Political Tidbits is the prestigious column of Belinda Olivares-Cunanan that ran for 25 continuous years in the op-ed page of the Philippine Daily Inquirer, the newspaper that she helped put up with its multi-awarded founder, the legendary Eugenia Duran-Apostol, in December 1985, just two months before the EDSA Revolution.

Thursday, February 18, 2016

Poe issues have torn SC apart like no other in recent memory. But assuming she was natural-born foundling, as P-Noy-appointed justices argue, what could DQ her was her renunciation of US citizenship in October 2010 and becoming Filipino again to accept MTRCB post; but as naturalized Filipino she is prohibited by Constitution to run for top post. Comelec Chief Bautista gives excuses for refusal to issue voter receipt---a violation of AES Law. Principal author Dick Gordon to question it before SC.

Justice Antonio Carpio

Last Tuesday, Feb. 16,  was replete with frustrations for many citizens who wish to uphold the Constitution and ensure clean and honest elections. We saw how two institutions so vital in our nation’s political life are undergoing such severe strain, owing to too much politics and politicking.

First, let’s talk about the 5th oral arguments at the Supreme Court on Comelec’s disqualification of presidential candidate Grace Poe, that was estopped by the SC with two TROs during the Christmas season. Perhaps because it was the 5th day of hearings and pressures were being exerted on the court to finish it, thus not only were biases too naked to be hidden, but nerves were already terribly frayed---both among the justices and the lawyers. I have been attending hearings at the SC for years now in connection with my work, but frankly I have never seen the court this disputative and “conflicted,” to borrow Justice Francis Jardeleza’s term.


Chief Justice Ma. Lourdes Sereno ordinarily should set the tone but last Tuesday she was quite shrill and emotional as she tangled with Comelec Commissioner and lawyer Arthur Lim on the issue of “domicile.” Lim held that Sen. Poe was “quite ambivalent” about moving domicile from the US, and at this CJ Sereno flared up, arguing that after the candidate sold her US home for 28,000 pounds (didn’t CJ mean dollars?), “uprooting” her children from schools there, shipping their stuff in four 40-foot containers, including the chandeliers, how could lawyer Lim term all that as “ambivalent?”


On the other hand, Solicitor-General Florin Hilbay, who defended the Senate Electoral Tribunal’s majority position to allow Poe to run for president, locked horns with Senior Justices Antonio Carpio and Teresita de Castro over statistics from the Census Board that claimed, he said, that in 99.99% of cases, foundlings here are bound to be Filipino. It was De Castro’s turn to flare up, as she demanded from Hilbay more solid proof in terms of legal documents rather than "mere statistics," asserting that “you are asking us to amend the Constitution in this aspect;” meantime, Carpio came crushing down on him with general principles of international law.  Sol-Gen Hilbay, who bears the lofty title of “Tribune of the People,” seemed stung to the quick at some point--- daring to point out that perhaps those stats on foundlings could even be more credible than the birth certificates of the SC justices!


Lawyer Estrella Elamparo, the earliest to challenge Poe’s candidacy,  did not give the candidate any quarter about not knowing what she was claiming in her COCs for the Senate and the presidency. On the other hand, former UE Law Dean and President Emeritus of the Philippine Association of Law Schools Amado D. Valdez took the philosophical bend as he quoted from the collection of aphorisms and statesmanlike reflections of Roman Emperor Marcus Aurelius (161-80), titled “Meditations:”

When a branch is cut from its neighboring branch, it is necessarily cut away from the whole tree. In the same way, a citizen who severs her ties from her country has severed herself from the wider society of fellow citizens. The branch which stays with the tree from the beginning of its growth and shares its transpiration is not the same as the branch which is cut off and then re-grafted, whatever the gardeners say.” 

