'It is quite clear that a former Filipino who reacquires Philippine citizenship pursuant to RA 9225 has to perform an act to acquire or perfect his or her Philippine citizenship'


SEPARATE OPINION. Commission on Elections chairman Andres Bautista, like all the other commissioners, says Senator Grace Poe is not a natural-born Filipino. File photo by Ben Nabong/Rappler

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FULL TEXT: Comelec chief Bautista's separate opinion on Grace Poe's citizenship

'It is quite clear that a former Filipino who reacquires Philippine citizenship pursuant to RA 9225 has to perform an act to acquire or perfect his or her Philippine citizenship'

Camille Elemia

@CamilleElemia

Published 7:15 AM, December 24, 2015

Updated 7:15 AM, December 24, 2015

SEPARATE OPINION. Commission on Elections chairman Andres Bautista, like all the other commissioners, says Senator Grace Poe is not a natural-born Filipino. File photo by Ben Nabong/Rappler

MANILA, Philippines – Chairman Andres Bautista is one of two dissenters in the decision of the Commission on Elections (Comelec) en banc rejecting the 2 motions for reconsideration of presidential aspirant Grace Poe on questions about her citizenship and residency.

The en banc voted on 5 points concerning the cases filed before the 1st and 2nd divisions:

• the poll body's jurisdiction over the issue
• Poe's residency
• Poe's citizenship
• whether there was deliberate intention on her part to mislead the electorate on her residency and citizenship status
• whether the appeal will be granted or not

All commissioners said the poll body has jurisdiction over the cases and that Poe is not a natural-born Filipino.

For the residency issues, 5 commissioners, including Bautista, voted against Poe. Only commissioners Luia Guia and Christian Robert Lim voted in favor of Poe.

Meanwhile, only 3 out of the 7 commissioners – Guia, Christian Lim, and Bautista – voted in favor of Poe, saying there was no deliberate intent on her part to mislead the public on her residency status.

As for alleged intent to mislead people on her citizenship status, only Bautista and Commissioner Al Parreño voted in favor of Poe. Lim inhibited from voting on this issue.

Ultimately, 5 voted against Poe's motions, except for Christian Lim and Baustista. The majority were commissioners Parreño, Guia, Arthur Lim, Rowena Guanzon, and Sheriff Abbas.

In his separate opinion on the 1st division case, Baustista said the mere fact that Poe reacquired her citizenship through Republic Act 9225 means she performed an act to perfect her Filipino citizenship, making her a naturalized, not natural-born, Filipino.

Here is the full text of Bautista's concurring and dissenting opinion on the en banc decision upholding the earlier ruling of the 1st division to cancel Poe's certificate of candidacy:

Please refer to the relevant paragprahs in my Concurring and Dissenting Opinion vis-à-vis the Resolution of the Commission En Banc in the case of Elamparo v. Llamanzares, SPA No. 15-001 (DC)

However, I wanted to add a few paragraphs in respect of the issue raised in SPA No. 15-139 (DC) regarding the status of former Filipinos who reacquire their Philippine citizenship pursuant to R.A. 9225.

The 1987 Constitution is clear in its definition of a natural-born citizen. Section 2, Article of the Constitution provides:

“Section 2. Natural-born citizens who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship.”

Thus, under said definition, a Philippine citizen who acquired his or her citizenship from birth must have acquired it without having to perform any act to acquire or perfect his or her Philippine citizenship.

Republic Act No. 9225 otherwise known as the “Citizenship Retention and Reacquisition Act of 2003” was enacted to allow the reacquisition and retention of Philippine citizenship for natural-born citizens who have lost Philippine citizenship by reasons of their naturalization as citizens of a foreign country. In the landmark case of Bengson III v. HRET and Cruz (G.R. No. 142840, 7 May 2001) involving repatriation under Republic Act No. 2630, the Supreme Court explained that repatriation results in the recovery of the original nationality. In Tabasa v. Court of Appealss (G.R. No. 125793, 29 August 2006) which involved repatriation under Republic Act No. 8171 otherwise known as an “Act Providing for the Repatriation of Filipino Women Who Have Lost Their Philippine Citizenship by Marriage to Aliens and of Natural-Born Filipinos,” the Supreme Court likewise declared that repatriation has the effect of allowing a former Filipino to recover his natural-born citizenship. Parreño v. Commission on Audit (G.R. No. 16224, 7 June 2007) characterized the procedure under Republic Act No. 9225 as in the form of repatriation.

It is important to keep in mind that the Constitution is the paramount law of the land which is deemed written in every statute and contract (Manila Prince Hotel v. GSIS, G.R. No. 122156, 3 February 1997). The doctrine of constitutional supremacy as enunciated in the Manila Prince Hotel requires that Republic Act No. 9225 must be read and interpreted in a way that would harmonize it with the Constitution. Laws should not be given an interpretation that would render it unconstitutional. As early as Haydee Herras Teehankee v. Director of Prisons, et. Al. (G.R. No. L-278, 18 July 1946), the Supreme Court, citing 11 Am. Jur., Constitutional law, Section 97, ruled to construe the law in consonance with the mandates of the Constitution, thus:

“It is an elementary principle that where the validity of a statue is assailed and there are two possible interpretations, the court should adopt the construction which would uphold its constitutionality. It is the duty of courts to adopt a construction of a statute that will bring it into harmony with the constitution, if its language will permit.

