Poe-Llamanzares vs. COMELEC – Dissenting Opinion hostility x x x.
An error of judgment committed in the exercise of its legitimate
August 3, 2015 | Perlas-Bernabe, J. | Citizenship
Digester: Castro, Rachel Ann M.
SUMMARY:
On the power of the COMELEC: The COMELEC has the power to deny due course
or cancel CoC.
On residency: Didn’t exactly say that they’re false but said that there was insufficient
proof when stronger proof was necessary. The presumption that she continued to be
domiciled in the US was not rebutted.
On citizenship: Since the 1935 Constitution, and the 1973 and 1987 Constitutions
thereafter, consistently subscribe to the jus sanguinis principle, it is axiomatic that no
international agreement or generally-accepted principle of international law - even
assuming that there is a binding one which supports petitioner's averred presumption -
could contravene the same. "Under the 1987 Constitution, international law can become
part of the sphere of domestic law either by transformation or incorporation." Thus, in
our legal hierarchy, treaties and international principles belong to the same plane as
domestic laws and, hence, cannot prevail over the Constitution.
FACTS:
Amid the complexity of the legal issues and political implications involved, this Court, in ruling on
this matter - as in every other similar matter before it - must always harken back to its parameters of
review over rulings of the Commission on Elections (COMELEC). It is on this basic but resolute
premise that I submit this dissent.
I "[d]ecide, except those involving the right to vote, all questions affecting
On the power of the COMELEC to deny and/or cancel CoC
● Mitra vs. COMELEC: (emphasis by the Court)
"[t]he basis for the Court's review of COMELEC rulings under the standards of Rule 65 of the Rules
of Court is Section 7, Article IX-A of the [1987] Constitution which provides that '[u]nless
otherwise provided by the 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 [(30)] days from receipt of a copy thereof.' For this reason, the Rules of Court
provide for a separate rule (Rule 64) specifically applicable only to decisions of the
COMELEC and the Commission on Audit. This Rule expressly refers to the application of
Rule 65 in the filing of a petition for certiorari, subject to the exception clause - 'except as
hereinafter provided.
"The purpose of a petition for certiorari is to determine whether the challenged tribunal has acted
without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction. Thus, any resort to a petition for certiorari under Rule 64 in relation to
Rule 65 of the 1997 Rules of Civil Procedure is limited to the resolution of jurisdictional
issues."
● Miranda vs. Abaya: “An act of a court or tribunal may only be considered to have been
done in grave abuse of discretion when the same was performed in a capricious or whimsical
exercise of judgment which is equivalent to lack of jurisdiction. The abuse of discretion
must be so patent and gross as to amount to an evasion of positive duty or to a virtual
refusal to perform a duty enjoined or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion or personal
jurisdiction is not the same as 'grave abuse of discretion.' An abuse of discretion is
not sufficient by itself to justify the issuance of a writ of certiorari. The abuse must be
grave and patent, and it must be shown that the discretion was exercised arbitrarily
and despotically xx x.”
As applied:
● COMELEC ruled that petitioner (Grace Poe) made false representations in her
CoC when she declared that she was a natural-born citizen and would be a resident
for 10 years and 11 months on the day before the election (May 9 – election, so
May 8) so the COMELEC cancelled her CoC.
● Finding the verdict to be "deadly diseased with grave abuse of discretion from root
to fruits," the ponencia nullifies the COMELEC's assailed rulings, and even goes to
the extent of declaring petitioner as an eligible candidate.
Ponencia: The COMELEC, in ruling on a petition to deny due course to or cancel a CoC,
is restrained "from going into the issue of the qualifications of the candidate for the
position, if, as in this case, such issue is yet undecided or undetermined by the proper
authority." Consequently, "[t]he COMELEC cannot itself, in the same cancellation case,
decide the qualification or lack thereof of the candidate
J. Perlas-Bernabe:
● The COMELEC's power to deny due course to or cancel a candidate's CoC stems
from Section 2, Article IX-C of the 1987 Constitution which grants it the authority
to "[e]nforce and administer all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum, and recall" and to
elections x x x."
