Professional Documents
Culture Documents
MARY
GRACE POE LLAMANZARES, respondent.
Promulgated: _______________
--------------------------------------------------------------------------------------------
BRION, J.:
I.
INTRODUCTION
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
In its decision9 dated May 13, 1974, the MTC approved the spouses
Poes petition for adoption. It ordered, among others, that Grace Poes name
be changed to Mary Grace Natividad Sonora Poe from Mary Grace
Natividad Contreras Militar.
6 Jacot v. Dal, 592 Phil. 661, 680 (2008), citing Frivaldo v. Commission on Elections, G.R.
No. 87193, June 23, 1989, 174 SCRA 245, 255
7 See: Aquino v. Commission on Elections, G.R. No. 120265, September 18, 1995, 248
SCRA 400, 429.
8 See: Certified True Copy of Foundling Certificate and Certificate of Live Birth, Exhibit
P for the petitioner and Exhibit 1 for the respondent. Jesusa Sonora Poe (a.k.a. Susan
Roces) registered Grace Poes birth with the National Statistics Office on May 4, 2006. See: NSO
Certificate of Live Birth, Registry No. 4175, Exhibit O for the petitioner and Exhibit 3 for the
respondent.
9 Docketed as Special Proceeding No. 138 entitled In the Matter of the Adoption of the
Minor Mary Grace Natividad Contreras Militar. See: Exhibit Q-Q1 for the petitioner and
Exhibit 2 2for the respondent.
Separate Dissenting Opinion 4 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 Voters
Identification Card10 for Precinct No. 196, Greenhills, San Juan, Metro
Manila.
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 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.
10 See: Exhibit R for the petitioner and Exhibit 4 for the respondent.
11 See: Exhibit B1 for the petitioner and Exhibit 5 for the respondent.
12 See: Copies of her Philippine Passport Nos. L881511 and DD156616, Exhibits B3 and
B4 for the petitioner and Exhibits 5-1 and 5-2 for the respondent.
13 On December 18, 2001. See: Exhibit KK for the petitioner and Exhibit 20 for the
respondent.
14 For the purpose of settling her fathers 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 5 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
In its July 18, 2006 Order,19 the BI approved Grace Poes petitions for
the reacquisition of Philippine citizenship and for the derivative citizenship
of her children. The BI issued Identification Certificates 20 in Grace Poes
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
15 Between October 18, 2001 (when Grace Poe became a naturalized American citizen) and
July 18, 2006 (when the Philippine BI approved Grace Poes petition for reacquisition of
Philippine citizenship), Grace Poe returned to the Philippines on numerous occasions, often under
a Balikbayan Visa or under the Philippine Governments Balikbayan program. The following
entries/stamped dates in Grace Poes 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 Poes U.S. Passport, Exhibit KK for the petitioner and Exhibit 20 for the
respondent.
16 See: Exhibit C for the petitioner and Exhibit 7 for the respondent.
17 See: Exhibit A for the petitioner and Exhibit 8 for the respondent. Grace Poes Oath
of Allegiance reads:
I, Mary Grace Poe Llamanzares, solemnly swear that I will support and defend
the Constitution of the Republic of the Philippines and obey the laws and legal
orders promulgated by the duly constituted authorities of the Philippines; and I
hereby declare that I recognize and accept the supreme authority of the
Philippines and will maintain true faith and allegiance thereto; and that I impose
this obligation upon myself voluntarily without mental reservation or purpose of
evasion.
18 See: Exhibits F, I and L for the petitioner and Exhibits 9, 9-1 and 9-2 for the
respondent.
19 Certified True Copy of the July 18, 2006 Order in CRR No. 06-7/ 10-9474 No. AFF-06-
9133 signed by BI Associate Commissioner Roy M. Almoro on behalf of BI Commissioner Alipio
F. Fernandez, Jr. See: Exhibit E for the petitioner and Exhibit 10 for the respondent.
20 See: Exhibits N, G, J, and M for the petitioner and Exhibits 11, 11-1, 11-2, and 11-3
for the respondent.
