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Commentary: Is Senator Grace Poe a Natural-born Citizen of the Philippines?
By:
Atty Ariel Anthony A. Tizon,
LLB ( Xavier University) LLM (Public International Law- University College London, PgDL (BPP University Law School, London)
Senator Grace Poe has been talked about as one of the possible candidates for the elective post of President or Vice-President of the Republic of the Philippines in the national elections of 2016. At this early, a lot of questions have been raised about her qualifications to run for either post, in respect to her citizenship and residency. This commentary would address specifically the issue whether Senator Grace is a natural-born citizen of the Philippines, a major qualification of a candidate for the Presidency or Vice-Presidency.
Brief Factual Background Relevant to the Issue
Senator Grace Poe ( Mary Grace Sonora Poe-Llamanzares ) was born on 3 September 1968 in Jaro, Iloilo City, Philippines. She was allegedly abandoned by her biological parents at birth and was found by a well-meaning person who initially took care of her. She was subsequently adopted by the late Fernando Poe Jr. and his wife while still a minor. Up to this writing, her biological parents are unknown. She resided in the United States and acquired United States Citizenship and renounced the same in 2010 (under Philippine law) prior to her appointment as the Chairperson of the Movie and Television Regulatory and Classification Board, a position requiring Philippine citizenship.
In 2013, she ran and won a seat in the Senate of the Philippines in the 2013 Senatorial Elections. Having been touted as a possible candidate for the presidency or vice-presidency in the national elections of 2016, her life has become a subject of public scrutiny leading to questions about her citizenship and residency in the Philippines. As a foundling, the issue whether she is a natural-born citizen of the Philippines has risen to the foreground.
Legal Background
Article VII Section 2 of the 1987 Philippine Constitution provides: “No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election”. These qualifications are similar to those of the Vice-President. To ascertain her citizenship, the applicable law is the 1935 Constitution of the Philippines, the pertinent portion of which reads:
“Article IV.—Citizenship
Section 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution.
(2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship.
(5) Those who are naturalized in accordance with law.”
A natural-born Filipino citizen is not defined therein.
As a foundling, her citizenship is not determined from a reading of the above provisions on citizenship and as far as this writer is aware there is no other domestic substantive or case law at the time of her birth to ascertain her citizenship or nationality. Further, her adoption by the spouses Poe did not grant her the natural-born citizenship status of her adoptive father as decided by the Philippine Supreme Court in the case of Cheng Leng v Galang (G R No. 11931 October 27, 1958) where a similar iassue was adjudicated by the Court. Hence the derivative theory on citizenship is unavailing for her.
There is no law in Philippine domestic jurisdiction determining the citizenship or nationality of a foundling at the moment of birth or subsequently thereafter. A foundling for purposes of citizenship is not defined in any of the Philippine Constitutions. Recently, the new Rules on Adoption promulgated by the Supreme Court in 2002 clearly defined a foundling as “a deserted or abandoned infant or child whose parents, guardian or relatives are unknown; or a child committed to an orphanage or charitable or similar institution with unknown facts of birth and parentage and registered in the Civil Register as a ‘foundling’”. It is also defined in Section 1 of Senate Bill No 2844 ( An Act Affording status to a Deserted or Abandoned Child with Unknown Parents now pending in the Senate as of 06/10 2015) as “a deserted or abandoned child or infant the identities of any parents are unknown”. However, there is still no domestic substantive or case law defining the nationality of a foundling. Even Senate Bill No 2844, if to become law without amendments could not provide a nationality to a foundling in the case of Senator Grace Poe because the conditions in said bill preclude the granting of nationality to her and its doubtful retroactive effect.
This lacuna in Philippine substantive and case law has put in limbo the status of Senator Grace Poe’s citizenship. Could international law provide an answer to this controversy?
The Citizenship/Nationality of Senator Grace Poe in International Law
There are a number of International Conventions and Declarations pertaining to Nationality and the status of Statelessness of an individual. For purposes of this commentary, this writer enumerates only those that are relevant to the issue from his point of view.
