will Grace Poe lose when her SET case goes to the SC?

the SET (Senate Electoral Tribunal) has voted not to disqualify Grace Poe with a 5 – 4  vote with the 5 voting not to disqualify Poe. the 5 votes are from senators Aquino, Sotto, Legarda, Villar and Cayetano. the 4  who voted for disqualification came from the 3 SC justices who are members of the SET and senator Nancy Binay. the SC justices are Carpio, Brion and de Castro.

her disqualification case will surely reach the SC no matter what the final decision is at the SET. when that happens, will she lose at the SC case given what the SC justices decided who are members of the SET?

in recent days, copies of the explanations from the SC justices have been released. we have here the explanation from Carpio and de Castro. the two justices voted on the basis of law, their reading of the constitution and what they mean.

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Justice de Castro: Poe’s citizenship claim constitutionally objectionable November 22, 2015 10:54am

Senate Electoral Tribunal member Associate Justice Teresita de Castro maintains that presidential aspirant Senator Grace Poe’s citizenship claim is constitutionally objectionable.

In her separate dissenting opinion released days after the SET voted 5-4, junking the petition against Poe over citizenship issue, de Castro said the respondent based her claim only on “generally accepted principle of international law that stemmed from a theory of incorporation … but not on the constitution.”

She said Poe claimed to be a natural-born citizen, with a Filipino father or mother, on the basis of “a supposed legal fiction which will run afoul of the concept of natural-born citizenship under the 1935 Constitution…”

The 1935 Constitution—still in effect when Poe was born in 1968—follows the principle of jus Sanguinis” or natural-born citizenship based on blood relationship to a Filipino father or Filipino mother.

De Castro said that Poe anchored her claim of being a natural-born on international conventions such as the the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws and the 1961 Convention on the Reduction of Statelessness.

These conventions particularly provide for the right of a child to nationality.

But de Castro said the conventions are not self-executing as they are not binding because the contracting state is free to determine the international agreements’ application based on national laws.

Besides, she said the Philippines has not ratified the 1930 and the 1961 conventions.

Moreover, de Castro wrote: “Even then, the citizenship, if acquired by virtue of such conventions, assuming the latter are implemented by Philippine law, is akin to the citizenship falling under the Section 1(4), Article IV of the 1987 Constitution, recognizing citizenship by naturalization in accordance with law or by a special act of Congress.”

“The definition of a natural-born citizen, under Section 2, Article IV of the 1987 Constitution, cannot be met by a foundling even if the disputable presumption is applied because before the said presumption can operate, the fact of being a foundling must first be established by a legal proceeding, as illustrated by Section 5 of R.A. No. 8552, and Sections 4, 5 and 8 of R.A. 9523, which require an official declaration tha the child is a foundling or an abandoned child before he/she can be entitled to the rights of a Filipino child under the aforesaid laws,” she added.

– See more at: http://www.gmanetwork.com/news/story/545348/news/nation/justice-de-castro-poe-s-citizenship-claim-constitutionally-objectionable#sthash.RbhJNkyB.dpuf

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Carpio: Poe is Filipino but not natural-born
November 21, 2015 8:27pm
By JOSEPH MORONG, GMA News
Presidential aspirant Senator Grace Poe is a Filipino but not a natural-born one, Senate Electoral Tribunal chairman Associate Justice Antonio Carpio said.

In his dissenting opinion released four days after the SET voted 5-4, junking the petition of Rizalito David against Poe over citizenship issue, Carpio said: “there is no dispute that respondent Mary Grace Poe Llamanzares is a Filipino citizen, as she publicly claims to be.”

“But [she] has failed to prove that she is a natural-born Filipino citizen, and is thus not qualified to sit as a member of the Senate of the Republic of the Philippines.”

This echoes the justice’s earlier pronouncement during the oral arguments at the SET that Poe is a naturalized Filipino citizen.

Carpio wrote that even the framers of the 1935 Constitution did not intend to consider foundlings in the Philippines natural-born citizens at birth.

Carpio pointed out that those who argued during the deliberation of the 1935 Constitution that international law principle recognized a foundling to be a citizen at birth of the country where the foundling were misplaced. This includes, former President Manuel Roxas.

