C100 Magallona v.

Ermita, GR 187167, 16 August 2011, En Banc, Carpio [J]

G.R No. 187167

August 16, 2011

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF.

HARRY C. ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ,
FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA,
ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAETE, VANN
ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO
FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA
MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY,
MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM
RAGAMAT, MARICAR RAMOS, ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON,
JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS
SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA ANNE TORNO,
MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS,
HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS
ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY,
and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE
PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED NATIONS,
Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of Republic
Act No. 95221 (RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline
regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046) 2 demarcating the maritime baselines of
the Philippines as an archipelagic State.3 This law followed the framing of the Convention on the
Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the
sovereign right of States parties over their "territorial sea," the breadth of which, however, was left
undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960

(UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five
decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting
typographical errors and reserving the drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny.
The change was prompted by the need to make RA 3046 compliant with the terms of the United
Nations Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27
February 1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of
baselines of archipelagic States like the Philippines7 and sets the deadline for the filing of application
for the extended continental shelf.8 Complying with these requirements, RA 9522 shortened one
baseline, optimized the location of some basepoints around the Philippine archipelago and classified
adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as
"regimes of islands" whose islands generate their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective capacities as
"citizens, taxpayers or x x x legislators,"9 as the case may be, assail the constitutionality of RA 9522
on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically,
the reach of the Philippine states sovereign power, in violation of Article 1 of the 1987 Constitution, 10
embodying the terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the
countrys waters landward of the baselines to maritime passage by all vessels and aircrafts,
undermining Philippine sovereignty and national security, contravening the countrys nuclear-free
policy, and damaging marine resources, in violation of relevant constitutional provisions. 13
In addition, petitioners contend that RA 9522s treatment of the KIG as "regime of islands" not only
results in the loss of a large maritime area but also prejudices the livelihood of subsistence
fishermen.14 To buttress their argument of territorial diminution, petitioners facially attack RA 9522 for
what it excluded and included its failure to reference either the Treaty of Paris or Sabah and its use
of UNCLOS IIIs framework of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning (1) the
petitions compliance with the case or controversy requirement for judicial review grounded on
petitioners alleged lack of locus standi and (2) the propriety of the writs of certiorari and prohibition
to assail the constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the
countrys compliance with the terms of UNCLOS III, preserving Philippine territory over the KIG or
Scarborough Shoal. Respondents add that RA 9522 does not undermine the countrys security,
environment and economic interests or relinquish the Philippines claim over Sabah.
Respondents also question the normative force, under international law, of petitioners assertion that
what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters
found within the boundaries of the rectangular area drawn under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
The Issues

The petition raises the following issues:

1. Preliminarily
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail the
constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as
citizens and (2) the writs of certiorari and prohibition are proper remedies to test the constitutionality
of RA 9522. On the merits, we find no basis to declare RA 9522 unconstitutional.
On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers
because the petition alleges neither infringement of legislative prerogative 15 nor misuse of public
funds,16 occasioned by the passage and implementation of RA 9522. Nonetheless, we recognize
petitioners locus standi as citizens with constitutionally sufficient interest in the resolution of the
merits of the case which undoubtedly raises issues of national significance necessitating urgent
resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find other
litigants possessing "a more direct and specific interest" to bring the suit, thus satisfying one of the
requirements for granting citizenship standing.17
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict
observance of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue
absent any showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or
ministerial powers on the part of respondents and resulting prejudice on the part of petitioners. 18
Respondents submission holds true in ordinary civil proceedings. When this Court exercises its
constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari
and prohibition as proper remedial vehicles to test the constitutionality of statutes, 19 and indeed, of
acts of other branches of government.20 Issues of constitutional import are sometimes crafted out of
statutes which, while having no bearing on the personal interests of the petitioners, carry such
relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance

of the case and pass upon the issues raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large portion of the national territory" 21 because it
discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related
treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987
Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory
provision denying the Philippines sovereign control over waters, beyond the territorial sea
recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the United States.
Petitioners argue that from the Treaty of Paris technical description, Philippine sovereignty over
territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing
the rectangular area delineated in the Treaty of Paris.22
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty
regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical
miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive
economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III
delimits.23 UNCLOS III was the culmination of decades-long negotiations among United Nations
members to codify norms regulating the conduct of States in the worlds oceans and submarine
areas, recognizing coastal and archipelagic States graduated authority over a limited span of waters
and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to
mark-out specific basepoints along their coasts from which baselines are drawn, either straight or
contoured, to serve as geographic starting points to measure the breadth of the maritime zones and
continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf. The breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf shall be measured from archipelagic
baselines drawn in accordance with article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit
with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to
the rest of the international community of the scope of the maritime space and submarine areas
within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over
territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation

laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in
the exclusive economic zone (Article 56) and continental shelf (Article 77).
Even under petitioners theory that the Philippine territory embraces the islands and all the waters
within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still
have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in
conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of
the rectangular area delineated in the Treaty of Paris, but from the "outermost islands and drying
reefs of the archipelago."24
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as
petitioners claim, diminution of territory. Under traditional international law typology, States acquire
(or conversely, lose) territory through occupation, accretion, cession and prescription, 25 not by
executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with
the treatys terms to delimit maritime zones and continental shelves. Territorial claims to land
features are outside UNCLOS III, and are instead governed by the rules on general international
law.26
RA 9522s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the
baselines, and to measure the breadth of the applicable maritime zones of the KIG, "weakens our
territorial claim" over that area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion
from the Philippine archipelagic baselines results in the loss of "about 15,000 square nautical miles
of territorial waters," prejudicing the livelihood of subsistence fishermen. 28 A comparison of the
configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space
encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional
deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this view.
1avvphi1

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely
followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped
to optimize the location of basepoints and adjust the length of one baseline (and thus comply with
UNCLOS IIIs limitation on the maximum length of baselines). Under RA 3046, as under RA 9522,
the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine
archipelago. This undeniable cartographic fact takes the wind out of petitioners argument branding
RA 9522 as a statutory renunciation of the Philippines claim over the KIG, assuming that baselines
are relevant for this purpose.
Petitioners assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA
9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location

of basepoints, increased the Philippines total maritime space (covering its internal waters, territorial
sea and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below: 29
Extent of maritime
area using RA 3046,
as amended, taking
into account the
Treaty of Paris
delimitation (in
square nautical
miles)

Extent of maritime
area using RA 9522,
taking into account
UNCLOS III (in
square nautical
miles)

Internal or
archipelagic
waters

166,858

171,435

Territorial Sea

274,136

32,106

Exclusive
Economic Zone
TOTAL

382,669
440,994

586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522
even extends way beyond the waters covered by the rectangular demarcation under the Treaty of
Paris. Of course, where there are overlapping exclusive economic zones of opposite or adjacent
States, there will have to be a delineation of maritime boundaries in accordance with UNCLOS III. 30

Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines
that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law
commits to text the Philippines continued claim of sovereignty and jurisdiction over the KIG and the
Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the
Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a
breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he
drawing of such baselines shall not depart to any appreciable extent from the general configuration
of the archipelago." Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines
shall not exceed 100 nautical miles," save for three per cent (3%) of the total number of baselines
which can reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the KIG 32 and the Scarborough
Shoal for several decades, these outlying areas are located at an appreciable distance from the
nearest shoreline of the Philippine archipelago,33 such that any straight baseline loped around them
from the nearest basepoint will inevitably "depart to an appreciable extent from the general
configuration of the archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to
emphasize the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the
Scarborough Shoal are outside our archipelagic baseline because if we put them inside our
baselines we might be accused of violating the provision of international law which states: "The
drawing of such baseline shall not depart to any appreciable extent from the general configuration of
the archipelago." So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by
international law to claim them as our own.
This is called contested islands outside our configuration. We see that our archipelago is defined by
the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle
doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or
the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic
baselines para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na
tatanggapin ng United Nations because of the rule that it should follow the natural configuration of
the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. The need to
shorten this baseline, and in addition, to optimize the location of basepoints using current maps,
became imperative as discussed by respondents:
1avvphi1

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer
limits of its maritime zones including the extended continental shelf in the manner provided by Article
47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from
some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil
Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article
47(2) of the [UNCLOS III], which states that "The length of such baselines shall not exceed

100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing
any archipelago may exceed that length, up to a maximum length of 125 nautical miles."
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted
from the baselines system. This will enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly along the west coasts
of Luzon down to Palawan were later found to be located either inland or on water, not on
low-water line and drying reefs as prescribed by Article 47. 35
Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal,
Congress decision to classify the KIG and the Scarborough Shoal as "Regime[s] of Islands under
the Republic of the Philippines consistent with Article 121" 36 of UNCLOS III manifests the Philippine
States responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under
Article 121 of UNCLOS III, any "naturally formed area of land, surrounded by water, which is above
water at high tide," such as portions of the KIG, qualifies under the category of "regime of islands,"
whose islands generate their own applicable maritime zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim
over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal,
keeps open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as
provided in this Act is without prejudice to the delineation of the baselines of the territorial sea
around the territory of Sabah, situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitutions
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these waters
to the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners
extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and
maritime pollution hazards, in violation of the Constitution. 38
Whether referred to as Philippine "internal waters" under Article I of the Constitution 39 or as
"archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over
the body of water lying landward of the baselines, including the air space over it and the submarine
areas underneath. UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their
bed and subsoil.
1. The sovereignty of an archipelagic State extends to the waters enclosed by the
archipelagic baselines drawn in accordance with article 47, described as archipelagic
waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to
their bed and subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the
exercise by the archipelagic State of its sovereignty over such waters and their air
space, bed and subsoil, and the resources contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and international law
norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in
the interest of maintaining unimpeded, expeditious international navigation, consistent with the
international law principle of freedom of navigation. Thus, domestically, the political branches of the
Philippine government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate innocent and sea lanes
passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now pending in
Congress.41
In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate
to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treatys
limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a
customary international law,43 thus automatically incorporated in the corpus of Philippine law.44 No
modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking retaliatory measures from
the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of
innocent passage and sea lanes passage45 does not place them in lesser footing vis--vis
continental coastal States which are subject, in their territorial sea, to the right of innocent passage
and the right of transit passage through international straits. The imposition of these passage rights
through archipelagic waters under UNCLOS III was a concession by archipelagic States, in
exchange for their right to claim all the waters landward of their baselines, regardless of their depth
or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More
importantly, the recognition of archipelagic States archipelago and the waters enclosed by their
baselines as one cohesive entity prevents the treatment of their islands as separate islands under
UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters between
islands separated by more than 24 nautical miles beyond the States territorial sovereignty,
subjecting these waters to the rights of other States under UNCLOS III. 47

Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of

Principles and State Policies)48 must also fail. Our present state of jurisprudence considers the
provisions in Article II as mere legislative guides, which, absent enabling legislation, "do not embody
judicially enforceable constitutional rights x x x."49 Article II provisions serve as guides in formulating
and interpreting implementing legislation, as well as in interpreting executory provisions of the
Constitution. Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology
under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate
the claimed constitutional violation. The other provisions petitioners cite, relating to the protection of
marine wealth (Article XII, Section 2, paragraph 251 ) and subsistence fishermen (Article XIII, Section
752 ), are not violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic
zone, reserving solely to the Philippines the exploitation of all living and non-living resources within
such zone. Such a maritime delineation binds the international community since the delineation is in
strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the
international community will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space the exclusive economic zone in waters previously part of the high seas.
UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this
zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of
navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound
to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners
reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to
this Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an
UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid
of internationally acceptable baselines from where the breadth of its maritime zones and continental
shelf is measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to the
seafaring powers to freely enter and exploit the resources in the waters and submarine areas around
our archipelago; and second, it weakens the countrys case in any international dispute over
Philippine maritime space. These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent
areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of
the Philippines maritime zones and continental shelf. RA 9522 is therefore a most vital step on the
part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our
national interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.

ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
PRESBITERO J. VELASCO, JR.
Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE C. MENDOZA
Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice
C E R TI F I C ATI O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.
RENATO C. CORONA
Chief Justice

Footnotes
Entitled "An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by
Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other
Purposes."
1

Entitled "An Act to Define the Baselines of the Territorial Sea of the Philippines."

The third "Whereas Clause" of RA 3046 expresses the import of treating the Philippines as
an archipelagic State:
3

"WHEREAS, all the waters around, between, and connecting the various islands of
the Philippine archipelago, irrespective of their width or dimensions, have always
been considered as necessary appurtenances of the land territory, forming part of the
inland waters of the Philippines."
One of the four conventions framed during the first United Nations Convention on the Law
of the Sea in Geneva, this treaty, excluding the Philippines, entered into force on 10
September 1964.
4

UNCLOS III entered into force on 16 November 1994.

The Philippines signed the treaty on 10 December 1982.

Article 47, paragraphs 1-3, provide:

1. An archipelagic State may draw straight archipelagic baselines joining the
outermost points of the outermost islands and drying reefs of the archipelago
provided that within such baselines are included the main islands and an area in
which the ratio of the area of the water to the area of the land, including atolls, is
between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100 nautical miles, except that up to
3 per cent of the total number of baselines enclosing any archipelago may exceed
that length, up to a maximum length of 125 nautical miles.
3. The drawing of such baselines shall not depart to any appreciable extent from the
general configuration of the archipelago. (Emphasis supplied)
xxxx

UNCLOS III entered into force on 16 November 1994. The deadline for the filing of
application is mandated in Article 4, Annex II: "Where a coastal State intends to establish, in
accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles,
it shall submit particulars of such limits to the Commission along with supporting scientific
and technical data as soon as possible but in any case within 10 years of the entry into force
of this Convention for that State. The coastal State shall at the same time give the names of
any Commission members who have provided it with scientific and technical advice."
(Underscoring supplied)
8

In a subsequent meeting, the States parties agreed that for States which became
bound by the treaty before 13 May 1999 (such as the Philippines) the ten-year period

will be counted from that date. Thus, RA 9522, which took effect on 27 March 2009,
barely met the deadline.
9

Rollo, p. 34.

Which provides: "The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The
waters around, between, and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the Philippines."
10

Entered into between the Unites States and Spain on 10 December 1898 following the
conclusion of the Spanish-American War. Under the terms of the treaty, Spain ceded to the
United States "the archipelago known as the Philippine Islands" lying within its technical
description.
11

The Treaty of Washington, between Spain and the United States (7 November 1900),
transferring to the US the islands of Cagayan, Sulu, and Sibutu and the US-Great Britain
Convention (2 January 1930) demarcating boundary lines between the Philippines and North
Borneo.
12

13

Article II, Section 7, Section 8, and Section 16.

Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of the
Constitution.
14

15

Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).

Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELEC, 165
Phil. 303 (1976).
16

Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan,
Inc. v. Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155-156 (1995)
(Feliciano, J., concurring). The two other factors are: "the character of funds or assets
involved in the controversy and a clear disregard of constitutional or statutory prohibition." Id.
17

18

. Rollo, pp. 144-147.

See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623
(dismissing a petition for certiorari and prohibition assailing the constitutionality of Republic
Act No. 9716, not for the impropriety of remedy but for lack of merit); Aldaba v. COMELEC,
G.R. No. 188078, 25 January 2010, 611 SCRA 137 (issuing the writ of prohibition to declare
unconstitutional Republic Act No. 9591); Macalintal v. COMELEC, 453 Phil. 586 (2003)
(issuing the writs of certiorari and prohibition declaring unconstitutional portions of Republic
Act No. 9189).
19

See e.g. Neri v. Senate Committee on Accountability of Public Officers and Investigations,
G.R. No. 180643, 25 March 2008, 549 SCRA 77 (granting a writ of certiorari against the
Philippine Senate and nullifying the Senate contempt order issued against petitioner).
20

21

Rollo, p. 31.

Respondents state in their Comment that petitioners theory "has not been accepted or
recognized by either the United States or Spain," the parties to the Treaty of Paris.
Respondents add that "no State is known to have supported this proposition." Rollo, p. 179.
22

UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner
Magallona himself defined as "a body of treaty rules and customary norms governing the
uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. x x x x" (Merlin M. Magallona, Primer on the Law of the Sea 1 [1997])
(Italicization supplied).
23

24

Following Article 47 (1) of UNCLOS III which provides:

An archipelagic State may draw straight archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago provided that
within such baselines are included the main islands and an area in which the ratio of
the area of the water to the area of the land, including atolls, is between 1 to 1 and 9
to 1. (Emphasis supplied)

Under the United Nations Charter, use of force is no longer a valid means of acquiring
territory.
25

The last paragraph of the preamble of UNCLOS III states that "matters not regulated by
this Convention continue to be governed by the rules and principles of general international
law."
26

27

Rollo, p. 51.

28

Id. at 51-52, 64-66.

29

Based on figures respondents submitted in their Comment (id. at 182).

30

Under Article 74.

31

See note 7.

32

Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.

KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around 123
nautical west of Zambales.
33

34

Journal, Senate 14th Congress 44th Session 1416 (27 January 2009).

35

Rollo, p. 159.

36

Section 2, RA 9522.

37

Article 121 provides: "Regime of islands.

1. An island is a naturally formed area of land, surrounded by water, which is above
water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf of an island are determined in
accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall
have no exclusive economic zone or continental shelf."

38

Rollo, pp. 56-57, 60-64.

Paragraph 2, Section 2, Article XII of the Constitution uses the term "archipelagic waters"
separately from "territorial sea." Under UNCLOS III, an archipelagic State may have internal
waters such as those enclosed by closing lines across bays and mouths of rivers. See
Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS III provides: "Where the
establishment of a straight baseline in accordance with the method set forth in article 7 has
the effect of enclosing as internal waters areas which had not previously been considered
as such, a right of innocent passage as provided in this Convention shall exist in those
waters." (Emphasis supplied)
39

40

Mandated under Articles 52 and 53 of UNCLOS III:

Article 52. Right of innocent passage.

1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy
the right of innocent passage through archipelagic waters, in accordance with
Part II, section 3.
2. The archipelagic State may, without discrimination in form or in fact among foreign
ships, suspend temporarily in specified areas of its archipelagic waters the innocent
passage of foreign ships if such suspension is essential for the protection of its
security. Such suspension shall take effect only after having been duly published.
(Emphasis supplied)
Article 53. Right of archipelagic sea lanes passage.

1. An archipelagic State may designate sea lanes and air routes thereabove, suitable
for the continuous and expeditious passage of foreign ships and aircraft through or
over its archipelagic waters and the adjacent territorial sea.
2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in
such sea lanes and air routes.
3. Archipelagic sea lanes passage means the exercise in accordance with this
Convention of the rights of navigation and overflight in the normal mode solely for the
purpose of continuous, expeditious and unobstructed transit between one part of the
high seas or an exclusive economic zone and another part of the high seas or an
exclusive economic zone.
4. Such sea lanes and air routes shall traverse the archipelagic waters and the
adjacent territorial sea and shall include all normal passage routes used as routes for
international navigation or overflight through or over archipelagic waters and, within
such routes, so far as ships are concerned, all normal navigational channels,
provided that duplication of routes of similar convenience between the same entry
and exit points shall not be necessary.
5. Such sea lanes and air routes shall be defined by a series of continuous axis lines
from the entry points of passage routes to the exit points. Ships and aircraft in
archipelagic sea lanes passage shall not deviate more than 25 nautical miles to
either side of such axis lines during passage, provided that such ships and aircraft
shall not navigate closer to the coasts than 10 per cent of the distance between the
nearest points on islands bordering the sea lane.
6. An archipelagic State which designates sea lanes under this article may also
prescribe traffic separation schemes for the safe passage of ships through narrow
channels in such sea lanes.
7. An archipelagic State may, when circumstances require, after giving due publicity
thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or
traffic separation schemes previously designated or prescribed by it.
8. Such sea lanes and traffic separation schemes shall conform to generally
accepted international regulations.
9. In designating or substituting sea lanes or prescribing or substituting traffic
separation schemes, an archipelagic State shall refer proposals to the competent
international organization with a view to their adoption. The organization may adopt
only such sea lanes and traffic separation schemes as may be agreed with the
archipelagic State, after which the archipelagic State may designate, prescribe or
substitute them.

10. The archipelagic State shall clearly indicate the axis of the sea lanes and the
traffic separation schemes designated or prescribed by it on charts to which due
publicity shall be given.
11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and
traffic separation schemes established in accordance with this article.
12. If an archipelagic State does not designate sea lanes or air routes, the right of
archipelagic sea lanes passage may be exercised through the routes normally used
for international navigation. (Emphasis supplied)
Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled "AN ACT TO
ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC
WATERS, PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND
AIRCRAFTS EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE
THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND PROVIDING FOR THE
ASSOCIATED PROTECTIVE MEASURES THEREIN."
41

42

The relevant provision of UNCLOS III provides:

Article 17. Right of innocent passage.
Subject to this Convention, ships of all States, whether coastal or land-locked,
enjoy the right of innocent passage through the territorial sea. (Emphasis
supplied)
Article 19. Meaning of innocent passage.
1. Passage is innocent so long as it is not prejudicial to the peace, good
order or security of the coastal State. Such passage shall take place in
conformity with this Convention and with other rules of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the
peace, good order or security of the coastal State if in the territorial sea it
engages in any of the following activities:
(a) any threat or use of force against the sovereignty, territorial
integrity or political independence of the coastal State, or in any other
manner in violation of the principles of international law embodied in
the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the
defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security

of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person
contrary to the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State;
(h) any act of willful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or
any other facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage
Article 21. Laws and regulations of the coastal State relating to innocent passage.
1. The coastal State may adopt laws and regulations, in conformity with the
provisions of this Convention and other rules of international law, relating to
innocent passage through the territorial sea, in respect of all or any of the
following:
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities
or installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and
regulations of the coastal State;
(f) the preservation of the environment of the coastal State and the
prevention, reduction and control of pollution thereof;
(g) marine scientific research and hydrographic surveys;

(h) the prevention of infringement of the customs, fiscal, immigration

or sanitary laws and regulations of the coastal State.
2. Such laws and regulations shall not apply to the design, construction,
manning or equipment of foreign ships unless they are giving effect to
generally accepted international rules or standards.
3. The coastal State shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of innocent passage through the
territorial sea shall comply with all such laws and regulations and all generally
accepted international regulations relating to the prevention of collisions at
sea.
The right of innocent passage through the territorial sea applies only to ships and not to
aircrafts (Article 17, UNCLOS III). The right of innocent passage of aircrafts through the
sovereign territory of a State arises only under an international agreement. In contrast, the
right of innocent passage through archipelagic waters applies to both ships and aircrafts
(Article 53 (12), UNCLOS III).
43

Following Section 2, Article II of the Constitution: "Section 2. The Philippines renounces

war as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations." (Emphasis supplied)
44

"Archipelagic sea lanes passage is essentially the same as transit passage through straits"
to which the territorial sea of continental coastal State is subject. R.R. Churabill and A.V.
Lowe, The Law of the Sea 127 (1999).
45

46

Falling under Article 121 of UNCLOS III (see note 37).

Within the exclusive economic zone, other States enjoy the following rights under UNCLOS
III:
47

Article 58. Rights and duties of other States in the exclusive economic zone.
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy,
subject to the relevant provisions of this Convention, the freedoms referred to in
article 87 of navigation and overflight and of the laying of submarine cables and
pipelines, and other internationally lawful uses of the sea related to these freedoms,
such as those associated with the operation of ships, aircraft and submarine cables
and pipelines, and compatible with the other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the
exclusive economic zone in so far as they are not incompatible with this Part.

xxxx
Beyond the exclusive economic zone, other States enjoy the freedom of the high seas,
defined under UNCLOS III as follows:
Article 87. Freedom of the high seas.
1. The high seas are open to all States, whether coastal or land-locked. Freedom of
the high seas is exercised under the conditions laid down by this Convention and by
other rules of international law. It comprises, inter alia, both for coastal and landlocked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted
under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests
of other States in their exercise of the freedom of the high seas, and also with due
regard for the rights under this Convention with respect to activities in the Area.
48

See note 13.

Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Taada v. Angara, 338 Phil. 546,
580-581 (1997).
49

50

G.R. No. 101083, 30 July 1993, 224 SCRA 792.

"The State shall protect the nations marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino
citizens."
51

"The State shall protect the rights of subsistence fishermen, especially of local
communities, to the preferential use of the communal marine and fishing resources, both
inland and offshore. It shall provide support to such fishermen through appropriate
technology and research, adequate financial, production, and marketing assistance, and
other services. The State shall also protect, develop, and conserve such resources. The
protection shall extend to offshore fishing grounds of subsistence fishermen against foreign
52

intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine
and fishing resources."
This can extend up to 350 nautical miles if the coastal State proves its right to claim an
extended continental shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in relation
to Article 77).
53

54

Rollo, pp. 67-69.

Article 47 (1) provides: "An archipelagic State may draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs of the archipelago
provided that within such baselines are included the main islands and an area in which the
ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9
to 1." (Emphasis supplied) in the Area.
55

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION
VELASCO, JR., J.:
I concur with the ponencia and add the following complementary arguments and observations:
A statute is a product of hard work and earnest studies of Congress to ensure that no constitutional
provision, prescription or concept is infringed. Withal, before a law, in an appropriate proceeding, is
nullified, an unequivocal breach of, or a clear conflict with, the Constitution must be demonstrated in
such a way as to leave no doubt in the mind of the Court. 1 In the same token, if a law runs directly
afoul of the Constitution, the Courts duty on the matter should be clear and simple: Pursuant to its
judicial power and as final arbiter of all legal questions,2 it should strike such law down, however
laudable its purpose/s might be and regardless of the deleterious effect such action may carry in its
wake.
Challenged in these proceedings is the constitutionality of Republic Act (RA 9522) entitled "An Act to
Amend Certain Provisions of [RA] 3046, as Amended by [RA] 5446 to Define the Archipelagic
Baselines Of The Philippines and for Other Purposes." For perspective, RA 3046, "An Act to Define
the Baselines of the Territorial Sea of the Philippines, was enacted in 1961 to comply with the United
Nations Convention on the Law of the Sea (UNCLOS) I. Eight years later, RA 5446 was enacted to
amend typographical errors relating to coordinates in RA 3046. The latter law also added a provision
asserting Philippine sovereignty over Sabah.
As its title suggests, RA 9522 delineates archipelagic baselines of the country, amending in the
process the old baselines law, RA 3046. Everybody is agreed that RA 9522 was enacted in response

to the countrys commitment to conform to some 1982 Law of the Sea Convention (LOSC) or
UNCLOS III provisions to define new archipelagic baselines through legislation, the Philippines
having signed3 and eventually ratified4 this multilateral treaty. The Court can take judicial notice that
RA 9522 was registered and deposited with the UN on April 4, 2009.
As indicated in its Preamble,5 1982 LOSC aims, among other things, to establish, with due regard for
the sovereignty of all States, "a legal order for the seas and oceans which will facilitate international
communication, and will promote the peaceful uses of the seas and oceans." One of the measures
to attain the order adverted to is to have a rule on baselines. Of particular relevance to the
Philippines, as an archipelagic state, is Article 47 of UNCLOS III which deals with baselines:
1. An archipelagic State may draw straight archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago provided that within such
baselines are included the main islands and an area in which the ratio of the area of the
water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baseline shall not exceed 100 nautical miles, except that up to 3 per
cent of the total number of baselines enclosing any archipelago may exceed that length, up
to a maximum length of 125 nautical miles.
3. The drawing of such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago.
xxxx
9. The archipelagic State shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary-General of
the United Nations.6 (Emphasis added.)
To obviate, however, the possibility that certain UNCLOS III baseline provisions would, in their
implementation, undermine its sovereign and/or jurisdictional interests over what it considers its
territory,7 the Philippines, when it signed UNCLOS III on December 10, 1982, made the following
"Declaration" to said treaty:
The Government of the Republic of the Philippines [GRP] hereby manifests that in signing the 1982
United Nations Convention on the Law of the Sea, it does so with the understandings embodied in
this declaration, made under the provisions of Article 310 of the Convention, to wit:
The signing of the Convention by the [GRP] shall not in any manner impair or prejudice the
sovereign rights of the [RP] under and arising from the Constitution of the Philippines;
Such signing shall not in any manner affect the sovereign rights of the [RP] as successor of the
United States of America [USA], under and arising out of the Treaty of Paris between Spain and the
United States of America of December 10, 1898, and the Treaty of Washington between the [USA]
and Great Britain of January 2, 1930;

xxxx
Such signing shall not in any manner impair or prejudice the sovereignty of the [RP] over any
territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters
appurtenant thereto;
The Convention shall not be construed as amending in any manner any pertinent laws and
Presidential Decrees or Proclamations of the Republic of the Philippines. The [GRP] maintains and
reserves the right and authority to make any amendments to such laws, decrees or proclamations
pursuant to the provisions of the Philippine Constitution;
The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair
the sovereignty of the Philippines as an archipelagic state over the sea lanes and do not deprive it of
authority to enact legislation to protect its sovereignty independence and security;
The concept of archipelagic waters is similar to the concept of internal waters under the Constitution
of the Philippines, and removes straits connecting these waters with the economic zone or high sea
from the rights of foreign vessels to transit passage for international navigation. 8 (Emphasis added.)
Petitioners challenge the constitutionality of RA 9522 on the principal ground that the law violates
Section 1, Article I of the 1987 Constitution on national territory which states:
Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas. The waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines. (Emphasis supplied.)
According to Fr. Joaquin Bernas, S.J., himself a member of the 1986 Constitutional Commission
which drafted the 1987 Constitution, the aforequoted Section 1 on national territory was "in
substance a copy of its 1973 counterpart."9 Art. I of the 1973 Constitution reads:
Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories belonging to the Philippines by historic right or legal title,
including the territorial sea, the air space, the subsoil, the insular shelves, and other submarine
areas over which the Philippines has sovereignty or jurisdiction. The waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines. (Emphasis added.)
As may be noted both constitutions speak of the "Philippine archipelago," and, via the last sentence
of their respective provisions, assert the countrys adherence to the "archipelagic principle." Both
constitutions divide the national territory into two main groups: (1) the Philippine archipelago and (2)
other territories belonging to the Philippines. So what or where is Philippine archipelago
contemplated in the 1973 and 1987 Constitutions then? Fr. Bernas answers the poser in the
following wise:

Article I of the 1987 Constitution cannot be fully understood without reference to Article I of the 1973
Constitution. x x x
xxxx
x x x To understand [the meaning of national territory as comprising the Philippine archipelago], one
must look into the evolution of [Art. I of the 1973 Constitution] from its first draft to its final form.
Section 1 of the first draft submitted by the Committee on National Territory almost literally
reproduced Article I of the 1935 Constitution x x x. Unlike the 1935 version, however, the draft
designated the Philippines not simply as the Philippines but as "the Philippine archipelago. 10 In
response to the criticism that the definition was colonial in tone x x x, the second draft further
designated the Philippine archipelago, as the historic home of the Filipino people from its
beginning.11
After debates x x x, the Committee reported out a final draft, which became the initially approved
version: "The national territory consists of the Philippine archipelago which is the ancestral home of
the Filipino people and which is composed of all the islands and waters embraced therein"
What was the intent behind the designation of the Philippines as an "archipelago"? x x x Asked by
Delegate Roselller Lim (Zamboanga) where this archipelago was, Committee Chairman Quintero
answered that it was the area delineated in the Treaty of Paris. He said that objections to the colonial
implication of mentioning the Treaty of Paris was responsible for the omission of the express
mention of the Treaty of Paris.
Report No. 01 of the Committee on National Territory had in fact been explicit in its delineation of the
expanse of this archipelago. It said:
Now if we plot on a map the boundaries of this archipelago as set forth in the Treaty of Paris, a huge
or giant rectangle will emerge, measuring about 600 miles in width and 1,200 miles in length. Inside
this giant rectangle are the 7,100 islands comprising the Philippine Islands. From the east coast of
Luzon to the eastern boundary of this huge rectangle in the Pacific Ocean, there is a distance of
over 300 miles. From the west coast of Luzon to the western boundary of this giant rectangle in the
China sea, there is a distance of over 150 miles.
When the [US] Government enacted the Jones Law, the Hare-Hawes Cutting Law and the Tydings
McDuffie Law, it in reality announced to the whole world that it was turning over to the Government
of the Philippine Islands an archipelago (that is a big body of water studded with islands), the
boundaries of which archipelago are set forth in Article III of the Treaty of Paris. It also announced to
the whole world that the waters inside the giant rectangle belong to the Philippines that they are
not part of the high seas.
When Spain signed the Treaty of Paris, in effect she announced to the whole world that she was
ceding to the [US] the Philippine archipelago x x x, that this archipelago was bounded by lines
specified in the treaty, and that the archipelago consisted of the huge body of water inside the
boundaries and the islands inside said boundaries.

