The interpretation of silence in the Poe cases

“If you have a lawsuit,” wrote the French philosopher Voltaire, “your goods, your honor, your very life depend on the interpretation of a book which you never read.”

Sen. Grace Poe can hardly disagree. Her Senate post and political future absolutely hang on a reading of a text which few Filipinos bother to read. I leave the reader to determine which constitution the senator has read. Whether it is the Constitution of 1987 or of 1787 I have no desire to know. Who enjoys reading constitutions anyway?


What I find more interesting is the idea that one’s legal vindication depends on “interpretation.” This contradicts the traditional belief that judges make no law and adjudication is simply application of rules to the facts proven in court. Interpretation, traditionalists contend, is only employed when ambiguity permeates the language of the law. Thus, the plain-meaning rule states that “where the law speaks in clear and categorical language, there is no room for interpretation. There is only room for application.”

This, of course, is a judge’s folk tale. Interpretation always forms part of adjudication. One cannot apply a law without understanding its language, and one cannot understand language without interpretation. As Stanley Fish writes, “A sentence that seems to need no interpretation is already the product of one.” Indeed, Hans-Georg Gadamer insists that “discovering the meaning of a legal text and discovering how to apply it in a particular legal instance constitute one unitary process.” The judge cannot simply split them like chopsticks.


Interpretation comes to the fore in the Poe cases, which pose a unique hermeneutic controversy. In these cases, lawyers shall interpret not so much the words of the Constitution as the silence that echoes in its text. The bone of contention is not what the Constitution says, but what it does not.

The 1935 Constitution speaks no word on the citizenship of foundlings. Like a woman who says neither “yes” nor “no” to her suitor, this silence gives birth to an enigma.

How do we construe this perplexing silence?

Two camps offer opposing readings: the textualists and the nontextualists. The former insists that the search for meaning “begins and ends with what the text says and fairly implies.” Any intent of the legislator not expressed in the words of the text has no effect. The interpreter cannot enact the lawmakers’ unenacted desires. To this camp belong the three justices who voted against Poe at the Senate Electoral Tribunal.

In their opinions, the three justices construe silence as absence and absence as exclusion. Exclusion, then, becomes exclusivity and exclusivity is made law.  Thus, Justice Arturo Brion reads the silence to mean that the Constitution left to the legislature the decision of granting citizenship to foundlings. “Expressio unius est exclusio alterius” (The expression of one thing implies the exclusion of others). There is no unwritten exception to the principle of jus sanguinis (law of blood) aside from subsections (1) and (2) of Section 1, Article V. To include the absent foundling is nothing less than “rewriting the 1935 Constitution by including what is not there.”

Silence, for Justice Antonio Carpio, is suppression, a banishment of the opposite principle of jus soli (law of the soil). The inclusion of exceptions to the general rule of blood relationship bolsters the argument that the text contemplates no unwritten exception. Indeed, his reading silences all but the father whose blood is the only unquestioned source of natural-born citizenship. The law of blood is transubstantiated into the law of the Father.

Against the textualists stands the Solicitor General (SolGen), whose interpretation is “nontextualist” as much as it is “intentionalist.” His reading goes beyond the four corners of the law and dives into the “extrinsic” records of the constitutional convention searching for an original intent.


In his Comment, the SolGen reverses the three justices’ logic and construes the silence of the text not as absence, but as presence. He achieves this by summoning absent voices to supplement the constitutional lack. Like a medium, he allows the specters of Señor Montinola and Señor Roxas to speak: A child of unknown parentage is presumed to be a son of a Filipino following the Spanish Civil Code; international law recognizes the same child as a citizen of this nation. Thus, for reasons of style and law, the text need not state that foundlings are Filipino citizens.

From these spectral conversations, the SolGen concludes that the Constitution’s silence meant that the (mistaken?) views of the two specters had prevailed. Silence, therefore, is presence and presence means inclusion. And inclusion breeds justice.

Critical to the SolGen’s reading strategy is the construction of an intertext, which supplements and fills the constitutional gaps. This gesture allows him to write a story where a foundling receives, in lieu of the absent father, a fictional Filipino father courtesy of a legal presumption. But the SolGen’s intertext is also a text with its own silences. It is not immune to a rereading.

Ultimately, the Supreme Court will have to interpret the (con)texts of these silences. Whether or not Poe will receive a fictional father (again) remains to be seen. Whatever the verdict, let us not harbor any illusion about its nature. The Supreme Court’s decision, with all its authority, will give us, not truth, but another interpretation.

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.

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