SC’s Grace Poe Ruling on Citizenship Based on Inferences and Probability

Elpidio V. Peria
13 March 2016


Justice Carpio and Chief Justice Sereno, from

The Philippine Supreme Court ruling on Mary Grace Natividad S. Poe-Llamanzares v. Commission on Elections & Estrella C. Elamparo is astonishing in that the main legal points of the ponencia by Justice Perez on Grace Poe’s citizenship got debunked, perhaps unsurprisingly, by Justice Antonio Carpio in his dissent. Time limitations will not allow us to read all the concurring opinions, of which there were four, written separately by Chief Justice Sereno, Justice Leonen, Justice Velasco and Justice Jardeleza, with a distinct and individualized Separate Concurring Opinion by newly-appointed Justice Caguioa and ranged against these pro-Grace Poe opinions are four distinctly written dissenting opinions by Justice Carpio, Justice Brion, Justice del Castillo and Justice Perlas-Bernabe and another distinct and individualized Separate Dissenting Opinion by Justice Leonardo-De Castro. If we go by these concurring and dissenting opinions at five each, what we have an is equally-divided Court, but the main ruling of Justice Perez, which the Supreme Court voted upon and reported last Tuesday by the media, has a 9-6 vote on it, thus Grace Poe was found to be a “QUALIFIED CANDIDATE for President in the 9 May 2016 elections”.

The main ruling first delved on the procedural issue of whether the COMELEC acted within its authority to disqualify Grace Poe and it said :

The issue before the COMELEC is whether or not the COC of petition should be denied due course or cancelled “on the exclusive ground” that she made in the certificate a false material representation. The exclusivity of the ground should hedge in the discretion of the COMELEC and restrain it from going into the issue of qualifications of the candidate for the position, if, as in this case, such issue is yet undecided or undermined by the proper authority. The COMELEC cannot itself, in the same cancellation case, decide the qualification or lack thereof of the candidate.

Justice Antonio Carpio’s rejoinder to this is that :

Clearly, pursuant to its constitutional mandate, the COMELEC can initially determine the qualifications of all candidates and disqualify those found lacking any of such qualifications before the conduct of the elections. In fact, the COMELEC is empowered to motu proprio (on its own initiative) cancel COCs of nuisance candidates.

The main ruling then proceeded to state that:

The fact is that petitioner’s blood relationship with a Filipino citizen is DEMONSTRABLE.

Justice Carpio then in response to this, laid out the core issues of the case, i.e. : (1) whether petitioner, being a foundling, is a natural-born Filipino citizen and (2) whether she is a resident of the Philipppines for ten years immediately preceding the 9 May 2016 elections. Justice Carpio delved only on the first issue and that is what we will highlight in this blog post.

Whether Grace Poe, a foundling, is a natural-born Filipino citizen

1) As inferred from the proceedings of the 1934 Constitutional Convention

The main ruling here stated :

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution is silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either.

This justification, which is in essence, a mere inference, proceeded to cite the deliberations of the 1934 Constitutional Convention (indeed, there was such a thing!) where one delegate’s proposal, a certain Mr. Rafols, which the main opinion said:

Though the Rafols amendment was not carried out, it was not because there was any objection to the notion that persons of “unknown parentage” are not citizens but only because their number was not enough to merit mention.

Justice Carpio’s view on this Rafols amendment is that:

xxx… The framers of the 1935 Constitution voted to categorically reject the proposal to include foundlings as citizens of the Philippines. Petitioner’s Petition, and the Solicitor General’s Comment, glaringly omitted that the 1934 Constitutional Convention actually voted upon, and rejected, the proposal to include foundlings as citizens of the Philippines.

Here, Justice Carpio’s citations are the actual proceedings of the 1934 Constitutional Convention, and compare that with the authority underpinning the above-cited main opinion which was relied upon by the Petitioner and the Solicitor-General – mainly Jose Aruego, who wrote about the 1934 Constitutional Convention, fifteen years after the fact, or in 1949. The reader should decide who would be a more authoritative source for this – the actual official record of the proceedings or a commentator’s opinion made 15 years after the event he is commenting on happened.

