The SolGen turns to wizardry

“As if purity of blood were a standard for capacity to govern—as if our nation belonged to House Slytherin.”

(Solicitor General’s Comment, Dec. 30, 2015, par. 69)

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) to the petition for certiorari seeking the Supreme Court’s review of the SET’s decision. A copy of the comment can be found at the OSG website.

Space does not permit us to discuss all of the issues raised in the comment. We note, however, that 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.

Equally fundamental, the legislation of measures for the benefit of foundlings is for Congress (or perhaps even the direct sovereign will of the people) and not for the courts to undertake.

It speaks of the immaturity of our public discourse that the authors have to make this caveat: We have nothing against foundlings. But 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.

Likewise, we should guard against attempts to rewrite the Constitution, implicitly or expressedly, by a small select number of people, even if they be learned judges or lawyers. Or presidential candidates. It is simply undemocratic and dictatorial.

To do otherwise, as the OSG is encouraging us to do now, no matter how noble the motive, will be the straight road to national chaos.

Cristina Montes (LLM, Navarre) and Jemy Gatdula (LLM, Cambridge) are lecturers at the University of Asia and the Pacific School of Law and Governance.