Cases discussed.docx

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 183591             October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own behalf, petitioners, vs.THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, respondents.

D E C I S I O N

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers   of the President in pursuing the peace process.While the facts surrounding this controversy center on the armed conflict in Mindanao between the government and the Moro Islamic Liberation Front (MILF), the legal issue involved has a bearing on all areas in the country where there has been a long-standing armed conflict. Yet again, the Court is tasked to perform a delicate balancing act. It must uncompromisingly delineate the bounds within which the President may lawfully exercise her discretion, but it must do so in strict adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that same Constitution in the Chief Executive precisely to enable her to pursue the peace process effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the Chairpersons of their respective peace negotiating panels, were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the leadership of the late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations.1

The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the same.

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation of Hostilities. The following year, they signed the General Framework of Agreement of Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same contained, among others, the commitment of the parties to pursue peace negotiations, protect and respect human rights,

negotiate with sincerity in the resolution and pacific settlement of the conflict, and refrain from the use of threat or force to attain undue advantage while the peace negotiations on the substantive agenda are on-going.2

Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan, Lanao del Norte.3 In response, then President Joseph Estrada declared and carried out an "all-out-war" against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended and the government sought a resumption of the peace talks. The MILF, according to a leading MILF member, initially responded with deep reservation, but when President Arroyo asked the Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to return to the negotiating table, the MILF convened its Central Committee to seriously discuss the matter and, eventually, decided to meet with the GRP.4

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian government, the parties signing on the same date the Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its military actions.5

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic principles and agenda on the following aspects of the negotiation:   Security   Aspect,   Rehabilitation   Aspect, and   Ancestral Domain   Aspect . With regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed "that the same be discussed further by the Parties in their next meeting."

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was followed by the Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between government forces and the MILF from 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's position as chief peace negotiator was taken over by Mohagher Iqbal.6

In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious "consensus" ever embodied in an instrument - the MOA-AD which is assailed principally by the present petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain 7 and the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

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On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.9 Invoking the right to information on matters of public concern, petitioners seek to compel respondents to disclose and furnish them the complete and official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.10

This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and directing public respondents and their agents to cease and desist from formally signing the MOA-AD.13 The Court also required the Solicitor General to submit to the Court and petitioners the official copy of the final draft of the MOA-AD,14 to which she complied.15

Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed as  G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had already been signed, from implementing the same, and that the MOA-AD be declared unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as respondent.

The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18 of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and void and without operative effect, and that respondents be enjoined from executing the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for Prohibition,20docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently enjoining respondents from formally signing and executing the MOA-AD and or any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal. Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel represented by its Chairman Mohagher Iqbal.

Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat22and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte, 23 Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development (MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed Comments on the petitions, while some of petitioners submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department shall thoroughly review the MOA-AD and pursue further negotiations to address the issues hurled against it, and thus moved to dismiss the cases. In the succeeding exchange of pleadings, respondents' motion was met with vigorous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final draft of the Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it is considered that consultation has become fait accompli with the finalization of the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave abuse of discretion amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the people's right to information on matters of public concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution, Article II, Sec. 28) including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is a justiciable question; and

7. Whether desistance from signing the MOA derogates any prior valid commitments of the Government of the Republic of the Philippines.24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

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As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six petitions-in-intervention against the MOA-AD, as well as the two comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements between the GRP and MILF, but also two agreements between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region in Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 and several international law instruments - the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device."

During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws held sway, while the second denoted those lands where Muslims were persecuted or where Muslim laws were outlawed or ineffective.27 This way of viewing the world, however, became more complex through the centuries as the Islamic world became part of the international community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental organizations, the classical division of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-sulh (land of treaty) referred to countries which, though under a secular regime, maintained peaceful and cooperative relations with Muslim States, having been bound to each other by treaty or agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which, though not bound by treaty with Muslim States, maintained freedom of religion for Muslims.28

It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and the Philippine government - the Philippines being the land of compact and peace agreement - that partake of the nature of a treaty device, "treaty" being broadly defined as "any solemn agreement in writing that sets out understandings, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the [MOA-AD]."29

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and starts with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles, Territory, Resources, and Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as ‘Bangsamoros.'" It defines "Bangsamoro people" as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants whether mixed or of full blood, including their spouses.30

Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only " Moros" as traditionally understood even by Muslims,31 but all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. What this freedom of choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation.32 Both parties to the MOA-AD acknowledge that ancestral domain does not form part of the public domain.33

The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to be rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The sultanates were described as states or "karajaan/kadatuan" resembling a body politic endowed with all the elements of a nation-state in the modern sense.34

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each ruled by datus and sultans, none of whom was supreme over the others.35

The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations."

The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory, particularly those known as Indians. In Canada, each of these indigenous peoples is equally entitled to be called "First Nation," hence, all of them are usually described collectively by the plural "First Nations." 36 To that extent, the MOA-AD, by identifying the Bangsamoro people as "the First Nation" - suggesting its exclusive entitlement to that designation - departs from the Canadian usage of the term.

The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.37

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.38

More specifically, the core of the BJE is defined as the present geographic area of the ARMM - thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite.39

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two categories, Category A and Category B. Each of these areas is to be subjected to a plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are to be subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-AD.40 Category B areas, also called "Special Intervention Areas," on the other hand, are to be subjected to a plebiscite twenty-five (25) years from the signing of a separate agreement - the Comprehensive Compact.41

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The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its " internal   waters, " defined as extending fifteen (15) kilometers from the coastline of the BJE area;42 that the BJE shall also have "territorial waters," which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and that within these   territorial waters, the BJE and the "Central Government"  (used interchangeably with RP) shall exercise joint jurisdiction, authority and management over all natural resources.43 Notably, the jurisdiction over the internal waters is not similarly described as "joint."

The MOA-AD further provides for the sharing of minerals on the   territorial   waters between the Central Government and the BJE, in favor of the latter, through production sharing and economic cooperation agreement.44 The activities which the Parties are allowed to conduct on the territorial waters are enumerated, among which are the exploration and utilization of natural resources, regulation of shipping and fishing activities, and the enforcement of police and safety measures.45 There is no similar provision on the sharing of minerals and allowed activities with respect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall have the option to establish trade missions in those countries. Such relationships and understandings, however, are not to include aggression against the GRP. The BJE may also enter into environmental cooperation agreements.46

The external defense of the BJE is to remain the duty and obligation of the Central Government. The Central Government is also bound to "take necessary steps to ensure the BJE's participation in international meetings and events" like those of the ASEAN and the specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official missions and delegations for the negotiation of border agreements or protocols for environmental protection and equitable sharing of incomes and revenues involving the bodies of water adjacent to or between the islands forming part of the ancestral domain.47

With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the BJE "as the party having control within its territorial jurisdiction." This right carries the proviso that, "in times of national emergency, when public interest so requires," the Central Government may, for a fixed period and under reasonable terms as may be agreed upon by both Parties, assume or direct the operation of such resources.48

The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE.49

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation is to be in such form as mutually determined by the Parties.50

The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments granted by the Philippine Government, including those issued by the present ARMM.51

D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the implementation of the Comprehensive Compact. This compact is to embody the "details for the effective enforcement" and "the mechanisms and modalities for the actual implementation" of the MOA-AD. The MOA-AD explicitly provides that the participation of the third party shall not in any way affect the status of the relationship between the Central Government and the BJE.52

The "associative" relationship between the Central Government and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as "associative," characterized by shared authority and responsibility. And it states that the structure of governance is to be based on executive, legislative, judicial, and administrative institutions with defined powers and functions in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments , with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of the present controversy hangs on the legality of this provision.

The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions, the details of which shall be discussed in the negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF, respectively.  Notably, the penultimate paragraph of the MOA-AD identifies the signatories as "the representatives of the Parties," meaning the GRP and MILF themselves, and not merely of the negotiating panels.53 In addition, the signature page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces, municipalities, and barangays under Categories A and B earlier mentioned in the discussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS

The power of judicial review is limited to actual cases or controversies.54 Courts decline to issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions. 55 The limitation of the power of judicial review to actual cases and controversies defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas committed to the other branches of government.56

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.57The Court can decide the constitutionality of an act or treaty only when a proper case between opposing parties is submitted for judicial determination.58

Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. 59 For a case to be considered ripe for adjudication, it is a prerequisite that something had then been accomplished or performed by either branch before a court may come into the picture, 60 and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action. 61 He must show that

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he has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of.62

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactments as well as constitutional processes aimed at attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal that does not automatically create legally demandable rights and obligations until the list of operative acts required have been duly complied with. x x x

x x x x

In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon issues based on hypothetical or feigned constitutional problems or interests with  no concrete bases. Considering the preliminary character of the MOA-AD, there are no concrete acts that could possibly violate petitioners' and intervenors' rights since the acts complained of are mere contemplated steps toward the formulation of a final peace agreement. Plainly, petitioners and intervenors' perceived injury, if at all, is merely imaginary and illusory apart from being unfounded and based on mere conjectures. (Underscoring supplied)

The Solicitor General cites63 the following provisions of the MOA-AD:

TERRITORY

2. Toward this end, the Parties enter into the following stipulations:

d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all possible legal measures, within twelve (12) months following the signing of the MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category A attached herein (the "Annex"). The Annex constitutes an integral part of this framework agreement. Toward this end, the Parties shall endeavor to complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.

GOVERNANCE

7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into forceupon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.64 (Underscoring supplied)

The Solicitor General's arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In  Pimentel, Jr. v. Aguirre,65 this Court held:

x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial duty.

x x x x

By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously alleged to have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the responsibility of the courts.66

In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the challenge to the constitutionality of the school's policy allowing student-led prayers and speeches before games was ripe for adjudication, even if no public prayer had yet been led under the policy, because the policy was being challenged as unconstitutional on its face.68

That the law or act in question is not yet effective does not negate ripeness. For example, in  New York v. United States,69 decided in 1992, the United States Supreme Court held that the action by the State of New York challenging the provisions of the Low-Level Radioactive Waste Policy Act was ripe for adjudication even if the questioned provision was not to take effect until January 1, 1996, because the parties agreed that New York had to take immediate action to avoid the provision's consequences.70

The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and Prohibition are remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.72 Mandamus is a remedy granted by law when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use or enjoyment of a right or office to which such other is entitled.73 Certiorari, Mandamus and Prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials.74

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on February 28, 2001.75 The said executive order requires that "[t]he government's policy framework for peace, including the systematic approach and the administrative structure for carrying out the comprehensive peace process x x x be governed by this Executive Order."76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD without consulting the local government units or communities affected, nor informing them of the proceedings . As will be discussed in greater detail later, such omission, by itself, constitutes a departure by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD provides that "any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework," implying an amendment of the Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed   to the MILF the amendment of the Constitution.   Such act constitutes another violation of its authority. Again, these points will be discussed in more detail later.

As the petitions allege acts or omissions on the part of respondent that exceed their authority , by violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.77

B. LOCUS STANDI

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For a party to have locus standi, one must allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."78

Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary question frequently arises as to this interest in the constitutional question raised.79

When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.80 When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.81

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.82 The Court retains discretion whether or not to allow a taxpayer's suit.83

In the case of a legislator or member of Congress, an act of the Executive that injures the institution of Congress causes a derivative but nonetheless substantial injury that can be questioned by legislators. A member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.84

An organization may be granted standing to assert the rights of its members, 85 but the mere invocation by theIntegrated Bar of the Philippines or any member of the legal profession  of the duty to preserve the rule of law does not suffice to clothe it with standing.86

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of its own, and of the other LGUs.87

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements of the law authorizing intervention,88 such as a legal interest in the matter in litigation, or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on  locus standi, given the liberal attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo,89 where technicalities of procedure were brushed aside, the constitutional issues raised being of paramount public interest or of transcendental importance deserving the attention of the Court in view of their seriousness, novelty and weight as precedents. 90 The Court's forbearing stance on locus standi on issues involving constitutional issues has for its purpose the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the other branches of government have kept themselves within the limits of the Constitution and the laws and have not abused the discretion given them, has brushed aside technical rules of procedure.91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of Isabela and Municipality of Linamon havelocus standi in view of the direct and substantial injury that they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in the intended domain of the BJE. These petitioners allege that they did not vote for their inclusion in the ARMM which would be expanded to form the BJE territory. Petitioners' legal standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no standing as citizens and taxpayers for their failure to specify that they would be denied some right or privilege or there would be wastage of public funds. The fact that they are a former Senator, an incumbent mayor of Makati

City, and a resident of Cagayan de Oro, respectively, is of no consequence. Considering their invocation of the transcendental importance of the issues at hand, however, the Court grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be given legal standing. Their allegation that the issues involved in these petitions are of "undeniable transcendental importance" clothes them with added basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and a citizen to enforce compliance by respondents of the public's constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the success or failure of either of the parties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal interest in the present petitions. Just the same, the Court exercises its discretion to relax the procedural technicality on  locus standi given the paramount public interest in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao; and  Muslim Legal Assistance Foundation Inc., a non-government organization of Muslim lawyers, allege that they stand to be benefited or prejudiced, as the case may be, in the resolution of the petitions concerning the MOA-AD, and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices to clothe them with standing.

B. MOOTNESS

Respondents insist that the present petitions have been rendered moot with the satisfaction of all the reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that "[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA."92

In lending credence to this policy decision, the Solicitor General points out that the President had already disbanded the GRP Peace Panel.93

In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not being a magical formula that automatically dissuades courts in resolving a case, it will decide cases, otherwise moot and academic, if it finds that (a) there is a grave violation of the Constitution; 95 (b) the situation is of exceptional character and paramount public interest is involved;96 (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;97 and (d) the case is capable of repetition yet evading review.98

Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine the case and does not render the case moot especially when the plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the violation.99

The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial review. The grounds cited above in David are just as applicable in the present cases as they were, not only in David, but also in Province of Batangas v. Romulo100 and Manalo v. Calderon101 where the Court similarly decided them on the merits, supervening events that would ordinarily have rendered the same moot notwithstanding.

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Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining Order.

Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus points," especially given its nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching Constitutional implications of these "consensus points," foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and effect necessary changes to the existing legal framework for certain provisions of the MOA-AD to take effect. Consequently, the present petitions are not confined to the terms and provisions of the MOA-AD, but to other   on-going   and   future   negotiations and agreements necessary for its realization . The petitions have not, therefore, been rendered moot and academic simply by the public disclosure of the MOA-AD, 102 the manifestation that it will not be signed as well as the disbanding of the GRP Panel not withstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the country's territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate controlling principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no longer legitimately constitute an actual case or controversy [as this] will do more harm than good to the nation as a whole."

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually cancelled was a stand-alone government procurement contract for a national broadband network involving a one-time contractual relation between two parties-the government and a private foreign corporation. As the issues therein involved specific government procurement policies and standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the factual circumstances being peculiar only to the transactions and parties involved in the controversy.

The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a   significant part of a series of agreements   necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be undertaken following the implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor General, has stated that "no matter what the Supreme Court ultimately decides[,] the government will not sign the MOA[-AD],"mootness will not set in in light of the terms of the Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic provisions. While the Court notes the word of the Executive Secretary that the government "is committed to securing an agreement that is both constitutional and equitable because that is the only way that

long-lasting peace can be assured," it is minded to render a decision on the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain .

Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio Panganiban inSanlakas v. Reyes104 in which he stated that the doctrine of "capable of repetition yet evading review" can override mootness, "provided the party raising it in a proper case has been and/or continue to be prejudiced or damaged as a direct result of their issuance." They contend that the Court must have jurisdiction over the subject matter for the doctrine to be invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises questions that need to be resolved. 105 At all events, the Court has jurisdiction over most if not the rest of the petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately referred to as what it had done in a number of landmark cases.106 There is a reasonable expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be subjected to the same problem in the future as respondents' actions are capable of repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot, respondents having, by Compliance of August 7, 2008, provided this Court and petitioners with official copies of the final draft of the MOA-AD and its annexes. Too, intervenors have been furnished, or have procured for themselves, copies of the MOA-AD.

V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD was negotiated and finalized, the other relating to its provisions, viz:

1. Did respondents violate constitutional and statutory provisions on public consultation and the right to information when they negotiated and later initialed the MOA-AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as provided in Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.107

As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to examine and inspect public records, a right which was eventually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987 Constitution, has been recognized as a self-executory constitutional right.109

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In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public records is predicated on the right of the people to acquire information on matters of public concern since, undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and political significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nation's problems, nor a meaningful democratic decision-making if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times. As has been aptly observed: "Maintaining the flow of such information depends on protection for both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably ceases." x x x111

In the same way that free discussion enables members of society to cope with the exigencies of their time, access to information of general interest aids the people in democratic decision-making by giving them a better perspective of the vital issues confronting the nation112 so that they may be able to criticize and participate in the affairs of the government in a responsible, reasonable and effective manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people.113

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public concern 114 faces no serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.115 In previous cases, the Court found that the regularity of real estate transactions entered in the Register of Deeds,116 the need for adequate notice to the public of the various laws,117 the civil service eligibility of a public employee,118 the proper management of GSIS funds allegedly used to grant loans to public officials,119 the recovery of the Marcoses' alleged ill-gotten wealth,120 and the identity of party-list nominees,121 among others, are matters of public concern. Undoubtedly, the MOA-AD subject of the present cases is of public concern, involving as it does thesovereignty and territorial integrity of the State, which directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the contract. In not distinguishing as to the executory nature or commercial character of agreements, the Court has categorically ruled:

x x x [T]he right to information "contemplates inclusion of negotiations leading to the consummation of the transaction." Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of public concern, a situation which the framers of the Constitution could not have intended. Such a requirement will prevent the citizenry from participating in the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full disclosure of all its transactions involving public interest." 122 (Emphasis and italics in the original)

Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the policy of public disclosure under Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.124

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to information on matters of public concern found in the Bill of Rights. The right to information guarantees the right

of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands.125

The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely open democracy, with the people's right to know as the centerpiece. It is a mandate of the State to be accountable by following such policy.126 These provisions are vital to the exercise of the freedom of expression and essential to hold public officials at all times accountable to the people.127

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law will have to be enacted by Congress, Mr. Presiding Officer.128

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as having said that this is not a self-executing provision? It would require a legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado, so that the safeguards on national interest are modified by the clause "as may be provided by law"

MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide for reasonable safeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking this principle, which is inconsistent with this policy.129 (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke this principle, it is merely directed to provide for "reasonable safeguards." The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-hand, it is absurd to say that the broader130 right to information on matters of public concern is already enforceable while the correlative duty of the State to disclose its transactions involving public interest is not enforceable until there is an enabling law.Respondents cannot thus point to the absence of an implementing legislation as an excuse in not effecting such policy.

An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people's will.131Envisioned to be corollary to the twin rights to information and disclosure is the design for feedback mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the government provide feedback mechanisms so that the people can participate and can react where the existing media facilities are not able to provide full feedback

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mechanisms to the government? I suppose this will be part of the government implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is a message and a feedback, both ways.

x x x x

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?

I think when we talk about the feedback network, we are not talking about public officials but also network of private business o[r] community-based organizations that will be reacting. As a matter of fact, we will put more credence or credibility on the private network of volunteers and voluntary community-based organizations. So I do not think we are afraid that there will be another OMA in the making.132 (Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is evident in the "marching orders" to respondents. The mechanics for the duty to disclose information and to conduct public consultation regarding the peace agenda and process is manifestly provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution of civil society to the comprehensive peace process by institutionalizing the people's participation.

One of the three underlying principles of the comprehensive peace process is that it "should be community-based, reflecting the sentiments, values and principles important to all Filipinos" and "shall be defined not by the government alone, nor by the different contending groups only, but by all Filipinos as one community."134 Included as a component of the comprehensive peace process is consensus-building and empowerment for peace, which includes "continuing consultations on both national and local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of people's participation in the peace process."135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing" consultations, contrary to respondents' position that plebiscite is "more than sufficient consultation."136

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to "[c]onductregular dialogues with the National Peace Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as well as to render appropriate and timely reports on the progress of the comprehensive peace process."137 E.O. No. 3 mandates the establishment of the NPF to be "the principal forumfor the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners and concerned sectors of society on both national and local levels, on the implementation of the comprehensive peace process, as well as for government[-]civil society dialogue and consensus-building on peace agenda and initiatives."138

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary to the constitutional right to information and disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion   when he   failed   to carry out the pertinent consultation. The furtive process by which the MOA-AD was designed and crafted   runs contrary to and in excess of the legal authority , and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof .

The Court may not, of course, require the PAPP to conduct the consultation  in a particular way or manner. It may, however, require him to comply with the law and discharge the functions within the authority granted by the President.139

Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying the denial of petitioners' right to be consulted. Respondents' stance manifests the manner by which they treat the salient provisions of E.O. No. 3 on people's participation. Such disregard of the express mandate of the President is not much different from superficial conduct toward token provisos that border on classic lip service.140 It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.

As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit provisions on continuing consultation and dialogue on both national and local levels. The executive order even recognizes the exercise of the public's right even before the GRP makes its official recommendations or before the government proffers its definite propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information, comments and recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified disclosure of the official copies of the final draft of the MOA-AD. By unconditionally complying with the Court's August 4, 2008 Resolution, without a prayer for the document's disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad cautelam.

Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require all national agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions"142 is well-taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy:

Prior Consultations Required. - No project or program shall be implemented by government authorities unless   the consultations mentioned in Sections 2 (c)  and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.143 (Italics and underscoring supplied)

In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-quoted provision of the LGU apply only to national programs or projects which are to be implemented in a particular local community. Among the programs and projects covered are those that are critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in the locality where these will be implemented.145 The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people,146 which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of decision-making in matters which may affect their rights, lives and destinies.147 The MOA-AD, an instrument recognizing ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said Act,148  which entails, among other things, the observance of the free and prior informed consent of the ICCs/IPs.

Notably, the IPRA does   not   grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim   by mere agreement or compromise . The recognition of the ancestral domain is the raison d'etre of the MOA-AD, without which all other stipulations or "consensus points" necessarily must fail. In proceeding to make a sweeping declaration on ancestral domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is still subject to necessary changes to the legal framework. While paragraph 7 on Governance suspends the effectivity of all provisions requiring changes to the legal framework, such clause is itself invalid, as will be discussed in the following section.

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Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available always to public cognizance. This has to be so if the country is to remain democratic, with sovereignty residing in the people and all government authority emanating from them.149

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the present Constitution and laws. Respondents have admitted as much in the oral arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing legal framework to render effective at least some of its provisions. Respondents, nonetheless, counter that the MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the present legal framework will not be effective until the necessary changes to that framework are made. The validity of this argument will be considered later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of the present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the international law   concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe theenvisioned relationship between the BJE and the Central Government.

4. The relationship between the Central Government and the Bangsamoro juridical entity shall beassociative characterized by shared authority and responsibility   with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and functions in the comprehensive compact. A period of transition shall be established in a comprehensive peace compact specifying the relationship between the Central Government and the BJE. (Emphasis and underscoring supplied)

The nature of the "associative" relationship   may have been intended to be defined more precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and the MOA-AD - by its inclusion of international law instruments in its TOR- placed itself in an international legal context, that concept of association may be brought to bear in understanding the use of the term "associative" in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. x x x150 (Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands,151 are associated states of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing and using military areas and facilities within these associated states and has the right to bar the military personnel of any third country from having access to these territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is understood as an international association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation's national constitution, and each party may terminate the association consistent with the right of independence. It has been said that, with the admission of the U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association is actually based on an underlying status of independence.152

In international practice, the "associated state" arrangement has usually been used as a transitional device   of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.153

Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association , specifically the following: the BJE's capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense. Moreover, the BJE's right to participate   in Philippine official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral domain,  resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an   associated state   or, at any rate, a status closely approximating it .

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the   associated entity   as a state . The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.

Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its validity the amendment of constitutional provisions, specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant

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characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

The BJE is a far more powerful entity than the autonomous region recognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention,154 namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory,  the spirit animating it - which has betrayed itself by its use of the concept of association -  runs counter to the national sovereignty and territorial integrity of the Republic.

The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws.

Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region." (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is covered by the term "autonomous region" in the constitutional provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal - are automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the overview. That the present components of the ARMM and the above-mentioned municipalities voted for inclusion therein in 2001, however, does   not   render another plebiscite unnecessary under the Constitution, precisely because what these areas voted for then was their inclusion in the ARMM,   not   the BJE .

The MOA-AD, moreover, would not comply with Article X, Section 20 of  the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines x x x." Under our constitutional system, it is only the President who has that power. Pimentel v. Executive Secretary155 instructs:

In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country's sole representative with foreign nations.  As the chief architect of foreign policy, the President acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states.   (Emphasis and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected. That constitutional provision states: "The State recognizes and promotes the rights ofindigenous cultural communities within the framework of national unity   and development." (Underscoring supplied)An   associative   arrangement does not uphold national unity . While there may be a semblance of unity because of the associative ties between the BJE and the national government,  the act of placing a portion of Philippine territory in a status which, in international practice, has generally been a   preparation for independence , is certainly not conducive to   national   unity .

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law, among which are R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and Principles states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected. (Emphasis and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples, as follows:

"As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino citizens residing in the autonomous region who are:

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(a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all of their own social, economic, cultural, and political institutions."

Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral domains. The MOA-AD's manner of delineating the ancestral domain of the Bangsamoro people is a clear departure from that procedure. By paragraph 1 of Territory, the Parties simply agree that, subject to the delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region."

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following provisions thereof:

SECTION 52. Delineation Process. - The identification and delineation of ancestral domains shall be done in accordance with the following procedures:

x x x x

b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. - The official delineation of ancestral domain boundaries including census of all community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be done in coordination with the community concerned and shall at all times include genuine involvement and participation by the members of the communities concerned;

d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests and hunting grounds;

9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the community.

e) Preparation of Maps. - On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and landmarks embraced therein;

f) Report of Investigation and Other Documents. - A complete copy of the preliminary census and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP;

g) Notice and Publication. - A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen (15) days from date of such publication: Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio station are not available;

h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication according to the section below.

x x x x

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a discussion of not only the Constitution and domestic statutes, but also of international law is in order, for

Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of international law as part of the law of the land."

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the Universal Declaration of Human Rights is part of the law of the land on account of which it ordered the release on bail of a detained alien of Russian descent whose deportation order had not been executed even after two years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid constitutional provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of "peoples," understood not merely as the entire population of a State but also a portion thereof. In considering the question of whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had occasion to acknowledge that "the right of a people to self-determination is

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now so widely recognized in international conventions that the principle has acquired a status beyond ‘convention' and is considered a general principle of international law."

Among the conventions referred to are the International Covenant on Civil and Political Rights 161 and the International Covenant on Economic, Social and Cultural Rights162 which state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-determination, "freely determine their political status and freely pursue their economic, social, and cultural development."

The people's right to self-determination should not, however, be understood as extending to a unilateral right of secession. A distinction should be made between the right of internal and external self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

"(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal   self-determination   -  a people's pursuit of its political, economic, social and cultural development within the framework of an existing state.   A right toexternal self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. x x x

External self-determination can be defined as in the following statement from the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by apeople constitute modes of implementing the right of self-determination by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states. The various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right to external self-determination can arise, namely, where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context, and - less definitely but asserted by a number of commentators - is blocked from the meaningful exercise of its right to internal self-determination. The Court ultimately held that the population of Quebec had no right to secession, as the same is not under colonial rule or foreign domination, nor is it being deprived of the freedom to make political choices and pursue economic, social and cultural development, citing that Quebec is equitably represented in legislative, executive and judicial institutions within Canada, even occupying prominent positions therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.163 There, Sweden presented to the Council of the League of Nations the question of whether the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving the question, appointed an International Committee composed of three jurists to submit an opinion on the preliminary issue of whether the dispute should, based on international law, be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties, the right of disposing of national territory is essentially an attribute of the sovereignty of every State. Positive International Law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish , any more than it recognizes the right of other States to claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by some other method, is, exclusively, an attribute of the sovereignty of every State  which is definitively constituted . A dispute between two States concerning such a question, under normal conditions therefore, bears upon a question which International Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any other solution would amount to an infringement of sovereign rights of a State and would involve the risk of creating difficulties and a lack of stability which would not only be contrary to the very idea embodied in term "State," but would also endanger the interests of the international community. If this right is not possessed by a large or small section of a nation, neither can it be held by the State to which the national group wishes to be attached, nor by any other State. (Emphasis and underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left by international law to the domestic jurisdiction of Finland, thereby applying the exception rather than the rule elucidated above. Its ground for departing from the general rule, however, was a very narrow one, namely, the Aaland Islands agitation originated at a time when Finland was undergoing drastic political transformation. The internal situation of Finland was, according to the Committee, so abnormal that, for a considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish national government was disputed by a large section of the people, and it had, in fact, been chased from the capital and forcibly prevented from carrying out its duties. The armed camps and the police were divided into two opposing forces. In light of these circumstances, Finland was not, during the relevant time period, a "definitively constituted" sovereign state. The Committee, therefore, found that Finland did not possess the right to withhold from a portion of its population the option to separate itself - a right which sovereign nations generally have with respect to their own populations.

Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship as well as international, regional, and state practices, to refer to groups with distinct cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly incorporated into a larger governing society. These groups are regarded as "indigenous" since they are the living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples, nations, or communities are culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and conquest. 164 Examples of groups who have been regarded as indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada.

As with the broader category of "peoples," indigenous peoples situated within states do not have a general right to independence or secession from those states under international law,165 but they do have rights amounting to what was discussed above as the right to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being included among those in favor, and the four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of indigenous peoples to self-determination, encompassing the right to autonomy or self-government, to wit:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4

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Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as equivalent to "internal self-determination."166 The extent of self-determination provided for in the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted hereunder:

Article 8

1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;

(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.

2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.

2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as embodying customary international law - a question which the Court need not definitively resolve here - the obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its application by the different States.

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There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples their own police and internal security force. Indeed, Article 8 presupposes that it is the State which will provide protection for indigenous peoples against acts like the forced dispossession of their lands - a function that is normally performed by police officers. If the protection of a right so essential to indigenous people's identity is acknowledged to be the responsibility of the State, then surely the protection of rights less significant to them as such peoples would also be the duty of States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate States to grant indigenous peoples the near-independent status of an associated state. All the rights recognized in that document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations orconstrued as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution and the laws as presently worded. Respondents proffer, however, that the signing of the MOA-AD alone would not have entailed any violation of law or grave abuse of discretion on their part, precisely because it stipulates that the provisions thereof inconsistent with the laws shall not take effect until these laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced below for convenience:

7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.

Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into force until the necessary changes to the legal framework are effected. While the word "Constitution" is not mentioned in the provision now under consideration or anywhere else in the MOA-AD, the term "legal framework" is certainly broad enough to include the Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the provisions thereof regarding the associative relationship between the BJE and the Central Government, have already violated the Memorandum of Instructions From The President dated March 1, 2001, which states that the "negotiations shall be conducted in accordance with x x x the principles of the sovereignty and territorial integrity of the Republic of the Philippines." (Emphasis supplied) Establishing an associative relationship between the BJE and the Central Government is, for the reasons already discussed, a preparation for independence, or worse, an implicit acknowledgment of an independent status already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the suspensive clause is invalid, as discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3, Section 5(c), which states that there shall be established Government Peace Negotiating Panels for negotiations with different rebel groups to be "appointed by the President as her official emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups." These negotiating panels are to report to the President, through the PAPP on the conduct and progress of the negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under the laws as they presently stand. One of the components of a comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit of social, economic, and political reforms which may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No. 125,167states:

SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise the processes known as the "Paths to Peace". These component processes are interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous implementation of various policies, reforms, programs and projects aimed at addressing the root causes of internal armed conflicts and social unrest. This may require administrative action, new legislation or even constitutional amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O. authorized them to "think outside the box," so to speak. Hence, they negotiated and were set on signing the MOA-AD that included various social, economic, and political reforms which cannot, however, all be accommodated within the present legal framework, and which thus would require new legislation and constitutional amendments.

The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must be askedwhether the President herself may exercise the power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).

The President cannot delegate a power that she herself does not possess. May the President, in the course of peace negotiations, agree to pursue reforms that would require new legislation and constitutional amendments, or should the reforms be restricted only to those solutions which the present laws allow? The answer to this question requires a discussion of the extent of the President's power to conduct peace negotiations.

That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive Secretary,168 in issue was the authority of the President to declare a state of rebellion - an authority which is not expressly provided for in the Constitution. The Court held thus:

"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling rested on the President's

. . . unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the

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abuses under the regime of Mr. Marcos, for the result was a limitation of specific powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power.

Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief executive and, at the same time, draws strength from her Commander-in-Chief powers. x x x (Emphasis and underscoring supplied)

Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.169

As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation's constitutional structure is required. The observations of Dr. Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must form the core of any post-conflict peace-building mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without modification of the political environment, even where state-building is undertaken through technical electoral assistance and institution- or capacity-building, is unlikely to succeed. On average, more than 50 percent of states emerging from conflict return to conflict. Moreover, a substantial proportion of transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an important role in the political and governance transition. Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road map on how to get there. The constitution can be partly a peace agreement and partly a framework setting up the rules by which the new democracy will operate.170

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements, observed that the typical way that peace agreements establish or confirm mechanisms for demilitarization and demobilization is by linking them to new constitutional structures addressing governance, elections, and legal and human rights institutions.171

In the Philippine experience, the link between peace agreements and constitution-making has been recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on autonomous regions 172is the framers' intention to implement a particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to ask them if they are not covered by the other speakers. I have only two questions.

I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is working very well; it has, in fact, diminished a great deal of the problems. So, my question is:  since that already exists, why do we have to go into something new?

MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right thatcertain definite steps have been taken to implement the provisions of the Tripoli Agreement with respect to an autonomous region in Mindanao. This is a good first step, but there is no question that this is merely a partial response to the Tripoli Agreement itself and to the fuller standard of regional autonomy contemplated in that agreement, and now by state policy.173(Emphasis supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the reality of an on-going conflict between the Government and the MILF. If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the Constitution for their implementation. Being uniquely vested with the power to conduct peace negotiations with rebel groups, the President is in a singular position to know the precise nature of their grievances which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose the recommended amendments or revision to the people, call a constitutional convention, or submit to the electorate the question of calling such a convention.

While the President does not possess constituent powers - as those powers may be exercised only by Congress, a Constitutional Convention, or the people through initiative and referendum - she may submit proposals for constitutional change to Congress in a manner that does not involve the arrogation of constituent powers.

In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly submitting proposals for constitutional amendments to a referendum, bypassing the interim National Assembly which was the body vested by the 1973 Constitution with the power to propose such amendments. President Marcos, it will be recalled, never convened the interim National Assembly. The majority upheld the President's act, holding that "the urges of absolute necessity" compelled the President as the agent of the people to act as he did, there being no interim National Assembly to propose constitutional amendments. Against this ruling, Justices Teehankee and Muñoz Palma vigorously dissented. The Court's concern at present, however, is not with regard to the point on which it was then divided in that controversial case, but on that which was not disputed by either side.

Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the President may directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have upheld the President's action along with the majority had the President convened the interim National Assembly and coursed his proposals through it. Thus Justice Teehankee opined:

"Since the Constitution provides for the organization of the essential departments of government, defines and delimits the powers of each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to but has been withheld from the President or Prime Minister, it follows that the President's questioned decrees proposing and submitting constitutional amendments directly to the people (without the intervention of the interim National Assembly in whom the power is expressly vested) are devoid of constitutional and legal basis."176 (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President - in the course of conducting peace negotiations - may validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty.

Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to what President Marcos did in Sanidad, but for their independent consideration of whether these recommendations merit being formally proposed through initiative.

These recommendations, however, may amount to nothing more than the President's suggestions to the people, for any further involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine "people's initiative." The only initiative recognized by the Constitution is that which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:177

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"The Lambino Group claims that their initiative is the ‘people's voice.' However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that ‘ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.' The Lambino Group thus admits that their ‘people's' initiative is an ‘unqualified support to the agenda' of the incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of ‘people's voice' or ‘sovereign will' in the present initiative."

It will be observed that the President has authority, as stated in her oath of office, 178 only to preserve and defend the Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act.

The foregoing discussion focused on the President's authority to propose constitutional amendments, since her authority to propose new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new legislation. One of the more prominent instances the practice is usually done is in the yearly State of the Nation Address of the President to Congress. Moreover, the annual general appropriations bill has always been based on the budget prepared by the President, which - for all intents and purposes - is a proposal for new legislation coming from the President.179

The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards

Given the limited nature of the President's authority to propose constitutional amendments, she  cannot guarantee   to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present Constitution and laws "shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework." This stipulation does not bear the marks of a suspensive condition - defined in civil law as a future and uncertain event - but of a term. It is not a question of whether the necessary changes to the legal framework will be effected, but when. That there is no uncertainty being contemplated is plain from what follows, for the paragraph goes on to state that the contemplated changes shall be "with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact."

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal framework contemplated in the MOA-AD - which changes would include constitutional amendments, as discussed earlier. It bears noting that,

By the time these changes are put in place, the MOA-AD itself would be counted among the "prior agreements" from which there could be no derogation.

What remains for discussion in the Comprehensive Compact would merely be the implementing details for these "consensus points" and, notably, the deadline for effecting the contemplated changes to the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the "consensus points" found in the MOA-AD.Hence, it must be struck down as   unconstitutional .

A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the 1996 final peace agreement between the MNLF and the GRP is most instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two phases.  Phase Icovered a three-year transitional period involving the putting up of new administrative structures  through Executive Order, such as the Special Zone of Peace and Development (SZOPAD) and the Southern Philippines Council for Peace and Development (SPCPD), while Phase II covered the establishment of the new regional autonomous government through amendment or repeal of R.A. No. 6734, which was then the Organic Act of the ARMM.

The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-AD virtually guarantees that the "necessary changes to the legal framework" will be put in place, the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase II] shall be recommended by the GRP to Congress for incorporation in the amendatory or repealing law."

Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of the Philippines to change its Constitution in conformity thereto, on the ground that it may be considered either as a binding agreement under international law, or a unilateral declaration of the Philippine government to the international community that it would grant to the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in international law, however.

The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories. In addition, representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status of a binding international agreement had it been signed. An examination of the prevailing principles in international law, however, leads to the contrary conclusion.

The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the Lomé Accord case) of the Special Court of Sierra Leone is enlightening. The Lomé Accord was a peace agreement signed on July 7, 1999 between the Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel group with which the Sierra Leone Government had been in armed conflict for around eight years at the time of signing. There were non-contracting signatories to the agreement, among which were the Government of the Togolese Republic, the Economic Community of West African States, and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra Leone Government, another agreement was entered into by the UN and that Government whereby the Special Court of Sierra Leone was established. The sole purpose of the Special Court, an international court, was to try persons who bore the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30, 1996.

Among the stipulations of the Lomé Accord was a provision for the full pardon of the members of the RUF with respect to anything done by them in pursuit of their objectives as members of that organization since the conflict began.

In the Lomé Accord case, the Defence argued that the Accord created an internationally binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing, among other things, the participation of foreign dignitaries and international organizations in the finalization of that agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord is not a treaty and that it can only create binding obligations and rights between the parties in municipal law, not in international law. Hence, the Special Court held, it is ineffective in depriving an international court like it of jurisdiction.

"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and to argue with some degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact that in addition to the parties to the conflict, the document formalizing the settlement is signed by foreign heads of state or their representatives and representatives of international organizations, means the agreement of the parties is internationalized so as to create obligations in international law.

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40. Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the settlement, or persons or bodies under whose auspices the settlement took place but who are not at all parties to the conflict, are not contracting parties and who do not claim any obligation from the contracting parties or incur any obligation from the settlement.

41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no status of statehood and is to all intents and purposes a faction within the state. The non-contracting signatories of the Lomé Agreement were moral guarantors of the principle that, in the terms of Article XXXIV of the Agreement, "this peace agreement is implemented with integrity and in good faith by both parties". The moral guarantors assumed no legal obligation. It is recalled that the UN by its representative appended, presumably for avoidance of doubt, an understanding of the extent of the agreement to be implemented as not including certain international crimes.

42. An international agreement in the nature of a treaty must create rights and obligations regulated by international law so that a breach of its terms will be a breach determined under international law which will also provide principle means of enforcement. The Lomé Agreement created neither rights nor obligations capable of being regulated by international law. An agreement such as the Lomé Agreement which brings to an end an internal armed conflict no doubt creates a factual situation of restoration of peace that the international community acting through the Security Council may take note of. That, however, will not convert it to an international agreement which creates an obligation enforceable in international, as distinguished from municipal, law. A breach of the terms of such a peace agreement resulting in resumption of internal armed conflict or creating a threat to peace in the determination of the Security Council may indicate a reversal of the factual situation of peace to be visited with possible legal consequences arising from the new situation of conflict created. Such consequences such as action by the Security Council pursuant to Chapter VII arise from the situation and not from the agreement, nor from the obligation imposed by it. Such action cannot be regarded as a remedy for the breach. A peace agreement which settles an internal armed conflict cannot be ascribed the same status as one which settles an international armed conflict which, essentially, must be between two or more warring States. The Lomé Agreement cannot be characterised as an international instrument. x x x" (Emphasis, italics and underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and international organizations not parties to the Agreement would not have sufficed to vest in it a binding character under international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the Philippine State, binding under international law, that it would comply with all the stipulations stated therein, with the result that it would have to amend its Constitution accordingly regardless of the true will of the people. Cited as authority for this view is Australia v. France,181 also known as the Nuclear Tests Case, decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests in the South Pacific. France refused to appear in the case, but public statements from its President, and similar statements from other French officials including its Minister of Defence, that its 1974 series of atmospheric tests would be its last, persuaded the ICJ to dismiss the case.182 Those statements, the ICJ held, amounted to a legal undertaking addressed to the international community, which required no acceptance from other States for it to become effective.

Essential to the ICJ ruling is its finding that the French government intended to be bound to the international community in issuing its public statements, viz:

43. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a

legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.

44. Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound-the intention is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.

x x x x

51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The validity of these statements and their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States.  It is from the actual substance of these statements, and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced.  The objects of these statements are clear and they were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect.  The Court considers *270 that the President of the Republic, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the international community to which his words were addressed. x x x (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as a unilateral declaration only when the following conditions are present: the statements were clearly addressed to the international community, the state intended to be bound to that community by its statements, and that not to give legal effect to those statements would be detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitledBurkina Faso v. Mali,183 also known as the Case Concerning the Frontier Dispute. The public declaration subject of that case was a statement made by the President of Mali, in an interview by a foreign press agency, that Mali would abide by the decision to be issued by a commission of the Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso.

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French declaration subject thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States were not the only ones concerned at the possible continuance of atmospheric testing by the French Government, that Government's unilateral declarations had ‘conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests‘ (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those cases, the French Government could not express an intention to be bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each of the applicants without thereby jeopardizing its contention that its conduct was lawful. The circumstances of the present case are radically different. Here, there was nothing to hinder the Parties from manifesting an

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intention to accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis of reciprocity. Since no agreement of this kind was concluded between the Parties, the Chamber finds that there are no grounds to interpret the declaration made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications in regard to the present case. (Emphasis and underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound thereby to the international community as a whole or to any State, but only to the MILF. While there were States and international organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé Accord case, the mere fact that in addition to the parties to the conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the agreement is internationalized so as to create obligations in international law.

Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such commitments would not be detrimental to the security of international intercourse - to the trust and confidence essential in the relations among States.

In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina Faso wherein, as already discussed, the Mali President's statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that intention by formal agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to be legally bound to the international community, not just the MILF, and by an equally clear indication that the signatures of the participating states-representatives would constitute an acceptance of that commitment. Entering into such a formal agreement would not have resulted in a loss of face for the Philippine government before the international community, which was one of the difficulties that prevented the French Government from entering into a formal agreement with other countries. That the Philippine panel did not enter into such a formal agreement suggests that it had no intention to be bound to the international community. On that ground, the MOA-AD may   not be   considered a unilateral declaration under international law .

The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within a state, but in their brazen  willingness toguarantee that Congress and the sovereign Filipino people would give their imprimatur to their solution. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process.

The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in international law, is known as Jus Cogens.184 Respondents, however, may not preempt it in that decision.

SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court grants the petitioners, petitioners-in-intervention and intervening respondents the requisitelocus standi in keeping with the liberal stance adopted in David v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide an exception to the "moot and academic" principle in view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents' action in providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes.

The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution is insplendid symmetry with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial character of the agreement.

An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was envisioned to be a species of these public rights.

At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people's right to be consulted on relevant matters relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute

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does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny.

In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional , for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, respondents' act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective.

WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared contrary to law and the Constitution.

SO ORDERED.

Footnotes

18 Namely, Seth Frederick Jaloslos, Fernando Cabigon, Jr., Uldarico Mejorada II, Edionar Zamoras, Edgar Baguio, Cedric Adriatico, Felixberto Bolando, Joseph Brendo Ajero, Norbideiri Edding, Anecito Darunday, Angelica Carreon, and Luzviminda Torrino.

25 R.A. No. 6734, as amended by R.A. 9054 entitled An Act to Strengthen and Expand the organic act for the Autonomous Region in Muslim Mindanao, Amending for the purpose republic act no. 6734, entitled an act of providing for the autonomous region in muslim mindanao, as amended.

26 R.A. No. 8371, An act to recognize, protect and promote the rights of indigenous cultural communities/indigenous peoples, creating a national commission on indigenous peoples, establishing implementing mechanisms, appropriating funds therefor, and for other purposes, October 29, 1997.

27 Cesar Adib Majul, The General Nature of Islamic Law and its Application in the Philippines, lecture delivered as part of the Ricardo Paras Lectures, a series jointly sponsored by the Commission on Bar Integration of the Supreme Court, the Integrated Bar of the Philippines and the U.P. Law Center, September 24, 1977.

28 Ibid., vide M.A. Muqtedar Khan Ph.D., immigrant American Muslims and the Moral Dilemmas of Citizenship, http://www.islamfortoday.com/khan04.htm, visited on September 18, 2008, and Syed Shahabuddin, Muslim World and the contemporary Ijma' on rules of governance - ii,http://www.milligazette.com/Archives/2004/01-15May04-Print-Edition/0105200471.htm, visited on September 18, 2008.

31 A traditional Muslim historical account of the acts of Shariff Kabungsuwan is quoted by historian Cesar Adib Majul in his book, Muslims in the Philippines (1973):

After a time it came to pass that Mamalu, who was the chief man next to Kabungsuwan, journeyed to Cotabato. He found there that many of the people had ceased to regard the teachings of the Koran and had fallen into evil ways. Mamamlu sent to Kabungsuwan word of these things.

Kabungsuwan with a portion of his warriors went from Malabang to Cotabato and found that the word sent to him by Mamamlu was true. Then he assembled together all the people. Those of them, who had done evilly and disregarded the teachings of the Koran thenceforth, he drove out of the town into the hills, with their wives and children.

Those wicked one who were thus cast out were the beginnings of the tribes of the Tirurais and Manobos, who live to the east of Cotabato in the country into which their evil forefathers were driven. And even to this day they worship not God; neither do they obey the teachings of the Koran . . . But the people of Kabungsuwan, who regarded the teachings of the Koran and lived in fear of God, prospered and increased, and we Moros of today are their descendants. (Citation omitted, emphasis supplied).

35 Francisco L. Gonzales, Sultans of a Violent Land, in Rebels, Warlords and Ulama: A Reader on Muslim Separatism and the War in Southern Philippines 99, 103 (1999).

36 The Charter of the Assembly of First Nations, the leading advocacy group for the indigenous peoples of Canada, adopted in 1985, begins thus:

"WE THE CHIEFS OF THE INDIAN FIRST NATIONS IN CANADA HAVING DECLARED: THAT our peoples are the original peoples of this land having been put here by the Creator; x x x."

114 In Legaspi v. Civil Service Commission, supra note 109 at 541, it was held that:

In determining whether or not a particular information is of public concern there is no rigid test which can be applied. `Public concern' like `public interest' is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.

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123 Vide V Record, Constitutional Commission 26-28 (September 24, 1986) which is replete with such descriptive phrase used by Commissioner Blas Ople.

129 V Record, Constitutional Commission 28-29 (September 24, 1986). The phrase "safeguards on national interest" that may be provided by law was subsequently replaced by "reasonable conditions," as proposed by Commissioner Davide [vide V Record, Constitutional Commission 30 (September 24, 1986)].

130 In Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235, 331, the Court stated:

x x x The duty to disclose covers only transactions involving public interest, while the duty to allow access has a broader scope of information which embraces not only transactions involving public interest, but any matter contained in official communications and public documents of the government agency. (Underscoring supplied)

139 Cf. Garcia v. Board of Investments, G.R. No. 88637, September 7, 1989, 177 SCRA 374, 382-384 where it was held that the Omnibus Investment Code of 1987 mandates the holding of consultations with affected communities, whenever necessary, on the acceptability of locating the registered enterprise within the community.

140 In their Memorandum, respondents made allegations purporting to show that consultations were conducted on August 30, 2001 in Marawi City and Iligan City, on September 20, 2001 in Midsayap, Cotabato, and on January 18-19, 2002 in Metro Manila. (Memorandum of September 24, 2008, p. 13)

[G.R. No. 161434.  March 3, 2004]MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs. The COMMISSION

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

D E C I S I O N

VITUG, J.:

Citizenship is a treasured right conferred on those whom the state believes are deserving of the privilege.  It is a “precious heritage, as well as an inestimable acquisition,” [1] that cannot be taken lightly by anyone - either by those who enjoy it or by those who dispute it.

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

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

Antecedent Case Settings

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

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

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

On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant ones being - a) a certification issued by Estrella M. Domingo of the Archives Division of the National Archives that there appeared to be no available information regarding the birth of Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the Archives Division of the National Archives that no available information about the marriage of Allan F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage contract between Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said office during the period of from 1900 until May 1946 were totally destroyed during World War II.

On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit.   Three days later, or on 26 January 2004, Fornier filed his motion for reconsideration.  The motion was denied on 06 February 2004 by the COMELEC en banc.  On 10 February 2004, petitioner assailed the decision of the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure.   The petition, docketed G. R. No. 161824, likewise prayed for a temporary restraining order, a writ of preliminary injunction or any other resolution that would stay the finality and/or execution of the COMELEC resolutions.

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

Jurisdiction of the Court

In G. R. No. 161824

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

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

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

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

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

Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per Rule 64[2] in an action for certiorari under Rule 65[3] of the Revised Rules of Civil Procedure.  Section 7, Article IX, of the 1987 Constitution also reads –

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

Additionally, Section 1,  Article VIII, of the same Constitution provides that judicial power is vested in one Supreme Court and in such lower courts as may be established by law which power “includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

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

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

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

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

The provision is an innovation of the 1987 Constitution.  The omission in the 1935 and the 1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas,[4] as “not (being) justiciable” controversies or disputes involving contests on the elections, returns and qualifications of the President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-Elect of the Philippines and Providing for the Manner of Hearing the Same."  Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of the tribunal.  Although the subsequent adoption of the parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution.

Ordinary usage would characterize a "contest" in reference to a post-election scenario.  Election contests consist of either an election protest or a quo warranto which, although two distinct remedies, would have one objective in view, i.e., to dislodge the winning candidate from office.  A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this premise -

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

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

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

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

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

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

The Citizenship Issue

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

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

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

The Local Setting - from SpanishTimes to the Present

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

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

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

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

“(a)    Persons born in Spanish territory,

“(b)    Children of a Spanish father or mother, even if they were born outside of Spain,

“(c)    Foreigners who have obtained naturalization papers,

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

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

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

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

Thus –

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

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

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

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

Under the organic act, a “citizen of the Philippines” was one who was an inhabitant of the Philippines, and a Spanish subject on the 11th day of April 1899.  The term “inhabitant” was taken to include 1)  a native-born inhabitant, 2)  an inhabitant who was a native of Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11 April 1899.[24]

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

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

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

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

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

Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that date, not a citizen of some other country.

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

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

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

“(2)    Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands.

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

“(4)    Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship.

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

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

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

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

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

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

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

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

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

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

Section I, Article IV, 1987 Constitution now provides:

“The following are citizens of the Philippines:

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

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

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

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

The Case Of FPJ

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

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

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

The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935 Constitution.  Through its history, four modes of acquiring citizenship - naturalization, jus soli, res judicata and jus sanguinis[28] – had been in vogue.  Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a “natural-born” citizen of the Philippines.  Jus soli, per Roa vs. Collector of Customs[29] (1912), did not last long.  With the adoption of the 1935 Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor[30] (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth.

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

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

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

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

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

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

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

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

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

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

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

“x x x                                     x x x                             x x x

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

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

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

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

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

Proof of Paternity and Filiation Under Civil Law.

Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to the father [or mother]) or paternity (relationship or civil status of the father to the child) of an illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules under civil law must be used.

Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment was required to establish filiation or paternity.  Acknowledgment was either judicial (compulsory) or voluntary.  Judicial or compulsory acknowledgment was possible only if done during the lifetime of the putative parent; voluntary

acknowledgment could only be had in a record of birth, a will, or a public document.[32] Complementary to the new code was Act No. 3753 or the Civil Registry Law expressing in Section 5 thereof, that -

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

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

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

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

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

Let us leave it at that for the moment.

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

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

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

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

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

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“(2)    An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

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

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

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

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

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

“x x x             x x x                 x x x.

“Art. 175.  Illegitimate children may establish their illegitimate filiation in the same way and on the same, evidence as legitimate children.

“The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent.”

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

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

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

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

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

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

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

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

The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil Code, stating that -

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

that explains the need to incorporate in the code a reiteration of the Constitutional provisions on citizenship.  Similarly, citizenship is significant in civil relationships found in different parts of the Civil Code,[39]such as on successional rights and family relations.[40]  In adoption, for instance, an adopted child would be considered the child of his adoptive parents and accorded the same rights as their legitimate child but such legal fiction extended only to define his rights under civil law[41] and not his political status.

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

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

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

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

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

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

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

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

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

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

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

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

“x x x                x x x                 x x x

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

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

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

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

“x x x                x x x                 x x x

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

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

Ruby Kelley Mangahas

Declarant

DNA Testing

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

"Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available.  Fortunately, we have now the facility and expertise in using DNA test for identification and parentage

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

Petitioner’s Argument For Jurisprudential Conclusiveness

Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have transmitted his citizenship to respondent FPJ, the latter being an illegitimate child.  According to petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted marriage with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley bigamous and respondent FPJ an illegitimate child.   The veracity of the supposed certificate of marriage between Allan F. Poe and Paulita Gomez could be most doubtful at best.   But the documentary evidence introduced by no less than respondent himself, consisting of a birth certificate of respondent and a marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a Filipino father and an American mother who were married to each other a year later, or on 16 September 1940.   Birth to unmarried parents would make FPJ an illegitimate child.  Petitioner contended that as an illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelley, an American citizen, basing his stand on the ruling of this Court in Morano vs. Vivo,[43] citing Chiongbian vs. de Leon[44] and Serra vs. Republic.[45]

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

"We must analyze these cases and ask what the lis mota was in each of them.  If the pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement would be a decision constituting doctrine under the rule ofstare decisis.  But if the pronouncement was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter dictum which did not establish doctrine.  I therefore invite the Court to look closely into these cases.

“First, Morano vs. Vivo.  The case was not about an illegitimate child of a Filipino father.  It was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and a Chinese father.  The issue was whether the stepson followed the naturalization of the stepfather.  Nothing about jus sanguinis there.  The stepson did not have the blood of the naturalized stepfather.

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

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

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

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

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“x x x             x x x                 x x x

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

“The doctrine on constitutionally allowable distinctions was established long ago by People vs. Cayat.[47]  I would grant that the distinction between legitimate children and illegitimate children rests on real differences.  x x x  But real differences alone do not justify invidious distinction.  Real differences may justify distinction for one purpose but not for another purpose.

“x x x What is the relevance of legitimacy or illegitimacy to elective public service?  What possible state interest can there be for disqualifying an illegitimate child from becoming a public officer.  It was not the fault of the child that his parents had illicit liaison.  Why deprive the child of the fullness of political rights for no fault of his own?  To disqualify an illegitimate child from holding an important public office is to punish him for the indiscretion of his parents.  There is neither justice nor rationality in that. And if there is neither justice nor rationality in the distinction, then the distinction transgresses the equal protection clause and must be reprobated.”

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

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

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

In Sum –

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

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

(3)            In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the COMELEC, it is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking after the Filipino citizenship of his putative father.  Any conclusion on the Filipino citizenship of Lorenzo

Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou would have benefited from the “en masse Filipinization”  that the Philippine Bill had effected in 1902.  That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ.   The 1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate.