● Loong v. COMELEC: “Section 2(1) of Article IX(C) of the Constitution gives the
COMELEC the broad power "to enforce and administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative, referendum[,] and recall." Undoubtedly, the
text and intent of this provision is to give COMELEC all the necessary and incidental
powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible
elections. Congruent to this intent, this Court has not been niggardly in defining the
parameters of powers of COMELEC in the conduct of our elections.”
● Bedol v Comelec: “The quasi-judicial power of the COMELEC embraces the power to
resolve controversies arising from the enforcement of election laws, and to be the sole
judge of all pre-proclamation controversies; xx x.”
o As edified in this case, it is the COMELEC which is the "sole judge of all pre-
proclamation controversies." Thus, it would greatly emasculate the
COMELEC's constitutionally-conferred powers by treating it as a mere
administrative organ relegated to the task of conducting perfunctory reviews
only to spot falsities on the face of CoCs or ministerially enforce declarations
from a prior authority.
● There is no perceivable restriction which qualifies the exercise of the COMELEC's
adjudicatory power to declare a candidate ineligible and thus, cancel his/her CoC
with the need of a prior determination coming from a "proper authority."
● The COMELEC, under Rule 251 of its Resolution No. 9523 dated September 25,
2012, may disqualify any candidate found by the Commission to be suffering
from any disqualification provided by law or the Constitution.
● It is confounding that the ponencia ignores the second prong of the provision and
myopically zeroes-in on the first which but procedurally reflects the COMELEC's
power to disqualify a candidate already declared by final decision of a competent
court guilty of any disqualification, such as those accessory to a criminal conviction.
● As in this case, a "pre-proclamation controversy" may arise from a petition to deny
due course to or cancel a CoC. This remedy- which is filed before and falls under
the adjudicatory jurisdiction of the COMELEC - is governed by Section 782,
Article IX of Batas Pambansa Bilang 881 (Omnibus Election Code).
● A Section 78 petition is based exclusively on the ground that a CoC contains
a material representation that is false." The false representation contemplated
by Section 78 of the [OEC] pertains to [a] material fact, and is not simply an
innocuous mistake. A material fact refers to a candidate's qualification for elective
office such as one's citizenship and residence. "
● While there are decided cases wherein this Court has stated that “a false
representation under Section 78 must consist of 'a deliberate attempt to mislead,
misinform, or hide a fact, which would otherwise render a candidate
ineligible,” nowhere does the provision mention this requirement.
● Tagolino v. House of Representatives Electoral Tribunal: “[T]he deliberateness of the
misrepresentation, much less one's intent to defraud, is of bare significance in a
Section 78 petition as it is enough that the person's declaration of a material
qualification in the CoC be false. In this relation, jurisprudence holds that an express
finding that the person committed any deliberate misrepresentation is of little consequence
in the determination of whether one's CoC should be deemed cancelled or not. What
remains material is that the petition essentially seeks to deny due course to and/or cancel the
CoC on the basis of one's ineligibility and that the same be granted without any
qualification.”
● A survey of other cases3 shows that the requisite is barely significant.
1 Rule 25 - Disqualification of Candidates
Section 1. Grounds. - Any candidate who, in an action or protest in which he is a party, is
declared by final decision of a competent court, guilty of, or found by the Commission to be
suffering from any disqualification provided by law or the Constitution.
2 Section 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the
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.
3 candidate believes that he is eligible and purports to be so in his certificate of candidacy,
Villafuerte v COMELEC: “a false representation under Section 78" must be made "with an
intention to deceive the electorate as to one's qualifications for public office.” This Court never
looked into the circumstances that surrounded the candidate's representation. Instead, it equated
deliberateness of representation with the materiality of the fact being represented in the CoC.
● Again, the plain text of Section 78 reads that the remedy is based "on the ground
that any material representation contained therein as required under Section 74
hereof is false." It pertains to a material representation that is false and not a
"material misrepresentation." In my view, the latter is a semantic but impactful
misnomer which tends to obfuscate the sense of the provision as it suggests - by
employing the word "misrepresent," ordinarily understood to mean as "to give a
false or misleading representation of usually with an intent to deceive or be
unfair" - that intent is crucial in a Section 78 petition, when, in fact, it is not.
