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

4 key issues that divide SC justices in Grace Poe case

MANILA, Philippines – The 5-hour oral arguments on Tuesday, February 2 give the public a glimpse on the issues that divide the Supreme Court justices in the disqualification cases against presidential candidate Grace Poe.

Lawyer Arthur Lim, a member of the Commission on Elections, answered questions from the justices in the 3rd round, defending the poll body’s decision to cancel Poe’s certificate of candidacy on the grounds that she “misrepresented” her residency and citizenship. In other words, Comelec said Poe was not a natural-born citizen and lacked the 10-year residency, 2 basic requirements to run for president.

In these exchanges, 4 key takeaways emerged:

1.When the count for the 10-year residency requirement starts.

Justice Mariano del Castillo, who will write the decision, raised the point that the count for Poe’s residency should start on October 21, 2010, when she “expatriated” herself before the U.S. embassy in Manila. “This was when she gave up her domicile in the US,” Del Castillo said. It was the first time in the series of oral arguments that this reckoning point was brought up.

For the Comelec, July 18, 2006 is the earliest time Poe can be considered a resident. It was at this time that she re-acquired her citizenship, as granted by the Bureau of Immigration (BI). Lim said that the Comelec “wanted to accommodate her position” but this still fell short of 10 years.

But Justice Teresita De Castro pointed out that Poe gave “false claims” to the BI, saying that she was born to Fernando Poe Jr. and Susan Roces, hiding the fact that she was a foundling.

If the count begins October 2010, Poe would have been a resident for only less than 6 years.

2. Will the Court engage in “judicial legislation?” Shouldn’t Congress pass legislation to address foundlings’ eligibility for government positions?

Chief Justice Maria Lourdes Sereno elaborated on her earlier position that thousands of foundlings will be discriminated against should the Supreme Court say that Poe, herself a foundling, is not a natural-born citizen. Many government positions, both elective and appointive, require that holders be natural-born citizens.

For almost 3 hours, Sereno repeatedly made this point. In response, Lim kept going back to the “core issue,” saying that this is for Congress and not for the Supreme Court to resolve. “The sad plight of foundlings is not the issue here…Let’s not lose sight of the fact that Poe is seeking the highest position…Comelec doesn’t want to lose focus on what is at stake. This problem [foundling rights] should be addressed by Congress.”

He added that the Court could be engaging in “judicial legislation.”

Justice Arturo Brion, who was the last to ask questions, followed through. “If the constitutional provision on natural-born citizenship is unreasonable, what is the remedy?” To which Lim answered, “Amend the Constitution.”

Brion is one of the 3 justices who dissented in the Senate Electoral Tribunal decision saying Poe is a natural-born citizen. The other 2 are Justices Antonio Carpio and De Castro.

3. Adoption laws as a defense was not raised by Poe’s counsel before the Comelec.

Brion wanted to know if Poe’s camp used the country’s adoption laws as defense before the Comelec. Sereno had repeatedly argued that these presume foundlings to be Filipino citizens.

Lim said that Poe’s defense was anchored on international laws. To which Brion asked, “You heard it first before the Supreme Court?” He was apparently alluding to Sereno, who brought up adoption laws as defense in the last oral arguments and told Poe’s counsel to look at “rich” domestic laws when they file their expanded briefs.

Lim said he was “not sure” if this line of defense came up first in the Supreme Court.

4. In weighing evidence on Poe’s citizenship and residency, what standards will be used?

Sereno and Justice Marvic Leonen harped on this point. Sereno wanted to know what kind of proof the Comelec wanted from Poe.

Leonen pursued a similar line of questioning and asked Lim to cover this in the poll body’s brief.

Lim said that the evidence presented by Poe was “not enough.” The Comelec was after “substantial evidence.”

The justices are expected to deliberate on these key issues as decision time nears.

So far, 4 justices have kept quiet during all the oral arguments: Lucas Bersamin, Bienvenido Reyes, Francis Jardeleza and Jose Mendoza. The last appointee of President Aquino to the Court,Justice Alfredo Benjamin Caguiao has not participated in the oral arguments since his appointment. It is not clear if he will take part in the voting.

The next oral arguments will take place February 9. – Rappler.com

‘Poe could be jailed’

Tatad’s lawyer: Misrepresenting COC is an election offense with penalties

SEN. Grace Poe could be jailed for committing a misrepresentation in her certificate of candidacy (COC), the lawyer for one of the petitioners who wanted her disqualified from joining next year’s elections said on Wednesday.

According to Manuel Luna, the counsel of former senator and The Manila Times columnist Francisco Tatad, the Comelec Second Division’s recent decision to disqualify Poe was based on an election offense that carries a penalty of “one to six years of imprisonment, disqualification to hold public office and deprivation of the right of suffrage.”

“The President cannot even pardon [Poe] if found guilty without the concurrence of the Comelec,” Luna told reporters in a media forum in San Juan City (Metro Manila).

Tatad is one of the five petitioners who questioned Poe’s COC for President before the Comelec. All assailed Poe’s claim that she has satisfied the constitutional requirements on citizenship and residency.

