Comparing the gut issues

By conducting an extended oral argument, which overtook the Commission on Elections’ (Comelec’s) printing deadline, is the Supreme Court telegraphing a favorable decision on the eligibility of Grace Poe to seek the presidency? So readers asked in reaction to last Sunday’s column (titled “Speeding up the Grace Poe cases”) that outlined the dark scenarios that could happen due to a delay in the suits.

Speedy and fair. Readers repeatedly queried: If the Court wanted to disqualify Poe, why did it have to conduct a weekly oral argument? Could it not have called it daily? In Fernando Poe Jr.’s natural-born citizenship case (Tecson vs Comelec, March 3, 2004), the Court held an oral argument only for a day and took less than a month to issue its decision. Why so long now?

Poe’s name is now printed on the ballots pursuant to the Court’s temporary restraining order.

Considering that the automated machines are programmed to count all the votes cast for her (and for every candidate carried on the ballots), will the Court assume responsibility for the gruesome constitutional and political crises that could ensue if she is eventually disqualified and yet obtains the highest number of votes?

Or is the Court sending a subtle signal that the delay is of no real consequence because, anyway, she would be declared eligible, given that the dark scenarios could happen only if she is disqualified?

My answer: I trust the Court. It will not allow any dark scenario to bedevil the country. As I concluded last Sunday, “I am confident it will come up with a speedy and fair decision that will avoid the gruesome constitutional and political crises that critics fear.” I stand by that conclusion.

Gut issues in Comelec and SET cases. Instead of engaging in speculations, I prefer to discuss the issues.

The gut issue in the Comelec cases is: Did the poll body gravely abuse its discretion in canceling Poe’s certificate of candidacy (COC) for the presidency?

Concededly, Sec. 78 of the Omnibus Election Code grants the Comelec the authority “to deny due course or to cancel” a COC “exclusively on the ground that any material representation contained [in such COC] is false.”

Pursuant to settled jurisprudence, the “representation” must not only be “material” and “false,” but also made “with a deliberate attempt to mislead, misinform, or hide a fact” and “with an intention to deceive the electorate as to one’s qualifications.”

Thus, to be a sufficient ground to cancel a COC, the representation must be (1) material, (2) false and (3) made with a deliberate attempt to mislead, misinform, or hide a fact, and with an intention to deceive the electorate.

Note that, by the very text of the law, the Comelec’s authority to cancel COCs rests “exclusively” on the above-described ground. It necessarily follows that the poll body does not have the power to cancel COCs on any other ground, like the lack of constitutional “qualifications.”

The power to rule on presidential “qualifications” belongs solely, to quote Sec. 4, Art. VII of the Constitution, to the high court, thus: “The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice President, and may promulgate its rules for the purpose.”

Settled jurisprudence holds that such power to judge may be exercised only in regard to the “President or Vice President” not to candidates for the presidency or the vice presidency. Hence, the Court’s jurisdiction is acquired only AFTER the candidate is elected, not prior thereto.

In comparison, the gut issue in the appeal of the Senate Electoral Tribunal’s (SET’s) decision upholding Poe’s natural-born citizenship qualification is technically different. This is because, under Sec. 17, Art. VI of the Constitution, the SET is “the sole judge of all contests relating to the election, returns and qualifications” of senators.

Hence, the gut issue in the SET appeal is: “Did the SET gravely abuse its discretion in deciding that Grace Poe (a sitting senator, not just a candidate for senator) is a natural-born citizen?”

Non-inhibition of three justices. This difference in gut issues is probably the reason why the three SET justice-members (Antonio T. Carpio, Teresita J. Leonardo de Castro and Arturo D. Brion), who voted against Poe in the SET, inhibited in the appeal of the SET decision to the Supreme Court.

However, they refused to inhibit from (and, in fact, participated actively during the oral argument in) the Comelec appeals because the issue of “representation” in the Comelec suits is technically different from the issue of “qualification” in the SET case.

The Rules of Court grant justices the choice of whether to inhibit when the ground for their disqualification is “voluntary” and not compulsory. Their inhibition is addressed to their “sound discretion.” Whether the three justices exercised their discretion soundly, let us leave to the judgment of history.

But is it conceivable for the three justices to vote in favor of Poe in the Comelec appeals after having voted against her in the SET? Laypersons may find it awkward but, yes, it is legally possible to do so, as shown by Comelec Chair Andres D. Bautista who, in his separate opinion, held:

“Accordingly, while I find that the statements of [Poe]… are false, I do not believe that … there was a deliberate intent on [her] part to mislead, misinform or hide a fact which would otherwise render a candidate ineligible.” Ergo, Poe’s COC cannot be cancelled, Bautista concluded.

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