Dean Valdez explained that Justice Marvic Leonen echoed Marcus Aurelius when he said, “Justice means giving everyone his due.” Valdez read Leonen's assertion to mean that what is due to the branch that stays with the tree is different from what is due to the branch which is cut-off.  Valdez asserted that Senator Poe, the “cut-off branch,” could no longer be considered a natural-born Filipino citizen, even assuming she was one, after she renounced her Filipino citizenship and acquired American citizenship (and then reacquired her Filipino citizenship in 2010).

In fact, Valdez as well as Comelec Com. Arthur Lim maintained that after renouncing her US citizenship in October 2010, to enable her to accept the post of MTRCB Chief from President Aquino, Grace Poe became a naturalized Filipino---which makes her ineligible to run for President as that post calls only for “natural-born Filipinos.”


The Supreme Court is torn apart by the issue of Grace Poe as a foundling, and beyond, whether as such she should have what De La Salle Political Science professor Antonio Contreras (who also made a manifestation vs. Poe before the SC), termed her “audacity to demand” Filipino citizenship back in such a grand manner---after giving it up in the US. Contreras argued that “Petitioner (Poe) has to be told that she is not special and above the law.”  On the other hand, lawyer Manuelito Luna, representing former Sen. Francisco Tatad, argued that it is “absurd” for Poe to insist that the Comelec did not have jurisdiction to cancel her COC---stressing that Sec. 78 of the Omnibus Election Code gives it this authority.

And so the country lurches on with this controversy that, after having dug into proceedings of the various constitutional conventions, still remains “unresolved,” as Justice Jose Perez put it. There’s also rife speculation that President Aquino has junked Mar Roxas for Grace Poe, hence the developments at the High Court.

What worries this blogger, more, however, are the distortions which the Constitution could suffer as a result of the prolonged, emotionally-charged and politically driven deliberations within the SC.  I worry how this document that an overwhelming majority of Filipinos ratified in February 1987 could be reduced to a meaningless scrap of paper because of political distortions being orchestrated on behalf of an ambitious politician. I worry about its demoralizing effects on those who have sworn to follow that scrap of paper to the end, e.g., the military and the civil service.  


Last Tuesday the Joint Congressional Oversight Committee (JCOC), co-chaired by Sen. Aquilino “Koko” Pimentel III and Rep. Oscar Rodriguez conducted a hearing on the new vote-counting machine (VCM) that will replace the much-derided  PCOS machines in the past two elections. Not surprisingly, Sen. Pimentel was quoted in media yesterday as bannered, “Comelec taking us for a ride---Pimentel.” Apparently Koko Pimentel, after much patience during JCOC hearings in the past, is now reaching the limit of his patience---with justification.

The JCOC hearing was attended by top Comelec officials led by chair Juan Andres Bautista, two officials of Smartmatic which supplies the VCM, and a large representation of IT experts, including the chief of UNA party’s computer system, Atty. Ivan Uy.  The hearing centered mainly on the clamor of citizens for the VCMs to provide the voter’s verification paper audit trail (VVPAT)--- which is the receipt issued by the VCM that would inform the voter that it received the name of his candidate.  


Interestingly, a few weeks back the Comelec was advocating that instead of the paper receipt, voters can do the “silip-the-screen,” i.e., check out their candidate’s name appearing on a small screen on the surface of the VCM. But at yesterday’s hearing, Comelec Chief Bautista emphasized that in a vote of 7-0, the poll body rejected the voters’ receipts, despite collective agitation of IT experts, various faith leaders and other stakeholders. This came after former Biliran Rep. Glenn Chong, a lawyer/CPA, made his presentation, complete with diagram,  before the JCOC--- showing the flow of voting in the precinct up to the time voter gets the receipt and DEPOSITS IT IN A METAL BOX INSIDE THE PRECINCT, under  supervision by the BEI.

 During actual demo using a ballot facsimile, Glenn Chong timed the procedure from vote-finish to issuance of receipt at 10 seconds, but Bautista still feared that it would still clog up the precincts and entail more personnel, paper and ink, etc., etc. He also expressed fear that voters might sell their VVPAT to unscrupulous parties, even though Glenn explained that the poll body could mandate that these receipts be dropped into a box in the precinct, supervised by poll watchers. Interestingly,  Comelec officials also said that the “silip-the-screen” proposal is being dropped too.  


