated cases, as defined by the Court during the oral argument, are
as follows:

(1) Whether the COMELEC has jurisdiction over petitions to deny due course to or
cancel certificates of candidacy of Presidential candidates;

(2) Whether the Supreme Court has jurisdiction over the petitions of (a) Tecson, et al., (b)
Velez, and (c) Fornier; and

(3) Whether respondent FPJ is a Filipino citizen, and if so, whether he is a natural-born
Filipino citizen.

These consolidated petitions must be dismissed.

Both the petitions of Tecson and Velez invoke the jurisdiction of this Court as provided for in the
last paragraph of Section 4 of Article VII of the Constitution, and raise the issue of the
ineligibility of a candidate for President on the ground that he is not a natural-born citizen of the
Philippines. The actions contemplated in the said provision of the Constitution are post-election
remedies, namely, regular election contests and quo warranto. The petitioner should have,
instead, resorted to pre-election remedies, such as those prescribed in Section 68
(Disqualifications), in relation to Section 72; Section 69 (Nuisance candidates); and Section 78
(Petition to deny course to or cancel a certificate of candidacy), in relation to Section 74, of the
Omnibus Election Code, which are implemented in Rules 23, 24 and 25 of the COMELEC Rules
of Procedure. These pre-election remedies or actions do not, however, fall within the original
jurisdiction of this Court.

Under the Omnibus Election Code and the COMELEC Rules of Procedure, the COMELEC has
the original jurisdiction to determine in an appropriate proceeding whether a candidate for an
elective office is eligible for the office for which he filed his certificate of candidacy or is
disqualified to be a candidate or to continue such candidacy because of any of the recognized
grounds for disqualification. Its jurisdiction over COMELEC SPA No. 04-003 is, therefore,
beyond question.

Upon the other hand, this Court has jurisdiction over Fornier’s petition (G.R. No. 161824) under
Section 7 of Article IX-A of the Constitution, which provides:

Section 7. Each Commission shall decide by a majority vote of all its Members any case or
matter brought before it within sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the
last pleading, brief, or memorandum required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy thereof.

This Court can also take cognizance of the issue of whether the COMELEC committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the challenged
resolution in COMELEC SPA No. 04-003 by virtue of Section 1 of Article VIII of the
Constitution, which reads as follows:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of nay
branch or instrumentality of the Government.

On the issue of whether private respondent FPJ is a natural-born Filipino citizen, the following
facts have been established by a weighty preponderance of evidence either in the pleadings and
the documents attached thereto or from the admissions of the parties, through their counsels,
during the oral arguments:

1. FPJ was born on 20 August 1939 in Manila, Philippines.

2. FPJ was born to Allan Poe and Bessie Kelley.

3. Bessie Kelley and Allan Poe were married on 16 September 1940.

4. Allan Poe was a Filipino because his father, Lorenzo Poe, albeit a Spanish subject, was
not shown to have declared his allegiance to Spain by virtue of the Treaty of Paris and the
Philippine Bill of 1902.

From the foregoing it is clear that respondent FPJ was born before the marriage of his parents.
Thus, pursuant to the Civil Code then in force, he could either be (a) a natural child if both his
parents had no legal impediments to marry each other; or (b) an illegitimate child if, indeed,
Allan Poe was married to another woman who was still alive at the time FPJ was born.
Petitioner Fornier never alleged that Allan Poe was not the father of FPJ. By revolving his case
around the illegitimacy of FPJ, Fornier effectively conceded paternity or filiation as a non-issue.
For purposes of the citizenship of an illegitimate child whose father is a Filipino and whose
mother is an alien, proof of paternity or filiation is enough for the child to follow the citizenship
of his putative father, as advanced by Fr. Joaquin Bernas, one of the amici curiae. Since paternity
or filiation is in fact admitted by petitioner Fornier, the COMELEC committed no grave abuse of
discretion in holding that FPJ is a Filipino citizen, pursuant to paragraph 3 of Section 1 of Article
IV of the 1935 Constitution, which reads:

Section 1. The following are citizens of the Philippines:

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

I agree with the amici curiae that this provision makes no distinction between legitimate and
illegitimate children of Filipino fathers. It is enough that filiation is established or that the child
is acknowledged or recognized by the father.

DISSENTING OPINION

CARPIO, J.:

I dissent from the majority opinion.

The Antecedent Proceedings

Petitioner Fornier filed before the Commission on Elections ("Comelec") a "Petition for
Disqualification of Presidential Candidate Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." on
the ground that Fernando Poe, Jr. ("FPJ") is not a natural-born Philippine citizen. The Comelec
First Division dismissed the petition, ruling that petitioner failed to present substantial evidence
that FPJ committed "any material misrepresentation when he stated in his Certificate of
Candidacy that he is a natural-born citizen." On motion for reconsideration, the Comelec En
Banc affirmed the ruling of the First Division. Petitioner Fornier now assails the Comelec En
Banc resolution under Rule 64 in relation to Rule 65 of the Rules of Court.

The Undisputed Facts

The undisputed facts are based on two documents and the admission of FPJ. The first document
is the Birth Certificate of FPJ, showing he was born on 20 August 1939. The Birth Certificate is
an evidence of FPJ.[1] The second document is the Marriage Certificate of Allan F. Poe and
Bessie Kelley, showing that their marriage took place on 16 September 1940. The Marriage
Certificate is also an evidence of FPJ.[2] Moreover, FPJ admits that his mother Bessie Kelley
was an American citizen.[3]
Based on these two documents and admission, the undisputed facts are: (1) FPJ was born out of
wedlock and therefore illegitimate,[4] and (2) the mother of FPJ was an American citizen.

The Issues

The issues raised in Fornier’s petition are:

(a) Whether the Court has jurisdiction over the petition to disqualify FPJ as a candidate
for President on the ground that FPJ is not a natural-born Philippine citizen;

(b) Whether FPJ is a natural-born citizen of the Philippines.

Jurisdiction

The Comelec has jurisdiction to determine initially the qualifications of all candidates. Under
Section 2(1), Article IX-C of the Constitution, the Comelec has the power and function to
"[E]nforce and administer all laws and regulations relative to the conduct of an election." The
initial determination of who are qualified to file certificates of candidacies with the Comelec
clearly falls within this all-encompassing constitutional mandate of the Comelec. The conduct of
an election necessarily includes the initial determination of who are qualified under existing laws
to run for public office in an election. Otherwise, the Comelec’s certified list of candidates will
be cluttered with unqualified candidates making the conduct of elections unmanageable. For this
reason, the Comelec weeds out every presidential election dozens of candidates for president
who are deemed nuisance candidates by the Comelec.[5]

Section 2(3), Article IX-C of the Constitution also empowers the Comelec to "[D]ecide, except
those involving the right to vote, all questions affecting elections x x x." The power to decide "all
questions affecting elections" necessarily includes the power to decide whether a candidate
possesses the qualifications required by law for election to public office. This broad
constitutional power and function vested in the Comelec is designed precisely to avoid any
situation where a dispute affecting elections is left without any legal remedy. If one who is
obviously not a natural-born Philippine citizen, like Arnold Schwarzenneger, runs for President,
the Comelec is certainly not powerless to cancel the certificate of candidacy of such candidate.
There is no need to wait until after the elections before such candidate may be disqualified.

Under Rule 25 on "Disqualification of Candidates" of the Comelec Rules of Procedure, a voter

may question before the Comelec the qualifications of any candidate for public office. Thus,
Rule 25 provides:

Section 1. Grounds for Disqualification. — Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or who
commits any act declared by law to be grounds for disqualification may be disqualified from
continuing as a candidate.

Section 2. Who May File Petition for Disqualification. — Any citizen of voting age, or duly
registered political party, organization or coalition of political parties may file with the Law
Department of the Commission a petition to disqualify a candidate on grounds provided by law.
(Emphasis supplied)

The Comelec adopted its Rules of Procedure pursuant to its constitutional power to promulgate
its own rules of procedure[6] to expedite the disposition of cases or controversies falling within
its jurisdiction.

The Comelec has ruled upon the qualifications of candidates, even if the Constitution provides
that some other body shall be the "sole judge" of the qualifications of the holders of the public
offices involved. The Court has upheld the jurisdiction of Comelec to issue such rulings,[7] even
when the issue is the citizenship of a candidate.[8] Thus, the Comelec has jurisdiction to
determine initially if FPJ meets the citizenship qualification to run for President.

However, the Comelec En Banc, in its scanty resolution, failed to state the factual bases of its
ruling. The Comelec En Banc also failed to rule conclusively on the issue presented – whether
FPJ is a natural-born Philippine citizen. The Comelec En Banc affirmed the First Division ruling
that "[W]e feel we are not at liberty to finally declare whether or not the respondent is a natural-
born citizen." In short, the Comelec En Banc allowed a candidate for President to run in the
coming elections without being convinced that the candidate is a natural-born Philippine citizen.
Clearly, the Comelec En Banc acted with grave abuse of discretion. Under Section 1, Article
VIII, as well as Section 5, Article VIII, of the Constitution, the Court has jurisdiction to hear and
decide the issue in a petition for certiorari under Rule 64 in relation to Rule 65.

To hold that the Court acquires jurisdiction to determine the qualification of a candidate for
President only after the elections would lead to an absurd situation. The Court would have to
wait for an alien to be elected on election day before he could be disqualified to run for
President. If the case is not decided immediately after the election, an alien who wins the election
may even assume office as President before he is finally disqualified. Certainly, this is not what
the Constitution says when it provides that "[N]o person may be elected President unless he is a
natural-born citizen of the Philippines."[9] The clear and specific language of the Constitution
prohibits the election of one who is not a natural-born citizen. Thus, the issue of whether a
candidate for President is a natural-born Philippine citizen must be decided before the election.

Governing Laws

Since FPJ was born on 20 August 1939, his citizenship at the time of his birth depends on the
Constitution and statutes in force at the time of his birth.[10] FPJ’s citizenship at the time of his
birth in 1939, applying the laws in force in 1939, determines whether he is a natural-born
Philippine citizen.

Natural-born Philippine citizens are "those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship."[11] If a person has
to perform an act, such as proving in an administrative or judicial proceeding, that an event
subsequent to his birth transpired thus entitling him to Philippine citizenship, such person is not a
natural born citizen.[12]
The 1935 Constitution and the Spanish Civil Code, the laws in force in 1939, are the governing
laws that determine whether a person born in 1939 is a Philippine citizen at the time of his birth
in 1939. Any subsequent legislation cannot change the citizenship at birth of a person born in
1939 because such legislation would violate the constitutional definition of a natural-born citizen
as one who is a Philippine citizen from birth. In short, one who is not a Philippine citizen at birth
in 1939 cannot be declared by subsequent legislation a natural-born citizen.

General Principles

A legitimate child of a Filipino father follows the citizenship of the father. A child born within
wedlock is presumed to be the son of the father[13] and thus carries the blood of the father.
Under the doctrine of jus sanguinis, as provided for in Section 1(3), Article III of the 1935
Constitution, a legitimate child, by the fact of legitimacy, automatically follows the citizenship of
the Filipino father.

An illegitimate child, however, enjoys no presumption at birth of blood relation to any father
unless the father acknowledges the child at birth.[14] The law has always required that "in all
cases of illegitimate children, their filiation must be duly proved."[15] The only legally known
parent of an illegitimate child, by the fact of illegitimacy, is the mother of the child who
conclusively carries the blood of the mother. Thus, unless the father acknowledges the
illegitimate child at birth, the illegitimate child can only acquire the citizenship of the only
legally known parent - the mother.

However, if the Filipino father is legally known because the filiation (blood relation of
illegitimate child to the father) of the child to the Filipino father is established in accordance with
law, the child follows the citizenship of the Filipino father. This gives effect, without
discrimination between legitimate and illegitimate children, to the provision of the 1935
Constitution that "[T]hose whose fathers are citizens of the Philippines"[16] are Philippine
citizens.

Nature of Citizenship

If the Filipino father acknowledges the illegitimate child at birth, the child is a natural-born
Philippine citizen because no other act after his birth is required to acquire or perfect his
Philippine citizenship. The child possesses all the qualifications to be a Philippine citizen at
birth.

If the Filipino father acknowledges the child after birth, the child is a Philippine citizen as of the
time of the acknowledgment. In this case, the child does not possess all the qualifications to be a
Philippine citizen at birth because an act - the acknowledgement of the Filipino father - is
required for the child to acquire or perfect his Philippine citizenship. Statutory provisions on
retroactivity of acknowledgment cannot be given effect because they would be contrary to the
constitutional definition of natural- born citizens as those who are Philippine citizens at birth
without having to perform any act to acquire or perfect their Philippine citizenship.
If the illegitimacy of a child is established, there is no presumption that the child has the blood of
any man who is supposed to be the father. There is only a conclusive presumption that the child
has the blood of the mother. If an illegitimate child claims to have the blood of a man who is
supposed to be the child’s father, such blood relation must be established in accordance with
proof of filiation as required by law.

Where the illegitimate child of an alien mother claims to follow the citizenship of the putative
father, the burden is on the illegitimate child to establish a blood relation to the putative Filipino
father since there is no presumption that an illegitimate child has the blood of the putative father.
Even if the putative father admits paternity after the birth of the illegitimate child, there must be
an administrative or judicial approval that such blood relation exists upon proof of paternity as
required by law.