The delineation of the extent of the Philippine archipelago must be understood in the context of the
modifications made both by the Treaty of Washington of November 7, 1900, and of the Convention
of January 12, 1930, in order to include the Islands of Sibutu and of Cagayan de Sulu and the Turtle
and Mangsee Islands. However, x x x the definition of the archipelago did not include the Batanes
group[, being] outside the boundaries of the Philippine archipelago as set forth in the Treaty of Paris.
In literal terms, therefore, the Batanes islands would come not under the Philippine archipelago but
under the phrase "all other territories belong to the Philippines."12 x x x (Emphasis added.)
From the foregoing discussions on the deliberations of the provisions on national territory, the
following conclusion is abundantly evident: the "Philippine archipelago" of the 1987 Constitution is
the same "Philippine archipelago" referred to in Art. I of the 1973 Constitution which in turn
corresponds to the territory defined and described in Art. 1 of the 1935 Constitution, 13 which
pertinently reads:
Section 1. The Philippines comprises all the territory ceded to the [US] by the Treaty of Paris
concluded between the [US] and Spain on the tenth day of December, [1898], the limits of which are
set forth in Article III of said treaty, together with all the islands in the treaty concluded at
Washington, between the [US] and Spain on November [7, 1900] and the treaty concluded between
the [US] and Great Britain x x x.
While the Treaty of Paris is not mentioned in both the 1973 and 1987 Constitutions, its mention, so
the nationalistic arguments went, being "a repulsive reminder of the indignity of our colonial past," 14 it
is at once clear that the Treaty of Paris had been utilized as key reference point in the definition of
the national territory.
On the other hand, the phrase "all other territories over which the Philippines has sovereignty or
jurisdiction," found in the 1987 Constitution, which replaced the deleted phrase "all territories
belonging to the Philippines by historic right or legal title" 15 found in the 1973 Constitution, covers
areas linked to the Philippines with varying degrees of certainty.16 Under this category would fall: (a)
Batanes, which then 1971 Convention Delegate Eduardo Quintero, Chairperson of the Committee
on National Territory, described as belonging to the Philippines in all its history; 17 (b) Sabah, over
which a formal claim had been filed, the so-called Freedomland (a group of islands known as
Spratleys); and (c) any other territory, over which the Philippines had filed a claim or might acquire in
the future through recognized modes of acquiring territory.18 As an author puts it, the deletion of the
words "by historic right or legal title" is not to be interpreted as precluding future claims to areas over
which the Philippines does not actually exercise sovereignty.19
Upon the foregoing perspective and going into specifics, petitioners would have RA 9522 stricken
down as unconstitutional for the reasons that it deprives the Philippines of what has long been
established as part and parcel of its national territory under the Treaty of Paris, as supplemented by
the aforementioned 1900 Treaty of Washington or, to the same effect, revises the definition on or
dismembers the national territory. Pushing their case, petitioners argue that the constitutional
definition of the national territory cannot be remade by a mere statutory act. 20 As another point,
petitioners parlay the theory that the law in question virtually weakens the countrys territorial claim
over the Kalayaan Island Group (KIG) and Sabah, both of which come under the category of "other

territories" over the Philippines has sovereignty or jurisdiction. Petitioners would also assail the law
on grounds related to territorial sea lanes and internal waters transit passage by foreign vessels.
It is remarkable that petitioners could seriously argue that RA 9522 revises the Philippine territory as
defined in the Constitution, or worse, constitutes an abdication of territory.
It cannot be over-emphasized enough that RA 9522 is a baseline law enacted to implement the 1982
LOSC, which in turn seeks to regulate and establish an orderly sea use rights over maritime zones.
Or as the ponencia aptly states, RA 9522 aims to mark-out specific base points along the Philippine
coast from which baselines are drawn to serve as starting points to measure the breadth of the
territorial sea and maritime zones.21 The baselines are set to define the sea limits of a state, be it
coastal or archipelagic, under the UNCLOS III regime. By setting the baselines to conform to the
prescriptions of UNCLOS III, RA 9522 did not surrender any territory, as petitioners would insist at
every turn, for UNCLOS III is concerned with setting order in the exercise of sea-use rights, not the
acquisition or cession of territory. And let it be noted that under UNCLOS III, it is recognized that
countries can have territories outside their baselines. Far from having a dismembering effect, then,
RA 9522 has in a limited but real sense increased the countrys maritime boundaries. How this
situation comes about was extensively explained by then Minister of State and head of the Philippine
delegation to UNCLOS III Arturo Tolentino in his sponsorship speech 22 on the concurrence of the
Batasang Pambansa with the LOSC:
xxxx
Then, we should consider, Mr. Speaker, that under the archipelagic principle, the whole area inside
the archipelagic base lines become a unified whole and the waters between the islands which
formerly were regarded by international law as open or international seas now become waters under
the complete sovereignty of the Filipino people. In this light there would be an additional area of
141,800 square nautical miles inside the base lines that will be recognized by international law as
Philippine waters, equivalent to 45,351,050 hectares. These gains in the waters of the sea,
45,211,225 hectares outside the base lines and 141,531,000 hectares inside the base lines, total
93,742,275 hectares as a total gain in the waters under Philippine jurisdiction.
From a pragmatic standpoint, therefore, the advantage to our country and people not only in terms of
the legal unification of land and waters of the archipelago in the light of international law, but also in
terms of the vast resources that will come under the dominion and jurisdiction of the Republic of the
Philippines, your Committee on Foreign Affairs does not hesitate to ask this august Body to concur in
the Convention by approving the resolution before us today.
May I say it was the unanimous view of delegations at the Conference on the Law of the Sea that
archipelagos are among the biggest gainers or beneficiaries under the Convention on the Law of the
Sea.
Lest it be overlooked, the constitutional provision on national territory, as couched, is broad enough
to encompass RA 9522s definition of the archipelagic baselines. To reiterate, the laying down of
baselines is not a mode of acquiring or asserting ownership a territory over which a state exercises
sovereignty. They are drawn for the purpose of defining or establishing the maritime areas over

which a state can exercise sovereign rights. Baselines are used for fixing starting point from which
the territorial belt is measured seawards or from which the adjacent maritime waters are measured.
Thus, the territorial sea, a marginal belt of maritime waters, is measured from the baselines
extending twelve (12) nautical miles outward.23 Similarly, Art. 57 of the 1982 LOSC provides that the
Exclusive Economic Zone (EEZ) "shall not extend beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured."24 Most important to note is that the baselines
indicated under RA 9522 are derived from Art. 47 of the 1982 LOSC which was earlier quoted.
Since the 1987 Constitutions definition of national territory does not delimit where the Philippines
baselines are located, it is up to the political branches of the government to supply the deficiency.
Through Congress, the Philippines has taken an official position regarding its baselines to the
international community through RA 3046,25 as amended by RA 544626 and RA 9522. When the
Philippines deposited a copy of RA 9522 with the UN Secretary General, we effectively complied in
good faith with our obligation under the 1982 LOSC. A declaration by the Court of the
constitutionality of the law will complete the bona fides of the Philippines vis-a-vis the law of the sea
treaty.
It may be that baseline provisions of UNCLOS III, if strictly implemented, may have an imposing
impact on the signatory states jurisdiction and even their sovereignty. But this actuality, without
more, can hardly provide a justifying dimension to nullify the complying RA 9522. As held by the
Court in Bayan Muna v. Romulo,27 treaties and international agreements have a limiting effect on the
otherwise encompassing and absolute nature of sovereignty. By their voluntary acts, states may
decide to surrender or waive some aspects of their sovereignty. The usual underlying consideration
in this partial surrender may be the greater benefits derived from a pact or reciprocal undertaking.
On the premise that the Philippines has adopted the generally accepted principles of international
law as part of the law of the land, a portion of sovereignty may be waived without violating the
Constitution.
As a signatory of the 1982 LOSC, it behooves the Philippines to honor its obligations thereunder.
Pacta sunt servanda, a basic international law postulate that "every treaty in force is binding upon
the parties to it and must be performed by them in good faith."28 The exacting imperative of this
principle is such that a state may not invoke provisions in its constitution or its laws as an excuse for
failure to perform this duty."29
The allegation that Sabah has been surrendered by virtue of RA 9522, which supposedly repealed
the hereunder provision of RA 5446, is likewise unfounded.
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as
provided in this Act is without prejudice to the delineation of the baselines of the territorial sea
around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines
has acquired dominion and sovereignty.
There is nothing in RA 9522 indicating a clear intention to supersede Sec. 2 of RA 5446. Petitioners
obviously have read too much into RA 9522s amendment on the baselines found in an older law.
Aside from setting the countrys baselines, RA 9522 is, in its Sec. 3, quite explicit in its reiteration of
the Philippines exercise of sovereignty, thus:

Section 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and
jurisdiction over all portions of the national territory as defined in the Constitution and by provisions
of applicable laws including, without limitation, Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, as amended.
To emphasize, baselines are used to measure the breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf. Having KIG and the Scarborough Shoal
outside Philippine baselines will not diminish our sovereignty over these areas. Art. 46 of UNCLOS
III in fact recognizes that an archipelagic state, such as the Philippines, is a state "constituted wholly
by one or more archipelagos and may include other islands." (emphasis supplied) The "other
islands" referred to in Art. 46 are doubtless islands not forming part of the archipelago but are
nevertheless part of the states territory.
The Philippines sovereignty over KIG and Scarborough Shoal are, thus, in no way diminished.
Consider: Other countries such as Malaysia and the United States have territories that are located
outside its baselines, yet there is no territorial question arising from this arrangement. 30
It may well be apropos to point out that the Senate version of the baseline bill that would become RA
9522 contained the following explanatory note: The law "reiterates our sovereignty over the
Kalayaan Group of Islands declared as part of the Philippine territory under Presidential Decree No.
1596. As part of the Philippine territory, they shall be considered as a regime of islands under Article
121 of the Convention."31 Thus, instead of being in the nature of a "treasonous surrender" that
petitioners have described it to be, RA 9522 even harmonizes our baseline laws with our
international agreements, without limiting our territory to those confined within the countrys
baselines.
Contrary to petitioners contention, the classification of KIG and the Scarborough Shoal as falling
under the Philippines regime of islands is not constitutionally objectionable. Such a classification
serves as compliance with LOSC and the Philippines assertion of sovereignty over KIG and
Scarborough Shoal. In setting the baseline in KIG and Scarborough Shoal, RA 9522 states that
these are areas "over which the Philippines likewise exercises sovereignty and jurisdiction." It is,
thus, not correct for petitioners to claim that the Philippines has lost 15,000 square nautical miles of
territorial waters upon making this classification. Having 15,000 square nautical miles of Philippine
waters outside of our baselines, to reiterate, does not translate to a surrender of these waters. The
Philippines maintains its assertion of ownership over territories outside of its baselines. Even China
views RA 9522 as an assertion of ownership, as seen in its Protest32 filed with the UN SecretaryGeneral upon the deposit of RA 9522.
We take judicial notice of the effective occupation of KIG by the Philippines. Petitioners even point
out that national and local elections are regularly held there. The classification of KIG as under a
"regime of islands" does not in any manner affect the Philippines consistent position with regard to
sovereignty over KIG. It does not affect the Philippines other acts of ownership such as occupation
or amend Presidential Decree No. 1596, which declared KIG as a municipality of Palawan.

The fact that the baselines of KIG and Scarborough Shoal have yet to be defined would not detract
to the constitutionality of the law in question. The resolution of the problem lies with the political
departments of the government.
All told, the concerns raised by the petitioners about the diminution or the virtual dismemberment of
the Philippine territory by the enactment of RA 9522 are, to me, not well grounded. To repeat,
UNCLOS III pertains to a law on the seas, not territory. As part of its Preamble, 33 LOSC recognizes
"the desirability of establishing through this Convention, with due regard for the sovereignty of all
States, a legal order for the seas and oceans x x x."
This brings me to the matter of transit passage of foreign vessels through Philippine waters.
Apropos thereto, petitioners allege that RA 9522 violates the nuclear weapons-free policy under Sec.
8, in relation to Sec. 16, Art. II of the Constitution, and exposes the Philippines to marine pollution
hazards, since under the LOSC the Philippines supposedly must give to ships of all states the right
of innocent passage and the right of archipelagic sea-lane passage.
The adverted Sec. 8, Art. II of the 1987 Constitution declares the adoption and pursuit by the
Philippines of "a policy of freedom from nuclear weapons in its territory." On the other hand, the
succeeding Sec. l6 underscores the States firm commitment "to protect and advance the right of the
people to a balanced and healthful ecology in accord with the rhythm and harmony of nature."
Following the allegations of petitioners, these twin provisions will supposedly be violated inasmuch
as RA 9522 accedes to the right of innocent passage and the right of archipelagic sea-lane passage
provided under the LOSC. Therefore, ships of all nationsbe they nuclear-carrying warships or
neutral commercial vessels transporting goodscan assert the right to traverse the waters within
our islands.
A cursory reading of RA 9522 would belie petitioners posture. In context, RA 9522 simply seeks to
conform to our international agreement on the setting of baselines and provides nothing about the
designation of archipelagic sea-lane passage or the regulation of innocent passage within our
waters. Again, petitioners have read into the amendatory RA 9522 something not intended.
Indeed, the 1982 LOSC enumerates the rights and obligations of archipelagic party-states in terms
of transit under Arts. 51 to 53, which are explained below:
To safeguard, in explicit terms, the general balance struck by [Articles 51 and 52] between the need
for passage through the area (other than straits used for international navigation) and the
archipelagic states need for security, Article 53 gave the archipelagic state the right to regulate
where and how ships and aircraft pass through its territory by designating specific sea lanes. Rights
of passage through these archipelagic sea lanes are regarded as those of transit passage:
(1) An archipelagic State may designate sea lanes and air routes thereabove, suitable for
safe, continuous and expeditious passage of foreign ships and aircraft through or over its
archipelagic waters and the adjacent territorial sea.

(2) All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes
and air routes.
(3) Archipelagic sea lanes passage is the exercise in accordance with the present
Convention of the rights of navigation and overflight in the normal mode solely for the
purpose of continuous, expeditious and unobstructed transit between one part of the high
seas or an exclusive economic zone and another part of the high seas or an exclusive
economic zone.34
But owing to the geographic structure and physical features of the country, i.e., where it is
"essentially a body of water studded with islands, rather than islands with water around them," 35 the
Philippines has consistently maintained the conceptual unity of land and water as a necessary
element for territorial integrity,36 national security (which may be compromised by the presence of
warships and surveillance ships on waters between the islands),37 and the preservation of its
maritime resources. As succinctly explained by Minister Arturo Tolentino, the essence of the
archipelagic concept is "the dominion and sovereignty of the archipelagic State within its baselines,
which were so drawn as to preserve the territorial integrity of the archipelago by the inseparable
unity of the land and water domain."38 Indonesia, like the Philippines, in terms of geographic reality,
has expressed agreement with this interpretation of the archipelagic concept. So it was that in 1957,
the Indonesian Government issued the Djuanda Declaration, therein stating :
[H]istorically, the Indonesian archipelago has been an entity since time immemorial. In view of the
territorial entirety and of preserving the wealth of the Indonesian state, it is deemed necessary to
consider all waters between the islands and entire entity.
1avvphi1

x x x On the ground of the above considerations, the Government states that all waters
around, between and connecting, the islands or parts of islands belonging to the Indonesian
archipelago irrespective of their width or dimension are natural appurtenances of its land
territory and therefore an integral part of the inland or national waters subject to the absolute
sovereignty of Indonesia.39 (Emphasis supplied.)
Hence, the Philippines maintains the sui generis character of our archipelagic waters as
equivalent to the internal waters of continental coastal states. In other words, the landward
waters embraced within the baselines determined by RA 9522, i.e., all waters around,
between, and connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines. 40 Accordingly, such waters are
not covered by the jurisdiction of the LOSC and cannot be subjected to the rights granted to
foreign states in archipelagic waters, e.g., the right of innocent passage, 41 which is allowed
only in the territorial seas, or that area of the ocean comprising 12 miles from the baselines
of our archipelago; archipelagic sea-lane passage;42 over flight;43 and traditional fishing
rights.44
Our position that all waters within our baselines are internal waters, which are outside the
jurisdiction of the 1982 LOSC,45 was abundantly made clear by the Philippine Declaration at
the time of the signing of the LOSC on December 10, 1982. To reiterate, paragraphs 5, 6 and
7 of the Declaration state:

5. The Convention shall not be construed as amending in any manner any pertinent laws and
Presidential decrees of Proclamation of the republic of the Philippines; the Government x x x
maintains and reserves the right and authority to make any amendments to such laws,
decrees or proclamations pursuant to the provisions of the Philippine Constitution;
6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify
or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and
do not deprive it of authority to enact legislation to protect its sovereignty, independence and
security;
7. The concept of archipelagic waters is similar to the concept of internal waters under the
Constitution of the Philippines and removes straits connecting this water with the economic
zone or high seas from the rights of foreign vessels to transit passage for international
navigation. (Emphasis supplied.)46
More importantly, by the ratification of the 1987 Constitution on February 2, 1987, the integrity of the
Philippine state as comprising both water and land was strengthened by the proviso in its first article,
viz: "The waters around, between, and connecting the islands of the [Philippine] archipelago,
regardless of their breadth and dimensions, form part of the internal waters of the Philippines.
(emphasis supplied)
In effect, contrary to petitioners allegations, the Philippines ratification of the 1982 LOSC did not
matter-of-factly open our internal waters to passage by foreign ships, either in the concept of
innocent passage or archipelagic sea-lane passage, in exchange for the international communitys
recognition of the Philippines as an archipelagic state. The Filipino people, by ratifying the 1987
Constitution, veritably rejected the quid pro quo petitioners take as being subsumed in that treaty.
Harmonized with the Declaration and the Constitution, the designation of baselines made in RA 9522
likewise designates our internal waters, through which passage by foreign ships is not a right, but
may be granted by the Philippines to foreign states but only as a dissolvable privilege.
In view of the foregoing, I vote to DISMISS the Petition.
PRESBITERO J. VELASCO, JR.
Associate Justice

C201 Macalintal v. Commission on Elections, GR 157013, 10 July 2003, En Banc,

Austria-Martinez [J]

G.R. No. 157013

July 10, 2003

ATTY. ROMULO B. MACALINTAL, petitioner,

vs.
COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as Executive
Secretary, and HON. EMILIA T. BONCODIN, Secretary of the Department of Budget and
Management, respondents.
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of
the Philippine Bar, seeking a declaration that certain provisions of Republic Act No. 9189 (The
Overseas Absentee Voting Act of 2003)1 suffer from constitutional infirmity. Claiming that he has
actual and material legal interest in the subject matter of this case in seeing to it that public funds are
properly and lawfully used and appropriated, petitioner filed the instant petition as a taxpayer and as
a lawyer.
The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee Voting by Qualified
Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes,"
appropriates funds under Section 29 thereof which provides that a supplemental budget on the
General Appropriations Act of the year of its enactment into law shall provide for the necessary
amount to carry out its provisions. Taxpayers, such as herein petitioner, have the right to restrain
officials from wasting public funds through the enforcement of an unconstitutional statute. 2 The Court
has held that they may assail the validity of a law appropriating public funds 3 because expenditure of
public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes
a misapplication of such funds.4
The challenged provision of law involves a public right that affects a great number of citizens. The
Court has adopted the policy of taking jurisdiction over cases whenever the petitioner has seriously
and convincingly presented an issue of transcendental significance to the Filipino people. This has
been explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs.
Tan,5 where the Court held:
Objections to taxpayers suit for lack of sufficient personality standing, or interest are,
however, in the main procedural matters. Considering the importance to the public of the
cases at bar, and in keeping with the Courts duty, under the 1987 Constitution, to determine
whether or not the other branches of government have kept themselves within the limits of
the Constitution and the laws and that they have not abused the discretion given to them, the
Court has brushed aside technicalities of procedure and has taken cognizance of these
petitions.6

Indeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage
of a considerable number of Filipinos is involved.
The question of propriety of the instant petition which may appear to be visited by the vice of
prematurity as there are no ongoing proceedings in any tribunal, board or before a government
official exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the Rules of
Court, dims in light of the importance of the constitutional issues raised by the petitioner. In Taada
vs. Angara,7 the Court held:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to settle the dispute. "The question thus posed is
judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of
the Constitution is upheld." Once a "controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in the instant case), it becomes a legal
issue which the Court is bound by constitutional mandate to decide."
In another case of paramount impact to the Filipino people, it has been expressed that it is illogical to
await the adverse consequences of the law in order to consider the controversy actual and ripe for
judicial resolution.8 In yet another case, the Court said that:
. . . despite the inhibitions pressing upon the Court when confronted with constitutional
issues, it will not hesitate to declare a law or act invalid when it is convinced that this must be
done. In arriving at this conclusion, its only criterion will be the Constitution and God as its
conscience gives it in the light to probe its meaning and discover its purpose. Personal
motives and political considerations are irrelevancies that cannot influence its decisions.
Blandishment is as ineffectual as intimidation, for all the awesome power of the Congress
and Executive, the Court will not hesitate "to make the hammer fall heavily," where the acts
of these departments, or of any official, betray the peoples will as expressed in the
Constitution . . .9
The need to consider the constitutional issues raised before the Court is further buttressed by the
fact that it is now more than fifteen years since the ratification of the 1987 Constitution requiring
Congress to provide a system for absentee voting by qualified Filipinos abroad. Thus, strong
reasons of public policy demand that the Court resolves the instant petition 10 and determine whether
Congress has acted within the limits of the Constitution or if it had gravely abused the discretion
entrusted to it.11
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are
immigrants or permanent residents in other countries by their mere act of executing an
affidavit expressing their intention to return to the Philippines, violate the residency
requirement in Section 1 of Article V of the Constitution?

B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning
candidates for national offices and party list representatives including the President and the
Vice-President violate the constitutional mandate under Section 4, Article VII of the
Constitution that the winning candidates for President and the Vice-President shall be
proclaimed as winners by Congress?
C. May Congress, through the Joint Congressional Oversight Committee created in Section
25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and approve the
Implementing Rules and Regulations that the Commission on Elections shall promulgate
without violating the independence of the COMELEC under Section 1, Article IX-A of the
Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution
of the Republic of the Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. The following shall be disqualified from voting under this Act:
.........
d) An immigrant or a permanent resident who is recognized as such in the host country,
unless he/she executes, upon registration, an affidavit prepared for the purpose by the
Commission declaring that he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her registration under this Act.
Such affidavit shall also state that he/she has not applied for citizenship in another country.
Failure to return shall be cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the
1987 Constitution which requires that the voter must be a resident in the Philippines for at least one
year and in the place where he proposes to vote for at least six months immediately preceding an
election. Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals12 to support his claim. In
that case, the Court held that a "green card" holder immigrant to the United States is deemed to
have abandoned his domicile and residence in the Philippines.
Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional
registration or a promise by a voter to perform a condition to be qualified to vote in a political
exercise;13 that the legislature should not be allowed to circumvent the requirement of the
Constitution on the right of suffrage by providing a condition thereon which in effect amends or alters
the aforesaid residence requirement to qualify a Filipino abroad to vote. 14 He claims that the right of
suffrage should not be granted to anyone who, on the date of the election, does not possess the
qualifications provided for by Section 1, Article V of the Constitution.

Respondent COMELEC refrained from commenting on this issue. 15

In compliance with the Resolution of the Court, the Solicitor General filed his comment for all public
respondents. He contraposes that the constitutional challenge to Section 5(d) must fail because of
the absence of clear and unmistakable showing that said provision of law is repugnant to the
Constitution. He stresses: All laws are presumed to be constitutional; by the doctrine of separation of
powers, a department of government owes a becoming respect for the acts of the other two
departments; all laws are presumed to have adhered to constitutional limitations; the legislature
intended to enact a valid, sensible, and just law.
In addition, the Solicitor General points out that Section 1, Article V of the Constitution is a verbatim
reproduction of those provided for in the 1935 and the 1973 Constitutions. Thus, he cites Co vs.
Electoral Tribunal of the House of Representatives16 wherein the Court held that the term "residence"
has been understood to be synonymous with "domicile" under both Constitutions. He further argues
that a person can have only one "domicile" but he can have two residences, one permanent (the
domicile) and the other temporary;17 and that the definition and meaning given to the term residence
likewise applies to absentee voters. Invoking Romualdez-Marcos vs. COMELEC18 which reiterates
the Courts ruling in Faypon vs. Quirino,19 the Solicitor General maintains that Filipinos who are
immigrants or permanent residents abroad may have in fact never abandoned their Philippine
domicile.20
Taking issue with the petitioners contention that "green card" holders are considered to have
abandoned their Philippine domicile, the Solicitor General suggests that the Court may have to
discard its ruling in Caasi vs. Court of Appeals21 in so far as it relates to immigrants and permanent
residents in foreign countries who have executed and submitted their affidavits conformably with
Section 5(d) of R.A. No. 9189. He maintains that through the execution of the requisite affidavits, the
Congress of the Philippines with the concurrence of the President of the Republic had in fact given
these immigrants and permanent residents the opportunity, pursuant to Section 2, Article V of the
Constitution, to manifest that they had in fact never abandoned their Philippine domicile; that
indubitably, they would have formally and categorically expressed the requisite intentions, i.e.,
"animus manendi" and "animus revertendi;" that Filipino immigrants and permanent residents abroad
possess the unquestionable right to exercise the right of suffrage under Section 1, Article V of the
Constitution upon approval of their registration, conformably with R.A. No. 9189. 22
The seed of the present controversy is the interpretation that is given to the phrase, "qualified
citizens of the Philippines abroad" as it appears in R.A. No. 9189, to wit:
SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest and
orderly overseas absentee voting that upholds the secrecy and sanctity of the ballot. Towards this
end, the State ensures equal opportunity to all qualified citizens of the Philippines abroad in the
exercise of this fundamental right.
SEC. 3. Definition of Terms. For purposes of this Act:
a) "Absentee Voting" refers to the process by which qualified citizens of the
Philippines abroad, exercise their right to vote;

. . . (Emphasis supplied)
f) "Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified
to register and vote under this Act, not otherwise disqualified by law, who is abroad
on the day of elections. (Emphasis supplied)
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise
disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for
president, vice-president, senators and party-list representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided in the
Philippines for at least one year and in the place wherein they propose to vote for at least six
months immediately preceding the election. No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage.
SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the
ballot as well as a system for absentee voting by qualified Filipinos abroad.
. . . . . . . . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by (1) all
citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen years of age, (4)
who are residents in the Philippines for at least one year and in the place where they propose to vote
for at least six months immediately preceding the election. Under Section 5(d) of R.A. No. 9189, one
of those disqualified from voting is an immigrant or permanent resident who is recognized as such in
the host country unless he/she executes an affidavit declaring that he/she shall resume actual
physical permanent residence in the Philippines not later than three years from approval of his/her
registration under said Act.
Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos
abroad who are immigrants or permanent residents, to vote. He focuses solely on Section 1, Article
V of the Constitution in ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally
ignoring the provisions of Section 2 empowering Congress to provide a system for absentee voting
by qualified Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it
contravenes Section 1, Article V of the Constitution. Filipino immigrants and permanent residents
overseas are perceived as having left and abandoned the Philippines to live permanently in their
host countries and therefore, a provision in the law enfranchising those who do not possess the
residency requirement of the Constitution by the mere act of executing an affidavit expressing their
intent to return to the Philippines within a given period, risks a declaration of unconstitutionality.
However, the risk is more apparent than real.