Given the foregoing, there can only be one interpretation of Republic Act 9225 that will do justice to the Constitutional requirements for natural-born citizenship: a former Filipino who reacquired Philippine citizenship should be deemed to be a naturalized Filipino citizen.”

Signed.
J. Andres D. Baustista
Chairman

– Rappler.com

Comelec upholds Poe DQ

Senator given five days to get TRO

Sen. Grace Poe’s name would be stricken off the official list of candidates for President if she failed to get a temporary restraining order (TRO) or any other relief from the Supreme Court (SC) within five calendar days from date of receipt of the en banc’s disqualification order.

“They have to get a TRO once it is an en banc decision from the Supreme Court so that their names will not be removed from the list,” Commission on Elections (Comelec) Chairman Juan Andres Bautista on Wednesday said after the promulgation of the en banc decisions affirming earlier resolutions by the First Division and the Second Division that Poe is not a natural-born Filipino citizen and failed to meet the minimum 10-year residency requirement.

Poe, in a statement, said she expected the ruling.

“I was not surprised with decision of the Comelec en banc. It was expected and I remain undaunted by it. I am a Filipino and qualified to offer myself as President of our country. The Comelec cannot change that, much less deprive our people of their right to choose our next leader.

“We will follow the process and the next and final battleground is in the Supreme Court. I am hopeful and confident that our magistrates, based on jurisprudence and precedents, will be objective and fair in their discernment of my case and, in the end, will let the Filipino people decide who our next President will be.

“Until the high tribunal’s final ruling is out, I remain a candidate for President of the Filipino people,” her statement read.

The First Division is headed by Senior Commissioner Christian Robert Lim with Commissioners Rowena Guanzon and Luie Tito Guia as members. It handled the consolidated case filed by former senator Francisco Tatad, political science professor Antonio Contreras and former law school dean Amado Valdez. It earlier voted 2-1 to disqualify Poe.

In the First Division case, the commission en banc voted 5-2. Bautista and Lim dissented.

The Second Division, on the other hand, is headed by Commissioner Al Parreno as chairman with Commissioners Arthur Lim and Shariff Abas as members. It handled the petition filed by lawyer Estrella Elamparo and voted 3-0 to disqualify Poe.

But in the en banc, the commissioners ruled 5-1-1. The dissenting opinion was again cast by Bautista while Lim inhibited because Elamparo was an associate in his former law firm.

The Comele en banc is composed of Bautista, Christian Lim, Arthur Lim, Guanzon, Abas, Guia and Parreno.

Bautista explained that aside from a TRO, the SC may also issue a mandatory injunction or a status quo ante order, saying any of the three remedies would compel the Comelec to comply.

“But after everything has been said and done, come January we start printing the ballots. We will look at the state of affairs and look what orders come from the Supreme Court and we will follow [them],” the Comelec chief added.

Five-day rule

Commissioner Lim clarified that five calendar-day rule includes holidays but if the last or fifth day falls on a holiday, it would be moved to the next working day as provided under Rule 27 of the Comelec Rules of Procedure.

“Whether or not the Supreme Court is in session, if there is no TRO, we have to remove them. We start editing on January 8,” Lim said. “From the technological standpoint, [in] January will start removing the names from the list.”

But counsel for Poe, lawyer George Garcia, questioned the five-day rule set by the Comelec, saying under the Omnibus Election Code, “it is 30 days from the decision.”

“According to the Rules of Procedure of the Comelec, it is only five days. Look at Section 257 of Omnibus Election Code, even the Constitution, it is 30 days from decision,” Garcia said, adding that if the Comelec would implement it immediately after five days, “we would include it in our MR to the Supreme Court to convince the court to issue a TRO.”

He said the five-day rule is based on Comelec procedure while the 30-day rule is based on substantive law.

“If there is a conflict between [Comelec] procedure and substantive law, the latter will prevail,” according to Garcia.

He explained that the Comelec decision is not executory and as such it could not remove the name of Poe pending final resolution by the SC.

Also according to Garcia, the Comelec procedure was also wrong because it did not consolidate all four cases, which would force them to seek two TROs from the SC.

But Bautista maintained that the en banc decision is executory within five days in the absence of a TRO from the High Court.

“Just because there is a pending case it is not a ground for us not to implement an executory decision of the commission en banc. There has to be an order from the Supreme Cort like temporary restraining order, mandatory injunction or status quo ante order,” he said.

Great disservice to the people

Meanwhile, the Gawa at Prinsipyo Coalition, in a statement, said it would be a grave disservice to Filipinos if the Comelec prematurely excluded Poe’s name from the list because she is clearly a natural-born Filipino and has been a resident of the Philippines for more than 10 years.

