Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. 92191-92 July 30, 1991

ANTONIO Y. CO, petitioner,

vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE
ONG, JR., respondents.

G.R. Nos. 92202-03 July 30, 1991

SIXTO T. BALANQUIT, JR., petitioner,

vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE
ONG, JR., respondents.

Hechanova & Associates for petitioner Co.

Brillantes, Nachura, Navarro and Arcilla Law Offices for respondent Ong, Jr.

GUTIERREZ, JR., J.:p

The petitioners come to this Court asking for the setting aside and reversal of a decision
of the House of Representatives Electoral Tribunal (HRET).

The HRET declared that respondent Jose Ong, Jr. is a natural born Filipino citizen and
a resident of Laoang, Northern Samar for voting purposes. The sole issue before us is
whether or not, in making that determination, the HRET acted with grave abuse of
discretion.

On May 11, 1987, the congressional election for the second district of Northern Samar
was held.

Among the candidates who vied for the position of representative in the second
legislative district of Northern Samar are the petitioners, Sixto Balinquit and Antonio Co
and the private respondent, Jose Ong, Jr.
Respondent Ong was proclaimed the duly elected representative of the second district
of Northern Samar.

The petitioners filed election protests against the private respondent premised on the
following grounds:

1) Jose Ong, Jr. is not a natural born citizen of the Philippines; and

2) Jose Ong, Jr. is not a resident of the second district of Northern Samar.

The HRET in its decision dated November 6, 1989, found for the private respondent.

A motion for reconsideration was filed by the petitioners on November 12, 1989. This
was, however, denied by the HRET in its resolution dated February 22, 1989.

Hence, these petitions for certiorari.

We treat the comments as answers and decide the issues raised in the petitions.

ON THE ISSUE OF JURISDICTION

The first question which arises refers to our jurisdiction.

The Constitution explicitly provides that the House of Representatives Electoral Tribunal
(HRET) and the Senate Electoral Tribunal (SET) shall be the sole judges of all contests
relating to the election, returns, and qualifications of their respective members.
(See Article VI, Section 17, Constitution)

The authority conferred upon the Electoral Tribunal is full, clear and complete. The use
of the word sole emphasizes the exclusivity of the jurisdiction of these Tribunals.

The Supreme Court in the case of Lazatin v. HRET (168 SCRA 391 [1988]) stated that
under the 1987 Constitution, the jurisdiction of the Electoral Tribunal is original and
exclusive, viz:

The use of the word "sole" emphasizes the exclusive character of the
jurisdiction conferred (Angara v. Electoral Commission, supra at p. 162).
The exercise of power by the Electoral Commission under the 1935
Constitution has been described as "intended to be as complete and
unimpaired as if it had originally remained in the legislature." (id., at p.
175) Earlier this grant of power to the legislature was characterized by
Justice Malcolm as "full, clear and complete; (Veloso v. Board of
Canvassers of Leyte and Samar, 39 Phil. 886 [1919]) Under the amended
1935 Constitution, the power was unqualifiedly reposed upon the Electoral
Tribunal and it remained as full, clear and complete as that previously
granted the Legislature and the Electoral Commission, (Lachica v. Yap, 25
 SCRA 140 [1968]) The same may be said with regard to the jurisdiction of
the Electoral Tribunal under the 1987 Constitution. (p. 401)

The Court continued further, ". . . so long as the Constitution grants the HRET the power
to be the sole judge of all contests relating to election, returns and qualifications of
members of the House of Representatives, any final action taken by the HRET on a
matter within its jurisdiction shall, as a rule, not be reviewed by this Court . . . the power
granted to the Electoral Tribunal is full, clear and complete and excludes the exercise of
any authority on the part of this Court that would in any wise restrict it or curtail it or
even affect the same." (pp. 403-404)

When may the Court inquire into acts of the Electoral Tribunals under our constitutional
grants of power?

In the later case of Robles v. HRET (181 SCRA 780 [1990]) the Supreme Court stated
that the judgments of the Tribunal are beyond judicial interference save only "in the
exercise of this Court's so-called extraordinary jurisdiction, . . . upon a determination
that the Tribunal's decision or resolution was rendered without or in excess of its
jurisdiction, or with grave abuse of discretion or paraphrasing Morrero, upon a clear
showing of such arbitrary and improvident use by the Tribunal of its power as
constitutes a denial of due process of law, or upon a demonstration of a very clear
unmitigated ERROR, manifestly constituting such GRAVE ABUSE OF DISCRETION
that there has to be a remedy for such abuse." (at pp. 785-786)

In the leading case of Morrero v. Bocar (66 Phil. 429 [1938]) the Court ruled that the
power of the Electoral Commission "is beyond judicial interference except, in any event,
upon a clear showing of such arbitrary and improvident use of power as will constitute a
denial of due process." The Court does not venture into the perilous area of trying to
correct perceived errors of independent branches of the Government, It comes in only
when it has to vindicate a denial of due process or correct an abuse of discretion so
grave or glaring that no less than the Constitution calls for remedial action.

The Supreme Court under the 1987 Constitution, has been given an expanded
jurisdiction, so to speak, to review the decisions of the other branches and agencies of
the government to determine whether or not they have acted within the bounds of the
Constitution. (See Article VIII, Section 1, Constitution)

Yet, in the exercise thereof, the Court is to merely check whether or not the
governmental branch or agency has gone beyond the Constitutional limits of its
jurisdiction, not that it erred or has a different view. In the absence of a showing that the
HRET has committed grave abuse of discretion amounting to lack of jurisdiction, there
is no occasion for the Court to exercise its corrective power; it will not decide a matter
which by its nature is for the HRET alone to decide. (See Marcos v. Manglapus, 177
SCRA 668 [1989]) It has no power to look into what it thinks is apparent error.
As constitutional creations invested with necessary power, the Electoral Tribunals,
although not powers in the tripartite scheme of the government, are, in the exercise of
their functions independent organs independent of Congress and the Supreme
Court. The power granted to HRET by the Constitution is intended to be as complete
and unimpaired as if it had remained originally in the legislature. (Angara v. Electoral
Commission, 63 Phil. 139 [1936])

In passing upon petitions, the Court with its traditional and careful regard for the balance
of powers, must permit this exclusive privilege of the Tribunals to remain where the
Sovereign authority has place it. (See Veloso v. Boards of Canvassers of Leyte and
Samar, 39 Phil. 886 [1919])

It has been argued that under Article VI, Section 17 of the present Constitution, the
situation may exist as it exists today where there is an unhealthy one-sided political
composition of the two Electoral Tribunals. There is nothing in the Constitution,
however, that makes the HRET because of its composition any less independent from
the Court or its constitutional functions any less exclusive. The degree of judicial
intervention should not be made to depend on how many legislative members of the
HRET belong to this party or that party. The test remains the same-manifest grave
abuse of discretion.

In the case at bar, the Court finds no improvident use of power, no denial of due
process on the part of the HRET which will necessitate the exercise of the power of
judicial review by the Supreme Court.

ON THE ISSUE OF CITIZENSHIP

The records show that in the year 1895, the private respondent's grandfather, Ong Te,
arrived in the Philippines from China. Ong Te established his residence in the
municipality of Laoang, Samar on land which he bought from the fruits of hard work.

As a resident of Laoang, Ong Te was able to obtain a certificate of residence from the
then Spanish colonial administration.

The father of the private respondent, Jose Ong Chuan was born in China in 1905. He
was brought by Ong Te to Samar in the year 1915.

Jose Ong Chuan spent his childhood in the province of Samar. In Laoang, he was able
to establish an enduring relationship with his neighbors, resulting in his easy
assimilation into the community.

As Jose Ong Chuan grew older in the rural and seaside community of Laoang, he
absorbed Filipino cultural values and practices. He was baptized into Christianity. As the
years passed, Jose Ong Chuan met a natural born-Filipino, Agripina Lao. The two fell in
love and, thereafter, got married in 1932 according to Catholic faith and practice.
The couple bore eight children, one of whom is the private respondent who was born in
1948.

The private respondent's father never emigrated from this country. He decided to put up
a hardware store and shared and survived the vicissitudes of life in Samar.

The business prospered. Expansion became inevitable. As a result, a branch was set-
up in Binondo, Manila. In the meantime, the father of the private respondent, unsure of
his legal status and in an unequivocal affirmation of where he cast his life and family,
filed with the Court of First Instance of Samar an application for naturalization on
February 15, 1954.

On April 28, 1955, the CFI of Samar, after trial, declared Jose Ong Chuan a Filipino
citizen.

On May 15, 1957, the Court of First Instance of Samar issued an order declaring the
decision of April 28, 1955 as final and executory and that Jose Ong Chuan may already
take his Oath of Allegiance.

Pursuant to said order, Jose Ong Chuan took his Oath of Allegiance; correspondingly, a
certificate of naturalization was issued to him.

At the time Jose Ong Chuan took his oath, the private respondent then a minor of nine
years was finishing his elementary education in the province of Samar. There is nothing
in the records to differentiate him from other Filipinos insofar as the customs and
practices of the local populace were concerned.

Fortunes changed. The house of the family of the private respondent in Laoang, Samar
was burned to the ground.

Undaunted by the catastrophe, the private respondent's family constructed another one
in place of their ruined house. Again, there is no showing other than that Laoang was
their abode and home.

After completing his elementary education, the private respondent, in search for better
education, went to Manila in order to acquire his secondary and college education.

In the meantime, another misfortune was suffered by the family in 1975 when a fire
gutted their second house in Laoang, Samar. The respondent's family constructed still
another house, this time a 16-door apartment building, two doors of which were
reserved for the family.

The private respondent graduated from college, and thereafter took and passed the
CPA Board Examinations.
Since employment opportunities were better in Manila, the respondent looked for work
here. He found a job in the Central Bank of the Philippines as an examiner. Later,
however, he worked in the hardware business of his family in Manila. In 1971, his elder
brother, Emil, was elected as a delegate to the 1971 Constitutional Convention. His
status as a natural born citizen was challenged. Parenthetically, the Convention which
in drafting the Constitution removed the unequal treatment given to derived citizenship
on the basis of the mother's citizenship formally and solemnly declared Emil Ong,
respondent's full brother, as a natural born Filipino. The Constitutional Convention had
to be aware of the meaning of natural born citizenship since it was precisely amending
the article on this subject.

The private respondent frequently went home to Laoang, Samar, where he grew up and
spent his childhood days.

In 1984, the private respondent married a Filipina named Desiree Lim.

For the elections of 1984 and 1986, Jose Ong, Jr. registered himself as a voter of
Laoang, Samar, and correspondingly, voted there during those elections.

The private respondent after being engaged for several years in the management of
their family business decided to be of greater service to his province and ran for public
office. Hence, when the opportunity came in 1987, he ran in the elections for
representative in the second district of Northern Samar.

Mr. Ong was overwhelmingly voted by the people of Northern Samar as their
representative in Congress. Even if the total votes of the two petitioners are combined,
Ong would still lead the two by more than 7,000 votes.

The pertinent portions of the Constitution found in Article IV read:

SECTION 1, the following are citizens of the Philippines:

1. Those who are citizens of the Philippines at the time of the adoption of
the Constitution;

2. Those whose fathers or mothers are citizens of the Philippines;

3. Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; and

4. Those who are naturalized in accordance with law.

SECTION 2, Natural-born Citizens are those who are citizens of the

Philippines from birth without having to perform any act to acquire or
perfect their citizenship. Those who elect Philippine citizenship in
 accordance with paragraph 3 hereof shall be deemed natural-born
citizens.

The Court interprets Section 1, Paragraph 3 above as applying not only to those who
elect Philippine citizenship after February 2, 1987 but also to those who, having been
born of Filipino mothers, elected citizenship before that date.

The provision in Paragraph 3 was intended to correct an unfair position which

discriminates against Filipino women. There is no ambiguity in the deliberations of the
Constitutional Commission, viz:

Mr. Azcuna: With respect to the provision of section 4, would

this refer only to those who elect Philippine citizenship after
the effectivity of the 1973 Constitution or would it also cover
those who elected it under the 1973 Constitution?

Fr. Bernas: It would apply to anybody who elected Philippine

citizenship by virtue of the provision of the 1935 Constitution
whether the election was done before or after January 17,
1973. (Records of the Constitutional Commission, Vol. 1, p.
228; Emphasis supplied)

xxx xxx xxx

Mr. Trenas: The Committee on Citizenship, Bill of Rights,

Political Rights and Obligations and Human Rights has more
or less decided to extend the interpretation of who is a
natural-born citizen as provided in section 4 of the 1973
Constitution by adding that persons who have elected
Philippine Citizenship under the 1935 Constitution shall be
natural-born? Am I right Mr. Presiding Officer?

Fr. Bernas: yes.

xxx xxx xxx

Mr. Nolledo: And I remember very well that in the Reverend

Father Bernas' well written book, he said that the decision
was designed merely to accommodate former delegate
Ernesto Ang and that the definition on natural-born has no
retroactive effect. Now it seems that the Reverend Father
Bernas is going against this intention by supporting the
amendment?
 Fr. Bernas: As the Commissioner can see, there has been
an evolution in my thinking. (Records of the Constitutional
Commission, Vol. 1, p. 189)

xxx xxx xxx

Mr. Rodrigo: But this provision becomes very important

because his election of Philippine citizenship makes him not
only a Filipino citizen but a natural-born Filipino citizen
entitling him to run for Congress. . .

Fr. Bernas: Correct. We are quite aware of that and for that
reason we will leave it to the body to approve that provision
of section 4.

Mr. Rodrigo: I think there is a good basis for the provision

because it strikes me as unfair that the Filipino citizen who
was born a day before January 17, 1973 cannot be a Filipino
citizen or a natural-born citizen. (Records of the
Constitutional Commission, Vol. 1, p. 231)

xxx xxx xxx

Mr. Rodrigo: The purpose of that provision is to remedy an

inequitable situation. Between 1935 and 1973 when we were
under the 1935 Constitution, those born of Filipino fathers
but alien mothers were natural-born Filipinos. However,
those born of Filipino mothers but alien fathers would have
to elect Philippine citizenship upon reaching the age of
majority; and if they do elect, they become Filipino citizens
but not natural-born Filipino citizens. (Records of the
Constitutional Commission, Vol. 1, p. 356)

The foregoing significantly reveals the intent of the framers. To make the provision
prospective from February 3, 1987 is to give a narrow interpretation resulting in an
inequitable situation. It must also be retroactive.

It should be noted that in construing the law, the Courts are not always to be hedged in
by the literal meaning of its language. The spirit and intendment thereof, must prevail
over the letter, especially where adherence to the latter would result in absurdity and
injustice. (Casela v. Court of Appeals, 35 SCRA 279 [1970])

A Constitutional provision should be construed so as to give it effective operation and

suppress the mischief at which it is aimed, hence, it is the spirit of the provision which
should prevail over the letter thereof. (Jarrolt v. Mabberly, 103 U.S. 580)
In the words of the Court in the case of J.M. Tuason v. LTA (31 SCRA 413 [1970]:

To that primordial intent, all else is subordinated. Our Constitution, any

constitution is not to be construed narrowly or pedantically for the
prescriptions therein contained, to paraphrase Justice Holmes, are not
mathematical formulas having their essence in their form but are organic
living institutions, the significance of which is vital not formal. . . . (p. 427)

The provision in question was enacted to correct the anomalous situation where one
born of a Filipino father and an alien mother was automatically granted the status of a
natural-born citizen while one born of a Filipino mother and an alien father would still
have to elect Philippine citizenship. If one so elected, he was not, under earlier laws,
conferred the status of a natural-born.

Under the 1973 Constitution, those born of Filipino fathers and those born of Filipino
mothers with an alien father were placed on equal footing. They were both considered
as natural-born citizens.

Hence, the bestowment of the status of "natural-born" cannot be made to depend on the
fleeting accident of time or result in two kinds of citizens made up of essentially the
same similarly situated members.

It is for this reason that the amendments were enacted, that is, in order to remedy this
accidental anomaly, and, therefore, treat equally all those born before the 1973
Constitution and who elected Philippine citizenship either before or after the effectivity of
that Constitution.

The Constitutional provision in question is, therefore curative in nature. The enactment
was meant to correct the inequitable and absurd situation which then prevailed, and
thus, render those acts valid which would have been nil at the time had it not been for
the curative provisions. (See Development Bank of the Philippines v. Court of Appeals,
96 SCRA 342 [1980])

There is no dispute that the respondent's mother was a natural born Filipina at the time
of her marriage. Crucial to this case is the issue of whether or not the respondent
elected or chose to be a Filipino citizen.

Election becomes material because Section 2 of Article IV of the Constitution accords

natural born status to children born of Filipino mothers before January 17, 1973, if
they elect citizenship upon reaching the age of majority.

To expect the respondent to have formally or in writing elected citizenship when he

came of age is to ask for the unnatural and unnecessary. The reason is obvious. He
was already a citizen. Not only was his mother a natural born citizen but his father had
been naturalized when the respondent was only nine (9) years old. He could not have
divined when he came of age that in 1973 and 1987 the Constitution would be amended
to require him to have filed a sworn statement in 1969 electing citizenship inspite of his
already having been a citizen since 1957. In 1969, election through a sworn statement
would have been an unusual and unnecessary procedure for one who had been a
citizen since he was nine years old.

We have jurisprudence that defines "election" as both a formal and an informal process.

In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the
exercise of the right of suffrage and the participation in election exercises constitute a
positive act of election of Philippine citizenship. In the exact pronouncement of the
Court, we held:

Esteban's exercise of the right of suffrage when he came of age,

constitutes a positive act of election of Philippine citizenship (p. 52;
emphasis supplied)

The private respondent did more than merely exercise his right of suffrage. He has
established his life here in the Philippines.

For those in the peculiar situation of the respondent who cannot be expected to have
elected citizenship as they were already citizens, we apply the In Re Mallare rule.

