SEPARATE OPINION

“A court which yields to the popular will

thereby licenses itself to practice despotism for

there can be no assurance that it will not on

another occasion indulge its own will.”[1]

CALLEJO, SR., J.:

Before the Court are three petitions seeking to disqualify respondent Ronald Allan Kelley Poe as candidate for President of the Republic of the Philippines, on the ground of ineligibility as he is not a natural-born Filipino citizen, one of the qualifications for the said position under Section 2, Article VII of the 1987 Constitution.[2]

The petitions in G.R. No. 161434[3] and G.R. No. 161634[4] were filed directly with this Court invoking Section 4, Article VII of the 1987 Constitution. The petition in G.R. No. 161824 was filed by Victorino X. Fornier under Rule 64 in relation to Rule 65 of the Rules of Court. It seeks to set aside and nullify the Resolution dated February 6, 2004 of the respondent Commission on Elections (COMELEC) en banc which affirmed the Resolution of its First Division dated January 23, 2004 dismissing the petition for disqualification filed against respondent Poe by petitioner Fornier.

I vote to dismiss outright the first two petitions for prematurity and for want of jurisdiction.

It is on the third petition, G.R. No. 161824, that I submit this Opinion.

The petitioner invokes the certiorari jurisdiction of this Court over “a judgment or final order or resolution” of respondent COMELEC by authority of Section 7, Article IX of the 1987 Constitution.[5]

Briefly, the factual antecedents giving rise to the petition in G.R. No. 161824 are as follows:

On December 31, 2003, respondent Poe filed his Certificate of Candidacy for President with the COMELEC. Among others, it is stated therein that he is a “natural-born Filipino citizen.” On January 9, 2004, petitioner Fornier filed a “Petition for Disqualification of Presidential Candidate Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.” (the petition a quo). The petitioner asserted that respondent Poe is not a citizen, much more a natural-born citizen, of the Philippines. As such, he lacks one of the essential qualifications for the position of President.

According to the petition a quo, respondent Poe’s father, Allan Fernando Poe, was a Spanish citizen as shown by the marriage contract[6] between him and a certain Paulita Gomez. On the other hand, his mother, Bessie Kelley, was an American citizen as shown by his birth certificate.[7] Granting arguendo that respondent Poe’s father was a Filipino citizen, still, respondent Poe could not acquire the citizenship of his father; the latter’s marriage to Bessie Kelley was void, since he was previously married to Paulita Gomez. As an illegitimate child, respondent Poe followed the citizenship of his American mother. The petition a quo then prayed that respondent Poe “be disqualified from running for the position of the President of the Republic of the Philippines and that his Certificate of Candidacy be denied due course, or cancelled.”

On the basis of the allegations therein, the petition a quo was treated by the COMELEC (First Division) as a petition to deny due course to or cancel a certificate of candidacy under Section 78 of the Omnibus Election Code.

Pursuant to Section 1,[8] Rule 23 of the COMELEC Rules of Procedure, the petition was correspondingly docketed as a special action – SPA No. 04-003.[9] Because the proceedings were heard summarily,[10] respondent Poe was given only three (3) days within which to answer. He seasonably filed his Answer on January 16, 2004 substantially denying the material allegations contained in the petition a quo.[11] Attached to respondent Poe’s answer was his birth certificate[12] and the marriage contract of his parents, Allan Fernando Poe and Bessie Kelley,[13] to support his contention that he is a natural-born Filipino citizen and a legitimate child. Respondent Poe also maintained that while his mother was an American citizen, his father was a Filipino citizen. Thus, respondent Poe concluded, he is a natural-born citizen as he follows the citizenship of his father.

The hearing was held on January 19, 2004. The parties were given only two (2) days within which to submit their respective memoranda which was timely filed by the parties on January 21, 2004.[14]

On January 23, 2004, based on the pleadings filed therewith, the COMELEC (First Division) rendered the assailed Resolution of January 23, 2004, dismissing the petition a quo for lack of merit.[15] Citing Section 78 of the Omnibus Election Code,[16] the COMELEC (First Division) opined that it only has jurisdiction to deny due course to or cancel a certificate of candidacy exclusively on the ground that any material representation contained therein is false. It added that, it is not “at liberty to finally declare whether or not the respondent is a natural-born Filipino.”

According to the COMELEC (First Division), the evidence adduced by the petitioner, namely:

1. Certificate of Candidacy of Ronald Allan Poe also known as Fernando Poe, Jr.;[17]

2. Certificate of Birth of Ronald Allan Poe;[18]

3. Sworn Statement in Spanish of one Paulita Gomez;[19] and

4. Marriage Certificate of Allan Fernando Poe and Paulita Gomez.[20]

failed to show “strongly and convincingly” that the declaration in respondent Poe’s Certificate of Candidacy as to his citizenship was a falsehood.

