Why Grace Poe has 10-year Philippine residence

THIS constitutional issue is before the Philippine Supreme Court for final decision  on petitions for certiorari filed by Grace Poe from the COMELEC’s en banc decision.

Article VII, Section 2 of the Philippine 1987 Constitution states the 10-year residence requirement as follows:  “No person may be elected President or Vice-President unless he is … a resident of the Philippines for at least ten years immediately preceding such election.”

Thus, the critical period of residence of Grace Poe is from May 9, 2006 to May 9, 2016, the ten years immediately preceding the May 9, 2016 national elections.

Eligibility requirements patterned after US Constitution:

Although the United States Constitution was not extended to the Philippines by the terms of the Treaty of Paris, deliberations of the 1934 Philippine Constitutional Commission show that the eligibility requirements for President:  natural-born citizen of the Philippines and a resident of the Philippines for at least ten years immediately preceding the election in Article VII, Section 3 of the 1935 Constitution were patterned after the US Constitution.

Indeed, Article 2, Section 1, Clause 5 of the 1776 United States Constitution states: “No person except a natural born citizen or a citizen of the United States … shall be eligible to the Office of President; neither shall any person be eligible to that office who shall … have been fourteen years a President within the United States.”

And such eligibility requirement on residence was merely carried over to the 1973 and 1987 Philippine Constitutions from the 1935 Constitution.

Commenting on the “residence” requirement for the Office of President in Article 2, Section 1, Clause 5 of the US Constitution, Joseph Story in 1833 stated:  “By “residence”, in the Constitution is to be understood, not an absolute inhabitancy within the United States during the whole period, but such inhabitancy includes a permanent domicil in the United States.”

And the rationalé for residence requirement, according to Joseph Story, is: “…so that the people may have a full opportunity to know his character and merits, and that he may have mingled in the duties, and felt the interests, and understood the principle, and nourished the attachments, belonging to every citizen in a republican government.”

Residence is synonymous with domicile in election law:

From the 1928 case of Nuval vs. Guray, the 1934 case of Lorena vs. Tenco, the 1954 case of Faypen v. Quirino to the 1995 case of Imelda R. Marcos vs. COMELEC et al., the Philippine Supreme Court has equated election “residence” to domicile.

To successfully effect a change of domicile, one must demonstrate: (1) an actual removal or an actual change of domicile; (2) a bona fide intention of abandoning the former place of residence and establishing a new one; and (3) acts which correspond with the purpose.

On the other hand, domicile is defined as residence, that is a person’s principal, actual dwelling place,  by US immigration laws and regulations.

Whether a citizen at birth or by naturalization, a US citizen is not required to be a domiciliary or resident of the United States to retain US citizenship.

A natural born or naturalized US citizen may voluntarily relinguish US citizenship by acts of expatriation such as obtaining naturalization in a foreign state, accepting or serving duties of employment of a foreign government, or making a formal renunciation of US citizenship before a US diplomatic or consular officer.

Residence of Grace Poe in US and Philippines:

Grace Poe was adopted by Ronald Allan Kelly Poe and actress Susan Roces in or about 1973.   She attended elementary school at Saint Paul College in Pasig, Rizal and Makati.   In 1982, she transferred to Assumption College in San Lorenzo for high school.

She then studied at the University of the Philippines in Diliman, Quezon City, majoring in development studies for two years; and then transferred to Boston College in Boston, Massachussets, where she finished a degree in political science in 1991.

On July 27, 1991, she married dual  citizen Teodoro Misael Llamanzares in the Philippines at age 22.   She  returned to the United States and lived a quiet life in Fairfax, Virginia, but returned to the Philippines to deliver her first born, Brian, on April 16, 1992, her second born, Hanna in 1998, and her youngest, Nikka, in 2004.

She became a naturalized US citizen on October 18, 2001, but after the death of her father on December 14, 2004, she and her family returned to the Philippines for good on April 8, 2005, to be with her widowed mother.

On July 7, 2006, she applied for dual citizenship under Republic Act 9225.     And her Philippine citizenship was restored as well as those of her three children on July 18, 2006.

She renounced her US citizenship before a Philippine notary on October 6, 2010, and before a US Consul in Manila on July 12, 2011.   Her loss of US citizenship was approved on December 9, 2011.

She was appointed and served as Chairwoman of the Movie and Television Review and Classification  Board (MTRCB) from October 10, 2010 to October 2, 2012, when she resigned to run for Senator.

Running as an independent candidate, she won first place in the 2013 Senate elections with over 20 million votes.

Grace Poe has 10-year residence by May 9, 2016

There is no dispute that her domicile of origin under Philippine election law is the Philippines.   She was born and then studied there up to college.   She then moved to the United States to continue her studies and raise a family.

And although she became a lawful permanent resident of the United States and then a naturalized  US citizen, she could and did retain her domicile of origin in the Philippines for election law purposes, so long as her US residence (not domicile) was the permanent one for US immigration law purposes.   She merely gained a new address in Virginia after her marriage.

Granting arguendo that she had abandoned her Philippine domicile of origin when she became a lawful permanent resident and then a naturalized US citizen, she could and did change domicile from the United States to the Philippines on April 8, 2005, when she and her family returned to the Philippines for good.

Her re-establishment of Philippine domicile by choice on April 8, 2005, sufficiently complies with the ten-year residence requirement from May 9, 2006 to May 9, 2016.

Counting her Philippine domicile from the earliest in July 7, 2006, when she applied for dual citizenship under Republic Act 9225, incorrectly assumes that:  (1) a naturalized US citizen cannot have domicile or residence outside the United States; and (2) the 10-year residence requirement pertains  only to a natural-born Philippine citizen.

In the first place, the citizenship requirement is separate and distinct from that of the ten-year residence; see Frivaldo vs. Comelec, 327 Phil 521 (1996).   Secondly, the ten-year residence requirement is not specifically conditioned to be that of a natural-born citizen.   And thirdly, the rationalé of the residence requirement is to prevent a stranger or newcomer unacquainted with the conditions and needs of a community and not identified with that community;  see Gallego vs. Vera, 73 Phil. 453 (1941).

Grace Poe’s uses of her US passport as a dual citizen on her travels to the United States were allowed and consistent with her dual citizen status.  Officially, her loss of US citizenship was approved only on December 9, 2011.   Her earlier renunciation of her US citizenship  before a Philippine notary was not recognized by US expatriation law, but strengthened her prior reacquisition of Philippine citizenship.

In any event, the citizenship  qualification, because it is not expressly conditioned, unlike that of residence, is required only at the start of the term of office of the President, as ruled by the Supreme Court in Frivaldo, supra.

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The Author, Roman P. Mosqueda, is a dual Philippine and US citizen, and has published numerous articles on constitutional law, international law, immigration law and other areas of law.  In 2016, he was selected Super Lawyer, Best Attorney in America, and  Lawyers of Distinction’s Top 10% Attorney in the United States. Visit his website at www.mosquedalaw.com.   He practices law in Los Angeles, California.