Justice Velasco’s concurrence

This is the fifth column in my series on the Supreme Court decision on the Grace Poe case. In the first column, I summarized the majority decision written by Justice Jose Perez. I followed that with essays on the concurring opinions of Chief Justice Maria Lourdes Sereno, Justice Marvic Leonen, and Justice Francis Jardeleza. Last Tuesday, I wrote about the dissent of Senior Justice Antonio Carpio.

In his separate opinion, Justice Presbiterio Velasco went directly to the heart of the issues. On residency, Velasco enumerated the requirements to acquire a new domicile namely, (1) residence or bodily presence in the new locality; (2) an intention to remain there (animus manendi); and (3) an intention to abandon the old domicile (animus non revertendi). Making reference to the ponencia, Velasco, dealt with more particularity Poe’s evidence, saying that the evidence presented by Poe sufficiently portrays her intent to stay in the Philippines and to abandon the US since May 2005. In his mind, the facts of the case suggest that Poe’s change of domicile and repatriation from the US to the Philippines was “accomplished, not in a single key move but, through an incremental process that started in early 2005.

He dismissed as illogical the suggestion that Senator Poe’s animus manendi only existed at the time she took her oath of allegiance under RA 9225 in July 2006 and that her animus non revertendi existed only in October 2010 when she renounced her US citizenship. According to Velasco, Poe is not an ordinary “alien” trying to establish her domicile in a “foreign country.” She was born and raised in the Philippines, who went through the tedious motions of, and succeeded in, reestablishing her home in the country. She is, by no means, foreign to the Philippines nor its people. In short, she presented overwhelming evidence of her permanent relocation to the Philippines, her actual residence, and intent to stay in the Philippines since May 2005, i.e., even before she took her oath of allegiance under RA 9225 in July 2006.

On citizenship, Velasco narrated the circumstances surrounding her birth, pointing out that as an admitted foundling Poe has no known biological parents and was found on Sept. 3, 1968 in Jaro, Iloilo when she was but a newborn. She was then adopted by spouses Ronald Allan Kelly and Jesusa Sonora Poe in May 1974. Indeed, while it is not denied that Senator Poe was abandoned by her biological parents, her abandonment on the date and specific place above indicated does not obliterate the fact that she had biological parents and the private respondents had not shown any proof that they were not Filipino citizens.

Section 1, Rule 131 of the Rules of Court provides that the burden of proof is the duty of a party to prove the truth of his claim or defense, or any fact in issue by the amount of evidence required by law. The private respondents had not presented even an iota of proof to show that Senator Poe was not born to Filipino parents. Thus, it was grave abuse of discretion for the Commission on Elections to conclude that Senator Poe was not a natural-born Filipino and had deliberately misrepresented such fact.

For Justice Velasco, to shift the burden of proof to foundlings, like Senator Poe, to prove the citizenship of their parents who had abandoned them is as preposterous as rubbing salt on an open, bleeding wound; it adds insult to injury. The State cannot allow such unconscionable interpretation of our laws. Instead, the judiciary, as the instrumentality of the State in its role of parens patriae, must ensure that the abandoned children, the foundlings, those who were forced into an unfavorable position are duly protected.

As pointed out by petitioner Poe, the same view was shared by the framers of the 1935 Constitution. A delegate to the 1934 Constitutional Convention, Sr. Nicolas Rafols, proposed to explicitly include “children of unknown parentage” in the enumeration of jus sanguinis Philippine Citizens in Section 1, Article IV of the 1935 Constitution. The suggestion, however, was not accepted but not on the ground that these children are not Philippine citizens. Rather, that the cases of foundlings are “few and far in between,” as pointed out by delegate Manuel Roxas, and that citing a similar Spanish Law, they are already presumed to have been born to Filipinos.

For Justice Velasco, an alternative construction of the 1935, not to say the present Constitution, presents dire consequences. In such a scenario, abandoned children with no known parents will be considered stateless. This violates the rights of a child to immediate registration and nationality after birth, as recognized in the United Nation’s Convention on the Rights of the Child. Thus, the good Justice could not subscribe to the proposal that foundlings are not natural-born Filipino citizens.

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