The Interpretation of Silence in The Poe Cases - Inquirer Opinion

The interpretation of silence in the Poe cases | Inquirer Opinion 30/03/2017, 2:55 PM
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The interpretation of silence in the Poe

cases
By: Jose Duke S. Bagulaya - @inquirerdotnet Philippine Daily Inquirer / 01:54 AM January 15, 2016
If you have a lawsuit, wrote the French philosopher Voltaire, your goods, INQUIRER.net
your honor, your very life depend on the interpretation of a book which
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you never read.
Sen. Grace Poe can hardly disagree. Her Senate post and political future
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product of one. Indeed, Hans-Georg Whos stupid?
Gadamer insists that discovering
the meaning of a legal text and
discovering how to apply it in a particular legal instance constitute one
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Interpretation comes to the fore in the Poe cases, which pose a unique
hermeneutic controversy. In these cases, lawyers shall interpret not so
They Gave Everyone
much the words of the Constitution as the silence that echoes in its text. The Else at the Golden
bone of contention is not what the Constitution says, but what it does not. Globes Serious
Livingly
The 1935 Constitution speaks no word on the citizenship of foundlings. Like

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a woman who says neither yes nor no to her suitor, this silence gives
birth to an enigma.
How do we construe this perplexing silence?
Two camps offer opposing readings: the textualists and the nontextualists.
The former insists that the search for meaning begins and ends with what
the text says and fairly implies. Any intent of the legislator not expressed in
the words of the text has no effect. The interpreter cannot enact the
lawmakers unenacted desires. To this camp belong the three justices who
voted against Poe at the Senate Electoral Tribunal.
In their opinions, the three justices construe silence as absence and absence
as exclusion. Exclusion, then, becomes exclusivity and exclusivity is made
law. Thus, Justice Arturo Brion reads the silence to mean that the
Constitution left to the legislature the decision of granting citizenship to
foundlings. Expressio unius est exclusio alterius (The expression of one
thing implies the exclusion of others). There is no unwritten exception to
the principle of jus sanguinis (law of blood) aside from subsections (1) and
(2) of Section 1, Article V. To include the absent foundling is nothing less
than rewriting the 1935 Constitution by including what is not there.
Silence, for Justice Antonio Carpio, is suppression, a banishment of the

opposite principle of jus soli (law of the soil). The inclusion of exceptions to
the general rule of blood relationship bolsters the argument that the text
contemplates no unwritten exception. Indeed, his reading silences all but
the father whose blood is the only unquestioned source of natural-born
citizenship. The law of blood is transubstantiated into the law of the Father.
Against the textualists stands the Solicitor General (SolGen), whose

interpretation is nontextualist as much as it is intentionalist. His reading
goes beyond the four corners of the law and dives into the extrinsic
records of the constitutional convention searching for an original intent.
In his Comment, the SolGen reverses the three justices logic and construes
the silence of the text not as absence, but as presence. He achieves this by
summoning absent voices to supplement the constitutional lack. Like a
medium, he allows the specters of Seor Montinola and Seor Roxas to
speak: A child of unknown parentage is presumed to be a son of a Filipino
following the Spanish Civil Code; international law recognizes the same
child as a citizen of this nation. Thus, for reasons of style and law, the text
need not state that foundlings are Filipino citizens.
From these spectral conversations, the SolGen concludes that the

Constitutions silence meant that the (mistaken?) views of the two specters
had prevailed. Silence, therefore, is presence and presence means inclusion.
And inclusion breeds justice.
Critical to the SolGens reading strategy is the construction of an intertext,

which supplements and fills the constitutional gaps. This gesture allows him
to write a story where a foundling receives, in lieu of the absent father, a
fictional Filipino father courtesy of a legal presumption. But the SolGens
intertext is also a text with its own silences. It is not immune to a rereading.
Ultimately, the Supreme Court will have to interpret the (con)texts of these
silences. Whether or not Poe will receive a fictional father (again) remains
to be seen. Whatever the verdict, let us not harbor any illusion about its
nature. The Supreme Courts decision, with all its authority, will give us, not
truth, but another interpretation.
Jose Duke S. Bagulaya teaches a course in law and literature at the University
of the Philippines Diliman and works as a lawyer in his spare time.
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168 Comments Inquirer Opinion !

