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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

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
3

CONSTITUTION, Article VI, Section 17.


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.
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.
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 Taada 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.

Separate Dissenting Opinion

SET Case No. 001-15

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
See: Aquino v. Commission on Elections, G.R. No. 120265, September 18, 1995, 248 SCRA 400,
429.
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.
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.

Separate Dissenting Opinion

SET Case No. 001-15

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
11
12

13

14

See: Exhibit R for the petitioner and Exhibit 4 for the respondent.
See: Exhibit B1 for the petitioner and Exhibit 5 for the respondent.
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.
On December 18, 2001. See: Exhibit KK for the petitioner and Exhibit 20 for the
respondent.
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.

Separate Dissenting Opinion

SET Case No. 001-15

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 Certificates 20 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

16
17

18
19

20

21

22

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.
See: Exhibit C for the petitioner and Exhibit 7 for the respondent.
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.
See: Exhibits F, I and L for the petitioner and Exhibits 9, 9-1 and 9-2 for the respondent.
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.
See: Exhibits N, G, J, and M for the petitioner and Exhibits 11, 11-1, 11-2, and 11-3 for
the respondent.
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.
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

Separate Dissenting Opinion

SET Case No. 001-15

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 Questionnaire29 stating that she had taken her oath as
MTRCB Chairperson on October 21, 2010 with the intent, among others, of
relinquishing her American citizenship.

23

24
25

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.
See: Philippine Passport No. EC0588861, Exhibit B-6 for the petitioner and Exhibit 5-5 for
the respondent.
See: Exhibit U for the petitioner and Exhibit 13 for the respondent
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:

26

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.
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:

27

28

29

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.
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.
The Oath was taken before Vice Consul Somer E. Bessire-Briers. See: Exhibit Y for the
petitioner and Exhibit 17 for the respondent.
See: Exhibit Z to Z-4 for the petitioner and Exhibit 18 for the respondent.

Separate Dissenting Opinion

SET Case No. 001-15

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 ThirtySeven 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 thirtyfive 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

31
32

33
34

Issued by U.S. Vice Consul Jason Gallian. See: Exhibit AA for the petitioner and Exhibit
19 for the respondent.
See: Exhibit MM for the petitioner and Exhibit 21 for the respondent.
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.
See: SET Resolution No. 15-07 dated September 17, 2015, p. 3.
2013 Rules of the SET, Rule 18.

Separate Dissenting Opinion

SET Case No. 001-15

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
foundling s parents are citizens of the territory
foundling is found inherently contradicts the
underlying principles of the 1935 Constitution.
presumption cannot be recognized as part of the
land applicable to her case;

that a
where the
terms and
Thus, the
law of the

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 naturalborn citizen.

Separate Dissenting Opinion

SET Case No. 001-15

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

36

37
38
39

See: Act No. 190 or the Code of Civil Procedure, Section 519 (1901); 1964 and 1997 RULES OF
COURT, Rule 66, Section 1.
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).
RULES OF COURT, Rule 66, Section 1.
Id., Section 2.
Id., Sections 1, 2 and 3.

Separate Dissenting Opinion

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SET Case No. 001-15

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

41

42
43

44
45

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.
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).
See: CONSTITUTION, Article VI, Section 17.
See Angara v. Electoral Commission, 63 Phil. 139 (1936); Rasul v. Comelec, 371 Phil. 760, 766
(1999).
2013 RULES OF THE SET, Rules 15 and 18.
Id., Rule 18.

Separate Dissenting Opinion

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SET Case No. 001-15

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

47
48

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.
Casin v. Caluag, 80 Phil 758, 760-761 (1948).
RULES OF COURT, Rule 133, Section 1. See: Magdiwang Realty Corporation v. Manila Banking
Corporation, 694 Phil. 392, 407 (2012).

