Commentary: Is Senator Grace Poe a Natural-born Citizen of the Philippines?

By: Atty Ariel Anthony A. Tizon, LLB ( Xavier University) LLM (Public International Law-University College London, PgDL (BPP University Law School, London)

Senator Grace Poe has been talked about as one of the possible candidates for the electivepost of President or Vice-President of the Republic of the Philippines in the national electionsof 2016. At this early, a lot of questions have been raised about her qualifications to run foreither post, in respect to her citizenship and residency. This commentary would addressspecifically the issue whether Senator Grace is a natural-born citizen of the Philippines, amajor qualification of a candidate for the Presidency or Vice-Presidency.

Brief Factual Background Relevant to the Issue

Senator Grace Poe ( Mary Grace Sonora Poe-Llamanzares ) was born on 3 September 1968 inJaro, Iloilo City, Philippines. She was allegedly abandoned by her biological parents at birthand was found by a well-meaning person who initially took care of her. She was subsequentlyadopted by the late Fernando Poe Jr. and his wife while still a minor. Up to this writing, herbiological parents are unknown. She resided in the United States and acquired United StatesCitizenship and renounced the same in 2010 (under Philippine law) prior to her appointment asthe Chairperson of the Movie and Television Regulatory and Classification Board, a positionrequiring Philippine citizenship.

In 2013, she ran and won a seat in the Senate of the Philippines in the 2013 SenatorialElections. Having been touted as a possible candidate for the presidency or vice-presidency inthe national elections of 2016, her life has become a subject of public scrutiny leading toquestions about her citizenship and residency in the Philippines. As a foundling, the issuewhether she is a natural-born citizen of the Philippines has risen to the foreground.

Legal Background

Article VII Section 2 of the 1987 Philippine Constitution provides: “No person may be electedPresident unless he is a natural-born citizen of the Philippines, a registered voter, able to readand write, at least forty years of age on the day of the election, and a resident of the Philippinesfor at least ten years immediately preceding such election”. These qualifications are similar tothose of the Vice-President. To ascertain her citizenship, the applicable law is the 1935Constitution of the Philippines, the pertinent portion of which reads:

“Article IV.—Citizenship

Section 1. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippine Islands at the time of the adoption of thisConstitution.

(2) Those born in the Philippine Islands of foreign parents who, before the adoption of thisConstitution, had been elected to public office in the Philippine Islands.

(3) Those whose fathers are citizens of the Philippines.

(4) Those whose mothers are citizens of the Philippines and, upon reaching the age ofmajority, elect Philippine citizenship.

(5) Those who are naturalized in accordance with law.”

A natural-born Filipino citizen is not defined therein.

As a foundling, her citizenship is not determined from a reading of the above provisions oncitizenship and as far as this writer is aware there is no other domestic substantive or caselaw at the time of her birth to ascertain her citizenship or nationality. Further, her adoption bythe spouses Poe did not grant her the natural-born citizenship status of her adoptive father asdecided by the Philippine Supreme Court in the case of Cheng Leng v Galang (G R No. 11931October 27, 1958) where a similar iassue was adjudicated by the Court. Hence the derivativetheory on citizenship is unavailing for her.

There is no law in Philippine domestic jurisdiction determining the citizenship or nationality ofa foundling at the moment of birth or subsequently thereafter. A foundling for purposes ofcitizenship is not defined in any of the Philippine Constitutions. Recently, the new Rules onAdoption promulgated by the Supreme Court in 2002 clearly defined a foundling as “a desertedor abandoned infant or child whose parents, guardian or relatives are unknown; or a childcommitted to an orphanage or charitable or similar institution with unknown facts of birth andparentage and registered in the Civil Register as a ‘foundling’”. It is also defined in Section 1 ofSenate Bill No 2844 ( An Act Affording status to a Deserted or Abandoned Child with UnknownParents now pending in the Senate as of 06/10 2015) as “a deserted or abandoned child orinfant the identities of any parents are unknown”. However, there is still no domesticsubstantive or case law defining the nationality of a foundling. Even Senate Bill No 2844, if tobecome law without amendments could not provide a nationality to a foundling in the case ofSenator Grace Poe because the conditions in said bill preclude the granting of nationality toher and its doubtful retroactive effect.

This lacuna in Philippine substantive and case law has put in limbo the status of SenatorGrace Poe’s citizenship. Could international law provide an answer to this controversy?

The Citizenship/Nationality of Senator Grace Poe in International Law

There are a number of International Conventions and Declarations pertaining to Nationalityand the status of Statelessness of an individual. For purposes of this commentary, this writerenumerates only those that are relevant to the issue from his point of view.

A. Convention on Certain Questions Relating to the Conflict of Nationality Law (Entry intoforce: 1 July 1937)

Article 1 It is for each State to determine under its own law who are its nationals. This law shallbe recognised by other States in so far as it is consistent with international conventions,international custom, and the principles of law generally recognised with regard to nationality.

