MEL STA. MARIA | Questioning the Supreme Court on the Grace Poe citizenship ruling

I read the Supreme Court’s decision in the Poe vs. Comelec case allowing Senator Grace Poe, whose parents are unknown, to run for the presidency because she is most likely “a natural born citizen” -- a constitutional requirement for the highest office of the land.

The Supreme Court majority opinion spent great lengths in justifying its position using procedural law, circumstantial evidence, and selected statements of the framers of the 1935 Constitution. The Supreme Court also considered a person’s biological appearance as evidence of being a Filipino. It observed that Senator Grace Poe “has typical Filipino features: height, flat nasal bridge, straight black hair, almond shaped eyes, and oval face.”

The Supreme Court also relied on the “disputable presumption that things happened according to the ordinary course of nature and the ordinary habits of life.” And because at the time Senator Grace Poe was born in Iloilo, ninety-nine percent (99%) of the babies there were reported to be Filipinos, “this would indicate more than ample probability if not statistical certainty that petitioner’s parents are Filipinos.” The Supreme Court likewise said that “the private respondent’s should have shown that both of the petitioner’s parents were alien and that “her admission that she is a foundling did not shift the burden to her because such status did not exclude the possibility that her parents were Filipinos”.

And regarding foundlings, the Supreme Court said that “while the 1935 Constitution’s enumeration is silent on foundlings, there is no restrictive language which would definitely exclude foundlings either.” It referred to international law which, according to the Supreme Court, should not be applied strictly “if we are to be considered civilized and a member of the community of nations.” Finally, the Supreme Court concluded that “the whole process by the Comelec is wrapped in grave abuse of discretion.”

The decision is disturbing. I do not believe that Comelec committed grave abuse of discretion. Nonetheless, we must follow the decision and move on to the election on May 9, 2016. But we should not stop criticizing the Supreme Court decision if we think it is wrong.

First, why is the decision disturbing?

The Grace-Poe-disqualification-case is of transcendental importance. It involves no less than the qualification of the next President of the Philippines -- the highest and most powerful officer of the land -- the person who will be the government’s top domestic public administrator, premiere foreign policy and legislative formulator, economic czar, security guarantor, commander-in chief, and foremost political leader whose decisions will affect no less than 100,000,000 Filipinos here and abroad.

The president’s burden is heavy, the responsibilities great, the delegated power awesome, and the privileges incomparable. And these are the reasons why the issue on presidential qualification demands an exacting resolution based on solid grounds -- not on possibilities, more-than-ample-probabilities, disputable presumptions, statistical certainty, extraneous international law and, yes, even biological physical features of the candidates.

Only the certitude of being a natural-born can provide a legal and objective standard to the questions of genuine attachment to the country and dedication to the affairs of the nation. This is not to say that naturalized-Filipinos are “less Filipinos” than natural-born, but common wisdom dictates that as between a natural born and naturalized Filipino, or for that matter, a Filipino whose natural born citizenship is certain and one whose citizenship is in doubt because of unknown parents of uncertain citizenship, or also, for that matter, a pure Filipino and a “returning” one who once abjured his/her allegiance to the country, the Filipino people will be more at ease and assured with the former as a leader when it comes to issues of loyalty to the national interest. And that level of national comfort is vital to the country. To others, this may or may not be true, but what and how else can we set a minimum requirement to at least provide an initial assurance that the candidate will exhibit his fullest fealty to the nation.

As James Madison said: “birth is a criterion of allegiance.” And if the fundamental law mandates that it should be “citizenship by blood,” its assertion must be substantiated by direct and definitive evidence. A lesser threshold of determining citizenship is dangerous. If there is an iota of doubt -- a one percent probability that the candidate is not a natural born citizen -- that candidate must be disqualified. The demands of the highly delicate and sensitive office of the Presidency and the dictates of allegiance command the observance of such an exacting but understandably necessary standard.