The COMELEC (First Division) also made a provisional finding that respondent Poe is a natural-born Filipino. It found that his grandfather, Lorenzo Pou, was a Spanish subject who acquired Filipino citizenship by virtue of Section 4 of the Philippine Bill of 1902.[21] There being no evidence to show that Lorenzo Pou made a declaration to preserve his allegiance to the Crown of Spain in accordance with Article IX of the Treaty of Paris,[22] he was held to have renounced it and became a Filipino citizen. Consequently, Allan Fernando Poe, who was born subsequent to his father’s acquisition of Filipino citizenship, followed Lorenzo Pou’s citizenship.

Regarding the petitioner’s claim that respondent Poe is an illegitimate child of Allan Fernando Poe and Bessie Kelley, the COMELEC (First Division) cited Section 1, Article IV of the 1935 Constitution, the law determinative of respondent Poe’s citizenship, which stated that:

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 this Constitution.

...

3. Those whose fathers are citizens of the Philippines.

It noted that the parties agreed on the fact that Allan Fernando Poe was the father of Ronald Allan Poe. Hence, if Allan Fernando Poe was Filipino, necessarily, his son, Ronald Allan Poe, is likewise a Filipino.

As to the allegation that respondent Poe was an illegitimate child, the COMELEC (First Division) ratiocinated that:

Note that section 3 [should read section 1, paragraph (3)] of Article IV of the 1935 Constitution does not have a qualifying term “legitimate” after the words” “those whose fathers” and before the phrase “are citizens of the Philippines.” Legitimacy therefore is beside the point. As long as the father is a Filipino, the child will always be a Filipino. As we have discussed early on, since Allan Fernando Poe is a Filipino, his son Ronald Allan Poe, the respondent herein, is a natural-born Filipino.[23]

Accordingly, it concluded that, “considering the evidence presented by the petitioner is not substantial, we declare that the respondent did not commit any material misrepresentation when he stated in his Certificate of Candidacy that he is a natural-born Filipino citizen.”[24]

Petitioner Fornier then filed with the COMELEC en banc a motion for reconsideration of the First Division’s resolution.[25] He urged the respondent COMELEC to assert its original and exclusive jurisdiction to conclusively determine whether respondent Poe is a natural-born Filipino citizen, invoking paragraphs (1) and (3), Section 2, Article IX-C[26] of the Constitution and COMELEC Resolution No. 6452.[27] Further, petitioner Fornier maintained that respondent Poe failed to establish that he is a natural-born Filipino citizen as he failed to rebut the petitioner’s evidence tending to show that his grandfather, Lorenzo Pou, and father, Allan Fernando Poe, were Spanish citizens. The petitioner further insisted that even if respondent Poe’s father was a Filipino citizen, since his (respondent Poe’s) own evidence showed that he was born prior to the marriage of his parents and therefore an illegitimate child, he acquired the citizenship of his mother, i.e., American citizenship. Petitioner Fornier thus reiterated his prayer that respondent Poe’s Certificate of Candidacy be denied due course or ordered cancelled for containing a material misrepresentation regarding his citizenship.

On February 6, 2004, the COMELEC en banc promulgated the assailed Resolution dismissing the petitioner’s motion for reconsideration for lack of merit.[28] The COMELEC en banc maintained that since the petition a quo was characterized as one falling under Section 78 of the Omnibus Election Code, the proceedings covered thereby was limited to a determination as to whether or not a material misrepresentation contained in the certificate of candidacy is false. On this score, the COMELEC en banc sustained the propriety of the First Division’s declaration on the paucity of the petitioner’s evidence to disprove respondent Poe’s representation as to his Filipino citizenship. It thereby affirmed that the First Division’s favorable pronouncement as to respondent Poe’s citizenship was inevitably crucial to resolve the issue as to whether respondent Poe had, indeed, made a material misrepresentation in his CoC as to warrant its denial in due course and/or cancellation.

Aggrieved by the dismissal of the petition a quo, petitioner Fornier now comes to this Court on certiorari.

At the outset, it bears stressing that resort to a special civil action for certiorari under Rule 65 of the Rules of Court, as in the present recourse, is limited to the resolution of jurisdictional issues, that is, lack or excess of jurisdiction and grave abuse of discretion amounting to lack of jurisdiction on the part of the tribunal rendering the assailed decision, order or resolution.[29] Thus –

There is grave abuse of discretion justifying the issuance of the writ of certiorari when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction; where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law.[30]

Simply stated then, the threshold issue for resolution is whether or not the COMELEC committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in dismissing the petition before it, for failure of the petitioner to prove the essential requisites for the cancellation of the certificate of candidacy of respondent Poe under Section 78 of the Omnibus Election Code.

