set case no. 001-15 – rizalito y. david, petitioner v ... june 23, 1989, 174 scra 245, 255 7 see:...

SET Case No. 001-15 – RIZALITO Y. DAVID, petitioner v. MARY

GRACE POE LLAMANZARES, respondent.

Promulgated: _______________

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SEPARATE DISSENTING OPINION

BRION, J.:

I.

INTRODUCTION

I write this Separate Dissenting Opinion to explain my vote to

disqualify the respondent Senator Mary Grace Poe Llamanzares (respondent

or Grace Poe) from the position of Senator of the Republic of the

Philippines.

I.A. The Need to Explain My Vote

I feel bound to explain my vote as before this Tribunal (the Senate

Electoral Tribunal or SET) is a nationally elected public official who

received the highest number of votes in the 2013 senatorial elections. The

Filipino people who elected her deserve a full and exhaustive explanation of

the votes the SET members cast.

I take this Separate Dissenting Opinion, too, as an opportunity to offer

my thoughts (in my capacity as an Associate Justice of the Supreme Court

nominated to represent the Court in the SET) on points of law that I feel are

critical in understanding the present case. I specifically refer to the

understanding of how our treaty obligations and the general principles of

international law form part of the Philippine legal system, and how they

interact with the Constitution.

I also believe that as an Associate Justice of the Court (who can no

longer take part if and when the present case comes up to the Court for

review), I have the duty to express my views on any interpretation of the

applicable provisions of the 1987 Constitution – particularly on a point that

I believe had been erroneously applied – for to condone an error and the

practices that spring from it, is to violate my oath of office by permitting a

continuing violation of the Constitution.

I speak of this duty in relation with the Court’ s decision in Bengzon

v. House of Representatives Electoral Tribunal,1 which held that the

1 409 Phil. 633, 637-638 (2001).

Separate Dissenting Opinion 2 SET Case No. 001-15

reacquisition of Philippine citizenship includes the reacquisition of the

natural-born status.

While the SET has no power to reverse or declare the reversal of

the Bengzon ruling, it is not without the power to undertake its own reading

of the Constitution. As the constitutionally designated “ sole judge of the

returns, elections, and qualifications”2 of members of the Senate, our

immutable task is to apply the Constitution in accordance with its terms, as

these terms have been approved by the sovereign Filipino people, subject

only to the Supreme Court’ s exercise of its power of judicial review under

Article VIII, Section 1 of the 1987 Constitution.

I.B. The Case is Justiciable

As my last point in this Introduction, the disqualification case before

us and its issues are fully justiciable and is not a dispute that the people

resolved when they elected the respondent to the Senate.

The 1987 Constitution provides, in unequivocally clear and negatively

structured language, that “ no person shall be a senator unless he is a

natural-born citizen of the Philippines...”3 The Constitution even defined

who natural-born citizens are.4 These terms embody standards that are

required of every senator holding office under the 1987 Constitution, and are

terms that this Tribunal is bound to apply until they are changed by the

sovereign Filipino people.

When judicially discoverable and manageable standards for the

resolution of a case are in place, the SET – as the sole judge of all contests

involving the election, returns, and qualifications of senators – cannot and

should not refuse to rule on the contest before it under the guise of

upholding the will of the electorate.5 In the present case, the presence of

these standards renders the disqualification case against the respondent a

justiciable one that the SET cannot choose to ignore because of the votes

that the respondent received when she was elected Senator.

2 CONSTITUTION, Article VI, Section 17.

3 Id., Section 3 provides:

SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the

Philippines, and, on the day of the election, is at least thirty-five years of age, able to read

and write, a registered voter, and a resident of the Philippines for not less than two years

immediately preceding the day of the election. 4 Id., Section 2 provides:

SECTION 2. 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.

Those who elect Philippine citizenship in accordance with paragraph (3), Section 1

hereof shall be deemed natural-born citizens. 5 The Court cannot, on the ground of the political question doctrine, rule upon a matter brought

before it where it “ lack[s] of judicially discoverable and manageable standards for resolving it,”

Garcia v. Executive Secretary, 602 Phil. 64, 74 (2009), citing Tañada v. Cuenco, 103 Phil. 1051

(1957) and Baker v. Carr, 369 U.S. 186 (1962). Conversely, the presence of judicially

discoverable and manageable standards for resolving a case brings a case out of the coverage of

the political question doctrine, and makes it justiciable.


The principle of vox populi est suprema lex cannot prevail over the

clear eligibility requirements for holding public office; the will of the people

expressed through the ballot cannot cure the vice of ineligibility, especially

when this question was not raised when they voted the respondent into

office.6 Our republican and democratic government is a government of laws

that are intended to reflect the higher will of the sovereign people as

expressed through these laws.7 And there can be no law higher than the

Constitution that was ratified by the Filipino people as the ultimate

governing rules in running our country. The citizenship requirement is a

constitutional requirement for nationally elected representatives to the

legislature. This requirement, first provided in the 1935 Constitution and

reiterated in the 1987 Constitution, cannot be amended or cured by electoral

mandate to allow an unqualified candidate to hold office.

II.

THE CASE

II.A. The Facts

Grace Poe was found abandoned on September 3, 1968, by a certain

Edgardo Militar in front of the Parish Church in Jaro, Iloilo. Edgardo later

turned her over to the care of Emiliano Militar and his wife, residents of

Jaro, Iloilo.

On November 27, 1968, Emiliano registered Grace Poe’ s birth with

the Office of the Civil Registrar, Jaro, Iloilo, as a foundling under the name

“ Mary Grace Natividad Contreras Militar.” 8

Sometime in 1974, the spouses Ronald Allan Poe (a.k.a. “ Fernando

Poe, Jr.” ) and Jesusa L. Sonora (a.k.a. “ Susan Roces” ) filed before the

Municipal Trial Court (MTC) of San Juan, Rizal a petition to adopt Grace

Poe.

In its decision9 dated May 13, 1974, the MTC approved the spouses

Poe’ s petition for adoption. It ordered, among others, that Grace Poe’ s

name be changed to “ Mary Grace Natividad Sonora Poe” from “ Mary

Grace Natividad Contreras Militar.”

6 Jacot v. Dal, 592 Phil. 661, 680 (2008), citing Frivaldo v. Commission on Elections, G.R. No.

87193, June 23, 1989, 174 SCRA 245, 255 7 See: Aquino v. Commission on Elections, G.R. No. 120265, September 18, 1995, 248 SCRA 400,

429. 8 See: Certified True Copy of Foundling Certificate and Certificate of Live Birth, Exhibit “ P” for

the petitioner and Exhibit “ 1” for the respondent. Jesusa Sonora Poe (a.k.a. “ Susan Roces” )

registered Grace Poe’ s birth with the National Statistics Office on May 4, 2006. See: NSO

Certificate of Live Birth, Registry No. 4175, Exhibit “ O” for the petitioner and Exhibit “ 3” for

the respondent. 9 Docketed as Special Proceeding No. 138 entitled “ In the Matter of the Adoption of the Minor

Mary Grace Natividad Contreras Militar.” See: Exhibit “ Q-Q1” for the petitioner and Exhibit

“ 2” 2for the respondent.


When she turned 18 years old, Grace Poe applied for registration as

voter in Greenhills, San Juan, Metro Manila. On December 13, 1986, the

Commission on Elections (Comelec) issued in her favor a Voter’ s

Identification Card10

for Precinct No. 196, Greenhills, San Juan, Metro

Manila.

On April 4, 1988, she obtained Philippine Passport No. F92728711

from the Department of Foreign Affairs (DFA). She renewed her passport

on April 5, 1993 and on May 19, 1998.12

In 1988, Grace Poe went to the United States of America (U.S.) for

her tertiary studies. She graduated in 1991 with a degree of Bachelor of Arts

in Political Science from the Boston College in Chestnut Hill,

Massachusetts.

On July 27, 1991, Grace Poe married Teodoro Misael Daniel V.

Llamanzares, a Filipino-American citizen, at the Sanctuario de San Jose

Parish in San Juan, Metro Manila.

On July 29, 1991, Grace Poe went to live with her husband in the U.S.

They have three children, namely: Brian Daniel, born in the U.S. in 1992;

Hanna MacKenzie, born in the Philippines in 1998; and Jesusa Anika,

likewise born in the Philippines in 2004.

On October 18, 2001, Grace Poe became an American citizen through

naturalization. She subsequently obtained U.S. Passport No. 17037793.13

On April 8, 2004, Grace Poe returned to the Philippines to give moral

support to her adoptive father, Fernando Poe, Jr., in his bid to be the

country’ s President in the May 2004 elections. She went back to the U.S.

on July 8, 2004.

On December 11, 2004, Fernando Poe, Jr. was hospitalized and

eventually slipped into coma. Grace Poe immediately returned to the

Philippines on December 13, 2004 after learning of her father’ s condition.

Fernando Poe, Jr. died the following day. Grace Poe stayed in the

Philippines until February 3, 2005, for her father’ s funeral and to help settle

her father’ s estate.14

10

See: Exhibit “ R” for the petitioner and Exhibit “ 4” for the respondent. 11

See: Exhibit “ B1” for the petitioner and Exhibit “ 5” for the respondent. 12

See: Copies of her Philippine Passport Nos. L881511 and DD156616, Exhibits “ B3 and B4” for

the petitioner and Exhibits “ 5-1 and 5-2” for the respondent. 13

On December 18, 2001. See: Exhibit “ KK” for the petitioner and Exhibit “ 20” for the

respondent. 14

For the purpose of settling her father’ s estate, Grace Poe secured a Bureau of Internal Revenue

Identification Card issued on July 22, 2005. See: Exhibit “ S” for the petitioner and Exhibit “ 6”

for the respondent.


On May 24, 2005, Grace Poe returned to the Philippines with the

intent to resettle in the country for good.15

On July 10, 2006, Grace Poe filed with the Bureau of Immigration

(BI) a sworn Petition16

to reacquire Philippine citizenship under the

provisions of the Republic Act No. 9225 (RA 9225) or the Citizenship

Retention and Reacquisition Act of 2003. On July 7, 2006, she took her

Oath of Allegiance under the Act.17

Grace Poe also filed petitions for derivative citizenship on behalf of

her three children,18

who were all below 18 years of age at that time.

In its July 18, 2006 Order,19

the BI approved Grace Poe’ s petitions

for the reacquisition of Philippine citizenship and for the derivative

citizenship of her children. The BI issued Identification Certificates20

in

Grace Poe’ s name and in the name of her three children.

On August 31, 2006, Grace Poe registered anew as voter, this time in

Barangay Santa Lucia, San Juan City.21

On October 13, 2009, Grace Poe obtained Philippine Passport No.

XX473199,22

which she renewed on March 18, 2014.23

15

Between October 18, 2001 (when Grace Poe became a naturalized American citizen) and July 18,

2006 (when the Philippine BI approved Grace Poe’ s petition for reacquisition of Philippine

citizenship), Grace Poe returned to the Philippines on numerous occasions, often under a

Balikbayan Visa or under the Philippine Government’ s Balikbayan program. The following

entries/stamped dates in Grace Poe’ s U.S. Passport were on December 27, 2001; January 13,

2002; November 9, 2003; April 8, 2004; December 13, 2004; March 11, 2006; and July 5, 2006.

See: copy of Grace Poe’ s U.S. Passport, Exhibit “ KK” for the petitioner and Exhibit “ 20” for

the respondent. 16

See: Exhibit “ C” for the petitioner and Exhibit “ 7” for the respondent. 17

See: Exhibit “ A” for the petitioner and Exhibit “ 8” for the respondent. Grace Poe’ s Oath of

Allegiance reads:

“ I, Mary Grace Poe Llamanzares, solemnly swear that I will support and defend

the Constitution of the Republic of the Philippines and obey the laws and legal

orders promulgated by the duly constituted authorities of the Philippines; and I

hereby declare that I recognize and accept the supreme authority of the

Philippines and will maintain true faith and allegiance thereto; and that I impose

this obligation upon myself voluntarily without mental reservation or purpose of

evasion.” 18

See: Exhibits “ F, I and L” for the petitioner and Exhibits “ 9, 9-1 and 9-2” for the respondent. 19

Certified True Copy of the July 18, 2006 Order in CRR No. 06-7/ 10-9474 No. AFF-06-9133

signed by BI Associate Commissioner Roy M. Almoro on behalf of BI Commissioner Alipio F.

Fernandez, Jr. See: Exhibit “ E” for the petitioner and Exhibit “ 10” for the respondent. 20

See: Exhibits “ N, G, J, and M” for the petitioner and Exhibits “ 11, 11-1, 11-2, and 11-3” for

the respondent. 21

See: stub of Grace Poe’ s application form No. 7405300002355 for registration as voter at

Precinct No. 0349-A, San Juan City, Exhibit “ T” for the petitioner and Exhibit “ 12” for the

respondent. 22

See: Exhibit “ B-5” for the petitioner and Exhibit “ 5-3” for the respondent.

Between July 18, 2006 (when when the Philippine BI approved Grace Poe’ s petition for

reacquisition of Philippine citizenship) and October 13, 2009 (when Grace Poe obtained a new

Philippine Passport after reacquiring her Philippine citizenship under RA 9225), Grace Poe still

used her U.S. Passport on several occasions in her trips abroad and to and from the Philippines.

But the Philippine BI-stamped marks on her U.S. Passport for her travels to and from the


On October 6, 2010, President Benigno S. Aquino III appointed Grace

Poe as Chairperson of the Movie and Television Review and Classification

Board (MTRCB).24

To comply with the legal requirements, Grace Poe

executed on October 20, 2010 an “ Affidavit of Renunciation of Allegiance

to the United States of America and Renunciation of American

Citizenship.”25

The following day, October 21, 2010, Grace Poe took her

oath of office as Chairperson of the MTRCB before President Aquino.26

She

assumed office as Chairperson on October 26, 2010.27

On July 12, 2011, Grace Poe executed before the Vice Consul of the

U.S. Embassy in Manila an “ Oath/Affirmation of Renunciation of

Nationality of the United States.”28

She likewise accomplished on the same

date a sworn “ Questionnaire”29

stating that she had taken her oath as

MTRCB Chairperson on October 21, 2010 with the intent, among others, of

relinquishing her American citizenship.

Philippines on these occasions either classified her as “ RC” (resident citizen) or indicated her

Identification Certificate No. 06-10918 issued pursuant to RA 9225 in relation with

Administrative Order No. 91, series of 2004, and Memorandum Circular No. AFF-2-005 after the

BI approved her petition for reacquisition of Philippine citizenship. See: copy of her U.S.

Passport, Exhibit “ KK” for the petitioner and Exhibit “ 20” for the respondent. 23

See: Philippine Passport No. EC0588861, Exhibit B-6” for the petitioner and Exhibit “ 5-5” for

the respondent. 24

See: Exhibit “ U” for the petitioner and Exhibit “ 13” for the respondent 25

See: Exhibit “ V” for the petitioner and Exhibit “ 14” for the respondent.

The Affidavit of Renunciation of Allegiance to the United States of America and Renunciation of

American Citizenship reads:

“ I, MARY GRACE POE-LLAMANZARES, Filipino, of legal age, and

presently residing at No. 107 Rodeo Drive, Corinthian Hills, Quezon City,

Philippines, after having been duly sworn to in accordance with the law, do

hereby depose and state that with this affidavit, I hereby expressly and

voluntarily renounce my United States nationality/American citizenship,

together with all rights and privileges and all duties and allegiance and fidelity

thereunto pertaining. I make this renunciation intentionally, voluntarily, and of

my own free will, free of any duress or undue influence.” 26

Grace Poe took the oath of office pursuant to Presidential Decree No. 1986 and Section 5(3) of RA

9225. See: Exhibit “ X” for the petitioner and Exhibit “ 16” for the respondent.

Her Oath of Office stated:

“ Ako, si MARY GRACE POE-LLAMANZARES, na itinalaga sa katungkulan

bilang Chairperson, Movie and Television Review and Classifiication Board, ay

taimtim na nanunumpa na tutuparin ko nang buong husay at katapatan, sa abot

ng aking kakayahan, ang mga tungkulin ng aking kasalukuyang katungkulan at

ng mga iba pang pagkaraan nito’ y gagampanan ko sa ilalim ng Republika ng

Pilipinas; na tunay na mananalig at tatalima ako rito; na susundin ko ang mga

batas, mga kautusang legal, at mga dekretong pinaiiral ng mga sadyang

itinakdang may kapangyarihan ng Republika ng Pilipinas; at kusa kong

babalikatin ang pananagutang ito, nang walang ano mang pasubali o

hangaring umiwas.” 27

See: Certified True Copy of Grace Poe’ s Certificate of Assumption of Office as MTRCB

Chairperson dated October 26, 2010, Exhibit “ V” for the petitioner and Exhibit “ 14” for the

respondent. 28

The Oath was taken before Vice Consul Somer E. Bessire-Briers. See: Exhibit “ Y” for the

petitioner and Exhibit “ 17” for the respondent. 29

See: Exhibit “ Z to Z-4” for the petitioner and Exhibit “ 18” for the respondent.


On December 9, 2011, the U.S. Vice Consul issued a “ Certificate of

Loss of Nationality”30

certifying that as of October 21, 2010, Grace Poe had

lost her U.S. citizenship when she took her oath of office as MTRCB

Chairperson.

On October 2, 2012, Grace Poe filed her certificate of candidacy31

(CoC) for Senator in the May 13, 2013 elections. Petitioner Rizalito David

(petitioner or David) likewise filed his CoC for the same post.

Grace Poe obtained a total of Twenty Million Three Hundred Thirty-

Seven Thousand Three Hundred Twenty-Seven (20,337,327) votes in the

May 13, 2013 senatorial elections. This was the highest number of votes

cast for a senatorial candidate. She was proclaimed as winner on May 16,

2013, and she subsequently took her oath and assumed the duties of a

senator. David, on the other hand, failed to obtain sufficient votes to secure

a senatorial seat.

II.B. The Petition for Quo Warranto

On August 5, 2015, David filed the present quo warranto petition

against Grace Poe, challenging her qualifications for the position of Senator

of the Republic of the Philippines.

Before filing the present petition, David filed with the Comelec’ s

Law Department an Affidavit-Complaint32

charging Grace Poe with an

election offense.

The relevant provision of the 1987 Constitution with respect to the

position of Senator is Article VI, Section 3 which reads:

Section 3. No person shall be a Senator unless he is a natural-born

citizen of the Philippines and, on the day of the election, is at least thirty-

five years of age, able to read and write, a registered voter, and a resident

of the Philippines for not less than two years immediately preceding the

day of the election. [emphases supplied]

The quo warranto petition is based on the above provision’ s

citizenship and the residency requirements. The challenge to her residency

qualification was subsequently dropped33

at the Tribunal’ s suggestion and

recognition that this ground was filed beyond the required period.34

30

Issued by U.S. Vice Consul Jason Gallian. See: Exhibit “ AA” for the petitioner and Exhibit

“ 19” for the respondent. 31

See: Exhibit “ MM” for the petitioner and Exhibit “ 21” for the respondent. 32

Filed on August 17, 2015 at 10:05 a.m., or hours before David filed the petition for quo warranto

before the SET. See: Exhibit “ 22” for the respondent. 33

See: SET Resolution No. 15-07 dated September 17, 2015, p. 3. 34

2013 Rules of the SET, Rule 18.


The question regarding the respondent’ s Philippine citizenship is

itself based on two grounds:

first, that the respondent is not a natural-born Filipino because she is a

foundling; and

second, she could not have re-acquired a natural-born Filipino status

through RA 9225, as she was not a Filipino to begin with.

