In a Philippine election, a candidate will be disqualified if she is not a Filipino citizen. If she wants to be President or Vice-President, she also has to be a natural-born Filipino.
When Grace Poe’s citizenship is questioned, she will have to prove her citizenship, as well as whether she is naturalized or natural-born.
She can only be a natural-born Filipino if she was born to a Filipino mother or father. There is no other way. But since she does not know her biological parents, or their citizenship, could she be considered Filipino? And if she is a Filipino citizen, is she natural-born or naturalized?
A foundling is an abandoned child whose parents or relatives are unknown. Nobody knows if her biological parents are Filipino. A person who looks Filipino could be a foreigner – for example, if she was born of a Malaysian father and an Italian mother. On the other hand, a blonde, blue-eyed girl can be a natural-born Filipino if she was born to naturalized Caucasian parents.
Citizenship is governed by only one law – the Philippine Constitution, (of which there are three versions – the 1935, 1973, and 1987 Constitutions).
Under the 1973 and 1987 Constitutions, those born of Filipino fathers or mothers are Filipino citizens. But if a person with a Filipino mother and an alien father was born before January 17, 1973, that person can only be a Filipino citizen if she elects Philippine citizenship some time upon reaching the age of majority. If she does not, then she would not be considered Filipino. (This was because under the 1935 Constitution, which was in effect before the 1973 Constitution, Filipino citizenship is automatically granted only to those with Filipino fathers.) If the Filipino mother is unmarried, the child is automatically Filipino. Lastly, a person can be a Filipino citizen if she is naturalized by law.
Legal experts have made their opinions on the citizenship of foundlings. Here are their arguments:
Foundlings cannot be considered citizens unless they prove that one of their biological parents is Filipino.
Legal principles that the Supreme Court had consistently applied in a span of decades find application here.
First of all, the Supreme Court ruled that one who claims to be Filipino must satisfactorily PROVE that she is Filipino, by showing that one of her biological parents are Filipino.
The Supreme Court declared that there can be no presumption of Philippine citizenship. That means that if a foundling cannot prove citizenship, she cannot be considered Filipino.
Secondly, the act of adoption will not confer Filipino citizenship. If the foundling was adopted by a Filipino citizen, this act will not confer citizenship on the child.
Thirdly, the Philippine Constitution does not give a presumption or deem as Filipino those who cannot identify their source of citizenship.
There is a list of persons who are considered citizens. One’s citizenship can be passed by blood (the principle of jus sanguinis), or one becomes a naturalized citizen by action of law. These are the only two ways one can be a citizen.
Many legal experts do not like this position. They feel that it prejudices foundlings rather harshly. They say that it would have weird repercussions. They say, for example, that a lot of street kids are foundlings, and lack documentation of their citizenship. It would be crazy for the State to consider all of them illegal aliens and try to deport them.
However, this belief is exaggerated.
The Supreme Court was rather strict in its doctrine. Their decisions indicate that the only time that a person is required to prove her citizenship is when Filipino citizenship is actually questioned in a proceeding precisely for that purpose. So, that means that if a foundling was registered as a Filipino citizen, there would be no question about her citizenship at all – unless a court case is filed where she must prove it. (Thankfully, the only court cases that may be filed against them for proving citizenship are election cases and petitions for certiorari governing immigration cases.)
Why should the foundling be the one to prove her citizenship? That’s the effect of the Supreme Court’s doctrine that there is no presumption of citizenship – the one who claims to be Filipino must be the one to prove it.
Foundlings should automatically be considered Filipino citizens.
Those of this opinion feel that the State should exercise some compassion with regard to foundlings. After all, it is not their fault that they are foundlings. Instead of making life harder for them, the State, as Parens Patriae (Latin for “parent of the country”), must have compassion and should grant them citizenship. Even if they are blond and blue-eyed and very Caucasian.
The counter-argument to that position is that the Philippines is a government of laws, not of men. Hence the government should act based on the laws that govern it, not simply out of compassion, because nobody should be exempt from the law.
The Supreme Court noted in its decisions that Philippine laws on citizenship are very restrictive. It is so restrictive that the drafters of our Constitution even differentiate between natural-born and naturalized. The Supreme Court has already declared that there is no presumption of citizenship and that one who claims to be Filipino should prove it. It may be harsh, but that’s the law.