“While we are not surprised with the final outcome of the decision of the en banc on Sen. Grace Poe’s certificate of candidacy, we are surprised with the timing [of] this decision given that it is already the holiday season,” it added.

“Christmas is about hope. Do not kill our hope, dear commissioners, Keep Poe’s name in the ballot,” it added.

Palace hoping for fair ruling

Malacanang also on Wednesday expressed hope that the High Court will issue a fair ruling on Poe’s disqualification case.

“In our system of laws, decisions on qualifications of presidential candidates are made by the Comelec and are appealable to the Supreme Court as the final arbiter,” Communications Secretary Herminio Coloma Jr. said in a statement.

“We join our people’s hope and trust that any decision[s] that will eventually be rendered on the matter are imbued with fairness and justice,” he added.

source:  Manila Times

MEL STA. MARIA | SC decision is a setback: 'No Bio No Boto' emasculates our democracy

Atty. Mel Sta. Maria is Dean of the FEU Institute of Law. He is the resident legal analyst of TV5.

At a time when former and/or present dictatorial governments, such as in Myanmar, Iran and Afghanistan, have impressively allowed millions of their citizens to vote, the Philippines, which prides itself for its democracy, is set to disenfranchise 3,000,000 of its own registered voters.

The decision of our Supreme Court last Tuesday, December 16, dismissing the petition of our youths questioning the Comelec's "No Bio No Boto" policy is a serious setback to our electoral process. It is so disappointing. How could validation through biometrics - a pure statutory requirement - be more exalted than the right to vote - a most sacred right enshrined in the Constitution?

If it becomes final, the decision will be remembered for affirming a law prohibiting, not an evil act, but rather a good act - the democratic exercise of a citizen's right to vote. It will be historic in its emasculating effect on our electoral process, as it disables and not enables the citizenry's right of suffrage.

The fundamental "right of suffrage is the most treasured prerogative of citizens through which other rights flow." The collective power of its exercise creates a government truly representative of the people.

The right to vote has reference to a constitutional guarantee of the utmost significance. It is a right without which the principle of sovereignty residing in the people becomes nugatory. In the traditional terminology, it is a political right enabling every citizen to participate in the process of government to assure that it derives its power from the consent of the governed. (Pungutan vs. Abubakar GR No. 33541 January 20, 1972, Moya v. Del Fierro, 69 Phil. 199, 204)

But the Comelec's "No Bio No Boto" policy will decapitate it. Our 1987 Constitution said: "No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage." Validation through biometrics is a "substantive requirement" offensively violating that fundamental command. It is, in effect, not a mere act of registration but a mode of qualification - an affront to the Constitution. It kills rather than safeguards the substantive right to vote.

The magnitude alone of the voters who will be disenfranchised is staggering. It was reported that approximately three million (3,000,000) qualified and registered voters will be deactivated - a very high price to pay for simply failing or omitting, regardless of cause, to undergo a 10-minute process of being digitally photographed and fingerprinted.

The strictest scrutiny demands that, if the law's purpose is to prevent flying or ghost voters, convincing evidence must be shown that all, if not a majority, of these 3,000,000 citizens are evil voters - a heavy burden to prove on the part of government , but nevertheless a necessary undertaking because what is at issue is the right of suffrage. As I have always said, I believe that, of the 3,000,000 registered voters who will be disenfranchised, much more are the good ones than the evil ones. How will they, the good ones, be protected? The law is silent on this point. It does not preserve and safeguard the citizens' right to vote.

Indeed, what kind of government rejoices in the disenfranchisement of qualified and registered voters numbering in the millions? It is a perplexity. Three million people is a critical mass. In other countries, the deprivation of their right may spark a revolution - for at its core is the stifling of the most basic democratic act - THE VOTE. John Adams, himself a political scientist and addressing public officials admonished: "We should be unfaithful to ourselves if we ever lose sight of the danger to our liberties if anything partial or extraneous should infect the purity of our free, fair, virtuous and independent elections."

The repulsiveness attending this deprivation becomes more pronounced considering that all, if not a majority, of those who will be disenfranchised are taxpayers - people who toiled and provided money to our country just to get it moving. How dare the government take away the taxpayers' most powerful political right just for not being able to appear in front of a computer?

Validation through biometrics is good but the penalty of deactivation as provided in Section 7 of Republic Act No. 10367 is uncalled for. A less restrictive constitutionally allowable situation can be achieved. For example, if the Supreme Court partially declares the law constitutional in so far as the validation-via-biometrics-part is concerned and declares the penalty of deactivation unconstitutional, it is a win-win solution. Deactivation will stop while validation will indefinitely continue up to the time it reaches its maximum result. Consequently, even on election day, May 9, 2016, the 3,000,000 registered voters who have not undergone validation can now do so on election day itself. The purpose of the law would have been achieved. And more fundamentally, the right to vote would not have been lost. The law would have been implemented in the spirit of participatory and representative democracy.