The Second Division on Tuesday handed down its ruling on the petition of lawyer Estrella Elamparo who said all existing legal records negate Poe’s claim that she is a natural-born Filipino and that she has complied with the minimum 10-year residency requirement for one to be able to run for President.

Aside from Tatad and Elamparo, separate petitions were filed against the 47-year-old senator by radio commentator Rizalito David, former law dean Amado Valdez and political science professor Antonio Contreras.

David had also petitioned the Senate Electoral Tribunal to nullify Poe’s proclamation as among the winners in the 2013 senatorial elections on the same grounds. An appeal to reverse the tribunal’s 5-4 ruling dismissing the petition is pending.

Luna said he is confident that the poll body will rule in favor of the other petitions, given the dissenting opinion of the three Supreme Court (SC) associate justices in the Senate Electoral Tribunal.

Poe to remain in ballot
Regardless of a favorable or an unfavorable decision from the Comelec en banc, Poe’s name will remain on the official list of candidates and in the ballots unless a final disqualification verdict is handed down by the SC prior to the printing of ballots.

The Comelec spokesman, Director James Jimenez, also on Wednesday said it would be prudent and practical on the side of the poll body to include the senator’s name rather than exclude it, considering that the case will definitely reach the High Court, and nobody knows what the SC’s final verdict will be.

Elamparo also on Wednesday filed an “urgent petition to exclude” Poe from the official list of candidates and from the ballots.

Her petition to cancel the senator’s COC for President was granted by the Comelec Second Division in a resolution handed out on Tuesday.

Jimenez pointed out that the non-inclusion of Poe’s name in the ballot based on the Comelec en banc’s unfavorable decision would complicate things later if the SC would rule the other way around.

“It’s easier to ignore the votes cast for that person than to take [him] out of the ballot then later on find out that [he] should have been in the ballot in the first place. So it’s practical to include [Poe’s] name,” he said.

But Luna disagreed, saying it would be a violation of the Omnibus Election Code and the Rules of Court.

He explained that Poe’s name should be excluded from the ballot once the commission en banc ruled against her, “unless she is able to secure a temporary restraining order from the Supreme Court.”

“The en banc should not be preempted. [Comelec] Chairman [Andres] Bautista can better shed light on that… Until they issue a resolution to that effect, we cannot say that she will be included or excluded. That is why I’m reserving my opinion because I’m respecting the action of the en banc at a proper time,” Luna said.

He added that the status quo remains simply because the decision of the Second Division is not yet final and executory while the First Division is yet to make a decision.

“We are pretty confident that the First Division will also side with us not because the Second Division has already ruled against her but because of the superiority of the arguments that we have presented,” Luna said.

In her urgent petition to exclude Poe, Elamparo pointed out that based on the timeline of the Comelec, it has to come up with the official list of presidential candidates on December 20, 2015, and printing of ballots will start by early January next year.

“While respondent may still opt to file a motion for reconsideration within five (5) days from receipt of the aforesaid resolution, petitioner respectfully submits that unless the 01 December resolution is reversed or restrained through a temporary restraining order issued by the Supreme Court, the same should be respected and implemented by excluding respondent from the list of official candidates for the presidency and from the ballots,” she said.

According to her, the Comelec would be contradicting itself if after canceling respondent’s COC, it would still include Poe’s name in the official list of candidates and in the ballots, “as if it is anticipating its decision to be reversed.”

“More important, the exclusion of respondent from the official list of candidates and from the ballots would better serve the interest of justice,” she said.

Naturalized not natural-born
Luna said foundlings are considered as naturalized citizens and not natural-born ones and therefore could not be elected as President.

Poe, who was found abandoned in a church in Iloilo, has no known biological parents.
“Foundlings cannot in any way be a President or senator, unless you amend the Constitution. That’s the only way you can change the situation, that you need to amend it.

The Constitution enunciated jus sanguinis or law of the blood. You cannot create a natural-born citizen [in jus sanguinis] by creating legal fiction or by mere presumption,” Luna said.

Tatad’s petition questioned Poe’s claim that she’s a natural-born citizen.
“[Poe] cannot… [imply] or presume [that she is a] natural-born [citizen]. It should be established as a fact, by blood relationships [because of the jus sanguinis principle,]” he added.

In his petition, Tatad said “Poe is practically stateless, and that foundlings have no parentage,” because “the 1935 Constitution states that she is not a Filipino because of the jus sanguinis principle.”

“[Poe’s] arguments, which are based on the presumption that she is a natural-born citizen based [in turn] on international statutes for foundlings will not be applicable here in the Philippines,” Luna said.

“The Philippines is not a signatory to any international statute on foundlings, and our country doesn’t follow the jus soli [law of the land] principle — if she keeps on insisting that, it will contradict our 1935 and 1987 Constitutions emphasizing jus sanguinis. It should be established as a fact, by blood relationships,” he added.

Tatad was among the personalities who strongly dismissed Poe’s claim that she is a natural-born Filipino, which is requisite for those seeking public office.

“Grace Poe’s only mistake is that she wants us to believe that she’s a natural-born Filipino when, in fact, she’s not. Poe is only a naturalized Filipino citize—she’s already stateless at birth,” he said.

Poe had submitted herself to DNA testing inearly October, hoping that it would help boost her argument that she is a natural-born citizen before the Senate Electoral Tribunal, which all turned out negative.

“There should be a physical blood relation, maybe that’s the reason why Senator Poe insisted that she will undergo a DNA test because she knows that the physical evidence of a natural-born citizenship is by a natural-blood relationship,” Luna said.

He added that Poe was not registered as a foundling in the separate old civil registry for foundlings—for her to be given an “accommodated type” of naturalization giving her a legal presumption that she is a naturalized citizen.

“Poe must have registered in the separate registry [for foundlings], it would be easy for her to acquire citizenship but still, as a naturalized citizen, not a natural-born [one],” Luna said.

Fight far from over
Poe also on Wednesday said she is not expecting a favorable decision from the other divisions of the Comelec handling her other disqualification cases but noted that her fight is far from over.

She likened her legal fight to a boxing match wherein she won round one when the tribunal dismissed the disqualification case against her, and lost round two after the Second Division ruled in favor of the petition seeking to cancel her COC for President.

Poe said she expects the other divisions of the poll body to have similar decisions, but said she is not bothered because she can still bring the case to the High Court if she fails to get a favorable decision from the Comelec en banc.

“ It is possible that we could lose our case in the Comelec but there is still the Supreme Court. What is important is I’m doing this because I don’t want anyone to be left behind,” she told a news forum.

Poe said she also expects to get a favorable decision from the High Court similar to the ruling it made on a disqualification case filed against her father, the late Fernando Poe Jr., when he ran for President in 2004.

She added that part of the court ruling on the disqualification case stated that the decision on who will be the next President of the country should be left to the sovereign Filipino people, not to unelected members of the court.

Poe said she is convinced that there is an “obvious and conscious” effort to remove her from the 2016 presidential race.

She added that the legal challenges she is facing stem mainly from the desire of some people to take her out of the presidential race because she poses a threat to their own dreams to be the nation’s leader.

“I just feel that’s somebody is behind it. Now, am I being harassed? I’m just doing what I need to do. To be able to go through the process, to be able to overcome these hurdles,” Poe said.

She, however, refused to name those whomshe suspects to be behind the disqualification cases but she noted that two of her rivals would definitely stand to benefit if ever she gets disqualified.

“Pero sabi nga nila masyadong liberal ang decision ng Comelec kaya nga para daw i-mar yung elections ng 2016 [Some are saying the Comelec decision is too liberal and could be part of the attempt to mar the 2016 elections],” Poe said with a pun referring to the Liberal Party and its standard-bearer, Manuel “Mar” Roxas 2nd.

Poe’s running mate Sen. Francis Escudero, in a statement, said the resolution of the Comelec Second Division is just a temporary setback as he sees Poe getting relief either from the Comelec en banc or the Supreme Court.

“We still have faith in our justice system. We believe that in the end, Senator Grace will be allowed to run not only based on international and domestic laws, but also based on the factual situation of the case,” Escudero added.

He expressed optimism that Poe will be able to attain a favorable decision either from the Comelec en banc or the Supreme Court.

“At the end of the day, laws are invented and created to achieve justice. I am of the firm belief that in the end, justice will still prevail,” Escudero said.

Poe’s lawyers also remain optimistic that the Comelec en banc will overturn the resolution of its Second Division.

George Garcia, in a statement, noted that the division completely ignored previous rulings of the Supreme Court that are applicable to Poe’s case and which should have been the bases in ruling that she fulfilled the 10-year residency requirement for presidential candidates.

“We will convince the Comelec en banc that the Second Division erred in its resolution,” Garcia said, adding that they have until December 7 to appeal the Second Division ruling with the en banc.

Respect the law
Malacanang also on Wednesday appealed for “sobriety and respect for law” among all concerned parties in Poe’s disqualification cases.

In a text message, Palace spokesman Edwin Lacierda noted that the decision was arrived at “in the course of the constitutionally-mandated functions of the Comelec.”

“We understand that Senator Poe’s legal counsel will pursue and exhaust all remedies available to them, as is their right in this process,” Lacierda told reporters.

“We believe that sobriety and respect for the law and its processes are the best way forward for all parties concerned,” he said.

‘Brotherly’ advice
Vice Ppresidential candidate Sen. Ferdinand Marcos also on Wednesday told Poe to just keep going.

“Keep going…keep going. Huwag kang panghihinaan ng loob [Don’t lose heart] and just [keep in mind] that when you are doing the right thing, you will in the end succeed,” Marcos also told reporters Tuesday night.

He said he was not surprised at all by the verdict and expressed belief that it is still a long way to go before the issue would be finally settled as Poe’s camp has announced that it would appeal the decision before the Comelec en banc.

“[W]e leave it to the best of our legal minds to decide exactly what to do,” Marcos added.
When asked if the Comelec decision should alarm the opposition, he said it is expected and it is part of the black propaganda normally being employed by different groups.

source:  Manila Times