Saturday, December 16, 2017
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Sisyphus’ Lament

Grace Poe decision: wise or ‘wais’?

SINGAPORE—The most interesting points regarding the Supreme Court’s decision allowing Sen. Grace Poe to run for president are the points not in it. The 688-page decision and 10 separate opinions reflect the oral arguments and have no major surprises. But it shows which points of months of public debate are indeed relevant.

In the context of greater society, Yale Dean Eugene Rostow posited: “The Supreme Court is… an educational body, and the Justices are inevitably teachers in a vital national seminar.”

Thus, after a highly publicized, deeply emotional and politically charged decision, we must go beyond the result and ask ourselves: What have we learned? How have we grown? What does the Supreme Court decision say about our society’s most deeply held values?

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I sincerely hope we appreciate what was being debated, separate from its broader political context. For example, I see friends discuss how Poe’s alleged use of a US passport affects her residency. It cannot because a passport pertains to citizenship, not where one lives, two different concepts.

I saw a video reaction from a professor of an Alabang law school, shared through certain blogs. He enumerated the constitutional law subjects he taught and how he feels strongly about the case because his parents and siblings accepted American citizenship.

He could not accept (“hindi ko kayang lunukin… ginawa niyong basura ang pagiging Pilipino”) how the case allowed someone who renounced then reacquired Philippine citizenship to run for president. However, the Poe decision primarily dealt with citizenship for foundlings.

The Supreme Court did not focus on reacquisition of natural-born status because this was decided in the Supreme Court’s 2001 Bengson decision. Even the most vocal dissenters, Senior Associate Justice Antonio Carpio and Justice Arturo Brion, acknowledged this. One should not revisit the 2001 decision without giving all affected citizens a chance to be heard.

While one is free to criticize the Supreme Court, one hopes the criticism relates to what the Poe decision actually said.

The 47-page Poe decision written by Justice Jose Perez ignored extreme theories in media on both sides. Vox populi, vox Dei, or putting the legal issues to popular vote, was absent. The closest was how, during the oral arguments, Justice Marvic Leonen posited that the issues should first be decided by the electorate (technically referred to as the “political question” doctrine). This was not in his 127-page concurrence.

Neither did the opinions focus on natural-born citizenship allegedly conferred by adoption, or Poe allegedly using her US passport (which she denies) after renouncing US citizenship. I previously wrote this is irrelevant, given the fact that the US government itself does not recognize her as a citizen.

Now international judge Raul Pangalangan, quipped in an Inquirer column that Filipinos can see law as “wise” and “wais” (“Naia taking: wise or simply ‘wais’?”, Opinion, 1/21/05). My version of this dichotomy is that we seem to like our law literal, textual and legalistic.

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We seem averse to broader legal principles and underlying values. We cheer sifting through thousands of pages to unearth an obscure rule. The more verbose, incomprehensible and laden with Latin maxims an argument, the more we equate it with genius—with “wais.”

Many highly educated lawyers, including friends I respect greatly, approach the Poe case with a literal mindset. Many argue that foundlings’ potential legal limbo is an emotional, not legal, issue. The same lawyers now decry the decision as rewriting the Constitution because it has no explicit provision on foundlings.

The same lawyers insist that the residency issues are not overseas Filipino worker issues, even though they obviously affect foreign permanent residents and those who reacquire Philippine citizenship. One friend even opined that a foreign permanent resident cannot be an OFW, even if one remains a Filipino citizen, which hurt me greatly. I am glad that, on residency, Justice Presbitero Velasco humanized the reality that returning to the Philippines from abroad is not a straightforward one-step process, and Chief Justice Maria Lourdes Sereno even quoted Poe’s e-mails about her three containers of belongings and the difficulty of packing her children’s toys.

Justice Francis Jardeleza’s deeper human rights arguments are prominently absent in the main decision. It quoted Solicitor General Florin Hilbay’s oral presentation at length, but likewise not on these, his main point. The decision, which I generally agree with, mainly addresses the more literal debates discussed in this column in past weeks.

To be fair, Carpio, who is both wise and near unbeatable at “wais,” highlighted the limitations of several literal counterarguments (which do not mean they are wrong). For example, when Hilbay computed that 99.8 percent of infants born here are Filipinos, Carpio asked if that statistical presumption should be made for a Caucasian foundling. Carpio counted the countries that executed treaties relating to foundlings’ citizenship, given the decision’s mention of international law regarding this.

Jardeleza’s preferred argument was that it is simply wrong for a democracy to deny political rights to foundlings who do not know their parents, unlike those who do, and this is a human rights argument, not a moral or emotional one. It is interesting that the main decision stopped short of emphasizing this, in the same way individual senators highlighted social justice while the main Senate Electoral Tribunal decision on Poe addressed literal debates.

Perhaps Jardeleza’s 32-page separate opinion will give the decision greater resonance as the decision’s 688 pages torment law freshmen in the coming decades.

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React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

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TAGS: Citizenship, disqualification case, Elections, foundling, Grace Poe, opinion, residency, Supreme Court
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