There is no longer any point defending the Constitution

Judicial ActivismSo Sen. Grace Poe Llamanzares (GPL) has been cleared to run for the presidency of the Philippines by the Philippine Supreme Court. We may not agree with the decision but I think it is time to move on. The majority of the gods of Padre Faura have spoken. Who cares if the clear text of the law and the weight of evidence against GPL shows that she cannot be considered as a natural born Filipino? GPL has won. Logic, as well as the sanctity of the Constitution, has lost.

Fr. Rannie Aquino, Dean of the San Beda Law School, clearly explained the simple logic behind why GPL ought not to be considered a natural born Filipino, therefore not qualified to run for the Presidency. He states:

To be President of the Philippines, one must be a natural-born Filipino.

Therefore: Owing to the necessity of the requirement, the very possibility that a candidate is not a natural-born Filipino should be excluded.

Under the 1935 Constitution, one was natural-born only if one was born of a Filipino father. (For purposes relevant to the present discussion).

Ms. Poe is POSSIBLY natural-born, but AS POSSIBLY not natural-born, precisely because she is a foundling.

A foundling is one whose parentage is unknown and whose birth circumstances are unknown, who is found, as an infant.

Since one cannot argue from POSSIBILITY (she is possibly a natural-born Filipino) to NECESSITY (she is necessarily a natural-born Filipino), then she does not comply with the requirement of the Constitution.

How the “brilliant” nine gods of Padre Faura missed this simple logic is anybody’s guess. Perhaps this is not a matter of logic but simply a matter of emotions trumping logic. This seems to be very evident in how Chief Justice Sereno has argued her seeming inclination during the argument period. She stated:

“If we rule against the rights of foundlings, will there be a disincentive?

“There are more parents who want to adopt. More times they do not understand the problems. What this court will say will speak to them how we view the constitutional duty, that the language is silent so that the rights of foundlings are completely silent…”

Never mind the big red herring in her argument when she magically shifted the original issue of the constitutionality of GPL’s candidacy for the presidency to the rights of foundlings. (Would someone now argue for the rights of those who cannot read or write and those who are 39 years old and below, as the Constitution seems to be discriminatory of their rights to run as the Chief Executive of the country as well?) Let us focus on how the emotional argument has all of a sudden trumped the clear text and intent of the law.

The problem with interpreting the law based on emotion, popular sentiment, or any shades of Argumentum ad misericordiam, is that it opens the gate for treating the Constitution as a living document. One of the biggest criticism of treating the Constitution as a living document is being prone to seek legislation from the bench. In this case of the Constitutionality of GPL’s candidacy, the Court effectively changed the law on citizenship. Such function rests with the legislature, not the judiciary. Surely the law can be changed through amendments but such changes have to be done through the proper process, through the legislature. This certainly looks like a case of judicial overreach where an arbitrary intervention is made by the judiciary into the legislature’s domain. This is certainly a case of judicial activism.

One may argue that the Supreme Court did not overreach but merely performed its judicial review duty. But the Court’s authority for judicial review is to examine an executive act (or legislative act) and to invalidate that act if it is contrary to constitutional principles. When assessing an act according to constitutional principles it is important to look back at the original intent of the law. I think the late SCOTUS Justice Antonin Scalia offered the best argument (as described by Judge Andrew Napolitano):

Justice Scalia argued that the Constitution means what it says; it says it is the supreme law of the land; and all American judges have taken a solemn oath to be subject to what it says. It is superior to the jurists who interpret it. It is what it says, not as they might wish it say. Thus, all judges are bound by the text. Hence the word “textualism.”

So “no law” means no law. “Due process” guarantees fair process, not substance. A constitutional guarantee is a real guarantee. The exercise of rights articulated in the Constitution cannot be subject to popularity contests.

If the text of the Constitution is ambiguous, it then becomes the duty of the jurist to ascertain the original public meaning of the words that form the ambiguity. Hence the word “originalism.” Ascertaining original public meaning often requires the skills of a historian; yet, thanks to James Madison, the historical record is ample.

The rejection of this line of thinking permits jurists to interpret the Constitution in novel and creative or even destructive ways, according to their own ideologies. It permits them to adapt a meaning in the text that they wish had been there to fortify contemporary societal attitudes. Justice Scalia argued that that is not the job of jurists.

Federal judges have life tenure because they represent the anti-democratic part of the federal government. Their job is to preserve constitutional norms and structures and guarantees from interference by the popular branches of the federal government or the States, even when those branches or the States command popular support.

