---

AUSTRIA-MARTINEZ, J.:

There are three petitions before this Court which seek the disqualification of a prominent presidential aspirant in the forthcoming May 10, 2004 elections. The petitions are common in their allegation that Fernando Poe, Jr. (FPJ) is not a qualified candidate for the position of the President of the Philippines since he is not a natural-born Filipino citizen for the following reasons: (a) FPJ's father, Allan F. Poe, was not a Filipino citizen, but a Spanish citizen; (b) FPJ is an illegitimate child having been born out of wedlock; (c) the subsequent marriage of his parents did not inure to his benefit since they failed to comply with the procedural requirements for legitimation; and (d) FPJ, as an illegitimate child, follows the citizenship of his American mother, Bessie Kelley.

G.R. Nos. 161434 and 161634 invoke the Court's exclusive jurisdiction under the last paragraph of Section 4, Article VII of the 1987 Constitution.^[1] I agree with the majority opinion that these petitions should be dismissed outright for prematurity. The Court has no jurisdiction at this point of time to entertain said petitions.

The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal (SET) and House of Representatives Electoral Tribunal (HRET)^[2] are electoral tribunals, each specifically and exclusively clothed with jurisdiction by the Constitution to act respectively as "sole judge of all contests relating to the election, returns, and qualifications" of the President and Vice-President, Senators, and, Representatives.^[3] In a litany of cases, this Court has long recognized that these electoral tribunals exercise jurisdiction over election contests only after a candidate has already been proclaimed winner in an election.^[4] Rules 14 and 15 of the Rules of the Presidential Electoral Tribunal^[5] provide that, for President or Vice-President, election protest or quo warranto may be filed after the proclamation of the winner.

Prior to the proclamation of winners, questions on the eligibility and qualifications of a candidate may be addressed to the COMELEC only if they fall under Section 78 of the Batas Pambansa Blg. 881 (Omnibus Election Code) which provides:

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^[6] hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided after due notice and hearing, not later than fifteen days before the election. (Emphasis supplied)

In his Certificate of Candidacy, respondent FPJ asserts that he is a natural-born citizen and therefore eligible to the position of President of the Philippines.^[7] Petitioner assails the truthfulness of such material representation. Thus, the issue whether or not respondent Poe made a material representation which is false is within the jurisdiction of the COMELEC to resolve under Section 78 of the Omnibus Election Code. And when the COMELEC denied the cancellation of the Certificate of Candidacy, petitioner, ascribing grave abuse of discretion on the part of COMELEC in denying his petition, appropriately filed G.R. No. 161824 under Rule 64 in relation to Rule 65 of the Rules of Court which provides that the mode of review of a judgment of the COMELEC may be brought by the aggrieved party to the Court on certiorari under Rule 65. Needless to stress, certiorari is an extraordinary remedy that can be availed of only for an error of jurisdiction, that is, one where the act complained of was issued by the court, officer or a quasi-judicial body without or in excess of jurisdiction, or with grave abuse of discretion which is tantamount to lack or in excess of jurisdiction.^[8]

In Salcedo II vs. COMELEC,^[9] the Court held that in order to justify the cancellation of the certificate of candidacy under Section 78 of the Omnibus Election Code, it is essential that: (1) the false representation mentioned therein pertains to a material matter on the contents of the certificate of candidacy as provided in Section 74, that is, the qualifications for elective office as provided in the Constitution; and (2) the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible.

The Court's jurisdiction in the present petition for certiorari is limited only to the question whether the COMELEC has acted with grave abuse of discretion amounting to lack or excess of jurisdiction in finding that the evidence of petitioner is weak and not convincing. Is it a capricious, whimsical and arbitrary exercise of discretion? The answer is definitely in the negative.

The Certificate of Candidacy was executed by respondent FPJ under oath. The law always presumes good faith.^[10] One who alleges malice has the burden of proving the same.^[11] It is elementary that contentions must be proved by competent evidence and reliance must be based on the strength of the party's own evidence and not upon the weakness of the opponent's defense.^[12] To lay the burden of proof upon FPJ to prove his citizenship simply because petitioner assails the same is anathema to the well-recognized rule on the burden of proof.

The burden of proof is on the party who would be defeated if no evidence is given on either side.^[13]

In other words, petitioner should have established by competent evidence before the COMELEC that the subject material representation is false and that it must have been made by respondent FPJ deliberately to deceive the electorate as to his eligibility for the position of President of the Philippines.

Justice Puno, in his separate opinion, has extensively discussed the evidence that were correctly considered by the COMELEC as weak and not convincing to which I fully subscribe, with the following additional observations:

Under Section 1 of Article IV of the 1935 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.

. . .

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.

. . .

Pertinent in the determination of who were the citizens of the Philippines at the time of the adoption of the 1935 Constitution are the Treaty of Paris of 1898, the Philippine Bill of 1902 and the Philippine Autonomy Act of 1916, otherwise known as the Jones Law.

Article IX of the Treaty of Paris of 1898 reads:

Spanish subjects, natives of the peninsula, residing in the territory over which Spain by the present treaty relinquished or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights or 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 other 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, a year from the date of the exchange of ratification 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 may reside. (Emphasis supplied)

Section 4 of the Philippine Bill of 1902 enacted by U.S. Congress, reads:

That all inhabitants of the Philippines 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 Philippines 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 in 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 Philippines 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 Philippines 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. (Emphasis supplied)

Section 2 of the Jones Law reads:

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 Philippines 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 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. (Emphasis supplied)

Petitioner's Exhibit "D", a certification of the National Archives that it has no record that respondent's grandfather Lorenzo Pou entered or resided in the Philippines before 1907, seeks to establish that respondent FPJ is Spanish as his grandfather was a Spanish citizen for which reason, his son, Allan Poe, FPJ's father, was a Spanish citizen under the aforequoted provisions of the Treaty of Paris and Philippine Bill of 1902. Said exhibit is neither here nor there considering that, as noted by Justice Puno, the petitioner had failed to demonstrate that the National Archives has a complete record of all persons who lived in the Philippines during the Spanish and American occupation.

Moreover, petitioner Fornier failed to present competent evidence that respondent FPJ's grandfather had preserved his allegiance to the Crown of Spain by having made a declaration to that effect before a court of record, pursuant to the Treaty of Paris. Consequently, in the absence of such evidence, it cannot be validly concluded that FPJ's grandfather remained a Spanish citizen and transmitted his citizenship to FPJ's father. It is also true that neither could anyone conclusively conclude on that basis, that FPJ's grandfather did not retain his Spanish citizenship. In either case, it sustains the view of the COMELEC that the evidence of petitioner is weak and not convincing.

As earlier stated, the onus probandi is on petitioner to prove his claim, failing which his petition to cancel the certificate of candidacy of respondent FPJ must necessarily fail. The COMELEC's assessment of the evidence presented before it must perforce be accorded full respect.

