Poe failed citizenship, residency requirements, but didn’t intend to mislead voters

Commission on Elections chair Andres Bautista was a dissenting vote in both en banc resolutions which junked Sen. Grace Poe's appeals to reverse division rulings cancelling her certificate of candidacy for president.

Bautista, the lone member of the en banc who is not part of either division, said he did not believe Poe had a deliberate intent to mislead the public by declaring in her COC that she is a natural-born Filipino and that she meets the 10-year residency requirement.

This runs contrary to the opinion of the majority of the en banc, who voted to say the senator had such intent.

Five commissioners in both cases voted to grant a total of four petitions that seek to take Poe out of the 2016 presidential race on the grounds of citizenship and residency.

While he voted in dissent, Bautista, however, agreed with the commissioners in saying that the senator does not meet either requirement.

Bautista wrote two separate opinions for the rulings -- a three-page concurring and dissenting opinion on the First Division ruling, and a 53-page opinion on the Second Division's.

'No deliberate intent to mislead'

The poll body chief said Poe did not commit material misrepresentation on either citizenship or residency.

He voiced disagreement with the Second Division ruling, which granted the petition of lawyer Estrella Elamparo on the basis of Poe's misrepresentation about her citizenship in her COC for president.

"A perusal of the Resolution shows that the Second Division failed to discuss the import of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible," he said.

After citing several election cases on the matter, in particular those of Romualdez-Marcos and Coquilla, Bautista said that while he believes Poe's declaration of 10 years and 11 months in her COC for president is false, he accepts her explanation that her previous declaration in her COC for senator was an honest mistake.

"I am satisfied with Respondent's explanation... that her 'false' statement in her 2013 COC was just due to an honest mistake which was supposedly caused by the ambiguity in the said COC," he wrote.

Bautista said he agreed with the Second Division, which ruled that Poe did not commit material misrepresentation on declaring she is a natural-born Filipino.

"I agree with the findings of the Second Division that she could not have committed material misrepresentation as regards her citizenship, considering that the issue on whether or not foundlings found in the Philippines are considered natural-born Filipino citizenships has not yet been definitively resolved and settled by the Supreme Court," he wrote.

He added: "As a foundling who grew up in the Philippines immersed in its culture, language and traditions, it was but natural for Respondent to think of herself as a Filipino."

'Not natural-born'

However, Bautista was one with the commissioners in saying Poe is not a natural-born citizen.

He pointed out that the provision of the 1935 Constitution -- which applied when Poe was born in 1968 -- did not include foundlings in its enumeration of who are considered natural-born.

He added that since jus sanguinis, or citizenship determined by blood relationship, applies in the Philippines, ruling that foundlings are included "by the fact that they are found in the Philippines... will necessarily run against the Constitution."

Bautista said Poe "so far failed to show" a direct blood relationship to a Filipino parent, and claiming that she is "probably born of Filipino parents is also insufficient to prove" that she is.

The senator is likewise "not covered by two recognized exceptions" on the matter, he pointed out: She cannot elect Filipino citizenship upon attaining the age of majority because her biological mother is unknown, and repatriation does not grant her the said status.

He added that Poe's adoption by Filipino parents "does not grant her" their citizenship.

Further, he said she also "cannot anchor her case on international law" since the Constitution is the primary rule, and Poe "has failed to sufficiently establish" that those she cited were customary international laws.

'Did not reacquire natural-born status'

In his opinion on the First Division's ruling -- which granted collectively the petitions filed by former Sen. Francisco Tatad, political science professor Antonio Contreras, and former University of the East Law dean Amado Valdez -- Bautista expounded on the issue regarding the status of former Filipinos who reacquire their Philippine citizenship under Republic Act No. 9225.

He said that as per the 1987 Constitution, natural-born citizens are those who are citizens from birth "without having to perform any act to acquire or perfect their Philippine citizenship."

Those who reacquire their citizenship per R.A. 9225 have "to perform an act" to do so, he added. Hence, a former Filipino who reacquires Philippine citizenship, as in Poe's case,  "should be deemed to be a naturalized Filipino citizen."

However, as he pointed out in his other separate opinion, Bautista thinks Poe could not have restored her natural-born status since she was not one to begin with.

Residency

As for Poe's residency, Bautista said the question boils down to the "overt act" that serves as "the tipping point" to determine that she had "unequivocally decided to return and reside in the Philippines."

Pointing out that the question is "when we should start counting," he said he agrees with the Second Division, which ruled that the earliest time Poe could have validly reestablished her domicile in the Philippines was when she reacquired her citizenship.

"However, it bears pointing out that the correct date when Respondent reacquired her Filipino citizenship is not 18 July 2006 (when the Bureau of Immigration granted her petition for reacquisition), as ruled by the Second Division, but 10 July 2006 (when she filed such petition), since jurisprudence provides that the effectivity of repatriation retroacts to the date of application," he wrote.

He pointed out that "given prevailing jurisprudence and foregoing circumstances," it is "reasonable" to conclude that Poe would have only been a resident of the Philippines for nine years and 10 months "at most" -- behind her claim of 10 years and 11 months, and also short of the residency requirement for president.

He added, however: "I say 'at most' because one can logically argue as well that by holding on to her US passport, Respondent continued to have an animus revertendi to the US, a 'Plan B' in case things did not work out int he Philippines."

Bautista thumbed down Poe's claim that she was able to re-establish her domicile in the country as of May 24, 2005, adding that while he agrees that the "big picture" needs to be considered, the final act is required.

"[S]till there is a requirement to identify a final act that gets a returning Filipino 'through the finish line.' By adopting a 'totality of circumstances' approach, one can argue that residence was re-established at the start of the process. But the critical point is at the end. To my mind, the quality of an act is more important than the quantity of the acts," he said.

'May have given wrong interpretation'

However, Bautista said the fault may not be entirely on Poe, as she could not be expected to be an expert in the laws surrounding her residency.

He said making Poe answerable "for something not expressly punished" in Section 78 of the Omnibus Election Code "has constitutional undertones."

"Respondent either genuinely believed that she was a resident but she lacked documentation, or her lawyers and advisers failed to warn her of the implications and difficulties of matching her intent to the requirements of law and jurisprudence, which is already more or less settled. We cannot fault her because this, along with the issue of her citizenship, is a difficult question of law due to the application and not the theory/principle involved," he wrote.

He added: "I cannot presume any bad faith when the Respondent has been forthright and open about the relevant facts... She cannot be faulted for her conclusions, however wrong they are. She is not an expert, even though she is a legislator....  As discussed, the principles on residence are clear, but it is in the appreciation of the facts that can be murky."

He said the issue of Poe's residency is "actually a legal point, despite the factual issues involved."

Further, he pointed out that the senator "presumably consulted with lawyers, advisers, and experts on the matter, and the latter gave her their honest opinion."

"I conclude, therefore, that she may have given the wrong interpretation as to the application of the law, and she is bound by such. She cannot, however, be made to answer for such wrong interpretation beyond being not allowed to run for President... To do so would not only be unjust; it would also go beyond the law," he wrote. — RSJ, GMA News