● The Dissenting Opinion of former Supreme Court Associate Justice Dante O.
Tinga (Justice Tinga) in Tecson v. COMELEC explains the irrelevance of the
candidate's intention or belief in ruling on a Section 78 petition. He cited J.
Kapunan in Romualdez-Marcos v COMELEC4 and said that, “The Kapunan
pronouncement in the Romualdez-Marcos case did not establish a doctrine.
It is not supported by law. and it smacks of judicial legislation. ”
● I could not agree more with Justice Tinga's exposition. Truly, "[ n ]owhere in
Section 78 is it stated or implied that there be an intention to deceive for a
certificate of candidacy to be denied due course or be cancelled. At the risk of
belaboring the point, the candidate's intent to mislead or misinform on a material
fact stated in his/her CoC is of no consequence in ruling on a Section 78 petition.
To premise a Section 78 petition on a finding of intent or belief would create a legal
vacuum wherein the COMELEC becomes powerless under the OEC to enjoin the
candidacy of ineligible presidential candidates upon a mere showing that the
material representations in his/her CoC were all made in good faith.
Thus, it held therein that "respondent's nickname 'LRA Y JR. MIGZ' written in his COC is [not]
a material misrepresentation," reasoning that the nickname "cannot be considered a material fact
which pertains to his eligibility and thus qualification to run for public office."
Hayudini v. COMELEC: this Court, while dealing with a case that involved material
representations pertaining to residency and voter registration, did not discuss the circumstances
which would demonstrate the intent of the candidate behind his CoC representations. It again
parroted precedent without any devoted discussion on the matter of intent.
Jalover v. Osmena: this Court just repeated precedent when it said that "[s]eparate from the
requirement of materiality, a false representation under Section 78 must consist of a 'deliberate
attempt to mislead, misinform, or hide a fact, which would otherwise render a candidate
ineligible," but did not apply the same. The Court cited Mitra and a closer observation would
show jurisprudence has all the while presumed deliberateness of intent from the materiality of the
falsity.
Agustin v COMELEC: Interestingly, this Court, consistent with the above-cited passage from
Tagolino, stated that "[ e ]ven if it made no finding that the petitioner deliberately attempted to
mislead or misinform as to warrant the cancellation of his CoC, the COMELEC could still declare
him disqualified for not meeting the required eligibility under the Local Government Code."
4 The reason for the irrelevance of intent or belief is not difficult to divine. Even if a
but is subsequently proven in a Rule 23 proceeding to be, in fact or in law, not eligible, it
would be utterly foolish to allow him to proceed with his candidacy. The electorate would
be merely squandering its votes for - and the COMELEC, its resources in counting the
ballots cast in favor of - a candidate who is not, in any case, qualified to hold public office.
● It should be emphasized that "[a] candidate's citizenship eligibility in
particular is determined by law, not by his good faith."
● Neither is it acceptable to think that the matter of eligibility - particularly, that of a
candidate for President - can only be taken up before the Presidential Electoral
Tribunal (PET) after a candidate has already been voted for.
o The COMELEC's constitutional mandate cannot be any clearer: it is
empowered to "[ e ]nforce and administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative, referendum, and recall" and to
"[d]ecide, except those involving the right to vote, all questions affecting
elections x x x."
● Verily, we cannot tolerate an absurd situation wherein a presidential candidate, who
has already been determined by the COMELEC to have missed a particular
eligibility requirement and, thus, had made a false representation in his/her CoC by
declaring that he/she is eligible, is still allowed to continue his/her candidacy, and
eventually be voted for. The proposition that the matter of eligibility should be left
to the PET to decide only after the elections is a dangerous one for not only does it
debase the COMELEC's constitutional powers, it also effectively results in a
mockery of the electoral process, not to mention the disenfranchisement of the
voters.
