Raul V. Fabella

The Philippine public has been treated to many erudite and well-reasoned treatises on how the Supreme Court (SC) should decide on Senator Grace Poe’s disqualification case. The legal issues are either involved and lengthy or simple and open-and-shut depending on who is making the case. Should the SC display judicial restraint, follow precedents, and hew closely to the letter of the law? Or should it display judicial activism and blaze a new judicial trail in pursuit of some perhaps new principle of jurisprudence? The SC did display a considerable capacity for judicial activism in allowing Juan Ponce Enrile to post bail though the charge against him is legally and constitutionally non-bailable. The new principle of jurisprudence, “humanitarian grounds,” which law students now have to learn has no accepted definition and one can drive an oil tanker through its portals. Be that as it may, not being a lawyer myself, I’d rather leave that to the legal eagles.

The purpose of this piece is not how the SC “should have decided” on the Poe case but what could be expected from revealed SC decision making in general.

Three theories on the decision making of the SC are salient and competing (see, e.g., Pacelle, Curry, and Marshall, 2011): (a) the legal theory — that what governs SC decision making are no more and no less than legal precedents and the Constitution; (b) the attitudinal theory — that what governs the SC decision making are the substantive prior preferences and ideologies of the justices; (c) the strategic theory — that SC decision making is governed by strategic considerations, especially in relation to outside forces, say, the other branches, especially elected branches of government. The President, the Senate, and Lower House have the power to retaliate (as, for example, through the budget allocation) in case of open display of contempt. Granting Juan Ponce Enrile the right to post bail on an unbailable charge clearly violates the legal theory. It may be understood as flowing from ingrained preferences (or biases as sometimes it is called) or from strategic considerations (or future payoffs as sometime it is called).

Pacelle, Curry, and Marshall (2011) tried to compare how these three theories perform as explanatory (proxied) variables in actual decisions of the US Supreme Court. Their logit regressions showed that none of the three theories can be rejected as correlates of SC decisions. I prefer to dwell on the strategic motives for decision making.

What appears to be a salient instance of strategic decision making by the US Supreme Court occurred during the New Deal Era. Then-US President Franklin D. Roosevelt — frustrated by repeated rebuffs by the US Supreme Court of New Deal legislations — threatened in 1937 to emasculate the SC with his Court Reorganization Plan. Known also as Roosevelt’s court packing plan, it came in the form of the Judicial Procedures Reform Bill of 1937.

It sought to grant the President the power to appoint an additional justice of the Supreme Court for every member of the Supreme Court over the age of 70 and 6 months and up to a maximum of six new associate justices.

Since it was Congress — not the Constitution — that established the composition of the SC, it can recompose it. Soon after Roosevelt won a sweeping victory in November 1936, the SC decided 5-4 upholding a Washington minimum wage law which the New Deal (in keeping with the Keynesian view of putting purchasing power in the pockets of the poor) favored. The tie was broken by, of all people, Justice Owen Richards who had previously opposed New Deal legislations.

In 1938, Justice Harlan Fiske Stone opined in the US vs Carolene Products that the SC should show deference to the elected branches in matters involving economic policy though not in matters of civil rights and civil liberties. The SC seemed to have acted to ease the political pressure and protect its identity (exemplified by the court packing plan).

Although the Judicial Procedures Reform Bill never became law, the message seemed to have been heard loud and clear in the halls of the US SC. But that is the US SC. We are in the land of “only in the Philippines.”

The question is what strategic considerations bore on the SC’s decision on the Poe disqualification case? We may never know.

But consider that candidate Rodrigo R. Duterte has said he will cure every ill in three months. Although that is mostly campaign bluster, to accomplish within his term what he promises implies realistically that he becomes a dictator, which calls for a clash with — and eventual dismantling of — the Supreme Court.