A. Convention on Certain Questions Relating to the Conflict of Nationality Law (Entry into force: 1 July 1937)
Article 1 It is for each State to determine under its own law who are its nationals.
This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.
Article 2 Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.
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Article 14 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.
Article 15 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.
B. Universal Declaration of Human Rights (New York, 10 December 1948)
Article 15
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
C. 1961 Convention on the Reduction of Statelessness (Philippines has yet to accede)
Article 1
1.A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted:
(a) at birth, by operation of law, or
(b) upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law.
Subject to the provisions of paragraph 2 of this Article, no such application may be rejected.
A Contracting State which provides for the grant of its nationality in accordance with sub-paragraph (b) of this paragraph may also provide for the grant of its nationality by operation of law at such age and subject to such conditions as may be prescribed by the national law.
Article 2
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.
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Article 12 (3)
The provisions of Article 2 of this Convention shall apply only to foundlings found in the territory of a Contracting State after the entry into force of the Convention for that State.
D. International Convention on Civil and Political Rights (New York, 16 December 1966)
Article 24
3) Every child has the right to acquire a nationality.
E. Convention on the Rights of a Child ( New York, 28 November 1989) (Phil accession 21 August 1990)
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
F. ASEAN Declaration of Human Rights (18 November 2012)
Article 18
Every person has the right to a nationality as prescribed by law. No person shall be deprived of such nationality nor denied the right to change that nationality.
Among the foregoing Conventions and Declarations, only the 1961 Convention on the Reduction of Statelessness (Article 1) is definite that in respect to a foundling, its nationality from its birth shall be that of the State where it was born. This is specific in the Convention. While declaring the right of a child to have a nationality, the rest of the enumerated conventions or declarations do not indicate which nationality or to which State the child may have to acquire nationality, nor guarantee that the nationality is acquired at birth. This is crucial in the final analysis of her nationality.
The Philippines has yet to accede to the 1961 Convention on the Reduction of Statelessness to be bound by its terms. However, it can be argued that the right of a person to have a nationality is an international custom and its codification in the conventions and declarations is only an affirmation of its stature in international law. Proceeding from this premise, one can therefore implement the provision of Article 1 of the 1961 Convention in the case of Grace Poe considering the Philippines adopt as part of the law of the land internationally accepted principles and customs in practice and cases decided by the Philippine Supreme Court. As a consequence of its application, Senator Grace Poe is arguably a Citizen of the Philippines from birth as the most favourable interpretation. And having been conferred Philippine nationality or citizenship at the time of her birth she is a natural-born Filipino (I Tolentino, COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES 188 [1990 ed.]). She had not done anything to acquire or perfect her citizenship thus meeting the definition of natural-born citizenship in the 1973 and 1987 Constitutions. A situation where the principle of "jus soli" in determining nationality comes to the rescue of the deficiency of the "jus sanguinis" principle in ascertaining the nationality/citizenship of a foundling.
Parenthetically, some Philippine lawyers and commentators alike argue she is a natural-born Filipino under Article 2 of the 1961 Convention on the Reduction of Statelessness on the further presumption that her biological parents were natural born Filipinos.
I most respectfully beg to disagree.
Article 2 of the said Convention is not applicable to her situation precisely because Article 12 (3) categorically limits Article 2 to those foundlings found after the Convention shall have been in force in the State of the Contracting Party. That is clear from the letter of the law and the Philippines is not a party to the Convention. Besides citizenship is a precious commodity. It should not be granted willy nilly the Supreme Court said in several cases.
Having arguably settled her Philippine nationality, the next question remains. Is she still a natural-born citizen to qualify for the Presidency or the Vice-Presidency after reacquiring Philippine citizenship and renouncing her US citizenship under RA 9225?
Senator Grace Poe renounced her US citizenship in 2010 (2012 according to some commentators) through the process prescribed in Republic Act 9225 (Citizenship and Re-acquisition Act of 2003). Under Philippine law, she is considered to have reacquired Filipino citizenship. As to the nature of Philippine citizenship reacquired by Senator Grace Poe, the case of Antonio Bengson III v HRET and Teodoro Cruz (GR No.142840 May 7, 2001) though involving R.A. 2630 is elucidating.
