More lawyers back Poe on citizenship

By: DJ Yap, Jerome Aning - 9 years ago

Former Chief Justice Artemio Panganiban (left) and former Sen. Rene Saguisag FILE PHOTOS

More legal experts have come to the defense of Sen. Grace Poe against the view of Supreme Court Associate Justice Antonio Carpio, head of the Senate Electoral Tribunal (SET), that she is a naturalized and not a native-born Filipino citizen.

A lawmaker, however, insisted on Sunday that Poe should explain why she abandoned her Philippine citizenship in the first place when she could have lived, worked and raised a family in the United States and still remained a Filipino.

“Since Sen. Grace Poe is now running for President no less, she has to deal with the reality that she has put herself and her family under a microscope,” House Deputy Minority Leader Arnel Ty said in a statement.

Carpio’s stating his opinion, based on international law, during oral arguments on Sept. 21 on a petition for the ouster of Poe from the Senate has led to calls for his inhibition from the case.

But election lawyer Romulo Macalintal, in a statement issued Sunday, said Carpio’s opinion using customary international law (CIL) as basis was not a strong ground for his inhibition.

‘Merely an opinion’

“[The] comment was merely an opinion. It was not yet the decision of the SET. Looking at the positive side of Justice Carpio’s comment, it was to the advantage of Poe that he disclosed what was in his mind, if ever that would be his final position on this issue. It is now a challenge to Poe’s lawyers to prove otherwise,” Macalintal said.

“Who knows, given an argument better than his, Carpio might, after all, be convinced that Poe is a natural-born Filipino citizen under CIL that recognizes the parents of a foundling as citizens of the country where the foundling was found. In other words, Carpio has to be convinced that since the parents of Poe are recognized by CIL as Filipino citizens, then Poe is a natural-born Filipino citizen,” he added.

Prejudgment

For former Sen. Rene Saguisag, however, Carpio must inhibit himself from the disqualification suit because the magistrate had already “prejudged” the case with his pronouncement.

“I don’t think Justice Carpio should continue on the [SET], having sadly and openly prejudged the case. I think he should have waited until all arguments are in before concluding that Grace is naturalized, not natural-born, which Chief Justice Roberto Concepcion defined as ‘one born a citizen,’” Saguisag said in a statement.

“It seems to me his startling imprudent and egregious prejudgment allows him no wiggle room,” Saguisag said.

The SET heard oral arguments on Sept. 21 on the petition brought by defeated senatorial candidate Rizalito David, who questioned Poe’s qualification to hold public office, as she is allegedly not a natural-born Filipino.

The parties in the case have until Oct. 6 to submit their final arguments and positions, after which the SET, composed of three Supreme Court justices and six senators, will hand down its decision.

Poe was found in a church in Jaro, Iloilo province, after her birth in 1968. She was adopted by movie actor Fernando Poe Jr. and his wife, actress Susan Roces, in 1974.

Under questioning by Sen. Loren Legarda, a member of the SET, during the oral arguments, David’s lawyer, Manuelito Luna, admitted that David had no evidence to prove that Poe’s real parents were foreigners.

Human rights

Poe, being a foundling, is considered a natural-born citizen under the United Nations’ Universal Declaration of Human Rights (UDHR), which states that the right to a nationality is one of the most fundamental human rights, according to Saguisag, a human rights lawyer and advocate.

Under the UDHR, Saguisag said, a foundling “may be the weakest of minorities deserving of special case and assistance, not special discrimination.”

“Being a pulot (foundling) or ampon (adopted) used to be a traditional vilification modern thought now looks askance at. The UDHR’s Article 15 says: ‘Everyone has the right to a nationality,’” Saguisag pointed out.

From birth

He added: “Grace should not be denied that right. And nationality should attach at birth, not a day, week, month, a year later, an unmanageable standard. When was she naturalized, assuming she needed to be? Naturalized from what other nationality? Naturalization implies a change in nationality. Or assumed two citizenships,” he said.

Saguisag also supported the opinion that the burden of proof could not be shifted to Poe, who enjoys the presumption of being a natural-born citizen.