21 See: stub of Grace Poes 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.
Separate Dissenting Opinion 6 SET Case No. 001-15
On July 12, 2011, Grace Poe executed before the Vice Consul of the
U.S. Embassy in Manila an Oath/Affirmation of Renunciation of
22 See: Exhibit B-5 for the petitioner and Exhibit 5-3 for the respondent.
Between July 18, 2006 (when when the Philippine BI approved Grace Poes 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
Philippines on these occasions either classified her as RC (resident citizen) or indicated her
Identification Certificate No. 06-10918 issued pursuant to RA 9225 in relation with Administrative
Order No. 91, series of 2004, and Memorandum Circular No. AFF-2-005 after the BI approved her
petition for reacquisition of Philippine citizenship. See: copy of her U.S. Passport, Exhibit KK
for the petitioner and Exhibit 20 for the respondent.
23 See: Philippine Passport No. EC0588861, Exhibit B-6 for the petitioner and Exhibit 5-
5 for the respondent.
24 See: Exhibit U for the petitioner and Exhibit 13 for the respondent
25 See: Exhibit V for the petitioner and Exhibit 14 for the respondent.
The Affidavit of Renunciation of Allegiance to the United States of America and Renunciation of
American Citizenship reads:
Before filing the present petition, David filed with the Comelecs Law
Department an Affidavit-Complaint32 charging Grace Poe with an election
offense.
28 The Oath was taken before Vice Consul Somer E. Bessire-Briers. See: Exhibit Y for
the petitioner and Exhibit 17 for the respondent.
29 See: Exhibit Z to Z-4 for the petitioner and Exhibit 18 for the respondent.
30 Issued by U.S. Vice Consul Jason Gallian. See: Exhibit AA for the petitioner and
Exhibit 19 for the respondent.
31 See: Exhibit MM for the petitioner and Exhibit 21 for the respondent.
32 Filed on August 17, 2015 at 10:05 a.m., or hours before David filed the petition for quo
warranto before the SET. See: Exhibit 22 for the respondent.
Separate Dissenting Opinion 8 SET Case No. 001-15
After considering these challenges and the issues they gave rise to, I
vote as follows:
III.
EXPLANATION OF MY VOTE
35 See: Act No. 190 or the Code of Civil Procedure, Section 519 (1901); 1964 and 1997
RULES OF COURT, Rule 66, Section 1.
36 Agcaoili v. Suguitan, 48 Phil. 676, 692 (1926). The writ of quo warranto originated from
a 13th century statute of King Edward I. It directed an alleged usurper of royal office a privilege to
show by what warrant he maintained his or her claim. For a history of the writ of quo warranto,
see: D. Sutherland. Quo Warranto Proceedings in the Reign of Edward I, 1278-1294 (1963).
37 RULES OF COURT, Rule 66, Section 1.
Separate Dissenting Opinion 10 SET Case No. 001-15
Section. 11. The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral Tribunal shall be composed of
nine Members, three of whom shall be Justices of the Supreme Court to be designated by
the Chief Justice, and the remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen by each House, three upon
nomination of the party having the largest number of votes and three of the party having
the second largest number of votes therein. The senior Justice in each Electoral Tribunal
shall be its Chairman.
41 See: Defensor Santiago v. Sen. Guingona, Jr., 359 Phil. 276, 294 (1998), citing Co v.
HRET, G.R. No. 92202-03, July 30, 1991, 199 SCRA 692 and Lazatin v. HRET, 250 Phil. 390
(1988).
42 See: CONSTITUTION, Article VI, Section 17.
Separate Dissenting Opinion 11 SET Case No. 001-15
Despite these differences, the purpose behind the SETs 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 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.
As part of her defense, the respondent paints the present quo warranto
proceeding as one where the petitioner carries the burden of proving the
respondents disqualification. To discharge this burden, the respondent posits
that the petitioner must establish that both of the respondents 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.
43 See Angara v. Electoral Commission, 63 Phil. 139 (1936); Rasul v. Comelec, 371 Phil.
760, 766 (1999).
44 2013 RULES OF THE SET, Rules 15 and 18.
45 Id., Rule 18.
46 The writ of quo warranto originated from a thirteenth century statute of King Edward the
Statute of Quo Warranto 1290, which grants the King the right to direct an alleged usurper of a
royal office or privilege to show by what warrant he maintained his claim. Shel Herman, The
Code of Practice of 1825: The Adaptation of Common Law Institutions, 24 Tul. Eur. & Civ. L.F.