Citizenship, being a matter of public and State interest, cannot be conferred on an illegitimate
child of an alien mother on the mere say so of the putative Filipino father. The State has a right
to examine the veracity of the claim of paternity. Otherwise, the grant of Philippine citizenship to
an illegitimate child of an alien mother is left to the sole discretion of the putative Filipino father.
For example, a Philippine citizen of Chinese descent can simply claim that he has several
illegitimate children in China. The State cannot be required to grant Philippine passports to these
supposed illegitimate children born in China of Chinese mothers just because the putative
Filipino father acknowledges paternity of these illegitimate children. There must be either an
administrative or judicial determination that the claim of the putative Filipino father is true.

The case of the illegitimate Vietnamese children, born in Vietnam of Vietnamese mothers and
allegedly of Filipino fathers, is illustrative. These children grew up in Vietnam, many of them
studying there until high school. These children grew up knowing they were Vietnamese
citizens. In 1975, a Philippine Navy vessel brought them, together with their Vietnamese
mothers, to the Philippines as Saigon fell to the communists. The mothers of these children
became stateless when the Republic of (South) Vietnam ceased to exist in 1975. The Department
of Justice rendered Opinion No. 49 dated 3 May 1995 that being children of Filipino fathers,
these Vietnamese children, even if illegitimate, are Philippine citizens under Section 1(3), Article
IV of the 1935 Constitution and Section 1(2), Article III of the 1973 Constitution. This Opinion
is cited by FPJ as basis for his claim of being a natural-born Philippine citizen.[17] However, this
Opinion categorically stated that before the illegitimate Vietnamese children may be considered
Filipino citizens "it is necessary in every case referred to that such paternity be established by
sufficient and convincing documentary evidence."[18]

In short, the illegitimate child must prove to the proper administrative or judicial authority the
paternity of the alleged Filipino father by "sufficient and convincing documentary evidence."
Clearly, an administrative or judicial act is necessary to confer on the illegitimate Vietnamese
children Philippine citizenship. The mere claim of the illegitimate child of filiation to a Filipino
father, or the mere acknowledgment of the alleged Filipino father, does not automatically confer
Philippine citizenship on the child. The State must be convinced of the veracity of such claim
and approve the same. Since the illegitimate Vietnamese children need to perform an act to
acquire or perfect Philippine citizenship, they are not natural-born Philippine citizens. They
become Philippine citizens only from the moment the proper administrative or judicial authority
approve and recognize their filiation to their alleged Filipino fathers.

The rationale behind requiring that only natural-born citizens may hold certain high public
offices[19] is to insure that the holders of these high public offices grew up knowing they were at
birth citizens of the Philippines. In their formative years they knew they owed from birth their
allegiance to the Philippines. In case any other country claims their allegiance, they would be
faithful and loyal to the Philippines of which they were citizens from birth. This is particularly
true to the President who is the commander-in-chief of the armed forces.[20] The President of
the Philippines must owe, from birth, allegiance to the Philippines and must have grown up
knowing that he was a citizen of the Philippines at birth. The constitutional definition of a
natural-born Philippine citizen would lose its meaning and efficacy if one who was at birth
recognized by law as an alien were declared forty years later[21] a natural-born Philippine
citizen just because his alleged Filipino father subsequently admitted his paternity.

Proof of Filiation

Article 131[22] of the Spanish Civil Code, the law in force in 1939, recognized only the
following as proof of filiation of a natural child:

a. acknowledgment in a record of birth;

b. acknowledgment in a will;

c. acknowledgment in some other public document.

To establish his Philippine citizenship at birth, FPJ must present either an acknowledgement in a
record of birth, or an acknowledgment in some other public document executed at the time of his
birth. An acknowledgment executed after birth does not make one a citizen at birth but a citizen
from the time of such acknowledgment since the acknowledgment is an act done after birth to
acquire or perfect Philippine citizenship.

After the birth of one who is not a natural-born Philippine citizen, a subsequent legislation
liberalizing proof of filiation cannot apply to such person to make him a natural-born citizen. A
natural-born Philippine citizen is expressly defined in the Constitution as one who is a citizen at
birth. If a person is not a citizen at birth, no subsequent legislation can retroactively declare him
a citizen at birth since it would violate the constitutional definition of a natural-born citizen.

Burden of Proof

Any person who claims to be a citizen of the Philippines has the burden of proving his Philippine
citizenship. Any person who claims to be qualified to run for President because he is, among
others, a natural-born Philippine citizen, has the burden of proving he is a natural-born citizen.
Any doubt whether or not he is natural-born citizen is resolved against him. The constitutional
requirement of a natural-born citizen, being an express qualification for election as President,
must be complied with strictly as defined in the Constitution. As the Court ruled in Paa v. Chan:
[23]

It is incumbent upon a person 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.

Since the undisputed facts show that FPJ is an illegitimate child, having been born out of
wedlock, the burden is on FPJ to prove his blood relation to his alleged Filipino father. An
illegitimate child enjoys no presumption of blood relation to any father. Such blood relationship
must be established in the appropriate proceedings in accordance with law.

Private party litigants cannot stipulate on the Philippine citizenship of a person because
citizenship is not a private right or property, but a matter of public and State interest. Even if
petitioner Fornier admits that FPJ, although illegitimate, is the son of Allan F. Poe, such
admission cannot bind the State for the purpose of conferring on FPJ the status of a natural-born
Philippine citizen or even of a naturalized citizen. Certainly, the Court will not recognize a
person as a natural-born Philippine citizen just because the private party litigants have admitted
or stipulated on such a status. In the present case, the Solicitor General, as representative of the
Government, is strongly disputing the status of FPJ as a natural-born Philippine citizen.

Legitimation

Under Article 123[24] of the Spanish Civil Code, legitimation took effect as of the date of
marriage. There was no retroactivity of the effects of legitimation on the rights of the legitimated
child. Thus, a legitimated child acquired the rights of a legitimate child only as of the date of
marriage of the natural parents. Allan F. Poe and Bessie Kelley were married on 16 September
1940 while FPJ was born more than one year earlier on 20 August 1939. Assuming that Allan F.
Poe was FPJ’s natural father, the effects of legitimation did not retroact to the birth of FPJ on 20
August 1939.

Besides, legitimation vests only civil, not political rights, to the legitimated child. As the Court
held in Ching Leng:[25]

The framers of the Civil Code had no intention whatsoever to regulate therein political questions.
Hence, apart from reproducing the provisions of the Constitution on citizenship, the Code
contains no precept thereon except that which refers all matters of "naturalization", as well as
those related to the "loss and reacquisition of citizenship" to "special laws." Consistently with
this policy, our Civil Code does not include therein any rule analogous to Articles 18 to 28 of the
Civil Code of Spain, regulating citizenship. (Underscoring in the original)

Clearly, even assuming that the marriage of Allan F. Poe and Bessie Kelley legitimated FPJ,
such legitimation did not vest retroactively any civil or political rights to FPJ.

Treaty of Paris of 1898 and Philippine Bill of 1902

FPJ admits that his grandfather, Lorenzo Pou, was a Spanish citizen who came to the Philippines
from Spain.[26] To benefit from the mass naturalization under the Treaty of Paris of 1898 and
the Philippine Bill of 1902, FPJ must prove that Lorenzo Pou was an inhabitant and resident of
the Philippines on 11 April 1899. Once it is established that Lorenzo Pou was an inhabitant and
resident of the Philippines on 11 April 1899, then he is presumed to have acquired Philippine
citizenship under the Treaty of Paris of 1898 and the Philippine Bill of 1902.[27] Being an
inhabitant and resident of the Philippines on 11 April 1899 is the determinative fact to fall under
the coverage of the Treaty of Paris of 1898 and the Philippine Bill of 1902.[28]

There is, however, no evidence on record that Lorenzo Pou was a Philippine inhabitant and
resident on 11 April 1899. The date of arrival of Lorenzo Pou in the Philippines is not known. If
he arrived in the Philippines after 11 April 1899, then he could not benefit from the mass
naturalization under the Treaty of Paris of 1898 and the Philippine Bill of 1902. There is also no
evidence that Lorenzo Pou was naturalized as a Philippine citizen after 11 April 1899. Thus,
there can be no presumption that Lorenzo Pou was a Philippine citizen.

There is also no evidence on record that Allan F. Poe, the son of Lorenzo Pou and the alleged
father of FPJ, was naturalized as a Philippine citizen. Thus, based on the evidence adduced there
is no legal basis for claiming that Allan F. Poe is a Philippine citizen. Nevertheless, there is no
need to delve further into this issue since the Court can decide this case without determining the
citizenship of Lorenzo Pou and Allan F. Poe. Whether or not Lorenzo Pou and Allan F. Poe were
Philippine citizens is not material in resolving whether FPJ is a natural-born Philippine citizen.

Convention on the Rights of the Child

The Philippines signed the Convention on the Rights of the Child on 26 January 1990 and
ratified the same on 21 August 1990. The Convention defines a child to mean "every human
being below the age of eighteen years unless, under the law applicable to the child, majority is
attained earlier." Obviously, FPJ cannot invoke the Convention since he is not a child as defined
in the Convention, and he was born half a century before the Convention came into existence.
FPJ’s citizenship at birth in 1939 could not in any way be affected by the Convention which
entered into force only on 2 September 1990.

The Convention has the status of a municipal law[29] and its ratification by the Philippines could
not have amended the express requirement in the Constitution that only natural-born citizens of
Philippines are qualified to be President. While the Constitution apparently favors natural-born
citizens over those who are not, that is the explicit requirement of the Constitution which neither
the Executive Department nor the Legislature, in ratifying a treaty, could amend. In short, the
Convention cannot amend the definition in the Constitution that natural-born citizens are "those
who are citizens of the Philippines from birth without having to perform any act to acquire or
perfect their Philippine citizenship."

In any event, the Convention guarantees a child "the right to acquire a nationality,"[30] and
requires States Parties to "ensure the implementation" of this right, "in particular where the child
would otherwise be stateless."[31] Thus, as far as nationality or citizenship is concerned, the
Convention guarantees the right of the child to acquire a nationality so that he may not be
stateless. The Convention does not guarantee a child a citizenship at birth, but merely "the right
to acquire a nationality" in accordance with municipal law. When FPJ was born in 1939, he was
apparently under United States law an American citizen at birth.[32] After his birth FPJ also had
the right to acquire Philippine citizenship by proving his filiation to his alleged Filipino father in
accordance with Philippine law. At no point in time was FPJ in danger of being stateless.
Clearly, FPJ cannot invoke the Convention to claim he is a natural-born Philippine citizen.

The Doctrine in Ching Leng v. Galang

The prevailing doctrine today is that an illegitimate child of a Filipino father and an alien mother
follows the citizenship of the alien mother as the only legally known parent. The illegitimate
child, even if acknowledged and legally adopted by the Filipino father, cannot acquire the
citizenship of the father. The Court made this definitive doctrinal ruling in Ching Leng v.
Galang,[33] which involved the illegitimate minor children of a naturalized Filipino of Chinese
descent with a Chinese woman, Sy An. The illegitimate children were later on jointly adopted by
the naturalized Filipino and his legal wife, So Buan Ty.

The facts in Ching Leng as quoted by the Court from the trial court’s decision are as follows:

After the petitioner Ching Leng Alias Ching Ban Lee obtained judgment in this Court dated May
2, 1950 granting his petition for naturalization, he together with his wife So Buan Ty filed
another petition also in this Court in Special Proc. No. 1216 for the adoption of Ching Tiong
Seng, Ching Liong Ding, Victoria Ching Liong Yam, Sydney Ching and Ching Tiong An, all
minors and admittedly the illegitimate children of petitioner Ching Leng with one Sy An, a
Chinese citizen. Finding the petition for adoption proper, this Court granted the same in a
decision dated September 12, 1950, declaring the said minors free from all legal obligations of
obedience and maintenance with respect to their mother Sy An and to all legal intents and
purposes the children of the adopter Ching Leng alias Ching Ban Lee and So Buan Ty with all
the legal rights and obligations provided by law.

On September 29, 1955, Ching Leng took his oath of allegiance and became therefore a full
pledge (sic) Filipino citizen. Believing now that his adopted illegitimate children became
Filipino citizens by virtue of his naturalization, petitioner Ching Leng addressed a
communication to the respondent Commissioner of Immigration requesting that the alien
certificate of registration of the said minors be cancelled. (Bold underscoring supplied)

In Ching Leng, the Court made a definitive ruling on the meaning of "minor child or children" in
Section 15 of the Naturalization Law,[34] as well as the meaning of children "whose parents are
citizens of the Philippines" under the Constitution. The Court categorically ruled that these
children refer to legitimate children only, and not to illegitimate children. Thus, the Court held:

It is claimed that the phrases "minor children" and "minor child", used in these provisions,
include adopted children. The argument is predicated upon the theory that an adopted child is,
for all intents and purposes, a legitimate child. Whenever, the word "children" or "child" is used
in statutes, it is generally understood, however, to refer to legitimate children, unless the context
of the law and its spirit indicate clearly the contrary. Thus, for instance, when the Constitution
provides that "those whose parents are citizens of the Philippines, "and "those whose mothers are
citizens of the Philippines," who shall elect Philippine citizenship "upon reaching the age of
majority", are citizens of the Philippines (Article IV, Section 1, subdivisions 3 and 4), our
fundamental law clearly refers to legitimate children (Chiong Bian vs. De Leon, 46 Off. Gaz.,
3652-3654; Serra v. Republic, L-4223, May 12, 1952).

