SET asks SC to junk David’s petition vs. Sen. Grace Poe

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1. 

   Tata E.

   January 4, 2016 at 11:04 AM

   Can a Foundling be a Natural-Born Citizen? (Arguments on the
   Citizenship of Grace Poe)

   Posted on August 3, 2015 by Atty. P.M. Dizon

   In a Philippine election, a candidate will be disqualified if
   she is not a Filipino citizen. If she wants to be President or Vice-President,
   she also has to be a natural-born Filipino.

   When Grace Poe’s citizenship is questioned, she will have to
   prove her citizenship, as well as whether she is naturalized or natural-born.

   She can only be a natural-born Filipino if she was born to a
   Filipino mother or father. There is no other way. But since she does not know
   her biological parents, or their citizenship, could she be considered Filipino?
   And if she is a Filipino citizen, is she natural-born or naturalized?

   A foundling is an abandoned child whose parents or relatives are
   unknown. Nobody knows if her biological parents are Filipino. A person who
   looks Filipino could be a foreigner – for example, if she was born of a
   Malaysian father and an Italian mother. On the other hand, a blonde, blue-eyed
   girl can be a natural-born Filipino if she was born to naturalized Caucasian
   parents.

   Citizenship is governed by only one law – the Philippine
   Constitution, (of which there are three versions – the 1935, 1973, and 1987
   Constitutions).

   Under the 1973 and 1987 Constitutions, those born of Filipino
   fathers or mothers are Filipino citizens. But if a person with a Filipino
   mother and an alien father was born before January 17, 1973, that person can
   only be a Filipino citizen if she elects Philippine citizenship some time upon
   reaching the age of majority. If she does not, then she would not be considered
   Filipino. (This was because under the 1935 Constitution, which was in effect
   before the 1973 Constitution, Filipino citizenship is automatically granted
   only to those with Filipino fathers.) If the Filipino mother is unmarried, the
   child is automatically Filipino. Lastly, a person can be a Filipino citizen if
   she is naturalized by law.

   Legal experts have made their opinions on the citizenship of
   foundlings. Here are their arguments:

   Foundlings cannot be considered citizens unless they prove that
   one of their biological parents is Filipino.

   Legal principles that the Supreme Court had consistently applied
   in a span of decades find application here.

   First of all, the Supreme Court ruled that one who claims to be
   Filipino must satisfactorily PROVE that she is Filipino, by showing that one of
   her biological parents are Filipino.

   The Supreme Court declared that there can be no presumption of
   Philippine citizenship. That means that if a foundling cannot prove
   citizenship, she cannot be considered Filipino.

   Secondly, the act of adoption will not confer Filipino
   citizenship. If the foundling was adopted by a Filipino citizen, this act will
   not confer citizenship on the child.

   Thirdly, the Philippine Constitution does not give a presumption
   or deem as Filipino those who cannot identify their source of citizenship.

   There is a list of persons who are considered citizens. One’s
   citizenship can be passed by blood (the principle of jus sanguinis), or one
   becomes a naturalized citizen by action of law. These are the only two ways one
   can be a citizen.

   Many legal experts do not like this position. They feel that it
   prejudices foundlings rather harshly. They say that it would have weird
   repercussions. They say, for example, that a lot of street kids are foundlings,
   and lack documentation of their citizenship. It would be crazy for the State to
   consider all of them illegal aliens and try to deport them.

   However, this belief is exaggerated.

   The Supreme Court was rather strict in its doctrine. Their
   decisions indicate that the only time that a person is required to prove her
   citizenship is when Filipino citizenship is actually questioned in a proceeding
   precisely for that purpose. So, that means that if a foundling was registered
   as a Filipino citizen, there would be no question about her citizenship at all
   – unless a court case is filed where she must prove it. (Thankfully, the only
   court cases that may be filed against them for proving citizenship are election
   cases and petitions for certiorari governing immigration cases.)

   Why should the foundling be the one to prove her citizenship?
   That’s the effect of the Supreme Court’s doctrine that there is no presumption
   of citizenship – the one who claims to be Filipino must be the one to prove it.

   Foundlings should automatically be considered Filipino citizens.

   Those of this opinion feel that the State should exercise some
   compassion with regard to foundlings. After all, it is not their fault that
   they are foundlings. Instead of making life harder for them, the State, as
   Parens Patriae (Latin for “parent of the country”), must have compassion and
   should grant them citizenship. Even if they are blond and blue-eyed and very
   Caucasian.

   The counter-argument to that position is that the Philippines is
   a government of laws, not of men. Hence the government should act based on the
   laws that govern it, not simply out of compassion, because nobody should be
   exempt from the law.

   The Supreme Court noted in its decisions that Philippine laws on
   citizenship are very restrictive. It is so restrictive that the drafters of our
   Constitution even differentiate between natural-born and naturalized. The
   Supreme Court has already declared that there is no presumption of citizenship
   and that one who claims to be Filipino should prove it. It may be harsh, but
   that’s the law.