It is suggested that the case be remanded to the COMELEC or the Court of Appeals for the presentation of additional evidence to enable the Court to finally determine the citizenship of respondent Poe. With all due respect to the proponents, I submit that to do so would not only be contrary to basic fair play but also it is not within the jurisdiction of the Court to make a final determination of respondent FPJ's citizenship in the present petition for certiorari which is specifically on the ground of grave abuse of discretion in not canceling the certificate of candidacy under Section 78 of the Omnibus Election Code. The issue on citizenship may be properly dealt with in a quo warranto proceeding which is available to protesters only after elections under Section 4, Article VII of the 1987 Constitution.

As a last pitch effort to disqualify respondent FPJ, petitioner posits that the phrase "those whose fathers are citizens of the Philippines" in the 1935 Constitution should refer only to legitimate children, relying upon the cases of Chiongbian vs. De Leon,^[14] Serra vs. Republic,^[15] Morano vs. Vivo,^[16] and Paa vs. Chan;^[17] that inasmuch as it appears that respondent Poe is an illegitimate son, then he follows the citizenship of his mother who was an American citizen per respondent FPJ's birth certificate. However, the cited cases are inapplicable because they are not squarely in point. These cases did not involve an illegitimate child of a Filipino father or the issue of citizenship in relation to the exercise of the right to be elected into office. Besides, the Court's pronouncements in these cases that illegitimacy in relation to citizenship are merely obiter dicta, obviously non sequitur. Obiter dictum simply means words of a prior opinion entirely unnecessary for the decision of the case^[18] or an incidental and collateral opinion uttered by a judge and therefore not material to his decision or judgment and not binding.^[19] As such, the pronouncements therein on illegitimacy in relation to citizenship must be disregarded as the ruling of the Court cannot be duly extended to expand the main thrust of the decisions beyond their true import.

The fundamental principle in constitutional construction is that the primary source from which to ascertain constitutional intent or purpose is the language of the provision itself. The presumption is that the words in which the constitutional provisions are couched express the objective sought to be attained. Otherwise stated, verba legis still prevails. Only when the meaning of the words used is unclear and equivocal should resort be made to extraneous aids of construction and interpretation, such as the proceedings of the Constitutional Commission or Convention, in order to shed light on and ascertain the true intent or purpose of the provision being construed.^[20]

Section 1, Article IV of the 1935 Constitution does not provide for a qualification that the child be a product of a legitimate union for the child to acquire the nationality of the Filipino father. Ubi lex non distinguit nec nos distinguere debemus. When the law does not distinguish, neither should we. There should be no distinction in the application of the fundamental law where none is indicated. The drafters of the Constitution, in making no qualification in the use of the general word "father" must have intended no distinction at law. The Courts could only distinguish where there are facts or circumstances showing that the lawgiver intended a distinction or qualification. In such a case, the courts would merely give effect to the lawgiver's intent.^[21]

Clearly, the framers of the 1935 Constitution simply provided that when paternity is known or established, the child follows the father's citizenship; otherwise, the citizenship of the mother is followed. If we concede that the framers of the Constitution intended a qualification that the child be the product of a legitimate union, such would lead to clear injustice, and a restricted interpretation, by creating a distinction when the language of the law is clear and unambiguous.

Thus, based on the evidence presented before it, the COMELEC did not commit any grave abuse of discretion in concluding that petitioner failed to present substantial evidence that FPJ has knowingly or deliberately committed a material representation that is false in his certificate of candidacy.

For the foregoing reasons, I vote to dismiss all the petitions.

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^[1] SEC. 4. . . . 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 rule for the purpose.

^[2] Section 17, Article VI of the 1987 Constitution reads:

SEC. 17. The Senate and the House of Representatives shall each have an electoral tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective members. . . .

^[3] Angara vs. Electoral Commission, 63 Phil. 139 (1936); Lazatin vs. House of Representatives Electoral Tribunal, 168 SCRA 391 (1988); Co vs. Electoral Tribunal of the House of Representatives, 199 SCRA 692 (1991); and, Chavez vs. COMELEC, 211 SCRA 315, 322 (1992).

^[4] See O'Hara vs. COMELEC, 379 SCRA 247 (2002); Dumayas, Jr. vs. COMELEC, 357 SCRA 358 (2001); Guerrero vs. COMELEC, 336 SCRA 458 (2000); Barroso vs. Ampig, Jr., 328 SCRA 530 (2000); Caruncho III vs. COMELEC, 315 SCRA 693 (1999); Rasul vs. COMELEC, 313 SCRA 18 (1999); Aquino vs. COMELEC, 248 SCRA 400 (1995); Romualdez-Marcos vs. COMELEC, 248 SCRA 300 (1995); Pangilinan vs. COMELEC, 228 SCRA 36 (1993); Sampayan vs. Daza, 213 SCRA 807 (1992); Lazatin vs. COMELEC, 157 SCRA 337, 338 (1988) Lomugdang vs. Javier, 21 SCRA 402 (1967); and, Vda. de De Mesa vs. Mencias, 18 SCRA 533 (1966).

^[5] Rules 14 and 15 of the Rules of the Presidential Electoral Tribunal read as follows:

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 from the proclamation of the winner.

RULE 15. Quo Warranto. A verified petition for quo warranto contesting the election of the President or Vice-President on the ground of ineligibility or of disloyalty to the Republic of the Philippines may be filed by any voter within ten (10) days after the proclamation of the winner. (Emphasis supplied)

^[6] SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status, his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. (Emphasis supplied)

. . . . . . . . .

^[7] Section 2, Article VII of the Constitution provides:

Section 2. 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.

^[8] Fortich vs. Corona, 289 SCRA 624, 642 (1998).

^[9] 312 SCRA 447 (1999). See also Frivaldo vs. COMELEC, 174 SCRA 245 (1989); Abella vs. Larrazabal, 180 SCRA 509 (1989); Labo vs. COMELEC, 211 SCRA 297 (1992); Frivaldo vs. COMELEC, 232 SCRA 785 (1996); and, Frivaldo vs. COMELEC, 257 SCRA 727 (1996).

^[10] Chua vs. Court of Appeals, 242 SCRA 341, 345 (1995).

^[11] Bernardino vs. Ignacio, 253 SCRA 641, 644 (1996); Ford Philippines, Inc. vs. Court of Appeals, 267 SCRA 320, 329 (1997); Cancio vs. Garchitorena, 311 SCRA 268, 286 (1999).

^[12] Saguid vs. Court of Appeals, G.R. No. 150611, June 10, 2003; Heirs of Anastacio Fabela vs. Court of Appeals, 362 SCRA 531, 547 (2001); Javier vs. Court of Appeals, 231 SCRA 498, 504 (1994); and, Pornellosa vs. Land Tenure Administration, 110 Phil. 986, 991 (1961).

