The Poe hearing


Courtesy of live streaming, many of us were able to listen to the oral arguments in the Senate Electoral Tribunal that is hearing the quo warranto petition that seeks to expel Senator Grace Poe from the Senate. The lone ground to be addressed by the Tribunal is a legal issue: Is Grace Poe, as a foundling, a natural-born Filipino?

My views on this issue have been published in this column before. She is not a natural-born Filipino because under the 1935 and the 1987 Constitutions, only those whose fathers or mothers are Filipinos are classified as natural-born Filipinos.   Unless Poe can pinpoint either of her biological parents as a Filipino, she does not meet the qualification to run for the post of senator or president.

Critics of my view cite a provision in the 1961 Convention to Reduce Statelessness that allegedly gives foundlings a “presumption” to be a natural-born Filipino as a ‘general principle of law.” I have highlighted the fact the 1961 Convention is not customary international law since it only has 63 state parties out of 197 states today. To be customary, there must be virtually uniform state practice. The fact that only a minority of states today have ratified the said convention belies the existence of this element.

I feel vindicated that despite the “expert views” of those who have never taught nor studied international law,” the Justices who are members of the SET appear to share my view. Is this not discriminatory against foundlings? Certainly! But so is the constitutional rule that only natural-born Filipinos can stand for the offices of members of both Houses of Congress and for the top executive posts of the land. The rule in fact is discriminatory against those who acquired their citizenship through naturalization. Dura lex. Sed lex. The law might be harsh but that is the law. The remedy is for the sovereign people to amend the Constitution and do away with the discrimination against naturalized Filipinos.

It too was not surprising that some senators who are members of the tribunal appear to view the issue along partisan lines. Poe’s supporters,   such as Senators Pia Cayetano, Loren Legarda (both of whom are from the Nacionalista Party) and Senator Tito Sotto asked questions that were sympathetic to Poe. On the other hand, presidential cousin and LP Senator Bam Aquino appears to favor the Justices. Surprisingly, only Senators Cynthia Villar and even Nancy Binay appear to have open minds on the issue. This is hardly surprising as precisely, the people, while it mandated the SET to be the SOLE judge of all questions involving qualifications for the post of senators, agreed that there should be at least three Justices of the Supreme Court sitting in the tribunal who are expected to resolve disputes according to the Constitution and under existing laws.   Senators should heed the warning of the Supreme Court in the case of Lerias vs. Mercado: “Politicians who are members of electoral tribunals, must think and act like judges, accordingly, they must resolve election controversies with judicial, not political, integrity.”

I am pleasantly surprised at the performance of the lawyer Luna, counsel for David. While apparently no match to the great Alexander Poblador, magna cum laude graduate of the UP College of law, he seemed to have stood his ground firmly and only showed signs of buckling down after two hours of intense questioning. Bravo to him! Anent my former boss Alex, well, he is truly one of the greatest legal minds in this country. Unfortunately,   the law on the matter simply was not to his favor.

I make two further observations. One on the statement of Senate President Franklin Drilon that the Supreme Court would ultimately sit as judge of Poe’s eligibility; and two, the scathing remarks of Poe’s supporters against Senior Justice Antonio Carpio.

On the first, Senator Drilon is wrong that the Supreme Court is the ultimate judge of a senator’s qualifications.  Under our Constitution, it is the Senate Electoral Tribunal which is the “sole judge of all contests relating to the election, returns and qualifications of their members”. Here, I can only think of one case where the Supreme Court disturbed the ruling of an Electoral Tribunal, which is the Lerias case. In that case, Justice Isagani Cruz in his dissent deplored the obvious partisan voting of the politicians who were members of the House of Representatives Electoral Tribunal: “It becomes only too obvious then that by sheer force of numbers; by overturning, at the post-appreciation stage, the rulings earlier made by the Tribunal admitting the claimed ballots for Protestant Lerias; by departing from the interpretation of the neighborhood rule heretofore consistently followed by the Tribunal; by injecting `strange jurisprudence,’ particularly on the intent rule; the majority has succeeded in altering the figures that reflect the final outcome of this election protest and, in the process, thwarting the true will of the electorate in the lone district of Southern Leyte.”

It is clear that absent such obvious partisanship, the Supreme Court will honor the textual commitment of the Constitution that the Electoral Tribunals shall be the “sole Judge “ of all electoral contests in both houses of Congress.

Anent the attacks on Justice Carpio who, in the 20 or so times I have argued in the Court, has proven to be most cerebral of all our justices, I can only tell Poe and her supporters that he is  an upright and acknowledged individual who has never hidden his ties with ‘The Firm’. They should have moved to inhibit him at the onset, and not now, after he has issued his statement. Moreover, if pre-judgment is the ground for inhibition, then Senators Cayetano, Legarda and Sotto should also inhibit themselves because they too have shown their pre-judgments in favor of Poe.

I may have doubts about the judicial system in this country. Thus far, though, the SET appears to have proven me wrong.

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6 comments on “The Poe hearing

  1. Thelma says:

    Congratulations Atty Roque!

  2. Diosdado S. de Leon says:

    Can a drop of blood determine whether a person or a foundling is a natural born citizen of a certain country?

  3. Al Oxales says:

    “Panganiban asserted and cited Article 2 of the 1961 Convention on the Reduction of Statelessness, which states that a “foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born in the territory of parents possessing the nationality of that State,” thereby, he said, making Poe a natural-born Filipino citizen.”

