Are abandoned children second-class citizens?

The opinion of Supreme Court Senior Associate Justice Antonio Carpio pertains to Sen. Grace Poe. But it shows how a law can be unjust, so harmful to untold many other citizens.

Carpio says that Poe, being a foundling, is not a natural-born Filipino. She merely was naturalized by court order. Thus, she is unqualified to hold national office, which requires natural-born status.

Whether friend or foe of Poe, Filipinos might pause to ponder the implication. As family law specialist Katrina Legarda remarks: “This affects thousands of abandoned children in our country! If a foundling is not presumed natural-born then no abandoned child can ever aspire for national office. It’s terribly discriminatory, don’t you think?”

It sure is, given the Bill of Rights’ guarantee of equality in the eyes of law. Article III of the 1987 Constitution states: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”

The law is commonsense. One need not be a lawyer to understand its intent. That the constitutional authors declared equality in law as Section 1 shows its gravity. That it was adopted  as is – from the 1973 and 1935 fundamental laws further shows its primordial nature. All men are born equal. Any law or interpretation can only emanate from and never negate that precept.

Carpio proceeds from the principle of “jus sanguinis,” right of blood. It requires a person to be of Filipino parentage to be deemed natural-born, therefore able to be President or VP, senator or congressman, or member of the Supreme Court.

But what of a foundling? Just because an infant’s parents abandoned it, does it lose its right to be deemed natural-born, and so can never aspire for high office?

Carpio says: “To be natural-born, you must show blood relation.” International conventions of which the Philippines is a signatory allow foundlings to be citizens, but supposedly only by naturalization. “That’s when you grant passport to the foundling,” he says. “That gives citizenship to the foundling, which is naturalized and not natural-born.”

That is where the unfairness is too. It is evident to laymen who depend only on the commonsense of the law. Is it the fault of the infant that its parents abandoned it? Perhaps, it was not even abandoned, but the parents died or disappeared due to natural or man-made cause, leaving the infant’s birth unregistered and the bloodline uncertain. Surely, “jus sanguinis” – “linguini” is what comes to the lay mind – does not leave out “abandonados” from the utmost equal protection of law.

In fact, it does not. The Constitutional Convention of 1934 dwelt on the citizenship of foundlings in relation to “right of blood.” Delegates Rafols, Montinola, Briones, and Bulson debated it extensively, transcripts show. After which, Delegate Manuel Acuña Roxas, later to become President of the Republic, interposed: “Mr. President, my humble opinion is that these cases are few and far between, that the Constitution need (not) refer to them. By international law the principle that children or people born in a country of unknown parents are citizens in this nation is recognized, and it is not necessary to include a provision on the subject exhaustively.”

So there. The 1935 constitutional framers deemed it unnecessary to insert a rider on foundlings, considering them already to be natural-born.

Legarda, in an interview with Rappler, expounds on the matter: “A long-standing presumption and principle of customary international law is that a foundling takes the nationality of the place where it was found.” Fellow-UP-Law professor and child rights specialist Elizabeth Pangalangan adds that the presumption holds unless proof is presented to the contrary.

They cite three international laws: the 1948 Universal Declaration of Human Rights, the 1954 UN Convention on Statelessness, and the 1989 Convention on the Rights of the Child. The first two uphold the right of a person to a nationality; the third, to the right of a child to acquire it upon birth.

In effect, a foundling cannot be at first stateless, then acquires citizenship only when, say, adopted or court-made. It is not a naturalized but a natural-born citizen of the state where it was found. To think otherwise is cruel.

One last point is so basic to a layman. Only a foreigner needs to be naturalized as a citizen. A foundling, because natural-born, need not do anything to be recognized as such. Any regulation to the contrary is unconstitutional. It’s as commonsensical as that.

* * *

Requested plug: The Aquila Legis Franternity of the Ateneo College of Law will hold its Grand National Assembly at Manila Polo Club on Saturday, Sept. 26, 5 p.m. For additional info, contact Jimmie Policarpio, thru Aquila Global Viber.

* * *

Catch Sapol radio show, Saturdays, 8-10 a.m., DWIZ, (882-AM).

Gotcha archives on Facebook: https://www.facebook.com/pages/Jarius-Bondoc/1376602159218459, or The STAR website http://www.philstar.com/author/Jarius%20Bondoc/GOTCHA