Sisyphus’ Lament

Trust Sotto over Carpio in SET ruling?

/ 12:12 AM November 30, 2015

IS IT necessarily political, not legal, if five senators outvoted three Supreme Court justices and Sen. Nancy Binay in the Senate Electoral Tribunal (SET) decision on Sen. Grace Poe? Sadly, our memorization-driven, bar exam-oriented legal education implies that only the literal, legalistic approach is valid.

Under our Constitution, the natural-born are citizens “from birth without having to perform any act to acquire or perfect their Philippine citizenship,” and one is born Filipino if a parent is Filipino. We base citizenship on parentage, unlike the United States which bases this on birthplace.


Poe likely meets the Constitution’s definition. The dilemma arises because an abandoned infant cannot prove this.

The 32-page SET decision implicitly accepts my preferred argument. The right to nationality in the 1948 United Nations Universal Declaration of Human Rights must be given effect by presuming a foundling was born in the place she was found and to citizens of that place—this international formulation functions under both rules—if there is no evidence otherwise.


The decision focuses on two treaties which state the presumption. The Philippines never signed these, but the decision concludes that the presumption is a “generally accepted principle of international law.” However, it did not explain how many countries’ laws reflect the presumption, and the justices noted that few countries signed the two treaties.

The decision also cites the 1935 Constitution’s deliberations where one delegate declined to add the presumption because it was already an international law principle. However, the justices pointed out that other delegates gave other reasons, such as leaving the matter for legislation. Further, such deliberations are persuasive but not binding, because the ratifying voters might have understood the text differently.

Each senator added a personal legal argument. Senators Bam Aquino and Tito Sotto (and likely Sen. Pia Cayetano’s unreleased opinion) emphasized social justice. Sotto tried to protect the unborn in the reproductive health debates, so he will also protect the newborn.

Sen. Loren Legarda reminded that if there is doubt in the election law, one should choose the interpretation that will give voters greater choice. This basic doctrine never meant that all legal issues may be left to a vote.

Senators Cynthia Villar and Sotto stressed that, given the presumption, it is the challenger who must prove that a foundling is not born Filipino.

The decision’s obvious weakness is that no Philippine law has an explicit rule for foundlings.

The 123 pages of dissents by Justices Antonio Carpio, Arturo Brion and Teresita Leonardo-De Castro argue that the presumption expands the definition of natural-born, which cannot be done without amending the Constitution. They reject that it merely fits foundlings into the definition.


The justices stressed that outside the two treaties not signed by the Philippines, no international law doctrine specifically requires it to grant a foundling citizenship at birth. At best, it must allow a foundling to acquire citizenship. Finally, they refuse to recognize citizenship based on a possibility.

The dissents are likewise flawed. Carpio emphasized how one must avoid declaring persons stateless under international law. The justices thus proposed that Poe is naturalized but not natural-born, but they cannot identify the specific process that naturalized Poe. Carpio, at best,

argues that applying for citizenship is liberalized for foundlings such that applying for a passport can grant this, which is odd.

The dissents are thus inconsistent. They are extremely literal and technical, yet in the end veer to nontextual analysis to avoid concluding Poe has no nationality.

Carpio also argued one should not presume a Chinese-looking foundling is Filipino—that could have been me.

Citizenship is so fundamental and intimate that each Filipino must decide how to approach Poe’s dilemma. Scholars have argued for centuries when to choose between a constitution’s letter and its spirit.

It is valid to choose spirit. To refuse to believe that the Constitution we swear to uphold would brand an abandoned newborn a stateless refugee. To refuse to discriminate between foundlings who can track their parents for a DNA test and those skipped by serendipity. Such is not political or emotional. It is often the deeper wisdom of law.

Is there shame in being moved by Sotto’s one-page plea for social justice more than Carpio’s 92 footnotes? Carpio’s first acclaimed dissent, in the 2003 MVRS Publications case, proposed to move beyond the literal, technical rules of libel to hold a magazine accountable for publishing that Muslims worship pigs. But he was restating a now legendary article he wrote as a mere student in 1972.

Justice Oliver Wendell Holmes Jr. stressed, “The life of the law has not been logic; it has been experience.” Law has never been strictly literal. Many fundamental rights are unwritten, from the right to marry to the right to privacy. Free speech and the right against unreasonable search evolve to protect social media and against technological intrusion. Land reform was made possible by allowing noncash payment to landowners.

The SET decision is not a binding precedent, thus only begins a debate on citizenship and foundlings. There is no perfect legal answer because the Constitution has no explicit rule. Those who choose letter may well abhor invoking spirit and vice-versa. Nevertheless, each citizen must find his conviction beyond abdicating judgment to how justices voted differently from senators or an arbitrary poll of perceived experts.

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React: [email protected], Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

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