Similarly, the children alluded to in said section 15 are those begotten in lawful wedlock, when
the adopter, at least is the father. In fact, illegitimate children are under the parental authority of
the mother and follow her nationality, not that of the illegitimate father (U.S. vs. Ong Tianse, 29
Phil. 332, 335-336; Santos Co vs. Gov’t of the Philippines, 52 Phil. 543, 544; Serra v. Republic,
supra; Gallofin v. Ordoñez, 70 Phil. 287; Quimsuan vs. Republic, L-4693, Feb. 16, 1953).
Although, adoption gives "to the adopted person the same rights and duties as if he were a
legitimate child of the adopter", pursuant to said Article 341 of our Civil Code, we have already
seen that the rights therein alluded to are merely those enumerated in Article 264, and do not
include the acquisition of the nationality of the adopter.

Moreover, as used in said section 15 of the Naturalization Law, the term "children" could not
possibly refer to those whose relation to the naturalized person is one created by legal fiction, as,
for instance, by adoption, for, otherwise, the place and time of birth of the child would be
immaterial. The fact that the adopted persons involved in the case at bar are illegitimate children
of appellant Ching Leng does not affect substantially the legal situation before us, for, by legal
fiction, they are now being sought to be given the status of legitimate children of said appellant,
despite the circumstance that the Civil Code of the Philippine does not permit their legitimation.
(Bold underscoring supplied)

Ching Leng, penned by Justice Roberto Concepcion in October 1958, was a unanimous decision
of the Court En Banc. Subsequent Court decisions, including Paa v. Chan[35] and Morano et al.
v. Vivo,[36] have cited the doctrine laid down in Ching Leng that the provision in the 1935
Constitution stating "those whose fathers are citizens of the Philippines" refers only to legitimate
children. When the 1973 and 1987 Constitutions were drafted, the framers did not attempt to
change the intent of this provision, even as they were presumably aware of the Ching Leng
doctrine.

Nevertheless, I believe that it is now time to abandon the Ching Leng doctrine. The inexorable
direction of the law, both international and domestic in the last 100 years, is to eliminate all
forms of discrimination between legitimate and illegitimate children. Where the Constitution
does not distinguish between legitimate and illegitimate children, we should not also distinguish,
especially when private rights are not involved as in questions of citizenship. Abandoning the
Ching Leng doctrine upholds the equal protection clause of the Constitution. Abandoning the
Ching Leng doctrine is also in compliance with our treaty obligation under the Covenant on the
Rights of Children mandating States Parties to eliminate all forms of discrimination based on the
status of children, save of course those distinctions prescribed in the Constitution itself like the
reservation of certain high public offices to natural-born citizens.

Abandoning the Ching Leng doctrine does not mean, however, that an illegitimate child of a
Filipino father and an alien mother automatically becomes a Philippine citizen at birth. We have
repeatedly ruled that an illegitimate child does not enjoy any presumption of blood relation to the
alleged father until filiation or blood relation is proved as provided by law.[37] Article 887 of the
Civil Code expressly provides that "[I]n all cases of illegitimate children, their filiation must be
duly proved." The illegitimate child becomes a Philippine citizen only from the time he
establishes his blood relation to the Filipino father. If the blood relation is established after the
birth of the illegitimate child, then the child is not a natural-born Philippine citizen since an act is
required after birth to acquire or perfect his Philippine citizenship.

Conclusion

In conclusion, private respondent Fernando Poe, Jr. is not a natural-born Philippine citizen since
there is no showing that his alleged Filipino father Allan F. Poe acknowledged him at birth. The
Constitution defines a natural-born citizen as a Philippine citizen "from birth without having to
perform any act to acquire or perfect" his Philippine citizenship. Private respondent Fernando
Poe, Jr. does not meet this citizenship qualification.

Therefore, I vote to grant the petition of Victorino X. Fornier. However, I vote to dismiss the
petitions of Maria Jeanette C. Tecson, Felix B. Desiderio, Jr. and Zoilo Antonio Velez on the
ground that their direct petitions invoking the jurisdiction of the Court under Section 4,
paragraph 7, Article VII of the Constitution are premature, there being no election contest in this
case.

R No. 161434, March 3 2004

FACTS:

Respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (FPJ) filed his certificate

of candidacy on 31 December 2003 for the position of President of the Republic of the

Philippines in the forthcoming national elections. In his certificate of candidacy, FPJ,

representing himself to be a natural-born citizen of the Philippines, stated his name to be

"Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and his place of

birth to be Manila.
Petitioner Fornier filed before the COMELEC a petition to disqualify FPJ and cancel his

certificate of candidacy by claiming that FPJ is not a natural-born Filipino citizen, his parents

were foreigners: his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was

a Spanish national, being the son of Lorenzo Pou, a Spanish subject.

The COMELEC dismissed the petition for lack of merit.

ISSUE:

Whether or not FPJ is a natural-born citizen of the Philippines.

HELD:

Section 2, Article VII, of the 1987 Constitution expresses:

No person may be elected President unless he is a natural-born citizen of the Philippines, a

registered voter, able to read and write, at least forty years of age on the day of the election, and

a resident of the Philippines for at least ten years immediately preceding such election.

Natural-born citizens are those who are citizens of the Philippines from birth without having to

perform any act to acquire or perfect their Philippine citizenship. Based on the evidence

presented which the Supreme consider as viable is the fact that the death certificate of Lorenzo

Poe, father of Allan Poe, who in turn was the father of private respondent Fernando Poe, Jr.
indicates that he died on September 11, 1954 at the age of 84 years, in San Carlos, Pangasinan.

Evidently, in such death certificate, the residence of Lorenzo Poe was stated to be San Carlos,

Pangansinan. In the absence of any evidence to the contrary, it should be sound to conclude, or at

least to presume, that the place of residence of a person at the time of his death was also his

residence before death. Considering that the allegations of petitioners are not substantiated with

proof and since Lorenzo Poe may have been benefited from the “en masse Filipinization” that

the Philippine Bill had effected in 1902, there is no doubt that Allan Poe father of private

respondent Fernando Poe, Jr. was a Filipino citizen. And, since the latter was born on August 20,

1939, governed under 1935 Constitution, which constitution considers as citizens of the

Philippines those whose fathers are citizens of the Philippines, Fernando Poe, Jr. was in fact a

natural-born citizen of the Philippines regardless of whether or not he is legitimate or

illegitimate.

The Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention,
is a United Nationsmultilateral treaty that defines who is a refugee, and sets out the rights of
individuals who are granted asylum and the responsibilities of nations that grant asylum. The
Convention also sets out which people do not qualify as refugees, such as war criminals. The
Convention also provides for some visa-free travel for holders of travel documents issued under
the convention. Although the Refugee Convention was agreed in Geneva, it is considered
incorrect to refer to it as "the Geneva Convention" because that term is more widely understood
as referring to any of four treaties regulating armed conflict.
The Refugee Convention builds on Article 14 of the 1948 Universal Declaration of Human
Rights, which recognizes the right of persons to seek asylum from persecution in other countries.
A refugee may enjoy rights and benefits in a state in addition to those provided for in the
Convention.[2]
Article 1 of the Convention defines a refugee as this:[11][12]
As a result of events occurring before 1 January 1951 and owing to well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country; or who, not having a nationality and
being outside the country of his former habitual residence as a result of such events, is unable or,
owing to such fear, is unwilling to return to it.
The U.N. Protocol Relating to the Status of Refugees which entered into force on 4 October
1967, defined the term refugee to mean any person within the definition 1951 Convention as if
the words “As a result of events occurring before 1 January 1951 and ...” were omitted. [13]
Several groups have built upon the 1951 Convention to create a more objective definition. While
their terms differ from those of the 1951 Convention, the Convention has significantly shaped
the new, more objective definitions. They include the 1969 Convention Governing the Specific
Aspects of Refugee Problems in Africa by the Organisation of African Unity(since 2002 African
Union) and the 1984 Cartagena Declaration, while nonbinding, also sets out regional standards
for refugees in Central America, Mexico and Panama.
With the passage of time and the emergence of new refugee situations, the need was increasingly
felt to make the provisions of the 1951 Convention applicable to such new refugees. As a result,
a Protocol relating to the Status of Refugees was prepared, and entered into force on 4 October
1967.[14] The UNHCR is called upon to provide international protection to refugees falling within
the competence of his Office.[15] Definitions of those persons to whom the High Commissioner’s
competence extends are very close to, though not identical with, the definition contained in the
1951 Convention.[16]

Rights and responsibilities of parties to the Refugee Convention[edit]

In the general principle of international law, treaties in force are binding upon the parties to it
and must be performed in good faith. Countries that have ratified the Refugee Convention are
obliged to protect refugees that are on their territory, in accordance with its terms.[17] There are a
number of provisions that States parties to the Refugee Convention must adhere to.
Refugees shall[edit]

• abide by the national laws of the contracting states (Article 2)

The contracting states shall[edit]

• exempt refugees from reciprocity (Article 7): That means that the granting of a right to a
refugee should not be subject to the granting of similar treatment by the refugee's country of
nationality, because refugees do not enjoy the protection of their home state. [17]
• be able to take provisional measures against a refugee if needed in the interest of essential
national security (Article 9)
• respect a refugee's personal status and the rights that come with it, particularly rights related
to marriage (Article 12)
• provide free access to courts for refugees (Article 16)
• provide administrative assistance for refugees (Article 25)
• provide identity papers for refugees (Article 27)
• provide travel documents for refugees (Article 28)
• allow refugees to transfer their assets (Article 30)
• provide the possibility of assimilation and naturalization to refugees (Article 34)
• cooperate with the UNHCR (Article 35) in the exercise of its functions and to help UNHCR
supervise the implementation of the provisions in the Convention.[17]
• provide information on any national legislation they may adopt to ensure the application of
the Convention (Article 36).[17]
• settle disputes they may have with other contracting states at the International Court of
Justice if not otherwise possible (Article 38)
The contracting states shall not[edit]

• discriminate against refugees (Article 3)

• take exceptional measures against a refugee solely on account of his or her nationality
(Article 8)
• expect refugees to pay taxes and fiscal charges that are different to those of nationals (Article
29)
• impose penalties on refugees who entered illegally in search of asylum if they present
themselves without delay (Article 31), which is commonly interpreted to mean that their
unlawful entry and presence ought not to be prosecuted at all [18]
• expel refugees (Article 32)
• forcibly return or "refoul" refugees to the country they've fled from (Article 33). It is widely
accepted that the prohibition of forcible return is part of customary international law. This
means that even States that are not party to the 1951 Refugee Convention must respect the
principle of non-refoulement.[17] Therefore, States are obligated under the Convention and
under customary international law to respect the principle of non-refoulement. If and when
this principle is threatened, UNHCR can respond by intervening with relevant authorities,
and if it deems necessary, will inform the public. [17]
Refugees shall be treated at least like nationals in relation to[edit]

• freedom to practice their religion (Article 4)

• the respect and protection of artistic rights and industrial property (Article 14)
• rationing (Article 20)
• elementary education (Article 22)
• public relief and assistance (Article 23)
• labour legislation and social security (Article 24)
Refugees shall be treated at least like other non-nationals in relation to[edit]

• movable and immovable property (Article 13)

• the right of association in unions or other associations (Article 15)
• wage-earning employment (Article 17)
• self-employment (Article 18)
• practice of the liberal professions (Article 19)
• housing (Article 21)
• education higher than elementary (Article 22)
• the right to free movement and free choice of residence within the country (Article 26)

Noncompliance[edit]
Although the Convention is "legally binding" there is no body that monitors compliance.
The United Nations High Commissioner for Refugees (UNHCR) has supervisory
responsibilities, but cannot enforce the Convention, and there is no formal mechanism for
individuals to file complaints. The Convention specifies that complaints should be referred to
the International Court of Justice.[19] It appears that no nation has ever done this.
An individual may lodge a complaint with the UN Human Rights Committee under
the International Covenant on Civil and Political Rights, or with the UN Committee on
Economic, Social and Cultural Rights under the International Covenant on Economic, Social and
Cultural Rights, but no one has ever done so in regard to violations of the Convention. Nations
may levy international sanctions against violators, but no nation has ever done this.
At present, the only real consequences of violation are 1) public shaming in the press, and 2)
verbal condemnation of the violator by the UN and by other nations. To date these have not
proven to be significant deterrents.[20]

RESCRIBING THE PROCEDURE FOR THE EXTRADITION OF PERSONS WHO HAVE

COMMITTED CRIMES IN A FOREIGN COUNTRY

WHEREAS, under the Constitution the Philippines 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;

WHEREAS, the suppression of crime is the concern not only of the estate where it is committed
but also of any other state to which the criminal may have escaped, because it saps the
foundation of social life and is an outrage upon humanity at large, and it is in the interest of
civilized communities that crimes should not go unpunished;

WHEREAS, is recognition of this principle the Philippines recently concluded as extradition

treaty with the Republic of Indonesia, and intends to conclude similar treaties with other
interested countries;

WHEREAS, there is need for rules to guide the executive department and the courts in the
proper implementation of the extradition treaties to which the Philippines is a signatory.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of

the powers vested in me by the Constitution, do hereby order and decree the following:

Section 1. Short-Title. This Decree shall be known as the “Philippine Extradition Law”.

