The Convention on the Rights of the Child

Article 7: the child shall be registered immediately after birth and has the right to a
name and nationality and to know and be cared for by his or her parents. The State
shall ensure the implementation of these rights in accordance with national law and
its obligations under the relevant international instruments in this field, in particular
where the child would otherwise be stateless;
Article 8: the State will respect the childs right to preserve his or her identity,
including nationality, name and family relations, and will intervene in cases where a
child is illegally deprived of any of these elements of identity with a view to reestablishing it

The issue on Senator Grace Poe being a foundling and her citizenship and eligibility
to run for President has stirred opposing views from two lawyers.
United Nationalist Alliance (UNA) interim secretary general JV Bautista earlier
claimed that Poe could be disqualified or even unseated because she is not a naturalborn Filipino.
Bautista said Poe, an adopted daughter of the late movie actor Fernando Poe Jr. and
actress Susan Roces, was abandoned in a church in Jaro, Iloilo province. An
abandoned child is also known as a foundling.
He said a foundling is stateless.
Lawyer Harry Roque seemed to agree with Bautistas view. In his blog, Roque said a
foundling, though, does not enjoy a presumption of being a natural-born citizen. The
Convention on Statelessness does guarantee a foundling the citizenship of the
foundlings parents. This is not the same as the natural-born Filipino citizenship
required of all candidates for President, Vice-President and Congress. Filipinos who
are not natural-born can run for local posts but not for Congress and the Presidency.
Roque said he wanted a definite answer if a foundling legally adopted by Filipino
parents enjoys the status of a natural-born Filipino because he is not aware of any
jurisprudence on the matter.
But Atty. Romulo Macalintal, a noted election lawyer, said Poe is a natural-born
Filipino being the adopted daughter of Filipino parents.
Macalintal explained that the social justice principle that those who have less in life
should have more in law should be applied to Poe. The state is even mandated to care
for abandoned children under the principle of parens patriae (parent of the nation).
He added that in the case of Tecson where the Supreme Court put to rest any question
on the citizenship of Poes father, Fernando Poe Jr., it made a distinction as to the kind
of children who may acquire the Filipino citizenship of their father by ruling.
Providing neither conditions nor distinctions, the Constitution states that among the
citizens of the Philippines are those whose fathers are citizens of the Philippines.

There utterly is no cogent justification to prescribe conditions or distinctions where

there clearly are none provided, Macalintal said.
Thus, I dare say that the phrase fathers are citizens of the Philippines, should be
interpreted to include adoptive fathers there being no cogent justification to
prescribe conditions or distinctions that it did not refer to adoptive fathers or
mothers, he added.
He added that under the 1935 Constitution, citizenship must be interpreted in
conjunction with its Social Justice provisions, which expressly provides that the
promotion of social justice to insure the well-being and economic security of all the
people should be the concern of the State.
Thus, an interpretation of the 1935 Constitution, which applies to Poes citizenship
issue, that would characterize an abandoned child as stateless certainly runs counter
against the States Policy on social justice, and would even be violative of the equal
protection rights of said child, Macalintal said.
He added that the trend under international law has been for the implementation of
measures and legislation toward the reduction of statelessness. Pioneering this trend
would be Article 15 of the 1949 United Nations Universal Declaration of Human
Rights (UN Declaration) which provides that everyone has the right to a
nationality, and that no one shall be arbitrarily deprived of his nationality nor denied
the right to change his nationality.
The rights contained under said UN Declaration, including the right to a nationality,
are highly considered as peremptory norms or universally accepted principles. Thus,
local legislation on citizenship should always be interpreted in such a way as to
promote a persons right to a nationality, and should be interpreted against the
existence of statelessness, he added.
Using said instruments, the subject legal issue on the citizenship of Sen. Poe must be
resolved to favor her having a nationalitybeing a natural born Filipino citizen
rather than having a stateless status, Macalintal said. AU

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In my search for jurisprudence on whether a foundling adopted by Filipinos has the

status of a natural-born Filipino, I found a 2003 commentary written by renowned
constitutionalist Fr. Joaquin Bernas precisely on the issue: We follow the principle of
jus sanguinis, that is, a person follows the citizenship of either Filipino blood parent.