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Dissenting a year ago
If interested, proceed to one of the "oldest" comments below re mad_ad_Hamlet's
reprinting pertinently Brian Hawkin's article on Holmes' maxim about the life of the Law
News " !
having been experience and not logic as related to the interpretation of silence on the
Poe DQ cases.- and my comment that Holmes is on all fours with the SET decision and
SolGen Florin Hilbay's comment in favor of SET's decision upholding Sen. Poe's natural
Inquirer #
born citizenship. @inquirerdotnet
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https://t.co/sOQeC0hHOr #INQ
makabayan88 a year ago
The LAST SENTENCE SAYS IT ALL:
"The Supreme Courts decision, with all its authority, will give us, not truth, but another
interpretation."
====================================================
I focus NOT on disgrasyapoe being a foundling 4m ) '
BUT on her RENOUNCING HER BEING FILIPINO

TO BECOME AN AMERICAN CITIZEN....
Inquirer #
@inquirerdotnet
AND LYING TO HER TEETH AND DECLARE THAT SHE HAS
FULFILLED THE RESIDENCY STATUS IN HER CoC. Speaker Alvarez, in phone-patch
interview, says: Dyosko naman,
ALL FOR HER kayo naman. Sino bang walang
girlfriend? | @deejayapINQ
C...O...N...V...E...N...I...E...N...C...E!!!
SINUNGALING !!!!!
.
NOT ONLY ONCE.... * $ % &
BUT TWICE!
1 Share
avelino r. diaz a year ago

our constitution is silent on foundlings but the civil code isn't.
civil code of the philippines states:
Article 341. The adoption shall:
(1) Give to the adopted person the same rights and duties as if he were a legitimate child
Inquirer #
of the adopter; @inquirerdotnet
(2) Dissolve the authority vested in the parents by nature;
(3) Make the adopted person a legal heir of the adopter;

(4) Entitle the adopted person to use the adopter's surname. ( the phil :
Share #PresidentDuterte leads oathtaking
of gov't officials, PH Councilors'
Jef Menguin > avelino r. diaz a year ago League. https://t.co/xu591aBGZe |
@NCorralesINQ
I did not see anything about citizenship there. Puwede po ang isang Filipino ay
mag-adopt ng isang American Citizen. Katulad din na ang isang Filipino ay
magkaroon ng anak na American Citizen. Sa katunayan, si Grace Poe ay may mga
anak at asawa na American Citizens. Sa unang basa pa lang po, hindi ito
applicable sa determination of citizenship.
2 Share
avelino r. diaz > Jef Menguin a year ago

if you're a legitimate child then it follows you carry also the citizenship of You
0 pts VS MODE
your parents/parent
Share
Daboy a year ago Comments continue after advertisement Cleveland Cavalier Nate Thurmond
was the first NBA player to
Carpio is doing his job right and being fair to both sides, he is handling the Poe's case accomplish what feat?
without being bias. Espejo's lack of work ethics only proves that he cannot be fair. Also,
the name of Marlon Ramos appears in several news articles that seem to uplift Poe. We 30 Free Throws
would like to urge the Inquirer, in the spirit of integrity and fairness, to rotate reporters to Quadruple Double
help avoid fraternization between candidates and reporters. This will surely be a great
help in our goal to have a clean and honest 2016 elections. 100 Point Game
2 Share Ejection
Chuck Perez > Daboy a year ago
Chuck Perez > Daboy a year ago Create your own at
The truth must be spread and we deserve it.

Share
Carol a year ago

What makes things worse is that Espejo is telling us that we should set aside the law and
just
let Poe run. As a lawyer and former law dean, this comment appears to be very
inappropriate.
The Filipino people are the ones who ratified the Constitution. Does this come second to
the
political aspirations of Sen. Poe? If a candidate would become President, respect for the
Constitution and the commitment to uphold it are vital characteristics. Otherwise, we
might
end up being governed by oligarchs who would just put self before country. We urge
Dean Espejo to please protect the Constitution as you are supposed to and imbibe
Justice Carpios
invaluable lessons on ethics.
3 Share
Titos Bados > Carol a year ago