And as to the issue of foundlings, to consider them not automatically natural-born citizens does not mean that the country will not belong to the “civilized members of the community of nations.” To argue otherwise is a moralistic stretch that is nothing but fallacious. Unquestionably, we are all for the paramount interest of children, including foundlings. It is just that the textual constitutional requirements cannot be subjected to the vicissitudes of moral argumentation. I remember the admonition of the great Justice Oliver Wendell Holmes, in his opus “Path of the Law” (a must-read when I was a first year law student). He said: “manifestly, therefore, nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law.”

Now, why should we nonetheless follow the decision of the Supreme Court?

The answer is because Supreme Court decisions form part of the law of the land. We must accept it, willingly or grudgingly, whether we agree with it or not. More significantly, let us look at this decision from an institutional perspective. The votes of the Supreme Court Justices were divided. Nine voted for Grace Poe’s inclusion as a presidential candidate and six voted for her disqualification. There are strong divergent views. But, in our governmental system, the majority must prevail. We must live with the result in the meantime. At least, we know that the outcome was reached after a thorough deliberation of the pros and the cons and the discussion of all possible points of contention. This is the mark of a robust democracy. Diversity, rather than homogeneousness in belief, strengthens the nation.

So to those who would capitalize on this decision by saying that democracy is dead, I am sorry to say that democracy, and indeed the Constitution, is very much alive -- but again, that is if the opinions of each justices were reached by a purity of conscience and not motivated by any considerations of money, political alliances, pressure, or even connections, directly or indirectly, from the contending parties.

Lastly, should we stop criticizing the Supreme Court decision?

The answer is “no” if we think it is wrong. I respect the Supreme Court, but, as Justice Holmes said, “one may criticize even what one reveres.” Supreme Court decisions should not be immune from critical debate and its magistrates from legitimate animadversions. This is especially true considering that it is the only branch of government that decides in close chambers and whose decisions affecting the whole nation are made by men and women without direct mandate from the people. Only in this way can we make these Supreme Court justices, who get their salaries from the people’s taxes, feel accountable to the public. We must remember that they are fallible human beings like all of us. They too can err and be unduly influenced. Justice Brewer, former US Supreme Court Justice, said:

“Justices should be the objects of constant watchfulness by all, and their judgments subject to the freest criticism. The time is past in the history of the world when any living man or body of men can be set on a pedestal and decorated with a halo. True, many criticisms may be, like their authors, devoid of good taste, but better all sorts of criticism than no criticism at all. The moving waters are full of life and health; only in the still waters is stagnation and death.”

I believe that there is no more legal obstacle for Senator Grace Poe to run for the Presidency. The Supreme Court or at least nine of its unelected members have said so over the strong objection of their six colleagues. Any motion for reconsideration, for me, will be useless.

And so we turn to a more important event -- the May 9, 2016 elections. In a great sense, the election’s result will be an indicia of the people’s view about the Supreme Court, its magistrates, and its Grace-Poe decision. Should the people elect Senator Grace Poe to the presidency, this may be a signal of the Filipino people’s approval of the decision. But if she is not elected, it is not entirely wrong to say that the nation, the people themselves, has made known their abhorrence to what to them may have been an unwarranted unconstitutional judicial over-reach. Nothing less than a rebuke by the sovereign people of the Supreme Court, the opinion of its nine unelected justices and the decision itself -- a reminder that it is not the Supreme Court that is supreme but the people themselves. Be that as it may and however it goes, I trust that the nation’s collective wisdom will ultimately prevail. 

source: InterAksyon

We were all duped: SC majority didn’t vote for Llamanzares

Carpio’s revelation
Contrary to what the public has been led to believe, there is no 9 – 6 majority vote in favor of declaring Mrs. Grace Poe Llamanzares a natural-born citizen, and qualified to run for President. This is what we learn from the dissenting opinion of Senior Associate Justice Carpio, who revealed the real vote of seven in favor, five against, and three without an opinion on the issue of citizenship. On the issue of residency, the vote was seven in favor, six against, and two without an opinion. It was only on the issue of grave abuse of discretion that nine voted against the Commission on Elections because they did not believe that any material representations by Mrs. Llamanzares, which are false, were prompted by any “intention to deceive.”

