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The latest surreal arguments for Grace Poe

Recent arguments raised in favor of Senator Grace Poe in her four disqualification cases pending before the Supreme Court have reached surreal proportions.   It will be recalled that these cases assert, among others, that Poe is not a natural-born citizen of the Philippines, and that for this reason, she is not qualified to run for president in the May 2016 elections.  The 1987 Constitution mandates that only natural-born citizens may be elected president.  

As pointed out by the parties questioning Poe’s citizenship, the 1987 Constitution defines a natural-born Filipino citizen as one who is a citizen of the Philippines from birth.   This inevitably means that since Poe is admittedly a foundling, or one who is unable to establish the vital circumstances surrounding her birth, Poe is not a natural-born Filipino citizen.   Poe’s adversaries also maintain that since the 1935, 1973 and 1987 charters do not even mention foundlings, there is no presumption under any of them that foundlings are natural-born citizens.  

Last week, this column revealed that it is well-settled in Philippine jurisprudence that adoption does not confer Philippine citizenship on the adopted.   If the rule were otherwise, an alien can easily circumvent Philippine laws on citizenship by getting his alien child adopted by a Filipino parent.   The rationale: what may not be done directly cannot be done indirectly.

If an adopted child does not acquire the citizenship of any of its adopting parents, the same rule should apply to a foundling—the foundling cannot acquire the citizenship of those who found it.   Again, if the rule were otherwise, an alien can easily circumvent Philippine laws on citizenship by making arrangements for his alien child to be “found” by a Filipino citizen.  That arrangement will be an easier way to circumvent the law because “getting found” involves less expenses than “getting adopted.”   

For their part, Poe’s allies have resorted to surreal, unorthodox arguments which appeal to the emotion rather than to legal reasoning.   For instance, they repeatedly insist that a ruling against Poe is an act of discrimination against foundlings in general, and that foundlings should not be faulted for their inability to establish the circumstances of their birth.  

Their arguments are completely untenable.         

To insist that only natural-born citizen of the Philippines can run for president is not to discriminate against foundlings; it is to insist that the Constitution be obeyed. Nobody forced Poe to run for president. Since Poe is running for president on her own free will, she must comply with the requirements for the presidency embodied in the Constitution.  Restated, one who wants to join a competition must abide by the rules governing the competition.   This also means that the rules of the competition cannot be bent to accommodate a single participant.

It isn’t Poe’s fault that she is a foundling, but then neither is it the fault of the parties questioning her citizenship.   It’s just that the Constitution has been worded in such a way that its enforcement inevitably results in banning foundlings from running for the presidency.  That seems arbitrary at first glance, but then, as discussed in the last Tuesday’s article, virtually all of the requirements and limitations recited in the Constitution (such as the minimum age for specific public offices) are arbitrary.   Despite its arbitary provisions, what makes the Constitution nonetheless acceptable to everybody is its binding effect on everybody in the Philippines, rich or poor, educated or illiterate, foundlings or otherwise.    

Last Tuesday, the Office of the Solicitor General manifested to the Supreme Court that foundlings should be considered natural-born citizens because this is implied from the deliberations of the 1934 Constitutional Convention, the assembly which drafted the 1935 Constitution. The OSG added that the silence of the 1935 Constitution on the citizenship of foundlings means that the framers of the charter saw no need to explicitly say so, and that it is safe to assume that the parents of foundlings are Filipinos.  

Surprisingly, the OSG said that foundlings are a discreet minority entitled to special protection, and that to exclude foundlings from exercising fundamental political rights is unjust and discriminatory, and is a wrong way to interpret the Constitution.   

It was likewise contended that the implied protection afforded to foundlings under the 1935 Constitution was carried on to the 1973 Constitution and the 1987 Constitution. Citing statistics, the OSG opined that the statistical probability that a child born in the Philippines between 1965 and 1975 are natural-born citizens is 99.83 percent.  

The late Chief Justice Enrique M. Fernando was also mentioned by the OSG.   According to the OSG, Chief Justice Fernando once paraphrased a famous scholar and said, “The Constitution is not silently silent, it is silently vocal.”

Unfortunately for Poe, the foregoing arguments of the OSG may be well-meaning, but they are speculative and unfounded.

As early as 2000, the Supreme Court categorically declared in Integrated Bar of the Philippines v. Zamora  that in the interpretation of the provisions of the Constitution of the Philippines, what controls is not what took place in the deliberations of the constitutional convention; what controls is the intent of the people who ratified the Constitution.   This is so because the Constitution does not derive its force from the constitutional convention which framed it, but from the sovereign Filipino people who ratified it.  

So which should prevail?   Should it be the text of the 1935 Constitution which does not contain anything to the effect that foundlings are natural-born citizens, or should it be the deliberations of the 1934 Constitutional Convention which, according to the OSG, imply that foundlings are natural-born citizens? Following the  Zamora  doctrine above, the text of the 1935 Constitution, and not the deliberations of the 1934 Constitutional Convention, should prevail. 

(To be continued  on Tuesday)

Topics: Victor Avecilla , Grace Poe , disqualification cases , May 2016 elections
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