In this case private respondent Cruz was a natural-born citizen of the Philippines, born in 1960 of Filipino parents. He enlisted in the US Marine Corps in 1985 and was naturalized as a US citizen in 1990. As a consequence he lost his Philippine nationality pursuant to Commonwealth Act 63 Section 14. In 1994, Cruz reacquired his Philippine Citizenship under RA 2630. He subsequently ran and was elected as a member of the Philippine Congress (wherein candidates must be natural-born Filipinos, among others) in the 1998. He won over Petitioner Bengson who question his status claiming that he is no longer a natural-born Filipino upon his reacquisition of Philippine citizenship . Bengson claimed that by performing official acts under RA 2630 (which by the way the same acts for reacquisition of Philippine citizenship under RA 9225) Cruz could no longer be classified as a natural-born citizen of the Philippines hence disqualified to run for Congress. The Supreme Court held in favour of private respondent Cruz declaring him to have regained his old citizenship as a natural-born citizen in this wise:
Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had to perform an act to regain his citizenship is untenable. As correctly explained by the HRET in its decision, the term "natural-born citizen" was first defined in Article III, Section 4 of the 1973 Constitution as follows:
Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship.“
Two requisites must concur for a person to be considered as such: (1) a person must be a Filipino citizen from birth and (2) he does not have to perform any act to obtain or perfect his Philippine citizenship.
Under the 1973 Constitution definition, there were two categories of Filipino citizens which were not considered natural-born: (1) those who were naturalized and (2) those born before January 17, 1973 of Filipino mothers who, upon reaching the age of majority, elected Philippine citizenship. Those "naturalized citizens" were not considered natural-born obviously because they were not Filipinos at birth and had to perform an act to acquire Philippine citizenship. Those born of Filipino mothers before the effectivity of the 1973 Constitution were likewise not considered natural-born because they also had to perform an act to perfect their Philippine citizenship.
The present Constitution, however, now considers those born of Filipino mothers before the effectivity of the 1973 Constitution and who elected Philippine citizenship upon reaching the majority age as natural-born. After defining who are natural-born citizens, Section 2 of Article IV adds a sentence: "Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens." Consequently, only naturalized Filipinos are considered not natural-born citizens. It is apparent from the enumeration of who are citizens under the present Constitution that there are only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino. Noteworthy is the absence in said enumeration of a separate category for persons who, after losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-born or naturalized depending on the reasons for the loss of their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go through naturalization proceedings in order to reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House of Representatives.”
Given the fact that the process of reacquiring Philippine citizenship in RA 2630 is practically the same as that in RA 9225, and by clear and reasonable analogy therefore, it can be argued Senator Grace Poe reverted back to her original status as a natural-born citizen of the Philippine when she renounced her US citizenship pursuant to RA 9225.
To dispense away any lingering doubts as to her renunciation of her US citizenship in accordance with US law, in the relevant case of Maquiling vs COMELEC , Arnado et. al.(G.R. No. 195649 April 16, 2013) the Philippine Supreme Court en banc emphatically said:
“Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when he applied for repatriation before the Consulate General of the Philippines in San Francisco, USA, and again on 03 April 2009 simultaneous with the execution of his Affidavit of Renunciation. By taking the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the time, however, he likewise possessed American citizenship. Arnado had therefore become a dual citizen.
After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing an Affidavit of Renunciation, thus completing the requirements for eligibility to run for public office.
By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the effect of such renunciation under the laws of the foreign country.”
It should be so in accordance with the international custom of Parity or Equality of States and Articles 1 and 2 of Convention on Certain Questions Relating to the Conflict of Nationality Law.
Senator Grace Poe's residency is another matter.
Lastly, I am not in favour or against Senator Grace-Poe Llamanzares. I am simply deeply fascinated by her life story.
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