Since the majority failed to rule on the two core issues of citizenship and residency, there is no legal basis for the ponencia written by Associate Justice Jose Perez to declare Mary Grace Natividad Sonora Poe Llamanzares “qualified to be a candidate for President in the National and Local Elections of May 9, 2016.” By rejecting the citizenship and residency requirements of presidential candidates under the Constitution in order to allow a person of unknown biological parentage to run, and by declaring that the Comelec committed grave abuse of discretion when it disqualified Mrs. Llamanzares and cancelled her Certificate of Candidacy, the erring Justices may have culpably violated the Constitution, betrayed public trust, and committed grave abuse of discretion themselves.

We waited for five days to see the basis of the Court spokesman’s announcement last Tuesday that nine Justices had voted that Mrs. Llamanzares “could run,” despite the Comelec’s earlier en banc ruling disqualifying her as a candidate and canceling her COC, for making material representations, which are false, that she is a natural-born citizen and a resident of the country for 10 years and 11 months immediately preceding the election.

7, not 9, votes
On Friday evening, when the texts of the Perez ponencia and the other Justices’ concurring and dissenting opinions finally became available online, Carpio’s dissent clarified the issues. There was no Supreme Court ruling on the core issues. The Court is made up of 15 members. Seven votes do not a majority make. But even if a majority vote were attained, if it trashed the Constitution, instead of upholding it, that majority could not possibly speak for the Court. Some Justices may want to rubbish the Constitution, but never the Court. This is what seems to be happening in the Llamanzares case.

Under the Constitution, no one may be elected President unless he is, among other things, a natural-born citizen and a resident of the country for at least 10 years immediately preceding the day of the election. And by natural-born, the Constitution refers to one who is a citizen from birth, without having to perform any act to acquire or perfect his citizenship. This is what we, private petitioners before the Comelec (now turned respondents before the Supreme Court), the Comelec en banc, some Justices and so many legal and political writers have been patiently trying to point out.

Admission against interest
By her own admission, Mrs. Llamanzares was born a foundling of no known parentage, having been abandoned inside the parish church in Jaro, Iloilo, on Sept. 3, 1968. She was not born a citizen under the 1935 Constitution, which was in force at the time of her birth. From this Constitution, the jus sanguinis (right of blood) doctrine was written into the 1973 and 1987 Constitutions, so it is this, which until now governs Philippine citizenship.

Disreputable presumption
The Perez ponencia adopted Solicitor General Florin Hilbay’s pronouncement during the Oral Arguments that all foundlings are natural-born citizens, not on the basis of what the Constitution or the law or jurisprudence says, but purely on the basis of what he says. All our Constitutions are silent on this, but according to Hilbay, foundlings are natural-born precisely because of this very silence. Rejecting the clear provisions of the Constitution, and insisting, instead, on what is not written there, Hilbay said Mrs. Llamanzares is natural-born because of a disputable presumption based on the statistical probability that her parents were or are Filipinos.

The ponencia adopted as its own HIlbay’s thesis that there exists a nearly 100 percent probability that Mrs. Llamanzares’s unknown parents were (are) Filipinos, and that, therefore, she is natural-born. The ponencia said, quoting the “Tribune” of Mrs. Llamanzares, from 1965 to 1975, the total number of foreigners born in the Philippines was 15,986, while the total number of Filipinos born was 10,558,278. The statistical possibility that any child born in the country in that decade is natural-born was 99.83 percent. In 1960, there were 962,532 Filipinos and 4,734 foreigners in the province (of Iloilo?); 99.62 percent of the population were Filipinos. In 1970, there were 1,162,669 Filipinos and 5,304 foreigners; 99.55 percent of the population were Filipinos.

From probability to certainty
On the basis of this statistical analysis, one could theorize that Mrs. Llamanzares may have been born of Filipino parents. But Hilbay and the ponente use the same premise to arrive at the certain conclusion that she was, in fact, born of Filipino parents and is, therefore, natural-born. This is really scraping the bottom of the barrel.

