How will SC rule on Grace Poe tomorrow?

SINGAPORE—Game-of-Thrones-like drama preceded tomorrow’s (Jan. 19) Supreme Court oral arguments on Sen. Grace Poe’s disqualification.

The stakes are high, and Poe herself is attending. For various political camps, Poe’s removal from the ballot would completely change the terrain of our presidential election. For human rights advocates, restrictive doctrines applied to Poe would also apply to abandoned infants and overseas Filipino workers.

To appreciate the maneuvering, one must understand which case against Poe is which.

Opponents tried to disqualify Poe as senator at the Senate Electoral Tribunal (SET), alleging she is not natural-born Filipino.

They argue that a foundling with unknown parents cannot be natural-born. Under our Constitution, one is natural-born if a parent is Filipino. Further, they argue that our dual citizenship law cannot let a former Filipino reacquire natural-born status, even though this was previously upheld by the Supreme Court.

Poe’s candidacy as president was then attacked at the Commission on Elections on similar grounds, plus the 10-year residency required by our Constitution.

Opponents argued that her previous certificate for candidacy for senator stated a shorter period. Further, they argued she cannot be a resident before reacquiring Philippine citizenship. I previously noted that citizenship and residence are two separate concepts, as Senior Associate Justice Antonio Carpio stressed in the 2009 Cordora case.

Poe won at the SET after five senators outvoted three Supreme Court justices, but lost at the Comelec.

Poe now needs 8 out of 14 Supreme Court justices—Martin Villarama just retired last Jan. 16—to vote favorably on each point above.

This might have dropped to 6 out of 11 had the Court consolidated the SET and Comelec cases. Because a case may not be appealed to the same judge, the three SET justices (Carpio, Teresita Leonardo-de Castro and Arturo Brion) stated they would inhibit if the Supreme Court reviews the SET decision.

The Court, however, is hearing only the Comelec cases tomorrow. No rule bars the three SET justices even if the citizenship issues are identical. The Court is skipping the SET decision and may let it become moot.

Although the SET case was not consolidated, it did elicit a formal comment from Solicitor General Florin Hilbay defending foundlings. Hilbay agreed to defend the SET at the high court before the Comelec came out with decisions contradicting the SET’s. The Comelec is thus handling its own case, led by Commissioners Arthur Lim and Rowena Guanzon.

Commentators criticized Hilbay for turning the case into a joke after his comment likened Poe’s foes to House Slytherin, Harry Potter villains obsessed with blood purity. These critics betrayed unfamiliarity with basic human rights law, missing the sophisticated legal argument behind the pop culture reference.

His comment opened: “This case involves an inquiry into the status of foundlings under Philippine law and the right of such vulnerable class of persons against undue burdens that restrict membership in society, opportunities for political participation, and recognition as full citizens of the Republic.”

Whether or not one agrees, one must recognize how such language frames the case in near sacred discrimination doctrines. Hilbay thus argues that our Constitution cannot be interpreted to prejudice a defenseless minority such as abandoned infants. This echoes my preferred approach of giving effect to the right to nationality without the convoluted international law arguments at the SET.

The Supreme Court has asked Hilbay to speak in the Comelec cases as “tribune of the people.” Given his strong statement on foundlings, he might take a pro-OFW position regarding residency rules applied to returning former Filipinos.

Nuisance presidential candidate Rizalito David, who filed the SET case against Poe, asked the Supreme Court to censure former chief justice Artemio Panganiban over an Inquirer column that allegedly sought to influence the Supreme Court in Poe’s favor. Former justices enjoy free speech like anyone else. Lawyers should not restrict public debate on the pretext that a case is pending before the Supreme Court.

Which justices might vote for Poe?

Brion strongly dissented in the 2015 Arnado case (joined by Justices Jose Mendoza and Jose Perez, with Marvic Leonen separately dissenting) and in similar 2013 Maquiling (joined by Justices Mariano del Castillo, Leonen, De Castro and Mendoza) and Reyes (joined by Leonen) cases, treating citizenship liberally.

Arnado renounced his US citizenship but later used his US passport, allegedly while waiting to receive his Philippine passport. Brion considered this an “isolated act” not contrary to his renunciation. He emphasized how Arnado won 84 percent of votes for mayor of Kauswagan, Lanao del Norte.

Brion and De Castro, though, took legalistic stances at the SET.

Perez was liberal in his 2010 Ma vs Fernandez decision. The Ma brothers formally elected citizenship under the 1935 Constitution but did not register this until over 30 years later. He refused to consider them aliens.

Justice Francis Jardeleza championed very liberal constitutional interpretation of cultural preservation in the Torre de Manila case. Although Hilbay’s philosophical nuances were lost on his critics, they may resonate with his predecessor as solicitor general.

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Leftist activists publicly decry the Supreme Court’s decision upholding our defense agreement with the United States. The public should recall how the activists’ lawyer undermined the challenge to this agreement and was scolded by justices, as I summarized in “Bad law school recitation in SC” (Opinion, 12/1/14).

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