Section 7 of Republic Act No. 10367 emasculates our electoral process. It has no place in our democratic life. Let the choice of the real and actual majority of our people, not biometrics, determine our future leaders. Let us uphold the sanctity of the exercise of the right of suffrage.

source:  TV5

CJ Panganiban: SC speedily removes electoral roadblocks

With commendable alacrity and speed, the Supreme Court resolved two crucial electoral roadblocks that threatened to upset the preparations for the presidential polls next year.

Deadline for registration. First, on Dec. 8, it junked the petition of the Kabataan Party-list (and others) challenging two resolutions of the Commission on Elections (Comelec) that fixed the deadline for filing applications for registration of voters on Oct. 31, 2015.

Second, on Dec. 16, it trashed a petition also of Kabataan Party-list et al. questioning the “No Bio-No Boto” policy of the poll watchdog. It likewise lifted the temporary restraining order it earlier issued thereon.

Whether we agree with the two decisions or not, our people, I think, should applaud the speed and diligence with which the tribunal acted, and should encourage it to act with similar dispatch on all election-related matters.

In the first case, the petitioners contended that the last day fixed by the Comelec for filing applications for registration, Oct. 31, 2015, is more than two months earlier than what the Voters Registration Law (Republic Act No. 8189) provides. Consequently, the Comelec effectively disenfranchised 2.4 million voters who failed to register.

After receiving the petition, the Court ordered the Comelec to file a comment, which the poll body did last Dec. 7. Voila, the next day, Dec. 8, the Court very promptly issued its unanimous three-page resolution dismissing the petition. It held that the

Voters Registration Law, upon which the petition is anchored, merely stated that “[n]o registration shall, however, be conducted during the period starting 120 days before a regular election…”

It explained that “what the Voters Registration Act merely provides is that registration shall no longer be allowed during the period of 120 days before a regular election or, in this case, beyond Jan. 8, 2016. It does not, however, mandate the period for registration should be up to such time.”

Filipino restatement. Anent the second case, the Comelec policy or slogan called “No Bio-No Boto” is a short, catchy Filipino restatement of the provision of the Mandatory Biometrics Registration Law of 2013 (RA 10367) stating that voters who fail to have their biometrics validated on or before the last day for registration shall be deactivated and not allowed to vote in the elections on May 9, 2016.

The Comelec explained that the public information campaign for this policy coincided with the period for continuing voter registrations, which is the subject of the first case. This campaign started in May 2014 and lasted up to Oct. 31, 2015. During those 18 months, registered voters were reminded to update and validate their biometric records; otherwise, they would not be able to vote.

The Court agreed with the Comelec that voters had been given sufficient notice of the “No Bio-No Boto” policy. Contrary to the petitioners’ contention that the policy imposes an unconstitutional burden that practically nullifies the citizens’ right to vote, the Court, through Justice Estela M. Perlas-Bernabe, explained—and I agree—that a distinction should be made between the voters’ “qualifications” and their “registration.”

Registration is merely a preparatory step toward voting and “is not one of the elements that make the citizen a qualified voter.” On the other hand, the biometrics data requirement rids the voters’ list of “ghost” and “flying” voters.

Comelec timetable. While I initially sympathized with the petitioners’ desire to prevent the disenfranchisement of 2.4 million voters who failed to meet the Oct. 31 deadline, I had to consider, too, that such extension would imperil the Comelec’s meticulously planned preparations for the 2016 automated elections, and might result in electoral chaos. These preparations include:

(1) The completion of the “Project of Precincts” (POP) which contains the data on the distribution of the 54.5 million registered voters to the 373,786 established precincts and 94,000 clustered precincts in 42,029 barangays, 1,490 municipalities, 144 cities and 81 provinces, together with the names and locations of the polling centers where the established and clustered precincts are assigned.

(2) The POP data is used by the Comelec to determine, among others, (a) the number of boards of election inspectors, (b) the allocation of the forms and supplies to be procured for use on Election Day, (c) the number of vote-counting machines and other peripherals to be deployed, and (d) the budget needed.

(3) This data will also be used in finalizing the templates of the ballots for the 18,083 elective positions at stake, with at least 45,800 candidates vying for them. Note that in our automated system of elections, the ballots are “precinct-specific” because the local candidates in each town or legislative district are different from those in every other town or district.

(4) There would be 1,953 ballot faces to be posted at the Comelec website which, prior to final printing, would have to be counterchecked by the candidates themselves to verify whether their names have been correctly placed in the voting areas in which they are running.

The foregoing are only some of the grimy details that could not be done properly if the deadlines for the registration applications and biometrics data-taking are relaxed. Rather than risk a chaotic poll and to ensure a credible and orderly election come May 9, 2016, I believe it is much better to abide by and to uphold the Comelec’s timetable.

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Comments to chiefjusticepanganiban@hotmail.com

source:  Philippine Daily Inquirer

CJ Panganiban: Condonation reversal, praised and pilloried

The Supreme Court’s decision reversing the infamous condonation doctrine but only prospectively (Morales vs Court of Appeals, Nov. 10, 2015) has been both praised and pilloried by critics.