The respondent was born in an outlying rural town of Samar where there are no alien
enclaves and no racial distinctions. The respondent has lived the life of a Filipino since
birth. His father applied for naturalization when the child was still a small boy. He is a
Roman Catholic. He has worked for a sensitive government agency. His profession
requires citizenship for taking the examinations and getting a license. He has
participated in political exercises as a Filipino and has always considered himself a
Filipino citizen. There is nothing in the records to show that he does not embrace
Philippine customs and values, nothing to indicate any tinge of alien-ness no acts to
show that this country is not his natural homeland. The mass of voters of Northern
Samar are frilly aware of Mr. Ong's parentage. They should know him better than any
member of this Court will ever know him. They voted by overwhelming numbers to have
him represent them in Congress. Because of his acts since childhood, they have
considered him as a Filipino.

The filing of sworn statement or formal declaration is a requirement for those who still
have to elect citizenship. For those already Filipinos when the time to elect came up,
there are acts of deliberate choice which cannot be less binding. Entering a profession
open only to Filipinos, serving in public office where citizenship is a qualification, voting
during election time, running for public office, and other categorical acts of similar nature
are themselves formal manifestations of choice for these persons.

An election of Philippine citizenship presupposes that the person electing is an alien. Or

his status is doubtful because he is a national of two countries. There is no doubt in this
case about Mr. Ong's being a Filipino when he turned twenty-one (21).
We repeat that any election of Philippine citizenship on the part of the private
respondent would not only have been superfluous but it would also have resulted in an
absurdity. How can a Filipino citizen elect Philippine citizenship?

The respondent HRET has an interesting view as to how Mr. Ong elected citizenship. It
observed that "when protestee was only nine years of age, his father, Jose Ong Chuan
became a naturalized Filipino. Section 15 of the Revised Naturalization Act squarely
applies its benefit to him for he was then a minor residing in this country. Concededly, it
was the law itself that had already elected Philippine citizenship for protestee by
declaring him as such." (Emphasis supplied)

The petitioners argue that the respondent's father was not, validly, a naturalized citizen
because of his premature taking of the oath of citizenship.

The Court cannot go into the collateral procedure of stripping Mr. Ong's father of his
citizenship after his death and at this very late date just so we can go after the son.

The petitioners question the citizenship of the father through a collateral approach. This
can not be done. In our jurisdiction, an attack on a person's citizenship may only be
done through a direct action for its nullity. (See Queto v. Catolico, 31 SCRA 52 [1970])

To ask the Court to declare the grant of Philippine citizenship to Jose Ong Chuan as
null and void would run against the principle of due process. Jose Ong Chuan has
already been laid to rest. How can he be given a fair opportunity to defend himself. A
dead man cannot speak. To quote the words of the HRET "Ong Chuan's lips have long
been muted to perpetuity by his demise and obviously he could not use beyond where
his mortal remains now lie to defend himself were this matter to be made a central issue
in this case."

The issue before us is not the nullification of the grant of citizenship to Jose Ong Chuan.
Our function is to determine whether or not the HRET committed abuse of authority in
the exercise of its powers. Moreover, the respondent traces his natural born citizenship
through his mother, not through the citizenship of his father. The citizenship of the father
is relevant only to determine whether or not the respondent "chose" to be a Filipino
when he came of age. At that time and up to the present, both mother and father were
Filipinos. Respondent Ong could not have elected any other citizenship unless he first
formally renounced Philippine citizenship in favor of a foreign nationality. Unlike other
persons faced with a problem of election, there was no foreign nationality of his father
which he could possibly have chosen.

There is another reason why we cannot declare the HRET as having committed
manifest grave abuse of discretion. The same issue of natural-born citizenship has
already been decided by the Constitutional Convention of 1971 and by the Batasang
Pambansa convened by authority of the Constitution drafted by that Convention. Emil
Ong, full blood brother of the respondent, was declared and accepted as a natural born
citizen by both bodies.
Assuming that our opinion is different from that of the Constitutional Convention, the
Batasang Pambansa, and the respondent HRET, such a difference could only be
characterized as error. There would be no basis to call the HRET decision so arbitrary
and whimsical as to amount to grave abuse of discretion.

What was the basis for the Constitutional Convention's declaring Emil Ong a natural
born citizen?

Under the Philippine Bill of 1902, inhabitants of the Philippines who were Spanish
subjects on the 11th day of April 1899 and then residing in said islands and their
children born subsequent thereto were conferred the status of a Filipino citizen.

Was the grandfather of the private respondent a Spanish subject?

Article 17 of the Civil Code of Spain enumerates those who were considered Spanish
Subjects, viz:

ARTICLE 17. The following are Spaniards:

1. Persons born in Spanish territory.

2. Children born of a Spanish father or mother, even though they were

born out of Spain.

3. Foreigners who may have obtained naturalization papers.

4. Those without such papers, who may have acquired domicile in any
town in the Monarchy. (Emphasis supplied)

The domicile of a natural person is the place of his habitual residence. This domicile,
once established is considered to continue and will not be deemed lost until a new one
is established. (Article 50, NCC; Article 40, Civil Code of Spain; Zuellig v. Republic, 83
Phil. 768 [1949])

As earlier stated, Ong Te became a permanent resident of Laoang, Samar around

1895. Correspondingly, a certificate of residence was then issued to him by virtue of his
being a resident of Laoang, Samar. (Report of the Committee on Election Protests and
Credentials of the 1971 Constitutional Convention, September 7, 1972, p. 3)

The domicile that Ong Te established in 1895 continued until April 11, 1899; it even
went beyond the turn of the 19th century. It is also in this place were Ong Te set-up his
business and acquired his real property.

As concluded by the Constitutional Convention, Ong Te falls within the meaning of sub-
paragraph 4 of Article 17 of the Civil Code of Spain.
Although Ong Te made brief visits to China, he, nevertheless, always returned to the
Philippines. The fact that he died in China, during one of his visits in said country, was
of no moment. This will not change the fact that he already had his domicile fixed in the
Philippines and pursuant to the Civil Code of Spain, he had become a Spanish subject.

If Ong Te became a Spanish subject by virtue of having established his domicile in a

town under the Monarchy of Spain, necessarily, Ong Te was also an inhabitant of the
Philippines for an inhabitant has been defined as one who has actual fixed residence in
a place; one who has a domicile in a place. (Bouvier's Law Dictionary, Vol. II) A priori,
there can be no other logical conclusion but to educe that Ong Te qualified as a Filipino
citizen under the provisions of section 4 of the Philippine Bill of 1902.

The HRET itself found this fact of absolute verity in concluding that the private
respondent was a natural-born Filipino.

The petitioners' sole ground in disputing this fact is that document presented to prove it
were not in compliance with the best the evidence rule. The petitioners allege that the
private respondent failed to present the original of the documentary evidence,
testimonial evidence and of the transcript of the proceedings of the body which the
aforesaid resolution of the 1971 Constitutional Convention was predicated.

On the contrary, the documents presented by the private respondent fall under the
exceptions to the best evidence rule.

It was established in the proceedings before the HRET that the originals of the
Committee Report No. 12, the minutes of the plenary session of 1971 Constitutional
Convention held on November 28, 1972 cannot be found.

This was affirmed by Atty. Ricafrente, Assistant Secretary of the 1971 Constitutional
Convention; by Atty. Nolledo, Delegate to the 1971 Constitutional Convention; and by
Atty. Antonio Santos, Chief Librarian of the U.P Law Center, in their respective
testimonies given before the HRET to the effect that there is no governmental agency
which is the official custodian of the records of the 1971 Constitutional Convention.
(TSN, December 12, 1988, pp. 30-31; TSN, January 17, 1989, pp. 34-35; TSN,
February 1, 1989, p. 44; TSN, February 6, 1989, pp. 28-29)

The execution of the originals was established by Atty. Ricafrente, who as the Assistant
Secretary of the 1971 Constitutional Convention was the proper party to testify to such
execution. (TSN, December 12, 1989, pp. 11-24)

The inability to produce the originals before the HRET was also testified to as
aforestated by Atty. Ricafrente, Atty. Nolledo, and Atty. Santos. In proving the inability to
produce, the law does not require the degree of proof to be of sufficient certainty; it is
enough that it be shown that after a bona fide diligent search, the same cannot be
found. (see Government of P.I. v. Martinez, 44 Phil. 817 [1918])
Since the execution of the document and the inability to produce were adequately
established, the contents of the questioned documents can be proven by a copy thereof
or by the recollection of witnesses.

Moreover, to erase all doubts as to the authenticity of the documentary evidence cited in
the Committee Report, the former member of the 1971 Constitutional Convention, Atty.
Nolledo, when he was presented as a witness in the hearing of the protest against the
private respondent, categorically stated that he saw the disputed documents presented
during the hearing of the election protest against the brother of the private respondent.
(TSN, February 1, 1989, pp. 8-9)

In his concurring opinion, Mr. Justice Sarmiento, a vice-president of the Constitutional

Convention, states that he was presiding officer of the plenary session which
deliberated on the report on the election protest against Delegate Emil Ong. He cites a
long list of names of delegates present. Among them are Mr. Chief Justice Fernan, and
Mr. Justice Davide, Jr. The petitioners could have presented any one of the long list of
delegates to refute Mr. Ong's having been declared a natural-born citizen. They did not
do so. Nor did they demur to the contents of the documents presented by the private
respondent. They merely relied on the procedural objections respecting the admissibility
of the evidence presented.

The Constitutional Convention was the sole judge of the qualifications of Emil Ong to be
a member of that body. The HRET by explicit mandate of the Constitution, is the sole
judge of the qualifications of Jose Ong, Jr. to be a member of Congress. Both bodies
deliberated at length on the controversies over which they were sole judges. Decisions
were arrived at only after a full presentation of all relevant factors which the parties
wished to present. Even assuming that we disagree with their conclusions, we cannot
declare their acts as committed with grave abuse of discretion. We have to keep clear
the line between error and grave abuse.

ON THE ISSUE OF RESIDENCE

The petitioners question the residence qualification of respondent Ong.

The petitioners lose sight of the meaning of "residence" under the Constitution. The
term "residence" has been understood as synonymous with domicile not only under the
previous Constitutions but also under the 1987 Constitution.

The deliberations of the Constitutional Commission reveal that the meaning of

residence vis-a-vis the qualifications of a candidate for Congress continues to remain
the same as that of domicile, to wit:

Mr. Nolledo: With respect to Section 5, I remember that in

the 1971 Constitutional Convention, there was an attempt to
require residence in the place not less than one year
immediately preceding the day of the elections. So my
 question is: What is the Committee's concept of residence of
a candidate for the legislature? Is it actual residence or is it
the concept of domicile or constructive residence?

Mr. Davide: Madame President, in so far as the regular

members of the National Assembly are concerned, the
proposed section merely provides, among others, and a
resident thereof, that is, in the district, for a period of not less
than one year preceding the day of the election. This was in
effect lifted from the 1973 Constitution, the interpretation
given to it was domicile. (Records of the 1987 Constitutional
Convention, Vol. 11, July 22, 1986. p. 87)

xxx xxx xxx

Mrs. Rosario Braid: The next question is on Section 7, page

2. I think Commissioner Nolledo has raised the same point
that "resident" has been interpreted at times as a matter of
intention rather than actual residence.

Mr. De los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentlemen consider at

the proper time to go back to actual residence rather than
mere intention to reside?

Mr. De los Reyes: But we might encounter some difficulty

especially considering that a provision in the Constitution in
the Article on Suffrage says that Filipinos living abroad may
vote as enacted by law. So, we have to stick to the original
concept that it should be by domicile and not physical and
actual residence. (Records of the 1987 Constitutional
Commission, Vol. 11, July 22, 1986, p. 110)

The framers of the Constitution adhered to the earlier definition given to the word
"residence" which regarded it as having the same meaning as domicile.

The term "domicile" denotes a fixed permanent residence to which when absent for
business or pleasure, one intends to return. (Ong Huan Tin v. Republic, 19 SCRA 966
[1967]) The absence of a person from said permanent residence, no matter how long,
notwithstanding, it continues to be the domicile of that person. In other words, domicile
is characterized by animus revertendi (Ujano v. Republic, 17 SCRA 147 [1966])

The domicile of origin of the private respondent, which was the domicile of his parents,
is fixed at Laoang, Samar. Contrary to the petitioners' imputation, Jose Ong, Jr. never
abandoned said domicile; it remained fixed therein even up to the present.
The private respondent, in the proceedings before the HRET sufficiently established
that after the fire that gutted their house in 1961, another one was constructed.

Likewise, after the second fire which again destroyed their house in 1975, a sixteen-
door apartment was built by their family, two doors of which were reserved as their
family residence. (TSN, Jose Ong, Jr., November 18,1988, p. 8)

The petitioners' allegation that since the private respondent owns no property in
Laoang, Samar, he cannot, therefore, be a resident of said place is misplaced.

The properties owned by the Ong Family are in the name of the private respondent's
parents. Upon the demise of his parents, necessarily, the private respondent, pursuant
to the laws of succession, became the co-owner thereof (as a co- heir), notwithstanding
the fact that these were still in the names of his parents.

Even assuming that the private respondent does not own any property in Samar, the
Supreme Court in the case of De los Reyes v. Solidum (61 Phil. 893 [1935]) held that it
is not required that a person should have a house in order to establish his residence
and domicile. It is enough that he should live in the municipality or in a rented house or
in that of a friend or relative. (Emphasis supplied)

To require the private respondent to own property in order to be eligible to run for
Congress would be tantamount to a property qualification. The Constitution only
requires that the candidate meet the age, citizenship, voting and residence
requirements. Nowhere is it required by the Constitution that the candidate should also
own property in order to be qualified to run. (see Maquera v. Borra, 122 Phil. 412
[1965])

It has also been settled that absence from residence to pursue studies or practice a
profession or registration as a voter other than in the place where one is elected, does
not constitute loss of residence. (Faypon v. Quirino, 96 Phil. 294 [1954])

As previously stated, the private respondent stayed in Manila for the purpose of
finishing his studies and later to practice his profession, There was no intention to
abandon the residence in Laoang, Samar. On the contrary, the periodical journeys
made to his home province reveal that he always had the animus revertendi.

The Philippines is made up not only of a single race; it has, rather, undergone an
interracial evolution. Throughout our history, there has been a continuing influx of
Malays, Chinese, Americans, Japanese, Spaniards and other nationalities. This racial
diversity gives strength to our country.

Many great Filipinos have not been whole-blooded nationals, if there is such a person,
for there is none. To mention a few, the great Jose Rizal was part Chinese, the late
Chief Justice Claudio Teehankee was part Chinese, and of course our own President,
Corazon Aquino is also part Chinese. Verily, some Filipinos of whom we are proud were
ethnically more Chinese than the private respondent.

Our citizens no doubt constitute the country's greatest wealth. Citizenship is a special
privilege which one must forever cherish.

However, in order to truly revere this treasure of citizenship, we do not, on the basis of
too harsh an interpretation, have to unreasonably deny it to those who qualify to share
in its richness.

Under the overly strict jurisprudence surrounding our antiquated naturalization laws only
the very affluent backed by influential patrons, who were willing to suffer the indignities
of a lengthy, sometimes humiliating, and often corrupt process of clearances by minor
bureaucrats and whose lawyers knew how to overcome so many technical traps of the
judicial process were able to acquire citizenship. It is time for the naturalization law to be
revised to enable a more positive, affirmative, and meaningful examination of an
applicant's suitability to be a Filipino. A more humane, more indubitable and less
technical approach to citizenship problems is essential.

WHEREFORE, the petitions are hereby DISMISSED. The questioned decision of the
House of Representatives Electoral Tribunal is AFFIRMED. Respondent Jose Ong, Jr.
is declared a natural-born citizen of the Philippines and a resident of Laoang, Northern
Samar.

SO ORDERED.

Bidin, Grio-Aquino, Medialdea and Davide, Jr., JJ., concur.

Fernan, C.J., Melencio-Herrera, Cruz, Feliciano and Gancayco, JJ., took no part.

Separate Opinions

PADILLA, J., dissenting:

I dissent.

These separate petitions for certiorari and mandamus seek to annul the decision * of
respondent House of Representatives Electoral Tribunal (hereinafter referred to as the
tribunal) dated 6 November 1989 which declared private respondent Jose L. Ong, a
natural-born citizen of the Philippines and a legal resident of Laoang, Northern Samar,
and the resolution of the tribunal dated 22 February 1990 denying petitioners' motions
for reconsideration.

In G.R. Nos. 92191-92, petitioner Co also prays that the Court declare private
respondent Ong not qualified to be a Member of the House of Representatives and to
declare him (petitioner Co) who allegedly obtained the highest number of votes among
the qualified candidates, the duly elected representative of the second legislative district
of Northern Samar. In G.R. Nos. 92202-03, petitioner Balanquit prays that the Court
declare private respondent Ong and Co (petitioner in G.R. Nos. 92191-92) not qualified
for membership in the House of Representatives and to proclaim him (Balanguit) as the
duly elected representative of said district.

Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and private respondent Jose Ong
Chuan, Jr. were among the candidates for the position of Representative or
Congressman for the second district of Northern Samar during the 11 May 1987
congressional elections. Private respondent was proclaimed duly-elected on 18 May
1987 with a plurality of some sixteen thousand (16,000) votes over petitioner Co who
obtained the next highest number of votes.

Petitioners Co and Balanquit then filed separate election protests against private
respondent with the tribunal, docketed as HRET Cases Nos. 13 and 15 respectively.
Both protests raised almost the same issues and were thus considered and decided
jointly by the tribunal.

The issues raised before the tribunal were the following:

1. Whether or not protestee (meaning, Ong) is a natural-born citizen of the

Philippines in contemplation of Section 6, Article VI of the 1987
Constitution in relation to Sections 2 and 1(3), Article IV thereof; and

2. Whether or not protestee was a resident of Laoang, Northern Samar, in

contemplation of Section 6, Article VI of the same Constitution, for a
period of not less than one year immediately preceding the congressional
elections of May 1987.

The respondent tribunal in its decision dated 6 November 1989 held that respondent
Jose L. Ong is a natural-born citizen of the Philippines and was a legal resident of
Laoang, Northern Samar for the required period prior to the May 1987 congressional
elections. He was, therefore, declared qualified to continue in office as Member of the
House of Representatives, Congress of the Philippines, representing the second
legislative district of Northern Samar.