207, 230 (2009) citing Donald W. Sutherland, Quo Warranto Proceedings in the Reign of Edward I
(1963); Helen Cam, The Quo Warranto Proceedings Under Edward I, in Liberties and
Communities of Medieval England (1963); T.F.T. Plucknett, Legislation of Edward I, at 38-50
(1949); J.H. Baker, An Introduction to English Legal History 145 (4th ed. 2002).
Notably, the Statute of the Writ of Quo Warranto 1290 was said to have been a compromise
between the King and the barons in order to settle their disputes over titles. The king had been
asking the barons to present their titles to their royal offices, in order to reassert his authority
against the growing independence of the barons, who had forced him to sign the Magna Carta. See
the California Attorney Generals 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.
Separate Dissenting Opinion 12 SET Case No. 001-15
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
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.
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.
65 Fernandez v. House of Representatives Electoral Tribunal, 623 Phil. 628, 656 (2009).
66 40 Phil. 943 (1920).
67 Id. at 947.
Separate Dissenting Opinion 15 SET Case No. 001-15
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
present evidence contradicting the petitioners 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.
68 People v. Delos Reyes, 672 Phil. 77, 121 (2011), citing People v. Sy Chua, 444 Phil. 757
(2003)
Separate Dissenting Opinion 16 SET Case No. 001-15
The implementing rules and regulations of Act No. 3753 70 or the Law
on Registry of Civil Status require a separate registry for foundlings,71 as
well as a different form for a foundlings birth certificate.72 The form for a
foundlings certificate of live birth does not contain any information
regarding the foundlings citizenship, presumably because the foundlings
parents are unknown; hence, the childs citizenship cannot be determined on
the basis of the foundlings certificate.73 Because of these legal and factual
realities, the respondents first certificate of live birth74 cannot contain any
conclusive information establishing the identity of the respondents birth
parents or her citizenship.
The implementing rules and regulations of Act No. 3753 allow the
amendment of an adopted foundlings birth certificate to reflect a
foundlings change in civil status and citizenship.77 The amendment of the
respondents 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.
(1) at the time the respondents birth certificate was amended, both
her birth parents were (and still are) unknown and hence her
citizenship could not have been traced to them;
(3) the respondents 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 respondents
citizenship was her adoptive mother, not her birth mother who was
then still unknown.
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 respondents
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.
ARTICLE IV
CITIZENSHIP
79 See: Vitarich Corporation v. Losin, G.R. No. 181560, November 15, 2010, 634 SCRA
671, 684.
Separate Dissenting Opinion 19 SET Case No. 001-15
(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 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.
Separate Dissenting Opinion 20 SET Case No. 001-15
The records show that the respondent has never formally elected
Philippine citizenship after reaching the age of majority. The respondent,
however, was issued a voters identification card on December 1986, and
hence was a registered voter since turning 18 years old. As discussed
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).
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.
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.
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
85 Constitutional Convention, Vol. No. VI, Journal No. 96, November 26, 1934.
86 This is also the prevailing rule under Section 1(2), Article IV of the 1987 Constitution.
87 Initiatives for Dialogue and Empowerment Through Alternative Legal Services, Inc. v.
Power Sector Assets and Liabilities Management Corporation, G.R. No. 192088, October 9, 2012,
682 SCRA 602, 649.
88 A. Scalia and B. Garner. Reading Law: The Interpretation of Legal Texts (2012) at 93.
Separate Dissenting Opinion 22 SET Case No. 001-15
Espaol English
SR. RAFOLS: Para una enmienda, SR: RAFOLS: For an amendment, Mr.
Seor Presidente. Propongo que President/Chairman. I propose that after the
despus del inciso 2 se inserte lo second subsection, the following be inserted:
siguiente: "Los hijos naturales de un "The natural children of a foreigner father and
padre extranjero y de una madre a Filipino mother whom (referring to the
filipina no reconocidos por aquel," children) the former does not recognize"
xxx xxx
SR. RAFOLS: A toda clase de hijos SR. RAFOLS: To all kinds of illegitimate
ilegtimos. Tambin se incluye a los children. Also included are the natural
hijos naturales de padres conocidos, y children of known parents and the natural or
los hijos naturales o ilegtimos de illegitimate children of unknown parents.
padres desconocidos.