What this means is that the major security features of the VCM ARE BEING ABANDONED, as what happened in the two previous elections---this is sad and ALARMING.  As Glenn Chong  put it in his presentation, the VVPAT, the more preferable of the two security options, would definitely enhance the credibility of the 2016 elections. This is because citizens are used to receiving receipts for ATM withdrawals, store purchases, etc., but why, in this most crucial citizens’ activity, is the VVPAT being withdrawn. Why?

Sen. Pimentel opines that “Comelec is taking us for a ride,” but he doesn’t have to agree to the poll body’s decision. As IT expert Nelson Celis pointed out to this blogger, under Sec. 33  of R.A. 9369,  the Automated Election Law, the JCOC is endowed with regulatory powers that it can compel Comelec to issue the VVPAT,  as mandated by that same law. For the sake of the credibility and honesty of the 2016 elections, Sen. Pimentel and Rep. Rodriguez must override the Comelec’s objections and order VVPAT receipts issued.

Sen. Richard Gordon
Another great news: former Sen. Richard Gordon, one of the principal authors of the AES Law (now running for the Senate again), says non-issuance of voter’s receipt is against that law. He plans to raise this issue in the Supreme Court. We citizens must support Dick Gordon as otherwise cheating will again prevail.  

Thursday, February 11, 2016

It seems SC would be tackling Poe issues in several more sessions, but Comelec would have problems with her name on ballot if she were DQed (a high probability despite some justices openly lawyering for her). More complications: Smartmatic's source codes have to be pulled out from BSP vault due to "glitches." Citizen groups demand, in addition to restoring PCOS safeguards, providing voters with receipts that would tell them whom they voted for, not just the "congrats." message in past elections. But why is League of Municipalities objecting to this?

With the official campaign period for the May 09 elections kicking off last Tuesday, the status of oral arguments on the Comelec's disqualification  (DQ) case vs. Grace Poe on-going in the Supreme Court is only one of the several factors that are contributing to citizens’ deepening apprehensions about clean, honest and orderly elections. The SC hearings on Sen. Poe’s DQ case promise to take easily two or three more weeks, but Comelec can no longer postpone printing of ballots beyond this Monday, Feb. 15---which means the likelihood of including Poe's name in the ballots is a given. 


Now, since Poe has emerged on top in several surveys, there’s understandable and grave concern that should she be DQed in the end, discarding votes in her favor as stray ballots could create enormous political instability.

What's interesting, however, is that SC justices openly for her, such as Chief Justice Ma. Lourdes Sereno and Associate Justices Marvic Leonen and Francis Jardeleza, all Aquino appointees, have hogged the previous four sessions of the High Court, their interpellations running over three hours each---as though there's no urgency to resolve Poe’s candidacy and her inclusion or exclusion from the ballots. 

This has led to speculation in media and political circles that President Aquino is now playing the Grace Poe card, in view of the low standing of his anointed, Mar Roxas, in the presidential race. Another angle being advanced by pundits is that Poe's candidacy helps split the votes for Binay, thus widening the field for Mar. These speculations have become grist even for some US-based Filipino media outlets. 


Add to the Poe issues before the SC the problems currently bugging Smartmatic (which has always had problems ever since government contracted its voting machines for the 2010 elections, the 2013 and now the 2016 elections)---thus seriously putting into question (again!) the viability of the May 09 elections. Credit Comelec and Smartmatic for incredible timing, but on the very eve of last Tuesday's campaign period kick-off, Comelec announced that it’s "modifying" the source codes for components of the AES to be used in the coming elections, because, as the Daily Tribune put it, glitches have caused "incompatibilities" in them!   

The source code is the command order for the machines, and the codes for both the consolidated canvassing machines and the election management system were deposited in the vault of the Bangko Sentral ng Pilipinas two weeks ago. But because of the glitches, these codes would have to be pulled out and voided---and a new modified source code would be deposited in BSP anew. 