2) As inferred from the adoption laws of the country
Another argument made by the main ruling delved with adoption laws of the country, stating:
Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not provide that adoption confers citizenship upon the adoptee. Rather the adoptee must be a Filipino in the first place to be adopted. The most basic of such laws is article 15 of the Civil Code which provides that “laws relating to family rights, duties, status, conditions, legal capacity of persons are binding on citizens of the Philippines even though living abroad.” Adoption deals with status, and a Philippine adoption court will have jurisdiction only if the adoptee is a Filipino.

Justice Carpio’s rejoinder to this :

The term “natural-born Filipino citizen” does not appear in these statutes describing qualified adoptees. In fact, while the term “Filipino” is mentioned, it is found only in the title of RA 8552 and RA 8043. The texts of these adoption laws do not contain the term “Filipino”.

Again, what can be seen is that the main ruling inferred from what is stated in the title of the adoption laws of the country that Grace Poe is a Filipino and natural-born, without her being required to prove she is a foundling, because :

In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as evidenced by a Foundling Certificate issued in her favor.

3) As inferred under international laws

The main ruling argued again for Poe’s status as a natural-born citizen in this manner:

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. On the other hand, generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations.

The main ruling then went on to single out two international Conventions, not ratified by the Philippines, but whose provisions are “generally accepted principles of international law.” These are : (a) article 14 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws under which a foundling is presumed to have the “nationality of the country of birth” and (b) article 2 of the 1961 United Nations Convention on the Reduction of Statelessness which states that a foundling is presumed born of citizens of the country where he is found.

The main ruling may have anticipated a discerning reader’s quizzical acceptance of these assertions as immediately after those citations of the provisions it then said:

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the Reduction of Statelessness does not mean that their principles are not binding. While the Philippines is not a party to the 1930 Hague Convention, it is a signatory to the Universal Declaration on Human Rights, Article 15(1) of which effectively affirms Article 14 of the 1930 Hague Convention. Article 2 of the 1961 “United Nations Convention on the Reduction of Statelessness” merely “gives effect” to Article 15(1) of the UDHR.”

Justice Carpio proceeded to dispose of this argument in the main ruling through the following steps in his reasoning:

a) First he started with the beginning premise that the determination of who are its citizens is the right and prerogative of every state;

b) Then he looked at all the international conventions cited by the main ruling in favor of Petitioner and afterwards, summed them up as follows :

In sum, there is no international treaty to which the Philippines is a contracting party, which provides expressly or impliedly that a foundling is deemed a natural-born citizen of the country in which the foundling is found. There is also obviously no international treaty, to which the Philippines is not a party, obligating the Philippines to confer automatically Philippine citizenship to a foundling at birth.

c) Then he scrutinized the provisions on foundlings of international conventions cited by Petitioner, whether whether they have become part of customary international law or generally accepted principles of international law on nationality.

In this part of his reasoning, Justice Carpio first explained that an international rule becomes customary international law if there is widespread and consistent state practice and there is what is called the opinio juris sive necessitatis. State practice refers to the continuous repetition of the same or similar kind of acts or norms by states, with the following elements : (a) generality or widespread practice; (b) uniformity and consistency; and (c) duration. Opinio juris sive necessitatis requires that the state practice or norm be carried out in the belief that this practice or norm is obligatory as a matter of law.

Examining the number of states that have ratified the 1930 Convention on the Reduction of Statelessness, Justice Carpio found that only 64 States have ratified the Convention as of February 2016, out of the 193 Member-states of the United Nations, which as, as Justice Carpio said : “far less than a majority.”
Completing his discussion on this item after citing a legal scholar on what is meant by widespread and consistent state practice, he then said:
Petitioner manifestly failed to show that Article 2 of the Convention on the Reduction of Statelessness is an “established, widespread and consistent practice” of a majority of sovereign states.

Later on, on the question of whether the Convention on Statelessness relied upon by Petitioner has become customary international law, Justice Carpio said:

On the other hand, it is generally accepted by international law writers that the Convention on Reduction of Statelessness does not constitute customary international law precisely because of the small number of states that have ratified the Convention.