II.C. My Position and Vote

After considering these challenges and the issues they gave rise to, I

vote as follows:

(1) As a foundling whose parents are both unknown, the

respondent’ s Philippine citizenship cannot be established, recognized,

or presumed under the 1935 Constitution:

a. the 1935 Constitution did not grant citizenship to children

born in the Philippines whose parents were unknown;

b. the presumption that the respondent claims – that a

foundling’ s parents are citizens of the territory where the

foundling is found – inherently contradicts the terms and

underlying principles of the 1935 Constitution. Thus, the

presumption cannot be recognized as part of the law of the

land applicable to her case;

c. the Philippines’ treaty obligations do not grant Philippine

citizenship outright to foundlings. These obligations simply

require the country to recognize a foundling’ s right to acquire

Philippines citizenship.

(2) The respondent cannot also be considered a natural-born

Philippine citizen:

a. since her citizenship cannot be established, recognized, or

presumed, she had no citizenship to reacquire under RA 9225;

b. even if she had been a natural-born Philippine citizen, her

naturalization in the U.S. rendered her ineligible to be

considered natural-born. As a foreigner who had undergone

an expedited form of naturalization under RA 9225, she had to

perform acts to acquire Philippine citizenship and did not,

therefore fall under the Constitution’ s definition of a natural-

born citizen.


I, therefore, vote to disqualify the respondent Grace Poe for the

position of Senator of the Republic of the Philippines.

III.

EXPLANATION OF MY VOTE

III.A. Threshold Considerations

III.A.1. The SET & the Quo Warranto Proceedings

Before It.

From its inception, the purpose of a quo warranto petition is to

determine whether a person holding a public office is eligible for the

position he or she holds.35

Quo warranto started as a prerogative writ,

issued by the King, against anyone alleged to have usurped or claimed any

office, franchise or liberty of the English Crown, to inquire into the alleged

usurper’ s authority.36

The English translation of quo warranto – “ by

what warrant?” – captures the very purpose of this writ.

In the present times, the original purpose of a quo warranto

proceeding remains, i.e., to determine the legality of a person, association, or

corporation’ s right to hold an office or franchise. 37

The method to achieve this purpose has evolved to reflect our

tripartite, republican system of government. Instead of being answerable to

a sovereign king, the public official or franchisee holder now answers to the

sovereign State, as represented by its executive, legislative, and judicial

branches of government.

Our Rules of Court contains procedural rules unique to quo warranto

proceedings, which reflect their origin as a prerogative writ. 38

As a rule, a petition for quo warranto may be instituted only by the

Solicitor General and brought in the name of the Republic of the

Philippines.39

This step replaces the quo warranto demand by the King that

his subject show the basis under which he or she enjoys his or her office or

franchise.

Under specific instances, the Solicitor General is duty-bound to file a

petition for quo warranto, as follows: 35

See: Act No. 190 or the Code of Civil Procedure, Section 519 (1901); 1964 and 1997 RULES OF

COURT, Rule 66, Section 1. 36

Agcaoili v. Suguitan, 48 Phil. 676, 692 (1926). The writ of quo warranto originated from a 13th

century statute of King Edward I. It directed an alleged usurper of royal office a privilege to show

by what warrant he maintained his or her claim. For a history of the writ of quo warranto, see: D.

Sutherland. Quo Warranto Proceedings in the Reign of Edward I, 1278-1294 (1963). 37

RULES OF COURT, Rule 66, Section 1. 38

Id., Section 2. 39

Id., Sections 1, 2 and 3.


Section 2. When Solicitor General or public prosecutor must

commence action. — The Solicitor General or a public prosecutor, when

directed by the President of the Philippines, or when upon complaint or

otherwise he has good reason to believe that any case specified in the

preceding section can be established by proof, must commence such

action.

Courts with jurisdiction over quo warranto proceedings then

determine, based on the parties’ arguments and evidence, the right or

qualification of a challenged public officer or franchise holder to hold his or

her office or franchise.

The SET is the unique constitutional body specifically tasked to be the

“sole judge” of all “ contests” relating to the election, returns, and

qualifications of members of the Senate under Article VI, Section 17 of the

1987 Constitution.40

As the sole judge, the SET’ s jurisdiction – exercised through quo

warranto proceedings – is exclusive and original.41

Interestingly, the Constitution does not specifically require that the

“ contests” under the SET’ s jurisdiction be resolved through the remedy of

quo warranto.42

But in the light of evolved history, tradition, practice,43

and

the exclusive and independent nature of the constitutional grant, the SET

adopted a quo warranto proceeding as its procedural remedy, as embodied

in its own Rules of Procedure.44

In this sense, a quo warranto proceeding in the SET is different from

quo warranto proceedings in ordinary courts, and is governed by a different

set of rules. Notably, a quo warranto proceeding in the SET may be

initiated by any registered voter, and carries different prescriptive periods.45

Despite these differences, the purpose behind the SET’ s quo

warranto is very much the same as the writ of quo warranto that King

Edward I first issued, i.e., to determine whether a person holding office is 40

1935 CONSTITUTION, Article, VI, Section 11, which states:

Section. 11. The Senate and the House of Representatives shall each have an Electoral

Tribunal which shall be the sole judge of all contests relating to the election, returns, and

qualifications of their respective Members. Each Electoral Tribunal shall be composed of

nine Members, three of whom shall be Justices of the Supreme Court to be designated by

the Chief Justice, and the remaining six shall be Members of the Senate or the House of

Representatives, as the case may be, who shall be chosen by each House, three upon

nomination of the party having the largest number of votes and three of the party having

the second largest number of votes therein. The senior Justice in each Electoral Tribunal

shall be its Chairman. 41

See: Defensor Santiago v. Sen. Guingona, Jr., 359 Phil. 276, 294 (1998), citing Co v. HRET, G.R.

No. 92202-03, July 30, 1991, 199 SCRA 692 and Lazatin v. HRET, 250 Phil. 390 (1988). 42

See: CONSTITUTION, Article VI, Section 17. 43

See Angara v. Electoral Commission, 63 Phil. 139 (1936); Rasul v. Comelec, 371 Phil. 760, 766

(1999). 44

2013 RULES OF THE SET, Rules 15 and 18. 45

Id., Rule 18.


qualified to his or her position.46

That the SET has exclusive jurisdiction

over contests involving the election, returns, and qualifications of Senators

even reinforces this purpose.

Further discussions of the powers of the SET shall be made under the

proper topic below.

III.A.2. Burden of Proof and the Presumption of

Regularity of the Respondent’ s Cited Government

Documents.

As part of her defense, the respondent paints the present quo warranto

proceeding as one where the petitioner carries the burden of proving the

respondent’ s disqualification. To discharge this burden, the respondent

posits that the petitioner must establish that both of the respondent’ s

parents are foreigners. The respondent claims, too, that in the absence of

such proof, the government documents acknowledging her status as a

natural-born Filipino should prevail.

These documents, according to the respondent, are presumed to have

been issued legally and in the regular course of business. Thus, the

information contained in these documents regarding the respondent’ s

citizenship should be deemed correct until proven otherwise.

III.A.2.i. Burden of proof, burden of evidence, and

presumptions in quo warranto proceedings

Jurisprudence characterizes a quo warranto proceeding as a civil

proceeding47

where the parties must prove their allegations by

preponderance of evidence, or by that degree of evidence that is more

worthy of belief to the court when compared with the opposing evidence

presented.48

Facts established in civil proceedings are thus considered to

46

The writ of quo warranto originated from a thirteenth century statute of King Edward the Statute

of Quo Warranto 1290, which grants the King the right to direct an alleged usurper of a royal

office or privilege to show by what warrant he maintained his claim. Shel Herman, “ The Code of

Practice of 1825: The Adaptation of Common Law Institutions,” 24 Tul. Eur. & Civ. L.F. 207,

230 (2009) citing Donald W. Sutherland, Quo Warranto Proceedings in the Reign of Edward I

(1963); Helen Cam, The Quo Warranto Proceedings Under Edward I, in Liberties and

Communities of Medieval England (1963); T.F.T. Plucknett, Legislation of Edward I, at 38-50

(1949); J.H. Baker, An Introduction to English Legal History 145 (4th ed. 2002).

Notably, the Statute of the Writ of Quo Warranto 1290 was said to have been a compromise

between the King and the barons in order to settle their disputes over titles. The king had been

asking the barons to present their titles to their royal offices, in order to reassert his authority

against the growing independence of the barons, who had forced him to sign the Magna Carta. See

the California Attorney General’ s Office, “ Quo Warranto: Resolution of Disputes -- Right to

Public Office” (1990) p. 1 accessed from

https://oag.ca.gov/sites/all/files/agweb/pdfs/ag_opinions/quo-warranto-guidelines.pdf, citing

Baker, An Introduction to English Legal History (1979) pp. 125-126. 47

Casin v. Caluag, 80 Phil 758, 760-761 (1948). 48

RULES OF COURT, Rule 133, Section 1. See: Magdiwang Realty Corporation v. Manila Banking

Corporation, 694 Phil. 392, 407 (2012).

https://oag.ca.gov/sites/all/files/agweb/pdfs/ag_opinions/quo-warranto-guidelines.pdf


embody the probable truth regarding the factual issues resolved, not the truth

beyond reasonable doubt that criminal proceedings require. 49

The SET has similarly characterized its own quo warranto

proceeding. Accordingly, its Rules of Procedure also recognize that the

quantum of evidence necessary to establish a claim is preponderance of

evidence.50

Thus, in quo warranto, the petitioner who challenges the

respondent’ s qualification to office carries the burden of proving, by

preponderance of evidence, the facts constituting the disqualification. 51

Upon such proof, the burden shifts to the respondent who must now present

opposing evidence constituting his or her defense or establishing his or her

affirmative defense.52

These dynamics highlight the difference between burden of proof and

burden of evidence: burden of proof involves the duty of a party to present

evidence establishing the facts in issue in his claim or defense, to the degree

required by law. 53

Burden of evidence, on the other hand, involves the duty

of a party to present evidence to counter the prima facie evidence presented

against him.54

In the present case, prima facie evidence is the proof

sufficient to establish the respondent’ s disqualification unless disproved by

her opposing evidence.

A distinct difference between burden of proof and burden of evidence

is that the burden of proof never shifts, and is always on the party claiming a

right or a defense;55

the burden of evidence shifts from one party to the other

as they adduce proof of their respective claims and defenses.

In civil proceedings, the plaintiff (the petitioner in the present case)

always carries the burden to prove that he is entitled to the relief he or she

prays for (in the present petition, the disqualification of Grace Poe as a

Senator).56

The defendant (or the respondent in the present case) can also

raise his or her affirmative and other defenses that he or she has to prove.57

Both the petitioner and the respondent yield to the rule that he or she who

alleges the affirmative of the issue has the burden of proving it. 58

49

Go v. Court of Appeals, 403 Phil. 883, 890-891 (2001). 50

2013 RULES OF THE SET, Rule 73. 51

Supra Note 47. 52

Asian Construction and Development Corporation v. Tulabut, 496 Phil. 777-778, 786 (2005). 53


See: Agile Maritime Resources, Inc. v. Siador, G.R. No. 191034, October 1, 2014, 737 SCRA 360-

361, 371; Commissioner of Internal Revenue v. PNB. G.R. No. 180290, September 29, 2014, 736

SCRA 609, 620; and, DBP Pool of Accredited Insurance Companies v. Radio Mindanao Network,

Inc., 516 Phil. 110, 118-119 (2006). 55

Bautista v. Hon. Sarmiento, 223 Phil 181, 185-186 (1985). 56

Jison v. Court of Appeals, 350 Phil. 138, 173 (1998). 57

Bank of the Phil. Islands v. Spouses Royeca, 581 Phil. 188, 194 (2008). 58

Ibid. See also: Bank of Commerce v. Radio Philippines Network, Inc. G.R. No. 195615, April 21,

2014.


In contrast, the burden of evidence shifts when a party has presented

evidence prima facie establishing a case against the other party.59

Thus,

after the petitioner has met the burden of proof that he or she carries, the

burden of presenting evidence to oppose and defeat the petitioner’ s

evidence shifts to the respondent. 60

Should the respondent successfully negate the evidence presented

against him or her, the petitioner’ s case fails unless he or she can present

evidence responding to the respondent’ s evidence; thus, the burden of

evidence shifts back to the petitioner. The burden of evidence shifts back

and forth between the parties in this manner as the case progresses.61

In the end, the party able to present the more convincing evidence

enjoys the greater weight of evidence; he or she is the party who has proven

his or her claim or defense with preponderance of evidence.62

Presumptions affect the burden of evidence, by drawing an

established inference from a set of facts proven by evidence.63

A disputable

presumption provides an inference that can be rebutted, thus shifting the

burden of evidence to the other party to disprove the facts supporting the

presumption; otherwise, the presumption will be considered an established

fact.64

III.A.2.ii. The petitioner has successfully discharged the

burden of proof.

The petitioner in a disqualification case must prove the allegations

cited as grounds for disqualification, otherwise, his or her action will not

prosper.65

In the present case, the petitioner has alleged that the respondent is a

foundling. He posits that, as a foundling has no known parents from whom

to trace the origins of her citizenship, the respondent is not a Filipino citizen

and is, therefore, not eligible for the position of senator.

Significantly, the respondent admitted her status as a foundling,

thus, lifting the petitioner’ s burden of proving his claim that she is a

foundling. With the admission, the fact necessary to establish the

petitioner’ s claim is considered established.

59

Supra Note 55 at 186. 60

Supra Note 54. 61



Metropolitan Bank Corporation v. Tobias, 680 Phil.173, 188-189 (2012). 64

See Gupilan-Aguilar v. Office of the Ombudsman, G.R. No. 197307, February 26, 2014, 717

SCRA 503, 533. 65

Fernandez v. House of Representatives Electoral Tribunal, 623 Phil. 628, 656 (2009).


This evidentiary situation now presents to the Tribunal solely the legal

question of whether a person who, as a foundling found in the Philippines

and who has no known parents from whom her citizenship may be traced,

can be considered a natural-born Filipino citizen.

I reach my conclusion on the respondent’ s citizenship and

ineligibility after considering a very critical legal reality: that the

Constitution requires – with no exceptions or qualifications – that Filipino

senators must be natural-born Philippine citizens.

Article VII, Section 3 of the 1987 Constitution provides a clear,

absolute command, couched in the strongest language possible, that is,

through a negative phraseology – “ No person shall be a Senator unless he

is a natural-born citizen of the Philippines.”

In Valdez v. Tuason,66

the Court held that negative statutes are

mandatory and must be presumed to have been intended as a repeal of all

conflicting provisions, unless the contrary can clearly be shown. The Court

then said:

Conformably with this idea, it will be found that constitutional provisions

which are intended to operate with universal force and to permit of no

exceptions are commonly expressed in negative form; as “ No person shall

be imprisoned for debt;” “ No law impairing the obligation of contracts

shall be enacted;” “ No person shall be held to answer for a criminal

offense without due process of law;” “ No money shall be paid out of the

treasury except in pursuance of an appropriation by law,” etc.67

The negative form and its mandatory character connote that no

exceptions or qualifications can be allowed to the requirement of natural-

born Philippine citizenship. This absolute command affects the evidence

necessary to prove that a senator is disqualified because of his or her

citizenship. This means that a petitioner alleging lack of citizenship as a

ground for disqualification should establish facts proving that the senator

does not fall under any of the modes for acquiring Philippine citizenship

under the Constitution. Conversely, he or she does not need to prove that the

respondent is actually a foreigner.

To repeat the consequence of this strict rule, proof of foreign

citizenship is not required. By the negative terms used, proof that the

claimant to the office is not a Filipino or, even if Filipino, is not natural-

born would suffice to disqualify a claimant or holder of the position of

senator.

As the petitioner has alleged and established his cause of action, the

burden of evidence now shifts to the respondent. She has the option to

66

40 Phil. 943 (1920). 67

Id. at 947.


present evidence contradicting the petitioner’ s allegation that she is a

foundling (i.e., a negative defense) and/or present an affirmative defense,

i.e., that despite her admitted status as a foundling, she was actually born of

Filipino parents.

Instead of presenting evidence regarding her parentage, the

respondent presented various government documents proclaiming that she is

a natural-born Filipino, and claimed that the presumption of regularity of

official acts should first be disproven by the petitioner before she could be

burdened with proof of her citizenship.

The respondent, by putting forward the presumption of regularity in

official acts, effectively offered the submitted documents as proof of her

natural-born citizenship and thus attempted to shift the burden of evidence

back to the petitioner. She effectively argued that the government documents

attesting to her status as a natural-born Philippine citizen should be given

credit unless the petitioner can prove that her parents are both foreigners.

In other words, the respondent wants us to deduce and to infer her

natural-born citizenship status from the government documents she

presented, and asks us to take this inference as true until the petitioner can

establish that both her parents are foreigners. I find this position to be

legally incorrect for the following reasons:

First, like all presumptions, the presumption of regularity in the

performance of official duty may be disproven by contrary evidence.68

Thus,

the presumption of regularity vanishes upon proof of irregularity behind the

government acts, such as when the government officials involved acted

outside the standard of conduct required by law. The presumption cannot

also prevail when faced with proof disproving the contents of the public

document. 69

The implementing rules and regulations of Act No. 375370

or the Law

on Registry of Civil Status require a separate registry for foundlings,71

as

well as a different form for a foundling’ s birth certificate.72

The form for

a foundling’ s certificate of live birth does not contain any information

regarding the foundling’ s citizenship, presumably because the foundling’ s

parents are unknown; hence, the child’ s citizenship cannot be determined

on the basis of the foundling’ s certificate.73

Because of these legal and

68

People v. Delos Reyes, 672 Phil. 77, 121 (2011), citing People v. Sy Chua, 444 Phil. 757 (2003) 69

See: People v. Capuno, 655 Phil. 226, 244 (2011). 70

Approved on November 26, 1930. 71

Office of the Civil Registrar-General (OCRG) Administrative Order No. 1, series of 1993 or the

Implementing Rules and Regulations of Act No. 3753 and Other Laws on Civil Registration, Rule

7(1)(b) 72

Id., Rule 29(a). 73

See: OCRG Form No. 101, revised January 1993, available from

http://www.nsor12.ph/pdf_files/CIVIL%20REGISTRATION%20LAWS/AO1-

1993%20(IRR%20on%20Civil%20Registration%20Laws%20&%20Procedures).pdf

http://h

http://h


factual realities, the respondent’ s first certificate of live birth74

cannot

contain any conclusive information establishing the identity of the

respondent’ s birth parents or her citizenship.