The Constitution is the fundamental and paramount law of the nation to which all other laws must
conform and in accordance with which all private rights must be determined and all public authority
administered.23 Laws that do not conform to the Constitution shall be stricken down for being
unconstitutional.
Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the Court
said:
. . . An act of the legislature, approved by the executive, is presumed to be within
constitutional limitations. The responsibility of upholding the Constitution rests not on the
courts alone but on the legislature as well. The question of the validity of every statute is first
determined by the legislative department of the government itself.24
Thus, presumption of constitutionality of a law must be overcome convincingly:
. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be
clear and unequivocal, for even if a law is aimed at the attainment of some public good, no
infringement of constitutional rights is allowed. To strike down a law there must be a clear
showing that what the fundamental law condemns or prohibits, the statute allows it to be
done.25
As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court
to take a holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a
basic rule in constitutional construction that the Constitution should be construed as a whole. In
Chiongbian vs. De Leon,26 the Court held that a constitutional provision should function to the full
extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of
that great document. Constitutional provisions are mandatory in character unless, either by express
statement or by necessary implication, a different intention is manifest. 27 The intent of the
Constitution may be drawn primarily from the language of the document itself. Should it be
ambiguous, the Court may consider the intent of its framers through their debates in the
constitutional convention.28
R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V
of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It
must be stressed that Section 2 does not provide for the parameters of the exercise of legislative
authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have
duly exercised its function as defined in Article VI (The Legislative Department) of the Constitution.
To put matters in their right perspective, it is necessary to dwell first on the significance of absentee
voting. The concept of absentee voting is relatively new. It is viewed thus:
The method of absentee voting has been said to be completely separable and distinct from
the regular system of voting, and to be a new and different manner of voting from that
previously known, and an exception to the customary and usual manner of voting. The right
of absentee and disabled voters to cast their ballots at an election is purely statutory;
absentee voting was unknown to, and not recognized at, the common law.

Absentee voting is an outgrowth of modern social and economic conditions devised to

accommodate those engaged in military or civil life whose duties make it impracticable for
them to attend their polling places on the day of election, and the privilege of absentee
voting may flow from constitutional provisions or be conferred by statutes, existing in
some jurisdictions, which provide in varying terms for the casting and reception of ballots by
soldiers and sailors or other qualified voters absent on election day from the district or
precinct of their residence.
Such statutes are regarded as conferring a privilege and not a right, or an absolute right.
When the legislature chooses to grant the right by statute, it must operate with
equality among all the class to which it is granted; but statutes of this nature may be
limited in their application to particular types of elections. The statutes should be
construed in the light of any constitutional provisions affecting registration and
elections, and with due regard to their texts prior to amendment and to predecessor statutes
and the decisions thereunder; they should also be construed in the light of the
circumstances under which they were enacted; and so as to carry out the objects thereof,
if this can be done without doing violence to their provisions and mandates. Further, in
passing on statutes regulating absentee voting, the court should look to the whole
and every part of the election laws, the intent of the entire plan, and reasons and spirit
of their adoption, and try to give effect to every portion thereof.29 (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a
resident and an absentee.30 However, under our election laws and the countless pronouncements of
the Court pertaining to elections, an absentee remains attached to his residence in the Philippines
as residence is considered synonymous with domicile.
In Romualdez-Marcos,31 the Court enunciated:
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of
civil obligations, the domicile of natural persons is their place of habitual residence." In Ong
vs. Republic, this court took the concept of domicile to mean an individuals "permanent
home," "a place to which, whenever absent for business or for pleasure, one intends to
return, and depends on facts and circumstances in the sense that they disclose intent."
Based on the foregoing, domicile includes the twin elements of "the fact of residing or
physical presence in a fixed place" and animus manendi, or the intention of returning there
permanently.
Residence, in its ordinary conception, implies the factual relationship of an individual to a
certain place. It is the physical presence of a person in a given area, community or country.
The essential distinction between residence and domicile in law is that residence involves
the intent to leave when the purpose for which the resident has taken up his abode ends.
One may seek a place for purposes such as pleasure, business, or health. If a persons
intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is
established it is residence. It is thus, quite perfectly normal for an individual to have different
residences in various places. However, a person can only have a single domicile, unless, for

various reasons, he successfully abandons his domicile in favor of another domicile of

choice. In Uytengsu vs. Republic, we laid this distinction quite clearly:
"There is a difference between domicile and residence. Residence is used to
indicate a place of abode, whether permanent or temporary; domicile denotes a
fixed permanent residence to which, when absent, one has the intention of returning.
A man may have a residence in one place and a domicile in another. Residence is
not domicile, but domicile is residence coupled with the intention to remain for an
unlimited time. A man can have but one domicile for the same purpose at any time,
but he may have numerous places of residence. His place of residence is generally
his place of domicile, but it is not by any means necessarily so since no length of
residence without intention of remaining will constitute domicile."
For political purposes the concepts of residence and domicile are dictated by the peculiar
criteria of political laws. As these concepts have evolved in our election law, what has
clearly and unequivocally emerged is the fact that residence for election purposes is
used synonymously with domicile.32 (Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the
framers of the Constitution considered the circumstances that impelled them to require Congress to
establish a system for overseas absentee voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here
has a residential restriction, is not denied to citizens temporarily residing or working abroad.
Based on the statistics of several government agencies, there ought to be about two million
such Filipinos at this time. Commissioner Bernas had earlier pointed out that these
provisions are really lifted from the two previous Constitutions of 1935 and 1973, with the
exception of the last paragraph. They could not therefore have foreseen at that time the
phenomenon now described as the Filipino labor force explosion overseas.
According to government data, there are now about 600,000 contract workers and
employees, and although the major portions of these expatriate communities of workers are
to be found in the Middle East, they are scattered in 177 countries in the world.
In a previous hearing of the Committee on Constitutional Commissions and Agencies, the
Chairman of the Commission on Elections, Ramon Felipe, said that there was no
insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those
who have adhered to their Filipino citizenship notwithstanding strong temptations are
exposed to embrace a more convenient foreign citizenship. And those who on their own or
under pressure of economic necessity here, find that they have to detach themselves from
their families to work in other countries with definite tenures of employment. Many of them
are on contract employment for one, two, or three years. They have no intention of changing
their residence on a permanent basis, but are technically disqualified from exercising the
right of suffrage in their countries of destination by the residential requirement in Section 1
which says:

Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified
by law, who are eighteen years of age or over, and who shall have resided in the
Philippines for at least one year and in the place wherein they propose to vote for at
least six months preceding the election.
I, therefore, ask the Committee whether at the proper time they might entertain an
amendment that will make this exercise of the right to vote abroad for Filipino citizens an
effective, rather than merely a nominal right under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I
would like to make a comment on the meaning of "residence" in the Constitution because I
think it is a concept that has been discussed in various decisions of the Supreme Court,
particularly in the case of Faypon vs. Quirino, a 1954 case which dealt precisely with the
meaning of "residence" in the Election Law. Allow me to quote:
A citizen may leave the place of his birth to look for greener pastures, as the saying
goes, to improve his lot and that, of course, includes study in other places, practice of
his avocation, reengaging in business. When an election is to be held, the citizen
who left his birthplace to improve his lot may decide to return to his native town, to
cast his ballot, but for professional or business reasons, or for any other reason, he
may not absent himself from the place of his professional or business activities.
So, they are here registered as voters as he has the qualifications to be one, and is
not willing to give up or lose the opportunity to choose the officials who are to run the
government especially in national elections. Despite such registration, the animus
revertendi to his home, to his domicile or residence of origin has not forsaken him.
This may be the explanation why the registration of a voter in a place other than his residence of
origin has not been deemed sufficient to consider abandonment or loss of such residence of origin.
In other words, "residence" in this provision refers to two residence qualifications:
"residence" in the Philippines and "residence" in the place where he will vote. As far as
residence in the Philippines is concerned, the word "residence" means domicile, but as far as
residence in the place where he will actually cast his ballot is concerned, the meaning seems
to be different. He could have a domicile somewhere else and yet he is a resident of a place
for six months and he is allowed to vote there. So that there may be serious constitutional
obstacles to absentee voting, unless the vote of the person who is absent is a vote
which will be considered as cast in the place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of
suffrage, at least a substantial segment of these overseas Filipino communities. The
Committee, of course, is aware that when this Article of the Constitution explicitly and
unequivocally extends the right of effective suffrage to Filipinos abroad, this will call for a
logistical exercise of global proportions. In effect, this will require budgetary and

administrative commitments on the part of the Philippine government, mainly through the
COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive elaboration of
this mechanism that will be put in place to make effective the right to vote. Therefore,
seeking shelter in some wise jurisprudence of the past may not be sufficient to meet
the demands of the right of suffrage for Filipinos abroad that I have mentioned. But I
want to thank the Committee for saying that an amendment to this effect may be entertained
at the proper time. . . . . . . . . . 33 (Emphasis supplied)
Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside
abroad principally for economic reasons and hence they contribute in no small measure to the
economic uplift of this country, their voices are marginal insofar as the choice of this countrys
leaders is concerned.
The Constitutional Commission realized that under the laws then existing and considering the
novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right
to vote would spawn constitutional problems especially because the Constitution itself provides for
the residency requirement of voters:
MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term
"absentee voting" also includes transient voting; meaning, those who are, let us say, studying
in Manila need not go back to their places of registration, for instance, in Mindanao, to cast
their votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.
MR. REGALADO. How about those people who cannot go back to the places where they are
registered?
MR. MONSOD. Under the present Election Code, there are provisions for allowing students
and military people who are temporarily in another place to register and vote. I believe that
those situations can be covered by the Omnibus Election Code. The reason we want
absentee voting to be in the Constitution as a mandate to the legislature is that there
could be inconsistency on the residence rule if it is just a question of legislation by
Congress. So, by allowing it and saying that this is possible, then legislation can take
care of the rest.34 (Emphasis supplied)
Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the
inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that
could impede the implementation of its pursuit to enfranchise the largest number of qualified
Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated
Congress to provide a system for overseas absentee voting.
The discussion of the Constitutional Commission on the effect of the residency requirement
prescribed by Section 1, Article V of the Constitution on the proposed system of absentee voting for
qualified Filipinos abroad is enlightening:

MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for
the exercise of the right of suffrage like having resided in the Philippines for at least one year
and in the place where they propose to vote for at least six months preceding the elections.
What is the effect of these mandatory requirements on the matter of the exercise of the right
of suffrage by the absentee voters like Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?
MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the
domicile requirements as well as the qualifications and disqualifications would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS. But I think it should be further clarified with regard to the residence
requirement or the place where they vote in practice; the understanding is that it is flexible.
For instance, one might be a resident of Naga or domiciled therein, but he satisfies the
requirement of residence in Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the Committee to change the word
"Filipinos" to QUALIFIED FILIPINO VOTERS. Instead of "VOTING BY FILIPINOS ABROAD,"
it should be QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS
LIVING ABROAD, would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase "QUALIFIED FILIPINOS
ABROAD" because "QUALIFIED" would assume that he has the qualifications and none of
the disqualifications to vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.

MR. REGALADO. When Commissioner Bengzon asked me to read my proposed

amendment, I specifically stated that the National Assembly shall prescribe a system which
will enable qualified citizens, temporarily absent from the Philippines, to vote. According to
Commissioner Monsod, the use of the phrase "absentee voting" already took that into
account as its meaning. That is referring to qualified Filipino citizens temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration
we will leave it up to the legislative assembly, for example, to require where the
registration is. If it is, say, members of the diplomatic corps who may be continuously
abroad for a long time, perhaps, there can be a system of registration in the
embassies. However, we do not like to preempt the legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to provide a
system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for
these absentee voters.
MR. MONSOD. That is right. They must have the qualifications and none of the
disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President.35 (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the
responsibility of devising a system of absentee voting. The qualifications of voters as stated in
Section 1 shall remain except for the residency requirement. This is in fact the reason why the
Constitutional Commission opted for the term qualified Filipinos abroad with respect to the system of
absentee voting that Congress should draw up. As stressed by Commissioner Monsod, by the use of
the adjective qualified with respect to Filipinos abroad, the assumption is that they have the
"qualifications and none of the disqualifications to vote." In fine-tuning the provision on absentee
voting, the Constitutional Commission discussed how the system should work:
MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case
of qualified Filipino citizens residing abroad and exercising their right of suffrage, they can
cast their votes for the candidates in the place where they were registered to vote in the
Philippines. So as to avoid any complications, for example, if they are registered in Angeles
City, they could not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in Angeles City, then he can vote only for
the local and national candidates in Angeles City. I just want to make that clear for the
record.

MR. REGALADO. Madam President.

THE PRESIDENT. What does Commissioner Regalado say?
MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that
this envisions Filipinos residing abroad. The understanding in the amendment is that the
Filipino is temporarily abroad. He may not be actually residing abroad; he may just be there
on a business trip. It just so happens that the day before the elections he has to fly to the
United States, so he could not cast his vote. He is temporarily abroad, but not residing there.
He stays in a hotel for two days and comes back. This is not limited only to Filipinos
temporarily residing abroad. But as long as he is temporarily abroad on the date of
the elections, then he can fall within the prescription of Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this
clarification on record.
MR. MONSOD. Madam President, to clarify what we mean by "temporarily abroad," it
need not be on very short trips. One can be abroad on a treaty traders visa. Therefore,
when we talk about registration, it is possible that his residence is in Angeles and he would
be able to vote for the candidates in Angeles, but Congress or the Assembly may provide
the procedure for registration, like listing ones name, in a registry list in the embassy
abroad. That is still possible under the system.
FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with
this.
Suppose we have a situation of a child of a diplomatic officer who reaches the voting age
while living abroad and he has never registered here. Where will he register? Will he be a
registered voter of a certain locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the
registration requirements in an embassy in the United States and his name is then entered in
the official registration book in Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered
voter of a locality here.
MR. MONSOD. That is right. He does not have to come home to the Philippines to comply
with the registration procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more
clarifications needed from the body.

Also, the Floor Leader is happy to announce that there are no more registered
Commissioners to propose amendments. So I move that we close the period of
amendments.36 (Emphasis supplied)
It is clear from these discussions of the members of the Constitutional Commission that they
intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned
their domicile of origin. The Commission even intended to extend to young Filipinos who reach
voting age abroad whose parents domicile of origin is in the Philippines, and consider them qualified
as voters for the first time.
It is in pursuance of that intention that the Commission provided for Section 2 immediately after the
residency requirement of Section 1. By the doctrine of necessary implication in statutory
construction, which may be applied in construing constitutional provisions, 37 the strategic location of
Section 2 indicates that the Constitutional Commission provided for an exception to the actual
residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission
has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote
even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency requirement found in
Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which
became R.A. No. 9189, was deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional
provisions. I think the sponsor and I would agree that the Constitution is supreme in any
statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled, "Suffrage." It says:
Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have
resided in the Philippines for at least one year and in the place wherein they propose
to vote for at least six months immediately preceding the election.
Now, Mr. President, the Constitution says, "who shall have resided in the Philippines." They
are permanent immigrants. They have changed residence so they are barred under the
Constitution. This is why I asked whether this committee amendment which in fact does not
alter the original text of the bill will have any effect on this?
Senator Angara. Good question, Mr. President. And this has been asked in various fora.
This is in compliance with the Constitution. One, the interpretation here of "residence" is
synonymous with "domicile."
As the gentleman and I know, Mr. President, "domicile" is the intent to return to ones home.
And the fact that a Filipino may have been physically absent from the Philippines and
may be physically a resident of the United States, for example, but has a clear intent

to return to the Philippines, will make him qualified as a resident of the Philippines
under this law.
This is consistent, Mr. President, with the constitutional mandate that we that Congress
must provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as demanding physical
presence, then there is no way we can provide for offshore voting to our offshore
kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads:
"The Congress shall provide a system for securing the secrecy and sanctity of the ballot as
well as a system for absentee voting by qualified Filipinos abroad."
The key to this whole exercise, Mr. President, is "qualified." In other words, anything
that we may do or say in granting our compatriots abroad must be anchored on the
proposition that they are qualified. Absent the qualification, they cannot vote. And
"residents" (sic) is a qualification.
I will lose votes here from permanent residents so-called "green-card holders", but the
Constitution is the Constitution. We cannot compromise on this. The Senate cannot be a
party to something that would affect or impair the Constitution.
Look at what the Constitution says "In the place wherein they propose to vote for at least
six months immediately preceding the election."
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated
only by a creek. But one who votes in Makati cannot vote in Pateros unless he resides in
Pateros for six months. That is how restrictive our Constitution is. I am not talking even about
the Election Code. I am talking about the Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he
must do so, make the transfer six months before the election, otherwise, he is not qualified to
vote.
That is why I am raising this point because I think we have a fundamental difference here.
Senator Angara. It is a good point to raise, Mr. President. But it is a point already welldebated even in the constitutional commission of 1986. And the reason Section 2 of
Article V was placed immediately after the six-month/one-year residency requirement
is to demonstrate unmistakably that Section 2 which authorizes absentee voting is an
exception to the six-month/one-year residency requirement. That is the first principle,
Mr. President, that one must remember.

The second reason, Mr. President, is that under our jurisprudence and I think this is so
well-entrenched that one need not argue about it "residency" has been interpreted as
synonymous with "domicile."
But the third more practical reason, Mr. President, is, if we follow the interpretation of
the gentleman, then it is legally and constitutionally impossible to give a franchise to
vote to overseas Filipinos who do not physically live in the country, which is quite
ridiculous because that is exactly the whole point of this exercise to enfranchise
them and empower them to vote.38 (Emphasis supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process, to
wit:
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified
by law, at least eighteen (18) years of age on the day of elections, may vote for president,
vice-president, senators and party-list representatives.
which does not require physical residency in the Philippines; and Section 5 of the assailed law which
enumerates those who are disqualified, to wit:
SEC. 5. Disqualifications. The following shall be disqualified from voting under this Act:
a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
b) Those who have expressly renounced their Philippine citizenship and who have pledged
allegiance to a foreign country;
c) Those who have committed and are convicted in a final judgment by a court or tribunal of
an offense punishable by imprisonment of not less than one (1) year, including those who
have committed and been found guilty of Disloyalty as defined under Article 137 of the
Revised Penal Code, such disability not having been removed by plenary pardon or
amnesty: Provided, however, That any person disqualified to vote under this subsection shall
automatically acquire the right to vote upon expiration of five (5) years after service of
sentence; Provided, further, That the Commission may take cognizance of final judgments
issued by foreign courts or tribunals only on the basis of reciprocity and subject to the
formalities and processes prescribed by the Rules of Court on execution of judgments;
d) An immigrant or a permanent resident who is recognized as such in the host country,
unless he/she executes, upon registration, an affidavit prepared for the purpose by the
Commission declaring that he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her registration under this Act.
Such affidavit shall also state that he/she has not applied for citizenship in another country.
Failure to return shall be cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.

e) Any citizen of the Philippines abroad previously declared insane or incompetent by

competent authority in the Philippines or abroad, as verified by the Philippine embassies,
consulates or foreign service establishments concerned, unless such competent authority
subsequently certifies that such person is no longer insane or incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or
permanent resident who is "recognized as such in the host country" because immigration or
permanent residence in another country implies renunciation of ones residence in his country of
origin. However, same Section allows an immigrant and permanent resident abroad to register as
voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile
in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that "all citizens of
the Philippines not otherwise disqualified by law" must be entitled to exercise the right of suffrage
and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical
residence in the Philippines is required, there is no sense for the framers of the Constitution to
mandate Congress to establish a system for absentee voting.
Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or
enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the
immigrant or permanent resident to go back and resume residency in the Philippines, but more
significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of
origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the
Constitution that proscribes "provisional registration or a promise by a voter to perform a condition to
be qualified to vote in a political exercise."
To repeat, the affidavit is required of immigrants and permanent residents abroad because by their
status in their host countries, they are presumed to have relinquished their intent to return to this
country; thus, without the affidavit, the presumption of abandonment of Philippine domicile shall
remain.
Further perusal of the transcripts of the Senate proceedings discloses another reason why the
Senate required the execution of said affidavit. It wanted the affiant to exercise the option to return or
to express his intention to return to his domicile of origin and not to preempt that choice by
legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: "For Filipino immigrants and those who have acquired permanent resident
status abroad," a requirement for the registration is the submission of "a Sworn Declaration
of Intent to Return duly sworn before any Philippine embassy or consulate official authorized
to administer oath"
Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn
Declaration to include only those who have the intention of returning to be qualified to
exercise the right of suffrage? What if the Filipino immigrant has no purpose of returning? Is
he automatically disbarred from exercising this right to suffrage?

Senator Angara. The rationale for this, Mr. President, is that we want to be expansive
and all-inclusive in this law. That as long as he is a Filipino, no matter whether he is a
green-card holder in the U.S. or not, he will be authorized to vote. But if he is already a
green-card holder, that means he has acquired permanent residency in the United
States, then he must indicate an intention to return. This is what makes for the
definition of "domicile." And to acquire the vote, we thought that we would require the
immigrants and the green-card holders . . . Mr. President, the three administration senators
are leaving, maybe we may ask for a vote [Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the business at hand. The rationale for the
requirement that an immigrant or a green-card holder should file an affidavit that he will go
back to the Philippines is that, if he is already an immigrant or a green-card holder, that
means he may not return to the country any more and that contradicts the definition of
"domicile" under the law.
But what we are trying to do here, Mr. President, is really provide the choice to the
voter. The voter, after consulting his lawyer or after deliberation within the family, may decide
"No, I think we are risking our permanent status in the United States if we file an affidavit that
we want to go back." But we want to give him the opportunity to make that decision. We
do not want to make that decision for him. 39 (Emphasis supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified
to run for any elective office finds no application to the present case because the Caasi case did not,
for obvious reasons, consider the absentee voting rights of Filipinos who are immigrants and
permanent residents in their host countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be
considered as a "qualified citizen of the Philippines abroad" upon fulfillment of the requirements of
registration under the new law for the purpose of exercising their right of suffrage.
It must be emphasized that Section 5(d) does not only require an affidavit or a promise to "resume
actual physical permanent residence in the Philippines not later than three years from approval of
his/her registration," the Filipinos abroad must also declare that they have not applied for citizenship
in another country. Thus, they must return to the Philippines; otherwise, their failure to return "shall
be cause for the removal" of their names "from the National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia."
Thus, Congress crafted a process of registration by which a Filipino voter permanently residing
abroad who is at least eighteen years old, not otherwise disqualified by law, who has not
relinquished Philippine citizenship and who has not actually abandoned his/her intentions to return to
his/her domicile of origin, the Philippines, is allowed to register and vote in the Philippine embassy,
consulate or other foreign service establishments of the place which has jurisdiction over the country
where he/she has indicated his/her address for purposes of the elections, while providing for
safeguards to a clean election.

Thus, Section 11 of R.A. No. 9189 provides:

SEC. 11. Procedure for Application to Vote in Absentia.
11.1. Every qualified citizen of the Philippines abroad whose application for registration has
been approved, including those previously registered under Republic Act No. 8189, shall, in
every national election, file with the officer of the embassy, consulate or other foreign service
establishment authorized by the Commission, a sworn written application to vote in a form
prescribed by the Commission. The authorized officer of such embassy, consulate or other
foreign service establishment shall transmit to the Commission the said application to vote
within five (5) days from receipt thereof. The application form shall be accomplished in
triplicate and submitted together with the photocopy of his/her overseas absentee voter
certificate of registration.
11.2. Every application to vote in absentia may be done personally at, or by mail to, the
embassy, consulate or foreign service establishment, which has jurisdiction over the country
where he/she has indicated his/her address for purposes of the elections.
11.3. Consular and diplomatic services rendered in connection with the overseas absentee
voting processes shall be made available at no cost to the overseas absentee voter.
Contrary to petitioners claim that Section 5(d) circumvents the Constitution, Congress enacted the
law prescribing a system of overseas absentee voting in compliance with the constitutional mandate.
Such mandate expressly requires that Congress provide a system of absentee voting that
necessarily presupposes that the "qualified citizen of the Philippines abroad" is not physically
present in the country. The provisions of Sections 5(d) and 11 are components of the system of
overseas absentee voting established by R.A. No. 9189. The qualified Filipino abroad who executed
the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have
lost his domicile by his physical absence from this country. His having become an immigrant or
permanent resident of his host country does not necessarily imply an abandonment of his intention
to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the
opportunity to express that he has not actually abandoned his domicile in the Philippines by
executing the affidavit required by Sections 5(d) and 8(c) of the law.
Petitioners speculative apprehension that the implementation of Section 5(d) would affect the
credibility of the elections is insignificant as what is important is to ensure that all those who possess
the qualifications to vote on the date of the election are given the opportunity and permitted to freely
do so. The COMELEC and the Department of Foreign Affairs have enough resources and talents to
ensure the integrity and credibility of any election conducted pursuant to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his undertaking to return to the
Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d) would suffice to
serve as deterrence to non-compliance with his/her undertaking under the affidavit.
Petitioner argues that should a sizable number of "immigrants" renege on their promise to return, the
result of the elections would be affected and could even be a ground to contest the proclamation of

the winning candidates and cause further confusion and doubt on the integrity of the results of the
election. Indeed, the probability that after an immigrant has exercised the right to vote, he shall opt to
remain in his host country beyond the third year from the execution of the affidavit, is not farfetched.
However, it is not for this Court to determine the wisdom of a legislative exercise. As expressed in
Taada vs. Tuvera,40 the Court is not called upon to rule on the wisdom of the law or to repeal it or
modify it if we find it impractical.
Congress itself was conscious of said probability and in fact, it has addressed the expected problem.
Section 5(d) itself provides for a deterrence which is that the Filipino who fails to return as promised
stands to lose his right of suffrage. Under Section 9, should a registered overseas absentee voter fail
to vote for two consecutive national elections, his name may be ordered removed from the National
Registry of Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what happens to the votes cast by the
qualified voters abroad who were not able to return within three years as promised? What is the
effect on the votes cast by the non-returnees in favor of the winning candidates? The votes cast by
qualified Filipinos abroad who failed to return within three years shall not be invalidated because
they were qualified to vote on the date of the elections, but their failure to return shall be cause for
the removal of the names of the immigrants or permanent residents from the National Registry of
Absentee Voters and their permanent disqualification to vote in absentia.
In fine, considering the underlying intent of the Constitution, the Court does not find Section 5(d) of
R.A. No. 9189 as constitutionally defective.
B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in contravention of
Section 4, Article VII of the Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president, vicepresident, senators and party-list representatives.
Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing.
.........
18. 5 The canvass of votes shall not cause the delay of the proclamation of a winning
candidate if the outcome of the election will not be affected by the results thereof.
Notwithstanding the foregoing, the Commission is empowered to order the proclamation
of winning candidates despite the fact that the scheduled election has not taken place in a
particular country or countries, if the holding of elections therein has been rendered
impossible by events, factors and circumstances peculiar to such country or countries, in
which events, factors and circumstances are beyond the control or influence of the
Commission. (Emphasis supplied)

Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to
order the proclamation of winning candidates insofar as it affects the canvass of votes and
proclamation of winning candidates for president and vice-president, is unconstitutional because it
violates the following provisions of paragraph 4, Section 4 of Article VII of the Constitution:
SEC. 4 . . .
The returns of every election for President and Vice-President, duly certified by the board of
canvassers of each province or city, shall be transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the certificates of canvass, the President of the
Senate shall, not later than thirty days after the day of the election, open all the certificates in
the presence of the Senate and the House of Representatives in joint public session, and the
Congress, upon determination of the authenticity and due execution thereof in the manner
provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed elected, but in case two
or more shall have an equal and highest number of votes, one of them shall forthwith be
chosen by the vote of a majority of all the Members of both Houses of the Congress, voting
separately.
The Congress shall promulgate its rules for the canvassing of the certificates.
...
which gives to Congress the duty to canvass the votes and proclaim the winning candidates for
president and vice-president.
The Solicitor General asserts that this provision must be harmonized with paragraph 4, Section 4,
Article VII of the Constitution and should be taken to mean that COMELEC can only proclaim the
winning Senators and party-list representatives but not the President and Vice-President. 41
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too
sweeping that it necessarily includes the proclamation of the winning candidates for the presidency
and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Constitution
only insofar as said Section totally disregarded the authority given to Congress by the Constitution to
proclaim the winning candidates for the positions of president and vice-president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special
Board of Canvassers shall transmit via facsimile, electronic mail, or any other means of

transmission equally safe and reliable the Certificates of Canvass and the Statements of
Votes to the Commission, . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the returns of
every election for President and Vice-President shall be certified by the board of canvassers to
Congress.
Congress could not have allowed the COMELEC to usurp a power that constitutionally belongs to it
or, as aptly stated by petitioner, to encroach "on the power of Congress to canvass the votes for
president and vice-president and the power to proclaim the winners for the said positions." The
provisions of the Constitution as the fundamental law of the land should be read as part of The
Overseas Absentee Voting Act of 2003 and hence, the canvassing of the votes and the proclamation
of the winning candidates for president and vice-president for the entire nation must remain in the
hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the
Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common Provisions)
of the Constitution, to wit:
Section 1. The Constitutional Commissions, which shall be independent, are the Civil
Service Commission, the Commission on Elections, and the Commission on Audit.
(Emphasis supplied)
He submits that the creation of the Joint Congressional Oversight Committee with the power to
review, revise, amend and approve the Implementing Rules and Regulations promulgated by the
COMELEC, R.A. No. 9189 intrudes into the independence of the COMELEC which, as a
constitutional body, is not under the control of either the executive or legislative departments of
government; that only the COMELEC itself can promulgate rules and regulations which may be
changed or revised only by the majority of its members; and that should the rules promulgated by
the COMELEC violate any law, it is the Court that has the power to review the same via the petition
of any interested party, including the legislators.
It is only on this question that respondent COMELEC submitted its Comment. It agrees with the
petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the petitioner,
respondent COMELEC anchors its claim of unconstitutionality of said Sections upon Section 1,
Article IX-A of the Constitution providing for the independence of the constitutional commissions
such as the COMELEC. It asserts that its power to formulate rules and regulations has been upheld
in Gallardo vs. Tabamo, Jr.42 where this Court held that the power of the COMELEC to formulate
rules and regulations is implicit in its power to implement regulations under Section 2(1) of Article IXC43 of the Constitution. COMELEC joins the petitioner in asserting that as an independent
constitutional body, it may not be subject to interference by any government instrumentality and that
only this Court may review COMELEC rules and only in cases of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis--vis its rule-making power, to wit:

SEC. 17. Voting by Mail.