Section 2. Definition of Terms. When used in this law, the following terms shall, unless the
context otherwise indicates, have meanings respectively assigned to them:
(a) “Extradition” The removal of an accused from the Philippines with the object of placing him
at the disposal of foreign authorities to enable the requesting state or government to hold him in
connection with any criminal investigation directed against him or the execution of a penalty
imposed on him under the penal or criminal law of the requesting state or government.

(b) “Extradition Treaty or Convention” An extradition agreement between the Republic of the
Philippines and one or more foreign states or governments.

(c) “Accused” The person who is, or is suspected of being, within the territorial jurisdiction of
the Philippines, and whose extradition has been requested by a foreign state or government.

(d) “RequestingStateor Government” The foreign state or government from which the request for
extradition has emanated.

(e) “Foreign Diplomat” Any authorized diplomatic representative of the requesting state or
government and recognized as such by the Secretary of Foreign Affairs.

(f) “Secretary of Foreign Affairs” The head of the Department of Foreign Affairs of the Republic
of the Philippines, or in his absence, any official acting on his behalf or temporarily occupying
and discharging the duties of that position.

Section 3. Aims of Extradition. Extradition may be granted only pursuant to a treaty or

convention, and with a view to:

(a) A criminal investigation instituted by authorities of the requesting state or government

charging the accused with an offense punishable under the laws both of the requesting state or
government and the Republic of the Philippines by imprisonment or other form relevant
extradition treaty or convention; or

(b) The execution of a prison sentence imposed by a court of the requesting state or government,
with such duration as that stipulated in the relevant extradition treaty or convention, to be served
in the jurisdiction of and as a punishment for an offense committed by the accused within the
territorial jurisdiction of the requesting state or government.

Section 4. Request; By whom made; Requirements.

(1) Any foreign state or government with which the Republic of the Philippines has entered into
extradition treaty or convention, only when the relevant treaty or convention, remains in force,
may request for the extradition of any accused who is or suspected of being in the territorial
jurisdiction of the Philippines.

(2) The request shall be made by the Foreign Diplomat of the requesting state or government,
addressed to the Secretary of Foreign Affairs, and shall be accompanied by:

(a) The original or an authentic copy of either –

(1) the decision or sentence imposed upon the accused by the court of the requesting state or
government; or

(2) the criminal charge and the warrant of arrest issued by the authority of the requesting state or
government having jurisdiction of the matter or some other instruments having the equivalent
legal force.

(b) A recital of the acts for which extradition is requested, with the fullest particulars as to the
name and identity of the accused, his whereabouts in the Philippines, if known, the acts or
omissions complained of, and the time and place of the commission of these acts;

(c) The text of the applicable law or a statement of the contents of said law, and the designation
or description of the offense by the law, sufficient for evaluation of the request; and

(d) Such other documents or information in support of the request.

Section 5. Duty of Secretary of Foreign Affairs; Referral of Request: Filing of Petition. (1)
Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the
requirements of this law and the relevant treaty or convention, he shall forward the request
together with the related documents to the Secretary of Justice, who shall immediately designate
and authorize an attorney in his office to take charge of these case.

(2) The attorney so designated shall file a written petition with the proper Court of First Instance
of the province or city having jurisdiction of the place, with a prayer that the court take the
request under consideration and shall attach to the petition all related documents. The filing of
the petition and the service of the summons to the accused shall be free from the payment of
docket and sheriff’s fees.

(3) The Court of First Instance with which the petition shall have been filed shall have and
continue to have the exclusive power to hear and decide the case, regardless of the subsequent
whereabouts of the accused, or the change or changes of his place of residence.

Section 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. (1)

Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the petition on the day and hour fixed
in the order. We may issue a warrant for the immediate arrest of the accused which may be
served any where within the Philippines if it appears to the presiding judge that the immediate
arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of
the answer, or should the accused after having received the summons fail to answer within the
time fixed, the presiding judge shall hear the ace or set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly
served each upon the accused and the attorney having charge of the case.
Section 7. Appointment of Counsel de Oficio. If on the date set for the hearing the accused does
not have a legal counsel, the presiding judge shall appoint any law practitioner residing within
his territorial jurisdiction as counsel de oficio for the accused to assist him in the hearing.

Section 8. Hearing in Public; Exception; Legal Representation.

(1) The hearing shall be public unless the accused requests, with leave of court, that it be
conducted in chamber.

(2) The attorney having charge of the case may upon request represent the requesting state or
government throughout the proceeding. The requesting state or government may, however, retain
private counsel to represent it for particular extradition case.

(3) Should the accused fail to appear on the date set for hearing, or if he is not under detention,
the court shall forthwith issue a warrant for this arrest which may be served upon the accused
anywhere in the Philippines.

Section 9. Nature and Conduct of Proceedings. (1) In the hearing, the provisions of the Rules of
Court insofar as practicable and not inconsistent with the summary nature of the proceedings,
shall apply to extradition cases, and the hearing shall be conducted in such a manner as to arrive
as a fair and speedy disposition of the case.

(2) Sworn statements offered in evidence at the hearing of any extradition case shall be received
and admitted as evidence if properly and legally authenticated by the principal diplomatic or
consular officer of the Republic of the Philippines residing in the requesting state.

Section 10. Decision. Upon conclusion of the hearing, the court shall render a decision granting
the extradition, and giving his reasons therefor upon showing of the existence of a prima facie
case. Otherwise, it shall dismiss the petition.

Section 11. Service of Decision. The decision of the court shall be promptly served on the
accused if he was not present at the reading thereof, and the clerk of the court shall immediately
forward two copies thereof to the Secretary of Foreign Affairs through the Department of Justice.

Section 12. Appeal by Accused; Stay of Execution

(1) The accused may, within 10 days from receipt of the decision of the Court of First Instance
granting extradition cases shall be final and immediately executory.

(2) The appeal shall stay the execution of the decision of the Court of First Instance.

Section 13. Application of Rules of Court. The provisions of the Rules of Court governing appeal
in criminal cases in the Court of Appeals shall apply in appeal in Extradition cases, except that
the parties may file typewritten or mimeograph copies of their brief within 15 days from receipt
of notice to file such briefs.
Section 14. Service of Decision of Court of Appeals. The accused and the Secretary of Foreign
Affairs, through the Department of Justice, shall each be promptly served with copies of the
decision of the Court of Appeals.

Section 15. Concurrent Request for Extradition. In case extradition of the same person has been
requested by two or more states, the Secretary of Foreign Affairs, after consultation with the
Secretary of Justice, shall decide which of the several requests shall be first considered, and
copies of the former’s decision thereon shall promptly be forwarded to the attorney having
charge of the case, if there be one, through the Department of Justice.

Section 16. Surrender of Accused. After the decision of the court in an extradition case has
become final and executory, the accused shall be placed at the disposal of the authorities of the
requesting state or government, at a time and place to be determined by the Secretary of Foreign
Affairs, after consultation with the foreign diplomat of the requesting state or government.

Section 17. Seizure and Turn Over of Accused Properties. If extradition is granted, articles found
in the possession of the accused who has been arrested may be seized upon order of the court at
the instance of the requesting state or government, and such articles shall be delivered to the
foreign diplomat of the requesting state or government who shall issue the corresponding receipt
therefor.

Section 18. Costs and Expenses; By Whom Paid. Except when the relevant extradition treaty
provides otherwise, all costs or expenses incurred in any extradition proceeding and in
apprehending, securing and transmitting an accused shall be paid by the requesting state or
government. The Secretary of Justice shall certify to the Secretary of Foreign Affairs the
amounts to be paid by the requesting state or government on account of expenses and costs, and
the Secretary of Foreign Affairs shall cause the amounts to be collected and transmitted to the
Secretary of Justice for deposit in the National Treasury of the Philippines.

Section 19. Service of Court Processes. All processes emanating from the court in connection
with extradition cases shall be served or executed by the Sheriff of the province or city
concerned or of any member of any law enforcement agency;

Section 20. Provisional Arrest. (a) In case of urgency, the requesting state may, pursuant to the
relevant treaty or convention and while the same remains in force; request for provisional arrest
of the accused pending receipt of the request for extradition made in accordance with Section 4
of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his behalf shall
upon receipt of the request immediately secure a warrant for the provisional arrest of the accused
from the presiding judge of the Court of First Instance of the province or city having jurisdiction
of the place, who shall issue the warrant for the provisional arrest of the accused. The Director of
the National Bureau of Investigation through the Secretary of Foreign Affairs shall inform the
requesting of the result of its request.

(d) If within a period of 20 days after the provisional arrest the Secretary of Foreign Affairs has
not received the request for extradition and the documents mentioned in Section 4 of this Decree,
the accused shall be released from custody.

(e) Release from provisional arrest shall not prejudice re-arrest and extradition of the accused if a
request for extradition is received subsequently in accordance with the relevant treaty of
convention.

Section 21. Effectivity. this Decree shall take effect immediately and its provisions shall be in
force during the existence of any extradition treaty or convention with, and only in respect of,
any foreign state or government.

DONE in the City of Manila, this 13th day of January in the Year of Our Lord nineteen hundred
and seventy-seven.

Extradition is when a person currently in Country A is accused of a crime in Country B. If

Country B has an Extradition treaty with Country A, they will ask Country A to send the accused
person to Country B to stand trial. Country A may hand over the accused, or may hold hearings
on whether extradition is legal.

Deportation, in contrast, occurs when a person is in Country A who does not have any right to be
in Country A. The person is sent back to whatever country they came from, often with legal
barriers to prevent them from returning to Country A.

The first is when someone is accused of a crime in another country, is being sent there to stand
trial, and can be applied to citizens of Country A, while the second only applies when the person
is not a citizen of Country A, and has no right to be in Country A.

SECRETARY OF JUSTICE VS LANTION

G.R. No. L-139465 January 18, 2000
SECRETARY OF JUSTICE, petitioner,
vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and
MARK B. JIMENEZ, respondents.

Facts:
This is a petition for review of a decision of the Manila Regional Trial Court (RTC). The
Department of Justice received a request from the Department of Foreign Affairs for the
extradition of respondent Mark Jimenez to the U.S. The Grand Jury Indictment. The warrant for
his arrest, and other supporting documents for said extradition were attached along with the
request. Charges include:

1. Conspiracy to commit offense or to defraud the US

2. Attempt to evade or defeat tax
3. Fraud by wire, radio, or television
4. False statement or entries
5. Election contribution in name of another

The Department of Justice (DOJ), through a designated panel proceeded with the technical
evaluation and assessment of the extradition treaty which they found having matters needed to be
addressed. Respondent, then requested for copies of all the documents included in the extradition
request and for him to be given ample time to assess it. The Secretary of Justice denied request
on the following grounds:

1. He found it premature to secure him copies prior to the completion of the evaluation. At that
point in time, the DOJ is in the process of evaluating whether the procedures and
requirements under the relevant law (PD 1069 Philippine Extradition Law) and treaty (RP-
US Extradition Treaty) have been complied with by the Requesting Government. Evaluation
by the DOJ of the documents is not a preliminary investigation like in criminal cases making
the constitutionally guaranteed rights of the accused in criminal prosecution inapplicable.
2. The U.S. requested for the prevention of unauthorized disclosure of the information in the
documents.
3. The department is not in position to hold in abeyance proceedings in connection with an
extradition request, as Philippines is bound to Vienna Convention on law of treaties such that
every treaty in force is binding upon the parties.

Mark Jimenez then filed a petition against the Secretary of Justice. RTC presiding Judge Lantion
favored Jimenez. Secretary of Justice was made to issue a copy of the requested papers, as well
as conducting further proceedings. Thus, this petition is now at bar.

Issue/s:
Whether or not respondent’s entitlement to notice and hearing during the evaluation stage of the
proceedings constitute a breach of the legal duties of the Philippine Government under the RP-
US Extradition Treaty.
Discussions:
The doctrine of incorporation is applied whenever municipal tribunals are confronted with
situations in which there appears to be a conflict between a rule of international law and the
provisions of the constitution or statute of a local state. Efforts should be done to harmonize
them. In a situation, however, where the conflict is irreconcilable and a choice has to be made
between a rule of international law and municipal law, jurisprudence dictates that municipal law
should be upheld by the municipal courts. The doctrine of incorporation decrees that rules of
international law are given equal standing, but are not superior to, national legislative
enactments.