But how reliable would this "modification" be, given the time constraint? Doesn't this predicament conjure fearful memories of those 76,000 CF cards that had to be ostensibly pulled out from precincts all around the country and reconfigured a few days before the 2010 elections?  


Moreover, concerned citizens led by former Biliran Rep. Glenn Chong (who lost in 2010 owing to PCOS machinations in his province) and multi-faith leaders such as senatorial candidate Greco Belgica are strongly pressing for the return of necessary safeguards in the PCOS machines that were discarded in the 2010 and 2013 elections. Among these safeguards are the use of UV lamps to determine authenticity of ballots inserted into the PCOS machines, the source code, the digital signatures of the board of election inspectors in order to pinpoint responsibility for any hocus pocus in the precincts (as they say, you can jail colluding BEI inspectors, not the machines).

But just as important, Glenn Chong and our IT experts also demand that voters be issued by the voting machines their voter’s receipts (called the "voter verified paper audit trail," or VVPAT) that would indicate whom they really voted for---unlike in previous elections when all the machines said was "congratulations."  If there is discrepancy in the receipts, voters can complain to the election inspectors; moreover, these receipts can be deposited in a box inside the precinct for counter-tallying as well as to prevent voters from selling them to unscrupulous parties.

Interestingly, however, the League of Municipalities has refused to agree to this VVPAT.  Does it have anything to do with the Bottom-Up-Budgeting largesse being distributed by the administration at the barangay level (P1 million per barangay)?


I have followed religiously all four oral argument sessions at the SC on two constitutional issues vs. Grace Poe. One, her eligibility or non-eligibility to run for President, given her inability as a foundling to prove she was born of Filipino parents, thereby failing to qualify as a natural-born Filipino. Second is her failure to prove that she has had continued residency in PH for ten years prior to election.

Of these two requirements to run for President, that she is a natural-born Filipino is the more emotion-laden issue. We see this clearly in the way the three SC justices, in grilling the lawyers of opposing parties. have sought to arouse enormous public sympathy over her being a foundling unjustly dealt. 

This issue Poe herself has capitalized on in her public speeches that seek to tug at the heartstrings of the masa voters---even though the reality is that she has had a life of plenty under her adoptive parents, power film couple Fernando Poe and Susan Roces, here and in the US, where she studied in an elite school and maintained well-appointed homes and lucrative jobs.


The second issue against Grace Poe---her failure to present ten years continuous residency in the country, as required by the Constitution for presidential candidates--- is, however, what would ultimately disqualify her. This is the studied opinion of many lawyers who have been keenly following this issue. This is because this second requirement involves incontrovertible dates of entries and departures held by various agencies such as the Bureau of Immigration and Deportation, as well as the US Embassy where her application for US citizenship and renunciation of the same are clearly marked.  No two ways about it, unlike the citizen issue which lends itself to plenty of subjective interpretation.


As an assiduous watcher at SC oral hearings on the Poe issues, I find interesting the way the musical chairs are arranged in the Court, for or against the candidate. Evoking sympathy for Poe are Chief Justice Sereno and Associate Justices Leonen and Jardeleza, who each run over 3 1/2 hours of interpellations of Comelec Commissioner Arthur Lim, the adroit handler of Comelec's DQ case vs. Poe. On the other hand, clearly against Poe on the twin issues are Senior Associate Justice Antonio Carpio and Justices Teresita Leonardo de Castro and Arturo Brion, who voted with Sen. Nancy Binay in the nine-member Senate Electoral Tribunal against Poe, while five senators upheld her candidacy. 

At times the pro and con justices slam one another outright, to the amusement of the audience. On the other hand, the other nine justices still have not clearly indicated where they stand in the issues vs. Poe.


