Is Carpio wrong on Grace Poe’s citizenship? | Inquirer Opinion
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Sisyphus’ Lament

Is Carpio wrong on Grace Poe’s citizenship?

/ 12:11 AM September 28, 2015

SENIOR ASSOCIATE Justice Antonio Carpio is doubtless the country’s most formidable legal intellectual, one who figuratively stares down the Chinese Navy holding old maps. When Sen. Grace Poe’s citizenship was challenged before the Senate Electoral Tribunal (SET) he chairs, all people wanted to know was what he thought. Nevertheless, his position seemed unusually less straightforward this time.

Our Constitution recognizes citizenship by parentage under the jus sanguinis principle. One is generally Filipino if one’s father or mother is Filipino.

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Further, the Constitution requires that presidents be “natural-born,” or citizens “from birth without having to perform any act to acquire or perfect their Philippine citizenship.” Our law also provides that a natural-born Filipino who gives up then reacquires her citizenship remains natural-born.

Poe cannot prove that her parents are Filipino, the unknown ones who abandoned her in front of an Iloilo cathedral. However, as I wrote in “Is Grace Poe a Martian?” (Opinion, 6/8/15), those who argue that Poe is thus not Filipino—from SET petitioner Rizalito David to possible opposition “senatoriable” Prof. Harry Roque—are forced to argue that Poe must be a stateless person—a refugee!

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I previously criticized this as cruel and inhuman. There cannot be so huge a gap in law that strips someone who does not know who her parents are of citizenship. If a “Yolanda” (international name: Haiyan)-level typhoon destroys an entire town along with all its birth records, surviving orphans cannot become stateless.

The Universal Declaration of Human Rights (UDHR) states that “[e]veryone has the right to a nationality.” This is echoed by the UN International Covenant on Civil and Political Rights and the UN Convention on the Rights of the Child. Further, statelessness is strongly disfavored in international law. These principles are so fundamental that they are considered “international custom” and deemed part of Philippine law. If one rejects that Poe was born a refugee, one must conclude that she was born Filipino, since she could not be anything else.

Note, it is irrelevant that the Philippines never signed the UN Convention on the Reduction of Statelessness, given the more fundamental UDHR. This convention states: “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 that territory of parents possessing the nationality of that State.” Note, this special wording would apply the rule to countries that trace citizenship by parentage, not by place, like the Philippines.

Note, it is irrelevant that Poe’s adoption does not transfer her parents’ citizenship. And as I explained in “Grace Poe’s use of US passport irrelevant” (Inquirer.net, 9/24/15), nitpicking over the details of her renunciation of US citizenship, such as her use of a US passport as required by the US government while it was processing her renunciation, is also irrelevant.

Unsurprisingly, Carpio rejected that Poe is stateless and concluded she must be Filipino under the international custom. However, Carpio always finds his own angle, and argued the international custom is an additional legal step that prevents a foundling from being natural-born. Carpio reasoned that international custom cannot add categories of natural-born Filipinos, such as foundlings, not in the Constitution. The legal reconciliation of all this is to declare Poe Filipino, but not natural-born.

Carpio’s logic seems inconsistent. If foundlings are not Filipinos at birth, then one returns to arguing that Poe was born a refugee, contrary to the international custom. If a foundling never applies for a passport or birth certificate and never performed any act to clarify her citizenship, Carpio would still have to consider her Filipino, having accepted the international custom. Further, if the Philippines signed the UN Convention on the

Reduction of Statelessness or passed a law making foundlings natural-born citizens at birth, one doubts it would be unconstitutional.

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Carpio is reiterating his dissent in the 2004 Supreme Court case on the citizenship of Poe’s adoptive father, Fernando Poe Jr. He argued that if a Filipino father recognizes an illegitimate child at birth, the child would be a natural-born Filipino. If, however, recognition comes after birth, this is an intermediate step to perfect citizenship and the child cannot be natural-born.

I would prefer that Carpio simply take a position that Poe is stateless or that she was born a Filipino. I would argue that the international custom humanely excuses foundlings from having to prove who their parents were, without creating new categories of natural-born citizens not in the Constitution. Finally, a presumption or confirmation of a status one was in fact born with should not be an intermediate step that prevents one from being natural-born, contrary to how he treated illegitimate children in the FPJ case and in line with how he would accept Poe as natural-born if DNA testing proves that she was born to a Filipino father.

The esteemed Prof. Rolly Vinluan recently advised: “Since Grace Poe’s natural-born citizenship is legally defensible, why don’t we just accept it and move on to more important matters?” Indeed, Randy David has criticized Poe for presenting “a list of unconnected topics rather than a clear vision,” and Ma. Ceres Doyo has argued that someone who has renounced citizenship should not run for president, as “it is not like love the second time around.”

Poe surely prefers to focus public debate on how she responds to these weightier issues, which are for ballots, not a tribunal, to resolve.

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React: [email protected], Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

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