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Sisyphus’ Lament

Is Grace Poe a Martian?

“A FOUNDLING by definition is stateless,” proclaimed a critic of Sen. Grace Poe. Distracted by politics, most of us failed to reflect on how this cruel and inhuman rule cannot possibly be the law of a dignified people like ours. Poe indignantly responded: “Ibig bang sabihin nila na ang isang bata na pinulot ay hindi na puwedeng mangarap (Do they mean that a foundling cannot aspire)?”

The right to a nationality is a fundamental human right, and the lack of a country to call one’s own would certainly make one feel incomplete. I cannot forget a classmate in the United States who was a refugee from Afghanistan. A human rights worker, he fled with his family after evading gunmen sent to kill him. He would smile and share the hope of obtaining US citizenship and having a passport again.

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The right to a nationality is explicit in the United Nations’ Universal Declaration of Human Rights and echoed by such other key instruments as the UN International Covenant on Civil and Political Rights and the UN Convention on the Rights of the Child. Poe’s critics raise that we, like many countries, have not signed the

UN Convention on the Reduction of Statelessness, which grants a foundling the nationality of the country where he is found. Thus, they frame, Poe must prove that at least one of her unknown parents is Filipino to meet the definition of a citizen in Article IV of our Constitution, or be stateless.

This is respectable, if incredibly legalistic, analysis. However, the Harry Roque playbook reminds that a treaty is only one source of international law. UN discussions note that many countries have enacted the above rule for foundlings in legislation to preclude the cruel result, and did so out of a sense of great legal obligation. Skipping the detailed analysis, this arguably makes the rule that a foundling must have the nationality of a country where she is found an international custom, the other source of international law.

One thus argues that a foundling must be born with a nationality. Grace Poe is logically Filipino, as one readily doubts she is Martian. And she would be natural-born under our Constitution’s definition: “Natural-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.” Incidentally, a foundling has a right to a nationality whether or not adopted, so it is irrelevant that adoption does not generally confer citizenship.

Another critic claimed last week that, based on Poe’s last certificate of candidacy, she fell short of the Constitution’s 10-year residency requirement for a president or vice president. This made law students cringe for many reasons. First, the Supreme Court has stated that a CoC is not binding and it scrutinizes actual residency if this is questioned.

Second, Poe claimed to permanently live here since 2005, as evidenced by her children schooling here by then, and even before she sold her US house in 2006. If so, she more than meets the 10-year residency requirement for 2016. Critics counter that she could not be a resident here before renouncing her US dual citizenship, and claim she did this only in 2010 before joining government. However, being a natural-born citizen and being a 10-year resident are two separate requirements. There is no requirement to be a Philippine citizen during the entire 10-year period, even assuming Poe was not a dual citizen. Incidentally, it is legally impossible for a natural- born Filipino to become a naturalized Filipino.

If Poe began as a Filipino, gave this up to be a naturalized US (nondual) citizen, then regained Philippine citizenship, she reacquires natural-born citizenship, as even the Bureau of Immigration website FAQ summarizes.

Third, many law students argue that Poe has been a resident since birth, following high court doctrine where one retains one’s residence of birth so long as one intends to return. In 1995, it ruled that Imelda Marcos was domiciled in Leyte her whole life because she would return to celebrate birthdays and other milestones as “part of the history and lore of the quarter century of Marcos power.”

Poe’s critics argue this is overly liberal, renders the residency rule useless, and cannot apply to Poe because she obtained US citizenship, which should clearly demonstrate an intent to abandon the Philippines. This is a respectable argument (but irrelevant if Poe was resident since 2005), but unduly harsh when applied in turn to overseas Filipino workers. OFWs would argue that it should not necessarily follow that if one obtains permanent residency abroad, he ceases to be a Philippine resident in the broad legal sense. They know what stability qualifying for permanent residency or even citizenship abroad brings, as they are vulnerable to sudden layoffs or nonrenewal of work visas. Our high court has pronounced a special preference in law for OFWs, and interpreting the residency rule liberally to allow OFWs to eventually return home and serve is surely consistent with our national values.

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The vicious, legalistic attacks on Poe, many of which blatantly contradict the law books, demonstrate that we still see law as a distant, arcane artifact. We too readily accept that if Supertyphoon “Yolanda” left everyone in a town dead and all its records destroyed, an infant who miraculously survived should be damned into

legal limbo. The undignified spectacle of a senator forced to publicly justify the circumstances of her birth must remind us how law must humanize and empower, and how battalions of legal experts may falter before the instinctive decency of ordinary men.

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React on Twitter (@oscarfbtan) and facebook.com/OscarFranklinTan.

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