The factual antecedents taken from the consolidated proceedings in the tribunal are the
following:
1. The Protestee (Ong) was born on June 19, 1948 to the legal spouses
Ong Chuan also known as Jose Ong Chuan and Agrifina E. Lao. His place
of birth is Laoang which is now one of the municipalities comprising the
province of Northern Samar (Republic Act No. 6132 approved on August
24, 1970 and the Ordinance appended to the 1987 Constitution).

2. On the other hand, Jose Ong Chuan was born in China and arrived in
Manila on December 16, 1915. (Exhibit zz) Subsequently thereafter, he
took up residence in Laoang, Samar.

3. On February 4, 1932, he married Agrifina E. Lao. Their wedding was

celebrated according to the rites and practices of the Roman Catholic
Church in the Municipality of Laoang (Exh. E).

4. At the time of her marriage to Jose Ong Chuan, Agrifina E. Lao was a
natural-born Filipino citizen, both her parents at the time of her birth being
Filipino citizens. (Exhibits E & I)

5. On February 15, 1954, Jose Ong Chuan, desiring to acquire Philippine

citizenship, filed his petition for naturalization with the Court of First
Instance of Samar, pursuant to Commonwealth Act No. 473, otherwise
known as the Revised Naturalization Law.

6. On April 28, 1955, the Court of First Instance of Samar rendered a

decision approving the application of Jose Ong Chuan for naturalization
and declaring said petitioner a Filipino citizen "with all the rights and
privileges and duties, liabilities and obligations inherent to Filipino citizens.
(Exh. E)

7. On May 15, 1957, the same Court issued an order:

(1) declaring the decision of this Court of April 28, 1955 final
and executory;

(2) directing the clerk of court to issue the corresponding

Certificate of Naturalization in favor of the applicant Ong
Chuan who prefers to take his oath and register his name as
Jose Ong Chuan. Petitioner may take his oath as Filipino
citizen under Ms new christian name, Jose Ong Chuan.
(Exh. F)

8. On the same day, Jose Ong Chuan having taken the corresponding
oath of allegiance to the Constitution and the Government of the
Philippines as prescribed by Section 12 of Commonwealth Act No. 473,
was issued the corresponding Certificate of Naturalization. (Exh. G)
 9. On November 10, 1970, Emil L. Ong, a full-brother of the protestee and
a son born on July 25, 1937 at Laoang, Samar to the spouses Jose Ong
Chuan and Agrifina E. Lao, was elected delegate from Northern Samar to
the 1971 Constitutional Convention.

10. By protestee's own -testimony, it was established that he had attended

grade school in Laoang. Thereafter, he went to Manila where he finished
his secondary as well as his college education. While later employed in
Manila, protestee however went home to Laoang whenever he had the
opportunity to do so, which invariably would be as frequent as twice to four
times a year.

11. Protestee also showed that being a native and legal resident of
Laoang, he registered as a voter therein and correspondingly voted in said
municipality in the 1984 and 1986 elections.

12. Again in December 1986, during the general registration of all voters in
the country, Protestee re-registered as a voter in Precinct No. 4 of
Barangay Tumaguinting in Laoang. In his voter's affidavit, Protestee
indicated that he is a resident of Laoang since birth. (Exh. 7) 1

Petitioners' motions for reconsideration of the tribunal's decision having been denied,
petitioners filed the present petitions.

In their comments, the respondents first raise the issue of the Court's jurisdiction to
review the decision of the House Electoral Tribunal, considering the constitutional
provision vesting upon said tribunal the power and authority to act as the sole judge of
all contests relating to the qualifications of the Members of the House of
Representatives. 2

On the question of this Court's jurisdiction over the present controversy, I believe that,
contrary to the respondents' contentions, the Court has the jurisdiction and competence
to review the questioned decision of the tribunal and to decide the present controversy.

Article VIII, Section I of the 1987 Constitution provides that:

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 any branch or instrumentality of the Government.

The Constitution, it is true, constitutes the tribunal as the sole judge of all contests
relating to the election, returns, and qualifications of Members of the House of
Representatives. But as early as 1938, it was held in Morrero vs.Bocar, 3 construing
Section 4, Article VI of the 1935 Constitution which provided that ". . . The Electoral
Commission shall be the sole judge of all contests relating to the election, returns and
qualifications of the Members of the National Assembly," that:

The judgment rendered by the (electoral) commission in the exercise of

such an acknowledged power is beyond judicial interference, except, in
any event, "upon a clear showing of such arbitrary and improvident use of
the power as will constitute a denial of due process of law." (Barry vs. US
ex rel. Cunningham, 279 US 597; 73 Law. ed., 867; Angara vs. Electoral
Commission, 35 Off. Gaz., 23.)

And then under the afore-quoted provisions of Article VIII, Section 1 of the 1987
Constitution, this Court is duty-bound to determine whether or not, in an actual
controversy, there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.

The present controversy, it will be observed, involves more than perceived irregularities
in the conduct of a congressional election or a disputed appreciation of ballots, in which
cases, it may be contended with great legal force and persuasion that the decision of
the electoral tribunal should be final and conclusive, for it is, by constitutional directive,
made the sole judge of contests relating to such matters. The present controversy,
however, involves no less than a determination of whether the qualifications for
membership in the House of Representatives, as prescribed by the Constitution, have
been met. Indeed, this Court would be unforgivably remiss in the performance of its
duties, as mandated by the Constitution, were it to allow a person, not a natural-born
Filipino citizen, to continue to sit as a Member of the House of Representatives, solely
because the House Electoral Tribunal has declared him to be so. In such a case, the
tribunal would have acted with grave abuse of discretion amounting to lack or excess of
jurisdiction as to require the exercise by this Court of its power of judicial review.

Besides, the citizenship and residence qualifications of private respondent for the office
of Member of the House of Representatives, are here controverted by petitioners who,
at the same time, claim that they are entitled to the office illegally held by private
respondent. From this additional direction, where one asserts an earnestly perceived
right that in turn is vigorously resisted by another, there is clearly a justiciable
controversy proper for this Court to consider and decide.

Nor can it be said that the Court, in reviewing the decision of the tribunal, asserts
supremacy over it in contravention of the time-honored principle of constitutional
separation of powers. The Court in this instance simply performs a function entrusted
and assigned to it by the Constitution of interpreting, in a justiciable controversy, the
pertinent provisions of the Constitution with finality.

It is the role of the Judiciary to refine and, when necessary, correct

constitutional (and/or statutory) interpretation, in the context of the
interactions of the three branches of the government, almost always in
situations where some agency of the State has engaged in action that
 stems ultimately from some legitimate area of governmental power (the
Supreme Court in Modern Role, C.B. Sevisher, 1958, p. 36). 4

Moreover, it is decidedly a matter of great public interest and concern to determine

whether or not private respondent is qualified to hold so important and high a public
office which is specifically reserved by the Constitution only to natural-born Filipino
citizens.

After a careful consideration of the issues and the evidence, it is my considered opinion
that the respondent tribunal committed grave abuse of discretion amounting to lack or
excess of jurisdiction in rendering its questioned decision and resolution, for reasons to
be presently stated.

The Constitution 5 requires that a Member of the House of Representatives must be a

natural-born citizen of the Philippines and, on the day of the election, is at least twenty-
five (25) years of age, able to read and write, and, except the party-list representatives,
a registered voter in the district in which he shall be elected, and a resident thereof for a
period of not less than one (1) year immediately preceding the day of the election.

Article IV, Section 2 of the 1987 Constitution defines natural-born (Filipino) citizens as:

Natural-born citizens are those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their Philippine
citizenship. Those who elect Philippine citizenship in accordance with
paragraph (3), Section I hereof shall be deemed natural-born citizen,

Article IV, Section 1, paragraph (3) of the 1987 Constitution provides that:

Section 1. The following are citizens of the Philippines:

xxx xxx xxx

(3) Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority.

The Court in this case is faced with the duty of interpreting the above-quoted
constitutional provisions. The first sentence of Section 2 of Article IV states the basic
definition of a natural-born Filipino citizen. Does private respondent fall within said
definition?

To the respondent tribunal,

Protestee may even be declared a natural-born citizen of the Philippines

under the first sentence of Sec. 2 of Article IV of the 1987 Constitution
because he did not have "to perform any act to acquire or perfect his
Philippine citizenship." It bears to repeat that on 15 May 1957, while still a
 minor of 9 years he already became a Filipino citizen by declaration of
law. Since his mother was a natural-born citizen at the time of her
marriage, protestee had an inchoate right to Philippine citizenship at the
moment of his birth and, consequently the declaration by virtue of Sec. 15
of CA 473 that he was a Filipino citizen retroacted to the moment of his
birth without his having to perform any act to acquire or perfect such
Philippine citizenship. 6

I regret that I am neither convinced nor persuaded by such kaleidoscopic ratiocination.

The records show that private respondent was born on 19 June 1948 to the spouses
Jose Ong Chuan, a Chinese citizen, and Agrifina E. Lao, a natural-born Filipino citizen,
in Laoang, Northern Samar. In other words, at birth, private respondent was a Chinese
citizen (not a natural-born Filipino citizen) because his father was then a Chinese citizen
(not a naturalized Filipino citizen). Under the 1935 Constitution which was enforced at
the time of private respondent's birth on 19 June 1948, only those whose fathers were
citizens of the Philippines were considered Filipino citizens. Those whose mothers were
citizens of the Philippines had to elect Philippine citizenship upon reaching the age of
majority, in order to be considered Filipino citizens. 7

Following the basic definition in the 1987 Constitution of a natural-born citizen, in

relation to the 1935 Constitution, private respondent is not a natural-born Filipino
citizen, having been born a Chinese citizen by virtue of the Chinese citizenship of his
father at the time of his birth, although from birth, private respondent had the right to
elect Philippine citizenship, the citizenship of his mother, but only upon his reaching the
age of majority.

While under Section 15 of the Revised Naturalization Law (C.A. 473) minor children of a
naturalized citizen (father), who were born in the Philippines prior to the naturalization of
the parent automatically become Filipino citizens, 8 this does not alter the fact that
private respondent was not born to a Filipino father, and the operation of Section 15 of
CA 473 did not confer upon him the status of a natural-born citizen merely because he
did not have to perform any act to acquire or perfect his status as a Filipino citizen.

But even assuming arguendo that private respondent could be considered a natural-
born citizen by virtue of the operation of CA 473, petitioners however contend that the
naturalization of private respondent's father was invalid and void from the beginning,
and, therefore, private respondent is not even a Filipino citizen.

Respondent tribunal in its questioned decision ruled that only a direct proceeding for
nullity of naturalization as a Filipino citizen is permissible, and, therefore, a collateral
attack on Ong Chuan's naturalization is barred in an electoral contest which does not
even involve him (Ong Chuan).

Private respondent, for his part, avers in his Comment that the challenge against Ong
Chuan's naturalization must emanate from the Government and must be made in a
proper/appropriate and direct proceeding for de-naturalization directed against the
proper party, who in such case is Ong Chuan, and also during his lifetime.

A judgment in a naturalization proceeding is not, however, afforded the character of

impregnability under the principle of res judicata. 9 Section 18 of CA 473 provides that a
certificate of naturalization may be cancelled upon motion made in the proper
proceeding by the Solicitor General or his representative, or by the proper provincial
fiscal.

In Republic vs. Go Bon Lee, 10 this Court held that:

An alien friend is offered under certain conditions the privilege of

citizenship. He may accept the offer and become a citizen upon
compliance with the prescribed conditions, but not otherwise. His claim is
of favor, not of right. He can only become a citizen upon and after a strict
compliance with the acts of Congress. An applicant for this high privilege
is bound, therefore, to conform to the terms upon which alone the right he
seeks can be conferred. It is his province, and he is bound, to see that the
jurisdictional facts upon which the grant is predicated actually exist and if
they do not he takes nothing by this paper grant.

xxx xxx xxx

Congress having limited this privilege to a specified class of persons, no

other person is entitled to such privilege, nor to a certificate purporting to
grant it, and any such certificate issued to a person not so entitled to
receive it must be treated as a mere nullity, which confers no legal rights
as against the government, from which it has been obtained without
warrant of law.

"Naturalization is not a right, but a privilege of the most discriminating as well as delicate
and exacting nature, affecting public interest of the highest order, and which may be
enjoyed only under the precise conditions prescribed by law therefor." 11

Considering the legal implications of the allegation made by the petitioners that the
naturalization of private respondent's father Ong Chuan, is a nullity, the Court should
make a ruling on the validity of said naturalization proceedings. This course of action
becomes all the more inevitable and justified in the present case where, to repeat for
stress, it is claimed that a foreigner is holding a public
office. 12

It cannot be overlooked, in this connection, that the citizenship of private respondent is

derived from his father. If his father's Filipino citizenship is void from the beginning, then
there is nothing from which private respondent can derive his own claimed Filipino
citizenship. For a spring cannot rise higher than its source. And to allow private
respondent to avail of the privileges of Filipino citizenship by virtue of a void
naturalization of his father, would constitute or at least sanction a continuing offense
against the Constitution.

The records show that private respondent's father, Jose Ong Chuan, took the oath of
allegiance to the Constitution and the Philippine Government, as prescribed by Section
12 of CA 473 on the same day (15 May 1957) that the CFI issued its order directing the
clerk of court to issue the corresponding Certificate of Naturalization and for the
applicant to take the oath of allegiance.

However, it is settled that an order granting a petition to take the requisite oath of
allegiance of one who has previously obtained a decision favorable to his application for
naturalization, is appealable. It is, therefore, improper and illegal to authorize the taking
of said oath upon the issuance of said order and before the expiration of the
reglementary period to perfect any appeal from said order. 13

In Cua Sun Ke vs. Republic, 14 this Court held that:

Administration of the oath of allegiance on the same day as issuance of

order granting citizenship is irregular and makes the proceedings so taken
null and void. (Republic vs. Guy, 115 SCRA 244 [1982]; citing the case of
Ong So vs. Republic of the Philippines, 121 Phil. 1381).

It would appear from the foregoing discussion that the naturalization of Jose Ong Chuan
(private respondent's father) was null and void. It follows that the private respondent did
not acquire any legal rights from the void naturalization of his father and thus he cannot
himself be considered a Filipino citizen, more so, a natural-born Filipino citizen.

But assuming that the CFI order of 15 May 1957 directing the clerk of court to issue the
certificate of naturalization to Ong Chuan and for the latter to take the oath of allegiance
was final and not appealable, the resulting naturalization of Ong Chuan effected, as
previously stated, an automatic naturalization of private respondent, then a minor, as a
Filipino citizen on 15 May 1957, but not his acquisition or perfection of the status of a
natural-born Filipino citizen.

Let us now look into the question of whether or not private respondent acquired the
status of a natural-born Filipino citizen by reason of the undisputed fact that his mother
was a natural-born Filipino citizen. This in turn leads us to an examination of the second
sentence in Article IV, Section 2 of the 1987 Constitution. It expands, in a manner of
speaking, in relation to Section 1, paragraph (3) of the same Article IV, the status of a
natural-born Filipino citizen to those who elect Philippine citizenship upon reaching the
age of majority. The right or privilege of election is available, however, only to those
born to Filipino mothers under the 1935 Constitution, and before the 1973 Constitution
took effect on 17 January 1973.

The petitioners contend that the respondent tribunal acted in excess of its jurisdiction or
gravely abused its discretion as to exceed its jurisdiction in "distorting" the conferment
by the 1987 Constitution of the status of "natural-born" Filipino citizen on those who
elect Philippine citizenship all in its strained effort, according to petitioners, to support
private respondent's qualification to be a Member of the House of Representatives. 15

Petitioners argue that the clear, unambiguous wording of section 1(3) of Article IV of the
1987 Constitution contemplates that only the legitimate children of Filipino mothers with
alien father, born before 17 January 1973 and who would reach the age of majority (and
thus elect Philippine citizenship) after the effectivity of the 1987 Constitution are entitled
to the status of natural-born Filipino citizen. 16

The respondent tribunal in resolving the issue of the constitutional provisions'

interpretation, found reason to refer to the interpellations made during the 1986
Constitutional Commission. It said:

That the benevolent provisions of Sections 2 and 1(3) of Article IV of the

1987 Constitution was (sic) intended by its (sic) framers to be endowed,
without distinction, to all Filipinos by election pursuant to the 1935
Constitution is more than persuasively established by the extensive
interpellations and debate on the issue as borne by the official records of
the 1986 Constitutional Commission. 17

Although I find the distinction as to when election of Philippine citizenship was made
irrelevant to the case at bar, since private respondent, contrary to the conclusion of the
respondent tribunal, did not elect Philippine citizenship, as provided by law, I still
consider it necessary to settle the controversy regarding the meaning of the
constitutional provisions in question.

I agree with respondent tribunal that the debates, interpellations petitions and opinions
expressed in the 1986 Constitutional Commission may be resorted to in ascertaining the
meaning of somewhat elusive and even nebulous constitutional provisions. Thus

The ascertainment of that intent is but in keeping with the fundamental

principle of constitutional construction that the intent of the framers of the
organic law and of the people adopting it should be given effect. The
primary task in constitutional construction is to ascertain and thereafter
assure the realization of the purpose of the framers and of the people in
the adoption of the Constitution. It may also be safely assumed that the
people in ratifying the constitution were guided mainly by the explanation
offered by the framers. 18

The deliberations of the 1986 Constitutional Commission relevant to Section 2, Article

IV in relation to Section 1(3) of the same Article, appear to negate the contention of
petitioners that only those born to Filipino mothers before 17 January 1973 and who
would elect Philippine citizenship after the effectivity of the 1987 Constitution, are to be
considered natural-born Filipino citizens.
During the free-wheeling discussions on citizenship, Commissioner Treas specifically
asked Commissioner Bernas regarding the provisions in question, thus:

MR. TRENAS: The Committee on Citizenship, Bill of Rights,

Political Rights and Obligations and Human Rights has more
or less decided to extend the interpretation of who is a
natural-born Filipino citizen as provided in Section 4 of the
1973 Constitution, by adding that persons who have elected
Philippine citizenship under the 1935 Constitution shall be
considered natural-born. Am I right, Mr. Presiding Officer?