Article 2 Any question as to whether a person possesses the nationality of a particular Stateshall be determined in accordance with the law of the State.

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Article 14 A child whose parents are both unknown shall have the nationality of the country ofbirth. If the child's parentage is established, its nationality shall be determined by the rulesapplicable in cases where the parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of theState in which it was found.

Article 15 Where the nationality of a State is not acquired automatically by reason of birth onits territory, a child born on the territory of that State of parents having no nationality, or ofunknown nationality, may obtain the nationality of the said State. The law of that State shalldetermine the conditions governing the acquisition of its nationality in such cases.

B. Universal Declaration of Human Rights (New York, 10 December 1948)

Article 15

(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change hisnationality.

C. 1961 Convention on the Reduction of Statelessness (Philippines has yet to accede)

Article 1

1.A Contracting State shall grant its nationality to a person born in its territory who wouldotherwise be stateless. Such nationality shall be granted:

(a) at birth, by operation of law, or

(b) upon an application being lodged with the appropriate authority, by or on behalf of theperson concerned, in the manner prescribed by the national law. Subject to the provisions ofparagraph 2 of this Article, no such application may be rejected.

A Contracting State which provides for the grant of its nationality in accordance withsub-paragraph (b) of this paragraph may also provide for the grant of its nationality byoperation of law at such age and subject to such conditions as may be prescribed by thenational law.

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to thecontrary, be considered to have been born within that territory of parents possessing thenationality of that State.

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Article 12 (3)

The provisions of Article 2 of this Convention shall apply only to foundlings found in theterritory of a Contracting State after the entry into force of the Convention for that State.

D. International Convention on Civil and Political Rights (New York, 16 December 1966)

Article 24

3) Every child has the right to acquire a nationality.

E. Convention on the Rights of a Child ( New York, 28 November 1989) (Phil accession 21August 1990)

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to aname, the right to acquire a nationality and. as far as possible, the right to know and be caredfor by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with theirnational law and their obligations under the relevant international instruments in this field, inparticular where the child would otherwise be stateless.

F. ASEAN Declaration of Human Rights (18 November 2012)

Article 18

Every person has the right to a nationality as prescribed by law. No person shall be deprived ofsuch nationality nor denied the right to change that nationality.

Among the foregoing Conventions and Declarations, only the 1961 Convention on theReduction of Statelessness (Article 1) is definite that in respect to a foundling, its nationalityfrom its birth shall be that of the State where it was born. This is specific in the Convention.While declaring the right of a child to have a nationality, the rest of the enumeratedconventions or declarations do not indicate which nationality or to which State the child mayhave to acquire nationality, nor guarantee that the nationality is acquired at birth. This iscrucial in the final analysis of her nationality.

The Philippines has yet to accede to the 1961 Convention on the Reduction of Statelessnessto be bound by its terms. However, it can be argued that the right of a person to have anationality is an international custom and its codification in the conventions and declarationsis only an affirmation of its stature in international law. Proceeding from this premise, one cantherefore implement the provision of Article 1 of the 1961 Convention in the case of Grace Poeconsidering the Philippines adopt as part of the law of the land internationally acceptedprinciples and customs in practice and cases decided by the Philippine Supreme Court. As a

consequence of its application, Senator Grace Poe is arguably a Citizen of the Philippines frombirth as the most favourable interpretation. And having been conferred Philippine nationality orcitizenship at the time of her birth she is a natural-born Filipino (I Tolentino, COMMENTARIESAND JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES 188 [1990 ed.]). She had notdone anything to acquire or perfect her citizenship thus meeting the definition of natural-borncitizenship in the 1973 and 1987 Constitutions. A situation where the principle of "jus soli" indetermining nationality comes to the rescue of the deficiency of the "jus sanguinis" principle inascertaining the nationality/citizenship of a foundling.

Parenthetically, some Philippine lawyers and commentators alike argue she is a natural-bornFilipino under Article 2 of the 1961 Convention on the Reduction of Statelessness on thefurther presumption that her biological parents were natural born Filipinos.

I most respectfully beg to disagree.

Article 2 of the said Convention is not applicable to her situation precisely because Article 12(3) categorically limits Article 2 to those foundlings found after the Convention shall have beenin force in the State of the Contracting Party. That is clear from the letter of the law and thePhilippines is not a party to the Convention. Besides citizenship is a precious commodity. Itshould not be granted willy nilly the Supreme Court said in several cases.

Having arguably settled her Philippine nationality, the next question remains. Is she still anatural-born citizen to qualify for the Presidency or the Vice-Presidency after reacquiringPhilippine citizenship and renouncing her US citizenship under RA 9225?

Senator Grace Poe renounced her US citizenship in 2010 (2012 according to somecommentators) through the process prescribed in Republic Act 9225 (Citizenship andRe-acquisition Act of 2003). Under Philippine law, she is considered to have reacquired Filipinocitizenship. As to the nature of Philippine citizenship reacquired by Senator Grace Poe, thecase of Antonio Bengson III v HRET and Teodoro Cruz (GR No.142840 May 7, 2001) thoughinvolving R.A. 2630 is elucidating.