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

WHEREFORE, the Court RESOLVES to DISMISS –

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

2.  G. R. No. 161824, entitled “Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.,” for failure to show grave abuse of discretion on the part of respondent Commission on Elections  in dismissing the petition in SPA No. 04-003.

No Costs.

SO ORDERED.

 BAR MATTER No. 914 October 1, 1999RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR,vs.VICENTE D. CHING, applicant.

R E S O L U T I O N

KAPUNAN, J.:

Can a legitimate child born under the 1935 Constitution of a Filipino mother and an alien father validly elect Philippine citizenship fourteen (14) years after he has reached the age of majority? This is the question sought to be resolved in the present case involving the application for admission to the Philippine Bar of Vicente D. Ching.

The facts of this case are as follows:

Vicente D. Ching, the legitimate son of the spouses Tat Ching, a Chinese citizen, and Prescila A. Dulay, a Filipino, was born in Francia West, Tubao, La Union on 11 April 1964. Since his birth, Ching has resided in the Philippines.

On 17 July 1998, Ching, after having completed a Bachelor of Laws course at the St. Louis University in Baguio City, filed an application to take the 1998 Bar Examinations. In a Resolution of this Court, dated 1 September 1998, he was allowed to take the Bar Examinations, subject to the condition that he must submit to the Court proof of his Philippine citizenship.

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In compliance with the above resolution, Ching submitted on 18 November 1998, the following documents:

1. Certification, dated 9 June 1986, issued by the Board of Accountancy of the Professional Regulations Commission showing that Ching is a certified public accountant;

2. Voter Certification, dated 14 June 1997, issued by Elizabeth B. Cerezo, Election Officer of the Commission on Elections (COMELEC) in Tubao La Union showing that Ching is a registered voter of the said place; and

3. Certification, dated 12 October 1998, also issued by Elizabeth B. Cerezo, showing that Ching was elected as a member of the Sangguniang Bayan of Tubao, La Union during the 12 May 1992 synchronized elections.

On 5 April 1999, the results of the 1998 Bar Examinations were released and Ching was one of the successful Bar examinees. The oath-taking of the successful Bar examinees was scheduled on 5 May 1999. However, because of the questionable status of Ching's citizenship, he was not allowed to take his oath. Pursuant to the resolution of this Court, dated 20 April 1999, he was required to submit further proof of his citizenship. In the same resolution, the Office of the Solicitor General (OSG) was required to file a comment on Ching's petition for admission to the bar and on the documents evidencing his Philippine citizenship.

The OSG filed its comment on 8 July 1999, stating that Ching, being the "legitimate child of a Chinese father and a Filipino mother born under the 1935 Constitution was a Chinese citizen and continued to be so, unless upon reaching the age of majority he elected Philippine citizenship" 1 in strict compliance with the provisions of Commonwealth Act No. 625 entitled "An Act Providing for the Manner in which the Option to Elect Philippine Citizenship shall be Declared by a Person Whose Mother is a Filipino Citizen." The OSG adds that "(w)hat he acquired at best was only an inchoate Philippine citizenship which he could perfect by election upon reaching the age of majority." 2 In this regard, the OSG clarifies that "two (2) conditions must concur in order that the election of Philippine citizenship may be effective, namely: (a) the mother of the person making the election must be a citizen of the Philippines; and (b) said election must be made upon reaching the age of majority." 3 The OSG then explains the meaning of the phrase "upon reaching the age of majority:"

The clause "upon reaching the age of majority" has been construed to mean a reasonable time after reaching the age of majority which had been interpreted by the Secretary of Justice to be three (3) years (VELAYO, supra at p. 51 citing Op., Sec. of Justice No. 70, s. 1940, Feb. 27, 1940). Said period may be extended under certain circumstances, as when a (sic) person concerned has always considered himself a Filipino (ibid., citing Op. Nos. 355 and 422, s. 1955; 3, 12, 46, 86 and 97, s. 1953). But in Cuenco, it was held that an election done after over seven (7) years was not made within a reasonable time.

In conclusion, the OSG points out that Ching has not formally elected Philippine citizenship and, if ever he does, it would already be beyond the "reasonable time" allowed by present jurisprudence. However, due to the peculiar circumstances surrounding Ching's case, the OSG recommends the relaxation of the standing rule on the construction of the phrase "reasonable period" and the allowance of Ching to elect Philippine citizenship in accordance with C.A. No. 625 prior to taking his oath as a member of the Philippine Bar.

On 27 July 1999, Ching filed a Manifestation, attaching therewith his Affidavit of Election of Philippine Citizenship and his Oath of Allegiance, both dated 15 July 1999. In his Manifestation, Ching states:

1. I have always considered myself as a Filipino;

2. I was registered as a Filipino and consistently declared myself as one in my school records and other official documents;

3. I am practicing a profession (Certified Public Accountant) reserved for Filipino citizens;

4. I participated in electoral process[es] since the time I was eligible to vote;

5. I had served the people of Tubao, La Union as a member of the Sangguniang Bayan from 1992 to 1995;

6. I elected Philippine citizenship on July 15, 1999 in accordance with Commonwealth Act No. 625;

7. My election was expressed in a statement signed and sworn to by me before a notary public;

8. I accompanied my election of Philippine citizenship with the oath of allegiance to the Constitution and the Government of the Philippines;

9. I filed my election of Philippine citizenship and my oath of allegiance to (sic) the Civil Registrar of Tubao La Union, and

10. I paid the amount of TEN PESOS (Ps. 10.00) as filing fees.

Since Ching has already elected Philippine citizenship on 15 July 1999, the question raised is whether he has elected Philippine citizenship within a "reasonable time." In the affirmative, whether his citizenship by election retroacted to the time he took the bar examination.

When Ching was born in 1964, the governing charter was the 1935 Constitution. Under Article IV, Section 1(3) of the 1935 Constitution, the citizenship of a legitimate child born of a Filipino mother and an alien father followed the citizenship of the father, unless, upon reaching the age of majority, the child elected Philippine citizenship. 4 This right to elect Philippine citizenship was recognized in the 1973 Constitution when it provided that "(t)hose who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five" are citizens of the Philippines. 5Likewise, this recognition by the 1973 Constitution was carried over to the 1987 Constitution which states that "(t)hose born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority" are Philippine citizens.  6 It should be noted, however, that the 1973 and 1987 Constitutional provisions on the election of Philippine citizenship should not be understood as having a curative effect on any irregularity in the acquisition of citizenship for those covered by the 1935 Constitution. 7 If the citizenship of a person was subject to challenge under the old charter, it remains subject to challenge under the new charter even if the judicial challenge had not been commenced before the effectivity of the new Constitution. 8

C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of the 1935 Constitution, prescribes the procedure that should be followed in order to make a valid election of Philippine citizenship. Under Section 1 thereof, legitimate children born of Filipino mothers may elect Philippine citizenship by expressing such intention "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."

However, the 1935 Constitution and C.A. No. 625 did not prescribe a time period within which the election of Philippine citizenship should be made. The 1935 Charter only provides that the election should be made "upon reaching the age of majority." The age of majority then commenced upon reaching twenty-one (21) years. 9 In the opinions of the Secretary of Justice on cases involving the validity of election of Philippine citizenship, this dilemma was resolved by basing the time period on the decisions of this Court prior to the effectivity of the 1935 Constitution. In these decisions, the proper period for electing Philippine citizenship was, in turn, based on the pronouncements of the Department of State of the United States Government to the effect that the election should be made within a "reasonable time" after attaining the age of majority.  10 The phrase "reasonable time" has been interpreted to mean that the election should be made within three (3) years from reaching the age ofmajority. 11 However, we held in Cuenco vs. Secretary of Justice, 12 that the three (3) year period is not an inflexible rule. We said:

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It is true that this clause has been construed to mean a reasonable period after reaching the age of majority, and that the Secretary of Justice has ruled that three (3) years is the reasonable time to elect Philippine citizenship under the constitutional provision adverted to above, which period may be extended under certain circumstances, as when the person concerned has always considered himself a Filipino. 13

However, we cautioned in Cuenco that the extension of the option to elect Philippine citizenship is not indefinite:

Regardless of the foregoing, petitioner was born on February 16, 1923. He became of age on February 16, 1944. His election of citizenship was made on May 15, 1951, when he was over twenty-eight (28) years of age, or over seven (7) years after he had reached the age of majority. It is clear that said election has not been made "upon reaching the age of majority." 14

In the present case, Ching, having been born on 11 April 1964, was already thirty-five (35) years old when he complied with the requirements of C.A. No. 625 on 15 June 1999, or over fourteen (14) years after he had reached the age of majority. Based on the interpretation of the phrase "upon reaching the age of majority," Ching's election was clearly beyond, by any reasonable yardstick, the allowable period within which to exercise the privilege. It should be stated, in this connection, that the special circumstances invoked by Ching, i.e., his continuous and uninterrupted stay in the Philippines and his being a certified public accountant, a registered voter and a former elected public official, cannot vest in him Philippine citizenship as the law specifically lays down the requirements for acquisition of Philippine citizenship by election.

Definitely, the so-called special circumstances cannot constitute what Ching erroneously labels as informal election of citizenship. Ching cannot find a refuge in the case of In re: Florencio Mallare, 15the pertinent portion of which reads:

And even assuming arguendo that Ana Mallare were (sic) legally married to an alien, Esteban's exercise of the right of suffrage when he came of age, constitutes a positive act of election of Philippine citizenship. It has been established that Esteban Mallare was a registered voter as of April 14, 1928, and that as early as 1925 (when he was about 22 years old), Esteban was already participating in the elections and campaigning for certain candidate[s]. These acts are sufficient to show his preference for Philippine citizenship. 16

Ching's reliance on Mallare is misplaced. The facts and circumstances obtaining therein are very different from those in the present case, thus, negating its applicability. First, Esteban Mallare was born before the effectivity of the 1935 Constitution and the enactment of C.A. No. 625. Hence, the requirements and procedures prescribed under the 1935 Constitution and C.A. No. 625 for electing Philippine citizenship would not be applicable to him. Second, the ruling in Mallare was an obiter since, as correctly pointed out by the OSG, it was not necessary for Esteban Mallare to elect Philippine citizenship because he was already a Filipino, he being a natural child of a Filipino mother. In this regard, the Court stated:

Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a Filipino, and no other act would be necessary to confer on him all the rights and privileges attached to Philippine citizenship (U.S. vs. Ong Tianse, 29 Phil. 332; Santos Co vs. Government of the Philippine Islands, 42 Phil. 543, Serra vs. Republic, L-4223, May 12, 1952, Sy Quimsuan vs. Republic, L-4693, Feb. 16, 1953; Pitallano vs. Republic, L-5111, June 28, 1954). Neither could any act be taken on the erroneous belief that he is a non-filipino divest him of the citizenship privileges to which he is rightfully entitled. 17

The ruling in Mallare was reiterated and further elaborated in Co vs. Electoral Tribunal of the House of Representatives, 18 where we held:

We have jurisprudence that defines "election" as both a formal and an informal process.

In the case of In re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the exercise of the right of suffrage and the participation in election exercises constitute a positive act of election of Philippine citizenship. In the exact pronouncement of the Court, we held:

Esteban's exercise of the right of suffrage when he came of age constitutes a positive act of Philippine citizenship. (p. 52: emphasis supplied)

The private respondent did more than merely exercise his right of suffrage. He has established his life here in the Philippines.

For those in the peculiar situation of the respondent who cannot be excepted to have elected Philippine citizenship as they were already citizens, we apply the In Re Mallare rule.

xxx xxx xxx

The filing of sworn statement or formal declaration is a requirement for those who still have to elect citizenship. For those already Filipinos when the time to elect came up, there are acts of deliberate choice which cannot be less binding . Entering a profession open only to Filipinos, serving in public office where citizenship is a qualification, voting during election time, running for public office, and other categorical acts of similar nature are themselves formal manifestations for these persons.

An election of Philippine citizenship presupposes that the person electing is an alien . Or his status is doubtful because he is a national of two countries. There is no doubt in this case about Mr. Ong's being a Filipino when he turned twenty-one (21).

We repeat that any election of Philippine citizenship on the part of the private respondent would not only have been superfluous but it would also have resulted in an absurdity. How can a Filipino citizen elect Philippine citizenship? 19

The Court, like the OSG, is sympathetic with the plight of Ching. However, even if we consider the special circumstances in the life of Ching like his having lived in the Philippines all his life and his consistent belief that he is a Filipino, controlling statutes and jurisprudence constrain us to disagree with the recommendation of the OSG. Consequently, we hold that Ching failed to validly elect Philippine citizenship. The span of fourteen (14) years that lapsed from the time he reached the age of majority until he finally expressed his intention to elect Philippine citizenship is clearly way beyond the contemplation of the requirement of electing "upon reaching the age of majority." Moreover, Ching has offered no reason why he delayed his election of Philippine citizenship. The prescribed procedure in electing Philippine citizenship is certainly not a tedious and painstaking process. All that is required of the elector is to execute an affidavit of election of Philippine citizenship and, thereafter, file the same with the nearest civil registry. Ching's unreasonable and unexplained delay in making his election cannot be simply glossed over.

Philippine citizenship can never be treated like a commodity that can be claimed when needed and suppressed when convenient. 20 One who is privileged to elect Philippine citizenship has only an inchoate right to such citizenship. As such, he should avail of the right with fervor, enthusiasm and promptitude. Sadly, in this case, Ching slept on his opportunity to elect Philippine citizenship and, as a result. this golden privilege slipped away from his grasp.

IN VIEW OF THE FOREGOING, the Court Resolves to DENY Vicente D. Ching's application for admission to the Philippine Bar.

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SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Footnote:

4 Sec. 1, Art. IV of the 1935 Constitution reads:

Sec. 1. The following are citizens of the Philippines:

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

(2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office;

(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.

G.R. No. 142840      May 7, 2001

ANTONIO BENGSON III, petitioner, vs.HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C. CRUZ, respondents.

CONCURRING OPINION

DISSENTING OPINION

KAPUNAN, J.:

The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the constitutional requirement that "no person shall be a Member of the House of Representative unless he is a natural-born citizen."1

Respondent Cruz was a natural-born citizen of the Philippines. He was born in San Clemente, Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then applicable was the 1935 Constitution.2

On November 5, 1985, however, respondent Cruz enlisted in the United States Marine Corps and without the consent of the Republic of the Philippines, took an oath of allegiance to the United States. As a Consequence, he lost his Filipino citizenship for under Commonwealth Act No. 63, section 1(4), a Filipino citizen may lose his citizenship by, among other, "rendering service to or accepting commission in the armed forces of a foreign country." Said provision of law reads:

SECTION 1. How citizenship may be lost. – A Filipino citizen may lose his citizenship in any of the following ways and/or events:

(4) By rendering services to, or accepting commission in, the armed 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 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 Republic of the Philippines during the period of his service to, or commission in, the armed forces of said 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 politically entitled to the full enjoyment of his civil political rights as a Filipino citizen x x x.

Whatever doubt that remained regarding his loss of Philippine citizenship was erased by his naturalization as a U.S. citizen on June 5, 1990, in connection with his service in the U.S. Marine Corps.

On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through repatriation under Republic Act No. 2630.3 He ran for and was elected as the Representative of the Second District of Pangasinan in the May 11, 1998 elections. He won by a convincing margin of 26,671 votes over petitioner Antonio Bengson III, who was then running for reelection.1âwphi1.nêt

Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with respondent House of Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was not qualified to become a member of the House of Representatives since he is not a natural-born citizen as required under Article VI, section 6 of the Constitution.4

On March 2, 2000, the HRET rendered its decision5 dismissing the petition for quo warranto and declaring Cruz the duly elected Representative of the Second District of Pangasinan in the May 1998 elections. The HRET likewise denied petitioner's motion for reconsideration of the decision in its resolution dated April 27, 2000.6

Petitioner thus filed the present petition for certiorari assailing the HRET's decision on the following grounds:

1. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it ruled that private respondent is a natural-born citizen of the Philippines despite the fact that he had ceased being such in view of the loss and renunciation of such citizenship on his part.

2. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it considered private respondent as a citizen of the Philippines despite the fact he did not validly acquire his Philippine citizenship.

3. Assuming that private respondent's acquisition of Philippine citizenship was invalid, the HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it dismissed the petition  despite the fact that such reacquisition could not legally and constitutionally restore his natural-born status.7

The issue now before us is whether respondent Cruz, a natural-born Filipino who became an American citizen, can still be considered a natural-born Filipino upon his reacquisition of Philippine citizenship.

Petitioner asserts that respondent Cruz may no longer be considered a natural-born Filipino since he lost h is Philippine citizenship when he swore allegiance to the United States in 1995, and had to reacquire the same by repatriation. He insists that Article citizens are those who are from birth with out having to perform any act to acquire or perfect such citizenship.

Respondent on the other hand contends that he reacquired his status as natural-born citizen when he was repatriated since the phrase "from birth" in Article IV, Section 2 refers to the innate, inherent and inborn characteristic of being a natural-born citizen.

The petition is without merit.

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The 1987 Constitution enumerates who are Filipino citizens as follow:

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

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

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

(4) Those who are naturalized in accordance with law.8

There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways 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.9

As defined in the same Constitution, natural-born citizens "are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citezenship."10

On the other hand, naturalized citizens are those who have become Filipino citizens through naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act No. 530.11 To be naturalized, an applicant has to prove that he possesses all the qualifications12 and none of the disqualification13 provided by law to become a Filipino citizen. The decision granting Philippine citizenship becomes executory only after two (2) years from its promulgation when the court is satisfied that during the intervening period, the applicant has (1) not left the Philippines; (2) has dedicated himself to a lawful calling or profession; (3) has not been convicted of any offense or violation of Government promulgated rules; or (4) committed any act prejudicial to the interest of the nation or contrary to any Government announced policies.14

Filipino citizens who have lost their citizenship may however reacquire the same in the manner provided by law. Commonwealth Act. No. (C.A. No. 63), enumerates the three modes by which Philippine citizenship may be reacquired by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress.15

Naturalization is mode for both acquisition and reacquisition of Philippine citizenship. As a mode of initially acquiring Philippine citizenship, naturalization is governed by Commonwealth Act No. 473, as amended. On the other hand, naturalization as a mode for reacquiring Philippine citizenship is governed by Commonwealth Act No. 63.16 Under this law, a former Filipino citizen who wishes to reacquire Philippine citizenship must possess certain qualifications17 and none of the disqualification mentioned in Section 4 of C.A. 473.18

Repatriation, on the other hand, may be had under various statutes by those who lost their citizenship due to: (1) desertion of the armed forces;19 services in the armed forces of the allied forces in World War II; 20 (3) service in the Armed Forces of the United States at any other time,21 (4) marriage of a Filipino woman to an alien;22 and (5) political economic necessity.23

As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking of an oath of allegiance to the Republic of the Philippine and registering said oath in the Local Civil Registry of the place where the person concerned resides or last resided.

In Angat v. Republic,24 we held:

xxx. Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the person desiring to reacquire Philippine citizenship would not even be required to file a petition in court, and all that he had to do was to take an oath of allegiance to the Republic of the Philippines and to register that fact with the civil registry in the place of his residence or where he had last resided in the Philippines. [Italics in the original.25

Moreover, repatriation results in the recovery of the original nationality.26 This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino.

In respondent Cruz's case, he lost his Filipino citizenship when he rendered service in the Armed Forces of the United States. However, he subsequently reacquired Philippine citizenship under R.A. No. 2630, which provides:

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 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.

Having thus taken the required oath of allegiance to the Republic and having registered the same in the Civil Registry of Magantarem, Pangasinan in accordance with the aforecited provision, respondent Cruz is deemed to have recovered his original status as a natural-born citizen, a status which he acquired at birth as the son of a Filipino father. 27 It bears stressing that the act of repatriation allows him to recover, or return to, his original status before he lost his Philippine citizenship.

Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had to perform an act to regain his citizenship is untenable. As correctly explained by the HRET in its decision, the term "natural-born citizen" was first defined in Article III, Section 4 of the 1973 Constitution as follows:

Sec. 4. 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.

Two requisites must concur for a person to be considered as such: (1) a person must be a Filipino citizen birth and (2) he does not have to perform any act to obtain or perfect his Philippine citizenship.

Under the 1973 Constitution definition, there were two categories of Filipino citizens which were not considered natural-born: (1) those who were naturalized and (2) those born before January 17, 1973,38 of Filipino mothers who, upon reaching the age of majority, elected Philippine citizenship. Those "naturalized citizens" were not considered natural-born obviously because they were not Filipino at birth and had to perform an act to acquire Philippine citizenship. Those born of Filipino mothers before the effectively of the 1973 Constitution were likewise not considered natural-born because they also had to perform an act to perfect their Philippines citizenship.

The present Constitution, however, now consider those born of Filipino mothers before the effectivity of the 1973 Constitution and who elected Philippine citizenship upon reaching the majority age as natural-born. After defining who re natural-born citizens, Section 2 of Article IV adds a sentence: "Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens." Consequently, only naturalized Filipinos are considered not natural-born citizens. It is apparent from the enumeration of who are citizens under the present Constitution that there are only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily is natural-born Filipino. Noteworthy is the absence in said enumeration of a separate category for persons who, after losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-born or naturalized depending on the reasons for the loss of their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go through naturalization proceeding in order to reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House of Representatives.

A final point. The HRET has been empowered by the Constitution to be the "sole judge" of all contests relating to the election, returns, and qualifications of the members of the House.29 The Court's jurisdiction over the HRET is merely to check "whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of the latter. 30 In the absence thereof, there is no occasion for the Court to exercise its corrective power and annul the decision of the HRET nor to substitute the Court's judgement for that of the latter for the simple reason that it is not the office of a petition for certiorari to inquire into the correctness of the assailed decision.31 There is no such showing of grave abuse of discretion in this case.

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.

Footnote

1 1987 Constitution, Article IV, Section 6.

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2 Article IV, Section 1 of the 1935 Constitution states:

The following are citizens of the Philippines:

1) Those who are citizens of the Philippine Islands at the time of the adoption of the 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, elected Philippine citizenship; and

5) Those who are naturalized in accordance with law.

3 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 (1960).

4 Said provision reads:

No person shall be a member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election.

11 During the period under Martial Law declared by President Ferdinand E. Marcos, thousands of aliens were naturalized by Presidential Decree where the screening of the applicants was undertaken by special committee under Letter of Instructions No. 270, dated April 11,1975, as amended.

12 Section 2, Act 473 provides the following qualifications:

(a) He must be not less than 21 years of age on the day of the hearing of the petition;

(b) He must have resided in the Philippines for a continuous period of not less than ten years;

(c) He must be of good moral character and believes in the principles underlying the Philippine Constitution, and must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relation with the constituted government and well as with the community in which he is living;

(d) He must own real estate in the Philippines worth not less than five thousand pesos, Philippine currency, or must have some known lucrative trade, profession, or lawful occupation;

(e) He must be able to speak and write English or Spanish and any of the principal languages; and

(f) He must have enrolled his minor children of school age, in any of the public schools or private schools recognized by the Bureau of Private Schools of the Philippines where Philippine history, government and civic are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him prior to the learning of his petition for naturalization as Philippine citizen.

13 Section 4, Act 473, provides the following disqualifications:

(a) He must not be opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments;

(b) He must not be defending or teaching the necessity or propriety of violence, personal assault, or assassination for the success and predominance of their ideas;

(c) He must not be polygamist or believer in the practice of polygamy;

(d) He must not have been convicted of any crime involving moral turpitude;

(e) He must not be suffering from mental alienation or incurable contagious diseases;

(f) He must have, during the period of his residence in the Philippines (of not less than six months before filing his application), mingled socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions and ideal s of the Filipinos;

(g) He must not be a citizen or subject of a nation with whom the Philippines is at war, during the period of such war;

(h) He must not be citizen or subject of foreign country whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof.

15 Section 2, C.A. No. 63.

16 An Act Providing for the Ways in Which Philippine Citizenship May Be Lost or Reacquired (1936).

17 1. The applicant must have lost his original Philippine citizenship by naturalization in a foreign country or by express renunciation of his citizenship (Sec. 1 [1] and [2], C.A. No. 63);

2. He must be at least twenty-one years of age and shall have resided in the Philippines at least six months before he applies for naturalization (Sec. 3[1], C.A. No. 63);

3. He must have conducted himself in a proper and irreproachable manner during the entire period of his residence (of at least six months prior to the filing of the application) in the Philippines, in his relations with the constituted government as well as with the community in which he is living (Sec. 3[2], C.A. No. 63);

4. He subscribes to an oath declaring his intention to renounce absolutely and perpetually al faith and allegiance to the foreign authority, state or sovereignty of which he was a citizen or subject (Sec. 3[3], C.A. No. 63).

29 Article IV, Section 17 of the 1987 Constitution provides thus:

Sec. 17. The Senate and the House of Representative 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 of 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.

CONCURRING OPINION

EN BANCG.R. No. 142840      May 7, 2001ANTONIO BENGSON III, petitioner, vs.HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C. CRUZ, respondents.

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CONCURRING OPINION

PANGANIBAN, J.:

I concur in the ponencia of Mr. Justice Santiago M. Kapunan, holding that the House Electoral Tribunal did not gravely abuse its discretion in ruling that Private Respondent Teodoro C. Cruz remains a  natural-born Filipino citizen and is eligible to continue being a member of Congress. Let me just add a few points.

The Facts in Brief

It is undisputed that Congressman Cruz was born on April 27, 1960 in San Clemente, Tarlac, to Filipino parents. He was, therefore, a Filipino citizen, pursuant to Section 1 (2),1 Article IV of the Constitution. Furthermore, not having done any act to acquire or perfect the Philippine citizenship he obtained from birth, he was a natural-born Filipino citizen, in accordance with Section 22 of the same Article IV.

It is not disputed either that private respondent rendered military service to the United States Marine Corps from November 1958 to October 1993. On June 5, 1990, he was naturalized as an American citizen, in connection with his US military service. Consequently, under Section 1 (4)3 of CA No. 63, he lost his Philippine citizenship.

Upon his discharge from the US Marine Corps, private respondent returned to the Philippines and decided to regain his Filipino citizenship. Thus, on March 17, 1994, availing himself of the benefits of Republic Act (RA) No. 2630, entitled "An Act Providing for Reacquisition of Philippine Citizenship by Persons Who Lost Such by Rendering Service to, or Accepting Commission in, the Armed Force of the United States,"4 Cruz took his oath of allegiance to the Republic and registered the same with the Local Civil Registry of Mangatarem, Pangasinan. On the same day, he also executed an Affidavit of Reacquisition of Philippine Citizenship.

Main Issue

The main question here is: Did the House of Representatives Electoral Tribunal (HRET) commit grave abuse of discretion in holding that, by reason of his repatriation, Congressman Teodoro C. Cruz had reverted to his original status as a natural-born citizen? I respectfully submit that the answer is "No." In fact, I believe that the HRET was correct in its ruling.

1. Repatriation Is Recovery of Original Citizenship

First, repatriation is simply the recovery of original citizenship. Under Section 1 of RA 2630, a person "who ha[s] lost his citizenship" may "reacquire" it by " taking an oath of allegiance to the Republic of the Philippines." Former Senate President Jovito R. Salonga, a noted authority on the subject, explains this method more precisely in his treatise, Private International Law.5 He defines repatriation as "the recovery of the original nationality upon fulfillment of certain condition."6 Webster buttresses this definition by describing the ordinary or common usage ofrepatriate, as "to restore or return to one's country of origin, allegiance, or citizenship; x x x."7 In relation to our subject matter, repatriation, then, means restoration of citizenship. It is not a grant of a new citizenship, but a recovery of one's former or original citizenship.

To "reacquire" simply means "to get back as one's own again." 8 Ergo, since Cruz, prior to his becoming a US citizen, was a natural-born Filipino citizen, he "reacquired" the same status upon repatriation. To rule otherwise – that Cruz became a non-natural-born citizen – would not be consistent whit the legal and ordinary meaning of repatriation. It would be akin to naturalization, which is the acquisition of a new citizenship. "New." Because it is not the same as the with which he has previously been endowed.

In any case, "the leaning, in questions of citizenship, should always be in favor of [its] claimant x x x."9 Accordingly, the same should be construed in favor of private respondent, who claims to be a natural-born citizen.

2. Not Being Naturalized, Respondent Is Natural Born

Second, under the present Constitution, private respondent should be deemed natural-born, because was not naturalized. Let me explain.There are generally two classes of citizens: (1) natural-born citizens and (2) naturalized citizens. 10 While CA 63 provides that citizenship may also be acquired by direct act of the Legislature, I believe that those who do become citizens through such procedure would properly fall under the second category (naturalized).11

Naturalized citizens are former aliens or foreigners who had to undergo a rigid procedure, in which they had to adduce sufficient evidence to prove that they possessed all the qualifications and none of the disqualifications provided by law in order to become Filipino citizens. In contrast, as stated in the early case Roa v. Collector of Customs,12 a natural-born citizen is a citizen "who has become such at the moment of his birth."