FR BERNAS: Yes.

MR. TRENAS: And does the Commissioner think that tills

addition to Section 4 of the 1973 Constitution would be
contrary to the spirit of that section?

FR BERNAS: Yes, we are quite aware that it is contrary to

the letter really. But whether it is contrary to the spirit is
something that has been debated before and is being
debated even now. We will recall that during the 1971
Constitutional Convention, the status of natural-born
citizenship of one of the delegates, Mr. Ang, was challenged
precisely because he was a citizen by election. Finally, the
1971 Constitutional Convention considered him a natural-
born citizen, one of the requirements to be a Member of the
1971 Constitutional Convention. The reason behind that
decision was that a person under his circumstances already
had the inchoate right to be a citizen by the fact that the
mother was a Filipino. And as a matter of fact, the 1971
Constitutional Convention formalized that recognition by
adopting paragraph 2 of Section 1 of the 1971 Constitution.
So, the entire purpose of this proviso is simply to perhaps
remedy whatever injustice there may be so that these people
born before January 17, 1973 who are not naturalized and
people who are not natural born but who are in the same
situation as we are considered natural-born citizens. So, the
intention of the Committee in proposing this is to equalize
their status. 19

When asked to clarify the provision on natural-born citizens, Commissioner Bernas

replied to Commissioner Azcuna thus:

MR. AZCUNA: With respect to the proviso in Section 4,

would this refer only to those who elect Philippine citizenship
 after the effectivity of the 1973 Constitution or would it also
cover those who elected it under the 1935 Constitution?

FR BERNAS: It would apply to anybody who elected

Philippine citizenship by virtue of the provision of the 1935
Constitution, whether the election was done before or after
17 January 1973. 20

And during the period of amendments. Commissioner Rodrigo explained the purpose of
what now appear as Section 2 and Section 1, paragraph (3) of Article IV of the 1987
Constitution, thus:

MR. RODRIGO: The purpose of that proviso is to remedy an

inequitable situation. Between 1935 and 1973, when we
were under the 1935 Constitution, those born of Filipino
fathers but alien mothers were natural-born Filipinos.
However, those born of Filipino mothers but alien fathers
would have to elect Philippine citizenship upon reaching the
age of majority; and, if they do elect, they become Filipino
citizens, yet, but not natural-born Filipino citizens.

The 1973 Constitution equalized the status of those born of Filipino

mothers and those born of Filipino fathers. So that from January 17, 1973
when the 1973 Constitution took effect, those born of Filipino mothers but
of alien fathers are natural-born Filipino citizens. Also, those who are born
of Filipino fathers and alien mothers are natural-born Filipino citizens.

If the 1973 Constitution equalized the status of a child born of a Filipino

mother and that born of a Filipino father, why do we not give a chance to a
child born before January 17, 1973, if and when he elects Philippine
citizenship, to be in the same status as one born of a Filipino father
namely, natural-born citizen.

Another thing I stated is equalizing the status of a father and a mother vis-
a-vis the child. I would like to state also that we showed equalize the
status of a child born of a Filipino mother the day before January 17, 1973
and a child born also of a Filipino mother on January 17 or 24 hours later.
A child born of a Filipino mother but an alien father one day before
January 17, 1973 is a Filipino citizen, if he elects Philippine citizenship, but
he is not a natural-born Filipino citizen. However, the other child who
luckily was born 24 hours later maybe because of parto laborioso is
a natural-born Filipino citizen. 21

It would appear then that the intent of the framers of the 1987 Constitution in defining a
natural-born Filipino citizen was to equalize the position of Filipino fathers and Filipino
mothers as to their children becoming natural-born Filipino citizens. In other words, after
17 January 1973, effectivity date of the 1973 Constitution, all those born of Filipino
fathers (with alien spouse) or Filipino mothers (with alien spouse) are natural-born
Filipino citizens. But those born to Filipino mothers prior to 17 January 1973 must still
elect Philippine citizenship upon their reaching the age of majority, in order to be
deemed natural-born Filipino citizens. The election, which is related to the attainment of
the age of majority, may be made before or after 17 January 1973. This interpretation
appears to be in consonance with the fundamental purpose of the Constitution which is
to protect and enhance the people's individual interests, 22 and to foster equality among
them.

Since private respondent was born on 19 June 1948 (or before 17 January 1973) to a
Filipino mother (with an alien spouse) and should have elected Philippine citizenship on
19 June 1969 (when he attained the age of majority), or soon thereafter, in order to
have the status of a natural-born Filipino citizen under the 1987 Constitution, the vital
question is: did private respondent really elect Philippine citizenship? As earlier stated, I
believe that private respondent did not elect Philippine citizenship, contrary to the ruling
of the respondent tribunal.

The respondent tribunal, on this issue, ruled as follows:

Where a person born to a Filipino mother and an alien father had

exercised the right of suffrage when he came of age, the same constitutes
a positive act of election of Philippine citizenship. (Florencio vs. Mallare)
[sic] The acts of the petitioner in registering as a voter, participating in
elections and campaigning for certain candidates were held by the
Supreme Court as sufficient to show his preference for Philippine
citizenship. Accordingly, even without complying with the formal requisites
for election, the petitioner's Filipino citizenship was judicially upheld. 23

I find the above ruling of the respondent tribunal to be patently erroneous and clearly
untenable, as to amount to grave abuse of discretion. For it is settled doctrine in this
jurisdiction that election of Philippine citizenship must be made in accordance with
Commonwealth Act 625. Sections 1 and 2 24 of the Act mandate that the option to elect
Philippine citizenship must be effected expressly not impliedly.

The respondent tribunal cites In re: Florencio Mallare 25 which held that Esteban
Mallare's exercise of the right of suffrage when he came of age, constituted a positive
act of election of Philippine citizenship.

Mallare, cited by respondent tribunal as authority for the doctrine of implied election of
Philippine citizenship, is not applicable to the case at bar. The respondent tribunal failed
to consider that Esteban Mallare reached the age of majority in 1924, or seventeen (17)
years before CA 625 was approved and, more importantly, eleven (11) years before the
1935 Constitution (which granted the right of election) took effect.

To quote Mr. Justice Fernandez in Mallare:

 Indeed, it would be unfair to expect the presentation of a formal deed to
that effect considering that prior to the enactment of Commonwealth Act
625 on June 7, 1941, no particular proceeding was required to exercise
the option to elect Philippine citizenship, granted to the proper party by
Section 1, subsection 4, Article IV of the 1935 Philippine Constitution. 26

Moreover, Esteban Mallare was held to be a Filipino citizen because he was

an illegitimate (natural) child of a Filipino mother and thus followed her
citizenship. I therefore agree with the petitioners' submission that,
in citing the Mallare case, the respondent tribunal had engaged in an obiter
dictum.

The respondent tribunal also erred in ruling that by operation of CA 473, the Revised
Naturalization Law, providing for private respondent's acquisition of Filipino citizenship
by reason of the naturalization of his father, the law itself had already elected Philippine
citizenship for him. For, assuming arguendo that the naturalization of private
respondent's father was valid, and that there was no further need for private respondent
to elect Philippine citizenship (as he had automatically become a Filipino citizen) yet,
this did not mean that the operation of the Revised Naturalization Law amounted to an
election by him of Philippine citizenship as contemplated by the Constitution. Besides,
election of Philippine citizenship derived from one's Filipino mother, is made upon
reaching the age of majority, not during one's minority.

There is no doubt in my mind, therefore, that private respondent did not elect Philippine
citizenship upon reaching the age of majority in 1969 or within a reasonable time
thereafter as required by CA 625. Consequently, he cannot be deemed a natural-born
Filipino citizen under Sections 2 and 1(3), Article IV of the 1987 Constitution.

Based on all the foregoing considerations and premises, I am constrained to state that
private respondent is not a natural-born citizen of the Philippines in contemplation of
Section 6, Article VI of the 1987 Constitution in relation to Sections 2 and 1(3), Article IV
thereof, and hence is disqualified or ineligible to be a Member of the House of
Representatives.

At this point, I find it no longer necessary to rule on the issue of required residence,
inasmuch as the Constitution requires that a Member of the House of Representatives
must be both a natural-born Filipino citizen and a resident for at least one (1) year in the
district in which he shall be elected.

The next question that comes up is whether or not either of the petitioners can replace
private respondent as the Representative of the second legislative district of Northern
Samar in the House of Representatives.

I agree with respondent tribunal that neither of the petitioners may take the place of
private respondent in the House of Representatives representing the second district of
Northern Samar. The ruling of this Court in Ramon L. Labo, Jr. vs. The Commission on
Elections (COMELEC) EN BANC and Luis L. Lardizabal, 27 is controlling. There we held
that Luis L. Lardizabal, who filed the quo warranto petition, could not replace Ramon L.
Labo, Jr. as mayor of Baguio City for the simple reason that as he obtained only the
second highest number of votes in the election, he was obviously not the choice of the
people of Baguio City for mayor of that City.

A petition alleging that the candidate-elect is not qualified for the office is, in effect,
a quo warranto proceeding even if it is labelled an election protest. 28 It is a proceeding
to unseat the ineligible person from office but not necessarily to install the protestant in
his place. 29

The general rule is that the fact that a plurality or a majority of the votes are cast for an
ineligible candidate in an election does not entitle the candidate receiving the next
highest number of votes to be declared elected. In such a case, the electors have failed
to make a choice and the election is a nullity. 30

Sound policy dictates that public elective offices are filled by those who
have the highest number of votes cast in the election for that office, and it
is a fundamental idea in all republican forms of government that no one
can be declared elected and no measure can be declared carried unless
he or it receives a majority or plurality of the legal votes cast in the
election. (20 Corpus Juris 2nd, S 243, p. 676).

As early as 1912, this Court has already declared that the candidate who
lost in an election cannot be proclaimed the winner in the event that the
candidate who won is found ineligible for the office to which he was
elected. This was the ruling in Topacio v. Paredes (23 Phil. 238)

Again, the effect of a decision that a candidate is not entitled

to the office because of fraud or irregularities in the election
is quite different from that produced by declaring a person
ineligible to hold such an office. . . . If it be found that the
successful candidate (according to the board of canvassers)
obtained a plurality in an illegal manner, and that another
candidate was the real victor, the former must retire in favor
of the latter. In the other case, there is not, strictly speaking,
a contest, as the wreath of victory cannot be transferred from
an ineligible to any other candidate when the sole question is
the eligibility of the one receiving a plurality of the legally
cast ballots. . . . 31

The recognition of Emil L. Ong by the 1971 Constitutional Convention as a

natural-born Filipino citizen, in relation to the present case.

Private respondent, as previously stated, is a full brother of Emil L. Ong, both of them
having the same father and mother.
Private respondent, relying on a resolution of the 1971 Constitutional Convention 32 to
the effect that Emil L. Ong was a natural-born Filipino citizen, alleged before the House
Electoral Tribunal that, by analogy, he is himself a natural-born Filipino citizen. This
submission, while initially impressive, is, as will now be shown, flawed and not
supported by the evidence. Not even the majority decision of the electoral tribunal
adopted the same as the basis of its decision in favor of private respondent. The
tribunal, in reference to this submission, said:

Be that as it may and in the light of the Tribunal's disposition of protestee's

citizenship based on an entirely different set of circumstances, apart from
the indisputable fact that the matters attempted to be brought in issue in
connection therewith are too far removed in point of time and relevance
from the decisive events relied upon by the Tribunal, we view these two
issues as being already inconsequential. 33

The electoral tribunal (majority) instead chose to predicate its decision on the
alleged citizenship by naturalization of private respondent's father (Ong Chuan)
and on the alleged election of Philippine citizenship by private respondent.

Emil L. Ong, was elected delegate to the 1971 Constitutional Convention. Electoral
protests, numbers EP-07 and EP-08, were filed by Leonardo D. Galing and Gualberto
D. Luto against Emil L. Ong, contesting his citizenship qualification. The Committee on
Election Protests Credentials of the 1971 Contitution Convention heard the protests and
submitted to the Convention a report dated 4 September 1972, the dispositive portion of
which stated:

It appearing that protestee's grandfather was himself a Filipino citizen

under the provisions of the Philippine Bill of 1902 and the Treaty of Paris
of December 10, 1898, thus conferring upon protestee's own father, Ong
Chuan, Philippine citizenship at birth, the conclusion is inescapable that
protestee himself is a natural-born citizen, and is therefore qualified to
hold the office of delegate to the Constitutional Convention. 34

On 28 November 1972, during a plenary session of the 1971 Constitutional Convention,

the election protests filed against Emil L. Ong were dismissed, following the report of
the Committee on Election Protests and Credentials. 35

It is evident, up to this point, that the action of the 1971 Constitutional Convention in the
case of Emil L. Ong is, to say the least, inconclusive to the case at bar, because

a) the 1971 Constitutional Convention decision in the Emil L. Ong case

involved the 1935 Constitution; the present case, on the other hand
involves the 1987 Constitution:

b) the 1935 Constitution contained no specific definition of a "natural-born

citizen" of the Philippines; the 1987 Constitution contains a precise and
 specific definition of a "natural-born citizen" of the Philippines in Sec. 2,
Art. IV thereof and private respondent does not qualify under such
definition in the 1987 Constitution;

c) the decision of the 1971 Constitutional Convention in the case of Emil L.

Ong was a decision of apolitical body, not a court of law. And, even if we
have to take such a decision as a decision of a quasi-judicial body (i.e., a
political body exercising quasi-judicial functions), said decision in the Emil
L. Ong case can not have the category or character of res judicata in the
present judicial controversy, because between the two (2) cases, there is
no identity of parties (one involves Emil L. Ong, while the other involves
private respondent) and, more importantly, there is no identity of causes of
action because the first involves the 1935 Constitution while the second
involves the 1987 Constitution.

But even laying aside the foregoing reasons based on procedural rules and logic,
the evidence submitted before the electoral tribunal and, therefore, also before this
Court, does not support the allegations made by Emil L. Ong before the 1971
Constitutional Convention and inferentially adopted by private respondent in the present
controversy. This leads us to an interesting inquiry and finding.

The 1971 Constitutional Convention in holding that Emil L. Ong was a "natural-born
citizen" of the Philippines under the 1935 Constitution laid stress on the "fact" and
this appears crucial and central to its decision that Emil L. Ong's grandfather, Ong
Te became a Filipino citizen under the Philippine Bill of 1902 and, therefore, his
descendants like Emil L. Ong (and therefore, also private respondent) became natural-
born Filipinos. The 1971 Constitutional Convention said:

Ong Te Emil Ong's grandfather, was a Spanish subject residing in the

Philippines on April 11, 1899 and was therefore one of the many who
became ipso facto citizens of the Philippines under the provisions of the
Philippine Bill of 1902. Said law expressly declared that all inhabitants of
the Philippine Islands who continued to reside therein and who were
Spanish subjects on April 11, 1899 as well as their children born
subsequent thereto, "shall be deemed and held to be citizens of the
Philippine Islands." (Section 4, Philippine Bill of
1902). 36

The "test" then, following the premises of the 1971 Constitutional Convention, is
whether or not Ong Te private respondent's and Emil L. Ong's grandfather was "an
inhabitant of the Philippines who continued to reside therein and was a Spanish subject
on April 11, 1899." If he met these requirements of the Philippine Bill of 1902, then, Ong
Te was a Filipino citizen; otherwise, he was not a Filipino citizen.

Petitioners (protestants) submitted and offered in evidence before the House Electoral
Tribunal exhibits W, X, Y, Z ,AA, BB, CC, DD and EE which are copies of entries in the
"Registro de Chinos" from years 1896 to 1897 which show that Ong Te was not listed
as an inhabitant of Samar where he is claimed to have been a resident. Petitioners
(protestants) also submitted and offered in evidence before the House Electoral
Tribunal exhibit V, a certification of the Chief of the Archives Division, Records and
Management and Archives Office, stating that the name of Ong Te does not appear in
the "Registro Central de Chinos" for the province of Samar for 1895. These exhibits
prove or at least, as petitioners validly argue, tend to prove that Ong Te was NOT a
resident of Samar close to 11 April 1899 and, therefore, could not continue residing in
Samar, Philippines after 11 April 1899, contrary to private respondent's pretense. In the
face of these proofs or evidence, private respondent FAILED TO PRESENT ANY
REBUTTAL OR COUNTERVAILING EVIDENCE, except the decision of the 1971
Constitutional Convention in the case of Emil L. Ong, previously discussed.

It is not surprising then that, as previously noted, the majority decision of the House
Electoral Tribunal skirted any reliance on the alleged ipso facto Filipino citizenship of
Ong Te under the Philippine Bill of 1902. It is equally not surprising that Ong Chuan, the
son of Ong Te and father or private respondent, did not even attempt to claim Filipino
citizenship by reason of Ong Te's alleged Filipino citizenship under the Philippine Bill of
1902 but instead applied for Philippine citizenship through naturalization.

Nor can it be contended by the private respondent that the House Electoral Tribunal
should no longer have reviewed the factual question or issue of Ong Te's citizenship in
the light of the resolution of the 1971 Constitutional Convention finding him (Ong Te to
have become a Filipino citizen under the Philippine Bill of 1902. The tribunal had to look
into the question because the finding that Ong Te had become a Filipino citizen under
the Philippine Bill of 1902 was the central core of said 1971 resolution but as held in Lee
vs. Commissioners of
Immigration: 37

. . . Everytime the citizenship of a person is material or indispensable in a

judicial or administrative case, whatever the corresponding Court or
administrative authority decides therein as to such citizenship is generally
not considered as res adjudicata, hence it has to be threshed out again
and again as the occasion may demand.