SR. MONTINOLA: To clarify, the text says
SR. MONTINOLA: Para una "of unknown parents". The present Codes
aclaracin. All se dice "de padres consider as Filipino, that is to say, I refer to
desconocidos". Los Cdigos actuales the Spanish Code, which consider as
consideran como filipino, es decir, me Spaniards all the children of unknown parents
refiero al Cdigo espaol, que born in Spanish territory, because the
considera como espaoles a todos los presumption is that the child of unknown
hijos de padres desconocidos nacidos parents is child of a Spaniard, and, similarly,
en territorio espaol, porque la that can be applied in the Philippines, namely,
presuncin es que el hijo de padres that the child of an unkown father born in the
desconocidos es hijo de un espaol, y Philippines will be considered as Filipino,
de igual manera se podr aplicar eso such that there is no need...
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.
89 1934 Constitutional Convention, Vol.VI, Journal No. 96, November 26, 1934.
Separate Dissenting Opinion 23 SET Case No. 001-15
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 SR. BUSLON: Mr. President, dont you
reconocidos por aquel, o los hijos de 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, dont
you think it would be better to leave SR. ROXAS: Mr. Chairman, my humble
this matter to the hands of the 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
unknown parents are children of that country,
SR. ROXAS: Seor Presidente, mi
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
internacionales se reconoce el xxx
principio de que los hijos o las
personas nacidas en un pas y de THE PRESIDENT: The Table will submit the
padres desconocidos son ciudadanos amendment to voting. Those who agree with
de esa nacin, y no es necesario incluir the amendment will say Yes (A minority:
en la Constitucin una disposicin Yes). Those who do not agree will say No. (A
taxativa sobre el particular. majority: No). The amendment is rejected.
xxx
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.
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
90 Civil Liberties Union v. Executive Secretary, 272 Phil. 147, 169 (1991).
Separate Dissenting Opinion 25 SET Case No. 001-15
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.
91 Id. at 337.
92 Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 884-885 (2003).
93 Ibid., citing Civil Liberties Union v. Executive Secretary, 272 Phil. 147 (1991).
94 CONSTITUTION, Article XVIII, Section 27. See also: Separate Opinion of CJ Reynato
Puno, Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 668-669 (2000).
Separate Dissenting Opinion 26 SET Case No. 001-15
The respondent sought to prove all these through: (1) the 1935
Constitutional Commissions discussion of international law as basis for the
citizenship of foundlings during its deliberations on the Article on
95 Signed by the Philippines on 26 January 1990 ratified on 21 August 1990 and entered
into force on 2 September 1990, see United Nations Treaty Collection, available from
https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-11&chapter=4&lang=en
96 Signed by the Philippines on 19 December 1966, ratified on 23 October 1986 and entered
into force on 23 March 1976, see United Nations Treaty Collection, available from
https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg_no=iv-4&lang=en
97 UNCRC, Article 7(2), 1577 (27531-27541) UN Treaty Series 3, 47 (1990), available from
https://treaties.un.org/doc/Publication/UNTS/Volume%201577/v1577.pdf
See also ICCPR, Article 24(3), 999 (14657-14668) UN Treaty Series 171, 179 (1976), available
from https://treaties.un.org/doc/Publication/UNTS/Volume%20999/v999.pdf
Separate Dissenting Opinion 27 SET Case No. 001-15
I dismiss outright the validity of any claim made during the 1935
Constitutional Commissions deliberations on the binding effect of
international treaties and conventions on the Philippines.
statelessness and double nationality.101 The U.S. was not a signatory to the
Convention.
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 laws 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
101 The 1930 Hague Convention was signed by forty (40) countries, namely: Australia,
Belgium, Brazil, Burma, Canada, China, India, Monaco, Netherlands, Norway, Poland, Sweden,
United Kingdom, Chile, Columbia, Cuba, Czechoslovakia, Denmark, Egypt, Estonia, France, Free
City of Danzig, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Luxembourg,
Mexico, Peru, Portugal, El Salvador, Spain, Switzerland, Union of South Africa, Uruguay, and
Yugoslavia.