17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more
than three (3) countries, subject to the approval of the Congressional Oversight
Committee. Voting by mail may be allowed in countries that satisfy the following conditions:
a) Where the mailing system is fairly well-developed and secure to prevent occasion for
fraud;
b) Where there exists a technically established identification system that would preclude
multiple or proxy voting; and
c) Where the system of reception and custody of mailed ballots in the embassies, consulates
and other foreign service establishments concerned are adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only upon review and
approval of the Joint Congressional Oversight Committee . . . . . . . . . (Emphasis
supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence of
constitutional commissions.
The Solicitor General takes exception to his prefatory statement that the constitutional challenge
must fail and agrees with the petitioner that Sections 19 and 25 are invalid and unconstitutional on
the ground that there is nothing in Article VI of the Constitution on Legislative Department that would
as much as imply that Congress has concurrent power to enforce and administer election laws with
the COMELEC; and by the principles of exclusio unius est exclusio alterius and expressum facit
cessare tacitum, the constitutionally enumerated powers of Congress circumscribe its authority to
the exclusion of all others.
The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are
unconstitutional. Thus, there is no actual issue forged on this question raised by petitioner.
However, the Court finds it expedient to expound on the role of Congress through the Joint
Congressional Oversight Committee (JCOC) vis--vis the independence of the COMELEC, as a
constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional Oversight
Committee is hereby created, composed of the Chairman of the Senate Committee on
Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators
designated by the Senate President, and the Chairman of the House Committee on Suffrage
and Electoral Reforms, and seven (7) other Members of the House of Representatives
designated by the Speaker of the House of Representatives: Provided, That, of the seven (7)

members to be designated by each House of Congress, four (4) should come from the
majority and the remaining three (3) from the minority.
The Joint Congressional Oversight Committee shall have the power to monitor and
evaluate the implementation of this Act. It shall review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the Commission. (Emphasis
supplied)
SEC. 19. Authority of the Commission to Promulgate Rules. The Commission shall issue
the necessary rules and regulations to effectively implement the provisions of this Act within
sixty (60) days from the effectivity of this Act. The Implementing Rules and Regulations
shall be submitted to the Joint Congressional Oversight Committee created by virtue
of this Act for prior approval.
. . . . . . . . . (Emphasis supplied)
Composed of Senators and Members of the House of Representatives, the Joint Congressional
Oversight Committee (JCOC) is a purely legislative body. There is no question that the authority of
Congress to "monitor and evaluate the implementation" of R.A. No. 9189 is geared towards possible
amendments or revision of the law itself and thus, may be performed in aid of its legislation.
However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the JCOC the
following functions: (a) to "review, revise, amend and approve the Implementing Rules and
Regulations" (IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to the
approval of the JCOC [Section 17.1], the voting by mail in not more than three countries for the May
2004 elections and in any country determined by COMELEC.
The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC shall be "independent."
Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an independent
COMELEC, the Court has held that "[w]hatever may be the nature of the functions of the
Commission on Elections, the fact is that the framers of the Constitution wanted it to be independent
from the other departments of the Government."44 In an earlier case, the Court elucidated:
The Commission on Elections is a constitutional body. It is intended to play a distinct and
important part in our scheme of government. In the discharge of its functions, it should not be
hampered with restrictions that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this court also. It should be allowed
considerable latitude in devising means and methods that will insure the accomplishment of
the great objective for which it was created free, orderly and honest elections. We may not
agree fully with its choice of means, but unless these are clearly illegal or constitute gross
abuse of discretion, this court should not interfere. Politics is a practical matter, and political
questions must be dealt with realistically not from the standpoint of pure theory. The
Commission on Elections, because of its fact-finding facilities, its contacts with political

strategists, and its knowledge derived from actual experience in dealing with political
controversies, is in a peculiarly advantageous position to decide complex political
questions.45 (Emphasis supplied)
The Court has no general powers of supervision over COMELEC which is an independent body
"except those specifically granted by the Constitution," that is, to review its decisions, orders and
rulings.46 In the same vein, it is not correct to hold that because of its recognized extensive legislative
power to enact election laws, Congress may intrude into the independence of the COMELEC by
exercising supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue the
necessary rules and regulations to effectively implement the provisions of this Act within sixty days
from the effectivity of this Act." This provision of law follows the usual procedure in drafting rules and
regulations to implement a law the legislature grants an administrative agency the authority to craft
the rules and regulations implementing the law it has enacted, in recognition of the administrative
expertise of that agency in its particular field of operation.47 Once a law is enacted and approved, the
legislative function is deemed accomplished and complete. The legislative function may spring back
to Congress relative to the same law only if that body deems it proper to review, amend and revise
the law, but certainly not to approve, review, revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas
Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional authority.
Congress trampled upon the constitutional mandate of independence of the COMELEC. Under such
a situation, the Court is left with no option but to withdraw from its usual reticence in declaring a
provision of law unconstitutional.
The second sentence of the first paragraph of Section 19 stating that "[t]he Implementing Rules and
Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of
this Act for prior approval," and the second sentence of the second paragraph of Section 25 stating
that "[i]t shall review, revise, amend and approve the Implementing Rules and Regulations
promulgated by the Commission," whereby Congress, in both provisions, arrogates unto itself a
function not specifically vested by the Constitution, should be stricken out of the subject statute for
constitutional infirmity. Both provisions brazenly violate the mandate on the independence of the
COMELEC.
Similarly, the phrase, "subject to the approval of the Congressional Oversight Committee" in the first
sentence of Section 17.1 which empowers the Commission to authorize voting by mail in not more
than three countries for the May, 2004 elections; and the phrase, "only upon review and approval of
the Joint Congressional Oversight Committee" found in the second paragraph of the same section
are unconstitutional as they require review and approval of voting by mail in any country after the
2004 elections. Congress may not confer upon itself the authority to approve or disapprove the
countries wherein voting by mail shall be allowed, as determined by the COMELEC pursuant to the
conditions provided for in Section 17.1 of R.A. No. 9189. 48 Otherwise, Congress would overstep the
bounds of its constitutional mandate and intrude into the independence of the COMELEC.

During the deliberations, all the members of the Court agreed to adopt the separate opinion of
Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of Sections 17.1, 19 and
25 of R.A. No. 9189 insofar as they relate to the creation of and the powers given to the Joint
Congressional Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189 are
declared VOID for being UNCONSTITUTIONAL:
a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: "subject to
the approval of the Joint Congressional Oversight Committee;"
b) The portion of the last paragraph of Section 17.1, to wit: "only upon review and
approval of the Joint Congressional Oversight Committee;"
c) The second sentence of the first paragraph of Section 19, to wit: "The Implementing
Rules and Regulations shall be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior approval;" and
d) The second sentence in the second paragraph of Section 25, to wit: "It shall review,
revise, amend and approve the Implementing Rules and Regulations promulgated by
the Commission" of the same law;
for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence of
constitutional commission, such as COMELEC.
The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the authority
given to the COMELEC to proclaim the winning candidates for the Senators and party-list
representatives but not as to the power to canvass the votes and proclaim the winning candidates
for President and Vice-President which is lodged with Congress under Section 4, Article VII of the
Constitution.
The constitutionality of Section 5(d) is UPHELD.
Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in full
force and effect.
SO ORDERED.

C300 Tecson v. Commission on Elections, GR 161434, 3 March 2004, En Banc, Vitug [J]

G.R. No. 161434

March 3, 2004

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners,

vs.
The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE,
JR.) and VICTORINO X. FORNIER, respondents.
x-----------------------------x
G.R. No. 161634

March 3, 2004

ZOILO ANTONIO VELEZ, petitioner,

vs.
RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent.
x-----------------------------x
G. R. No. 161824

March 3, 2004

VICTORINO X. FORNIER, petitioner,

vs.
HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN AS
FERNANDO POE JR., respondents.
DECISION
VITUG, J.:
Citizenship is a treasured right conferred on those whom the state believes are deserving of
the privilege. It is a "precious heritage, as well as an inestimable acquisition," 1 that cannot be
taken lightly by anyone - either by those who enjoy it or by those who dispute it.
Before the Court are three consolidated cases, all of which raise a single question of profound
importance to the nation. The issue of citizenship is brought up to challenge the qualifications of a
presidential candidate to hold the highest office of the land. Our people are waiting for the judgment
of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the
main contenders for the presidency, a natural-born Filipino or is he not?
The moment of introspection takes us face to face with Spanish and American colonial roots and
reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a hybrid
of laws and jurisprudence that could be no less than distinctly Filipino.

Antecedent Case Settings

On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr.
(hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic of
the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming
national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born
citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of
birth to be 20 August 1939 and his place of birth to be Manila.
Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus
Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.,
Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before the
Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his
certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate
of candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his
parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe,
was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner
asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino
citizenship to FPJ, the latter being an illegitimate child of an alien mother. Petitioner based the
allegation of the illegitimate birth of respondent on two assertions - first, Allan F. Poe contracted a
prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if
no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of
respondent.
In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support
of his claim, presented several documentary exhibits - 1) a copy of the certificate of birth of FPJ, 2) a
certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her
having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe, after
discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit
aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a certification issued by
the Director of the Records Management and Archives Office, attesting to the fact that there was no
record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the
Philippines before 1907, and 6) a certification from the Officer-In-Charge of the Archives Division of
the National Archives to the effect that no available information could be found in the files of the
National Archives regarding the birth of Allan F. Poe.
On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant
ones being - a) a certification issued by Estrella M. Domingo of the Archives Division of the National
Archives that there appeared to be no available information regarding the birth of Allan F. Poe in the
registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the
Archives Division of the National Archives that no available information about the marriage of Allan F.
Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original
Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name
of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the
name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the purported
marriage contract between Fernando Pou and Bessie Kelley, and h) a certification issued by the City

Civil Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said office
during the period of from 1900 until May 1946 were totally destroyed during World War II.
On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later,
or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 06
February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the decision of
the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised
Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a temporary
restraining order, a writ of preliminary injunction or any other resolution that would stay the finality
and/or execution of the COMELEC resolutions.
The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434,
entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections,
Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.), and Victorino X. Fornier," and the other,
docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a.
Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that, under
Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original
and exclusive jurisdiction to resolve the basic issue on the case.
Jurisdiction of the Court
In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course
to or cancel FPJs certificate of candidacy for alleged misrepresentation of a material fact (i.e., that
FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked Section 78 of the
Omnibus Election Code
"Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false"
in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus
Election Code "Section 52. Powers and functions of the Commission on Elections. In addition to the powers
and functions conferred upon it by the Constitution, the Commission shall have exclusive
charge of the enforcement and administration of all laws relative to the conduct of elections
for the purpose of ensuring free, orderly and honest elections" and in relation to Article 69 of the Omnibus Election Code which would authorize "any
interested party" to file a verified petition to deny or cancel the certificate of candidacy of any
nuisance candidate.

Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per
Rule 642 in an action for certiorari under Rule 653 of the Revised Rules of Civil Procedure. Section 7,
Article IX, of the 1987 Constitution also reads
"Each Commission shall decide by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its submission for decision or resolution. A
case or matter is deemed submitted for decision or resolution upon the filing of the last
pleading, brief, or memorandum, required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the Supreme Court on certiorari by
the aggrieved party within thirty days from receipt of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in
one Supreme Court and in such lower courts as may be established by law which power "includes
the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government."
It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and
could well be taken cognizance of by, this Court. A contrary view could be a gross denial to our
people of their fundamental right to be fully informed, and to make a proper choice, on who could or
should be elected to occupy the highest government post in the land.
In G. R. No. 161434 and G. R. No. 161634
Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the provisions
of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the
COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead
take on the petitions they directly instituted before it. The Constitutional provision cited reads:
"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate
its rules for the purpose."
The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973
Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential
contests, has constrained this Court to declare, in Lopez vs. Roxas, 4 as "not (being) justiciable"
controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact
Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try,
Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-PresidentElect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793
designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of
the tribunal. Although the subsequent adoption of the parliamentary form of government under the
1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up,

nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.
Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election
contests consist of either an election protest or a quo warranto which, although two distinct
remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A
perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential
Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this
premise "Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President of the Philippines.
"Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or
a petition for quo warranto against the President or Vice-President. An election protest shall
not include a petition for quo warranto. A petition for quo warranto shall not include an
election protest.
"Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President
of the Philippines who received the second or third highest number of votes may contest the
election of the President or the Vice-President, as the case may be, by filing a verified
petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the
proclamation of the winner."
The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election,
returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of
"candidates" for President or Vice-President. A quo warranto proceeding is generally defined as
being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public
office.5 In such context, the election contest can only contemplate a post-election scenario. In Rule
14, only a registered candidate who would have received either the second or third highest number
of votes could file an election protest. This rule again presupposes a post-election scenario.
It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of
the 1987 Constitution, would not include cases directly brought before it, questioning the
qualifications of a candidate for the presidency or vice-presidency before the elections are held.
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on
Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe
a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction.
The Citizenship Issue
Now, to the basic issue; it should be helpful to first give a brief historical background on the concept
of citizenship.

Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384
to 322 B.C., described the "citizen" to refer to a man who shared in the administration of justice and
in the holding of an office.6 Aristotle saw its significance if only to determine the constituency of the
"State," which he described as being composed of such persons who would be adequate in number
to achieve a self-sufficient existence.7 The concept grew to include one who would both govern and
be governed, for which qualifications like autonomy, judgment and loyalty could be expected.
Citizenship was seen to deal with rights and entitlements, on the one hand, and with concomitant
obligations, on the other.8 In its ideal setting, a citizen was active in public life and fundamentally
willing to submit his private interests to the general interest of society.
The concept of citizenship had undergone changes over the centuries. In the 18th century, the
concept was limited, by and large, to civil citizenship, which established the rights necessary for
individual freedom, such as rights to property, personal liberty and justice. 9 Its meaning expanded
during the 19th century to include political citizenship, which encompassed the right to participate in
the exercise of political power.10 The 20th century saw the next stage of the development of social
citizenship, which laid emphasis on the right of the citizen to economic well-being and social
security.11 The idea of citizenship has gained expression in the modern welfare state as it so
developed in Western Europe. An ongoing and final stage of development, in keeping with the
rapidly shrinking global village, might well be the internationalization of citizenship. 12
The Local Setting - from Spanish Times to the Present
There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or
"Spanish subjects."13 In church records, the natives were called 'indios', denoting a low regard for the
inhabitants of the archipelago. Spanish laws on citizenship became highly codified during the 19th
century but their sheer number made it difficult to point to one comprehensive law. Not all of these
citizenship laws of Spain however, were made to apply to the Philippine Islands except for those
explicitly extended by Royal Decrees.14
Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain
on 16 July 1805 but as to whether the law was extended to the Philippines remained to be the
subject of differing views among experts;15 however, three royal decrees were undisputably made
applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August 1841, 16 the Royal
Decree of 23 August 1868 specifically defining the political status of children born in the Philippine
Islands,17 and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was expressly made
applicable to the Philippines by the Royal Decree of 13 July 1870. 18
The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the
express mandate of its Article 89, according to which the provisions of the Ultramar among which
this country was included, would be governed by special laws.19
It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which
came out with the first categorical enumeration of who were Spanish citizens. "(a) Persons born in Spanish territory,

"(b) Children of a Spanish father or mother, even if they were born outside of Spain,
"(c) Foreigners who have obtained naturalization papers,
"(d) Those who, without such papers, may have become domiciled inhabitants of any town of
the Monarchy."20
The year 1898 was another turning point in Philippine history. Already in the state of decline as a
superpower, Spain was forced to so cede her sole colony in the East to an upcoming world power,
the United States. An accepted principle of international law dictated that a change in sovereignty,
while resulting in an abrogation of all political laws then in force, would have no effect on civil laws,
which would remain virtually intact.
The Treaty of Paris was entered into on 10 December 1898 between Spain and the United States. 21
Under Article IX of the treaty, the civil rights and political status of the native inhabitants of the
territories ceded to the United States would be determined by its Congress "Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the
present treaty relinquishes or cedes her sovereignty may remain in such territory or may
remove therefrom, retaining in either event all their rights of property, including the right to
sell or dispose of such property or of its proceeds; and they shall also have the right to carry
on their industry, commerce, and professions, being subject in respect thereof to such laws
as are applicable to foreigners. In case they remain in the territory they may preserve their
allegiance to the Crown of Spain by making, before a court of record, within a year from the
date of the exchange of ratifications of this treaty, a declaration of their decision to preserve
such allegiance; in default of which declaration they shall be held to have renounced it and to
have adopted the nationality of the territory in which they reside.
Thus
"The civil rights and political status of the native inhabitants of the territories hereby ceded to
the United States shall be determined by the Congress."22
Upon the ratification of the treaty, and pending legislation by the United States Congress on the
subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did
not become American citizens, they, however, also ceased to be "aliens" under American laws and
were thus issued passports describing them to be citizens of the Philippines entitled to the protection
of the United States.
The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902,
also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation
of the Congress of the United States on the Philippines ".... that all inhabitants of the Philippine Islands continuing to reside therein, who were
Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their
children born subsequent thereto, shall be deemed and held to be citizens of the Philippine

Islands and as such entitled to the protection of the United States, except such as shall have
elected to preserve their allegiance to the Crown of Spain in accordance with the provisions
of the treaty of peace between the United States and Spain, signed at Paris, December tenth
eighteen hundred and ninety eight."23
Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the
Philippines, and a Spanish subject on the 11th day of April 1899. The term "inhabitant" was taken to
include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and 3) an
inhabitant who obtained Spanish papers on or before 11 April 1899. 24
Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July
1902, during which period no citizenship law was extant in the Philippines. Weight was given to the
view, articulated in jurisprudential writing at the time, that the common law principle of jus soli,
otherwise also known as the principle of territoriality, operative in the United States and England,
governed those born in the Philippine Archipelago within that period. 25 More about this later.
In 23 March 1912, the Congress of the United States made the following amendment to the
Philippine Bill of 1902 "Provided, That the Philippine Legislature is hereby authorized to provide by law for the
acquisition of Philippine citizenship by those natives of the Philippine Islands who do not
come within the foregoing provisions, the natives of other insular possession of the United
States, and such other persons residing in the Philippine Islands who would become citizens
of the United States, under the laws of the United States, if residing therein." 26
With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first
time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in
the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos."
In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions
of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 "That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day
of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their
children born subsequently thereto, shall be deemed and held to be citizens of the Philippine
Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain
in accordance with the provisions of the treaty of peace between the United States and
Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such
others as have since become citizens of some other country; Provided, That the Philippine
Legislature, herein provided for, is hereby authorized to provide for the acquisition of
Philippine citizenship by those natives of the Philippine Islands who do not come within the
foregoing provisions, the natives of the insular possessions of the United States, and such
other persons residing in the Philippine Islands who are citizens of the United States, or who
could become citizens of the United States under the laws of the United States, if residing
therein."

Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the
Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the
Philippines on said date, and, 3) since that date, not a citizen of some other country.
While there was, at one brief time, divergent views on whether or not jus soli was a mode of
acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by
adopting, once and for all, jus sanguinis or blood relationship as being the basis of Filipino
citizenship "Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines "(1) Those who are citizens of the Philippine Islands at the time of the adoption of this
Constitution
"(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this
Constitution, had been elected to public office in the Philippine Islands.
"(3) Those whose fathers are citizens of the Philippines.
"(4) Those whose mothers are citizens of the Philippines and upon reaching the age of
majority, elect Philippine citizenship.
"(5) Those who are naturalized in accordance with law."
Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at
the time, which provided that women would automatically lose their Filipino citizenship and acquire
that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the
women from transmitting their Filipino citizenship to their legitimate children and required illegitimate
children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority.
Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino
women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new
Constitution on citizenship to reflect such concerns "Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines:
"(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.
"(2) Those whose fathers or mothers are citizens of the Philippines.
"(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of
nineteen hundred and thirty-five.
"(4) Those who are naturalized in accordance with law."
For good measure, Section 2 of the same article also further provided that

"A female citizen of the Philippines who marries an alien retains her Philippine citizenship,
unless by her act or omission she is deemed, under the law to have renounced her
citizenship."
The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for
subsection (3) thereof that aimed to correct the irregular situation generated by the questionable
proviso in the 1935 Constitution.
Section I, Article IV, 1987 Constitution now provides:
"The following are citizens of the Philippines:
"(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.
"(2) Those whose fathers or mothers are citizens of the Philippines.
"(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
"(4) Those who are naturalized in accordance with law."
The Case Of FPJ
Section 2, Article VII, of the 1987 Constitution expresses:
"No person may be elected President unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least forty years of age on the day of the election,
and a resident of the Philippines for at least ten years immediately preceding such election."
The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their Philippine citizenship." 27
The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the
1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus soli,
res judicata and jus sanguinis28 had been in vogue. Only two, i.e., jus soli and jus sanguinis, could
qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of
Customs29 (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of
Roa in Tan Chong vs. Secretary of Labor30 (1947), jus sanguinis or blood relationship would now
become the primary basis of citizenship by birth.
Documentary evidence adduced by petitioner would tend to indicate that the earliest established
direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the
father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in evidence,
his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan,
and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father

of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Espaol father, Lorenzo Pou,
and a mestiza Espaol mother, Marta Reyes. Introduced by petitioner was an "uncertified" copy of a
supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936. The
marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be on 16
September 1940. In the same certificate, Allan F. Poe was stated to be twenty-five years old,
unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an
American citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939 to
Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twentyone years old and married.
Considering the reservations made by the parties on the veracity of some of the entries on the birth
certificate of respondent and the marriage certificate of his parents, the only conclusions that could
be drawn with some degree of certainty from the documents would be that 1. The parents of FPJ were Allan F. Poe and Bessie Kelley;
2. FPJ was born to them on 20 August 1939;
3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940;
4. The father of Allan F. Poe was Lorenzo Poe; and
5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old.
Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born
Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of
FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a
public officer. The documents have been submitted in evidence by both contending parties during
the proceedings before the COMELEC.
The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The
marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent.
The death certificate of Lorenzo Pou was submitted by respondent as his Exhibit "5." While the last
two documents were submitted in evidence for respondent, the admissibility thereof, particularly in
reference to the facts which they purported to show, i.e., the marriage certificate in relation to the
date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of
Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who
had utilized those material statements in his argument. All three documents were certified true
copies of the originals.
Section 3, Rule 130, Rules of Court states that "Original document must be produced; exceptions. - When the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document
itself, except in the following cases:

"x x x

xxx

xxx

"(d) When the original is a public record in the custody of a public office or is recorded in a
public office."
Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe
and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents.
Section 44, Rule 130, of the Rules of Court provides:
"Entries in official records. Entries in official records made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated."
The trustworthiness of public documents and the value given to the entries made therein could be
grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty
which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such
statements, and 4) the publicity of record which makes more likely the prior exposure of such errors
as might have occurred.31
The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age
of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born
sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would argue
that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902
considering that there was no existing record about such fact in the Records Management and
Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place
during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San
Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude,
or at least to presume, that the place of residence of a person at the time of his death was also his
residence before death. It would be extremely doubtful if the Records Management and Archives
Office would have had complete records of all residents of the Philippines from 1898 to 1902.
Proof of Paternity and Filiation
Under Civil Law.
Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to
the father [or mother]) or paternity (relationship or civil status of the father to the child) of an
illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules
under civil law must be used.
Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until
the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment
was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or
voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of
the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a

public document.32 Complementary to the new code was Act No. 3753 or the Civil Registry Law
expressing in Section 5 thereof, that "In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the
parents of the infant or only by the mother if the father refuses. In the latter case, it shall not
be permissible to state or reveal in the document the name of the father who refuses to
acknowledge the child, or to give therein any information by which such father could be
identified."
In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation
or paternity, the certificate was required to be signed or sworn to by the father. The failure of such
requirement rendered the same useless as being an authoritative document of recognition. 33 In
Mendoza vs. Mella,34 the Court ruled "Since Rodolfo was born in 1935, after the registry law was enacted, the question here really
is whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the
registry record, may be relied upon as sufficient proof of his having been voluntarily
recognized. No such reliance, in our judgment, may be placed upon it. While it contains the
names of both parents, there is no showing that they signed the original, let alone swore to
its contents as required in Section 5 of Act No. 3753. For all that might have happened, it
was not even they or either of them who furnished the data to be entered in the civil register.
Petitioners say that in any event the birth certificate is in the nature of a public document
wherein voluntary recognition of a natural child may also be made, according to the same
Article 131. True enough, but in such a case, there must be a clear statement in the
document that the parent recognizes the child as his or her own."
In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was
the signature of Allan F. Poe found. There being no will apparently executed, or at least shown to
have been executed, by decedent Allan F. Poe, the only other proof of voluntary recognition
remained to be "some other public document." In Pareja vs. Pareja,35 this Court defined what could
constitute such a document as proof of voluntary acknowledgment:
"Under the Spanish Civil Code there are two classes of public documents, those executed by
private individuals which must be authenticated by notaries, and those issued by competent
public officials by reason of their office. The public document pointed out in Article 131 as
one of the means by which recognition may be made belongs to the first class."
Let us leave it at that for the moment.
The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into
voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a
record of birth, a will, a statement before a court of record or in any authentic writing. Legal
acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was
recognized or judicially declared as natural. Compulsory acknowledgment could be demanded
generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to
claim legitimacy which would last during the lifetime of the child, and might pass exceptionally to the

heirs of the child, an action to claim acknowledgment, however, could only be brought during the
lifetime of the presumed parent.
Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be an
authentic writing for purposes of voluntary recognition, simply as being a genuine or indubitable
writing of the father. The term would include a public instrument (one duly acknowledged before a
notary public or other competent official) or a private writing admitted by the father to be his.
The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide:
"Art. 172. The filiation of legitimate children is established by any of the following:
"(1) The record of birth appearing in the civil register or a final judgment; or
"(2) An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.
"In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
"(1) The open and continuous possession of the status of a legitimate child; or
"(2) Any other means allowed by the Rules of Court and special laws.
"Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime
and shall be transmitted to the heirs should the child die during minority or in a state of
insanity. In these cases, the heirs shall have a period of five years within which to institute
the action.
"The action already commenced by the child shall survive notwithstanding the death of either
or both of the parties.
"x x x

xxx

x x x.

"Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on
the same, evidence as legitimate children.
"The action must be brought within the same period specified in Article 173, except when the
action is based on the second paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent."
The provisions of the Family Code are retroactively applied; Article 256 of the code reads:
"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code or other laws."
Thus, in Vda. de Sy-Quia vs. Court of Appeals,36 the Court has ruled:

"We hold that whether Jose was a voluntarily recognized natural child should be decided
under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that
'the voluntary recognition of a natural child shall take place according to this Code, even if
the child was born before the effectivity of this body of laws' or before August 30, 1950.
Hence, Article 278 may be given retroactive effect."
It should be apparent that the growing trend to liberalize the acknowledgment or recognition of
illegitimate children is an attempt to break away from the traditional idea of keeping well apart
legitimate and non-legitimate relationships within the family in favor of the greater interest and
welfare of the child. The provisions are intended to merely govern the private and personal affairs of
the family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the
individual would also affect his political rights or, in general, his relationship to the State. While,
indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must be taken
in the context of private relations, the domain of civil law; particularly "Civil Law is that branch of law which has for its double purpose the organization of the
family and the regulation of property. It has thus [been] defined as the mass of precepts
which determine and regulate the relations of assistance, authority and obedience among
members of a family, and those which exist among members of a society for the protection of
private interests."37
In Yaez de Barnuevo vs. Fuster,38 the Court has held:
"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family rights
and duties, or to the status, condition and legal capacity of persons, govern Spaniards
although they reside in a foreign country; that, in consequence, 'all questions of a civil
nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile
of the husband and wife, their support, as between them, the separation of their properties,
the rules governing property, marital authority, division of conjugal property, the classification
of their property, legal causes for divorce, the extent of the latter, the authority to decree it,
and, in general, the civil effects of marriage and divorce upon the persons and properties of
the spouses, are questions that are governed exclusively by the national law of the husband
and wife."
The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil
Code, stating that "Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad" that explains the need to incorporate in the code a reiteration of the Constitutional provisions on
citizenship. Similarly, citizenship is significant in civil relationships found in different parts of the Civil
Code,39 such as on successional rights and family relations. 40 In adoption, for instance, an adopted
child would be considered the child of his adoptive parents and accorded the same rights as their
legitimate child but such legal fiction extended only to define his rights under civil law 41 and not his
political status.

Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be
traced to the Spanish family and property laws, which, while defining proprietary and successional
rights of members of the family, provided distinctions in the rights of legitimate and illegitimate
children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth
were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by
foreign blood was paramount.
These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and
the invidious discrimination survived when the Spanish Civil Code became the primary source of our
own Civil Code. Such distinction, however, remains and should remain only in the sphere of civil law
and not unduly impede or impinge on the domain of political law.
The proof of filiation or paternity for purposes of determining his citizenship status should thus be
deemed independent from and not inextricably tied up with that prescribed for civil law purposes.
The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not
have preclusive effects on matters alien to personal and family relations. The ordinary rules on
evidence could well and should govern. For instance, the matter about pedigree is not necessarily
precluded from being applicable by the Civil Code or Family Code provisions.
Section 39, Rule 130, of the Rules of Court provides "Act or Declaration about pedigree. The act or declaration of a person deceased, or unable
to testify, in respect to the pedigree of another person related to him by birth or marriage,
may be received in evidence where it occurred before the controversy, and the relationship
between the two persons is shown by evidence other than such act or declaration. The word
`pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and
the places where these facts occurred, and the names of the relatives. It embraces also facts
of family history intimately connected with pedigree."
For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to
testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the
person whose pedigree is in question, (d) declaration must be made before the controversy has
occurred, and (e) the relationship between the declarant and the person whose pedigree is in
question must be shown by evidence other than such act or declaration.
Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe
submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe,
recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley and his
children (including respondent FPJ) in one house, and as one family "I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton,
California, U.S.A., after being sworn in accordance with law do hereby declare that:
"1. I am the sister of the late Bessie Kelley Poe.
"2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.

"3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly
known in the Philippines as `Fernando Poe, Jr., or `FPJ.
"4. Ronald Allan Poe `FPJ was born on August 20, 1939 at St. Luke's Hospital, Magdalena
Street, Manila.
"x x x

xxx

xxx

"7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were
students at the University of the Philippines in 1936. I was also introduced to Fernando Poe,
Sr., by my sister that same year.
"8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.
"9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan
and Fernando II, and myself lived together with our mother at our family's house on Dakota
St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945, except for some
months between 1943-1944.
"10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after
Ronald Allan Poe.
"x x x

xxx

xxx

"18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is
a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr.
"Done in City of Stockton, California, U.S.A., this 12th day of January 2004.
Ruby Kelley Mangahas Declarant DNA Testing
In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to
obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child
and any physical residue of the long dead parent could be resorted to. A positive match would clear
up filiation or paternity. In Tijing vs. Court of Appeals,42 this Court has acknowledged the strong weight of
DNA testing "Parentage will still be resolved using conventional methods unless we adopt the modern and
scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for
identification and parentage testing. The University of the Philippines Natural Science Research
Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using
short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person
has two (2) copies, one copy from the mother and the other from the father. The DNA from the
mother, the alleged father and the child are analyzed to establish parentage. Of course, being a
novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as
the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence.

For it was said, that courts should apply the results of science when competently obtained in aid of
situations presented, since to reject said result is to deny progress."
Petitioners Argument For Jurisprudential Conclusiveness
Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have
transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to
petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted marriage
with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley bigamous and
respondent FPJ an illegitimate child. The veracity of the supposed certificate of marriage between
Allan F. Poe and Paulita Gomez could be most doubtful at best. But the documentary evidence
introduced by no less than respondent himself, consisting of a birth certificate of respondent and a
marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a Filipino father
and an American mother who were married to each other a year later, or on 16 September 1940.
Birth to unmarried parents would make FPJ an illegitimate child. Petitioner contended that as an
illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelley, an American citizen,
basing his stand on the ruling of this Court in Morano vs. Vivo,43 citing Chiongbian vs. de Leo44 and
Serra vs. Republic.45
On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most
convincing; he states "We must analyze these cases and ask what the lis mota was in each of them. If the
pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement would
be a decision constituting doctrine under the rule of stare decisis. But if the pronouncement
was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter
dictum which did not establish doctrine. I therefore invite the Court to look closely into these
cases.
"First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It
was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and a
Chinese father. The issue was whether the stepson followed the naturalization of the
stepfather. Nothing about jus sanguinis there. The stepson did not have the blood of the
naturalized stepfather.
"Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino
father. It was about a legitimate son of a father who had become Filipino by election to public
office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935
Constitution. No one was illegitimate here.
"Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father.
Serra was an illegitimate child of a Chinese father and a Filipino mother. The issue was
whether one who was already a Filipino because of his mother who still needed to be
naturalized. There is nothing there about invidious jus sanguinis.

"Finally, Paa vs. Chan.46 This is a more complicated case. The case was about the
citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his
father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother. Quintin
therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court
said that there was no valid proof that Leoncio was in fact the son of a Filipina mother. The
Court therefore concluded that Leoncio was not Filipino. If Leoncio was not Filipino, neither
was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not
even a Filipino.
"The Court should have stopped there. But instead it followed with an obiter dictum. The
Court said obiter that even if Leoncio, Quintin's father, were Filipino, Quintin would not be
Filipino because Quintin was illegitimate. This statement about Quintin, based on a contrary
to fact assumption, was absolutely unnecessary for the case. x x x It was obiter dictum, pure
and simple, simply repeating the obiter dictum in Morano vs. Vivo.
"x x x

xxx

xxx

"Aside from the fact that such a pronouncement would have no textual foundation in the
Constitution, it would also violate the equal protection clause of the Constitution not once but
twice. First, it would make an illegitimate distinction between a legitimate child and an
illegitimate child, and second, it would make an illegitimate distinction between the
illegitimate child of a Filipino father and the illegitimate child of a Filipino mother.
"The doctrine on constitutionally allowable distinctions was established long ago by People
vs. Cayat.47 I would grant that the distinction between legitimate children and illegitimate
children rests on real differences. x x x But real differences alone do not justify invidious
distinction. Real differences may justify distinction for one purpose but not for another
purpose.
"x x x What is the relevance of legitimacy or illegitimacy to elective public service? What
possible state interest can there be for disqualifying an illegitimate child from becoming a
public officer. It was not the fault of the child that his parents had illicit liaison. Why deprive
the child of the fullness of political rights for no fault of his own? To disqualify an illegitimate
child from holding an important public office is to punish him for the indiscretion of his
parents. There is neither justice nor rationality in that. And if there is neither justice nor
rationality in the distinction, then the distinction transgresses the equal protection clause and
must be reprobated."
The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor
Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis of
petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail.
Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did
so for the benefit the child. It was to ensure a Filipino nationality for the illegitimate child of an alien
father in line with the assumption that the mother had custody, would exercise parental authority and

had the duty to support her illegitimate child. It was to help the child, not to prejudice or discriminate
against him.
The fact of the matter perhaps the most significant consideration is that the 1935 Constitution,
the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never be
more explicit than it is. Providing neither conditions nor distinctions, the Constitution states that
among the citizens of the Philippines are "those whose fathers are citizens of the Philippines." There
utterly is no cogent justification to prescribe conditions or distinctions where there clearly are none
provided.
In Sum
(1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the
petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules
of Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for alleged
grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003
which has prayed for the disqualification of respondent FPJ from running for the position of
President in the 10th May 2004 national elections on the contention that FPJ has committed
material representation in his certificate of candidacy by representing himself to be a naturalborn citizen of the Philippines.
(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No.
161434 and No. 161634 both having been directly elevated to this Court in the latters
capacity as the only tribunal to resolve a presidential and vice-presidential election contest
under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked
only after, not before, the elections are held.
(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been
committed by the COMELEC, it is necessary to take on the matter of whether or not
respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the
father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the
affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking
after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship of
Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years
old, Lorenzo would have been born sometime in the year 1870, when the Philippines was
under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death
in 1954, in the absence of any other evidence, could have well been his place of residence
before death, such that Lorenzo Pou would have benefited from the "en masse Filipinization"
that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou), if acquired,
would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935
Constitution, during which regime respondent FPJ has seen first light, confers citizenship to
all persons whose fathers are Filipino citizens regardless of whether such children are
legitimate or illegitimate.
(4) But while the totality of the evidence may not establish conclusively that respondent FPJ
is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in

his favor enough to hold that he cannot be held guilty of having made a material
misrepresentation in his certificate of candidacy in violation of Section 78, in relation to
Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his
case before the Court, notwithstanding the ample opportunity given to the parties to present
their position and evidence, and to prove whether or not there has been material
misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC, 48 must not only
be material, but also deliberate and willful.
WHEREFORE, the Court RESOLVES to DISMISS
1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr.,
Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando
Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo
Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.,
Respondent," for want of jurisdiction.
2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on
Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.," for failure to show
grave abuse of discretion on the part of respondent Commission on Elections in dismissing
the petition in SPA No. 04-003.
No Costs.
SO ORDERED.
Davide, Jr., C.J., see separate opinion, concurring.
Puno, J., on leave but was allowed to vote; see separate opinion.
Panganiban, J., on official leave; allowed to vote but did not send his vote on the matter.
Quisumbing, J., joins the dissent of Justices Tinga and Morales; case should have been remanded.
Ynares-Santiago, J., concurs and also with J. Punos separate opinion.
Sandoval-Gutierrez, J., concurs, please see separate opinion.
Carpio, J., see dissenting opinion.
Austria-Martinez, J., concurs, please see separate opinion.
Corona, J., joins the dissenting opinion of Justice Morales.
Carpio-Morales, J., see dissenting opinion.
Callejo, Sr., J., please see concurring opinion.
Azcuna, J., concurs in a separate opinion.
Tinga, J., dissents per separate opinion.

SEPARATE OPINION
DAVIDE, JR. C.J.:
The procedural and factual antecedents of these consolidated cases are as follows:

On 9 January 2004, petitioner Victorino X. Fornier filed with public respondent Commission on
Elections (COMELEC) a petition to disqualify private respondent Fernando Poe, Jr. (FPJ) and to
deny due course to or cancel his certificate of candidacy for the position of President in the
forthcoming 10 May 2004 presidential elections. As a ground therefore, he averred that FPJ
committed falsity in a material representation in his certificate of candidacy in declaring that he is a
natural-born Filipino citizen when in truth and in fact he is not, since he is the illegitimate son of
Bessie Kelley, an American citizen, and Allan Poe, a Spanish national. The case was docketed as
COMELEC Case SPA No. 04-003 and assigned to the COMELECs First Division.
At the hearing before the First Division of the COMELEC, petitioner Fornier offered FPJs record of
birth to prove that FPJ was born on 20 August 1939 to Bessie Kelley, an American citizen, and Allan
Poe, who was then married to Paulita Gomez. Upon the other hand, FPJ tried to establish that his
father was a Filipino citizen whose parents, although Spanish nationals, were Filipino citizens. He
adduced in evidence a copy of the marriage contract of Allan Poe and Bessie Kelley, showing that
they were married on 16 September 1940 in Manila.
In its Resolution of 23 January 2004, the First Division of the COMELEC dismissed COMELEC Case
SPA No. 04-003 for lack of merit. It declared that COMELECs jurisdiction is limited to all matters
relating to election, returns and qualifications of all elective regional, provincial and city officials, but
not those of national officials like the President. It has, however, jurisdiction to pass upon the issue of
citizenship of national officials under Section 78 of the Omnibus Election Code on petitions to deny
due course or cancel certificates of candidacy on the ground that any material representation
contained therein is false. It found that the evidence adduced by petitioner Fornier is not substantial,
and that FPJ did not commit any falsehood in material representation when he stated in his
certificate of candidacy that he is a natural-born Filipino citizen.
His motion for reconsideration filed before the COMELEC en banc having been denied, petitioner
Fornier filed a petition with this Court, which was docketed as G.R. No. 161824.
Meanwhile, petitioners Maria Jeanette C. Tecson and Felix B. Desiderio, Jr. came to this Court via a
special civil action for certiorari under Rule 65 of the Rules of Court, docketed as G.R. No. 161434,
to challenge the jurisdiction of the COMELEC over the issue of the citizenship of FPJ. They assert
that only this Court has jurisdiction over the issue in light of the last paragraph of Section 4 of Article
VII of the Constitution, which provides:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.
On 29 January 2004 petitioner Velez filed a similar petition, which was docketed as G.R. No.
161634.
The core issues in these consolidated cases, as defined by the Court during the oral argument, are
as follows:

(1) Whether the COMELEC has jurisdiction over petitions to deny due course to or cancel
certificates of candidacy of Presidential candidates;
(2) Whether the Supreme Court has jurisdiction over the petitions of (a) Tecson, et al., (b)
Velez, and (c) Fornier; and
(3) Whether respondent FPJ is a Filipino citizen, and if so, whether he is a natural-born
Filipino citizen.
These consolidated petitions must be dismissed.
Both the petitions of Tecson and Velez invoke the jurisdiction of this Court as provided for in the last
paragraph of Section 4 of Article VII of the Constitution, and raise the issue of the ineligibility of a
candidate for President on the ground that he is not a natural-born citizen of the Philippines. The
actions contemplated in the said provision of the Constitution are post-election remedies, namely,
regular election contests and quo warranto. The petitioner should have, instead, resorted to preelection remedies, such as those prescribed in Section 68 (Disqualifications), in relation to Section
72; Section 69 (Nuisance candidates); and Section 78 (Petition to deny course to or cancel a
certificate of candidacy), in relation to Section 74, of the Omnibus Election Code, which are
implemented in Rules 23, 24 and 25 of the COMELEC Rules of Procedure. These pre-election
remedies or actions do not, however, fall within the original jurisdiction of this Court.
Under the Omnibus Election Code and the COMELEC Rules of Procedure, the COMELEC has the
original jurisdiction to determine in an appropriate proceeding whether a candidate for an elective
office is eligible for the office for which he filed his certificate of candidacy or is disqualified to be a
candidate or to continue such candidacy because of any of the recognized grounds for
disqualification. Its jurisdiction over COMELEC SPA No. 04-003 is, therefore, beyond question.
Upon the other hand, this Court has jurisdiction over Forniers petition (G.R. No. 161824) under
Section 7 of Article IX-A of the Constitution, which provides:
Section 7. Each Commission shall decide by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its submission for decision or resolution. A case or
matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission
may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.
This Court can also take cognizance of the issue of whether the COMELEC committed grave abuse
of discretion amounting to lack or excess of jurisdiction in issuing the challenged resolution in
COMELEC SPA No. 04-003 by virtue of Section 1 of Article VIII of the Constitution, which reads as
follows:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of nay branch or
instrumentality of the Government.
On the issue of whether private respondent FPJ is a natural-born Filipino citizen, the following facts
have been established by a weighty preponderance of evidence either in the pleadings and the
documents attached thereto or from the admissions of the parties, through their counsels, during the
oral arguments:
1. FPJ was born on 20 August 1939 in Manila, Philippines.
2. FPJ was born to Allan Poe and Bessie Kelley.
3. Bessie Kelley and Allan Poe were married on 16 September 1940.
4. Allan Poe was a Filipino because his father, Lorenzo Poe, albeit a Spanish subject, was
not shown to have declared his allegiance to Spain by virtue of the Treaty of Paris and the
Philippine Bill of 1902.
From the foregoing it is clear that respondent FPJ was born before the marriage of his parents.
Thus, pursuant to the Civil Code then in force, he could either be (a) a natural child if both his
parents had no legal impediments to marry each other; or (b) an illegitimate child if, indeed, Allan
Poe was married to another woman who was still alive at the time FPJ was born.
Petitioner Fornier never alleged that Allan Poe was not the father of FPJ. By revolving his case
around the illegitimacy of FPJ, Fornier effectively conceded paternity or filiation as a non-issue. For
purposes of the citizenship of an illegitimate child whose father is a Filipino and whose mother is an
alien, proof of paternity or filiation is enough for the child to follow the citizenship of his putative
father, as advanced by Fr. Joaquin Bernas, one of the amici curiae. Since paternity or filiation is in
fact admitted by petitioner Fornier, the COMELEC committed no grave abuse of discretion in holding
that FPJ is a Filipino citizen, pursuant to paragraph 3 of Section 1 of Article IV of the 1935
Constitution, which reads:
Section 1. The following are citizens of the Philippines:

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

I agree with the amici curiae that this provision makes no distinction between legitimate and
illegitimate children of Filipino fathers. It is enough that filiation is established or that the child is
acknowledged or recognized by the father.
DISSENTING OPINION

CARPIO, J.:
I dissent from the majority opinion.
The Antecedent Proceedings
Petitioner Fornier filed before the Commission on Elections ("Comelec") a "Petition for
Disqualification of Presidential Candidate Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." on the
ground that Fernando Poe, Jr. ("FPJ") is not a natural-born Philippine citizen. The Comelec First
Division dismissed the petition, ruling that petitioner failed to present substantial evidence that FPJ
committed "any material misrepresentation when he stated in his Certificate of Candidacy that he is
a natural-born citizen." On motion for reconsideration, the Comelec En Banc affirmed the ruling of
the First Division. Petitioner Fornier now assails the Comelec En Banc resolution under Rule 64 in
relation to Rule 65 of the Rules of Court.
The Undisputed Facts
The undisputed facts are based on two documents and the admission of FPJ. The first document is
the Birth Certificate of FPJ, showing he was born on 20 August 1939. The Birth Certificate is an
evidence of FPJ.[1] The second document is the Marriage Certificate of Allan F. Poe and Bessie
Kelley, showing that their marriage took place on 16 September 1940. The Marriage Certificate is
also an evidence of FPJ.[2] Moreover, FPJ admits that his mother Bessie Kelley was an American
citizen.[3]
Based on these two documents and admission, the undisputed facts are: (1) FPJ was born out of
wedlock and therefore illegitimate,[4] and (2) the mother of FPJ was an American citizen.
The Issues
The issues raised in Forniers petition are:
(a) Whether the Court has jurisdiction over the petition to disqualify FPJ as a candidate for
President on the ground that FPJ is not a natural-born Philippine citizen;
(b) Whether FPJ is a natural-born citizen of the Philippines.
Jurisdiction
The Comelec has jurisdiction to determine initially the qualifications of all candidates. Under Section
2(1), Article IX-C of the Constitution, the Comelec has the power and function to "[E]nforce and
administer all laws and regulations relative to the conduct of an election." The initial determination of
who are qualified to file certificates of candidacies with the Comelec clearly falls within this allencompassing constitutional mandate of the Comelec. The conduct of an election necessarily
includes the initial determination of who are qualified under existing laws to run for public office in an
election. Otherwise, the Comelecs certified list of candidates will be cluttered with unqualified
candidates making the conduct of elections unmanageable. For this reason, the Comelec weeds out

every presidential election dozens of candidates for president who are deemed nuisance candidates
by the Comelec.[5]
Section 2(3), Article IX-C of the Constitution also empowers the Comelec to "[D]ecide, except those
involving the right to vote, all questions affecting elections x x x." The power to decide "all questions
affecting elections" necessarily includes the power to decide whether a candidate possesses the
qualifications required by law for election to public office. This broad constitutional power and
function vested in the Comelec is designed precisely to avoid any situation where a dispute affecting
elections is left without any legal remedy. If one who is obviously not a natural-born Philippine
citizen, like Arnold Schwarzenneger, runs for President, the Comelec is certainly not powerless to
cancel the certificate of candidacy of such candidate. There is no need to wait until after the
elections before such candidate may be disqualified.
Under Rule 25 on "Disqualification of Candidates" of the Comelec Rules of Procedure, a voter may
question before the Comelec the qualifications of any candidate for public office. Thus, Rule 25
provides:
Section 1. Grounds for Disqualification. Any candidate who does not possess all the qualifications
of a candidate as provided for by the Constitution or by existing law or who commits any act
declared by law to be grounds for disqualification may be disqualified from continuing as a
candidate.
Section 2. Who May File Petition for Disqualification. Any citizen of voting age, or duly registered
political party, organization or coalition of political parties may file with the Law Department of the
Commission a petition to disqualify a candidate on grounds provided by law. (Emphasis supplied)
The Comelec adopted its Rules of Procedure pursuant to its constitutional power to promulgate its
own rules of procedure[6] to expedite the disposition of cases or controversies falling within its
jurisdiction.
The Comelec has ruled upon the qualifications of candidates, even if the Constitution provides that
some other body shall be the "sole judge" of the qualifications of the holders of the public offices
involved. The Court has upheld the jurisdiction of Comelec to issue such rulings,[7] even when the
issue is the citizenship of a candidate.[8] Thus, the Comelec has jurisdiction to determine initially if
FPJ meets the citizenship qualification to run for President.
However, the Comelec En Banc, in its scanty resolution, failed to state the factual bases of its ruling.
The Comelec En Banc also failed to rule conclusively on the issue presented whether FPJ is a
natural-born Philippine citizen. The Comelec En Banc affirmed the First Division ruling that "[W]e feel
we are not at liberty to finally declare whether or not the respondent is a natural-born citizen." In
short, the Comelec En Banc allowed a candidate for President to run in the coming elections without
being convinced that the candidate is a natural-born Philippine citizen. Clearly, the Comelec En Banc
acted with grave abuse of discretion. Under Section 1, Article VIII, as well as Section 5, Article VIII,
of the Constitution, the Court has jurisdiction to hear and decide the issue in a petition for certiorari
under Rule 64 in relation to Rule 65.

To hold that the Court acquires jurisdiction to determine the qualification of a candidate for President
only after the elections would lead to an absurd situation. The Court would have to wait for an alien
to be elected on election day before he could be disqualified to run for President. If the case is not
decided immediately after the election, an alien who wins the election may even assume office as
President before he is finally disqualified. Certainly, this is not what the Constitution says when it
provides that "[N]o person may be elected President unless he is a natural-born citizen of the
Philippines."[9] The clear and specific language of the Constitution prohibits the election of one who
is not a natural-born citizen. Thus, the issue of whether a candidate for President is a natural-born
Philippine citizen must be decided before the election.
Governing Laws
Since FPJ was born on 20 August 1939, his citizenship at the time of his birth depends on the
Constitution and statutes in force at the time of his birth.[10] FPJs citizenship at the time of his birth
in 1939, applying the laws in force in 1939, determines whether he is a natural-born Philippine
citizen.
Natural-born Philippine citizens are "those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship."[11] If a person has to
perform an act, such as proving in an administrative or judicial proceeding, that an event subsequent
to his birth transpired thus entitling him to Philippine citizenship, such person is not a natural born
citizen.[12]
The 1935 Constitution and the Spanish Civil Code, the laws in force in 1939, are the governing laws
that determine whether a person born in 1939 is a Philippine citizen at the time of his birth in 1939.
Any subsequent legislation cannot change the citizenship at birth of a person born in 1939 because
such legislation would violate the constitutional definition of a natural-born citizen as one who is a
Philippine citizen from birth. In short, one who is not a Philippine citizen at birth in 1939 cannot be
declared by subsequent legislation a natural-born citizen.
General Principles
A legitimate child of a Filipino father follows the citizenship of the father. A child born within wedlock
is presumed to be the son of the father[13] and thus carries the blood of the father. Under the
doctrine of jus sanguinis, as provided for in Section 1(3), Article III of the 1935 Constitution, a
legitimate child, by the fact of legitimacy, automatically follows the citizenship of the Filipino father.
An illegitimate child, however, enjoys no presumption at birth of blood relation to any father unless
the father acknowledges the child at birth.[14] The law has always required that "in all cases of
illegitimate children, their filiation must be duly proved."[15] The only legally known parent of an
illegitimate child, by the fact of illegitimacy, is the mother of the child who conclusively carries the
blood of the mother. Thus, unless the father acknowledges the illegitimate child at birth, the
illegitimate child can only acquire the citizenship of the only legally known parent - the mother.
However, if the Filipino father is legally known because the filiation (blood relation of illegitimate child
to the father) of the child to the Filipino father is established in accordance with law, the child follows

the citizenship of the Filipino father. This gives effect, without discrimination between legitimate and
illegitimate children, to the provision of the 1935 Constitution that "[T]hose whose fathers are citizens
of the Philippines"[16] are Philippine citizens.
Nature of Citizenship
If the Filipino father acknowledges the illegitimate child at birth, the child is a natural-born Philippine
citizen because no other act after his birth is required to acquire or perfect his Philippine citizenship.
The child possesses all the qualifications to be a Philippine citizen at birth.
If the Filipino father acknowledges the child after birth, the child is a Philippine citizen as of the time
of the acknowledgment. In this case, the child does not possess all the qualifications to be a
Philippine citizen at birth because an act - the acknowledgement of the Filipino father - is required for
the child to acquire or perfect his Philippine citizenship. Statutory provisions on retroactivity of
acknowledgment cannot be given effect because they would be contrary to the constitutional
definition of natural- born citizens as those who are Philippine citizens at birth without having to
perform any act to acquire or perfect their Philippine citizenship.
If the illegitimacy of a child is established, there is no presumption that the child has the blood of any
man who is supposed to be the father. There is only a conclusive presumption that the child has the
blood of the mother. If an illegitimate child claims to have the blood of a man who is supposed to be
the childs father, such blood relation must be established in accordance with proof of filiation as
required by law.
Where the illegitimate child of an alien mother claims to follow the citizenship of the putative father,
the burden is on the illegitimate child to establish a blood relation to the putative Filipino father since
there is no presumption that an illegitimate child has the blood of the putative father. Even if the
putative father admits paternity after the birth of the illegitimate child, there must be an administrative
or judicial approval that such blood relation exists upon proof of paternity as required by law.
Citizenship, being a matter of public and State interest, cannot be conferred on an illegitimate child
of an alien mother on the mere say so of the putative Filipino father. The State has a right to
examine the veracity of the claim of paternity. Otherwise, the grant of Philippine citizenship to an
illegitimate child of an alien mother is left to the sole discretion of the putative Filipino father. For
example, a Philippine citizen of Chinese descent can simply claim that he has several illegitimate
children in China. The State cannot be required to grant Philippine passports to these supposed
illegitimate children born in China of Chinese mothers just because the putative Filipino father
acknowledges paternity of these illegitimate children. There must be either an administrative or
judicial determination that the claim of the putative Filipino father is true.
The case of the illegitimate Vietnamese children, born in Vietnam of Vietnamese mothers and
allegedly of Filipino fathers, is illustrative. These children grew up in Vietnam, many of them studying
there until high school. These children grew up knowing they were Vietnamese citizens. In 1975, a
Philippine Navy vessel brought them, together with their Vietnamese mothers, to the Philippines as
Saigon fell to the communists. The mothers of these children became stateless when the Republic of
(South) Vietnam ceased to exist in 1975. The Department of Justice rendered Opinion No. 49 dated

3 May 1995 that being children of Filipino fathers, these Vietnamese children, even if illegitimate, are
Philippine citizens under Section 1(3), Article IV of the 1935 Constitution and Section 1(2), Article III
of the 1973 Constitution. This Opinion is cited by FPJ as basis for his claim of being a natural-born
Philippine citizen.[17] However, this Opinion categorically stated that before the illegitimate
Vietnamese children may be considered Filipino citizens "it is necessary in every case referred to
that such paternity be established by sufficient and convincing documentary evidence."[18]
In short, the illegitimate child must prove to the proper administrative or judicial authority the
paternity of the alleged Filipino father by "sufficient and convincing documentary evidence." Clearly,
an administrative or judicial act is necessary to confer on the illegitimate Vietnamese children
Philippine citizenship. The mere claim of the illegitimate child of filiation to a Filipino father, or the
mere acknowledgment of the alleged Filipino father, does not automatically confer Philippine
citizenship on the child. The State must be convinced of the veracity of such claim and approve the
same. Since the illegitimate Vietnamese children need to perform an act to acquire or perfect
Philippine citizenship, they are not natural-born Philippine citizens. They become Philippine citizens
only from the moment the proper administrative or judicial authority approve and recognize their
filiation to their alleged Filipino fathers.
The rationale behind requiring that only natural-born citizens may hold certain high public offices[19]
is to insure that the holders of these high public offices grew up knowing they were at birth citizens of
the Philippines. In their formative years they knew they owed from birth their allegiance to the
Philippines. In case any other country claims their allegiance, they would be faithful and loyal to the
Philippines of which they were citizens from birth. This is particularly true to the President who is the
commander-in-chief of the armed forces.[20] The President of the Philippines must owe, from birth,
allegiance to the Philippines and must have grown up knowing that he was a citizen of the
Philippines at birth. The constitutional definition of a natural-born Philippine citizen would lose its
meaning and efficacy if one who was at birth recognized by law as an alien were declared forty
years later[21] a natural-born Philippine citizen just because his alleged Filipino father subsequently
admitted his paternity.
Proof of Filiation
Article 131[22] of the Spanish Civil Code, the law in force in 1939, recognized only the following as
proof of filiation of a natural child:
a. acknowledgment in a record of birth;
b. acknowledgment in a will;
c. acknowledgment in some other public document.
To establish his Philippine citizenship at birth, FPJ must present either an acknowledgement in a
record of birth, or an acknowledgment in some other public document executed at the time of his
birth. An acknowledgment executed after birth does not make one a citizen at birth but a citizen from
the time of such acknowledgment since the acknowledgment is an act done after birth to acquire or
perfect Philippine citizenship.