Ruling/s:
No. The human rights of person, Filipino or foreigner, and the rights of the accused guaranteed
in our Constitution should take precedence over treaty rights claimed by a contracting state. The
duties of the government to the individual deserve preferential consideration when they collide
with its treaty obligations to the government of another state. This is so although we recognize
treaties as a source of binding obligations under generally accepted principles of international
law incorporated in our Constitution as part of the law of the land.

GOVERNMENT OF THE USA VS PURGANAN

G.R. No. 148571. September 24, 2002
GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the Philippine
Department of Justice, petitioner,
Hon. GUILLERMO G. PURGANAN, Morales, and Presiding Judge, Regional Trial Court of
Manila, Branch 42; and MARK B. JIMENEZ a.k.a. MARIO BATACAN CRESPO, respondents.

Facts:
The petition at bar seeking to void and set aside the Orders issued by the Regional Trial Court
(RTC) of Manila, Branch 42. The first assailed Order set for hearing petitioner’s application for
the issuance of a warrant for the arrest of Respondent Mark B. Jimenez.
Pursuant to the existing RP-US Extradition Treaty, the US Government requested the extradition
of Mark Jimenez. A hearing was held to determine whether a warrant of arrest should be issued.
Afterwards, such warrant was issued but the trial court allowed Jimenez to post bail for his
provisional liberty.

Issue/s:
Whether or not the right to bail is available in extradition proceedings

Discussions:
The constitutional right to bail “flows from the presumption of innocence in favor of every
accused who should not be subjected to the loss of freedom as thereafter he would be entitled to
acquittal, unless his guilt be proved beyond reasonable doubt.” It follows that the constitutional
provision on bail will not apply to a case like extradition, where the presumption of innocence is
not at issue.

Ruling/s:
No. The court agree with petitioner. As suggested by the use of the word “conviction,” the
constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of
Court, applies only when a person has been arrested and detained for violation of Philippine
criminal laws. It does not apply to extradition proceedings, because extradition courts do not
render judgments of conviction or acquittal.

It is also worth noting that before the US government requested the extradition of respondent,
proceedings had already been conducted in that country. But because he left the jurisdiction of
the requesting state before those proceedings could be completed, it was hindered from
continuing with the due processes prescribed under its laws. His invocation of due process now
has thus become hollow. He already had that opportunity in the requesting state; yet, instead of
taking it, he ran away.

PILA Case Digest: Rodriguez V. Hon. Presiding Judge Of RTC Manila Branch 17 (2006)

Rodriguez v. Hon. Presiding Judge of RTC Manila Branch 17

GR. NO. 157977 Feb. 27 2006
QUISUMBING, J
Lessons: Notice and Hearing for Cancellation of Bail in Extradition

Laws:

FACTS:

After the arrest of petitioners Eduardo Tolentino Rodriguez and Imelda Gener Rodriguez,
they applied for bail which the trial court granted on September 25, 2001. They posted cash
bonds for the bail set for P1M for each. The US government moved for reconsideration of the
grant of bail which was denied. The US government filed a petition for certiorari entitled Gov’t
of the USA v. Hon. Ponferrada where the court directed the trial court to resolve the matter of
bail guided by this court’s ruling on Government of the USA v. Hon. Purganan. The lower
court, without prior notice and hearing, cancelled the cash bond of the petitioners and ordered the
issuance of a warrant of arrest. Petitioners filed a very urgent motion for the reconsideration of
the cancellation of their bail which was denied. Hence, this special civil action for certiorari and
prohibition directed against the order for cancellation of cash bond and issuance of a warrant of
arrest.

ISSUE: Whether or NOT there should be notice and hearing before the cancellation of bail

HELD: YES. Petition is GRANTED IN PART. SET ASIDE for petitioner IMELDA GENER
RODRIGUEZ.

The grant of the bail, presupposes that the co-petitioner has already presented evidence to
prove her right to be on bail, that she is no flight risk, and the trial court had already exercised its
sound discretion and had already determined that under the Constitution and laws in force, co-
petitioner is entitled to provisional release.

Under these premises, co-petitioner Imelda Gener Rodriguez has offered to go on

voluntary extradition; that she and her husband had posted a cash bond of P1 million each; that
her husband had already gone on voluntary extradition and is presently in the USA undergoing
trial; that the passport of co-petitioner is already in the possession of the authorities; that she
never attempted to flee; that there is an existing hold-departure order against her; and that she is
now in her 60’s, sickly and under medical treatment, we believe that the benefits of continued
temporary liberty on bail should not be revoked and their grant of bail should not be cancelled,
without the co-petitioner being given notice and without her being heard why her temporary
liberty should not be discontinued. Absent prior notice and hearing, the bail’s cancellation was
in violation of her right to due process.

We emphasize that bail may be granted to a possible extraditee only upon a clear and
convincing showing that:
1) he will not be a flight risk or a danger to the community; and
2) there exist special, humanitarian and compelling circumstances
Olalia
4APR2014
Government of Hongkong v. Olalia, 521 SCRA 470 (2007)
posted in CONLAW2 cases
Facts

Private respondent Muñoz was charged before Hong Kong Court. Warrants of arrest were issued
and by virtue of a final decree the validity of the Order of Arrest was upheld. The petitioner
Hong Kong Administrative Region filed a petition for the extradition of the private respondent.
In the same case, a petition for bail was filed by the private respondent.

The petition for bail was denied by reason that there was no Philippine law granting the same in
extradition cases and that the respondent was a high “flight risk”. Private respondent filed a
motion for reconsideration and was granted by the respondent judge subject to the following
conditions:

1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he
will appear and answer the issues raised in these proceedings and will at all times hold himself
amenable to orders and processes of this Court, will further appear for judgment. If accused fails
in this undertaking, the cash bond will be forfeited in favor of the government;

2. Accused must surrender his valid passport to this Court;

3. The Department of Justice is given immediate notice and discretion of filing its own motion
for hold departure order before this Court even in extradition proceeding; and

4. Accused is required to report to the government prosecutors handling this case or if they so
desire to the nearest office, at any time and day of the week; and if they further desire, manifest
before this Court to require that all the assets of accused, real and personal, be filed with this
Court soonest, with the condition that if the accused flees from his undertaking, said assets be
forfeited in favor of the government and that the corresponding lien/annotation be noted therein
accordingly.

Petitioner filed a motion to vacate the said order but was denied by the respondent judge. Hence,
this instant petition.

Issue

WON a potential extraditee is entitled to post bail

Ruling

A potential extraditee is entitled to bail.

Ratio Decidendi
Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or
excess of jurisdiction in admitting private respondent to bail; that there is nothing in the
Constitution or statutory law providing that a potential extraditee has a right to bail, the right
being limited solely to criminal proceedings.

On the other hand, private respondent maintained that the right to bail guaranteed under the Bill
of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a
prolonged deprivation of one’s liberty.

In this case, the Court reviewed what was held in Government of United States of America v.
Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B.
Jimenez, a.k.a. Mario Batacan Crespo GR No. 153675 April 2007, that the constitutional
provision on bail does not apply to extradition proceedings, the same being available only in
criminal proceedings. The Court took cognizance of the following trends in international law:
(1) the growing importance of the individual person in public international;

(2) the higher value now being given to human rights;

(3) the corresponding duty of countries to observe these universal human rights in fulfilling their
treaty obligations; and

(4) the duty of this Court to balance the rights of the individual under our fundamental law, on
one hand, and the law on extradition, on the other.

In light of the recent developments in international law, where emphasis is given to the worth of
the individual and the sanctity of human rights, the Court departed from the ruling
in Purganan, and held that an extraditee may be allowed to post bail.

Marcos vs. Manglapus, 177 SCRA 668; 1989

FACTS: This case involves a petition of mandamus and prohibition asking the court to order the
respondents Secretary of Foreign Affairs, etc. To issue travel documents to former Pres. Marcos
and the immediate members of his family and to enjoin the implementation of the President's
decision to bar their return to the Philippines. Petitioners assert that the right of the Marcoses to
return in the Philippines is guaranteed by the Bill of Rights, specifically Sections 1 and 6. They
contended that Pres. Aquino is without power to impair the liberty of abode of the Marcoses
because only a court may do so within the limits prescribed by law. Nor the President impair
their right to travel because no law has authorized her to do so.

They further assert that under international law, their right to return to the Philippines is
guaranteed particularly by the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights, which has been ratified by the Philippines.

ISSUE: Whether or not, in the exercise of the powers granted by the constitution, the President
(Aquino) may prohibit the Marcoses from returning to the Philippines.

HELD: "It must be emphasized that the individual right involved is not the right to
travelfrom the Philippines to other countries or within the Philippines. These are what the rightto
travel would normally connote. Essentially, the right involved in this case at bar is the right to
return to one's country, a distinct right under international law, independent from although
related to the right to travel. Thus, the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights treat the right to freedom of movement and
abode within the territory of a state, the right to leave the country, and the right to enter one's
country as separate and distinct rights. What the Declaration speaks of is the "right to freedom of
movement and residence within the borders of each state". On the other hand, the Covenant
guarantees the right to liberty of movement and freedom to choose his residence and the right to
be free to leave any country, including his own. Such rights may only be restricted by laws
protecting the national security, public order, public health or morals or the separate rights of
others. However, right to enter one's country cannot be arbitrarily deprived. It would be therefore
inappropriate to construe the limitations to the right to return to ones country in the same context
as those pertaining to the liberty of abode and the right to travel.
The Bill of rights treats only the liberty of abode and the right to travel, but it is a well
considered view that the right to return may be considered, as a generally accepted principle
of International Law and under our Constitution as part of the law of the land.

The court held that President did not act arbitrarily or with grave abuse of discretion in
determining that the return of the Former Pres. Marcos and his family poses a serious threat to
national interest and welfare. President Aquino has determined that the destabilization caused by
the return of the Marcoses would wipe away the gains achieved during the past few years after
the Marcos regime.

The return of the Marcoses poses a serious threat and therefore prohibiting their return
to the Philippines, the instant petition is hereby DISMISSED
Advertisements

Ang Ladlad LGBT Party vs. COMELEC

BILL OF RIGHTS
Ang Ladlad LGBT Party vs. COMELECG.R. No. 190582April 8, 2010

FACTS:

Petitioner is an organization composed of men and women who identify themselves as

lesbians, gays, bisexuals, or trans-gendered individuals (LGBT’s). Incorporated in 2003, Ang
Ladlad first applied for registration with the COMELEC in 2006 as a party-list organization
under Republic Act 7941, otherwise known as the Party-List System Act. The application for
accreditation was denied on the ground that the organization had no substantial membership
base. In 2009, Ang Ladlad again filed a petition for registration with the COMELEC upon which
it was dismissed on moral grounds.

Ang Ladlad sought reconsideration but the COMELEC upheld its First Resolution,
stating that “the party-list system is a tool for the realization of aspirations of marginalized
individuals whose interests are also the nation’s. Until the time comes when Ladlad is able to
justify that having mixed sexual orientations and transgender identities is beneficial to the nation,
its application for accreditation under the party-list system will remain just that.” That “the
Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that
some moral precepts espoused by said religions have sipped into society and these are not
publicly accepted moral norms.” COMELEC reiterated that petitioner does not have a concrete
and genuine national poltical agenda to benefit the nation and that the petition was validly
dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among
the sectors enumerated by the Constitution and RA 7941. Thus Ladlad filed this petition for
Certiorari under Rule 65.

ISSUE:

Whether or not Petitioner should be accredited as a party-list organization under RA

7941.

HELD:

The Supreme Court granted the petition and set aside the resolutions of the COMELEC.
It also directed the COMELEC to grant petitioner’s application for party-list accreditation.
The enumeration of marginalized and under-represented sectors is not exclusive. The
crucial element is not whether a sector is specifically enumerated, but whether a particular
organization complies with the requirements of the Constitution and RA 7941. Ang Ladlad has
sufficiently demonstrated its compliance with the legal requirements for accreditation. Nowhere
in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as
a party-list organization under any of the requisites under RA 7941.
Our Constitution provides in Article III, Section 5 that “no law shall be made respecting
an establishment of religion, or prohibiting the free exercise thereof.” At bottom, what our non-
establishment clause calls for is “government neutrality in religious matters. Clearly,
“governmental reliance on religious justification is inconsistent with this policy of neutrality.”
Laws of general application should apply with equal force to LGBTs and they deserve to
participate in the party-list system on the same basis as other marginalized and under-represented
sectors.
The principle of non-discrimination requires the laws of general application relating to
elections be applied to all persons, regardless of sexual orientation.

amashita vs Styer
NOVEMBER 4, 2014 | KAAARINA
Yamashita vs Styer
G.R. No. L-129 December 19, 1945
Facts:
Petitioner Tomoyuki Yamashita, the commanding general of the 14th army group of the
Japanese Imperial Army in the Philippines, after his surrender became a prisoner of war of the
United States of America but was later removed from such status and placed in confinement as
an accused war criminal charged before an American Military Commission constituted by
respondent Lieutenant General Styer, Commanding General of the United States Army Forces,
Western Pacific.

Filing for habeas corpus and prohibition against respondent, he asks that he be reinstated to his
former status as prisoner of war, and that the Military Commission be prohibited from further
trying him. He questions, among others, the jurisdiction of said Military Commission.

Issue/s:
1. Should the petitions for habeas corpus and prohibition be granted in this case?

