CJ’s and Sol-Gen‘s intercession no help for Grace Poe

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I  received many letters and comments on my column last Thursday (“To CJ Sereno: Why is the “natural-born” qualification for  the presidency an impossible condition?”, Times, January 26, 2016). And I want to take the time to thank my readers for taking the time to write and send their comments, be they in agreement or dissent.

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To the comments already posted in the Manila Times website, I want to add a letter sent me by Mr. Jemy Gatdula, a lecturer at the University of Asia and the Pacific School of law and Governance, because the issue lies within his field of expertise.

Mr. Gatdula wrote:
“I agree with your article today on CJ Sereno and your evaluation of her position regarding Grace Poe.

“In fact, I will posit this: CJ Sereno’s argument actually goes against Poe.

“Focusing on the two laws the CJ mentioned (RA 8552 and RA 8043), the foundling is a Filipino – granted. But only (a) after determining that the biological parents are unknown and then (b) registering as a foundling. Those are acts after and other than birth.

“But according to the Constitution: “natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship.”

“In CJ Sereno’s line of argumentation, there clearly is needed an act to acquire or perfect Philippine citizenship.

“In other words, the foundling may be Filipino but not natural born (who need not do anything aside being born Filipino). Natural born citizenship is what’s required by the Constitution to run for president.

“Finally, assuming the Constitution and laws are lacking in some respect regarding the treatment of foundlings, to remedy that is the elected legislature’s mandate and not the Supreme Court’s.”

Solicitor-General lawyers for Ms. Poe

Jemy also provided me a link to a commentary he contributed to the Inquirer, which discussed the merits (or lack of it) of the Solicitor-General’s position on the issue of Ms. Poe’s citizenship.

I uploaded the article, and I find it so enlightening and lucid. I think it only fitting that I share it with my readers today.

Here ‘s the article Jemy and a colleague of his at UA&P wrote:

The SolGen turns to wizardry

By Cristina Montes (LLM, Navarre) and Jemy Gatdula (LLM, Cambridge)
Sometimes it is really simple. Greater minds, or those who presume to be such, perhaps would like to make things more complicated.

But the issue in Grace Poe’s case is a simple, yes-or-no question: Is she a natural-born Filipino?

This in turn depends on the answer to an equally simple yes-or-no question: Is she born of Filipino parents?

Justice Antonio Carpio’s dissent to the Senate Electoral Tribunal’s decision demonstrates this: Because there is no dispute that Grace Poe was a foundling with no known biological parents, the burden of evidence shifted to her to show that she is a natural-born Filipino citizen. As she has presented no evidence that she was born of Filipino parents, she cannot be considered one.

Even if there were Philippine laws or norms of international law granting Filipino citizenship to foundlings, at most these made her a naturalized Filipino citizen because under these alleged laws or norms, a foundling would still have to perform acts to acquire Filipino citizenship.

Unfortunately, the issue has been muddled by those who seek pity for the plight of foundlings, and by those who prefer that the case be decided based on presumptions rather than on established facts.

Clear examples can be seen in the comment filed by the Office of the Solicitor General (OSG) on the petition for certiorari seeking the Supreme Court’s review of the SET’s decision.

The comment bafflingly declares Grace Poe a natural-born Filipino citizen because the possibility of her being one has not been excluded—especially considering that she has Filipino features and was found in a Catholic church in Jaro, Iloilo, in a country where the majority of the population is Catholic. The OSG reasoned that because of these factors, it is likely that she is born of Filipino parents, and, therefore, she is a natural-born Filipino citizen.

But the Constitution does not require likelihood; it requires a fact: Is the candidate a natural-born citizen?

To the OSG, just because Grace Poe’s biological parents are likely to be Filipinos, then, therefore, they are.

The OSG defends the reliance on likelihood by citing Tecson vs Comelec where the Supreme Court reasoned that Lorenzo Pou, having died in 1954 at 84 years old, would have been born in 1870 when the Philippines was under Spanish rule; that his place of residence in San Carlos, Pangasinan, upon his death was, in the absence of any evidence, his place of residence before his death; thus, he would have benefited from the en masse Filipinization under the Philippine Bill of 1902. According to the Supreme Court, that citizenship, if acquired by Lorenzo Pou, would have been acquired by his son, Allan F. Poe, the father of Fernando Poe Jr.