Malaking ibinabayad kay Espejo.
1 Share
Daboy > Carol a year ago

Espejo cant be rusted after what he did.
1 Share
Bisayang Bayani a year ago

This is what I've noticed, What is interesting about Espejos comments is the question
about his motivations. It appears that Espejo did not take to heart Justice Carpios lesson
on ethics because of his failure perhaps deliberate attempt to remember the fact that he
is the fraternity brother of Sen. Chiz Escudero, Poes running mate, before he made his
comments. This is what bias means. Espejo is making comments and actions that will
benefit Escudero's group and not fo the sake of majority.
2 Share
Titos Bados > Bisayang Bayani a year ago

Espejo's concern is the monies he is receiving and not the people's welfare. Hindi
siya martyr so hayaan mo na ang bayan, basta may bayad.
1 Share
Carol > Bisayang Bayani a year ago

What Espejo did was wrong.
1 Share
bernard diaz a year ago

Here's the thing, Carpio, being a member of the Supreme Court, has all the right to
participate in the review of the SET decision. As far as his integrity is concerned, Carpio
has shown, in various dierent situations, that his decisions see to it that the Constitution
is upheld regardless if it would sour his relationship with the administration or otherwise.
This is particularly evident during his falling out with former president Gloria Macapagal-
Arroyo, who was responsible for appointing him to the Supreme Court, because of his
decisions that went against her favour. Why would Carpio vote against Poes candidacy
unless it is unconstitutional? Does he have a personal vendetta against the Poes? None,
he is just doing his job as a Supreme Court Senior Associate Justice and what is fair.
he is just doing his job as a Supreme Court Senior Associate Justice and what is fair.
2 Share
Bisayang Bayani > bernard diaz a year ago

Yes indeed that's absolutely right.
1 Share
Rolly Canyete a year ago

Senator grace poe will eradicate poverty and corruption in the Philippines. She will push
for the FOI bill to be passed, what we need is transparency and put an end to those
corrupt govt ocials!
Share
AlzheimersC > Rolly Canyete a year ago

Corrupt anti-Pnots only want to pass the FOI bill so that they can find holes in
Pnoy's handling of gov't aairs but after GP...if she wins...the FOI bill like the BBL
will not see the light of the day...approved by you know.
1 Share

We should stop discriminating the foundlings and just let senator grace poe run! If her
detractors are not threatened, then leave her be
Share

Mar is more competent than GP. Her DQ is just an opportunity to remove a less
qualified candidate like her.
2 Share
Pinuno a year ago Comments continue after advertisement
Senator GRACE POE, NO DOUBT, THE GRACE OF GOD IS ON YOU. Just keep going,
People of the Philippines is behind you, dont mind detractors, Continue to thank the
Lord and be humble. That is where the secret of victory's blessings resides. That is where
wisdom and guidance abounds.
1 Share
mad_as_Hamlet > Pinuno a year ago

*****
If our laws are enforced fairly, there will come a time
when you will be included in a criminal case, as complainant.
The case will be titled:
"The People of the Philippines vs. Grace Llamanzares, aka "Grace Poe",
for Perjury and Falsification, Aggravated by Desecration"
---
6 Share
Dissenting > mad_as_Hamlet a year ago

Stupid! "Desecration" is an oxymoron. Excessive lunacy produces it. If our
laws are written by lunatic individuals, there will come a time when you will
write a Revised Penal Code making Desecration an aggravating
circumstance. You will have it entitled "Revised Renal Code."
Share
AlzheimersC > Pinuno a year ago
AlzheimersC > Pinuno

So kung ma DQ si GP, matatawag mo pa bang blessing iyan?
2 Share
mad_as_Hamlet a year ago

*****
Voltaire also wrote:
The human brain is a complex organ with the wonderful power of enabling man to find
reasons for continuing to believe whatever it is that he wants to believe.
And thus---with grave abuse of discretion, nay, that is an understatement, with

abandonment of reason and with patent madness---five in the SET declared, in the
manner associated with the infallibility of popes, that what to date is absolutely unknown
was in fact known from the very beginning, to wit, that Grace Poe's father was/is a
Filipino citizen and hence Grace Poe is a natural-born Filipino.
In the meantime, Grace Poe is digging graves in the hope that the SET is right---a clear
aront to the declaration already made by the SET.
The SET should cite Poe for constructive contempt.