Separate Dissenting Opinion

12

SET Case No. 001-15

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
50
51
52
53
54

55
56
57
58

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


2013 RULES OF THE SET, Rule 73.
Supra Note 47.
Asian Construction and Development Corporation v. Tulabut, 496 Phil. 777-778, 786 (2005).
RULES OF COURT, Rule 131, Section 1.
See: Agile Maritime Resources, Inc. v. Siador, G.R. No. 191034, October 1, 2014, 737 SCRA 360361, 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).
Bautista v. Hon. Sarmiento, 223 Phil 181, 185-186 (1985).
Jison v. Court of Appeals, 350 Phil. 138, 173 (1998).
Bank of the Phil. Islands v. Spouses Royeca, 581 Phil. 188, 194 (2008).
Ibid. See also: Bank of Commerce v. Radio Philippines Network, Inc. G.R. No. 195615, April 21,
2014.

Separate Dissenting Opinion

13

SET Case No. 001-15

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
60
61
62
63
64

65

Supra Note 55 at 186.


Supra Note 54.
Supra Note 56 at 173.
RULES OF COURT, Rule 133, Section 1.
Metropolitan Bank Corporation v. Tobias, 680 Phil.173, 188-189 (2012).
See Gupilan-Aguilar v. Office of the Ombudsman, G.R. No. 197307, February 26, 2014, 717
SCRA 503, 533.
Fernandez v. House of Representatives Electoral Tribunal, 623 Phil. 628, 656 (2009).

Separate Dissenting Opinion

14

SET Case No. 001-15

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 naturalborn 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 naturalborn 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
67

40 Phil. 943 (1920).


Id. at 947.

Separate Dissenting Opinion

15

SET Case No. 001-15

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
69
70
71

72
73

People v. Delos Reyes, 672 Phil. 77, 121 (2011), citing People v. Sy Chua, 444 Phil. 757 (2003)
See: People v. Capuno, 655 Phil. 226, 244 (2011).
Approved on November 26, 1930.
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)
Id., Rule 29(a).
See: OCRG Form No. 101, revised January 1993, available from
http://www.nsor12.ph/pdf_files/CIVIL%20REGISTRATION%20LAWS/AO11993%20(IRR%20on%20Civil%20Registration%20Laws%20&%20Procedures).pdf

Separate Dissenting Opinion

16

SET Case No. 001-15

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

75
76
77

See: Certified True Copy of Foundling Certificate and Certificate of Live Birth, Exhibit P for
the petitioner and Exhibit 1 for the respondent.
See: Exhibit O for the petitioner and Exhibit 3 for the respondent.
See: Item No. 7 in the Certificate of Live Birth, supra Note 8.
OCRG Administrative Order No. 1, series of 1993, Rule 55 (1)(d).

Separate Dissenting Opinion

17

SET Case No. 001-15

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
79

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


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

Separate Dissenting Opinion

18

SET Case No. 001-15

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.

Separate Dissenting Opinion

19

SET Case No. 001-15

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

81
82
83

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.
Republic v. Sagun, 682 Phil 303, 315 (2012).
Id. at 314.
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.

Separate Dissenting Opinion

20

SET Case No. 001-15

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
85
86

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


Constitutional Convention, Vol. No. VI, Journal No. 96, November 26, 1934.
This is also the prevailing rule under Section 1(2), Article IV of the 1987 Constitution.

Separate Dissenting Opinion

21

SET Case No. 001-15

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
Espaol

English

SR. RAFOLS: Para una enmienda,


Seor Presidente. Propongo que
despus del inciso 2 se inserte lo
siguiente: "Los hijos naturales de un
padre extranjero y de una madre
filipina no reconocidos por aquel,"

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

xxx

EL PRESIDENTE: La Mesa desea


pedir una aclaracin del proponente de
la enmienda. Se refiere Su Seora a
hijos naturales o a toda clase de hijos
ilegtimos?

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

88
89

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.
A. Scalia and B. Garner. Reading Law: The Interpretation of Legal Texts (2012) at 93.
1934 Constitutional Convention, Vol.VI, Journal No. 96, November 26, 1934.