Our Constitution says that anybody who wishes to be president, vice president, senator
or district representative must be a natural-born Filipino citizen. The Constitution
defines natural-born Filipino citizens as those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their Philippine
citizenship. For the purpose of determining citizenship, therefore, the identity of the
blood parents is important.
Fr Bernas also explored the issue of what happens to a Filipino who has re-acquired
Filipino citizen but uses a foreign passport. Citing the case of a Mayoralty candidate in
Lanao del Norte, Fr Bernas paraphrased the Supreme Court: even if one has renounced
foreign citizenship, if he continues to use a foreign passport, he equivalently withdraws
his renunciation.
Fr Bernas was citing the case of Maquiling vs. Comelec where a candidate used a US
Passport after he re-acquired his Filipino citizen and renounced his foreign citizenship,
the twin requirements under the dual citizen law for candidates for elective office. In
this case, the Court ruled that while a person does not lose his Filipino citizenship with
the use of a foreign passport; that use, however, negates his renunciation of his foreign
citizenship. He thus reverts to the status of a dual citizen: In effect, Arnado was solely
and exclusively a Filipino citizen only for a period of eleven days, or from 3 April 2009
until 14 April 2009, on which date he first used his American passport after renouncing
his American Citizenship . . .The citizenship requirement for elective public office is a
continuing one. It must be possessed not just at the time of the renunciation of the
foreign citizenship but continuously. Any act which violates the oath of renunciation
opens the citizenship issue to attack.
Applying Maquiling to the case of Sen Poe, for her to run as President in 2016, she must
have renounced and resided in the Philippines exclusively as a Filipino for at least 10
years. Since by her own admission, she only renounced her US citizenship on 2010, she
will be short by four years of the residency requirement for the post of president. This is
because the dual citizenship law reckons compliance for candidates for elective posts
only from the time they became exclusively Filipino citizen.

Additionally, I found a very interesting exchange between Former Reps. Teddy Boy
Locsin and Digs Dilangalen, which indicates the legislative intent behind the law. The
issue was whether a natural-born Filipino who lost his citizenship through
naturalization, and re-acquires dual citizenship under the law is considered a natural
born Filipino. According to Locsin, your guess is as good as mine.
While defenders of Poe are quick to argue the jurisprudence under the old Repatriation
Act that a natural born Filipino who lost it and re-acquires an exclusive Filipino
citizenship re-acquires his status as a natural born Filipino, the same issue appears
unsettled where the person merely acquired Filipino citizenship under the dual citizen
law. In the words of Locsin, which may very well apply to Sen. Poe: They may be
preparing for a candidacy that in fact will never fly . . .
What is pivotal in Poes case is whether the acts of taking an oath of allegiance to the
Philippines and renunciation of her US citizenship are positive acts given the
definition of a natural-born Filipino as one who is such without having to perform
anyact to acquire or perfect Philippine citizenship. Here, Rep. Dilangalen was
emphatic: the oath and renunciation are positive acts. Locsin appeared to have agreed in
that he said that the word deemed in Sec. 3 of the law, which provides: those who
have lost their Filipino citizenship by reason of naturalization are deemed to have
reacquired Philippine citizenship, requires a positive act.
But as Locsin also pointed out, this will have to be ruled upon by our Courts.

"A long-standing presumption and principle of customary international law is

that a foundling takes the nationality of the place where she was found," said
Legarda.
The presumption prevails, said Pangalangan, unless proof to the contrary is
presented. She cited Rule 31 of the Rules of Court. "Whoever alleges must
prove," she said.

'In Senator Grace Poe's situation, she was found as an infant in the
Philippines. There was a presumption that she was born to Filipino