The well-entrenched principle is that in the absence of any jurisdictional infirmity or an error of law of the utmost gravity, the conclusion rendered by the COMELEC on a matter that falls within its competence is entitled to utmost respect. Not every abuse of discretion justifies the original action of certiorari; it must be grave. The test therefore is whether the petitioner has demonstrated convincingly that the tribunal has committed grave abuse of discretion.[31]

The COMELEC should have

dismissed the petition for

failure to state a sufficient

basis for the cancellation of

respondent Poe’s

certificate of candidacy

Irrefragably, the petition filed before the COMELEC was a petition under Section 78 of the Omnibus Election Code, to cancel the certificate of candidacy of respondent Poe. The said section reads:

Section 78. Petition to deny due course 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. The petition may be 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.

Section 74 of the Code provides that:

SEC. 74. Contents of certificate of candidacy. – 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.

Unless a candidate has officially changed his name through a court approved proceeding, a certificate shall use in a certificate of candidacy the name by which he has been baptized, or if has not been baptized in any church or religion, the name registered in the office of the local civil registrar or any other name allowed under the provisions of existing law or, in the case of a Muslim, his Hadji name after performing the prescribed religious pilgrimage: Provided, That when there are two or more candidates for an office with the same name and surname, each candidate, upon being made aware or such fact, shall state his paternal and maternal surname, except the incumbent who may continue to use the name and surname stated in his certificate of candidacy when he was elected. He may also include one nickname or stage name by which he is generally or popularly known in the locality.

The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a statement in duplicate containing his bio-data and program of government not exceeding one hundred words, if he so desires.

A petition for the cancellation of a certificate of candidacy under Section 78 of the Omnibus Election Code must aver three essential elements: (a) the candidate makes a representation in his certificate of candidacy; (b) the representation pertains to a material matter which would affect the substantive rights of the candidate – the right to run for the election for which he filed his certificate of candidacy; (c) the candidate makes the false representation with the intention to deceive the electorate as to his qualification for public office or deliberately attempts to mislead, misinform, or hide a fact which would otherwise render him ineligible.[32] If the petition fails to state the three essential elements, the petitioner would have no cause of action for the cancellation of the certificate of candidacy of the respondent candidate; hence, the petition must be dismissed.

The entries in a certificate of candidacy are prima facie correct. In making the said entries, the candidate is presumed to have acted in good faith. In this case, the material averments of the petition filed in the COMELEC reads:

1. Petitioner is of legal age, Filipino citizen of voting age and registered voter of Pasay City with address at 122 Suerte Street, Pasay City 1300, where he may be served with processes of the Honorable Commission.

2. Respondent Ronald Allan Kelley Poe, also known as Fernando Poe, Jr. (“Poe”), is a candidate for the position of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (“KNP”) party for the 10 May 2004 elections. Based on his Certificate of Candidacy, respondent Poe claims to be of legal age and is a resident of 23 Lincoln Street, Greenhills, San Juan, Metro Manila, where he may be served with summons and other processes of the Honorable Commission. A copy of respondent Poe’s Certificate of Candidacy is attached and made integral part hereof as Annex “A.”

3. Under Section 2, Article VII of the 1987 Constitution, the qualifications of the President of the Republic of the Philippines are enumerated as follows:

“Sec. 2. 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 resident of the Philippines for at least ten years immediately preceding such election.” (Emphasis supplied)

4. Respondent Poe, however, is not even a citizen of the Philippines, much more a natural born citizen, and as such lacks one of the essential qualifications for the position of President of the Republic of the Philippines since both of his parents are not Filipino citizens.

5. Based on respondent Poe’s alleged Certificate of Birth, he was born on 20 August 1939. A copy of the said Certificate of Birth is attached and made integral part hereof as Annex “B.”

5.1. Respondent Poe’s alleged Certificate of Birth indicated that his parents are Allan F. Poe and Bessie Kelley.

5.2. Respondent Poe’s alleged Certificate of Birth indicated that his mother, Bessie Kelley, is an American citizen.

5.3. However, the alleged Certificate of Birth of respondent Poe falsely or incorrectly indicated the real citizenship of his father, Allan F. Poe, since he is legally not a Filipino citizen, as shown below.

6. Contrary to what was falsely indicated in the alleged Certificate of Birth of respondent Poe, the latter’s father, Allan F. Poe, is not a Filipino, but an alien, specifically, a citizen of Spain.

6.1. On 05 July 1936, Allan F. Poe expressly and categorically declared in a public instrument that he was a Spanish citizen. A copy of the Marriage Contract executed by Allan F. Poe and one Paulita Gomez at the Convento de Santo Domingo at Intramuros, Manila, is attached and made an integral part hereof as Annex “C.”

6.2. Moreover, in said Marriage Contract, Allan F. Poe likewise categorically and expressly admitted that both of his parents, Lorenzo Poe and Marta Reyes are also citizens of Spain.

6.3. Clearly, respondent Poe’s father is a Spanish citizen whose parents are both Spanish citizens.

7. Thus, respondent Poe could not have possibly acquired Filipino citizenship from his father, Allan F. Poe, since the latter is a Spanish citizen.