The job of the jurist, he argued, is not to adapt the text of the Constitution to public trends or cultural changes. That is the job of the Congress and the States through legislation.

In the Philippine setting, the same principle has appeared time and again. In 2012, there was an issue regarding what seemed like a Constitutional ambiguity regarding congressional membership on the Judicial and Bar Council (JBC). The issue back then was whether Congressman Tupas should be part of the JBC together with Senator Escudero as the Constitution states that a member of Congress shall sit as a member of the JBC. (The Philippines has two chambers of Congress – the Lower House where Tupas belongs and the Upper House where Escudero belongs.) The Court ruled that having both Tupas and Escudero sit as members of the JBC is unconstitutional. It arrived at this ruling by looking at the original intent of the law, citing the 1986 constitutional deliberations to demonstrate the intent of the framers. How come this principle in interpreting the Constitution was suddenly abandoned for the privileged GPL?

Yes, GPL’s counsel tried to argue for her case using excerpts from the 1934 Constitutional Convention regarding the natural born citizenship status of foundlings hoping to convince the Court that the intent of the framers of the 1935 Constitution was to treat foundlings as natural born citizens. But his argument was a clear misrepresentation of the collective intent of the framers! In fact, the proposed amendment favoring natural born status to foundlings was put to a vote and was rejected. The fact that it was discussed and voted upon does not mean that the framers collectively intended to favor foundlings such as GPL regarding natural born status. The fact that the proposal lost the vote means that the prevailing original intent of the majority of the framers did not support GPL’s case.

grace_poe_49

This landmark ruling by the Philippine Supreme Court may give a very chilling effect on the way the Constitution is regarded. The moment the Philippine Supreme Court ruled in favor of GPL, the solemn oath to preserve, protect, and defend the Constitution has lost its meaning to the prevailing winds of politics and the whims of emotion.

[Top image taken from buzzle.com.]

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Post Author: Hector Gamboa

Calling a spade, a spade...

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87 Comments on "There is no longer any point defending the Constitution"

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Tank
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I am very curious as to how the SC decided that you can be natural-born without positive proof that you are. Where did this presumption come from?

Certainly not the constitution, that’s for sure.

marius
Guest

Wasn’t the general theme of the last few posts that one should judge people on their actions and abilities, not on their blood?

Given the general consensus that the pure-blood Filipinos in Congress are all thieves, cheats and liars, maybe it’s time for a “non-Filipino” to take a turn at the wheel.

martin
Guest

just wondering, did Cory swear her allegiance to protect the 87 constitution or the 72 constitution? is there a referendum on february 1987 for the people amending the 87 constitution?

Jim DiGriz
Guest

It’s about the law and only the law. It is most certainly not about if she capable or anything else.

So what ever people say about her ability is something that has no place in this discussion.

The law has been broken and ANYONE in favor of following the law of the land, should NOT vote for her.

Even the Lawyers Association of the Philippines was of the clear opinion that she has not right to run.

This is another case of IN THE PHILIPPINES ONLY and this Supreme Court seems to be bought and paid for.

Virtual Vigilante
Guest

As Randy David said before, let’s just appoint Estelito Mendoza (legal counsel extraordinaire to the who’s who of Philippine super crooks) as the supreme arbiter of the entire Philippine judicial systems and do away with the Supreme Court, so everyone who has the money just pays a fee for the decision they want. Less expensive for the taxpayers.

William Jackson
Guest
Answer these 3 questions please. 1. It is the year 2016, why not use a simple scientific DNA test to prove whether a person is natural born Filipino or not? 2. If a foundling found in the Filipinos is not a natural born citizen of the Philippines,then what country is that child a citizen of? 3. I have seen many women who have children that do not know who the fathers are. What is done with these children citizenship? Does anyone understand that this is the year 2016 and that eventually the law must change to adapt to the environment.… Read more »
88Toro007Hyden9999.99
Guest
88Toro007Hyden9999.99
In my humble opinion, the Supreme Court , decided the right decision of foundlings. If an abandoned child, is found on your doorstep; would you believe, it came from China or Indonesia? A DNA test, can confirm…Grace Poe had Filipino parents. This can put the matters, to rest. This case, is a political strategy of Aquino and Mar Roxas, to cancel every candidate on their way. And, make Mar Roxas, the only remaining candidate. Let the Filipino people decide, if Grace Poe, is not a Filipino or not. If the people reject her: she is not, indeed a Filipino. If… Read more »
Kari Normann
Guest

We can still do something as netizens, sign in the petition at
https://www.change.org/p/supreme-court-disqualify-grace-poe-for-presidential-elections

Tish
Guest

Constitution can be amended by the authority most of the time to the benefit of sitting President.

zaxx
Member

She looks as typical a Filipino as anyone you see walking in Megamall – so she must be Filipino. Case closed.

