You are on page 1of 8

Concurring Opinion--Chief Justice Maria Lourdes Sereno

On citizenship
COMELEC declared that Poe made false representation when she declared
that she was natural-born citizen of the Philippines. According to the
resolution of COMELEC, petitioner was not able to prove her blood
relationship to a Filipino parent and her failure precluded her from claiming
the status of natural-born citizen under 1935 Constitution. Chief Justice
Sereno disagreed to the decision of the COMELEC.
Petitioner did not make false material representation
citizenship in 2016 Certificate of Candidacy

regarding her

There has been no ruling on the citizenship of foundlings. It would be

unfair for the COMELEC to declare that petitioner intentionally
misrepresented her status. Based on the evidence presented, there is every
reason to believe that petitioner acted in good faith. There is sufficient legal
basis to sustain presumption of citizenship in favor of petitioner although
there is no physical proof of filiation.
There was no deliberate attempt to mislead, misinform, or hide a fact that
would otherwise render her ineligible.
Documents were presented to support the finding of good faith on her
part. These documents provide the petitioner with sufficient basis for her
claim of citizenship. She cannot be faulted for relying upon these pieces of
documents especially that when she made declaration that she was natural
born, the presumption created by these documents has not been overturned.
It would be absurd for her to write foundling when birth certificate and
official documents provide otherwise.
A. Adoption Decree
The decree issued in 1974 allows petitioner to legally claim to be the
daughter of Ronald Allan Poe and Jesusa Poe. In Republic v Court of Appeals,
it was held that adoption decree creates a relationship in which adopted
children were declared born of their adoptive parents. Adoptees are entitled
to maintain strict confidentiality of adoption proceedings as provided in PD
603, RA 8552, and Rule on Adoption. To require an adoptee to go beyond the
adoption decree just to prove her parentage would defeat the purpose of
B. Certificate of Live Birth
Upon issuance of adoption decree, amended certificate is issued.
Petitioner has the right to rely on this birth certificate for information
regarding her identity, status, and filiation. Certificate of Live Birth is a public
document which enjoys presumption of validity. The birth certificate of
petitioner has also the official approval of Municipal Court of San Juan, Rizal.
Absence of any declaration that the adoption proceeding is void, the birth
certificate is deemed legitimate and genuine. Thus, petitioner cannot be

faulted for relying on the contents of her birth certificate. In fact, she is
obliged to rely on it because the law does not provide her with any other
reference for information regarding her parentage. It must be noted that the
records evidencing her foundling status has already been sealed after
issuance of adoption decree. The fact that the amended birth certificate was
without any notation should not be taken against the petitioner since it
merely complies with the confidentiality rule in adoption decree.
C. Voters ID
This also proves petitioners good faith. Because of all the entries made in
Voters ID, petitioner could not be expected to claim any citizenship other
than that of the Philippines.
D. Philippine Passport
The passport should be issued to any Filipino citizen who complies with
the requirements. The Philippine Passport Act states that no passport shall be
issued unless the Secretary is satisfied that applicant is a Filipino citizen.
Petitioner, holder of Philippine passport, is presumed to be Filipino citizen, in
view of the presumption of regularity accorded to acts of public officials in the
course of their duties. If the citizenship is doubtful, only travel document is
issued. If the State considers foundling not to be citizens, it would not have
given them passport. However, DFAs website show a list of requirements that
a foundling should present to get a valid passport. This only means that
foundlings are considered by the State, or at least by the executive, to be
Filipino citizens.
E. Bureau of Immigration Order
The findings of Bureau of Immigration on citizenship of petitioner is not
conclusive on the COMELEC. However, such negate notion of bad faith when
petitioner made representation in her CoC that she was natural-born citizen.
At the time of filing, the presumption created by the Order was in operation.
It has been argued that petitioner only obtained the order because she
misrepresented herself to be born of Ronald Allan and Jesusa Poe. However,
writing of the names of adoptive parents as indicated in birth certificate was
justified by the confidentiality rule in adoption proceeding.
F. Senate Electoral Tribunal Decision
The SET Decision is a prima facie finding that petitioner can rely on. The
fact that the decision was issued later than the filing of CoC does not take
away its validity as basis of petitioner in saying that she is natural-born. The
decision of SET was the determination of petitioners citizenship status as of
the time she was elected as senator. Although the filing of CoC came first, the
application of the ruling of SET predates the filing of CoC for president.
Legal Significance of Confirmation of Renunciation
It was contended that petitioners repatriation as Filipino citizen under RA
9225 was doubtful because of her subsequent acts in 2011 such as execution
of Oath of Renunciation of Nationality of United States, completion of
Questionnaire on Information for Determining Possible Loss of U.S Citizenship,