The assailed HRET Decision, penned by Mr. Justice Vicente V. Mendoza, explains clearly who are considered natural-born Filipino citizens. He traces the concept as first defined in Article III of the 1973 Constitution, which simply provided as follows:

"Sec 4. 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."

Under the above definition, there are two requisites in order that a Filipino citizen may be considered "natural-born": (1) one must be a citizen of the Philippines from birth, and (2) one does not have to do anything to acquire or perfect one's Philippine citizenship.13 Thus, under the 1973 Constitution, excluded from the class of "natural-born citizens" were (1) those who were naturalized and (2) those born before January 17, 1973, of Filipino mothers who, upon reaching the age of majority, elected Philippine citizenship.14

The present Constitution, however, has expanded the scope of natural-born citizens to include "[t]hose who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof," meaning those covered under class (2) above. Consequently, only naturalized Filipino citizens are not considered natural-born citizens. Premising therefrom, respondent – being clearly and concededly not naturalized – is, therefore, a natural-born citizen of the Philippines.15

With respect to repatriates, since the Constitution does not classify them separately, they naturally reacquire theiroriginal classification before the loss of their Philippine citizenship. In the case of Congressman Teodoro C. Cruz, upon his repatriation in1994, he reacquired his lost citizenship. In other words, he regained his original status as a natural-born Filipino citizen, nothing less.

3. No Grave Abuse of Discretion on the Part of HRET

Third, the HRET did not abuse, much less gravely abuse, its discretion in holding that Respondent Cruz is a natural-born Filipino citizen who is qualified to be a member of Congress. I stress that the Court, in this certiorari proceeding before us, is limited to determining whether the HRET committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its assailed Decision. The Court has no power to reverse or modify HRET's rulings, simply because it differs in its perception of controversies. It cannot substitute its discretion for that of HRET, an independent, constitutional body with its own specific mandate.

The Constitution explicitly states that the respective Electoral Tribunals of the chambers of Congress "shall be thesole judges of all contests relating to the election, returns, and qualifications their respective members."16 In several cases,17 this Court has held that the power and the jurisdiction of the Electoral Tribunals are original and exclusive, as if they remained in the legislature, a coequal branch of government. Their judgment are beyond judicial interference, unless rendered without or in excess of their jurisdiction or with grave abuse of discretion.18In the elegant words of Mr. Justice Hugo E. Gutierrez Jr.:19

"The Court does not venture into the perilous area of trying to correct perceived errors of independent branches of the Government. It comes in only when it has to vindicate a denial of due process or correct an abuse of discretion so grave or glaring that no less than the Constitution calls for remedial action."

True, there is no settled judicial doctrine on the exact effect of repatriation. But, as earlier explained, the legal and common definition of repatriation is the reacquisition of the former citizenship. How then can the HRET be rebuked with grave abuse of discretion? At best, I can concede that the legal definition is not judicially settled or is even doubtful. But an interpretation made in good faith and grounded o reason one way or the other cannot be the source of grave abuse amounting to lack or excess of jurisdiction. The HRET did not violate the Constitution or the law or any settled judicial doctrine. It was definitely acting within its exclusive domain.

Be it remembered that our Constitution vests upon the HRET the power to be the  sole judge of the qualifications of members of the House of Representatives, one of which is citizenship. Absent any clear showing of a manifest violation of the Constitution or the law or nay judicial decision, this Court cannot impute grave abuse of discretion to the HRET in the latter's actions on matters over which full discretionary authority is lodged upon it by our fundamental law. 20 Even assuming that we disagree with the conclusion of public respondent, we cannot ipsofacto attribute to it "grave abuse of discretion." Verily, there is a line between perceived error and grave abuse.21

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By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. "It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law."22

That the HRET, after careful deliberation and purposeful study, voted 7 to 2 to issue its Decision upholding the qualifications of Congressman Cruz could not in any wise be condemned as gravely abusive. Neither can I find any "patent or gross" arbitrariness or despotism "by reason of passion or hostility" in such exercise.

4. In Case of Doubt,   Popular Will Prevails

Fourth, the court has a solemn duty to uphold the clear and unmistakable mandate of the people. It cannot supplant the sovereign will of the Second District of Pangasinan with fractured legalism. The people of the District have clearly spoken. They overwhelmingly and unequivocally voted for private respondent to represent them in the House of Representatives. The votes that Cruz garnered (80, 119) in the last elections were much more than those of all his opponents combined (66, 182).23 In such instances, all possible doubts should be resolved in favor of the winning candidate's eligibility; to rule otherwise would be to defeat the will of the people.24

Well-entrenched in our jurisprudence is the doctrine that in case of doubt, political laws must be so constructed as to give life and spirit to the popular mandate freely expressed through the ballot.25 Public interest and the sovereign will should, at all times, be the paramount considerations in election controversies.26 For it would be better to err in favor of the people's choice than to be right in complex but little understood legalisms.27

"Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrative that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote."28

5. Current Trend Towards Globalization

Fifth, the current trend, economically as well as politically, is towards globalization. 29 Protectionist barriers dismantled. Whereas, in the past, governments frowned upon the opening of their doors to aliens who wanted to enjoy the same privileges as their citizens, the current era is adopting a more liberal perspective. No longer are applicants for citizenship eyed with the suspicion that they merely want to exploit local resources for themselves. They are now being considered potential sources of developmental skills, know-how and capital.1âwphi1.nêt

More so should our government open its doors to former Filipinos, like Congressman Cruz, who want to rejoin the Filipino community as citizens again. They are not "aliens" in the true sense of the law. They are actually Filipino by blood, by origin and by culture, who want to reacquire their former citizenship.

It cannot be denied that most Filipinos go abroad and apply for naturalization in foreign countries, because of the great economic or social opportunities there. Hence, we should welcome former Filipino citizens desirous of not simply returning to the country or regaining Philippine citizenship, but of serving the Filipino people as well. One of these admirable Filipino is private respondent who, in only a year after being absent from the Philippines for about eight (8) years, was already voted municipal mayor of Mangatarem, Pangasinan. And after serving as such for just one term, he was overwhelmingly chosen by the people to be their representative in Congress.

I reiterate, the people have spoken. Let not a restrictive and parochial interpretation of the law bar the sovereign will. Let not grave abuse be imputed on the legitimate exercise of HRET's prerogatives.

WHEREFORE, I vote to DISMISS the petition.

Footnote

1 "Section 1. The following are citizens of the Philippines:

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

x x x      x x x      x x x"

2 "Section 2. Natural-born citizens are those who are citizens from birth without having to perform any act to acquire or perfect their Philippine citizenship. x x x."

3 "Section 1. How citizenship may be lost. – A Filipino citizen may lose his citizenship in any of the following ways and/or events:

x x x      x x x      x x x"

(4) By rendering services to, or accepting commission in, the armed forces of a foreign country: x x x ."

4 Sec. 1 thereof provides:

"Sec. 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 U.S. citizenship, may reacquire Philippine citizenship by taking an oath allegiance to the Republic of the Philippines and registering the same with the Local Civil Registry in the place where he resides of last resided in the Philippines. The said oath of allegiance shall contain a renunciation of any other citizenship.

DISSENTING OPINION

EN BANCG.R. No. 142840      May 7, 2001ANTONIO BENGSON III, petitioner, vs.HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C. CRUZ, respondents.DISSENTING OPINIONSANDOVAL-GUTIERREZ, J.:

With due respect, I disagree with the ponencia of Justice Santiago M. Kapunan. I am convinced that private respondent Teodoro C. Cruz is not natural born citizen and, therefore, must be disqualified as a member of Congress.

Who are natural-born citizens?

The laws on citizenship – its acquisition or loss, and the rights, privileges and immunities of citizens – have given rise to some of the most disputations and visceral issues resolved by this Court. The problem is taken up connection with the sovereign right of voters to choose their representatives in Congress.

In this petition for certiorari, petitioner Antonio Bengson III asks this Court of Representative of the Second District of Pangasinan because he does not posses the constitutional requirement of being a natural-born citizen of this country. Respondent, on the other hand, insists that he is qualified to be elected to Congress considering that by repatriation, he re-acquired his status as a natural-born Filipino citizen.

Records show that Teodoro Cruz was born in the Philippines on April 27, 1960 to Filipino parents, spouses Lamberto and Carmelita Cruz. On November 5, 1985, he enlisted in the United States Armed Forces and served the United States Marine Corps. While in the service for almost five years, he applied for naturalization with the US District Court of Northern District of California and was issued his Certificate of Naturalization No. 14556793 as an American citizen. On October 27, 1993, he was honorably discharged from the US Marine Corps. He then decided to return to the Philippines.

Cruz availed of repatriation under R.A. No. 2630, 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. On March 17, 1994, he took his oath of allegiance to the Republic of the Philippines. The oath was registered with the Local Civil Registry of Mangatarem, Pangasinan. On the same date, he executed an Affidavit of Reacquisition of Philippine Citizenship. Thus, on April 11, 1994, the Bureau of Immigration and Deportation ordered the cancellation of his Alien Certificate of Residence (ICR No. 286582) and issued him an Identification Certificate.

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The cancellation of his ACR and ICR was affirmed by the Justice Department. On January 18, 1995, the United States Embassy in Manila issued to him a Certificate of Loss of Nationality of the United States.

In the local election of 1995, Cruz filed his certificate of candidacy for mayor of Mangatarem, Pangasinan, declaring himself to be a naturalized Filipino citizen. He won and served as mayor for one term.

Thereafter, Cruz filed his certificate of candidacy for a seat in Congress, this time declaring himself as a natural-born Filipino. Again, he won with a lead of 26,671 votes over candidate Antonio Bengson, III.

On September 3, 1998, Cruz was proclaimed winner in the congressional race in the Second District of Pangasinan.

Bengson then filed a petition for Quo Warranto Ad Cautelam with the House of Representative Electoral not being a natural-born Filipino citizen when he filed his Certificate of Candidacy on March 15, 1998, is not qualified to run as a member of the House of Representatives. That he should be a natural-born citizen is a qualification mandated by Section 6, Article VI of the Constitution which provides: "No person shall be a member of the House of Representatives unless he is a natural-born citizen of the Philippines."

After oral arguments and the submission by the parties of their respective memoranda and supplemental memoranda, the HRET rendered a decision holding that Cruz reacquired his natural-born citizenship upon his repatriation in 1994 and declaring him duly elected representative of the Second District of Pangasinan in the May 11, 1998 elections, thus:

"WHEREFORE, the petition for quo warranto is DISMISSED and Respondent Teodoro C. Cruz is hereby DECLARED duly elected Representative of the Second District of Pangasinan in the May 11, 1998 elections.

"As soon as this Decision becomes final and executory, let notices and copies thereof be sent to the President of the Philippines; the House of Representatives, through the Speaker, and the Commission on Audit, through its Chairman, pursuant to Rule 76 of the 1998 Rules of the House of Representatives Electoral Tribunal. Costs de oficio."

On March 13, 2000, Bengson filed a motion for reconsideration of the said Decision but the same was denied by the HRET in Resolution No. 00-48.

Bengson now comes to us via a petition for certiorari assailing the HRET Decision on grounds that:

"1. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it ruled that private respondent is a natural-born citizen of the Philippines despite the fact that he had ceased being such in view of the loss and renuciation of such citizenship on his part.

"2. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it considered private respondent as a citizen of the Philippines despite the fact that he did not validly acquire his Philippine citizenship.

"3. Assuming that private respondent's acquisition of Philippine citizenship was invalid, the HRET committed serious errors and grave abuse of discretion, amounting to excess of despite the fact that such reacquisition could not legally and constitutionally restore his natural-born status."

The sole issue raised in this petition is whether or not respondent Cruz was natural-born citizen of the Philippines at the time of the filing of his Certificate of Candidacy for a seat in the House of Representatives.

Section 2, Article IV of the Constitution1 provides:

"Sec. 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. xxx."

Petitioner and respondent present opposing interpretations of the phrase "from birth" contained in the above provisions.

Petitioner contends that the phrase "from birth" indicates that citizenship must start at a definite point and must be continuous, constant and without interruption. The Constitution does not extend the privilege of reacquiring a natural-born citizen status to respondent, who at one time, became an alien. His loss of citizenship carried with it the concomitant loss of all the benefits, privileges and attributes of "natural-born" citizenship. When he reacquired his citizenship in 1994, he had to comply with requirements for repatriation, thus effectively taking him out of the constitutional definition of a natural-born Filipino. For his part, respondent maintains that the phrase "from birth" refers to the innate, inherent and inborn characteristic of being a "natural-born". Since he was born to Filipino from birth. His reacquisition of Philippine citizenship under Republic Act No. 2630 results in his reacquisition of his inherent characteristic of being a natural-born citizen.

For his part, respondent maintains that the phrase "from birth" refers to the innate, inherent and inborn characteristic of being a "natural-born". Since he was born to Filipino parents, he has been a natural-born Filipino from birth. His reacquisition of Philippine citizenship under Republic Act No. 2630 results in his reacquisition of his inherent characteristic of being a natural-born citizen.

The state of being a natural-born citizen has been regarded, not so much in its literal sense, but more in its legal connotation.

The very first natural-born Filipinos did not acquire that status at birth. They were born as Spanish subjects. In Roa vs. Collector of Customs,2 the Supreme Court traces the grant of natural-born status from the Treaty of Paris, and the Acts of Congress of July 1, 1902 and March 23, 1912, which is a reenactment of Section 4 of the former with a proviso which reads:

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

It was further held therein that under the said provision, "every person born the 11 th of April, of parents who were Spanish subjects on that date and who continued to reside in this country are at the moment of their birth ipso facto citizens of the Philippine Islands."

Under the April 7, 1900 Instructions of President William McKinley to the Second Philippine Commission, considered as our first colonial charter of fundamental law, we were referred to as "people of the Islands," or "inhabitants of the Philippine Islands," or "natives of the Islands" and not as citizens, much less natural-born citizens. The first definition of "citizens of the Philippine Islands" in our law is found in Section 4 of the Philippine Bill of 1902.3

Philippine citizenship, including the status of natural-born, was initially a loose or even non-existent qualification. As a requirement for the exercise of certain rights and privileges, it became a more strict and difficult status to achieve with the passing of the years.

Early decisions of the Supreme Court held that Philippine citizenship could be acquired under either the  jus sanguinis or jus soli   doctrine.4

This liberal policy was applied even as the Philippine Bill of 1902 and the Jones Law of the Philippine Autonomy Act of 1916 appear to have limited "citizens of the Philippine Islands" to resident inhabitants who were Spanish subjects on April 11, 1899, their children born subsequent thereto, and later, those naturalized according to law by the Philippine legislature. Only later was jus sanguinis firmly applied and jus soli abandoned.

Hence, the status of being a natural-born citizen at its incipient is a privilege conferred by law directly to those who intended, and actually continued, to belong to the Philippine Island. Even at the time of its conception in the Philippines, such persons upon whom citizenship was conferred did not have to do anything to acquire full citizenship.5

Respondent wants us to believe that since he was natural-born Filipino at birth, having been born in the Philippines to Filipino parents, he was automatically restored to that status when he subsequently reacquired his citizenship after losing it.

Public respondent HRET affirmed respondent's position when it pronounced that the definition of natural-born citizen in Section 2, Article IV of the Constitution refers to the classes of citizens enumerated in Section 1 of the same Article, to wit:

"Section 1. The following are citizens of the Philippines:

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

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

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

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

Thus , respondent HRET held that under the above enumeration, there are only two classes of citizens, i.e., natural-born and naturalized. Since respondent Cruz is not a naturalized citizen, then he is a natural-born Filipino citizen.

I do not agree. I reiterate that Section 2, Article IV of the Constitution defines natural-born citizens as " those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship."

Pursuant to R.A. No. 2630, quoted as follow:

"Republic Act No. 2630. 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, provides:

Section 1. Any person who had lost his Philippine citizenship be 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."

respondent Cruz had perform certain acts before he could again become a Filipino citizen. He had to take an oath of allegiance to the Republic of the Philippines and register his oath with the Local Civil Registry of Mangatarum, Pangasinan. He had to renounce his American citizenship and had to execute an affidavit of reacquisition of Philippine citizenship.

Clearly, he did not reacquire his natural-born citizenship. The cardinal rule in the interpretation and constitution of a constitution is to give effect to the intention of the framers and of the people who adopted it. Words appearing in Constitution are used according to their plain, natural, and usual significance and import and must be understood in the sense most obvious to the common understanding of the people at the time of its adoption.

The provision on "natural-born citizens of the Philippines" is precise, clear and definite. Indeed, neither HRET nor this Court can construe it other than what its plain meaning conveys. It is not phrased in general language which may call for construction of what the words imply.

In J. M. Tuason & Co., Inc. vs. Land Tenure Administration,6 this Court held:

"Ascertainment of meaning of provisions of Constitution begins with the language of the document itself. The words used in the Constitution are to be given their ordinary meaning, except where technical terms are employed, in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much as possible, should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say."

The definition of a natural-born citizen in the Constitution must be applied to this petition according to its natural sense.

Respondent HRET likewise ruled that the "reacquisition of Philippine citizenship through any of these modes: (naturalization, repatriation and legislation under Section 3, C.A. No. 63) results in the restoration of previous status, either as a natural-born or a naturalized citizen" is a simplistic approach and tends to be misleading.

If citizenship is gained through naturalization, repatriation or legislation, the citizen concerned can not be considered natural-born. Obviously, he has to perform certain acts to become a citizen.

As expressed in the Dissent of Justice Jose C. Vitug7 in the instant case, concurred in by Justice A.R. Melo:8

"Repatriation is the resumption or recovery of the original nationally upon the fulfillment of certain conditions. While an applicant need not have to undergo the tedious and time consuming process required by the Revised Naturalization Law (CA 473, s amended), he, nevertheless, would still have to make an express and unequivocal act of formally rejecting his adopted state and reaffirming his total and exclusive allegiance and loyalty to the Republic of the Philippines. It bears emphasis that, to be of section 2, Article IV, of the 1987 Constitution, one should not have to perform any act at all or go through any process, judicial or administrative, to enable him to reacquire his citizenship. willoughby opines that a natural-born citizen is one who is able to claim citizenship without any prior declaration on his part of a desire to obtain such status. Under this view, the term 'natural born' citizens could also cover those who have been collectively deemed citizens by reason of the Treaty of Paris and the Philippine Bill of 1902 and those who have been accorded by the 1935 Constitution to be Filipino citizens (those born in the Philippines of alien parents who, before the adoption of the 1935 Constitution had been elected to public office.)"

The two dissenting Justice correctly stated that the "stringent requirement of the Constitution is so placed as to insure that only Filipino citizens with an absolute and permanent degree of allegiance and loyalty shall be eligible for membership in Congress, the branch of the government directly involved and given the dedicate task of legislation."

The dissenting opinion further states:

"The term 'natural-born' Filipino citizen, first constitutionally defined in the 1973 Charter, later adopted by the 1987 Constitution, particularly in Section 2, Article IV thereof, is meant to refer to those ' who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their citizenship,' and to those ' who elect Philippine citizenship.' Time and again, the Supreme Court has declared that where the laws speaks in clear and categorical language, there is no room for interpretation, vacillation or equivocation – there is only room for application. The phrase 'from birth indicates that there is a starting point of his citizenship and this citizenship should be continuous, constant and without interruption."

Thus, respondent is not eligible for election to Congress as the Constitution requires that a member of the House of Representative must be a "natural-born citizen of the Philippines."

For sure, the framers of our Constitution intended to provide a more stringent citizenship requirement for higher elective offices, including that of the office of a Congressman. Otherwise, the Constitution should have simply provided that a candidate for such position can be merely a citizen of the Philippines, as required of local elective officers.

The spirit of nationalism pervading the 1935 Constitution, the first charter framed and ratified by the Filipino (even as the draft had to be approved by President Franklin Delano Roosevelt of the United States) guide and governs the interpretation of Philippine citizenship and the more narrow and bounden concept of being a natural-born citizen.

Under the 1935 costitution,9 the requirement of natural-born citizenship was applicable to the President and Vice Persident.10 A person who had been a citizen for only five (5) years could be elected to the National Assembly.11Only in 1940,12 when the first Constitution was amended did natural-born citizenship become a requirement for Senators and Members of the House of Representatives.13 A Filipino naturalized for at least five (5) years could still be appointed Justice of the Supreme court or a Judge of a lower court.14

The history of the Constitution shows that the meaning and application of the requirement of being natural-born have become more narrow and qualified over the years.

Under the 1973 Constitution, 15 the President, members of the National Assembly, Prime Minister, Justices of the Supreme Court, Judges of inferior courts, the chairmen and members of the Constitutional Commission and the majority of members of the cabinet must be natural-born citizens.16 The 1987 Constitution added the Ombudsman and his deputies and the members of the Commission on Human Rights to those who must be natural-born citizens.17

The questioned Decision of respondent HRET reverses the historical trend and clear intendment of the Constitution. It shows a more liberal, if not a cavalier approach to the meaning and import of natural born citizen and citizenship in general.

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It bears stressing that we are tracing and enforcing a doctrine embodied in no less that the constitution.  Indeed, a deviation from the clear and constitutional definition of a "natural born Filipino citizen" is a matter which can only be accomplished through a constitutional amendment.   Clearly respondent HRET gravely abused its discretion.

Respondent Cruz has availed himself of the procedure whereby his citizenship has been restored. He can run for public office where natural-born citizenship is not mandated. But he cannot be elected to high offices which the Constitution has reserved only for natural-born Filipino citizens.

WHEREFORE, I vote to GRANT the petition.1âwphi1.nêt

Footnote

3 Section 4. That all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provision of the treaty of peace between the United States and Spain signed at Paris, December tenth, eighteen hundred and ninety-eight.

[G.R. No. 135083.  May 26, 1999]ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON

ELECTIONS, respondents.D E C I S I O NMENDOZA, J.:

Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections.  The other one was Gabriel V. Daza III.  The results of the election were as follows:

Eduardo B. Manzano                                  103,853Ernesto S. Mercado                                   100,894Gabriel V. Daza III                                      54,275[1]

The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States.

In its resolution, dated May 7, 1998,[2] the Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under §40(d) of the Local Government Code, persons with dual citizenship are disqualified from running for any elective position.   The COMELEC’s Second Division said:

What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May 11, 1998 elections.   The petition is based on the ground that the respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a natural-born Filipino citizen.

In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother.  He was born in the United States, San Francisco, California, on September 14, 1955, and is considered an American citizen under US Laws.  But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship.

Judging from the foregoing facts, it would appear that respondent Manzano is both a Filipino and a US citizen.   In other words, he holds dual citizenship.

The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate of candidacy.  Is he eligible for the office he seeks to be elected?

Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any elective local position.

WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City.

On May 8, 1998, private respondent filed a motion for reconsideration.[3] The motion remained pending even until after the election held on May 11, 1998.

Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of canvassers tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of the winner.

On May 19, 1998, petitioner sought to intervene in the case for disqualification.[4] Petitioner’s motion was opposed by private respondent.

The motion was not resolved.  Instead, on August 31, 1998, the COMELEC en banc rendered its resolution.  Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and declared private respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections. [5] The pertinent portions of the resolution of the COMELEC en banc read:

As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A.  He acquired US citizenship by  operation of the United States Constitution and laws under the principle of jus soli.

He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as his father and mother were Filipinos at the time of his birth.  At the age of six (6), his parents brought him to the Philippines using an American passport as travel document.  His parents also registered him as an alien with the Philippine Bureau of Immigration.  He was issued an alien certificate of registration.  This, however, did not result in the loss of his Philippine citizenship, as he did not renounce Philippine citizenship and did not take an oath of allegiance to the United States.

It is an undisputed fact that when respondent attained the age of majority, he registered himself as a voter, and voted in the elections of 1992, 1995 and 1998, which effectively renounced his US citizenship under American law.   Under Philippine law, he no longer had U.S. citizenship.

At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on May 7, 1998, was not yet final.  Respondent Manzano obtained the highest number of votes among the candidates for vice-mayor of Makati City, garnering one hundred three thousand eight hundred fifty three (103,853) votes over his closest rival, Ernesto S. Mercado, who obtained one hundred thousand eight hundred ninety four (100,894) votes, or a margin of two thousand nine hundred fifty nine (2,959) votes.  Gabriel Daza III obtained third place with fifty four thousand two hundred seventy five (54,275) votes.   In applying election laws, it would be far better to err in favor of the popular choice than be embroiled in complex legal issues involving private international law which may well be settled before the highest court (Cf.   Frivaldo vs. Commission on Elections, 257 SCRA 727).

WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division, adopted on May 7, 1998, ordering the cancellation of the respondent’s certificate of candidacy.

We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-mayor of Makati City in the May 11, 1998, elections.

ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper notice to the parties, to reconvene and proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate for vice-mayor of Makati City.

Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati.

This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and to declare private respondent disqualified to hold the office of vice mayor of Makati City.  Petitioner contends that ¾

[T]he COMELEC en banc ERRED in holding that:

A. Under Philippine law, Manzano was no longer a U.S. citizen when he:

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1.       He renounced his U.S. citizenship when he attained the age of majority when he was already 37 years old; and,

2.       He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in the elections of 1992, 1995 and 1998.

B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the City of Makati;

C. At the time of the May 11, 1998 elections, the resolution of the Second Division adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be declared the winner even assuming that Manzano is disqualified to run for and hold the elective office of Vice-Mayor of the City of Makati.

We first consider the threshold procedural issue raised by private respondent Manzano ¾ whether petitioner Mercado has personality to bring this suit considering that he was not an original party in the case for disqualification filed by Ernesto Mamaril nor was petitioner’s motion for leave to intervene granted.

I.  PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot bring this suit to set aside the ruling denying his motion for intervention:

Section 1. When proper and when may be permitted to intervene. ¾ Any person allowed to initiate an action or proceeding may, before or during the trial of an action or proceeding, be permitted by the Commission, in its discretion to intervene in such action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or when he is so situated as to be adversely affected by such action or proceeding.

. . . .

Section 3. Discretion of Commission. ¾ In allowing or disallowing a motion for intervention, the Commission or the Division, in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor’s rights may be fully protected in a separate action or proceeding.

Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect because he is “a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City even if the private respondent be ultimately disqualified by final and executory judgment.”

The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only second to private respondent.   The fact, however, is that there had been no proclamation at that time.  Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the time he sought to intervene.  The rule in Labo v. COMELEC,[6] reiterated in several cases,[7] only applies to cases in which the election of the respondent is contested, and the question is whether one who placed second to the disqualified candidate may be declared the winner.  In the present case, at the time petitioner filed a “Motion for Leave to File Intervention” on May 20, 1998, there had been no proclamation of the winner, and petitioner’s purpose was precisely to have private respondent disqualified “from running for [an] elective local position” under §40(d) of R.A. No. 7160.  If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was competent to bring the action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City.

Nor is petitioner’s interest in the matter in litigation any less because he filed a motion for intervention only on May 20, 1998, after private respondent had been shown to have garnered the highest number of votes among the candidates for vice mayor.  That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from §6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides:

Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted.  If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.

Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered.

The failure of the COMELEC en banc to resolve petitioner’s motion for intervention was tantamount to a denial of the motion, justifying petitioner in filing the instant petition for certiorari.  As the COMELEC en banc instead decided the merits of the case, the present petition properly deals not only with the denial of petitioner’s motion for intervention but also with the substantive issues respecting private respondent’s alleged disqualification on the ground of dual citizenship.

This brings us to the next question, namely, whether private respondent Manzano possesses dual citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City.

II.  DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under §40 of the Local Government Code of 1991 (R.A. No. 7160), which declares as “disqualified from running for any elective local position: . . . (d) Those with dual citizenship.”  This provision is incorporated in the Charter of the City of Makati.[8]

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case, contends that through §40(d) of the Local Government Code, Congress has “command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold local elective office.”

To begin with, dual citizenship is different from dual allegiance.  The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. [9] For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of  jus sanguinis is born in a state which follows the doctrine of jus soli.  Such a person, ipso factoand without any voluntary act on his part, is concurrently considered a citizen of both states.  Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers’ country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter’s country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states.  While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition.

