Not just Grace Poe, but about us

 I am not ready to publicly endorse Senator Grace Poe for the presidency. I prefer to wait a few more months, in fact if possible until March next year (if at all) before I disclose my preference. Things are so much in flux politically and it is best to wait and weigh things carefully. It would be interesting for example to see if the candidacy of Davao Mayor Rudy Duterte would gain traction. A credible campaign by a Mindanawon candidate would be exciting for many of us from our island.

Although not endorsing her now, the recent controversy regarding citizenship and residence issues about Senator Poe has become very personal for me. These issues go beyond Senator Poe and the 2016 elections; how they will be resolved will say a lot about our country. That is why in spite of a busy three weeks in Europe, working in the climate change negotiations and teaching international law, I made sure I took the time to research and write on these issues.

Personally, I consider the questions regarding the citizenship of the senator as an attack against all foundlings, adopted children, and families. That is repugnant to me because of my own direct experience of foundlings, adopted children, and adoptive parents here and abroad. On a similar vein, I see the danger the criticisms about her residence bring to all overseas Filipinos, migrant workers and dual citizens alike.

If these issues are not resolved properly, the consequences to millions of Filipinos could be serious and inimical. As a former OFW myself and as one who counts many overseas Filipinos as relatives, friends, and students, that is totally unacceptable.

Grace Poe definitely a natural-born citizen

By now, it is well known what the line of attacks is: that Senator Poe is not a natural born citizen, a requirement for one to become President, because she is a foundling.

Because of the circumstances of her birth, we do not know who her parents are and therefore we do not know whether she is a Filipino citizen. At the time of her birth in 1968, the 1935 Constitution considered all persons born of a Filipino father a citizen of the Philippines. If only the mother was Filipino, a person would have to elect Filipino citizenship at the age of 21. Because we do not know who her father or mother is, her detractors now claim that Senator Poe cannot be presumed to be a citizen of the Philippines. There is actually no distinction made in this regard between a natural-born and one that is not natural-born citizen, because no such distinction can be logically made.

This argument falls by the wayside quickly. The Philippines has always treated foundlings in our territory as citizens of the country. There are legal opinions out there in government to this effect and I am sure that will come out in time. Every day, we do it this way when infants are found in churches, streets, and garbage dumps. To do otherwise is to turn our backs on the many children that are abandoned in our country. 

When Senator Grace Poe was found, she was registered properly in the civil registrar of Iloilo City. When she was adopted by Fernando Poe and Susan Roces, the right steps were taken to find her parents. All of that assumed Filipino citizenship, and anyone impugning that would have to show conclusive proof that in fact she is a child of a foreign father and mother (both parents have to be foreigners). Without such proof, her status as a natural-born Filipino cannot be taken away from her. She does not have to prove filiation; the one questioning her status must prove that both her parents were foreign citizens.

An international law argument

The 1987 Constitution, international law, and our domestic laws all favor protecting foundlings like Grace Poe. Constitutional provisions and statutes on due process and human rights can only be interpreted to mandate the government, including courts, to always interpret the law from the best interest of a child. 

Philippine Daily Inquirer columnists retired Chief Justice Artemio Panganiban and the brilliant lawyer Oscar Franklin Tan have argued convincingly in favor of the Senator based on constitutional grounds. In essence, these two eminent minds conclude that due process and human rights require us to acknowledge the citizenship of Grace Poe and that it is natural born citizenship, reacquired through the dual citizenship law, because she did not have to take any additional step when she became a citizen upon her birth in Iloilo City.

I adopt in toto all the arguments of Chief Justice Panganiban and Attorney Tan but would add an international dimension to their arguments.

From an international law perspective, the Philippine law on citizenship must be interpreted as to avoid statelessness, in accordance with the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights (ICCPR, and the Convention on the Rights of children (CRC). The latter in particular specifically provides that the right to a nationality shall be implemented in accordance with national laws, in particular where the person would otherwise be stateless. 

Indeed, nationality is a basic human right. Like the right to life, liberty, and security of person, the right to a nationality, or to be the citizen of a nation, is an internationally recognized natural right inherent to every human being. It is both a universal and inalienable human right. Being inalienable to a human being, it attaches and exists at the moment of birth. Thus in the Universal Declaration of Human Rights, Article 15 specifically provides that (1) Everyone has the right to a nationality; and (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 24 of the International Covenant on Civil and Political Rights likewise states: (1) Every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State; (2) Every child shall be registered immediately after birth and shall have a name. (3) Every child has the right to acquire a nationality. 

Finally, Article 7 of the Convention on the Rights of the Child provided that (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. Article 8 of the same convention provides that: “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”

Convention on the reduction of statelessness

In the case of foundlings whose parents are unknown, the specific provision of international law which deals with the same is Article 2 of the Convention on the Reduction of Statelessness (CRS), which provides: “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.”

Unlike the ICCPR and the CCR, the Philippines has not ratified the CRS although, from what I know, we are taking steps toward that end.

Nevertheless, while the Philippines is not a signatory to the CRS, and while there is no Philippine law adopting Article 2 of this Convention which considers foundlings as Filipino citizens, there is also no Philippine law stating that foundlings are not Filipino citizens or are not considered Filipino citizens. 