One might think that Justice Carpio is contented in this argument, but there is more:

Moreover, aside from the fact that the Philippines is not a contracting party to the Convention on the Reduction of Statelessness, article 2 of the Convention is inapplicable to this case because the Convention, which took effect after the birth of the petitioner, does not have retroactive effect. Par. 3 Art. 12 of the Convention explicity states:

3. 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. (emphasis supplied)
In short, even if the Philippines were to ratify the Convention today, the Convention would still not benefit petitioner who was born in 1968

d) In an attempt to clarify what is the applicable customary international law on foundlings, Justice Carpio found none, saying there is no customary international law conferring automatically citizenship at birth to foundlings, much less natural-born citizenship at birth as understood under the Philippine Constitution.

e) If there is an applicable international law principle applicable to Grace Poe, it is that a foundling is deemed domiciled in the country where the foundling is found. A foundling is merely considered to have a domicile at birth, not a nationality at birth.

f) Finally, granting for the sake of argument that there is a customary international law principle or general principle of international law granting nationality to foundlings, still such foundlings could not be considered as natural-born Filipino citizens since to treat them as such would conflict with the concept of jus sanguinis under the 1935 Constitution. He then stated that in case of conflict between customary international law and the Constitution, it is the Constitution that prevails, and the 1935 Constitution states thus:

The 1935 Constitution clearly required blood relation to the father to establish the natural-born citizenship of a child. The 1935 Constitution did not contain any provision expressly or impliedly granting Filipino citizenship to foundlings on the basis of birth in the Philippines (jus soli or law of the soil) with the presumption of Filipino parentage so as to make them natural-born citizens.

Closing this part of his argumentation, Justice Carpio opined that foundlings can only be considered naturalized Filipino citizens, but not natural-born.

4) As borne out by statistics from the Philippine Statistics Authority

One may think that Justice Carpio would have stopped at what he has already done, but strangely, even if it was not discussed in the main ruling, he scored the Solicitor-General for the latter’s use of statistics during oral arguments.

In the oral arguments, the Solicitor General insisted that petitioner is a natural-born Filipino citizen based on the 99.93% statistical probability that any child born in the Philippines from 2010 to 2014 would be a natural-born Filipino citizen. From 1965 to 1975, there is a 99.83% statistical probability that a child born in the Philippines would be a naturalborn Filipino citizen.

On this assertion, Justice Carpio said:

There is no law or jurisprudence which supports the Solicitor General’s contention that natural-born citizenship can be conferred on a foundling based alone on statistical probability. Absent any legal foundation for such argument, the Solicitor General cannot validly conclude that a 99.93% (or 99.83%) statistical probability that a foundling born in the Philippines is a natural-born Filipino citizen legally confers on such foundling natural-born citizenship. There is no constitutional provision or statute that confers natural-born citizenship based on statistical probability.

Ultimately, supporters and handlers of Grace Poe would be elated by this ruling. A win is still a win, no matter how divided the Court may have been. Indeed, if only there were two more Justices that sided with the six dissenters, the outcome would have been different.

But for future litigants who may be confronted with this issue in their own time, this case only proves US Supreme Court Justice Oliver Wendell Holmes’ famous aphorism :”Great cases like hard cases make bad law” – the legal precedent established here, that foundlings are natural-born citizens – stretches the basic principles of statutory construction, constitutional law, international law and adoption law too much it does not inspire confidence in the certainty of the legal principle established.

For those who contested Poe’s qualifications, there is still a chance for them to file their Motion for Reconsideration so that the winning side of the Supreme Court who ruled in favor of Grace Poe can respond more thoughtfully to the way dissenters such as Justice Carpio demolished their reasoning, so that ordinary Filipinos and the legal profession, law students and the judiciary will maintain their respect for the Supreme Court’s erudition and even-handedness.

Or, if Grace Poe’s foes think such move will no longer be practical, the door is left open for them to contest again Grace Poe’s qualifications to become President after the May 2016 elections, in a proper case in the Presidential Electoral Tribunal, if and when Grace Poe will be declared the winner in the Presidential derby.


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