   The second legal basis is based on international law. Some
   experts are of the belief that principles of international law require the
   Philippines to bestow citizenship on foundlings. Two international laws are of
   notable importance.

   The 1930 Hague Convention on Certain Questions Relating to the
   Conflict of Nationality Law, states in Article 14, “A child whose parents are
   both unknown shall have the nationality of the country of birth.” The second is
   the 1961 Convention on Reduction of Statelessness. Article 2 of that convention
   allows a foundling to be considered to have been born of parents who are
   citizens of the contracting state. (Exact words: “A foundling found in the
   territory of a Contracting State shall, in the absence of proof to the
   contrary, be considered to have been born within the territory of parents
   possessing the nationality of that State.”).

   There is a big problem with that argument – first of all (and
   most importantly), the Philippines is not a signatory to those international
   conventions. Those conventions go against the Philippine Constitution (1935,
   1973, and 1987) provisions on citizenship. That may be why we never became party
   to them.

   Those who argue in favor of these conventions say that they are
   now considered “customary international law” and by virtue of the
   constitutional law principle that “adopts the generally accepted principles of
   international law as part of the law of the land,” the Philippines has actually
   adopted these two conventions even though it is not signatory thereto. They
   believe that these conventions were brought about by international custom and
   that, because of the length of time that has passed, these conventions have
   ripened into something that one can derive rights from.

   Again, there are problems with that. Any law, whether local or
   international, which goes against any provision of the Constitution is void.
   Since these conventions go against our citizenship provisions, then they cannot
   have an effect here.

   Also, international customary laws are those aspects of
   international law that derive from widespread custom, acceptance, and practice
   by States. But these conventions cannot be considered customary international
   law because many countries do not accept them. There are few States that have
   signed, ratified, and accepted them. Since there is no widespread acceptance of
   the principles in these conventions, they cannot be considered international custom.

   In any case, both conventions do not require the contracting
   State to bestow citizenship conclusively (i.e., permanently) on the foundling.
   They allow the state leeway to remove citizenship if it could be shown that the
   child’s parents are not citizens.

   It is possible to harmonize this with the Supreme Court rulings
   of the past decades. A liberal Supreme Court could declare that there is an
   international customary law that allows a state to consider foundlings as
   citizens. However, if citizenship is questioned, the foundling has the burden
   of proving it. This will allow indigents with no citizenship records to vote,
   get passports, and not get deported.

   NATURAL-BORN OR NATURALIZED?

   It gets tricky now.

   Let’s assume that the foundling derives Filipino citizenship by
   virtue of international law or international customary law, and not by virtue
   of blood ties to a Filipino biological parent.

   Is a foundling considered natural-born or naturalized citizen?

   The Constitution describes two types of citizens. A natural-born
   Filipino has more rights than a naturalized Filipino. They are the only ones
   who are allowed to hold positions in the highest executive, legislative, and
   judicial offices in the country, as well as the constitutional commissions.

   This is how restrictive Philippine laws on citizenship are. (It
   is so hard to become a naturalized citizen that I actually think naturalized
   citizens love our country more because of the hassle they take to become a
   citizen, the huge investment, and the fact that they have greater stake in the
   country than most natural-born citizens.)

   The Philippine Constitution defines a naturalized Filipino as
   one who became Filipino in accordance with law.

   So, if a foundling derives her Filipino citizenship by virtue of
   international law, then she becomes a Filipino citizen by virtue of law! This
   makes her a naturalized Filipino citizen.

   The constitution states that a natural-born Filipino is one who
   is a citizen from birth without having to perform any act to acquire or perfect
   the citizenship. One may argue that a child did not do anything to acquire or
   perfect citizenship, so she should be considered natural-born.

   That’s a bad argument when you see it in the context of Supreme
   Court rulings.

   In the first place, the Supreme Court has ruled that children of
   foreign nationals who are naturalized are also naturalized Filipinos even
   though they did not perform any act to acquire citizenship. They are not
   considered natural-born even when they did not do a thing to obtain their new
   nationality. They were naturalized in accordance with law. (Note that if the
   children were born AFTER their parents were naturalized, then they are
   considered natural-born).

   In the second place, under the 1987 Constitution, international
   law forms part of the laws of the land. However, it does not form part of the
   Constitution, so that means that international law will not add new
   qualifications for Filipino citizenship. However, it is considered same level
   and effect as a law passed by the Legislature.

   If these conventions would be considered laws that bestow
   nationality on foundlings, then any who derive their Filipino citizenship in
   accordance with them are citizens who were naturalized in accordance with law.

   Since the only way to be a natural-born citizen is to have
   Filipino parents, then foundlings can only be considered natural-born citizens
   if they can adduce evidence showing that their biological parents are
   Filipinos.

   That’s it. Those are the
   arguments. Now, we wait until a case is brought, and we’ll see how the Supreme
   Court would rule..

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