But the comparison is unjustified. In the Supreme Court’s decision, it is not conjecture that Lorenzo Pou was born in 1870 when the Philippines was under Spanish rule; the year and the age at which he died were established, and determining that he was born in 1870 when the Philippines was under Spanish rule is simply a matter of computing and consulting the chronology of Philippine history. Also, it was undisputed that his place of residence was San Carlos, Pangasinan.

In short, the Supreme Court did not decide the case based on mere presumptions and likelihoods but on objective, established, undisputed facts.

In the case of Grace Poe, yes, it is undisputed that she is a foundling whose biological parents are unknown. And yes, it is likely that her parents are Filipinos. But it takes a leap of logic (some would say faith) to conclude from a likelihood a fact.

But again: The Constitution in this case requires a fact. Not a likelihood.

The OSG then reasons that the Constitution and the law could not have intended to impose an undue burden on foundlings’ exercise of their political rights, that it is unfair to demand that foundlings establish their citizenship at birth with strict certainty, and therefore Grace Poe must be deemed to be a natural-born Filipino citizen.

But this appeal to emotion is irrelevant (not to mention fallacious) to the issue brought to the Supreme Court, which is not on what will benefit foundlings but on whether or not a specific foundling—Grace Poe—is a natural-born Filipino citizen.

National interest demands that the Constitution, as written and approved by the Filipino people, be followed. This sovereign will of the people, expressed in the text of our Constitution, cannot be overturned simply because of presumptions, likelihoods, and appeals to emotion.

(End of Gatdula–and–Montes article.)

Serving a con game

Methinks the solicitor-general, as the government’s principal counsel, has moved far afield and beyond his depth in lending his office to the service of Ms. Poe‘s con game.
He’s going to look and sound foolish when the decision of the Senate Electoral Tribunal (SET) comes up for review by the high court.
The odds that he will be more persuasive than Alex Poblador, Ms. Poe’s counsel, are wretched.

yenmakabenta@yahoo.com

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29 Comments

  1. is there any provision in the constitution that includes foundling among natural born citizens? the constitution provides only two kinds of citizens: natural born and naturalized. natural born is based on the jus sanguines principle, naturalized is granted by law. if by law a foundling is considered a Filipino (which is indeed the case) then he is utmost a naturalized Filipino citizen. this naturalized status of citizenship of a foundling, I would say, is temporary in nature because the moment his biological parents become known, by jus sanguines, he becomes a natural born citizen of the Philippines or of another country. if GPL is allowed to run for president and wins, we can only hope that it will eventually come out that she is a descendant of a Filipino. we are not sure of her. our country is somehow groping in darkness because of our blind leaders who do not see the concerns of our people. why want to entrust the leadership to a person who is groping in darkness of her ancestors? is she a messiah who came from nowhere who is sent to save this country? people who want grace poe to lead this country believe that she is a messiah of this country, and I bet grace poe also believe that she is…

    • likewise, if we grant GPL natural born citizenship, this is temporary because the moment her parents become known, and that none of them was a Filipino, her naturalized citizenship status is then established, then she is disqualified for the position of president. if this is established after winning the presidency, what will happen then? shall we allow her to stay in the office? certainly not. quo vadis, Filipinos?! Grace Poe, why so in a hurry? establish first that you are a natural born and by 2022 you run for president…

  2. abrilus dobledos on

    To my mind, if GPL were to win this case, this country will be governed by whims and emotions, no more facts and logic. No more law. I agree the Constitution vividly provides the qualifications for someone to run for president. Let it speak and rule for itself and the SC simply abides with it. I thought St Thomas Aquinas defined law as the ordinance of reason promulgated for the common good by competent authority. In the case of Grace Poe, the application and interpretation of St. Thomas’ law is blatantly ignored and violated.

  3. The actuations of the CJ and the Sol-Gen are an embarrassment to those who profess to have studied law and are supposed to be guardians of the country’s justice system. These two have now come down to the level of mindless senators and congressmen who have exploited the gullibility of the majority of the Filipino people. Shame on you!