With respect to dual allegiance, Article IV, §5 of the Constitution provides: “Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.”  This provision was included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity as follows:[10]

. . .  I want to draw attention to the fact that dual allegiance is not dual citizenship.  I have circulated a memorandum to the Bernas Committee according to which a dual allegiance - and I reiterate a dual allegiance - is larger and more threatening than that of mere double citizenship which is seldom intentional and, perhaps, never insidious.  That is often a function of the accident of mixed marriages or of birth on foreign soil.  And so, I do not question double citizenship at all.

What we would like the Committee to consider is to take constitutional cognizance of the problem of dual allegiance.  For example, we all know what happens in the triennial elections of the Federation of Filipino-Chinese Chambers of Commerce which consists of about 600 chapters all over the country.  There is a Peking ticket, as well as a Taipei ticket.  Not widely known is the fact that the Filipino-Chinese community is represented in the Legislative Yuan of the Republic of China in Taiwan.   And until recently, the sponsor might recall, in Mainland China in the People’s Republic of China, they have the Associated Legislative Council for overseas Chinese wherein all of Southeast Asia including some European and Latin countries were represented, which was dissolved after several years because of diplomatic friction.  At that time, the Filipino-Chinese were also represented in that Overseas Council.

When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts, may be said to be bound by a second allegiance, either to Peking or Taiwan.   I also took close note of the concern expressed by some Commissioners yesterday, including Commissioner Villacorta, who were concerned about the lack of guarantees of thorough assimilation, and especially Commissioner Concepcion who has always been worried about minority claims on our natural resources.

Dual allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or Malaysia, and this is already happening.  Some of the great commercial places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese ¾ it is of

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common knowledge in Manila.  It can mean a tragic capital outflow when we have to endure a capital famine which also means economic stagnation, worsening unemployment and social unrest.

And so, this is exactly what we ask ¾ that the Committee kindly consider incorporating a new section, probably Section 5, in the article on Citizenship which will read as follows:  DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW.

In another session of the Commission, Ople spoke on the problem of these citizens with dual allegiance, thus:[11]

. . .  A significant number of Commissioners expressed their concern about dual citizenship in the sense that it implies a double allegiance under a double sovereignty which some of us who spoke then in a freewheeling debate thought would be repugnant to the sovereignty which pervades the Constitution and to citizenship itself which implies a uniqueness and which elsewhere in the Constitution is defined in terms of rights and obligations exclusive to that citizenship including, of course, the obligation to rise to the defense of the State when it is threatened, and back of this, Commissioner Bernas, is, of course, the concern for national security.  In the course of those debates, I think some noted the fact that as a result of the wave of naturalizations since the decision to establish diplomatic relations with the People’s Republic of China was made in 1975, a good number of these naturalized Filipinos still routinely go to Taipei every October 10; and it is asserted that some of them do renew their oath of allegiance to a foreign government maybe just to enter into the spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is commemorated.  And so, I have detected a genuine and deep concern about double citizenship, with its attendant risk of double allegiance which is repugnant to our sovereignty and national security.  I appreciate what the Committee said that this could be left to the determination of a future legislature.  But considering the scale of the problem, the real impact on the security of this country, arising from, let us say, potentially great numbers of double citizens professing double allegiance, will the Committee entertain a proposed amendment at the proper time that will prohibit, in effect, or regulate double citizenship?

Clearly, in including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization.  Hence, the phrase “dual citizenship” in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to “dual allegiance.”  Consequently, persons with mere dual citizenship do not fall under this disqualification.   Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states.  As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: “[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries.  We recognize a child of a Filipino mother.  But whether or not she is considered a citizen of another country is something completely beyond our control.”[12]

By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens.   It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship.  That is of no moment as the following discussion on §40(d) between Senators Enrile and Pimentel clearly shows:[13]

SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: “Any person with dual citizenship” is disqualified to run for any elective local position.  Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic.   There is no requirement that such a natural born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship.

On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position?

SENATOR PIMENTEL.  To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships.

SENATOR ENRILE.  Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen?  No one can renounce.  There are such countries in the world.

SENATOR PIMENTEL.  Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered as a Filipino citizen.

SENATOR ENRILE.  But, precisely, Mr. President, the Constitution does not require an election.  Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship.

SENATOR PIMENTEL.  Yes.  What we are saying, Mr. President, is: Under the Gentleman’s example, if he does not renounce his other citizenship, then he is opening himself to question.  So, if he is really interested to run, the first

thing he should do is to say in the Certificate of Candidacy that: “I am a Filipino citizen, and I have only one citizenship.”

SENATOR ENRILE.  But we are talking from the viewpoint of Philippine law, Mr. President.   He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic.

SENATOR PIMENTEL.  That is true, Mr. President.  But if he exercises acts that will prove that he also acknowledges other citizenships, then he will probably fall under this disqualification.

This is similar to the requirement that an applicant for naturalization must renounce “all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty”[14] of which at the time he is a subject or citizen before he can be issued a certificate of naturalization as a citizen of the Philippines.  In Parado v. Republic,[15] it was held:

[W]hen a person applying for citizenship by naturalization takes an oath that he renounces his loyalty to any other country or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the condition imposed by law is satisfied and complied with.  The determination whether such renunciation is valid or fully complies with the provisions of our Naturalization Law lies within the province and is an exclusive prerogative of our courts.  The latter should apply the law duly enacted by the legislative department of the Republic.  No foreign law may or should interfere with its operation and application.  If the requirement of the Chinese Law of Nationality were to be read into our Naturalization Law, we would be applying not what our legislative department has deemed it wise to require, but what a foreign government has thought or intended to exact.  That, of course, is absurd.  It must be resisted by all means and at all cost.  It would be a brazen encroachment upon the sovereign will and power of the people of this Republic.

III.  PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino parents.  Since the Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a national both of the Philippines and of the United States.   However, the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998, private respondent “effectively renounced his U.S. citizenship under American law,” so that now he is solely a Philippine national.

Petitioner challenges this ruling.  He argues that merely taking part in Philippine elections is not sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made when private respondent was already 37 years old, it was ineffective as it should have been made when he reached the age of majority.

In holding that by voting in Philippine elections private respondent renounced his American citizenship, the COMELEC must have in mind §349 of the Immigration and Nationality Act of the United States, which provided that “A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:     . . . (e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory.”   To be sure this provision was declared unconstitutional by the U.S. Supreme Court in  Afroyim v. Rusk[16] as beyond the power given to the U.S. Congress to regulate foreign relations.  However, by filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship.  Private respondent’s certificate of candidacy, filed on March 27, 1998, contained the following statements made under oath:

6. I AM A FILIPINO CITIZEN (STATE IF “NATURAL-BORN” OR “NATURALIZED”)     NATURAL-BORN

      . . . .

10.            I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF  MAKATI, PROVINCE OF NCR .

11.            I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.

12.            I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED.  I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF EVASION.  I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL KNOWLEDGE.

The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen.   Thus, in Frivaldo v. COMELEC it was held:[17]

It is not disputed that on January 20, 1983 Frivaldo became an American.  Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him “from running for any elective local position?”  We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really

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STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988.   In his Comment, Frivaldo wrote that he “had long renounced and had long abandoned his American citizenship-long before May 8, 1995.   At best, Frivaldo was stateless in the interim-when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship.”

On this point, we quote from the assailed Resolution dated December 19, 1995:

 “By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995.   Every certificate of candidacy contains an oath of allegiance to the Philippine Government.”

These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee.  Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse.

There is, therefore, no merit in petitioner’s contention that the oath of allegiance contained in private respondent’s certificate of candidacy is insufficient to constitute renunciation of his American citizenship.   Equally without merit is petitioner’s contention that, to be effective, such renunciation should have been made upon private respondent reaching the age of majority since no law requires the election of Philippine citizenship to be made upon majority age.

Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in the Bureau of Immigration and Deportation and that he holds an American passport which he used in his last travel to the United States on April 22, 1997.  There is no merit in this.  Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship.  The acts attributed to him can be considered simply as the assertion of his American nationality before the termination of his American citizenship.  What this Court said in Aznar v. COMELEC[18] applies mutatis mutandis to private respondent in the case at bar:

. . . Considering the fact that admittedly Osmeña was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. . . .  [T]he Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships.   Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship.   When We consider that the renunciation needed to lose Philippine citizenship must be “express,” it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either “express” or “implied.”

To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen.

On the other hand, private respondent’s oath of allegiance to the Philippines, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship.

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath.  Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings.  In Yu v. Defensor-Santiago,[19] we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national.  A similar sanction can be taken against any one who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing, Buena, Gonzaga-Reyes,  and Ynares-Santiago, JJ., concur.

Panganiban, and Purisima, JJ., on leave. Pardo, J., no part.

G.R. Nos. 92191-92 July 30, 1991ANTONIO Y. CO, petitioner, vs.ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG, JR., respondents.G.R. Nos. 92202-03 July 30, 1991SIXTO T. BALANQUIT, JR., petitioner, vs.ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG, JR., respondents.Hechanova & Associates for petitioner Co.Brillantes, Nachura, Navarro and Arcilla Law Offices for respondent Ong, Jr. 

GUTIERREZ, JR., J.:p

The petitioners come to this Court asking for the setting aside and reversal of a decision of the House of Representatives Electoral Tribunal (HRET).

The HRET declared that respondent Jose Ong, Jr. is a natural born Filipino citizen and a resident of Laoang, Northern Samar for voting purposes. The sole issue before us is whether or not, in making that determination, the HRET acted with grave abuse of discretion.

On May 11, 1987, the congressional election for the second district of Northern Samar was held.

Among the candidates who vied for the position of representative in the second legislative district of Northern Samar are the petitioners, Sixto Balinquit and Antonio Co and the private respondent, Jose Ong, Jr.

Respondent Ong was proclaimed the duly elected representative of the second district of Northern Samar.

The petitioners filed election protests against the private respondent premised on the following grounds:

1) Jose Ong, Jr. is not a natural born citizen of the Philippines; and

2) Jose Ong, Jr. is not a resident of the second district of Northern Samar.

The HRET in its decision dated November 6, 1989, found for the private respondent.

A motion for reconsideration was filed by the petitioners on November 12, 1989. This was, however, denied by the HRET in its resolution dated February 22, 1989.

Hence, these petitions for certiorari.

We treat the comments as answers and decide the issues raised in the petitions.

ON THE ISSUE OF JURISDICTION

The first question which arises refers to our jurisdiction.

The Constitution explicitly provides that the House of Representatives Electoral Tribunal (HRET) and the Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to the election, returns, and qualificationsof their respective members. (See Article VI, Section 17, Constitution)

The authority conferred upon the Electoral Tribunal is full, clear and complete. The use of the word soleemphasizes the exclusivity of the jurisdiction of these Tribunals.

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The Supreme Court in the case of Lazatin v. HRET (168 SCRA 391 [1988]) stated that under the 1987 Constitution, the jurisdiction of the Electoral Tribunal is original and exclusive, viz:

The use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred (Angara v. Electoral Commission, supra at p. 162). The exercise of power by the Electoral Commission under the 1935 Constitution has been described as "intended to be as complete and unimpaired as if it had originally remained in the legislature." (id., at p. 175) Earlier this grant of power to the legislature was characterized by Justice Malcolm as "full, clear and complete; (Veloso v. Board of Canvassers of Leyte and Samar, 39 Phil. 886 [1919]) Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the Legislature and the Electoral Commission, (Lachica v. Yap, 25 SCRA 140 [1968]) The same may be said with regard to the jurisdiction of the Electoral Tribunal under the 1987 Constitution. (p. 401)

The Court continued further, ". . . so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to election, returns and qualifications of members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court . . . the power granted to the Electoral Tribunal is full, clear and complete and excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail it or even affect the same." (pp. 403-404)

When may the Court inquire into acts of the Electoral Tribunals under our constitutional grants of power?

In the later case of Robles v. HRET (181 SCRA 780 [1990]) the Supreme Court stated that the judgments of the Tribunal are beyond judicial interference save only "in the exercise of this Court's so-called extraordinary jurisdiction, . . . upon a determination that the Tribunal's decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or paraphrasing Morrero, upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated ERROR, manifestly constituting such GRAVE ABUSE OF DISCRETION that there has to be a remedy for such abuse." (at pp. 785-786)

In the leading case of Morrero v. Bocar (66 Phil. 429 [1938]) the Court ruled that the power of the Electoral Commission "is beyond judicial interference except, in any event, upon a clear showing of such arbitrary and improvident use of power as will constitute a denial of due process." The Court does not venture into the perilous area of trying to correct perceived errors of independent branches of the Government, It comes in only when it has to vindicate a denial of due process or correct an abuse of discretion so grave or glaring that no less than the Constitution calls for remedial action.

The Supreme Court under the 1987 Constitution, has been given an expanded jurisdiction, so to speak, to review the decisions of the other branches and agencies of the government to determine whether or not they have acted within the bounds of the Constitution. (See Article VIII, Section 1, Constitution)

Yet, in the exercise thereof, the Court is to merely check whether or not the governmental branch or agency has gone beyond the Constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing that the HRET has committed grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective power; it will not decide a matter which by its nature is for the HRET alone to decide. ( See Marcos v. Manglapus, 177 SCRA 668 [1989]) It has no power to look into what it thinks is apparent error.

As constitutional creations invested with necessary power, the Electoral Tribunals, although not powers in the tripartite scheme of the government, are, in the exercise of their functions independent organs — independent of Congress and the Supreme Court. The power granted to HRET by the Constitution is intended to be as complete and unimpaired as if it had remained originally in the legislature. (Angara v. Electoral Commission, 63 Phil. 139 [1936])

In passing upon petitions, the Court with its traditional and careful regard for the balance of powers, must permit this exclusive privilege of the Tribunals to remain where the Sovereign authority has place it. (See Veloso v. Boards of Canvassers of Leyte and Samar, 39 Phil. 886 [1919])

It has been argued that under Article VI, Section 17 of the present Constitution, the situation may exist as it exists today where there is an unhealthy one-sided political composition of the two Electoral Tribunals. There is nothing in the Constitution, however, that makes the HRET because of its composition any less independent from the Court or its constitutional functions any less exclusive. The degree of judicial intervention should not be made to depend on how many legislative members of the HRET belong to this party or that party. The test remains the same-manifest grave abuse of discretion.

In the case at bar, the Court finds no improvident use of power, no denial of due process on the part of the HRET which will necessitate the exercise of the power of judicial review by the Supreme Court.

ON THE ISSUE OF CITIZENSHIP

The records show that in the year 1895, the private respondent's grandfather, Ong Te, arrived in the Philippines from China. Ong Te established his residence in the municipality of Laoang, Samar on land which he bought from the fruits of hard work.

As a resident of Laoang, Ong Te was able to obtain a certificate of residence from the then Spanish colonial administration.

The father of the private respondent, Jose Ong Chuan was born in China in 1905. He was brought by Ong Te to Samar in the year 1915.

Jose Ong Chuan spent his childhood in the province of Samar. In Laoang, he was able to establish an enduring relationship with his neighbors, resulting in his easy assimilation into the community.

As Jose Ong Chuan grew older in the rural and seaside community of Laoang, he absorbed Filipino cultural values and practices. He was baptized into Christianity. As the years passed, Jose Ong Chuan met a natural born-Filipino, Agripina Lao. The two fell in love and, thereafter, got married in 1932 according to Catholic faith and practice.

The couple bore eight children, one of whom is the private respondent who was born in 1948.

The private respondent's father never emigrated from this country. He decided to put up a hardware store and shared and survived the vicissitudes of life in Samar.

The business prospered. Expansion became inevitable. As a result, a branch was set-up in Binondo, Manila. In the meantime, the father of the private respondent, unsure of his legal status and in an unequivocal affirmation of where he cast his life and family, filed with the Court of First Instance of Samar an application for naturalization on February 15, 1954.

On April 28, 1955, the CFI of Samar, after trial, declared Jose Ong Chuan a Filipino citizen.

On May 15, 1957, the Court of First Instance of Samar issued an order declaring the decision of April 28, 1955 as final and executory and that Jose Ong Chuan may already take his Oath of Allegiance.

Pursuant to said order, Jose Ong Chuan took his Oath of Allegiance; correspondingly, a certificate of naturalization was issued to him.

At the time Jose Ong Chuan took his oath, the private respondent then a minor of nine years was finishing his elementary education in the province of Samar. There is nothing in the records to differentiate him from other Filipinos insofar as the customs and practices of the local populace were concerned.

Fortunes changed. The house of the family of the private respondent in Laoang, Samar was burned to the ground.

Undaunted by the catastrophe, the private respondent's family constructed another one in place of their ruined house. Again, there is no showing other than that Laoang was their abode and home.

After completing his elementary education, the private respondent, in search for better education, went to Manila in order to acquire his secondary and college education.

In the meantime, another misfortune was suffered by the family in 1975 when a fire gutted their second house in Laoang, Samar. The respondent's family constructed still another house, this time a 16-door apartment building, two doors of which were reserved for the family.

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The private respondent graduated from college, and thereafter took and passed the CPA Board Examinations.

Since employment opportunities were better in Manila, the respondent looked for work here. He found a job in the Central Bank of the Philippines as an examiner. Later, however, he worked in the hardware business of his family in Manila. In 1971, his elder brother, Emil, was elected as a delegate to the 1971 Constitutional Convention. His status as a natural born citizen was challenged. Parenthetically, the Convention which in drafting the Constitution removed the unequal treatment given to derived citizenship on the basis of the mother's citizenship formally and solemnly declared Emil Ong, respondent's full brother, as a natural born Filipino. The Constitutional Convention had to be aware of the meaning of natural born citizenship since it was precisely amending the article on this subject.

The private respondent frequently went home to Laoang, Samar, where he grew up and spent his childhood days.

In 1984, the private respondent married a Filipina named Desiree Lim.

For the elections of 1984 and 1986, Jose Ong, Jr. registered himself as a voter of Laoang, Samar, and correspondingly, voted there during those elections.

The private respondent after being engaged for several years in the management of their family business decided to be of greater service to his province and ran for public office. Hence, when the opportunity came in 1987, he ran in the elections for representative in the second district of Northern Samar.

Mr. Ong was overwhelmingly voted by the people of Northern Samar as their representative in Congress. Even if the total votes of the two petitioners are combined, Ong would still lead the two by more than 7,000 votes.

The pertinent portions of the Constitution found in Article IV read:

SECTION 1, the following are citizens of the Philippines:

1. Those who are citizens of the Philippines at the time of the adoption of the Constitution;

2. Those whose fathers or mothers are citizens of the Philippines;

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

4. Those who are naturalized in accordance with law.

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 citizenship. Those who elect Philippine citizenship in accordance with paragraph 3 hereof shall be deemed natural-born citizens.

The Court interprets Section 1, Paragraph 3 above as applying not only to those who elect Philippine citizenship after February 2, 1987 but also to those who, having been born of Filipino mothers, elected citizenship before that date.

The provision in Paragraph 3 was intended to correct an unfair position which discriminates against Filipino women. There is no ambiguity in the deliberations of the Constitutional Commission, viz:

Mr. Azcuna: With respect to the provision of section 4, would this refer only to those who elect Philippine citizenship after the effectivity of the 1973 Constitution or would it also cover those who elected it under the 1973 Constitution?

Fr. Bernas: It would apply to anybody who elected Philippine citizenship by virtue of the provision of the 1935 Constitution whether the election was done before or after January 17, 1973. (Records of the Constitutional Commission, Vol. 1, p. 228; Emphasis supplied)

xxx xxx xxx

Mr. Trenas: The Committee on Citizenship, Bill of Rights, Political Rights and Obligations and Human Rights has more or less decided to extend the interpretation of who is a natural-born citizen as provided in section 4 of the 1973 Constitution by adding that persons who have elected Philippine Citizenship under the 1935 Constitution shall be natural-born? Am I right Mr. Presiding Officer?

Fr. Bernas: yes.

xxx xxx xxx

Mr. Nolledo: And I remember very well that in the Reverend Father Bernas' well written book, he said that the decision was designed merely to accommodate former delegate Ernesto Ang and that the definition on natural-born has no retroactive effect. Now it seems that the Reverend Father Bernas is going against this intention by supporting the amendment?

Fr. Bernas: As the Commissioner can see, there has been an evolution in my thinking. (Records of the Constitutional Commission, Vol. 1, p. 189)

xxx xxx xxx

Mr. Rodrigo: But this provision becomes very important because his election of Philippine citizenship makes him not only a Filipino citizen but a natural-born Filipino citizen entitling him to run for Congress. . .

Fr. Bernas: Correct. We are quite aware of that and for that reason we will leave it to the body to approve that provision of section 4.

Mr. Rodrigo: I think there is a good basis for the provision because it strikes me as unfair that the Filipino citizen who was born a day before January 17, 1973 cannot be a Filipino citizen or a natural-born citizen. (Records of the Constitutional Commission, Vol. 1, p. 231)

xxx xxx xxx

Mr. Rodrigo: The purpose of that provision is to remedy an inequitable situation. Between 1935 and 1973 when we were under the 1935 Constitution, those born of Filipino fathers but alien mothers were natural-born Filipinos. However, those born of Filipino mothers but alien fathers would have to elect Philippine citizenship upon reaching the age of majority; and if they do elect, they become Filipino citizens but not natural-born Filipino citizens. (Records of the Constitutional Commission, Vol. 1, p. 356)

The foregoing significantly reveals the intent of the framers. To make the provision prospective from February 3, 1987 is to give a narrow interpretation resulting in an inequitable situation. It must also be retroactive.

It should be noted that in construing the law, the Courts are not always to be hedged in by the literal meaning of its language. The spirit and intendment thereof, must prevail over the letter, especially where adherence to the latter would result in absurdity and injustice. (Casela v. Court of Appeals, 35 SCRA 279 [1970])

A Constitutional provision should be construed so as to give it effective operation and suppress the mischief at which it is aimed, hence, it is the spirit of the provision which should prevail over the letter thereof. (Jarrolt v. Mabberly, 103 U.S. 580)

In the words of the Court in the case of J.M. Tuason v. LTA (31 SCRA 413 [1970]:

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To that primordial intent, all else is subordinated. Our Constitution, any constitution is not to be construed narrowly or pedantically for the prescriptions therein contained, to paraphrase Justice Holmes, are not mathematical formulas having their essence in their form but are organic living institutions, the significance of which is vital not formal. . . . (p. 427)

The provision in question was enacted to correct the anomalous situation where one born of a Filipino father and an alien mother was automatically granted the status of a natural-born citizen while one born of a Filipino mother and an alien father would still have to elect Philippine citizenship. If one so elected, he was not, under earlier laws, conferred the status of a natural-born.

Under the 1973 Constitution, those born of Filipino fathers and those born of Filipino mothers with an alien father were placed on equal footing. They were both considered as natural-born citizens.

Hence, the bestowment of the status of "natural-born" cannot be made to depend on the fleeting accident of time or result in two kinds of citizens made up of essentially the same similarly situated members.

It is for this reason that the amendments were enacted, that is, in order to remedy this accidental anomaly, and, therefore, treat equally all those born before the 1973 Constitution and who elected Philippine citizenship either before or after the effectivity of that Constitution.

The Constitutional provision in question is, therefore curative in nature. The enactment was meant to correct the inequitable and absurd situation which then prevailed, and thus, render those acts valid which would have been nil at the time had it not been for the curative provisions. (See Development Bank of the Philippines v. Court of Appeals, 96 SCRA 342 [1980])

There is no dispute that the respondent's mother was a natural born Filipina at the time of her marriage. Crucial to this case is the issue of whether or not the respondent elected or chose to be a Filipino citizen.

Election becomes material because Section 2 of Article IV of the Constitution accords natural born status to children born of Filipino mothers before January 17, 1973, if they elect citizenship upon reaching the age of majority.

To expect the respondent to have formally or in writing elected citizenship when he came of age is to ask for the unnatural and unnecessary. The reason is obvious. He was already a citizen. Not only was his mother a natural born citizen but his father had been naturalized when the respondent was only nine (9) years old. He could not have divined when he came of age that in 1973 and 1987 the Constitution would be amended to require him to have filed a sworn statement in 1969 electing citizenship inspite of his already having been a citizen since 1957. In 1969, election through a sworn statement would have been an unusual and unnecessary procedure for one who had been a citizen since he was nine years old.

We have jurisprudence that defines "election" as both a formal and an informal process.

In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the exercise of the right of suffrage and the participation in election exercises constitute a positive act of election of Philippine citizenship. In the exact pronouncement of the Court, we held:

Esteban's exercise of the right of suffrage when he came of age, constitutes a positive act of election of Philippine citizenship (p. 52; emphasis supplied)

The private respondent did more than merely exercise his right of suffrage. He has established his life here in the Philippines.

For those in the peculiar situation of the respondent who cannot be expected to have elected citizenship as they were already citizens, we apply the In Re Mallare rule.

The respondent was born in an outlying rural town of Samar where there are no alien enclaves and no racial distinctions. The respondent has lived the life of a Filipino since birth. His father applied for naturalization when the child was still a small boy. He is a Roman Catholic. He has worked for a sensitive government agency. His profession requires citizenship for taking the examinations and getting a license. He has participated in political exercises as a Filipino and has always considered himself a Filipino citizen. There is nothing in the records to show that he does not embrace Philippine customs and values, nothing to indicate any tinge of alien-ness no acts to show that this country is not his natural homeland. The mass of voters of Northern Samar are frilly aware of Mr. Ong's parentage. They should know him better than any member of this Court will ever know him.

They voted by overwhelming numbers to have him represent them in Congress. Because of his acts since childhood, they have considered him as a Filipino.

The filing of sworn statement or formal declaration is a requirement for those who still have to elect citizenship.  For those already Filipinos when the time to elect came up, there are acts of deliberate choice which cannot be less binding. Entering a profession open only to Filipinos, serving in public office where citizenship is a qualification, voting during election time, running for public office, and other categorical acts of similar nature are themselves formal manifestations of choice for these persons.

An election of Philippine citizenship presupposes that the person electing is an alien. Or his status is doubtful because he is a national of two countries. There is no doubt in this case about Mr. Ong's being a Filipino when he turned twenty-one (21).

We repeat that any election of Philippine citizenship on the part of the private respondent would not only have been superfluous but it would also have resulted in an absurdity. How can a Filipino citizen elect Philippine citizenship?

The respondent HRET has an interesting view as to how Mr. Ong elected citizenship. It observed that "when protestee was only nine years of age, his father, Jose Ong Chuan became a naturalized Filipino. Section 15 of the Revised Naturalization Act squarely applies its benefit to him for he was then a minor residing in this country. Concededly,  it was the law itself that had already elected Philippine citizenship for protestee by declaring him as such." (Emphasis supplied)

The petitioners argue that the respondent's father was not, validly, a naturalized citizen because of his premature taking of the oath of citizenship.

The Court cannot go into the collateral procedure of stripping Mr. Ong's father of his citizenship after his death and at this very late date just so we can go after the son.

The petitioners question the citizenship of the father through a collateral approach. This can not be done. In our jurisdiction, an attack on a person's citizenship may only be done through a direct action for its nullity. ( See Queto v. Catolico, 31 SCRA 52 [1970])

To ask the Court to declare the grant of Philippine citizenship to Jose Ong Chuan as null and void would run against the principle of due process. Jose Ong Chuan has already been laid to rest. How can he be given a fair opportunity to defend himself. A dead man cannot speak. To quote the words of the HRET "Ong Chuan's lips have long been muted to perpetuity by his demise and obviously he could not use beyond where his mortal remains now lie to defend himself were this matter to be made a central issue in this case."

The issue before us is not the nullification of the grant of citizenship to Jose Ong Chuan. Our function is to determine whether or not the HRET committed abuse of authority in the exercise of its powers. Moreover, the respondent traces his natural born citizenship through his mother, not through the citizenship of his father. The citizenship of the father is relevant only to determine whether or not the respondent "chose" to be a Filipino when he came of age. At that time and up to the present, both mother and father were Filipinos. Respondent Ong could not have elected any other citizenship unless he first formally renounced Philippine citizenship in favor of a foreign nationality. Unlike other persons faced with a problem of election, there was no foreign nationality of his father which he could possibly have chosen.

There is another reason why we cannot declare the HRET as having committed manifest grave abuse of discretion. The same issue of natural-born citizenship has already been decided by the Constitutional Convention of 1971 and by the Batasang Pambansa convened by authority of the Constitution drafted by that Convention. Emil Ong, full blood brother of the respondent, was declared and accepted as a natural born citizen by both bodies.

Assuming that our opinion is different from that of the Constitutional Convention, the Batasang Pambansa, and the respondent HRET, such a difference could only be characterized as error. There would be no basis to call the HRET decision so arbitrary and whimsical as to amount to grave abuse of discretion.

What was the basis for the Constitutional Convention's declaring Emil Ong a natural born citizen?