8. But even assuming arguendo that respondent Poe’s father, Allan F. Poe was a Filipino citizen, as indicated in respondent Poe’s Certificate of Birth (Annex “B” hereof), still respondent Poe could not have validly acquired Filipino citizenship from his father due to the fact that the purported marriage of his parents, Allan F. Poe and Bessie Kelley, is void.

8.1. Under Philippine jurisprudence, an illegitimate child, i.e. a child conceived and born outside a valid marriage, follows the citizenship of his mother. [United States vs. Ong Tianse, 29 Phil. 332 (1915)].

8.2. As previously stated, respondent Poe’s father, Allan F. Poe, married Paulita Gomez on 05 July 1936, which marriage was subsisting at the time of the purported marriage of respondent Poe’s father to his mother, Bessie Kelley. (cf. Annex “C” hereof).

8.3. Moreover, it appears that Allan F. Poe’s first wife, Paulita Gomez, even filed a case of bigamy and concubinage against him after discovering his bigamous relationship with Bessie Kelley. A copy of the Affidavit dated 13 July 1939 executed by Paulita Gomez in Spanish attesting to the foregoing facts, together with an English translation thereof, are attached and made an integral parts hereof as Annex “D” and “D-1,” respectively.

9. Verily, having been born out of void marriage, respondent Poe is an illegitimate child of Allan F. Poe and Bessie Kelley. Consequently, the citizenship of respondent Poe follows that of his mother, Bessie Kelley, who is undeniably an American citizen.

10. Under the 1935 Constitution, which was then applicable at the time of respondent Poe’s birth, only the following are considered Filipino citizens:

“SECTION 1. The following are citizens of the Philippines:

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

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

3) Those whose fathers are citizens of the Philippines;

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

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

11. Clearly, respondent Poe is not a citizen of the Philippines, much more a natural-born Filipino citizen, considering that both of his parents are aliens. Also, even assuming arguendo that respondent Poe’s father, Allan F. Poe, is a Filipino citizen, as indicated in his Certificate of Birth (Annex “B” hereof), since respondent Poe is an illegitimate child of his father with Bessie Kelley, an American, he acquired the citizenship of the latter. [United States vs. Ong Tianse, supra]

12. Hence, respondent Poe, not being a natural-born citizen of the Philippines, lacks an essential qualification and corollarily possesses a disqualification to be elected President of the Republic of the Philippines, as expressly required under the 1987 Constitution.

13. In view of the foregoing, respondent Poe should be disqualified from being a candidate for the position of President of the Republic of the Philippines in the coming 10 May 2004 elections.

PRAYER

WHEREFORE, it is respectfully prayed that Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., be disqualified from running for the position of President of the Republic of the Philippines, and that his Certificate of Candidacy be denied due course, or cancelled.[33]

The petition does not contain any material averments that in stating in his certificate of candidacy that he was a natural-born citizen, respondent Poe intended to deceive the electorate or that he deliberately attempted to mislead, misinform, or hide the fact that he is not eligible for the position of President of the Republic of the Philippines.

The respondent Poe’s statement in his CoC that he was a natural-born Filipino citizen does not ipso facto amount to an erroneous and deliberate statement of a material fact which would constitute “material misrepresentation.” Indeed, the determination of whether one is “a natural-born citizen” as defined by our Constitution is, ultimately, a conclusion of law.[34] Corollarily, granting arguendo that respondent Poe’s statement in his CoC later turned out to be erroneous or inexact, the same is not entirely groundless, having been honestly based on admitted and authentic public records. Such error could not be considered a falsity within the meaning of Section 78 of the Omnibus Election Code because expressing an erroneous conclusion of law cannot be considered a deliberate untruthful statement of a fact.[35]

But even if it were to be assumed that respondent Poe’s declaration in his CoC that he is a natural-born Filipino citizen is a statement of a fact, the COMELEC did not gravely err in its provisional finding that, based on the records extant in this case, respondent Poe was in truth and in fact a natural-born Filipino citizen. Hence, respondent Poe made no material misrepresentation in his CoC.

The petitioner failed to prove

the essential elements for an

action under Section 78 of the

Omnibus Election Code

Obviously, the burden of proof is, in the first instance, with the party who initiated the action.[36] But in the final analysis, the party upon whom the ultimate burden lies is to be determined by the pleadings, not by who is the plaintiff or the defendant. The test for determining where the burden of proof lies is to ask which party to an action or suit will fail if he offers no evidence competent to show the facts averred as the basis for the relief he seeks to obtain,[37] and based on the result of an inquiry, which party would be successful if he offers no evidence.

In ordinary civil cases, the plaintiff has the burden of proving the material allegations of the complaint which are denied by the defendant, and the defendant has the burden of proving the material allegations in his case where he sets up a new matter. All facts in issue and relevant facts must, as a general rule, be proven by evidence except the following:

(1) Allegations contained in the complaint or answer immaterial to the issues.

(2) Facts which are admitted or which are not denied in the answer, provided they have been sufficiently alleged.