If Poe was disqualified, it is likely that Duterte is the only alternative to Vice-President Jejomar C. Binay, Sr. whose own defense being “No court has found me guilty” fools nobody, let alone the SC justices. If Poe was not disqualified, she will likely win (she was still leading the polls as of March 6 despite the case hanging over her campaign) and the Supreme Court should feel safer in her hands than in either Duterte’s who will not stand judicial obstacle or Binay’s who will need to judicially extricate himself. That is one possible strategic motive bearing on the SC decision. There may be others.

And, of course, their own beliefs about the suitability of the candidates for president should be factored in. One thing is sure: Poe being allowed to run is nowhere near the judicial activism displayed in the doctrine of “humanitarian considerations.”

Raul V. Fabella the chairman of the Institute for Development and Econometric Analysis, a professor at the UP School of Economics, and a member of the National Academy of Science and Technology.

Oscar P. Lagman, Jr.

Last Tuesday at the resumption of the hearing of the oral arguments on the Commission on Elections’ (Comelec) cancellation of Senator Grace Poe’s certificate of candidacy and her disqualification from the presidential race, Chief Justice Ma. Lourdes P. A. Sereno asked Comelec member Arthur D. Lim, “If you’re saying that foundlings are not natural born citizens, have you thought about the impact on the rights of all foundlings?”

The Comelec’s decision on Ms. Poe’s candidacy was based on her not being a natural born Filipino citizen. Both the 1935 and 1987 Constitutions say that citizens of the Philippines are those whose fathers or mothers are Filipino citizens. As the biological parents of Ms. Poe are unknown, it is unknown if either one was a Filipino citizen when Ms. Poe was born. Until she is able to show evidence that her father or mother is or was a Filipino citizen, the Comelec considers Ms. Poe a non-natural born citizen.

Ms. Sereno observed that many countries recognize foundlings are citizens. That does not make local foundlings natural born citizens of the Philippines. Many countries have divorce laws. That has not allowed divorce in the Philippines.

It seems CJ Sereno has been influenced by the pleadings of Sen. Poe’s lawyers and perhaps by the story Ms. Poe’s sympathizers have told the public. The lawyers’ pleadings and the story are woven around the fact that Baby Grace was abandoned by her parents days after she was born.

Sympathizers of Ms. Poe have even put out a full-page ad in the daily newspapers in defense of the foundling.

“When you hear the word foundling, feel for all the children who have been abandoned in toilets and trash cans, doorsteps and alleyways, convents and empty fields, churches and elsewhere — who can never aspire to be congressmen, senators or even president if they are not considered natural born Filipinos,” the ad tells the readers. Ms. Poe’s lawyers and defenders of foundlings seem to be invoking the principle that those who have less in life should have more in law.

But the issue before the Supreme Court is not about the plight of the foundlings; it is about the nature of Ms. Poe’s Filipino citizenship and its implication to her qualification for the presidency of the Philippines. In the first place, Baby Grace was not abandoned in a toilet, trash can, doorstep, alleyway, convent, or open field. She was found in the holy water font of Jaro Metropolitan Cathedral, the seat of the archdiocese of Jaro whose archbishop at the time was the Most Reverend Jaime Sin. Baby Grace was first given to the heiress of a wealthy sugar baron who subsequently entrusted her to the newly wed showbiz celebrities Fernando Poe, Jr. and Susan Roces.

The affluent couple eventually adopted her and raised her in comfort, if not in luxury. She spent her high school years in a convent school known as the exclusive girls’ school for the rich. Ms. Poe herself said, “If I didn’t live there (United States) I would not have experienced nonentitlements, being an ordinary citizen.”

Besides, the impact of declaring foundlings as non-natural born citizens is not as great as Ms. Sereno thinks it is.

I know personally a foundling who was admitted into the Philippine bar. An American — by blood, physical features, and citizenship (he was a lieutenant-colonel in the US Armed Forces when he came to the country with the US liberation forces — founded a law firm in the Philippines in 1946. At about the same time another American citizen who also served in the US Armed Forces during World War II established a certified public accounting company. Both men achieved prominence in their respective profession, their firms becoming among the biggest in their respective field. Their American citizenship is public knowledge.