and issuance of a Confirmation of Loss of Nationality of United States. These

documents were only executed by petitioner for purpose of complying with
the requirements of US Law. What is important is that petitioner properly
renounced US citizenship through execution of Affidavit of Renunciation. Acts
done after such were only to confirm the renunciation of foreign citizenship.
Petitioner validly presumes that she is a citizen of the Philippines
Citizenship of foundling is not expressly addressed in Article IV of the
Constitution. But statutes, administrative orders, and jurisprudence support
the conclusion even in absence of physical proof to establish foundlings
filiation. The presumption that foundlings are natural born citizens can be
established by the deliberations of 1935 Constitution. The proposed standard
by COMELEC, which is proof of blood relation to a parent who is Filipino
citizen, is an impossible condition. The arguments of COMELEC are
unmeritorius. According to COMELEC, the fact that petitioner was abandoned
in parish church and her biological parents are unknown render her
citizenship questionable. COMELEC further declared that since petitioner is
unable to establish identities of parents, she is incapable of proving blood
relation to Filipino citizen parents.
Filiation as a matter of legal fiction
Determination of filiation does not rely only on physical proof but also on
legal presumptions and circumstantial evidence. The Family Code allows
paternity and filiation to be established through: 1) record of birth; 2) written
admission of filiation; 3) open and continuous possession of the status of a
legitimate or illegitimate child; 4)or other means allows by Rules or special
laws. None of these requires physical proof of parentage. The standard
proposed by COMELEC finds no legal basis. To impose such is to impose
undue burden on the part of petitioner, particularly in view of her situation as
Contemporaneous and subsequent construction by the legislature, executive,
and judicial branches of government
Statutes, rules, issuances, and judicial decisions provided foundlings legal
protection. Code of Civil Procedure recognized that children whose parents
are unknown have a right to be adopted. Failure to identify the parents of a
child was not an obstacle to adoption. Also, Act No. 1670 was enacted to
provide adoption of poor children in custody of asylums including orphans or
child with unknown parents. The congress enacted RA No 8043 which
established rules on Inter-country Adoption of Filipino Children. Section 8 of
the law provides that foundling can be adopted through submission of
foundling certificate. RA No. 8552 was later on enacted, section 5 provides
that the failure to locate parents of a child after exerting efforts gives rise to
the duty to register the child as foundling and should be declared abandoned.
RA No. 9523 was also enacted which requires DSWD to declare first a child
legally available for adoption as prerequisite in adoption proceedings.
Administrative Order No. 011-09 was adopted to implement the law. Under

this, the term child includes foundlings. These laws are important because
they effectively recognize foundling as citizens of the Philippines.
In the case of Spouses Ellis v Republic, the Court held that it has the
power to determine citizenship of a foundling based on presumption and that
it has jurisdiction over adoption case of a baby born in the Philippines, the
baby being citizen of Philippines, in view of the theory that jurisdiction over
the status of natural person is determined by nationality. The 1976 case of
Duncan v CFI of Rizal also presumed that foundlings are Filipino citizen for
purposes of adoption.
The enactments and decisions prove the contemporaneous interpretation
of the Constitution by the three branches of the government. It is evident that
all branches presumed that these children are Filipino citizens in the absence
of contrary evidence. Presumptions are used by the Court to resolve issues on
citizenship. In the case of Board of Commissioners v Dela Rosa, the Court
used presumption of citizenship on basis of Bureau of Immigration Order. In
the case of Tecson v COMELEC, the Court used the presumption that the
grandfather of Fernando Poe, Jr. was a Filipino citizen, being part of en masse
Filipinization. The citizenship would extend to Allan Poe which also extend to
Fernando Poe.
It is reasonable to presume that petitioner is Filipino citizen since she was
abandoned in Iloilo at a time when number of children born to foreigners was
small fraction of total children born. Absence contrary evidence, the
presumption stands.
The Place of Probability in the Rule of Law
The rules on evidence is a means by which uniformity is instituted in
judicial system. These rules govern the means of ascertaining truth
respecting matter of fact. However, this does not entail absolute certainty.
Judges are not precluded from drawing conclusions from inferences based on
established facts. Jurisprudence is filled with cases decided on basis of
probability. As a rule, administrative or quasi-judicial bodies are not bound by
technical rules of procedure but this does not warrant evidentiary rules to be
disregarded. In this case, COMELEC refused to consider pieces of evidence
that tends to establish the probability of a fact in issue.
First, it is admitted that petitioner has typical Filipino features like brown
eyes, low nasal bridge, black hair, oval- shaped face, and height. This by itself
does not show belief as to her definite citizenship, but coupled with other
evidence, such as abandonment in Iloilo in 1968 when there were no
international airports in Iloilo, establishes probability that she was born of
Filipino parents. This probability is supported by statistics that 99.03% were
born to Filipino parents while 0.07% to foreigners in the Philippines. Election
cases requires preponderance of evidence so it can reasonably concluded
that petitioner has fulfilled all requirements of citizenship.
Petitioner may be considered natural-born citizen under 1935 Constitution

