Crossroads (Toward Philippine economic and social progress)
Philippine Star, 23 March 2016


The recent case of Grace Poe ripped the Supreme Court into two camps. Though the court had decided to let her run for president, it was a close call.

A line of justices appointed under the Aquino administration made a big difference, for the four of them voted as one. This gave the court’s decision a political tone rather than one based on the factual legal issues.

I explore a different angle in this discussion. What if the basis of citizenship reckoning had been more inclusive to allow the place of birth as a means of determining “natural-born?”

This supposition has no direct bearing on the outcome as decided. However, it is highly instructive from a broader perspective.

The Grace Poe case. Foundlings by their very nature have unknown parentage. Sometimes, the parents throw away their offspring into safe havens (a church, an orphanage, a doorstep, etc.) for one or more specific reasons. (The pregnancy was unwanted. The infant is illegitimate and there is shame. Or the parent suffers from abject poverty. Etcetera.)

For a foundling, this case is out of the ordinary, running for political office that requires the qualification of being a “natural-born” citizen. But Grace Poe has uniquely done it twice: first, as senator (for which her case was not questioned) and, now, as candidate for president.

The matter assumes gigantic proportions for the entire nation. Before the Commission on Elections, the suits to disqualify her candidacy were based on her not being a natural-born citizen and for lack of legal residency as a returning citizen.

Disqualification of her candidacy by the election body elevated the case to the Supreme Court on appeal.

Grace Poe went to live abroad when she married an American citizen (though of ethnic Filipino origin). She also acquired US citizenship, only to return to re-acquire her Philippine citizenship in order to become a public official.

Blood relationship as basis: jus sanguinis. The main difficulty of the Supreme Court arose from the rules governing the determination of a natural-born Filipino citizen. The parentage of a foundling is essential to the concept of natural-born citizen.

In Philippine law, there is no other legal basis allowed for natural-born citizenship except blood relationship, or jus sanguinis.  Under this rule, the key to the determination of natural-born status is the citizenship of one of the parents.

Such determination of natural-born citizenship would be simpler if, in addition to jus sanguinis, Philippine laws attached importance to place of birth as a principle of citizenship. Jus soli, or citizenship by place of birth, is the other principle.

Many countries allow both principles for citizenship determination. Not the Philippines. Thus, to determine if a child is natural-born, the citizenship of one of the parents is critical. One parent’s citizenship should have been sufficient, but in the Philippine patriarchal society, the male parent’s citizenship matters more.

The Supreme Court’s decision. In deciding this case, the Supreme Court was deeply divided. Seven justices voted to allow Grace Poe to run; five voted for disqualification, and three did not participate on the issue.

The vote on the residency was also divided, with seven out of 13 justices voting to recognize residency being fulfilled. (In the residency issue, the court appeared magnanimous. It overlooked the factual deficiency of a few weeks to meet the residency requirement.)

The crux of the matter lay in the natural-born definition in Philippine laws. It is based only on blood relationship. Proof of blood relationship with a Filipino father had to be made for a foundling to be called natural-born.

No such proof could be gathered in the unique case of Grace Poe because, apparently, parentage was not known. The question then arose, is failure to establish uniqueness of evidence as to parentage a failure of proof? This was essentially where the decision issue seemed to focus on.

The court justices who favored a liberal outlook on the issue invoked probabilistic reasoning: a foundling on Philippine soil was likely to be of Filipino parentage. Further, they adopted the principle in international law that foundlings have citizenship rights to the country where they are found. They also seemed to use physical features, or physiognomy, as a positive factor.

The issue of natural born citizenship is a factual and unique issue. When applied to the presidency of the land, it is all the more significant.

Despite the generous grounds given to the case of foundlings, the main issue at hand is whether the most important position of leadership in the country could be given to a liberal interpretation of a factual issue.

Citizenship by place of birth. Imagine if Philippine citizenship rules also included jus soli as a core principle of determining citizenship. Then all this convoluted problem of dealing with natural-born citizenship (probabilistic, liberal interpretation) would disappear.

A baby found on Philippine soil could also be more easily assumed to be Filipino under this principle. Though it might be questionable to say that born on the soil is “found on the soil”, this is much easier than proving blood relationship.

A foundling on Philippine soil can only be Philippine born. The movement of people across borders is controlled by the immigration authorities. Lack of immigration documentation then means the foundling is born on Philippine soil.

Thus, all foundlings on Philippine soil could be presumed to be born on it. Jus soli reigns!

Implications of jus soli rule on economic development.  Far from just being helpful in this rather odd case of Grace Poe’s citizenship, there is another reason why the matter of jus soli citizenship principle is of much greater significance.

Philippine economic development performance has been hampered by many legal constraints. The definition of citizenship – the strictness with which they have been associated with blood relationship – has made capital and entrepreneurship very scarce in the country.

The place of birth rule of citizenship could have eased many complicated economic constraints that have bogged down Philippine attraction of foreign direct investments. (This, of course, is another topic.)

Interestingly, this country could have been much more progressive, more modern, and with much higher living standards if that rule were part of the core principles of Filipino citizenship when the independence constitution was adopted.