Popular sovereignty and DNA

The issue of whether Sen. Grace Poe is a natural-born citizen has sparked nationwide debate among lawyers and nonlawyers alike. And rightly so, because the issue is of national interest as it involves a major player in the coming presidential polls. Most of her critics concede she is a Filipino citizen but dispute her natural-born status.

Frivaldo vs Comelec. I have always believed that doubts on legal issues involving elections and popular sovereignty should be resolved in favor of letting our people decide them freely through the ballot. Whenever possible, election issues (which do not involve crimes or obvious violations of law) should be settled by the voters, not by judges and lawyers.

A case in point is Frivaldo vs Comelec (June 28, 1996). Juan Frivaldo was overwhelmingly voted governor of Sorsogon by a wide margin of 27,000 votes in 1988, and again by 57,000 in 1992. However, in both instances, he was ousted by the Supreme Court for having lost his Philippine citizenship in 1983 when he was naturalized as an American.

Undaunted by his two defeats at the Supreme Court, he ran and won again as governor also by a wide margin of 20,000 in 1995. Again also, his victory was challenged by the same candidate he defeated. This time, Frivaldo claimed to have reacquired his Philippine citizenship under Republic Act No. 7160 by taking his oath of allegiance as a Filipino at 2 p.m. on June 30, 1995, the day he assumed office as governor.

However, Raul Lee, his opponent, claimed that he was already twice ruled to be an alien and that, at any rate, he should have possessed Philippine citizenship on the last day for filing certificates of candidacy, or at the latest, on the date of the election on May 8, 1995, not on the date he assumed office on June 30, 1995. Moreover, Lee also attacked the haste in processing the repatriation because Frivaldo filed his application for it only on the day prior, on June 29, 1995.

Popular sovereignty. The case was assigned to me as a new Supreme Court associate justice just after I assumed office in 1995. The decision I had the honor of writing for the Court upheld Frivaldo’s election.

The Court ruled that “decisions declaring the acquisition or denial of citizenship cannot govern a person’s future status with finality … because a person may subsequently reacquire, or for that matter lose, his citizenship under any of the modes recognized by law.” Consequently, the two earlier Supreme Court decisions denying him Philippine citizenship were not binding on his current status.

Noting that the law did not specify the date when a candidate must possess Philippine citizenship, the Court held it sufficient that Frivaldo became a citizen at the time he assumed his office, not necessarily at the time he filed his certificate of candidacy, or during the election campaign period.

Underlying this liberality in resolving Frivaldo’s citizenship is my basic legal philosophy upholding popular sovereignty on issues involving elections, thus:

“At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections: literal or liberal; the letter or the spirit; the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voters’ obvious choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.”

Noteworthy, too, is the concurring opinion of Associate Justice (later Chief Justice) Reynato S. Puno which I quote in part: “I concur in the path-breaking ponencia of Mr. Justice Panganiban which is pro-people and pierces the myopia of legalism… In cases where the sovereign will of the people is at stake, we must not only be legally right, but also politically correct. We cannot fail by making the people succeed.”

Note that the issue in Frivaldo’s case was his total lack of citizenship, while in Senator Poe’s, it is merely her alleged lack of “natural-born” status, given that most critics concede her “naturalized” citizenship. With far more reasons, therefore, should the Constitution and the laws governing her case be more liberally construed by letting the 50 million Filipino voters decide the issue.

DNA test. An even better way of removing doubts on her citizenship is the DNA (deoxyribonucleic acid) test. For many years, our Supreme Court was not convinced of the legal viability of DNA testing or profiling. However, starting with Tijing vs Court of Appeals (March 8, 2001) and People vs Vallejo (May 9, 2002), the Court changed its mind.

In Herrera vs Alba (June 15, 2005), “the Court moved from the issue of according official recognition to DNA analysis as evidence to the issue of observance of procedures in conducting DNA analysis.”

Thereafter, the Court issued on Oct. 2, 2007 (to take effect on Oct. 15, 2007), the “Rule on DNA Evidence” that formally laid down the procedure in procuring legally-viable DNA tests.

Senator Poe was reported by her lawyer George Garcia to have undergone a DNA matching test to answer her personal quest of “Who am I?” To be legally acceptable, however, the test should be done pursuant to the protocols of the said Rule. If her biological father, as would be shown by the DNA test, was a Filipino at the time of her birth, then she is unquestionably a natural-born citizen.

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