Which finally brings us to the resolution of this Court in Emil L. Ong vs. COMELEC, et
al., G.R. No. 67201, 8 May 1984. In connection with said resolution, it is contended by
private respondent that the resolution of the 1971 Constitutional Convention in the Emil
L. Ong case was elevated to this Court on a question involving Emil L. Ong's
disqualification to run for membership in the Batasang Pambansa and that, according to
private respondent, this Court allowed the use of the Committee Report to the 1971
Constitutional Convention.

To fully appreciate the implications of such contention, it would help to look into the
circumstances of the case brought before this Court in relation to the Court's action or
disposition. Emil L. Ong and Edilberto Del Valle were both candidates for the Batasang
Pambansa in the 14 May 1984 election. Valle filed a petition for disqualification with the
Commission on Election on 29 March 1984 docketed as SPC No. 84-69 contending that
Ong is not a natural-born citizen. Ong filed a motion to dismiss the petition on the
ground that the judgment of the 1971 Constitutional Convention on his status as a
natural-born citizen of the Philippines bars the petitioner from raising the Identical issue
before the COMELEC. (G.R. No. 67201, Rollo, p. 94) The motion was denied by the
COMELEC, thus, prompting Emil L. Ong to file with this Court a petition for certiorari,
prohibition and mandamus with preliminary injunction against the COMELEC, docketed
as G.R. No. 67201.

In a resolution dated 8 May 1984, this Court resolved to issue a writ of preliminary
injunction enjoining respondent COMELEC from holding any further hearing on the
disqualification case entitled "Edilberto Del Valle vs. Emil Ong (SPC No. 84-69) except
to dismiss the same. (G.R. Nos. 92202-03, Rollo, p. 335)

This Court, in explaining its action, held that:

Acting on the prayer of the petitioner for the issuance of a Writ of

Preliminary Injunction, and considering that at the hearing this morning, it
was brought out that the 1971 Constitutional Convention, at its session of
November 28, 1972, after considering the Report of its Committee on
Election Protests and Credentials, found that the protest questioning the
citizenship of the protestee (the petitioner herein) was groundless and
dismissed Election Protests Nos. EP 07 and EP 08 filed against said
petitioner (p. 237, Rollo), the authenticity of the Minutes of said session as
well as of the said Committee's Report having been duly admitted in
evidence without objection and bears out, for now, without need for a full
hearing, that petitioner is a natural-born citizen, the Court Resolved to
ISSUE, effective immediately, a Writ of Preliminary Injunction enjoining
respondent COMELEC from holding any further hearing on the
disqualification case entitled Edilberto Del Valle vs. Emil Ong (SPC No.
84-69) scheduled at 3:00 o'clock this afternoon, or any other day, except
to dismiss the same. This is without prejudice to any appropriate action
that private respondent may wish to take after the elections. (emphasis
supplied)

It is thus clear that the resolution of this Court in G.R. No. 67201 was rendered without
the benefit of a hearing on the merits either by the Court or by the COMELEC and
merely on the basis of a Committee's Report to the 1971 Constitutional Convention, and
that this Court (and this is quite significant) did not foreclose any appropriate action that
Del Valle (therein petitioner) may wish to take after the elections.

It is thus abundantly clear also that to this Court, the resolution of the 1971
Constitutional Convention recognizing Emil L. Ong as a natural-born citizen under the
1935 Constitution did not foreclose a future or further proceeding in regard to the same
question and that, consequently, there is no vested right of Emil L. Ong to such
recognition. How much more when the Constitution involved is not the 1935 Constitution
but the 1987 Constitution whose provisions were never considered in all such
proceedings because the 1987 Constitution was still inexistent.

A final word. It is regrettable that one (as private respondent) who unquestionably
obtained the highest number of votes for the elective position of Representative
(Congressman) to the House of Representatives for the second district of Northern
Samar, would have had to cease in office by virtue of this Court's decision, if the full
membership of the Court had participated in this case, with the result that the legislative
district would cease to have, in the interim, a representative in the House of
Representatives. But the fundamental consideration in cases of this nature is the
Constitution and only the Constitution. It has to be assumed, therefore, that when the
electorate in the second legislative district of Northern Samar cast the majority of their
votes for private respondent, they assumed and believed that he was fully eligible and
qualified for the office because he is a natural-born Filipino citizen. That erroneous
assumption and belief can not prevail over, but must yield to the majesty of the
Constitution.

This is a sad day for the Constitution. As I see it, the Constitution mandates that
members of the House of Representatives should be "natural-born citizens of the
Philippines". The voting majority of the present Court says, "Filipino citizens will do."
This is bad enough. What is worse is, the same voting majority, in effect, says, "even
aliens will do as well."

WHEREFORE, my vote is clear: to declare private respondent Jose L. Ong Chua, Jr.,
as he clearly is, NOT a natural-born citizen of the Philippines and therefore NOT
QUALIFIED to be a Member of the House of Representatives, Congress of the
Philippines.

Narvasa, J., Paras, J. and Regalado, J., dissenting.

SARMIENTO, J., concurring:

I concur with the majority.

(1)

I wish to point out first that the question of citizenship is a question of fact, and as a rule,
the Supreme Court leaves facts to the tribunal that determined them. I am quite agreed
that the Electoral Tribunal of the House of Representatives, as the "sole judge" of all
contests relating to the membership in the House, as follows:

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.
Each Electoral Tribunal shall be composed of nine Members, three of
 whom shall be Justices of the Supreme Court to be designated by the
Chief Justice, and the remaining six shall be Members of the Senate or
the House of Representatives, as the case may be, who shall be chosen
on the basis of proportional representation from the political parties and
the parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal shall be
its Chairman. 1

is the best judge of facts and this Court can not substitute its judgment because it
thinks it knows better.

In the case of Aratuc v. Commission on Elections, 2 it was held that this Court can not
review the errors of the Commission on Elections (then the "sole judge" of all election
contests) in the sense of reviewing facts and unearthing mistakes and that this
Court's jurisdiction is to see simply whether or not it is guilty of a grave abuse of
discretion. It is true that the new Constitution has conferred expanded powers on the
Court, 3 but as the Charter states, our authority is "to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government." 4 It is not to review facts.

"Grave abuse of discretion" has been defined as whimsical exercise of power

amounting to excess of jurisdiction, or otherwise, to denial of due process of law. 5

I find none of that here.

As the majority indicates, Jose Ong's citizenship is a matter of opinion with which men
may differ, but certainly, it is quite another thing to say that the respondent Tribunal has
gravely abused its discretion because the majority has begged to differ. It does not form
part of the duty of the Court to remedy all imagined wrongs committed by the
Government.

The respondent Tribunal has spoken. According to the Tribunal, Jose Ong is a Filipino
citizen and consequently, is possessed of the qualifications to be a member of the
House. As the sole judge, precisely, of this question, the Court can not be more popish
than the pope.

(2)

I can not say, in the second place, that the Decision in question stands exactly on
indefensible grounds. It is to be noted that Jose Ong had relied on the Report dated
September 4, 1972 of the 1971 Constitutional Convention Committee 6 on Election
Protests and Credentials, in which the Committees upheld the citizenship, and
sustained the qualification to sit as Delegate, of Emil Ong, Jose Ong's full blood brother.
According to the Report, Ong Te the Ongs' grandfather, was already a Filipino citizen
having complied with the requirements on Filipinization by existing laws for which his
successors need not have elected Filipino citizenship. I quote:
 xxx xxx xxx

There is merit in protestee's claim. There can hardly be any doubt that
Ong Te protestees's grandfather, was a Spanish subject residing in the
Philippines on April 11, 1899, and was therefore one of the many who
became ipso facto citizens of the Philippines under the provisions of the
Philippine Bill of 1902. Said law expressly declared that all inhabitants of
the Philippine Islands who continued to reside therein and who were
Spanish subjects on April 11, 1899, as well as their children born
subsequent thereto, "shall be deemed and held to be citizens of the
Philippine Islands" (Sec. 4, Philippine Bill of 1902). Excepted from the
operation of this rule were Spanish subjects who shall have elected to
preserve their allegiance to the Crown of Spain in accordance with the
Treaty of Paris of December 10, 1898. But under the Treaty of Paris, only
Spanish subjects who were natives of Peninsular Spain had the privilege
of preserving their Spanish nationality. 7

xxx xxx xxx

xxx xxx xxx

As earlier noted, protestee's grandfather established residence in the

Philippines in 1895, as shown by the Registro Central de Chinos. He was
also issued a certificate of registration. He established a business here,
and later acquired real property. Although he went back to China for brief
visits, he invariably came back. He even brought his eldest son, Ong
Chuan, to live in the Philippines when the latter was only 10 years old.
And Ong Chuan was admitted into the country because, as duly noted on
his landing certificate, his father, Ong Te had been duly enrolled under CR
16009-36755 i.e., as a permanent resident. Indeed, even when Ong Te
went back to China in the 1920's for another visit, he left his son, Ong
Chuan, who was then still a minor, in the Philippines obviously because
he had long considered the Philippines his home. The domicile he
established in 1895 is presumed to have continued up to, and beyond,
April 11, 1899, for, as already adverted to, a domicile once acquired is not
lost until a new one is gained. The only conclusion then can thus be drawn
is that Ong Te was duly domiciled in the Philippines as of April 11, 1899,
within the meaning of par. 4, Art. 17, of the Civil Code of 1889 and was,
consequently, a Spanish subject, he qualified as a Filipino citizen under
the provisions of Section 4 of the Philippine Bill of 1902. 8

It is true that Ong Chuan, the Ong brothers' father, subsequently sought naturalization in
the belief that he was, all along, a Chinese citizen, but as the Report held:

Protestants, however, make capital of the fact that both Ong Te and his
son, Ong Chuan (protestee's father), appear to have been registered as
 Chinese citizens even long after the turn of the century. Worse, Ong
Chuan himself believed the was alien, to the extent of having to seek
admission as a Pilipino citizen through naturalization proceedings. The
point, to our mind, is neither crucial nor substantial. Ong's status as a
citizen is a matter of law, rather than of personal belief. It is what the law
provides, and not what one thinks his status to be, which determines
whether one is a citizen of a particular state or not. Mere mistake or
misapprehension as to one's citizenship, it has been held, is not a
sufficient cause or reason for forfeiture of Philippine citizenship; it does not
even constitute estoppel (Palanca vs. Republic, 80 Phil. 578, 584). Too,
estoppel applies only to questions of fact and not of law (Tanada v.
Cuenco, L-10520, Feb. 28, 1957). 9

It is to be noted that the Report was unanimously approved by the Committee, and on
November 28, 1972, approved without any objection by the Convention in plenary
session. 10

I am not, of course, to be mistaken as acting as mouthpiece of Emil Ong, but in all

candor, I speak from experience, because when the Convention approved the Report in
question, I was one of its vice-presidents and the presiding officer.

It is to be noted finally, that the matter was elevated to this Court (on a question
involving Emil Ong's qualification to sit as member of the defunct Batasang
Pambansa) 11 in which this Court allowed the use of the Committee Report.

Faced with such positive acts of the Government, I submit that the question of the Ong's
citizenship is a settled matter. Let it rest.

It is true that Electoral Protest Nos. EP-07 and EP-08 of the Convention as well as G.R.
No. 67201 of this Court, involved Emil Ong and not his brother; I submit, however, that
what is sauce for the goose is sauce for the gander.

I also submit that the fundamental question is whether or not we will overturn the
unanimous ruling of 267 delegates, indeed, also of this Court.

Separate Opinions

PADILLA, J., dissenting:

I dissent.

These separate petitions for certiorari and mandamus seek to annul the decision * of
respondent House of Representatives Electoral Tribunal (hereinafter referred to as the
tribunal) dated 6 November 1989 which declared private respondent Jose L. Ong, a
natural-born citizen of the Philippines and a legal resident of Laoang, Northern Samar,
and the resolution of the tribunal dated 22 February 1990 denying petitioners' motions
for reconsideration.

In G.R. Nos. 92191-92, petitioner Co also prays that the Court declare private
respondent Ong not qualified to be a Member of the House of Representatives and to
declare him (petitioner Co) who allegedly obtained the highest number of votes among
the qualified candidates, the duly elected representative of the second legislative district
of Northern Samar. In G.R. Nos. 92202-03, petitioner Balanquit prays that the Court
declare private respondent Ong and Co (petitioner in G.R. Nos. 92191-92) not qualified
for membership in the House of Representatives and to proclaim him (Balanguit) as the
duly elected representative of said district.

Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and private respondent Jose Ong
Chuan, Jr. were among the candidates for the position of Representative or
Congressman for the second district of Northern Samar during the 11 May 1987
congressional elections. Private respondent was proclaimed duly-elected on 18 May
1987 with a plurality of some sixteen thousand (16,000) votes over petitioner Co who
obtained the next highest number of votes.

Petitioners Co and Balanquit then filed separate election protests against private
respondent with the tribunal, docketed as HRET Cases Nos. 13 and 15 respectively.
Both protests raised almost the same issues and were thus considered and decided
jointly by the tribunal.

The issues raised before the tribunal were the following:

1. Whether or not protestee (meaning, Ong) is a natural-born citizen of the

Philippines in contemplation of Section 6, Article VI of the 1987
Constitution in relation to Sections 2 and 1(3), Article IV thereof; and

2. Whether or not protestee was a resident of Laoang, Northern Samar, in

contemplation of Section 6, Article VI of the same Constitution, for a
period of not less than one year immediately preceding the congressional
elections of May 1987.

The respondent tribunal in its decision dated 6 November 1989 held that respondent
Jose L. Ong is a natural-born citizen of the Philippines and was a legal resident of
Laoang, Northern Samar for the required period prior to the May 1987 congressional
elections. He was, therefore, declared qualified to continue in office as Member of the
House of Representatives, Congress of the Philippines, representing the second
legislative district of Northern Samar.

The factual antecedents taken from the consolidated proceedings in the tribunal are the
following:
1. The Protestee (Ong) was born on June 19, 1948 to the legal spouses
Ong Chuan also known as Jose Ong Chuan and Agrifina E. Lao. His place
of birth is Laoang which is now one of the municipalities comprising the
province of Northern Samar (Republic Act No. 6132 approved on August
24, 1970 and the Ordinance appended to the 1987 Constitution).

2. On the other hand, Jose Ong Chuan was born in China and arrived in
Manila on December 16, 1915. (Exhibit zz) Subsequently thereafter, he
took up residence in Laoang, Samar.

3. On February 4, 1932, he married Agrifina E. Lao. Their wedding was

celebrated according to the rites and practices of the Roman Catholic
Church in the Municipality of Laoang (Exh. E).

4. At the time of her marriage to Jose Ong Chuan, Agrifina E. Lao was a
natural-born Filipino citizen, both her parents at the time of her birth being
Filipino citizens. (Exhibits E & I)

5. On February 15, 1954, Jose Ong Chuan, desiring to acquire Philippine

citizenship, filed his petition for naturalization with the Court of First
Instance of Samar, pursuant to Commonwealth Act No. 473, otherwise
known as the Revised Naturalization Law.

6. On April 28, 1955, the Court of First Instance of Samar rendered a

decision approving the application of Jose Ong Chuan for naturalization
and declaring said petitioner a Filipino citizen "with all the rights and
privileges and duties, liabilities and obligations inherent to Filipino citizens.
(Exh. E)

7. On May 15, 1957, the same Court issued an order:

(1) declaring the decision of this Court of April 28, 1955 final
and executory;

(2) directing the clerk of court to issue the corresponding

Certificate of Naturalization in favor of the applicant Ong
Chuan who prefers to take his oath and register his name as
Jose Ong Chuan. Petitioner may take his oath as Filipino
citizen under Ms new christian name, Jose Ong Chuan.
(Exh. F)

8. On the same day, Jose Ong Chuan having taken the corresponding
oath of allegiance to the Constitution and the Government of the
Philippines as prescribed by Section 12 of Commonwealth Act No. 473,
was issued the corresponding Certificate of Naturalization. (Exh. G)
 9. On November 10, 1970, Emil L. Ong, a full-brother of the protestee and
a son born on July 25, 1937 at Laoang, Samar to the spouses Jose Ong
Chuan and Agrifina E. Lao, was elected delegate from Northern Samar to
the 1971 Constitutional Convention.

10. By protestee's own -testimony, it was established that he had attended

grade school in Laoang. Thereafter, he went to Manila where he finished
his secondary as well as his college education. While later employed in
Manila, protestee however went home to Laoang whenever he had the
opportunity to do so, which invariably would be as frequent as twice to four
times a year.

11. Protestee also showed that being a native and legal resident of
Laoang, he registered as a voter therein and correspondingly voted in said
municipality in the 1984 and 1986 elections.

12. Again in December 1986, during the general registration of all voters in
the country, Protestee re-registered as a voter in Precinct No. 4 of
Barangay Tumaguinting in Laoang. In his voter's affidavit, Protestee
indicated that he is a resident of Laoang since birth. (Exh. 7) 1

Petitioners' motions for reconsideration of the tribunal's decision having been denied,
petitioners filed the present petitions.

In their comments, the respondents first raise the issue of the Court's jurisdiction to
review the decision of the House Electoral Tribunal, considering the constitutional
provision vesting upon said tribunal the power and authority to act as the sole judge of
all contests relating to the qualifications of the Members of the House of
Representatives. 2

On the question of this Court's jurisdiction over the present controversy, I believe that,
contrary to the respondents' contentions, the Court has the jurisdiction and competence
to review the questioned decision of the tribunal and to decide the present controversy.

Article VIII, Section I of the 1987 Constitution provides that:

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 any branch or instrumentality of the Government.

The Constitution, it is true, constitutes the tribunal as the sole judge of all contests
relating to the election, returns, and qualifications of Members of the House of
Representatives. But as early as 1938, it was held in Morrero vs.Bocar, 3 construing
Section 4, Article VI of the 1935 Constitution which provided that ". . . The Electoral
Commission shall be the sole judge of all contests relating to the election, returns and
qualifications of the Members of the National Assembly," that:

The judgment rendered by the (electoral) commission in the exercise of

such an acknowledged power is beyond judicial interference, except, in
any event, "upon a clear showing of such arbitrary and improvident use of
the power as will constitute a denial of due process of law." (Barry vs. US
ex rel. Cunningham, 279 US 597; 73 Law. ed., 867; Angara vs. Electoral
Commission, 35 Off. Gaz., 23.)

