Poe's presidential bid will revive residency questions – legal experts

Sen. Grace Poe's 2016 presidential run has an obstacle to overcome as questions on her residency could be revived next month when she officially files her certificate of candidacy, several legal experts opined.

Though the Senate Electoral Tribunal (SET) disposed of the questions on Poe's residency during her senatorial candidacy, University of the Philippines law dean Pacifico Agabin, University of the East law dean Amado Valdez, and litigation lawyer Raymond Fortun agreed that the SET decision did not clear Poe from questions on whether she has met the residency requirement for a presidential bet under the Philippine Constitution.

Article VII, Section 2 of the Philippine Constitution requires a presidential candidate to be a resident of the Philippines for at least ten years immediately preceding such election.

"Later on, after Poe files her COC next month, the residency issue against her can once again be revived, no longer for her senatorial bid but for her presidential bid," said Agabin.

Valdez, meanwhile, said that the residency issue, when applied to Poe's presidential bid, should be treated separately and differently than the way it was treated during her Senate bid. "It will be a new disqualification case once she files her certificate of candidacy for president," he explained.

The SET had thrown out the residency case on Poe's Senate bid, not on merit, but on a technicality. Under the rules a disqualification case on the issue of residency must be filed within 10 days from the date of proclamation of a candidate, and the case against Poe was filed after 10 days.

Valdez said Poe, who migrated to the US as a college student and earned citizenship there, still needed to prove that she has been a resident of the Philippines for at least 10 years before the May 2016 elections.

"The residency must be in the concept of having domicile in the Philippines. She cannot have two domiciles, one here and another in the US," he said.

"It is only when she abandoned her US citizenship that she could be considered a resident in the Philippines for purposes of the elections," Valdez added.

According to documents Poe submitted to the SET during the Senate candidacy-disqualification case, Poe renounced her US citizenship on October 20, 2010, a day before she took her oath as MTRCB chair - barely five years ago. She would also affirm her renunciation nine months later, on July 12, 2011.

Intention and desire

However, Poe, a foundling adopted by Fernando Poe Jr. and wife Susan Roces, has repeatedly insisted that she is a Filipino and that she had fulfilled the 10-year residency requirement when she returned to the Philippines in 2004 following her father's death.

Poe's allies and legal experts have argued that because she returned to the Philippines in 2004, the doctrine of "animus revertendi” or one's intention to return to his or her domicile, applied to the senator.

However, for litigation lawyer Raymond Fortun, who also believes that the residency issue could still hound the senator, Poe should prove that she indeed had every intention and desire to return to the Philippines.

"The big question is: What was her unequivocal act in April or May 2006 to convince the Commission on Elections and the Supreme Court that she had the desire to re-acquire residency in the Philippines," Fortun explained. "It can't be a simple 'I buried my father' while on a Philippine tourist visa. It can't be 'I visited and enrolled my kids' while on a Philippine tourist visa."

Poe needed to present proof of "something permanent" to substantiate her claim that she desired to return to the Philippines. "A purchase of a property - a house, condo unit, country club share, or setting up a business or other similar investment," Fortun enumerated.

Poe supposedly purchased property in the Philippines late 2005, and had a house constructed in Quezon City in early 2006. She also enrolled her children in the Philippines in June 2005.

Reckoning point

However, the "animus revertendi” argument may not work for Poe given that she used her US passport 21 times until 2009, as Philippine immigration logs would show. Fortun pointed out that her continued use of a US passport could be taken against her in case the matter is brought to the courts.

Fortun also noted that Poe had sworn in her certificate of candidacy for her senatorial run in 2013 that she has been a resident for six years and six months as of the May 12, 2013 elections.

"If she had indeed meant that the reference point for her residency was not the May 2013 polls but the October 2012 filing of COCs, then Poe should prove that she reacquired her citizenship as early as April 2006 after she decided to return to the Philippines due to the death of his father, the late actor Fernando Poe Jr.,” Fortun explained.

"The senator will need to prove before the appropriate court that she had committed an overt act in April 2006 as a reckoning point in reacquiring Philippine residency," he added.

Fortun thus warned that the use of the American passport could be material in determining the “reckoning point.”

Poe, meanwhile, has argued her citizenship should not be put in question just because she was a foundling. Poe said the United Nations Convention on the Rights of the Child and the UN Convention relating to the Status of Stateless Persons are internationally accepted laws that protect foundlings and that the Philippine government adheres to them.

Fortun, however, clarified that his position was not about Poe's citizenship but was more about her residency. "The Constitution is silent about a natural-born Filipino losing and then reacquiring citizenship, thus, whether or not Sen. Poe complies with the requirement on citizenship is for the courts to decide," he explained. — DVM, GMA News