The respondent’ s birth certificate was subsequently amended on May

4, 2006,75

with the respondent’ s adoptive mother, Susan Roces, acting as

the informant. The amended birth certificate now shows that the respondent

is a Filipino.76

The implementing rules and regulations of Act No. 3753 allow the

amendment of an adopted foundling’ s birth certificate to reflect a

foundling’ s change in civil status and citizenship.77

The amendment of the

respondent’ s birth certificate to attest to her Philippine citizenship,

however, ignores the evidentiary reality (that exists up to the present time)

that at the time her birth certificate was amended, NO BASIS existed to

recognize the respondent as a natural-born Philippine citizen.

The following established facts contradict the information in the

respondent’ s amended birth certificate regarding her natural-born

Philippine citizenship:

(1) at the time the respondent’ s birth certificate was amended, both

her birth parents were (and still are) unknown and hence her

citizenship could not have been traced to them;

(2) the respondent had not successfully undergone the naturalization

process to become a Filipino;

(3) the respondent’ s adoption, which was the basis for the

amendment of her birth certificate, did not confer on her the

political privilege of citizenship; and

(4) the informant who provided information on the respondent’ s

citizenship was her adoptive mother, not her birth mother who

was then still unknown.

In these lights, I cannot give weight to the respondent’ s amended

birth certificate as a prima facie evidence of her natural-born Philippine

citizenship.

Consequently, given that neither of the respondent’ s birth certificates

could validly serve as evidence of her Philippine citizenship, the other

government documents that the respondent submitted to show her Philippine

citizenship cannot likewise be used to prove her citizenship. These other

74

See: Certified True Copy of Foundling Certificate and Certificate of Live Birth, Exhibit “ P” for

the petitioner and Exhibit “ 1” for the respondent. 75

See: Exhibit “ O” for the petitioner and Exhibit “ 3” for the respondent. 76

See: Item No. 7 in the Certificate of Live Birth, supra Note 8. 77

OCRG Administrative Order No. 1, series of 1993, Rule 55 (1)(d).


government documents only relied on the respondent’ s birth certificates

for information on her citizenship and, hence, cannot have any higher

probative value than these birth certificates. In short, all of them cannot be

considered prima facie evidence of her natural-born Philippine citizenship.

At most, these government documents – her passport, travel

documents, voter’ s ID and reacquisition of Philippine citizenship – show

that the respondent had been exercising the rights and privileges of a

Philippine citizen. That a person exercises the privileges of Philippine

citizen, however, does not prove that he or she is one. Philippine

citizenship cannot be presumed from the exercise of the rights and privileges

of a Philippine citizen; the fact of citizenship must be proven by competent

evidence by the party claiming it.

Second, since the petitioner’ s ground for disqualifying the

respondent is based on her status as a foundling, the allegation that she is a

child of Filipino parents, made after her admission that she is a foundling, is

an affirmative defense that the respondent has the burden of proving.

The Rules of Court define an affirmative defense as “ an allegation of

a new matter that, while hypothetically admitting the material allegations in

the pleading of the claimant, would nevertheless prevent or bar recovery.”78

An affirmative defense thus introduces a new fact or a set of facts

that would negate the petitioner’ s claim even assuming this claim to be

true. Because it is a positive allegation of a different set of facts that the

respondent relies on as a defense, the burden of proving this affirmative

defense is always with the respondent.79

In the present case, the petitioner claimed and the respondent admitted

that she is a foundling. Despite this status and its legal consequences on her

citizenship, the eventual identification and proof of citizenship of her birth

parents can be the basis to declare her a Filipino: should the respondent’ s

birth parents be identified and be proven to be Filipinos, then she would not

in fact be a foundling and should be considered a Philippine citizen from

birth even if she had been considered a foundling all her life.

As an affirmative defense, the identification of the respondent’ s

parents and of their citizenship are facts that the respondent has the burden

of proving by preponderance of evidence. Without this evidence, the

petitioner does not have the burden of disproving the identities and Filipino

citizenship of the respondent’ s birth parents, or of proving that her birth

parents are in fact foreigners. The burden of presenting contrary evidence

shifts to the petitioner only after the respondent has established her

affirmative defense.

78

RULES OF COURT, Rule 5, Section 6(b). 79

See: Vitarich Corporation v. Losin, G.R. No. 181560, November 15, 2010, 634 SCRA 671, 684.


I discuss all these factual and legal intricacies to support my position

that I cannot and should not immediately and unquestioningly accept

the information laid out in the respondent’ s presented government

documents.

III.B. CITIZENSHIP UNDER THE 1935

CONSTITUTION

III.B.1. As a foundling, the respondent could not

have acquired the status of a natural-born Philippine

citizen through any of the modes enumerated under

the 1935 Constitution.

The respondent was found in Jaro, Iloilo, on September 3, 1968. The

prevailing law at the time she was found (and born, considering the

undisputed circumstances under which she was found) was the 1935

Constitution whose Article on Citizenship provide:

ARTICLE IV

CITIZENSHIP

Section 1. 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 Philippine Islands of foreign parents who, before

the adoption of this Constitution, had been elected to public office

in the Philippine Islands.

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

(4) Those whose mothers are citizens of the Philippines and, upon

reaching the age of majority, elect Philippine citizenship.

(5) Those who are naturalized in accordance with law.

Section 2. Philippine citizenship may be lost or reacquired in the manner

provided by law.

I conclude – based on my consideration of these provisions, their

background and history, and relevant jurisprudence – that the respondent

could not have acquired Philippine citizenship through any of the above

listed modes.

As a foundling, the respondent’ s parentage is unknown. This is an

undisputed point. And because the identities of the respondent’ s parents

are unknown, their citizenship cannot as well be determined.

Thus, the respondent could not have acquired Philippine citizenship

through paragraph (3) of Section 1 which requires that the respondent’ s

birth father be a Philippine citizen so she herself can be a Philippine citizen.


Neither could the respondent have acquired her Philippine citizenship

through her mother under paragraph (4) since her birth mother’ s identity

(and consequently, her citizenship) is also unknown.

Parenthetically, under the 1935 Constitution, a person born of a

Filipino mother but whose father is a foreigner (or is unknown) has the

option to elect Philippine citizenship upon reaching the age of majority.

This election is governed by Commonwealth Act No. 625 (CA 625),

which requires that a person electing Philippine citizenship file before the

nearest civil registry a signed and sworn statement expressing his intent to

become a Filipino. He or she shall also accompany this statement with an

oath of allegiance to the Constitution and the Philippine government.80

Furthermore, no election of Philippine citizenship shall be accepted

for registration under CA 625 unless the party exercising the right of

election has complied with the requirements of the Alien Registration Act of

1950. In other words, he or she should first be required to register as an

alien. Pertinently, the person electing Philippine citizenship is required to

file a petition with the Commission of Immigration and Deportation (now,

the BI) for the cancellation of his or her alien certificate of registration based

on his or her election of Philippine citizenship; the Commission will initially

decide, based on the evidence presented, the validity or invalidity of the

election made. The election shall thereafter be elevated to the Ministry (now

Department) of Justice for final determination and review.81

This procedure should be followed, otherwise the person tracing his

Philippine citizenship from his or her mother would not be considered a

Philippine citizen.82

The election of Philippine citizenship should also be

made within a reasonable time after reaching the age of majority.83

The records show that the respondent has never formally elected

Philippine citizenship after reaching the age of majority. The respondent,

however, was issued a voter’ s identification card on December 1986, and

hence was a registered voter since turning 18 years old. As discussed

80

Section 1 of Commonwealth Act No. 625 provides:

Section 1. The option to elect Philippine citizenship in accordance with subsection (4),

section 1, Article IV, of the Constitution shall be expressed in a statement to be signed

and sworn to by the party concerned before any officer authorized to administer oaths,

and shall be filed with the nearest civil registry. The said party shall accompany the

aforesaid statement with the oath of allegiance to the Constitution and the Government of

the Philippines. 81

Republic v. Sagun, 682 Phil 303, 315 (2012). 82

Id. at 314. 83

In Re: Application for the Admission to the Philippine Bar v. Vicente D. Ching, 374 Phil 342

(1999), the Court held that a person can no longer elect Philippine citizenship 14 years after

reaching the age of majority; while in Republic v. Sagun, supra Note 81 at 316, the Court noted

that 12 years after reaching the age of majority is likewise not a reasonable period to allow to lapse

before electing Philippine citizenship. Both cases recognize that the reasonable period for electing

Philippine citizenship is three years after reaching the age of majority.


elsewhere in this Separate Dissenting Opinion, registration as a voter does

not amount to an election of Philippine citizenship. Voting is a right

granted by virtue of being a Philippine citizen, and is not a proof or a means

of electing to become one. Neither can Philippine citizenship be presumed

from exercising the rights attendant to citizenship.84

The other categories under paragraphs (1) and (2) do not apply to

grant the respondent Philippine citizenship. The respondent had not yet

been born in 1935, and thus could not have been a Filipino at the time of the

adoption of the 1935 Constitution, as paragraph (1) above requires.

Neither could she have held public elective office before the adoption

of the 1935 Constitution; hence, she cannot claim citizenship under

paragraph (2).

The respondent has admittedly undergone the expedited proceedings

under RA 9225 and could possibly claim citizenship through naturalization

“ in accordance with law,” as provided under paragraph (5). Her RA

9225 application, however, was tainted with fatal irregularities, as I explain

elsewhere in this Opinion. Hence, neither can she claim to be “ naturalized

in accordance with law” under paragraph (5).

In sum, since the respondent has not met any of the conditions that

Article IV, Section 1, of the 1935 Constitution requires to be a Filipino, then

she cannot be a Philippine citizen.

At most, she can – as a foundling – claim the right to acquire

Philippine citizenship pursuant to international law. This point of law is

explained below. But in the absence of any statute specifically governing

the acquisition of Philippine citizenship by foundlings, she would need to

undergo the naturalization process currently in place. This is under

Commonwealth Act No. 63 (CA 63), which she can still avail of pursuant to

Philippine commitments under existing treaties as fully explained below.

III.B.2. The 1935 Constitution did not expressly or

impliedly include “ foundlings” within its terms.

The express terms of, as well as the framers’ debates under,85

the

1935 Constitution show that the Philippines adheres to the principle of jus

sanguinis (or blood relationship) in determining citizenship.

Either or both parents of a child must be Philippine citizens at the

time of the child’ s birth so that the child can claim Philippine

citizenship.86

Significantly, none of the 1935 constitutional provisions

84

Paa v. Chan, 128 Phil 815, 824 (1967). 85

Constitutional Convention, Vol. No. VI, Journal No. 96, November 26, 1934. 86

This is also the prevailing rule under Section 1(2), Article IV of the 1987 Constitution.


contemplate the situation where both parents’ identities (and consequently,

their citizenships) are unknown, as in the case of foundlings.

The silence of Article IV, Section 1, of the 1935 Constitution on the

citizenship of foundlings in the Philippines in fact speaks loudly about their

legal situation. It can only mean that the 1935 Constitution left the decision

of granting Philippine citizenship to foundlings to Congress which can, by

law, provide the means for the acquisition of Philippine citizenship.

Furthermore, the enumeration of who are citizens of the Philippines in

Article IV, Section 1 of the 1935 Constitution is an exclusive list.

According to the principle of expressio unius est exclusio alterius, items not

provided in a list are presumed not to be included in it.87

As the list of Philippine citizens under Article IV, Section 1 does not

include foundlings, then they are not included among those constitutionally

granted or recognized to be Philippine citizens. Established rules of legal

interpretation tell us that nothing is to be added to what the text states or

reasonably implies; a matter that is not covered is to be treated as not

covered.88

This situation, of course, does not mean that foundlings cannot be

Philippine citizens, but their inclusion rests with Congress, as Article IV,

Section 5 allows individuals not specifically included in the list to be

naturalized in accordance with law. This view is shared by Sr. Buslon, a

member of the 1934 Constitutional Convention, when another member (Sr.

Rafols) proposed to include foundlings among the list of Philippine citizens

in Article IV, Section 1, viz:89

Español English

SR. RAFOLS: Para una enmienda,

Señor Presidente. Propongo que

después del inciso 2 se inserte lo

siguiente: "Los hijos naturales de un

padre extranjero y de una madre

filipina no reconocidos por aquel,"

xxx

EL PRESIDENTE: La Mesa desea

pedir una aclaración del proponente de

la enmienda. ¿Se refiere Su Señoría a

hijos naturales o a toda clase de hijos

ilegítimos?

SR: RAFOLS: For an amendment, Mr.

President/Chairman. I propose that after the

second subsection, the following be inserted:

"The natural children of a foreigner father

and a Filipino mother whom (referring to the

children) the former does not recognize"

xxx

THE PRESIDENT: The Chair wishes to ask a

clarification from the proposer of the

amendment. Does Your Honor refer to

natural children or to all kinds of illegitimate

children?

87

Initiatives for Dialogue and Empowerment Through Alternative Legal Services, Inc. v. Power

Sector Assets and Liabilities Management Corporation, G.R. No. 192088, October 9, 2012, 682

SCRA 602, 649. 88

A. Scalia and B. Garner. Reading Law: The Interpretation of Legal Texts (2012) at 93. 89

1934 Constitutional Convention, Vol.VI, Journal No. 96, November 26, 1934.


SR. RAFOLS: A toda clase de hijos

ilegítimos. También se incluye a los

hijos naturales de padres conocidos, y

los hijos naturales o ilegítimos de

padres desconocidos.

SR. MONTINOLA: Para una

aclaración. Allí se dice "de padres

desconocidos". Los Códigos actuales

consideran como filipino, es decir, me

refiero al Código español, que

considera como españoles a todos los

hijos de padres desconocidos nacidos

en territorio español, porque la

presunción es que el hijo de padres

desconocidos es hijo de un español, y

de igual manera se podrá aplicar eso

en Filipinas, de que un hijo de padre

desconocido y nacido en Filipinas se

consideraque es filipino, de modo que

no hay necesidad...

SR. RAFOLS: Hay necesidad, porque

estamos relatando las condiciones de

los que van a ser filipinos.

SR. MONTINOLA: Pero esa es la

intepretación de la ley ahora, de

manera que no hay necesidad de la

enmienda.

SR. RAFOLS: La enmienda debe

leerse de esta manera: "Los hijos

naturales o ilegítimos de un padre

extranjero y de una madre filipina, no

reconocidos por aquel, o los hijos de

padres desconocidos."

xxx

SR. BUSLON: Mr. President, don’ t

you think it would be better to leave

this matter to the hands of the

Legislature? (original in English)

xxx

SR. ROXAS: Señor Presidente, mi

opinión humilde es que éstos son

casos muy insignificantes y contados,

para que la Constitución necesite

referirse a ellos. Por las leyes

SR. RAFOLS: To all kinds of illegitimate

children. Also included are the natural

children of known parents and the natural or

illegitimate children of unknown parents.

SR. MONTINOLA: To clarify, the text says

"of unknown parents". The present Codes

consider as Filipino, that is to say, I refer to

the Spanish Code, which consider as

Spaniards all the children of unknown parents

born in Spanish territory, because the

presumption is that the child of unknown

parents is child of a Spaniard, and, similarly,

that can be applied in the Philippines,

namely, that the child of an unkown father

born in the Philippines will be considered as

Filipino, such that there is no need...

SR. RAFOLS: There is a need, because we

are declaring the conditions of those who are

going to be Filipinos.

SR. MONTINOLA: But that is how the law

is interpreted now, and so there is no need for

an amendment.

SR. RAFOLS: The amendment should read

thus: "The natural or illegitimate children of a

foreigner father and a Filipino mother not

recognized by the foreigner father, or the

children of unknown parents".

xxx

SR. BUSLON: Mr. President, don’ t you

think it would be better to leave this matter to

the hands of the Legislature? (original in

English)

xxx

SR. ROXAS: Mr. Chairman, my humble

opinion is that these cases are very

insignificant or rare for the Constitution to

make a reference to them. The principle is

recognized by international laws that the

children or the persons born in a country of

unknown parents are children of that country,

and it is not necessary to include in the

Constitution a specific stipulation on the

matter.


internacionales se reconoce el

principio de que los hijos o las

personas nacidas en un país y de

padres desconocidos son ciudadanos

de esa nación, y no es necesario incluir

en la Constitución una disposición

taxativa sobre el particular.

xxx

EL PRESIDENTE: La Mesa someterá

a votación dicha enmienda. Los que

estén conformes con la misma, que

digan Sí. (Una minoría: Sí). Los que

no lo estén, que digan No. (Una

mayoría: No). Queda rechazada la

enmienda.

xxx

THE PRESIDENT: The Table will submit the

amendment to voting. Those who agree with

the amendment will say Yes (A minority:

Yes). Those who do not agree will say No. (A

majority: No). The amendment is rejected.

As the transcripts of the deliberations reflect, Sr. Rafols suggested that

children of unknown parentage be included in the list of Philippine citizens

under the Article on Citizenship. Several Convention members disagreed

with the proposition for various reasons.

Sr. Montinola believed there was no need to include foundlings in the

list because the Spanish Civil Code already recognizes foundlings to be born

of Spanish citizens, and are thus Spanish. He believed the same rule can be

applied in the Philippines.

Sr. Buslon, on the other hand, posited that the citizenship of

foundlings should be determined by the legislature.

Sr. Roxas lastly opined that international law already covers the

situation of foundlings, and vests in them the citizenship of the country

where they are found.

Regardless of the reasons behind their votes, the majority of the

members of the 1934 Constitutional Convention voted not to approve Sr.

Rafols’ s amendment. This vote led to the noninclusion of foundlings in

the list of Philippine citizens under Article IV, Section 1 of the 1935

Constitution.

The respondent argued that the 1934 Constitutional Convention’ s

discussion of Sr. Rafol’ s proposed amendment revealed their intent to

presume foundlings to be born of Filipino parents, and are thus Philippine

citizens from birth. But as shown above, the respondent’ s position is

simply not supported by the records of the 1934 Constitutional Convention

proceedings.


To reiterate, if only to meet the respondent’ s argument head-on, the

discussions reveal that the members of the 1934 Constitutional Convention

had different reasons for not approving Sr. Rafol’ s amendment. Thus, aside

from disagreeing with the amendment (as they in fact eventually rejected it),

the members of the Convention did not even agree with each other on the

reason for the rejection.

The commonality – and this is what should predominate and be the

conclusion from the debates – is the framers’ rejection of the inclusion of

foundlings. What ultimately would apply to them ‒ given the inapplicability

of the first four (4) paragraphs ‒ would be the express terms of paragraph

(5), Section 1 of the Article – the citizenship of those who are naturalized in

accordance with law.