Under the Philippine Bill of 1902, inhabitants of the Philippines who were Spanish subjects on the 11th day of April 1899 and then residing in said islands and their children born subsequent thereto were conferred the status of a Filipino citizen.

Was the grandfather of the private respondent a Spanish subject?

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Article 17 of the Civil Code of Spain enumerates those who were considered Spanish Subjects, viz:

ARTICLE 17. The following are Spaniards:

1. Persons born in Spanish territory.

2. Children born of a Spanish father or mother, even though they were born out of Spain.

3. Foreigners who may have obtained naturalization papers.

4. Those without such papers, who may have acquired domicile in any town in the Monarchy. (Emphasis supplied)

The domicile of a natural person is the place of his habitual residence. This domicile, once established is considered to continue and will not be deemed lost until a new one is established. (Article 50, NCC; Article 40, Civil Code of Spain; Zuellig v. Republic, 83 Phil. 768 [1949])

As earlier stated, Ong Te became a permanent resident of Laoang, Samar around 1895. Correspondingly, a certificate of residence was then issued to him by virtue of his being a resident of Laoang, Samar. (Report of the Committee on Election Protests and Credentials of the 1971 Constitutional Convention, September 7, 1972, p. 3)

The domicile that Ong Te established in 1895 continued until April 11, 1899; it even went beyond the turn of the 19th century. It is also in this place were Ong Te set-up his business and acquired his real property.

As concluded by the Constitutional Convention, Ong Te falls within the meaning of sub-paragraph 4 of Article 17 of the Civil Code of Spain.

Although Ong Te made brief visits to China, he, nevertheless, always returned to the Philippines. The fact that he died in China, during one of his visits in said country, was of no moment. This will not change the fact that he already had his domicile fixed in the Philippines and pursuant to the Civil Code of Spain, he had become a Spanish subject.

If Ong Te became a Spanish subject by virtue of having established his domicile in a town under the Monarchy of Spain, necessarily, Ong Te was also an inhabitant of the Philippines for an inhabitant has been defined as one who has actual fixed residence in a place; one who has a domicile in a place. (Bouvier's Law Dictionary, Vol. II) A priori, there can be no other logical conclusion but to educe that Ong Te qualified as a Filipino citizen under the provisions of section 4 of the Philippine Bill of 1902.

The HRET itself found this fact of absolute verity in concluding that the private respondent was a natural-born Filipino.

The petitioners' sole ground in disputing this fact is that document presented to prove it were not in compliance with the best the evidence rule. The petitioners allege that the private respondent failed to present the original of the documentary evidence, testimonial evidence and of the transcript of the proceedings of the body which the aforesaid resolution of the 1971 Constitutional Convention was predicated.

On the contrary, the documents presented by the private respondent fall under the exceptions to the best evidence rule.

It was established in the proceedings before the HRET that the originals of the Committee Report No. 12, the minutes of the plenary session of 1971 Constitutional Convention held on November 28, 1972 cannot be found.

This was affirmed by Atty. Ricafrente, Assistant Secretary of the 1971 Constitutional Convention; by Atty. Nolledo, Delegate to the 1971 Constitutional Convention; and by Atty. Antonio Santos, Chief Librarian of the U.P Law Center, in their respective testimonies given before the HRET to the effect that there is no governmental agency which is the official custodian of the records of the 1971 Constitutional Convention. (TSN, December 12, 1988, pp. 30-31; TSN, January 17, 1989, pp. 34-35; TSN, February 1, 1989, p. 44; TSN, February 6, 1989, pp. 28-29)

The execution of the originals was established by Atty. Ricafrente, who as the Assistant Secretary of the 1971 Constitutional Convention was the proper party to testify to such execution. (TSN, December 12, 1989, pp. 11-24)

The inability to produce the originals before the HRET was also testified to as aforestated by Atty. Ricafrente, Atty. Nolledo, and Atty. Santos. In proving the inability to produce, the law does not require the degree of proof to be of sufficient certainty; it is enough that it be shown that after a bona fide diligent search, the same cannot be found. ( see Government of P.I. v. Martinez, 44 Phil. 817 [1918])

Since the execution of the document and the inability to produce were adequately established, the contents of the questioned documents can be proven by a copy thereof or by the recollection of witnesses.

Moreover, to erase all doubts as to the authenticity of the documentary evidence cited in the Committee Report, the former member of the 1971 Constitutional Convention, Atty. Nolledo, when he was presented as a witness in the hearing of the protest against the private respondent, categorically stated that he saw the disputed documents presented during the hearing of the election protest against the brother of the private respondent. (TSN, February 1, 1989, pp. 8-9)

In his concurring opinion, Mr. Justice Sarmiento, a vice-president of the Constitutional Convention, states that he was presiding officer of the plenary session which deliberated on the report on the election protest against Delegate Emil Ong. He cites a long list of names of delegates present. Among them are Mr. Chief Justice Fernan, and Mr. Justice Davide, Jr. The petitioners could have presented any one of the long list of delegates to refute Mr. Ong's having been declared a natural-born citizen. They did not do so. Nor did they demur to the contents of the documents presented by the private respondent. They merely relied on the procedural objections respecting the admissibility of the evidence presented.

The Constitutional Convention was the sole judge of the qualifications of Emil Ong to be a member of that body. The HRET by explicit mandate of the Constitution, is the sole judge of the qualifications of Jose Ong, Jr. to be a member of Congress. Both bodies deliberated at length on the controversies over which they were sole judges. Decisions were arrived at only after a full presentation of all relevant factors which the parties wished to present. Even assuming that we disagree with their conclusions, we cannot declare their acts as committed with grave abuse of discretion. We have to keep clear the line between error and grave abuse.

ON THE ISSUE OF RESIDENCE

The petitioners question the residence qualification of respondent Ong.

The petitioners lose sight of the meaning of "residence" under the Constitution. The term "residence" has been understood as synonymous with domicile not only under the previous Constitutions but also under the 1987 Constitution.

The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the qualifications of a candidate for Congress continues to remain the same as that of domicile, to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of the elections. So my question is: What is the Committee's concept of residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile or constructive residence?

Mr. Davide: Madame President, in so far as the regular members of the National Assembly are concerned, the proposed section merely provides, among others, and a resident thereof, that is, in the district, for a period of not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile. (Records of the 1987 Constitutional Convention, Vol. 11, July 22, 1986. p. 87)

xxx xxx xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that "resident" has been interpreted at times as a matter of intention rather than actual residence.

Mr. De los Reyes: Domicile.

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Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go back to actual residence rather than mere intention to reside?

Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not physical and actual residence. (Records of the 1987 Constitutional Commission, Vol. 11, July 22, 1986, p. 110)

The framers of the Constitution adhered to the earlier definition given to the word "residence" which regarded it as having the same meaning as domicile.

The term "domicile" denotes a fixed permanent residence to which when absent for business or pleasure, one intends to return. (Ong Huan Tin v. Republic, 19 SCRA 966 [1967]) The absence of a person from said permanent residence, no matter how long, notwithstanding, it continues to be the domicile of that person. In other words, domicile is characterized by animus revertendi (Ujano v. Republic, 17 SCRA 147 [1966])

The domicile of origin of the private respondent, which was the domicile of his parents, is fixed at Laoang, Samar. Contrary to the petitioners' imputation, Jose Ong, Jr. never abandoned said domicile; it remained fixed therein even up to the present.

The private respondent, in the proceedings before the HRET sufficiently established that after the fire that gutted their house in 1961, another one was constructed.

Likewise, after the second fire which again destroyed their house in 1975, a sixteen-door apartment was built by their family, two doors of which were reserved as their family residence. (TSN, Jose Ong, Jr., November 18,1988, p. 8)

The petitioners' allegation that since the private respondent owns no property in Laoang, Samar, he cannot, therefore, be a resident of said place is misplaced.

The properties owned by the Ong Family are in the name of the private respondent's parents. Upon the demise of his parents, necessarily, the private respondent, pursuant to the laws of succession, became the co-owner thereof (as a co- heir), notwithstanding the fact that these were still in the names of his parents.

Even assuming that the private respondent does not own any property in Samar, the Supreme Court in the case ofDe los Reyes v. Solidum (61 Phil. 893 [1935]) held that it is not required that a person should have a house in order to establish his residence and domicile. It is enough that he should live in the municipality or in a rented house or in that of a friend or relative . (Emphasis supplied)

To require the private respondent to own property in order to be eligible to run for Congress would be tantamount to a property qualification. The Constitution only requires that the candidate meet the age, citizenship, voting and residence requirements. Nowhere is it required by the Constitution that the candidate should also own property in order to be qualified to run. (see Maquera v. Borra, 122 Phil. 412 [1965])

It has also been settled that absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected, does not constitute loss of residence. (Faypon v. Quirino, 96 Phil. 294 [1954])

As previously stated, the private respondent stayed in Manila for the purpose of finishing his studies and later to practice his profession, There was no intention to abandon the residence in Laoang, Samar. On the contrary, the periodical journeys made to his home province reveal that he always had the animus revertendi.

The Philippines is made up not only of a single race; it has, rather, undergone an interracial evolution. Throughout our history, there has been a continuing influx of Malays, Chinese, Americans, Japanese, Spaniards and other nationalities. This racial diversity gives strength to our country.

Many great Filipinos have not been whole-blooded nationals, if there is such a person, for there is none. To mention a few, the great Jose Rizal was part Chinese, the late Chief Justice Claudio Teehankee was part Chinese, and of course our own President,

Corazon Aquino is also part Chinese. Verily, some Filipinos of whom we are proud were ethnically more Chinese than the private respondent.

Our citizens no doubt constitute the country's greatest wealth. Citizenship is a special privilege which one must forever cherish.

However, in order to truly revere this treasure of citizenship, we do not, on the basis of too harsh an interpretation, have to unreasonably deny it to those who qualify to share in its richness.

Under the overly strict jurisprudence surrounding our antiquated naturalization laws only the very affluent backed by influential patrons, who were willing to suffer the indignities of a lengthy, sometimes humiliating, and often corrupt process of clearances by minor bureaucrats and whose lawyers knew how to overcome so many technical traps of the judicial process were able to acquire citizenship. It is time for the naturalization law to be revised to enable a more positive, affirmative, and meaningful examination of an applicant's suitability to be a Filipino. A more humane, more indubitable and less technical approach to citizenship problems is essential.

WHEREFORE, the petitions are hereby DISMISSED. The questioned decision of the House of Representatives Electoral Tribunal is AFFIRMED. Respondent Jose Ong, Jr. is declared a natural-born citizen of the Philippines and a resident of Laoang, Northern Samar.

SO ORDERED.

Bidin, Griño-Aquino, Medialdea and Davide, Jr., JJ., concur.

Fernan, C.J., Melencio-Herrera, Cruz, Feliciano and Gancayco, JJ., took no part.

G.R. No. 104654 June 6, 1994

REPUBLIC OF THE PHILIPPINES, petitioner, vs.HON. ROSALIO G. DE LA ROSA, PRESIDING JUDGE OF THE REGIONAL TRIAL COURT, BRANCH 28, MANILA and JUAN G. FRIVALDO, respondents.G.R. No. 105715 June 6, 1994RAUL R. LEE, petitioner, vs.COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.G.R. No. 105735 June 6, 1994RAUL R. LEE, petitioner, vs.COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.The Solicitor General for petitioner in G.R. No. 104654.Yolando F. Lim counsel for private respondent. 

QUIASON, J.:

In Frivaldo v. Commission on Elections, 174 SCRA 245 (1989), this Court declared private respondent, Juan G. Frivaldo, an alien and therefore disqualified from serving as Governor of the Province of Sorsogon.

Once more, the citizenship of private respondent is put in issue inthese petitions docketed as G.R. No.104654 and G.R. No. 105715 and G.R. No. 105735. The petitions were consolidated since they principally involve the same issues and parties.

I

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G.R. No. 104654

This is a petition for certiorari under Rule 45 of the Revised Rules of Court in relation to R.A. No. 5440 and Section 25 of the Interim Rules, filed by the Republic of the Philippines: (1) to annul the Decision dated February 27, 1992 of the Regional Trial Court, Branch 28, Manila, in SP Proc. No. 91-58645, which re-admitted private respondent as a Filipino citizen under the Revised Naturalization Law (C.A. No. 63 as amended by C.A. No. 473); and (2) to nullify the oath of allegiance taken by private respondent on February 27, 1992.

On September 20, 1991, petitioner filed a petition for naturalization captioned: "In the Matter of Petition of Juan G. Frivaldo to be Re-admitted as a Citizen of the Philippines under Commonwealth Act No. 63" ( Rollo, pp. 17-23).

In an Order dated October 7, 1991 respondent Judge set the petition for hearing on March 16, 1992, and directed the publication of the said order and petition in the Official Gazette and a newspaper of general circulation, for three consecutive weeks, the last publication of which should be at least six months before the said date of hearing. The order further required the posting of a copy thereof and the petition in a conspicuous place in the Office of the Clerk of Court of the Regional Trial Court, Manila (Rollo, pp. 24-26).

On January 14, 1992, private respondent filed a "Motion to Set Hearing Ahead of Schedule," where he manifested his intention to run for public office in the May 1992 elections. He alleged that the deadline for filing the certificate of candidacy was March 15, one day before the scheduled hearing. He asked that the hearing set on March 16 be cancelled and be moved to January 24 (Rollo, pp. 27-28).

The motion was granted in an Order dated January 24, 1992, wherein the hearing of the petition was moved to February 21, 1992. The said order was not published nor a copy thereof posted.

On February 21, the hearing proceeded with private respondent as the sole witness. He submitted the following documentary evidence: (1) Affidavit of Publication of the Order dated October 7, 1991 issued by the publisher of The Philippine Star (Exh. "A"); (2) Certificate of Publication of the order issuedby the National Printing Office (Exh. "B"); (3) Notice of Hearing of Petition (Exh. "B-1"); (4) Photocopy of a Citation issued by the National Press Club with private respondent’s picture (Exhs. "C" and "C-2"); (5) Certificate of Appreciation issued by the Rotary Club of Davao (Exh. "D"); (6) Photocopyof a Plaque of Appreciation issued by the Republican College, Quezon City (Exh. "E"); (7) Photocopy of a Plaque of Appreciation issued by the Davao-Bicol Association (Exh. "F"); (8) Certification issued by the Records Management and Archives Office that the record of birth of private respondent was not on file (Exh. "G"); and (8) Certificate of Naturalization issued by the United States District Court (Exh. "H").

Six days later, on February 27, respondent Judge rendered the assailed Decision, disposing as follows:

WHEREFORE, the petition is GRANTED. Petitioner JUAN G. FRIVALDO, is re-admitted as a citizen of the Republic of the Philippines by naturalization, thereby vesting upon him, all the rights and privileges of a natural born Filipino citizen (Rollo, p. 33).

On the same day, private respondent was allowed to take his oath of allegiance before respondent Judge ( Rollo, p. 34).

On March 16, a "Motion for Leave of Court to Intervene and to Admit Motion for Reconsideration" was filed by Quiterio H. Hermo. He alleged that the proceedings were tainted with jurisdictional defects, and prayed for a new trial to conform with the requirements of the Naturalization Law.

After receiving a copy of the Decision on March 18, 1992, the Solicitor General interposed a timely appeal directly with the Supreme Court.

G.R. No. 105715

This is a petition for certiorari, mandamus with injunction under Rule 65 of the Revised Rules of Court in relation to Section 5(2) of Article VIII of the Constitution with prayer for temporary restraining order filed by Raul R. Lee against the Commission on Elections (COMELEC) and private respondent, to annul the en banc Resolution of the COMELEC, which dismissed his petition docketed as SPC Case No. 92-273. The said petition sought to annul the proclamation of private respondent as Governor-elect of the Province of Sorsogon.

Petitioner was the official candidate of the Laban ng Demokratikong Pilipino (LDP) for the position of governor of the Province of Sorsogon in the May 1992 elections. Private respondent was the official candidate of the Lakas-National Union of Christian Democrats (Lakas-NUCD) for the same position.

Private respondent was proclaimed winner on May 22, 1992.

On June 1, petitioner filed a petition with the COMELEC to annul the proclamation of private respondent as Governor-elect of the Province of Sorsogon on the grounds: (1) that the proceedings and composition of the Provincial Board of Canvassers were not in accordance with law; (2) that private respondent is an alien, whose grant of Philippine citizenship is being questioned by the State in G.R. No. 104654; and (3) that private respondent is not a duly registered voter. Petitioner further prayed that the votes case in favor of private respondent be considered as stray votes, and that he, on the basis of the remaining valid votes cast, be proclaimed winner.

On June 10, the COMELEC issued the questioned en banc resolution which dismissed the petition for having been filed out of time, citing Section 19 of R.A. No. 7166. Said section provides that the period to appeal a ruling of the board of canvassers on questions affecting its composition or proceedings was three days.

In this petition, petitioner argues that the COMELEC acted with grave abuse of discretion when it ignored the fundamental issue of private respondent’s disqualification in the guise of technicality.

Petitioner claims that the inclusion of private respondent’s name in the list of registered voters in Sta. Magdalena, Sorsogon was invalid because at the time he registered as a voter in 1987, he was as American citizen.

Petitioner further claims that the grant of Filipino citizenship to private respondent is not yet conclusive because the case is still on appeal before us.

Petitioner prays for: (1) the annulment of private respondent’s proclamation as Governor of the Province of Sorsogon; (2) the deletion of private respondent’s name from the list of candidates for the position of governor; (3) the proclamation of the governor-elect based on the remaining votes, after the exclusion of the votes for private respondent; (4) the issuance of a temporary restraining order to enjoin private respondent from taking his oath and assuming office; and (5) the issuance of a writ of mandamus to compel the COMELEC to resolve the pending disqualification case docketed as SPA Case No. 92-016, against private respondent.

G.R. No. 105735

This is a petition for mandamus under Rule 65 of the Revised Rules of Court in relation to Section 5(2) of Article VIII of the Constitution, with prayer for temporary restraining order. The parties herein are identical with the parties in G.R. No. 105715.

In substance, petitioner prays for the COMELEC’s immediate resolution of SPA Case No. 92-016, which is a petition for the cancellation of private respondent’s certificate of candidacy filed on March 23, 1992 by Quiterio H. Hermo, the intervenor in G.R. No. 104654 (Rollo, p. 18).

The petition for cancellation alleged: (1) that private respondent is an American citizen, and therefore ineligible to run as candidate for the position of governor of the Province of Sorsogon; (2) that the trial court’s decisionre-admitting private respondent as a Filipino citizen was fraught with legal infirmities rendering it null and void; (3) that assuming the decision to be valid, private respondent’s oath of allegiance, which was taken on the same

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day the questioned decision was promulgated, violated Republic Act No. 530, which provides for a two-year waiting period before the oath of allegiance can be taken by the applicant; and (4) that the hearing of the petition on February 27, 1992, was held less than four months from the date of the last publication of the order and petition. The petition prayed for the cancellation of private respondent’s certificate of candidacy and the deletion of his name from the list of registered voters in Sta. Magdalena, Sorsogon.

In his answer to the petition for cancellation, private respondent denied the allegations therein and averred: (1) that Quiterio H. Hermo, not being a candidate for the same office for which private respondent was aspiring, had no standing to file the petition; (2) that the decision re-admitting him to Philippine citizenship was presumed to be valid; and (3) that no case had been filed to exclude his name as a registered voter.

Raul R. Lee intervened in the petition for cancellation of private respondent’s certificate of candidacy ( Rollo, p. 37.).

On May 13, 1992, said intervenor urged the COMELEC to decide the petition for cancellation, citing Section 78 of the Omnibus Election Code, which provides that all petitions on matters involving the cancellation of a certificate of candidacy must be decided "not later than fifteen days before election," and the case of Alonto v. Commission on Election, 22 SCRA 878 (1968), which ruled that all pre-proclamation controversies should be summarily decided (Rollo,p. 50).

The COMELEC concedes that private respondent has not yet reacquired his Filipino citizenship because the decision granting him the same is not yet final and executory (Rollo, p. 63). However, it submits that the issue of disqualification of a candidate is not among the grounds allowed in apre-proclamation controversy, like SPC Case No. 92-273. Moreover, the said petition was filed out of time.

The COMELEC contends that the preparation for the elections occupied much of its time, thus its failure to immediately resolve SPA Case No. 92-016. It argues that under Section 5 of Rule 25 of the COMELEC Rules of Procedure, it is excused from deciding a disqualification case within the period provided by law for reasons beyond its control. It also assumed that the same action was subsequently abandoned by petitioner when he filed before it a petition for quo warranto docketed as EPC No. 92-35. The quo warranto proceedings sought private respondent’s disqualification because of his American citizenship.

II

G.R. No. 104654

We shall first resolve the issue concerning private respondent’s citizenship.

In his comment to the State’s appeal of the decision granting him Philippine citizenship in G.R. No. 104654, private respondent alleges that the precarious political atmosphere in the country during Martial Law compelled him to seek political asylum in the United States, and eventually to renounce his Philippine citizenship.

He claims that his petition for naturalization was his only available remedy for his reacquisition of Philippine citizenship. He tried to reacquire his Philippine citizenship through repatriation and direct act of Congress. However, he was later informed that repatriation proceedings were limited to army deserters or Filipino women who had lost their citizenship by reason of their marriage to foreigners (Rollo, pp. 49-50). His request to Congress for sponsorship of a bill allowing him to reacquire his Philippine citizenship failed to materialize, notwithstanding the endorsement of several members of the House of Representatives in his favor (Rollo, p. 51). He attributed this to the maneuvers of his political rivals.

He also claims that the re-scheduling of the hearing of the petition to an earlier date, without publication, was made without objection from the Office of the Solicitor General. He makes mention that on the date of the hearing, the court was jam-packed.

It is private respondent’s posture that there was substantial compliance with the law and that the public was well-informed of his petition for naturalization due to the publicity given by the media.

Anent the issue of the mandatory two-year waiting period prior to the taking of the oath of allegiance, private respondent theorizes that the rationale of the law imposing the waiting period is to grant the public an opportunity to investigate the background of the applicant and to oppose the grant of Philippine citizenship if there is basis to do so. In his case, private respondent alleges that such requirement may be dispensed with, claiming that his life, both private and public, was well-known. Private respondent cites his achievement as a freedom fighter and a former Governor of the Province of Sorsogon for six terms.

The appeal of the Solicitor General in behalf of the Republic of the Philippines is meritorious. The naturalization proceedings in SP Proc. No. 91-58645 was full of procedural flaws, rendering the decision an anomaly.

Private respondent, having opted to reacquire Philippine citizenship thru naturalization under the Revised Naturalization Law, is duty bound to follow the procedure prescribed by the said law. It is not for an applicant to decide for himself and to select the requirements which he believes, even sincerely, are applicable to his case and discard those which be believes are inconvenient or merely of nuisance value. The law does not distinguish between an applicant who was formerly a Filipino citizen and one who was never such a citizen. It does not provide a special procedure for the reacquisition of Philippine citizenship by former Filipino citizens akin to the repatriation of a woman who had lost her Philippine citizenship by reason of her marriage to an alien.

The trial court never acquired jurisdiction to hear the petition for naturalization of private respondent. The proceedings conducted, the decision rendered and the oath of allegiance taken therein, are null and void for failure to comply with the publication and posting requirements under the Revised Naturalization Law.

Under Section 9 of the said law, both the petition for naturalization and the order setting it for hearing must be published once a week for three consecutive weeks in the Official Gazette and a newspaper of general circulation respondent cites his achievements as a freedom fighter and a former Governor of the Province of Sorsogon for six terms.

The appeal of the Solicitor General in behalf of the Republic ofthe Philippines is meritorious. The naturalization proceedings in SP Proc.No. 91-58645 was full of procedural flaws, rendering the decision an anomaly.

Private respondent, having opted to reacquire Philippine citizenship thru naturalization under the Revised Naturalization Law, is duty bound to follow the procedure prescribed by the said law. It is not for an applicant to decide for himself and to select the requirements which he believes, even sincerely, are applicable to his case and discard those which he believes are inconvenient or merely of nuisance value. The law does not distinguish between an applicant who was formerly a Filipino citizen and one who was never such a citizen. It does not provide a special procedure for the reacquisition of Philippine citizenship by former Filipino citizens akin to the repatriation of a woman who had lost her Philippine citizenship by reason of her marriage to an alien.

The trial court never acquired jurisdiction to hear the petition for naturalization of private respondent. The proceedings conducted, the decision rendered and the oath of allegiance taken therein, are null and void for failure to comply with the publication and posting requirements under the Revised Naturalization Law.

Under Section 9 of the said law, both the petition for naturalization and the order setting it for hearing must be published once a week for three consecutive weeks in the Official Gazette and a newspaper of general circulation. Compliance therewith is jurisdictional (Po Yi Bo v. Republic, 205 SCRA 400 [1992]). Moreover, the publication and posting of the petition and the order must be in its full test for the court to acquire jurisdiction (Sy v. Republic, 55 SCRA 724 [1974]).

The petition for naturalization lacks several allegations required by Sections 2 and 6 of the Revised Naturalization Law, particularly: (1) that the petitioner is of good moral character; (2) that he resided continuously in the Philippines for at least ten years; (3) that he is able to speak and write English and any one of the principal

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dialects; (4) that he will reside continuously in the Philippines from the date of the filing of the petition until his admission to Philippine citizenship; and (5) that he has filed a declaration of intention or if he is excused from said filing, the justification therefor.

The absence of such allegations is fatal to the petition (Po Yi Bi v. Republic, 205 SCRA 400 [1992]).

Likewise, the petition is not supported by the affidavit of at least two credible persons who vouched for the good moral character of private respondent as required by Section 7 of the Revised Naturalization Law. Private respondent also failed to attach a copy of his certificate of arrival to the petition as required by Section 7 of the said law.

The proceedings of the trial court was marred by the following irregularities: (1) the hearing of the petition was set ahead of the scheduled date of hearing, without a publication of the order advancing the date of hearing, and the petition itself; (2) the petition was heard within six months from the last publication of the petition; (3) petitioner was allowed to take his oath of allegiance before the finality of the judgment; and (4) petitioner took his oath of allegiance without observing the two-year waiting period.

A decision in a petition for naturalization becomes final only after 30 days from its promulgation and, insofar as the Solicitor General is concerned, that period is counted from the date of his receipt of the copy of the decision (Republic v. Court of First Instance of Albay, 60 SCRA 195 [1974]).

Section 1 of R.A. No. 530 provides that no decision granting citizenship in naturalization proceedings shall be executory until after two years from its promulgation in order to be able to observe if: (1) the applicant has left the country; (2) the applicant has dedicated himself continuously to a lawful calling or profession; (3) the applicant has not been convicted of any offense or violation of government promulgated rules; and (4) the applicant has committed any act prejudicial to the interest of the country or contrary to government announced policies.

Even discounting the provisions of R.A. No. 530, the courts cannot implement any decision granting the petition for naturalization before its finality.

G.R. No. 105715

In view of the finding in G.R. No. 104654 that private respondent is not yet a Filipino citizen, we have to grant the petition in G.R. No. 105715 after treating it as a petition for  certiorari instead of a petition for mandamus. Said petition assails the en banc resolution of the COMELEC, dismissing SPC Case No. 92-273, which in turn is a petition to annul private respondent’s proclamation on three grounds: 1) that the proceedings and composition of the Provincial Board of Canvassers were not in accordance with law; 2) that private respondent is an alien, whose grant of Filipino citizenship is being questioned by the State in G.R. No. 104654; and 3) that private respondent is not a duly registered voter. The COMELEC dismissed the petition on the grounds that it was filed outside the three-day period for questioning the proceedingsand composition of the Provincial Board of Canvassers under Section 19 of R.A. No. 7166.

The COMELEC failed to resolve the more serious issue — the disqualification of private respondent to be proclaimed Governor on grounds of lack of Filipino citizenship. In this aspect, the petition is one for quo warranto. In Frivaldo v. Commission on Elections, 174 SCRA 245 (1989), we held that a petition for quo warranto, questioning the respondent’s title and seeking to prevent him from holding office as Governor for alienage, is not covered by the ten-day period for appeal prescribed in Section 253 of the Omnibus Election Code. Furthermore, we explained that "qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer’s entire tenure; once any of the required qualification is lost, his title may be seasonably challenged."

Petitioner’s argument, that to unseat him will frustrate the will of the electorate, is untenable. Both the Local Government Code and the Constitution require that only Filipino citizens can run and be elected to public office.

We can only surmise that the electorate, at the time they voted for private respondent, was of the mistaken belief that he had legally reacquired Filipino citizenship.

