CLEARING THE ISSUES

By Jorge D. Lomboy
July 7, 2015



Issues in the public domain are polluted and the public mind is convoluted because of too much talk.  We are overwhelmed by weedy talk and a riot of arguments on the qualifications of Senator Grace Poe to run for president.  Everyone will keep flipping the coin until we separate the chaff from the grain.  I have to stir a hornet’s nest when I say that the requirements to run for president are not drawn from commentaries by the deans of the colleges of law, the reporters or analysts.  The requirements are not determined by the opinions of jurists, legal experts or law professors.  They don’t come from the advocacy of policy makers, decision makers or the voice of the people.  Commentary, opinion and advocacy predicated on the wrong premise ushered in the blurry mess beclouding the issues.  The requirements to run for president are inscribed in Article VII, Section 2 of the Constitution which per se is the only yardstick that preempts the issues.

Article VII, Section 2 spells out the requirements when it states that no person may be elected president unless he is: 1) a natural born citizen of the Philippines, 2) a registered voter, 3) able to read and write, 4) is at least 40 years of age on the day of the election, and 5) a resident of the Philippines for at least 10 years immediately preceding such election.  There is no question that the lady senator is a registered voter, able to read and write and at least 40 years of age on the day of the election having been born on September 3, 1968.  The only issues we need to address are whether she is a natural born Filipino citizen and a resident of the Philippines for at least 10 years immediately preceding the election.  Both requirements (natural born and residency) are issues of fact and not issues of law, questions of fact and not questions of law, conclusions of fact and not conclusions of law.  Every comment, every subject and every opinion that does not deal with natural born and residency has no basis in law and in fact.

The law defines a natural born citizen as a person born within the jurisdiction of a national government.  The Philippines is a “jus sanguinis” country which means right of blood in Latin.  By jus sanguinis, a child’s citizenship is determined by the citizenship of the parents.  There is evidence to prove that the lady senator’s biological parents are Filipino citizens.  She is perforce a natural born Filipino citizen regardless of the country where she was born.  It doesn’t matter whether she is a legitimate or illegitimate child.  Even as her biological parents are not known, there is no question that her adoptive parents are both Filipino citizens.  On this premise, she is a natural born Filipino citizen.

A natural born status is vested at birth.  Once a natural born, always a natural born.  She doesn’t lose her status as a natural born citizen by naturalization by acquiring or renouncing dual citizenship.  The status as a natural born citizen is not lost by residency in a foreign country or by leaving a domicile of origin to live in a domicile of choice.  Once vested, always vested.  The status as a natural born citizen can neither be waived nor renounced for it is innate, inherent, irrevocable and irreplaceable like a birth date.  By virtue of jus sanguinis, the lady senator is a natural born citizen of the Philippines by the right of blood.  Not even death could extinguish a status based on blood.

The other is issue is whether the lady senator is a resident of the Philippines for at least 10 years immediately preceding the election.  One principle of statutory construction comes into play and that is “expressio unius est exclusio alterious” meaning express mention of one thing excludes all others not mentioned.  Since the Constitution mentions the word resident, we must exclude the word domicile.  We must deal with and stick to the word resident and refrain from interchanging it with domicile.  Legal luminaries mislead us by raising domicile as an issue when the law requires residence.  A resident is not a domiciliary and a residence is not necessarily a domicile.  A domicile is the wrong premise to start an argument.  Residency is the correct premise to raise the issue and argument.

It is appropriate to question her residency but it is inappropriate to bring domicile to issue.  The wrong question produces the wrong answer and the wrong conclusion and the right question calls for the right answer and the right conclusion.  A wrong cannot be cured by another wrong.  Let no one sway you by shifting the residence issue to domicile.  The law clears the mess when it defines residence and domicile differently and the definitions are as clear as black and white.  The definitions presuppose a foregone conclusion that a resident is not necessarily a domiciliary and that a residence is not necessarily a domicile.  We need to address whether the lady senator is a resident of the Philippines and brush aside questions dealing with domicile.

The law defines residence as a place where one actually lives as distinguished from domicile.  It means bodily or physical presence as an inhabitant in a given place.  A resident means someone dwelling in a place other than home.  A person may have more than one residence at a time but only one domicile.  All that is required to establish residence is physical presence in one place for a short or long term.  The dwelling place need not be one’s home where loved ones live.  Bodily and physical presence in one place and nothing else is what makes someone a resident and it is what residency means.  Whether the lady senator was a resident of the Philippines for at least 10 years preceding the election is a question of fact based on the definition of residence and is not a question of law.

The law defines domicile as a place where a person has his true, fixed, principal and permanent home to which whenever he is absent he intends to return, so called “animus revertendi.”  Domicile refers to a true home and residence does not require a true home.  Domicile refers to a fixed home and residence is not necessarily a fixed home.  Domicile refers to a principal home and residence is not necessarily a principal home.  Domicile refers to a permanent home and residence is not necessarily a permanent home.  Domicile refers to a home and residence is not necessarily one’s home.  Domicile requires an intention to return and residence does not require an intention to return.  The Constitution requires proof of residency but does not require proof of domicile.

Dual citizenship, U.S. passport, travel documents and renunciation of U.S. citizenship are pieces of paper that don’t establish bodily and physical presence in one place.  These pieces of paper are collateral matters and do not establish, whether directly or indirectly, the factual foundation of the residency requirement.  Proof that the lady senator had no domicile in the Philippines, had no home there and did not intend to return there are not probative of lack of residence.  All these collateral matters, whether documentary, testimonial or otherwise, would lead us to barking up the wrong tree.  Article VII, Section 2 of the Constitution separates the chaff from the grain.  Residency is the central issue and the Constitution provides the big picture for everyone to see the full moon.  All that is required to show residency is for the lady senator to prove that she was bodily and physically present in the Philippines from April 2006 to April 2016.  Her qualification to run for president depends entirely and exclusively on this 10-year residency rule.  Until and unless she could establish the prerequisite 10-year residency, her bid for the presidency is borderline.  I leave it to you to agree or disagree with my analysis of Article VII, Section 2 for it is the only law that is relevant in clearing the issues.