After the birth of one who is not a natural-born Philippine citizen, a subsequent legislation liberalizing
proof of filiation cannot apply to such person to make him a natural-born citizen. A natural-born
Philippine citizen is expressly defined in the Constitution as one who is a citizen at birth. If a person
is not a citizen at birth, no subsequent legislation can retroactively declare him a citizen at birth since
it would violate the constitutional definition of a natural-born citizen.
Burden of Proof
Any person who claims to be a citizen of the Philippines has the burden of proving his Philippine
citizenship. Any person who claims to be qualified to run for President because he is, among others,
a natural-born Philippine citizen, has the burden of proving he is a natural-born citizen. Any doubt
whether or not he is natural-born citizen is resolved against him. The constitutional requirement of a
natural-born citizen, being an express qualification for election as President, must be complied with
strictly as defined in the Constitution. As the Court ruled in Paa v. Chan: [23]
It is incumbent upon a person who claims Philippine citizenship to prove to the satisfaction of the
Court that he is really a Filipino. No presumption can be indulged in favor of the claimant of
Philippine citizenship, and any doubt regarding citizenship must be resolved in favor of the State.
Since the undisputed facts show that FPJ is an illegitimate child, having been born out of wedlock,
the burden is on FPJ to prove his blood relation to his alleged Filipino father. An illegitimate child
enjoys no presumption of blood relation to any father. Such blood relationship must be established in
the appropriate proceedings in accordance with law.
Private party litigants cannot stipulate on the Philippine citizenship of a person because citizenship is
not a private right or property, but a matter of public and State interest. Even if petitioner Fornier
admits that FPJ, although illegitimate, is the son of Allan F. Poe, such admission cannot bind the
State for the purpose of conferring on FPJ the status of a natural-born Philippine citizen or even of a
naturalized citizen. Certainly, the Court will not recognize a person as a natural-born Philippine
citizen just because the private party litigants have admitted or stipulated on such a status. In the
present case, the Solicitor General, as representative of the Government, is strongly disputing the
status of FPJ as a natural-born Philippine citizen.
Legitimation
Under Article 123[24] of the Spanish Civil Code, legitimation took effect as of the date of marriage.
There was no retroactivity of the effects of legitimation on the rights of the legitimated child. Thus, a
legitimated child acquired the rights of a legitimate child only as of the date of marriage of the natural
parents. Allan F. Poe and Bessie Kelley were married on 16 September 1940 while FPJ was born
more than one year earlier on 20 August 1939. Assuming that Allan F. Poe was FPJs natural father,
the effects of legitimation did not retroact to the birth of FPJ on 20 August 1939.
Besides, legitimation vests only civil, not political rights, to the legitimated child. As the Court held in
Ching Leng:[25]

The framers of the Civil Code had no intention whatsoever to regulate therein political questions.
Hence, apart from reproducing the provisions of the Constitution on citizenship, the Code contains
no precept thereon except that which refers all matters of "naturalization", as well as those related to
the "loss and reacquisition of citizenship" to "special laws." Consistently with this policy, our Civil
Code does not include therein any rule analogous to Articles 18 to 28 of the Civil Code of Spain,
regulating citizenship. (Underscoring in the original)
Clearly, even assuming that the marriage of Allan F. Poe and Bessie Kelley legitimated FPJ, such
legitimation did not vest retroactively any civil or political rights to FPJ.
Treaty of Paris of 1898 and Philippine Bill of 1902
FPJ admits that his grandfather, Lorenzo Pou, was a Spanish citizen who came to the Philippines
from Spain.[26] To benefit from the mass naturalization under the Treaty of Paris of 1898 and the
Philippine Bill of 1902, FPJ must prove that Lorenzo Pou was an inhabitant and resident of the
Philippines on 11 April 1899. Once it is established that Lorenzo Pou was an inhabitant and resident
of the Philippines on 11 April 1899, then he is presumed to have acquired Philippine citizenship
under the Treaty of Paris of 1898 and the Philippine Bill of 1902.[27] Being an inhabitant and
resident of the Philippines on 11 April 1899 is the determinative fact to fall under the coverage of the
Treaty of Paris of 1898 and the Philippine Bill of 1902.[28]
There is, however, no evidence on record that Lorenzo Pou was a Philippine inhabitant and resident
on 11 April 1899. The date of arrival of Lorenzo Pou in the Philippines is not known. If he arrived in
the Philippines after 11 April 1899, then he could not benefit from the mass naturalization under the
Treaty of Paris of 1898 and the Philippine Bill of 1902. There is also no evidence that Lorenzo Pou
was naturalized as a Philippine citizen after 11 April 1899. Thus, there can be no presumption that
Lorenzo Pou was a Philippine citizen.
There is also no evidence on record that Allan F. Poe, the son of Lorenzo Pou and the alleged father
of FPJ, was naturalized as a Philippine citizen. Thus, based on the evidence adduced there is no
legal basis for claiming that Allan F. Poe is a Philippine citizen. Nevertheless, there is no need to
delve further into this issue since the Court can decide this case without determining the citizenship
of Lorenzo Pou and Allan F. Poe. Whether or not Lorenzo Pou and Allan F. Poe were Philippine
citizens is not material in resolving whether FPJ is a natural-born Philippine citizen.
Convention on the Rights of the Child
The Philippines signed the Convention on the Rights of the Child on 26 January 1990 and ratified
the same on 21 August 1990. The Convention defines a child to mean "every human being below
the age of eighteen years unless, under the law applicable to the child, majority is attained earlier."
Obviously, FPJ cannot invoke the Convention since he is not a child as defined in the Convention,
and he was born half a century before the Convention came into existence. FPJs citizenship at birth
in 1939 could not in any way be affected by the Convention which entered into force only on 2
September 1990.

The Convention has the status of a municipal law[29] and its ratification by the Philippines could not
have amended the express requirement in the Constitution that only natural-born citizens of
Philippines are qualified to be President. While the Constitution apparently favors natural-born
citizens over those who are not, that is the explicit requirement of the Constitution which neither the
Executive Department nor the Legislature, in ratifying a treaty, could amend. In short, the Convention
cannot amend the definition in the Constitution that natural-born citizens are "those who are citizens
of the Philippines from birth without having to perform any act to acquire or perfect their Philippine
citizenship."
In any event, the Convention guarantees a child "the right to acquire a nationality,"[30] and requires
States Parties to "ensure the implementation" of this right, "in particular where the child would
otherwise be stateless."[31] Thus, as far as nationality or citizenship is concerned, the Convention
guarantees the right of the child to acquire a nationality so that he may not be stateless. The
Convention does not guarantee a child a citizenship at birth, but merely "the right to acquire a
nationality" in accordance with municipal law. When FPJ was born in 1939, he was apparently under
United States law an American citizen at birth.[32] After his birth FPJ also had the right to acquire
Philippine citizenship by proving his filiation to his alleged Filipino father in accordance with
Philippine law. At no point in time was FPJ in danger of being stateless. Clearly, FPJ cannot invoke
the Convention to claim he is a natural-born Philippine citizen.
The Doctrine in Ching Leng v. Galang
The prevailing doctrine today is that an illegitimate child of a Filipino father and an alien mother
follows the citizenship of the alien mother as the only legally known parent. The illegitimate child,
even if acknowledged and legally adopted by the Filipino father, cannot acquire the citizenship of the
father. The Court made this definitive doctrinal ruling in Ching Leng v. Galang,[33] which involved the
illegitimate minor children of a naturalized Filipino of Chinese descent with a Chinese woman, Sy An.
The illegitimate children were later on jointly adopted by the naturalized Filipino and his legal wife,
So Buan Ty.
The facts in Ching Leng as quoted by the Court from the trial courts decision are as follows:
After the petitioner Ching Leng Alias Ching Ban Lee obtained judgment in this Court dated May 2,
1950 granting his petition for naturalization, he together with his wife So Buan Ty filed another
petition also in this Court in Special Proc. No. 1216 for the adoption of Ching Tiong Seng, Ching
Liong Ding, Victoria Ching Liong Yam, Sydney Ching and Ching Tiong An, all minors and admittedly
the illegitimate children of petitioner Ching Leng with one Sy An, a Chinese citizen. Finding the
petition for adoption proper, this Court granted the same in a decision dated September 12, 1950,
declaring the said minors free from all legal obligations of obedience and maintenance with respect
to their mother Sy An and to all legal intents and purposes the children of the adopter Ching Leng
alias Ching Ban Lee and So Buan Ty with all the legal rights and obligations provided by law.
On September 29, 1955, Ching Leng took his oath of allegiance and became therefore a full pledge
(sic) Filipino citizen. Believing now that his adopted illegitimate children became Filipino citizens by
virtue of his naturalization, petitioner Ching Leng addressed a communication to the respondent

Commissioner of Immigration requesting that the alien certificate of registration of the said minors be
cancelled. (Bold underscoring supplied)
In Ching Leng, the Court made a definitive ruling on the meaning of "minor child or children" in
Section 15 of the Naturalization Law,[34] as well as the meaning of children "whose parents are
citizens of the Philippines" under the Constitution. The Court categorically ruled that these children
refer to legitimate children only, and not to illegitimate children. Thus, the Court held:
It is claimed that the phrases "minor children" and "minor child", used in these provisions, include
adopted children. The argument is predicated upon the theory that an adopted child is, for all intents
and purposes, a legitimate child. Whenever, the word "children" or "child" is used in statutes, it is
generally understood, however, to refer to legitimate children, unless the context of the law and its
spirit indicate clearly the contrary. Thus, for instance, when the Constitution provides that "those
whose parents are citizens of the Philippines, "and "those whose mothers are citizens of the
Philippines," who shall elect Philippine citizenship "upon reaching the age of majority", are citizens of
the Philippines (Article IV, Section 1, subdivisions 3 and 4), our fundamental law clearly refers to
legitimate children (Chiong Bian vs. De Leon, 46 Off. Gaz., 3652-3654; Serra v. Republic, L-4223,
May 12, 1952).
Similarly, the children alluded to in said section 15 are those begotten in lawful wedlock, when the
adopter, at least is the father. In fact, illegitimate children are under the parental authority of the
mother and follow her nationality, not that of the illegitimate father (U.S. vs. Ong Tianse, 29 Phil. 332,
335-336; Santos Co vs. Govt of the Philippines, 52 Phil. 543, 544; Serra v. Republic, supra; Gallofin
v. Ordoez, 70 Phil. 287; Quimsuan vs. Republic, L-4693, Feb. 16, 1953). Although, adoption gives
"to the adopted person the same rights and duties as if he were a legitimate child of the adopter",
pursuant to said Article 341 of our Civil Code, we have already seen that the rights therein alluded to
are merely those enumerated in Article 264, and do not include the acquisition of the nationality of
the adopter.
Moreover, as used in said section 15 of the Naturalization Law, the term "children" could not possibly
refer to those whose relation to the naturalized person is one created by legal fiction, as, for
instance, by adoption, for, otherwise, the place and time of birth of the child would be immaterial.
The fact that the adopted persons involved in the case at bar are illegitimate children of appellant
Ching Leng does not affect substantially the legal situation before us, for, by legal fiction, they are
now being sought to be given the status of legitimate children of said appellant, despite the
circumstance that the Civil Code of the Philippine does not permit their legitimation. (Bold
underscoring supplied)
Ching Leng, penned by Justice Roberto Concepcion in October 1958, was a unanimous decision of
the Court En Banc. Subsequent Court decisions, including Paa v. Chan[35] and Morano et al. v.
Vivo,[36] have cited the doctrine laid down in Ching Leng that the provision in the 1935 Constitution
stating "those whose fathers are citizens of the Philippines" refers only to legitimate children. When
the 1973 and 1987 Constitutions were drafted, the framers did not attempt to change the intent of
this provision, even as they were presumably aware of the Ching Leng doctrine.

Nevertheless, I believe that it is now time to abandon the Ching Leng doctrine. The inexorable
direction of the law, both international and domestic in the last 100 years, is to eliminate all forms of
discrimination between legitimate and illegitimate children. Where the Constitution does not
distinguish between legitimate and illegitimate children, we should not also distinguish, especially
when private rights are not involved as in questions of citizenship. Abandoning the Ching Leng
doctrine upholds the equal protection clause of the Constitution. Abandoning the Ching Leng
doctrine is also in compliance with our treaty obligation under the Covenant on the Rights of Children
mandating States Parties to eliminate all forms of discrimination based on the status of children,
save of course those distinctions prescribed in the Constitution itself like the reservation of certain
high public offices to natural-born citizens.
Abandoning the Ching Leng doctrine does not mean, however, that an illegitimate child of a Filipino
father and an alien mother automatically becomes a Philippine citizen at birth. We have repeatedly
ruled that an illegitimate child does not enjoy any presumption of blood relation to the alleged father
until filiation or blood relation is proved as provided by law.[37] Article 887 of the Civil Code expressly
provides that "[I]n all cases of illegitimate children, their filiation must be duly proved." The
illegitimate child becomes a Philippine citizen only from the time he establishes his blood relation to
the Filipino father. If the blood relation is established after the birth of the illegitimate child, then the
child is not a natural-born Philippine citizen since an act is required after birth to acquire or perfect
his Philippine citizenship.
Conclusion
In conclusion, private respondent Fernando Poe, Jr. is not a natural-born Philippine citizen since
there is no showing that his alleged Filipino father Allan F. Poe acknowledged him at birth. The
Constitution defines a natural-born citizen as a Philippine citizen "from birth without having to
perform any act to acquire or perfect" his Philippine citizenship. Private respondent Fernando Poe,
Jr. does not meet this citizenship qualification.
Therefore, I vote to grant the petition of Victorino X. Fornier. However, I vote to dismiss the petitions
of Maria Jeanette C. Tecson, Felix B. Desiderio, Jr. and Zoilo Antonio Velez on the ground that their
direct petitions invoking the jurisdiction of the Court under Section 4, paragraph 7, Article VII of the
Constitution are premature, there being no election contest in this case.

C301 Ma v. Fernandez, GR 183133, 26 July 2010, First Division, Perez [J]

G.R. No. 183133

July 26, 2010

BALGAMELO CABILING MA, FELIX CABILING MA, JR., AND VALERIANO CABILING MA,
Petitioners,
vs.
COMMISSIONER ALIPIO F. FERNANDEZ, JR., ASSOCIATE COMMISSIONER ARTHEL B.
CARONOGAN, ASSOCIATE COMMISSIONER JOSE DL. CABOCHAN, ASSOCIATE
COMMISSIONER TEODORO B. DELARMENTE AND ASSOCIATE COMMISSIONER FRANKLIN
Z. LITTAUA, in their capacities as Chairman and Members of the Board of Commissioners
(Bureau of Immigration), and MAT G. CATRAL, Respondents.
DECISION
PEREZ, J.:
Should children born under the 1935 Constitution of a Filipino mother and an alien father, who
executed an affidavit of election of Philippine citizenship and took their oath of allegiance to the
government upon reaching the age of majority, but who failed to immediately file the documents of
election with the nearest civil registry, be considered foreign nationals subject to deportation as
undocumented aliens for failure to obtain alien certificates of registration?
Positioned upon the facts of this case, the question is translated into the inquiry whether or not the
omission negates their rights to Filipino citizenship as children of a Filipino mother, and erase the
years lived and spent as Filipinos.
The resolution of these questions would significantly mark a difference in the lives of herein
petitioners.
The Facts
Balgamelo Cabiling Ma (Balgamelo), Felix Cabiling Ma, Jr. (Felix, Jr.), Valeriano Cabiling Ma
(Valeriano), Lechi Ann Ma (Lechi Ann), Arceli Ma (Arceli), Nicolas Ma (Nicolas), and Isidro Ma
(Isidro) are the children of Felix (Yao Kong) Ma,1 a Taiwanese, and Dolores Sillona Cabiling, a
Filipina.2
Records reveal that petitioners Felix, Jr., Balgamelo and Valeriano were all born under aegis of the
1935 Philippine Constitution in the years 1948, 1951, and 1957, respectively.3
They were all raised in the Philippines and have resided in this country for almost sixty (60) years;
they spent their whole lives, studied and received their primary and secondary education in the
country; they do not speak nor understand the Chinese language, have not set foot in Taiwan, and
do not know any relative of their father; they have not even traveled abroad; and they have already
raised their respective families in the Philippines.4

During their age of minority, they secured from the Bureau of Immigration their Alien Certificates of
Registration (ACRs). 5
Immediately upon reaching the age of twenty-one, they claimed Philippine citizenship in accordance
with Section 1(4), Article IV, of the 1935 Constitution, which provides that "(t)hose whose mothers
are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship" are
citizens of the Philippines. Thus, on 15 August 1969, Felix, Jr. executed his affidavit of election of
Philippine citizenship and took his oath of allegiance before then Judge Jose L. Gonzalez, Municipal
Judge, Surigao, Surigao del Norte.6 On 14 January 1972, Balgamelo did the same before Atty.
Patrocinio C. Filoteo, Notary Public, Surigao City, Surigao del Norte.7 In 1978, Valeriano took his
oath of allegiance before then Judge Salvador C. Sering, City Court of Surigao City, the fact of which
the latter attested to in his Affidavit of 7 March 2005.8
Having taken their oath of allegiance as Philippine citizens, petitioners, however, failed to have the
necessary documents registered in the civil registry as required under Section 1 of Commonwealth
Act No. 625 (An Act Providing the Manner in which the Option to Elect Philippine Citizenship shall be
Declared by a Person whose Mother is a Filipino Citizen). It was only on 27 July 2005 or more than
thirty (30) years after they elected Philippine citizenship that Balgamelo and Felix, Jr. did so. 9 On the
other hand, there is no showing that Valeriano complied with the registration requirement.
Individual certifications10 all dated 3 January 2005 issued by the Office of the City Election Officer,
Commission on Elections, Surigao City, show that all of them are registered voters of Barangay
Washington, Precinct No. 0015A since June 1997, and that records on previous registrations are no
longer available because of the mandatory general registration every ten (10) years. Moreover, aside
from exercising their right of suffrage, Balgamelo is one of the incumbent Barangay Kagawads in
Barangay Washington, Surigao City.11
Records further reveal that Lechi Ann and Arceli were born also in Surigao City in 1953 12 and 1959,13
respectively. The Office of the City Civil Registrar issued a Certification to the effect that the
documents showing that Arceli elected Philippine citizenship on 27 January 1986 were registered in
its Office on 4 February 1986. However, no other supporting documents appear to show that Lechi
Ann initially obtained an ACR nor that she subsequently elected Philippine citizenship upon reaching
the age of majority. Likewise, no document exists that will provide information on the citizenship of
Nicolas and Isidro.
The Complaint
On 16 February 2004, the Bureau of Immigration received the Complaint-Affidavit 14 of a certain Mat
G. Catral (Mr. Catral), alleging that Felix (Yao Kong) Ma and his seven (7) children are undesirable
and overstaying aliens. Mr. Catral, however, did not participate in the proceedings, and the Ma family
could not but believe that the complaint against them was politically motivated because they strongly
supported a candidate in Surigao City in the 2004 National and Local Elections. 15
On 9 November 2004, the Legal Department of the Bureau of Immigration charged them for violation
of Sections 37(a)(7)16 and 45(e)17 of Commonwealth Act No. 613, otherwise known as the Philippine

Immigration Act of 1940, as amended. The Charge Sheet18 docketed as BSI-D.C. No. AFF-04-574
(OC-STF-04-09/23-1416) reads, in part:
That Respondents x x x, all Chinese nationals, failed and continuously failed to present any valid
document to show their respective status in the Philippines. They likewise failed to produce
documents to show their election of Philippines (sic) citizenship, hence, undocumented and
overstaying foreign nationals in the country.
That respondents, being aliens, misrepresent themselves as Philippine citizens in order to evade the
requirements of the immigration laws.
Ruling of the Board of Commissioners, Bureau of Immigration
After Felix Ma and his seven (7) children were afforded the opportunity to refute the allegations, the
Board of Commissioners (Board) of the Bureau of Immigration (BI), composed of the public
respondents, rendered a Judgment dated 2 February 2005 finding that Felix Ma and his children
violated Commonwealth Act No. 613, Sections 37(a)(7) and 45(e) in relation to BI Memorandum
Order Nos. ADD-01-031 and ADD-01-035 dated 6 and 22 August 2001, respectively.19
The Board ruled that since they elected Philippine citizenship after the enactment of Commonwealth
Act No. 625, which was approved on 7 June 1941, they were governed by the following rules and
regulations:
1. Section 1 of Commonwealth Act No. 625, providing that the election of Philippine
citizenship embodied in a statement sworn before any officer authorized to administer oaths
and the oath of allegiance shall be filed with the nearest civil registry; 20 and Commission of
Immigration and Deportation (CID, now Bureau of Immigration [BI]) Circular dated 12 April
1954,21 detailing the procedural requirements in the registration of the election of Philippine
citizenship.
2. Memorandum Order dated 18 August 195622 of the CID, requiring the filing of a petition for
the cancellation of their alien certificate of registration with the CID, in view of their election of
Philippine citizenship;
3. Department of Justice (DOJ) Opinion No. 182, 19 August 1982; and DOJ Guidelines, 27
March 1985, requiring that the records of the proceedings be forwarded to the Ministry (now
the Department) of Justice for final determination and review.23
As regards the documentation of aliens in the Philippines, Administrative Order No. 1-93 of the
Bureau of Immigration24 requires that ACR, E-series, be issued to foreign nationals who apply for
initial registration, finger printing and issuance of an ACR in accordance with the Alien Registration
Act of 1950.25 According to public respondents, any foreign national found in possession of an ACR
other than the E-series shall be considered improperly documented aliens and may be proceeded
against in accordance with the Immigration Act of 1940 or the Alien Registration Act of 1950, as
amended.26

Supposedly for failure to comply with the procedure to prove a valid claim to Philippine citizenship
via election proceedings, public respondents concluded that Felix, Jr. Balgamelo, Arceli, Valeriano
and Lechi Ann are undocumented and/or improperly documented aliens.27
Nicolas and Isidro, on the other hand, did not submit any document to support their claim that they
are Philippine citizens. Neither did they present any evidence to show that they are properly
documented aliens. For these reasons, public respondents likewise deemed them undocumented
and/or improperly documented aliens.28
The dispositive portion29 of the Judgment of 2 February 2005 reads:
1. Subject to the submission of appropriate clearances, summary deportation of Felix (Yao
Kong) Ma, Felix Ma, Jr., Balgamelo Ma, Valeriano Ma, Lechi Ann Ma, Nicolas Ma, Arceli Ma
and Isidro Ma, Taiwanese [Chinese], under C.A. No. 613, Sections 37(a)(7), 45(e) and 38 in
relation to BI M.O. Nos. ADD-01-031 and ADD-01-035 dated 6 and 22 August 2001,
respectively;
2. Issuance of a warrant of deportation against Felix (Yao Kong) Ma, Felix Ma, Jr., Balgamelo
Ma, Valeriano Ma, Lechi Ann Ma, Nicolas Ma, Arceli Ma and Isidro Ma under C.A. No. 613,
Section 37(a);
3. Inclusion of the names of Felix (Yao Kong) Ma, Felix Ma, Jr., Balgamelo Ma, Valeriano Ma,
Lechi Ann Ma, Nicolas Ma, Arceli Ma and Isidro Ma in the Immigration Blacklist; and
4. Exclusion from the Philippines of Felix (Yao Kong) Ma, Felix Ma, Jr., Balgamelo Ma,
Valeriano Ma, Lechi Ann Ma, Nicolas Ma, Arceli Ma and Isidro Ma under C.A. No. 613,
Section 29(a)(15). (Emphasis supplied.)
In its Resolution30 of 8 April 2005, public respondents partially reconsidered their Judgment of 2
February 2005. They were convinced that Arceli is an immigrant under Commonwealth Act No. 613,
Section 13(g).31 However, they denied the Motion for Reconsideration with respect to Felix Ma and
the rest of his children.32
Ruling of the Court of Appeals
On 3 May 2005, only Balgamelo, Felix, Jr., and Valeriano filed the Petition for Certiorari under Rule
65 of the 1997 Rules of Civil Procedure before the Court of Appeals, which was docketed as CAG.R. SP No. 89532. They sought the nullification of the issuances of the public respondents, to wit:
(1) the Judgment dated 2 February 2005, ordering the summary deportation of the petitioners,
issuance of a warrant of deportation against them, inclusion of their names in the Immigration
Blacklist, and exclusion of the petitioners from the Philippines; and (2) the Resolution dated 8 April
2005, denying the petitioners Motion for Reconsideration.
On 29 August 2007, the Court of Appeals dismissed the petition 33 after finding that the petitioners
"failed to comply with the exacting standards of the law providing for the procedure and conditions
for their continued stay in the Philippines either as aliens or as its nationals." 34

On 29 May 2008, it issued a Resolution35 denying the petitioners Motion for Reconsideration dated
20 September 2007.
To reiterate, a persons continued and uninterrupted stay in the Philippines, his being a registered
voter or an elected public official cannot vest in him Philippine citizenship as the law specifically lays
down the requirements for acquisition of Philippine citizenship by election. The prescribed procedure
in electing Philippine citizenship is certainly not a tedious and painstaking process. All that is
required of the elector is to execute an affidavit of election of Philippine citizenship and, thereafter,
file the same with the nearest civil registry. The constitutional mandate concerning citizenship must
be adhered to strictly. Philippine citizenship can never be treated like a commodity that can be
claimed when needed and suppressed when convenient. One who is privileged to elect Philippine
citizenship has only an inchoate right to such citizenship. As such, he should avail of the right with
fervor, enthusiasm and promptitude.36
Our Ruling
The 1935 Constitution declares as citizens of the Philippines those whose mothers are citizens of
the Philippines and elect Philippine citizenship upon reaching the age of majority. The mandate
states:
Section 1. The following are citizens of the Philippines:
(1) xxx;
xxxx
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age
of majority, elect Philippine citizenship.37
In 1941, Commonwealth Act No. 625 was enacted. It laid down the manner of electing Philippine
citizenship, to wit:
Section 1. The option to elect Philippine citizenship in accordance with subsection (4), Section 1,
Article IV, of the Constitution shall be expressed in a statement to be signed and sworn to by the
party concerned before any officer authorized to administer oaths, and shall be filed with the nearest
civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to
the Constitution and the Government of the Philippines.
The statutory formalities of electing Philippine citizenship are: (1) a statement of election under oath;
(2) an oath of allegiance to the Constitution and Government of the Philippines; and (3) registration
of the statement of election and of the oath with the nearest civil registry.
In Re:Application for Admission to the Philippine Bar, Vicente D. Ching, 38 we determined the meaning
of the period of election described by phrase "upon reaching the age of majority." Our references
were the Civil Code of the Philippines, the opinions of the Secretary of Justice, and the case of
Cueco v. Secretary of Justice.39 We pronounced:

x x x [T]he 1935 Constitution and C.A. No. 625 did not prescribe a time period within which the
election of Philippine citizenship should be made. The 1935 Charter only provides that the election
should be made "upon reaching the age of majority." The age of majority then commenced upon
reaching twenty-one (21) years.40 In the opinions of the Secretary of Justice on cases involving the
validity of election of Philippine citizenship, this dilemma was resolved by basing the time period on
the decisions of this Court prior to the effectivity of the 1935 Constitution. In these decisions, the
proper period for electing Philippine citizenship was, in turn, based on the pronouncements of the
Department of State of the United States Government to the effect that the election should be made
within a reasonable time after attaining the age of majority.41 The phrase "reasonable time" has been
interpreted to mean that the elections should be made within three (3) years from reaching the age
of majority.42 However, we held in Cue[n]co vs. Secretary of Justice, 43 that the three (3) year period is
not an inflexible rule. We said:
It is true that this clause has been construed to mean a reasonable time after reaching the age of
majority, and that the Secretary of Justice has ruled that three (3) years is the reasonable time to
elect Philippine citizenship under the constitutional provision adverted to above, which period may
be extended under certain circumstances, as when the person concerned has always considered
himself a Filipino.
However, we cautioned in Cue[n]co that the extension of the option to elect Philippine citizenship is
not indefinite.
Regardless of the foregoing, petitioner was born on February 16, 1923. He became of age on
February 16, 1944. His election of citizenship was made on May 15, 1951, when he was over
twenty-eight (28) years of age, or over seven (7) years after he had reached the age of majority. It is
clear that said election has not been made "upon reaching the age of majority.44
We reiterated the above ruling in Go, Sr. v. Ramos,45 a case in which we adopted the findings of the
appellate court that the father of the petitioner, whose citizenship was in question, failed to elect
Philippine citizenship within the reasonable period of three (3) years upon reaching the age of
majority; and that "the belated submission to the local civil registry of the affidavit of election and
oath of allegiance x x x was defective because the affidavit of election was executed after the oath of
allegiance, and the delay of several years before their filing with the proper office was not
satisfactorily explained."46
In both cases, we ruled against the petitioners because they belatedly complied with all the
requirements. The acts of election and their registration with the nearest civil registry were all done
beyond the reasonable period of three years upon reaching the age of majority.
The instant case presents a different factual setting. Petitioners complied with the first and second
requirements upon reaching the age of majority. It was only the registration of the documents of
election with the civil registry that was belatedly done.
We rule that under the facts peculiar to the petitioners, the right to elect Philippine citizenship has not
been lost and they should be allowed to complete the statutory requirements for such election.