Petitioner in G.R. No. 105715, prays that the votes cast in favor of private respondent be considered stray and that he, being the candidate obtaining the second highest number of votes, be declared winner. In  Labo, Jr. v. COMELEC, 176 SCRA 1 (1989), we ruled that where the candidate who obtained the highest number of votes is later declared to be disqualified to hold the office to which he was elected, the candidate who garnered the second highest number of votes is not entitled to be declared winner (See also Geronimo v. Ramos, 136 SCRA 435 [1985]; Topacio v. Paredes, 23 Phil. 238 [1912]).

G.R. No. 105735

In view of the discussions of G.R. No. 104654 and G.R. No. 105715, we find the petition in G.R. No. 105735 moot and academic.

WHEREFORE, the petitions in G.R. No. 104654 and G.R. No. 105715 are both GRANTED while the petition in G.R. No. 105735 is DISMISSED. Private respondent is declared NOT a citizen of the Philippines and therefore DISQUALIFIED from continuing to serve as GOVERNOR of the Province of Sorsogon. He is ordered to VACATE his office and to SURRENDER the same to the Vice-Governor of the Province of Sorsogon once this decision becomes final and executory. No pronouncement as to costs.

SO ORDERED.

Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug and Kapunan, JJ., concur.

Narvasa, C.J. and Cruz, J., took no part.

G.R. Nos. 178831-32               July 30, 2009

JOCELYN SY LIMKAICHONG, Petitioner, vs.COMMISSION ON ELECTIONS, NAPOLEON N. CAMERO and RENALD F. VILLANDO, Respondents.

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

G.R. No. 179120               July 30, 2009

LOUIS C. BIRAOGO, Petitioner, vs.HON. PROSPERO NOGRALES, Speaker of the House of Representatives of the Congress of the Philippines, and JOCELYN SY LIMKAICHONG, Respondents.

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

G.R. Nos. 179132-33               July 30, 2009

OLIVIA P. PARAS, Petitioner, vs.HON. PROSPERO NOGRALES, in his capacity as Speaker of the House of Representatives; HON. ROBERTO NAZARENO, in his capacity as Secretary General of the House of Representatives; HON.

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RHODORA SEVILLA, in her capacity as Deputy Secretary General for Finance of the House of Representatives; THE COMMISSION ON ELECTIONS and JOCELYN SY LIMKAICHONG, Respondents.

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

G.R. Nos. 179240-41               July 30, 2009

RENALD F. VILLANDO, Petitioner, vs.COMMISSION ON ELECTIONS and JOCELYN SY LIMKAICHONG, Respondents.

R E S O L U T I O N

PERALTA, J.:

The instant motion with prayer for oral argument filed by Louis C. Biraogo, petitioner in G.R. No. 179120, seeks a reconsideration of the Court’s April 1, 2009 Decision, which granted Jocelyn D. Sy Limkaichong’s petition forcertiorari in G.R. Nos. 178831-32. The Court dismissed all the other petitions, including Biraogo’s petition, and reversed the Joint Resolution of the Commission on Election’s (COMELEC) Second Division dated May 17, 2007 in SPA Nos. 07-247 and 07-248 disqualifying Limkaichong from running as a congressional candidate in the First District of Negros Oriental due to lack of citizenship requirement.

Biraogo prefaced his motion by stating that justice and constitutionalism must remain entrenched in Philippine case law. To achieve this end, he maintained that the Court should reconsider its April 1, 2009 Decision. He also prayed for an oral argument, which he posited, would help the Court in the just and proper disposition of the pending incident.

After an assiduous review of the motion for reconsideration, we resolve that the same should be denied for lack of merit.

Most of the arguments advanced by Biraogo are a mere rehash of his previous arguments, which we have all considered and found without merit in the Decision dated April 1, 2009. Nonetheless, in order to lay to rest once and for all Biraogo's misgivings, we shall discuss only the relevant issues and revalidate our Decision by ruling on his motion as follows:

The core issue in the consolidated petitions is the qualification of Limkaichong to run for, be elected to, and assume and discharge, the position of Representative for the First District of Negros Oriental. The contention of the parties who sought her disqualification is that she is not a natural-born citizen, hence, she lacks the citizenship requirement in Section 6,1 Article VI of the 1987 Constitution. In the election that ensued, she was voted for by the constituents of Negros Oriental and garnered the highest votes. She was eventually proclaimed as the winner and has since performed her duties and responsibilities as Member of the House of Representatives.

Indeed, the citizenship requirement was enshrined in our Constitution in order to ensure that our people and country do not end up being governed by aliens.2 With this principle in mind, we have said in Aquino v. COMELEC3 that if one of the essential qualifications for running for membership in the House of Representatives is lacking, then not even the will of a majority or plurality of the voters would substitute for a requirement mandated by the fundamental law itself. Hence assuming, time constraints notwithstanding, and after proper proceedings before the proper tribunal be had, that Limkaichong would prove to be an alien, the court of justice would tilt against her favor and would not sanction such an imperfection in her qualification to hold office. But, first things first.

The proponents against Limkaichong's qualification stated that she is not a natural-born citizen because her parents were Chinese citizens at the time of her birth. They went on to claim that the proceedings for the naturalization of Julio Ong Sy, her father, never attained finality due to procedural and substantial defects.

In our Decision, We held that:

However, in assailing the citizenship of the father, the proper proceeding should be in accordance with Section 18 of Commonwealth Act No. 473 which provides that:

Sec. 18. Cancellation of Naturalization Certificate Issued. - Upon motion made in the proper proceedings by the Solicitor General or his representative, or by the proper provincial fiscal, the competent judge may cancel the naturalization certificate issued and its registration in the Civil Register:

1. If it is shown that said naturalization certificate was obtained fraudulently or illegally;

2. If the person naturalized shall, within five years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and establish his permanent residence there: Provided, That the fact of the person naturalized remaining more than one year in his native country or the country of his former nationality, or two years in any other foreign country, shall be considered asprima facie evidence of his intention of taking up his permanent residence in the same:

3. If the petition was made on an invalid declaration of intention;

4. If it is shown that the minor children of the person naturalized failed to graduate from a public or private high school recognized by the Office of Private Education [now Bureau of Private Schools] of the Philippines, where Philippine history, government or civics are taught as part of the school curriculum, through the fault of their parents either by neglecting to support them or by transferring them to another school or schools. A certified copy of the decree canceling the naturalization certificate shall be forwarded by the Clerk of Court of the Department of Interior [now Office of the President] and the Bureau of Justice [now Office of the Solicitor General];

5. If it is shown that the naturalized citizen has allowed himself to be used as a dummy in violation of the constitutional or legal provisions requiring Philippine citizenship as a requisite for the exercise, use or enjoyment of a right, franchise or privilege. (Emphasis supplied)

As early as the case of Queto v. Catolico, where the Court of First Instance judge motu propio and not in the proper denaturalization proceedings called to court various grantees of certificates of naturalization (who had already taken their oaths of allegiance) and cancelled their certificates of naturalization due to procedural infirmities, the Court held that:

x x x It may be true that, as alleged by said respondents, that the proceedings for naturalization were tainted with certain infirmities, fatal or otherwise, but that is beside the point in this case. The jurisdiction of the court to inquire into and rule upon such infirmities must be properly invoked in accordance with the procedure laid down by law. Such procedure is the cancellation of the naturalization certificate. [Section 1(5), Commonwealth Act No. 63], in the manner fixed in Section 18 of Commonwealth Act No. 473, hereinbefore quoted, namely, "upon motion made in the proper proceedings by the Solicitor General or his representatives, or by the proper provincial fiscal." In other words, the initiative must come from these officers, presumably after previous investigation in each particular case. (Emphasis supplied)

Clearly, under law and jurisprudence, it is the State, through its representatives designated by statute, that may question the illegally or invalidly procured certificate of naturalization in the appropriate denaturalization proceedings. It is plainly not a matter that may be raised by private persons in an election case involving the naturalized citizen’s descendant.

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Accordingly, it is not enough that one's qualification, or lack of it, to hold an office requiring one to be a natural-born citizen, be attacked and questioned before any tribunal or government institution. Proper proceedings must be strictly followed by the proper officers under the law. Hence, in seeking Limkaichong's disqualification on account of her citizenship, the rudiments of fair play and due process must be observed, for in doing so, she is not only deprived of the right to hold office as a Member of the House of Representative but her constituents would also be deprived of a leader in whom they have put their trust on through their votes. The obvious rationale behind the foregoing ruling is that in voting for a candidate who has not been disqualified by final judgment during the election day, the people voted for her bona fide, without any intention to misapply their franchise, and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government.4lavvphil

These precepts, notwithstanding, Biraogo remained firm in his belief that this Court erred in its Decision and that the COMELEC Joint Resolution dated May 17, 2007 disqualifying Limkaichong should have been affirmed. He even went to a great extent of giving a dichotomy of the said Joint Resolution by stating that it was composed of two parts, the first part of which is the substantive part, and the second, pertains to the injunctive part. For this purpose, the dispositive portion of the said COMELEC Joint Resolution is reproduced below:

WHEREFORE, the Petitions are GRANTED and Jocelyn D. Sy-Limkaichong is declared as DISQUALIFIED from her candidacy for Representative of the First District of Negros Oriental.

The Provincial Supervisor of the Commission on Elections of Negros Oriental is hereby directed to strike out the name JOCELYN SY-LIMKAICHONG from the list of eligible candidates for the said position, and the concerned Board of Canvassers is hereby directed to hold and/or suspend the proclamation of JOCELYN SY-LIMKAICHONG as winning candidate, if any, until this decision has become final.

SO ORDERED.5

Biraogo maintained that the Motion for Reconsideration filed by Limkaichong suspended only the execution of the substantive relief or the first part of the above-quoted COMELEC Joint Resolution. However, it did not suspend the execution of the injunctive part and, accordingly, the Provincial Supervisor of the COMELEC should not have proceeded with Limkaichong's proclamation as the winning candidate in the elections.

His argument has no leg to stand on. We cannot take a decision or resolution on a piece-meal basis and apply only that part which is seemingly beneficial to one's cause and discard the prejudicial part which, obviously, would just be a hindrance in advancing one's stance or interests. Besides, the COMELEC Joint Resolution which Biraogo dichotomized was effectively suspended when Limkaichong timely filed her Motion for Reconsideration pursuant to Section 13(c),6 Rule 18 and Section 2,7 Rule 19 of the COMELEC Rules of Procedure. Hence, it cannot as yet be implemented for not having attained its finality.

Nevertheless, events have already transpired after the COMELEC has rendered its Joint Resolution. Limkaichong was proclaimed by the Provincial Board of Canvassers, she had taken her oath of office, and she was allowed to officially assume the office on July 23, 2007. Accordingly, we ruled in our April 1, 2009 Decision that the House of Representatives Electoral Tribunal (HRET), and no longer the COMELEC, should now assume jurisdiction over the disqualification cases. Pertinently, we held:

x x x The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, andassumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins.8 It follows then that the proclamation of a winning candidate divests the COMELEC of its jurisdiction over matters pending before it at the time of the proclamation. The party questioning his qualification should now present his case in a proper proceeding before the HRET, the constitutionally mandated tribunal to hear and decide a case involving a Member of the House of Representatives with respect to the latter's election, returns and qualifications. The use of the word "sole" in Section 17, Article VI of the Constitution and in Section 250 9 of the OEC underscores the exclusivity of the Electoral Tribunals' jurisdiction over election contests relating to its members.10

Section 17, Article VI of the 1987 Constitution provides:

Sec. 17. 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.

x x x x

Petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41) steadfastly maintained that Limkaichong’s proclamation was tainted with irregularity, which will effectively prevent the HRET from acquiring jurisdiction.

The fact that the proclamation of the winning candidate, as in this case, was alleged to have been tainted with irregularity does not divest the HRET of its jurisdiction.11 The Court has shed light on this in the case of Vinzons-Chato,12 to the effect that:

In the present case, it is not disputed that respondent Unico has already been proclaimed and taken his oath of office as a Member of the House of Representatives (Thirteenth Congress); hence, the COMELEC correctly ruled that it had already lost jurisdiction over petitioner Chato's petition. The issues raised by petitioner Chato essentially relate to the canvassing of returns and alleged invalidity of respondent Unico's proclamation. These are matters that are best addressed to the sound judgment and discretion of the HRET. Significantly, the allegation that respondent Unico's proclamation is null and void does not divest the HRET of its jurisdiction:

x x x [I]n an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as congressman is raised, that issue is best addressed to the HRET. The reason for this ruling is self-evident, for it avoids duplicity of proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the people's mandate.

Further, for the Court to take cognizance of petitioner Chato's election protest against respondent Unico would be to usurp the constitutionally mandated functions of the HRET.

In fine, any allegations as to the invalidity of the proclamation will not prevent the HRET from assuming jurisdiction over all matters essential to a member’s qualification to sit in the House of Representatives.

The 1998 HRET Rules, as amended, provide for the manner of filing either an election protest or a petition for quo warranto against a Member of the House of Representatives. In our Decision, we ruled that the ten-day prescriptive period under the 1998 HRET Rules does not apply to disqualification based on citizenship, because qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged.13 Accordingly, the 1987 Constitution requires that Members of the House of Representatives must be natural-born citizens not only at the time of their election but during their entire tenure. Being a continuing requirement, one who assails a member's citizenship or lack of it may still question the same at any time, the ten-day prescriptive period notwithstanding.lavvphi1

In fine, we hold that Biraogo had not successfully convinced us to reconsider our Decision and grant his motion for reconsideration.

In a last-ditched attempt to muddle the issues, Biraogo observed that the Decision dated April 1, 2009 is a complete turn-around from the ruling embodied in the Decision written by Justice Ruben T. Reyes which, although unpromulgated, was nonetheless signed by fourteen (14) Associate Justices and approved by the Court

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en banc on July 15, 2008. He decried the absence of an explanation in the Decision dated April 1, 2009 for the said departure or turn-around.

Such a position deserves scant consideration.

The Court in Belac v. Commision on Elections,14 held that a decision must not only be signed by the Justices who took part in the deliberation, but must also be promulgated to be considered a Decision, to wit:

[A] true decision of the Court is the decision signed by the Justices and duly promulgated. Before that decision is so signed and promulgated, there is no decision of the Court to speak of . The vote cast by a member of the Court after the deliberation is always understood to be subject to confirmation at the time he has to sign the decision that is to be promulgated. The vote is of no value if it is not thus confirmed by the Justice casting it. The purpose of this practice is apparent. Members of this Court, even after they have cast their votes, wish to preserve their freedom of action till the last moment when they have to sign the decision, so that they may take full advantage of what they may believe to be the best fruit of their most mature reflection and deliberation. In consonance with this practice, before a decision is signed and promulgated, all opinions and conclusions stated during and after the deliberation of the Court, remain in the breasts of the Justices, binding upon no one, not even upon the Justices themselves. Of course, they may serve for determining what the opinion of the majority provisionally is and for designating a member to prepare the decision of the Court, but inno way is that decision binding unless and until signed and promulgated.

We add that at any time before promulgation, the ponencia may be changed by the ponente. Indeed, if any member of the court who may have already signed it so desires, he may still withdraw his concurrence and register a qualification or dissent as long as the decision has not yet been promulgated.  A promulgation signifies that on the date it was made the judge or judges who signed the decision continued to support it.

Thus, an unpromulgated decision is no decision at all. At the very least, they are part of the confidential internal deliberations of the Court which must not be released to the public. A decision becomes binding only after it is validly promulgated.15 Until such operative act occurs, there is really no decision to speak of, even if some or all of the Justices have already affixed their signatures thereto. During the intervening period from the time of signing until the promulgation of the decision, any one who took part in the deliberation and had signed the decision may, for a reason, validly withdraw one's vote, thereby preserving one's freedom of action.

In sum, we hold that Biraogo’s Motion for Reconsideration with Prayer for Oral Argument must be denied. This Court did not err in ruling that the proper remedy of those who may assail Limkaichong's disqualification based on citizenship is to file before the HRET the proper petition at any time during her incumbency.

WHEREFORE, the Motion for Reconsideration with Prayer for Oral Argument filed by petitioner Louis C. Biraogo in G.R. No. 179120 is DENIED with FINALITY.

SO ORDERED.

[G.R. No. 151914.  July 31, 2002]TEODULO M. COQUILLA, petitioner, vs. THE HON. COMMISSION ON ELECTIONS and MR. NEIL

M. ALVAREZ, respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition for certiorari to set aside the resolution, [1] dated July 19, 2001, of the Second Division of the Commission on Elections (COMELEC), ordering the cancellation of the certificate of candidacy of petitioner Teodulo M. Coquilla for the position of mayor of Oras, Eastern Samar in the May 14, 2001 elections and the order, dated January 30, 2002, of the COMELEC en banc denying petitioner’s motion for reconsideration.

The facts are as follows:

Petitioner Coquilla was born on February 17, 1938 of Filipino parents in Oras, Eastern Samar.  He grew up and resided there until 1965, when he joined the United States Navy. He was subsequently naturalized as a U.S. citizen.[2] From 1970 to 1973, petitioner thrice visited the Philippines while on leave from the U.S. Navy.[3] Otherwise, even after his retirement from the U.S. Navy in 1985, he remained in the United States.

On October 15, 1998, petitioner came to the Philippines and took out a residence certificate, although he continued making several trips to the United States, the last of which took place on July 6, 2000 and lasted until August 5, 2000.[4] Subsequently, petitioner applied for repatriation under R.A. No. 8171 [5] to the Special Committee on Naturalization. His application was approved on November 7, 2000, and, on November 10, 2000, he took his oath as a citizen of the Philippines. Petitioner was issued Certificate of Repatriation No. 000737 on November 10, 2000 and Bureau of Immigration Identification Certificate No. 115123 on November 13, 2000.

On November 21, 2000, petitioner applied for registration as a voter of Butnga, Oras, Eastern Samar. His application was approved by the Election Registration Board on January 12, 2001. [6] On February 27, 2001, he filed his certificate of candidacy stating therein that he had been a resident of Oras, Eastern Samar for “two (2) years.”[7]

On March 5, 2001, respondent Neil M. Alvarez, who was the incumbent mayor of Oras and who was running for reelection, sought the cancellation of petitioner’s certificate of candidacy on the ground that the latter had made a material misrepresentation in his certificate of candidacy by stating that he had been a resident of Oras for two years when in truth he had resided therein for only about six months since November 10, 2000, when he took his oath as a citizen of the Philippines.

The COMELEC was unable to render judgment on the case before the elections on May 14, 2001. Meanwhile, petitioner was voted for and received the highest number of votes (6,131) against private respondent’s 5,752 votes, or a margin of 379 votes.  On May 17, 2001, petitioner was proclaimed mayor of Oras by the Municipal Board of Canvassers.[8] He subsequently took his oath of office.

On July 19, 2001, the Second Division of the COMELEC granted private respondent’s petition and ordered the cancellation of petitioner’s certificate of candidacy on the basis of the following findings:

Respondent’s frequent or regular trips to the Philippines and stay in Oras, Eastern Samar after his retirement from the U.S. Navy in 1985 cannot be considered as a waiver of his status as a permanent resident or immigrant . . . of the U.S.A. prior to November 10, 2000 as would qualify him to acquire the status of residency for purposes of compliance with the one-year residency requirement of Section 39(a) of the Local Government Code of 1991 in relation to Sections 65 and 68 of the Omnibus Election Code.  The one (1) year residency requirement contemplates of the actual residence of a Filipino citizen in the constituency where he seeks to be elected.

All things considered, the number of years he claimed to have resided or stayed in Oras, Eastern Samar since 1985 as an American citizen and permanent resident of the U.S.A. before November 10, 2000 when he reacquired his Philippine citizenship by [repatriation] cannot be added to his actual residence thereat after November 10, 2000 until May 14, 2001 to cure his deficiency in days, months, and year to allow or render him eligible to run for an elective office in the Philippines.  Under such circumstances, by whatever formula of computation used, respondent is short of the one-year residence requirement before the May 14, 2001 elections.[9]

Petitioner filed  a motion for reconsideration, but his motion was denied by the COMELEC en banc on January 30, 2002. Hence this petition.

I.

Two questions must first be resolved before considering the merits of this case: (a) whether the 30-day period for appealing the resolution of the COMELEC was suspended by the filing of a motion for reconsideration by petitioner and (b) whether the COMELEC retained jurisdiction to decide this case notwithstanding the proclamation of petitioner. 

A. With respect to the first question, private respondent contends that the petition in this case should be dismissed because it was filed late; that the COMELEC en banc had denied petitioner’s motion for reconsideration for being pro forma; and that, pursuant to Rule 19, §4 of the COMELEC Rules of Procedure,  the

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said motion did not suspend the running of the 30-day period for filing this petition. He points out that petitioner received a copy of the resolution, dated July 19, 2001, of the COMELEC’s Second Division on July 28, 2001, so that he had only until August 27, 2001 within which to file this petition. Since the petition in this case was filed on February 11, 2002, the same should be considered as having been filed late and should be dismissed.

Private respondent’s contention has no merit.

Rule 19 of the COMELEC Rules of Procedure provides in pertinent parts:

Sec. 2. Period for Filing Motions for Reconsideration. ¾ A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution for implementation of the decision, resolution, order, or ruling.

Sec. 4. Effect of Motion for Reconsideration on Period to Appeal. ¾ A motion to reconsider a decision, resolution, order, or ruling, when not pro-forma, suspends the running of the period to elevate the matter to the Supreme Court.

The five-day period for filing a motion for reconsideration under Rule 19, §2 should be counted from the receipt of the decision, resolution, order, or ruling of the COMELEC Division. [10] In this case, petitioner received a copy of the resolution of July 19, 2001 of the COMELEC’s Second Division on July 28, 2001. Five days later, on August 2, 2001, he filed his motion for reconsideration.  On February 6, 2002, he received a copy of the order, dated January 30, 2002, of the COMELEC en banc denying his motion for reconsideration.  Five days later, on February 11, 2002, he filed this petition for certiorari. There is no question, therefore, that petitioner’s motion for reconsideration of the resolution of the COMELEC Second Division, as well as his petition for certiorari to set aside of the order of the COMELECen banc, was filed within the period provided for in Rule 19, §2 of the COMELEC Rules of Procedure and in Art. IX(A),  §7 of the Constitution.

It is contended, however, that petitioner’s motion for reconsideration before the COMELEC en banc did not suspend the running of the period for filing this petition because the motion was pro forma and, consequently, this petition should have been filed on or before August 27, 2001. It was actually filed, however, only on February 11, 2002. Private respondent cites the finding of the COMELEC en bancthat —

An incisive examination of the allegations in the Motion for Reconsideration shows that the same [are] a mere rehash of his averments contained in his Verified Answer and Memorandum. Neither did respondent raise new matters that would sufficiently warrant a reversal of the assailed resolution of the Second Division. This makes the said Motion pro forma.[11]

We do not think this contention is correct. The motion for reconsideration was not pro forma  and its filing did suspend the period for filing the petition for certiorari in this case.   The mere reiteration in a motion for reconsideration of the issues raised by the parties and passed upon by the court does not make a motion pro forma; otherwise, the movant’s remedy would not be a reconsideration of the decision but a new trial or some other remedy.[12] But, as we have held in another case:[13]

Among the ends to which a motion for reconsideration is addressed, one is precisely to convince the court that its ruling is erroneous and improper, contrary to the law or the evidence; and in doing so, the movant has to dwell of necessity upon the issues passed upon by the court. If a motion for reconsideration may not discuss these issues, the consequence would be that after a decision is rendered, the losing party would be confined to filing only motions for reopening and new trial.

Indeed, in the cases where a motion for reconsideration was held to be  pro forma, the motion was so held because (1) it was a second motion for reconsideration, [14] or (2) it did not comply with the rule that the motion must specify the findings and conclusions alleged to be contrary to law or not supported by the evidence, [15] or (3) it failed to substantiate the alleged errors,[16] or (4) it merely alleged that the decision in question was contrary to law,[17] or (5) the adverse party was not given notice thereof.[18] The 16-page motion for reconsideration filed by petitioner in the COMELEC en banc suffers from none of the foregoing defects, and it was error for the COMELEC en banc to rule that petitioner’s motion for reconsideration was pro forma because the allegations raised therein are a mere “rehash” of his earlier pleadings or did not raise “new matters.” Hence, the filing of the

motion suspended the running of the 30-day period to file the petition in this case, which, as earlier shown, was done within the reglementary period provided by law.

B.  As stated before, the COMELEC failed to resolve private respondent’s petition for cancellation of petitioner’s certificate of candidacy before the elections on May 14, 2001. In the meantime, the votes were canvassed and petitioner was proclaimed elected with a margin of 379 votes over private respondent.  Did the COMELEC thereby lose authority to act on the petition filed by private respondent?

R.A. No. 6646 provides:

SECTION 6. Effect of Disqualification Case.¾ Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis added)

SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy . — The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.

The rule then is that candidates who are disqualified by final judgment before the election shall not be voted for and the votes cast for them shall not be counted. But those against whom no final judgment of disqualification had been rendered may be voted for and proclaimed, unless, on motion of the complainant, the COMELEC suspends their proclamation because the grounds for their disqualification or cancellation of their certificates of candidacy are strong.  Meanwhile, the proceedings for disqualification of candidates or for the cancellation or denial of certificates of candidacy, which have been begun before the elections, should continue even after such elections and proclamation of the winners.  In Abella v. COMELEC[19] and Salcedo II v. COMELEC,[20] the candidates whose certificates of candidacy were the subject of petitions for cancellation were voted for and, having received the highest number of votes, were duly proclaimed winners. This Court, in the first case, affirmed and, in the second, reversed the decisions of the COMELEC rendered after the proclamation of candidates, not on the ground that the latter had been divested of jurisdiction upon the candidates’ proclamation but on the merits.

II.

On the merits, the question is whether petitioner had been a resident of Oras, Eastern Samar at least one (1) year before the elections held on May 14, 2001 as he represented in his certificate of candidacy.   We find that he had not.

First, §39(a) of the Local Government Code (R.A No. 7160) provides:

Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (Emphasis added)

The term “residence” is to be understood not in its common acceptation as referring to “dwelling” or “habitation,”[21] but rather to “domicile” or legal residence,[22] that is, “the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi).”[23] A domicile of origin is acquired by every person at birth. It is usually the place where the child’s parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice).[24]

In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in the U.S. Navy in 1965.  From then on and until November 10, 2000, when he reacquired Philippine citizenship,

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petitioner was an alien without any right to reside in the Philippines save as our immigration laws may have allowed him to stay as a visitor or as a resident alien.

Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8, §1427(a) of the United States Code provides:

Requirements of naturalization .¾ Residence

(a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) immediately preceding the date  of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all the period referred to in this subsection has been and still is a person of good moral character,  attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States. (Emphasis added)

In Caasi v. Court of Appeals,[25] this Court ruled that immigration to the United States by virtue of a “greencard,” which entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines. With more reason then does naturalization in a foreign country result in an abandonment of domicile in the Philippines.

Nor can petitioner contend that he was “compelled to adopt American citizenship” only by reason of his service in the U.S. armed forces.[26] It is noteworthy that petitioner was repatriated not under R.A. No. 2630, which applies to the repatriation of those who lost their Philippine citizenship by accepting commission in the Armed Forces of the United States, but under R.A. No. 8171, which, as earlier mentioned, provides for the repatriation of, among others, natural-born Filipinos who lost their citizenship on account of political or economic necessity.  In any event, the fact is that, by having been naturalized abroad, he lost his Philippine citizenship and with it his residence in the Philippines. Until his reacquisition of Philippine citizenship on November 10, 2000, petitioner did not reacquire his legal residence in this country.

Second, it is not true, as petitioner contends, that he reestablished residence in this country in 1998 when he came back to prepare for the mayoralty elections of Oras by securing a Community Tax Certificate in that year and by “constantly declaring” to his townmates of his intention to seek repatriation and run for mayor in the May 14, 2001 elections.[27] The status of being an alien and a non-resident can be waived either separately, when one acquires the status of a resident alien before acquiring Philippine citizenship, or at the same time when one acquires Philippine citizenship. As an alien, an individual may obtain an immigrant visa under §13 [28] of the Philippine Immigration Act of 1948 and an Immigrant Certificate of Residence (ICR)[29] and thus waive his status as a non-resident.  On the other hand, he may acquire Philippine citizenship by naturalization under C.A. No. 473, as amended, or, if he is a former Philippine national, he may reacquire Philippine citizenship by repatriation or by an act of Congress,[30] in which case he waives not only his status as an alien but also his status as a non-resident alien.