First, the facts. To understand the case fully, let me rewind the facts briefly. On March 10, 2015, Ombudsman (OMB) Conchita Carpio Morales placed Makati Mayor Jejomar Binay Jr. “under preventive suspension for not more than six months without pay during the pendency” of six criminal and six administrative cases being investigated by her office. These cases arose from alleged anomalous awards in the construction of the Makati Parking Building made during his first term of office (2010-2013).

The next day, March 11, Binay Jr. challenged his suspension via a petition for certiorari in the Court of Appeals (CA). On March 16, the CA issued a temporary restraining order (TRO) stopping his suspension on the ground that the alleged anomalous acts were done during his prior term (2010-2013) that had already been condoned by the electorate through his reelection to his current term (2013-2016).

On March 25, Morales filed a petition for certiorari in the Supreme Court assailing the CA’s TRO. She explained that the first paragraph of Sec. 14 of the OMB Law (Republic Act No. 6770) bars any court from issuing any TRO “to delay an investigation being conducted by the OMB … unless there is prima facie evidence that the subject matter of the investigation is outside … the jurisdiction of the OMB.”

The second paragraph of Sec. 14 allows only the Supreme Court, and not the CA or any other court, to “hear any appeal or application for remedy against any decision or finding of the OMB.” In short, Morales argued that (1) the CA had no jurisdiction to pass upon her actions, and (2) the condonation doctrine should be reversed for contravening the Constitution.

CA has jurisdiction. The 71-page decision, superbly written by Justice Estela M. Perlas-Bernabe and concurred in fully by eight magistrates (including Chief Justice Maria Lourdes P. A. Sereno and Senior Justice Antonio T. Carpio) and partly by one (Justice Lucas P. Bersamin) with four taking no part and one being on leave, is a scholarly dissertation of technical legal procedures, which I will now sum up as simply as I can for nonlawyers.

It held that laws passed by Congress cannot restrict the constitutionally-enshrined duty of the entire judiciary (not just of the Supreme Court) “to determine whether or not there has been a grave abuse of discretion … on the part of any branch or instrumentality of the Government.”

Consequently, the OMB Law cannot restrict the duty of the CA, which is a part of the “judiciary,” from hearing Binay Jr.’s petition for certiorari alleging “grave abuse of discretion” on the part of the Office of the OMB, which is an “instrumentality of the Government.”

It logically follows that the CA has authority to issue TROs against orders of the OMB, since such orders are inherent “ancillaries” to its jurisdiction over petitions for certiorari. TROs are mere “regulatory processes meant to prevent a case from being mooted by the interim acts of the parties.”

Moreover, the 1987 Constitution also (1) granted the Supreme Court the sole power, to the exclusion of Congress, to “promulgate rules concerning … procedure in all courts,” and (2) prohibited Congress from “increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence.” Consequently, the OMB Law cannot restrict or amend the court-approved rules of procedure which allow the CA to hear cases against administrative rulings of the OMB.

Furthermore, the high court’s appellate jurisdiction is limited by the Constitution to decisions or orders of “courts” and does not include quasijudicial agencies like the OMB. By including appeals from rulings of the OMB, the OMB Law unconstitutionally increased the high court’s appellate jurisdiction without its advice and concurrence.

Condonation abandoned. The Court traced the source of the condonation doctrine from an old 1959 case (Pascual vs Provincial Board, Oct. 31, 1959) which was decided under the 1935 Constitution when graft was not rampant, and when honor, integrity and delicadeza were sacred values practiced universally.

However, after over half a century, times have changed, unfortunately for the worse; now, corruption has become pervasive, thereby impelling the present Constitution to mandate transparency, honesty and accountability.

After a thorough review, the Court held: “Election is not a mode of condoning an administrative offense, and there is simply no constitutional or statutory basis … to support the notion that an official elected for a different term is fully absolved of any administrative liability arising from an offense done during a prior term.”

Nonetheless, the Court ruled that the reversal or abandonment of the doctrine shall be given only prospective effect, because under the Civil Code, judicial decisions which “form part of the legal system … shall have no retroactive effect unless the contrary is provided.” I tried researching, but I found no jurisprudence authorizing retroactivity for abandoned doctrines.

In sum, the decision ruled that the CA has jurisdiction to pass upon the OMB’s rulings in administrative cases and that, henceforth, condonation by reelection can no longer be used as a defense.

Postscript. On Oct. 9, 2015, the OMB dismissed Binay Jr. from his office as Makati mayor, thereby mooting his CA petition.

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Comments to chiefjusticepanganiban@hotmail.com. 

source:  Philippine Daily Inquirer

CJ: Contrasting the Comelec and SET decisions

The three-member Second Division of the Commission on Elections (Comelec) cancelled the certificate of candidacy for president of Sen. Grace Poe on the ground that her “material representations” about her natural-born citizenship and 10-year Philippine residency were “false.” In contrast, the Senate Electoral Tribunal (SET) earlier upheld her natural-born citizenship but did not rule on her residency. Here are some questions raised by readers:

Question 1: What will happen to these contrasting rulings? 

