Foundlings’ right to be deemed natural-born

Let us disabuse our minds of the notion that the 1987 Constitution does not consider foundlings natural-born citizens. An issue of momentous consequence to a particular disadvantaged group in our society should not lend itself to so hasty a legal conclusion.

The legal confusion stems from a mistaken application of a basic maxim in statutory construction—expressio unius est exclusio alterius. Just because Article IV of the Constitution states that those whose fathers or mothers are citizens of the Philippines shall be considered natural-born citizens, does not mean that those who cannot establish blood ties to a Filipino citizen are not natural-born.

The principle of jus sanguinis in Article IV, or citizenship by blood, is not exclusive. Fr. Joaquin Bernas, SJ, writes that there is nothing in the Constitution to prevent a law from recognizing some other rule on citizenship such as jus soli, or citizenship by place of birth, as supplementary to it. In pari passu, some persons may be presumed to have Filipino parents under the law in order to qualify as natural-born.

This is precisely the case. We should note that Article IV does not expressly exclude foundlings from the category of natural-born citizens. It is just silent about them.

The effect of this silence on the citizenship of foundlings permits the possibility of treating them as natural-born citizens under some other section of the Constitution, such as Article II, which states that the Philippines also adopts the generally accepted principles of international law as part of the law of the land.

If it can be agreed that under international law foundlings are deemed born of parents of a particular nationality, then because international law is part of the law of the land, foundlings can be considered born of Filipino parents and, hence, are natural-born citizens under our law.

It is nonsense to conclude that since foundlings are not covered by Article IV, any other article in the same document that may suggest that they are natural-born citizens is violative of the Constitution. Article IV is not the entire Constitution. Article II must be considered hand in hand with Article IV.

Thus, we have to extend natural-born citizenship to both those born of a Filipino parent and to foundlings found in the territory of the state. Not only those whom serendipity has allowed to know who their parents are should be privileged. We must interpret the Constitution in a way that will harmonize all its parts, and not treat one provision as antagonistic to the other. This is another basic principle of statutory construction overriding a literalist interpretation of the law, or what we call verba legis.

The genuine issue, to my mind, is whether we can be justified in saying that the status of foundlings as natural-born citizens is a generally accepted principle of international law. Again we will be too hasty to say no to this question.

Why? Because the protection extended to foundlings is reflective of the universal concern against statelessness. It is a consensus that has arisen since the Hague Convention in 1930 presumed foundlings to be born in the country where found and to possess the nationality of the country of birth.

This presumption was expanded in the 1961 Convention on the Reduction of Statelessness. A foundling is now considered born within the state where found of parents possessing the nationality of that state, under both jus soli and jus sanguinis.

Contrary to the thinking of some legalists, we have acceded to two subsequent international conventions that were meant to implement the protection granted foundlings under the 1961 Convention.

These are the 1966 International Covenant on Civil and Political Rights and the 1989 Convention on the Rights of the Child. Read together, they grant a child the right to acquire a nationality, and impose on the state the obligation to ensure that it acquires nationality under relevant international instruments to prevent it from being stateless.

What is the most crucial of these relevant international instruments if not the 1961 Convention? This famous treaty serves as the essential framework for treating foundlings as natural-born citizens.

It defines who foundlings are, by presuming that they are born of parents possessing the nationality of the state where found, and grants them this nationality at birth, either by operation of law or upon application by the foundling within a certain time frame.

We have no procedure in our law for foundlings to claim citizenship by birth. It is by operation of law that we consider them citizens at birth. It is thus wrong to say that there is no local law that automatically confers citizenship on a foundling at birth.

If we treat the 1961 Convention on the level of local legislation, then we can say that, by law, foundlings are considered having Filipino parents, and since they are deemed born of Filipino parents, the Constitution treats them as natural-born citizens. They are citizens at birth, for no other reason than that, by presumption of law, they have Filipino parents.

It is no wonder why legalists are unrelenting in their argument that we have not ratified the 1961 Convention. It is their only way out of a bind. We affirmed the recognition given by the 1961 Convention to foundlings when we adhered to the 1966 and 1989 conventions.

Not only that. There is no indication that we have not ratified the 1961 Convention because we do not agree to its provisions. Google reports that in a December 2011 ministerial meeting held by the United Nations High Commissioner for Refugees, the Philippines committed to fulfill its pledge to accede to the 1961 Convention.

Let us not give in so cavalierly to the false theory that foundlings cannot be natural-born citizens under our Constitution. In the name of all the civilized values we hold dear, let us make the principle of equality in our Constitution a living reality for those whom fate has placed at a disadvantage.

Mario Guariña III is a former associate justice of the Court of Appeals.