---
7 Share

More than like the Emperor without clothes, your madness is swashbuckling and
awash in fits and seizures to the eyebrow-raising gusto of cogito728sum, lee1222,
farmerpo, RayPogiM, Alexander Amproz, Taongbayan, and Chito Di. One fit is
ignorance. One seizure is jerking at the SET's judicious reliance on the
unmistakable and undisputed deliberations of the Constitutional Convention as a
clear constitutional guide and direct map to determine the intent of the
Constitution not discernible in its text readily. In law school, and in judicial
decisions of trial court judges and appellate justices, particularly in the subject
"Statutory Construction." that reliance is how the reasons are gleaned as to what
the Constitution or Law intends, Not what they subjectively want to believe in
defiance of the text and intent of the fundamental law or statute. Your citing
Voltaire to make a satire or sarcasm of the SET decision as whatever the SET
majority wants to believe pathetically betrays how abysmal your ignorance is
about decision-making based on provisions of Constitution and law explained in
deliberations in a Constitutional Convention or in Congress. That being the
definitive case to which you are sickeningly oblivious, your TEMERITY to attribute
"abandonment of reason and patent madness" to the SET majority - and of
necessity, to even SolGen Florin Hilbay who, in his Comment to the Supreme
Court on the SET case, relied on the same convention deliberations - SURGES as
an abandonment of reason itself with patent madness GENUINELY ON YOUR
PART! And sinking to the unfathomable depths of your ignorance are those 7
above pen-named ignoramuses. With your argumentum ad ignorantiam (argument
from ignorance), you shamed Voltaire out of the peace in his grave. Voltaire
concededly wants your apology in writing for disturbing his RIP with your using his
name to decorate, and sweeten, if not justify, your ignorance.
,
Share
mad_as_Hamlet > Dissenting a year ago

*****
Thank you for describing yourself
and exposing your mental deficiencies.
Now we know the fool behind the dimwit.
In logic, your person and your arguments

all fall under the class of fallacies known
as "argumentum ad carborundum".
Go, therefore, and sharpen your mind more.
---
2 Share

Need you say more of your madness? No more, In legal parlance its
res ipsa loquitur (the thing speaks for itself) - overweeningly.
Share
mad_as_Hamlet > Dissenting a year ago

*****
LOL!
"I am but mad north-northwest: when the wind is southerly

I know a judge from a jackass."
PS - Please don't bother to translate Latin phrases

to English. I can read and write in Latin, although
I prefer using Aramaic in my emails. LOL!
---
1 Share

As in poetry, your madness may have as many refrains as you
please. LOL
Share
farmerpo > mad_as_Hamlet a year ago

Perhaps the 5 SET members know who the father of Grace Poe is. Yes? Maybe?
They are old enough know the "LEGEND". Poe should hire the Mythbusters
instead of grave diggers.
4 Share

He opined then that Poe was still an American citizen in May 2005 and he was not
convinced that she had the intention to stay in the Philippines permanently.
But after examining Poes MRs, Guia found that she can be considered to have
eectively transferred her domicile from the United States to the Philippines as of May
2005.
Headlines ( Article MRec ), pagematch: 1, sectionmatch: 1
The motion for reconsideration allowed me to revisit and re-evaluate my position on the
issue pertaining to the suciency of respondents residency. I also had the opportunity to
take a second look at the undisputed facts and circumstances as they relate to existing
case precedents on the matter, he said.
The ocial said that citizenship and residency should be treated separately.
Guia had given weight to some factual claims of Poe, such as that in the first quarter of
2005, she had informed the schools in the United States where her two children were
enrolled that they would be transferring to the Philippines.
It was also then when Poe and her husband started looking for a buyer for their house in
the US and commenced their plan to relocate their movable property to the Philippines.
All her acts and conduct point to her intention to transfer residence to the Philippines. I
find, upon second look, that indeed, said intent has been present as of May 2005.
Evidence abound to prove this matter, he said.
Share

"It was also then when Poe and her husband started looking for a buyer for their
house in the US and commenced their plan to relocate their movable property to
the Philippines.
Since American citizen pa rin ang asawa(nagresign na ba sa trabaho niya sa US?)