Of these 40 signatory-countries, only the following thirteen (13) countries have ratified the
Convention: Australia, Belgium, Brazil, Burma, Canada, China, India, Monaco, Netherlands,
Norway, Poland, Sweden, and United Kingdom. See UN Treaty Collection available from
https://treaties.un.org/pages/LONViewDetails.aspx?src=LON&id=512&chapter=30&lang=en#top
Under Article 14, Chapter IV of the Convention, [a] child whose parents are both unknown shall
have the nationality of the country of birth x x x [and] until the contrary is proved, [is] presumed
to have been born on the territory of the State in which it was found, available from http://eudo-
citizenship.eu/InternationalDB/docs/Convention%20on%20certain%20questions%20relating
%20to%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 States national or not and, assuming a national,
whether the foundling is natural-born or not, depends on what the States nationality laws provide.
102 U.S. 1940 Nationality Act, 54 Stat. 1137, 1138, available from
http://library.uwb.edu/static/USimmigration/54%20stat%201137.pdf
Separate Dissenting Opinion 29 SET Case No. 001-15
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.
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
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.
103 For the same reason, the 1961 Convention on the Reduction of Statelessness (United
Nations High Commissioner for Refugees, available from http://www.unhcr.org/3bbb286d8.html)
cannot also be claimed as a customary international law that should form part of the law. In this
light, no further discussion of this 1961 Convention appears necessary.
Separate Dissenting Opinion 30 SET Case No. 001-15
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.
104 See: Chavez v. Gonzales, 569 Phil. 155, 195 (2008). See also: Separate Opinion of J.
Puno in Republic v. Sandiganbayan, 454 Phil. 504, 577 (2003), citing P. Drost. Human Rights as
Legal Rights (1951) at 32-33.
105 M. Magallona. The Supreme Court and International Law: Problems and Approaches in
Philippine Practice 85 Philippine Law Journal 1, 2 (2010).
106 See: Secretary of Justice v. Hon. Lantion, 379 Phil. 165, 212-213 (2000).
107 Ibid.
108 Vienna Convention on the Law of Treaties, available from
https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf
109 Signed by the Philippines on May 23, 1969 and ratified on November 15, 1972. See
United Nations Treaty Collection, available from
https://treaties.un.org/pages/ViewDetailsIII.aspx?
src=TREATY&mtdsg_no=XXIII1&chapter=23&Temp=mtdsg3&lang=en.
Separate Dissenting Opinion 31 SET Case No. 001-15
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
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
In the usual course, this process passes through the courts as they
render their decisions in cases. As part of a courts 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.
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.
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.
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 States territory.
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
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 respondents case.
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
Separate Dissenting Opinion 37 SET Case No. 001-15
allow is a policy question that is fully and wholly within the competence of
Congress to address.
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.
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.
Separate Dissenting Opinion 38 SET Case No. 001-15
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
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 respondents 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.
131 Metropolitan Bank Corporation v. Tobias, supra Note 63 at 188-189.
132 CIVIL CODE, Title VIII, Chapter 1.
Separate Dissenting Opinion 40 SET Case No. 001-15
Without the identity of either or both parents being known in the case
of foundlings, no determination of the foundlings 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 respondents desired presumption would obviously
erase the distinction that the 1935 Constitution placed in acquiring
Philippine citizenship, and only strengthens the lack of intent (aside from a
lack of textual provision) to grant Philippine citizenship to foundlings.
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 childs birth. As in 1935, the current 1987 Constitution speaks of parents
who are actually Philippine citizens at the time of the childs 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 childs birth.
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.
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. Supreme Court, in the case of United States v. Wong Kim
138
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:
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.
But the adoption by the U.S. of the jus soli principle still yielded
exceptions as the natural-born citizen clause includes foreign-born children
of American citizens when such children are born outside of the U.S. as a
result of parental employment by the U.S. government.147 In a statute passed
by the First Congress of the U.S. (where twenty framers of the U.S.