parents in the absence of proof to the contrary. The right of every

child to a name and a nationality immediately from birth is a
fundamental human right.'
The 1987 Constitution limits high government posts to natural-born
citizens,among a few other qualifications.
Whether or not she meets the 10-year residency rule is a separate issue
resulting from her acquisition of American citizenship later in her life. She
renounced it in 2010.
Presumption of natural born
The Philippines follows jus sanguinis, Latin for right of blood, in determining
the citizenship of a person, said Pangalangan. This cannot be established in
the case of Poe, however, because the identity of her biological parents is not
known.
foundlings cannot be natural-born Filipino citizens on the ground that they are
initially "stateless" and that a process is required to grant them Filipino
citizenship. This is supposedly not a violation of international laws because
the child still acquires a citizenship; he or she is just not considered naturalborn.
Pangalangan and Legarda disagreed. Poe is presumed a natural-born Filipino
citizen, they said, based on international and domestic laws on human rights,
rights of a child, and adoption, among others.
They highlighted the 1954 United Nations Convention on Statelessness,
the 1948 Universal Declaration of Human Rights, and the 1989 Convention on
the Rights of the Child (CRC).
The first two declare the right of a person to a nationality; the third highlights
the right of a child to acquire it immediately after birth.

The 1987 Constitution states that the "generally accepted international

principles" are adopted as part of the law of the land, said Legarda.
To say that foundlings are statelesss persons is a violation of the CRC, said
Legarda. "The CRC affirms that every child has the right to be born, to have a
name and nationality, to have a family who will love and care for her," she said.
Pangalangan said the adoption of Poe supports the presumption of her being
a natural-born Filipino citizen.
"Philippine law on adoption is applicable only to Filipino children the
Philippines cannot have foreigner children adopted since the status of a child
is determined by the child's (or her parents', if known) personal law. It is that
personal law which determines whether a child is legally free to be adopted.
Senator Poe's adoption under Philippine law proceeded on an assumption that
she was a Filipino at birth," Pangalangan said.
In a Philippine election, a candidate will be disqualified if she is not a Filipino citizen. If
she wants to be President or Vice-President, she also has to be a natural-born Filipino.
A foundling is an abandoned child whose parents or relatives are unknown. Nobody
knows if her biological parents are Filipino. A person who looks Filipino could be a
foreigner for example, if she was born of a Malaysian father and an Italian mother. On
the other hand, a blonde, blue-eyed girl can be a natural-born Filipino if she was born to
naturalized Caucasian parents.
Citizenship is governed by only one law the Philippine Constitution, (of which there
are three versions the 1935, 1973, and 1987 Constitutions).
Under the 1973 and 1987 Constitutions, those born of Filipino fathers or mothers are
Filipino citizens. But if a person with a Filipino mother and an alien father was born
before January 17, 1973, that person can only be a Filipino citizen if she elects Philippine

citizenship some time upon reaching the age of majority. If she does not, then she would
not be considered Filipino. (This was because under the 1935 Constitution, which was
in effect before the 1973 Constitution, Filipino citizenship is automatically granted only
to those with Filipino fathers.) If the Filipino mother is unmarried, the child is
automatically Filipino. Lastly, a person can be a Filipino citizen if she is naturalized by
law.
Legal experts have made their opinions on the citizenship of foundlings. Here are their
arguments:
Foundlings cannot be considered citizens unless they prove that one of
their biological parents is Filipino.
Legal principles that the Supreme Court had consistently applied in a span of decades
find application here.
First of all, the Supreme Court ruled that one who claims to be Filipino must
satisfactorily PROVE that she is Filipino, by showing that one of her biological parents
are Filipino.
The Supreme Court declared that there can be no presumption of Philippine citizenship.
That means that if a foundling cannot prove citizenship, she cannot be considered
Filipino.
Secondly, the act of adoption will not confer Filipino citizenship. If the foundling was
adopted by a Filipino citizen, this act will not confer citizenship on the child.
Thirdly, the Philippine Constitution does not give a presumption or deem as Filipino
those who cannot identify their source of citizenship.

