67. The Politics of Exclusion

The bloodline school of determining nationality is no doubt akin to the Divine Right paradigm of power. I imagine, however, that there is nothing fundamentally and biologically different in the blood of citizens of different countries. For that reason, this country has outlawed the Divine Right paradigm, and we elect our leaders by popular election, never mind if their bloodline is tainted by the blood of plunderers or dictators. Yet, in spite of the obvious fact that human blood is all the same, our Constitution has adopted the bloodline school in excluding the non-Filipinos from the real ones. Thus, you're a Filipino if your father or mother is a Filipino. The worse anomaly that can happen to you is if you're born here of foreign parents, because you follow the citizenship laws of your parents; but if your parents' nationalities adopt the place of birth school of thought, then you're neither a Filipino nor a citizen of your country's parents. This makes you stateless. I suspect that this is not an accident of history; our forefathers have envisioned the bloodline theory of nationality to exclude the foreigners and deny them the right to own land and exploit the country's natural resources. In 1954, seeing that the foreigners have dominated the retail trade, Congress passed the Retail Trade Nationalization Law, which would prohibit foreigners from owning not a single percent of interest in any retail trade business. This would be relaxed in the Estrada era with the passage of the Retail Trade Liberalization Law. But the politics of exclusion at the core of the bloodline school is clear. The occasion to revisit this principle of citizenship under the Constitution may never come, but the underlying assumptions that made us impose this on ourselves are outdated. People born in the Philippines should be Filipinos. People born in other countries of at least one Filipino parent should also be Filipinos. Excluding those of foreign blood, even if they were born here, also excludes the country from the benefit of their skills and talents. It works both ways. In the end, the wider we keep our gates to allow more Filipino citizens gives us more chances of getting good ones. And the bad ones, hopefully don't get elected, but sent to jail.

63. Justice Carpio spoils the party.

NVM Gonzalez used to say, "Every reading is an opportunity for misreading." And I am revolted by the news of the misreading of the Constitution by a senior justice of the Supreme Court. Yesterday, Justice Antonio Carpio disclosed his position before the hearing on the Senate Electoral Tribunal that Sen. Grace Poe is a naturalized Filipino, and not natural-born, unless she can prove she had blood relations with Filipino parents. I reviewed my paragraph 58 which outlines my own thinking, and it seems that Justice Carpio's position is the middle ground of the two opposing schools of thought on this issue. This interpretation arises out of the literal reading of the meaning of natural-born and ignores the textual definition found in the Constitution that one is natural-born if one does not have to perform anything to perfect one's citizenship. The weight of the opinion of the senior justice is indicated by the sudden decision of George Garcia, Sen. Grace Poe's counsel, to reveal that Sen. Grace Poe's DNA are now being matched with possible blood relatives. This indicates that Sen. Grace Poe is about to do a Cinderella-like search in  a blood pool of Ilongos that hopefully has not been inundated with false leads that would not only make the search long, but also expensive. There are three justices of the Supreme Court and six senators appointed by party affiliations in the Senate Electoral Tribunal. David, the petitioner who sought the disqualification, would need two more votes from the senators to unseat Sen. Grace Poe and jeopardize her presidential run -- the justices appear to share the same opinion as Justice Carpio. Justice Carpio's resume is nothing to sneer at. He was at the top of his class, and his law firm rose from obscurity to become the darling of the Ramos era. They helped convict Estrada for plunder. And when Gloria Macapagal Arroyo became President, they got their partners appointed to key positions in the government, such as the Ombudsman and Secretary of Defense. Justice Antonio Carpio was Pres. Arroyo's first appointee to the Supreme Court. When Chief Justice Renato Corona got impeached, thanks to the impeachment complaint which that law firm drafted, I thought Justice Carpio was a shoo-in for the position. But it was not meant to be, at least not yet. This is an interesting development, albeit a heart-breaking one. NVM was right about misreading, which in the case of a legal decision eliminates all possible readings, including the right one, unless appealed. I am shaking my head as I imagine Michel Foucault in the room saying, "Truth is what the powerful says it is." 

59. Domicile, Residence, Citizenship

Sen.  Grace Poe's residence is the last focus of the disqualification case against her fitness to run for higher office, because the Constitution requires that a candidate for the presidency must be a resident of the Philippines for ten years. Yet, this argument is "dead in the water" so to speak, by simply clearing up the legal concepts of  domicile, residence and citizenship. First, citizenship is not synonymous with residence. Citizenship refers to the oath of allegiance to a state; residency relates to the place of abode. A person can be Filipino citizen and a resident, or a Filipino citizen and a non-resident. Conversely, a non-Filipino can be a resident of the Philippines. Applying this distinction, it is now easy to see that Sen. Grace Poe's residency has nothing to do with her brief status as an American citizen, which we discussed in paragraph 57. These are two matters that cannot be confused. The second point is that whenever the law speaks of residence for purposes of election, it refers to domicile. The ordinary meaning of "residence" is the place of abode, whether permanent or temporary. Meanwhile, domicile means a fixed permanent residence to which, when absent, one has the intention of returning. Domicile is residence coupled with the intention to remain for an unlimited time. It is the place of habitual residence. For election purposes, a temporary residence in one place does not change a domicile, which may be in another place. In the case of Imelda Marcos vs. COMELEC G.R. 119976, September 18, 1995, the Supreme Court noted that Imelda established her domicile as an eight year old in Tacloban, left for Manila in 1952 to work with his cousin and then got married to Ferdinand Marcos, registered as a voter for Ferdinand's congressional district in Ilocos Norte,  moved to San Juan, Metro Manila, when Ferdinand became a senator, then moved to San Miguel, Manila when Ferdinand Marcos became the President, then she claimed they got kidnapped (?) and brought to Honolulu, Hawaii in 1986, after which she returned  to San Juan,  Metro Manila in 1991 and ran for President, until she finally decided to return to Tacloban to run for Congress. Said the Supreme Court, 

None of these purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban, Leyte.