at anak ni GP, do you think it's practical to sell their house in the US? Nagdahilan
ka na pero sablay pa :)
2 Share

Commission on Elections (Comelec) Commissioner Luie Tito Guia has changed his mind
after reviewing the senators two motions for reconsideration (MRs).
In his separate opinions for Poes MRs concerning her Dec. 1 and Dec. 11 disqualification
by the Comelecs Second and First Divisions, respectively, Guia said he found that there
is no falsity insofar as the period of residency is concerned.
I am reconsidering my position as to the residency of respondent. I find that

respondent was able to prove that she has satisfied the 10-year residency qualification
required for a president under the Constitution, he said.
Share
Chito Di > Rolly Canyete a year ago

Yes he did reconsider his decision on the residency issue. BUT HE STILL
MAINTAINED THAT GRACE IS NOT A NATURAL BORN CITIZEN. Bottomline is
Grace is still disqualified to run for President this according to Commissioner
Guia. Wala pa din yan pinagsasabi mo.
2 Share
Pinuno a year ago

I expect the high court to go in favor with Senator Grace Poe. It is what's supposed to be
done to protect the less privileged those thousands or millions of children like Senator
Grace Poe who are abandoned in the streets or somewhere else.
Share
farmerpo > Pinuno a year ago

Bankang Papel ni GMA.. remember? Same Poe mantra.
2 Share
Pinuno a year ago

I'm sure GOD will not let these judges trampled the ambition of a foundling. Because in
her eyes were the same ,whether you are foundling or not we all have the rights to fulfills
our ambitions especially if the intentions are good and to improve the condition of the
people. Grace Poe 2016!
Share
Rolly Canyete a year ago Comments continue after advertisement

It's impossible for her to be disqualified. Even the SolGen believes that she satisfies all
the requirements needed
Share

The SOLGEN said the DAP and PDAF are legal. The Supreme Court said
otherwise. Not everything the SolGen says is gospel truth.
1 Share
Rumple a year ago

The DQ is coming !
2 Share
Kane Mart a year ago

so many arguments about her being natural born or naturalized, met the 10-year
residency requirement or not, perhaps, we can forget these two issues, what we will see
are the two recent decisions of SC of two mayors, one from Kauswagan, the other from
Pangasinan, both were disqualified by SC in view of their using the american passport
while already elected as mayors, GP was still using her american passport until 2012,
could it be the the reason why the two mayors were DQed is not applicable to the good
senator? So, all we do it just wait for the SC decision, grabe ang pagtatalo natin, pro and
against GP, baka mawalan na ng trabaho mga election lawyers sa ganda ng mga
argumento ng mga bloggers dito, buti sana kung kumikita tayo ng tulad ng kinikita ni atty
george
we just have to have faith in the SC and we hope and pray that any decision they come
up will settle this issue once and for all, it may not be acceptable to all, but as they say,
when SC speaks, that is the law
4 Share
philspratly a year ago

very interesting and informative article atty bagulaya
1 Share

I really hope senator grace poe wins! She will push the FOI Bill to be passed, only a few
senators would agree to this!
Share

The current Senators passed the FOI bill. It is the House of Representatives that
did not pass it.
1 Share
Bradley a year ago

Grace Poe, the next president of the Philippines. Grace Poe is God-sent to the Filipino
people and is truly a public servant... untainted and with integrity!! SERVICE is HER
PLATFORM. May other politicians follow HER EXAMPLE of HARD WORK and TRUE
SERVICE.
Share
DonQuixoteDeRizal a yearComments
ago continue after advertisement
Here we go again. The foundling brigade oensive. Best of luck babe.