^[13] Summa Insurance Corporation vs. Court of Appeals, 253 SCRA 175, 185 (1996).

^[14] 46 O.G. 3652.

^[15] L-4223, May 12, 1952.

^[16] 20 SCRA 562 (1967).

^[17] 21 SCRA 753 (1967).

^[18] Black's Law Dictionary, p. 1222, citing Noel vs. Olds, 78 U.S. App. D.C. 155.

^[19] Webster's Third New International Dictionary, p. 1555.

^[20] Ang Bagong Bayani-OFW Labor Party vs. COMELEC, 359 SCRA 698, 724 (2001), citing JM Tuason & Co., Inc. vs. Land Tenure Administration, 31 SCRA 413 (1970); Gold Creek Mining Corp. vs. Rodriguez, 66 Phil. 259, 264 (1938); Ruben C. Agpalo, Statutory Construction, 1990 ed., p. 311.

^[21] Guerrero vs. COMELEC, supra, Note No. 4, p. 468, citing Social Security System vs. City of Bacolod, 115 SCRA 412, 415 (1982).

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"A court which yields to the popular will
thereby licenses itself to practice despotism for
there can be no assurance that it will not on
another occasion indulge its own will."^[1]

CALLEJO, SR., J.:

Before the Court are three petitions seeking to disqualify respondent Ronald Allan Kelley Poe as candidate for President of the Republic of the Philippines, on the ground of ineligibility as he is not a natural-born Filipino citizen, one of the qualifications for the said position under Section 2, Article VII of the 1987 Constitution.^[2]

The petitions in G.R. No. 161434^[3] and G.R. No. 161634^[4] were filed directly with this Court invoking Section 4, Article VII of the 1987 Constitution. The petition in G.R. No. 161824 was filed by Victorino X. Fornier under Rule 64 in relation to Rule 65 of the Rules of Court. It seeks to set aside and nullify the Resolution dated February 6, 2004 of the respondent Commission on Elections (COMELEC) en banc which affirmed the Resolution of its First Division dated January 23, 2004 dismissing the petition for disqualification filed against respondent Poe by petitioner Fornier.

I vote to dismiss outright the first two petitions for prematurity and for want of jurisdiction.

It is on the third petition, G.R. No. 161824, that I submit this Opinion.

The petitioner invokes the certiorari jurisdiction of this Court over "a judgment or final order or resolution" of respondent COMELEC by authority of Section 7, Article IX of the 1987 Constitution.^[5]

Briefly, the factual antecedents giving rise to the petition in G.R. No. 161824 are as follows:

On December 31, 2003, respondent Poe filed his Certificate of Candidacy for President with the COMELEC. Among others, it is stated therein that he is a "natural-born Filipino citizen." On January 9, 2004, petitioner Fornier filed a "Petition for Disqualification of Presidential Candidate Ronald Allan Kelley Poe, also known as Fernando Poe, Jr." (the petition a quo). The petitioner asserted that respondent Poe is not a citizen, much more a natural-born citizen, of the Philippines. As such, he lacks one of the essential qualifications for the position of President.

According to the petition a quo, respondent Poe's father, Allan Fernando Poe, was a Spanish citizen as shown by the marriage contract^[6] between him and a certain Paulita Gomez. On the other hand, his mother, Bessie Kelley, was an American citizen as shown by his birth certificate.^[7] Granting arguendo that respondent Poe's father was a Filipino citizen, still, respondent Poe could not acquire the citizenship of his father; the latter's marriage to Bessie Kelley was void, since he was previously married to Paulita Gomez. As an illegitimate child, respondent Poe followed the citizenship of his American mother. The petition a quo then prayed that respondent Poe "be disqualified from running for the position of the President of the Republic of the Philippines and that his Certificate of Candidacy be denied due course, or cancelled."

On the basis of the allegations therein, the petition a quo was treated by the COMELEC (First Division) as a petition to deny due course to or cancel a certificate of candidacy under Section 78 of the Omnibus Election Code.

Pursuant to Section 1,^[8] Rule 23 of the COMELEC Rules of Procedure, the petition was correspondingly docketed as a special action SPA No. 04-003.^[9] Because the proceedings were heard summarily,^[10] respondent Poe was given only three (3) days within which to answer. He seasonably filed his Answer on January 16, 2004 substantially denying the material allegations contained in the petition a quo.^[11] Attached to respondent Poe's answer was his birth certificate^[12] and the marriage contract of his parents, Allan Fernando Poe and Bessie Kelley,^[13] to support his contention that he is a natural-born Filipino citizen and a legitimate child. Respondent Poe also maintained that while his mother was an American citizen, his father was a Filipino citizen. Thus, respondent Poe concluded, he is a natural-born citizen as he follows the citizenship of his father.

The hearing was held on January 19, 2004. The parties were given only two (2) days within which to submit their respective memoranda which was timely filed by the parties on January 21, 2004.^[14]

On January 23, 2004, based on the pleadings filed therewith, the COMELEC (First Division) rendered the assailed Resolution of January 23, 2004, dismissing the petition a quo for lack of merit.^[15] Citing Section 78 of the Omnibus Election Code,^[16] the COMELEC (First Division) opined that it only has jurisdiction to deny due course to or cancel a certificate of candidacy exclusively on the ground that any material representation contained therein is false. It added that, it is not "at liberty to finally declare whether or not the respondent is a natural-born Filipino."

According to the COMELEC (First Division), the evidence adduced by the petitioner, namely:

1. Certificate of Candidacy of Ronald Allan Poe also known as Fernando Poe, Jr.;^[17]
   
   
2. Certificate of Birth of Ronald Allan Poe;^[18]
   
   
3. Sworn Statement in Spanish of one Paulita Gomez;^[19] and
   
   
4. Marriage Certificate of Allan Fernando Poe and Paulita Gomez.^[20]

failed to show "strongly and convincingly" that the declaration in respondent Poe's Certificate of Candidacy as to his citizenship was a falsehood.

The COMELEC (First Division) also made a provisional finding that respondent Poe is a natural-born Filipino. It found that his grandfather, Lorenzo Pou, was a Spanish subject who acquired Filipino citizenship by virtue of Section 4 of the Philippine Bill of 1902.^[21] There being no evidence to show that Lorenzo Pou made a declaration to preserve his allegiance to the Crown of Spain in accordance with Article IX of the Treaty of Paris,^[22] he was held to have renounced it and became a Filipino citizen. Consequently, Allan Fernando Poe, who was born subsequent to his father's acquisition of Filipino citizenship, followed Lorenzo Pou's citizenship.