2. Was the Military Commission validly constituted by respondent, therefore having jurisdiction
over the war crimes?

Ruling: 1. NO. 2. YES.

1. A petition for habeas corpus is improper when release of petitioner is not sought. It seeks no
discharge of petitioner from confinement but merely his restoration to his former status as a
prisoner of war, to be interned, not confined. The relative difference as to the degree of
confinement in such cases is a matter of military measure, disciplinary in character, beyond the
jurisdiction of civil courts. Prohibition cannot issue against one not made party respondent.
Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The Military
Commission is not made party respondent in this case, and although it may be acting, as alleged,
without jurisdiction, no order may be issued in these case proceedings requiring it to refrain from
trying the petitioner.

The Court further ruled that it has no jurisdiction to entertain the petition even if the commission
be joined as respondent. As it has said, in Raquiza vs. Bradford (pp. 50, 61, ante), “. . . an
attempt of our civil courts to exercise jurisdiction over the United States Army before such
period (state of war) expires, would be considered as a violation of this country’s faith, which
this Court should not be the last to keep and uphold.”

2. Under the laws of war, a military commander has an implied power to appoint and convene a
military commission. This is upon the theory that since the power to create a military
commission is an aspect of waging war, military commanders have that power unless expressly
withdrawn from them.
By the Articles of War, and especially Article 15, the Congress of the United States has
explicitly provided, so far as it may constitutionally do so, that military tribunals shall have
jurisdiction to try offenders or offenses against the laws of war in appropriate cases.

Dante Liban, et al. v. Richard Gordon, G.R. No. 175352, January 18, 2011

RESOLUTION

LEONARDO-DE CASTRO, J.:

I. THE FACTS

Petitioners Liban, et al., who were officers of the Board of Directors of the Quezon City
Red Cross Chapter, filed with the Supreme Court what they styled as “Petition to Declare
Richard J. Gordon as Having Forfeited His Seat in the Senate” against respondent Gordon, who
was elected Chairman of the Philippine National Red Cross (PNRC) Board of Governors during
his incumbency as Senator.

Petitioners alleged that by accepting the chairmanship of the PNRC Board of Governors,
respondent Gordon ceased to be a member of the Senate pursuant to Sec. 13, Article VI of the
Constitution, which provides that “[n]o Senator . . . may hold any other office or employment in
the Government, or any subdivision, agency, or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries, during his term without forfeiting his
seat.” Petitioners cited the case of Camporedondo vs. NLRC, G.R. No. 129049, decided August
6, 1999, which held that the PNRC is a GOCC, in supporting their argument that respondent
Gordon automatically forfeited his seat in the Senate when he accepted and held the position of
Chairman of the PNRC Board of Governors.

Formerly, in its Decision dated July 15, 2009, the Court, voting 7-5,[1] held that the
office of the PNRC Chairman is NOT a government office or an office in a GOCC for purposes
of the prohibition in Sec. 13, Article VI of the 1987 Constitution. The PNRC Chairman is elected
by the PNRC Board of Governors; he is not appointed by the President or by any subordinate
government official. Moreover, the PNRC is NOT a GOCC because it is a privately-owned,
privately-funded, and privately-run charitable organization and because it is controlled by a
Board of Governors four-fifths of which are private sector individuals. Therefore, respondent
Gordon did not forfeit his legislative seat when he was elected as PNRC Chairman during his
incumbency as Senator.

The Court however held further that the PNRC Charter, R.A. 95, as amended by PD 1264
and 1643, is void insofar as it creates the PNRC as a private corporation since Section 7, Article
XIV of the 1935 Constitution states that “[t]he Congress shall not, except by general law,
provide for the formation, organization, or regulation of private corporations, unless such
corporations are owned or controlled by the Government or any subdivision or instrumentality
thereof.” The Court thus directed the PNRC to incorporate under the Corporation Code and
register with the Securities and Exchange Commission if it wants to be a private
corporation. The fallo of the Decision read:

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red
Cross is not a government office or an office in a government-owned or controlled corporation
for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. We also
declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine
National Red Cross, or Republic Act No. 95, as amended by Presidential Decree Nos. 1264 and
1643, are VOID because they create the PNRC as a private corporation or grant it corporate
powers.
 Respondent Gordon filed a Motion for Clarification and/or for Reconsideration of
the Decision. The PNRC likewise moved to intervene and filed its own Motion for Partial
Reconsideration. They basically questioned the second part of the Decision with regard to the
pronouncement on the nature of the PNRC and the constitutionality of some provisions of the
PNRC Charter.

II. THE ISSUE

Was it correct for the Court to have passed upon and decided on the issue of the
constitutionality of the PNRC charter? Corollarily: What is the nature of the PNRC?

III. THE RULING

[The Court GRANTED reconsideration and MODIFIED the dispositive portion of the
Decision by deleting the second sentence thereof.]

NO, it was not correct for the Court to have decided on the constitutional issue because it
was not the very lis mota of the case. The PNRC is sui generis in nature; it is neither strictly a
GOCC nor a private corporation.

The issue of constitutionality of R.A. No. 95 was not raised by the parties, and was not
among the issues defined in the body of the Decision; thus, it was not the very lis mota of the
case. We have reiterated the rule as to when the Court will consider the issue of constitutionality
in Alvarez v. PICOP Resources, Inc., thus:

This Court will not touch the issue of unconstitutionality unless it is the very lis mota. It
is a well-established rule that a court should not pass upon a constitutional question and decide a
law to be unconstitutional or invalid, unless such question is raised by the parties and that when
it is raised, if the record also presents some other ground upon which the court may [rest] its
judgment, that course will be adopted and the constitutional question will be left for
consideration until such question will be unavoidable.

[T]his Court should not have declared void certain sections of . . . the PNRC
Charter. Instead, the Court should have exercised judicial restraint on this matter, especially
since there was some other ground upon which the Court could have based its
judgment. Furthermore, the PNRC, the entity most adversely affected by this declaration of
unconstitutionality, which was not even originally a party to this case, was being compelled, as a
consequence of the Decision, to suddenly reorganize and incorporate under the Corporation
Code, after more than sixty (60) years of existence in this country.

Since its enactment, the PNRC Charter was amended several times, particularly on June
11, 1953, August 16, 1971, December 15, 1977, and October 1, 1979, by virtue of R.A. No. 855,
R.A. No. 6373, P.D. No. 1264, and P.D. No. 1643, respectively. The passage of several laws
relating to the PNRC’s corporate existence notwithstanding the effectivity of the constitutional
proscription on the creation of private corporations by law is a recognition that the PNRC is not
strictly in the nature of a private corporation contemplated by the aforesaid constitutional ban.

A closer look at the nature of the PNRC would show that there is none like it[,] not just in
terms of structure, but also in terms of history, public service and official status accorded to it by
the State and the international community. There is merit in PNRC’s contention that its structure
is sui generis. It is in recognition of this sui generis character of the PNRC that R.A. No. 95 has
remained valid and effective from the time of its enactment in March 22, 1947 under the 1935
Constitution and during the effectivity of the 1973 Constitution and the 1987 Constitution. The
PNRC Charter and its amendatory laws have not been questioned or challenged on constitutional
grounds, not even in this case before the Court now.

[T]his Court [must] recognize the country’s adherence to the Geneva Convention and
respect the unique status of the PNRC in consonance with its treaty obligations. The Geneva
Convention has the force and effect of law. Under the Constitution, the Philippines adopts the
generally accepted principles of international law as part of the law of the land. This
constitutional provision must be reconciled and harmonized with Article XII, Section 16 of the
Constitution, instead of using the latter to negate the former. By requiring the PNRC to organize
under the Corporation Code just like any other private corporation, the Decision of July 15, 2009
lost sight of the PNRC’s special status under international humanitarian law and as an auxiliary
of the State, designated to assist it in discharging its obligations under the Geneva Conventions.

The PNRC, as a National Society of the International Red Cross and Red Crescent
Movement, can neither “be classified as an instrumentality of the State, so as not to lose its
character of neutrality” as well as its independence, nor strictly as a private corporation since it is
regulated by international humanitarian law and is treated as an auxiliary of the State.

Although [the PNRC] is neither a subdivision, agency, or instrumentality of the

government, nor a GOCC or a subsidiary thereof . . . so much so that respondent, under the
Decision, was correctly allowed to hold his position as Chairman thereof concurrently while he
served as a Senator, such a conclusion does not ipso facto imply that the PNRC is a “private
corporation” within the contemplation of the provision of the Constitution, that must be
organized under the Corporation Code. [T]he sui generis character of PNRC requires us to
approach controversies involving the PNRC on a case-to-case basis.

In sum, the PNRC enjoys a special status as an important ally and auxiliary of the
government in the humanitarian field in accordance with its commitments under international
law. This Court cannot all of a sudden refuse to recognize its existence, especially since the
issue of the constitutionality of the PNRC Charter was never raised by the parties. It bears
emphasizing that the PNRC has responded to almost all national disasters since 1947, and is
widely known to provide a substantial portion of the country’s blood requirements. Its
humanitarian work is unparalleled. The Court should not shake its existence to the core in an
untimely and drastic manner that would not only have negative consequences to those who
depend on it in times of disaster and armed hostilities but also have adverse effects on the image
of the Philippines in the international community. The sections of the PNRC Charter that were
declared void must therefore stay.
 [Thus, R.A. No. 95 remains valid and constitutional in its entirety. The Court MODIFIED
the dispositive portion of the Decision by deleting the second sentence, to now read as follows:

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red
Cross is not a government office or an office in a government-owned or controlled corporation
for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution.]

[1] Concurring with Justice Antonio Carpio, who wrote the Decision, were then-Chief Justice
Puno and Associate Justices Quisumbing, Carpio Morales, Chico–Nazario, Velasco, and
Leonardo-de Castro. Joining Associate Justice Nachura in his Dissenting Opinion were Associate
Justices Ynares-Santiago, Brion, Peralta, and Bersamin. Then-Justice [now Chief Justice] Corona
took no part.

CASE DIGEST: BAYAN MUNA V. ROMULO (G.R. NO. 159618; FEBRUARY 1, 2011)

FACTS: In 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome
Statute which, by its terms, is “subject to ratification, acceptance or approval” by the signatory
states.

In 2003, via Exchange of Notes with the US government, the RP, represented by then DFA
Secretary Ople, finalized a non-surrender agreement which aimed to protect certain persons of
the RP and US from frivolous and harassment suits that might be brought against them in
international tribunals.

Petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the
Agreement and prays that it be struck down as unconstitutional, or at least declared as without
force and effect.

ISSUE: [1] Did respondents abuse their discretion amounting to lack or excess of jurisdiction in
concluding the RP-US Non Surrender Agreement in contravention of the Rome Statute?
[2] Is the agreement valid, binding and effective without the concurrence by at least 2/3 of all the
members of the Senate?
HELD: The Agreement does not contravene or undermine, nor does it differ from, the
Rome Statute. Far from going against each other, one complements the other. As a matter of
fact, the principle of complementarity underpins the creation of the ICC. According to Art. 1 of
the Statute, the jurisdiction of the ICC is to “be complementary to national criminal jurisdictions
[of the signatory states].” the Rome Statute expressly recognizes the primary jurisdiction of
states, like the RP, over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the signatory states are
unwilling or unable to prosecute.
Also, under international law, there is a considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is
only obliged to refrain from acts which would defeat the object and purpose of a treaty. The
Philippines is only a signatory to the Rome Statute and not a State-Party for lack of ratification
by the Senate. Thus, it is only obliged to refrain from acts which would defeat the object and
purpose of the Rome Statute. Any argument obliging the Philippines to follow any provision in
the treaty would be premature. And even assuming that the Philippines is a State-Party, the
Rome Statute still recognizes the primacy of international agreements entered into between
States, even when one of the States is not a State-Party to the Rome Statute.

The right of the Executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage. From the earliest days of our history,
we have entered executive agreements covering such subjects as commercial and consular
relations, most favored-nation rights, patent rights, trademark and copyright protection, postal
and navigation arrangements and the settlement of claims. The validity of these has never been
seriously questioned by our courts.

Executive agreements may be validly entered into without such concurrence. As the President
wields vast powers and influence, her conduct in the external affairs of the nation is, as Bayan
would put it, “executive altogether.” The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice. DISMISSED.