No blond hair – check
No blue eyes – check
No towering stature – check

Pinoy logic at its best

Robert Haighton
Member
Can I ask something else but I am sure the question itself is also a stupid one. I am just wondering why the biological mother never came forward and stated that she was/is the biological mother (this claim can be tested otherwise even I can step forward). Same about the biological father. Why is this a stupid question? Bec it didnt happen. If it did, I am sure one of you had mentioned it. After all these years, I am sur ethe biological mother must feel some sense of pride about her own daughter and maybe wanting her “back”. Again… Read more »
Add
Guest
Who said that Sereno Court and Supreme Court are synonymous. There was a Supreme Court and there is a Sereno Court. Outcome should not have come as a surprise in the way things were moving in the last 2 or 3 months. 1st, the line of questioning coming from Leonen and Sereno, appointees of PNoy. 2nd, Solgen comes out in defense of Poe, The very lawyer of government. That means the very government came out using the weight of the government 3rd, CHR, out of nowhere, invites itself to the case. Strange. She may be the Manchurian candidate of the… Read more »
Add
Guest

SCOTUS has been into judicial activism since the 1970s. The latest was the Obergefell on SSM. the feeling the legal minds are having just now is the same as the Americans legal minds had just after Obergefell. It is definitely an over-reach.

Add
Guest

@Hector
Great article, by the way.
One million likes.

Deep Throat
Guest
You know it helps by actually linking the official SC decision and debating what SC officially wrote rather posting this nonsense article. Your point is you want that one must prove innocence before proven guilty? So If I accuse you of murder, you must prove yourself before I prove yourself? If I accuse the website of terrorism the website owners must be guilty because they could not prove innocence? Rights only fits whenever you say so. But if you dislike a decision it doesnt fit them. That debates are all about conjectures and use links of unofficial site? But hey,… Read more »
joeld
Guest

More candidates for one position means numbers will be easier to tweak come election time for a chosen one to win.

For the presidency we do not need the vote of the majority, to win one just needs more than 25% of the votes.

Hector Gamboa
Guest
Okay guys, a friend of mine just informed me of the link of the summary jurisprudence regarding GPL’s case. (The 47 page document DT was referring to.) I have read it and my impression of the judgment is, as I suspected, judicial activism. I will try to write about why I think so next time. I also find it interesting that the majority opinion seems to have based their decision on GPL’s citizenship status on international laws (which in cases, are not applicable to natural born status conferment as defined by our laws, as well as being not binding to… Read more »
Kid Dynamo
Guest
Very good article, moreover, I like the exchanges in the comment section and how the writer clearly clarifies the issues about the Constitutional requirement for candidates to be natural born citizens. I completely agree with the points of the writer:- 1. It’s what you believe/know that is important in courts, IT’S WHAT YOU CAN PROVE. 2. The issue was never about GPL being a Filipino Citizen but about GPL being a NATURAL BORN Filipino Citizen, which she cannot prove at the moment due to lack of papers and DNA match 3. The Constitution is very clear with its requirements, regardless… Read more »
77Hyden007Toro999.999
Guest
77Hyden007Toro999.999
@Hector Gamboa: A foundling found in the Philippine soil, is born in the Philippine soil. Grace Poe cannot be born, outside the country. It is not a presumption, it is common sense. With regards to the documentation. Birth Certificates can be falsified. Witnesses can be bought. Some children in the Philippines, were born with the aid of “hilot”; not in hospitals, with doctors. I was born with the aid of a “hilot”…My “hilot” , who aided my birth, has already passed away. There was a case here, with Sen. John Edwards (D), who had a mistress; his videographer in his… Read more »
martin
Guest
all natural born Pilipinos are tainted with foreign bloods. only the Aetas are the real Pilipinos. the admin allies in the SC and comelec are creating chaos to save their king. another new news twisting the mind of the Pilipinos, the PDP-Laban is cory’s political party. why is it now accusing pnoy of something? is it mother now against the son? this scenario happening now is clear they want to stay in power by all means. these people in the executive, legislative, ang judiciary should not continue beyond after the 2016 May election if the Pilipinos are longing for a… Read more »