Regarding the petitioner's claim that respondent Poe is an illegitimate child of Allan Fernando Poe and Bessie Kelley, the COMELEC (First Division) cited Section 1, Article IV of the 1935 Constitution, the law determinative of respondent Poe's citizenship, which stated that:

Sec. 1. The following are citizens of the Philippines:

1. Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution.

...

3. Those whose fathers are citizens of the Philippines.

It noted that the parties agreed on the fact that Allan Fernando Poe was the father of Ronald Allan Poe. Hence, if Allan Fernando Poe was Filipino, necessarily, his son, Ronald Allan Poe, is likewise a Filipino.

As to the allegation that respondent Poe was an illegitimate child, the COMELEC (First Division) ratiocinated that:

Note that section 3 [should read section 1, paragraph (3)] of Article IV of the 1935 Constitution does not have a qualifying term "legitimate" after the words" "those whose fathers" and before the phrase "are citizens of the Philippines." Legitimacy therefore is beside the point. As long as the father is a Filipino, the child will always be a Filipino. As we have discussed early on, since Allan Fernando Poe is a Filipino, his son Ronald Allan Poe, the respondent herein, is a natural-born Filipino.^[23]

Accordingly, it concluded that, "considering the evidence presented by the petitioner is not substantial, we declare that the respondent did not commit any material misrepresentation when he stated in his Certificate of Candidacy that he is a natural-born Filipino citizen."^[24]

Petitioner Fornier then filed with the COMELEC en banc a motion for reconsideration of the First Division's resolution.^[25] He urged the respondent COMELEC to assert its original and exclusive jurisdiction to conclusively determine whether respondent Poe is a natural-born Filipino citizen, invoking paragraphs (1) and (3), Section 2, Article IX-C^[26] of the Constitution and COMELEC Resolution No. 6452.^[27] Further, petitioner Fornier maintained that respondent Poe failed to establish that he is a natural-born Filipino citizen as he failed to rebut the petitioner's evidence tending to show that his grandfather, Lorenzo Pou, and father, Allan Fernando Poe, were Spanish citizens. The petitioner further insisted that even if respondent Poe's father was a Filipino citizen, since his (respondent Poe's) own evidence showed that he was born prior to the marriage of his parents and therefore an illegitimate child, he acquired the citizenship of his mother, i.e., American citizenship. Petitioner Fornier thus reiterated his prayer that respondent Poe's Certificate of Candidacy be denied due course or ordered cancelled for containing a material misrepresentation regarding his citizenship.

On February 6, 2004, the COMELEC en banc promulgated the assailed Resolution dismissing the petitioner's motion for reconsideration for lack of merit.^[28] The COMELEC en banc maintained that since the petition a quo was characterized as one falling under Section 78 of the Omnibus Election Code, the proceedings covered thereby was limited to a determination as to whether or not a material misrepresentation contained in the certificate of candidacy is false. On this score, the COMELEC en banc sustained the propriety of the First Division's declaration on the paucity of the petitioner's evidence to disprove respondent Poe's representation as to his Filipino citizenship. It thereby affirmed that the First Division's favorable pronouncement as to respondent Poe's citizenship was inevitably crucial to resolve the issue as to whether respondent Poe had, indeed, made a material misrepresentation in his CoC as to warrant its denial in due course and/or cancellation.

Aggrieved by the dismissal of the petition a quo, petitioner Fornier now comes to this Court on certiorari.

At the outset, it bears stressing that resort to a special civil action for certiorari under Rule 65 of the Rules of Court, as in the present recourse, is limited to the resolution of jurisdictional issues, that is, lack or excess of jurisdiction and grave abuse of discretion amounting to lack of jurisdiction on the part of the tribunal rendering the assailed decision, order or resolution.^[29] Thus

There is grave abuse of discretion justifying the issuance of the writ of certiorari when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction; where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law.^[30]

Simply stated then, the threshold issue for resolution is whether or not the COMELEC committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in dismissing the petition before it, for failure of the petitioner to prove the essential requisites for the cancellation of the certificate of candidacy of respondent Poe under Section 78 of the Omnibus Election Code.

The well-entrenched principle is that in the absence of any jurisdictional infirmity or an error of law of the utmost gravity, the conclusion rendered by the COMELEC on a matter that falls within its competence is entitled to utmost respect. Not every abuse of discretion justifies the original action of certiorari; it must be grave. The test therefore is whether the petitioner has demonstrated convincingly that the tribunal has committed grave abuse of discretion.^[31]

The COMELEC should have
dismissed the petition for
failure to state a sufficient
basis for the cancellation of
respondent Poe's
certificate of candidacy

Irrefragably, the petition filed before the COMELEC was a petition under Section 78 of the Omnibus Election Code, to cancel the certificate of candidacy of respondent Poe. The said section reads:

Section 78. Petition to deny due course 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. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election.

Section 74 of the Code provides that:

SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge.

Unless a candidate has officially changed his name through a court approved proceeding, a certificate shall use in a certificate of candidacy the name by which he has been baptized, or if has not been baptized in any church or religion, the name registered in the office of the local civil registrar or any other name allowed under the provisions of existing law or, in the case of a Muslim, his Hadji name after performing the prescribed religious pilgrimage: Provided, That when there are two or more candidates for an office with the same name and surname, each candidate, upon being made aware or such fact, shall state his paternal and maternal surname, except the incumbent who may continue to use the name and surname stated in his certificate of candidacy when he was elected. He may also include one nickname or stage name by which he is generally or popularly known in the locality.

The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a statement in duplicate containing his bio-data and program of government not exceeding one hundred words, if he so desires.

A petition for the cancellation of a certificate of candidacy under Section 78 of the Omnibus Election Code must aver three essential elements: (a) the candidate makes a representation in his certificate of candidacy; (b) the representation pertains to a material matter which would affect the substantive rights of the candidate the right to run for the election for which he filed his certificate of candidacy; (c) the candidate makes the false representation with the intention to deceive the electorate as to his qualification for public office or deliberately attempts to mislead, misinform, or hide a fact which would otherwise render him ineligible.^[32] If the petition fails to state the three essential elements, the petitioner would have no cause of action for the cancellation of the certificate of candidacy of the respondent candidate; hence, the petition must be dismissed.

The entries in a certificate of candidacy are prima facie correct. In making the said entries, the candidate is presumed to have acted in good faith. In this case, the material averments of the petition filed in the COMELEC reads:

1. Petitioner is of legal age, Filipino citizen of voting age and registered voter of Pasay City with address at 122 Suerte Street, Pasay City 1300, where he may be served with processes of the Honorable Commission.
   
