BY Resolution issued on December 1, 2015, the Second Division of the Philippine Commission on Elections (Comelec) ruled that Mary Grace Natividad Sonora Poe-Llamanzares is not a resident of the Philippines for at least ten (10) years immediately preceding the May 9, 2016 elections, as required by Article VII, Section 2 of the Philippines 1987 Constitution to be elected President.

Thus, it denied due course and canceled her Certificate of Candidacy (COC) for President due to false material representations therein.  It found that Grace Poe deliberately attempted to mislead or misinform the electorate or hide a fact from them when she supplied the answer “10 years and 11 months” to the question on her period of residence in her COC for President.

This is so because she had stated in her COC for Senator in 2012 that she had been a resident for “6 years and 6 months,”  so that her residency period is only 9 years and 6 months by the May 5, 2016 elections.

Moreover, according to Comelec’s Second Division (Commissioners Al Parreno, Arthur Lim, and Sheriff Abas), Grace Poe became a resident only in July 2006, when she applied for dual citizenship, and short of the 10-year residency mandate.

Legal principles of prior admission against interest and estoppel are invoked against Grace Poe, who had reportedly admitted error in her 2012 COC for Senator, based on estimates when her husband resigned from his job in the United States, as stated in her Affidavit submitted to the Senate Electoral Tribunal, that dismissed the disqualification complaint against her by a 5-4 vote.

Issue on residency is decided by a preponderance of the evidence:

The issue on Grace Poe’s residence is a factual issue to be decided by a preponderance of the evidence on an appeal to the Comelec en banc, consisting of its Chairman and six (6) Commissioners of both its First and Second Divisions, and ultimately to the Philippine Supreme Court.

A distinction between domicile and residence is in order. Article 50 of the Philippine Civil Code defines “domicile” as the place of habitual residence of natural persons. Domicile denotes a fixed permanent residence to which an absent person has the intention of returning (animus revertendi). It is broader than residence which merely denotes a place of abode, whether   permanent or temporary.

If the 10-year residence requirement is deemed “domicile,” it is favorable to Grace Poe, who can argue that she may have a residence in California, but her domicile is in the Philippines.

But can she claim domicile in the Philippines before her application for dual citizenship reportedly in July 2006? Yes, because a U.S. citizen can establish domicile abroad. U.S. citizenship, unlike lawful permanent residence status, does not require domicile or residence in the United States.

Factual evidence on intent of returning to the Philippines as domicile should be considered. On the other hand, if the 10-year residence requirement is deemed as the place of abode, did Grace Poe have a residence in the Philippines when she returned in the first half of 2005? Did she have the intention of returning to that residence to establish domicile?

The case of Imelda Romualdez-Marcos vs. COMELEC, 64 SCAD 358, 248 SCRA 300 (1995), would be instructive on this issue because it considered domicile, not residence, as dispositive of election issues on residence, citing the 1928 case of Nuval vs. Guray, 52 Phil. 645, among others.

Issue of natural-born citizen:

Article IV, Section 2 of the Philippine 1987 Constitution states that: “Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippines citizenship.”

This definition of natural-born is not found in the Constitution of the United States, whose Article 11, Section 1 requires the following qualifications to be elected President: natural born citizen, at least 35 years of age and 14 years a resident of the United States.  Indeed, the United States is a jus soli (right of the soil) country, not a jus sanguinis (right of the blood) as the Philippines.

There seems to be no dispute that Grace Poe was born in the Philippines of unknown parents, later on adopted by Susan Roces and Fernando Poe, Jr., and that as a Philippine citizen, she obtained U.S. citizenship by naturalization, and that she re-acquired Philippine citizenship upon taking the oath of allegiance to the Republic of the Philippines,   under Section 3 of Republic Act 9225 (approved on August 29, 2003).

If there is still an issue on her Philippine citizenship, under Article IV, Section 1(2) of the Philippine 1987 Constitution, she acquired Philippine citizenship, if her father or mother is a citizen of the Philippines.

But her parents are unknown, and so is she a Philippine citizen? But why was she allowed to reacquire Philippine citizenship in the first place?  Under aforesaid Section 3 of Republic Act 9225, “natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the oath of allegiance to the Republic.”

Once a natural-born, always a natural-born, under aforesaid Republic Act 9225. So, the Philippine Government has admitted that Grace Poe is a natural-born Philippine citizen by granting her dual U.S and Philippine citizenships.  It is estopped from questioning her natural-born status.

Issue on foundling: conventions against statelessness:

The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws states in Article 14 thereof that: “A child whose parents are both unknown shall have the nationality of the country of birth…. A foundling is, until the contrary is proved, presumed to have been born on the territory of the state in which it was found.”

And Article 15 thereof states that: “where the nationality of a state is not acquired automatically by reason of birth on its territory, a child born on the territory, of that state of parents having no nationality, or of unknown nationality, may obtain the nationality of the said state.

Moreover, the 1961 Convention on the Reduction of Statelessness, in its Article 1 states that: “A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall   be granted: (a) a birth by opposition of law, or (b) upon on application… by or on behalf of the person concerned, in the manner prescribed by national law.”

Since the Philippines is not a signatory to these two conventions and is not bound as a non-contracting state, and has no foundling statute, is Grace Poe a “stateless” person? No, because the Philippines and the United States have considered her as citizens of both countries.  Moreover, it can be argued that the rule against statelessness in the aforesaid Conventions, the Convention on the Rights of the Child, the Universal Declaration of Human Rights, the ASEAN Human Rights Declaration, and foundling statutes of other states has become customary international law.  An ancestry DNA test may resolve any lingering issue on her country’s citizenship.

The framers of the Philippine 1987 Constitution in Article IV, Section 1 (2) and (3) took pains in avoiding statelessness by declaring as citizens those whose mothers are citizens of the Philippines, a carry-over from the 1973 Constitution, and those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority.

Conclusion:

Grace Poe is a natural-born Philippine citizen whose domicile in the Philippines complies with the 10-year residency requirement of the Philippine Constitution and customary international law.  Any legal doubt should be resolved in favor of the supremacy of the Filipino electorate to decide their President. Vox populi, vox Dei.

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(The Author, Roman P. Mosqueda, has written numerous legal articles on constitutional law and international law, and published two law books on Marriage and Its Dissolution and Products Liability: A Competitive Study,  as his doctoral dissertation at The University of Michigan Law School. Visit his  website at www.mosquedalaw.com to read his  other articles, or contact him at (213) 252-9481 in his Los Angeles law offices.)

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