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Sisyphus’ Lament

How can Grace Poe win in SC?

SIDE ISSUES proved distracting at the Supreme Court hearing on Sen. Grace Poe’s disqualification last Jan. 20.

The Inquirer’s Jerome Aning and Tarra Quismundo (“SC justices grill Poe’s lawyer,” Front Page, 1/21/16) captured the hearing’s human side, such as why Poe returned after her adoptive father Fernando Poe Jr. died. They posited “the odds appeared stacked” against Poe given the many questions hurled at her lawyer, Alex Poblador, of the internationally ranked Poblador Bautista & Reyes firm.

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The questions were difficult because of the novel legal issues. Poblador wisely avoided the wild theories. He said he is not claiming Poe stayed resident, under the Imelda Marcos case, despite moving to the United States and becoming a US citizen.

He may have overplayed very technical arguments on procedural errors, though. His opening speech even began with these.

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One doubts the Supreme Court will simply agree that the Commission on Elections should have thrown out the case.

Poblador posited only the Supreme Court, as the Presidential Electoral Tribunal, may disqualify Poe, an extreme claim made prominent in media.

Justice Estela Perlas-Bernabe raised that this contradicts, ironically, the Supreme Court decision on FPJ. Justice Jose Perez asked why the Comelec cannot stop a foreigner from coming to run for president. Other justices asked equally pointed questions.

Poblador might have clamped down on the many questions about Poe’s US passport.

If Poe used it after her renunciation of US citizenship—but she did not—it may show intent to repudiate this. Intent, not the passport, is key.

Justice Mariano del Castillo asked why Poe used a US passport when she was a dual citizen. Answer: US law requires citizens to use it in the United States.

Justice Teresita Leonardo-de Castro asked, hypothetically: What if Poe used her US passport after renunciation? Answer: US regulations require her to continue using it until the United States accepts the renunciation.

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These US requirements negate intent.

Del Castillo asked why Poe renounced US citizenship before a Philippine notary before she accepted a government position in October 2010, but renounced it at the US Embassy in July 2011. Answer: accepting the Philippine position may be renunciation; Poe’s US Certificate of Loss of Nationality states this was effective October 2010.

I discussed these US doctrines in the Inquirer’s front page last Sept. 28 (“Senator’s use of US passport irrelevant”).

These sideshows, though, were irrelevant to the real issues: Poe’s citizenship and residency.

Poblador’s calm manner belied how he confronted the 2002 Coquilla and 2015 Caballero decisions, which found no sign the balikbayan involved reestablished residence until he reacquired citizenship. Poblador differentiated Poe’s return in 2005. She quit her US job, enrolled her children in Philippine schools, and lived with her widowed mother Susan Roces.

The audience laughed when Justice Diosdado Peralta asked Poblador who wrote Caballero, and reminded: yours truly.

Del Castillo, Bernabe and Senior Associate Justice Antonio Carpio asked why Poe did not register as a resident alien. She used a balikbayan visa valid only for a year.

Poblador argued this is a special visa for former Filipinos who want to come home. One need not be a resident alien to reacquire citizenship, which she did a year later, after her husband sold their US house and came home. One may reestablish residence in stages under the Mitra case.

Poblador stressed the Supreme Court’s general rule that intent to return permanently may be shown in many ways. I add it is unnatural for a balikbayan to nitpick over legal fine print instead of simply being happy to be home. Balikbayan visas are simple. One need only show an old Philippine passport or birth certificate, and the visa extends to a non-Filipino spouse or child.

Poblador argued foundlings were understood to be born as Filipinos by the 1935 Constitution’s authors. Carpio countered this was in the context of language they decided not to add. Poblador rebutted, precisely, they thought it was already accepted in international law.

Carpio hit hard, asking how many countries signed the relevant treaty by 1935. Poblador answered not more than 22, but this was substantial in the short-lived League of Nations.

De Castro suggested natural-born means someone who performs no further act to gain citizenship, yet one must go through a process to prove one is a foundling. She likened international law to an intermediate step that naturalizes a foundling.

Poblador countered newborns cannot be naturalized; our laws require an applicant to be 18.

The Senate Electoral Tribunal dissents’ key weakness, I previously wrote, is they cannot identify the process that supposedly naturalized Poe, yet refuse to declare her stateless.

Poblador defended how presuming Poe is natural-born fits her into the Constitution, not contradicts it. Debating De Castro on the technicals of presumptions, he raised that even the FPJ decision presumed his father was Filipino because he died here.

The Inquirer report recounted how Poe’s “champion” Justice Marvic Leonen said he also grew up without a father and called for justice over legalism. He suggested that under the Constitution, the electorate must decide on Poe’s qualifications first, subject to Supreme Court review.

This is the “political question” doctrine, where an issue is nonlegal and left to a political body. It will be interesting to see if other justices echo this application.

Poblador tackled head-on the central issues, which ultimately depend on whether our judges accept foundlings are stateless and balikbayan must use exact fine print. He will need to focus the hearings on these and avoid more sideshows.

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

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TAGS: case, disqualification, disqualified, Elections, Grace Poe, opinion, Poblador Bautista, SC, Supreme Court
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