We should be aware that recourse to the intent behind constitutional

provisions is only made when an ambiguity exists in the constitutional

provision under consideration, not when there is no provision to speak of at

all.90

If at all, what the text does not contain can only be supplied when it is

clear from all circumstances that an omission has taken place, not when the

records show the clear intent to exclude what is claimed should be

included.91

In the present case, the respondent argued, not from what the text of

the Constitution states and what these words should, by interpretation,

cover; she argued on the basis of the possible intent of the framers in their

debates, thereby going one step beyond the words of the Constitution by

interpreting the framers’ debate.

In effect, the respondent’ s argument is based merely on the fact that

foundlings were mentioned in the debates, plainly disregarding in her

reasoning that the framers conclusively denied, for their individually held

reasons, the specific inclusion of foundlings under the terms of Section 1,

Article IV of the 1935 Constitution.

As a rule, the law is understood in its ordinary meaning.92

Interpretation is used only when an ambiguity exists; only then is the intent

behind the provision – as revealed by the deliberations of the lawmakers –

examined and considered.93

Note in this regard that unlike lawmaking in Congress where the

framers and approving authority are one – i.e., the legislators whose

90

Civil Liberties Union v. Executive Secretary, 272 Phil. 147, 169 (1991). 91

Id. at 337. 92

Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 884-885 (2003). 93

Ibid., citing Civil Liberties Union v. Executive Secretary, 272 Phil. 147 (1991).


intents may be seen in their debates and are thus material – the framers and

approving authority of the Constitution are different; the framers in case of

the Constitution are not really the members of the 1934 Constitutional

Convention but the people whose assent gave life to the Constitution.94

Thus, even the debates that the respondent cites are not the most

authoritative source of the claimed intent on which her natural- born

citizenship is founded.

Article IV, Section 1 of the 1935 Constitution is clear in its terms in

listing who Filipino citizens are. To reiterate, it provided: “ The following

are citizens of the Philippines:…” . The listing that followed neither

included foundlings nor referred to children of unknown or indeterminable

parentage. The list also did not provide any presumption that the respondent

can claim. To now recognize these matters to be included within the terms

of the 1935 Constitution is for this Tribunal to undertake the unthinkable

act of re-writing the 1935 Constitution by including what is not there,

expressly or by implication. I, therefore, cannot join any conclusion that the

respondent is a natural-born citizen under the terms of the 1935 Constitution.

III. C. THE CLAIM OF PHILIPPINE CITIZENSHIP

UNDER INTERNATIONAL LAW

III.C.1 Our treaty obligations and international

customary law do not establish the respondent’ s

Philippine citizenship.

Separately from her claimed inclusion of foundlings under the terms

of the 1935 Constitution, the respondent argued that she is presumed to be a

citizen of the Philippines based on binding treaties and on the generally

accepted principles of international law.

The respondent cited in this regard the United Nations Convention on

the Rights of the Child (UNCRC)95

and the International Convention on

Civil and Political Rights (ICCPR)96

which are treaties that the Philippines

has signed and ratified. These treaties require signatory states to ensure

every child’ s right to acquire a nationality, and State-parties

94

CONSTITUTION, Article XVIII, Section 27. See also: Separate Opinion of CJ Reynato Puno,

Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 668-669 (2000). 95

Signed by the Philippines on 26 January 1990 ratified on 21 August 1990 and entered into force

on 2 September 1990, see United Nations Treaty Collection, available from

https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-11&chapter=4&lang=en 96

Signed by the Philippines on 19 December 1966, ratified on 23 October 1986 and entered into

force on 23 March 1976, see United Nations Treaty Collection, available from

https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg_no=iv-4&lang=en

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shall ensure the implementation of these rights in accordance with their

national law and their obligations under relevant international instruments

in this field, in particular when the child moved otherwise be stateless.97

To the respondent, this obligation translates into the Philippine

government’ s duty to recognize foundlings as Philippine citizens from

birth. She also claimed that she cannot rely on domestic laws on

naturalization, as these laws are insufficient means of compliance with the

country’ s treaty obligations. Under our domestic laws on naturalization, a

person would have to wait until he or she is 18 years old before he or she can

acquire Philippine citizenship, which is allegedly contrary to every child’ s

right to a nationality from birth.

The respondent further argued that the generally accepted principles

of international law, which form part of the Philippine legal system under

the doctrine of incorporation, presume that foundlings are born of parents

who are citizens of the country where they are found. Under this

presumption, she should be considered a natural-born Philippine citizen.

The respondent sought to prove all these through: (1) the 1935

Constitutional Commission’ s discussion of international law as basis for

the citizenship of foundlings during its deliberations on the Article on

Citizenship; (2) various international treaties that recognize the right to

acquire nationality and be protected against statelessness, including the 1961

United Nations Convention on the Reduction of Statelessness, which

presumes that a foundling’ s parents are citizens of the territory in which

they are found; and (3) the laws or practice of various States that presume a

foundling’ s parents to be their citizens. According to the respondent, all

these are evidence of widespread state practice and opinio juris – the two

requirements before a legal norm can crystallize into a customary

international law.98

III.C.1.a. Application of International Law at the time the

1935 Constitution was passed

I dismiss outright the validity of any claim made during the 1935

Constitutional Commission’ s deliberations on the binding effect of

international treaties and conventions on the Philippines.

Additionally, the passing mention of international law during the 1935

constitutional debates cannot, without more, be considered a serious source

of authority that gives rise and validity to the respondent’ s claimed

interpretation of the 1935 Constitution.

97

UNCRC, Article 7(2), 1577 (27531-27541) UN Treaty Series 3, 47 (1990), available from

https://treaties.un.org/doc/Publication/UNTS/Volume%201577/v1577.pdf

See also ICCPR, Article 24(3), 999 (14657-14668) UN Treaty Series 171, 179 (1976), available

from https://treaties.un.org/doc/Publication/UNTS/Volume%20999/v999.pdf 98

Bayan Muna v. Romulo, 656 Phil. 246, 303 (2011)

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In 1930, the Philippines was still a colony of the U.S. The existing

government then – the Philippine Insular Government – neither had the

power nor the authority to enter into foreign agreements, conventions, or

treaties. The administration of the Insular government was under the control

of the U.S. government; foreign relations of the Philippines, in particular,

were under the power and control of the U.S. President, subject to the

concurrence of the U.S. Congress.99

What could have been referred to in the constitutional debates

as the instrument that bound the Philippines internationally was the

1930 Hague Convention on Certain Questions relating to Conflicts of

Nationality Laws.100

The Convention was the result of the September 22,

1924 resolution of the League of Nations whereby the member nations

recognized the need to settle, thru international agreement, questions relating

to the conflict of nationality laws in order to abolish all cases of both

statelessness and double nationality.101

The U.S. was not a signatory to the

Convention.

99

See: Sections 7, 9, 10, 84, and 86 of the Philippine Bill of 1902; Sections 6, 9, 10, 19(a), 21 and 23

of the Jones Law of 1916; and, Section 10 of the Tydings-McDuffie Act of 1934, which expressly

provides that “ [f]oreign affairs shall be under the direct supervision and control of the United

States.” 100

See United Nations Treaty Collection, available from

https://treaties.un.org/pages/LONViewDetails.aspx?src=LON&id=512&chapter=30&lang=en 101

The 1930 Hague Convention was signed by forty (40) countries, namely: Australia, Belgium,

Brazil, Burma, Canada, China, India, Monaco, Netherlands, Norway, Poland, Sweden, United

Kingdom, Chile, Columbia, Cuba, Czechoslovakia, Denmark, Egypt, Estonia, France, Free City of

Danzig, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Luxembourg, Mexico,

Peru, Portugal, El Salvador, Spain, Switzerland, Union of South Africa, Uruguay, and Yugoslavia.

Of these 40 signatory-countries, only the following thirteen (13) countries have ratified the

Convention: Australia, Belgium, Brazil, Burma, Canada, China, India, Monaco, Netherlands,

Norway, Poland, Sweden, and United Kingdom. See UN Treaty Collection available from

https://treaties.un.org/pages/LONViewDetails.aspx?src=LON&id=512&chapter=30&lang=en#top

Under Article 14, Chapter IV of the Convention, “ [a] child whose parents are both unknown

shall have the nationality of the country of birth x x x [and] until the contrary is proved, [is]

presumed to have been born on the territory of the State in which it was found,” available from

http://eudo-

citizenship.eu/InternationalDB/docs/Convention%20on%20certain%20questions%20relating%20t

o%20the%20conflict%20of%20nationality%20laws%20FULL%20TEXT.pdf

Article 14 only provides that the foundlings, or children whose parents are both unknown, “ shall

have the nationality” of the country of birth. This “ shall have the nationality” can be automatic,

i.e., they are automatically and at the moment of birth considered as nationals of the State; or, it

can also be subject to the procedures & requirements for acquiring nationality under the State's

nationality laws.

Likewise, the presumption under Article 14 – that they are presumed to have been born on the

territory – does not establish a natural-born citizen status. Note that the provision does not say

that foundlings are natural-born nationals or citizens, but only that they are “ presumed to have

been born on the territory.” Thus, at most, it only establishes a presumption as to the

foundlings’ place of birth.

The interpretation that Article 14 establishes a presumption only as to the place of birth, not to a

natural-born citizen status, is clear when we read Article 14 with Article 1 of the Convention.

Article 1 provides that “ [i]t is for each State to determine under its own laws who are its

nationals.” Thus, whether the foundling is the State’ s national or not and, assuming a national,

whether the foundling is natural-born or not, depends on what the State’ s nationality laws

provide.

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Even with the establishment of the Philippine Commonwealth

government (which came after the adoption and ratification of the 1935

Constitution) and the establishment as well of the Philippine Republic

(which came after Philippine independence from the U.S. on July 4, 1946),

the Philippines neither signed nor acceded to the 1930 Hague Convention.

Neither did the U.S. sign nor accede to the Convention during this period.

Interestingly, the U.S. 1940 Nationality Act contained a provision

similar to Article 14 of the 1930 Hague Convention, which grants to a

foundling the nationality or citizenship of the territory where the child is

found. Under Section 201(f) of the U.S. 1940 Nationality Act, “ a child of

unknown parentage found in the United States, until shown not to have been

born in the United States,” is deemed a citizen of the U.S.102

The legal effect of Section 201(e) of the U.S. 1940 Nationality Act,

however, could not have been extended to the Philippines from the time of

this law’ s adoption in 1920 up to the Philippines’ independence from the

U.S. in 1946. Under Section 5 of the Jones Law of 1916, the “ statutory

laws of the United States hereafter enacted shall not apply to the Philippine

Islands, except when specifically so provided, or it is provided in this Act.”

The Jones Law did not contain a provision similar to Section 201(e) of the

U.S. 1920 Nationality Law.

Quite conceivably, it might be argued that although the Philippines

and the U.S. were not signatories to the 1930 Hague Convention, the U.S.

Nationality Law nevertheless grants citizenship to foundlings and, therefore,

the 1930 Hague Convention could be treated as a customary international

law that, under Section 3, Article II of the 1935 Constitution, formed part of

the law of the land.

This argument likewise carries no merit given that the 1930 Hague

Convention itself, under its Article 18, recognizes that its signing by the

several signatory-countries does not make the 1930 Hague Convention

customary international law and will not in any way “ prejudice the

question of whether they do or do not already form part of international

law.” Notably, the 1930 Hague Convention allows any signatory-country

to denounce the Convention (under Article 28), as well as to reserve and

declare that, in accepting the Convention, “ [it] does not assume any

obligations in respect of all or any of [its] colonies, protectorates, overseas

territories or territories under suzerainty or mandate, or in respect of certain

parts of the population of the said territories x x x or that the Convention

‘ shall cease to apply’ to any or all of these colonies, etc.” (under Article

29).103

102

U.S. 1940 Nationality Act, 54 Stat. 1137, 1138, available from

http://library.uwb.edu/static/USimmigration/54%20stat%201137.pdf 103

For the same reason, the 1961 Convention on the Reduction of Statelessness (United Nations High

Commissioner for Refugees, available from http://www.unhcr.org/3bbb286d8.html) cannot also

be claimed as a customary international law that should form part of the law. In this light, no

further discussion of this 1961 Convention appears necessary.

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In the light of the inherently tenuous nature of the binding effect of

international law on the Philippines in 1935 (and the mere passing reference

to international law during the constitutional debates), I have left to the

footnotes further discussion of the 1930 Hague Convention.

III.C.1.b. Treaty Obligations under the UNCRC, the

ICCPR and the UDHR

In my view, our UNCRC and ICCPR treaty obligations – by their

terms – do not operate to automatically grant Philippine citizenship to

foundlings. And while the legal norm presuming foundlings to have been

born of parents of the country where they are found (or born) may have

found international application elsewhere in the world, this norm cannot be

applied in the Philippines under the terms of the 1935 Constitution as this

norm contravened the clear terms of this Constitution.

The Universal Declaration of Human Rights (UDHR), on the other

hand, is not a binding treaty; it is merely a declaration made by the States of

the rights and values they hold and believe in.104

Its individual provisions

may be binding only to the extent that they have been recognized as

generally accepted principles of international law that are not inconsistent

with the Philippine Constitution.

I reach these conclusions after considering how our legal system

enters into and recognizes our international obligations, and after

considering the impact and interaction of international law with domestic

law.

III.C.1.b.i. The dualist character of

international law in the Philippines

The Philippines has adopted a dualist approach in its treatment

of international law.105

Under this approach, the Philippines sees

international law and its international obligations from two perspectives:

first, from the international plane, where international law reigns supreme

over national laws; and second, from the domestic plane, where the

international obligations and international customary laws are considered in

the same footing as national laws, and do not necessarily prevail over the

latter.106

The first approach springs from the international customary law of

pacta sunt servanda that recognizes that obligations entered into by states

104

See: Chavez v. Gonzales, 569 Phil. 155, 195 (2008). See also: Separate Opinion of J. Puno in

Republic v. Sandiganbayan, 454 Phil. 504, 577 (2003), citing P. Drost. Human Rights as Legal

Rights (1951) at 32-33. 105

M. Magallona. “ The Supreme Court and International Law: Problems and Approaches in

Philippine Practice” 85 Philippine Law Journal 1, 2 (2010). 106

See: Secretary of Justice v. Hon. Lantion, 379 Phil. 165, 212-213 (2000).


are binding on them and requires them to perform their obligations in good

faith.107

This principle finds expression under Article 27 of the Vienna

Convention on the Law of Treaties,108

which provides that “ A party may not

invoke the provisions of its internal law as a justification for its failure to

perform a treaty.”109

Thus, in the international plane, the Philippines cannot use its

domestic laws to evade compliance with its international obligations;

non-compliance would result in repercussions in its dealings with other

States.

On the other hand, under Article VIII of the 1987 Constitution, a

treaty may be the subject of judicial review,110

and is thus characterized as

an instrument with the same force and effect as domestic law.111

From this

perspective, treaty provisions cannot prevail over, or contradict,

constitutional provisions;112

they can also be amended by domestic laws, as

they exist and operate at the same level as these laws.113

In the same manner that treaty obligations partake of the character of

domestic laws in the domestic plane, so do generally accepted principles of

international law. Article II, Section 2 of the 1987 Constitution provides

that these legal norms “ form part of the law of the land.” This

constitutional declaration situates in clear and definite terms the role of

generally accepted principles of international law in the hierarchy of

Philippine laws and in the Philippine legal system.

107

Ibid. 108

Vienna Convention on the Law of Treaties, available from

https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf 109

Signed by the Philippines on May 23, 1969 and ratified on November 15, 1972. See United

Nations Treaty Collection, available from

https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII1&chapter=23

&Temp=mtdsg3&lang=en. 110

Section 5, (2)(a), Article VIII provides:

SECTION 5. The Supreme Court shall have the following powers:

xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the

Rules of Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty,

international or executive agreement, law, presidential decree,

proclamation, order, instruction, ordinance, or regulation is in question.

xxx 111

See: I. Cortes and R. Lotilla. “ Nationality and International Law From the Philippine

Perspective” 60(1) Philippine Law Journal 1, 1-2 (1990); and, M. Magallona. “ The Supreme

Court and International Law: Problems and Approaches in Philippine Practice” 85 Philippine

Law Journal 1, 2-3 (2010). 112

CONSTITUTION, Article VIII, Section 4(2) on the power of the Supreme Court to nullify a treaty on

the ground of unconstitutionality. See also: M. Magallona, supra Note 111 at 6-7. 113

M. Magallona, supra Note 111 at 4, citing Ichong v. Hernandez, 101 Phil. 1156 (1957).

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III.C.1.b.ii. The doctrine of transformation and

the doctrine of incorporation

Treaty obligations and general principles of international law

(sometimes referred to as international customary law) differ in how they

take effect and affect the Philippines.

Treaties are entered into by the President and must be ratified with a

two-thirds vote of the Philippine Senate in order to have legal effect in the

country.114

Upon ratification, a treaty is transformed into a domestic law and

becomes effective in the Philippines. Depending on the terms and character

of the treaty obligation, some treaties need additional legislation in order to

be implemented in the Philippines. This process takes place pursuant to the

doctrine of transformation.115

In contrast, generally accepted principles of international law usually

gain recognition in the Philippines through decisions rendered by the

Supreme Court, pursuant to the doctrine of incorporation.116

The Supreme

Court, in its decisions, applies these principles as rules or as canons of

statutory construction, or recognizes them as meritorious positions of the

parties in the cases it decides.117

Separately from court decisions, international law principles may gain

recognition through actions by the executive and legislative branches of

government when these branches use them as bases for their actions (such as

when Congress enacts a law that incorporates what it perceives to be a

generally accepted principle of international law).

But until the Court declares a legal norm to be a generally accepted

principle of international law, no other means exists in the Philippine legal

system to determine with certainty that a legal norm is indeed a generally

accepted principle of international law that forms part of the law of the land.

The main reason for the need for a judicial recognition lies in the

nature of international legal principles. Unlike treaty obligations that involve

the express promises of States to other States, generally accepted principles

of international law do not require any categorical expression from States

for these principles to be binding on them.118

Generally accepted principles of international law are legal norms that

are recognized as customary in the international plane; States follow them on

114

CONSTITUTION, Article VII, Section 21. 115

Pharmaceutical and Health Care Association of the Philippines v. Duque III, 561 Phil. 386, 399

(2007). 116

See CONSTITUTION, Article II, Section 2. 117


Supra Note 111 at 2-3.


the belief that these norms embody obligations that these states, on their

own, are bound to perform. Also referred to as customary international law,

generally accepted principles of international law pertain to the collection of

international behavioral regularities that nations, over time, come to view as

binding on them as a matter of law.119

A legal norm requires the concurrence of two elements before it may

be considered as a generally accepted principle of international law: the

established, widespread, and consistent practice on the part of States; and a

psychological element known as the opinio juris sive necessitatis (opinion

as to law or necessity).120

Implicit in the latter element is the belief that the

practice is rendered obligatory by the existence of a rule of law requiring it.