Such conclusion, contrary to the finding of the Court of Appeals, is in line with our decisions in In
Re:Florencio Mallare,47 Co v. Electoral Tribunal of the House of Representatives,48 and
Re:Application for Admission to the Philippine Bar, Vicente D. Ching. 49
In Mallare, Estebans exercise of the right of suffrage when he came of age was deemed to be a
positive act of election of Philippine citizenship.50 The Court of Appeals, however, said that the case
cannot support herein petitioners cause, pointing out that, unlike petitioner, Esteban is a natural
child of a Filipina, hence, no other act would be necessary to confer on him the rights and privileges
of a Filipino citizen,51 and that Esteban was born in 192952 prior to the adoption of the 1935
Constitution and the enactment of Commonwealth Act No. 625.53
In the Co case, Jose Ong, Jr. did more than exercise his right of suffrage, as he established his life
here in the Philippines.54 Again, such circumstance, while similar to that of herein petitioners, was
not appreciated because it was ruled that any election of Philippine citizenship on the part of Ong
would have resulted in absurdity, because the law itself had already elected Philippine citizenship for
him55 as, apparently, while he was still a minor, a certificate of naturalization was issued to his
father.56
In Ching, it may be recalled that we denied his application for admission to the Philippine Bar
because, in his case, all the requirements, to wit: (1) a statement of election under oath; (2) an oath
of allegiance to the Constitution and Government of the Philippines; and (3) registration of the
statement of election and of the oath with the nearest civil registry were complied with only fourteen
(14) years after he reached the age of majority. Ching offered no reason for the late election of
Philippine citizenship.57
In all, the Court of Appeals found the petitioners argument of good faith and "informal election"
unacceptable and held:
Their reliance in the ruling contained in Re:Application for Admission to the Philippine Bar, Vicente D.
Ching, [which was decided on 1 October 1999], is obviously flawed. It bears emphasis that the
Supreme Court, in said case, did not adopt the doctrine laid down in In Re: Florencio Mallare. On the
contrary, the Supreme Court was emphatic in pronouncing that "the special circumstances invoked
by Ching, i.e., his continuous and uninterrupted stay in the Philippines and his being a certified
public accountant, a registered voter and a former elected public official, cannot vest in him
Philippine citizenship as the law specifically lays down the requirements for acquisition of Philippine
citizenship by election.58
We are not prepared to state that the mere exercise of suffrage, being elected public official,
continuous and uninterrupted stay in the Philippines, and other similar acts showing exercise of
Philippine citizenship can take the place of election of citizenship. What we now say is that where, as
in petitioners case, the election of citizenship has in fact been done and documented within the
constitutional and statutory timeframe, the registration of the documents of election beyond the
frame should be allowed if in the meanwhile positive acts of citizenship have publicly, consistently,
and continuously been done. The actual exercise of Philippine citizenship, for over half a century by
the herein petitioners, is actual notice to the Philippine public which is equivalent to formal
registration of the election of Philippine citizenship.

For what purpose is registration?

In Pascua v. Court of Appeals,59 we elucidated the principles of civil law on registration:
To register is to record or annotate. American and Spanish authorities are unanimous on the
meaning of the term "to register" as "to enter in a register; to record formally and distinctly; to enroll;
to enter in a list."60 In general, registration refers to any entry made in the books of the registry,
including both registration in its ordinary and strict sense, and cancellation, annotation, and even the
marginal notes. In strict acceptation, it pertains to the entry made in the registry which records
solemnly and permanently the right of ownership and other real rights. 61 Simply stated, registration is
made for the purpose of notification.62
Actual knowledge may even have the effect of registration as to the person who has knowledge
thereof. Thus, "[i]ts purpose is to give notice thereof to all persons (and it) operates as a notice of the
deed, contract, or instrument to others."63 As pertinent is the holding that registration "neither adds to
its validity nor converts an invalid instrument into a valid one between the parties." 64 It lays emphasis
on the validity of an unregistered document.
Comparable jurisprudence may be consulted.
In a contract of partnership, we said that the purpose of registration is to give notice to third parties;
that failure to register the contract does not affect the liability of the partnership and of the partners to
third persons; and that neither does such failure affect the partnerships juridical personality.65 An
unregistered contract of partnership is valid as among the partners, so long as it has the essential
requisites, because the main purpose of registration is to give notice to third parties, and it can be
assumed that the members themselves knew of the contents of their contract. 66 The non-registration
of a deed of donation does not also affect its validity. Registration is not a requirement for the validity
of the contract as between the parties, for the effect of registration serves chiefly to bind third
persons.67
Likewise relevant is the pronouncement that registration is not a mode of acquiring a right. In an
analogous case involving an unrecorded deed of sale, we reiterated the settled rule that registration
is not a mode of acquiring ownership.
Registration does not confer ownership. It is not a mode of acquiring dominion, but only a means of
confirming the fact of its existence with notice to the world at large.68
Registration, then, is the confirmation of the existence of a fact. In the instant case, registration is the
confirmation of election as such election. It is not the registration of the act of election, although a
valid requirement under Commonwealth Act No. 625, that will confer Philippine citizenship on the
petitioners. It is only a means of confirming the fact that citizenship has been claimed.
Indeed, we even allow the late registration of the fact of birth and of marriage. 69 Thus, has it been
admitted through existing rules that the late registration of the fact of birth of a child does not erase
the fact of birth. Also, the fact of marriage cannot be declared void solely because of the failure to
have the marriage certificate registered with the designated government agency.

Notably, the petitioners timely took their oath of allegiance to the Philippines. This was a serious
undertaking. It was commitment and fidelity to the state coupled with a pledge "to renounce
absolutely and forever all allegiance" to any other state. This was unqualified acceptance of their
identity as a Filipino and the complete disavowal of any other nationality.
Petitioners have passed decades of their lives in the Philippines as Filipinos. Their present status
having been formed by their past, petitioners can no longer have any national identity except that
which they chose upon reaching the age of reason.
Corollary to this fact, we cannot agree with the view of the Court of Appeals that since the ACR
presented by the petitioners are no longer valid on account of the new requirement to present an Eseries ACR, they are deemed not properly documented. 70 On the contrary, petitioners should not be
expected to secure E-series ACR because it would be inconsistent with the election of citizenship
and its constructive registration through their acts made public, among others, their exercise of
suffrage, election as public official, and continued and uninterrupted stay in the Philippines since
birth. The failure to register as aliens is, obviously, consistent with petitioners election of Philippine
citizenship.
The leanings towards recognition of the citizenship of children of Filipino mothers have been
indicated not alone by the jurisprudence that liberalized the requirement on time of election, and
recognized positive acts of Philippine citizenship.
The favor that is given to such children is likewise evident in the evolution of the constitutional
provision on Philippine citizenship.
Thus, while the 1935 Constitution requires that children of Filipino mothers elect Philippine
citizenship upon reaching their age of majority,71 upon the effectivity of the 1973 Constitution, they
automatically become Filipinos72 and need not elect Philippine citizenship upon reaching the age of
majority. The 1973 provision reads:
Section 1. The following are citizens of the Philippines:
(1) xxx.
(2) Those whose fathers and mothers are citizens of the Philippines.73
Better than the relaxation of the requirement, the 1987 Constitution now classifies them as naturalborn citizens upon election of Philippine citizenship. Thus, Sec. 2, Article IV thereof provides:
Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship. Those who elect
Philippine citizenship in accordance with paragraph (3), Section 1 hereof 74 shall be deemed naturalborn citizens. (Emphasis supplied.)
The constitutional bias is reflected in the deliberations of the 1986 Constitutional Commission.

MR. CONCEPCION. x x x.
xxxx
x x x x As regards those born of Filipino mothers, the 1935 Constitution merely gave them the option
to choose Philippine citizenship upon reaching the age of majority, even, apparently, if the father
were an alien or unknown. Upon the other hand, under the 1973 Constitution, children of mixed
marriages involving an alien father and a Filipino mother are Filipino citizens, thus liberalizing the
counterpart provision in the 1935 Constitution by dispensing with the need to make a declaration of
intention upon reaching the age of majority. I understand that the committee would further liberalize
this provision of the 1935 Constitution. The Committee seemingly proposes to further liberalize the
policy of the 1935 Constitution by making those who became citizens of the Philippines through a
declaration of intention to choose their mothers citizenship upon reaching the majority age by
declaring that such children are natural-born citizens of the Philippines. 75
xxxx
xxx Why does the draft resolution adopt the provision of the 1973 Constitution and not that of the
1935? 76
xxxx
FR. BERNAS. x x x Precisely, the reason behind the modification of the 1935 rule on citizenship was
a recognition of the fact that it reflected a certain male chauvinism, and it was for the purpose of
remedying that this proposed provision was put in. The idea was that we should not penalize the
mother of a child simply because she fell in love with a foreigner. Now, the question on what
citizenship the child would prefer arises. We really have no way of guessing the preference of the
infant. But if we recognize the right of the child to choose, then let him choose when he reaches the
age of majority. I think dual citizenship is just a reality imposed on us because we have no control of
the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or
not she is considered a citizen of another country is something completely beyond our control. But
certainly it is within the jurisdiction of the Philippine government to require that [at] a certain point, a
child be made to choose. But I do not think we should penalize the child before he is even able to
choose. I would, therefore, support the retention of the modification made in 1973 of the male
chauvinistic rule of the 1935 Constitution.77
xxxx
MR. REGALADO. With respect to a child who became a Filipino citizen by election, which the
Committee is now planning to consider a natural-born citizen, he will be so the moment he opts for
Philippine citizenship. Did the Committee take into account the fact that at the time of birth, all he
had was just an inchoate right to choose Philippine citizenship, and yet, by subsequently choosing
Philippine citizenship, it would appear that his choice retroacted to the date of his birth so much so
that under the Gentlemans proposed amendment, he would be a natural-born citizen? 78

FR. BERNAS. But the difference between him and the natural-born who lost his status is that the
natural-born who lost his status, lost it voluntarily; whereas, this individual in the situation
contemplated in Section 1, paragraph 3 never had the chance to choose. 79
xxxx
[on the period within which to elect Philippine citizenship]
MR. RODRIGO. [T]his provision becomes very, very important because his election of Philippine
citizenship makes him not only a Filipino citizen but a natural-born Filipino citizen, entitling him to run
for Congress, to be a Justice of the Supreme Court x x x.80
We are guided by this evolvement from election of Philippine citizenship upon reaching the age of
majority under the 1935 Philippine Constitution to dispensing with the election requirement under the
1973 Philippine Constitution to express classification of these children as natural-born citizens under
the 1987 Constitution towards the conclusion that the omission of the 1941 statutory requirement of
registration of the documents of election should not result in the obliteration of the right to Philippine
citizenship.
1avvphi1

Having a Filipino mother is permanent. It is the basis of the right of the petitioners to elect Philippine
citizenship. Petitioners elected Philippine citizenship in form and substance. The failure to register
the election in the civil registry should not defeat the election and resultingly negate the permanent
fact that they have a Filipino mother. The lacking requirements may still be complied with subject to
the imposition of appropriate administrative penalties, if any. The documents they submitted
supporting their allegations that they have already registered with the civil registry, although
belatedly, should be examined for validation purposes by the appropriate agency, in this case, the
Bureau of Immigration. Other requirements embodied in the administrative orders and other
issuances of the Bureau of Immigration and the Department of Justice shall be complied with within
a reasonable time.
WHEREFORE, the Decision dated 29 August 2007, and the Resolution dated 29 May 2008 of the
Court of Appeals in CA-G.R. SP No. 89532 affirming the Judgment dated 2 February 2005, and the
Resolution dated 8 April 2005 of the Bureau of Immigration in BSI-D.C. No. AFF-04-574 OC-STF-0409/23-1416 are hereby SET ASIDE with respect to petitioners Balgamelo Cabiling Ma, Felix Cabiling
Ma, Jr., and Valeriano Cabiling Ma. Petitioners are given ninety (90) days from notice within which to
COMPLY with the requirements of the Bureau of Immigration embodied in its Judgment of 2
February 2005. The Bureau of Immigration shall ENSURE that all requirements, including the
payment of their financial obligations to the state, if any, have been complied with subject to the
imposition of appropriate administrative fines; REVIEW the documents submitted by the petitioners;
and ACT thereon in accordance with the decision of this Court.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice

C401 Torres v. Tan Chim, GR L-46593, 3 February 1940, En Banc, Laurel [J]

G.R. No. L-46593

February 3, 1940

RAMON TORRES, in his capacity as Secretary of labor, and JOSE GALLOFIN, as Acting
Collector of Customs of Cebu, petitioners,
vs.
TAN CHIM, respondent.
Office of the Solicitor-General Ozaeta for petitioners.
Joaquin Natividad for respondent.
LAUREL, J.:
Tan Chim, the petitioner here, arrived at the port of Cebu on January 18, 1937, and sought
admission as a minor son of Alejandro Tan Bangco. After hearing, the Board of Special Inquiry
decided to deny him entry on the ground that the status of his father had not been passed upon by
the Secretary of Labor. A petition for habeas corpus was filed with the Court of First Instance of Cebu
(civil case No. 308), which ruled that Alejandro Tan Bangco was a Filipino citizen jus soli, having
been born in Manila on February 27, 1893. On appeal, the Court of Appeals, by decision of February
27, 1893, upheld the conclusion of the lower court and declined to overrule the doctrine in Roa vs.
Collector of Customs, 23 Phil., 315, in the following commendable language:.
But the appellant impugns the soundness of the doctrine laid down in the foregoing decisions
and urges us to overrule them. We do not think it necessary to enter upon a discussion of the
alleged misapplication of the law or erroneous conclusions reached in the cases referred to .
It is our understanding that the decisions criticized are conclusive and binding upon this
Court and all other courts inferior to the Supreme Court as expressing the law on the
subjects treated therein. The rule of stare decisis and "a becoming modesty" which demands
of inferior courts 'conscious realization of the position that they occupy in the interrelation
and operation of the integrated judicial system of the nation," compels us to respect and
follow these decisions, while unreversed, regardless of the divergencies (The People of the
Philippine Islands and the Hongkong and Shanghai Banking Corporation, petitioners, vs.
Jose O. Vera, Judge ad interim of the Court of First Instance of Manila, and Mariano Cu
Unjieng, respondents, G.R. No. 45685, November 16, 1937). This should be our norm of
conduct at least where the decisions sought to be disregarded are not manifestly wrong,
unjust or contrary to law, and where a departure therefrom might only result in "going from
doubtful rule to another."
A comparison between this case and that of Roa v. Collector of Customs, supra, will show the
following similarities and dissimilarities: Similar (1) in that Roa was born in the Philippines in 1889,
whereas Alejandro Tan Bangco (father of the petitioner) was born here in 1893, both before the
advent of American sovereignty; (2) the fathers of both Roa and Tan Bangco were of Chinese
nationality and their mothers, Filipino; (3) at the time of the ratification of the treaty of peace between
the United States and Spain, both were minor residents of the Philippines; and (4) both , in their
boyhood, went to China for the purpose of studying there, returning thereafter to the Philippines. The

dissimilarities are: (1) Roa returned to the Islands after the attaining the age of maturity, whereas Tan
Bangco returned to this country when still a minor; and (2) the father of Roa was domiciled in the
Philippines until the year 1895 when he went to China and never returned, dying therein 1900,
whereas, in the present case the record is silent on this point. The similarities are very close and the
dissimilarities are in favor of Alejandro Tan Bangco. The Solicitor-General does not dispute the
analogy and evidently yields to the proposition that if the doctrine in the Roa case, which has been
followed in many subsequent cases, principally in Vao vs. Collector of Customs (23 Phil., 480);
United States vs. Ang (36 Phil., 858); United States vs. Lim Bin (36 Phil., 927); Go Julian vs.
Government of the Philippine Islands (45 Phil., 290); Haw. vs. Collector of Customs, (59 Phil., 612),
is to be adhered to, and then Alejandro Tan Bangco is a Filipino citizen, and consequently, the
petitioner, who is his minor child, is also a Filipino.
It is urged upon us by the Solicitor-General that we reexamine and reverse the doctrine laid down in
Roa vs. Collector of Customs, supra, because the law, we are now informed, had been misconstrued
and misapplied by this court in that case. A suggestion of this kind should be sympathetically
received but for the fact that the principle of territoriality or jus soli adopted in Roa Collector of
Customs, supra, does not have to be set aside by this Court for the reason that the principle is no
longer pre-dominating in this jurisdiction after taking effect of the Constitution of the Philippines,
which has mainly adopted the contrary principle of jus sanguinis. If, however, what is suggested is
that the case at bar because of the embodiment of a new policy on citizenship in the Constitution, we
are of the opinion that this cannot be done unless we give a retroactive effect to the Constitution. we
hold that the present case is still governed by, and should be decided on the authority of Roa vs.
Collector of Customs, supra, for the following reasons:.
1. As already observed, the present case is similar to Roa vs. Collector of Customs, supra, in that
the facts determinative of citizenship in both relate to events which had taken place before the
advent of American sovereignty. We cannot reverse the doctrine in Roa vs. Collector of Custom,
supra, if convert Roa into an alien, after our final pronouncement in 1912 that he was a Filipino. If we
depart from the rule there established notwithstanding the almost-exact analogy between the two
cases, nothing short of legal anachronism would follow, and we should avoid this result.
2. While we profess no "idolatrous reverence for precedents, (Philippine Trust Co. vs. Mitchell, 59
Phil., 30), we should not overlook the fact that the rule laid down in the Roa case had been adhered
to and accepted for more than 20 years before the adoption of our Constitution; not only this Court
but also inferior courts had consistently and invariably followed it; the executive and administrative
agencies of the Government had theretofore abided by it; and the general public had acquiesced in
it. Withal, our decisions should not be, as to a given period of time, upon the same or similar facts
and under the same or similar circumstances, as fluctuating as to engender the phenomenon
described by Mr. Justice Thompson, of the Supreme Court of Virginia as ignis fatuus. (Perkins v.
Clemente et als. 1 Pat and (Va.) 153.)
3. When in Roa vs. Collector of Customs we declared the applicant therein to be a citizen of the
Philippines, that declaration was a statement of a general principle applicable not only to Tranquilino
Roa individually but to all those who were in the same situation, that is to say, to all persons born in
the Philippines before the ratification of the treaty of peace between the United States and Spain, of
Chinese father and Filipino mother; residents of the Philippines at the time mentioned in the treaty of

peace, although in their minority; thereafter, going to China for the purpose of studying, and returning
to the Philippines to live here. This was the rule at the time of the adoption of our Constitution. With
it, the bench and the bar were familiar. The members of the Constitutional Convention were also
aware of this rule, and in abrogating the doctrine laid down in the Roa case, by making the jus
sanguinis the predominating principle in the determination of Philippine citizenship, they did not
intend to exclude those who, in the situation of Tranquilino Roa, were citizens of the Philippines by
judicial declaration at the time of the adoption of the constitution. This is apparent from the following
Convention when Article IV of the Constitution was discussed:
Delegate Aruego. Mr. President may I just have one question? May I ask Mr. Roxas if,
under this provision that have , all children born in the Philippines before the adoption of the
Constitution was included?
Delegate Roxas. No sir: that is to say, if they are citizens in accordance with the present
law, they will be citizens.
Delegate Aruego. But as I said they are citizens by judicial decisions..
Delegate Roxas. If they are citizens now by judicial decisions, they will be citizens.
Delegate Aruego. I should like to make it clear that we are voting on the proposition so
that it will include all those born in the Philippines, regardless of their parentage, because I
have heard some objections here to the incorporation in toto of the doctrine of jus soli. There
are so many who do not want to include, as citizens, children of Chinese parents, but they
are included in the proposition we are voting upon . . . .
I should like to find out from the gentlemen from Capis if that proposition would make filipino
citizens of children of Chinese parents born last year or this year..
Delegate Roxas. No, because by the laws of the Philippine Islands, they are not Filipino
citizens now. (Record of the Proceedings of the Constitutional Convention, Session of
November 26, 1934.)
4. In the case of Commonwealth of the Philippines vs. Gloria Baldello, G. R. No. 45375, promulgated
April 12, 1939, we held that a Filipino woman, abandoned by her husband who was a native of
Mexico but who was neither a Mexican not American citizen, retained her Filipino citizenship, and in
arriving at this conclusion, we said that, "our opinion finds corroboration in the rule indicated in Roa
vs. Collector of Customs (23 Phil., 315, 324-325), which is now a legal provision embodied in
paragraph 7, Article 1, of Commonwealth Act No. 63, to the effect that a Filipino woman does not
lose her citizenship by marrying a foreigner belonging to a nation the laws of which do not allow her
to acquire the husband's nationality." It should be noted that in this Baldello case we relied however
indirectly on Roa vs. Collector of Customs, supra and cited Commonwealth Act No. 63, which Act is
but a partial expression of the modern tendency in the United States to accord distinct personality to
married woman providing that the marriage of an American woman to a foreigner does not operate
loss of American citizenship. (Vide Act of Congress of September 22, 1922, 42 U. S. St.-at-L. p.

1022, ch. 411, sec. 3, 8 U.S. C. A. sec. 9; Act of Congress of March, 1931, 46 U.S. St.-at-L. p. 1511,
ch. 442, sec. 4.)
In Yu Ching Po vs. Gallofin, R.G. No. 46795, promulgated on October 6, 1939, we held that a person
born in the Philippines of a Filipino-mestizo father and a mestiza-Chinese mother, notwithstanding
vagueness in point of paternity and maternity, because according to our decision, "no dicen si es hijo
de padre filipino y de madre china, o si lo es de padre chino y de madre filipina", is a Filipino citizen,
for the reason that under Article 17, paragraph 1 of the Civil Code, which was in force in that year, he
was a Spanish subject, which nationality he conserved.
Our attention has been called to the case of Paz Chua vs. Secretary of Labor, R.G. No. 46451,
promulgated September 30, 1939, where we affirmed the decision of the Court of First Instance of
Manila denying the writ of habeas corpus and holding that the applicants therein were not entitled to
enter and reside in the Philippines on the basis of Philippine citizenship. Perusal of our decision in
that case will show that the factual and legal environment there was wholly different from that in the
case at bar, as may be seen from the concluding paragraph of our decision in that case:
Siendo Chua Uang de padres chinos y teniendo la misma nacionalidad que estos por ser
entonces menor de edad, es indudable que cuando fue a China a la edad de 13 anos, que
debio haber sido en 1927, ella continuaba siendo cuidadana China (Articulo 2, parrafo, 2,
Capitulo II, de las Revised Nationality Laws of China, editada por Flournoy-Hudson,
publicada por Carnegie Endowment for International Peace, citada en la pagina 9 del
alegato del Procurador General.) Cuando contrajo matrimonio cuatro anos despues con Yao
Tian, otro ciodadano de la Republica de China, ella en el supuesto de que tenia nacionalidad
distinta, siguio la de su esposo, a tenor del parrafo 1 de la citada compilacion de leyes de
China. Chua Uang no puede invocar la nacionalidad filipina por solo hecho de haber nacido
el el pais porque no le alcanzan las dispociones del articulo 2 de la ley Jones, Ley del
Congreso de los Estados Unidos del 29 de agosto de 1916, porque no era subdita espanola
el 11 de abril de 1899.
We have not failed to reflect on the far-reaching consequences of our decision in this case, but
considering the fact that the mother of Alejandro Tan Bangco, who is the father of the herein
applicant, is a Filipina, and, under our Constitution, Alejandro Tan Bangco would have the option,
upon reaching majority, to adopt Filipino citizenship (par. 4, sec. 1, Art. IV, Constitution); considering
the benign policy of giving greater political recognition to women, to the extent that in United States
marriage of an American woman to a foreigner does not operate loss of her citizenship; and in view
of Commonwealth Act No. 63, which is indicative of this political recognition, however partial,
accorded to Filipino women; considering further the limited number of people who would be
benefited by the application of the doctrine as qualified in Roa vs. Collector of Customs; and the
reason at the bottom of Commonwealth vs. Gloria Baldello, and Yu Ching Po vs. Jose Galoffin,
supra, we are of the opinion and so hold that the applicant, being a minor child of Alejandro Tan
Bangco who was a Filipino citizen at the time of the adoption of the Constitution, is a Filipino citizen.
The judgment of the Court of Appeals is affirmed, without pronouncement regarding costs. So
ordered.

Avancea, C.J., Diaz and Concepcion, JJ., concur.

Separate Opinions

VILLA-REAL, M., concurrente en el resultado:

Al cesar la guerra que hubo entre los Estados Unidos de America y Espaa, estas dos naciones
celebraron en 10 de diciembre de 1898 un tratado de paz, que se llamo "Tratado de Paris," en cuyo
articulo IX, parrafo 2., se provee que "Los derechosd civiles y la condicion politica de los habitantes
naturales de los territorios aqui cedidos a los Estados Unidos se determinaran por el Congreso." De
acuerdo con dicho convenio, el Congreso de los Estados Unidos, por Ley de 1. de julio de 1902,
denominada "Ley de Filipinas," dispuso en su articulo 4 que "Todos los habitantes de las Islas
Filipinas que residan en ellas y que el once de abril de mil ochocientos noventa y nueve eran
subditos espaoles residentes en dicha Islas, y sus hijos nacidos con posterioridad a aquella fecha,
seran considerados y tenidos como ciudadanos de las Islas Filipinas y como tales con derecho a la
proteccion de los Estados Unidos exceptuandose aquellos que hayan elegido conservar su lealtad a
la Corona de Espaa, de acuerdo con las disposiciones del Tratado de Paz entre los Estados
Unidos y Espaa firmado en Paris el diez de diciembre de mil ochocientos noventa y ocho."
Surge ahora la cuestion de si Alejandro Tan Bangco, padre del aqui recurrido, Tan Chim, era subdito
espaol el 11 de abril de 1899. En 27 de febrero de 1893, en que nacio en Manila, Islas Filipinas, el
referido Alejandro Tan Banco, imperaban en ellas la soberania espaola y sus leyes. En dicho ao
1893 ya estaba en vigor el Codigo Civil, habiendose extendido su vigencia a estas Islas por real
decreto de 1. de julio de 1889. El articulo 17, parrafo 1., del citado Codigo, dispone que son
espaoles "las personas nacidas en territorio espaol;" pero en el parrafo 2. de su articulo 18
impone la condicion de que "Para que los nacidos de padres extranjeros en territorio espaol
puedan gozar del beneficio que les otorga el numero 1. del articulo 17, sera requisito indispensable
que los padres manifiesta, en la manera y ante los funcionarios expresados en el articulo 19, que
optan, a nombre de sus hijos, por la nacionalidad espaola, renunciado a toda otra." El referido
articulo 19 del mismo Codigo estatuye en su parrafo 2. que "Los que se hallen en el Reino haran
esta manifestacion ante el encargado del Registro civil del pueblo en que residieron; los que residan
en el extranjero, ante uno de los Agentes consulares o diplomaticos del Gobierno espaol, y los que
se encuentren en un pais en que el Gobierno no tenga ningun Agente, dirigiendose al Ministro de
Estado en Espaa." No habiendose establecido en Filipinas el Registro civil, el padre dee Alejandro
Tan Bangco no podia cumplir con el requisito exigido en el parrafo 2. del articulo 18 arriba
mencionado para que su hijo, nacido en territorio espaol, adquiriese la ciudadania espaola.
Tampoco pudo haberlo hecho el mismo Alejandro Tan Banco, de cuerdo con el parrafo 1. del citado
articulo 19, que dispone que "Los hijos de un extranjero nacidos en los dominios espaoles,
deberan manifestar dentro del ao siguiente a su mayor edad o emancipacion, si quieren gozar de
la calidad de espaoles que les concede el art. 17"; puesto que, en primer lugar, no existia, como ya
hemos dicho, el Registro civil, y, en segundo lugar, antes de que entrara en vigor la Ley de 1. de
julio de 1902, que determina la condicion politica de los habitantes naturales de estas Islas,
derogando implicitamente las disposiciones del Codigo Civil sobre la materia, el citado padre del