In the case at bar, the only evidence of petitioner’s status when he entered the country on October 15, 1998, December 20, 1998, October 16, 1999, and June 23, 2000 is the statement “Philippine Immigration [–] Balikbayan” in his 1998-2008 U.S. passport.  As for his entry on August 5, 2000, the stamp bore the added inscription “good for one year stay.”[31] Under §2 of R.A. No. 6768 (An Act Instituting a Balikbayan Program), the term balikbayan includes a former Filipino citizen who had been naturalized in a foreign country and comes or returns to the Philippines and, if so, he is entitled, among others, to a “visa-free entry to the Philippines for a period of one (1) year” (§3(c)). It would appear then that when petitioner entered the country on the dates in question, he did so as a visa-free balikbayanvisitor whose stay as such was valid for one year only.  Hence, petitioner can only be held to have waived his status as an alien and as a non-resident only on November 10, 2000 upon taking his oath as a citizen of the Philippines under R.A. No. 8171. [32] He lacked the requisite residency to qualify him for the mayorship of Oras, Eastern, Samar.

Petitioner invokes the ruling in Frivaldo v. Commission on Elections[33] in support of his contention that the residency requirement in §39(a) of the Local Government Code includes the residency of one who is not a citizen

of the Philippines.  Residency, however, was not an issue in that case and this Court did not make any ruling on the issue now at bar. The question in Frivaldo  was whether petitioner, who took his oath of repatriation on the same day that his term as governor of Sorsogon began on June 30, 1995, complied with the citizenship requirement under §39(a).  It was held that he had, because citizenship may be possessed even on the day the candidate assumes office. But in the case of residency, as already noted, §39(a) of the Local Government Code requires that the candidate must have been a resident of the municipality  “for at least one (1) year immediately preceding the day of the election.”

Nor can petitioner invoke this Court’s ruling in Bengzon III v. House of Representatives Electoral Tribunal.[34] What the Court held in that case was that, upon repatriation, a former natural-born Filipino is deemed to have recovered his original status as a natural-born citizen.

Third,  petitioner nonetheless says that his registration as a voter of  Butnga, Oras, Eastern Samar in January 2001 is conclusive of his residency as a candidate because §117 of the Omnibus Election Code requires that a voter must have resided in the Philippines for at least one year and in the city or municipality wherein he proposes to vote for at least six months immediately preceding the election.   As held in Nuval v. Guray,[35] however, registration as a voter does not bar the filing of a subsequent case questioning a candidate’s lack of residency.

Petitioner’s invocation of the liberal interpretation of election laws cannot avail him any.   As held in Aquino v. Commission on Elections:[36]

A democratic government is necessarily a government of laws.  In a republican government those laws are themselves ordained by the people.  Through their representatives, they dictate the qualifications necessary for service in government positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself.

Fourth, petitioner was not denied due process because the COMELEC failed to act on his motion to be allowed to present evidence.  Under §5(d),  in relation to §7, of R.A. No. 6646 (Electoral Reforms Law of 1987), proceedings for denial or cancellation of a certificate of candidacy are summary in nature.   The holding of a formal hearing is thus not de rigeur. In any event, petitioner cannot claim denial of the right to be heard since he filed a Verified Answer, a Memorandum  and a Manifestation, all dated March 19, 2001, before the COMELEC in which he submitted documents relied by him in this petition, which, contrary to petitioner’s claim, are complete and intact in the records.

III.

The statement in petitioner’s certificate of candidacy that he had been a resident of Oras, Eastern Samar for “two years” at the time he filed such certificate is not true. The question is whether the COMELEC was justified in ordering the cancellation of his certificate of candidacy for this reason.  We hold that it was. Petitioner made a false representation of a material fact in his certificate of candidacy, thus rendering such certificate liable to cancellation.  The Omnibus Election Code provides:

SEC. 74. Contents of certificate of candidacy. ¾ The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge.

SEC. 78.  Petition to deny due course to or cancel a certificate of candidacy. ¾ A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false.   The petition may be

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filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election.

Indeed, it has been held that a candidate’s statement in her certificate of candidacy for the position of governor of Leyte that she was a resident of  Kananga, Leyte when this was not so[37] or that the candidate was a “natural-born” Filipino when in fact he had become an Australian citizen [38] constitutes a ground for the cancellation of a certificate of candidacy. On the other hand, we held in  Salcedo II v. COMELEC [39]  that a candidate who used her husband’s family name even though their marriage was void was not guilty of misrepresentation concerning a material fact. In the case at bar, what is involved is a false statement concerning a candidate’s qualification for an office for which he filed the certificate of candidacy.   This is a misrepresentation of a material fact justifying the cancellation of petitioner’s certificate of candidacy. The cancellation of petitioner’s certificate of candidacy in this case is thus fully justified.

WHEREFORE, the petition is DISMISSED and the resolution of the Second Division of the Commission on Elections, dated July 19, 2001, and the order, dated January 30, 2002 of the Commission on Elections  en banc are AFFIRMED.

SO ORDERED.

G.R. No. 87193 June 23, 1989

JUAN GALLANOSA FRIVALDO, petitioner, vs.COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents.J.L. Misa & Associates for petitioner.Lladoc, Huab & Associates for private respondent. CRUZ, J.:

Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed office in due time. On October 27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter, League), represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a petition for the annulment of Frivaldo; election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United States as alleged but pleaded the special and affirmative defenses that he had sought American citizenship only to protect himself against President Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival against the unrelenting persecution by the Martial Law Dictator's agents abroad." He added that he had returned to the Philippines after the EDSA revolution to help in the restoration of democracy. He also argued that the challenge to his title should be dismissed, being in reality a quo warranto petition that should have been filed within ten days from his proclamation, in accordance with Section 253 of the Omnibus Election Code. The League, moreover, was not a proper party because it was not a voter and so could not sue under the said section.

Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a petition forcertiorari and prohibition to ask that the said orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against the hearing on the merits scheduled by the COMELEC and at the same time required comments from the respondents.

In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American citizen and had not reacquired Philippine citizenship on the day of the election on January 18, 1988. He was therefore not qualified to run for and be elected governor. They also argued that their petition in the Commission on Elections was not really for quo warranto under Section 253 of the Omnibus Election Code. The ultimate

purpose was to prevent Frivaldo from continuing as governor, his candidacy and election being null and void  ab initio because of his alienage. Even if their petition were to be considered as one for quo warranto, it could not have been filed within ten days from Frivaldo's proclamation because it was only in September 1988 that they received proof of his naturalization. And assuming that the League itself was not a proper party, Estuye himself, who was suing not only for the League but also in his personal capacity, could nevertheless institute the suit by himself alone.

Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he was disqualified from public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not amend the Constitution, the Local Government Code, and the Omnibus Election Code. He also joined in the private respondent's argument that Section 253 of the Omnibus Election Code was not applicable because what the League and Estuye were seeking was not only the annulment of the proclamation and election of Frivaldo. He agreed that they were also asking for the termination of Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a Filipino.

In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American citizen was not "impressed with voluntariness." In support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's naturalization in Liechtenstein was not recognized because it had been obtained for reasons of convenience only. He said he could not have repatriated himself before the 1988 elections because the Special Committee on Naturalization created for the purpose by LOI No. 27C had not yet been organized then. His oath in his certificate of candidacy that he was a natural-born citizen should be a sufficient act of repatriation. Additionally, his active participation in the 1987 congressional elections had divested him of American citizenship under the laws of the United States, thus restoring his Philippine citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify him for being time-barred under Section 253 of the Omnibus Election Code.

Considering the importance and urgency of the question herein raised, the Court has decided to resolve it directly instead of allowing the normal circuitous route that will after all eventually end with this Court, albeit only after a, long delay. We cannot permit this delay. Such delay will be inimical to the public interest and the vital principles of public office to be here applied.

It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all contests relating to the election, returns and qualifications of the members of the Congress and elective provincial and city officials. However, the decision on Frivaldo's citizenship has already been made by the COMELEC through its counsel, the Solicitor General, who categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after consultation with the public respondent and with its approval. It therefore represents the decision of the COMELEC itself that we may now review. Exercising our discretion to interpret the Rules of Court and the Constitution, we shall consider the present petition as having been filed in accordance with Article IX-A Section 7, of the Constitution, to challenge the aforementioned Orders of the COMELEC.

The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of his election on January 18, 1988, as provincial governor of Sorsogon. All the other issues raised in this petition are merely secondary to this basic question.

The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution.

In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United

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States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A.

OFFICE OF THE CLERKUNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

September 23, 1988

TO WHOM IT MAY CONCERN:

Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was naturalized in this Court on January 20, 1983, and issued Certificate of Naturalization No. 11690178.

Petition No. 280225.

Alien Registration No. A23 079 270.

Very truly yours, WILLIAM L. WHITTAKERClerkby:(Sgd.) ARACELI V. BARENDeputy Clerk

This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos government through his agents in the United States.

The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing American citizenship. His feeble suggestion that his naturalization was not the result of his own free and voluntary choice is totally unacceptable and must be rejected outright.

There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them subject to greater risk than he, who did not find it necessary — nor do they claim to have been coerced — to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United States, unlike the petitioner who solemnly declared "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," meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime.

The Nottebohm case cited by the petitioner invoked the international law principle of effective nationality which is clearly not applicable to the case at bar. This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows:

Art. 5. Within a third State a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any convention in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.

Nottebohm was a German by birth but a resident of Guatemala for 34 years when he applied for and acquired naturalization in Liechtenstein one month before the outbreak of World War II. Many members of his family and his business interests were in Germany. In 1943, Guatemala, which had declared war on Germany, arrested Nottebohm and confiscated all his properties on the ground that he was a German national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against Guatemala. The International Court of Justice held Nottebohm to be still a national of Germany, with which he was more closely connected than with Liechtenstein.

That case is not relevant to the petition before us because it dealt with a conflict between the nationality laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even the United States is not actively claiming Frivaldo as its national. The sole question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality laws. We can decide this question alone as sovereign of our own territory, conformably to Section 1 of the said Convention providing that "it is for each State to determine under its law who are its nationals."

It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the present case Frivaldo is rejecting his naturalization in the United States.

If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation.

While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the elections in this country, he automatically forfeited American citizenship under the laws of the United States. Such laws do not concern us here. The alleged forfeiture is between him and the United States as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual.

Frivaldo's contention that he could not have repatriated himself under LOI 270 because the Special Committee provided for therein had not yet been constituted seems to suggest that the lack of that body rendered his repatriation unnecessary. That is far-fetched if not specious Such a conclusion would open the floodgates, as it were. It would allow all Filipinos who have renounced this country to claim back their abandoned citizenship without formally rejecting their adoptedstate and reaffirming their allegiance to the Philippines.

It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal declaration the law envisions

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— surely, Philippine citizenship previously disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings.

The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office of governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have a right to remain in office simply because the challenge to her title may no longer be made within ten days from her proclamation? It has been established, and not even denied, that the evidence of Frivaldo's naturalization was discovered only eight months after his proclamation and his title was challenged shortly thereafter.

This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state.

It is true as the petitioner points out that the status of the natural-born citizen is favored by the Constitution and our laws, which is all the more reason why it should be treasured like a pearl of great price. But once it is surrendered and renounced, the gift is gone and cannot be lightly restored. This country of ours, for all its difficulties and limitations, is like a jealous and possessive mother. Once rejected, it is not quick to welcome back with eager arms its prodigal if repentant children. The returning renegade must show, by an express and unequivocal act, the renewal of his loyalty and love.

WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not a citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly elected Vice-Governor of the said province once this decision becomes final and executory. The temporary restraining order dated March 9, 1989, is LIFTED.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Sarmiento, J., took no part.

Cortes J., concurs in the result.

Separate Opinions

 GUTIERREZ, JR., J., concurring:

I concur in the pragmatic approach taken by the Court. I agree that when the higher interests of the State are involved, the public good should supersede any procedural infinities which may affect a petition filed with the Commission on Elections. I fail to see how the Court could allow a person who by his own admissions is indubitably an alien to continue holding the office of Governor of any province.

It is an established rule of long standing that the period fixed by law for the filing of a protest — whether quo warranto or election contest — is mandatory and jurisdictional. 1

As a rule, the quo warranto petition seeking to annul the petitioner's election and proclamation should have been filed with ten days after the proclamation of election results. 2 The purpose of the law in not allowing the filing of protests beyond the period fixed by law is to have a certain and definite time within which petitions against the results of an election should be filed and to provide summary proceedings for the settlement of such disputes. 3 The Rules of Court allow the Republic of the Philippines to file quo warranto proceedings against any public officer who performs an act which works a forfeiture of his office. 4 However, where the Solicitor General or the President feel that there are no good reasons to commence quo warranto proceedings, 5 the Court should allow a person like respondent Estuye or his league to bring the action.

I must emphasize, however, that my concurrence is limited to a clear case of an alien holding an elective public office. And perhaps in a clear case of disloyalty to the Republic of the Philippines. 6Where the disqualification is based on age, residence, or any of the many grounds for ineligibility, 7 I believe that the ten-day period should be applied strictly.

The pragmatic approach is also shown by the fact that the Court found it inexpedient to wait for the final decision of COMELEC. This step is most unusual but considering the total lack of any serious grounds for the petitioner's claim of having regained his Philippine citizenship, I am constrained to concur in the procedure pro hac vice.

  Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the pragmatic approach taken by the Court. I agree that when the higher interests of the State are involved, the public good should supersede any procedural infinities which may affect a petition filed with the Commission on Elections. I fail to see how the Court could allow a person who by his own admissions is indubitably an alien to continue holding the office of Governor of any province.

It is an established rule of long standing that the period fixed by law for the filing of a protest — whether quo warranto or election contest — is mandatory and jurisdictional. 1

As a rule, the quo warranto petition seeking to annul the petitioner's election and proclamation should have been filed with ten days after the proclamation of election results. 2 The purpose of the law in not allowing the filing of protests beyond the period fixed by law is to have a certain and definite time within which petitions against the results of an election should be filed and to provide summary proceedings for the settlement of such disputes. 3 The Rules of Court allow the Republic of the Philippines to file quo warranto proceedings against any public officer who performs an act which works a forfeiture of his office. 4 However, where the Solicitor General or the President feel that there are no good reasons to commence quo warranto proceedings, 5 the Court should allow a person like respondent Estuye or his league to bring the action.

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I must emphasize, however, that my concurrence is limited to a clear case of an alien holding an elective public office. And perhaps in a clear case of disloyalty to the Republic of the Philippines. 6Where the disqualification is based on age, residence, or any of the many grounds for ineligibility, 7 I believe that the ten-day period should be applied strictly.

The pragmatic approach is also shown by the fact that the Court found it inexpedient to wait for the final decision of COMELEC. This step is most unusual but considering the total lack of any serious grounds for the petitioner's claim of having regained his Philippine citizenship, I am constrained to concur in the procedure pro hac vice.

LOIDA NICOLAS-LEWIS,  GREGORIO B. MACABENTA, ALEJANDRO A. ESCLAMADO, ARMANDO B. HEREDIA, REUBEN S. SEGURITAN, ERIC LACHICA FURBEYRE, TERESITA A. CRUZ, JOSEFINA OPENA DISTERHOFT, MERCEDES V. OPENA, CORNELIO R. NATIVIDAD, EVELYN D. NATIVIDAD,                                                      Petitioners,

                           - versus -

COMMISSION ON ELECTIONS,                                                    Respondent.

      G.R. No. 162759

       Present:

         PANGANIBAN, C.J.,         PUNO,         QUISUMBING,         YNARES-SANTIAGO,         SANDOVAL-GUTIERREZ,        CARPIO,        AUSTRIA-MARTINEZ,        CORONA,        CARPIO-MORALES,        CALLEJO, SR.,        AZCUNA,        TINGA,        CHICO-NAZARIO,        GARCIA, and        VELASCO, JR., JJ.

       Promulgated:

           August 4, 2006

D E C I S I O N 

GARCIA, J.:

        In this petition for certiorari and mandamus, petitioners, referring to themselves as "duals" or dual citizens, pray that they and others who retained or reacquired Philippine citizenship under Republic Act (R.A.) No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003, be allowed to avail themselves of the mechanism provided under the Overseas Absentee Voting Act of 2003[1] (R.A. 9189) and that the Commission on Elections (COMELEC) accordingly be ordered to allow them to vote and register as absentee voters under the aegis of R.A. 9189.           The facts:             Petitioners are successful applicants for recognition of Philippine citizenship under R.A. 9225 which accords to such applicants the right of suffrage, among others. Long before the May 2004 national and local elections, petitioners sought registration and certification as "overseas absentee voter" only to be advised by the Philippine Embassy in the United States that, per a COMELEC letter to the Department of Foreign Affairs dated September 23, 2003[2], they have yet no right to vote in such elections owing to their lack of the one-year residence requirement prescribed by the Constitution.  The same letter, however, urged the different Philippine posts abroad not to discontinue their campaign for voter’s registration, as the residence restriction adverted to would contextually affect merely certain individuals who would likely be eligible to vote in future elections.             Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the ruling in Macalintal vs. COMELEC [3] on the residency requirement, the COMELEC wrote in response: 

            Although R.A. 9225 enjoys the presumption of constitutionality …, it is the Commission's position that those who have availed of the law cannot exercise the right of suffrage given under the OAVL for the reason that the OAVL was not enacted for them.  Hence, as Filipinos who have merely re-acquired their citizenship on 18 September 2003 at the earliest, and as law and jurisprudence now stand, they are considered regular voters who have to meet the requirements of residency, among others under Section 1, Article 5 of the Constitution. [4] 

        Faced with the prospect of not being able to vote in the May 2004 elections owing to the COMELEC's refusal to include them in the National Registry of Absentee Voters, petitioner Nicolas-Lewis et al., [5] filed on April 1, 2004 this petition for certiorari and mandamus.           A little over a week before the May 10, 2004 elections, or on April 30, 2004, the COMELEC filed a Comment,[6] therein praying for the denial of the petition.  As may be expected, petitioners were not able to register let alone vote in said elections.             On May 20, 2004, the Office of the Solicitor General (OSG) filed a Manifestation (in Lieu of Comment), therein stating that “all qualified overseas Filipinos, including dual citizens who care to exercise the right of suffrage, may do so” , observing, however, that the conclusion of the 2004 elections had rendered the petition moot and academic.[7]            The holding of the 2004 elections had, as the OSG  pointed out, indeed rendered the petition moot and academic, but  insofar only  as petitioners’ participation in such political exercise is concerned. The broader and transcendental issue tendered or subsumed in the petition, i.e., the propriety of allowing “duals” to participate and vote as absentee voter in future elections, however, remains unresolved.

          Observing the petitioners’ and the COMELEC’s respective formulations of the issues,  the same may be reduced into the question of whether or not petitioners and others who might have meanwhile retained and/or reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee voter under R.A. 9189.                   The Court resolves the poser in the affirmative, and  thereby accords  merit to the petition.           In esse, this case is all about suffrage. A quick look at the governing provisions on the right of suffrage is, therefore, indicated.                             We start off with Sections 1 and 2 of Article V of the Constitution, respectively reading as follows:

            SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. xxx.

            SEC 2. The Congress shall provide … a system for absentee voting by qualified Filipinos abroad. 

        In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general eligibility factor for the right to vote. On the other hand, Section 2 authorizes Congress to devise a system wherein an absentee may vote, implying that a non-resident may, as  an exception to the residency prescription in the preceding section, be allowed to vote.            In response to its above mandate, Congress enacted R.A. 9189 - the OAVL [8] - identifying in its Section 4 who can vote under it and in the following section who cannot, as follows:

             Section 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives.            Section 5.  Disqualifications. – The following shall be disqualified from voting under this Act:

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             (a)        Those who have lost their Filipino citizenship in accordance with Philippine laws;             (b)        Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country;             (c)        Those who have … [been] convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have … been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, ….;

            (d)        An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act.  Such affidavit shall also state that he/she has not applied for citizenship in another country.  Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.

(e)                Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority …. (Words in bracket added.)

        Notably, Section 5 lists those who cannot avail themselves of the absentee voting mechanism. However, Section 5(d) of the enumeration respecting Filipino immigrants and permanent residents in another country opens an exception and qualifies the disqualification rule. Section 5(d) would, however, face a constitutional challenge on the ground that, as narrated inMacalintal,  it - 

            … violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months immediately preceding an election.  [The challenger] cites … Caasi vs. Court of Appeals [9] to support his claim [where] the Court held that a “green card” holder immigrant to the [US] is deemed to have abandoned his domicile and residence in the Philippines.

            [The challenger] further argues that Section 1, Article V of the Constitution does not allow provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise; that the legislature should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by providing a condition thereon which in effect amends or alters the aforesaid residence requirement to qualify a Filipino abroad to vote.  He claims that the right of suffrage should not be granted to anyone who, on the date of the election, does not possess the qualifications provided for by Section 1, Article V of the Constitution.[10] (Words in bracket added.)

        As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A. 9189 mainly on the

strength of the following premises: 

            As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is “recognized as such in the host country” because immigration or permanent residence in another country implies renunciation of one's residence in his country of origin.  However, same Section allows an immigrant and permanent resident abroad to register as voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that “all citizens of the Philippines not otherwise disqualified by law” must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting.

             Contrary to the claim of [the challenger], the execution of the affidavit itself is not the enabling or enfranchising act.  The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin.  Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes “provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise.” [11]

        Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress enacted R.A. 9225 the

relevant portion of which reads: 

            SEC. 2. Declaration of Policy. – It is hereby declared the policy of the State that all Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act.

            SEC. 3. Retention of Philippine Citizenship. – Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: 

            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.

             SEC. 4. Derivative Citizenship. – The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines.

            SEC. 5. Civil and Political Rights and Liabilities. – Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

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             (1)        Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as “The Overseas Absentee Voting Act of 2003” and other existing laws;

             (2)        Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship …;

             3)    xxx                        xxx                               xxx.

             (4)   xxx                       xxx                                xxx;

             (5)        That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who:

            (a)        are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or 

            (b)        are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens.

          After what appears to be a successful application for recognition of Philippine citizenship under R.A. 9189, petitioners now invoke their right to enjoy … political rights, specifically the right of suffrage, pursuant to Section 5 thereof.             Opposing the petitioners’ bid, however, respondent COMELEC invites attention to the same Section 5 (1) providing that “duals” can enjoy their right to vote, as an adjunct to political rights, only if  they meet the requirements of Section 1, Article V of the Constitution, R.A. 9189 and other existing laws.   Capitalizing on what at first blush is the clashing provisions of theaforecited provision of the Constitution, which, to repeat, requires residency in the Philippines for a certain period, and R.A. 9189 which grants a Filipino non-resident absentee voting rights,[12] COMELEC argues: 

4.         ‘DUALS’ MUST FIRST ESTABLISH THEIR DOMICILE/ RESIDENCE IN THE PHILIPPINES

 4.01.    The inclusion of such additional and specific requirements in RA 9225 is logical.  The ‘duals,’ upon renouncement of their Filipino citizenship and acquisition of foreign citizenship, have practically and legally abandoned their domicile and severed their legal ties to the homeland as a consequence.  Having subsequently acquired a second citizenship (i.e., Filipino) then, ‘duals’ must, for purposes of voting, first of all, decisively and definitely establish their domicile through positive acts; [13]

        The Court disagrees.           As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote.  On the contrary, R.A. 9225, in implicit acknowledgment that “duals” are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who,

save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote. Thus, wrote the Court in Macalintal:

            It is clear from these discussions of the … Constitutional Commission that [it] intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin.  The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents’ domicile of origin is in the Philippines, and consider them qualified as voters for the first time.

             It is in pursuance of that intention that the Commission provided for Section 2 [Article V] immediately after the residency requirement of Section 1.  By the doctrine of necessary implication in statutory construction, …, the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad.  The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution.

             That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus: 

            Senator Arroyo.  Mr. President, this bill should be looked into in relation to the constitutional provisions.  I think the sponsor and I would agree that the Constitution is supreme in any statute that we may enact.

             Let me read Section 1, Article V, of the Constitution ….

       xxx             xxx                   xxx 

            Now, Mr. President, the Constitution says, “who shall have resided in the Philippines.”  They are permanent immigrants.  They have changed residence so they are barred under the Constitution. This is why I asked whether this committee amendment which in fact does not alter the original text of the bill will have any effect on this?

            Senator Angara.  Good question, Mr. President.  And this has been asked in various fora.  This is in compliance with the Constitution.  One, the interpretation here of “residence” is synonymous with “domicile.”

             As the gentleman and I know, Mr. President, “domicile” is the intent to return to one's home.  And the fact that a Filipino may have been physically absent from the Philippines and may be physically a resident of the United States, for example, but has a clear intent to return to the Philippines, will make him qualified as a resident of the Philippines under this law.

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             This is consistent, Mr. President, with the constitutional mandate that we – that Congress – must provide a franchise to overseas Filipinos.

             If we read the Constitution and the suffrage principle literally as demanding physical presence, then there is no way we can provide for offshore voting to our offshore kababayan, Mr. President.

             Senator Arroyo.  Mr. President, when the Constitution says, in Section 2 of Article V, it reads:  “The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad.”

             The key to this whole exercise, Mr. President, is “qualified.”  In other words, anything that we may do or say in granting our compatriots abroad must be anchored on the proposition that they are qualified.  Absent the qualification, they cannot vote.  And “residents” (sic) is a qualification.

             xxx                   xxx                   xxx

             Look at what the Constitution says – “In the place wherein they propose to vote for at least six months immediately preceding the election.”

             Mr. President, all of us here have run (sic) for office.

             I live in Makati.  My neighbor is Pateros ….  We are separated only by a creek.  But one who votes in Makati cannot vote in Pateros unless he resides in Pateros for six months.  That is how restrictive our Constitution is. ….

             As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so.  But he must do so, make the transfer six months before the election, otherwise, he is not qualified to vote. 

xxx       xxx       xxx

            Senator Angara.  It is a good point to raise, Mr. President.  But it is a point already well-debated even in the constitutional commission of 1986.  And the reason Section 2 of Article V was placed immediately after the six-month/one-year residency requirement is to demonstrate unmistakably that Section 2 which authorizes absentee voting is an exception to the six-month/one-year residency requirement.  That is the first principle, Mr. President, that one must remember.

             The second reason, Mr. President, is that under our jurisprudence … – “residency” has been interpreted as synonymous with “domicile.”

             But  the  third  more  practical reason, … is, if we  follow  the  interpretation  of  the  gentleman,  then it is legally and constitutionally impossible to give a franchise to vote to overseas Filipinos who do not physically live in the country, which is quite ridiculous because  that  is  exactly  the  whole point of this exercise – to enfranchise them and empower them to vote. [14] (Emphasis and words in bracket added; citations omitted) 

          Lest it be overlooked, no less than the COMELEC itself admits that the  Citizenship Retention and

Re-Acquisition Act  expanded the coverage of overseas absentee voting. According to the poll body: 

1.05     With the passage of RA 9225 the scope of overseas absentee voting has been consequently expanded so as to include Filipinos who are also citizens of other countries, subject, however, to the strict prerequisites indicated in the pertinent provisions of RA 9225; [15]

         Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the scope of that law with the passage of  R.A. 9225, the irresistible conclusion is that "duals" may now exercise the right of suffrage thru the absentee voting scheme and as overseas absentee voters. R.A. 9189 defines the terms adverted to in the following wise:

                        “Absentee Voting” refers to the process by which qualified citizens of the Philippines abroad exercise their right to vote;                       

            “Overseas Absentee Voter” refers to a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections;

        While  perhaps  not  determinative  of  the  issue  tendered  herein, we note  that the expanded thrust of R.A. 9189 extends also to what might be tag as the next generation of "duals". This may be deduced from the inclusion of the provision on derivative citizenship in R.A. 9225 which reads: 

            SEC. 4. Derivative Citizenship. – The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines. 

        It  is  very  likely  that   a   considerable   number  of  those  unmarried  children  below  eighteen  (18)  years  of  age  had  never  set foot in the Philippines.  Now then,  if the next generation of "duals" may nonetheless avail themselves the right to enjoy full civil and political rights under Section 5 of the Act, then there is neither no rhyme nor reason why the petitioners and other present day  "duals," provided they meet the requirements under Section 1, Article V of the Constitution in relation to R.A. 9189, be denied the right of suffrage as an overseas absentee voter. Congress could not have plausibly intended such absurd situation. 

           WHEREFORE, the instant petition is GRANTED.  Accordingly, the Court rules and so holds that those who retain or re-acquire Philippine citizenship under Republic Act No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003, may exercise the right to vote under the system of absentee voting in  Republic Act No. 9189, the Overseas Absentee Voting Act of 2003.                   SO ORDERED.

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