   
2. Respondent Ronald Allan Kelley Poe, also known as Fernando Poe, Jr. ("Poe"), is a candidate for the position of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino ("KNP") party for the 10 May 2004 elections. Based on his Certificate of Candidacy, respondent Poe claims to be of legal age and is a resident of 23 Lincoln Street, Greenhills, San Juan, Metro Manila, where he may be served with summons and other processes of the Honorable Commission. A copy of respondent Poe's Certificate of Candidacy is attached and made integral part hereof as Annex "A."
   
   
3. Under Section 2, Article VII of the 1987 Constitution, the qualifications of the President of the Republic of the Philippines are enumerated as follows:

   "Sec. 2. 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 resident of the Philippines for at least ten years immediately preceding such election." (Emphasis supplied)

4. Respondent Poe, however, is not even a citizen of the Philippines, much more a natural born citizen, and as such lacks one of the essential qualifications for the position of President of the Republic of the Philippines since both of his parents are not Filipino citizens.
   
   
5. Based on respondent Poe's alleged Certificate of Birth, he was born on 20 August 1939. A copy of the said Certificate of Birth is attached and made integral part hereof as Annex "B."

   5.1. Respondent Poe's alleged Certificate of Birth indicated that his parents are Allan F. Poe and Bessie Kelley.
   
   5.2. Respondent Poe's alleged Certificate of Birth indicated that his mother, Bessie Kelley, is an American citizen.
   
   5.3. However, the alleged Certificate of Birth of respondent Poe falsely or incorrectly indicated the real citizenship of his father, Allan F. Poe, since he is legally not a Filipino citizen, as shown below.

6. Contrary to what was falsely indicated in the alleged Certificate of Birth of respondent Poe, the latter's father, Allan F. Poe, is not a Filipino, but an alien, specifically, a citizen of Spain.

   6.1. On 05 July 1936, Allan F. Poe expressly and categorically declared in a public instrument that he was a Spanish citizen. A copy of the Marriage Contract executed by Allan F. Poe and one Paulita Gomez at the Convento de Santo Domingo at Intramuros, Manila, is attached and made an integral part hereof as Annex "C."
   
   6.2. Moreover, in said Marriage Contract, Allan F. Poe likewise categorically and expressly admitted that both of his parents, Lorenzo Poe and Marta Reyes are also citizens of Spain.
   
   6.3. Clearly, respondent Poe's father is a Spanish citizen whose parents are both Spanish citizens.

7. Thus, respondent Poe could not have possibly acquired Filipino citizenship from his father, Allan F. Poe, since the latter is a Spanish citizen.
   
   
8. But even assuming arguendo that respondent Poe's father, Allan F. Poe was a Filipino citizen, as indicated in respondent Poe's Certificate of Birth (Annex "B" hereof), still respondent Poe could not have validly acquired Filipino citizenship from his father due to the fact that the purported marriage of his parents, Allan F. Poe and Bessie Kelley, is void.

   8.1. Under Philippine jurisprudence, an illegitimate child, i.e. a child conceived and born outside a valid marriage, follows the citizenship of his mother. [United States vs. Ong Tianse, 29 Phil. 332 (1915)].
   
   8.2. As previously stated, respondent Poe's father, Allan F. Poe, married Paulita Gomez on 05 July 1936, which marriage was subsisting at the time of the purported marriage of respondent Poe's father to his mother, Bessie Kelley. (cf. Annex "C" hereof).
   
   8.3. Moreover, it appears that Allan F. Poe's first wife, Paulita Gomez, even filed a case of bigamy and concubinage against him after discovering his bigamous relationship with Bessie Kelley. A copy of the Affidavit dated 13 July 1939 executed by Paulita Gomez in Spanish attesting to the foregoing facts, together with an English translation thereof, are attached and made an integral parts hereof as Annex "D" and "D-1," respectively.

9. Verily, having been born out of void marriage, respondent Poe is an illegitimate child of Allan F. Poe and Bessie Kelley. Consequently, the citizenship of respondent Poe follows that of his mother, Bessie Kelley, who is undeniably an American citizen.
   
   
10. Under the 1935 Constitution, which was then applicable at the time of respondent Poe's birth, only the following are considered Filipino citizens:

    "SECTION 1. The following are citizens of the Philippines:
    
    

    1)	Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution;
    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; and
    5)	Those who are naturalized in accordance with law."

11. Clearly, respondent Poe is not a citizen of the Philippines, much more a natural-born Filipino citizen, considering that both of his parents are aliens. Also, even assuming arguendo that respondent Poe's father, Allan F. Poe, is a Filipino citizen, as indicated in his Certificate of Birth (Annex "B" hereof), since respondent Poe is an illegitimate child of his father with Bessie Kelley, an American, he acquired the citizenship of the latter. [United States vs. Ong Tianse, supra]
    
    
12. Hence, respondent Poe, not being a natural-born citizen of the Philippines, lacks an essential qualification and corollarily possesses a disqualification to be elected President of the Republic of the Philippines, as expressly required under the 1987 Constitution.
    
    
13. In view of the foregoing, respondent Poe should be disqualified from being a candidate for the position of President of the Republic of the Philippines in the coming 10 May 2004 elections.

PRAYER

WHEREFORE, it is respectfully prayed that Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., be disqualified from running for the position of President of the Republic of the Philippines, and that his Certificate of Candidacy be denied due course, or cancelled.^[33]

The petition does not contain any material averments that in stating in his certificate of candidacy that he was a natural-born citizen, respondent Poe intended to deceive the electorate or that he deliberately attempted to mislead, misinform, or hide the fact that he is not eligible for the position of President of the Republic of the Philippines.

The respondent Poe's statement in his CoC that he was a natural-born Filipino citizen does not ipso facto amount to an erroneous and deliberate statement of a material fact which would constitute "material misrepresentation." Indeed, the determination of whether one is "a natural-born citizen" as defined by our Constitution is, ultimately, a conclusion of law.^[34] Corollarily, granting arguendo that respondent Poe's statement in his CoC later turned out to be erroneous or inexact, the same is not entirely groundless, having been honestly based on admitted and authentic public records. Such error could not be considered a falsity within the meaning of Section 78 of the Omnibus Election Code because expressing an erroneous conclusion of law cannot be considered a deliberate untruthful statement of a fact.^[35]

But even if it were to be assumed that respondent Poe's declaration in his CoC that he is a natural-born Filipino citizen is a statement of a fact, the COMELEC did not gravely err in its provisional finding that, based on the records extant in this case, respondent Poe was in truth and in fact a natural-born Filipino citizen. Hence, respondent Poe made no material misrepresentation in his CoC.

The petitioner failed to prove
the essential elements for an
action under Section 78 of the
Omnibus Election Code

Obviously, the burden of proof is, in the first instance, with the party who initiated the action.^[36] But in the final analysis, the party upon whom the ultimate burden lies is to be determined by the pleadings, not by who is the plaintiff or the defendant. The test for determining where the burden of proof lies is to ask which party to an action or suit will fail if he offers no evidence competent to show the facts averred as the basis for the relief he seeks to obtain,^[37] and based on the result of an inquiry, which party would be successful if he offers no evidence.