There is a list of persons who are considered citizens. Ones citizenship can be passed by
blood (the principle of jus sanguinis), or one becomes a naturalized citizen by action of
law. These are the only two ways one can be a citizen.
Many legal experts do not like this position. They feel that it prejudices foundlings
rather harshly. They say that it would have weird repercussions. They say, for example,
that a lot of street kids are foundlings, and lack documentation of their citizenship. It
would be crazy for the State to consider all of them illegal aliens and try to deport them.
However, this belief is exaggerated.
The Supreme Court was rather strict in its doctrine. Their decisions indicate that the
only time that a person is required to prove her citizenship is when Filipino citizenship
is actually questioned in a proceeding precisely for that purpose. So, that means that if a
foundling was registered as a Filipino citizen, there would be no question about her
citizenship at all unless a court case is filed where she must prove it. (Thankfully, the
only court cases that may be filed against them for proving citizenship are election
cases and petitions for certiorari governing immigration cases.)
Why should the foundling be the one to prove her citizenship? Thats the effect of the
Supreme Courts doctrine that there is no presumption of citizenship the one who
claims to be Filipino must be the one to prove it.
Foundlings should automatically be considered Filipino citizens.
Those of this opinion feel that the State should exercise some compassion with regard to
foundlings. After all, it is not their fault that they are foundlings. Instead of making life
harder for them, the State, as Parens Patriae (Latin for parent of the country), must
have compassion and should grant them citizenship. Even if they are blond and blueeyed and very Caucasian.

The counter-argument to that position is that the Philippines is a government of laws,

not of men. Hence the government should act based on the laws that govern it, not
simply out of compassion, because nobody should be exempt from the law.
The Supreme Court noted in its decisions that Philippine laws on citizenship are very
restrictive. It is so restrictive that the drafters of our Constitution even differentiate
between natural-born and naturalized. The Supreme Court has already declared that
there is no presumption of citizenship and that one who claims to be Filipino should
prove it. It may be harsh, but thats the law.
The second legal basis is based on international law. Some experts are of the belief that
principles of international law require the Philippines to bestow citizenship on
foundlings. Two international laws are of notable importance.
The 1930 Hague Convention on Certain Questions Relating to the Conflict of
Nationality Law, states in Article 14, A child whose parents are both unknown shall
have the nationality of the country of birth. The second is the 1961 Convention on
Reduction of Statelessness. Article 2 of that convention allows a foundling to be
considered to have been born of parents who are citizens of the contracting state. (Exact
words: 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 the territory of
parents possessing the nationality of that State.).
There is a big problem with that argument first of all (and most importantly), the
Philippines is not a signatory to those international conventions. Those conventions go
against the Philippine Constitution (1935, 1973, and 1987) provisions on citizenship.
That may be why we never became party to them.
Those who argue in favor of these conventions say that they are now considered
customary international law and by virtue of the constitutional law principle

that adopts the generally accepted principles of international law as part of the law of
the land, the Philippines has actually adopted these two conventions even though it is
not signatory thereto. They believe that these conventions were brought about by
international custom and that, because of the length of time that has passed, these
conventions have ripened into something that one can derive rights from.
Again, there are problems with that. Any law, whether local or international, which goes
against any provision of the Constitution is void. Since these conventions go against our
citizenship provisions, then they cannot have an effect here.
Also, international customary laws are those aspects of international law that derive
from widespread custom, acceptance, and practice by States. But these conventions
cannot be considered customary international law because many countries do not accept
them. There are few States that have signed, ratified, and accepted them. Since there is
no widespread acceptance of the principles in these conventions, they cannot be
considered international custom.
In any case, both conventions do not require the contracting State to bestow citizenship
conclusively (i.e., permanently) on the foundling. They allow the state leeway to remove
citizenship if it could be shown that the childs parents are not citizens.
It is possible to harmonize this with the Supreme Court rulings of the past decades. A
liberal Supreme Court could declare that there is an international customary law that
allows a state to consider foundlings as citizens. However, if citizenship is questioned,
the foundling has the burden of proving it. This will allow indigents with no citizenship
records to vote, get passports, and not get deported.
NATURAL-BORN OR NATURALIZED?
It gets tricky now.

Lets assume that the foundling derives Filipino citizenship by virtue of international
law or international customary law, and not by virtue of blood ties to a Filipino
biological parent.
Is a foundling considered natural-born or naturalized citizen?
The Constitution describes two types of citizens. A natural-born Filipino has more rights
than a naturalized Filipino. They are the only ones who are allowed to hold positions in
the highest executive, legislative, and judicial offices in the country, as well as the
constitutional commissions.
This is how restrictive Philippine laws on citizenship are. (It is so hard to become a
naturalized citizen that I actually think naturalized citizens love our country more
because of the hassle they take to become a citizen, the huge investment, and the fact
that they have greater stake in the country than most natural-born citizens.)
The Philippine Constitution defines a naturalized Filipino as one who became Filipino in
accordance with law.
So, if a foundling derives her Filipino citizenship by virtue of international law, then she
becomes a Filipino citizen by virtue of law! This makes her a naturalized Filipino
citizen.
The constitution states that a natural-born Filipino is one who is a citizen from birth
without having to perform any act to acquire or perfect the citizenship. One may argue
that a child did not do anything to acquire or perfect citizenship, so she should be
considered natural-born.
Thats a bad argument when you see it in the context of Supreme Court rulings.