Among the presidential candidates, Mayor Rodrigo Duterte alone had the courage to say something about the vote of the Justices. He said this was not what he learned in law school, but as a lawyer he would respect anything coming from the Court. That is the standard lawyer’s remark: the Supreme Court is always right, even when it is wrong.

Not being a lawyer, I make a distinction between the Court and its erring Justices. I abide by what The Manila Times editorial said last Friday, that it is not the Supreme Court per se that is supreme, but rather the Constitution that is supreme to the Court and the Justices.

A trier of law
The Supreme Court is a trier of law, not of probabilities; it is not even a trier of facts, even though the law always requires a fact rather than a mere probability. The undisputed facts which the parties stipulated upon before the Comelec ruled in favor of the petitions by Estrella Elamparo, Antonio Contreras, Amado Valdez and Francisco Tatad, are simply not in her favor.

By going up to the Supreme Court on a petition for certiorari and asking the Court for a Temporary Restraining Order (TRO), Mrs. Llamanzares was able to freeze the otherwise final and non-reviewable Comelec ruling. She alleged grave abuse of discretion, but there was no attempt on her part to prove this during the Oral Arguments. It was only Associate Justice Francis Jardeleza who theorized during the Orals that the Comelec might have committed grave abuse of discretion when it failed to allow Mrs. Llamanzares to prove that she was natural-born.

To which Commissioner Arthur Lim, speaking for the Comelec, was quick to respond that on the very first line of her first written official submission to the Comelec, Mrs. Llamanzares proclaimed that she was a foundling of no known parentage, making it unnecessary for the petitioners to prove anything anymore. Where then did the Comelec commit grave abuse of discretion amounting to excess or lack of jurisdiction? By simply invoking the Constitution, the law and jurisprudence?

Nuisance candidates
While this case was being heard by the Supreme Court en banc, the Comelec motu proprio disqualified about 130 “presidential candidates” and cancelled their COCs for being “nuisance candidates.” These candidates had all complied with the constitutional requirements: All were natural-born citizens, registered voters, able to read and write, at least 40 years of age on election day, and residents of the country for at least ten years. The only things they did not have were political organisation and money to burn, which are not at all constitutional requirements.

But the Comelec was never faulted for “grave abuse of discretion” for declaring them “nuisance candidates” despite their having complied with all the constitutional requirements. And the Supreme Court was quick to affirm the Comelec decision against any such candidates in a one-paragraph minute resolution. Is not the Court itself guilty of grave abuse of discretion in this instance?

Mrs. Llamanzares’ counsel had argued during the Orals that only the Presidential Electoral Tribunal after the election, and not the Comelec before the election, could pass upon the qualifications or disqualifications of presidential candidates. If this was so, by what authority then does not the Comelec declare “nuisance candidates,” and the High Court confirm Comelec’s action in such cases?

Bastardizing the elections
Carpio has expressed fear—and it is a fear we share—that the non-majority vote could “lead to absurd results and make a mockery of the elections by allowing a presidential candidate with uncertain citizenship status to be potentially elected to the Office of the President, an office expressly reserved by the Constitution exclusively for natural-born Filipino citizens.”

Precisely because of this political vote, we now have a former American citizen, who is married to an American husband and is mother to several American children, who may have been actually programmed to become the next President of the Philippines. We are given to understand that the husband and children would renounce their American citizenship if ever she is elected President. What a way of showing the love for the country she wants to lead!

A president of unknown parentage?
If this is outrageous enough, even more outrageous is the fact that should we ever be so accursed to have her as our president, Filipino children studying history or current events will know the name of their president, but will never be able to find on the internet or anywhere else any information about who her biological father and mother are. What other national indignity, degradation or humiliation do we need?