And then under the afore-quoted provisions of Article VIII, Section 1 of the 1987
Constitution, this Court is duty-bound to determine whether or not, in an actual
controversy, there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.

The present controversy, it will be observed, involves more than perceived irregularities
in the conduct of a congressional election or a disputed appreciation of ballots, in which
cases, it may be contended with great legal force and persuasion that the decision of
the electoral tribunal should be final and conclusive, for it is, by constitutional directive,
made the sole judge of contests relating to such matters. The present controversy,
however, involves no less than a determination of whether the qualifications for
membership in the House of Representatives, as prescribed by the Constitution, have
been met. Indeed, this Court would be unforgivably remiss in the performance of its
duties, as mandated by the Constitution, were it to allow a person, not a natural-born
Filipino citizen, to continue to sit as a Member of the House of Representatives, solely
because the House Electoral Tribunal has declared him to be so. In such a case, the
tribunal would have acted with grave abuse of discretion amounting to lack or excess of
jurisdiction as to require the exercise by this Court of its power of judicial review.

Besides, the citizenship and residence qualifications of private respondent for the office
of Member of the House of Representatives, are here controverted by petitioners who,
at the same time, claim that they are entitled to the office illegally held by private
respondent. From this additional direction, where one asserts an earnestly perceived
right that in turn is vigorously resisted by another, there is clearly a justiciable
controversy proper for this Court to consider and decide.

Nor can it be said that the Court, in reviewing the decision of the tribunal, asserts
supremacy over it in contravention of the time-honored principle of constitutional
separation of powers. The Court in this instance simply performs a function entrusted
and assigned to it by the Constitution of interpreting, in a justiciable controversy, the
pertinent provisions of the Constitution with finality.

It is the role of the Judiciary to refine and, when necessary, correct

constitutional (and/or statutory) interpretation, in the context of the
interactions of the three branches of the government, almost always in
situations where some agency of the State has engaged in action that
 stems ultimately from some legitimate area of governmental power (the
Supreme Court in Modern Role, C.B. Sevisher, 1958, p. 36). 4

Moreover, it is decidedly a matter of great public interest and concern to determine

whether or not private respondent is qualified to hold so important and high a public
office which is specifically reserved by the Constitution only to natural-born Filipino
citizens.

After a careful consideration of the issues and the evidence, it is my considered opinion
that the respondent tribunal committed grave abuse of discretion amounting to lack or
excess of jurisdiction in rendering its questioned decision and resolution, for reasons to
be presently stated.

The Constitution 5 requires that a Member of the House of Representatives must be a

natural-born citizen of the Philippines and, on the day of the election, is at least twenty-
five (25) years of age, able to read and write, and, except the party-list representatives,
a registered voter in the district in which he shall be elected, and a resident thereof for a
period of not less than one (1) year immediately preceding the day of the election.

Article IV, Section 2 of the 1987 Constitution defines natural-born (Filipino) citizens as:

Natural-born citizens are those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their Philippine
citizenship. Those who elect Philippine citizenship in accordance with
paragraph (3), Section I hereof shall be deemed natural-born citizen,

Article IV, Section 1, paragraph (3) of the 1987 Constitution provides that:

Section 1. The following are citizens of the Philippines:

xxx xxx xxx

(3) Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority.

The Court in this case is faced with the duty of interpreting the above-quoted
constitutional provisions. The first sentence of Section 2 of Article IV states the basic
definition of a natural-born Filipino citizen. Does private respondent fall within said
definition?

To the respondent tribunal,

Protestee may even be declared a natural-born citizen of the Philippines

under the first sentence of Sec. 2 of Article IV of the 1987 Constitution
because he did not have "to perform any act to acquire or perfect his
Philippine citizenship." It bears to repeat that on 15 May 1957, while still a
 minor of 9 years he already became a Filipino citizen by declaration of
law. Since his mother was a natural-born citizen at the time of her
marriage, protestee had an inchoate right to Philippine citizenship at the
moment of his birth and, consequently the declaration by virtue of Sec. 15
of CA 473 that he was a Filipino citizen retroacted to the moment of his
birth without his having to perform any act to acquire or perfect such
Philippine citizenship. 6

I regret that I am neither convinced nor persuaded by such kaleidoscopic ratiocination.

The records show that private respondent was born on 19 June 1948 to the spouses
Jose Ong Chuan, a Chinese citizen, and Agrifina E. Lao, a natural-born Filipino citizen,
in Laoang, Northern Samar. In other words, at birth, private respondent was a Chinese
citizen (not a natural-born Filipino citizen) because his father was then a Chinese citizen
(not a naturalized Filipino citizen). Under the 1935 Constitution which was enforced at
the time of private respondent's birth on 19 June 1948, only those whose fathers were
citizens of the Philippines were considered Filipino citizens. Those whose mothers were
citizens of the Philippines had to elect Philippine citizenship upon reaching the age of
majority, in order to be considered Filipino citizens. 7

Following the basic definition in the 1987 Constitution of a natural-born citizen, in

relation to the 1935 Constitution, private respondent is not a natural-born Filipino
citizen, having been born a Chinese citizen by virtue of the Chinese citizenship of his
father at the time of his birth, although from birth, private respondent had the right to
elect Philippine citizenship, the citizenship of his mother, but only upon his reaching the
age of majority.

While under Section 15 of the Revised Naturalization Law (C.A. 473) minor children of a
naturalized citizen (father), who were born in the Philippines prior to the naturalization of
the parent automatically become Filipino citizens, 8 this does not alter the fact that
private respondent was not born to a Filipino father, and the operation of Section 15 of
CA 473 did not confer upon him the status of a natural-born citizen merely because he
did not have to perform any act to acquire or perfect his status as a Filipino citizen.

But even assuming arguendo that private respondent could be considered a natural-
born citizen by virtue of the operation of CA 473, petitioners however contend that the
naturalization of private respondent's father was invalid and void from the beginning,
and, therefore, private respondent is not even a Filipino citizen.

Respondent tribunal in its questioned decision ruled that only a direct proceeding for
nullity of naturalization as a Filipino citizen is permissible, and, therefore, a collateral
attack on Ong Chuan's naturalization is barred in an electoral contest which does not
even involve him (Ong Chuan).

Private respondent, for his part, avers in his Comment that the challenge against Ong
Chuan's naturalization must emanate from the Government and must be made in a
proper/appropriate and direct proceeding for de-naturalization directed against the
proper party, who in such case is Ong Chuan, and also during his lifetime.

A judgment in a naturalization proceeding is not, however, afforded the character of

impregnability under the principle of res judicata. 9 Section 18 of CA 473 provides that a
certificate of naturalization may be cancelled upon motion made in the proper
proceeding by the Solicitor General or his representative, or by the proper provincial
fiscal.

In Republic vs. Go Bon Lee, 10 this Court held that:

An alien friend is offered under certain conditions the privilege of

citizenship. He may accept the offer and become a citizen upon
compliance with the prescribed conditions, but not otherwise. His claim is
of favor, not of right. He can only become a citizen upon and after a strict
compliance with the acts of Congress. An applicant for this high privilege
is bound, therefore, to conform to the terms upon which alone the right he
seeks can be conferred. It is his province, and he is bound, to see that the
jurisdictional facts upon which the grant is predicated actually exist and if
they do not he takes nothing by this paper grant.

xxx xxx xxx

Congress having limited this privilege to a specified class of persons, no

other person is entitled to such privilege, nor to a certificate purporting to
grant it, and any such certificate issued to a person not so entitled to
receive it must be treated as a mere nullity, which confers no legal rights
as against the government, from which it has been obtained without
warrant of law.

"Naturalization is not a right, but a privilege of the most discriminating as well as delicate
and exacting nature, affecting public interest of the highest order, and which may be
enjoyed only under the precise conditions prescribed by law therefor." 11

Considering the legal implications of the allegation made by the petitioners that the
naturalization of private respondent's father Ong Chuan, is a nullity, the Court should
make a ruling on the validity of said naturalization proceedings. This course of action
becomes all the more inevitable and justified in the present case where, to repeat for
stress, it is claimed that a foreigner is holding a public
office. 12

It cannot be overlooked, in this connection, that the citizenship of private respondent is

derived from his father. If his father's Filipino citizenship is void from the beginning, then
there is nothing from which private respondent can derive his own claimed Filipino
citizenship. For a spring cannot rise higher than its source. And to allow private
respondent to avail of the privileges of Filipino citizenship by virtue of a void
naturalization of his father, would constitute or at least sanction a continuing offense
against the Constitution.

The records show that private respondent's father, Jose Ong Chuan, took the oath of
allegiance to the Constitution and the Philippine Government, as prescribed by Section
12 of CA 473 on the same day (15 May 1957) that the CFI issued its order directing the
clerk of court to issue the corresponding Certificate of Naturalization and for the
applicant to take the oath of allegiance.

However, it is settled that an order granting a petition to take the requisite oath of
allegiance of one who has previously obtained a decision favorable to his application for
naturalization, is appealable. It is, therefore, improper and illegal to authorize the taking
of said oath upon the issuance of said order and before the expiration of the
reglementary period to perfect any appeal from said order. 13

In Cua Sun Ke vs. Republic, 14 this Court held that:

Administration of the oath of allegiance on the same day as issuance of

order granting citizenship is irregular and makes the proceedings so taken
null and void. (Republic vs. Guy, 115 SCRA 244 [1982]; citing the case of
Ong So vs. Republic of the Philippines, 121 Phil. 1381).

It would appear from the foregoing discussion that the naturalization of Jose Ong Chuan
(private respondent's father) was null and void. It follows that the private respondent did
not acquire any legal rights from the void naturalization of his father and thus he cannot
himself be considered a Filipino citizen, more so, a natural-born Filipino citizen.

But assuming that the CFI order of 15 May 1957 directing the clerk of court to issue the
certificate of naturalization to Ong Chuan and for the latter to take the oath of allegiance
was final and not appealable, the resulting naturalization of Ong Chuan effected, as
previously stated, an automatic naturalization of private respondent, then a minor, as a
Filipino citizen on 15 May 1957, but not his acquisition or perfection of the status of a
natural-born Filipino citizen.

Let us now look into the question of whether or not private respondent acquired the
status of a natural-born Filipino citizen by reason of the undisputed fact that his mother
was a natural-born Filipino citizen. This in turn leads us to an examination of the second
sentence in Article IV, Section 2 of the 1987 Constitution. It expands, in a manner of
speaking, in relation to Section 1, paragraph (3) of the same Article IV, the status of a
natural-born Filipino citizen to those who elect Philippine citizenship upon reaching the
age of majority. The right or privilege of election is available, however, only to those
born to Filipino mothers under the 1935 Constitution, and before the 1973 Constitution
took effect on 17 January 1973.

The petitioners contend that the respondent tribunal acted in excess of its jurisdiction or
gravely abused its discretion as to exceed its jurisdiction in "distorting" the conferment
by the 1987 Constitution of the status of "natural-born" Filipino citizen on those who
elect Philippine citizenship all in its strained effort, according to petitioners, to support
private respondent's qualification to be a Member of the House of Representatives. 15

Petitioners argue that the clear, unambiguous wording of section 1(3) of Article IV of the
1987 Constitution contemplates that only the legitimate children of Filipino mothers with
alien father, born before 17 January 1973 and who would reach the age of majority (and
thus elect Philippine citizenship) after the effectivity of the 1987 Constitution are entitled
to the status of natural-born Filipino citizen. 16

The respondent tribunal in resolving the issue of the constitutional provisions'

interpretation, found reason to refer to the interpellations made during the 1986
Constitutional Commission. It said:

That the benevolent provisions of Sections 2 and 1(3) of Article IV of the

1987 Constitution was (sic) intended by its (sic) framers to be endowed,
without distinction, to all Filipinos by election pursuant to the 1935
Constitution is more than persuasively established by the extensive
interpellations and debate on the issue as borne by the official records of
the 1986 Constitutional Commission. 17

Although I find the distinction as to when election of Philippine citizenship was made
irrelevant to the case at bar, since private respondent, contrary to the conclusion of the
respondent tribunal, did not elect Philippine citizenship, as provided by law, I still
consider it necessary to settle the controversy regarding the meaning of the
constitutional provisions in question.

I agree with respondent tribunal that the debates, interpellations petitions and opinions
expressed in the 1986 Constitutional Commission may be resorted to in ascertaining the
meaning of somewhat elusive and even nebulous constitutional provisions. Thus

The ascertainment of that intent is but in keeping with the fundamental

principle of constitutional construction that the intent of the framers of the
organic law and of the people adopting it should be given effect. The
primary task in constitutional construction is to ascertain and thereafter
assure the realization of the purpose of the framers and of the people in
the adoption of the Constitution. It may also be safely assumed that the
people in ratifying the constitution were guided mainly by the explanation
offered by the framers. 18

The deliberations of the 1986 Constitutional Commission relevant to Section 2, Article

IV in relation to Section 1(3) of the same Article, appear to negate the contention of
petitioners that only those born to Filipino mothers before 17 January 1973 and who
would elect Philippine citizenship after the effectivity of the 1987 Constitution, are to be
considered natural-born Filipino citizens.
During the free-wheeling discussions on citizenship, Commissioner Treas specifically
asked Commissioner Bernas regarding the provisions in question, thus:

MR. TRENAS: The Committee on Citizenship, Bill of Rights,

Political Rights and Obligations and Human Rights has more
or less decided to extend the interpretation of who is a
natural-born Filipino citizen as provided in Section 4 of the
1973 Constitution, by adding that persons who have elected
Philippine citizenship under the 1935 Constitution shall be
considered natural-born. Am I right, Mr. Presiding Officer?

FR BERNAS: Yes.

MR. TRENAS: And does the Commissioner think that tills

addition to Section 4 of the 1973 Constitution would be
contrary to the spirit of that section?

FR BERNAS: Yes, we are quite aware that it is contrary to

the letter really. But whether it is contrary to the spirit is
something that has been debated before and is being
debated even now. We will recall that during the 1971
Constitutional Convention, the status of natural-born
citizenship of one of the delegates, Mr. Ang, was challenged
precisely because he was a citizen by election. Finally, the
1971 Constitutional Convention considered him a natural-
born citizen, one of the requirements to be a Member of the
1971 Constitutional Convention. The reason behind that
decision was that a person under his circumstances already
had the inchoate right to be a citizen by the fact that the
mother was a Filipino. And as a matter of fact, the 1971
Constitutional Convention formalized that recognition by
adopting paragraph 2 of Section 1 of the 1971 Constitution.
So, the entire purpose of this proviso is simply to perhaps
remedy whatever injustice there may be so that these people
born before January 17, 1973 who are not naturalized and
people who are not natural born but who are in the same
situation as we are considered natural-born citizens. So, the
intention of the Committee in proposing this is to equalize
their status. 19

When asked to clarify the provision on natural-born citizens, Commissioner Bernas

replied to Commissioner Azcuna thus:

MR. AZCUNA: With respect to the proviso in Section 4,

would this refer only to those who elect Philippine citizenship
 after the effectivity of the 1973 Constitution or would it also
cover those who elected it under the 1935 Constitution?

FR BERNAS: It would apply to anybody who elected

Philippine citizenship by virtue of the provision of the 1935
Constitution, whether the election was done before or after
17 January 1973. 20

And during the period of amendments. Commissioner Rodrigo explained the purpose of
what now appear as Section 2 and Section 1, paragraph (3) of Article IV of the 1987
Constitution, thus:

MR. RODRIGO: The purpose of that proviso is to remedy an

inequitable situation. Between 1935 and 1973, when we
were under the 1935 Constitution, those born of Filipino
fathers but alien mothers were natural-born Filipinos.
However, those born of Filipino mothers but alien fathers
would have to elect Philippine citizenship upon reaching the
age of majority; and, if they do elect, they become Filipino
citizens, yet, but not natural-born Filipino citizens.

The 1973 Constitution equalized the status of those born of Filipino

mothers and those born of Filipino fathers. So that from January 17, 1973
when the 1973 Constitution took effect, those born of Filipino mothers but
of alien fathers are natural-born Filipino citizens. Also, those who are born
of Filipino fathers and alien mothers are natural-born Filipino citizens.

If the 1973 Constitution equalized the status of a child born of a Filipino

mother and that born of a Filipino father, why do we not give a chance to a
child born before January 17, 1973, if and when he elects Philippine
citizenship, to be in the same status as one born of a Filipino father
namely, natural-born citizen.

Another thing I stated is equalizing the status of a father and a mother vis-
a-vis the child. I would like to state also that we showed equalize the
status of a child born of a Filipino mother the day before January 17, 1973
and a child born also of a Filipino mother on January 17 or 24 hours later.
A child born of a Filipino mother but an alien father one day before
January 17, 1973 is a Filipino citizen, if he elects Philippine citizenship, but
he is not a natural-born Filipino citizen. However, the other child who
luckily was born 24 hours later maybe because of parto laborioso is
a natural-born Filipino citizen. 21

It would appear then that the intent of the framers of the 1987 Constitution in defining a
natural-born Filipino citizen was to equalize the position of Filipino fathers and Filipino
mothers as to their children becoming natural-born Filipino citizens. In other words, after
17 January 1973, effectivity date of the 1973 Constitution, all those born of Filipino
fathers (with alien spouse) or Filipino mothers (with alien spouse) are natural-born
Filipino citizens. But those born to Filipino mothers prior to 17 January 1973 must still
elect Philippine citizenship upon their reaching the age of majority, in order to be
deemed natural-born Filipino citizens. The election, which is related to the attainment of
the age of majority, may be made before or after 17 January 1973. This interpretation
appears to be in consonance with the fundamental purpose of the Constitution which is
to protect and enhance the people's individual interests, 22 and to foster equality among
them.

