99. Back to the Past

At the January 5, 2016 conference for adoptees, adoptive families, and foundlings, human rights lawyer Glenda Itong said that she found the Royal Decree issued by King Charles IV in February 19, 1794 extending legal protection to foundlings. The decree was effective in all of Spain's colonies, including the Philippines.

Subsequently, the Spanish Civil Code was enacted and the essence of King Charles IV's foundling decree was in the provision on Spanish citizens which deemed that all foundlings found in Spanish territory are deemed Spanish citizens. When the Philippine Civil Code was enacted in 1950, however, this provision on foundlings was left out in the text. Curiously, the Family Code which was enacted in 1987  also left this out. This makes me wonder how the best legal minds of the 50s, including Arturo Tolentino whose Annotations on the Civil Code are standard texts in law schools, missed it. The repealing clauses of the Spanish Civil Code, the 1950s Civil Code and the Family Code are expressed, such that the Family Code appears to be the actual state of the applicable law on foundlings, which sadly does not state anything. In Tecson v. Comelec, the Supreme Court said that "(A)n accepted principle of international law dictated that a change in sovereignty, while resulting in an abrogation of all political laws then in force, would have no effect on civil laws, which would remain virtually intact." Is it possible therefore to argue that the King Charles IV's Royal Decree on Foundlings is still good law? For, indeed, how can a new law repeal something and be totally silent on a specific provision and therefore discard a centuries old legal framework on the protection of perhaps the most vulnerable human beings on the planet? An entire vacuum has been left out and that leaves King Charles IV greatest achievement as King of Spain in the dustbin. As Justice Marvic Leonen asked in yesterday's oral arguments before the Supreme Court, "Are we called to be legalists, or are we called to be justices?" I'm sure Rizal would be turning in his grave if he learns that the Spanish Crown treated foundlings better than the sovereign Philippines. And Manuel L. Quezon, who preferred a government run like hell by Filipinos, would be cursing at the lawyers who messed up.

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." 

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.