ICRC neutrality and neutrality in humanitarian assistance

30-04-1996 Article, International Review of the Red Cross, No. 311, by Denise Plattner
Denise Plattner has been a member of the ICRC Legal Division since 1978, and in this capacity
carried out several missions for the ICRC. At present she is working as a legal delegate at the
ICRC delegation in New Delhi. Denise Plattner is the author of several articles published by
the Review.
1. Introduction
The terms "neutral " and "humanitarian" crop up frequently in the vocabulary of international
relations, thus demonstrating the credence placed in the attributes of neutrality and everything to
which the word "humanitarian " can apply.
Paradoxically, however, neither neutrality nor humanitarian action is immune from criticism.
Non-governmental organizations of French origin, such as Médecins sans frontières (MSF),
sometimes see a incompatibility between neutrality and justice [1 ] . Other experts consider
neutrality from the standpoint of efficiency in relation to such objectives as those assigned to
United Nations forces [2 ] . In the case of humanitarian matters, it is humanitarianism itself and
all th ings humanitarian that have been called into question [3 ] .
For its part, the International Committee of the Red Cross (ICRC) certainly does not raise its
working principles to the status of absolute values. As it is the first to admit, humanitarian action
cannot put a stop to armed conflicts and so is limited in its objectives [4 ] . While the ICRC
notionally holds humanitarian action to be in opposition to political action, it does recognize the
merits of both and there is no question of its rejecting the latter entirely in favour of the former.
We may therefore assert that whatever is not neutral is not bad per se but may have other
qualities based on different criteria of validity. In so doing we posit that neutrality exists, and
therefore feel duty bound to define it with the utmost objectivity.
The ICRC sees three aspects to neutrality. First, it is an attribute whose outlines must be
delimited because the institution is described as a neutral body. Second, it is one of the
Fundamental Principles of the International Red Cross and Red Crescent Movement. We shall
allude to the content of that principle and consider how it relates to the ICRC's own neutrality.
Lastly, neutrality has often been mentioned in connection with humanitarian assistance over the
past few years, so we shall examine the various elements of the debate before attempting to
formulate a definition of neutral humanitarian assistance.
2. ICRC neutrality
A. The ICRC as a neutral body
The Geneva Conventions of 1949 and Additional Protocol I of 1977 describe the ICRC as an
impartial humanitarian body or organization, the relevant provisions generally using the
expression "an impartial humanitarian body, such as the International Committee of the Red
Cross"[5 ] . The Statutes of the International Red Cross and Red Crescent Movement themselves
refer to the ICRC as a "neutral institution " and as a "specifically neutral and independent "
institution and intermediary [6 ] .
The ICRC is thus described as a humanitarian, neutral, impartial and independent body (or
organization) in texts adopted by States alone, such as the instruments of international
humanitarian law, and in those, such as the Statutes of the Movement, which have been adopted
by States and by the components of the Movement itself (National Red Cross and Red Crescent
Societies, International Federation of Red Cross and Red Crescent Societies and the ICRC).
It would appear at first sight that these attributes are interrelated. In the case of neutrality in
particular, that of the ICRC can in our view be understood only on the basis of the first status of
neutrality derived from international law, i.e., that of a neutral State.
When neutrality began to gain currency in international texts at the end of the nineteenth century,
it meant the legal status of a State which had decided not to become involved in a war between
two or more other States [7 ] . Neutrality was therefore understood as a status comprising all the
rights and duties accruing to or incumbent upon a neutral State. The changes that have since
come about in the international order have had the effect of making neutral-State status
exceptional and extremely difficult to understand [8 ] .
First, the prohibition on resorting to force, introduced after the First World War, added a basis
other than neutrality to the duty not to participate in hostilities. The subsequent introduction of a
system of collective security under the Un ited Nations Charter raised the question of reconciling
that system with the rights and duties implied by neutral status. At the same time it led to the
emergence of a multitude of de facto intermediate positions between neutrality and belligerence,
positions to which international law attaches no specific rights or duties [9 ] . Neutrality is
therefore becoming, if it has not already become, an optional attitude which third-party States
reserve the right to adopt according to circumstance and regardless of the formal definition of
conflicts [10 ] . Lastly, the Cold War, ideological confrontations and all non-belligerent forms of
antagonism between States have led to a conception whereby neutrality, especially permanent
neutrality, entails duties already inherent in peacetime, the idea being to enable the neutral State
to avoid being drawn into a conflict between other States [11 ] .
The foregoing considerations demonstrate that neutrality does not simply mean non-participation
in hostilities, for if that were the case there would be no need to distinguish between neutral and
non-belligerent States. Indeed, non-participation in hostilities is the hallmark of both positions.
The difference lies in the reason for non-participation: a neutral State plays no part in them
because it is precluded from doing so by virtue of its status; and a non-belligerent State because
it has so decided. In most cases that choice corresponds to the obligation not to resort to force in
international relations.
In other words, while neutrality implies non-participation in hostilities, the reverse is not
necessarily true. The position of a neutral State is therefore characterized by duties other than
non-participation in hostilities.
Professor Torrelli summarizes those duties by describing neutrality as the position of a State
which intends, at all times or on occasion, to stand apart from a conflict, adding t hat it is based
on the two essential principles of abstention and impartiality [12 ] . According to Professor
Schindler, the duties of neutral States may be broken down into the three duties of abstention,
prevention and impartiality [13 ] .
For a neutral State, the duty of abstention implies an obligation not to provide military assistance
to the belligerents. The duty of prevention obliges the neutral State to prevent the belligerents
from using its territory for bellicose purposes or committing from its national territory acts that
are contrary to the law of neutrality. Lastly, the duty of impartiality obliges the neutral State to
apply equally to both sides those rules which it has set itself in regard to its relations with the
belligerents [14 ] .
Neutral status therefore implies duties " not to do " (or " not to allow to do " ). When it comes to
action ( " doing " ), this must be done in such a way as to respect the duty of impartiality. Since
that duty certainly does not exist in the case of non-belligerent States, it may be regarded as most
characteristic of those embracing neutrality [15 ] .
Returning to the essence of neutrality and allowing it a scope which encompasses its possible
implications in peacetime, neutrality may therefore be understood as a duty to abstain from any
act which, in a conflict situation, might be interpreted as furthering the interests of one party to
the conflict or jeopardizing those of the other [16 ] .
In describing the ICRC in turn as an impartial body and as a neutral institution, States have
endowed it with the component parts of neutral-State status. There are probably several reasons
for this. Any status is both rewarding and restrictive. States certainly have an interest in ensuring
that a body operating in countries at war respects the duties of neutrality, and they would never
have assigned the ICRC the powers it enjoys without guarantees for their ow n military and
political security. Moreover, by observing the principles of abstention and impartiality from the
outset, of its own free will and at all times, the ICRC has won the confidence of States and has
been assigned under international rules tasks that were initially based on less solid legal grounds
[17 ] .
The ICRC can be described as a neutral body because it is in the unique position of being both
non-governmental and endowed with legal personality under international law. The fact that the
ICRC is made up of physical persons and not of States guarantees that its decisions do not arise
from a will to give favourable or unfavourable treatment to the parties to a conflict with whom it
has to deal. The single-nationality composition of the Committee, which, pursuant to Article 5,
para. 1, of the Statutes of the Movement, recruits its members by cooptation from among Swiss
citizens, is seen by States as a further guarantee of the ICRC's neutrality. It has to be stressed,
however, that a careful distinction must be drawn between ICRC neutrality and that of
Switzerland, which probably helped bring the former into being [18 ] .
On the other hand, it is doubtful whether a body could be granted the permanent ability to act as
a neutral intermediary unless its lack of subordination to other subjects of international law were
established [19 ] . It follows that neutral status, if attributed to an entity other than a State,
presupposes international personality. In any event, the fact that the ICRC is designated to act as
a substitute for the Protecting Power testifies to its capacity to have rights and obligations under
international law, and its international personality now seems to be generally acknowledged [20 ]
.
The neutrality of an entity other than a State implies duties of abstention which, insofar as they
are relevant to such an entity, are no different from those of a neutral State. It may be noted in
that respect that the fact of not taking part in hostilities holds good for both international and
non-governmental organizations. On the one hand, at least one intergovernmental organization,
namely the United Nations, is entitled to resort to armed force under Chapter VII of its Charter.
On the other, armed force may be used outside the monopoly of States. For instance, it is
significant that the Statutes of the Movement prescribe for its component organizations the duty
not to " take sides in hostilities " [21 ] . Similarly, the organizations also have to consider the
question of armed protection (or military escorts) for relief consignments in the light, inter
alia, of the principle of neutrality [22 ] .
The ICRC's duty of impartiality can come into play only within its own particular sphere of
activity, that is, aiding the victims of armed conflicts and internal disturbances. This means that
the ICRC will adopt the same attitude to all parties to the conflict and will be guided solely by
the best interests of the individuals covered by that sphere of activity [23 ] . The ICRC is
therefore a neutral and humanitarian body or, according to the wording of the Geneva
Conventions and Additional Protocol I, an impartial humanitarian body (or organization) [24 ] .
Let us now consider the link between the attributes of " neutrality " and "independence " .
We have already identified independence in the technical sense as a quality related to
international pers onality. In the ordinary sense, any body that is not subordinate to another must
be regarded as independent. From that perspective non-governmental organizations must, like
intergovernmental organizations, be independent to the extent that they enjoy legal personality
arising from national or international law. Lastly, the body of law governing the components of
the International Red Cross and Red Crescent Movement suggests a third acceptation of the term
" independence " , namely, that of a principle linking those components and having its own
scope.
The principle of independence is spelled out in the preamble to the Statutes of the
Movement: "The Movement is independent. The National Societies, while auxiliaries in the
humanitarian services of their governments and subject to the laws of their respective countries,
must always maintain their autonomy so that they may be able at all times to act in accordance
with the principles of the Movement".
The key word here is certainly "autonomy " , for as Jean Pictet wrote: " Under the penalty of
being something else than what it is, the Red Cross must be sovereign in its decisions, acts and
words it must be free to show the way towards humanity and justice. It is not admissible for any
power whatsoever to make it deviate from the line established for it by its ideals " [25 ] . Seen in
that light, independence appears to distinguish the ICRC from other intergovernmental and non-
governmental organizations. Since the autonomy of the ICRC (which is not an auxiliary of the
public authorities and does enjoy international personality) must be acknowledged to be greater
than that of the National Societies, it can be said that its independence is determined by its non-
governmental composition and its status as a neutral body.
B. Neutrality as a principle of the International Red Cross and Red Crescent Movement
According to the Preamble to its Statutes, the Movement [26 ] is "guided " by seven
Fundamental Principles, namely, humanity, impartiality, neutrality, independence, voluntary
service, unity and universality. Paragraph 1 of Article 3 states that the National Societies carry
out their humanitarian activities "in accordance with the Fundamental Principles " . For its part
the ICRC must "maintain and disseminate " the Fundamental Principles (Article 5, para. 2a).
Lastly, the Federation is required to perform its functions inter alia within "the context of the
Fundamental Principles " (Article 6, para. 4).
The second principle of the Movement is impartiality, defined as follows: "[The Movement]
makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It
endeavours to relieve the suffering of individuals, being guided solely by their needs, and to give
priority to the most urgent cases of distress".
The principle of neutrality is formulated as follows: "In order to continue to enjoy the confidence
of all, the Movement may not take sides in hostilities or engage at any time in controversies of a
political, racial, religious or ideological nature".
Both those principles thus impose the duties of abstention and of impartiality which have
characterized S tate neutrality from the outset. Moreover, the requirement of abstention goes
beyond the context of hostilities it extends to "not engaging in controversies of a political,
racial, religious or ideological nature" [27 ] , in keeping with the conception of State neutrality
as developed in particular since the Second World War. As in the case of States, that restriction
defines neutrality in peacetime and is intended to preserve wartime neutrality. As the Statutes
indicate, the main point is to avoid undermining the trust of entities which one day may be
involved in an armed confrontation. We may thus distinguish, as Jean Pictet does, between
ideological neutrality and military neutrality [28 ] .
One author says: "(...) the principle of impartiality lays down two clear rules of conduct: (a)
there must be no discrimination in distributing the aid given by the Movement (either in
peacetime or in time of conflict or disturbances) and (b) relief must be proportionate to need the
greater the need - the greater the relief" [29]. As portrayed in the Statutes of the Movement,
impartiality means both non-discrimination and proportionality.
Closer scrutiny reveals that those requirements are derived from neutrality as applied to inter-
State relations rather than covered by neutrality itself. Since the Movement is involved in
humanitarian action by virtue of its first principle, that of humanity, certain criteria must be set to
ensure that its action takes place within a framework capable of guaranteeing neutrality,
particularly in relief operations. Non-discrimination applies more to relations with individuals
than with communities, although the proscribed distinctions could lead to favouring one
community at the expense of its adversary. Proportionality refers to the only criterion which
must be taken into consideration once a relief operation is decided upon. Non-discrimination and
proportionality are therefore the negative and positive poles of a neutral humanitarian operation.
Conversely, the impartiality to be observed in a situation where communities are in conflict
implies, like State neutrality, that all be treated equally. Thus while non-discrimination and
proportionality are relevant only in relation to an operation, particularly a relief operation,
impartiality as an intrinsic facet of neutrality [30 ] involves the entire decision-making process of
a humanitarian organization.
That aspect of neutrality is not expressly set out in the Statutes of the Movement. It is true that it
is of concern primarily to the ICRC because its value becomes apparent essentially in situations
of armed conflict. It is indeed vital for the ICRC to adopt an even-handed attitude towards the
belligerents if it is to continue to be regarded - perceived - as neutral by those belligerents. By
way of example, the fields of activity to which the duty of equal treatment applies include the
interpretation of humanitarian law, offers of services in the event of non-international armed
conflicts [31 ] and the denunciation of violations of humanitarian law [32 ] .
It is in regard to the issue of denouncing violations of the law that neutrality has been called into
question by non-governmental organizations of French origin. With hindsight, their objections
appear to be based on two premises: neutrality imposes silence [33 ] and, from the standpoint of
justice, silence is reprehensible [34 ] .
In fact, as Yves Sandoz has noted, " (...) silence has never been set up as a principle by the
ICRC. The question has always been considered from the angle of efficiency in achieving the
objective set by the principle of humanity" [35 ] . A simple proof of this is that the ICRC does not
always abstain from denouncing humanitarian law violations; it subjects denunciations to certain
conditions, notably the requirement that any such publicity be in the interests of the persons or
populations affected or under threat [36 ] . As to the antithesis between justice and neutrality, this
has not been denied by ICRC representatives. Jean Pictet wrote: "For while justice gives to each
according to his rights, charity apportions its gifts on the basis of the suffering endured in each
case (...). It refuses to weigh the merits and faults of the individual" [37]. Now that Médecins
sans frontières is considering whether neutrality should not be abandoned [38 ] , the positions of
the two organizations concerning the interpretation of the principle are apparently coming
together. Any divergence would then clearly arise in relation to the merits of the principle, since
the French organization appears to want to preserve the possibility of speaking out on some
occasions [39 ] .
The ICRC for its part has always regarded neutrality not as an end in itself but as a means of
carrying out its mandate on behalf of victims of armed conflict and internal disturbances [40 ] . It
therefore regards respect for the different duties implied by neutrality as essential for maintaining
its status and its functions.
3. Neutrality of humanitarian assistance
A. Elements of the debate
It is only fairly recently that experts in international relations have started focusing on neutrality
as it pertains to humanitarian assistance. Their interest is closely related to the favourable light in
which all things humanitarian are regarded and, above all, to the development of coordination of
humanitarian action within the United Nations system. Their thinking has sometimes strayed
beyond the bounds of the actual provision of relief to cover everything intended to protect the
individual from threats to his or her life, physical integrity and dignity [41 ] . Seen from that
angle, neutrality is divested of its legal meaning and becomes a criterion for distinguishing
between different forms of international action.
Even the neutrality of humanitarian law is sometimes invoked [42 ] ; here, the implementation of
humanitarian law cannot be regarded as detrimental to the military or political positions of the
parties to a conflict [43 ] because its rules have been adopted by States as an acceptable
compromise between military necessity and humanitarian imperatives. That case apart, scrutiny
of other branches of international law in the light of the concept of neutrality seems inappropriate
and likely to lead to misunderstandings. Impartiality, on the other hand, is a relevant principle for
application of the law and, more specifically, for the administration of justice. However, it has a
very precise meaning and only a remote bearing on neutrality.
In considering neutrality as applied to assistance, a distinction must be made between activities
related to the distribution of relief, which are designated by the word "assistance", and other
forms of action which may be undertaken by organizations operating in the sphere of food and
medical relief. As Professor Torrelli points out, the impact that the denunciation of alleged
violations of the applicable rules might have on relief operations must be considered [44 ] . This
distinction is similar to that which must be drawn between the neutrality of an entity and
neutrality as applied to a given form of international action.
Abstention and impartiality as applied to the action of United N ations forces has recently come
in for criticism by several writers. "Humanitarian aid may rest upon universalist motives and
principles, but in its implementation it inevitably takes on a partisan political character, long
considered inappropriate for peace-keepers under the UN banner as a threat to their
impartiality [45] .""If impartiality and neutrality are compromised, an ongoing humanitarian
operation should be reconsidered, scaled down or terminated " [46 ] . Then again, "in intra-State
conflicts impartiality has often failed to restore peace and, in some cases such as Bosnia, may
have actually prolonged suffering" [47]. "Is the conclusion, then, that being neutral and
impartial is not enough?" [48]

