What is the citizenship of a foundling? 2 lawyers share their views

The issue on Senator Grace Poe being a foundling and her citizenship and eligibility to run for President has stirred opposing views from two lawyers.

United Nationalist Alliance (UNA) interim secretary general JV Bautista earlier claimed that Poe could be disqualified or even unseated because she is not a “natural-born Filipino.”

Bautista said Poe, an adopted daughter of the late movie actor Fernando Poe Jr. and actress Susan Roces, was abandoned in a church in Jaro, Iloilo province. An abandoned child is also known as a “foundling.”

He said a “foundling” is stateless.

Lawyer Harry Roque seemed to agree with Bautista’s view. In his blog, Roque said “a foundling, though, does not enjoy a presumption of being a natural-born citizen. The Convention on Statelessness does guarantee a foundling the citizenship of the foundling’s parents. This is not the same as the natural-born Filipino citizenship required of all candidates for President, Vice-President and Congress. Filipinos who are not natural-born can run for local posts but not for Congress and the Presidency.”

Roque said he wanted a definite answer if a foundling legally adopted by Filipino parents enjoys the status of a natural-born Filipino because he is not aware of any jurisprudence on the matter.

But Atty. Romulo Macalintal, a noted election lawyer, said Poe is a natural-born Filipino being the adopted daughter of Filipino parents.

Macalintal explained that the social justice principle that those who have less in life should have more in law should be applied to Poe. The state is even mandated to care for abandoned children under the principle of parens patriae (parent of the nation).

He added that in the case of Tecson where the Supreme Court put to rest any question on the citizenship of Poe’s father, Fernando Poe Jr., it made a distinction as to the kind of children who may acquire the Filipino citizenship of their father by ruling.

“Providing neither conditions nor distinctions, the Constitution states that among the citizens of the Philippines are those whose fathers are citizens of the Philippines. There utterly is no cogent justification to prescribe conditions or distinctions where there clearly are none provided,” Macalintal said.

“Thus, I dare say that the phrase “fathers are citizens of the Philippines”, should be interpreted to include “adoptive fathers” there being “no cogent justification to prescribe conditions or distinctions” that it did not refer to adoptive fathers or mothers,” he added.

He added that under the 1935 Constitution, citizenship must be interpreted in conjunction with its Social Justice provisions, which expressly provides that “the promotion of social justice to insure the well-being and economic security of all the people should be the concern of the State.”

“Thus, an interpretation of the 1935 Constitution, which applies to Poe’s citizenship issue, that would characterize an abandoned child as “stateless” certainly runs counter against the State’s Policy on social justice, and would even be violative of the equal protection rights of said child,” Macalintal said.

He added that the trend under international law has been for the implementation of measures and legislation toward the reduction of statelessness. Pioneering this trend would be Article 15 of the 1949 United Nations Universal Declaration of Human Rights (“UN Declaration”) which provides that “everyone has the right to a nationality,” and that “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”

“The rights contained under said UN Declaration, including the right to a nationality, are highly considered as peremptory norms or universally accepted principles. Thus,  local legislation on citizenship should always be interpreted in such a way as to promote a person’s right to a nationality, and should be interpreted against the existence of statelessness,” he added.

“Using said instruments, the subject legal issue on the citizenship of Sen. Poe must be resolved to favor her having a nationality—being a natural born Filipino citizen—rather than having a “stateless” status,” Macalintal said. AU