Legal and emotional entanglements in Poe issue

THE ARGUMENTS peddled in the marketplace of ideas on the issue involving Grace Poe and her citizenship have been a mix of the sentimental and the legal. The sentimental has easily trounced the legal because no legal argument can compete with the heart-wrenching story of a foundling before the court of public opinion.

The problem with using an emotional solution to a purely legal problem (whether a foundling is automatically a natural-born citizen) is that we are led to assume that all similar foundling issues in the future will be a photocopy of the Poe story.

But what if the foundling-turned-politician has the character detested by many, like Jejomar Binay or Mar Roxas? Will we similarly advocate the argument that the abhorred politician is a natural-born citizen?

What if a blue-eyed, blond baby is found in a garbage bin on the tourist island of Boracay? What if we accept Syrian refugees in Palawan and a baby with Middle Eastern features is found on the doorstep of a monastery there? What if a baby of African descent is found in a hotel plant box after an international conference? By being foundlings, should the children be automatically documented as natural-born Filipinos, or given the status of citizens via a special fiat of naturalization?

These hypothetical examples illustrate that any decision on the issue will be the law of the land for all foundlings no matter how different their background and life narratives are from the Poe story. They demonstrate that the solution to the issue must be legal and not emotional. Supreme Court Senior Associate Justice Antonio Carpio was lamentably bullied for merely steering the debate to the legal arena and away from the emotional twilight zone.

The Philippine Constitution exclusively adopts the jus sanguinis principle (“law of the blood”) where Filipinos acquire natural-born citizenship when one parent is a Filipino citizen. There is no relevant constitutional provision that vests natural-born status on the basis of birth on Philippine soil (jus soli or “law of the soil”).

If an exception to the “law of the blood” principle is made, it is a major exception to the general rule. Such exception must be established with unquestionable certainty, because it is completely opposite to and amends the expressed will of the people as enshrined in the Constitution on the issue of natural-born citizenship.

The claim that Poe is a natural-born citizen because she was a foundling born on Philippine soil is based on an alleged exception supplied by the Convention on the Reduction of Statelessness. However, a thorough reading reveals a questionable reliance on this treaty.

Drafted in 1961, the treaty went into effect only in 1975 after ratification by six countries. Thus, when Poe was born in 1968 this treaty was not yet effective, and there was no customary international law to speak of. Even today after more than 50 years, only 64 out of 194 countries have signed. The Philippines is not even a signatory. How can this treaty be considered a customary international law when 66 percent of all countries have not signed? And there is no evidence at all that this treaty has become customary international law by reason of widespread use.

Even if we hypothesize that the treaty binds the Philippines, the treaty itself does not bestow natural-born citizenship on Poe. It does not say “foundlings are deemed citizens of the state where they are found.” What the treaty provides is that foundlings shall be considered to have both the “law of the blood” and the “law of the soil” connections with the country where they are found (Article 2). As a result of these two connections imputed to foundlings, the state is mandated to either pass a new law granting citizenship to foundlings or enact an amendatory law extending the applicability of its existing citizenship laws to foundlings (Article 1).

The leeway given to countries on how to implement the grant of citizenship to foundlings recognizes the purely domestic nature of citizenship, one that has always been within a country’s sovereign domain, and international law cannot just ram citizens down the throat of countries.

Our constitutional provisions on natural-born citizenship do not apply to foundlings because they were enacted without the spirit and intention to give citizenship to foundlings. Congress needs to pass new or amendatory laws as discussed in this piece. In the absence of such special laws, Poe may be constrained to prove her natural-born status by presenting evidence (DNA, etc.) that she is the blood child of a Filipino citizen.

These discussions portray a real picture of the harsh inadequacies of our laws and defective legal terrain as far as our foundlings are concerned.

Lastly, the only issue to be decided by the Senate Electoral Tribunal is whether Poe has a natural-born status, and not whether she is a Filipino citizen. A SET decision adverse to Poe will not make her stateless because there could have been other modes for her to have acquired citizenship, outside of being a natural-born. It is pure conjecture to venture an early opinion on this separate issue of core citizenship since it requires a full-blown presentation of contrasting evidence.

Joel Ruiz Butuyan is the president of the Center for International Law (Centerlaw).