Last Tuesday, Feb. 09, Justice Jardeleza  pointedly accused Comelec  of having deprived Poe of due process when it DQed her candidacy on the ground of her being a foundling and thus, not a natural-born citizen. Jardeleza argued that “There is a disputable presumption that a foundling is considered disputably a natural-born citizen” and that thus, Comelec’s summary DQ  was in gross violation of Poe's rights under the Bill of Rights. As a consequence, he stressed that having to rule on Poe's status was “an agonizing problem” for him.  

Commissioner Arthur Lim politely but stoutly denied Jardeleza's accusation and argued that "there is only one truth here---that which is laid down by the Philippine Constitution: that no citizen can run for President unless he is a natural born citizen." In fact, the UP Law '69 alumnus stressed that "the issues here are “clear-cut, though somewhat complicated.”


In another corner, another citizen who was also DQed as a nuisance candidate took a potshot at the high magistrates for their double standard thus: 

"If such is the justification for the majority of the high court justices to rule that the Comelec acted in excess of jurisdiction, just to enable Poe to run, despite her ineligibility to run for the top political post, then why has the Comelec been allowed to disqualify certain candidates who also wished to run for the presidency, and who, moreover, are natural-born Filipinos, who have not renounced their Filipino citizenship and who did not apply for a naturalized foreign citizenship, who can read and write, and have been staying all their life in the country? If the Comelec had no jurisdiction in disqualifying Poe, why did the SC favor the Comelec for having disqualified those qualified under the charter to run for the presidency, since they all meet the requirements of the Constitution?"
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Wednesday, February 3, 2016

In first three-hours of grueling five-hour SC session CJ Sereno grilled Comelec Commissioner Arthur Lim on 'sad plight' of foundlings like Grace Poe, alternately cajoling and charming the lawyer, who stood his ground politely but firmly about amending Constitution, so Poe could run for highest office. Sereno's and Leonen's pronouncements reinforce perception that P-Noy may have shifted support to Poe instead of to Mar. NaughtyToby Tiangco raised her foundling status in media, making it "justiciable."

Comelec Commissioner Arthur Lim before the SC for over five hours last Tuesday

Senator Grace Poe has aired her sentiment to media repeatedly: that should the Supreme Court sustain her disqualification (DQ) by the Comelec en banc from running for the presidency, she would be "very sad." Fortunately for Grace Poe, she has found an ally in the SC who appears to be bent on not making her sad at all. 

Chief Justice Ma. Lourdes Sereno consumed about three and a half hours of the total five hour-session last Tuesday, Feb. 2, devoted to the third oral session at the SC. That portion with CJ Sereno was most punishing to Comelec's appointed lawyer, Commissioner Arthur Lim, who had to be on his feet as well as be mentally agile for all of those hours, as Sereno resorted to various arguments to win public sympathy for foundlings in general, and candidate Poe in particular. 


The lady Chief Justice criticized public policies heretofore that she termed unjust and unkind to foundlings---presenting a string of countries that do not use the bloodline argument for determining citizenship or a combined employment of the jus soli and jus sanguinis arguments; she also cited that only 23 countries do not grant automatic citizenship in the world (PH included here). CJ Sereno alternately bullied the Comelec lawyer into tendering yes or no replies to what Lim termed "simple but actually very complex issues" or congratulating him when she got him to agree on a point; at other times she'd resort to gentle nagging.  

To Commissioner Lim's credit, he remained deferential and respectful all through the grueling session, acknowledging the supremacy of the Court in interpretations of law---but firmly holding his ground and unyielding on crucial points. 


Then Sereno pulled out from her well-stuffed bag of tricks a long list of public offices and public support and benefits that are closed to foundlings. "They cannot even operate a jeepney or tricycle, nor have the right to practice their profession or acquire a higher education," she perorated---before cajoling Lim "to look beyond the presidency" and ponder on the possible impact of the DQ of Poe on the entire foundling world.

The CJ also cited various laws and decrees over decades that she claims have given some kind of life to the common understanding that foundlings are not Filipino citizens. She cited provisions in the various Philippine constitutions as well as laws from the turn of the century to recent ones such as RA 9225, the Citizen Recantation and Re-Acquisition Act and Senate Bill 2130, the Dual Citizenship Act, that have gone beyond the iron-clad provisions of the 1987 Constitution on qualifications for the highest offices of the land. 