Separate Dissenting Opinion

SR. RAFOLS: A toda clase de hijos


ilegtimos. Tambin se incluye a los
hijos naturales de padres conocidos, y
los hijos naturales o ilegtimos de
padres desconocidos.

22

SET Case No. 001-15

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.
MONTINOLA:
Para
una
aclaracin. All se dice "de padres
desconocidos". Los Cdigos actuales
consideran como filipino, es decir, me
refiero al Cdigo espaol, que
considera como espaoles a todos los
hijos de padres desconocidos nacidos
en territorio espaol, porque la
presuncin es que el hijo de padres
desconocidos es hijo de un espaol, y
de igual manera se podr aplicar eso
en Filipinas, de que un hijo de padre
desconocido y nacido en Filipinas se SR. RAFOLS: There is a need, because we
consideraque es filipino, de modo que are declaring the conditions of those who are
no hay necesidad...
going to be Filipinos.
SR. RAFOLS: Hay necesidad, porque SR. MONTINOLA: But that is how the law
estamos relatando las condiciones de is interpreted now, and so there is no need for
los que van a ser filipinos.
an amendment.
SR. MONTINOLA: Pero esa es la SR. RAFOLS: The amendment should read
intepretacin de la ley ahora, de thus: "The natural or illegitimate children of a
manera que no hay necesidad de la foreigner father and a Filipino mother not
enmienda.
recognized by the foreigner father, or the
children of unknown parents".
SR. RAFOLS: La enmienda debe
leerse de esta manera: "Los hijos xxx
naturales o ilegtimos de un padre
extranjero y de una madre filipina, no
reconocidos por aquel, o los hijos de SR. BUSLON: Mr. President, don t you
think it would be better to leave this matter to
padres desconocidos."
the hands of the Legislature? (original in
English)
xxx

xxx
SR. BUSLON: Mr. President, don t
you think it would be better to leave
this matter to the hands of the SR. ROXAS: Mr. Chairman, my humble
opinion is that these cases are very
Legislature? (original in English)
insignificant or rare for the Constitution to
make a reference to them. The principle is
xxx
recognized by international laws that the
children or the persons born in a country of
SR. ROXAS: Seor Presidente, mi unknown parents are children of that country,
opinin humilde es que stos son and it is not necessary to include in the
casos muy insignificantes y contados, Constitution a specific stipulation on the
para que la Constitucin necesite matter.
referirse a ellos. Por las leyes

Separate Dissenting Opinion


internacionales se reconoce el
principio de que los hijos o las
personas nacidas en un pas y de
padres desconocidos son ciudadanos
de esa nacin, y no es necesario incluir
en la Constitucin una disposicin
taxativa sobre el particular.

23

SET Case No. 001-15

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.

xxx
EL PRESIDENTE: La Mesa someter
a votacin dicha enmienda. Los que
estn conformes con la misma, que
digan S. (Una minora: S). Los que
no lo estn, que digan No. (Una
mayora: No). Queda rechazada la
enmienda.

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.

Separate Dissenting Opinion

24

SET Case No. 001-15

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
91
92
93

Civil Liberties Union v. Executive Secretary, 272 Phil. 147, 169 (1991).
Id. at 337.
Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 884-885 (2003).
Ibid., citing Civil Liberties Union v. Executive Secretary, 272 Phil. 147 (1991).

Separate Dissenting Opinion

25

SET Case No. 001-15

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

95

96

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).
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
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

Separate Dissenting Opinion

26

SET Case No. 001-15

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

98

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

Separate Dissenting Opinion

27

SET Case No. 001-15

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

100

101

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.
See United Nations Treaty Collection, available from
https://treaties.un.org/pages/LONViewDetails.aspx?src=LON&id=512&chapter=30&lang=en
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://eudocitizenship.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.

Separate Dissenting Opinion

28

SET Case No. 001-15

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

103

U.S.
1940
Nationality
Act,
54
Stat.
1137,
1138,
available
from
http://library.uwb.edu/static/USimmigration/54%20stat%201137.pdf
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.

