Dissenting from the SET dissents

The life of the law is not logic, but experience, according to Justice Oliver Wendell Holmes. 

In the SET case against Senator Grace Poe, experience took hold when the majority upheld that foundlings can be natural-born citizens in accordance with the 1935 and 1987 Constitutions. However, the three magistrates of the Supreme Court who are members of the Tribunal chose instead to strictly apply the letter of the law, rather than the spirit that gives life to the law.

The three magistrates, all of whom I admire and respect, have the distinct impression that to grant foundlings the status of natural-born citizens is by itself already a violation of the Constitution, because it adds to the definition of the concept. What is basically overlooked is that the proposition that foundlings are natural-born citizens is not an additional concept to the character of natural-born citizenship in the Philippines, but a mere empirical presumption made in the course of evidence-based proceedings.

Poe’s natural-born status based on evidence

There are two common principles in law on how one acquires natural-born status as a citizen of a country. These are jus solis and jus sanguinis. 

One becomes a citizen either by accident of birth in a country, or by reason of the blood and nationality of the parents. The Philippines follows the latter. 

The reason why there is a problem with foundlings all over the world is because by definition, both their place of birth and parentage, the circumstances crucial in determining either jus solis or sanguinis citizenship, are unknown. There is a debate on whether they should be treated as citizens of the country where they are found not because they were not born in that country or that they were not born of nationals of that country, but precisely because of the fact that these circumstances surrounding their birth are not known. 

For all that anybody knows, they could actually have been born in the country where they were found, of parents who are nationals of that country, which, in the first place, is the most likely scenario based, maybe not on logic, but on experience. After all, what are the chances that a foundling infant found in the Philippines was actually born in another country, or that his parents were, of all people found in the Philippines, not Filipinos?

Foundlings found in the Philippines may or may not be Filipinos, but for some strict interpretation of the letter of the Constitution, the SC magistrates deemed that the balance of either possibility should be ruled in favor of the latter, on the rather disconnected theory that according them natural-born citizenship is a constitutional violation, instead of the problem being considered as a mere issue on the application of empirical, if not logical, presumptions.

In this sense, foundlings are not even given additional rights as if they are being given preferential treatment, they are just being given the benefit of a very common experiential presumption, that a child found in a country is, by all measures of chances and probability, born in that country of parents who are nationals of that country. Logically, of course, the presumption is a fallacy.

But that is why the life of the law is not logic, it is experience, it is reality, it is common day-to-day eventualities most naturally occurring without any, more credible, contrary supposition, much like the example given by Justice Carpio of the most common and well-taken path (which he discussed to establish whether a rule is customary international law or not but which, in his case, was used to conclude that there is no basis in international law for the empirical presumption in favor of foundlings).

The overlooked fact is this: what we are dealing with is not a violation of the constitutional provision on who are natural-born citizens, but the application of a well-grounded presumption in favor of foundlings. It is not even the same kind of unscientific, unproven and illogical presumption judges use every day in rape cases, when they rule that there is no rape because the woman did not resist or because she did not shout or she did not raise any alarm or she did not report the crime immediately (the hue and cry doctrine). Judges make these presumptions everyday in the courtroom to decide cases and to settle factual questions raised before them. And we accept them. But it is only in the citizenship issue of Grace Poe that the magistrates of the Court decide not to make a conclusion based on the presumption as to her nationality born out of the uncontested factual circumstances of her discovery, because according to them it would be a violation of the Constitution. 

There are bound to be more objections to presumptions based on Hale’s Warning in rape cases than there would be to a presumption that a child found in the Philippines must, in all probability, be a Filipino, or that an Aeta foundling discovered in Mt. Pinatubo after the eruption in 1991 or a child roaming the streets of Tacloban after Yolanda are, after all, Filipinos. And yet, judges who have not yet undergone gender-sensitivity trainings, or who have not taken gender equality principles at heart, continue to apply the illogical and unscientific Hale’s Warning in rape cases. (As an aside, there is no International Convention on the application of Hale’s Warning in rape cases. Even if there is one, definitely the Philippines is not a signatory to it. Yet, judges in rape cases apply these misogynist presumptions all the time, despite decades of expert and professional studies on rape trauma syndrome.) 

The problem with the dissents

In essence, the problem with the dissenting opinions is this: they cannot grant a very natural presumption, based not only on experience but on international humanitarian law, to countless child victims of natural disasters who lost their parents as infants or toddlers, even when judges apply less reasonable presumptions in court rooms everyday.

True, we are not obligated to the International Convention on the Reduction of Statelessness. But this Convention is not even asking us to amend our Constitutional definition of natural-born citizenship. It merely asks us to apply a very sound presumption in the cases of foundlings. We do not even have to apply the presumption arbitrarily or wholesale to all foundlings, but only use it to arrive at a conclusion based on the factual circumstances of the discovery of the foundling and maybe, but to be racist about it, his physical features. 