Constitution were members) natural-born was defined to include all foreign-
born children of American citizen parents.148
application, the basis for the description of one class of citizens as natural-
born remains the same: a natural-born is expected to have inherent
allegiance, obedience and loyalty to the state or sovereign which grants him
such status in exchange for the protection the state or sovereign provides.149
149 Wong Kim Ark describes allegiance as nothing more than the tie or duty of obedience
of a subject to the sovereign under whose protection he is; and allegiance by birth is that which
arises from being born within the dominions and under the protection of a particular
sovereign. Two things usually concur to create citizenship: First, birth locally within the
dominions of the sovereign; and, secondly, birth within the protection and obedience, or, in other
words, within the allegiance of the sovereign. That is, the party must be born within a place where
the sovereign is at the time in full possession and exercise of his power, and the party must also at
his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign,
as such, de facto, [emphases supplied], supra Note 138 at 461.
150 J. Hein, supra Note 135 at 433, citing Schneider v. Rusk, 377 U.S. 163, 165 (1964)
(describing two paths to citizenship: the native born path and the naturalized citizen path). "The
Fourteenth Amendment of the Constitution, in the declaration that "all persons born or naturalized
in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of
the state wherein they reside,' contemplates two sources of citizenship, and only two: birth and
naturalization," U.S. v. Wong Kim Ark, supra Note 138 at 702.
151 Section 101(a) (23), at US Citizenship and Immigration Services, available from
http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/act.html
152 Id. For example, Puerto Ricans are US citizens by statute and not because they are born
in Puerto Rico, a US territory, see J. Hein, supra Note 135 at 426.
153 Supra Note 1.
154 409 Phil. 633 (2001).
155 CONSTITUTION, Article IV, Section 2.
Separate Dissenting Opinion 45 SET Case No. 001-15
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
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 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.
163 Go v. Republic, G.R. No. 202809, July 2, 2014, 729 SCRA 138.
164 Under the 1987 Constitution, only natural-born Filipinos can run as President, Vice
President, Senator and Member of the House of Representatives. Further, only natural-born
Filipinos may be appointed Justices of the Supreme Court, Commissioners of the Civil Service
Commission, Commission on Elections, Commission on Audit, and Commission on Human
Rights and as Ombudsman and his Deputies. See: CONSTITUTION, Article VII, Sections 2 and 3;
Article VI, Sections 3 and 6; Art. VIII, Section 7; Article IX (B) Section 1; Article IX (C), Section
1, Paragraph 1; Article IX (D) Section 1, Paragraph 1; Article XI, Section 8; Art. XIII Section 17,
paragraph 2.
165 It was felt that, by virtue of the key positions of the President and the Vice-President in
the Philippine Government, every precaution should be taken to insure the fact the persons
elected, instead of being or developing to be mere instruments of foreign governments or
foreign groups, would be loyal to the country and to its people. See: J. Aruego. The Philippine
Constitution: Origins, Making, Meaning and Application, Vol. IV (1971) at 400-401.
Separate Dissenting Opinion 47 SET Case No. 001-15
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,
and the adopted child who becomes the legitimate child of the Filipino
has the right to be considered as a Philippine citizen.168
166 Tecson v. Comelec, supra Note 156 at 481, citing Ching Leng v. Galang, G.R. No. L-
11931, October 1958; Therkelsen v. Republic, 120 Phil.1196 (1964).
167 Article 341. The adoption shall:
(1) Give to the adopted person the same rights and duties as if he were a legitimate child
of the adopter;
(2) Dissolve the authority vested in the parents by nature;
(3) Make the adopted person a legal heir of the adopter;
(4) Entitle the adopted person to use the adopter's surname.
168 See E. Abaya. A Critical Study on the Effect of Adoption on Citizenship Status in the
Philippines 23 Philippine Law Journal 443, 447-448 (1942).
169 See: Spanish Civil Code, Article 17; Philippine Bill of 1902, Section 4; 1935
Constitution, Article IV, Section 1; 1973 Constitution, Article III, Section 1; and, 1987
Constitution, Article IV, Section 1.
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
respondents then existing and (now admitted) status as a foundling.
170 There are two exceptions under the 1935 Constitution: first, are those who are citizens of
the Philippines at the time of the adoption of the Constitution (Article IV, Section 1[1]), and
second, are those who are born in the Philippine Islands of foreign parents who, before the
adoption of [the] constitution, had been elected in public office (Article IV, Section 1[2]), see: E.
Abaya, supra Note 168 at 448.
171 See Ching Leng v. Galang, supra Note 166; Therkelsen v. Republic, supra Note 166 at
1196.
