Analyzing the SET decision

The 5-4 verdict of the Senate Electoral Tribunal (SET) upholding the natural-born citizenship of Sen. Grace Poe is comparable to a landmark Supreme Court decision. Well-written and well-structured, it is complete with a citation of cases and authorities, and signed by Senator-members Bam Aquino, Pia Cayetano, Cynthia Villar, Vicente Sotto and Loren Legarda. Justice-members Antonio T. Carpio, Teresita J. Leonardo-De Castro and Arturo D. Brion, and Senator-member Nancy Binay dissented.

The SET decision, after setting forth the undisputed facts, issues and litigants’ arguments, held that:

(1) Poe’s being “a foundling did not necessarily [mean] that [her] parents were/are not citizens… On the contrary, it did not exclude the possibility that her parents [were Filipinos]… Such possibility is strengthened by [her] physical features … only 5 ft. 2 inches tall … brown eyes and dark brown/black hair, low nasal bridge and oval-shaped face, which are consistent with the physical features of the ordinary Filipino.”

These “undisputed facts … give rise to a disputable presumption that her parents are Filipinos… [a presumption] Petitioner was unable” to rebut by showing that [Poe’s] father was an alien.

(2) The 1935 Constitution did not expressly mention the citizenship of foundlings. However, the Constitutional Convention delegates, notably Manuel Roxas, explained that the 1935 Constitution never intended “to exclude foundlings from natural born citizenship … and the only reason that there was no specific reference to foundlings … was that foundlings are ‘few and far in between’ so that ‘it was not necessary to include a provision on the subject exhaustively,’” adding that “by international law … children or people born … of unknown parents are citizens…”

Although the general rule in determining citizenship is jus sanguinis or blood relationship, “the framers of the Constitution created a class of natural-born citizens by legal fiction, as an exception…”

(3) Various treaties and customary international law, read together with the Constitution, affirm Poe’s natural-born citizenship.

(4) True, Poe lost her natural-born citizenship when she was naturalized as an American. But the SET, citing Bengzon vs HRET (May 7, 2001), said she “validly reacquired her natural-born citizenship upon taking her Oath of Allegiance to the Philippines.” She “never used her USA passport from the moment she renounced her American citizenship on 20 October 2010.”

Dissenting opinions. J Carpio opined that: (1) As a foundling with no known parents, Poe had the burden of proving that her biological father was a Filipino, which she failed to do. (2) International law does not “automatically grant citizenship to foundlings at birth.” (3) “Delegate Roxas did not cite any international law principle … that grants citizenship to foundlings at birth.” (4) “If in the future [Poe] can find a DNA match to a Filipino parent, or any other credible evidence showing her Filipino parentage, then [she] can still be declared a natural-born citizen.”

J De Castro stressed that: (1) “[N]atural-born citizenship is based on blood relationship to a Filipino father or Filipino mother, and [Poe], admittedly a foundling, does not come within the ambit of this … principle.” (2) “The 1935 Constitution … did not provide any exception … to blood relationship… Natural-born citizenship cannot be legislated … nor … conferred … by [executive] acts…” (3) The international conventions cited by Poe have not been ratified by our country, and even if ratified, they need implementing legislations, which, in any event, would grant only naturalized citizenship.

J Brion argued that: (1) “[A]s a foundling …, [Poe’s] … citizenship cannot be established, recognized or presumed under the 1935 Constitution.” (2) “[T]reaty obligations do not grant Philippine citizenship outright to foundlings… (3) “[S]ince she was never a Philippine citizen (much less a natural-born Philippine citizen) … she had nothing to reacquire…” (4) Bengzon vs HRET is erroneous and should not bind the SET.

Simple summary. Senator Legarda observed that “lawyers can argue ad infinitum on legalisms. However, legalisms—however exalted—can always be contradicted by other legalisms. But one thing is obvious: In this case, there is no clear violation of our Constitution or our laws. Only by interpretation can anyone really say that [Poe] is or is not natural-born.”

So, she anchored her vote on the “unreversed” doctrine in Frivaldo vs Comelec (June 26, 1996) that “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 freely elect their chosen leaders.”

The confusing legal “gobbledygook” can be simply summed up thus: The SET majority ruled that Poe, a foundling, is presumed a natural-born citizen and those who claim otherwise have to prove that her biological father was a foreigner at her birth. In contrast, the dissenters hold that, as a foundling, she is presumed NOT a natural-born citizen and to overturn this presumption, she has to prove that her biological father was a Filipino at her birth.

I was once a SET member, and if I were still a member, I would vote with the majority, consistent with the Frivaldo decision which I had the honor of writing for the Supreme Court, and with the overarching constitutionally-enshrined social justice principle to give more law to those who have less in life.

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