The author, Manny Caballero (left), with Supreme Court Justice Antonio Carpio during a speaking event on the China issue in New York last year.  (Filipino Reporter file photo)

AS an advocate of constitutionalism, I will continue writing about the celebrated and controversial case of Sen. Grace Poe.

After reading the 47-page decision of the Philippine Supreme Court which sustained the claim of Sen. Poe that she was eligible to run for president of the Philippines despite the disqualification decision of the Commission on Elections based on her citizenship and residency, I noted that the nine justices who voted in favor of the lady senator, resorted to or adopted the following:

1. Common sense

2. Mercy to foundlings

3. Statistics (probability theory)

4. Public International Law

The 1935 Constitution of the Philippines was also resorted to.

But, in the process, the justices amended one of its provisions on the definition of a Filipino citizen by adding the phrase “...foundlings found in the Philippines whose parents are unknown.”

I have not read a Supreme Court decision where the Court amended a Constitution and then, applied the amendment to support its decision.

That’s wrong!

In this particular case, it was apparent that the Philippine Supreme Court legislated from the bench, which is the work of the legislative branch not the judicial, instead of applying and interpreting the existing relevant provisions of the latest Constitution in effect.

As Justice Arturo Brion said in his dissenting opinion, the case of Sen. Poe was “fairly simple and clear-cut issues.”


The answers to the issues brought by petitioner Poe were defined and provided for in the Philippine Constitution.

Justice Arturo Brion

The problem was, if the Court would have resorted to those provisions, like the clear definition of a natural-born citizen, it might have applied against the interest of the petitioner who, according to spreading talks in Manila and social media, was guided and protected by big elites in local society.

So, the court resorted to use of common sense, the dictum that “justice should be tempered with mercy,” the probability that petitioner Poe was born to Filipino parents since the Filipino population in Jaro, Iloilo where and when she was found as foundling was composed of 99 percent Filipinos at the time.

The generally accepted principle on foundlings found in Public International Law where foundling is considered citizen of the place where he or she was found was also applied by the High Court in Manila.

In short, citizenship by presumption.

Apparently, the majority justices “shopped around” for defensible and non-controversial positions.

Dissenting opinions

I will cite brief excerpts from three of four dissenting opinions of Justices Antonio Carpio, Arturo Brion and Teresita Leonardo-De Castro.

Justice Carpio opined that the decision to allow Sen. Poe to run for president of the Republic of the Philippines while the question on her being a natural-born Filipino citizen was hanging over her head was to make a mockery of the elections.

He said in his dissenting opinion, “What is clear is that there is no majority of this Court that holds that petitioner Mary Grace Natividad S. Poe Llamanzares (petitioner) is a natural-born Filipino citizen.”

Justice Carpio continued by saying the ruling “will lead to absurd results and will make a mockery of our national elections by allowing a presidential candidate with uncertain citizenship status to be and potentially elected to the Office of the President, an office exclusively reserved by the Constitution for natural-born Filipino citizens.”

Justice Brion, in his dissent pointed out, that, the petitioner’s case as presented to the Court was fairly simple and clear-cut issues.

Justice Brion also said, “The Supreme Court decision is based on the exclusive ground that the Comelec committed ‘grave abuse of discretion’ in ‘denying due course to and/or cancelling her Certificate of Candidacy for the President for the May 9, 2016 elections for false material representation as to her citizenship and residency.’”

The third dissenting opinion was written by Justice Leonardo-De Castro.

The lady justice warned, “The issue of natural-born citizenship...if not overturned, will wreak havoc on our constitutional system of government.”

Justice Teresita Leonardo-De Castro


In my view, the majority justices of the High Court in Manila prostrated the cherished Constitutional process.

The Court is supposed to interpret and apply the law.

It is not supposed to legislate.

To do so, as it did in the instant case of Sen. Poe, is simply wrong.

By putting in the 1935 Constitution what was not there, the Court erred.

It is an accepted dictum in constitutional construction and interpretation that what is absent should not be made present.

Another rule is: Do not read what is not written.

The nine Honorable Justices in Manila who voted in favor of the petitioner Poe, wittingly or unwittingly, may have made a mockery, in the words of one of their colleagues, of the forthcoming national exercise in democracy: the May 2016 elections.

“Constitutions are checks upon the hasty action of the majority.” (William Howard Taft)

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