The most widely accepted statement of sources of international law

today is Article 38(1) of the Statute of the International Court of Justice

(ICJ), which provides that the ICJ shall apply international custom, as

evidence of a general practice accepted as law.121

The material sources of

custom include state practices, state legislation, international and national

judicial decisions, recitals in treaties and other international instruments, a

pattern of treaties in the same form, the practice of international organs, and

resolutions relating to legal questions in the United Nations General

Assembly.122

Sometimes referred to as evidence of international law, these sources

identify the substance and content of the obligations of states and are

indicative of the state practice and opinio juris requirements of international

law.

In the usual course, this process passes through the courts as they

render their decisions in cases. As part of a court’ s function of determining

the applicable law in cases before it (including the manner a law should be

read and applied), the court has to determine the existence of a generally

applied principle of international law in the cases confronting it, as well as

the question of whether and how it applies to the facts of the case.

To my mind, the process by which courts recognize the effectivity of

general principles of international law in the Philippines is akin or closely

similar to the process by which the Supreme Court creates jurisprudence.

Under the principle of stare decisis, courts apply the doctrines in the cases

the Supreme Court decides as judicial precedents in subsequent cases with

similar factual situations.123

119

Arigo v. Swift, G.R. No. 206510, September 16, 2014. See also Razon, Jr. v. Tagitis, 621 Phil. 536,

600-605 (2009). 120


Statute of the ICJ, Article 38(1)(b), available from http://www.icj-cij.org/documents/?p1=4&p2=2 122

Pharmaceutical and Health Care Association of the Philippines v. Duque III, supra Note 115 at

399. 123

Ting v. Velez-Ting, 601 Phil. 676, 687 (2009).

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In a similar manner, the Supreme Court’ s pronouncements on the

application of generally accepted principles of international law to the cases

it decides are not only binding on the immediately resolved case, but serve

as judicial precedents as well in subsequent cases with similar sets of facts.

That both jurisprudence and generally accepted principles of international

law form “ part of the law of the land” (but are not laws per se) is,

therefore, not pure coincidence.124

To be sure, the executive and legislative departments may recognize

and use customary international law as basis when they perform their

functions. But while such use is not without legal weight, the continued

efficacy and even the validity of their use as such cannot be certain. While

their basis may be principles of international law, their inapplicability or

even invalidity in the Philippine legal setting may still result if the applied

principles are inconsistent with the Constitution – a matter that is for the

Supreme Court to decide.

Thus viewed, the authoritative use of general principles of

international law can only come from the Supreme Court whose decisions

incorporate these principles into the legal system as part of jurisprudence.

III.C.2. The Philippines’ treaty obligations under

the ICCPR and UNCRC do not require the

immediate and automatic grant of Philippine

citizenship to foundlings.

According to the respondent, the Philippines is obligated to recognize

foundlings in the Philippines as its citizens under the ICCPR and the

UNCRC.

Both treaties are valid and binding on the Philippines as they have

been signed by the President and ratified by our Senate. Our obligations

under these treaties, however, do not require the immediate and automatic

grant of Philippine citizenship to foundlings.

Treaties are enforceable according to the terms of the obligations they

impose. In the case of ICCPR and UNCRC, their validity is not under

question but the terms and character of their provisions merely require the

grant to every child of the right to acquire a nationality.

Section 3, Article 24 of the ICCPR on this point provides:

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

124

CONSTITUTION, Article II, Section 2 in relation to CIVIL CODE, Article 8.


while Article 7, Section 1 of the UNCRC provides:

1. The child shall be registered immediately after birth and shall have the

right from birth to a name, the right to acquire a nationality and, as far as

possible, the right to know and be cared for by his or her parents.

The right to acquire a nationality is different from being granted an

outright Filipino nationality. Under the cited treaties, States are merely

required to recognize and facilitate the child’ s right to acquire a

nationality.

Of course, the automatic and outright grant of citizenship to children

in danger of being stateless is one of the means by which this obligation may

be complied with. But the treaties allow other means of compliance with

their obligations without the immediate and automatic grant of citizenship to

stateless children found in the State’ s territory.

Otherwise stated, states possess some leeway in complying with the

express terms of the treaties. These treaties recognize, too, that the

obligations should be complied with within the framework of a state’ s

national laws. This view is reinforced by the provisions that implement

these treaties.

Article 2 of the ICCPR on this point provides:

2. Where not already provided for by existing legislative or other

measures, each State Party to the present Covenant undertakes to take the

necessary steps, in accordance with its constitutional processes and with

the provisions of the present Covenant, to adopt such laws or other

measures as may be necessary to give effect to the rights recognized in

the present Covenant. [emphasis supplied]

On the other hand, Article 4 of the UNCRC states:

States Parties shall undertake all appropriate legislative, administrative,

and other measures for the implementation of the rights recognized in

the present Convention. With regard to economic, social and cultural

rights, States Parties shall undertake such measures to the maximum

extent of their available resources and, where needed, within the

framework of international co-operation. [emphasis supplied]

These terms should be cross-referenced with Section 2, Article 7 of

the UNCRC, which provides:

States Parties shall ensure the implementation of these rights in

accordance with their national law and their obligations under the

relevant international instruments in this field, in particular where the

child would otherwise be stateless. [emphasis supplied]


Taken together, these ICCPR and UNCRC implementation provisions

reveal the measure of flexibility mentioned above.125

This flexibility exists

between the absolute obligation to recognize every child’ s right to acquire a

nationality, and the allowable and varying measures that may be taken to

ensure this right. These measures may range from an immediate and

outright grant of nationality, to the passage of naturalization measures that

the child may avail of to exercise his or her rights, all in accordance with the

State’ s national law.

In legal terms, a State is obliged to ensure every child’ s right to

acquire a nationality through laws in the State’ s legal system that do not

contradict the treaty. This obligation is understood under the domestic plane

approach that no treaty obligation may contradict the provisions of the

Constitution.

In the Philippines, the Constitution defines the overall configuration

of how Philippine citizenship should be granted and acquired. Treaties such

as the ICCPR and UNCRC should be complied with, in so far as they touch

on citizenship, within the terms of the Constitution’ s Article on Citizenship.

In the context of the present case, compliance with our treaty

obligations to recognize the right of foundlings to acquire a nationality must

be undertaken under the terms of, and must not contradict, the citizenship

provisions of our Constitution.

The 1935 Constitution defined who the citizens of the Philippines then

were and the means of acquiring Philippine citizenship at the time the

respondent was found (and born). This constitutional definition must

necessarily govern the respondent’ s case.

Article IV of the 1935 Constitution generally follows the jus

sanguinis rule: Philippine citizenship is determined by blood, i.e., by the

citizenship of one’ s parents. The Constitution itself provides the instances

when jus sanguinis is not followed: inhabitants who had been granted

Philippine citizenship before the adoption of the Constitution; those born of

foreign parents who were holding public office at the time of its adoption;

and those who choose to be naturalized as Philippine citizens in accordance

with law.

As earlier explained, this enumeration is exclusive. It neither

provided nor allowed for the citizenship of foundlings except through

naturalization. Since the obligation under the treaties can be complied with

by facilitating a child’ s right to acquire a nationality, the presence of

125

See: M. Dellinger. “ Something is Rotten in the State of Denmark: The Deprivation of Democratic

Rights by Nation States Not Recognizing Dual Citizenship” 20 Journal of Transnational Law &

Policy 41, 61 (2010-2011).


naturalization laws that allow persons to acquire Philippine citizenship

already constitutes compliance.

The respondent argued against naturalization as a mode of compliance

on the view that this mode requires a person to be 18 years old before he or

she can apply for a Philippine citizenship. The sufficiency of this mode,

however, is not a concern that the Tribunal can address given that the

country already has in place measures that the treaties require – our

naturalization laws.

As already mentioned, the ICCPR and the UNCRC allow the States a

significant measure of flexibility in complying with their obligations. How

the Philippines will comply within the range of the flexibility the treaties

allow is a policy question that is fully and wholly within the competence of

Congress to address.

To recall an earlier discussion and apply this to the respondent’ s

argument, the country has adopted a dualist approach in conducting its

international affairs. In the domestic plane where no foreign element is

involved, we cannot interpret and implement a treaty provision in a manner

that contradicts the Constitution; a treaty obligation that contravenes the

Constitution is null and void.

For the same reason, it is legally incorrect for the respondent to argue

that the ICCPR, as a curative treaty, should be given retroactive application.

A null and void treaty provision can never, over time, be accorded

constitutional validity, except when the Constitution itself subsequently so

provides.

The rule in the domestic plane is, of course, separate and different

from our rule in the international plane where treaty obligations prevail; if

the country fails to comply with its treaty obligations because they contradict

our national laws, there could be repercussions in our dealings with other

States. This consequence springs from the rule that our domestic laws cannot

be used to evade compliance with treaties in the international plane.

Repercussions in the international plane, however, do not make an

unconstitutional treaty constitutional and valid. These repercussions also

cannot serve as an excuse to enforce a treaty provision that is

constitutionally void in the domestic plane.

Aside from compliance through our naturalization laws,126

it should

be noted in considering the respondent’ s arguments that under the 1935

Constitution, even children of Filipina mothers do not become Philippine

citizens immediately from birth. They follow the citizenship of the father

126

Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law (1939), and

Republic Act No. 9139, otherwise known as the Administrative Naturalization Law of 2000.


(consistent with the 1935 jus sanguinis rule) but may acquire Philippine

citizenship only upon reaching 18 years of age.

If we were to recognize the immediate grant of Philippine citizenship

to foundlings (who under the 1935 Constitution and the Philippines’

compliance with the treaties, would have to wait for their naturalization at

age 18 before they can acquire Philippine citizenship), then we necessarily

have to grant the same privilege to children born of Filipina mothers; we

cannot recognize immediate Philippine citizenship to those whose fathers

and mothers are unknown and yet deny the same treatment to those whose

mothers are Filipinas. Separately from the strong elements of discrimination

and unfairness, the latter approach would have contravened the clear text of

the 1935 Constitution. This is thus an interpretation that I can neither make

nor endorse.

III.C.3. The right to a nationality under the UDHR

does not require its signatories to automatically grant

citizenship to foundlings in its respective territories.

Neither does the Philippines’ participation as signatory to the

UDHR127

obligate it to automatically grant Philippine citizenship to

foundlings in its territory.

At the outset, allow me to point out that the UDHR is not a treaty that

directly creates legally binding obligations for its signatories.128

It is an

international document recognizing inalienable human rights, which

eventually led to the creation of several legally binding treaties, such as the

ICCPR and the International Covenant on Economic, Social and Cultural

Rights (ICESCR).129

Thus, the Philippines is not legally obligated to comply

with the provisions of the UDHR per se. It signed the UDHR because it

recognizes the rights and values enumerated in the UDHR; this recognition

led it to sign both the ICCPR and the ICESCR.130

Indeed, international scholars have been increasingly using the

provisions in the UDHR to argue that the rights provided in the document

have reached the status of customary law. Assuming, however, that we were

to accord the right to nationality provided in the UDHR the status of a treaty

obligation or a generally accepted principle of international law, it still does

not require the Philippine government to automatically grant Philippine

citizenship to foundlings in its territory.

127

Available from http://www.un.org/en/universal-declaration-human-rights/index.html 128

See: Separate Opinion of CJ Puno in Republic v. Sandiganbayan, supra Note 104 at 577. 129

See: J. von Bernstorff. “ The Changing Fortunes of the Universal Declaration of Human Rights:

Genesis and Symbolic Dimensions of the Turn to Rights in International Law” 19(5) European

Journal of International Law 903, 913-914 (2008). 130

See: Secretary of National Defense v. Manalo, 589 Phil. 1, 50-51 (2008) and Separate Opinion of

CJ Puno in Republic v. Sandiganbayan, supra Note 104 at 577.

http://h


Article 15 of the UDHR provides:

Article 15.

(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the

right to change his nationality.

Thus, the language of the UDHR itself recognizes the right of

everyone to a nationality, without imposing on its signatory states how it

would recognize this right. In the same manner that the ICCPR and the

UNCRC cannot be implemented in the Philippines without contravening the

constitutional provisions on acquiring citizenship, there exists, too, in the

Philippine domestic plane, a limitation on the right to nationality under the

UDHR: it cannot be recognized and enforced in the Philippines outside the

requirements of the Constitution. In the respondent’ s case, the governing

law that determines her citizenship is the 1935 Constitution, which as

discussed elsewhere in this Opinion, cannot be interpreted to grant

foundlings the status of natural-born Philippine citizenship.

III.C.4. The presumption that the parents of

foundlings are citizens of the country where they are

found is inconsistent with the terms of the 1935

Constitution.

The respondent argued that the generally accepted principles of

international law at the time of the respondent’ s birth presume that the

parents of a foundling are citizens of the territory where they are found.

Since the respondent was found in Jaro, Iloilo, it can be presumed that her

parents are Philippine citizens and, thus, she can also be presumed to be

Philippine citizens from birth.

As earlier discussed, a presumption is an established inference from

facts that are proven by evidence.131

The undisputed fact in the present case

is that the respondent was found in a church in Jaro, Iloilo; because of her

age at that time, she may conceivably have been born in the area so that Jaro

was her birthplace.

This line of thought, if it is to lead to the respondent’ s presumption,

signifies a presumption based on jus soli or place of birth because this is

the inference that is nearest the established fact of location of birth. Jus

sanguinis (blood relationship) cannot be the resulting presumption as there is

absolutely no established fact leading to the inference that the respondent’ s

biological parents are Philippine citizens.

131

Metropolitan Bank Corporation v. Tobias, supra Note 63 at 188-189.


Jus soli, of course, is a theory on which citizenship may be based and

is a principle that has been pointedly rejected in the country, at the same

time that jus sanguinis has been accepted. From this perspective, the

respondent’ s advocated presumption runs counter to the 1935 Constitution.

The same result obtains in a line of reasoning that starts from the

consideration that a principle of international law, even if it is widely

observed, cannot form part of the law of the land if it contravenes the

Constitution.

The respondent’ s desired presumption works at the same level and

can be compared with existing presumptions in determining the parentage of

children and their citizenship, which are based on the Civil Code as

interpreted by jurisprudence.132

These are the presumptions formulated and

applied in our citizenship laws, particularly when the parentage of a child is

doubtful or disputed.

For instance, a child born during his or her parent’ s marriage is

presumed to be the child of both parents.133

Thus, the child follows the

citizenship of his or her father. A child born out of wedlock, on the other

hand, can only be presumed to have been born of his or her mother, and thus

follows the citizenship of his or her mother until he or she proves paternal

filiations. These Civil Code presumptions are fully in accord with the

constitutional citizenship rules.

A presumption that a child with no known parents will be considered

to have Filipino parents, on the other hand, runs counter to the most basic

rules on citizenship under the 1935 Constitution.

Other than through naturalization or through outright constitutional

grant, the 1935 Constitution requires that the identity of the father or the

mother be known for a person to acquire Filipino citizenship. This is a

consequence of the clear and categorical jus sanguinis rule that the 1935

Constitution established for the country. Under these 1935 terms, should a

child’ s father be Philippine citizen, then he or she acquires Philippine

citizenship. On the other hand, should his or her father be a foreigner but the

mother is a Philippine citizen, the constitutional rule is to give the child the

right to elect Philippine citizenship when he or she reaches 18 years.

Without the identity of either or both parents being known in the case

of foundlings, no determination of the foundling’ s citizenship can be made

under jus sanguinis. Specifically, whose citizenship shall the foundling

follow: the citizenship of the father, or the option to elect the citizenship of

the mother? Applying the respondent’ s desired presumption would

obviously erase the distinction that the 1935 Constitution placed in acquiring

132

CIVIL CODE, Title VIII, Chapter 1. 133

Id., Article 255.


Philippine citizenship, and only strengthens the lack of intent (aside from a

lack of textual provision) to grant Philippine citizenship to foundlings.

This inherent irreconcilability of the respondent’ s desired

presumption with the 1935 Constitution renders futile any discussion of

whether this desired presumption has reached the status of a generally

accepted principle of international law applicable in the Philippines. We

cannot (and should not) adopt a presumption that contradicts the

fundamental law of the land, regardless of the status of observance it has

reached in the international plane.

I recognize of course that in the future, Congress may, by law, adopt

the respondent’ s desired presumption under the 1987 Constitution. A

presumption of Filipino parentage necessarily means a presumption of jus

sanguinis for foundlings.

But even if made, the presumption remains what it is – a presumption

that must yield to the reality of actual parentage when such parentage

becomes known unless the child presumed to be Philippine citizen by

descent undertakes a confirmatory act independent of the presumption, such

as naturalization.

Note that the 1987 Constitution does not significantly change the jus

sanguinis rule under the 1935 Constitution. Currently, a natural-born

Filipino is one whose father or mother is a Philippine citizen at the time of

the child’ s birth. As in 1935, the current 1987 Constitution speaks of

parents who are actually Philippine citizens at the time of the child’ s birth;

how the parents acquired their own Philippine citizenship is beside the point

and is not a consideration for as long as this citizenship status is there at the

time of the child’ s birth.

A presumption of Filipino parentage cannot similarly apply or

extend to the character of being natural-born, as this character of

citizenship can only be based on actual reality; when the Constitution speaks

of “ natural-born,” it cannot but refer to actual or natural, not presumed,

birth. A presumption of being natural-born is effectively a legal fiction that

the definition of the term “ natural-born” under the Constitution and

the purposes this definition serves cannot accommodate.

To sum up, the respondent’ s argument based on a foundling’ s

presumed Filipino parentage under a claimed generally accepted principle of

international law, is legally objectionable under the 1935 Constitution and

cannot be used to recognize or grant natural-born Philippine citizenship.


III.C.5. The natural-born citizenship requirement for

the position of Senator cannot be complied with on

the basis of presumption.

Beyond the above conclusion, I believe too that the strict qualification

rule that the 1987 Constitution requires under its Article VI, Section 3 (and

other provisions on other public positions that require the natural-born

qualification, among them, the position of President of the Philippines)

cannot be complied with on the basis of presumptions.

The descriptive term “ natural-born citizen” pertains to the specific

mode by which citizenship is obtained. The term first appeared in the U.S.

Constitution, in the context of prescribing the qualifications of a President,

viz:

No Person except a natural-born Citizen, or a Citizen of the United

States, at the time of the Adoption of this Constitution, shall be eligible to

the Office of President; neither shall any Person be eligible to that Office

who shall not have attained to the Age of thirty five Years, and been

fourteen Years a Resident within the United States.134

[emphasis supplied]

The U.S. Constitution does not define “ natural-born.” The recorded

deliberations of the Constitutional Convention of 1787 also do not reveal the

meaning or intent of the proviso containing the term.135

This uncertainty has

in fact led to arguments on what the term actually covers.136

From a historical perspective, some believe that the natural-born

citizen requirement originated from a July 25, 1787 letter sent by John Jay to

George Washington and to other members of the Constitutional Convention,

which stated:

Permit me to hint, whether it would be wise and seasonable to provide a

strong check to the admission of Foreigners into the administration of our

national Government; and to declare expressly that the Command in Chief

of the American army shall not be given to nor devolve on, any but a

natural-born Citizen.137

The U.S. Supreme Court, in the case of United States v. Wong Kim

Ark,138

while not directly addressing the import of the term as a requirement

for holding the Office of the President, traced the meaning of natural-born

citizenship in the context of the English common law on which the colonial

legal system was grounded.139

The ruling states:

134

U.S. Constitution, Article II, Section 1(5). 135

J. Hein, “ Born in the U.S.A., But Not Natural-born: How Congressional Territorial Policy Bars

Native-Born Puerto Ricans from the Presidency,” 11 U. Pa. J. Const. L. 423, 431 (January 2009). 136

Id. at 428. 137

Ibid. 138

169 US 649 (1898). 139

U.S. v. Wong Kim Ark, supra 138 at 654.