In ordinary civil cases, the plaintiff has the burden of proving the material allegations of the complaint which are denied by the defendant, and the defendant has the burden of proving the material allegations in his case where he sets up a new matter. All facts in issue and relevant facts must, as a general rule, be proven by evidence except the following:

(1) Allegations contained in the complaint or answer immaterial to the issues.

(2) Facts which are admitted or which are not denied in the answer, provided they have been sufficiently alleged.

(3) Those which are the subject of an agreed statement of facts between the parties; as well as those admitted by the party in the course of the proceedings in the same case.

(4) Facts which are the subject of judicial notice.

(5) Facts which are legally presumed.

(6) Facts peculiarly within the knowledge of the opposite party.^[38]

I am convinced that the petitioner failed to prove that the COMELEC committed a grave abuse of its discretion in dismissing the petition to disqualify respondent Poe for the petitioner's failure to allege and prove that the respondent Poe made a false representation when he stated in his certificate of candidacy that he is a natural-born Filipino.

The only evidence adduced by the petitioner to prove the falsity of respondent Poe's statement that he is a natural-born Filipino are the following:

1. Certified photocopy of the Certificate of Birth of Ronald Allan Poe, which indicates the citizenship of Lorenzo Pou as "Español";^[39]
   
   
2. Certified photocopy of the Marriage Certificate of Allan Fernando Poe and Paulita Gomez, which indicates the citizenship of respondent Poe's father as also "Español";^[40] and
   
   
3. Certification issued by Director Ricardo Manapat that the National Archives does not possess any record in regard to the entry of "Lorenzo Poe" or "Lorenzo Pou" in the Philippines before 1907.^[41]

However, as gleaned from the affidavits of Remmel G. Talabis, Emman A. Llanera, Vicelyn G. Tarin, William Duff and Victorino A. Floro III, the aforementioned documents relied upon by the petitioner are false documents. In fact, the lack of probative value to be credited to the foregoing documents was implicitly affirmed by the petitioner himself during the oral arguments of the parties before the Court on February 19, 2004. Failing to discharge his burden with his own documentary evidence, the petitioner had to rely on the private respondent's Certificate of Birth^[42] and the Marriage Contract^[43] of his parents.

The petitioner alleges that respondent Poe was born on August 20, 1939, that is, before the marriage of his parents on September 16, 1940. Being born out of wedlock, respondent Poe was an illegitimate child who could not acquire the Filipino citizenship of Allan Fernando Poe under Section 1(3), Article IV of the 1935 Constitution which, the petitioner posits, encompass within its terms only legitimate children.^[44] Hence, respondent Poe followed the citizenship of his mother who was an American.^[45] The petitioner further asserts that assuming the validity of the subsequent marriage of respondent Poe's parents, Article 121 of the Old Civil Code^[46] necessitated, as a fundamental requirement of legitimation, that the father and the mother acknowledge the child. In any event, assuming that legitimation had properly taken place, its effects would retroact only to the date of marriage of respondent Poe's parents.^[47] The subsequent legitimation would not anyhow effectively confer upon respondent Poe the status of a "natural-born Filipino citizen" which is defined by our Constitution as "one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship."^[48]

The petitioners' assertions are barren of merit.

First. The provisions of the Old Civil Code adverted to by the petitioner should not be made to apply in the present case. There is no legal impediment to the application in this case of the rule of retroactivity provided in Article 256 of the Family Code to the effect that, "[T]his 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." "Vested right" is a right in property which has become fixed and established and is no longer open to doubt or controversy. It expresses the concept of present fixed interest, which in right reason and natural justice should be protected against arbitrary State action."^[49] In the present case, there appears to be no substantial evidence on record to prove that vested rights will be prejudiced or impaired by a confirmation, that is, of respondent Poe's legitimate status since he has, since birth, been regarded a legitimate child by his parents, siblings and other relatives. Consequently, the provisions of Article 177,^[50] 178,^[51] 179^[52] and 180^[53] of the Family Code may be applied retroactively to respondent Poe's case. As a corollary, respondent Poe's legitimation became the necessary legal consequence of the subsequent marriage of his parents, the effects of which would retroact to the time of respondent Poe's birth in 1939.

Second. As correctly maintained by the COMELEC, the issue of legitimacy bears no direct relevance to the determination of respondent Poe's citizenship in the petition at bar. Contrary to the petitioner's protestations, "legitimacy" or the lack of it cannot by itself be made determinative of a child's citizenship. The fact of legitimacy cannot, even if successfully concluded, be used as a spring board to secure a declaration of a child's citizenship. The legitimate status of a child emanates from civil law which regulates the private relations of the members of civil society, while citizenship is political in character and the ways in which it should be conferred lie outside the ambit of the Civil Code. It is not within the province of our civil law to determine how or when citizenship is to be acquired.^[54] This is precisely evinced by the fact that the right to acquire the parents' citizenship is not among the enumerated rights of a legitimate child under our civil laws.^[55]

Third. Section 1(3), Article IV of the 1935 Constitution did not, by its express terms, distinguish between a legitimate and an illegitimate child for purposes of acquiring the Filipino citizenship of the father. It is a rudiment in legal hermeneutics that when no distinction is made by law, the Court should not distinguish Ubi lex non distinguit nec nos distinguere debemos.^[56]

In Domino v. COMELEC,^[57] we held that:

It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus there are cases where the need for construction is reduced to a minimum.

In Llamado v. Court of Appeals,^[58] the Court affirmed that:

… As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense of internal contradictions.

Any other interpretation of the provision would visit unmitigated violence not only upon statutory construction but on existing laws and the generally accepted principles of international law, to which we are bound under the present state of affairs, as hereafter to be discussed.

Fourth. To circumscribe the application of the endowed political privilege under Section 1(3), Article IV of the 1935 Constitution only to the legitimate children of Filipino fathers would be clearly violative of the equal protection clause of the Constitution. There appears to be no substantial distinction between legitimate and illegitimate children to justify their disparate treatment vis-à-vis the possession of the status of and the exercise of a political privilege, including the right to run for and be elected to public office. The legal status of illegitimacy, however defined, bears no relation to the individual's ability to participate in and contribute to society.^[59] The only purported purpose of the "natural-born citizen" requirement is to ensure the elected public officer's allegiance to the Republic. The petitioners have failed to demonstrate how legitimate or illegitimate birth affects loyalty to the Republic. Not to be overlooked is the fact that a natural child's conception may take place under circumstances that render it practically indistinguishable from that of a legitimate child, except for the absence of a marriage ceremony between the parents. To hold that a child's illegitimacy can bear significance on his right to acquire citizenship is to step from the bounds of law, into the realm of inequitable and bigoted rationalism.