Since private respondent was born on 19 June 1948 (or before 17 January 1973) to a
Filipino mother (with an alien spouse) and should have elected Philippine citizenship on
19 June 1969 (when he attained the age of majority), or soon thereafter, in order to
have the status of a natural-born Filipino citizen under the 1987 Constitution, the vital
question is: did private respondent really elect Philippine citizenship? As earlier stated, I
believe that private respondent did not elect Philippine citizenship, contrary to the ruling
of the respondent tribunal.

The respondent tribunal, on this issue, ruled as follows:

Where a person born to a Filipino mother and an alien father had

exercised the right of suffrage when he came of age, the same constitutes
a positive act of election of Philippine citizenship. (Florencio vs. Mallare)
[sic] The acts of the petitioner in registering as a voter, participating in
elections and campaigning for certain candidates were held by the
Supreme Court as sufficient to show his preference for Philippine
citizenship. Accordingly, even without complying with the formal requisites
for election, the petitioner's Filipino citizenship was judicially upheld. 23

I find the above ruling of the respondent tribunal to be patently erroneous and clearly
untenable, as to amount to grave abuse of discretion. For it is settled doctrine in this
jurisdiction that election of Philippine citizenship must be made in accordance with
Commonwealth Act 625. Sections 1 and 2 24 of the Act mandate that the option to elect
Philippine citizenship must be effected expressly not impliedly.

The respondent tribunal cites In re: Florencio Mallare 25 which held that Esteban
Mallare's exercise of the right of suffrage when he came of age, constituted a positive
act of election of Philippine citizenship.

Mallare, cited by respondent tribunal as authority for the doctrine of implied election of
Philippine citizenship, is not applicable to the case at bar. The respondent tribunal failed
to consider that Esteban Mallare reached the age of majority in 1924, or seventeen (17)
years before CA 625 was approved and, more importantly, eleven (11) years before the
1935 Constitution (which granted the right of election) took effect.

To quote Mr. Justice Fernandez in Mallare:

 Indeed, it would be unfair to expect the presentation of a formal deed to
that effect considering that prior to the enactment of Commonwealth Act
625 on June 7, 1941, no particular proceeding was required to exercise
the option to elect Philippine citizenship, granted to the proper party by
Section 1, subsection 4, Article IV of the 1935 Philippine Constitution. 26

Moreover, Esteban Mallare was held to be a Filipino citizen because he was

an illegitimate (natural) child of a Filipino mother and thus followed her
citizenship. I therefore agree with the petitioners' submission that,
in citing the Mallare case, the respondent tribunal had engaged in an obiter
dictum.

The respondent tribunal also erred in ruling that by operation of CA 473, the Revised
Naturalization Law, providing for private respondent's acquisition of Filipino citizenship
by reason of the naturalization of his father, the law itself had already elected Philippine
citizenship for him. For, assuming arguendo that the naturalization of private
respondent's father was valid, and that there was no further need for private respondent
to elect Philippine citizenship (as he had automatically become a Filipino citizen) yet,
this did not mean that the operation of the Revised Naturalization Law amounted to an
election by him of Philippine citizenship as contemplated by the Constitution. Besides,
election of Philippine citizenship derived from one's Filipino mother, is made upon
reaching the age of majority, not during one's minority.

There is no doubt in my mind, therefore, that private respondent did not elect Philippine
citizenship upon reaching the age of majority in 1969 or within a reasonable time
thereafter as required by CA 625. Consequently, he cannot be deemed a natural-born
Filipino citizen under Sections 2 and 1(3), Article IV of the 1987 Constitution.

Based on all the foregoing considerations and premises, I am constrained to state that
private respondent is not a natural-born citizen of the Philippines in contemplation of
Section 6, Article VI of the 1987 Constitution in relation to Sections 2 and 1(3), Article IV
thereof, and hence is disqualified or ineligible to be a Member of the House of
Representatives.

At this point, I find it no longer necessary to rule on the issue of required residence,
inasmuch as the Constitution requires that a Member of the House of Representatives
must be both a natural-born Filipino citizen and a resident for at least one (1) year in the
district in which he shall be elected.

The next question that comes up is whether or not either of the petitioners can replace
private respondent as the Representative of the second legislative district of Northern
Samar in the House of Representatives.

I agree with respondent tribunal that neither of the petitioners may take the place of
private respondent in the House of Representatives representing the second district of
Northern Samar. The ruling of this Court in Ramon L. Labo, Jr. vs. The Commission on
Elections (COMELEC) EN BANC and Luis L. Lardizabal, 27 is controlling. There we held
that Luis L. Lardizabal, who filed the quo warranto petition, could not replace Ramon L.
Labo, Jr. as mayor of Baguio City for the simple reason that as he obtained only the
second highest number of votes in the election, he was obviously not the choice of the
people of Baguio City for mayor of that City.

A petition alleging that the candidate-elect is not qualified for the office is, in effect,
a quo warranto proceeding even if it is labelled an election protest. 28 It is a proceeding
to unseat the ineligible person from office but not necessarily to install the protestant in
his place. 29

The general rule is that the fact that a plurality or a majority of the votes are cast for an
ineligible candidate in an election does not entitle the candidate receiving the next
highest number of votes to be declared elected. In such a case, the electors have failed
to make a choice and the election is a nullity. 30

Sound policy dictates that public elective offices are filled by those who
have the highest number of votes cast in the election for that office, and it
is a fundamental idea in all republican forms of government that no one
can be declared elected and no measure can be declared carried unless
he or it receives a majority or plurality of the legal votes cast in the
election. (20 Corpus Juris 2nd, S 243, p. 676).

As early as 1912, this Court has already declared that the candidate who
lost in an election cannot be proclaimed the winner in the event that the
candidate who won is found ineligible for the office to which he was
elected. This was the ruling in Topacio v. Paredes (23 Phil. 238)

Again, the effect of a decision that a candidate is not entitled

to the office because of fraud or irregularities in the election
is quite different from that produced by declaring a person
ineligible to hold such an office. . . . If it be found that the
successful candidate (according to the board of canvassers)
obtained a plurality in an illegal manner, and that another
candidate was the real victor, the former must retire in favor
of the latter. In the other case, there is not, strictly speaking,
a contest, as the wreath of victory cannot be transferred from
an ineligible to any other candidate when the sole question is
the eligibility of the one receiving a plurality of the legally
cast ballots. . . . 31

The recognition of Emil L. Ong by the 1971 Constitutional Convention as a

natural-born Filipino citizen, in relation to the present case.

Private respondent, as previously stated, is a full brother of Emil L. Ong, both of them
having the same father and mother.
Private respondent, relying on a resolution of the 1971 Constitutional Convention 32 to
the effect that Emil L. Ong was a natural-born Filipino citizen, alleged before the House
Electoral Tribunal that, by analogy, he is himself a natural-born Filipino citizen. This
submission, while initially impressive, is, as will now be shown, flawed and not
supported by the evidence. Not even the majority decision of the electoral tribunal
adopted the same as the basis of its decision in favor of private respondent. The
tribunal, in reference to this submission, said:

Be that as it may and in the light of the Tribunal's disposition of protestee's

citizenship based on an entirely different set of circumstances, apart from
the indisputable fact that the matters attempted to be brought in issue in
connection therewith are too far removed in point of time and relevance
from the decisive events relied upon by the Tribunal, we view these two
issues as being already inconsequential. 33

The electoral tribunal (majority) instead chose to predicate its decision on the
alleged citizenship by naturalization of private respondent's father (Ong Chuan)
and on the alleged election of Philippine citizenship by private respondent.

Emil L. Ong, was elected delegate to the 1971 Constitutional Convention. Electoral
protests, numbers EP-07 and EP-08, were filed by Leonardo D. Galing and Gualberto
D. Luto against Emil L. Ong, contesting his citizenship qualification. The Committee on
Election Protests Credentials of the 1971 Contitution Convention heard the protests and
submitted to the Convention a report dated 4 September 1972, the dispositive portion of
which stated:

It appearing that protestee's grandfather was himself a Filipino citizen

under the provisions of the Philippine Bill of 1902 and the Treaty of Paris
of December 10, 1898, thus conferring upon protestee's own father, Ong
Chuan, Philippine citizenship at birth, the conclusion is inescapable that
protestee himself is a natural-born citizen, and is therefore qualified to
hold the office of delegate to the Constitutional Convention. 34

On 28 November 1972, during a plenary session of the 1971 Constitutional Convention,

the election protests filed against Emil L. Ong were dismissed, following the report of
the Committee on Election Protests and Credentials. 35

It is evident, up to this point, that the action of the 1971 Constitutional Convention in the
case of Emil L. Ong is, to say the least, inconclusive to the case at bar, because

a) the 1971 Constitutional Convention decision in the Emil L. Ong case

involved the 1935 Constitution; the present case, on the other hand
involves the 1987 Constitution:

b) the 1935 Constitution contained no specific definition of a "natural-born

citizen" of the Philippines; the 1987 Constitution contains a precise and
 specific definition of a "natural-born citizen" of the Philippines in Sec. 2,
Art. IV thereof and private respondent does not qualify under such
definition in the 1987 Constitution;

c) the decision of the 1971 Constitutional Convention in the case of Emil L.

Ong was a decision of apolitical body, not a court of law. And, even if we
have to take such a decision as a decision of a quasi-judicial body (i.e., a
political body exercising quasi-judicial functions), said decision in the Emil
L. Ong case can not have the category or character of res judicata in the
present judicial controversy, because between the two (2) cases, there is
no identity of parties (one involves Emil L. Ong, while the other involves
private respondent) and, more importantly, there is no identity of causes of
action because the first involves the 1935 Constitution while the second
involves the 1987 Constitution.

But even laying aside the foregoing reasons based on procedural rules and logic,
the evidence submitted before the electoral tribunal and, therefore, also before this
Court, does not support the allegations made by Emil L. Ong before the 1971
Constitutional Convention and inferentially adopted by private respondent in the present
controversy. This leads us to an interesting inquiry and finding.

The 1971 Constitutional Convention in holding that Emil L. Ong was a "natural-born
citizen" of the Philippines under the 1935 Constitution laid stress on the "fact" and
this appears crucial and central to its decision that Emil L. Ong's grandfather, Ong
Te became a Filipino citizen under the Philippine Bill of 1902 and, therefore, his
descendants like Emil L. Ong (and therefore, also private respondent) became natural-
born Filipinos. The 1971 Constitutional Convention said:

Ong Te Emil Ong's grandfather, was a Spanish subject residing in the

Philippines on April 11, 1899 and was therefore one of the many who
became ipso facto citizens of the Philippines under the provisions of the
Philippine Bill of 1902. Said law expressly declared that all inhabitants of
the Philippine Islands who continued to reside therein and who were
Spanish subjects on April 11, 1899 as well as their children born
subsequent thereto, "shall be deemed and held to be citizens of the
Philippine Islands." (Section 4, Philippine Bill of
1902). 36

The "test" then, following the premises of the 1971 Constitutional Convention, is
whether or not Ong Te private respondent's and Emil L. Ong's grandfather was "an
inhabitant of the Philippines who continued to reside therein and was a Spanish subject
on April 11, 1899." If he met these requirements of the Philippine Bill of 1902, then, Ong
Te was a Filipino citizen; otherwise, he was not a Filipino citizen.

Petitioners (protestants) submitted and offered in evidence before the House Electoral
Tribunal exhibits W, X, Y, Z ,AA, BB, CC, DD and EE which are copies of entries in the
"Registro de Chinos" from years 1896 to 1897 which show that Ong Te was not listed
as an inhabitant of Samar where he is claimed to have been a resident. Petitioners
(protestants) also submitted and offered in evidence before the House Electoral
Tribunal exhibit V, a certification of the Chief of the Archives Division, Records and
Management and Archives Office, stating that the name of Ong Te does not appear in
the "Registro Central de Chinos" for the province of Samar for 1895. These exhibits
prove or at least, as petitioners validly argue, tend to prove that Ong Te was NOT a
resident of Samar close to 11 April 1899 and, therefore, could not continue residing in
Samar, Philippines after 11 April 1899, contrary to private respondent's pretense. In the
face of these proofs or evidence, private respondent FAILED TO PRESENT ANY
REBUTTAL OR COUNTERVAILING EVIDENCE, except the decision of the 1971
Constitutional Convention in the case of Emil L. Ong, previously discussed.

It is not surprising then that, as previously noted, the majority decision of the House
Electoral Tribunal skirted any reliance on the alleged ipso facto Filipino citizenship of
Ong Te under the Philippine Bill of 1902. It is equally not surprising that Ong Chuan, the
son of Ong Te and father or private respondent, did not even attempt to claim Filipino
citizenship by reason of Ong Te's alleged Filipino citizenship under the Philippine Bill of
1902 but instead applied for Philippine citizenship through naturalization.

Nor can it be contended by the private respondent that the House Electoral Tribunal
should no longer have reviewed the factual question or issue of Ong Te's citizenship in
the light of the resolution of the 1971 Constitutional Convention finding him (Ong Te to
have become a Filipino citizen under the Philippine Bill of 1902. The tribunal had to look
into the question because the finding that Ong Te had become a Filipino citizen under
the Philippine Bill of 1902 was the central core of said 1971 resolution but as held in Lee
vs. Commissioners of
Immigration: 37

. . . Everytime the citizenship of a person is material or indispensable in a

judicial or administrative case, whatever the corresponding Court or
administrative authority decides therein as to such citizenship is generally
not considered as res adjudicata, hence it has to be threshed out again
and again as the occasion may demand.

Which finally brings us to the resolution of this Court in Emil L. Ong vs. COMELEC, et
al., G.R. No. 67201, 8 May 1984. In connection with said resolution, it is contended by
private respondent that the resolution of the 1971 Constitutional Convention in the Emil
L. Ong case was elevated to this Court on a question involving Emil L. Ong's
disqualification to run for membership in the Batasang Pambansa and that, according to
private respondent, this Court allowed the use of the Committee Report to the 1971
Constitutional Convention.

To fully appreciate the implications of such contention, it would help to look into the
circumstances of the case brought before this Court in relation to the Court's action or
disposition. Emil L. Ong and Edilberto Del Valle were both candidates for the Batasang
Pambansa in the 14 May 1984 election. Valle filed a petition for disqualification with the
Commission on Election on 29 March 1984 docketed as SPC No. 84-69 contending that
Ong is not a natural-born citizen. Ong filed a motion to dismiss the petition on the
ground that the judgment of the 1971 Constitutional Convention on his status as a
natural-born citizen of the Philippines bars the petitioner from raising the Identical issue
before the COMELEC. (G.R. No. 67201, Rollo, p. 94) The motion was denied by the
COMELEC, thus, prompting Emil L. Ong to file with this Court a petition for certiorari,
prohibition and mandamus with preliminary injunction against the COMELEC, docketed
as G.R. No. 67201.

In a resolution dated 8 May 1984, this Court resolved to issue a writ of preliminary
injunction enjoining respondent COMELEC from holding any further hearing on the
disqualification case entitled "Edilberto Del Valle vs. Emil Ong (SPC No. 84-69) except
to dismiss the same. (G.R. Nos. 92202-03, Rollo, p. 335)

This Court, in explaining its action, held that:

Acting on the prayer of the petitioner for the issuance of a Writ of

Preliminary Injunction, and considering that at the hearing this morning, it
was brought out that the 1971 Constitutional Convention, at its session of
November 28, 1972, after considering the Report of its Committee on
Election Protests and Credentials, found that the protest questioning the
citizenship of the protestee (the petitioner herein) was groundless and
dismissed Election Protests Nos. EP 07 and EP 08 filed against said
petitioner (p. 237, Rollo), the authenticity of the Minutes of said session as
well as of the said Committee's Report having been duly admitted in
evidence without objection and bears out, for now, without need for a full
hearing, that petitioner is a natural-born citizen, the Court Resolved to
ISSUE, effective immediately, a Writ of Preliminary Injunction enjoining
respondent COMELEC from holding any further hearing on the
disqualification case entitled Edilberto Del Valle vs. Emil Ong (SPC No.
84-69) scheduled at 3:00 o'clock this afternoon, or any other day, except
to dismiss the same. This is without prejudice to any appropriate action
that private respondent may wish to take after the elections. (emphasis
supplied)

It is thus clear that the resolution of this Court in G.R. No. 67201 was rendered without
the benefit of a hearing on the merits either by the Court or by the COMELEC and
merely on the basis of a Committee's Report to the 1971 Constitutional Convention, and
that this Court (and this is quite significant) did not foreclose any appropriate action that
Del Valle (therein petitioner) may wish to take after the elections.

It is thus abundantly clear also that to this Court, the resolution of the 1971
Constitutional Convention recognizing Emil L. Ong as a natural-born citizen under the
1935 Constitution did not foreclose a future or further proceeding in regard to the same
question and that, consequently, there is no vested right of Emil L. Ong to such
recognition. How much more when the Constitution involved is not the 1935 Constitution
but the 1987 Constitution whose provisions were never considered in all such
proceedings because the 1987 Constitution was still inexistent.

A final word. It is regrettable that one (as private respondent) who unquestionably
obtained the highest number of votes for the elective position of Representative
(Congressman) to the House of Representatives for the second district of Northern
Samar, would have had to cease in office by virtue of this Court's decision, if the full
membership of the Court had participated in this case, with the result that the legislative
district would cease to have, in the interim, a representative in the House of
Representatives. But the fundamental consideration in cases of this nature is the
Constitution and only the Constitution. It has to be assumed, therefore, that when the
electorate in the second legislative district of Northern Samar cast the majority of their
votes for private respondent, they assumed and believed that he was fully eligible and
qualified for the office because he is a natural-born Filipino citizen. That erroneous
assumption and belief can not prevail over, but must yield to the majesty of the
Constitution.

This is a sad day for the Constitution. As I see it, the Constitution mandates that
members of the House of Representatives should be "natural-born citizens of the
Philippines". The voting majority of the present Court says, "Filipino citizens will do."
This is bad enough. What is worse is, the same voting majority, in effect, says, "even
aliens will do as well."

WHEREFORE, my vote is clear: to declare private respondent Jose L. Ong Chua, Jr.,
as he clearly is, NOT a natural-born citizen of the Philippines and therefore NOT
QUALIFIED to be a Member of the House of Representatives, Congress of the
Philippines.

