Comelec’s constitutional disservice

The recommendation of the Commission on Elections’ law department to suspend proceedings on the three disqualification cases against Sen. Grace Poe is a disservice to the country, the challengers and the respondent. The recommendation is flimsily founded on the purported prejudicial nature of the pending disqualification suit at the Senate Electoral Tribunal (SET) with regard to Poe’s citizenship. The law department has to be reminded that the Comelec is neither superior nor inferior to the SET, and vice versa.  The SET’s decision or factual findings on the issue is neither binding on the Comelec nor will it have the force of jurisprudence. Both legal forums are created and mandated by the Constitution to perform their respective duty. Delaying the performance of that duty is a constitutional disservice.

The Comelec should resolve, without procrastination, the pending petitions regarding the validity of Poe’s certificate of candidacy on the basis of its own evaluation of the factual milieu of her citizenship and Philippine residence, and not on the SET’s mere say-so or prior determination.  As perhaps everyone will agree, the travails of the challengers and the respondent arising from the constitutional challenges to Poe’s presidential qualifications will eventually find their way to the Supreme Court where a constitutional debate will be heard. The issues are therefore time-bound if the country’s larger interest were to be considered altogether by the Comelec, Poe, and the challengers of her presidential qualifications. They should stop wrangling about timing, procedure, and who has the burden of proof in resolving these controversies.

Equally as important as the constitutional issue surrounding Poe’s citizenship is her 10-year residence in the Philippines preceding the May 2016 elections, or, to be exact, 3,650 days of permanent residence in the country immediately preceding Election Day. Article 13 of the Civil Code provides that when the laws—which include the Constitution—speak of years, it shall be understood that they are of 365 days each. If Poe’s Philippine residence would be reckoned from July 10, 2006, the day she filed with the Bureau of Immigration a sworn petition to reacquire her natural-born Philippine citizenship pursuant to Republic Act No. 9225 (the Citizenship Retention and Reacquisition Act of 2003), it would be accurately short of the Constitution’s 10-year requirement.

In Poe’s senatorial COC, she stated under oath that the period of her Philippine residence before the 2013 elections was six years and six months. It was reckoned from July 2006, when she acquired dual citizenship.

Invoking the ruling in the 1995 case of Marcos v. Comelec—wherein the Supreme Court said it is the fact of residence and not a statement in the COC that ought to be decisive in determining if one has satisfied the Constitution’s residency qualification—Poe reckoned in her COC for the presidency the period of her Philippine residence from May 24, 2005, when she returned to the country to permanently reside here.

Giving her the benefit of the doubt, then Poe has resided in the country for 10 years preceding the 2016 elections—part as an American domiciled in the Philippines; a greater part as a dual citizen until she relinquished her US citizenship in 2010 when she took on the helm of the censors board; and a much greater part as solely a Filipino citizen from 2010 until the present.

The proposition that Poe never lost her domicile of origin when she took on US citizenship was debunked by the Supreme Court in the 2015 case of Caballero v. Comelec, citing the 2002 case of Coquilla v. Comelec, wherein it was held that a Filipino citizen loses his/her domicile of origin if he/she assumes foreign citizenship which requires permanent residence. Taking US citizenship requires permanent residence in America for a minimum period of time. The former Filipino can only regain his/her permanent Philippine residence by reestablishing a domicile of choice in the country.

The fact of Poe’s permanent residence beginning May 24, 2005, has to be determined by the Comelec upon the evidence introduced by the challengers or by Poe herself. Without this proof of facts, the Comelec can expediently rule that Poe failed to prove that she has 10-year residence preceding Election Day 2016, just like what the Comelec did in the case of the elected mayor of Uyugan, Batanes, in 2013.

Proof of facts of reacquiring Philippine domicile of choice should be pretty easy for a former Filipino citizen. Such proof cannot be limited to an intent to permanently reside in the Philippines because intent is a mental state and difficult to validate, or even disprove. The intent to permanently reside in the country must be coupled with a contemporaneous act reflective of it. A former Filipino citizen may acquire residential properties in the Philippines but still maintain his/her permanent residence abroad, or the country of his/her citizenship.

The only indubitable proof of fact of reacquiring Philippine domicile by choice is through the Philippine immigration procedure known as “conversion to non-quota immigrant visa of a former Filipino citizen naturalized in a foreign country.”  A former Filipino citizen who wants to permanently resettle in the country is required to accomplish BI Form CGAF-001-REV 01 (the Consolidated General Application Form for Immigrant Visa) upon his/her return to the country. He/She would then be issued an ACR-I Card, a microchip-based ID card issued to all registered aliens whose stay in the Philippines has exceeded 59 days.

That is all that the Comelec needs to find out to determine proof of fact of Poe’s permanent residence prior to her taking dual citizenship in July 2006. The Comelec need not defer to the SET’s decision, unless it is simply doing a constitutional cop-out.

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.