The second legal basis is based on international law. Some experts are of the belief that principles of international law require the Philippines to bestow citizenship on foundlings. Two international laws are of notable importance.
The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Law, states in Article 14, “A child whose parents are both unknown shall have the nationality of the country of birth.” The second is the 1961 Convention on Reduction of Statelessness. Article 2 of that convention allows a foundling to be considered to have been born of parents who are citizens of the contracting state. (Exact words: “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 the territory of parents possessing the nationality of that State.”).
There is a big problem with that argument – first of all (and most importantly), the Philippines is not a signatory to those international conventions. Those conventions go against the Philippine Constitution (1935, 1973, and 1987) provisions on citizenship. That may be why we never became party to them.
Those who argue in favor of these conventions say that they are now considered “customary international law” and by virtue of the constitutional law principle that “adopts the generally accepted principles of international law as part of the law of the land,” the Philippines has actually adopted these two conventions even though it is not signatory thereto. They believe that these conventions were brought about by international custom and that, because of the length of time that has passed, these conventions have ripened into something that one can derive rights from.
Again, there are problems with that. Any law, whether local or international, which goes against any provision of the Constitution is void. Since these conventions go against our citizenship provisions, then they cannot have an effect here.
Also, international customary laws are those aspects of international law that derive from widespread custom, acceptance, and practice by States. But these conventions cannot be considered customary international law because many countries do not accept them. There are few States that have signed, ratified, and accepted them. Since there is no widespread acceptance of the principles in these conventions, they cannot be considered international custom.
In any case, both conventions do not require the contracting State to bestow citizenship conclusively (i.e., permanently) on the foundling. They allow the state leeway to remove citizenship if it could be shown that the child’s parents are not citizens.
It is possible to harmonize this with the Supreme Court rulings of the past decades. A liberal Supreme Court could declare that there is an international customary law that allows a state to consider foundlings as citizens. However, if citizenship is questioned, the foundling has the burden of proving it. This will allow indigents with no citizenship records to vote, get passports, and not get deported.
NATURAL-BORN OR NATURALIZED?
It gets tricky now.
Let’s assume that the foundling derives Filipino citizenship by virtue of international law or international customary law, and not by virtue of blood ties to a Filipino biological parent.
Is a foundling considered natural-born or naturalized citizen?
The Constitution describes two types of citizens. A natural-born Filipino has more rights than a naturalized Filipino. They are the only ones who are allowed to hold positions in the highest executive, legislative, and judicial offices in the country, as well as the constitutional commissions.
This is how restrictive Philippine laws on citizenship are. (It is so hard to become a naturalized citizen that I actually think naturalized citizens love our country more because of the hassle they take to become a citizen, the huge investment, and the fact that they have greater stake in the country than most natural-born citizens.)
The Philippine Constitution defines a naturalized Filipino as one who became Filipino in accordance with law.
So, if a foundling derives her Filipino citizenship by virtue of international law, then she becomes a Filipino citizen by virtue of law! This makes her a naturalized Filipino citizen.
The constitution states that a natural-born Filipino is one who is a citizen from birth without having to perform any act to acquire or perfect the citizenship. One may argue that a child did not do anything to acquire or perfect citizenship, so she should be considered natural-born.
That’s a bad argument when you see it in the context of Supreme Court rulings.
In the first place, the Supreme Court has ruled that children of foreign nationals who are naturalized are also naturalized Filipinos even though they did not perform any act to acquire citizenship. They are not considered natural-born even when they did not do a thing to obtain their new nationality. They were naturalized in accordance with law. (Note that if the children were born AFTER their parents were naturalized, then they are considered natural-born).
In the second place, under the 1987 Constitution, international law forms part of the laws of the land. However, it does not form part of the Constitution, so that means that international law will not add new qualifications for Filipino citizenship. However, it is considered same level and effect as a law passed by the Legislature.
If these conventions would be considered laws that bestow nationality on foundlings, then any who derive their Filipino citizenship in accordance with them are citizens who were naturalized in accordance with law.
Since the only way to be a natural-born citizen is to have Filipino parents, then foundlings can only be considered natural-born citizens if they can adduce evidence showing that their biological parents are Filipinos.
That’s it. Those are the arguments. Now, we wait until a case is brought, and we’ll see how the Supreme Court would rule.
Laws and Men 