MS 30th Anniversary XXX

The justice acted justly!

I cannot, for the life of me, understand the paroxysm that has taken hold of partisans of Senator Grace Poe and her admirers over the remarks made by Justice Antonio Carpio at the hearing of the Senate Electoral Tribunal.   I have witnessed several oral arguments before the Supreme Court. The earliest was the habeas corpus petition of then-Senator Benigno Aquino.   It was my first exposure to the incisiveness of Estellito Mendoza who was then solicitor general.   I appeared in one as a petitioner—Francisco v. House of Representatives, the petition against the impeachment complaint filed against retired Chief Justice Hilario Davide, Jr.   I filed a distinct petition and maintained the theory —I have not changed my mind since—that whether an offense is a ground for impeachment or not is a justiciable question, there being constitutional and textually provided grounds for removal by impeachment. At a hearing, it is not uncommon for justices to propose theories and to ask the parties, most of the time through counsel, for comment.

Definitely, Justice Carpio was not laying down a ruling.   He is one of the Court’s most distinguished members. He has been on the Court long enough to know that one does not render a ruling at a hearing, much less by one’s lonesome self.   Like the Supreme Court, the Senate Electoral Tribunal is a collegial body.  He had every right to propose the theory, admittedly convoluted: Conventions to which the Philippines is a party apparently give foundlings in the Philippines the nationality of the country, and this, in effect, is a process of naturalization. He was interpellating Manuelito Luna, counsel for Grace Poe.   He was asking for comment; he was demanding reaction.   He was challenging Luna’s thesis by confronting it with an anti-thesis.

What then is the legal ground for demanding that he recuse himself?   Were that the new rule, then an oral argument would be a sterile, puerile exercise in nothing more than oratory.   Any judge or justice proposing a theory would then be liable to the accusation of prejudice.   It is at the very heart of legal logic that an interpretation of the law is tested by looking into its coherence with other accepted principles of law and with the canons of construction and interpretation.

I fear the auguries. We should have learned our lessons; it seems, we did not.   When we cast our votes in a period of mourning, or while our vision is beclouded by stardust, we do not make very good decisions!   I fear that something like that is happening now.   We have been urged not to denigrate Poe by calling her a foundling.   But that is exactly what “status” does in civil law.   One of the subjects I teach in the Graduate School of Law of San Beda College is “The Philosophy of the Civil Code” and one item on the syllabus is the role that “status” plays in the Civil Code.   People have to be categorized, characterized and classed so assign them some notch and to be able to identify their rights and their obligations in a legally structured universe.   When someone is “found”, she is a “foundling”.   As for all our OFWs in positions very similar to Grace Poe’s while she was abroad, that is, quite truthfully, beside the point.   The questions have to be raised—and in fact have been raised.   “Is she a natural-born Filipino?”   “Does she comply with the requirements of residence, as legally defined?”   These are real legal issues and it will not serve us well to wash them away in a flood of tears or in a barrage of ad hominem against an eminent member of the Supreme Court.   No, Justice Antonio Carpio did what every truly thoughtful and incisive member of a court should do—ask the necessary questions, and test theories advanced with unremitting rigor.   That is what it is to be just!

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