    However, if you read the other provisions of the said Convention, it is not even binding on the Philippines. The said Convention itself prohibits the application of Article 2 cited by Panganiban.In Article 12 par. 3 of the said Convention, it is provided that –

    “3. The provisions of article 2 of this Convention shall apply ONLY to foundlings found in the territory of a Contracting State after the entry into force of the Convention for that State.”In other words, the article 2 cited by Panganiban would only apply if there was entry into force of the Convention for a Contracting State.

    For very obvious reasons, there was no entry into force of the Convention for the Philippines. Our nation was not even a signatory to said Convention. In order that there will be an entry into force of the Convention for a State, there should be RATIFICATION or ACCESSION as provided for in Article 18 of the same, which provides –

    “Article 18

    1. This Convention shall enter into force two years after the date of the deposit of the sixth instrument of ratification or accession.

    2. For each State ratifying or acceding to this Convention after the deposit of the sixth instrument of ratification or accession, it shall enter into force on the ninetieth day after the deposit by such State of its instrument of ratification or accession or on the date on which this Convention enters into force in accordance with the provisions of paragraph 1 of this article, whichever is the later. “

    Again, it is a fact that there was no ratification or accession to speak of because of the simple fact that the Philippines was not even a signatory to the Convention.In other words, the said article 2 can only be entered into force in a particular country by way of ratification or accession. According to the Article 16 of the Convention itself, instruments of ratification or accession should have been submitted to the Secretary-General of the United Nations. Not being a signatory, the Philippines did not submit anything.

    In the case of Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et al., G.R. No. 173034, October 19, 2007, the Supreme Court held that if a party has failed to establish that a resolution is obligatory on the state, such a resolution should not be considered as a customary international law to be deemed part of the law of the land.Even the Convention cited by Panganiban declared that article 2 regarding foundlings is not obligatory on the states where there is no entry into force of the Convention.

    Since the Philippines is non-signatory to the Convention, there could not have been any entry into force of the Convention for our country.

    Thus, article 2 in accordance with the Convention clearly does not apply to the Philippines.There is a clear necessity for ratification or accession for the Convention to become in force in a State.

    This, however, is moot and academic because article 2 of the Convention is inconsistent with Article IV on natural born citizenship found in the Constitution. If article 2 is treated as an adopted law, it is still subject to the Constitution, the Supreme Court has the power to review the constitutionality of any treaty, international agreement or law. (Article VII Section 5 (2) of the Constitution) Also, article 2 can only be adopted by operation of the Constitution and thus, it cannot prevail over the Constitution. I hope this helps.

    Regards,

    Al Oxales

    P.S.

    good luck pards!

  4. aloxales63 says:

    “Panganiban asserted and cited Article 2 of the 1961 Convention on the Reduction of Statelessness, which states that a “foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born in the territory of parents possessing the nationality of that State,” thereby, he said, making Poe a natural-born Filipino citizen.”

    However, if you read the other provisions of the said Convention, it is not even binding on the Philippines. The said Convention itself prohibits the application of Article 2 cited by Panganiban.In Article 12 par. 3 of the said Convention, it is provided that –

    “3. The provisions of article 2 of this Convention shall apply ONLY to foundlings found in the territory of a Contracting State after the entry into force of the Convention for that State.”In other words, the article 2 cited by Panganiban would only apply if there was entry into force of the Convention for a Contracting State.

    For very obvious reasons, there was no entry into force of the Convention for the Philippines. Our nation was not even a signatory to said Convention. In order that there will be an entry into force of the Convention for a State, there should be RATIFICATION or ACCESSION as provided for in Article 18 of the same, which provides –

    “Article 18

    1. This Convention shall enter into force two years after the date of the deposit of the sixth instrument of ratification or accession.

    2. For each State ratifying or acceding to this Convention after the deposit of the sixth instrument of ratification or accession, it shall enter into force on the ninetieth day after the deposit by such State of its instrument of ratification or accession or on the date on which this Convention enters into force in accordance with the provisions of paragraph 1 of this article, whichever is the later. “

    Again, it is a fact that there was no ratification or accession to speak of because of the simple fact that the Philippines was not even a signatory to the Convention.In other words, the said article 2 can only be entered into force in a particular country by way of ratification or accession. According to the Article 16 of the Convention itself, instruments of ratification or accession should have been submitted to the Secretary-General of the United Nations. Not being a signatory, the Philippines did not submit anything.

    In the case of Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et al., G.R. No. 173034, October 19, 2007, the Supreme Court held that if a party has failed to establish that a resolution is obligatory on the state, such a resolution should not be considered as a customary international law to be deemed part of the law of the land.Even the Convention cited by Panganiban declared that article 2 regarding foundlings is not obligatory on the states where there is no entry into force of the Convention.

    Since the Philippines is non-signatory to the Convention, there could not have been any entry into force of the Convention for our country.

    Thus, article 2 in accordance with the Convention clearly does not apply to the Philippines.There is a clear necessity for ratification or accession for the Convention to become in force in a State.

    This, however, is moot and academic because as stated in my earlier comments, article 2 of the Convention is inconsistent with Article IV on natural born citizenship found in the Constitution. If article 2 is treated as an adopted law, it is still subject to the Constitution, the Supreme Court has the power to review the constitutionality of any treaty, international agreement or law. (Article VII Section 5 (2) of the Constitution) Also, article 2 can only be adopted by operation of the Constitution and thus, it cannot prevail over the Constitution. I hope this helps.

    Regards and good luck,

    Al Oxales

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