Only a majority of the Court can declare Mrs. Llamanzares “qualified” to run for President. The vote of seven Justices on the two core issues does not meet this requirement. The Court needs to declare that the previous round of voting has failed, and must sit down all over again, deliberate anew, without the external pressure of partisan politics or money, and cast a vote that could save the Constitution, the Court, the next election, and the nation itself from insanity, treason and chaos.

fstatad@gmail.com

source:  Manila Times

The Supreme Court and the Poe disqualification case

The Philippine public has been treated to many erudite and well-reasoned treatises on how the Supreme Court (SC) should decide on Senator Grace Poe’s disqualification case. The legal issues are either involved and lengthy or simple and open-and-shut depending on who is making the case. Should the SC display judicial restraint, follow precedents, and hew closely to the letter of the law? Or should it display judicial activism and blaze a new judicial trail in pursuit of some perhaps new principle of jurisprudence? The SC did display a considerable capacity for judicial activism in allowing Juan Ponce Enrile to post bail though the charge against him is legally and constitutionally non-bailable. The new principle of jurisprudence, “humanitarian grounds,” which law students now have to learn has no accepted definition and one can drive an oil tanker through its portals. Be that as it may, not being a lawyer myself, I’d rather leave that to the legal eagles.

The purpose of this piece is not how the SC “should have decided” on the Poe case but what could be expected from revealed SC decision making in general.

Three theories on the decision making of the SC are salient and competing (see, e.g., Pacelle, Curry, and Marshall, 2011): (a) the legal theory -- that what governs SC decision making are no more and no less than legal precedents and the Constitution; (b) the attitudinal theory -- that what governs the SC decision making are the substantive prior preferences and ideologies of the justices; (c) the strategic theory -- that SC decision making is governed by strategic considerations, especially in relation to outside forces, say, the other branches, especially elected branches of government. The President, the Senate, and Lower House have the power to retaliate (as, for example, through the budget allocation) in case of open display of contempt. Granting Juan Ponce Enrile the right to post bail on an unbailable charge clearly violates the legal theory. It may be understood as flowing from ingrained preferences (or biases as sometimes it is called) or from strategic considerations (or future payoffs as sometime it is called).

Pacelle, Curry, and Marshall (2011) tried to compare how these three theories perform as explanatory (proxied) variables in actual decisions of the US Supreme Court. Their logit regressions showed that none of the three theories can be rejected as correlates of SC decisions. I prefer to dwell on the strategic motives for decision making.

What appears to be a salient instance of strategic decision making by the US Supreme Court occurred during the New Deal Era. Then-US President Franklin D. Roosevelt -- frustrated by repeated rebuffs by the US Supreme Court of New Deal legislations -- threatened in 1937 to emasculate the SC with his Court Reorganization Plan. Known also as Roosevelt’s court packing plan, it came in the form of the Judicial Procedures Reform Bill of 1937.

It sought to grant the President the power to appoint an additional justice of the Supreme Court for every member of the Supreme Court over the age of 70 and 6 months and up to a maximum of six new associate justices.

Since it was Congress -- not the Constitution -- that established the composition of the SC, it can recompose it. Soon after Roosevelt won a sweeping victory in November 1936, the SC decided 5-4 upholding a Washington minimum wage law which the New Deal (in keeping with the Keynesian view of putting purchasing power in the pockets of the poor) favored. The tie was broken by, of all people, Justice Owen Richards who had previously opposed New Deal legislations.

In 1938, Justice Harlan Fiske Stone opined in the US vs Carolene Products that the SC should show deference to the elected branches in matters involving economic policy though not in matters of civil rights and civil liberties. The SC seemed to have acted to ease the political pressure and protect its identity (exemplified by the court packing plan).

Although the Judicial Procedures Reform Bill never became law, the message seemed to have been heard loud and clear in the halls of the US SC. But that is the US SC. We are in the land of “only in the Philippines.”

The question is what strategic considerations bore on the SC’s decision on the Poe disqualification case? We may never know.

But consider that candidate Rodrigo R. Duterte has said he will cure every ill in three months. Although that is mostly campaign bluster, to accomplish within his term what he promises implies realistically that he becomes a dictator, which calls for a clash with -- and eventual dismantling of -- the Supreme Court.