In this case private respondent Cruz was a natural-born citizen of the Philippines, born in 1960of Filipino parents. He enlisted in the US Marine Corps in 1985 and was naturalized as a UScitizen in 1990. As a consequence he lost his Philippine nationality pursuant toCommonwealth Act 63 Section 14. In 1994, Cruz reacquired his Philippine Citizenship underRA 2630. He subsequently ran and was elected as a member of the Philippine Congress(wherein candidates must be natural-born Filipinos, among others) in the 1998. He won overPetitioner Bengson who question his status claiming that he is no longer a natural-bornFilipino upon his reacquisition of Philippine citizenship . Bengson claimed that by performingofficial acts under RA 2630 (which by the way the same acts for reacquisition of Philippinecitizenship under RA 9225) Cruz could no longer be classified as a natural-born citizen of thePhilippines hence disqualified to run for Congress. The Supreme Court held in favour of privaterespondent Cruz declaring him to have regained his old citizenship as a natural-born citizen inthis wise:

Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had toperform an act to regain his citizenship is untenable. As correctly explained by the HRET in itsdecision, the term "natural-born citizen" was first defined in Article III, Section 4 of the 1973Constitution as follows:

Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth withouthaving to perform any act to acquire or perfect his Philippine citizenship.

“Two requisites must concur for a person to be considered as such: (1) a person must be aFilipino citizen from birth and (2) he does not have to perform any act to obtain or perfect hisPhilippine citizenship.

Under the 1973 Constitution definition, there were two categories of Filipino citizens whichwere not considered natural-born: (1) those who were naturalized and (2) those born beforeJanuary 17, 1973 of Filipino mothers who, upon reaching the age of majority, electedPhilippine citizenship. Those "naturalized citizens" were not considered natural-born obviouslybecause they were not Filipinos at birth and had to perform an act to acquire Philippinecitizenship. Those born of Filipino mothers before the effectivity of the 1973 Constitution werelikewise not considered natural-born because they also had to perform an act to perfect theirPhilippine citizenship.

The present Constitution, however, now considers those born of Filipino mothers before theeffectivity of the 1973 Constitution and who elected Philippine citizenship upon reaching themajority age as natural-born. After defining who are natural-born citizens, Section 2 of ArticleIV adds a sentence: "Those who elect Philippine citizenship in accordance with paragraph (3),Section 1 hereof shall be deemed natural-born citizens." Consequently, only naturalizedFilipinos are considered not natural-born citizens. It is apparent from the enumeration of whoare citizens under the present Constitution that there are only two classes of citizens: (1) thosewho are natural-born and (2) those who are naturalized in accordance with law. A citizen whois not a naturalized Filipino, i.e., did not have to undergo the process of naturalization to obtainPhilippine citizenship, necessarily is a natural-born Filipino. Noteworthy is the absence in saidenumeration of a separate category for persons who, after losing Philippine citizenship,subsequently reacquire it. The reason therefor is clear: as to such persons, they would eitherbe natural-born or naturalized depending on the reasons for the loss of their citizenship andthe mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruzwas not required by law to go through naturalization proceedings in order to reacquire hiscitizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessaryqualifications to be elected as member of the House of Representatives.”

Given the fact that the process of reacquiring Philippine citizenship in RA 2630 is practicallythe same as that in RA 9225, and by clear and reasonable analogy therefore, it can be arguedSenator Grace Poe reverted back to her original status as a natural-born citizen of thePhilippine when she renounced her US citizenship pursuant to RA 9225.

To dispense away any lingering doubts as to her renunciation of her US citizenship in

accordance with US law, in the relevant case of Maquiling vs COMELEC , Arnado et. al.(G.R.No. 195649 April 16, 2013) the Philippine Supreme Court en banc emphatically said:

“Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008when he applied for repatriation before the Consulate General of the Philippines in SanFrancisco, USA, and again on 03 April 2009 simultaneous with the execution of his Affidavit ofRenunciation. By taking the Oath of Allegiance to the Republic, Arnado re-acquired hisPhilippine citizenship. At the time, however, he likewise possessed American citizenship.Arnado had therefore become a dual citizen.

After reacquiring his Philippine citizenship, Arnado renounced his American citizenship byexecuting an Affidavit of Renunciation, thus completing the requirements for eligibility to runfor public office.

By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardlessof the effect of such renunciation under the laws of the foreign country.”

It should be so in accordance with the international custom of Parity or Equality of States andArticles 1 and 2 of Convention on Certain Questions Relating to the Conflict of Nationality Law.

Senator Grace Poe's residency is another matter.

Lastly, I am not in favour or against Senator Grace-Poe Llamanzares. I am simply deeplyfascinated by her life story.