The following provisions and principles of law further militate against a restrictive interpretation of the disputed constitutional provision:

1. Article 3 of P.D. 603, otherwise known as the Child and Youth Welfare Code provides that "all children shall be entitled to the rights herein set forth without distinction as to legitimacy or illegitimacy, sex, social status, religion, political antecedents, and other factors."
   
   
2. The Philippines is a party to the "Convention on the Rights of the Child, Article 2.1 of which guarantees that each child within its jurisdiction shall be treated "without discrimination of any kind, irrespective of the child's … birth or other status."
   
   
3. Article 25 of "The Universal Declaration of Human Rights" itself provides that "all children whether born in or out of wedlock, shall enjoy the same social protection."

Finally, the amici curiae^[60] of the Court are unanimous in their position that Section 1(3), Article IV of the 1935 Constitution is founded upon the principle of jus sanguinis. In other words, the derivation of citizenship from a person, or the transmission of citizenship to his child, springs from blood relationship which, whether injected legitimately or illegimately, is the same blood and has the same political effect. Hence, all that is needed to be established is paternity as a manifestation of blood relationship.

In the present petition, the petitioner does not deny that respondent Poe is the natural son of Allan Fernando Poe. On the question as to whether Allan Fernando Poe was a Filipino citizen, the petitioner failed to adduce evidence to controvert respondent Poe's evidence attesting to the Filipino citizenship of his father. The petitioner initially endeavored to corroborate the Spanish nationality of Lorenzo Pou to bear out the Spanish nationality of Allan Fernando Poe. He then presented a certification by Director Ricardo Manapat stating that the National Archives does not possess any record of a certain LORENZO POE or LORENZO POU residing or entering the Philippines before 1907 in its Spanish Documents Section.^[61] The authenticity of this piece of documentary evidence, however, as earlier alluded to, has been put to serious question for being a fabricated. Also debilitating to its probative value was Manapat's own admission on cross-examination that the National Archives does not have a complete record of all persons who lived in the Philippines during the Spanish and American occupations.

I agree with the position of learned Rev. Joaquin G. Bernas, S.J., thus:

Naturalization can be individual naturalization or mass naturalization. For the purpose of the present case, what is relevant is the mass naturalization achieved by the Treaty of Paris jointly with the Philippine Bill of 1902. These two historical documents decreed that subjects of Spain, whether Peninsulares or Indios, residing in the Philippines on the eleventh day of April 1899 were deemed citizens of the Philippines unless the Peninsulares, that is, natives of Spain, either abandoned Philippine residence within a specified period or elected before a court of record to remain subjects of Spain also within a specified period. Under these documents, therefore, those claiming citizenship must prove that on the date indicated they were (1) subjects of Spain and (2) residents of the Philippines. Conversely, those who challenge the citizenship of Peninsulares must show either that such natives of Spain abandoned Philippine residence or elected before a court of record to remain subjects of Spain.

I submit that these requirements apply to the grandfather of Fernando Poe, Jr., but I am in no position to present evidence in either direction.^[62]

The petitioner challenged the citizenship of Lorenzo Pou. He has not adduced evidence to prove that Lorenzo Pou, while admittedly born a Spanish Subject, was not an inhabitant of the Philippine Islands on December 10, 1898 when Spain ceded the Philippine Islands to the U.S. by virtue of the Treaty of Paris. The petitioner has also failed to proffer evidence to prove that Lorenzo Poe renounced his allegiance to the crown of Spain and embraced Filipino citizenship by operation of law.^[63] Neither has the petitioner disproved Lorenzo Pou's continued residence in the Philippines until his death on September 11, 1954 in San Carlos, Pangasinan,^[64] nor proffered evidence to prove that Lorenzo Pou was a resident of any other state in the intervening period from April 11, 1899 until his death. Incidentally, in the Certification dated January 12, 2004 of excerpts from the Register of Death in San Carlos, Pangasinan,^[65] the citizenship of Lorenzo Pou is stated to be "Filipino." Again, there lies here in favor of respondent Poe's cause a prima facie proof of the Filipino citizenship of his grandfather as per entry in the Civil Register of the latter's Certificate of Death, a public record. Moreover, during his lifetime, Lorenzo Poe comported himself as a Filipino. He voted in elections and did not register as an alien. He even owned real properties in the Philippines.^[66] Accordingly, by Lorenzo Pou's acquisition of Filipino citizenship under the pertinent provisions of the Treaty of Paris and the relevant succeeding laws, Allan Fernando Poe also acquired the Filipino citizenship of his father.

Apart from the foregoing, respondent Poe also presented supplementary evidence corroborating Allan Fernando Poe's Filipino citizenship as revealed by the following facts which have not been in any way refuted by the petitioner:

1. Allan Fernando Poe obtained the degree of Bachelor of Science in Chemistry from the U.P. in 1935 and the degree of Doctor of Dental Medicine from the Philippine Dental College in 1942;
   
   
2. He later became a leading movie actor in the Philippines;
   
   
3. He was called to active duty to serve in the Philippine Army on December 24, 1942; inducted into the USAFE on December 25, 1941, fought in Bulacan, was in the "Death March", and reverted to inactive status with the rank of Captain on November 20, 1945.^[67] On September 27, 1945, he was awarded the "Gold Cross" by "direction of the President" for "meritorious services rendered while under furious and intense enemy bombing and strafing;"^[68] and,
   
   
4. He died on October 23, 1951 and his death certificate also reflected his political status as "Filipino."^[69]

As shown, Allan Fernando Poe comported himself as a Filipino citizen, was regarded as such in the community where he lived, and was acknowledged to be a Filipino by the Philippine government during his lifetime. The paternity of Allan Fernando Poe having been admitted, and his Filipino citizenship having been established, respondent Poe was correct in representing in his CoC that he was a natural-born Filipino citizen.

Accordingly, the petition in G.R. 161824 must be dismissed for failure to show that respondent COMELEC committed grave abuse of discretion in dismissing the petition a quo as the petitioner failed to establish that respondent Poe committed a material misrepresentation, within the meaning of Section 78 of the Omnibus Election Code, when he stated that he is a natural-born Filipino citizen in his Certificate of Candidacy.

One caveat. The resolution of the issue in the present petition will be without prejudice to the filing by the proper party of the appropriate quo warranto petition before the Court En Banc to assail respondent Poe's eligibility in case he wins the elections and there to litigate all the issues raised in as much detail as may be deemed necessary or apropos.

WHEREFORE, I VOTE to

1. DISMISS the petitions in G.R. Nos. 161434 and 161634 for prematurity and want of jurisdiction; and
   
   
2. DISMISS the petition in G.R. No. 161824 for failure to show that respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Resolutions.

