It’s the Comelec’s call

The mounting challenges at the Commission on Elections regarding Sen. Grace Poe’s eligibility to participate in the May 2016 presidential derby are premised on two contentious issues: her natural-born status and 10-year Philippine domicile preceding Election Day. The citizenship issue will be resolved less on the basis of the basically undisputed facts surrounding Poe’s birth and more on the ramifications of the 1935 Constitution and relevant international documents adverted to by her camp. The natural-born citizenship controversy is truly a constitutional issue that is ripe for the Supreme Court to resolve.

The expedient thesis posited is: One who is not naturalized is perforce natural-born. The distinction may also be articulated in this wise: A natural-born status is derived from the Constitution, while a naturalized status is derived from law. Natural-born citizenship is thus acquired by operation of the Constitution, and naturalized citizenship is acquired by operation of law. The high court might just clarify whether or not citizenship derived from international documents—if the proposed theory were deemed tenable—is equivalent to one acquired by operation of the Constitution. The decision may yet be doctrinal and guide future constitutional litigations on similar or related issues, especially on the emerging theory of international treaties or principles of international law on nationality as outright sources of citizenship being at par with the Constitution.

The high court may also factor in the provision of Article 27 of the Vienna Convention on the Law of Treaties, which stipulates that a state party may not renege on its obligations under an international agreement by reason of its internal law. The provision articulates the long-held international law principle of pacta sunt servanda—literally, “agreements must be kept.” The rule, however, is not without exception. Article 27 allows an exception under Article 46 of the Vienna Convention: The consent of a state party to a treaty may be invalidated on the ground that such consent contravenes an internal law of fundamental importance. A constitutional provision is of fundamental importance, which may not be expediently overridden by a commitment under an international convention or treaty.

The residency issue will be decisively resolved at the level of the Comelec as it will require the presentation of substantial proof of facts. In the September 2015 case of the elected mayor of Uyugan, Batanes, the Supreme Court upheld the Comelec finding that the mayor failed to prove that he had had one-year residence prior to the 2013 local elections. Before the mayor returned to the Philippines and joined the electoral fray, he was a naturalized citizen of Canada. The high court held that upon establishing permanent residence abroad, which was requisite to his foreign citizenship, the mayor lost his domicile of origin. He repatriated under the Dual Citizenship Law less than a year prior to the local elections wherein he ran for mayor. The Comelec found that the mayor failed to prove that he had acquired domicile of choice in the Philippines one year before Election Day. The Comelec held that the mayor could have had only acquired Philippine domicile from the time he repatriated. He was thus disqualified to run for office, which he eventually won pending the final resolution of the case. The high court, finding no grave abuse of discretion committed by the Comelec when it disqualified the mayor, booted him out of office for his failure to comply with the residency qualification for the position.

In disregarding popular will on the election of the mayor, the high court adverted to the 1995 case of Aquino v. Comelec, wherein Butz Aquino, recently deceased, was disqualified from assuming the post of representative of the newly created legislative district of Makati City because he failed to prove that he had acquired domicile there at least one year prior to the 1995 national elections. The high court set aside Aquino’s victory with this ratiocination: “[A]s petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself.”

The crucial factual issue now at the Comelec is whether or not Poe—despite her admission in her 2013 certificate of candidacy that she has had six years and six months Philippine domicile preceding the May 2013 elections—had effectively terminated her legal residence in the United States as an American citizen and transferred her domicile of choice in the Philippines prior to a period of 10 years preceding the May 2016 elections. The burden of proof lies not on the challengers of Poe’s residency and citizenship qualifications; the burden is shifted to her because it would be to her best interest to prove her qualifications to be president under the 1987 Constitution. The Comelec’s factual determination on her domicile of choice for purposes of the 2016 presidential election would be binding on the Supreme Court unless in so doing the Comelec would commit grave abuse of discretion.

It would also be to the country’s best interest if the Comelec promptly resolves the challenges to Poe’s candidacy. It would provide the Supreme Court with enough time to resolve the constitutional issues before Election Day. The country would then be spared the potential specter of having a president-elect barred from assuming its loftiest position because she failed to measure up to the Constitution. So bring it on, Comelec.

Frank E. Lobrigo practiced law for 20 years. He was the regional legal coordinator for Bicol of the FPJ-Legarda campaign in 2004, and is now enrolled in the Graduate School of Law of San Beda College, Manila.