The fundamental principle of the common law with regard to English

nationality was birth within the allegiance, also called "ligealty,"

"obedience," "faith" or "power," of the King. The principle embraced all

persons born within the King's allegiance and subject to his protection.

Such allegiance and protection were mutual -- as expressed in the maxim,

protectio trahit subjectionem, et subjectio protectionem -- and were not

restricted to natural-born subjects and naturalized subjects, or to those who

had taken an oath of allegiance; but were predicable of aliens in amity, so

long as they were within the kingdom. Children, born in England, of such

aliens, were therefore natural-born subjects. But the children, born within

the realm, of foreign ambassadors, or the children of alien enemies, born

during and within their hostile occupation of part of the King's dominions,

were not natural-born subjects, because not born within the allegiance, the

obedience, or the power, or, as would be said at this day, within the

jurisdiction of the King.140

This concept of citizenship is consistent with the common law jus soli

principle adopted by the British Monarchy and, subsequently, by the U.S.141

The U.S. Supreme Court in Wong Kim Ark delved into the English

common law to determine the citizenship status of a man born in California

to citizens of China. In 1894, Wong Kim Ark left the U.S. for a visit to

China, returning in 1895 only to be refused entry on the basis that he was not

a citizen of the U.S.142

The U.S. Supreme Court concluded that Wong Kim Ark was a U.S.

citizen, explaining that “ the fundamental principle of the common law with

regard to English nationality is birth within the allegiance.”143

This

principle meant that anyone born within the British dominions was deemed a

natural-born British subject, regardless of parentage.144

Following this

principle, anyone born within the U.S. was deemed a natural-born US

citizen. This is the jus soli principle.

Joseph Story, in his Commentaries on the Constitution of the U.S.,145

explained the rationale for excluding foreigners from the Office of the

President in this manner:

[T]he general propriety of the exclusion of foreigners, in common cases,

will scarcely be doubted by any sound statesman. It cuts off all chances

for ambitious foreigners, who might otherwise be intriguing for the office;

and interposes a barrier against those corrupt interferences of foreign

140

Id. at 655. 141

J. Hein, supra Note 135 at 431. 142

U.S. v. Wong Kim Ark, supra Note 138 at 651. 143

Id. at 655. 144

The U.S. Supreme Court recognized two exceptions that existed for this rule. First, any child born

to an alien enemy father engaged in hostile occupation of British territory was not a natural-born

British subject. Second, any child born to an alien father who was an ambassador or diplomat of a

foreign state was also excluded. See: C. Lohman. “ Presidential Eligibility: the Meaning of the

Natural-Born Citizen Clause” 36 Gonzaga Law Review 349, 360 (2000-2001). 145

Volume II (1858).


governments in executive elections, which have inflicted the most serious

evils upon the elective monarchies in Europe.146

But the adoption by the U.S. of the jus soli principle still yielded

exceptions as the natural-born citizen clause includes foreign-born children

of American citizens when such children are born outside of the U.S. as a

result of parental employment by the U.S. government.147

In a statute passed

by the First Congress of the U.S. (where twenty framers of the U.S.

Constitution were members) natural-born was defined to include all foreign-

born children of American citizen parents.148

Thus, regardless whether the natural-born citizen clause is effective

under jus soli only or under a combined jus soli and jus sanguinis

application, the basis for the description of one class of citizens as natural-

born remains the same: a natural-born is expected to have inherent

allegiance, obedience and loyalty to the state or sovereign which grants him

such status in exchange for the protection the state or sovereign provides.149

The basic dichotomy underlying citizenship acquisition, based on the

rulings of the U.S. Supreme Court, is that there are only two modes of

acquiring citizenship: by birth and by naturalization.150

This means that if

one is not a U.S. citizen by birth (i.e., by being born within the U.S.), one

can only become a U.S. citizen through naturalization.

The U.S. Immigration and Nationality Act of 1952 defines

naturalization as “ the conferring of nationality of a state upon a person

after birth, by any means whatsoever.”151

Naturalization may thus be

effected through the voluntary act of a person to undergo naturalization

proceedings or through the positive act of the state to grant citizenship by

law.152

146

Id. at 353-354. 147

C. Lohman, supra Note 144 at 352. 148

Id. at 369. 149

Wong Kim Ark describes allegiance as “ nothing more than the tie or duty of obedience of a

subject to the sovereign under whose protection he is; and allegiance by birth is that which

arises from being born within the dominions and under the protection of a particular

sovereign. Two things usually concur to create citizenship: First, birth locally within the

dominions of the sovereign; and, secondly, birth within the protection and obedience, or, in other

words, within the allegiance of the sovereign. That is, the party must be born within a place where

the sovereign is at the time in full possession and exercise of his power, and the party must also at

his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign,

as such, de facto, ” [emphases supplied], supra Note 138 at 461. 150

J. Hein, supra Note 135 at 433, citing Schneider v. Rusk, 377 U.S. 163, 165 (1964) (describing

two paths to citizenship: the native born path and the naturalized citizen path). "The Fourteenth

Amendment of the Constitution, in the declaration that "all persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are citizens of the United States and of the

state wherein they reside,' contemplates two sources of citizenship, and only two: birth and

naturalization," U.S. v. Wong Kim Ark, supra Note 138 at 702. 151

Section 101(a) (23), at US Citizenship and Immigration Services, available from

http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/act.html 152

Id. For example, Puerto Ricans are US citizens by statute and not because they are born in Puerto

Rico, a US territory, see J. Hein, supra Note 135 at 426.

http://h


Philippine jurisprudence had occasion to consider this view in

Bengzon III v. HRET,153

where the Court held that there are two ways of

acquiring citizenship in the Philippines: (1) by birth, and (2) by

naturalization. These modes of acquiring citizenship correspond to the two

kinds of citizens: the natural-born citizen and the naturalized citizen. A

person, who at the time of his birth is a citizen of a particular country, is a

natural-born citizen thereof.154

The 1987 Philippine Constitution itself maintains this concept through

its definition of a natural-born citizen: a citizen of the Philippines from birth

without having to perform any act to acquire or perfect her Philippine

citizenship.155

Thus, one who performs an affirmative act to acquire or

perfect her Philippine citizenship is not a natural-born but a naturalized

Filipino.

Justice (now Ombudsman) Conchita Carpio-Morales in her dissent in

Tecson v. Comelec156

described two essential features of natural-born

citizenship: it (1) is established at birth, and (2) is involuntary in character –

that is, a natural-born citizen has no choice in his being a Filipino.157

Tecson likewise traced the concept of citizenship from its ancient

Greece origin to its modern meaning, viz.:

Citizenship [in ancient Greece] was seen to deal with rights and

entitlements, on the one hand, and with concomitant obligations, on the

other. 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.158

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.159

Its meaning

expanded during the 19th century to include political citizenship, which

encompassed the right to participate in the exercise of political power.160

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, a concept related to the modern welfare state as it developed

in Western Europe.161

How the concept will further develop remains to be

153

Supra Note 1. 154

409 Phil. 633 (2001). 155

CONSTITUTION, Article IV, Section 2. 156

468 Phil. 421(2004). 157

Except those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship

upon reaching the age of majority, who are deemed under the Constitution to be natural-born

citizens. See: Constitution, Article IV, Sections 1(3) and 2. Tecson v. Comelec, supra Note 156 at

724 (2004). 158

Id. at 463. 159

Id. at 463, citing B.V. Steenbergen (ed.), The Conditions of Citizenship (1994) at Introduction. 160

Ibid. 161

Id.


seen but its future and characterization may well be influenced by the

rapidly shrinking global village.162

Until these developments come, we have to live with a citizenship that

is personal in character and which signifies a more or less permanent

membership in a political community. It denotes possession within that

particular political community of full civil and political rights subject to

special limitations. Reciprocally, it imposes the duty of allegiance on the

political community. The core of citizenship is the capacity to enjoy

political rights, that is, the right to participate in government principally

through the right to vote, the right to hold public office, and the right to

petition the government for redress of grievances.163

Based on the rationale for the conferment of natural-born status to a

citizen (i.e., that a natural-born citizen inherently owes or harbors allegiance

to the state), the State grants privileges to the natural-born that are not

available to naturalized citizens. Thus, the Constitution reserves certain

elective and appointive positions in the Government only to natural-born

Filipinos.164

As early as 1935, the framers of the Constitution considered the

natural-born citizenship requirement to hold these positions to be a reflection

of their nationalistic spirit.165

The recognition of enhanced political privileges in the 1935

Constitution continues to the present 1987 Constitution and remains based

on the loyalty and obedience to the State that is inherent in the natural-born

citizen. This does not necessarily mean that a naturalized citizen owes less

allegiance to the state; it only means that the state gives a premium to the

allegiance of the natural-born because such allegiance is deemed

embedded in his or her person from birth. In contrast, a naturalized citizen

must prove through an oath that he or she owes allegiance to his or her

adopted state (among other stringent requirements for naturalization).

Otherwise stated, plain citizenship is the possession by members of a

political community, whether natural-born or naturalized, of specified civil

and political rights and duties. The state grants more of these civil and

political rights (as well as duties) to the natural-born citizen because of the

162

Id. 163

Go v. Republic, G.R. No. 202809, July 2, 2014, 729 SCRA 138. 164

Under the 1987 Constitution, only natural-born Filipinos can run as President, Vice President,

Senator and Member of the House of Representatives. Further, only natural-born Filipinos may be

appointed Justices of the Supreme Court, Commissioners of the Civil Service Commission,

Commission on Elections, Commission on Audit, and Commission on Human Rights and as

Ombudsman and his Deputies. See: CONSTITUTION, Article VII, Sections 2 and 3; Article VI,

Sections 3 and 6; Art. VIII, Section 7; Article IX (B) Section 1; Article IX (C), Section 1,

Paragraph 1; Article IX (D) Section 1, Paragraph 1; Article XI, Section 8; Art. XIII Section 17,

paragraph 2. 165

It was felt that, by virtue of the key positions of the President and the Vice-President in the

Philippine Government, every precaution should be taken to insure the fact the persons elected,

instead of being or developing to be mere instruments of foreign governments or foreign

groups, would be loyal to the country and to its people. See: J. Aruego. The Philippine

Constitution: Origins, Making, Meaning and Application, Vol. IV (1971) at 400-401.


recognition that, by reason of birth, he or she has stronger ties to the state

than the naturalized citizen.

Based on these historical and policy reasons and on the tenor of the

wording of the Constitution, a natural-born citizenship based solely on a

presumption is out of line. The middle ground of a natural-born citizenship

based on presumption does not exist: on the one end is “ natural-born

citizenship” that refers to the involuntary acquisition of citizenship by

reason of birth; citizenship by presumption lies at the other end as it is

citizenship by inference and is thus a form of citizenship by naturalization.

III. D. SUCCEEDING DEVELOPMENTS AS BASIS

FOR CLAIM OF PHILIPPINE CITIZENSHIP.

III.D.1. The respondent’ s subsequent adoption by

Filipino citizens, Fernando Poe, Jr. and Susan Roces,

did not confer Philippine citizenship on her.

The respondent’ s subsequent adoption by Philippine citizens

Fernando Poe, Jr. and Susan Roces did not confer Philippine citizenship on

her. Adoption is not among the modes of acquiring citizenship. Adoption

creates a civil tie between the adopter and the adoptee, but does not confer

upon the latter the political privilege of citizenship.166

The prevailing statutory law on adoption relevant to the respondent’ s

case is the Civil Code. The effects of adoption under its Article 341167

generally refer to the rights between the adopter and the adoptee. This

provision is supplemented by Section 5, Rule 99 of the 1964 Rules of Court,

which declares that the adopted child is

to all legal intents and purposes, the child of the petitioner or petitioners,

and that its surname is changed to that of the petitioner or petitioners. The

adopted person or child shall thereupon become the legal heir of his

parents by adoption…

The view may be taken that an adopted child of his or her Filipino

father acquires Philippine citizenship pursuant to Article 341(1) of the Civil

Code in relation with Article IV, Section 1(3) of the 1935 Constitution.

Since Article IV, Section 1(3) of the 1935 Constitution does not distinguish,

the provision can be extended to cover birth and adoptive Filipino fathers,

166

Tecson v. Comelec, supra Note 156 at 481, citing Ching Leng v. Galang, G.R. No. L-11931,

October 1958; Therkelsen v. Republic, 120 Phil.1196 (1964). 167

Article 341. The adoption shall:

(1) Give to the adopted person the same rights and duties as if he were a legitimate child

of the adopter;

(2) Dissolve the authority vested in the parents by nature;

(3) Make the adopted person a legal heir of the adopter;

(4) Entitle the adopted person to use the adopter's surname.


and the adopted child – who becomes the legitimate child of the Filipino –

has the right to be considered as a Philippine citizen.168

The principle behind our laws on citizenship, however, rejects this

view. Philippine citizenship is acquired primarily through blood

relationship pursuant to the jus sanguinis principle. We have consistently

adopted the jus sanguinis principle,169

and exceptions to this have been

carefully limited by the Constitution and by relevant laws.170

As is apparent

from the discussions above, the jus sanguinis principle cannot be broadened

so as to cover familial relations created through adoption.

The critical point to appreciate is that adoption creates only civil

rights and duties between the adoptive parents and the adopted child.171

It

only establishes a relationship between the adopter and the adopted,

and not between the State and the adopted. Thus, without any law

providing adoption as a means of acquiring citizenship, the adoption of a

child does not automatically vest in him the political rights and privileges of

his adoptive parents.172

As an aside, the question of the legality of the respondent’ s adoption

(in light of the petitioner’ s claim that the adoption was illegal) is not

material to the present petition and does not need to be discussed. This side

statement, however, does not in any way recognize the legality and

regularity of the documents submitted to support the petition for adoption in

so far as they claim that the respondent is a natural-born child of Fernando

Poe, Jr. and Susan Roces.

III.D.2. Government documents declaring or

recognizing the respondent’ s status as a Philippine

citizen carries no weight as evidence of her citizenship.

As the respondent did not acquire Philippine citizenship through the

means enumerated under the 1935 Constitution, her passport and birth

certificate (which both indicate that she is a Filipino) cannot be given weight

as evidence of her citizenship.

168

See E. Abaya. “ A Critical Study on the Effect of Adoption on Citizenship Status in the

Philippines” 23 Philippine Law Journal 443, 447-448 (1942). 169

See: Spanish Civil Code, Article 17; Philippine Bill of 1902, Section 4; 1935 Constitution, Article

IV, Section 1; 1973 Constitution, Article III, Section 1; and, 1987 Constitution, Article IV, Section

1. 170

There are two exceptions under the 1935 Constitution: first, are those who are citizens of the

Philippines at the time of the adoption of the Constitution (Article IV, Section 1[1]), and second,

are those who are born in the Philippine Islands of foreign parents who, before the adoption of

[the] constitution, had been elected in public office (Article IV, Section 1[2]), see: E. Abaya, supra

Note 168 at 448. 171

See Ching Leng v. Galang, supra Note 166; Therkelsen v. Republic, supra Note 166 at 1196. 172

Ibid.


On its face, the amended Certificate of Live Birth that the respondent

presented173

had been issued because her adoptive mother (Susan Roces)

who served as the informant, declared that the respondent is a Philippine

citizen. This supportive claim, however, cannot be true given the

respondent’ s then existing and (now admitted) status as a foundling.

Based on the same reasoning, the BI’ s grant of the respondent’ s

“ Petition for Reacquisition of Philippine Citizenship” cannot be given any

evidentiary weight as it was based on misrepresentations that the BI, for

some reason, negligently failed to consider.

In her RA 9225 petition, the respondent misrepresented that her

parents are Fernando Poe, Jr. and Susan Roces, and that she is a

Philippine citizen – both of which are unwarranted statements.174

Section 4(d) of the Implementing Rules Governing Philippine

Citizenship under RA 9225 (BI Memorandum Circular No. AFF-05-002)

states that the applicant must indicate the name and citizenship of parents at

the time of the applicant’ s birth. The respondent indicated Fernando Poe,

Jr. and Susan Roces as her parents at the time she was born. This

representation is incorrect, as they are her adoptive parents, not her birth

parents.

The BI evaluation officer should have noticed that the respondent is

an adopted child and should have red-flagged this critical information

considering that adoption does not confer Philippine citizenship.

While the SET has no power to invalidate the grant of dual citizenship

through the BI under RA 9225, nothing legally stops the SET from

recognizing the patent irregularities in her application, and at least for

purposes of the present case, the consequences of these irregularities. The

mandatory character of the constitutional rule on citizenship demands

nothing less.

III.E. THE RESPONDENT’ S COMPLIANCE WITH

THE REQUIREMENTS OF RA 9225 DOES NOT VEST

IN HER THE STATUS OF A NATURAL-BORN

PHILIPPINE CITIZEN

RA 9225 is a statute aimed at allowing former natural-born citizens

who had lost their citizenship when they became naturalized citizens of

another country, to regain their Philippine citizenship.175

The law is

173

See: NSO Certificate of Live Birth, Registry No. 4175, Exhibit “ O” for the petitioner, Exhibit

“ 3” for the respondent. 174

See: Petition for Retention and/or Reacquisition of Philippine Citizenship under RA 9225, Exhibit

“ C” for the petitioner and Exhibit “ 7” for the respondent. 175

RA 9225, Section 3 states:


uniquely available only to former natural-born citizens, i.e., to those who,

at birth, were Philippine citizens because their parents were Philippine

citizens.

RA 9225 is not the medium for the acquisition of Philippine

citizenship by those who were never Philippine citizens before. Nor is it

available to naturalized Philippine citizens who lost their naturalized

citizenship status because they acquired another citizenship after their

naturalization as Philippine citizens.

Since the respondent was never a Philippine citizen (much less a

natural-born Philippine citizen) based on constitutional terms and intent,

under treaty obligations or even by presumption, she had nothing to

reacquire when she applied and undertook to comply with the requirements

of RA 9225.

III.E.1. The respondent cannot reacquire the status of

a natural-born Philippine citizen under RA 9225

I go back once more to the concept of natural-born citizenship, this

time solely through the prism of the Philippine Constitution, as the concept

is critical in understanding who can avail of RA 9225 and in leading us to

the kind of citizenship that this law grants.

