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Sisyphus’ Lament

Carpio, Sereno duel over Grace Poe in SC

/ 12:12 AM February 01, 2016

BANGKOK—Is Sen. Grace Poe a real Filipino?

Senior Associate Justice Antonio Carpio voiced a new attack, and Chief Justice Maria Lourdes Sereno voiced a new defense at the second Supreme Court hearing last Jan. 26.

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One is natural-born if a parent is Filipino. In the first hearing, Alex Poblador, Poe’s lawyer, argued that Poe’s unknown parents are presumed Filipino under the 1935 Constitution and international law.

Carpio, as usual, spoke briefly but went straight for the jugular. He countered that foundlings were discussed by the Constitution’s authors in the context of a rejected amendment. Further, the Philippines is not party to treaties with a presumption for foundlings. Few countries ratified these and a practice must be widespread to be international custom.

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Poblador argued Poe reestablished residence in stages, as recognized by the Mitra case. She returned using a balikbayan visa, then reacquired Philippine citizenship a year later, after her husband returned.

Carpio and other justices questioned how a balikbayan visa is valid for only a year, belying a permanent intent to stay. Poblador stressed the general rule that such intent may be shown in many ways. He emphasized Poe’s quitting her US job, enrolling her children in Philippine schools and shipping her family’s containers of belongings here.

The legalistic approach has flaws, too. Proponents cannot show how Poe was naturalized if she was not born Filipino yet not stateless. And anathema to human rights, it creates arbitrary distinctions between foundlings who can and cannot find their parents for DNA tests, and former Filipinos with different immigration papers.

Carpio asked more tough questions in the second hearing. He asked what international law on foundlings existed in 1935 when the relevant treaties were not yet in force.

He made Poblador compute on the spot how only 10 of 74 countries (13.5 percent) ratified the 1930 Hague Convention when it took effect, and 22 of 193 (11.4 percent) ratified the 1968 convention on statelessness. Poblador also conceded he could not show how many countries enacted the presumption as domestic law.

Poblador gave a spirited defense. He countered that the 1948 Universal Declaration of Human Rights (UDHR), which states a right to nationality to reiterate the 1930 Hague Convention, was unanimously adopted by United Nations members. I previously wrote that my preferred argument is to presume foundlings are born Filipino to give effect to this right to nationality.

Carpio countered this does not specify natural-born. Poblador responded it would not, as natural-born is a domestic, not international, law concept.

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Poblador also responded that over half of League of Nations members signed the Hague Convention. This evidences international custom, even before ratification.

Finally, Poblador cited cases where the Supreme Court recognized such custom from treaties signed by few countries.

On residency, Carpio asked for a redacted resident alien’s income tax return. Poblador said he would check if Poe had income to tax in 2005 and 2006.

Sereno, however, steered the hearing to the richness of domestic law and our need to deepen our understanding of ourselves.

She argued that our domestic and intercountry adoption laws apply the procedures for Filipino babies to foundlings. Congress thus presumes foundlings are born Filipino. The Supreme Court must recognize this to protect foundlings’ adoptions, as our courts have no jurisdiction over alien babies’ adoptions.

She made an analogy to contract law where an impossible condition, such as a DNA test from unknown parents, is considered not imposed.

Some justices hinted Poe’s citizenship must be considered in the Constitution’s totality, Sereno noted. She meant Justice Marvic Leonen, who cited general constitutional provisions on human dignity and women’s equality.

Leonen quipped: “Maybe for some of us, presumed citizenship is too iffy.” He suggested Poblador anchor the presumption in such a provision instead of international law.

Leonen spoke for half the hearing, or about 90 minutes. He discussed a middle ground between dura lex sed lex (the law is harsh but that is the law) and vox populi vox Dei (the people’s voice is God’s voice), though these concepts are not typically linked.

Justices kept asking about Poe’s US passport. Poblador answered Leonen that if Poe used this after she renounced US citizenship—and she did not—it would nullify her renunciation and disqualify her as a candidate.

Poblador could have been firmer. Unlike previous Supreme Court cases, Poe showed a US Certificate of Loss of Nationality, issued in 2012. It stated it was effective 2010, when Poe headed a Philippine government agency. Her US passport was also canceled.

It defies common sense to claim Poe was a US citizen under Philippine law but not under US law in 2015, when she filed her certificate of candidacy (COC).

Justice Jose Perez humored Poblador’s previous procedural arguments, suggesting if Poe’s legal issues are unresolved, statements in her COC cannot be in bad faith.

Poblador stressed to Justice Presbitero Velasco that the Mitra case focused on intent to stay permanently and ignored secondary details such as how Mitra’s alleged room in a feedmill seemed unfit for an incumbent congressman. Thus, details such as Poe’s visa should be irrelevant.

Velasco reminded Poblador he dissented in Mitra.

Did Sereno telegraph that justices may discard legalistic calisthenics of international law and presumptions? Are they willing to simply give effect to the UDHR’s right to nationality and broader constitutional principles?

If so, the terrain at the Supreme Court battleground has radically shifted in Poe’s favor.

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

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TAGS: Antonio Carpio, Carpio, disqualification, Grace Poe, Maria Lourdes Sereno, opinion, Sereno
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