Wednesday, March 29, 2017
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With Due Respect

Grace Poe’s citizenship

CRITICS CHALLENGE the citizenship qualifications of Sen. Grace Poe to run for, be elected to and hold a higher public office allegedly because 1) as a foundling, she was stateless, 2) by her marriage, she acquired the American citizenship of her husband, and 3) her adoption by Fernando Poe Jr. and Susan Roces did not confer natural-born citizenship on her. I respectfully disagree.

Natural-born citizen. Under our 1987 Constitution, “[n]o person may be elected President [or Vice-President or Senator or Congressman] unless he [or she] is a natural-born citizen of the Philippines…”

In turn, “[n]atural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship.”

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Since the Constitution requires natural-born citizenship “from birth” and since Senator Poe was born in 1968, the governing law would be the 1935 Constitution. Neither that Charter nor any statute as of that year expressly conferred citizenship on foundlings.

However, the framers of the 1935 Constitution explained that expressly providing citizenship rules for foundlings was unnecessary since that could be determined from international law. Note that under the same Charter (and also under the present one), “the Philippines … adopts the generally accepted principles of international law as part of the law of the Nation.”

Applicable international law. Mijares vs Ranada (April 12, 2005) held that “generally accepted principles of international law … even if they [are] not derived from treaty obligations… [have] two elements: the established, widespread and consistent practice on the part of states; and a psychological element known as the opinio juris sive necessitates (opinion as to law or necessity) … a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.”

Under Art. 2 of the 1961 International Convention on Statelessness, “[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.”

Applying that article to Senator Poe, a foundling found in the Philippines is presumed, in the absence of contrary proof, to have Filipino biological parents. Since she was found near a church in Jaro, Iloilo, when she was only a few days old, her parents are presumed to be Filipinos.

Therefore, she is a natural-born citizen.

True, the Philippines is not a signatory or a “Contracting State” in this treaty. However, the treaty possesses the two elements of a generally accepted principle of international law because the grant of nationality to a foundling is an “established, widespread and consistent practice” of many states since 1961 to the present. Hence, it is deemed a “part of the law of the Nation.”

According to Razon vs Taglis (Dec. 3, 2009), this “widespread practice” or “international custom” could be shown from “State practice, State legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the UN General Assembly.”

Further, under the 1948 Universal Declaration of Human Rights (UDHR), to which the Philippines is a signatory and which our Supreme Court has consistently enforced, “Everyone has a right to a nationality.” Thus, a denial of nationality or citizenship to Senator Poe would be a plain violation of the UDHR.

Parenthetically, it is high time the Philippines acceded to and joined the 1961 Convention on Statelessness for the benefit of all Filipinos, especially illegitimate children whose parents are unknown, not just of Senator Poe. After all, it is not their fault that their parents have abandoned them.

American citizenship and adoption. True, she acquired American citizenship after she married her American husband. But she already renounced such citizenship in accordance with American law. And the American Embassy has affirmed such renunciation.

This affirmation is important because under the 1930 Hague Convention on the Conflict of Nationality Laws, “[i]t is for each State to determine under its own law who are its nationals.” Thus, American, not Philippine, law determines who are American citizens.

True also, our Supreme Court has ruled several times that adoption does not confer citizenship. It only gives the adopted child the civil rights of a legitimate child, like the right to use the surname of and to inherit from the adoptive parents.

In my humble opinion, these rulings do not apply to foundlings. They were issued by our Court to prevent aliens from short-circuiting our strict naturalization rules by undergoing the easier adult adoption processes.

However, I will no longer dwell on this issue because Senator Poe does not derive her natural-born citizenship from her adoption but from generally accepted principles of international law on the presumed citizenship of foundlings.

Her presumed citizenship can become indisputable if her paternity is established by deoxyribonucleic acid (DNA) evidence. Under existing jurisprudence starting with Tijing vs Court of Appeals (March 8, 2001) and People vs Vallejo (May 2, 2002), a DNA test is a conclusive way of proving filiations.

I will take up Grace Poe’s residence qualification in another column.

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TAGS: 2016 Elections, Citizenship, foundling, Grace Poe, politics
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