The concept of natural-born citizenship was first introduced in the

Philippines through the 1935 Constitution, which required that certain

government posts be reserved to natural-born Philippine citizens. The

Constitution did not provide a specific definition of who is “ natural-born,”

but the 1934 Constitutional Convention, during their deliberations, used the

term “ natural-born” to refer to citizenship acquired by birth or descent

from the paternal line176

to concretize the rule of jus sanguinis that they

adopted under the 1935 Constitution.177

The 1973178

and 1987179

Constitutions did away with the distinction

between Philippine citizens born to Filipino fathers and Philippine citizens

who elect to follow the citizenship of their Filipina mothers. From the time

these Constitutions took effect (i.e., from January 17, 1973), persons born to

Filipino fathers or mothers are automatically and unconditionally Philippine

citizens. Thus, Section 1(2), Article IV of the 1987 Constitution states that

“ Any provision of law to the contrary notwithstanding, natural-born citizenship by

reason of their naturalization as citizens of a foreign country are hereby deemed to have

re-acquired Philippine citizenship upon taking the following oath of allegiance to the

Republic: x x x Natural-born citizens of the Philippines who, after the effectivity of this

Act, become citizens of a foreign country shall retain their Philippine citizenship upon

taking the aforesaid oath.”

176

See also: 1934 Constitutional Convention, Vol. No. VI, Journal No. 96, November 26, 1934. 177

J. Aruego, supra Note 165 at 234. 178

1973 CONSTITUTION, Article III, Section 1. 179

CONSTITUTION, Article IV, Section 1.


citizens of the Philippines are “ those whose fathers or mothers are citizens

of the Philippines.”

This change affected the concept of natural-born citizenship that the

1987 Constitution continued to impose as an eligibility requirement for

several public offices. Because of the removal of the distinction between

persons born to Filipino fathers and to Filipino mothers (and foreigner

fathers), the understanding of a natural-born citizen changed from having

been acquired by birth (i.e., by descent from a Filipino father) in 1935, to

being acquired from birth (by express definition in the 1973 and 1987

Constitutions which, in contrast with the 1935 rule, accept that even a child

of an alien father may be born already a Filipino).

Specifically, both the 1973 and 1987 Constitutions provided a

definition of who a natural-born Filipino is, as follows:

A natural-born citizen is one who is a citizen of the Philippines from birth

without having to perform any act to acquire or perfect his Philippine

citizenship.180

The change in concept of “ natural-born” is obviously a radical shift

as it expanded the coverage of the original concept by now including

Filipinos who acquired their Philippine citizenship solely through their

Filipina mothers. This change is prospective and, by the express terms of

the 1973 and 1987 Constitution, became effective only on January 17,

1973, the date the 1973 Constitution was ratified.181

Aside from changing the concept of acquiring citizenship by birth to

citizenship from birth, the 1973 and 1987 definitions also effectively added

another qualification: that the Philippine citizen who acquired his or her

citizenship from birth must have acquired it without having to perform any

act to acquire or perfect his or her Philippine citizenship.182

Note at this point that the phrase “ from birth” would have been

sufficient to include children born of Filipina mothers (and foreign fathers)

to the definition of a natural-born citizen. “ Without having to perform any

act to acquire or perfect their Philippine citizenship” would thus be a

clause that could be devoid of meaning unless it is read as an additional

requirement over and above having been born already a Philippine citizen.

In other words, the clause “ without having to perform…” cannot be

meaningless; otherwise, it would not have been used. This reading is the

necessary consequence if the definition is to be read as a whole,183

with

180

Id., Section 2; 1973 CONSTITUTION, Article III, Section 4. 181

Javellana v. Executive Secretary, 151-A Phil. 35 (1973). 182

Ibid. 183

Following the whole-text canon of interpretation. See: A. Scalia and B. Garner, supra Note 88 at

167-169. See also: JMM Promotions and Management Inc. v. NLRC, G.R. No. 109835,


every part given effect without duplication in meaning that would leave the

“ without having to perform” clause with no consequence.184

To give real meaning to the requirement “ without having to perform

any act to acquire or perfect their Philippine citizenship,” in accordance

with its role and purpose in the Constitution, the clause must necessarily

pertain to the added requirement of maintaining Philippine citizenship

(subsequently referred here as the “ maintenance portion” ). This portion

requires that a Philippine citizen, after having acquired citizenship from

birth, must not subsequently lose or impair his or her citizenship in order to

continue enjoying natural-born status and the added political privileges this

status entails.

In plainer language and in the context of this case, a person born

already a Philippine citizen, must continue to hold on to his or her Philippine

citizenship as originally and naturally acquired, to be able to hold the public

offices reserved solely for natural-born Philippine citizens.

Another necessary consequence that proceeds from the concept of a

citizenship that attaches from birth and of a maintenance portion in the

constitutional definition is that once citizenship is lost by whatever means,

the attendant character or quality of this citizenship is likewise lost.

Renunciation of Philippine citizenship thus covers not only the citizenship

but also the character of being “ natural-born” that goes with it.

Note in this regard that once a natural-born Philippine citizen

renounces his Philippine citizenship, he or she effectively becomes a

foreigner in the Philippines with no political right to participate in

Philippine politics and governance.

To re-acquire Philippine citizenship, that person, now a foreigner,

must undergo the process laid down by the law. That this process under RA

9225 is simpler than the process laid down for foreigners who had not been

born Philippine citizens, does not change the crucial fact that former natural-

born Philippine citizens have to comply with the requirements of RA 9225

to become Philippine citizens once again.

Thus, the character of the citizenship that the former natural-born

Philippine citizen acquires through RA 9225 is different from the

character of citizenship he or she had been born with. He or she now

November 22, 1993, 228 SCRA 129, 134, which held: “ it is a principle of legal hermeneutics that

in interpreting a statute (or a set of rules as in this case), care should be taken that every part

thereof be given effect, on the theory that it was enacted as an integrated measure and not as a

hodge-podge of conflicting provisions. Ut res magis valeat quam pereat. x x x The rule is that a

construction that would render a provision inoperative should be avoided; instead, apparently

inconsistent provisions should be reconciled whenever possible as parts of a coordinated and

harmonious whole.” 184

Following the surplusage canon of interpretation, see: A. Scalia and B. Garner, supra Note 88 at

174 -179. See also: JMM Promotions and Management Inc. v. NLRC, supra Note 183 at 134.


belongs to the category of Philippine citizens who were naturalized in

accordance with law.

In other words, the process of reacquisition of Philippine citizenship

under RA 9225 is actually a specie of naturalization that allows a former

natural-born Philippine citizens to be a Philippine citizens once again, albeit

a naturalized one this time.

This textual interpretation is in line with the views of the Chair of the

Citizenship Committee when the members of the Constitutional Commission

discussed the definition of natural-born citizenship. Fr. Joaquin Bernas, the

Chair of the Committee that drafted the 1987 Constitution’ s Article on

Citizenship, opined that natural-born Philippine citizens who had renounced

their citizenship to be naturalized abroad cannot re-acquire their natural-born

status should they re-acquire Philippine citizenship. The deliberations went

as follows:

MR. REGALADO: In the discussion we had the last time, I understand

that your Committee was liberalizing Section 4 of Article III which states

that a natural-born citizen is one who is a citizen of the Philippines from

birth without having to perform any act to acquire or perfect his Philippine

citizenship. There was an amendment to this section which is under

consideration to the effect that a child born of mixed parentage and who

elects Philippine citizenship upon reaching the age of majority would also

be considered a natural-born child.

FR. BERNAS: Yes.

MR. REGALADO: That is quite important because under our

Constitution, there are many public offices that can be held only by

natural-born citizens.

FR. BERNAS: Yes.

MR. REGALADO: Let us draw some parallelism with some situations

and see if there is a common denominator. Let us say that a Filipino male,

natural-born Filipino citizen, happened to lose his citizenship while abroad

by naturalization. After a few years, he came back to the Philippines and,

through the process of repatriation by simply taking his oath of allegiance

to the Philippine Republic, he reacquired his Philippine citizenship. Would

the Committee consider that within the context of the liberalized

amendment adopted by the Committee, he be considered a natural-born

citizen which he actually was at the time of birth?

FR. BERNAS: The Committee did not consider that. My own personal

thinking on this is that the status of being a natural-born citizen is like a

balloon ‒ once it is pricked, it is gone forever.

MR. REGALADO: With respect to a child who became a Filipino citizen

by election, which the Committee is now planning to consider a natural-

born citizen, he will be so the moment he opts for Philippine citizenship.


Did the Committee take into account the fact that at the time of birth, all

he had was just an inchoate right to choose Philippine citizenship, and yet,

by subsequently choosing Philippine citizenship, it would appear that his

choice retroacted to the date of his birth so much so that under the

Gentleman's proposed amendment, he would be a natural-born citizen?

FR. BERNAS: But the difference between him and the natural-born

citizen who lost his status is that the natural-born who lost his status, lost it

voluntarily; whereas, this individual in the situation contemplated in

Section 1, paragraph 3 never had the chance to choose.185

Note that respondent Grace Poe’ s act of acquiring U.S. citizenship

had been a conscious, voluntary decision on her part. After marrying a U.S.

citizen, she chose to undergo the U.S. naturalization process to acquire US

citizenship. This naturalization process required her to renounce her

allegiance to the Philippine Republic and her Philippine citizenship. This

is clear from the Oath of Allegiance she took to become a U.S. citizen, as

follows:

I hereby declare, on oath, that I absolutely and entirely renounce and

abjure all allegiance and fidelity to any foreign prince, potentate,

state, or sovereignty, of whom or which I have heretofore been a

subject or citizen; that I will support and defend the Constitution and

laws of the United States of America against all enemies, foreign and

domestic; that I will bear true faith and allegiance to the same; that I will

bear arms on behalf of the United States when required by the law; that I

will perform noncombatant service in the Armed Forces of the United

States when required by the law; that I will perform work of national

importance under civilian direction when required by the law; and that I

take this obligation freely, without any mental reservation or purpose of

evasion; so help me God.186

[emphasis supplied]

Both the renunciation of Philippine citizenship and the acquisition of

a new citizenship in a foreign country through naturalization are grounds to

lose Philippine citizenship under CA 63:

Section 1. How citizenship may be lost. - A Filipino citizen may lose his

citizenship in any of the following ways and/or events:

(1) By naturalization in a foreign country;

(2) By express renunciation of citizenship;

xxx

Thus, even if we now consider the respondent to be a Philippine

citizen from birth, she lost her Philippine citizenship and her status as a

natural-born citizen when she renounced Philippine citizenship to become a

naturalized U.S. citizen. 185

I Record, Constitutional Commission 15, June 23, 1986. 186

Naturalization Oath of Allegiance to the United States of America, U.S. Citizenship and

Immigration Services, available from <http://www.uscis.gov/us-citizenship/naturalization-

test/naturalization-oath-allegiance-united-states-america>

http://h

http://h


The oaths that the respondent took to re-acquire Philippine

citizenship reflect her status as a foreigner at the time she took them. The

respondent, to comply with RA 9225, executed an oath of allegiance to the

Philippines, as provided in Section 3:

I _____________________, solemnly swear (or affirm) that I will support

and defend the Constitution of the Republic of the Philippines and obey

the laws and legal orders promulgated by the duly constituted authorities

of the Philippines; and I hereby declare that I recognize and accept the

supreme authority of the Philippines and will maintain true faith and

allegiance thereto; and that I imposed this obligation upon myself

voluntarily without mental reservation or purpose of evasion.

In addition to this oath of allegiance, the respondent also had to

execute an oath of renunciation of her U.S. citizenship to be able to be

eligible for public office. In these oaths, the respondent professed allegiance

to the Philippines, and renounced her U.S. citizenship as well. These oaths

reflect the respondent’ s status at the time she executed them: that she was a

foreigner owing allegiance to the U.S. government, with no allegiance to the

Philippines.

As the respondent was clearly a foreigner at the time she complied

with the requirements of RA 9225, her supposed reacquisition of

Philippine citizenship thus amounted to naturalization by law.

The respondent argued that Section 3 of RA 9225 restored not only

Philippine citizenship, but the status of a natural-born as well. Section 3

reads:

Section 3. Retention of Philippine Citizenship - Any provision of law to

the contrary notwithstanding, natural-born citizenship by reason of their

naturalization as citizens of a foreign country are hereby deemed to have

re-acquired Philippine citizenship upon taking the following oath of

allegiance to the Republic:

"I _____________________, solemnly swear (or affrim) that I will

support and defend the Constitution of the Republic of the

Philippines and obey the laws and legal orders promulgated by the

duly constituted authorities of the Philippines; and I hereby declare

that I recognize and accept the supreme authority of the Philippines

and will maintain true faith and allegiance thereto; and that I

imposed this obligation upon myself voluntarily without mental

reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this

Act, become citizens of a foreign country shall retain their Philippine

citizenship upon taking the aforesaid oath.

Several features of this provision are directly relevant to the present

case and should thus be noted for their bearing on the issue before us.


First, this provision does not explicitly provide that a former natural-

born Philippine citizen who re-acquires his Philippine citizenship shall also

regain his or her status as a natural-born citizen. What it simply provides is

the reacquisition of Philippine citizenship.

Undeniably, the provision uses the word “ re-acquire” for Philippine

citizens who became foreign citizens before RA 9225 took effect, while the

word “ retain” is used for Filipinos who became naturalized foreign

citizens after RA 9225. Notwithstanding the difference in usages, the effect

of reacquisition and retention under RA 9225 is the same – it enables

Filipinos who have lost their Philippine citizenship to become Philippine

citizens once more through the RA 9225 expedited process.

Admittedly, the retention of Philippine citizenship may be interpreted

to mean that Filipinos who have acquired foreign citizenship after RA 9225

took effect on September 17, 2003, are deemed never to have lost their

Philippine citizenship. This may be construed from the plain meaning of the

word “ retain,” as well as the law’ s statement of policy, which provides

that “ all Philippine citizens of another country shall be deemed not to have

lost their Philippine citizenship under the conditions of this Act.”187

This interpretation, however, leads to an absurd situation, where

Philippine citizens who have renounced their Philippine citizenship in favor

of the citizenship in another country through naturalization, are still seen in

the eyes of Philippine law as Philippine citizens. In other words, what results

is a situation where both foreign law and the individual who avails of

citizenship under it, no longer recognize the individual’ s Philippine

citizenship, but Philippine law still insists on treating him or her as a

Philippine citizen.

The condition requiring the execution of an oath of allegiance does

not cure this situation, as it does not provide when the oath should be taken.

It even worsens the level of absurdity, as it would be almost impossible to

determine whether a person who had renounced his Philippine citizenship

would actually opt to eventually “ retain it” by executing an oath of

allegiance to the Philippines.

The law abhors absurdity, and where statutes avail of more than one

interpretation, that which results into a patent absurdity shall be avoided.188

Additionally, an overly literal interpretation of a law shall be avoided under

the “ absurd results” principle, a doctrine of statutory interpretation that

disregards the literal meaning of a law when it leads to absurd results that

187

RA 9225, Section 2. 188

See: Paras v. COMELEC, G.R. No. 123169, November 4, 1996, 264 SCRA 49, 55, citing People

v. Salas, 143 SCRA 163, 167.


Congress could not have intended, and which would result into conflict with

other parts of the legal system while also making the law incoherent.189

The more reasonable construction, which would create lesser self-

contradictions and incoherence in our citizenship laws, would be to interpret

the statement “ not to have lost their Philippine citizenship” as pertaining to

the reacquisition of some of the civil and political rights accorded to

Filipinos, rather than to its literal import of not having lost their Philippine

citizenship at all. This phrase gains context when we look at the rigorous

requirements for naturalization under CA 63. Since natural-born Filipinos

who have been naturalized in another country no longer need to comply with

them to reacquire citizenship, then they are deemed not to have lost their

Philippine citizenship in this limited sense.

Additionally, neither interpretation on retaining Philippine citizenship

helps the respondent’ s cause, as she became a naturalized U.S. citizen on

October 18, 2001, two years before RA 9225 took effect.

Second, nothing in RA 9225 explicitly grants former Philippine

citizens who reacquired their Philippine citizenship, the privileges reserved

for natural-born Philippine citizens.

A glaring gap in the RA 9225 grant of Philippine citizenship is the

omission to restore the privileges available only to natural-born Philippine

citizens. If at all, political and other rights might be restored but this is

possible only through further acts of renunciation that leaves RA 9225 self-

contradictory.

Separately from the potential absurd consequence discussed above,

note that under Section 5 of RA 9225, the grant of civil and political rights is

conditional. Under its Section 2, those seeking elective public office shall

“ meet the qualifications for holding such public office as required by the

Constitution and existing laws….and make a personal and sworn

renunciation of any and all foreign citizenship.”

Note additionally that the right to vote or be elected to any public

office cannot be extended to those who are candidates for, are holding public

office, or who are in the service of the armed forces of the country where

they are naturalized citizens.

These two conditions imply that RA 9225 admits of dual citizenships

although it does not say so in its express terms. To run for public office, the

Filipino with reacquired Philippine citizenship must renounce any other

foreign citizenship he or she holds. He or she cannot run for a Philippine

public office if he or she is running for or holding a public office, or is

189

See: V. Dougherty, “ Absurdity and the Limits of Literalism: Defining the Absurd Result Principle

in Statutory Interpretation,” 44 American University Law Review 127.


serving in the armed forces of the other country where he or she is also a

citizen.

If these conditions obtain, how can the respondent seriously contend

that RA 9225 restores the status of “ natural-born” and the privileges this

status carries?

This contention effectively maintains that a Philippine citizen with

reacquired citizenship is less than a full-fledged citizen in his political rights,

yet must be considered “ natural-born.” It means, too, that the Philippine

citizen whose citizenship was reacquired under RA 9225, and who at the

same time is a citizen of a foreign country (i.e., a dual citizen), is still a

natural-born Philippine citizen but one who must perform an act to enjoy the

political right of running for or holding public office.

Respondent’ s position, it seems to me, is farthest from what the

Constitution means in defining the term “ natural-born” and in allowing

only those with this quality of citizenship to run for the highest offices in the

land. Plain common sense dictates that a law should not be read to allow

this kind of contradiction within its terms or to allow a legal absurdity.

Lastly, reading Section 3 of RA 9225 to include the restoration of the

natural-born character of the lost citizenship would render the

constitutionality of the above-quoted Section 3 in doubt. Such reading and

interpretation, as a rule, should be avoided.190

III.E.2 The Supreme Court’ s ruling in Bengzon v. HRET

In Bengzon v. HRET,191

the Court found no grave abuse of discretion

in the HRET’ s decision not to disqualify a member of Congress despite

having been previously naturalized as a U.S. citizen. By doing so, the Court

effectively affirmed that the reacquisition of Philippine citizenship includes

the reacquisition of the natural-born status.

This HRET decision, examined by the Court bearing in mind the

HRET’ s independence and sole jurisdiction over disqualifications of

members of the House of Representatives, does not (and should not) tie the

SET’ s hands to the ruling in Bengzon.