Answer: Senator Poe will file Monday with the seven-member Comelec en banc a motion for reconsideration. On the other hand, with the denial of his motion for reconsideration by the SET, Rizalino David is poised to go to the Supreme Court. Ultimately, these two cases (and the three others still pending in the Comelec’s First Division) will be elevated to the high court for a final consolidated decision. Meanwhile, Poe’s name will be printed in the automated ballots, as was done in Joseph Estrada’s case in the 2010 presidential election.

Question 2: Once the SET decision reaches the Supreme Court, will the three justice-members still participate and vote there? 

Answer: No, having judged below, they can no longer judge above.

Question 3: The SET voted 5-4. Isn’t this unreliable? 

Answer: Many landmark cases, here and abroad, have been decided by one vote. Thus, our Supreme Court, voting 8-7 in Lambino vs Comelec (Oct. 26, 2006), trashed the people’s initiative to institute the parliamentary system here. The US Supreme Court, voting 5-4 in Bush vs Gore (Dec. 12, 2000), rejected the recount of the contested ballots in Florida and ushered in the election of George W. Bush as the new US president.

Question 4: Isn’t it unfair for Sen. Loren Legarda to ask our electorate to decide legal issues? Answer: No, she did not so ask. Rather, she first quoted from Frivaldo vs Comelec (June 26, 1996) the two main ways of legal interpretation, thus: “At balance, the question really boils down to a choice of … how to interpret and apply laws relating to elections: literal or liberal, the letter or the spirit, the naked provision or the ultimate purpose, legal syllogism or substantial justice, in isolation of or in the context of social conditions, harshly against or gently in favor of the voters’ choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.”

Then, choosing the liberal way of interpretation, she opined: “In case of doubt in the interpretation of constitutional and legal provisions involving popular sovereignty, it is best to interpret such provisions in a manner that enables our electorate to elect freely their chosen leader.”

Question 5: Under the same Frivaldo doctrine, should Rodrigo Duterte be allowed to run? 

Answer: I do not have the complete facts on Duterte’s case but if, as reported in the media, the only reason for his alleged disqualification is a typographical error, I believe he should be allowed to run for president. Substantial justice, not literal interpretation, should be applied. This does not mean I approve of his human rights shortcuts or habitual cussing. Legal eligibility is different from electoral acceptability.

Question 6: Senator Poe is not poor. Why should the social justice principle of giving more law to those who have less in life favor her? 

Answer: Social justice does not favor only the impoverished. It equally favors the disabled, the sick, the abandoned (like foundlings), the infirm, the mentally-retarded, the disaster-stricken and everyone economically, socially, politically, racially and medically disadvantaged.

Question 7: Why should the abandoned, like foundlings, be given more law? Dura lex sed lex. The law may be harsh; nevertheless, it must strictly be followed and applied equally to everyone, isn’t it? 

Answer: Dura lex sed lex is a favorite expression of lawyers educated under the Analytical School of legal philosophy. They interpret law verba legis, that is, according to the literal meaning of the words used. However, I believe the better way of interpretation is to look at the spirit, the intent and the substance of the law. I think that lawyers should not be mere automatons or legal technicians who apply laws strictly and automatically without considering their effects on society. Rather, they should be social engineers who help build just societies with law as their tool.

Question 8: Apart from the presidency, vice presidency, Senate and House memberships, are there other positions that require natural-born citizenship? 

Answer: Yes, thousands of others, like commissioners of elections, audit, civil service, human rights; ombudsman; most judicial and prosecutorial posts; directorships in several bureaus and commissions; memberships in boards of examiners of various professions; grantees of scholarships; and others too numerous to fit in this space. The point is: Foundlings should not be denied entry to these offices or grants.

Question 9: Should we simply forget Poe’s abandonment of our country when she became an American and accept her now as our president? 

Answer: That is a political, not legal, question that is better answered by our people via their ballots. Not every question can and should be decided by our tribunals. Let Poe explain to our people, and if the majority accepts her explanation and votes her to office, so be it. This is the essence of democracy. As the axiom goes, Vox populi vox Dei.

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Comments to chiefjusticepanganiban@hotmail.com

source:  Philippine Daily Inquirer

‘Poe could be jailed’

Tatad’s lawyer: Misrepresenting COC is an election offense with penalties

SEN. Grace Poe could be jailed for committing a misrepresentation in her certificate of candidacy (COC), the lawyer for one of the petitioners who wanted her disqualified from joining next year’s elections said on Wednesday.

According to Manuel Luna, the counsel of former senator and The Manila Times columnist Francisco Tatad, the Comelec Second Division’s recent decision to disqualify Poe was based on an election offense that carries a penalty of “one to six years of imprisonment, disqualification to hold public office and deprivation of the right of suffrage.”

“The President cannot even pardon [Poe] if found guilty without the concurrence of the Comelec,” Luna told reporters in a media forum in San Juan City (Metro Manila).

Tatad is one of the five petitioners who questioned Poe’s COC for President before the Comelec. All assailed Poe’s claim that she has satisfied the constitutional requirements on citizenship and residency.