If Poe was disqualified, it is likely that Duterte is the only alternative to Vice-President Jejomar C. Binay, Sr. whose own defense being “No court has found me guilty” fools nobody, let alone the SC justices. If Poe was not disqualified, she will likely win (she was still leading the polls as of March 6 despite the case hanging over her campaign) and the Supreme Court should feel safer in her hands than in either Duterte’s who will not stand judicial obstacle or Binay’s who will need to judicially extricate himself. That is one possible strategic motive bearing on the SC decision. There may be others.

And, of course, their own beliefs about the suitability of the candidates for president should be factored in. One thing is sure: Poe being allowed to run is nowhere near the judicial activism displayed in the doctrine of “humanitarian considerations.”

Raul V. Fabella the chairman of the Institute for Development and Econometric Analysis, a professor at the UP School of Economics, and a member of the National Academy of Science and Technology.

sourceL  Businesworld

Supreme Court allows Grace Poe to run for president

MANILA, Philippines (5th UPDATE) – In a landmark ruling, the Supreme Court (SC) decided to save Senator Grace Poe from disqualification as presidential candidate in the 2016 elections.

The SC en banc on Tuesday, March 8, voted 9-6 to reverse the decision of the Commission on Elections (Comelec) to cancel Poe's certificate of candidacy (COC).

Chief Justice Maria Lourdes Sereno was among the 9 justices who voted in favor of Poe. The rest are Presbitero Velasco Jr, Diosdado Peralta, Lucas Bersamin, Jose Perez, Jose Mendoza, Marvic Leonen, Francis Jardeleza, and Benjamin Caguioa.

Of the 9, four are appointees of President Benigno Aquino III: Sereno, Leonen, Jardeleza, and Caguioa.

The 6 justices who voted against Poe are Antonio Carpio, Teresita Leonardo-de Castro, Mariano del Castillo, Arturo Brion, Estela Perlas-Bernabe, and Bienvenido Reyes.

Of the 6, two are appointes of Aquino: Bernabe and Reyes. Three of them – Carpio, Brion and De Castro – were part of the Senate Electoral Tribunal that earlier voted in favor of Poe. The 3 justices dissented in that SET verdict, insisting that Poe is not a natural-born citizen. (READ: Why did SC justices vote to disqualify Grace Poe?)

The verdict came after recent surveys showed Poe as the front runner in the presidential race. (READ: Duterte, Poe, Binay, Roxas and a dead heat race)

In a statement released hours after the verdict, SC spokesman Theodore Te said: "I am authorized to say that there will be four concurring opinions to the Majority Decision, and five dissenting opinions. Please note that since the Court has only authorized the release of the vote, it may not be safe to report which ground the Court ruled upon and used as basis for the vote, i.e., between citizenship and residence. Thus, it may be best to simply say, the SC grants Senator Poe's petitions, 9-6, allowing her to run for the presidency."

The High Court heard oral arguments on the case for 5 Tuesdays,from January 19 to February 16. The SC justices interpellated Poe's counsel Alex Poblador, Comelec's lead counsel Arthur Lim, Solicitor General Florin Hilbay, and former University of the East Law Dean Amado Valdez.

During the oral arguments, the views of at least 3 justices showed they were leaning toward recognizing Poe as a natural-born Filipino and as having established residency before running for president: Sereno, Leonen and Jardeleza.

Sereno and Leonen focused on the rights of foundlings, while Jardeleza expressed his concern that the Comelec might have deprived Poe of her rights to due process.

3 bodies

Poe fought disqualification cases against her before 3 bodies: the SET, Comelec, and the SC.

It was a close vote at the SET. In November 2015, the SET voted 5-4 to deny the petition to disqualify Poe from the 2013 senatorial polls.

A month later, in December 2015, the Comelec en banc decided to dismiss Poe's appeal to allow her to run. The commissioners voted separately on the two cases involving the senator's citizenship and residency requirements: the one handled by the First Division and the other by the Second Division. Both divisions previously ruled against Poe.

At the SC, the oral arguments showed that the justices were split on at least least 4 key issues on the case. (READ: 4 key issues that divide SC justices in the Poe case) – Rappler.com