No material misrepresentation in Poe COC –Commissioner Lim

Commission on Elections' Commissioner Christian Robert Lim was the lone dissenting vote in the First Division's decision to cancel the certificate of candidacy for president of Sen. Grace Poe.

The 49-page decision of the division, which granted the three remaining petitions against Poe's candidacy for president before the poll body, came with Lim's 81-page dissenting opinion:

   POE-LLAMANZARES - Dissenting Opinion

Here, the presiding commissioner of the First Division said the disqualification case filed by former Sen. Francisco Tatad should be "dismissed outright for availing of the wrong mode to assail [Poe's] qualifications." 

He also voted to deny two petitions for cancellation of Poe's COC—filed by political science professor Antonio Contreras and University of the East Law dean Amado Valdez—for lack of merit.

No material misrepresentation

Lim said Poe did not commit material misrepresentation in her COC regarding her period of residency in the Philippines.

He wrote that both Contreras and Valdez "failed to take into account that as early as 24 May 2005, the respondent (Poe) was able to show actual, physical, and personal presence in the country, coupled with the intention of permanently residing herein."

He said he found that Poe "did not commit material misrepresentation" when she declared in her COC for president that she would have been residing in the Philippines for 10 years and 11 months on May 9, 2016.

Lim sided with Poe's argument that she was able to re-establish her domicile in the country as of May 24, 2005, even before she reacquired her Filipino citizenship under the Dual Citizenship Act in July 2006.

'Rigidly formalist interpretation'

Lim cited a number of Supreme Court decisions in his dissenting opinion to show that it "looked into the circumstances of 'intent' in its entirety and did not limit it to be defined by one single formal act."

"The rigidly formalist interpretation of petitioners run contrary to how the determination of a person's legal residence or domicile largely depends upon the intention that may be inferred from a person's acts, activities, and utterances," he wrote.

Lim also said the mistake Poe admitted to have committed in her COC for senator "is not conclusive upon her."

He said the declaration -- where Poe said she would have been a resident of the Philippines for six years and six months by May 13, 2013 -- "can be used to negate her claim of period of residency provided and only upon showing that the evidence on record is replete with other evidence showing otherwise."

"If particular attention has been given to respondent's Certificate of Candidacy for senator, then it is but proper to treat the other pieces of evidence with equal importance," he said, adding that the other pieces of evidence support the finding that Poe has established domicile as of May 24, 2005, which meets the 10-year residency requirement.

He added, however, that Poe's mistake in her 2013 COC "opens" her for investigation "for possible commission of perjury," which may be left to the Department of Justice.

Intent to relocate

He said the intent was showed in an email exchange between Poe and her husband and Victory Van Corporation, regarding relocation, storage and shipment services.

"From this point on, respondent had effectively manifested her intent to abandon her residence in the United States and established a new one in the Philippines," Lim wrote.

"Had respondent intended her relocation to be temporary, then she would not have gone to the full extent of relocating most of her household goods and furniture to Manila considering the cost and burden it demanded," he added.

The commissioner added that this move was backed by "a series of positive acts," including the enrollment of her children to schools in Metro Manila, getting a Tax Identification Number in 2005, and the purchase of a residential lot and condominium unit in 2006.

He said Contreras' argument that Poe's residency must be reckoned only when she reacquired her Filipino citizenship "is misplaced and goes against jurisprudential pronouncements treating citizenship and residency differently."

He added that Poe's use of her US passport until 2010 "cannot be used to attack her residency."

Tatad petition

As for Tatad's petition, Lim said the former lawmaker's petition for disqualification under Rule 25 of Comelec Resolution No. 9523 "is a clear transgression" of the poll body's Rules of Procedure, the Ombinus Election Code, and three related Supreme Court rulings since failure to meet citizenship and residency requirements is not part of items that may be disqualified under the rule Tatad was citing.

"While one may argue that the issue at hand is purely a technical matter where this Commission may relax its procedural rule in the interest of justice, it is my belief that the issue of whether petitioner Tatad availed of the proper remedy is of a primordial issue which cannot be ignored in this case considering that the Tatad Petition contains a prayer which seeks to prevent an individual from participating in the electoral process as a candidate," he wrote.

He added that the Supreme Court "has consistently struck down the action of this Commission when the latter chose to delve into the merit of the case instead of ruling directly on whether the proper remedy was availed of."

'Natural-born status cannot be ruled upon'

As for her citizenship, Lim said he believes Poe, a foundling, is not a natural-born Filipino.

However, he said the Comelec First Division could not rule on material misrepresentation based on that as Valdez' petition is limited the lawyer's argument that R.A. 9225 did not confer natural-born status on Poe when she reacquires her Filipino citizenship as a dual citizen.

According to Lim, the division "finds nothing" on Poe's COC that shows she based her claim solely on her reacquisition of Filipino citizenship and eventual renunciation of her American citizenship.

He said he agrees with Valdez that R.A. 9225 cannot restore natural-born status, but conceded that decisions of the Supreme Court that say otherwise are "conclusive and binding on all inferior courts" and also "form part of the [country's] legal system."

He added that the issue of dual allegiance that Valdez pointed out "is more apparent than real, and totally irrelevant" in pointing out Poe's material misrepresentation in her COC.

To end his dissenting opinion, Lim said he felt "duty-bound" to state that Poe's admission that she is a foundling makes her claim in her COC that she is natural-born "not only doubtful, but also untenable."

He wrote, "... I believe that foundlings may be considered Philippine citizens, but they can never be considered natural-born Filipinos unless the Constitution itself so provides."

He said "no amount of legal juggling" will make Poe a natural-born citizen based on the following points:

• that she has not known her biological parents and if at least one of them is Filipino (application of jus sanguinis principle);
• that natural-born Filipino citizens need not do anything in order to acquire or perfect citizenship, and such status must be "the prevailing situation from birth";
• that foundlings "are not among those enumerated" in who are Filipino citizens, as stated in the 1935, 1973, or 1987 Constitutions;
• that "resort to extrinsic aids... are acceptable only after it has been demonstrated that the application of law is impossible or inadequate without it;
• that international law "are unavailing since these cannot supplant or expand on what the Constitution provides";
• that international laws cited by Poe do not grant natural-born status "but merely a right to acquire Philippine citizenship"; and
• that doubt on Poe's natural-born citizenship "must be resolved in favor of the state."

Still, Lim said, "I must reiterate that this is not the issue principally raised by petitioner Valdez. Hence, the Commission cannot, in the guise of performing its solemn duty to enforce election laws, rules, and regulations, or to decide all questions affecting elections, rule squarely on whether in truth and in fact the respondent is a natural born citizen of the Philippines." —KBK/TJD, GMA News