The Second Division on Tuesday handed down its ruling on the petition of lawyer Estrella Elamparo who said all existing legal records negate Poe’s claim that she is a natural-born Filipino and that she has complied with the minimum 10-year residency requirement for one to be able to run for President.

Aside from Tatad and Elamparo, separate petitions were filed against the 47-year-old senator by radio commentator Rizalito David, former law dean Amado Valdez and political science professor Antonio Contreras.

David had also petitioned the Senate Electoral Tribunal to nullify Poe’s proclamation as among the winners in the 2013 senatorial elections on the same grounds. An appeal to reverse the tribunal’s 5-4 ruling dismissing the petition is pending.

Luna said he is confident that the poll body will rule in favor of the other petitions, given the dissenting opinion of the three Supreme Court (SC) associate justices in the Senate Electoral Tribunal.

Poe to remain in ballot
Regardless of a favorable or an unfavorable decision from the Comelec en banc, Poe’s name will remain on the official list of candidates and in the ballots unless a final disqualification verdict is handed down by the SC prior to the printing of ballots.

The Comelec spokesman, Director James Jimenez, also on Wednesday said it would be prudent and practical on the side of the poll body to include the senator’s name rather than exclude it, considering that the case will definitely reach the High Court, and nobody knows what the SC’s final verdict will be.

Elamparo also on Wednesday filed an “urgent petition to exclude” Poe from the official list of candidates and from the ballots.

Her petition to cancel the senator’s COC for President was granted by the Comelec Second Division in a resolution handed out on Tuesday.

Jimenez pointed out that the non-inclusion of Poe’s name in the ballot based on the Comelec en banc’s unfavorable decision would complicate things later if the SC would rule the other way around.

“It’s easier to ignore the votes cast for that person than to take [him] out of the ballot then later on find out that [he] should have been in the ballot in the first place. So it’s practical to include [Poe’s] name,” he said.

But Luna disagreed, saying it would be a violation of the Omnibus Election Code and the Rules of Court.

He explained that Poe’s name should be excluded from the ballot once the commission en banc ruled against her, “unless she is able to secure a temporary restraining order from the Supreme Court.”

“The en banc should not be preempted. [Comelec] Chairman [Andres] Bautista can better shed light on that… Until they issue a resolution to that effect, we cannot say that she will be included or excluded. That is why I’m reserving my opinion because I’m respecting the action of the en banc at a proper time,” Luna said.

He added that the status quo remains simply because the decision of the Second Division is not yet final and executory while the First Division is yet to make a decision.

“We are pretty confident that the First Division will also side with us not because the Second Division has already ruled against her but because of the superiority of the arguments that we have presented,” Luna said.

In her urgent petition to exclude Poe, Elamparo pointed out that based on the timeline of the Comelec, it has to come up with the official list of presidential candidates on December 20, 2015, and printing of ballots will start by early January next year.

“While respondent may still opt to file a motion for reconsideration within five (5) days from receipt of the aforesaid resolution, petitioner respectfully submits that unless the 01 December resolution is reversed or restrained through a temporary restraining order issued by the Supreme Court, the same should be respected and implemented by excluding respondent from the list of official candidates for the presidency and from the ballots,” she said.

According to her, the Comelec would be contradicting itself if after canceling respondent’s COC, it would still include Poe’s name in the official list of candidates and in the ballots, “as if it is anticipating its decision to be reversed.”

“More important, the exclusion of respondent from the official list of candidates and from the ballots would better serve the interest of justice,” she said.

Naturalized not natural-born
Luna said foundlings are considered as naturalized citizens and not natural-born ones and therefore could not be elected as President.

Poe, who was found abandoned in a church in Iloilo, has no known biological parents.
“Foundlings cannot in any way be a President or senator, unless you amend the Constitution. That’s the only way you can change the situation, that you need to amend it.

The Constitution enunciated jus sanguinis or law of the blood. You cannot create a natural-born citizen [in jus sanguinis] by creating legal fiction or by mere presumption,” Luna said.

Tatad’s petition questioned Poe’s claim that she’s a natural-born citizen.
“[Poe] cannot… [imply] or presume [that she is a] natural-born [citizen]. It should be established as a fact, by blood relationships [because of the jus sanguinis principle,]” he added.

In his petition, Tatad said “Poe is practically stateless, and that foundlings have no parentage,” because “the 1935 Constitution states that she is not a Filipino because of the jus sanguinis principle.”

“[Poe’s] arguments, which are based on the presumption that she is a natural-born citizen based [in turn] on international statutes for foundlings will not be applicable here in the Philippines,” Luna said.

“The Philippines is not a signatory to any international statute on foundlings, and our country doesn’t follow the jus soli [law of the land] principle — if she keeps on insisting that, it will contradict our 1935 and 1987 Constitutions emphasizing jus sanguinis. It should be established as a fact, by blood relationships,” he added.

Tatad was among the personalities who strongly dismissed Poe’s claim that she is a natural-born Filipino, which is requisite for those seeking public office.

“Grace Poe’s only mistake is that she wants us to believe that she’s a natural-born Filipino when, in fact, she’s not. Poe is only a naturalized Filipino citize—she’s already stateless at birth,” he said.