Separate Dissenting Opinion

29

SET Case No. 001-15

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

105

106

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.
M. Magallona. The Supreme Court and International Law: Problems and Approaches in
Philippine Practice 85 Philippine Law Journal 1, 2 (2010).
See: Secretary of Justice v. Hon. Lantion, 379 Phil. 165, 212-213 (2000).

Separate Dissenting Opinion

30

SET Case No. 001-15

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
108

109

110

Ibid.
Vienna Convention on the Law of Treaties, available from
https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf
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.
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:

111

112

113

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

Separate Dissenting Opinion

31

SET Case No. 001-15

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
115

116
117
118

CONSTITUTION, Article VII, Section 21.


Pharmaceutical and Health Care Association of the Philippines v. Duque III, 561 Phil. 386, 399
(2007).
See CONSTITUTION, Article II, Section 2.
Supra Note 115 at 399.
Supra Note 111 at 2-3.

Separate Dissenting Opinion

32

SET Case No. 001-15

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

120
121
122

123

Arigo v. Swift, G.R. No. 206510, September 16, 2014. See also Razon, Jr. v. Tagitis, 621 Phil. 536,
600-605 (2009).
Supra Note 119 at 601.
Statute of the ICJ, Article 38(1)(b), available from http://www.icj-cij.org/documents/?p1=4&p2=2
Pharmaceutical and Health Care Association of the Philippines v. Duque III, supra Note 115 at
399.
Ting v. Velez-Ting, 601 Phil. 676, 687 (2009).

Separate Dissenting Opinion

33

SET Case No. 001-15

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.

Separate Dissenting Opinion

34

SET Case No. 001-15

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]

Separate Dissenting Opinion

35

SET Case No. 001-15

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).

Separate Dissenting Opinion

36

SET Case No. 001-15

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.

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SET Case No. 001-15

(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
128
129

130

Available from http://www.un.org/en/universal-declaration-human-rights/index.html


See: Separate Opinion of CJ Puno in Republic v. Sandiganbayan, supra Note 104 at 577.
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).
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.

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SET Case No. 001-15

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.

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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
133

CIVIL CODE, Title VIII, Chapter 1.


Id., Article 255.

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SET Case No. 001-15

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.

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41

SET Case No. 001-15

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
137
natural-born Citizen.

The U.S. Supreme Court, in the case of United States v. Wong Kim
Ark,
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:
138

134
135

136
137
138
139

U.S. Constitution, Article II, Section 1(5).


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).
Id. at 428.
Ibid.
169 US 649 (1898).
U.S. v. Wong Kim Ark, supra 138 at 654.

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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
140
jurisdiction of the King.

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
141
142
143
144

145

Id. at 655.
J. Hein, supra Note 135 at 431.
U.S. v. Wong Kim Ark, supra Note 138 at 651.
Id. at 655.
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).
Volume II (1858).

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SET Case No. 001-15

governments in executive elections, which have inflicted the most serious


146
evils upon the elective monarchies in Europe.

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 foreignborn 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 naturalborn 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
147
148
149

150

151

152

Id. at 353-354.
C. Lohman, supra Note 144 at 352.
Id. at 369.
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.
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.
Section 101(a) (23), at US Citizenship and Immigration Services,
available from
http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/act.html
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.

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SET Case No. 001-15

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
154
155
156
157

158
159
160
161

Supra Note 1.
409 Phil. 633 (2001).
CONSTITUTION, Article IV, Section 2.
468 Phil. 421(2004).
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).
Id. at 463.
Id. at 463, citing B.V. Steenbergen (ed.), The Conditions of Citizenship (1994) at Introduction.
Ibid.
Id.

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SET Case No. 001-15

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
163
164

165

Id.
Go v. Republic, G.R. No. 202809, July 2, 2014, 729 SCRA 138.
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.
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.

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SET Case No. 001-15

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

167

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).
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.

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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

169

170

171
172

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).
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.
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.
See Ching Leng v. Galang, supra Note 166; Therkelsen v. Republic, supra Note 166 at 1196.
Ibid.