I say this in consideration of the following: (1) our own independent

and exclusive jurisdiction to determine contests involving disqualifications

of senators, (2) the relationship of the concept of stare decisis with the

hierarchy of courts, and (3) Bengzon’ s unconstitutional misapplication of

our laws on citizenship.

190

See: A. Scalia and B. Garner, supra Note 88 at 247-251. 191

Supra Note 1.


The SET, as an independent and exclusive judge of contests over the

qualifications of senators, has the capability to choose not to follow judicial

precedent when strong compelling reasons show that it should not be

followed.

As I will explain below, compelling reasons exist for the SET to

disregard the application of Bengzon in the present case. The primordial

reason is the misappreciation of the concept of repatriation in CA 63 which

in turn violates the Constitution’ s express requirement that several public

offices are limited to natural-born Filipinos.

III.E.3. The SET is an independent, constitutionally

created tribunal, with adjudicative power no different

from judicial power when acting within the scope of its

jurisdiction

The SET, as with all constitutionally created electoral tribunals, is an

independent organ vested with an exclusive but limited adjudicative power

that could be labeled as “ judicial power” if the power were to be exercised

within the judicial branch of government.

Specifically, the Tribunal functions as the sole, independent

constitutional body tasked to resolve all contests relating to the election,

returns, and qualifications of members of the Senate. It draws its mandate

from Section 17, Article VI of the 1987 Constitution, which provides:

The Senate and the House of Representatives shall each have an Electoral

Tribunal which shall be the sole judge of all contests relating to the

election, returns, and qualifications of their respective Members. Each

Electoral Tribunal shall be composed of nine Members, three of whom

shall be Justices of the Supreme Court to be designated by the Chief

Justice, and the remaining six shall be Members of the Senate or the

House of Representatives, as the case may be, who shall be chosen on the

basis of proportional representation from the political parties and the

parties or organizations registered under the party-list system represented

therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

[emphasis supplied]

Based on this provision, the Court said in Co v. Electoral Tribunal of

the House of Representatives (HRET)192

that the HRET is an independent,

constitutional body vested with judicial power. The same can be said of the

SET, subject to the careful qualification made above based on the

constitutional separation of powers principle, as both Tribunals share the

same constitutional provision for its creation.

As a government body created under the Constitution, the SET has the

exclusive and, within its limited jurisdiction, plenary authority in

192

276 Phil. 758, 775-778 (1991).


undertaking its duty to resolve all contests relating to the election, returns,

and qualifications of senators. In the absence of any constitutional limitation,

the SET’ s power within its sphere of authority is full, clear, and

complete.193

Thus, in the same way that jurisprudence has recognized the past

electoral commissions’ power to promulgate its own rules of procedure for

resolving contests assigned to it,194

the SET possesses (and exercises) the

power to promulgate its own rules regarding the election, returns, and

qualifications of senators. The Court itself confirmed that this is a necessary

and implied power attendant to its supremacy in exercising its constitutional

mandate.195

Additionally, no less than the Supreme Court has recognized the

electoral tribunal’ s independence from any branch of government.196

It is

not part of the judiciary; thus, its decisions cannot be appealed to and

corrected by the Court for errors of law or errors of fact.197

Of course, like any government agency or instrumentality, the

SET’ s actions are not totally immune from judicial review. The Supreme

Court can affirm or nullify the SET’ s acts through the expanded

jurisdiction that Article VIII, Section 1 of the 1987 Constitution defines.

The question when the Supreme Court so acts is not whether the SET

committed errors of law or errors of fact, but whether it committed acts of

grave abuse of discretion or acted outside its jurisdiction. As one case puts

it, the judgment rendered by the commission is beyond judicial interference,

except, "upon a clear showing of such arbitrary and improvident use of the

power as will constitute a denial of due process of law."198

But what kind of power does the SET actually exercise when it

resolves contests involving the election, returns, and qualifications of

senators? The text of Article VI, Section 17 of the 1987 Constitution as well

as the history behind electoral tribunals for specific sets of public officials,

shows that they were intended to exercise adjudicative power no different in

character from judicial power, albeit in a limited degree, that the courts

exercise within the judicial branch of government.

First, the text of Article VI, Section 17 of the 1987 Constitution is

similar to the text of Article VI, Section 4 of the 1935 Constitution,199

which

193

Id. 194

See Macalintal v. Presidential Electoral Tribunal, 650 Phil 326, 352-353 (2010), citing Defensor-

Santiago v. Guingona, Jr., supra Note 41 at 294 (1998); Robles v. HRET, 260 Phil. 831, 836-837

(1990). 195

Id. 196

See Suanes v. Chief Accountant of the Senate, 81 Phil 818, 829-833 (1948). See also Concurring

Opinion of J. Perfecto at 851. 197

See Robles v. HRET, supra Note 194 at 836-837. 198

Supra Note 196 at 829-833. 199

1935 CONSTITUTION, Article VI, Section 4. There shall be an Electoral Commission composed of

three Justices of the Supreme Court designated by the Chief Justice, and of six Members chosen

by the National Assembly, three of whom shall be nominated by the party having the largest


provides for an electoral commission for the members of the National

Assembly. Both refer to these tribunals as the sole judge over contests

regarding the election, returns, and qualifications of the particular public

officials.

The wording is clear – the tribunals are meant to judge, but only

when there are contests pertaining to a specific set of issues. This is not

unlike the definition of judicial power found in Article VIII, Section 1 of the

1987 Constitution, which describes judicial power to include “ the duty … to

settle actual cases or controversies involving rights which are legally

demandable and enforceable.”

Second, even the discussions of members of the 1934 Constitutional

Convention support the characterization of the electoral tribunal’ s duty to

judge contests involving the election, returns, and qualifications of members

of the National Assembly as judicial power:

Mr. VENTURA. Mr. President, we have a doubt here as to the scope of

the meaning of the first four lines, paragraph 6, page 11 of the draft,

reading: "The elections, returns and qualifications of the Members of the

National Assembly and all cases contesting the election of any of its

Members shall be judged by an Electoral Commission, . . ." I should like

to ask from the gentleman from Capiz whether the election and

qualification of the member whose elections is not contested shall also be

judged by the Electoral Commission.

Mr. ROXAS. If there is no question about the election of the members,

there is nothing to be judged; that is why the word "judge" is used to

indicate a controversy. If there is no question about the election of a

member, there is nothing to be submitted to the Electoral Commission and

there is nothing to be determined. 200

Thus, even at its inception, the electoral tribunal has been envisioned

to step in, and determine the election, returns, and qualifications of members

of the National Assembly only when a “ contest” is involved; in the same

manner that judicial power is exercised only when there is an actual case or

controversy involving legally enforceable rights.

I emphasize that electoral tribunals exercise adjudicative power no

different in character from judicial power in resolving the contests under

their jurisdiction, to highlight that the controversies brought to us are

decided based on grounds provided in the law and the facts established in a

case.

number of votes, and three by the party having the second largest number of votes therein. The

senior Justice in the Commission shall be its Chairman. The Electoral Commission shall be the

sole judge of all contests relating to the election, returns, and qualifications of the Members of the

National Assembly. 200

1934 Constitutional Convention, Volume No. VI, Journal No. 100, December 4, 1934.


The present case brought to us the legal questions of (1) whether a

foundling in the Philippines is a natural-born Filipino, and (2) whether a

natural-born Filipino who lost his citizenship can reacquire the status of a

natural-born upon repatriation.

In resolving these questions, I have looked at the relevant laws and

jurisprudence interpreting them, and in so doing, examined cases with a

similar set of facts and whether the doctrines in these cases are applicable to

the present controversy. Cases decided by the Supreme Court, after all, form

part of the law of the land as judicial precedents through the principle of

stare decisis.201

Through this principle, doctrines decided in previous cases serve as

judicial precedents to subsequent cases with a similar set of facts. The

judiciary (both the Supreme Court and lower courts), in deciding the cases

before them, adhere to this principle. The Supreme Court, however, can

choose not to follow precedent, or to abandon it all together, for strong

compelling reasons.

The Supreme Court’ s capability to decide whether to follow judicial

precedent lies in its position as the highest court of the land.

As it was originally conceptualized in England, the doctrine of stare

decisis is connected to the hierarchy of courts: lower courts are bound by the

decisions of higher courts; thus, the higher the court, the wider is its

decisions’ authority to bind courts below it. The highest court’ s decision is

the most authoritative, as it binds all courts below it.202

The Philippines, however, has limited the binding effect of judicial

precedent to the decisions on the merits of the Supreme Court, as the highest

court of the land.203

The decisions of lower courts do not bind the courts

below it, but their arguments and interpretations carry persuasive value,

especially when the Supreme Court has yet to decide on the particular issue

the lower courts touched upon.

Because the SET is supreme in its independent and exclusive power to

resolve the issue of qualification or disqualification of senators, it is

considered the highest authority in this given function. The position the SET

occupies in the exercise of its limited adjudicatory power allows it the same

option that the Supreme Court has in matters where the Court has the highest

authority, i.e., it can choose not to apply a judicial precedent should it find a

strong compelling reason not to do so, subject only to the Supreme

Court’ s exercise of its power of judicial review as discussed above.

201

CIVIL CODE, Article 8. 202

See Ting v. Velez-Ting, G.R. No. 166562, March 31, 2009, 582 SCRA 694, 704-708, citing CJ

Puno’ s dissenting opinion in Lambino v. COMELEC, G.R. Nos. 174153 & 174299, October 25,

2006, 505 SCRA 160, 308-311. 203

See: CJ Puno’ s dissenting opinion in Lambino v. COMELEC, id. at 312-313.


Note, however, that a SET decision does not create a binding judicial

precedent because its supreme power to adjudicate is limited to particular

issues, and because it is an independent organ that does not belong to the

judiciary. The power to create a binding judicial precedent belongs

exclusively to the Supreme Court.

To my mind, a clear legal error that contravenes the Constitution, such

as the situation that intervened in Bengzon v. HRET, is a strong compelling

reason not to apply its ruling in the present case. Thus, I urge my colleagues,

both in the SET and in the Court, to seriously reexamine the Bengzon ruling

and re-think its application to the present case.

III.E.3. The misreading of the Constitution in

Bengzon v. HRET

The Court in Bengzon held (albeit in a ruling that simply found no

grave abuse of discretion in the ruling of the HRET204

) that the repatriation

of a former natural-born Filipino who lost his Philippine citizenship through

naturalization as a citizen of another country includes the reinstatement of

his natural-born status. According to Bengzon, the former natural-born

Filipino was repatriated and was not naturalized into Philippine citizenship.

Since there are only two kinds of Philippine citizens under the 1987

Constitution, i.e., natural-born and naturalized citizens, and Bengzon’ s

repatriation did not amount to naturalization, then necessarily, he must be a

natural-born citizen. This was clearly reasoning by the process of

elimination, an approach that requires a clear-cut and proper definition of the

proffered choices in order to be valid.

In my view, Bengzon is an incorrect ruling based on the analysis I

made above of the definition of “ natural-born citizen” under the 1987

Constitution (see: pp. 41 to 46 of this Separate Opinion). I shall not repeat

these reasons here as they have already been extensively explained above.

The Court majority, too, misappreciated the nature and

characterization of repatriation and naturalization viewed from the

prism of the Constitution. This view, by the way, is the material and

important view to consider in looking at a constitutional matter such as

citizenship.

From this constitutional perspective, repatriation is a form of

naturalization provided by law, in the same way that the reacquisition of

Philippine citizenship expedites the naturalization of foreigners who used to

be natural-born Philippine citizens. 204

This signifies that the HRET ruling could have been legally incorrect but was left untouched by

the Court because the error did not amount to a grave abuse of discretion, see Bengzon v. HRET,

supra Note 1 at 651-652, and Romy’ s Freight Service v. Castro, 523 Phil. 540, 546 (2006).


Naturalization involves the grant of citizenship to a foreigner, upon

his or her compliance with the requirements for acquiring citizenship.

In the Philippines, the acquisition of Philippine citizenship by a

foreigner is governed by CA 63,205

which speaks of three modes that are

essentially based on the grounds for the loss of citizenship:

(1) By naturalization: Provided, That the applicant possess none of the

disqualification's prescribed in section two of Act Numbered Twenty-

nine hundred and twenty-seven,

(2) By repatriation of deserters of the Army, Navy or Air Corp: Provided,

That a woman who lost her citizenship by reason of her marriage to an

alien may be repatriated in accordance with the provisions of this Act

after the termination of the marital status; and

(3) By direct act of the National Assembly. [emphasis supplied]

Republic Act No. 2630206

(RA 2630) subsequently added another

category of reacquisition of lost Filipino citizenship, as follows:

Section 1. Any person who had lost his Philippine citizenship by

rendering service to, or accepting commission in, the Armed Forces of the

United States, or after separation from the Armed Forces of the United

States, acquired United States citizenship, may reacquire Philippine

citizenship by taking an oath of allegiance to the Republic of the

Philippines and registering the same with the Local Civil Registry in the

place where he resides or last resided in the Philippines. The said oath of

allegiance shall contain a renunciation of any other citizenship. [emphases

supplied]

Contrary to the Court’ s conclusion in Bengzon, repatriation is a

form of expedited naturalization provided by CA 63 and RA 2630 for

former Philippine citizens who have lost their citizenship under particular

circumstances. Through these laws, Philippine citizens who deserted the

Philippine armed forces; those who served in the U.S. armed forces and

were subsequently naturalized as U.S. citizens; and women who lost their

citizenship though marriage to a foreigner and who thereby lost their

Philippine citizenship, may reacquire their Philippine citizenship upon the

execution of an oath of allegiance to the Philippines.

Note that CA 63 itself recognizes these people as foreigners, because

Section 1 of CA 63 divests them of Philippine citizenship. Section 1

provides:

Section 1. How citizenship may be lost. – A Filipino citizen may lose his

citizenship in any of the following ways and/or events:

205

Section 2. 206

Otherwise known as “ An act providing for reacquisition of Philippine citizenship by persons who

lost such citizenship by rendering service to, or accepting commission in, the Armed Forces of the

United States, promulgated on June 18, 1960.


xxx

(4) By rendering services to, or accepting commission in, the armed

forces of a foreign country: Provided, That the rendering of service to, or

the acceptance of such commission in, the armed forces of a foreign

country, and the taking of an oath of allegiance incident thereto, with the

consent of the Republic of the Philippines, shall not divest a Filipino of his

Philippine citizenship if either of the following circumstances is present:

(a) The Republic of the Philippines has a defensive and/or

offensive pact of alliance with the said foreign country; or

(b) The said foreign country maintains armed forces on Philippine

territory with the consent of the Republic of the Philippines:

Provided, That the Filipino citizen concerned, at the time of

rendering said service, or acceptance of said commission, and

taking the oath of allegiance incident thereto, states that he does so

only in connection with his service to said foreign country: And

provided, finally, That any Filipino citizen who is rendering

service to, or is commissioned in, the armed forces of a foreign

country under any of the circumstances mentioned in paragraph (a)

or (b), shall not be permitted to participate nor vote in any election

of the Republic of the Philippines during the period of his service

to, or commission in, the armed forces of said foreign country.

Upon his discharge from the service of the said foreign country, he

shall be automatically entitled to the full enjoyment of his civil and

political rights as a Filipino citizen;

xxx

(6) By having been declared by competent authority, a deserter of the

Philippine armed forces in time of war, unless subsequently, a plenary

pardon or amnesty has been granted; and

(7) In the case of a woman, upon her marriage to a foreigner if, by virtue

of the laws in force in her husband's country, she acquires his nationality.

[emphases supplied]

Even RA 2630 recognizes that those who avail of its repatriation

process are NOT Philippine citizens, viz:

Section 1. Any person who had lost his Philippine citizenship by

rendering service to, or accepting commission in, the Armed Forces of the

United States, or after separation from the Armed Forces of the United

States, acquired United States citizenship, may reacquire Philippine

citizenship by taking an oath of allegiance to the Republic of the

Philippines and registering the same with the Local Civil Registry in the

place where he resides or last resided in the Philippines. The said oath of

allegiance shall contain a renunciation of any other citizenship. [emphases

supplied]

Thus, in the eyes of Philippine law, these people lost their Philippine

citizenship because of the overt acts they performed, and, hence, are no

longer Philippine citizens. The execution of an oath of allegiance is the

procedure through which they can regain their Philippine citizenship. That

they did not have to go through the tedious process of naturalization


provided under CA 63 is immaterial in determining their status as

naturalized Filipinos.

Under these legal realities, the RA 2630 process (like the RA 9225

process discussed at pages 53 to 59 of this Opinion) is simply a citizenship-

acquisition mode that addresses a specific class of foreigners and non-

Filipinos who are required to show their links to the Filipino nation before

they may acquire Philippine citizenship. Presumably, former Philippine

citizens who wish to become Philippine citizens once again already possess

these ties, and thus had been provided with a more expeditious process of

citizenship acquisition. In the same manner, a foreigner who acquires

Philippine citizenship through a direct act of Congress would have

presumably been examined by Congress for ties to the Filipino nation.

From this perspective, repatriation and citizenship by direct act of

Congress are naturalization processes that differ only from the naturalization

of complete foreigners through the intricacy of the process involved. The

first, repatriation, applies to foreigners who had been former Philippine

citizens, and merely require them to execute an oath of allegiance to the

Republic. The second, on the other hand, applies to foreigners who have

secured a legislative grant of citizenship.

These two categories must fall under “ naturalization as provided

by law” provision of the 1935, 1973 and 1987 Constitutions as they

cannot fall under any other category in the Constitution’ s listing of who

are citizens of the Philippines.

Based on these considerations, the Court’ s misplaced treatment of

repatriation in Bengzon amounts to an interpretation contrary to the clear

words and intent of the Constitution, as it allows naturalized Philippine

citizens to enjoy privileges reserved solely for natural-born Philippine

citizens.

Blindly applying Bengzon to the present case would amount to

violating or condoning the violation of the constitutional provision limiting

specified public offices to natural-born Philippine citizens. We would

thereby allow Filipinos who have voluntarily relinquished their Philippine

citizenship for political privileges in another country, to hold positions

limited to natural-born Philippine citizens, despite the reality that

undergoing a naturalization process to reacquire Philippine citizenship

contravenes the maintenance portion required to be considered natural-born

as this term is explicitly defined by the Constitution.

The possibility of committing and perpetuating an unconstitutionality,

to my mind, is the strongest and most compelling reason not to follow

Bengzon as precedent in the present case.


For all the above reasons, solely for purposes of the present case, and

subject to the Supreme Court’ s exercise of its expanded power of judicial

review, I opt not to consider the application of the Bengzon ruling to the

present case.

WHEREFORE, premises considered, I vote to GRANT the

petition for quo warranto against the respondent MARY GRACE POE

LLAMANZARES who should accordingly be declared ineligible for the

position of Senator that she now holds.

ARTURO D. BRION Associate Justice