So 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.
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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