As I said, judges make findings of fact based on presumptions because of inconclusive evidence produced everyday in the court room. For some disproportionate tendency to defend the letter of Section 2, Article IV of the Constitution, the justices refused to do so in the citizenship case of Grace Poe, and so failed to rule that in the absence of proof that a foundling found in the Philippines is not a Filipino, then he must be a Filipino. One does not even have to be a party to international conventions to apply this presumption. One does not even have to be particularly partial to humanitarian law to apply this presumption. One must only do what he does everyday as a judge and issue the most sound and equitable decision that he could make given a particular set of evidence. 

By these standards of soundness and equity, the disproportionate defense by the SC justices of the concept of natural-born citizenship, in order to strip a foundling of her natural-born status, is certainly alarming. After all, after everything is said and done, Grace Poe’s parents of course are most probably Filipinos based on the circumstances of her discovery. When the time comes that this is conclusively proven, can we say that justice was done by the SC Justices in the case of Grace Poe?

Naturalization not a solution

Justice Carpio, like Justices Brion and De Castro, raised a considerable amount of arguments why he has problems with applying the presumption that a child found in the Philippines is most probably born of Filipino parents. Yet, he has no qualms about inventing a totally new doctrine called “naturalization by customary international law” to rule that Grace Poe is a naturalized Filipino. There is nothing in our immigration and naturalization laws that supports this new-found doctrine. But Justice Carpio thinks that this great leap in legal reasoning that Grace Poe became a naturalized citizen when she was granted a Philippine passport poses no legal problems. It’s just as legal as he says it is, without being confounded with the problem of how novel theories or legal opinions are suddenly elevated to the status of law or jurisprudence. 

He cites his exchange with counsel for petitioner Rizalito David as follows:

J Carpio: The status of customary international law is (that of) municipal law, correct?

Atty. Luna: Yes.

J Carpio: It is municipal law.

Atty. Luna: Yes.

J. Carpio: So if you are naturalized by virtue of customary international law, you are naturalized under (Section 1.5 Article IV of the 1935 Constitution)?

Atty. Luna: Yes.

J Carpio: You do not become natural-born?

Atty. Luna: Yes.

Let me imagine a more reasonable and less legally controversial version of an exchange with Atty. Luna, which was actually the line of questioning of Senator Loren Legarda:

J Carpio: Grace Poe was found in Jaro, Iloilo, correct?

Atty. Luna: Yes.

J. Carpio: She was found an infant so it was impossible for her to know who her parents were, correct?

Atty. Luna: Yes.

J. Carpio: You have any evidence that a pregnant foreigner was in Jaro, Iloilo around that time in 1968?

Atty. Luna: No.

J. Carpio: In the absence of evidence that there was a pregnant foreigner in Jaro, Iloilo in 1968, it was therefore most probable that an infant found in Jaro, Iloilo at that time could only come from a Filipino mother residing in Jaro, Iloilo?

J. Carpio: Is there any reason for us to presume, without any proof of a pregnant foreigner in the area at that time, that an infant found in Jaro, Iloilo in 1968 was most probably given birth by a foreigner?

Justice Carpio has problems with this presumption, but not with the concept of “naturalization by customary international law.” Of course he goes on to say that in the first place, under the 1935 Constitution, it is the father, not the mother, who must be a Filipino in order for one to be considered natural-born. One born of a Filipino mother but alien father must still elect Philippine citizenship. 

The 1935 Constitution and World War II

The 1935 Constitution provision on election of citizenship was not meant for foundlings. In fact, the whole 1935 Constitution Article on citizenship was not crafted with foundlings in mind. Too bad, because World War II was to come to the Philippines six years later and produce thousands of Filipino foundlings. Based on the ruling of the dissenting opinions, thousands of Filipino children orphaned by World War II lost their natural-born citizenship by the sheer misfortune in life of having their whole families and known relatives slaughtered when they were infants or toddlers.

Reality and experience would tell us that these orphaned children were most probably Filipinos, and the reason why their parentage is unknown is because in the last days of the war, particularly during the liberation of Manila, their parents and everybody else who knew them were killed by the Japanese defenders and American bombs.

But does the 1935 Constitution say that they are not natural-born? It does not, it could have not, because nobody could simply lose his citizenship by the fact of the death of the parents. That is why there is a presumption for these children orphaned by war, and it is a presumption based on experience, on common sense, on the realities of war. 

Compassion favors presumption of natural-born status 

If the dissenting opinions would point out, then yes, it is a presumption that should be based least of all on human compassion. But that only teaches us to separate the law from its very purpose, to preserve humanity, and to make us human.

Our international obligation does not tell us to change the Constitution. It does not even tell us to declare foundlings as citizens. It merely tells us to work on the most circumstantially empirical and real of presumptions to prevent the injustice of burdening those who are already the least fortunate of the most vulnerable of any demographic class, abandoned and lost children.

We do not even need to be a signatory to a hundred international conventions to consider the peculiar circumstances of foundlings for purposes of determining their citizenship and consequently, their rights. 

We only need to be human. – Rappler.com