Reasons to reverse SET and Comelec rulings

TWO CRUCIAL events have happened concerning the disqualification cases against Sen. Grace Poe: The Commission on Elections’ second division ruled to cancel her certificate of candidacy for president, and the Senate Electoral Tribunal affirmed its 5-4 decision declaring her a natural-born Filipino. Let’s look into these issues.

The Comelec cancelled Poe’s COC on the ground that she falsely misrepresented her being a natural-born citizen and a 10-year Philippine resident. Three elements were needed for the case to prosper: 1) Poe is not natural-born or not a 10-year resident; 2) she knew the defects in her citizenship and residency; and 3) she tried to deceive the electorate on her lack of qualifications.

Even if it turns out that Poe has defective citizenship or insufficient residency, if she did not know of such defects, there will be no ground to cancel her COC. Proof of bad faith spells loss for her, and proof of good faith results in a win.

The Comelec declared that Poe is not natural-born because she cannot show a bloodline to a Filipino parent. But it declared that she had no knowledge of her defective citizenship because a foundling’s citizenship is a difficult question of law. Hence, it ruled that she cannot be said to have intentionally deceived the electorate, and it denied the petition to cancel her COC on this ground.

On the other hand, the Comelec ruled that Poe knew she did not have the required residency because in her 2013 senatorial COC, she said she would be a resident for six years and six months on Election Day in May 2013. Counting back from May 2013, the Comelec concluded that Poe began her Philippine residency in November 2006. Next, it counted forward starting from November 2006 and concluded that she would reach the 10-year residency only in November 2016, or six months short of Election Day in May 2016.

The Comelec declared that Poe knew, by her own admission in her 2013 COC, that she did not have the required 10 years, and she accordingly tried to deceive the electorate when she stated otherwise in her 2016 COC. On this basis, it granted the petition to cancel her COC, disqualifying her from running for president.

But interestingly, the Comelec observed that the correct reckoning date to compute Poe’s residency should be on July 18, 2006, when she reacquired Filipino citizenship. It is effectively saying that she was wrong in computing her citizenship from November 2006. Shouldn’t Poe’s erroneous computation of her residency serve as proof that the issue is also a difficult question of law for her, similar to the citizenship issue? Given that, should she not have been considered to be in good faith on the issue of residency? Add to this the other facts that could have added to her confusion in her reckoning: her multiple arrivals in the Philippines between April 2004 and May 2006; her giving birth in the Philippines in June 2004; the start of her kids’ schooling in the Philippines in June 2005; and the sale of her US property in April 2006.

I am not convinced that there are grounds to conclude that Poe intentionally deceived the electorate on her residency. She has good grounds to convince the Comelec en banc, and later the Supreme Court, that the second division committed grave abuse of discretion amounting to lack of jurisdiction in ordering the cancellation of her COC.

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The five SET senator-members who affirmed their ruling that Poe is a natural-born Filipino cite four justifications.

1. That it is unfair to deprive foundlings of natural-born citizenship.

The unfairness must be conceded. But to which government branch should we address such a complaint? From which branch should we seek remedy? It has been assumed that this unfairness is a judicial issue within the SET’s jurisdiction to resolve. But the unfairness exists because there is no law clearly defining the citizenship of foundlings. It is a political or policy issue that should be remedied by the legislature.

We bark up the wrong tree when we demand that a judicial body like the SET (and later the Supreme Court) usurp legislative powers to create a new law, or claim sovereign powers to amend the Constitution. It is Congress—where Poe wields power—that must provide remedy to this unfairness, by passing an enabling law or by initiating constitutional amendments.

Our legal history is littered with the carcasses of laws and constitutional provisions that were felled when the judiciary usurped legislative powers or when the legislature abused judicial powers. Congress is prone to partisanship when it usurps judicial powers, and the judiciary is prone to political shortsightedness when it usurps legislative powers. This will come into play if judicial entities (SET, Supreme Court) legislate the citizenship of all foundlings based only on Poe’s facts, instead of Congress passing a detailed law after it deliberates on the varying circumstances of all foundlings.

2. That the voice of the people validated Poe’s natural-born citizenship when she was elected senator.

Judicial legislation, or judicial amendment of the Constitution, will allow winning an election to substitute for lack of qualifications. This will create a new political paradigm where unqualified candidates will move heaven and earth to win elections to cure their disqualification.

3. That Poe is presumed a natural-born citizen in the absence of contrary evidence.

But with Poe’s admission that she is a foundling whose parents are unknown, it is her burden to prove that she has a bloodline to a Filipino parent.

4. That constitutional and international laws prevailing when Poe was born consider foundlings to be natural-born citizens.

But it is clear that bloodline to a Filipino parent was required by the Constitution then, and no international law amended, or can amend, this requirement. In an earlier column (“Legal and emotional entanglements in Poe issue,” 10/6/15), I wrote that the grant of citizenship “has always been within a country’s sovereign domain, and international law cannot just ram citizens down the throat of countries.”

The SET acted outside its jurisdiction when it invoked the first and second justifications because these involve usurpation of legislative powers and even invalid amendments of the Constitution. On the other hand, while the SET acted within its jurisdiction when it interpreted laws (third and fourth justifications), its wrong interpretations constitute grave abuse of discretion amounting to lack of jurisdiction.

Petitioner Rizalito David will have good grounds to convince the Supreme Court to reverse the SET ruling.

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