But to me as well as to many other citizens, just as worrisome as the impact of a perhaps forthcoming DQ of foundling Poe and her ilk is the grave disservice to the Constitution that the Chief Justice and whoever else in the SC would follow her, would be doing as interpreters of the law. This pertains to the possibility that perhaps due to political pressure, candidate Poe may be allowed to run for President even if the DQ grounds are clear. 

To my mind even though I am not a lawyer---and I assume, judging from reactions from media and citizens out there, various folks share my sentiment---the Constitution has stated in no uncertain terms--- understandable even to high school students---the provision of Sec. 2, Article VII on the "Executive Department" on qualifications of presidential candidates. Beclouding it would be to sow terrible confusion about the rule of law. 


This provision, stated in the negative for stronger emphasis, states in no uncertain terms the qualifications now being deliberated in continuing sessions of the SC. It reads in part: "No person may be elected President unless he is a natural-born citizen of the Philippines...and a resident of the Philippines for at least ten years immediately preceding such election." There's also the sections in the basic charter that spell out conditions and characteristics of "Citizenship"---most relevant of which pertain to the definition of "Natural-born citizens: "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." 

That the term "citizens... from birth" and not "at birth" was raised in the third SC hearing day was quite significant as it showed the framers of the Constitution's preoccupation with continuity of citizenship---not having stops and resumptions, i.e., loss and naturalization, etc. Any effort to twist the definition of "natural-born" could sow tremendous confusion and affect the credibility of the SC as the ultimate interpreter of the law. 


This early, some media observers already are opining about how they see the way the SC would rule on Sen. Poe's DQ case by the Comelec. Media have noted the seeming partiality of CJ Sereno and Justice Marvic Leonen who also took 90 minutes of interpellation of the opposing lawyer in the second round. The three other Aquino appointees, namely, Justices Bienvenido Reyes, Estela Perlas-Bernabe and Francis Jardeleza have not actively participated as yet, while the sixth appointee of P-Noy, the latest, Justice Benjamin Caguioa, still has to make an appearance in the court. 

From what media can glean, the rest of the justices, led by Senior Associate Justice Antonio Carpio, appear to lean toward sustaining the DQ by Comelec. Special mention must be made of Justice Carpio, who virtually rebutted much of CJ Sereno's points raised in her over three-hour interpellation. Carpio stressed after questioning Lim that it's not only foundlings who are being discriminated upon with regard to certain offices that are open only to natural-born citizens. He stressed that this prohibition applies to all naturalized citizens, and---this is most significant---that if there is any unfairness about it, this can be remedied by MERE LEGISLATION OF CONGRESS

Indeed it's time too, while this hullabaloo about Poe is going on, for Congress to look at some relief for naturalized citizens who may be suffering from the various forms of discrimination as noted by Carpiom who are far more in number than the foundlings.  


In the meantime, it does look to me that Elections 2016 is not for Grace Poe. What she and her horde of followers and fans could do after the 2016 elections is to work for constitutional amendment of Sec. 2, Article VII, the "Executive Department," to allow foundlings like her who are subsequently naturalized, to be able to run for President. 

In fact, Grace Poe should already be grateful that the Comelec wasn't even in a scrutinizing mood when she ran for senator in 2013, as otherwise she would have been DQ-ed even for that post. Without that Senate post, she would be just another foundling adopted by a prominent movie couple and living a comfortable life in the US as well as here. On the other hand, Sen. Poe should blame Navotas Rep. Toby Tiangco, Secretary-General of the opposition UNA party, for being so naughty as to raise in public not too long ago the issue of her being a foundling---in violation of Sec. 2, Art. VII---causing this issue to become "justiciable.".

Without Toby's naughtiness, who knows, baka nakalusot si Grace.  But then, what happens to the Constitution?