  4. Gatdula is wrong. Firstly, Art. IV, Sec. 1 deems as a Filipino citizen, one whose father is a Filipino citizen. Precisely, it requires determining that the father is a Filipino citizen before a child born to him may be deemed a natural born. If Gatdula has his way, that act of determining would be an act that disqualifies the child as a natural born Filipino. What result? There is no natural born Filipino throughout the Philippine Archipelago now and forever. Gatdula’s argument is a non-sequitur. It therefore does not follow that the act of determining whether a child is a foundling is the act contemplated in Sec. 2, Art IV in defining who is natural born and contrarily, who is not. .Another fallacy on Gatdula’s part is registration as an act which disqualifies Sen Poe as a foundling. In practice, natural born Filipino children are registered with birth certificates. In Gatdula’s frame of mind, such registration would be an act disqualifying natural born Filipinos as natural born Filipino citizens because of their registration. No, Gatdula’s logic does not follow. It does not require registration to make a child BORN TO a Filipino father a natural born citizen within the purview of Sec. 2, Art. IV, COnstitution.. Hence, it is likewise fallacious to require registration of a foundling as a sine as qua non to being considered a foundling. Registration is only for documentation and for the record of the authorities. It is the BIRTH, not registration of birth, of a foundling or a child born to a Filipino father which is constitutive of the status of a foundling or a natural born citizen. Gatdula should have studied at UP or Ateneo Law School.

  5. Compared to SolGen Florin Hilbay, Gatdula is an ant to an elephant. Gatdula is just a law graduate of Arellano University and took his masters in International Trade Law at Cambridge University, a course a mile irrelevant to Constitutional Law, the law involved in Grace Poe’s case. His colleague, Ms. Montes is a Ll. M. graduate of University of Navarra (NEVER HEARD!). Their educational and professional credentials make their opinion on a Constitutional issue second rate, if not third grade. In stark contrast, SolGen Hilbay is a UP Law graduate, No. 1 Bar exam topnotcher, Ll.M, graduate in Constitutional of Yale Univeristy, one of the top law schools not only in USA but also in the world and a former UP Law professor in Constitutional Law. In a battle of experts, Gatdula and Montes bow to Hilbay. Only haters of Grace Poe choose foolhardily to side with Gatdula and Montes stand against Poe. What a shame that you blindly subordinate your thinking to lowly opinion-makers on the very subject in which Gatdula and Montes evidently know little.

  6. I Hope this article clears once and for all that GPL is a FIlipino, BUT NOT Natural-born Filipino. PERIOD

  7. Senator Grace Poe a foundling of unknown parents is a natural born citizen of the Philippines until proven otherwise, therefore the burden of evidence rest on those who claim that she is not a natural born citizen.

    • Ano ka ba naman, syempre, nagaantay pa ng convincing incentives. Kailangan ng billion reasons so naturalmente, the manner and physical act of convincing takes time.

  8. The Tenor of SC justice Sereno is that because of scocial implication , foundling is being deprive of this social right to run for President. The framer of the constitutions envisions it that in such a way they can exact purity of Filipino Blood of the President who will carry the best interest of our Country through a NATURAL BORN CITIZEN. It is very obvious that this was the intent of the framer of the constitution wherein fact Mayors are not required Natural born Citizen, Just a mere filipino citizen. The framer had clearly distinguish a Natural born filipino citizen than that of filipino citizen. Foundling and Adoption had been granted a filipino citizen but not NATURAL BORN FILIPINO CITIZEN. Are we having a TRUE SC CHIEF JUSTICE speaking and defending our constitution or a mere SC justice sereno only. The Chief Justice must rise and be ASTUTE and great defender of our constitution. She should not muddle it with emotion. DURA LEX SED LEX. What is written is black and not pink. Shades of grey interpretation can never be BLACK even in its interpretation.

    • There are 2 types of citizenship , natural & naturalized ..Filupino citizen is presumed Natural

  9. Leodegardo Pruna on

    Definitely and on the line. The writer, with all the substantive arguments coming from knowledgeable and well educated and grounded people dismiss whatever fallacy the Solicitor General and CJ Sereno have in their arsenal founded on emotion and loyalty to P-Noy. God bless the Philippines.

  10. Natural Born in the eyes of law requires documented real proof (Not imaginary) of birth out of Filipina vagina or tummy maybe in case of cesarean birth. It is normally (naturally) called “Certificate of Live birth” with precise “date and time of birth” duly signed by the mother and witnessed by attending doctor, midwife or “hilot” maybe who filled up and signed the form as witness for sleeping mother tired from giving birth. Poe does not have “Live birth Certificate” which is the required legal document for “Natural Born” baby citizen. Therefore in the absence of “Certificate of live birth”, Poe is Not Natural BORN citizen.

  11. They are aware of that, their purpose is to grant a clear pass to Grace Poe even it violated the constitution. We need an individual to make an argument that will embarrass them being a Supreme Court Justices and SOLGEN, somebody that will question their intelligence about the Constitution and can make them look that they are not fitted to their job.

