Law and narrative contests in the Poe cases

SEN. GRACE Poe’s disqualification cases have finally reached the Supreme Court. At stake in her petitions are not only her Senate post and her quest for the presidency but also the status of foundlings, of dual citizens, and of millions who dream of acquiring foreign citizenship. Legal questions with great social ramifications are awaiting resolution in the high court.

But these cases cannot be decided through a sole reading of the bare words of the Constitution, whatever claims to objectivity are piously made. There is an intricate tapestry of laws, facts, precedents, arguments, and masterplots, including insidious plots to disqualify, that forms what philosophers call “the hermeneutic situation.” The interpreter of a constitution cannot but imbibe all prejudices inherent in the hermeneutic situation from which his understanding of the text arises. As Hans Georg Gadamer wrote, “The very idea of a situation means that we are not standing outside it and hence are unable to have any objective knowledge of it.” Thus, “the real meaning of a text, as it speaks to the interpreter, does not depend on the contingencies of the author … for it is always co-determined also by the historical situation of the interpreter and hence by the totality of the objective course of history.”

While there are indeed legal issues in these cases, the lawyers of Senator Poe, both official and unofficial, have astutely clothed their legal arguments in a number of mythos, or masterplots. H. Porter Abbot defines a masterplot as a story “that we tell over and over in myriad forms and that connect vitally with our deepest values, wishes, and fears.” In other words, it is a narrative structure that moves our dormant prejudices, allowing us to sympathize with Cinderella’s plight and to cheer the Count of Monte Cristo as he takes vengeance on his clueless oppressors.

Lawyers often invoke these structures to activate the deeply-held masterplots of their audience. Textbooks on legal writing advise students to combine a persuasive theory of the case, a view of the facts and law that justifies a decision, with a compelling story. As Richard Neumann and Sheila Simon write, “The client’s story makes the theory come alive. It can do that because—although in a scientific world we expect ourselves to think logically—deep down inside, we think also in terms of stories.”

Two masterplots predominantly shape the legal arguments in favor of Senator Poe. The first is the mythos of the foundling—an ancient and universal plot. It reminds us of Moses, a foundling who rose to be his people’s liberator from slavery. I am not saying that the senator claims to bring her hapless nation to the Promised Land, although one columnist has noted that she has “messianic pretensions.” At any rate, the foundling is a powerful image that appeals to our sense of justice. It suggests innocence and rekindles our common humanity and compassion. Indeed, how could we read a constitution in a way that the abandoned would be deprived even more? Certainly, international custom, which forms part of the law of the land, so the story goes, provides foundlings with natural-born citizenship.

The second masterplot is the balikbayan story. This is culturally specific to a country that continues to witness a daily exodus of its citizens to foreign lands. This reminds us of Odysseus, an archetype of the returning overseas worker. Note that “The Odyssey” is not a journey away from home, but a nostos, a return, a homecoming. Although our compatriots abroad are no Odysseus and own no fiefdoms to recover, their struggle to return home often parallels the epic voyage of Odysseus to Ithaca. The Bengzon and Romualdez-Marcos cases show that this tale of homecoming has been favored by the Supreme Court.

Meanwhile, the three justices who voted against Senator Poe weave a lawyer’s masterplot: Dura lex, sed lex (The law may be harsh, but that is the law). It is a cold but logical narrative. It is Shylock’s vision of law: “I cannot find it; ’tis not in the bond.” And so they argue that the Constitution follows the principle of jus sanguinis  (blood relation) and stipulates no exception. There is also no international custom that hands instant citizenship, much less natural-born citizenship, to foundlings. And assuming there is an international custom, such a law is no better than a statute enacted by Congress. Hence, the citizenship acquired falls under Section 1(5), Article IV of the 1935 Constitution, or “those who are naturalized in accordance with law.” This is the theory of “naturalization” by customary international law.

Finally, citizenship, it is argued, is not a blouse that one can wear and change on a whim. To change one’s citizenship for convenience is blatant opportunism. Thus, reacquisition under the Dual Citizenship Act should only be construed as a specie of naturalization. A different construction, warns Justice Arturo Brion, “would thereby allow Filipinos who have voluntarily relinquished their Philippine citizenship for political privileges in another country, to hold positions limited” to natural-born Filipinos. The law must distinguish between loyal and fair-weather citizens.

These are the battling legal narratives pending at the Supreme Court. For now, we can only speculate on the closure to this conflict. Only one thing is certain: The narrative that the majority of the justices weave shall prevail.

Jose Duke S. Bagulaya teaches a course in law and literature at the University of the Philippines Diliman and works as a lawyer in his spare time.