● At any rate, the jurisdictional boundaries have already been set: the COMELEC' s
jurisdiction ends, and that of the PET begins, only when a candidate therefore has
already been elected, and thereafter, proclaimed (Tecson v COMELEC).
● The ponencia's view is also inconsistent with its declaration that petitioner is
"QUALIFIED to be a candidate for President in the National and Local Elections
of 9 May 2016." If the COMELEC had no power to determine the eligibility of
petitioner, then this Court - which is only tasked to exercise its power of review
under the parameters of a petition for certiorari and, thus, should have either
nullified or affirmed the assailed rulings - could not proceed and assume
jurisdiction outside of the context of the case before it and make this ad hoc
pronouncement. The declaration not only serves to confuse the true powers of the
COMELEC, it also distorts the manner of our review.
II
On Residency
Central issue: Whether or not the representations of petitioner regarding her residency - particularly,
that she would be a resident of this country for ten (10) years and eleven (11) months on the day
immediately preceding the May 9, 2016 Elections - and her citizenship - particularly, that she is a
natural-born citizen of the Philippines - in her 2015 CoC are false
Ponencia: (1) The COMELEC gravely abused its discretion in concluding that petitioner
falsely represented in her 2015 CoC that she is a resident of the Philippines for at least
ten (10) years and eleven (11) months immediately preceding the May 9, 2016 Elections
as, in fact, it found her representation to be true.
(2) It gave credence to the voluminous and undisputed evidence which petitioner
presented showing that she and her family abandoned their US domicile and relocated
to the Philippines for good, which began on her arrival on May 24, 2005.
(3) Petitioner's entry in the Philippines visa-free as a balikbayan should not be taken
against her since, consistent with the purpose of the law, she actually reestablished life
here.
(4) Disregarded petitioner's prior statement in her 2012 CoC for Senator wherein she
declared to be a resident of the Philippines for six years (6) years and six (6) months
before May 13, 2013, thus implying that she started being a Philippine resident only in
November 2006.
J. Perlas – Bernabe
● "To successfully effect a change of domicile[,] one must demonstrate an actual
removal or an actual change of domicile; a bona fide intention of abandoning the
former place of residence and establishing a new one and definite acts which
correspond with the purpose. In other words, there must basically be animus
manendi coupled with animus non revertendi. The purpose to remain in or at
the domicile of choice must be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the place chosen for the new
domicile must be actual."
● The COMELEC primarily observed that all of the evidence presented by petitioner
were executed before July 2006, which is the date of reacquisition of her Filipino
citizenship. Citing the cases of Coquilla v. COMELEC5, Jafzon v. COMELEC6, and
Caballero v. COMELEC7, the COMELEC pronounced that the earliest possible date
that she could have reestablished her residence in the Philippines was when she
reacquired her Filipino citizenship in July 2006.
● To my mind, the COMELEC's reliance on Coquilla is apt. As the records disclose,
petitioner returned to the Philippines on May 24, 2005 under the Balikbayan
Program, and therefore, only obtained the status of a temporary resident.
Specifically, Section 3 of RA 67688, as amended by RA 9174, merely accorded her
the benefit of visa-free entry to the Philippines for a period of one ( 1) year.
5
As applied in this case: an alien, such as petitioner, may waive his/her status as a non-resident and
thus, become a resident alien by obtaining an immigrant visa under the Philippine Immigration
Act of 1948 and an Immigrant Certificate of Residence. Prior to this waiver, he/she is a visitor, a
non-resident alien. Without this waiver, petitioner remained to be a visitor or a non-resident alien
until July 2006.
6
The Court declared that reacquisition under RA 9225 or "Citizenship Retention and
Reacquisition Act of 2003," has no automatic impact on a candidate's domicile as he/she only had
the option to again establish his/her domicile.
7 A candidate must still prove that after becoming a Philippine citizen, he/she had reestablished
his new domicile of choice.