Narvasa, J., Paras, J. and Regalado, J., dissenting.

SARMIENTO, J., concurring:

I concur with the majority.

(1)

I wish to point out first that the question of citizenship is a question of fact, and as a rule,
the Supreme Court leaves facts to the tribunal that determined them. I am quite agreed
that the Electoral Tribunal of the House of Representatives, as the "sole judge" of all
contests relating to the membership in the House, as follows:

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.
Each Electoral Tribunal shall be composed of nine Members, three of
 whom shall be Justices of the Supreme Court to be designated by the
Chief Justice, and the remaining six shall be Members of the Senate or
the House of Representatives, as the case may be, who shall be chosen
on the basis of proportional representation from the political parties and
the parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal shall be
its Chairman. 1

is the best judge of facts and this Court can not substitute its judgment because it
thinks it knows better.

In the case of Aratuc v. Commission on Elections, 2 it was held that this Court can not
review the errors of the Commission on Elections (then the "sole judge" of all election
contests) in the sense of reviewing facts and unearthing mistakes and that this
Court's jurisdiction is to see simply whether or not it is guilty of a grave abuse of
discretion. It is true that the new Constitution has conferred expanded powers on the
Court, 3 but as the Charter states, our authority is "to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government." 4 It is not to review facts.

"Grave abuse of discretion" has been defined as whimsical exercise of power

5
amounting to excess of jurisdiction, or otherwise, to denial of due process of law.

I find none of that here.

As the majority indicates, Jose Ong's citizenship is a matter of opinion with which men
may differ, but certainly, it is quite another thing to say that the respondent Tribunal has
gravely abused its discretion because the majority has begged to differ. It does not form
part of the duty of the Court to remedy all imagined wrongs committed by the
Government.

The respondent Tribunal has spoken. According to the Tribunal, Jose Ong is a Filipino
citizen and consequently, is possessed of the qualifications to be a member of the
House. As the sole judge, precisely, of this question, the Court can not be more popish
than the pope.

(2)

I can not say, in the second place, that the Decision in question stands exactly on
indefensible grounds. It is to be noted that Jose Ong had relied on the Report dated
September 4, 1972 of the 1971 Constitutional Convention Committee 6 on Election
Protests and Credentials, in which the Committees upheld the citizenship, and
sustained the qualification to sit as Delegate, of Emil Ong, Jose Ong's full blood brother.
According to the Report, Ong Te the Ongs' grandfather, was already a Filipino citizen
having complied with the requirements on Filipinization by existing laws for which his
successors need not have elected Filipino citizenship. I quote:
 xxx xxx xxx

There is merit in protestee's claim. There can hardly be any doubt that
Ong Te protestees's grandfather, was a Spanish subject residing in the
Philippines on April 11, 1899, and was therefore one of the many who
became ipso facto citizens of the Philippines under the provisions of the
Philippine Bill of 1902. Said law expressly declared that all inhabitants of
the Philippine Islands who continued to reside therein and who were
Spanish subjects on April 11, 1899, as well as their children born
subsequent thereto, "shall be deemed and held to be citizens of the
Philippine Islands" (Sec. 4, Philippine Bill of 1902). Excepted from the
operation of this rule were Spanish subjects who shall have elected to
preserve their allegiance to the Crown of Spain in accordance with the
Treaty of Paris of December 10, 1898. But under the Treaty of Paris, only
Spanish subjects who were natives of Peninsular Spain had the privilege
of preserving their Spanish nationality. 7

xxx xxx xxx

xxx xxx xxx

As earlier noted, protestee's grandfather established residence in the

Philippines in 1895, as shown by the Registro Central de Chinos. He was
also issued a certificate of registration. He established a business here,
and later acquired real property. Although he went back to China for brief
visits, he invariably came back. He even brought his eldest son, Ong
Chuan, to live in the Philippines when the latter was only 10 years old.
And Ong Chuan was admitted into the country because, as duly noted on
his landing certificate, his father, Ong Te had been duly enrolled under CR
16009-36755 i.e., as a permanent resident. Indeed, even when Ong Te
went back to China in the 1920's for another visit, he left his son, Ong
Chuan, who was then still a minor, in the Philippines obviously because
he had long considered the Philippines his home. The domicile he
established in 1895 is presumed to have continued up to, and beyond,
April 11, 1899, for, as already adverted to, a domicile once acquired is not
lost until a new one is gained. The only conclusion then can thus be drawn
is that Ong Te was duly domiciled in the Philippines as of April 11, 1899,
within the meaning of par. 4, Art. 17, of the Civil Code of 1889 and was,
consequently, a Spanish subject, he qualified as a Filipino citizen under
the provisions of Section 4 of the Philippine Bill of 1902. 8

It is true that Ong Chuan, the Ong brothers' father, subsequently sought naturalization in
the belief that he was, all along, a Chinese citizen, but as the Report held:

Protestants, however, make capital of the fact that both Ong Te and his
son, Ong Chuan (protestee's father), appear to have been registered as
 Chinese citizens even long after the turn of the century. Worse, Ong
Chuan himself believed the was alien, to the extent of having to seek
admission as a Pilipino citizen through naturalization proceedings. The
point, to our mind, is neither crucial nor substantial. Ong's status as a
citizen is a matter of law, rather than of personal belief. It is what the law
provides, and not what one thinks his status to be, which determines
whether one is a citizen of a particular state or not. Mere mistake or
misapprehension as to one's citizenship, it has been held, is not a
sufficient cause or reason for forfeiture of Philippine citizenship; it does not
even constitute estoppel (Palanca vs. Republic, 80 Phil. 578, 584). Too,
estoppel applies only to questions of fact and not of law (Tanada v.
Cuenco, L-10520, Feb. 28, 1957). 9

It is to be noted that the Report was unanimously approved by the Committee, and on
November 28, 1972, approved without any objection by the Convention in plenary
session. 10

I am not, of course, to be mistaken as acting as mouthpiece of Emil Ong, but in all

candor, I speak from experience, because when the Convention approved the Report in
question, I was one of its vice-presidents and the presiding officer.

It is to be noted finally, that the matter was elevated to this Court (on a question
involving Emil Ong's qualification to sit as member of the defunct Batasang
Pambansa) 11 in which this Court allowed the use of the Committee Report.

Faced with such positive acts of the Government, I submit that the question of the Ong's
citizenship is a settled matter. Let it rest.

It is true that Electoral Protest Nos. EP-07 and EP-08 of the Convention as well as G.R.
No. 67201 of this Court, involved Emil Ong and not his brother; I submit, however, that
what is sauce for the goose is sauce for the gander.

I also submit that the fundamental question is whether or not we will overturn the
unanimous ruling of 267 delegates, indeed, also of this Court.

Footnotes

Sarmiento J.: concurring

1 CONST., art. VI, sec. 17.

2 Nos. L-49705-09; 49717-21, February 8, 1979, 88 SCRA 251.

3 CONST., supra, art. VIII, sec. 1.

4 Supra.
5 Robles v. House of Representatives Electoral Tribunal, G.R. No. 86647,
February 5, 1990, 181 SCRA 780.

6 Galing v. Ong, Elec. Protest No. EP-07 (Const. Con), September 4,

1972; Luto v. Ong, Elec. Protest, No. EP-08 (Const. Con) September 4,
1972; Liwag, Juan, Chmn.

7 Rept., Comm. on Election Protests and Credentials (Const. Con.),

September 4, 1972, 3.

8 Id., 4-5.

9 Id., 5-6.

10 The Delegates present were as follows:

Delegate Delegate
Abalos E. Bacaltos
Delegate Delegate
Ablan Badelles
Delegate Delegate
Abueg Baguilat
Delegate Delegate
Abundo Baradi
Delegate Adil Delegate
Barbers
Delegate Delegate
Alanis Bautista
Delegate Delegate
Alano Belo
Delegate Delegate
Amante Blancia
Delegate Anni Delegate
Bongbong
Delegate Delegate
Apalisok Borja
Delegate Delegate
Arabejo Borra
Delegate Delegate
Borromeo Laggui
Delegate Delegate
Buen Lazo
Delegate Delegate
Bugnosen Ledesma C.
Delegate Delegate
Cainglet Legaspi
Delegate Delegate
Calderon C. Leviste C.
Delegate Delegate
Calderon P. Lim P.
Delegate Delegate
Caliwara Lim R.
Delegate Delegate
Camello Macaraya
Delegate Delegate
Campomanes Macias
Delegate Delegate
Canilao Madrillejos
Delegate Delegate
Carrillo Momenta
Delegate Delegate
Castillo P. Mapupuno

Delegate Delegate
Castro Marino

Delegate Delegate
Catan Mendiola

Delegate Delegate
Ceniza Mijares

Delegate Delegate
Clements Misa

Delegate Delegate
Corpus Montejo

Delegate Delegate
David Montinola

Delegate Delegate
Davide Olmedo

Delegate De Delegate
Guzman Ong

Delegate De Delegate
la Serna Ozamiz

Delegate Delegate
Encarnacion Panotes

Delegate Delegate
Espiritu A.C. Pepito

Delegate Delegate
Estaniel Pimentel A.

Delegate Delegate
Estrella Quibranza

Delegate Delegate
Exmundo Quintero

Delegate Delegate
Flores A. Quirino

Delegate Delegate
Flores T. Reyes G.

Delegate Delegate
Garcia J. Rodriguez B.

Delegate Delegate
Gaudiel Rodriguez P.

Delegate Delegate
Gonzaga Romualdo

Delegate Delegate
Guevara Sabio

Delegate Delegate
Guirnalda Salazar A.

Delegate Delegate
Guzman Sangkula

Delegate Delegate
Hilado Santillan

Delegate Delegate
Hocson Santos O.

Delegate Delegate
Ignacio Sarmiento

Delegate Delegate
Kintanar J. Serapio

Delegate Delegate
Lachica Serrano

Delegate Delegate
Lagamon Sinco

Delegate Delegate
Tabuena Britanico

Delegate Delegate
Tanopo Cabal

Delegate Delegate
Tingson Calaycay

Delegate Delegate
Tolentino Calderon J.

Delegate Delegate
Trono Capulong

Delegate Delegate
Tupaz A. Castilo N.

Delegate Delegate
Valdez Catubig

Delegate Delegate
Velasco Cea

Delegate Delegate
Verzola Claver

Delegate Villar Delegate

Concordia
Delegate
Vinzons Delegate
Cruz
Delegate
Viterbo Delegate De
la Cruz
Delegate Yap
Delegate De
Delegate Yulo la Paz
A.
Delegate De
Delegate Yulo Lima
J.G.
Delegate De
Delegate los Reyes
Zafra
Delegate De
The President Pio

Delegate Delegate
Abad Deavit

Delegate Delegate
Abalos F. Esparrago

Delegate Delegate
Abubakar Espina

Delegate Delegate
Aguilar Espiritu R.

Delegate Delegate
Albano Fajardo

Delegate Delegate
Aldaba Falgui

Delegate Delegate
Alfelor Fernan

Delegate Delegate
Alonto Fernandez

Delegate Delegate
Amatong Gangan

Delegate Delegate
Ampatuan Garcia A.

Delegate Delegate
Angara Garcia F.

Delegate Delegate
Angala Garda L.P.

Delegate Delegate
Antonio Garcia L.M.

Delegate Delegate
Araneta T. Gordon

Delegate Delegate
Aruego Gunigundo

Delegate Delegate
Astilla Hermoso

Delegate Delegate
Azcuna Hortinela

Delegate Delegate
Balane Imperial

Delegate Delegate
Balindong Jamir

Delegate Delegate
Barrera Johnston

Delegate Delegate
Bengzon Juaban

Delegate Delegate
Ledesma F. Kintanar S.

Delegate Delegate
Ledesma O. Laurel

Delegate Delegate
Leido Raquiza

Delegate Delegate
Lobregat Restor

Delegate Delegate
Lobrin Reyes B.

Delegate Delegate
Locsin J. Reyes C.

Delegate Delegate
Locsin M. Reyes J.

Delegate Delegate
Madarang Reyes P.

Delegate Delegate
Martinez Robles

Delegate Delegate
Mastura Roco

Delegate Delegate
Matas Rosales

Delegate Delegate
Mendoza Ruben

Delegate Delegate
Molina Sagadal

Delegate Delegate
Mantilla Sagmit

Delegate Delegate
Mordeno Saguin

Delegate Delegate
Nisce Salazar R.

Delegate Delegate
Nuguid Salva

Delegate Oca Delegate

Sambolawan
Delegate
Opinion Delegate
Sanchez
Delegate
Ordonez Delegate
Santelices
Delegate
Ortega Delegate
Santiago
Delegate Ortiz
P. Delegate
Santos E.
Delegate Ortiz
R. Delegate
Sarraga
Delegate
Pacificador Delegate
Sarte
Delegate
Padiernos Delegate
Sawit
Delegate
Padua C. Delegate
Seares
Delegate
Padua M. Delegate
Sevilla
Delegate
Pangandaman Delegate
Siguion
Delegate Reyna
Parades
Delegate
Delegate Pat Sinsuat

Delegate Delegate
Pimentel V. Sison A.

Delegate Delegate
Pingoy Sison E.

Delegate Delegate
Ponchinlan Sorongan

Delegate Delegate
Primicias Suarez

Delegate Delegate
Purisma Syjuco

Delegate Delegate
Puruganan Teodoro

Delegate Delegate
Puzon Teves

Delegate Delegate
Quintos Tirador

Delegate Delegate
Ramos Tirol

Delegate Delegate
Valera Tocao

Delegate Delegate
Veloso D. Trillana

Delegate Delegate
Veloso I. Tupaz D.

Delegate Delegate
Villadelgado Yaneza

Delegate Delegate
Yancha Yaranon

Delegate
Yniguez

Delegate
Yuzon

Delegate
Zosa
 11 Ong v. Commission on Elections, G.R. No. 67201, May 8, 1984.

Padilla J.: dissenting

* With the concurrence of Congressmen Mario L. Tagarao, David A.

Ponce De Leon, Simeon E. Garcia, Juanito G. Camasura, Jr. and Jose E.
Calingasan; Justices Ameurfina A. Melencio-Herrera, Isagani A. Cruz,
Florentino P. Feliciano and Congressman Antonio H. Cerilles dissented.

1 G.R. Nos. 92191-92, Rollo, pp. 21-23.

2 Section 17, Article VI, 1987 Constitution.

3 No. 45352, October 31, 1938, 66 Phil. 429.

4 Chartered Bank Employees Association vs. Ople, G.R. No. 44717,

August 28, 1985, 138 SCRA 273. Article VI, Section 6.

6 G.R. No. 92191-92, Rollo, pp. 41-42.

7 Article III, Section 1 (3) and (4),1935 Constitution provide:

Section 1. The following are citizens of the Philippines.

(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.

8 Burca vs. Republic, G.R. No. L-24252, January 30, 1967, 19 SCRA 186.

9 Sia Reyes vs. Deportation Board, No. L-31763, May 30, 1983, 122
SCRA 478.

10 G.R. No. L-11499, April 29, 1961, 1 SCRA citing U.S. vs. Sponrer, 175
Fed. 440.

11 Cuaski Tan Si vs. Republic, G.R. No. L-18006, October 31, 1962, 6
SCRA 545.

12 Labo vs. COMELEC, G.R. No. 86564, August 1, 1989, 176 SCRA 1.

13 Tan vs. Republic, G.R. No. L-28706, January 30, 1971, 37 SCRA 353.
14 G.R. No. L-29674, April 8, 1988, 159 SCRA 477.

15 G.R. Nos. 92191-92, Rollo, p. 7.

16 G.R. Nos. 92202-03, Rollo, p. 23.

17 G.R. Nos. 92191-92, Rollo, p. 30.

18 Nitafan vs. Commissioner of Internal Revenue, G.R. No. L-78780, July

23, 1987, 152 SCRA 284.

19 Record of the Constitutional Commission, Vol. I, p. 189.

20 Record of the Constitutional Commission, Vol. I, p. 228.

21 Record of the Constitutional Commission, Vol. I, p. 356.

22 Acar vs. Rosal, G.R. No. L-21707, March 18, 1967, 19 SCRA 625.

23 G.R. No. 92191-92, Rollo, p. 40.

24 Sections 1 and 2, C.A. 625 state:

SECTION 1. The option to elect Philippine citizenship in accordance with

subsection (4), section 1, Article IV, of the Constitution shall be expressed
in a statement to be signed and sworn to by the party concerned before
any officer authorized to administer oaths, and shall be filed with the
nearest civil registry. The said party shall accompany the aforesaid
statement with the oath of allegiance to the Constitution and the
Government of the Philippines.

"SECTION 2. If the party concerned is absent from the Philippines, he

may make the statement herein authorized before any officer of the
Government of the United States authorized to administer oaths, and he
shall forward such statement together with his oath of allegiance, to the
Civil Registry of Manila."

25 Administrative Case No. 533, September 12, 1974, 59 SCRA 45.

26 In Re: Florencio Mallare, supra, p. 52.

27 G.R. No. 86564, August 1, 1989, 176 SCRA 1.

28 Luison vs. Garcia, No. L-10981, April 25, 1958, 103 Phil. 453.

29 Topacio vs. Paredes, No. 8069, October 7, 1912, 23 Phil. 238.

30 Llamoso vs. Ferrer, et al. No. L-2470. August 30, 1949, 84 Phil. 490.

31 Geronimo vs. Ramos, G.R. No. 60504, May 14, 1985,136 SCRA 435.

32 Two (2) of the members of said 1971 Constitutional Convention are

now distinguished members of the Court, namely, Sarmiento and
Davide, JJ. and they are part of the voting majority in this case.

33 G.R. Nos. 92191-92, Rollo, pp. 42-43.

34 G.R. Nos. 92202-03, Rollo, p. 196.

35 G.R. Nos. 92202-03, Rollo, p. 211.

36 G.R. Nos. 92202-03, Rollo, p. 193.

37 G.R. No. L-23446, 20 December 1971, 42 SCRA 561.