I refer to Estrella Elamparo, the lawyer who courageously challenged Grace Poe’s bid for the presidency, the deafening chorus of support for Poe-Llamanzares by noisy choristers. She petitioned the Commission on Elections to disqualify her, and she gamely—and competently—faced the Supreme Court. She does not know whether the Memorandum she was directed to submit will be heeded. Neither do I. These days, it is not necessarily the better argument, nor the better reason, that prevails.
Often, recitals of facts are tedious, and it is not only lawyers who churn out boring chronologies of events and papers filed. Many judges do much the same, making of their judgments an ordeal to read. In fact, when once the Philippine Judicial Academy invited the late Justice Isagani Cruz, distinguished for his inimitable prose, to lecture on “Literary Highlights in Supreme Court Decisions,” he did not need plenty of time to refuse the invitation: Hardly any literary masterpieces would be found, he rued! Star is different: Her statement of facts is succinct and as complete as that data she had—the fruit of fastidious research—allowed.
Grace Poe acquired US citizenship by naturalization on Oct. 18, 2001. She returned to the Philippines in 2005 to re-establish, she claims, residence in her country. Significantly, Star points out, she opted to return not with a permanent resident’s visa or a returning former Filipino visa, but through the balikbayan program. When we move away from a concept of “intent” that requires that we divine the inner proceedings of another person’s mind and use the intriguing term to name a series of verifiable facts, as Ryle usefully suggests, then by opting not to return as a permanent resident, Poe did not intend to reside permanently here!
That is not all. When she applied for reacquisition of Philippine citizenship under the provisions of the Dual Citizenship Act, she declared that she was “born to Filipino parents” because the beneficent provisions of the law apply only to natural-born Filipinos. She knew that this was not so because she could not trace her parentage, but, relying on this misrepresentation, she obtained from the Bureau of Immigration an order granting her petition. “Ex injuria non oritur jus…No right will come from wrong-doing.” That is not a nicety of law, not a technicality about which legal scholars quibble. It is a principle of justice and of human decency!
But this was not the only misrepresentation. From 2006 to 2009, she made use of her US passport. One will be tempted to argue that she was entitled to do that, as she was a dual citizen. But in the cases that the Supreme Court ruled on dual allegiance, it has repeatedly held that continued use of the passport of the State whose allegiance one has foresworn so that allegiance to the Philippines might not be divided, belies one’s purported repudiation of allegiance to a foreign sovereignty!
When she ran for senator, she declared that she had resided in the Philippines for six years and six months. This, despite the fact that the American Vice-Consul attested, in a Certificate of Loss of Nationality, that Poe had expatriated herself on Oct. 21, 2010. It is a settled rule in international law that whether a person is a citizen of a country depends on the laws of such a country, as does the issue of whether or not she has lost nationality of the same country.
Of course, it is now well known that Ms. Poe claims that it was a “mistake” for her to have declared that she had resided in the Philippines for only six years and six months. Against this self-serving excuse, Star argues: first, she had the chance to correct the mistake earlier, if mistake indeed it was; she never did; second, she swore in the same certificate that all averments were true and correct. She should be held to her oath. In fact it takes some counting to declare six years and six months, rather than “from birth,” as some of her eager supporters suggest. But she was specific—because she knew this was the truth.
Does Ms. Poe have to prove her citizenship? Star repeats the traditional distinction between “burden of proof” and “burden of evidence,” but aside from that useful, if forgotten, distinction, this should be clear: When Ms. Poe admitted that she is a foundling, she concomitantly declared that her parentage and birth were unknown—because that is exactly the definition of a foundling, and so it became incumbent upon her to prove that she possesses the qualifications of a candidate and is burdened by none of the disqualifications.
Now comes the Commission on Human Rights with its belated attempt to squeeze into the limelight. In the first place, it bade the Court accept its brief as “amicus curiae.” In this jurisdiction, under the Rules of Court, amici curiae are “invited” by the Court. They do not ask to be invited. And then it goes on to make the brazenly erroneous statement that there is an obligation “erga omnes” (the use of the Latinism from international law, obviously meant to lend “gravitas” to this hilarious posturing) to grant nationality. And even assuming that the CHR’s reference to international law is correct (which it is not!), there is a glaring non sequitur here: a state may grant its nationality by naturalization processes, with the result that the grantee is a naturalized, not a natural-born citizen. However, it has always been a principle of international law that whether a State grants its nationality or not is a matter of the sovereign decision of a State, in regard of which there can be no compulsion. In any event, it is clear that there is nothing in our laws, nor anything in the treaties to which we are party that makes of a foundling ipso facto a natural-born citizen of the Philippines.
From what we know of Ms. Elamparo, she has no issue with Ms. Poe. Neither does Dean Amado Valdez. Neither does Kit Tatad. But all have a stake in the Constitution, something that should be true of us all. And disturbing indications notwithstanding, I continue to hope that the Supreme Court will defend the Constitution as it is written, not the constitution as some of the members of the Court would want it to be!
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
rannie_aquino@yahoo.com