Friday, February 5, 2016

Chief Justice Sereno’s ‘filibuster’ A contrast in style | The Manila Times Online

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Chief Justice Sereno’s ‘filibuster’ A contrast in style

February 4, 2016 11:09 pm

Commissioner Arthur Lim was urbane, delightful and pleasantly instructive as he defended the Commission on Elections en banc decision disqualifying Sen. Grace Poe Llamanzares, and cancelling her Certificate of Candidacy as a presidential candidate, in last Tuesday’s Oral Arguments before the Supreme Court. Chief Justice Maria Lourdes Sereno on the other hand came a bit too strong as she pleaded for a “rereading” of the Constitution to grant foundlings of unknown parentage the status of “natural-born citizens” for the benefit of Mrs. Llamanzares. It was a high moment for Lim, but regrettably a low moment for the lady chief justice.
In his seven-minute opening statement, Lim said that over and above its political undertones, the Llamanzares case is firstly, and ultimately, constitutional and legal, and should be resolved as such.
He warned against the danger of allowing a constitutionally ineligible presidential candidate to run and get elected first, before her constitutional eligibility is passed upon by the Presidential Electoral Tribunal, as argued by Mrs. Llamanzares. Although the PET, which is made up of the entire Supreme Court, has the constitutional authority to unseat an “elected” president, it is doubtful, said Lim, that a newly elected President would allow himself to be subjected to a quo warranto proceeding at the PET. Would another EDSA be the result? he asked.
Sereno failed to rise to the same level. Her only concern was: What would happen to all the foundlings–officially reported at 4,000 or so, to date–if Mrs. Llamanzares, who came into the world as one, is not allowed to run for President, just because she is not a natural-born citizen, as required by the Constitution? Quoting some unnamed friends in some unknown circle, she said that not allowing Mrs. Llamanzares to run because of her constitutional ineligibility would “reverberate around the world.” Lim’s fear, which many share, is the exact opposite: allowing her to run despite her constitutional ineligibility would completely destroy the constitutional order and the rule of law, and possibly justify, and demand, a revolution.
A ‘filibuster’
Sereno spent nearly all of two hours trying to make her audience’s hearts bleed for the poor foundling who could not run for President. It began to look like a “filibuster,” except that it had nothing similar to the famous 1963 Senate filibuster of Sen. Roseller Lim, or Khrisna Menon’s even more famous performance at the UN Security Council in defense of India’s position on Kashmir. She went through a long list of countries which have recognized foundlings as citizens, and an equally long list of government positions to which non natural-born Filipino citizens (not just foundlings) may not be named. The only thing lacking was a large receptacle to collect all the tears that Sereno may have expected to come flooding down the courtroom in response to her argumentum ad misericordiam.
She even went to the extent of repeating a citation from the proceedings of the 1934 Constitution Convention, which had already been shown to be irrelevant and false in a previous session. This refers to an exchange among delegates Manuel Roxas, Nicolas Raffols and Ruperto Montinola on Raffols’s idea that foundlings should be considered citizens. Llamanzares’s counsel Alexander Poblador had earlier tried to milk this in support of his claim that foundlings are natural-born citizens, only to be shown by Senior Associate Justice Antonio Cardio that the idea was actually voted down by the Convention.
Then and now
This was the second time I have seen Sereno in court struggling to dodge the obvious truth related to the Constitution. In the 2013 Oral Arguments on the Reproductive Health Law, where I gave the opening statement on behalf of the petitioners, Sereno’s concern was how could the Supreme Court, a non-elected branch of government, invalidate an act of the two elected branches, the Legislative and the Executive?
The issue there was simple enough: the Constitution designates the State as the primary protector of the life of the unborn, and therefore of conception; it cannot therefore be source of contraception and the preventer of conception. We lost that case when the Justices declared that the law was “not unconstitutional” while violating its fundamental provision declaring the State as the primary protector of the unborn.
In the case at bar, Sereno’s concern seems to be how to transform a foundling with no known parentage into a natural-born citizen, by rewriting the letter and spirit of the Constitution. In the first instance, she seemed full of doubt that the Constitution empowered the Court to declare an act of the Executive and Congress unconstitutional; in the present instance, she seems more than eager to rewrite the Constitution on behalf of one foundling.
Sympathetic, but—
She tried to persuade Lim to agree, but all Lim could say was that while he shared her feelings for the foundlings, the Constitution must be followed as the highest law of the land, and that any need to amend the law should be done by remedial legislation. She went back to him several times. For a while, I thought I was listening to some gender feminists pleading for the “right of women” to become priests, and calling upon the Vatican to allow their ordination; and the Vatican saying that not even the Pope can authorize such innovation.
As chief guardian of the Constitution, Sereno should be the first one to know that the Constitution cannot allow even the highest Court to interpret any of its provisions against its letter and spirit. Judicial activism occurs, but even that has its limits; otherwise despotism runs riot. Unhappily, the Chief Justice appears to have fallen into a fallacy concerning foundlings. She appears to believe she is fighting for all foundlings when she is simply expending all her energies on only one foundling, Mrs. Llamanzares.
So many others barred
What is clear to all though is that so many others who are not even foundlings are barred from running for President. These include all naturalized Filipinos; all natural-born citizens who are not registered voters; who are unable to read and write; who are less than 40 years of age; who have not been living in the country for at least ten years prior to this May 9 election; and all who, while complying with the constitutional qualifications for the office, do not have the money and political organization of Mrs. Llamanzares and have been declared “nuisance candidates” motu proprio by the Comelec.

