Is a foundling automatically a citizen in the Philippines? Is a foundling a natural born citizen?

Is there a
presumption in favor of foundlings being natural born citizens? Who has the burden of proof and why?

a foundling is a child of unknown parentage found abandoned on the territory of a State

a body of rules established by custom or treaty and recognized by nations as binding in their relations with one
another.

Universal Declaration of Human Rights is not per se legally binding, but binding as a customary
international law ““The Universal Declaration of Human Rights states a common understanding of the
peoples of the world concerning the inalienable and inviolable rights of all members of the human family
and constitutes an obligation for the members of the international community.””

Poe born 1968 – 1935 constitution provisions on citizenship shall apply to her

Elemparo contention (1st case)

She is not a natural born citizen due to her foundling status. Claiming that international law does not confer
natural-born status and Filipino citizenship on foundlings.

 RA No. 9225 cannot apply to poe for, in the first place, she is not a natural born citizen hence nothing to
reacquire
 Arguendo: She has lost the status when she became a naturalized American citizen.
 According to Elamparo a Natural-born citizenship must be continuous from birth.

Reply of the Petitioner to the contention

(3) that she did not make any material misrepresentation in the CoC regarding her citizenship and residency
qualifications for:

a) 1934 Constitutional Convention deliberations show that foundlings were considered citizens.
b) Foundlings are presumed under international law to have been born of citizens of the place where they
are found;
a. Article 15(1) of the Universal Declaration of Human Rights provides that everyone has a right to
nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.
b. The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws[10]
(hereafter, the “1930 Hague Convention“) provides the following rules in determining a person’s
nationality: “It is for each State to determine under its own law who are its nationals. This law shall
be recognized by other States in so far as it is consistent with international conventions,
international custom, and the principles of law generally recognized with regard to nationality.”
(Article 1)
c. Declaration on the Rights of the Child[26] was proclaimed by the U.N. General Assembly
through its Resolution 1386(XIV) “ the child shall be entitled from his birth to a name and a
nationality”
c) RA 9225 applies to repatriation of a natural-born citizen
d) The burden was on Elamparo in proving that she did not possess natural-born status

Tatad argument:
Since the Philippines adheres to the principle of Jus sanguinis, therefore blood relationship is determinative of
natural-born status. Tatak invoked expressio unios est exclusio alterius. He averred that the fact that foundlings
were not expressly included in the categories of citizens in the 1935 constitution is indicative of the framers’
intent to exclude them, hence the burden of proof is with the petitioner.

 International convention or treaties are not self-executory and that local legislations are necessary in
order to give effect to treaty obligations assumed by the Philippines.

Poe reply to Tatad on natural born

 The burden to prove that she is not a natural born Filipino is on the respondents. She has a presumption
in her favor that she is a natural born citizen of this country.
 Customary international law dictates that foundlings are entitled to a nationality and are presumed to be
citizens of the country where they are founded.

The Court: There is more than sufficient evidence that petitioner has Filipino parents and is therefore a natural-born
Filipino. The burden of proof was on the private respondents to show that petitioner is not a Filipnio Citizen. She, being
a foundling, must not be put on of such burden since there is also a possibility that her parents were Filipinos.

 The issue is not who her parents are but if here parents are Filipinos

The SolGen offered statistics from the PSA that from 1965 – 1975 (Poe was born in 1968):

 That the statistical probability that any child born in the Philippines in that decade is a natural-born Filipino was
99.83%.
 In iloilo province for 1960 – 1970, 99.55% of population were Filipinos.
 Therefore, the year that Poe was born, 99% were Filipinos.
 Circumstancial evidence: She was abandoned in a Roman Catholic Church (filipino). She has typical Filipino
features.

It is Contrary to common sense that foreigners would come to the Philippines so they can get pregnant and leave their
newborn babies behind. We do not have a situation where the probability is such that every foundling has a 50% chance
of being a Filipino or Foreigner.

 Filipino trend of abandoning their children out of poverty or perhaps, shame.

 Foreigners cannot expect to think that they will abandon their children for having a chance of a better future for
them.

Denying full Filipino citizenship to all foundlings and render them statless just because there may be a theoretical chance
that one among the thousands of foundlings might be the child of a foreigner.

 The ramification would be too severe for if the court rules against poe, then the court rules against all
foundlings.

The deliberations of the 1934 Constitutional Convention show that the framers intended foundlings to be covered by
the enumeration. The following exchange is recorded:
The framers of the constitution thought it to be such a specific case and too few to warrant the inclusion of a provision
in the Constitution to apply to them. The framers of the constitution believed that the rules of international law were
already clear to the effect that illegitimate children followed the citizenship of the mother, and that Foundlings followed
the nationality of the place where they were found thereby making unnecessary the inclusion in the constituent of
the proposed amendment.

The framers worked to create a just and humane society. That they were reasonable patriots and that it would be unfair
to impute upon them a discriminatory intent against foundlings.

The court must search the records of the 1935, 1973, and 1987 Constitutions “For an express inention to deny
foundlings the status of Filipinos. The burden is on those who wish to use the constitution to discriminate against
foundlings to show that the constitution realy intended to take this path to the dark side and inflict this across the board
marginalization.”

Provisions: Article II the declaration of state principles and state policies is the ideology of the state

Article II, Section 1: The State values the dignity of every human person and guarantees full respect for human rights.
Universal declaration on human rights that foundlings are presumed to have the nationality of where they are born.

Ellis and Ellis V Republic, a child left by an unidentified mother was sought to be adopted by aliens. The court said:
Article IV section 2: “natural-born citizens are those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship.

 Having to perform an act means that the act must be personally done by the citizen.
 The determination of foundling status is done not by the child but by the authorities.

Article II, Section 2: “adopts the generally accepted principles of international law as part of the law of the land…”

By virtue of the incorporation clause of the constitution, then it need not follow that such must be derived from treaty
obligations. Generally accepted principles of international law include international custom as recognized by civilized
nations. These are basic to legal systems generally. Such as principles of justice, fairness, principles against
discrimination which are all embodied in the Universal Declaration of Human Rights, the international Covenant on
Economic, social and Cultural Rights, the International Convention o the elimination of all forms of Racial
Discrimnation, etc.

 These are the same core principles which underlie the Philippine Constitution itself, as embodied in the due
process and equal protection clauses of the Bill of Rights
 The Universal Declaration of Human Rights (UDHR) has been interpreted as part of the generally accepted
principles of international law and binding on the State. WE have ratified it

Even current legislation like RA No 8552 and 8042 expressly refer to “Filipino Children”, foundlings are among the
Filipino Children who could be adopted. Also, even the DFA issues passports to foundlings thus affirming their Filipino
Citizenship.

Natural born citizenship need not be continuous for the reacquisition of citizenship as per Bengson III V. