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Greater pitfall in Poe run for presidency

/ 01:33 AM September 12, 2015

Sen. Grace Poe is controversial because there is a question about her citizenship. There are only two kinds of Filipino citizens: the natural-born and the naturalized. In the deliberations of the 1986 Constitutional Commission, Fr. Joaquin Bernas, SJ, said we do not distinguish between natural-born and naturalized citizens, except when the Constitution makes the distinction.

Article VII of the 1987 Constitution requires, inter alia, that a candidate for president be a natural-born citizen. Here, the Constitution distinguishes a natural-born from a naturalized citizen. A natural-born citizen is one who has Filipino citizenship without having to perform an act to acquire or perfect such citizenship. Excluded from the exception in the definition are those born of Filipino mothers under the 1935 Constitution who elect Filipino citizenship upon reaching the age of majority, and former Filipinos who lost their citizenship and reacquire it pursuant to the Dual Citizenship Law. The first exclusion is provided for under the 1987 Constitution, and the second, by the Dual Citizenship Law.

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Citizenship is the juridical tie that binds a person to a country. Filipino citizens are only those defined in the Constitution. Senator Poe was born under the 1935 Constitution, which enumerates the five types of Filipino citizens, namely: 1) the citizens of the Philippine islands at the time of the adoption of the 1935 Constitution; 2) those born in the Philippine islands of foreign parents who had been elected to public office in the Philippines before the adoption of the 1935 Constitution; 3) those whose fathers are citizens of the Philippines; 4) those whose mothers are citizens of the Philippines and elect Philippine citizenship upon reaching the age of majority; and 5) those naturalized in accordance with the law.

The list shows that the Philippine Constitution adheres to the jus sanguinis (right of blood) principle. Jus sanguinis is a principle of nationality law by which citizenship is determined by having one or both parents who are citizens of the state. The jus soli (right of the soil) principle, or the principle of territoriality, is the right to nationality or citizenship of anyone born in the territory of a state. It was applied in the Philippines in a limited occasion only to those born of foreign parents elected to a Philippine public office prior to the 1935 Constitution.

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Senator Poe is a foundling in a cathedral in Jaro, Iloilo, with unknown biological parents. She was adopted by the actors Fernando Poe Jr. and Susan Roces. Pursuant to the legal adoption, the state issued to the adoptee a birth certificate stating that she is a Filipino. Upon which birth certificate, Senator Poe was issued a Philippine passport that she surrendered upon being naturalized as an American citizen. After May 2006, she “reacquired” her Filipino citizenship under the Dual Citizenship Law, and eventually relinquished her American citizenship in 2010.

The provisions of the 1935 Constitution on citizenship show that Senator Poe does not fall under any of the listed five categories of Filipino citizens because her biological parents are unknown. There is thus no basis to apply to her the principle of jus sanguinis. She does not acquire the citizenship of her adoptive parents because it is not among the “modes” of acquiring Filipino citizenship provided for in the 1935 Constitution. In the case of Cheng Ling vs Galang (L-11931, Oct. 27, 1958), the Supreme Court held that the rights of a legitimate child given to an adopted child do not include the acquisition of the citizenship of the adopter.

Unfortunately, there is no domestic legal regime that specifically addresses the nationality of a foundling whose biological parents are unknown, except Republic Act No. 9523, which requires the issuance of a foundling certificate upon determination by the Department of Social Welfare and Development of the foundling’s eligibility for adoption. The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws may be thus relevant to the determination of the nationality of a foundling whose parents are unknown.

Article 14 of the Hague Convention stipulates that: “A child whose parents are both unknown shall have the nationality of the country of birth. If the child’s parentage is established, its nationality shall be determined by the rules applicable in cases where the parentage is known. A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was found.” Applying Article 14 of the Hague Convention on Senator Poe’s circumstances of birth will make her, at first blush, a Filipino citizen, having been found in Jaro, Iloilo, and therefore presumed born in that place, because both of her biological parents are unknown and she is presumed to be a citizen of the state where she was born.

But Article 15 of the same convention stipulates that: “Where the nationality of a State is not acquired automatically by reason of birth on its territory, a child born on the territory of that State of parents having no nationality, or of unknown nationality, may obtain the nationality of the said State. The law of that State shall determine the conditions governing the acquisition of its nationality in such cases.”

Since the Philippines does not adhere to the jus soli principle, Senator Poe cannot avail herself of the presumption of nationality of the state of birth under Article 14 of the Hague Convention. She would only be thus qualified to acquire the citizenship of the country where she was found, her presumed birthplace, pursuant to its pertinent law on naturalization, if anything. Without this legal procedure, she would not have acquired Filipino citizenship by the mere fact of her being born and found in the Philippines.

The Philippines is not a signatory to that 1930 Hague Convention. The provisions thus of this international agreement are not subsumed into domestic law pursuant to the treaty clause of the 1987 Constitution (Section 21, Article VII). Nonetheless, the Supreme Court may rule that the international agreement is a source of customary norm of international law deemed subsumed into domestic law under the incorporation clause of the Constitution, which says that the generally-accepted principles of international law are adopted as part of the law of the land (Section 1, Article II, 1987 Constitution).

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Concededly, the state has issued a Philippine passport to Senator Poe and she has long been sporting Filipino citizenship. But these factors do not matter because Philippine citizenship cannot be acquired by prescription and the state is not barred by the errors of its officials or agents.

Frank E. Lobrigo practiced law for 20 years. He was the regional legal coordinator for Bicol of the FPJ-Legarda campaign in 2004, and is now enrolled in the Graduate School of Law of San Beda College, Manila.

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TAGS: 2016 Elections, actors Fernando Poe Jr., Citizenship, Grace Poe, Philippines, politics, presidency, Susan Roces
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