In theory, the objections raised in regard to discrepancies between the objectives of United
Nations forces and observance of abstention and impartiality should not compromise the position
of the ICRC. However, since these objections do not always draw a distinction between the
military and the humanitarian applications of the concept of neutrality, they may be construed as
blanket criticism of the principle, covering all the fields to which it may be applied.
As to the application of the principle of neutrality among non-governmental organizations, one
such organization has claimed that "the devaluation of the ICRC's concepts, symbols and
procedures through their adoption by other less scrupulous relief organizations has profound
implications for the integrity of the ICRC itself" [49 ] . While we do not fully share the
pessimism of that organization, much less its severity, we do think that a clarification of terms is
needed and could prove helpful to those studying certain forms of international action i the light
of the principle of neutrality.
B. In search of a definition
Neutrality applicable to relief operations for victims of armed conflict does seem to exist as a
legal concept.
First, the relevant provisions of Additional Protocols I and II mention two conditions closely
associated with neutrality, namely impartiality and non-discrimination. For instance, Article 70,
para. 1, of Additional Protocol I refers to " relief actions which are humanitarian and impartial
in character and conducted without any adverse distinction" similarly, Article 18, para. 2, of
Additional Protocol II deals with "relief actions for the civilian population which are of an
exclusively humanitarian and impartial nature and which are conducted without any adverse
distinction".
Moreover, United Nations General Assembly resolutions on strengthening the coordination of
emergency humanitarian aid provided by the United Nations generally refer to the principles of
humanity, neutrality and impartiality [50 ] . In particular, the guiding principles annexed to
resolution 46/182 of 19 December 1991 include the following: " 2. Humanitarian assistance
must be provided in accordance with the principles of humanity, neutrality and impartiality."
Similarly, many texts issued by bodies concerned with relief operations cite neutrality and/or
impartiality as guidelines for their activity or for assistance activities in general. For example,
neutrality is included in " Humanitarian principles and dilemmas during operations in areas of
armed conflict" of the United Nations Development Programme (UNDP) [51 ] impartiality and
neutrality are mentioned in " The Mohonk Criteria for Humanitarian Assistance in Complex
Emergencies" , [52 ] and in the " Guiding Principles on the Right to Humanitarian Assistance "
adopted by the Council of the International Institute of Humanitarian Law at its session in April
1993 [53 ] . Occasionally the same principles even crop up in texts unrelated to situations of
armed conflict, which at first sight may seem surprising in that neutrality presupposes the
existence of communities in conflict [54 ] . Lastly, eminent specialists like C. Dominicé [55 ]
and M. Torrelli [56 ] have studied neutrality in connection with humanitarian assistance.
However, none of the texts to which we have referred offers a definition of neutral humanitarian
assistance. In our view, therefore, such a definition can be formulated only on the basis of a
number of elements drawn from current law and thinking on the matter, as outlined below.
1. Neutral assistance is assistance whose validity is grounded in international humanitarian
law. Article 70 of Protocol I and Article 18, para. 2, of Protocol II mention two conditions
closely associated with neutrality, i.e., impartiality and non-discrimination. Moreover, neutrality
is regarded as a principle of humanitarian law, which implies inter alia that "humanitarian
assistance is never interference in a conflict" [57 ] .
2. Neutral assistance does not constitute interference in an armed conflict or an unfriendly
act. This arises from the very letter of Article 70 of Protocol I. Protocol II states more generally
that none of its provisions can justify direct or indirect intervention in an armed conflict [58 ] .
3. Assistance imposed by armed force as part of a unilateral action is interference and therefore
does not meet the criterion of neutrality.Two authors who have studied the right to intervene,
namely O. Corten and P. Klein, contrast unarmed humanitarian operations undertaken following
arbitrary refusal by a State with unilateral armed reactions which they consider prohibited by
international law [59 ] . As an example of the former, they cite the 1987 parachuting of food and
medicines by Indian aircraft into Jaffna, in the Tamil-controlled area of Sri Lanka, although they
conclude that the operation remained of dubious legality because the civilian aircraft used were
escorted by Mirages [60 ] .
4. Only assistance of an exclusively humanitarian nature is neutral. Unlike Article 70 of
Protocol I, Article 18, para. 2, of Protocol II contains no reference to interference but it does
stipulate that relief actions must be "of an exclusively humanitarian (...) nature".
5. Neutral assistance is confined to the purposes hallowed in the practice of the Red Cross. In its
ruling on the military and paramilitary activities in and against Nicaragua, the International Court
of Justice took the view that "if the provision of humanitarian assistance is to escape
condemnation as an intervention in the internal affairs of [another State], not only must it be
limited to the purposes hallowed in the practice of the Red Cross, namely to prevent and
alleviate human suffering , and to protect life and health and to ensure respect for the human
being it must also, and above all, be given without discrimination to all in need " [61 ] .
6. The fact that assistance is provided even though a State or another party to the conflict has
arbitrarily refused an offer of relief does not divest it of its neutral character, as long as it is not
accompanied by the use of armed force. As indicated earlier, an offer of relief which meets the
terms of Article 70 of Protocol I and Article 18, para. 2, of Protocol II does not amount to
interference. If the arbitrary refusal persists after fruitless negotiations, any relief action
undertaken despite that refusal can, at least when undertaken by a third-party State, be regarded
as a legitimate countermeasure and therefore does not constitute interference [62 ] .
7. The fact that assistance provided by one or other of the components of the International Red
Cross and Red Crescent Movement is protected by armed escorts does not divest it of its neutral
character, provided that the parties (or authorities) controlling the territory through which the
convoy must pass and to which the humanitarian assistance is to be delivered have fully
approved the principles and procedures of the armed escort, and that the purpose of the latter is
to protect the relief supplies against bandits and common criminals.Such were the conclusions
reached by a joint working group of the ICRC and the Federation pursuant to Resolution 5
adopted by the Council of Delegates in 1993 [63 ] . The same working group also stressed that
the use of armed escorts should be decided upon only in exceptional cases, as a last resort and
after careful weighing of the advantages and disadvantages of such a measure.
8. In order to be neutral, assistance must not be discriminatory. Article 70 of Protocol I and
Article 18, para. 2, of Protocol II both use the term "without any adverse distinction" . In the
instruments of humanitarian law, the most comprehensive list of adverse distinctions is contained
in Article 75 of Protocol I.
9. In order to be neutral, assistance must be aimed at relieving the suffering of individuals, being
guided solely by their needs, and to give priority to the most urgent cases of distress [64 ] . That
requirement is laid down in particular by the International Red Cross and Red Crescent
Movement's principle of impartiality [65 ] .
10. In order to be neutral, assistance must not favour certain groups or individuals over
others [66 ] . Distinctions other than those contained in the list of adverse distinctions and
which are not justifed having regard to the needs of victims therefore do not meet the condition
of impartiality.
11. Unilateral assistance is not necessarily non-neutral [67 ] . Subject to other factors, assistance
provided to victims belonging to only one party to the conflict is not contrary to the terms of
humanitarian law.
Together, the above elements probably do not constitute an exhaustive definition of neutral
humanitarian assistance, which has yet to be expanded by the lessons of recent practice.
The international community should in particular make up its mind about assistance provided in
connection with an armed operation undertaken or authorized by the United Nations. The
question at issue is whether assistance delivered by means of an operation that does not
necessarily meet the criterion of abstention may nonetheless be regarded as neutral. As matters
stand, it appears to be accepted that assistance protected by United Nations troops using force
against one or more of the parties to an armed conflict cannot be neutral [68 ] . It therefore
remains to be established whether assistance distributed by military, police or civilian units
involved in a coercive operation, or in a peacekeeping operation with or without coercive powers
[69 ] , may be regarded as neutral [70 ] .
Be that as it may, the foregoing elements suggest that neutrality as applied to humanitarian
assistance is an autonomous notion that is not dependent on the nature of the body engaging in
activities covered by the term "humanitarian assistance". In other words a State, even if not
neutral, an intergovernmental organization or a non-governmental organization may provide the
victims of armed conflicts with assistance which meets the criteria of humanitarian law. It is
even conceivable that in some contexts its activities may be in accordance with humanitarian law
while in other theatres of operation they are not. The ICRC's assistance activities, on the other
hand, must always be regarded as being in accordance with neutrality as applied to the relief of
victims of armed conflicts, because there is a point of contact between ICRC neutrality,
neutrality as a principle of the International Red Cross and Red Crescent Movement, and
neutrality as a quality of humanitarian assistance.
4. Conclusion
In the field of humanitarian action, neutrality is an attribute of the ICRC, a duty binding upon the
components of the Movement, and a quality of the assistance afforded to the victims of armed
conflict. The content of neutrality varies slightly in these three cases, depending on the purpose it
must serve. However, it remains closely linked with the definition which introduced the concept
into international law to designate the status of a State which decided to stand apart from an
armed c onflict. Consequently, its applications under positive law still depend on the criteria of
abstention and impartiality which have characterized neutrality from the outset.
Nowadays there tends to be a " for or against " attitude to neutrality, based on its usual rather
than on its legal definition, and this leads to misunderstandings which stand in the way of any
objective appraisal of its meaning. Moreover, the fact that neutrality is invoked in connection
with various forms of collective peace-keeping or peace-making action reveals much uncertainty
on the matter.
It would therefore be useful to achieve a better understanding of neutrality as applied to the
assistance afforded to the victims of armed conflict; otherwise only such assistance as is
provided by the ICRC may be regarded with any certainty as being neutral. After all, it must be
acknowledged that a organization's neutrality affects the entire range of activities which that
organization may be called upon to perform.