Sunday, March 13, 2016

Foundlings and the 1935 Constitution; Justice Carpio's dissent in the case of Grace Poe

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xxx. At that time, there was nothing in international law which automatically granted citizenship to foundlings at birth. In fact, Delegate Roxas did not cite any international law principle to that effect. Only the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, which articulated the presumption on the place of birth of foundlings, was in existence during the deliberations on the 1935 Constitution. As will be discussed further, the 1930 Hague Convention does not guarantee a nationality to a foundling at birth. Therefore, there was no prevailing customary international law at that time, as there is still none today, conferring automatically a nationality to foundlings at birth.

Moreover, none of the framers of the 1935 Constitution mentioned the term "natural-born" in relation to the citizenship of foundlings. Again, under the 1935 Constitution, only those whose fathers were Filipino citizens were considered natural-born Filipino citizens. Those who were born of Filipino mothers and alien fathers were still required to elect Philippine citizenship, preventing them from being natural-born Filipino citizens. If, as petitioner would like us to believe, the framers intended that foundlings be considered natural-born Filipino citizens, this would have created an absurd situation where a child with unknown parentage would be placed in a better position than a child whose mother is actually known to be a Filipino citizen. The framers of the 1935 Constitution could not have intended to create such an absurdity.

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Clearly, there is no "silence of the Constitution" on foundlings because the majority of the delegates to the 1934 Constitutional Convention expressly rejected the proposed amendment of Delegate Rafols to classify children of unknown parentage as Filipino citizens. There would have been "silence of the Constitution" if the Convention never discussed the citizenship of foundlings. There can never be "silence of the Constitution" if the Convention discussed a proposal and rejected it, and because of such rejection the subject of the proposal is not found in the Constitution. The absence of any mention in the Constitution of such rejected proposal is not "silence of the Constitution" but "express rejection in the Constitution" of such proposal.

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