It was already established that foundlings may be presumed citizens of

the Philippines. The question as to whether foundling can be considered
natural born may be resolved by using originalist and functionalist approach
in interpretation of Constitution.
Originalist approach was used by the COMELEC in its resolution, saying
that in light of principle of inclusion unius est exlusion alterius, foundlings are
not natural born. This approach resolved constitutional issues by looking at
the text and clear intent of framers. Functionalist approach is one which is not
formalism. It is associated with balancing test and with interpretation in a
manner that goes beyond the original intent of persons crafted the text in
view of its adaptability.
A. Originalist Approach (Interpretation in accordance with intent of framers).
COMELEC urged the Court to use this approach claiming that there was no
intent on the part of the delegates to the 1934 Constitutional Convention to
consider foundlings as natural born citizens for if it was their intention, they
can explicitly stated it. The rule is if the terms of the Constitution do not
reveal intent of framers, extrinsic aids may be resorted to such as the
debates or proceedings, history, and executive or legislative construction.
The transcript of the deliberation reveals that intent of framers was to make
foundling a natural citizen. The delegates appeared to have been convinced
that there was no need to include a provision regarding foundling because
the Spanish Code already recognizes foundlings born of Spanish citizens as
Spanish, foundlings citizenship could be determined by Congress, these case
were so few, and international law recognizes children born in a country with
unknown parents as citizens of that country.
B. Functionalist Approach (Interpretation consistent with natural justice).
Under this, the Court should interpret Constitution that would allow fulfillment
of its purpose. The COMELECs argument that foundlings are excluded in
1935, 1973, and 1987 Constitution would go against fundamental principle of
natural justice.
Mixture of jus soli and jus sanguinis
COMELEC opines that only those whose fathers are citizens of the
Philippines are considered natural born under 1935 Constitution citing Valles
v COMELEC. However, the Court in that case only stated that citizenship by
blood was retained in the 1973 Constitution but it never stated that jus
sanguinis had been exclusive regime in the Philippines.
The Malolos Constitution provides that all persons in Philippine territory
are Filipinos. Under Philippine Bill, citizen of Philippines includes native-born
inhabitants, inhabitant who was native of Spain, and inhabitant who obtained
Spanish papers before April 1899. The Jones Law provides that citizens of
Philippines were subjects of Spain residing in Philippines on April 11,1899 and
since that date, not citizens of other country.