In the first place, the Supreme Court has ruled that children of foreign nationals who are
naturalized are also naturalized Filipinos even though they did not perform any act to
acquire citizenship. They are not considered natural-born even when they did not do a
thing to obtain their new nationality. They were naturalized in accordance with law.
(Note that if the children were born AFTER their parents were naturalized, then they
are considered natural-born).
In the second place, under the 1987 Constitution, international law forms part of the
laws of the land. However, it does not form part of the Constitution, so that means that
international law will not add new qualifications for Filipino citizenship. However, it is
considered same level and effect as a law passed by the Legislature.
If these conventions would be considered laws that bestow nationality on foundlings,
then any who derive their Filipino citizenship in accordance with them are citizens who
were naturalized in accordance with law.
Since the only way to be a natural-born citizen is to have Filipino parents, then
foundlings can only be considered natural-born citizens if they can adduce evidence
showing that their biological parents are Filipinos.
Thats it. Those are the arguments. Now, we wait until a case is brought, and well see
how the Supreme Court would rule.
Foundlings have an inherent right to have a nationality and are not stateless persons.
While difficulties of determining the nationality, parentage, background or even identity of an
abandoned child, are genuinely recognized, nonetheless, both international and local laws afford
safeguards to ensure that foundlings shall not be considered stateless, the ACCAP in a statement
said.
A foundling is defined as an infant that has been abandoned by its parents and is discovered and
cared for by others.
Philippine rules on Adoption define a foundling as a deserted or abandoned infant or child whose
parents, guardian or relatives are unknown; or a child committed to an orphanage or charitable or

similar institution with unknown facts of birth and parentage and registered in the Civil Register as a
foundling.
A Human Right
Customary International law recognizes the right to a nationality as a fundamental human right,
including the proscription against the arbitrary deprivation of nationality and statelessness.
Historically, as early as the 1930s, international law already recognized the model that foundlings
should be afforded the protection of the state wherein which they were found.
Article 14 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws provides in Article 14 that A child whose parents are both unknown shall have
the nationality of the country of birth.
The Hague Convention adds that If the childs parentage is established, its nationality shall be
determined by the rules applicable in cases where the parentage is known.
Based on the Hague Convention, a foundling is, until the contrary is proved, presumed to have
been born on the territory of the State in which it was found.
International Conventions protect foundlings nationality rights
Several international conventions like the Universal Declaration of Human Rights, the International
Convention on Civil and Political Rights, the United Nations Convention on the Reduction of
Statelessness, the 1997 European Convention on Nationality, the 1969 American Convention on
Human Rights, the African Charter on the Rights and Welfare of the Child, and the Arab Charter on
Human Rights, accord general and worldwide recognition to a foundlings inherent right to acquire a
nationality
More particularly, the United Nations Convention on the Rights of the Child guarantees the right of a
foundling to a nationality, including the protection against arbitrary deprivation of nationality and
statelessness.
Burden of the State
States must carry the burden of proving that the loss or deprivation of nationality will not result in
statelessness.
Thus, nationality acquired by foundlings may only be lost if it is proven that the child possesses the
nationality of another State.
Philippine laws protect foundlings
In the Philippines, foundlings are considered as children in need of special protection.
Under the Doctrine of Parens Patriae, the State has the responsibility to stand as an informal
caretaker of the rights of children, or to act as the parent of any child or individual who is in need of
protection.
1987 Constitution
Section 3(2), Article XV of the 1987 Constitution provides that [The State shall defend] the
right of children to assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their
development.
The wealth of our domestic laws dealing with the rights of foundlings, all mirror the countrys
obligations as a signatory to the United Nations Convention on the Rights of the Child to ensure that