1 Share
1 Share

The motion for reconsideration allowed me to revisit and re-evaluate my position on the
issue pertaining to the suciency of respondents residency. I also had the opportunity to
take a second look at the undisputed facts and circumstances as they relate to existing
case precedents on the matter, he said.
The ocial said that citizenship and residency should be treated separately.
Guia had given weight to some factual claims of Poe, such as that in the first quarter of
enrolled that they would be transferring to the Philippines.
It was also then when Poe and her husband started looking for a buyer for their house in
the US and commenced their plan to relocate their movable property to the Philippines.
All her acts and conduct point to her intention to transfer residence to the Philippines. I
find, upon second look, that indeed, said intent has been present as of May 2005.
Evidence abound to prove this matter, he said.
Share
victorts > Rolly Canyete a year ago

When was her U.S. house sold? It is easy to say that they were looking for a buyer
of their house in the U.S. in May 2005.
Share

Commission on Elections (Comelec) Commissioner Luie Tito Guia has changed his mind
after reviewing the senators two motions for reconsideration (MRs).
In his separate opinions for Poes MRs concerning her Dec. 1 and Dec. 11 disqualification
by the Comelecs Second and First Divisions, respectively, Guia said he found that there
is no falsity insofar as the period of residency is concerned.
I am reconsidering my position as to the residency of respondent. I find that

respondent was able to prove that she has satisfied the 10-year residency qualification
required for a president under the Constitution, he said....
Share
Pinuno a year ago

Tuloy lang ang laban Senator Grace Poe. Naniniwala kami na qualified ka talaga at na
meet mo ang lahat ng requirements sa pagtakbo sa pagkaPresident at huwag ka pong
susuko at pabayaan may mamuno ulit sa ating bansa ang mga kurakot, mamatay tao o
palpak.
Share
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The interpretation of silence in the Poe cases | Inquirer Opinion 30/03/2017, 2:55 PM

! SECTIONS Thursday, March 30, 2017 " TODAY'S PAPER #

OPINION / COLUMNISTS 507 SHARES

The interpretation of silence in the Poe

no room for interpretation. There is only room for application. NEWSINFO

Indonesian man found dead in

Interpretation always forms part of NEWSINFO

adjudication. One cannot apply a Duterte woes self-inflicted

language, and one cannot

writes, A sentence that seems to up to 12 kg! But 6 Years Later

The 1935 Constitution speaks no word on the citizenship of foundlings. Like

How do we construe this perplexing silence?

Silence, for Justice Antonio Carpio, is suppression, a banishment of the

Against the textualists stands the Solicitor General (SolGen), whose

records of the constitutional convention searching for an original intent.

From these spectral conversations, the SolGen concludes that the

Critical to the SolGens reading strategy is the construction of an intertext,

FROM AROUND THE WEB

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Alvarez to file bill on same-sex union

TAGS: disqualification, Elections 2016, Grace Poe

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Comments for this thread are now closed.

168 Comments Inquirer Opinion !

I focus NOT on disgrasyapoe being a foundling 4m ) '

BUT on her RENOUNCING HER BEING FILIPINO

NOT ONLY ONCE.... * $ % &

avelino r. diaz a year ago

Article 341. The adoption shall:

(2) Dissolve the authority vested in the parents by nature;

(3) Make the adopted person a legal heir of the adopter;

avelino r. diaz > Jef Menguin a year ago

Chuck Perez > Daboy a year ago

Chuck Perez > Daboy a year ago Create your own at

The truth must be spread and we deserve it.

Carol a year ago

Titos Bados > Carol a year ago

Daboy > Carol a year ago

Bisayang Bayani a year ago

Titos Bados > Bisayang Bayani a year ago

Carol > Bisayang Bayani a year ago

bernard diaz a year ago

Bisayang Bayani > bernard diaz a year ago

Rolly Canyete a year ago

AlzheimersC > Rolly Canyete a year ago

Rolly Canyete a year ago

AlzheimersC > Rolly Canyete a year ago

Pinuno a year ago Comments continue after advertisement

mad_as_Hamlet > Pinuno a year ago

The case will be titled:

Dissenting > mad_as_Hamlet a year ago

AlzheimersC > Pinuno a year ago

AlzheimersC > Pinuno

mad_as_Hamlet a year ago

And thus---with grave abuse of discretion, nay, that is an understatement, with

The SET should cite Poe for constructive contempt.

Dissenting > mad_as_Hamlet a year ago

mad_as_Hamlet > Dissenting a year ago

Now we know the fool behind the dimwit.

In logic, your person and your arguments

Go, therefore, and sharpen your mind more.

Dissenting > mad_as_Hamlet a year ago