  12. Mariano Patalinjug on

    Yonkers,New York
    29 January 2016

    From where I sit, it is more than abundantly clear that the COMELEC is the Constitutional body which is charged with primary if not exclusive responsibility,and given the requisite authority, to vet all candidates for political office in the country

    It is also more than abundantly clear to me–as it should be to the justices of the Supreme Court and the Solicitor General–that exercising its constitutional responsibility and using its authority, the COMELEC disqualified GRACE POE LLAMANZARES from being a candidate for President THREE TIMES on two Constitutional grounds: 1] She is not a natural-born Filipino citizen, and 2] She is not in compliance with the 10-year residency requirement.

    Either one of these two grounds would be sufficient for her to be DISQUALIFIED from being a candidate for President.

    The Supreme Court is now in the process of adjudicating Grace Poe Llamanzares’ appeal on Certiorari from the COMELEC’s adverse ruling against her. The Court may not disturb the COMELEC’s findings as to the FACTS of this case. It may however review its findings of Law, and also whether or not the COMELEC acted with “grave abuse of discretion.” If it in its Judgment the Comelec interpreted and applied the pertinent provisions of the Constitution correctly, and is not guilty of “grave abuse of discretion,” then the Supreme Court is duty-bound to AFFIRM the disqualification of Grace Poe Llamanzares from being a candidate for President.

    MARIANO PATALINJUG
    patalinjugmar@gmail.com

    • Wrong, from where the Supreme Court sits, as revealed during oral argument in the Poe disqualification case. It was abundantly clear to the justices – – except Carpio, De Castro and Brion who have made up their minds at the SET already prior to the Supreme Court case – – that the Comelec had no jurisdiction to disqualify Poe. Hence, the second paragraph of your comment as to what should be abundantly clear to the SC justices and the SolGen, is a non-sequitur. Thirdly, grave abuse of discretion betrays the error the Comelec may have made in its findings of fact. Hence, findings of law made by Comelec stand to be overruled or reversed by the Supreme Court. You see, little knowledge of one who has no law degree nor studied Law, is still dangerous for one’s repute and standing in the community of newspaper readers and commentators.

  13. let her run for president anyway she will not win the election. as if she is the sure winner already. think about it she has no experience at all. if she will win the president all she ,had to do follow order from escudero or any member of her cabinet and that’s not the president we wanted, Philippines needs a honest, talented,experienced and knowledge to run the whole Philippines. Please vote Roxas he has all the qualifications to be the next president of the Philippines.

    • Lahat naman sila na kandidato eh qualified except greys. Kaya nag approve ng Comelec ang file nila na certificate of candidacy. Ang pinaguusapan naman ay ang kakayahan gampanann ang gawain ng pangulo. Sa record ng pagiging tamad at kawalan ng sariling pagiisip bukod sa kakulangan ng ekspiryens sa pagpapatakbo of even the lowest level of government unit, di papasa ang mama’s boy.

    • what ?? ..’let her run ‘ is the most typical confused mindset of Filipinos who ordinarily twist the law and manipulate the system to get what they want. Lusot Kung lulusot!
      Corrupted mentality has gotten into their DNAs …

  14. In criminal law, Blackstone’s formulation (also known as Blackstone’s ratio or the Blackstone ratio) is the principle that:
    “It is better that ten guilty persons escape than that one innocent suffer”,
    …as expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s.
    Historically, the details of the ratio have varied, but the message that government and the courts must err on the side of innocence has remained constant.

    From Wikipedia

    • Julio V Cuevas on

      Your analogy is way-off the target. It’s so simple and yet so protracted by the bias justices.

    • He would be the next when somebody retires before Pnoy pack up his luggage out of the house along Pasig River.

    • I agree with Ruffy. Rare is the Justice of the Supreme Court who, like Florin Hilbay, is a UP Law graduate, No. 1 BAR topnotcher, Ll.M. in Constitutional Law graduate of one of the top law schools, not only in the USA but also the world – Yale University, and a former UP Law professor in Constitutional Law and Solicitor General. Thus, Hilbay is more qualified than Chief Justice Sereno, Associate Justice A Carpio whose only legal qualificatiion is Presidential Counsel to the President, and other justices.The only reason PNoy appointed DOJ Sec. Caguioa is because the latter was the former’s school classmate. Caguioa himself does not measure up to Hilbay’s sterling qualifications and professional experience. Only one who vehemently but unreasonably disagrees with Hilbay will only chastise him.