Separate Dissenting Opinion

48

SET Case No. 001-15

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

174

175

See: NSO Certificate of Live Birth, Registry No. 4175, Exhibit O for the petitioner, Exhibit
3 for the respondent.
See: Petition for Retention and/or Reacquisition of Philippine Citizenship under RA 9225, Exhibit
C for the petitioner and Exhibit 7 for the respondent.
RA 9225, Section 3 states:

Separate Dissenting Opinion

49

SET Case No. 001-15

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
177
178
179

See also: 1934 Constitutional Convention, Vol. No. VI, Journal No. 96, November 26, 1934.
J. Aruego, supra Note 165 at 234.
1973 CONSTITUTION, Article III, Section 1.
CONSTITUTION, Article IV, Section 1.

Separate Dissenting Opinion

50

SET Case No. 001-15

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
181
182
183

Id., Section 2; 1973 CONSTITUTION, Article III, Section 4.


Javellana v. Executive Secretary, 151-A Phil. 35 (1973).
Ibid.
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,

Separate Dissenting Opinion

51

SET Case No. 001-15

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 naturalborn 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

184

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.
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.

Separate Dissenting Opinion

52

SET Case No. 001-15

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 naturalborn citizen, he will be so the moment he opts for Philippine citizenship.

Separate Dissenting Opinion

53

SET Case No. 001-15

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
185
Section 1, paragraph 3 never had the chance to choose.

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
186

I Record, Constitutional Commission 15, June 23, 1986.


Naturalization Oath of Allegiance to the United States of America, U.S. Citizenship and
Immigration Services, available from <http://www.uscis.gov/us-citizenship/naturalizationtest/naturalization-oath-allegiance-united-states-america>

Separate Dissenting Opinion

54

SET Case No. 001-15

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.

Separate Dissenting Opinion

55

SET Case No. 001-15

First, this provision does not explicitly provide that a former naturalborn 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
188

RA 9225, Section 2.
See: Paras v. COMELEC, G.R. No. 123169, November 4, 1996, 264 SCRA 49, 55, citing People
v. Salas, 143 SCRA 163, 167.

Separate Dissenting Opinion

56

SET Case No. 001-15

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 selfcontradictions 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 selfcontradictory.
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.

Separate Dissenting Opinion

57

SET Case No. 001-15

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
191

See: A. Scalia and B. Garner, supra Note 88 at 247-251.


Supra Note 1.

Separate Dissenting Opinion

58

SET Case No. 001-15

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).

Separate Dissenting Opinion

59

SET Case No. 001-15

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
194

195
196

197
198
199

Id.
See Macalintal v. Presidential Electoral Tribunal, 650 Phil 326, 352-353 (2010), citing DefensorSantiago v. Guingona, Jr., supra Note 41 at 294 (1998); Robles v. HRET, 260 Phil. 831, 836-837
(1990).
Id.
See Suanes v. Chief Accountant of the Senate, 81 Phil 818, 829-833 (1948). See also Concurring
Opinion of J. Perfecto at 851.
See Robles v. HRET, supra Note 194 at 836-837.
Supra Note 196 at 829-833.
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

Separate Dissenting Opinion

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SET Case No. 001-15

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
200
there is nothing to be determined.

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.

200

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.
1934 Constitutional Convention, Volume No. VI, Journal No. 100, December 4, 1934.

Separate Dissenting Opinion

61

SET Case No. 001-15

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
202

203

CIVIL CODE, Article 8.


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.
See: CJ Puno s dissenting opinion in Lambino v. COMELEC, id. at 312-313.

Separate Dissenting Opinion

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SET Case No. 001-15

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).

Separate Dissenting Opinion

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SET Case No. 001-15

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 Twentynine 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
206

Section 2.
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.

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SET Case No. 001-15

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

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SET Case No. 001-15

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 citizenshipacquisition mode that addresses a specific class of foreigners and nonFilipinos 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.

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SET Case No. 001-15

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