Poe had submitted herself to DNA testing inearly October, hoping that it would help boost her argument that she is a natural-born citizen before the Senate Electoral Tribunal, which all turned out negative.

“There should be a physical blood relation, maybe that’s the reason why Senator Poe insisted that she will undergo a DNA test because she knows that the physical evidence of a natural-born citizenship is by a natural-blood relationship,” Luna said.

He added that Poe was not registered as a foundling in the separate old civil registry for foundlings—for her to be given an “accommodated type” of naturalization giving her a legal presumption that she is a naturalized citizen.

“Poe must have registered in the separate registry [for foundlings], it would be easy for her to acquire citizenship but still, as a naturalized citizen, not a natural-born [one],” Luna said.

Fight far from over
Poe also on Wednesday said she is not expecting a favorable decision from the other divisions of the Comelec handling her other disqualification cases but noted that her fight is far from over.

She likened her legal fight to a boxing match wherein she won round one when the tribunal dismissed the disqualification case against her, and lost round two after the Second Division ruled in favor of the petition seeking to cancel her COC for President.

Poe said she expects the other divisions of the poll body to have similar decisions, but said she is not bothered because she can still bring the case to the High Court if she fails to get a favorable decision from the Comelec en banc.

“ It is possible that we could lose our case in the Comelec but there is still the Supreme Court. What is important is I’m doing this because I don’t want anyone to be left behind,” she told a news forum.

Poe said she also expects to get a favorable decision from the High Court similar to the ruling it made on a disqualification case filed against her father, the late Fernando Poe Jr., when he ran for President in 2004.

She added that part of the court ruling on the disqualification case stated that the decision on who will be the next President of the country should be left to the sovereign Filipino people, not to unelected members of the court.

Poe said she is convinced that there is an “obvious and conscious” effort to remove her from the 2016 presidential race.

She added that the legal challenges she is facing stem mainly from the desire of some people to take her out of the presidential race because she poses a threat to their own dreams to be the nation’s leader.

“I just feel that’s somebody is behind it. Now, am I being harassed? I’m just doing what I need to do. To be able to go through the process, to be able to overcome these hurdles,” Poe said.

She, however, refused to name those whomshe suspects to be behind the disqualification cases but she noted that two of her rivals would definitely stand to benefit if ever she gets disqualified.

“Pero sabi nga nila masyadong liberal ang decision ng Comelec kaya nga para daw i-mar yung elections ng 2016 [Some are saying the Comelec decision is too liberal and could be part of the attempt to mar the 2016 elections],” Poe said with a pun referring to the Liberal Party and its standard-bearer, Manuel “Mar” Roxas 2nd.

Poe’s running mate Sen. Francis Escudero, in a statement, said the resolution of the Comelec Second Division is just a temporary setback as he sees Poe getting relief either from the Comelec en banc or the Supreme Court.

“We still have faith in our justice system. We believe that in the end, Senator Grace will be allowed to run not only based on international and domestic laws, but also based on the factual situation of the case,” Escudero added.

He expressed optimism that Poe will be able to attain a favorable decision either from the Comelec en banc or the Supreme Court.

“At the end of the day, laws are invented and created to achieve justice. I am of the firm belief that in the end, justice will still prevail,” Escudero said.

Poe’s lawyers also remain optimistic that the Comelec en banc will overturn the resolution of its Second Division.

George Garcia, in a statement, noted that the division completely ignored previous rulings of the Supreme Court that are applicable to Poe’s case and which should have been the bases in ruling that she fulfilled the 10-year residency requirement for presidential candidates.

“We will convince the Comelec en banc that the Second Division erred in its resolution,” Garcia said, adding that they have until December 7 to appeal the Second Division ruling with the en banc.

Respect the law
Malacanang also on Wednesday appealed for “sobriety and respect for law” among all concerned parties in Poe’s disqualification cases.

In a text message, Palace spokesman Edwin Lacierda noted that the decision was arrived at “in the course of the constitutionally-mandated functions of the Comelec.”

“We understand that Senator Poe’s legal counsel will pursue and exhaust all remedies available to them, as is their right in this process,” Lacierda told reporters.

“We believe that sobriety and respect for the law and its processes are the best way forward for all parties concerned,” he said.

‘Brotherly’ advice
Vice Ppresidential candidate Sen. Ferdinand Marcos also on Wednesday told Poe to just keep going.

“Keep going…keep going. Huwag kang panghihinaan ng loob [Don’t lose heart] and just [keep in mind] that when you are doing the right thing, you will in the end succeed,” Marcos also told reporters Tuesday night.

He said he was not surprised at all by the verdict and expressed belief that it is still a long way to go before the issue would be finally settled as Poe’s camp has announced that it would appeal the decision before the Comelec en banc.

“[W]e leave it to the best of our legal minds to decide exactly what to do,” Marcos added.
When asked if the Comelec decision should alarm the opposition, he said it is expected and it is part of the black propaganda normally being employed by different groups.

source:  Manila Times