“When will we stop vilifying foundlings? They have parents, [although] unknown. It seems to me to put the burden on David in this seeming case of first impression is legally tenable, intellectually respectable and psychologically satisfying,” he said.

Retired Chief Justice Artemio Panganiban also disagreed with Carpio and agreed with Macalintal that Poe is considered a natural-born citizen under the generally accepted principles of international law, which form part of the law of the Philippines.

In his column in the Inquirer, Panganiban cited Article 2 of the 1961 Convention on the Reduction of Statelessness, which says: “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 in the territory of parents possessing the nationality of that State.”

He recalled that the 1935 Constitution, which was the country’s basic law in 1968 when Poe was born, provides that the Philippines adopts the generally accepted principles of international law as part of the law of the nation.

“[S]he—a foundling who was found in Iloilo, Philippines—is deemed to have Filipino parents. Perforce, she is natural-born since her presumed parents, specifically her father, are accorded Philippine citizenship,” Panganiban said.

Panganiban also said it was actually Poe’s parents who acquired Philippine citizenship pursuant to international law. “She derived her citizenship from her presumed Filipino father; thus, she is a citizen from birth without having to do anything to acquire or perfect her Philippine citizenship,” he added.

The 1935 Constitution provides, among other things, that those whose fathers are citizens of the Philippines are considered Filipino citizens.

Burden of proof

Panganiban said Poe’s biological father may be proven to be actually a foreigner, “but the burden of proof belongs to those who challenge her natural-born status.”

“Unless such proof is presented, her parents continue to be presumed Filipinos. Thus, she retains her natural-born citizenship,” Panganiban said.

Although the Philippines is not a signatory to the 1961 convention, Panganiban said it was still bound by its provisions because they had become “generally accepted principles of international law, which … are as binding as statutes passed by Congress.”

Apart from the 1961 convention, he said, foundlings are also protected by the 1930 Hague Convention on the Conflict of Nationality Laws and the 1948 UDHR, which states that the right to a nationality is one of the most fundamental human rights.

Macalintal said it would be up to Carpio to decide whether to inhibit.

According to him, the Supreme Court, in a previous case, stated that members of electoral tribunals, may, as their conscience dictates, refrain from participating in the resolution of a case where they sincerely feel that their personal interests or biases will stand in the way of an objective and impartial judgment.

In another case, the Supreme Court reminded judges accused of biases due to reasonable circumstances that they should conduct a careful self-examination and then exercise their discretion in a way that the people’s faith in the courts of justice is not impaired.

“Thus, no one could force Justice Carpio to inhibit from Poe’s case. Only his conscience and sound discretion could make the final decision,” Macalintal said.

Explain to voters

In his statement, Ty said Poe should explain to the voters why she gave up her Philippine citizenship and acquired US citizenship.

“Voters deserve a straightforward answer from the senator, on the question as to the specific circumstances that compelled her to seek and acquire US citizenship, and surrender her Filipino citizenship,” he said.

“This is a perfectly legitimate question that is of great public interest,” he said.

Ty made the statement in reaction to reports that Poe continued to use her US passport in her travels abroad even after she had renounced her US citizenship.

According to Inquirer legal commentator Oscar Franklin Tan, the matter is legally irrelevant.

“There are many Filipinos who have lived and worked in America for years, but have been content on staying on as permanent US residents, or so-called green card holders,” Ty said.

Based on a cursory review of US immigration rules, Ty said, both US citizens and foreigners who are US green card holders enjoy long-term rights to live, work and even raise families in the United States.

“The significant difference, as far as many Filipino voters are concerned, is that when you acquire American citizenship, just like what Senator Poe did, you have to swear absolute loyalty to the US and its Constitution, and categorically reject your Filipino citizenship,” Ty said.

“Assuming Senator Poe wanted to work and live in America, and raise a family there, which she actually did, she could have accomplished all these as a US green card holder, without necessarily becoming an American citizen—without necessarily abandoning her Filipino citizenship,” he said.