(3) Those which are the subject of an agreed statement of facts between the parties; as well as those admitted by the party in the course of the proceedings in the same case.

(4) Facts which are the subject of judicial notice.

(5) Facts which are legally presumed.

(6) Facts peculiarly within the knowledge of the opposite party.[38]

I am convinced that the petitioner failed to prove that the COMELEC committed a grave abuse of its discretion in dismissing the petition to disqualify respondent Poe for the petitioner’s failure to allege and prove that the respondent Poe made a false representation when he stated in his certificate of candidacy that he is a natural-born Filipino.

The only evidence adduced by the petitioner to prove the falsity of respondent Poe’s statement that he is a natural-born Filipino are the following:

1. Certified photocopy of the Certificate of Birth of Ronald Allan Poe, which indicates the citizenship of Lorenzo Pou as “Español”;[39]

2. Certified photocopy of the Marriage Certificate of Allan Fernando Poe and Paulita Gomez, which indicates the citizenship of respondent Poe’s father as also “Español”;[40] and

3. Certification issued by Director Ricardo Manapat that the National Archives does not possess any record in regard to the entry of “Lorenzo Poe” or “Lorenzo Pou” in the Philippines before 1907.[41]

However, as gleaned from the affidavits of Remmel G. Talabis, Emman A. Llanera, Vicelyn G. Tarin, William Duff and Victorino A. Floro III, the aforementioned documents relied upon by the petitioner are false documents. In fact, the lack of probative value to be credited to the foregoing documents was implicitly affirmed by the petitioner himself during the oral arguments of the parties before the Court on February 19, 2004. Failing to discharge his burden with his own documentary evidence, the petitioner had to rely on the private respondent’s Certificate of Birth[42] and the Marriage Contract[43] of his parents.

The petitioner alleges that respondent Poe was born on August 20, 1939, that is, before the marriage of his parents on September 16, 1940. Being born out of wedlock, respondent Poe was an illegitimate child who could not acquire the Filipino citizenship of Allan Fernando Poe under Section 1(3), Article IV of the 1935 Constitution which, the petitioner posits, encompass within its terms only legitimate children.[44] Hence, respondent Poe followed the citizenship of his mother who was an American.[45] The petitioner further asserts that assuming the validity of the subsequent marriage of respondent Poe’s parents, Article 121 of the Old Civil Code[46] necessitated, as a fundamental requirement of legitimation, that the father and the mother acknowledge the child. In any event, assuming that legitimation had properly taken place, its effects would retroact only to the date of marriage of respondent Poe’s parents.[47] The subsequent legitimation would not anyhow effectively confer upon respondent Poe the status of a “natural-born Filipino citizen” which is defined by our Constitution as “one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship.”[48]

The petitioners’ assertions are barren of merit.

First. The provisions of the Old Civil Code adverted to by the petitioner should not be made to apply in the present case. There is no legal impediment to the application in this case of the rule of retroactivity provided in Article 256 of the Family Code to the effect that, “[T]his 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.” “Vested right” is a right in property which has become fixed and established and is no longer open to doubt or controversy. It expresses the concept of present fixed interest, which in right reason and natural justice should be protected against arbitrary State action.”[49] In the present case, there appears to be no substantial evidence on record to prove that vested rights will be prejudiced or impaired by a confirmation, that is, of respondent Poe’s legitimate status since he has, since birth, been regarded a legitimate child by his parents, siblings and other relatives. Consequently, the provisions of Article 177,[50] 178,[51] 179[52] and 180[53] of the Family Code may be applied retroactively to respondent Poe’s case. As a corollary, respondent Poe’s legitimation became the necessary legal consequence of the subsequent marriage of his parents, the effects of which would retroact to the time of respondent Poe’s birth in 1939.

Second. As correctly maintained by the COMELEC, the issue of legitimacy bears no direct relevance to the determination of respondent Poe’s citizenship in the petition at bar. Contrary to the petitioner’s protestations, “legitimacy” or the lack of it cannot by itself be made determinative of a child’s citizenship. The fact of legitimacy cannot, even if successfully concluded, be used as a spring board to secure a declaration of a child’s citizenship. The legitimate status of a child emanates from civil law which regulates the private relations of the members of civil society, while citizenship is political in character and the ways in which it should be conferred lie outside the ambit of the Civil Code. It is not within the province of our civil law to determine how or when citizenship is to be acquired.[54] This is precisely evinced by the fact that the right to acquire the parents’ citizenship is not among the enumerated rights of a legitimate child under our civil laws.[55]

Third. Section 1(3), Article IV of the 1935 Constitution did not, by its express terms, distinguish between a legitimate and an illegitimate child for purposes of acquiring the Filipino citizenship of the father. It is a rudiment in legal hermeneutics that when no distinction is made by law, the Court should not distinguish – Ubi lex non distinguit nec nos distinguere debemos.[56]

In Domino v. COMELEC,[57] we held that:

It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They 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. Thus there are cases where the need for construction is reduced to a minimum.

