Justice Brion’s dissenting opinion

The Senate Electoral Tribunal (SET) recently voted 5 – 4 proclaiming that Grace Poe was a natural born citizen and eligible to be a member of the Philippine Senate. While no one can contest the validity of this decision, there has been a lot of discussions regarding the negative vote of all the three Supreme Court Justices who were members of the SET.

There has also been speculation on whether the Grace Poe presidential eligibility case would eventually be brought to the Supreme Court ; and, whether the votes of the three Supreme Court Justices on the SET was an indicator of their final decision.

I received a copy of the dissenting opinion penned by Associate Justice Arturo Brion. I have no intention of trying to interpret the legal opinion of a legal luminary like Justice Brion. I am not a lawyer. While this column does not have the space to reproduce the entire 68-page Brion opinion, I thought I might share a few of the more interesting excerpts.

On the need to explain vote: Justice Brion wrote: “I feel bound to explain my vote as before this Tribunal is a nationally elected public official who received the highest number of votes in the 2013 senatorial elections. The Filipino people who elected her deserve a full and exhaustive explanation of the votes of the SET members cast.... I specifically refer to the understanding of how our treaty obligations and the general principles of international law form part of the Philippine legal system and how they interact with the Constitution.

Vox Populi vs. Constitution: “..... the will of the people expressed through the ballot cannot cure the vice of ineligibility, especially when this question was not raised when they voted the respondent into office.... And there can be no law higher than the Constitution that was ratified by the Filipino people as the ultimate governing rules in running our country. The citizenship requirement is a constitutional requirement for nationally elected representatives to the legislature. This requirement, first provided in the 1935 Constitution and reiterated in the 1987 Constitution, cannot be amended or cured by electoral mandate to allow an unqualified candidate to hold office.”

Justice Brion’s position and vote: The Petition for Quo Warranto filed by David against Grace Poe cited Article VI, Section 3: “No person shall be a Senator unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least 35 years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election.” After a recitation of the Case

Facts and the Petition for Quo Warranto, Brion explained : “the question regarding the respondent’s Philippine citizenship is itself based on two grounds”:

First, that the respondent is not a natural born citizen because she is a foundling; and, Second, she could not have re-acquired a natural born Filipino status through RA 9225, as she was not a Filipino to begin with.”

After considering these challenges and the issues they gave rise to, I [Brion] vote as follows:

{1} As a foundling whose parents are both unknown, the respondent’s Philippine citizenship cannot be established, recognized, or presumed under the 1935 Constitution:

The 1935 Constitution did not grant citizenship to children born in the Philippines whose parents were unknown;

The presumption that the respondent claims that a foundling’s parents are a citizen of the territory where the foundling is found inherently contradicts the terms of underlying principles of the 1935 Constitution. Thus, the presumption cannot be recognized as part of the law of the land applicable to her case;

The Philippine treaty obligations do not grant Philippine citizenship outright to foundlings. These obligations simply require the country to recognize a foundling’s right to acquire Philippine citizenship.

{2} The respondent cannot also be considered a natural-born Philippine citizen:

a. since her citizenship cannot be established, recognized, or presumed, she had no citizenship to reacquire under RA9225;

{b} even if she had been a naturalborn citizen, her naturalization in the US rendered her ineligible to be considered natural- born. As a foreigner who had undergone an expedited form

of naturalization under RA 9225, she had to perform acts to acquire Philippine citizenship and did not, therefore, fall under the Constitution’s definition of a natural born citizen.

I, therefore, vote to disqualify the respondent Grace Poe for the position of Senator of the Republic of the Philippines.“

Justice Brion attached a 57-page explanation of his vote. Each position had a lengthy explanation consisting of legal precedents, discussions during the constitutional conventions; and, legal briefs. I am limited to short summaries due to space constraints. Here they are:

“As a foundling, the respondent could not have acquired the status of a natural born citizen through any of the modes enumerated under the 1935 Constitution.

The Philippines treaty obligations under the ICCPR and UNCRC do not require the immediate and automatic grant of Philippine citizenship to foundlings... the terms and character of their provisions merely require the grant to every child the right to acquire a nationality.

Article IV of the 1935 Constitution generally follows the jus sanguinis rule: Philippine citizenship is determined by blood, i.e., by the citizenship of one’s parents.

The presumption that the parents of foundlings are citizens of the country where they are found is inconsistent with the terms of the 1935 Constitution.

The natural born citizenship requirement for the position of Senator cannot be complied with on the basis of presumption.

A person who at the time of his birth is a citizen of a particular country is a natural born citizen. The 1987 Constitution itself recognizes this concept through the definition of a natural-born citizen: a citizen of the Philippines from birth without having to perform any act to acquire or perfect her Philippine citizenship. Thus, one who performs an affirmative act to acquire or perfect her Philippine citizenship is not a natural born but a naturalized Filipino.

The respondent’s subsequent adoption by Filipino citizens, Fernando Poe Jr. and Susan Roces, did not confer Philippine citizenship on her.... Adoption is not among the modes of acquiring citizenship.

After marrying a US citizen, she chose a naturalization process to acquire US citizenship. This naturalization process required her to renounce her allegiance to the Philippine Republic and her citizenship… The oath that the respondent took to re-acquire Philippine citizenship reflects her status as a foreigner at the time she took them.

As the respondent was clearly a foreigner at the time she complied with the requirements of RA 9225, her supposed reacquisition of Philippine citizenship thus amounts to naturalization by law.

Due to the 5-4 SET vote, Senator Grace Poe will remain a member of the Philippine Senate. Now we all await the next saga – the eligibility of Grace Poe for the position of President of the Philippines.