8
Section 3. Benefits and Privileges of the Balikbayan. - The balikbayan and his or her family shall
be entitled to the following benefits and privileges:
xxxx
● As such, since she did not waive her status of being a non-resident alien, her stay
here upon her return on May 24, 2005 up until she reacquired Philippine
citizenship in July 2006 should only be considered as temporary.
● While it is not entirely indispensable that one first acquires the status of a
permanent resident in order to reestablish his/her domicile in the Philippines, it is,
nonetheless, highly indicative of his/her animus manendi and animus non revertendi.
● From May 24, 2005 to July, 2006, her overt acts show that she was only a
temporary resident. If at all, her inattention to legitimize her so-called "permanent
residence" in the Philippines in accordance with our Immigration Laws stamps a
significant question mark on her animus manendi and animus non revertendi on May 24,
2005. Thus, the COMELEC can hardly be blamed from reaching its ruling as
petitioner's intention to permanently reside in the Philippines and to abandon the
US as her domicile on May 24, 2005 were, based on reasonable premises, shrouded
in doubt.
● At this juncture, let me express my assent to the view that "[s]tronger proof is
required in the reestablishment of national domicile." This is because a person who
has been domiciled in another country has already established effective legal ties
with that country that are substantially distinct and separate from ours. Such a
situation hardly obtains when what is involved is the change of domicile between
localities within the same country.
● The need for stronger proof becomes more apparent when the person involved is
one who has been domiciled in another country as part of his/her naturalization as
a citizen therein. As such, while citizenship and residency are different from and
independent of each other - this, being the key premise in the Court's rulings in
Japzon and Caballero - I do believe that "one may invariably affect the other."
● To my mind, the ability to enjoy the privileges of foreign citizenship at any time,
while remaining under that status, conjures a reasonable presumption that the latter
continues to avail of these privileges, which, among others, include the privilege to
reside in that foreign country. Hence, absent compelling evidence to show that
he/she had reestablished domicile in another country, it should therefore be
presumed that he/she continues to be domiciled in the country he/she is a citizen
of.
● The discernment of pervading realities in the place where one seeks to be elected is
objectively farther from a person who has been domiciled in a foreign country.
Thus, a higher standard of proof should be applied to a candidate previously
domiciled in a foreign country for he/she has been out of touch with the needs of
the electoral constituency he/she seeks to represent.
● One could not blame COMELEC for taking her admission against interest into
account (admitted in Senatorial CoC that she’s been here for 6 years and 8 months).
This was not an honest mistake based on a bulk of proof.
III
(c) Visa-free entry to the Philippines for a period of one (1) year for foreign passport holders,
with the exception of restricted nationals[.]
On citizenship [TOPIC]
Ponencia: Petitioner's blood relationship with a Filipino citizen is demonstrable on
account of statistical probability, and other circumstantial evidence, namely, her
abandonment as an infant in a Roman Catholic Church in Iloilo City, as well as her
typical Filipino features.
J. Perlas-Bernabe:
Basic tenets of citizenship
● "There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These
ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born
citizen, and the naturalized citizen."
● "A person who at the time of his birth is a citizen of a particular country, is a natural-born
citizen thereof." As defined under the present Constitution, "[n]atural-born citizens are
those who are citizens of the Philippines from birth without having to perform any
act to acquire or perfect their Philippine citizenship." "On the other hand, naturalized
citizens are those who have become Filipino citizens through naturalization xx x."
● "[I]t is the inherent right of every independent nation to determine for itself and according
to its own constitution and laws what classes of persons shall be entitled to its citizenship x x
x." With respect to citizenship by birth, a particular jurisdiction generally subscribes to either
the principle of jus sanguinis or the principle of jus soli, although it may adopt a mixed system
with features of both.
● "The Philippine law on citizenship adheres to the principle of jus sanguinis.
Thereunder, a child follows the nationality or citizenship of the parents regardless of the
place of his/her birth, as opposed to the doctrine of jus soli which determines nationality or
citizenship on the basis of place of birth." In Valles v. COMELEC, this Court held that
"[t]he signing into law of the 1935 Philippine Constitution has established the
principle of jus sanguinis as basis for the acquisition of Philippine citizenship x x x.