In Llamado v. Court of Appeals,[58] the Court affirmed that:

… As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense of internal contradictions.

Any other interpretation of the provision would visit unmitigated violence not only upon statutory construction but on existing laws and the generally accepted principles of international law, to which we are bound under the present state of affairs, as hereafter to be discussed.

Fourth. To circumscribe the application of the endowed political privilege under Section 1(3), Article IV of the 1935 Constitution only to the legitimate children of Filipino fathers would be clearly violative of the equal protection clause of the Constitution. There appears to be no substantial distinction between legitimate and illegitimate children to justify their disparate treatment vis-à-vis the possession of the status of and the exercise of a political privilege, including the right to run for and be elected to public office. The legal status of illegitimacy, however defined, bears no relation to the individual’s ability to participate in and contribute to society.[59] The only purported purpose of the “natural-born citizen” requirement is to ensure the elected public officer’s allegiance to the Republic. The petitioners have failed to demonstrate how legitimate or illegitimate birth affects loyalty to the Republic. Not to be overlooked is the fact that a natural child’s conception may take place under circumstances that render it practically indistinguishable from that of a legitimate child, except for the absence of a marriage ceremony between the parents. To hold that a child’s illegitimacy can bear significance on his right to acquire citizenship is to step from the bounds of law, into the realm of inequitable and bigoted rationalism.

The following provisions and principles of law further militate against a restrictive interpretation of the disputed constitutional provision:

1. Article 3 of P.D. 603, otherwise known as the Child and Youth Welfare Code provides that “all children shall be entitled to the rights herein set forth without distinction as to legitimacy or illegitimacy, sex, social status, religion, political antecedents, and other factors.”

2. The Philippines is a party to the “Convention on the Rights of the Child, Article 2.1 of which guarantees that each child within its jurisdiction shall be treated “without discrimination of any kind, irrespective of the child’s … birth or other status.”

3. Article 25 of “The Universal Declaration of Human Rights” itself provides that “all children whether born in or out of wedlock, shall enjoy the same social protection.”

Finally, the amici curiae[60] of the Court are unanimous in their position that Section 1(3), Article IV of the 1935 Constitution is founded upon the principle of jus sanguinis. In other words, the derivation of citizenship from a person, or the transmission of citizenship to his child, springs from blood relationship which, whether injected legitimately or illegimately, is the same blood and has the same political effect. Hence, all that is needed to be established is paternity as a manifestation of blood relationship.

In the present petition, the petitioner does not deny that respondent Poe is the natural son of Allan Fernando Poe. On the question as to whether Allan Fernando Poe was a Filipino citizen, the petitioner failed to adduce evidence to controvert respondent Poe’s evidence attesting to the Filipino citizenship of his father. The petitioner initially endeavored to corroborate the Spanish nationality of Lorenzo Pou to bear out the Spanish nationality of Allan Fernando Poe. He then presented a certification by Director Ricardo Manapat stating that the National Archives does not possess any record of a certain LORENZO POE or LORENZO POU residing or entering the Philippines before 1907 in its Spanish Documents Section.[61] The authenticity of this piece of documentary evidence, however, as earlier alluded to, has been put to serious question for being a fabricated. Also debilitating to its probative value was Manapat’s own admission on cross-examination that the National Archives does not have a complete record of all persons who lived in the Philippines during the Spanish and American occupations.

I agree with the position of learned Rev. Joaquin G. Bernas, S.J., thus:

Naturalization can be individual naturalization or mass naturalization. For the purpose of the present case, what is relevant is the mass naturalization achieved by the Treaty of Paris jointly with the Philippine Bill of 1902. These two historical documents decreed that subjects of Spain, whether Peninsulares or Indios, residing in the Philippines on the eleventh day of April 1899 were deemed citizens of the Philippines unless the Peninsulares, that is, natives of Spain, either abandoned Philippine residence within a specified period or elected before a court of record to remain subjects of Spain also within a specified period. Under these documents, therefore, those claiming citizenship must prove that on the date indicated they were (1) subjects of Spain and (2) residents of the Philippines. Conversely, those who challenge the citizenship of Peninsulares must show either that such natives of Spain abandoned Philippine residence or elected before a court of record to remain subjects of Spain.

