I am not as bold as either Former Chief Justice Panganiban or Dean Antonio La Vina to say that Grace Poe is definitely a natural born Filipino. Both posit that the so-called incorporation clause which states that generally accepted principles of international law is the legal basis for the so-called “presumption” that the senator is a natural born Filipino. Offhand, I find this odd since as a student and teacher of international law for the past 25 years, there is no definition of who a “natural-born” Filipino is under international law. It is the Philippine Constitution that defines a natural born Filipino as one who does not have to do any act to perfect his Filipino citizenship. This is sufficient basis to conclude that international law is irrelevant to the issue of whether the Senator is a natural born Filipino.
In any case, what international law provides is the presumption against statelessness and the right of a child to have a citizenship. While we are not yet a party to the first convention, I do agree that there is already widespread and virtually uniform state practice and opinion juris, the belief that it is the law, that no person shall be stateless. The Convention on the Rights of the Child in turn provides that all children should have a nationality. Hence, the presumption that children have the nationality of their parents. But this is different from a presumption that one is a natural-born Filipino. Again I reiterate, only natural born Filipinos can aspire to be members of Congress and the Presidency. All other Filipinos can seek only local elective posts.
Is there a valid constitutional interest to be achieved by this outright discrimination? Certainly. When one is a natural-born Filipino, one cannot have any other nationality. This is why the Constitution presumes that such a Filipino will exclusively love this country to the fullest. That is why the same Constitution says that dual citizenship is inimical to the national interest and shall be dealt with by law. After all, multiplicity of citizenship means multiple allegiances. In case of a war with the United States and the Philippines, do you expect dual-citizen Filipino Americans to support the Philippines? Probably not.
In any case, the deliberations in the House of Representatives would clearly show that the issue of whether a natural-born citizen who lost it through naturalization and acquires a dual citizenship hence revert to the status of a natural born Filipino is still to be defined by the courts. As Teddy Boy Locsin, author of the dual citizenship law, said in the floor of Congress: “Your guess is as good as mine”. My position is that this is a lacunae in the law which just be addressed by legislation.
The Lapid bill in this regard is the right remedy. Grace Poe should ensure passage of this bill into law prior to the 2016 elections.
Anent the issue of residency, much weight has been given to the case of Imelda Marcos who was declared by the Court as not having lost her domicile in Leyte solely by reason of her marriage to the late President. But the Marcos case cannot be applicable if only because Imelda Marcos, for all her faults, was never a foreigner. Likewise, our entire jurisprudence on domicile is necessary if we are to have a Congress. This is because 95 percent of all members of our House of Representatives are actually residents of Metro Manila. The intent to return – the so-called animus revertendi – has enabled Manila residents to be elected as residents of their home provinces. But it should be inapplicable to one who has opted to be a foreigner, or one with multiple loyalties.
In Jalosjos vs Comelec , the Supreme Court ruled that the abandonment of a home in Australia, renunciation of Australian citizenship, reacquisition of Philippine citizenship and settling down in Zamboanga Sibugay show an “intent to change domicile for good.” Applied to Poe, this would mean that she only acquired residency in 2010 when she renounced her American citizenship. It is unclear what the effect would be of the fact that under American law, she was only deemed to have actually lost her US citizenship in 2012. In any case, as I have written previously, the ruling in Maquiling requires both the oath and renunciation as twin requirements for those with dual citizenship to occupy public posts. The implication is that the law’s requirements are satisfied only on the date the dual citizen does both acts: the oath of allegiance and the renunciation.
In any case, the political question is how a former American can be President of the country. I restate the oath of allegiance taken by Grace Poe when she became an American:
“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”
President Grace of the Philippines? Maybe of the USA!