recurrido era menor de edad y no podia cumplir los mencionados requisitos. La manifestacion ante
el encargado del Registro civil, exigida en el citado parrafo 2. del articulo 18, en relacion con el
articulo 19, del Codigo Civil, siendo indispensable, y no habiendose establecido aqui el referido
Registro civil, el incoso 1. del articulo 17 del propio Codigo no tuvo efectividad en cuanto a
extranjeros nacidos en estas Islas durante el regimen espaol.
La disposicion 1.a de las transitorias del Codigo Civil dispone que "Se regiran por la legislacion
anterior al Codigo los derechos nacidos, segun ella, de hechos realizados bajo su regimen, aunque
el Codigo los regule de otro modo o no los reconozca. Pero si el derecho apareciere declarado por
primera vez en el Codigo, tendra efecto desde luego, aunque el hecho que lo origine se verificara
bajo la legislacion anterior, siempre que no perjudique a otro derecho adquirido, de igual origen." El
nacimiento de Alejandro Tan Bangco en 1893, habiendo ocurrido bajo el regimen del Codigo Civil,
no puede aplicarse a el a legislacion anterior, pues esta, segun dicha disposicion transitoria, solo
regia los derechos nacidos de hechos realizados bajo su regimen; por consiguiente, ni bajo la
legislacion anterior pudo el tantas veces mencionado Alejandro Tan Bangco adquirir la nacionalidad
espaola.
No habiendo Alejandro Tan Bangco adquirido la nacionalidad espaola por su mero nacimiento en
territorio espaol, no era subdito espaol el 11 de abril de 1899, y, por consiguiente, su hijo, el aqui
recurrido, Tan Chim, no se hizo subdito filipino al entrar en vigor el articulo 4. de la Ley del
Congreso de 1. de julio de 1902 antes citado, y no lo era cuando llego al puerto de Cebu el 18 de
enero de 1937.
Esta Corte, sin embargo, en una larga serie de decisiones, siendo la mas importante de las cuales
la recaida en el asunto de Roa contra Administrador Insular de Aduanas (23 Jur. Fil., 321), citada
con aprobacion en otra decision posterior, recaida en el asunto de Haw contra Administrador de
Aduanas (59 Jur. Fil., 646), aplicando la teoria de "jus soli," ha sentado invariablemente la doctrina
de que el mero nacimiento de un extranjero en las Islas Filipinas antes del establecimiento del
Commonwealth le hacia ciudadano filipino. Esta doctrina ha sido por largo tiempo la regla por la cual
se han guiado los extranjeros, sobre todo los chinos, al establecerse en estas Islas y dedicarse al
comercio, a la industria y a la agricultura, contribuyendo con ello, en no poco, al desarrollo de las
tres fuentes principales de la riqueza nacional. Teniendo en cuenta estos beneficios, y el espiritu
liberal que informa la reciente legislacion sobre naturalizacion, haciendo mas facil y expedita la
adquisicion de la nacionalidad filipina por extranjeros que pueden contribuir al desarrollo cultural y
material del pais, y no existiendo ninguna razon de orden social, politico o moral que aconseje y
justifique la alteracion de la doctrina, no creemos necesario hacerlo ahora. Creemos con el sabio
jurista americano Cardozo que "Stare decisis is at least the every day working rule of our law", y que
"when a rule after it has been duly tested by experience, has been found to be inconsistent with the
sense of justice or with the social welfare, there should be less hesitation in frank avowal and full
abandonment." (Cardozo, The Nature of the Judicial Process.) En el presente caso no hay nada que
sea incompatible con la justicia ni con el bienestar social.
IMPERIAL, M., disidente:
Concurro con la opinion del Magistrado Sr. Villa-Real de que "No habiendo Alejandro Tan Bangco
adquirido la nacionalidad espaola por su mero nacimiento en territorio espaol, no era subdito

espaol el 11 de aabril de 1899, y, por consiguiente, su hijo, el aqui recurrido, Tan Chim, no se hizo
subdito filipino al entrar en vigor el articulo 4. de la Ley del Congreso de 1. de julio de 1902 antes
citado, y no lo era cuando llego al Puerto de Cebu el 18 de enero de 1937."
Disiento de la conclusion a que llega la mayoria al efecto de que el recurrido, como hijo menor de
edad de Alejandro Tan Bangco, tiene derecho a entrar y residir en el pais porque su padre nacio en
Manila, Filipinas, aplicando asi el principio del jus soli y siguiendo la doctrina enunciada en los
asuntos de Roa contra El Administrador de Aduanas (23 Jur. Fil., 321), y Haw contra El
Administrador de Aduanas, (59 Jur. Fil., 646). En el primero de dichos asuntos este Tribunal declaro
que Roa era ciudadano filipino por razon de su nacimiento fundandose en la doctrina que sento el
Tribunal Supremo de los Estados Unidos en el asunto de United States v. Wong Kim Ark (169 U. S.,
649) de que son ciudadanos americanos los nacidos en territorio de los Estados Unidos de
conformidad con la Enmienda XIV de la Constitucion de los Estados Unidos. La doctrina asi
enunciada se aplico por este Tribunal no solo en el asunto de Haw contra El Administrador de
Aduanas sino tambien en los de Estados Unidos contra Ang (36 Jur. Fil., 915), y Estados Unidos
contra Lim Bin (36 Jur. Fil., 985). A mi juicio tal doctrina no halla apoyo en las leyes vigentes porque
el articulo 1 de la XIV Enmienda de la Constitucion de los Estados Unidos, que provee que las
personas nacidas o naturalizadas en los Estados Unidos, y sujetas aa la jurisdiccion de los mismos,
son ciudadanos de los Estados Unidos y del Estado donde residen, no rige en este pais (U. S.
contra Dorr, 2 Jur. Fil., 282, 195 U. S., 138, 49 Law. ed. 128, 24 Sup. Ct. Rep., 808, 11 Jur. Fil., 728;
U. S. contra Bull, 15 Jur. Fil., 7). El hijo de padres chinos que no era subdito espaol el 11 de abril
de 1899 no puede invocar la nacionalidad filipina por el solo hecho de haber nacido en el pais,
porque no le alcanzan las disposiciones del articulo 2 de la Ley Jones, Ley del Congreso de los
Estados Unidos del 29 de agosto dee 1916. (Paz Chua contra El Secretario del Trabajo, R. G. No.
46451.)
Las razones que expone la decision de la mayoria para liberalizar la aplicacion de la Ley de
Exclusion de ciudadanos de la republica de China son consideraciones que ataen al poder
legislativo. La facultad de los tribunales se limita a aplicar la ley. Si los chinos nacidos en Filipinas o
los hijos menores de padres chinos naacidos en el paid deben ser considerados como ciudadanos
filipinos con derecho a entrar y residir en el, es cosa que debe decidirlo la Asamblea Nacional
mediante la promulgacion de una ley adecuada.
MORAN, J., dissenting:
With the recent unanimous decision of this Court in Paz Chua vs. Secretary of Labor, G.R. No.
46451, I thought the doctrine in the Roa case has been impliedly reversed, for there is between that
case and the present one, no fundamental difference in facts that may warrant the application of a
different principle. But the majority decision in the present case abandons, in effect, the doctrine laid
down in the Chua case and revives the Roa ruling. This, I fear, may be the ignis fatuus which the
majority precisely sought to avoid.
There can be no question that the Roa ruling is erroneous. The second paragraph of Article IX of the
Treaty of Paris provides:

The civil rights and political status of the native inhabitants of the territories hereby ceded to
the United States shall be determined by the Congress.
Pursuant to this provision, Congress enacted the so-called Philippine Bill (Act of July 1, 1902),
section 4 of which provides:
That all inhabitants of the Philippine Islands continuing to reside therein who were Spanish
subjects on the 11th day of April, 1899, and then resided in said Islands, and their children
born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands
and as such entitled to the protection of the United States, except such as shall have elected
to preserve their allegiance to the crown of Spain in accordance with the provisions of the
treaty of peace between the United States and Spain, signed at Paris, December 10, 1898.
The same section of the Act of July 1, 1902, as amended by Act of March 23, 1912, was
substantially incorporated in section 2 of the Jones Law (Act of August 29, 1916), which provides:
That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day
of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their
children born subsequent thereto, shall be deemed and held to be citizens of the Philippine
Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain
in accordance with the provisions of the treaty of peace between the United States and
Spain, signed at Paris, December tenth, eighteen hundred and ninety-eight, and except such
others as have since become citizens of some other country: Provided, That the Philippine
Legislature, herein provided for, is hereby authorized to provide by law for the acquisition of
Philippine citizenship by those natives of the Philippine Islands who do not come within the
foregoing provisions, the natives of the insular possessions of the United States, and such
other persons residing in the Philippine Islands and who are citizens of the United States, or
who could become citizens of the United States under the laws of the United States if
residing therein.
From the foregoing provisions of the Acts of Congress, the only persons who were considered
citizens of the Philippines were all the inhabitants thereof who were Spanish subjects on April 11,
1899, and then resided in the Philippine, and their children born subsequently thereto, except those
who shall have elected to preserve their allegiance to the Crown of Spain. Under the laws of this
country, prior to the ratification of the Treaty of Paris, children born in the Philippines follow the
nationality of their parents while they remain under parental authority. (Sec. 18 Civ. Code.) Roa,
being a minor, followed the nationality of his father, who was a Chinese subject, and, therefore, could
not be considered as a Filipino citizen under the Jones Law. The holding, then, that Roa was a
Filipino citizen by the mere fact of birth in this country, was evidently without support in the then
existing laws of the Philippines. And such is our ruling in Paz Chua case.
The basis of the Roa doctrine was the pronouncement of the United States Supreme Court in U. S.
v. Wong Kim Ark, 169 U.S., 649, to the effect that persons born in the United States were citizens
thereof under the 14th Amendment to the Constitution. Section 5, however, of the Jones Law
provides:

That the statutory laws of the United States hereafter enacted shall not apply to the
Philippine Islands, except when they specifically so provided, or it is so provided in this Act.
I know of federal statute which either expressly or impliedly extends to the Philippines the principle of
jus soli, as recognized in the 14th Amendment to the United States Constitution. It is, therefore, a
clear error to give this principle force and effect in this jurisdiction.
The majority says nothing in support of the correctness of the Roa ruling, and seeks simply to justify
its continued observance upon the fact that it "had been adhered to and accepted for more than 20
years before the adoption of the Constitution," and that "not only this Court but also inferior courts
and consistently and invariably followed it; the executive and administrative agencies of the
Government had theretofore abided by it; and the general public had acquiesced in it." I do not yield
to this judicial policy. If we have induced the Government and the public to follow and accept an error
for some time, it does not seem to be a good policy to continue inducing them to follow and accept
the same error once discovered. The rule of stare decisis does not apply to the extent of
perpetuating an error (15 C.J., p. 918). It is the duty of every court to examine its own decisions
without fear and to revise them without reluctance (Baker v. Lorillard, 4 N.Y., 257). As was well said
in a case, "I hold it to be the duty of this court freely to examine its own decisions, and, when
satisfied that it has fallen into a mistake, to correct the error by overruling its own decision. An
acknowledged error must be more venerable and more inveterate than it can be made by any series
of concessions or extra-judicial resolutions, or even by any single decision before it can claim
impunity upon the principle of stare decisis." (Leavitt v. Blatchaford, 17 N.Y., 521, 523.) "Precedents
are to be regarded as the great storehouse of experience; not always to be followed, but to be
looked to as beacon lights in the progress of judicial investigation." (Per Bartley, C.J., in Leavitt v.
Morrow, 6 Ohio St., 71, 78.) Their "authority must often yield to the force of reason, and to the
paramount demands of justice as well as to the decencies of civilized society, and the law ought to
speak with a voice responsive to these demands." (Norton v. Randolph, 176 Ala., 381, 383, 58 S.
283.)
Indeed, I can find no serious obstacle to the propriety of correcting the erroneous ruling laid down in
the Roa case. The doctrine of stare decisis is not the equivalent of res adjudicata (15 C.J., p. 919;
Walpole v. Cholmondeley, 7 T.R. 138, 148, 101 Repr. 987). The first relates to legal principles; the
latter, to specific facts. Accordingly, such persons who, like Roa, have secured judicial declaration of
their status, are protected by the rule of res adjudicata; and those who, similarly situated, have not
obtained such judicial declaration, but have acquired tangible rights in the exercise of their bona-fide
citizenship, may, if such rights are still existing, be saved from the effects of the reversal. If we agree
that the Roa ruling is erroneous, the most logical course to follow is to reverse it but saving, as a
matter of equity, the vested rights above mentioned.
It is regrettable to note that, while the majority decision upholds the Roa doctrine, it, at the same
time, tears into pieces the principle upon which the ruling is founded, leaving thus such ruling without
foundation whatsoever either in law or in logic. This is, certainly, worse than reversing it. The majority
says: "When in Roa v. Collector of Customs we declared the applicant therein to be a citizen of the
Philippines, that declaration was a statement of a general principle, applicable not only to Tranquilino
Roa individually, but to all those who were in the same situation, that it to say, to all persons born in
the Philippines before the ratification of the treaty of peace between the United States and Spain, of

Chinese father and Filipino mother; residents of the Philippines at the time mentioned in the treaty of
peace, although in their minority; thereafter going to China for the purpose of studying, and returning
to the Philippines to live here." (Underscoring mine.) The Roa doctrine applies the principle of jus
soli embodied in the 14th Amendment to the United States Constitution, and such principle, by its
very nature, was never limited in its application to aliens born in the Philippines before the advent of
the American sovereignty. For instance, in Haw v. Collector of Customs, 59 Phil., 612, to which said
principle was applied, the petitioner therein was born on February 13, 1916, and was held to be a
Filipino citizen by the mere fact of birth in this country. It is, therefore, obvious that the principle
underlying the Roa ruling, as originally announced by this Court and construed in subsequent cases,
applies not only to aliens born in the Philippines prior to the ratification of the treaty of peace, but
also to those born thereafter. The place, not the time, of birth was the decisive consideration in the
determination of citizenship thereunder. The restatement, therefore, of the Roa doctrine by the
majority, confining its application to aliens born before the ratification of the treaty of peace, and
excluding therefrom those born thereafter, it a new principle which finds absolutely no support either
in law or in reason.
With due respect to my brethren in the majority, I would say that when this Court continues to uphold
a ruling known to be erroneous, with no plausible excuse therefor but public acquiescence therein, it
may soon find itself compelled to make more mistakes in an effort to justify the previous ones. We
may thus be building one error upon another until, by their accumulation, we shall come to a point
when going further would be perilous and turning backward impossible.
I therefore vow to reverse the Roa doctrine and the decision of the Court of Appeals based thereon.

C403 Valles v. Commission on Elections, GR 137000, 9 August 2000, En Banc, Purisima [J]

G.R. No. 137000

August 9, 2000

CIRILO R. VALLES, petitioner,

vs.
COMMISSION ON ELECTIONS and ROSALIND YBASCO LOPEZ, respondents.
DECISION
PURISIMA, J.:
This is a petition for certiorari under Rule 65, pursuant to Section 2, Rule 64 of the 1997 Rules of
Civil Procedure, assailing Resolutions dated July 17, 1998 and January 15, 1999, respectively, of the
Commission on Elections in SPA No. 98-336, dismissing the petition for disqualification filed by the
herein petitioner, Cirilo R. Valles, against private respondent Rosalind Ybasco Lopez, in the May
1998 elections for governor of Davao Oriental.
Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to
the spouses, Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa
Marquez, an Australian. In 1949, at the age of fifteen, she left Australia and came to settle in the
Philippines.
On June 27, 1952, she was married to Leopoldo Lopez, a Filipino citizen, at the Malate Catholic
Church in Manila. Since then, she has continuously participated in the electoral process not only as
a voter but as a candidate, as well. She served as Provincial Board Member of the Sangguniang
Panlalawigan of Davao Oriental. In 1992, she ran for and was elected governor of Davao Oriental.
Her election was contested by her opponent, Gil Taojo, Jr., in a petition for quo warranto, docketed
as EPC No. 92-54, alleging as ground therefor her alleged Australian citizenship. However, finding
no sufficient proof that respondent had renounced her Philippine citizenship, the Commission on
Elections en banc dismissed the petition, ratiocinating thus:
"A cursory reading of the records of this case vis-a-vis the impugned resolution shows that
respondent was able to produce documentary proofs of the Filipino citizenship of her late father...
and consequently, prove her own citizenship and filiation by virtue of the Principle of Jus Sanguinis,
the perorations of the petitioner to the contrary notwithstanding.
On the other hand, except for the three (3) alleged important documents . . . no other evidence
substantial in nature surfaced to confirm the allegations of petitioner that respondent is an Australian
citizen and not a Filipino. Express renunciation of citizenship as a mode of losing citizenship under
Commonwealth Act No. 63 is an equivocal and deliberate act with full awareness of its significance
and consequence. The evidence adduced by petitioner are inadequate, nay meager, to prove that
respondent contemplated renunciation of her Filipino citizenship". 1

In the 1995 local elections, respondent Rosalind Ybasco Lopez ran for re-election as governor of
Davao Oriental. Her opponent, Francisco Rabat, filed a petition for disqualification, docketed as SPA
No. 95-066 before the COMELEC, First Division, contesting her Filipino citizenship but the said
petition was likewise dismissed by the COMELEC, reiterating substantially its decision in EPC 92-54.
The citizenship of private respondent was once again raised as an issue when she ran for reelection as governor of Davao Oriental in the May 11, 1998 elections. Her candidacy was questioned
by the herein petitioner, Cirilo Valles, in SPA No. 98-336.
On July 17, 1998, the COMELECs First Division came out with a Resolution dismissing the petition,
and disposing as follows:
"Assuming arguendo that res judicata does not apply and We are to dispose the instant case on the
merits trying it de novo, the above table definitely shows that petitioner herein has presented no new
evidence to disturb the Resolution of this Commission in SPA No. 95-066. The present petition
merely restates the same matters and incidents already passed upon by this Commission not just in
1995 Resolution but likewise in the Resolution of EPC No. 92-54. Not having put forth any new
evidence and matter substantial in nature, persuasive in character or sufficiently provocative to
compel reversal of such Resolutions, the dismissal of the present petition follows as a matter of
course.
xxx

xxx

xxx

"WHEREFORE, premises considered and there being no new matters and issues tendered, We find
no convincing reason or impressive explanation to disturb and reverse the Resolutions promulgated
by this Commission in EPC 92-54 and SPA. 95-066. This Commission RESOLVES as it hereby
RESOLVES to DISMISS the present petition.
SO ORDERED."2
Petitioner interposed a motion for reconsideration of the aforesaid Resolution but to no avail. The
same was denied by the COMELEC in its en banc Resolution of January 15, 1999.
Undaunted, petitioner found his way to this Court via the present petition; questioning the citizenship
of private respondent Rosalind Ybasco Lopez.
The Commission on Elections ruled that private respondent Rosalind Ybasco Lopez is a Filipino
citizen and therefore, qualified to run for a public office because (1) her father, Telesforo Ybasco, is a
Filipino citizen, and by virtue of the principle of jus sanguinis she was a Filipino citizen under the
1987 Philippine Constitution; (2) she was married to a Filipino, thereby making her also a Filipino
citizen ipso jure under Section 4 of Commonwealth Act 473; (3) and that, she renounced her
Australian citizenship on January 15, 1992 before the Department of Immigration and Ethnic Affairs
of Australia and her Australian passport was accordingly cancelled as certified to by the Australian
Embassy in Manila; and (4) furthermore, there are the COMELEC Resolutions in EPC No. 92-54 and
SPA Case No. 95-066, declaring her a Filipino citizen duly qualified to run for the elective position of
Davao Oriental governor.

Petitioner, on the other hand, maintains that the private respondent is an Australian citizen, placing
reliance on the admitted facts that:
a) In 1988, private respondent registered herself with the Bureau of Immigration as an
Australian national and was issued Alien Certificate of Registration No. 404695 dated
September 19, 1988;
b) On even date, she applied for the issuance of an Immigrant Certificate of Residence
(ICR), and
c) She was issued Australian Passport No. H700888 on March 3, 1988.
Petitioner theorizes that under the aforestated facts and circumstances, the private respondent had
renounced her Filipino citizenship. He contends that in her application for alien certificate of
registration and immigrant certificate of residence, private respondent expressly declared under oath
that she was a citizen or subject of Australia; and said declaration forfeited her Philippine citizenship,
and operated to disqualify her to run for elective office.
As regards the COMELECs finding that private respondent had renounced her Australian citizenship
on January 15, 1992 before the Department of Immigration and Ethnic Affairs of Australia and had
her Australian passport cancelled on February 11, 1992, as certified to by the Australian Embassy
here in Manila, petitioner argues that the said acts did not automatically restore the status of private
respondent as a Filipino citizen. According to petitioner, for the private respondent to reacquire
Philippine citizenship she must comply with the mandatory requirements for repatriation under
Republic Act 8171; and the election of private respondent to public office did not mean the
restoration of her Filipino citizenship since the private respondent was not legally repatriated.
Coupled with her alleged renunciation of Australian citizenship, private respondent has effectively
become a stateless person and as such, is disqualified to run for a public office in the Philippines;
petitioner concluded.
Petitioner theorizes further that the Commission on Elections erred in applying the principle of res
judicata to the case under consideration; citing the ruling in Moy Ya Lim Yao vs. Commissioner of
Immigration,3 that:
"xxx Everytime the citizenship of a person is material or indispensable in a judicial or administrative
case, whatever the corresponding court or administrative authority decides therein as to such
citizenship is generally not considered as res adjudicata, hence it has to be threshed out again and
again as the occasion may demand. xxx"
The petition is unmeritorious.
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.

Private respondent Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome,
Western Australia, to the spouses, Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines
Norte, and Theresa Marquez, an Australian. Historically, this was a year before the 1935 Constitution
took into effect and at that time, what served as the Constitution of the Philippines were the principal
organic acts by which the United States governed the country. These were the Philippine Bill of July
1, 1902 and the Philippine Autonomy Act of August 29, 1916, also known as the Jones Law.
Among others, these laws defined who were deemed to be citizens of the Philippine islands. The
Philippine Bill of 1902 defined Philippine citizens as:
SEC. 4 xxx 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. (underscoring ours)
The Jones Law, on the other hand, provides:
SEC. 2 That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day
of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born
subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands, except such
as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the
provisions of the treaty of peace between the United States and Spain, signed at Paris December
tenth, eighteen hundred and ninety-eight, and except such others as have since become citizens of
some other country: Provided, That the Philippine Legislature, herein provided for, is hereby
authorized to provide by law for the acquisition of Philippine citizenship by those natives of the
Philippine Islands who cannot come within the foregoing provisions, the natives of the insular
possessions of the United States, and such other persons residing in the Philippine Islands who are
citizens of the United States, or who could become citizens of the United States under the laws of
the United States if residing therein. (underscoring ours)
Under both organic acts, all inhabitants of the Philippines who were Spanish subjects on April 11,
1899 and resided therein including their children are deemed to be Philippine citizens. Private
respondents father, Telesforo Ybasco, was born on January 5, 1879 in Daet, Camarines Norte, a
fact duly evidenced by a certified true copy of an entry in the Registry of Births. Thus, under the
Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was deemed to be a Philippine citizen.
By virtue of the same laws, which were the laws in force at the time of her birth, Telesforos daughter,
herein private respondent Rosalind Ybasco Lopez, is likewise a citizen of the Philippines.
The signing into law of the 1935 Philippine Constitution has established the principle of jus sanguinis
as basis for the acquisition of Philippine citizenship, to wit:
(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.
(5) Those who are naturalized in accordance with law.
So also, the principle of jus sanguinis, which confers citizenship by virtue of blood relationship, was
subsequently retained under the 19734 and 19875 Constitutions. Thus, the herein private respondent,
Rosalind Ybasco Lopez, is a Filipino citizen, having been born to a Filipino father. The fact of her
being born in Australia is not tantamount to her losing her Philippine citizenship. If Australia follows
the principle of jus soli, then at most, private respondent can also claim Australian citizenship
resulting to her possession of dual citizenship.
Petitioner also contends that even on the assumption that the private respondent is a Filipino citizen,
she has nonetheless renounced her Philippine citizenship. To buttress this contention, petitioner
cited private respondents application for an Alien Certificate of Registration (ACR) and Immigrant
Certificate of Residence (ICR), on September 19, 1988, and the issuance to her of an Australian
passport on March 3, 1988.
Under Commonwealth Act No. 63, a Filipino citizen may lose his citizenship:
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign
country upon attaining twenty-one years of age or more;
(4) By accepting commission in the military, naval or air service of a foreign country;
(5) By cancellation of the certificate of naturalization;
(6) By having been declared by competent authority, a deserter of the Philippine armed
forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted:
and
(7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws in force in
her husbands country, she acquires his nationality.
In order that citizenship may be lost by renunciation, such renunciation must be express. Petitioners
contention that the application of private respondent for an alien certificate of registration, and her

Australian passport, is bereft of merit. This issue was put to rest in the case of Aznar vs. COMELEC6
and in the more recent case of Mercado vs. Manzano and COMELEC.7
In the case of Aznar, the Court ruled that the mere fact that respondent Osmena was a holder of a
certificate stating that he is an American did not mean that he is no longer a Filipino, and that an
application for an alien certificate of registration was not tantamount to renunciation of his Philippine
citizenship.
And, in Mercado vs. Manzano and COMELEC, it was held that the fact that respondent Manzano
was registered as an American citizen in the Bureau of Immigration and Deportation and was holding
an American passport on April 22, 1997, only a year before he filed a certificate of candidacy for
vice-mayor of Makati, were just assertions of his American nationality before the termination of his
American citizenship.
Thus, the mere fact that private respondent Rosalind Ybasco Lopez was a holder of an Australian
passport and had an alien certificate of registration are not acts constituting an effective renunciation
of citizenship and do not militate against her claim of Filipino citizenship. For renunciation to
effectively result in the loss of citizenship, the same must be express.8 As held by this court in the
aforecited case of Aznar, an application for an alien certificate of registration does not amount to an
express renunciation or repudiation of ones citizenship. The application of the herein private
respondent for an alien certificate of registration, and her holding of an Australian passport, as in the
case of Mercado vs. Manzano, were mere acts of assertion of her Australian citizenship before she
effectively renounced the same. Thus, at the most, private respondent had dual citizenship - she was
an Australian and a Filipino, as well.
Moreover, under Commonwealth Act 63, the fact that a child of Filipino parent/s was born in another
country has not been included as a ground for losing ones Philippine citizenship. Since private
respondent did not lose or renounce her Philippine citizenship, petitioners claim that respondent
must go through the process of repatriation does not hold water.
Petitioner also maintains that even on the assumption that the private respondent had dual
citizenship, still, she is disqualified to run for governor of Davao Oriental; citing Section 40 of
Republic Act 7160 otherwise known as the Local Government Code of 1991, which states:
"SEC. 40. Disqualifications. The following persons are disqualified from running for any elective local
position:
xxx

xxx

xxx

xxx

xxx

xxx

(d) Those with dual citizenship;

Again, petitioners contention is untenable.

In the aforecited case of Mercado vs. Manzano, the Court clarified "dual citizenship" as used in the
Local Government Code and reconciled the same with Article IV, Section 5 of the 1987 Constitution
on dual allegiance.9 Recognizing situations in which a Filipino citizen may, without performing any
act, and as an involuntary consequence of the conflicting laws of different countries, be also a citizen
of another state, the Court explained that dual citizenship as a disqualification must refer to citizens
with dual allegiance. The Court succinctly pronounced:
"xxx the phrase dual citizenship in R.A. No. 7160, xxx 40 (d) and in R.A. No. 7854, xxx 20 must be
understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not
fall under this disqualification."
Thus, the fact that the private respondent had dual citizenship did not automatically disqualify her
from running for a public office. Furthermore, it was ruled that for candidates with dual citizenship, it
is enough that they elect Philippine citizenship upon the filing of their certificate of candidacy, to
terminate their status as persons with dual citizenship.10 The filing of a certificate of candidacy
sufficed to renounce foreign citizenship, effectively removing any disqualification as a dual citizen. 11
This is so because in the certificate of candidacy, one declares that he/she is a Filipino citizen and
that he/she will support and defend the Constitution of the Philippines and will maintain true faith and
allegiance thereto. Such declaration, which is under oath, operates as an effective renunciation of
foreign citizenship. Therefore, when the herein private respondent filed her certificate of candidacy in
1992, such fact alone terminated her Australian citizenship.
Then, too, it is significant to note that on January 15 1992, private respondent executed a
Declaration of Renunciation of Australian Citizenship, duly registered in the Department of
Immigration and Ethnic Affairs of Australia on May 12, 1992. And, as a result, on February 11, 1992,
the Australian passport of private respondent was cancelled, as certified to by Second Secretary
Richard F. Munro of the Embassy of Australia in Manila. As aptly appreciated by the COMELEC, the
aforesaid acts were enough to settle the issue of the alleged dual citizenship of Rosalind Ybasco
Lopez. Since her renunciation was effective, petitioners claim that private respondent must go
through the whole process of repatriation holds no water.
Petitioner maintains further that when citizenship is raised as an issue in judicial or administrative
proceedings, the resolution or decision thereon is generally not considered res judicata in any
subsequent proceeding challenging the same; citing the case of Moy Ya Lim Yao vs. Commissioner
of Immigration.12 He insists that the same issue of citizenship may be threshed out anew.
Petitioner is correct insofar as the general rule is concerned, i.e. the principle of res judicata
generally does not apply in cases hinging on the issue of citizenship. However, in the case of Burca
vs. Republic,13 an exception to this general rule was recognized. The Court ruled in that case that in
order that the doctrine of res judicata may be applied in cases of citizenship, the following must be
present:
1) a persons citizenship be raised as a material issue in a controversy where said person is
a party;

2) the Solicitor General or his authorized representative took active part in the resolution
thereof, and
3) the finding on citizenship is affirmed by this Court.
Although the general rule was set forth in the case of Moy Ya Lim Yao, the case did not foreclose the
weight of prior rulings on citizenship. It elucidated that reliance may somehow be placed on these
antecedent official findings, though not really binding, to make the effort easier or simpler.14 Indeed,
there appears sufficient basis to rely on the prior rulings of the Commission on Elections in SPA. No.
95-066 and EPC 92-54 which resolved the issue of citizenship in favor of the herein private
respondent. The evidence adduced by petitioner is substantially the same evidence presented in
these two prior cases. Petitioner failed to show any new evidence or supervening event to warrant a
reversal of such prior resolutions. However, the procedural issue notwithstanding, considered on the
merits, the petition cannot prosper.
WHEREFORE, the petition is hereby DISMISSED and the COMELEC Resolutions, dated July 17,
1998 and January 15, 1999, respectively, in SPA No. 98-336 AFFIRMED.
Private respondent Rosalind Ybasco Lopez is hereby adjudged qualified to run for governor of
Davao Oriental. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., abroad on official business.