I submit that these requirements apply to the grandfather of Fernando Poe, Jr., but I am in no position to present evidence in either direction.[62]

The petitioner challenged the citizenship of Lorenzo Pou. He has not adduced evidence to prove that Lorenzo Pou, while admittedly born a Spanish Subject, was not an inhabitant of the Philippine Islands on December 10, 1898 when Spain ceded the Philippine Islands to the U.S. by virtue of the Treaty of Paris. The petitioner has also failed to proffer evidence to prove that Lorenzo Poe renounced his allegiance to the crown of Spain and embraced Filipino citizenship by operation of law.[63] Neither has the petitioner disproved Lorenzo Pou’s continued residence in the Philippines until his death on September 11, 1954 in San Carlos, Pangasinan,[64] nor proffered evidence to prove that Lorenzo Pou was a resident of any other state in the intervening period from April 11, 1899 until his death. Incidentally, in the Certification dated January 12, 2004 of excerpts from the Register of Death in San Carlos, Pangasinan,[65] the citizenship of Lorenzo Pou is stated to be “Filipino.” Again, there lies here in favor of respondent Poe’s cause a prima facie proof of the Filipino citizenship of his grandfather as per entry in the Civil Register of the latter’s Certificate of Death, a public record. Moreover, during his lifetime, Lorenzo Poe comported himself as a Filipino. He voted in elections and did not register as an alien. He even owned real properties in the Philippines.[66] Accordingly, by Lorenzo Pou’s acquisition of Filipino citizenship under the pertinent provisions of the Treaty of Paris and the relevant succeeding laws, Allan Fernando Poe also acquired the Filipino citizenship of his father.

Apart from the foregoing, respondent Poe also presented supplementary evidence corroborating Allan Fernando Poe’s Filipino citizenship as revealed by the following facts which have not been in any way refuted by the petitioner:

1. Allan Fernando Poe obtained the degree of Bachelor of Science in Chemistry from the U.P. in 1935 and the degree of Doctor of Dental Medicine from the Philippine Dental College in 1942;

2. He later became a leading movie actor in the Philippines;

3. He was called to active duty to serve in the Philippine Army on December 24, 1942; inducted into the USAFE on December 25, 1941, fought in Bulacan, was in the “Death March”, and reverted to inactive status with the rank of Captain on November 20, 1945.[67] On September 27, 1945, he was awarded the “Gold Cross” by “direction of the President” for “meritorious services rendered while under furious and intense enemy bombing and strafing;”[68] and,

4. He died on October 23, 1951 and his death certificate also reflected his political status as “Filipino.”[69]

As shown, Allan Fernando Poe comported himself as a Filipino citizen, was regarded as such in the community where he lived, and was acknowledged to be a Filipino by the Philippine government during his lifetime. The paternity of Allan Fernando Poe having been admitted, and his Filipino citizenship having been established, respondent Poe was correct in representing in his CoC that he was a natural-born Filipino citizen.

Accordingly, the petition in G.R. 161824 must be dismissed for failure to show that respondent COMELEC committed grave abuse of discretion in dismissing the petition a quo as the petitioner failed to establish that respondent Poe committed a material misrepresentation, within the meaning of Section 78 of the Omnibus Election Code, when he stated that he is a natural-born Filipino citizen in his Certificate of Candidacy.

One caveat. The resolution of the issue in the present petition will be without prejudice to the filing by the proper party of the appropriate quo warranto petition before the Court En Banc to assail respondent Poe’s eligibility in case he wins the elections and there to litigate all the issues raised in as much detail as may be deemed necessary or apropos.

WHEREFORE, I VOTE to –

1. DISMISS the petitions in G.R. Nos. 161434 and 161634 for prematurity and want of jurisdiction; and

2. DISMISS the petition in G.R. No. 161824 for failure to show that respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Resolutions.

---

[1] A.F.F.L. v. American Scale & Door, Co., 335 US 538, 557 (1949).

[2] The provision reads in full:

Sec. 2. 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.

[3] Filed by Maria Jeanette C. Tecson and Felix B. Desiderio, Jr.

[4] Filed by Zoilo Gomez.

[5] Sec. 7. Each Commission [referring to the Civil Service Commission, Commission on Audit and Commission on Elections] 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 (Underscoring supplied).

[6] Exhibit “B-2.”

[7] Exhibit “A.”

[8] B. SPECIAL ACTIONS

Rule 23 – Petition to Deny Due Course to or Cancel Certificate of Candidacy

SECTION 1. Grounds for Denial of Certificate of Candidacy. – A petition to deny due course to or cancel a certificate of candidacy for any elective office may be filed with the Law Department of the Commission by any citizen of voting age or a duly registered political party, organization, or coalition of political parties on the exclusive ground that any material representation contained therein as required by law is false.

[9] Annex “A” of the petition in G.R. No. 161824.

[10] Section 3, Rule 23 of the COMELEC Rules of Procedure states:

Rule 23- Petition to Deny Due Course to or Cancel Certificates of Candidacy

…

Sec. 3. Summary Proceeding. – This petition shall be heard summarily after due notice.

[11] Annex “B” of the petition in G.R. No. 161824.

[12] Exhibit “3.”

[13] Exhibit “21.”

[14] Annexes “C” & “C-28” of the petition in G.R. No. 161824.

[15] Annex “D” of the petition in G.R. No. 161824.

[16] Supra.

[17] Annex “A” of the petition in SPA No. 04-003.

[18] Exhibit “A.”

