Tuesday, October 13, 2015

Natural-born by legal fiction?

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THE SOLE controversy pending at the Senate Electoral Tribunal has opened an interesting public debate on Philippine constitutional theory. The debate is not about the persona, integrity, or competence of Sen. Grace Poe to lead the country. It is about the Constitution, the fundamental law of the land to which all statutes, doctrines and principles of law, rules and regulations, ordinances, and acts of the state or government, including international conventions or treaties, yield in subservience. From the proposition that Poe possesses natural-born status as a citizen of the Philippines—of which she is legally presumed considering her repatriation under the Dual Citizenship Law and her election to the Senate—despite unknown Filipino ascendancy, emerges a new constitutional theory: the theory of natural-born citizenship by legal fiction.

Under the 1935 Constitution, the prevailing legal regime when Poe was born, the status of natural-born citizenship could be acquired only by descent from a known Filipino father or mother. The citizen’s bloodline tie of allegiance to his/her country is the determinative factor to consider him/her natural-born. In case the bloodline ascends to a Filipino mother, the acquisition of natural-born status is subject to a positive act by the progeny—that is, the election of Filipino citizenship upon reaching the age of majority, which must be annotated on his/her birth certificate. Prior to election of Filipino citizenship, the child of a Filipino mother merely acquires an inchoate right to Filipino citizenship. In the 2012 case of Republic v. Sagun, the Supreme Court held that the 1973 and 1987 Constitutions do not provide curative effect on the imperfect citizenship of one born of a Filipino mother who failed to elect Filipino citizenship upon reaching the age of majority. The later constitutions neither apply implicitly nor retroactively to favorably resolve a challenge to the imperfect citizenship of one born under the 1935 Constitution.

Poe does not know her biological parents, being a foundling. She could not, therefore, categorically claim natural-born Filipino citizenship by descent for the sheer lack of known Filipino bloodline ascendancy. In other words, Poe’s natural-born Filipino citizenship is not manifest from a bare reading of the 1935 Constitution.

Proponents of her natural-born Filipino citizenship look to the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws. The relevant principles of international law under this convention, however, do not apply in a state that does not adhere to the jus soli principle or the right of territoriality (i.e., nationality by mere birth in the territory). The proponents have to resort to the 1961 Hague Convention on the Reduction of Statelessness, which came into force only in 1975, or seven years after Poe was born.

Article 2 of this Convention stipulates: “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 within that territory of parents possessing the nationality of that State.” Since the Philippines is not a signatory to this Convention, the provision is sought to be applied retroactively as a generally-accepted principle of international law in order to establish Poe’s Filipino parentage.

If the theory is tenable, Poe, by legal fiction, is born of Filipino parents.

In a paper published in the International Journal of Refugee Law, Vol. 10 No. ½, titled “Statelessness and the Problem of Resolving Nationality,” Carol A. Batchelor, legal adviser on statelessness and related nationality issues of the United Nations High Commissioner for Refugees, made this observation on the 1961 Convention on the Reduction of Statelessness: “[It] does not require a contracting State unconditionally to grant nationality to any stateless person but seeks, rather, to balance factors of birth and descent in an effort to avoid the creation of statelessness by reflecting an individual’s genuine and effective existing connection with the State.

From this expert perspective, it appears that the Convention per se cannot be a source of nationality or citizenship. To confer the citizenship would still require an enabling act from the contracting State. Hence, the 1961 Hague Convention is not a self-executing treaty law. In the 2008 case of Medellin v. Texas, the US Supreme Court held the principle that a treaty or convention cannot have an automatic and directly-enforceable effect in domestic jurisdiction unless by the nature of the treaty or convention it is self-executing. Poe’s unknown biological parents, therefore, cannot be considered Filipino citizens by mere presumption of law or legal fiction.

The proposed theory on natural-born citizenship by legal fiction is tenuous simply because it is hinged on the retroactive application of Article 2 of the 1961 Hague Convention that came into force only in 1975 as a curative measure in an otherwise imperfect citizenship claimed under the 1935 Constitution. Such retroactive application of Article 2 is explicitly barred under Article 12 of the 1961 Hague Convention, which provides: “The provisions of Article 2 of this Convention shall apply only to foundlings found in the territory of a Contracting State after the entry into force of the Convention for that State.” The Philippines is yet to adhere to this Convention.

If the 1973 and 1987 Constitutions cannot be resorted to as curative remedy to a constitutional challenge to citizenship under the 1935 Constitution, there would be no plausible justification why a descendant of a known Filipino mother should be treated less under the law over one with unknown Filipino bloodline. The 1961 Convention is not a self-executing treaty law, which bars an automatic absorption of its provisions into domestic jurisdiction. The 1935 Constitution always has primacy over international conventions or treaties even as such primacy is recognized by Article 1 of the 1930 Hague Convention, which stipulates:

“It is for each State to determine under its own law who are its nationals.”

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Frank E. Lobrigo practiced law for 20 years. He was the regional legal coordinator for Bicol of the FPJ-Legarda campaign in 2004, and is now enrolled in the Graduate School of Law of San Beda College, Manila.