That's almost a forty-year adventure out of Tacloban for Imelda that had her travelling around the world, so to speak, not counting the acquisition of real estate in New York and the bank accounts in Switzerland. Yet, her domicile, said the Supreme Court, has always been Tacloban. As for Sen. Grace Poe, she has to satisfy the requirement that she has been a resident of the Philippines for at least ten years immediately preceding the elections in May 2016. So strictly speaking, she has to show that her domicile from May 2006 onwards has been the Philippines. Her press kit says she decided to return to the Philippines for good after the death of her father Fernando Poe Jr. in December 2004. From then on, she moved her domicile here, which she demonstrated by a series of activities, such as moving residence here, enrolling her kids in Philippine schools, buying her family's abode, and selling her American house. Most of these activities took place in 2005, which is safe enough to qualify for the ten year threshhold. Of course, by applying the all embracing precedent set by Imelda Marcos's case, the residency issue against Sen. Grace Poe is clearly settled. There is, however, a controversy as to her personal declaration in her application for certificate of candidacy for the Senate where it was inscribed that she's been a resident only for  six years and six months prior to the May 2013 elections. If the declaration were to be read on its face, it would make Sen. Grace Poe a resident only from December 2006, about five months short of the threshhold. Yet, this was the same situation in the Imelda case where the Supreme Court ruled that it is a non-issue as those declarations in applications for certificate  of candidacy are outweighed by the actions of the candidate, which ultimately determine the domicile. It would therefore be a matter of evidence on the part of Senator Grace Poe to show by testimonial and documentary proof that she has moved her domicile to the Philippines after December 2004. This is where I think the procedural hurdles would be thrown, which should be subject of paragraph 60. 

58. Foundling, Citizenship, and Adoption

In paragraph 57, we discussed that the Maquiling case did not have any relevance in determining Sen Grace Poe's legal fitness to run for public office. I am not a lawyer of Grace Poe, so I am writing this for my own legal satisfaction. In fact, it may be different from what her lawyers are saying. Nonetheless, as her candidacy has been announced last night, I might as well discuss the other legal hurdles that she would go through to complete her run. The argument has been raised that she is not a natural-born Filipino, because she was a foundling. Her bio says she was adopted in accordance with law by Fernando Poe, Jr. and Susan Roces, after she was found as a baby in a church in Jaro, Iloilo City. Under the Constitution, natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship, (Section 2 Article IV 1987 Constitution). Meanwhile, Filipino citizens are those 1) who are citizens of the Philippines at the time of the adoption of this Constitution, which was October 15, 1986; 2) those whose fathers or mothers are citizens of the Philippines; 3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority, 4) those naturalized in accordance with law, (Section 1 Article IV 1987 Constitution). (See also Art. 48 of the Civil Code). The argument is that, being a foundling whose real parents are unknown, Sen. Grace Poe cannot establish that her blood parents are Filipinos as defined above. Thus, she is not a natural-born Filipino. The underlying proposition is that foundlings in the Philippines are born stateless and remain stateless in spite of the adoption. As being a natural-born citizen is traced through bloodlines, the argument is that a foundling's bloodline is untraceable, and therefore the foundling is stateless. This argument proposes a strict application of the bloodline principle, and demands the burden of proving the bloodline on the foundling, which is the opposite of how it operates in real life. A foundling rescued in the Philippine is always treated as if the foundling had Filipino parents. Thus, when the foundling is subjected to adoption proceedings, the foundling's citizenship is presumed to be Filipino. Our law office, which handles adoption by specialty, have never been asked by a judge to prove the citizenship of a foundling. If, by any chance, any one were to challenge the citizenship of a foundling, the burden is on the challenger to show the foreign lineage and not on the foundling. This practice arises out of the Philippines' assent to the Universal Declaration of Human Rights (UDHR), which mandates the recognition of every human being's right to a nationality from birth. The UDHR, along with other human rights treaties, are considered part of the laws of the Philippine as binding customary international law.  In addition, I think the key to further neutralizing this argument is Article 189 of the Family Code, which defines the effect of adoption as follows: 

"For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters".

In other words, once the foundling is adopted, the adoption creates a legal fiction, which deems that the adopted is a legitimate child of the adoptee. The effect of the legal fiction between adopter and adoptee is restricted to that relation. Yet, my view is this is not so in the case of citizenship, as the Constitution and the Civil Code state that one is a Filipino if her father or mother is Filipino without qualifications. This should apply to both natural parents and adoptive parents as the law does not distinguish. It goes without saying that the foundling did not have to perform anything to acquire or perfect the citizenship, because being the subject of adoption proceedings, the foundling or the adopted does not take an active role in her adoption; the adoptive parents are the main participants in the foundling's adoption proceedings. In other words, not only is the foundling regarded as a Filipino upon birth, once the foundling is adopted, the foundling acquires the rights of a legitimate child, which includes the citizenship of the adopters. Thus, the argument of the stateless foundling is not just unkind -- the foundling normally does not come with a passport -- but also inconsistent with the presumptions mandated by the adherence of the Philippines to international treaties on human rights, and  the basic law on adoption as defined in Article 189 of the Family Code of the Philippines and the Constitution.