[19] Exhibits “B” & “B-1.”

[20] Exhibit “B-2.”

[21] Sec. 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 the Philippine 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.

[22] The provision reads in full:

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 other 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 may reside.

[23] Resolution, dated January 23, 2004, of the COMELEC (First Division), p. 11.

[24] Id. at 12.

[25] Annexes “E” & “F” of the petition in G.R. No. 161824.

[26] Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.

…

(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.

…

[27] The pertinent proviso of the Resolution reads:

SECTION 1. Delegation of reception of evidence. -- The Commission hereby designates its field officials who are members of the Philippine Bar to hear and receive evidence in the following petitions:

a. Petition to deny due course or to cancel Certificate of Candidacy;

b. Petition to declare a nuisance candidate;

c. Petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code and disqualify a candidate for lack of qualifications or possessing same grounds for disqualification; and

d. Petition to disqualify a candidate engaged in gunrunning, using and transporting of firearms or in organizing special strike forces.

…

SECTION 3. Where to file petitions. -- The petitions shall be filed with the following offices of the Commission:

a. For President, Vice-President, Senator and Party-List Organizations, with the Clerk of the Commission, Commission on Elections in Manila;

[28] Annex “G” of the petition in G.R. No. 161824.

[29] Recabo, Jr. v. COMELEC, 308 SCRA 793 (1999).

[30] Malinias v. COMELEC, 390 SCRA 480 (2002).

[31] Arao v. COMELEC, 210 SCRA 290 (1992).

[32] Salcedo II v. Commission on Elections, 312 SCRA 447 (1999).

[33] Supra, pp. 1-6.

[34] In Syquian v. People (171 SCRA 223 [1989]), the Court held that:

“Conclusion of law” is defined as a proposition not arrived at by any process of natural reasoning from a fact or combination of facts stated but by the application of the artificial rules of law to the facts pleaded [Levins v. Rovegno, 71 Cal. 273, 12 p. 161; Black’s Law Dict., p. 362].

[35] People v. Yanza, 107 Phil. 888 (1960).

[36] Francisco, The Revised Rules of Court in the Philippines, Vol. VII, Part II, 1997 ed., pp. 5-6.

[37] Di Baco v. Bendetto, 95 SE 601.

[38] Francisco, The Revised Rules of Court in the Philippines, Vol. VII, Part II, 1997 ed., pp. 8-9.

[39] Exhibit “A.”

[40] Exhibit “B-2.”

[41] Exhibit “D.”

[42] Exhibit “3.”

[43] Exhibit “21.”

[44] Citing Morano v. Vivo & Paa v. Chan.

[45] Exhibit “21.”

[46] The provision reads in full:

Article 121. Children shall be considered as legitimated by a subsequent marriage only when they have been acknowledged by the parents before or after the celebration thereof.

[47] Article 123 of the Old Civil Code reads in full: In all cases the effects of legitimation shall commence from the date of the marriage.

[48] Section 2, Article IV of the 1987 Constitution.

[49] Marquino v. Intermediate Appellate Court, 233 SCRA 348, 355 (1994).

[50] ART. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.

[51] ART. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation.

[52] ART. 179. Legitimated children shall enjoy the same rights as legitimate children.

[53] ART. 180. The effects of legitimation shall retroact to the time of the child’s birth.

[54] Malkinson v. Agrava, 54 SCRA 66 (1973); Lo Beng Ha Ong v. Republic, 25 SCRA 247 (1968); Uggi Lindamand Therkelsen v. Republic, 12 SCRA 400 (1964).

[55] Article 114 of the Old Civil Code; Article 264 of the New Civil Code; Article 174 of the Family Code.

[56] Guerrero v. COMELEC, 336 SCRA 458 (2000).

[57] 310 SCRA 546 (1999).

[58] 174 SCRA 566 (1989).

[59] Weber Aetna Casualty & Surety Co., 406 US 164 (1972).

[60] Retired Justice Vicente V. Mendoza, Rev. Joaquin G. Bernas, SJ, Dean Merlin M. Magallona, and Prof. Ruben C. Balane.

[61] Exhibit “D.”

[62] Supra, p. 3.

[63] Article IX of the Treaty of Paris, supra.

[64] Exhibit “5.”

[65] Exhibit “5.”

[66] See certified true copy of OCT No. P-2247 and copies of Declaration of Real Property for tax purposes. Exhibits “6” & submarkings.

[67] See Certification dated January 13, 2004 by Lt. Col. Narciso S. Erna, Asst. Adjutant General (Exhibit “8”). See also Affidavit for Army Personnel dated December 22, 1947 signed by Fernando R. Poe (Exhibit “8-a”).

[68] See General Order No. 175, dated September 27, 1945 (Exhibit “9”) and Memorandum For: Lt. Col. Conrado B. Rigor, 0-1535, Office of Chief of Staff, AFP, dated October 27, 1951 (Exhibit “10”).

[69] Exhibit “7.”