‘Vox populi’ and the Constitution

At a press conference for Philippine media last Sunday night in Kuala Lumpur, President Aquino was asked, among other things, what he thought of the cases questioning Sen. Grace Poe’s eligibility to run for president. His answer was: “At the end of the day, sovereignty resides in the people. Let the people decide.” This sentiment seems to echo the belief of many, that the natural-born citizenship issue against Grace Poe should not cause her disqualification from the 2016 presidential race.

Three senior Supreme Court justices sitting in the Senate Electoral Tribunal (SET), however, think otherwise. They contend that eligibility is a question of law, and that, under our system, questions of law should be adjudicated, not decided through the ballot box.

To help make sense of the issues, it may be useful to distinguish “eligibility” from “electability.” “Eligibility” refers to one’s qualification to run for public office. This is what the Commission on Elections and the electoral tribunals try to determine in the exercise of their adjudicatory powers. On the other hand, “electability” (or, as we like to call it here, “winnability”) refers to one’s capacity to be elected to the office one seeks. This is what voters decide in an election. We should not confuse the two.

The Constitution sets the minimum eligibility requirements for anyone seeking the presidency: He/she must be “a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election.” (Art. VII, Sec. 2, 1987 Philippine Constitution)

Some citizens have challenged Grace Poe’s claim to being a natural-born citizen of the Philippines, as well as the length of her residency in the country prior to the 2016 elections. Setting aside the question of residency for now, let’s take a look at the citizenship issue.

Citizenship means basically membership in a political community, carrying with it certain obligations, rights, and privileges. Chief among these are the right to protection by the state and the right to vote and be elected to public office.

Grace Poe insists she is a Filipino. Like many ordinary people, I find no reason to doubt that. But, being a Filipino and being a citizen are two different things. Being Filipino is a self-description that encompasses a whole array of social and cultural traits and sentiments. Chief among these is ethnolinguistic and historical affinity with the Filipino people. Philippine citizenship, in contrast, is a legal and political concept. Far from disparaging its value, I hasten to say that it does presume, normatively, allegiance to and identification with the Filipino nation.

Clearly, one can be part of the “imagined” community called the Filipino nation while living abroad and holding a foreign passport. From this standpoint, it matters little whether one is still a Filipino citizen or not, or, even less, whether one is a natural-born citizen. It is the legal perspective that has an interest in the details and circumstances of one’s citizenship. This perspective is triggered when, for instance, one runs for a position expressly reserved by the Constitution to natural-born citizens.

In the case of Grace Poe, the main legal issue is whether a child abandoned on Philippine soil, whose biological parents cannot be ascertained, may be conferred the status of a natural-born citizen. A related issue is whether a natural-born Filipino citizen who renounces her citizenship in the course of acquiring foreign citizenship—but later reacquires it—may still qualify as a natural-born citizen as defined by the Constitution.

In a judicial proceeding, the facts of the case are first established, and then the applicable laws and jurisprudence are determined in order to arrive at a judgment. This procedure is constrained by law itself and is not to be performed arbitrarily. Judges are expected to state the facts and the applicable laws as they see them, and to demonstrate the reasoning behind their decisions.

This brings up the dilemma posed by the quo warranto petition filed at the SET challenging Grace Poe’s right to the senatorial seat she won in 2013. The SET has nine members—three Supreme Court justices and six senators chosen proportionally according to party affiliation. The most senior justice chairs the tribunal. This composition recognizes the importance of the political perspective in the appreciation of the facts and norms of a case, while highlighting the imperative to ground SET decisions in the law.

Five senators, constituting the majority, voted to throw out the petition. The three justices of the high court, plus one senator, voted to disqualify Grace Poe from holding a Senate seat on the ground that she is not a natural-born Filipino citizen. I’ve only had the chance to read Justice Arturo Brion’s lucid dissenting opinion and the brief concurring opinions of Senators Bam Aquino and Cynthia Villar. Brion covers all the possible legal and constitutional issues. Aquino and Villar ground their arguments primarily on the moral rights of foundlings, inferring from the Constitution policy intentions not expressly articulated in its provisions.

One does not need to be a lawyer to see where the law leans in this case. Commonsense, however, may not always appreciate the wisdom behind legal reasoning. There’s a right time and occasion to amend the law when needed. But, to pit vox populi against the Constitution is to court political instability.

* * *