Citizenship under 1935, 1973, and 1987 Constitution

In the three Constitutions, citizens include citizens of Philippines at the
time of adoption of the Constitution. This includes even those who did not
have a single drop of Filipino blood. Constitution is meant to advance
fundamental values of the Filipino people. Thus, the Court should not
construe citizenship provisions in a manner that is unjustly depriving on the
part of foundlings just like considering them as stateless. The principle of
natural justice was utilized to avoid unfair outcome.
The requirement of natural- born citizenship should serve to deny certain
privileges to those who acquired and perfect their citizenship through
naturalization. The concept is meant to distinguish the natural born from the
foreign born. The term natural born was lifted from US Constitution. The US
Constitution does not define the term but cases decided indicated that those
born in United States, even born to alien parents, are natural born US citizen.
In 1935 Constitution of the Philippines, the term was not also defined.
However, deliberations of 1935 Constitution framers reveal that natural
citizen is person who is a citizen by birth and not by naturalization or further
declaration of law. The term was define in 1973 Constitution and it excludes
only those who are naturalized. As ruled by the Court in Roa v Collector of
Customs, natural born citizen is a person who has become such at the
moment of birth.
Foundling is not naturalized in accordance with law. The contention was
when foundling is registered in relation to administrative proceeding, the
process amounts to naturalization in accordance with law. The contention is
unacceptable. First, the phrase naturalized in accordance with law refers to
naturalization process provided under naturalization statutes. Second,
registration is not attributable to the foundling. Foundlings do not perform
any act equivalent to acts required in naturalization proceeding. Third, it is
possible to register a foundling even without administrative proceeding.
Applicability of Bengson v HRET
As to whether petitioner reacquired her natural born status, the Court
must apply ruling in Bengson III v HRET. In this case, the Court ruled that
there were only two classes of citizens: natura- born and naturalized. Citizen
who is not naturalized Filipino necessarily is a natural- born. In the absence of
separate category for those who after losing their citizenship, reacquires it,
they would either be natural born or naturalized. If a citizen does not have to
undergo naturalization process, then, he is a natural- born. Bengson referred
to repatriation of persons who served in US Army but re-acquisition under RA
9225 has similar process. It allows former Filipino citizens to recover their
natural-born status.
Determination of natural- born status
RA 9225 provides for the loss, re-acquisition, and retention of citizenship.
It refers only to citizenship and not the natural-born status. The status is

determined by birth. This characteristic cannot be changed except in case of

Re-acquisition is not naturalization
RA no 9225 merely discusses retention and re-acquisition of citizenship
and does not cover naturalization. Congress already treated naturalization as
different species apart from repatriation and other modes as may be
introduced. Re-acquisition under RA 9225 and repatriation under RA 8171 are
different from naturalization under CA 473. The former merely requires taking
the oath of allegiance and registering it in the proper civil registry. Petitioner
did not have to undergo process of naturalization in order to re-acquire
citizenship. She only had to observe procedure under RA 9225. Therefore,
declaring her to be naturalized is contrary to law.
To refuse to recognize foundlings as citizens of the Philippines is to
contravene our obligations under existing international law
Customary international law becomes binding by virtue of Incorporation
Clause. For it to occur there muse be widespread and consistent practice of
the states and psychological element known as the belief on the part of the
states that practice in question is rendered obligatory by existence of rule of
law requiring it. In 1935, there was no existing binding norm of customary
international law granting citizenship to foundlings. However, at present, this
customary norm exists. Right of children to acquire nationality is enshrined in
international agreements. Presumption of citizenship accorded to foundlings
in a states territory is mentioned in 1930 Hague Convention, 1961
Convention on the Reduction of Statelessness, and European Convention on
Nationality. These treaties, concurred by several states, show that there is
widespread recognition of the right to nationality of foundlings. 165 out of
189 countries consider foundlings as citizens by operation of law. 142
countries enacted statutes granting citizenship to child found in their
territories if parents are unknown unless there is proof to the contrary. The
Philippines is a state party to ICCPR and CRC and for this we must respect
right of every child to acquire nationality.
Declaration that foundlings are stateless would lead to unconscionable
consequences. It would render all children of unknown parentage stateless
and would place them in an extreme vulnerable condition. In the Philippines,
stateless were deprived of many rights like right to suffrage, education and
training, candidacy, occupation of public office, use of natural resources,
investment, practice of profession, and participation in legal proceedings with
regard to status, condition, and legal capacity. A declaration that individuals
of unknown parentage are not Filipinos or that they are naturalized citizens
may lead to removal from government positions, return of benefits already
granted, and end of pension for retirees.

Chief Justice Sereno voted to grant the consolidated petitions. COMELEC

relied on petitioners admission that she was foundling. However, such did
not establish the falsity of petitioners claim that she was natural born citizen.
Presumptions leaned in her favor to the effect that a foundling is a naturalborn citizen. Poe had the right to rely on these legal presumptions, negating
the notion of deception on her part in stating in her Certificate of Candidacy
that she was a natural-born citizen.