“There is nothing in international law that which automatically grants citizenship to foundlings at birth. In fact, Delegate Roxas did not cite any international law principle to that effect,” Carpio said.

According to Carpio, only the 1930 The Hague Convention was in existence during the deliberations on the 1935 Constitution.

“Therefore, there was no prevailing customary international law at that time, as there is still none today, conferring automatically a nationality to foundlings at birth.”

Any international law conferring natural-born nationality to foundlings at birth runs contrary to the concept of jus sanguinis under the 1935 Constitution which requires blood relation to the father to establish the natural-born citizenship of a child, Carpio said.

He wrote: “The 1935 Constitution clearly required blood relations to the father to establish the natural-born citizenship of a child. The 1935 Constitution did not contain any provision expressly or impliedly granting Filipino citizenship to foundlings on the basis of birth in the Philippines (jus soli or law of the soil) with the presumption of Filipino parentage as to make them natural-born citizens.”

“Only those citizens at birth because of jus sanguinis, which requires blood relation to a parent, are natural-born Filipino citizens under the 1935, 1973, and 1987 Constitution,” he added

Citing deliberations on the 1935 Constitution, Carpio also pointed out that when it came to the discussion on the qualifications President and Vice President, delegate Roxas pointed out that “natural-born citizens, means a citizen by birth, a person who is a citizen by reason of birth, and not by naturalization or by a further declaration required by law for his citizenship.”

Citing delegate Roxas, Carpio wrote: “In the Philippines … under the provisions of the article on citizenship which we have approved, all those born of a father who is a Filipino citizen, be they persons born in the Philippines or outside, would be citizens by birth or ‘natural-born … According to this interpretation, the child of a Filipino mother with a foreign father would not be a citizen by birth, because the law or the Constitution requires that he make a further declaration after his birth.”

“In short, under the 1935 Constitution, only children whose fathers were Filipino citizens were natural-born Filipino citizens,” Carpio said.

He further said: “It is also the height of absurdity to presume that all foundlings found in the Philippines, by sole reason that their parentage is unknown, are not only Filipino citizens but also natural-born Filipino citizens. To illustrate, if in 1968, on the same day that respondent was found in a church in Jaro, Iloilo, three infants were also found in front of the Manila Cathedral in Intramuros, will all the three infants be considered natural-born Filipino citizens?”

Carpio said that it would lead to a “preposterous situation which could not have been intended by the framers of the 1935 Constitution.”

“If the first infant was an African black, the second a Caucasian white, and the third infant with Chinese features, would all three infants be automatically considered natural-born Filipino citizens with the conclusive presumption that their parents were Filipino citizens? … If at all the framers intended a strict interpretation of the term natural-born citizen, considering that they limited the term natural-born citizen to those who fathers were Filipino citizens and did not extend it to those who were born of Filipino mothers and alien fathers.”

Carpio also addressed the issue of the plight of foundlings if found not to be natural-born Filipinos as argued by Poe’s camp.

“The sentimental plea, however, conveniently forgets the expressed language of the Constitution reserving those high positions, in this case the position of Senator of the Republic, exclusively to natural-born Filipino citizens … being sworn to uphold and defend the Constitution, the members of this Tribunal have no other choice but to apply the clear letter and intent of the Constitution,” he said.

Carpio however added that Poe may still be declared a natural-born Filipino if she can find a match to a Filipino parent.

All three Supreme Court justices in the nine-member SET—Chairman Carpio, Associate Justice Teresita Leonardo-de Castro, and Associate Justice Arturo Brion have separte dissenting opinions on the SET ruling favoring Poe.

Four other cases of disqualification anchored on citizenship and residency issues are currently lodged with the Comelec.

A fifth disqualification case, an election offense case of misrepresentation, also filed by Rizalito David, is being heard by the Comelec Law Department. — LBG, GMA News

– See more at: http://www.gmanetwork.com/news/story/545323/news/nation/carpio-poe-is-filipino-but-not-natural-born#sthash.Hf2m1JgX.dpuf