So also, the principle of jus sanguinis, which confers citizenship by virtue of blood
relationship, was subsequently retained under the 1973 and 1987
Constitutions." Following this principle, proof of blood relation to a Filipino parent is
therefore necessary to show that one is a Filipino citizen by birth.
As applied:
● Petitioner has shown no evidence of blood relation to a Filipino parent to prove
that she acquired Filipino citizenship by birth under the jus sanguinis principle. While
petitioner did not bear the initial burden of proving that she made a false material
representation on her citizenship in her 2015 CoC, as that burden belonged to
those who filed the petitions to deny due course to or cancel her CoC before the
COMELEC, the burden of evidence shifted to her when she voluntarily admitted
her status as a foundling.
● Under Section 1, Article IV of the 1935 Constitution 9, which governs petitioner's
case, foundlings are not included in the enumeration of who are considered as
Filipino citizens.
9 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.
 o A "'foundling' refers to a deserted or abandoned infant or child whose parents, and assessed by the COMELEC En Banc at the time it rendered its ruling. Be that
guardian or relatives are unknown; or a child committed to an orphanage or charitable as it may, the constitutional requirements for office, especially for the highest office
or similar institution with unknown facts of birth and parentage and registered in the in the land, cannot be based on mere probability. "[M]atters dealing with
Civil Register as a 'foundling’.” qualifications for public elective office must be strictly complied with."
o The fact that a candidate's parents are unknown directly puts into question
● Also, the circumstances surrounding petitioner's abandonment, as well as her
his/her Filipino citizenship because the candidate has no prima facie link to a
physical characteristics, hardly assuage this possibility. By parity of reasoning, they
Filipino parent from which he/she could have traced her Filipino citizenship.
do not prove that she was born to a Filipino: her abandonment in the Philippines is
This is why the burden of evidence shifted to petitioner.
just a restatement of her foundling status, while her physical features only tend to
● Without any proof of blood relation to a Filipino parent, and without any mention prove that her parents likely had Filipino features and yet it remains uncertain if
in the 1935 Constitution that foundlings are considered or are even presumed to be their citizenship was Filipino.
Filipino citizens by birth, the COMELEC's finding that petitioner was not a
natural-born citizen cannot be taken as patently unreasonable and grossly baseless
so as to amount to grave abuse of discretion.
o The COMELEC, with good reason, relied on the plain text of the 1935
Constitution based on the statutory construction axioms of expressio unius est
exclusio alterius and verba legis non est recedendum, as well as firmly abided by
the jus sanguinis principle which, as repeatedly stated, necessitates proof of
blood relation, of which petitioner presented none.
o It should be pointed out that the 1935 Constitution, as it was adopted in its
final form, never carried over any proposed provision on foundlings being
considered or presumed to be Filipino citizens. Its final exclusion is therefore
indicative of the framers' prevailing intent
● [TOPIC]I also find no merit in petitioner's invocation of international
covenants which purportedly evince a generally accepted principle in international
law that foundlings are presumed to be citizens of the country where they are
found. Since the 1935 Constitution, and the 1973 and 1987 Constitutions
thereafter, consistently subscribe to the jus sanguinis principle, it is axiomatic that no
international agreement or generally-accepted principle of international law - even
assuming that there is a binding one which supports petitioner's averred
presumption - could contravene the same. "Under the 1987 Constitution,
international law can become part of the sphere of domestic law either by
transformation or incorporation." Thus, in our legal hierarchy, treaties and
international principles belong to the same plane as domestic laws and, hence,
cannot prevail over the Constitution.

With regard to petitioner’s resort to statistical probability:

● I oppose petitioner's resort to statistical probability as basis to presume natural-
born citizenship in this case. Allow me to point out that these statistics surfaced
only in the proceedings before this Court and hence, could not have been weighed

(2) Those born in the Philippine Islands of foreign parents who, before the adoption of this
Constitution, had been elected to public office in the Philippine Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority,
elect Philippine citizenship.
(5) Those who are naturalized in accordance with law.