There is more to this than an attempt at drawing neat distinctions. It has to do with what we reserve to the people’s elected representatives and the power bestowed on non-elected but distinctively schooled magistrates. The logics of politics and of the judicial are different, the language of one different from that of the other.
Traditionally, it has been taught – and not without good reason – that characterizations of “wise,” “expedient,” “necessary,” “helpful” – even “just,” are not juridical but political. Even under a charter that allows for a wide swath of judicial review, the distinction is maintained.
Are foundlings disadvantaged by the present state of law?
They most assuredly are and the remedy to that is legislation, perhaps, even constitutional amendment, not the crafting of jurisprudence that in effect rewrites the Constitution or usurps the legislature’s prerogatives.
It bears repetition: This is not a matter of power-tripping. It has to do with our concepts of popular sovereignty and democracy.
No basis at all
To create the presumption that a child of unknown parentage found in the Philippines is a Filipino, whether disputable or conclusive, cannot be a matter of judicial interpretation, because there is really nothing to interpret.
There is simply neither constitutional authority nor statutory basis for it. To confer on foundlings the nationality of the Philippines is similarly a political decision – one, unfortunately, that we have not made, but could very well make. We had the chance to: we rewrote our Constitution, we crafted a Family Code and we passed adoption laws.
Had our policymakers opted to better the lot of foundlings, they would have done so. It is not for the judiciary to get into policy-making, although there is indeed some degree of policy choosing that goes into adjudication!
Amend the law
The travails of Ms. Grace Poe should send legislators back to the session hall and committee chambers from which they have been known to stray quite frequently and without compunction to be able to pass the necessary laws of compassion.
As for our present adoption laws, I do not find anything in them that allows for the conclusion that a foundling is a Filipino citizen.
Setting aside, for now, the important rule on statutes that their effects are prospective rather than retroactive (for the straightforward reason that the conduct that can be reasonably regulated is that which is still to take place, rather than that which has entered the realm of fact!) all that these adoption laws make clear is that a foundling in the Philippines may be available for adoption, with the State (through its appropriate instrumentalities) standing in loco parentis.
I do not follow the reasoning that draws from the proposition that foundlings are, under these laws, presumed to be natural-born Filipinos. (READ: 'Adoption laws presume foundlings Filipino citizens - Sereno)
It cannot be denied that for some time now there has been “judicial legislation,” but this was defensible in the face of the distinction between the political and the judicial because the text of the law did not stand in the way of the construal.
But where you have a constitutionally established definition of who a natural-born Filipino citizen is, then any attempt to rewrite that provision – especially when preceded by the avowal of concern for the lot of foundlings – dangerously trespasses the divide, admittedly tenuous in many places, but necessary nonetheless – between the political and the judicial. – Rappler.com
The author is Dean of the Graduate School of Law, San Beda College.