Human rights aspects of Poe case

Whether it is the Senate Electoral Tribunal, the Commission on Elections or the Supreme Court deciding the Poe disqualification cases, there are interesting and important legal issues that will have to be resolved. Is a foundling a citizen of the Philippines? Is or she a natural-born citizen? Is a Filipino who renounces his or her Filipino citizenship and subsequently reacquires it still a natural born citizen? Do you count the number of years of residence in the Philippines starting when that person physically returned with her family (in the case of Poe, 2005) or when she became a dual citizen (Poe did this in 2006)? Is a statement in one’s certificate of candidacy for senator binding even of it was made in error?

There are no yes or no, black or white answers, to these questions. There is the text of the 1987 Constitution, statutory construction, international law and precedent  to be considered. There are also important ethical and political considerations that need to be taken into account.

In an article published online , I argued that what is at stake in one of the main issues in the Poe disqualification cases is the status of millions of other Filipinos who were born with parents unknown and those foundlings who will be born in the future. Since natural-born citizenship is a requirement for many offices – not just the president, but nearly a 100 elective and appointive positions are exclusive to natural born citizens -, a ruling that foundlings are not natural-born citizens will result in depriving these foundlings an opportunity to serve in those offices. Congress can even expand this list to other officials if it so desires although that could be questioned for being unconstitutional.

I also argued that there is no middle ground between declaring Poe to be a natural-born citizen or classifying her and all foundlings as stateless citizens. Atty. Estrella Elamparo, who is one of those who filed the case against Poe was emphatic when she told reporters: “She is at best presumed Filipino, but definitely not natural-born. Legally, she is stateless.”

In my view, if foundlings are considered citizens, they can only be considered natural-born citizens. Foundlings cannot be considered naturalized citizens as naturalization requires an explicit procedure required by law. Naturalization is a procedure specifically provided by law based on an application process. Naturalization can happen through administrative, judicial, and legislative means. It is not and never has been automatically conferred.

A ruling that foundlings are stateless has very serious consequences. This is not just about running for political office or being appointed to a high position in government, but of the basic human rights which require citizenship for them to be bestowed and exercised. A stateless person has only the barest of human rights; many civil and political rights are denied such person.

This is why last week eight pro-foundling groups – Kaisahang Buhay Foundation, Parenting Foundation of the Philippines, Child Justice League, House of Refuge Foundation Inc., Association of Child Caring Agencies of the Philippines, Ateneo Human Rights Center of the Ateneo School School of Law, Norfil Foundation and Cribs Foundation – placed full page ads in the Inquirer and Philippine Star, Signed by their presidents or executive directors, the statement warned about the impact of a Poe ruling on millions of Filipinos.

“God forbid the current doctors , lawyers, accountants and architects, who happen to be foundlings at birth be stripped of their licenses, because of the short sightedness of a narrow-minded few,”  according to the these reputable and nonpartisan groups. They pointed out that such a decision would violate the rights of foundlings under the Convention on the Rights of the Child (CRC), an international agreement we have ratified. Such a decision would also  violate the constitutional right of foundlings to equal protection.

I have written in this column before that, 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, in particular where the child would otherwise be stateless.

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 possess 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. Clearly, the law on citizenship cannot be interpreted in such a manner as to produce such an absurd and on its face unjust conclusion of law.

Moreover, not only foundlings will be affected but their families too, including their adoptive parents and relatives where they have in fact been adopted. And for sure, as I pointed out in my online article, such a decision would have a chilling effect on adoption as foreign or stateless children cannot be adopted under present law. Adoptive parents also would be deterred from adopting foundlings because of the complications involved with respect to their legal status.

In sum, it is not just the political future of Grace Poe that is at stake in this issue of the status of the foundlings. The human rights of millions of Filipinos are on the balance. The same can be sued of the other issue against her – the alleged lack of resistance. A decision on that issue will affect million of Filipinos in the global diaspora. I will write about that next.

Visit this website to access the article.

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