172 Ibid.
173 See: NSO Certificate of Live Birth, Registry No. 4175, Exhibit O for the petitioner,
Exhibit 3 for the respondent.
Separate Dissenting Opinion 49 SET Case No. 001-15
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.
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
citizens of the Philippines are those whose fathers or mothers are citizens
of the Philippines.
176 See also: 1934 Constitutional Convention, Vol. No. VI, Journal No. 96, November 26,
1934.
177 J. Aruego, supra Note 165 at 234.
178 1973 CONSTITUTION, Article III, Section 1.
179 CONSTITUTION, Article IV, Section 1.
Separate Dissenting Opinion 51 SET Case No. 001-15
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.
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 Constitutions Article on
Citizenship, opined that natural-born Philippine citizens who had renounced
Separate Dissenting Opinion 53 SET Case No. 001-15
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.
FR. BERNAS: But the difference between him and the natural-born
citizen who lost his status is that the natural-born who lost his status, lost it
voluntarily; whereas, this individual in the situation contemplated in
Section 1, paragraph 3 never had the chance to choose.185
Section 1. How citizenship may be lost. - A Filipino citizen may lose his
citizenship in any of the following ways and/or events:
186 Naturalization Oath of Allegiance to the United States of America, U.S. Citizenship and
Immigration Services, available from <http://www.uscis.gov/us-citizenship/naturalization-
test/naturalization-oath-allegiance-united-states-america>
Separate Dissenting Opinion 55 SET Case No. 001-15
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
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 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]
As a government body created under the Constitution, the SET has the
exclusive and, within its limited jurisdiction, plenary authority in
undertaking its duty to resolve all contests relating to the election, returns,
and qualifications of senators. In the absence of any constitutional limitation,
the SETs 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
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.
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.
196 See Suanes v. Chief Accountant of the Senate, 81 Phil 818, 829-833 (1948). See also
Concurring Opinion of J. Perfecto at 851.
197 See Robles v. HRET, supra Note 194 at 836-837.
198 Supra Note 196 at 829-833.
199 1935 CONSTITUTION, Article VI, Section 4. There shall be an Electoral Commission
composed of three Justices of the Supreme Court designated by the Chief Justice, and of six
Members chosen by the National Assembly, three of whom shall be nominated by the party having
the largest 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.
Separate Dissenting Opinion 61 SET Case No. 001-15
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.
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.
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.
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.
202 See Ting v. Velez-Ting, G.R. No. 166562, March 31, 2009, 582 SCRA 694, 704-708,
citing CJ Punos dissenting opinion in Lambino v. COMELEC, G.R. Nos. 174153 & 174299,
October 25, 2006, 505 SCRA 160, 308-311.
203 See: CJ Punos dissenting opinion in Lambino v. COMELEC, id. at 312-313.
Separate Dissenting Opinion 63 SET Case No. 001-15
Section 1. How citizenship may be lost. A Filipino citizen may lose his
citizenship in any of the following ways and/or events:
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:
(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]
Thus, in the eyes of Philippine law, these people lost their Philippine
citizenship because of the overt acts they performed, and, hence, are no
longer Philippine citizens. The execution of an oath of allegiance is the
procedure through which they can regain their Philippine citizenship. That
they did not have to go through the tedious process of naturalization
provided under CA 63 is immaterial in determining their status as
naturalized Filipinos.
Under these legal realities, the RA 2630 process (like the RA 9225
process discussed at pages 53 to 59 of this Opinion) is simply a citizenship-
acquisition mode that addresses a specific class of foreigners and non-
Filipinos who are required to show their links to the Filipino nation before
they may acquire Philippine citizenship. Presumably, former Philippine
citizens who wish to become Philippine citizens once again already possess
these ties, and thus had been provided with a more expeditious process of
citizenship acquisition. In the same manner, a foreigner who acquires
Philippine citizenship through a direct act of Congress would have
presumably been examined by Congress for ties to the Filipino nation.
Separate Dissenting Opinion 66 SET Case No. 001-15
For all the above reasons, solely for purposes of the present case, and
subject to the Supreme Courts exercise of its expanded power of judicial
review, I opt not to consider the application of the Bengzon ruling to the
present case.
ARTURO D. BRION
Associate Justice