In disposing of the issue of whether or not foundlings in the Philippines are considered Filipinos, we cannot conclude that just because the Philippines is not a signatory to the CRS it ipso facto does not recognize foundlings as Filipino citizens, or that it ipso facto rejects the presumption laid down in Article 2 of the CRS. More than being a non-signatory to the CRS, we must remember that the Philippines abides by the Universal Declaration of Human Rights as generally accepted principles of international law on the inalienable rights of human beings, and that it is a signatory to the ICCPR and the CRC.   

As a signatory to the CRC, the Philippines must comply with its provisions that state that a State Party shall ensure the implementation of the inalienable right to a nationality in accordance with its national law and its obligations under other international instruments (such as the ICCPR), in particular where the child would otherwise be stateless.

International law and the 1987 Constitution

The Philippine law on citizenship must thus be read in incorporation of this provision of the CRC and the recognized international principle on the right to a nationality of every human being, especially of a child. It must be read against engendering statelessness of the child or of any human being found in the Philippines who possesses no proof of nationality other than the fact that he or she was found in the Philippines. 

Philippine law does not state that foundlings are not Filipino citizens. Why should we therefore postulate the contrary, in violation of our commitment under the CRC to implement our laws in a manner that would avoid statelessness of a child? 

This is especially sound and reasonable under the incorporation doctrine of the 1987 Constitution – where we adopt the generally accepted principles of international law as part of the law of the land (Article 2, Section 2) – since the fundamental law itself has no provision that categorically states the contrary, that foundlings are not considered Philippine citizens.

To therefore say that a foundling cannot be considered a Philippine citizen is a violation of a child’s and a human being’s basic and inalienable human right to bear a nationality from birth. To say that a foundling cannot be considered a Philippine citizen just because his or her parents are not known is to arbitrarily deprive a human being of his or her inalienable right to a nationality from birth.

It is no different from violating or arbitrarily depriving him of his right to life, liberty, and security of person. Taking away the natural-born citizenship status of a foundling is akin to the salvaging  of a child.

Following the Universal Declaration of Human Rights (part already of our law of the land), as well as the ICCPR and the CRC, which we have ratified, the 1987 Constitution, including its provisions on citizenship and qualifications for president and other high officials, and cannot be interpreted in such a manner as to violate a person’s human right, or to arbitrarily deprive a human being of his inalienable right to a nationality.

Every year, many Filipino children lose their parents and all their relatives as a result of natural disasters in the Philippines. As Atty. Tan asked poignantly and powerfully in his column, do we now have to consider children of Super Typhoon Yolanda casualties as stateless orphans? Are they now to be considered not natural-born Filipinos? 

Indeed, the law on citizenship cannot be interpreted in such a manner as to produce such an absurd conclusion of law. More so can it not be interpreted as such in light of the international principle on the right of every human being to a nationality and the Philippines’ commitment under the CRC to implement the right of every person, especially a child, to a nationality under its laws, in particular where the child would otherwise be stateless.

What this controversy is all about

Let me end by speaking truth to power.

The controversy about Grace Poe’s citizenship and residence is not about law or who is qualified or not qualified to run for president. This was a preemptive attack on her, as she is expected to overtake the earlier frontrunner in surveys in the months to come. The purpose also is to discourage would-be donors from giving support to what otherwise might be perceived to be a runaway winner in the presidential 2016 elections.

But, fortunately, the attack against Senator Poe has backfired and has united many to support and "adopt" the senator. Financial and other support is probably escalating because of what many consider mindless, even heartless, claims. People have seen through the basic unfairness of the attack and know the consequences it will bring to all foundlings, adopted children, and families. I strongly suggest that children, family, and human rights activists and organizations remain vigilant on this issue and make sure that those who raise it pay the price at the polls.

In my view, the residence issue should be responded to in a similar manner.

What is being attacked with these questions is the right of overseas Filipinos, migrant workers, dual citizens, and especially returning citizens, to participate in our national life.

I take the view that animus revertendi, the intent to return which determines residence, is never lost as long as one has retained links to one’s original place of residence in the Philippines. Becoming a citizen of another country or living for decades in another country is irrelevant to determine that. It is when you have totally cut yourself from your residence in the Philippines, from your ties here, that you lose your status as resident. In this context, it does not matter when she renounced her American citizenship as she never ceased to be a resident of the Philippines for purposes of election law.

Similar to the need for unity by children, family and human rights activists on the citizenship issue, advocates of OFW and other overseas Filipinos must also step up and make the politicians who raise the residence issue pay a political price for their actions. We all have a stake and must make sure that this residence issue is decided properly.

From one point of view, the person most tested and challenged in this controversy is Senator Grace Poe. Voters now must ask how honest and truthful she has been in addressing this issue. Among others, did she panic and crumble before the viciousness of her critics? What steps will she now take to counter the attacks? Will this derail her plans and make her decide not to run? What kind of Grace Poe will we see emerging from this controversy?

But the stakes here are beyond Grace Poe and definitely way beyond the 2016 elections. Let's remember that, and act accordingly. – Rappler.com