foundlings are accorded every protection that the State can provide against statelessness,
exploitation, abuse and neglect from the time of their birth and until the time they are adopted or
taken in by the relevant government agencies concerned.
Some of the laws that protect the rights of foundlings are Republic Act No. 7610 or The Special
Protection of Children Against Abuse, Exploitation, and Discrimination Act, Presidential Decree No.
603 or the Child and Youth Welfare Code, Republic Act No. 9523 or An Act Requiring the
Certification of the Department of Social Welfare And Development (DSWD) to Declare a Child
Legally Available For Adoption as a Prerequisite for Adoption Proceedings, and the provisions of
the Family Code and the Domestic Adoption Act of 1998.
Foundlings: Wards of the state
Although the Philippines is not a signatory to the 1961 Convention on the Reduction of Statelessness,
the tenor of our local statutes all emphasize the guarantees of protection towards foundlings as wards
of the state and as children in need of special protection.
These guarantees are based on Philippine obligations under the United Nations Convention on the
Rights of the Child.
In line with Section 2, Article II of the 1987 Constitution, domestic laws should be
interpreted in such a way as to advocate a foundlings right to a nationality and against the existence
of statelessness.

CONVENTION ON THE REDUCTION OF STATELESSNESS

Article 2
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.
Article 8
1. A Contracting State shall not deprive a person of his nationality if such deprivation would render
him stateless.

Generally accepted principles of international law, as referred to in the Constitution,

include customary international law. Customary international law is one of the
primary sources of international law under Article 38 of the Statute of the
International Court of Justice. Customary international law consists of acts which, by
repetition of States of similar international acts for a number of years, occur out of a
sense of obligation, and taken by a significant number of States. It is based on
custom, which is a clear and continuous habit of doing certain actions, which has
grown under the aegis of the conviction that these actions are, according to
international law, obligatory or right. Thus, customary international law requires the
39

40

41

42

concurrence of two elements: [1] the established, wide-spread, and consistent practice
on the part of the States; and [2] a psychological element known as opinion juris sive
necessitatis(opinion as to law or necessity). Implicit in the latter element is a belief
that the practice in question is rendered obligatory by the existence of a rule of law
requiring it.
43

Some customary international laws have been affirmed and embodied in treaties and
conventions. A treaty constitutes evidence of customary law if it is declaratory of
customary law, or if it is intended to codify customary law. In such a case, even a
State not party to the treaty would be bound thereby. A treaty which is merely a
formal expression of customary international law is enforceable on all States
because of their membership in the family of nations. For instance, the Vienna
Convention on Consular Relations is binding even on non-party States because the
provisions of the Convention are mostly codified rules of customary international law
binding on all States even before their codification into the Vienna
Convention. Another example is the Law of the Sea, which consists mostly of
codified rules of customary international law, which have been universally observed
even before the Law of the Sea was ratified by participating States.
44

45

46

47

Corollarily, treaties may become the basis of customary international law. While
States which are not parties to treaties or international agreements are not bound
thereby, such agreements, if widely accepted for years by many States, may transform
into customary international laws, in which case, they bind even non-signatory
States.
48

In Republic v. Sandiganbayan, this Court held that even in the absence of the
Constitution, generally accepted principles of international law remain part of the
laws of the Philippines. During the interregnum, or the period after the actual takeover
of power by the revolutionary government in the Philippines, following the cessation
of resistance by loyalist forces up to 24 March 1986 (immediately before the adoption
of the Provisional Constitution), the 1973 Philippine Constitution was abrogated and
49

50

there was no municipal law higher than the directives and orders of the revolutionary
government. Nevertheless, this Court ruled that even during this period, the provisions
of the International Covenant on Civil and Political Rights and the Universal
Declaration of Human Rights, to which the Philippines is a signatory, remained in
effect in the country. The Covenant and Declaration are based on generally accepted
principles of international law which are applicable in the Philippines even in the
absence of a constitution, as during the interregnum. Consequently, applying the
provisions of the Covenant and the Declaration, the Filipino people continued to enjoy
almost the same rights found in the Bill of Rights despite the abrogation of the 1973
Constitution.