---

^[1] A.F.F.L. v. American Scale & Door, Co., 335 US 538, 557 (1949).

^[2] The provision reads in full:

Sec. 2. 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.

^[3] Filed by Maria Jeanette C. Tecson and Felix B. Desiderio, Jr.

^[4] Filed by Zoilo Gomez.

^[5] Sec. 7. Each Commission [referring to the Civil Service Commission, Commission on Audit and Commission on Elections] 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 (Underscoring supplied).

^[6] Exhibit "B-2."

^[7] Exhibit "A."

^[8] B. SPECIAL ACTIONS

Rule 23 Petition to Deny Due Course to or Cancel Certificate of Candidacy

SECTION 1. Grounds for Denial of Certificate of Candidacy. A petition to deny due course to or cancel a certificate of candidacy for any elective office may be filed with the Law Department of the Commission by any citizen of voting age or a duly registered political party, organization, or coalition of political parties on the exclusive ground that any material representation contained therein as required by law is false.

^[9] Annex "A" of the petition in G.R. No. 161824.

^[10] Section 3, Rule 23 of the COMELEC Rules of Procedure states:



Sec. 3. Summary Proceeding. This petition shall be heard summarily after due notice.

^[11] Annex "B" of the petition in G.R. No. 161824.

^[12] Exhibit "3."

^[13] Exhibit "21."

^[14] Annexes "C" & "C-28" of the petition in G.R. No. 161824.

^[15] Annex "D" of the petition in G.R. No. 161824.

^[16] Supra.

^[17] Annex "A" of the petition in SPA No. 04-003.

^[18] Exhibit "A."

^[19] Exhibits "B" & "B-1."

^[20] Exhibit "B-2."

^[21] Sec. 4. That 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.

^[22] The provision reads in full:

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 other 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 may reside.

^[23] Resolution, dated January 23, 2004, of the COMELEC (First Division), p. 11.

^[24] Id. at 12.

^[25] Annexes "E" & "F" of the petition in G.R. No. 161824.

^[26] Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.


(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.


^[27] The pertinent proviso of the Resolution reads:

SECTION 1. Delegation of reception of evidence. -- The Commission hereby designates its field officials who are members of the Philippine Bar to hear and receive evidence in the following petitions:

1. Petition to deny due course or to cancel Certificate of Candidacy;
   
   
2. Petition to declare a nuisance candidate;
   
   
3. Petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code and disqualify a candidate for lack of qualifications or possessing same grounds for disqualification; and
   
   
4. Petition to disqualify a candidate engaged in gunrunning, using and transporting of firearms or in organizing special strike forces.
   
   
   …

SECTION 3. Where to file petitions. -- The petitions shall be filed with the following offices of the Commission:

1. For President, Vice-President, Senator and Party-List Organizations, with the Clerk of the Commission, Commission on Elections in Manila;
   

^[28] Annex "G" of the petition in G.R. No. 161824.

^[29] Recabo, Jr. v. COMELEC, 308 SCRA 793 (1999).

^[30] Malinias v. COMELEC, 390 SCRA 480 (2002).

^[31] Arao v. COMELEC, 210 SCRA 290 (1992).

^[32] Salcedo II v. Commission on Elections, 312 SCRA 447 (1999).

^[33] Supra, pp. 1-6.

^[34] In Syquian v. People (171 SCRA 223 [1989]), the Court held that:

"Conclusion of law" is defined as a proposition not arrived at by any process of natural reasoning from a fact or combination of facts stated but by the application of the artificial rules of law to the facts pleaded [Levins v. Rovegno, 71 Cal. 273, 12 p. 161; Black's Law Dict., p. 362].

^[35] People v. Yanza, 107 Phil. 888 (1960).

^[36] Francisco, The Revised Rules of Court in the Philippines, Vol. VII, Part II, 1997 ed., pp. 5-6.

^[37] Di Baco v. Bendetto, 95 SE 601.

^[38] Francisco, The Revised Rules of Court in the Philippines, Vol. VII, Part II, 1997 ed., pp. 8-9.

^[39] Exhibit "A."

^[40] Exhibit "B-2."

^[41] Exhibit "D."

^[42] Exhibit "3."

^[43] Exhibit "21."

^[44] Citing Morano v. Vivo & Paa v. Chan.

^[45] Exhibit "21."

^[46] The provision reads in full:

Article 121. Children shall be considered as legitimated by a subsequent marriage only when they have been acknowledged by the parents before or after the celebration thereof.

^[47] Article 123 of the Old Civil Code reads in full: In all cases the effects of legitimation shall commence from the date of the marriage.

^[48] Section 2, Article IV of the 1987 Constitution.

^[49] Marquino v. Intermediate Appellate Court, 233 SCRA 348, 355 (1994).

^[50] ART. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.

^[51] ART. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation.

^[52] ART. 179. Legitimated children shall enjoy the same rights as legitimate children.

^[53] ART. 180. The effects of legitimation shall retroact to the time of the child's birth.

^[54] Malkinson v. Agrava, 54 SCRA 66 (1973); Lo Beng Ha Ong v. Republic, 25 SCRA 247 (1968); Uggi Lindamand Therkelsen v. Republic, 12 SCRA 400 (1964).

^[55] Article 114 of the Old Civil Code; Article 264 of the New Civil Code; Article 174 of the Family Code.

^[56] Guerrero v. COMELEC, 336 SCRA 458 (2000).

^[57] 310 SCRA 546 (1999).

^[58] 174 SCRA 566 (1989).

^[59] Weber Aetna Casualty & Surety Co., 406 US 164 (1972).

^[60] Retired Justice Vicente V. Mendoza, Rev. Joaquin G. Bernas, SJ, Dean Merlin M. Magallona, and Prof. Ruben C. Balane.

^[61] Exhibit "D."

^[62] Supra, p. 3.

^[63] Article IX of the Treaty of Paris, supra.

^[64] Exhibit "5."

^[65] Exhibit "5."

^[66] See certified true copy of OCT No. P-2247 and copies of Declaration of Real Property for tax purposes. Exhibits "6" & submarkings.

^[67] See Certification dated January 13, 2004 by Lt. Col. Narciso S. Erna, Asst. Adjutant General (Exhibit "8"). See also Affidavit for Army Personnel dated December 22, 1947 signed by Fernando R. Poe (Exhibit "8-a").

^[68] See General Order No. 175, dated September 27, 1945 (Exhibit "9") and Memorandum For: Lt. Col. Conrado B. Rigor, 0-1535, Office of Chief of Staff, AFP, dated October 27, 1951 (Exhibit "10").

^[69] Exhibit "7."

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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 COMELEC's First Division.

At the hearing before the First Division of the COMELEC, petitioner Fornier offered FPJ's 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 COMELEC's 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 pre-election 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 Fornier's 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.

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