By Vince Alvic. A. F. Nonato, Reporter

Poe a naturalized citizen under international law

Posted on September 22, 2015

SENATOR Grace Poe can be considered a naturalized citizen under customary international law, but not a natural-born Filipino eligible to hold a national position, Supreme Court Associate Justice Antonio T. Carpio said during the Senate Electoral Tribunal’s (SET) Monday hearing.

Mr. Carpio, who chairs the nine-member SET, made the observation, even as the senator’s camp later insisted that she should enjoy the presumption of being natural-born in the absence of information on her parentage.

The senior magistrate said that without a law to bridge the gap on a foundling’s citizenship under the 1935 Constitution, the 1966 Covenant on Civil and Political Rights can be applied to grant the right to nationality.

But since foundlings were not considered natural-born under the 1935 Constitution, Mr. Carpio said the international treaty cannot take primacy over the charter in place when Ms. Poe was born in 1968.

“If there is a customary international law saying foundlings can be deemed citizens of the country where they were found, we apply that under the principle of incorporation. It is deemed as municipal law,” Mr. Carpio said. “But, you are still a naturalized citizen, not natural-born. Because if customary international law says a foundling is natural-born, it will violate our Constitution and we cannot apply it here.”

Under Article 4, Section 1 of the 1935 Constitution, one can be considered natural-born if he’s born to a Filipino father, or he elected to Philippine citizenship if born to a Filipino mother. This is in accordance to the principle of jus sanguinis, where nationality is determined by biological parentage.

The same section also considered “those who are naturalized in accordance with law” as Philippine citizens.

Mr. Carpio was prompted to go into this line of questioning after counsel Manuelito R. Luna, who represented petitioner Rizalito Y. David, said foundlings with unknown parentages were not considered Filipino citizens under the 1935 Charter.

Even as Ms. Poe could not be considered natural-born, Mr. Carpio opined that “a foundling has a right to acquire nationality” to avoid statelessness.

Mr. David, a defeated 2013 senatorial candidate, sought Ms. Poe’s qualification for failing to meet the 1987 Constitution’s requirement that a candidate for a national position be a natural-born citizen

Mr. Luna told the tribunal that even if Ms. Poe garnered over 20 million votes and topped the 2013 senatorial race: “we have to uphold the Constitution.”

Still, the lawyer clarified that the case did not aim to discriminate against foundlings. Asked by Senator Loren B. Legarda if he was “foreclosing all these seemingly ordinary occupations and hopes to foundlings,” Mr. Luna said he was merely citing the law.

“There is actually a discrimination [between a foundling and a non-foundling]... but the discrimination is caused by the Constitution itself, not by the petitioner. It is the result of our laws,” he said.

Later, Mr. Luna responded to a similar point by Senator Paolo Benigno A. Aquino IV by saying foundlings too are entitled to such rights, “but there should be a mechanism by which that right can ripen into something concrete which they can enjoy as full citizens of the Republic.”

Without such a mechanism, he maintained foundlings like Ms. Poe cannot enjoy the rights of a natural-born citizen.

But Ms. Poe’s counsel, Alexander J. Poblador, said Mr. David should be the one to bear the burden of disproving her status as a natural-born, not the other way around.

Senator Pia S. Cayetano and Associate Justice Arturo D. Brion quizzed Mr. Poblador if Mr. David has satisfied this burden by pointing out the senator’s lack of a natural-born status under the 1935 Constitution.

In response, the lawyer argued she should enjoy the presumption of being a natural-born for the lack of evidence disputing it.

Mr. Poblador said Mr. David failed to provide evidence that Ms. Poe was born to foreigner parents. The fact that she was a foundling, he said, does not prove that her parents were not Filipinos.

“Now we say that because she’s a foundling there’s no way of finding out [her parents’ citizenship]. But isn’t that precisely the situation where we have to invoke or apply the presumption of law?” he said.

Ms. Cayetano noted that “the mere citation of the Constitution, the laws... is not sufficient in terms of overcoming the presumption that respondent is a natural-born Filipino.”

Mr. Brion, however, wondered if Ms. Poe’s insistence on her natural-born status is “baseless because her parents are not known,” which meant she would bear the burden of proving her eligibility.

Even as the Poe camp insisted she should be assumed a natural-born citizen, Mr. Poblador disclosed the senator will undergo DNA testing to seek her parentage and address doubts on her citizenship.

“I have been authorized to say without prejudice to our position that we don’t have burden of proof, that we have the presumption of law in our favor, that the respondent has taken steps towards having a DNA test conducted with a probable biological match,” the lawyer said.

Mr. Carpio, for his part, replied: “If you can present a DNA match, that would be wonderful.”

“We have rules in court that a DNA match is a conclusive presumption of affiliation. So, that would solve our problems here, because you cannot argue with that anymore,” he said.

The four other members in attendance were: Associate Justice Teresita J. Leonardo-de Castro, and Senators Vicente “Tito” C. Sotto III, Cynthia A. Villar and Nancy S. Binay.

Ms. Binay, the daughter of the vice-president and declared presidential candidate Jejomar C. Binay, chose not to inhibit from the proceedings. Although she attended the hearing, she did not ask any questions either.

The hearing lasted four hours; the parties were then ordered to submit their respective memoranda in 15 days.

While naturalized citizens can hold local elective posts, only natural-born Filipinos can be elected president, vice-president, senator or congressman.

Ms. Poe declared her intention to run for the presidency on Sept. 16, amid the citizenship issue harking back to a failed bid in 2004 by her adoptive father, Fernando Poe, Jr.

In 1968, Ms. Poe was reportedly left as a newborn baby in a church in Jaro, Iloilo, and was adopted by Mr. Poe and wife, Susan S. Roces, in 1974.

The senator is also currently facing an electoral offense case filed by Mr. David for allegedly misrepresenting herself as a natural-born eligible to hold the senatorial post. While an unfavorable SET ruling may cost her the office, an electoral offense case carries the penalty of imprisonment for one to six years, as well as disqualification from public office and deprivation of the right of suffrage.