Yet there is not a single soul or heart bleeding for them.

Carpio and Brion
It took but a short intervention on the part of Justices Carpio and Arturo Brion to brush aside the veil of sophistry and confusion that temporarily shrouded the Court during the “filibuster.” Through Carpio, it became very clear that all the countries that have accorded citizenship to foundlings have done so through legislation; and that aside from those who are required under the Constitution to be natural-born citizens in order to qualify for official positions, all the rest which Sereno had read into the record are merely required by statute to be natural-born. This requirement can be undone by legislation.
In Mrs. Llamanzares’s case, only a DNA match showing her having been born of a Filipino father can undo her situation, although even that may be too late to have any immediate effect on her disqualification. She is not a Filipino citizen under the 1935 Constitution, which was in force in 1968 when she was born. And she cannot, by the wildest stretch of the imagination, qualify as a “natural-born citizen” under the 1987 Constitution, which defines the term as “a citizen of the Philippines from birth without having to perform any act to acquire or perfect (her) citizenship.”
From birth onward
Carpio made it abundantly clear that to be “natural-born” one must be a citizen not only “at birth” but rather “from birth” and continuously thereafter, without having to perform any act to acquire or perfect one’s citizenship. In Mrs. Llamanzares’s case, her citizenship at birth and from birth is unknown. Her first known and uncontested citizenship was as a naturalized American in 2001, when she was already 33 years old; it was also her last known and uncontested citizenship, when she renounced it very much later.
But even her supposedly reacquired Philippine citizenship remains clouded by questions of regularity. How could she possibly reacquire a citizenship she never had? Did she not get her Bureau of Immigration papers because she misrepresented herself as a “former natural-born citizen”?
Abuse of discretion?
Through Brion, it became emphatically clear, on the third SC hearing, that the Comelec ruling disqualifying Mrs. Llamanzares and cancelling her COC as a presidential candidate is otherwise final and non-reviewable, but for the fact that the High Court has temporarily restrained its implementation on an allegation of grave abuse of discretion, amounting to excess or lack of jurisdiction. So did the Comelec commit a grave abuse of discretion? Did it act outside of its jurisdiction? Did it commit errors because of hostility to the affected party or a whimsical exercise of judgment?
Unless these questions can be answered in the affirmative, it would be an empty and foolish pursuit to try to read the Constitution in any way other than the spirit and letter of the law intended it to be read. It appears the Chief Justice was temporarily distracted by what happened in court earlier such that when she adjourned the session she failed to mention the date and time it would resume. It is safe to assume it would resume next week, to allow the Court to decide soon. In the end, the Constitution must stand, and all efforts to obfuscate, befuddle or rewrite it must fall.
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