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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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