Case against Grace Poe ditches OFWs

SINGAPORE—The case against Sen. Grace Poe proposes law must prejudice overseas Filipino workers.

Justice Francis Jardeleza finally spoke at the Supreme Court’s fourth hearing last Feb. 9. He framed the case as one of equal protection and due process, not international law.

He argued the Commission on Elections pronounced a “conclusive presumption” that foundlings like Poe cannot be natural-born. Such violates equal protection by withholding full political rights from all Filipinos of unknown parents.

Jardeleza brought nuclear bombs to a fistfight. He cited “footnote 4” of the US Carolene Products case, where courts must scrutinize “prejudice against discrete and insular minorities.”

With this, Stanford Law Dean John Hart Ely crafted the famous philosophy for why unelected judges may overrule majorities. They must ensure minorities’ equal political participation, against majorities.

Due process was allegedly violated because the Comelec considered foundlings’ citizenship in general, not Poe’s individualized facts. Few foreigners lived in Jaro, Iloilo, Poe’s birthplace and Jardeleza’s hometown. Poe’s features are typical of Filipinos.

Justice Teresita Leonardo-de Castro countered the probabilities of Poe’s parentage were not presented to the Comelec and aliens can have such features. Considering evidence never presented, Commissioner Arthur Lim stressed, violates due process.

Jardeleza cited Harvard Prof. Laurence Tribe on silence in constitutions. What is not specified is not necessarily prohibited. One must analyze underlying principles. Tribe taught President Barack Obama, Chief Justice John Roberts and international judge Raul Pangalangan.

Jardeleza traced his equal protection and due process framework to 2004 and 2005 Philippine Supreme Court decisions.

I note he never imported US law. He cited philosophies of the highest order that organize concepts long-established here. And no one better translates such philosophy into legal framework.

While disagreeing, Jardeleza praised Lim as a “seasoned litigator” who cites court rules from memory.

Senior Associate Justice Antonio Carpio spoke for only two minutes. He rejected Chief Justice Maria Lourdes Sereno’s previous invocation of adoption cases. Carpio argued the babies there were not foundlings. Their unmarried mothers’ identities were withheld, not unknown.

I wrote last week that it was unclear if these mothers’ citizenship was recorded or in doubt, though one case explicitly referred to its baby as Filipino. Sereno posited courts have no jurisdiction to rule on foundlings’ adoptions unless they are presumed Filipino.

The hearings stress how the foundling debate is on law, not mere sentiment or populism. However, the other two debates that impact OFWs receive less airtime. Unlike foundlings, the 2009 Serrano case explicitly recognizes OFWs as discrete and insular minorities, protected by the strictest equal protection doctrines.

If the foundling debate asks the intimate question who is born a full Filipino, the residency debate asks who has legally come home.

Have you sat in a plane full of OFWs who clap wildly upon landing? This question is equally intimate.

Lim argued that Poe was not legally a resident in 2005, when she quit her US job and returned to the Philippines. Justice Estela Perlas-Bernabe asked if Poe should have registered as a resident alien, which is not in the Supreme Court rule. Lim answered Poe should have renounced US dual citizenship to prove she did not intend to return to the United States.

This is an extreme version of the general rule that one is resident when one moves to a place with intent to live there permanently. Are OFWs never legally home until they take steps required only of them and unnatural to OFW behavior?

Picture how a Hong Kong permanent resident could never be legally home until he or Hong Kong explicitly reverses this, which no balikbayan prioritizes over visiting old friends and haunts.

Justice Lucas Bersamin had to point out Poe was not resident in the United States just because her husband, who returned a year later, still lived there. This should be obvious outside the blog “Return of Kings”!

Lim argued that former Filipinos cannot reacquire natural-born citizenship under our dual citizenship law because such contradicts the Constitution’s definition, even though the Supreme Court upheld this in 2001.

This is equally intimate. If an OFW falls in love with, marries and becomes a Singaporean, she could never become a full Filipino again because Singapore prohibits dual citizenship.

Some begrudge Poe’s Fil-Am husband without realizing that Burma’s (Myanmar) military junta amended its constitution to stop those with foreign spouses from running for president—such as opposition icon Aung San Suu Kyi.

Dual citizenship can be shortchanged even though the Constitution of our nation of migrants respects it. Romulo Macalintal’s 2003 case against overseas voting prevented duals from voting in 2004, despite a case by Loida Nicolas-Lewis and US duals.

The hearings struggle with OFW worldviews. Justices asked many questions about Poe’s US passport, which the US government belatedly canceled in 2012. Such imply that Poe might be a US citizen under Philippine law, but not under US law, when she filed her candidacy in 2015. This defies logic.

Teachers inspire by saying a future president or chief justice might be in a class. If foundlings cannot be natural-born, it implies they are lesser Filipinos, even if most will never run for public office. Imposing special burdens on OFWs implies the same.

When Solicitor General Florin Hilbay speaks in Poe’s case as Tribune of the People, perhaps he can also speak as “Tribune of the Overseas People.”

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