SolGen to Comelec: Show compelling reason for discriminating foundlings
Solicitor General Florin Hilbay. INQUIRER FILE PHOTO
The Commission on Elections (Comelec) must show a compelling reason for discriminating foundlings or a child with no known parents, a government lawyer told the Supreme Court.
In its memorandum submitted to the high court, a government lawyer through Solicitor General Florin Hilbay said Senator Grace Poe, a candidate for the presidency is a natural-born Filipino based on the 1935, 1973 and 1987 Constitutions.
READ: SolGen to SC: 3 PH Constitutions didn’t deny foundlings of citizenship
Comelec cancelled Poe’s certificate of candidacy as it granted the complaint filed by former Senator Francisco “Kit” Tatad, former University of the East Law Dean Amado Valdez, Political Science Professor Antonio Contreras and Atty. Estrella Elamparo.
The said complainants alleged that Poe cannot be considered a natural-born citizen because her parents were unknown. Furthermore, the senator lacks the required 10-year residency period by the May 2016 elections.
The Comelec, in its decision, said Poe failed to show proof that she is a natural-born Filipino citizen.
Hilbay said such imposition by the Comelec for Poe to present her evidence on her citizenship is a “discrimination against discrete and insular minority.”
“The Comelec’s decision to shift the burden of evidence on petitioner [Poe] places an undue burden on the exercise of a fundamental political right of a member of a discrete and insular minority that has a right to equal protection in general and a right to “equal access to opportunities for public service” under Article II [of the Constitution],” the Solicitor General said.
“Discrimination against discrete and insular minority must survive strict scrutiny. Any discriminatory animus against the recognition of petitioner’s natural-born status would need to survive strict scrutiny, that is, the Comelec must show that there is a compelling state interest in discriminating against foundlings and that such interest be addressed through a narrowly-tailored policy,” he added.
Hilbay reiterated that the deliberations of the 1934 Constitutional Convention indicate the intention to categorize foundlings as a class of persons considered as Philippine citizens.
While the 1935 Constitution did not mention the citizenship of foundlings, Hilbay said it “does not indicate any discriminatory animus against them.”
READ: SolGen says foundlings natural-born Filipinos
He added that both the 1973 and 1987 Constitutions are bereft of any evidence tending to show any change in the policy that started in 1935.
With regards to her residency, the government lawyer said to comply with the rules on residence, a candidate needs only the intention to reside and a factual anchor to prove the intention to reside.
In Poe’s case, she established her physical presence in the country since May 24, 2005. He added that Poe also transferred her children to study in Manila.
“As with most Filipinos, where your children are is where your home is,” he added.
The Office of the Solicitor General is the Tribune of the People. It opted not to represent the Comelec considering that it has represented the Senate Electoral Tribunal who ruled in favor of Poe in a separate case. RAM
READ: SolGen backs SET ruling in favor of Poe