Another foreign national practiced medicine in the country. I also know personally an American citizen who was elected mayor of a town in Northern Luzon, although his American citizenship was kept secret from his constituents.

If foreign nationals can practice law, public accountancy, and medicine in the country or be elected to public office, many foundlings with unmistakable Filipino features can aspire to be lawyers, certified public accountants, doctors, and even mayors, and congressmen, contrary to the fears of Ms. Sereno and the defenders of foundlings.

There must be a large number of foundlings who are practicing law or public accountancy or occupying sensitive government positions whose citizenship was never questioned because their physical features are unmistakably Filipino, they never became citizens of another country, and they never aspired to be president of the Philippines.

At one point in the hearing last Tuesday, Commissioner Lim asked Ms. Sereno, if her advocacy is for foundlings. The Chief Justice replied, “My advocacy is for the rule of the law.”

Philippine laws are silent on foundlings though.

While those who have less in life should have more in law, still a law that evens things up for them has to be passed. The 13th Congress enacted a law, RA 9442, that entitles persons with disabilities to a 20% discount in certain service establishments such as hotels and restaurants.

Ms. Sereno said, “The Court now has to categorically answer the question about her (Poe’s) status because the pronouncements we will make will affect many others.” True, judicial decisions interpreting the laws form part of the legal system. As there is no law on foundlings, the Supreme Court has no law to interpret and therefore is unable to answer the question on Ms. Poe’s status.

Ms. Sereno cites cases wherein the Filipino citizenship of foundlings was presumed. That does not make it right. The Supreme Court is not infallible. It has reversed many of its decisions, Ms. Sereno herself a party to some of those reversals.

The Constitution is explicit as to who is a natural-born Filipino citizen. The law may be harsh on foundlings but it is the law. To remedy the adverse situation, the law has to be amended or replaced. But the power to amend or replace laws is vested in the Congress of the Philippines, not in the Supreme Court.

Associate Justice Marvin M. V. F. Leonen suggested that the issue should be thrown to the electorate. That is in consonance with the opinion of Retired Chief Justice Artemio Panganiban which opinion the ALL4GP Movement quotes in its series of ads in daily newspapers. Mr. Panganiban has written several times in his column in the Inquirer that “doubts on legal issues involving elections and popular sovereignty should be solved in favor of letting the people decide them freely through the ballot.”

The suggestion raises many questions. Who are the people who can vote? Who can run? Can any piece of paper be considered a ballot? Who will count the votes?

The people cannot just freely decide. Certain rules have to be set.

If the honorable Panganiban and Leonen say the existing rules on eligible voters, ballots, and ballot counters should be followed, that would be selective application of the rules governing elections. Besides, the people had decided once — on Feb. 2, 1987.

On that day 76.37% (or 17,059,495 voters) favored ratification of the final draft of the 1987 Constitution. To set aside the provisions of that Constitution would be to thwart the will of the people.

It would be strange for the President elected not in accordance with the electoral process defined in the 1987 Constitution to say on his inauguration: “I do solemnly swear that I will faithfully and conscientiously fulfill my duties as President of the Philippines, preserve and defend its Constitution…”

It matters not to me whether the president is a natural born citizen of the Philippines or a naturalized Filipino. It is his or her loyalty to the country that counts. Loyalty to the country and love of the Filipino people do not arise out of circumstances of birth. They spring from one’s character.

Ms. Poe renounced her fidelity to the country of her birth. And now she implores the highest court of the land to recognize her as a natural born Filipino citizen so that she can be president of the country she abandoned to live with her American husband. That is the character of the person who is asking the Filipino people to be their leader.

Oscar P. Lagman, Jr. is member of Manindigan!, a cause-oriented group that takes stands on national issues.