Contrasting the Comelec and SET decisions

The three-member Second Division of the Commission on Elections (Comelec) cancelled the certificate of candidacy for president of Sen. Grace Poe on the ground that her “material representations” about her natural-born citizenship and 10-year Philippine residency were “false.” In contrast, the Senate Electoral Tribunal (SET) earlier upheld her natural-born citizenship but did not rule on her residency. Here are some questions raised by readers:

Question 1: What will happen to these contrasting rulings? Answer: Senator Poe will file Monday with the seven-member Comelec en banc a motion for reconsideration. On the other hand, with the denial of his motion for reconsideration by the SET, Rizalino David is poised to go to the Supreme Court. Ultimately, these two cases (and the three others still pending in the Comelec’s First Division) will be elevated to the high court for a final consolidated decision. Meanwhile, Poe’s name will be printed in the automated ballots, as was done in Joseph Estrada’s case in the 2010 presidential election.

Question 2: Once the SET decision reaches the Supreme Court, will the three justice-members still participate and vote there? Answer: No, having judged below, they can no longer judge above.

Question 3: The SET voted 5-4. Isn’t this unreliable? Answer: Many landmark cases, here and abroad, have been decided by one vote. Thus, our Supreme Court, voting 8-7 in Lambino vs Comelec (Oct. 26, 2006), trashed the people’s initiative to institute the parliamentary system here. The US Supreme Court, voting 5-4 in Bush vs Gore (Dec. 12, 2000), rejected the recount of the contested ballots in Florida and ushered in the election of George W. Bush as the new US president.

Question 4: Isn’t it unfair for Sen. Loren Legarda to ask our electorate to decide legal issues? Answer: No, she did not so ask. Rather, she first quoted from Frivaldo vs Comelec (June 26, 1996) the two main ways of legal interpretation, thus: “At balance, the question really boils down to a choice of … how to interpret and apply laws relating to elections: literal or liberal, the letter or the spirit, the naked provision or the ultimate purpose, legal syllogism or substantial justice, in isolation of or in the context of social conditions, harshly against or gently in favor of the voters’ choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.”

Then, choosing the liberal way of interpretation, she opined: “In case of doubt in the interpretation of constitutional and legal provisions involving popular sovereignty, it is best to interpret such provisions in a manner that enables our electorate to elect freely their chosen leader.”

Question 5: Under the same Frivaldo doctrine, should Rodrigo Duterte be allowed to run? Answer: I do not have the complete facts on Duterte’s case but if, as reported in the media, the only reason for his alleged disqualification is a typographical error, I believe he should be allowed to run for president. Substantial justice, not literal interpretation, should be applied. This does not mean I approve of his human rights shortcuts or habitual cussing. Legal eligibility is different from electoral acceptability.

Question 6: Senator Poe is not poor. Why should the social justice principle of giving more law to those who have less in life favor her? Answer: Social justice does not favor only the impoverished. It equally favors the disabled, the sick, the abandoned (like foundlings), the infirm, the mentally-retarded, the disaster-stricken and everyone economically, socially, politically, racially and medically disadvantaged.

Question 7: Why should the abandoned, like foundlings, be given more law? Dura lex sed lex. The law may be harsh; nevertheless, it must strictly be followed and applied equally to everyone, isn’t it? Answer: Dura lex sed lex is a favorite expression of lawyers educated under the Analytical School of legal philosophy. They interpret law verba legis, that is, according to the literal meaning of the words used. However, I believe the better way of interpretation is to look at the spirit, the intent and the substance of the law. I think that lawyers should not be mere automatons or legal technicians who apply laws strictly and automatically without considering their effects on society. Rather, they should be social engineers who help build just societies with law as their tool.

Question 8: Apart from the presidency, vice presidency, Senate and House memberships, are there other positions that require natural-born citizenship? Answer: Yes, thousands of

others, like commissioners of elections, audit, civil service, human rights; ombudsman; most judicial and prosecutorial posts; directorships in several bureaus and commissions; memberships in boards of examiners of various professions; grantees of scholarships; and others too numerous to fit in this space. The point is: Foundlings should not be denied entry to these offices or grants.

Question 9: Should we simply forget Poe’s abandonment of our country when she became an American and accept her now as our president? Answer: That is a political, not legal, question that is better answered by our people via their ballots. Not every question can and should be decided by our tribunals. Let Poe explain to our people, and if the majority accepts her explanation and votes her to office, so be it. This is the essence of democracy. As the axiom goes, Vox populi vox Dei.

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