There are two ways to begin this post.
The first is “Dear Supreme Court, I am mightily disappointed… but then, what’s new?”
The second is “I do sympathize with foundlings because the framers of the 1987 Constitution failed to categorically state how their citizenship ought to be determined.”
For now, I’ll let things stand in that order although, logically, the first is an offshoot of the second. In trying to fill a void in the law, in a good-intentioned move to grant natural-born citizenship status to foundlings, the Supreme Court effectively legislated and broke one of the most precious tenets of Constitutional Law — the separation of powers.
Foundlings and their citizenship
I understand the predicament of foundlings. And I do feel for them. They had already been abandoned by their own parents and, as the Constitution now stands, the law has abandoned them too by not automatically providing them citizenship and the appurtenant protection that citizenship bestows. Every Constitutional Convention and Commission could have addressed that void; not one did. In fact, the framers of the 1935 Constitution rejected a proposal to explicitly recognize foundlings as Filipinos.
There really is no reason, moral nor legal, not to grant the presumption that foundlings are natural-born citizens. International law veers toward that direction and our Constitution does say that the Philippines “adopts the generally accepted principles of international law as part of the law of the land.” The Universal Declaration of Human Rights (UDHR) and UN Convention on the Rights of the Child (UNCRC) — the Philippines is a signatory to both — provide that every child has a right to a nationality.
Does being a signatory to the UDHR and UNCRC automatically confer natural-born citizenship status to foundlings despite the silence of the Constitution?
Now, that is one gray area. In an ideal world (read: in a world where legislators have brains), the Legislature would have passed a law to clarify how foundlings acquire natural-born citizenship status. There has to be such a law because, otherwise, every foundling in the country — even blue-eyed blondes — would be a natural-born citizen. DNA test? Genetic ancestry tests are mostly hype.
What’s so wrong with granting natural-born citizenship to blue-eyed blondes found abandoned in the Philippines? It contravenes the principle of jus sanguinis (citizenship is determined by the citizenship of one or both biological parents and NOT by the place of birth) which the Philippines follows and has always followed. Jus sanguinis is not in the Constitution? Look again. Section 1 of Article IV of the 1987 Constitution declares as Filipino citizens “Those whose fathers or mothers are citizens of the Philippines”, among others.
The only way to make an exception with foundlings is to pass a law that says the principle of jus sanguinis cannot apply to them precisely because their parents are unknown. Yes, that would still grant natural-born citizenship to blue-eyed blonde foundlings but what is so wrong with that? Should we discriminate against them? Should the law abandon them the way their parents have?
The thing is, there is no law that says foundlings form an exception in the application of the principle of jus sanguinis insofar as citizenship goes. And in Poe v Comelec, the Supreme Court effectively wrote that law. And it shouldn’t have because the power of the Judicial Branch is limited to interpreting the law, not writing it.
In other words, the Supreme Court was the wrong forum to remove the gray area. A senator blessed with a brain could have sponsored a bill to address the peculiar predicament of ALL foundlings. Or, the Constitution could be amended, abandoning the principle of jus sanguinis, embracing the principle of jus soli and declaring that foundlings are presumed born on Philippine soil unless proven otherwise.
But here was Grace Poe, foundling and adopted daughter of two beloved celebrities (not beloved by me though because they had always been Marcos loyalists), who is running for President and who has no time to wait for some senator to do his job or for government, as a whole, to see some sense and amend the Constitution. If she waited, she’d have to quit the 2016 presidential race.
If I were Machiavellian, I’d accept the Poe v Comelec decision without reservation. Looking at the bigger picture, it benefits ALL foundlings, not just presidential candidate Grace Poe, and that is a very good thing.
The law cannot give way to political expediency. And, yes, the Poe v Comelec decision is a political expediency. While the masses may be enamoured with the idea of having Duterte or Binay become president, here is the Supreme Court, comprised of lawyers with distinguished track records in law practice, presented with a chance to thwart the election of a human rights violator and a notoriously corrupt politician. Mar Roxas does not have the numbers to beat those two candidates but Grace Poe has a good chance of doing it.
So, what did the Supreme Court do? It did a Machiavelli. The end justifies the means. By enabling Grace Poe to run for president, it dilutes the chance of either Binay or Duterte winning the race. That is political expediency. It doesn’t hurt either that countless foundlings, including those still unborn, will benefit too — even those who will never seek public office.
Does Grace Poe satisfy the 10-year residency requirement?
Assuming, for argument’s sake, that Grace Poe is a natural-born citizen who lost her Filipino citizenship by becoming a naturalized American and who thereafter reacquired her Filipino citizenship, does she satisfy the 10-year residency required by the Constitution?
SECTION 2. 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. [Article VII, 1987 Constitution]
The 10-year residency requirement should be counted from July 7, 2006 when Poe took her Oath of Allegiance to the Republic of the Philippines pursuant R.A. 9225, Section 3 of which states that “natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic…”
It is entirely irrelevant that Poe had been living here between 2005 and 2006 insofar as the 10-year residency requirement goes because during that period, she was still an American citizen.
But the Supreme Court said that Poe’s 10-year residency should be counted from 2005 when she physically relocated to the Philippines with the intention of settling here. If I had any doubt about the Poe v Comelec decision being a political expediency, that removed all doubts. Completely. Some call it political activism; I call it meddling.
So, there, Philippines. Unless Grace Poe bungles her campaign some more with statements like Danding Cojuangco is not to blame for the coco levy mess, she just might be the next President of the country.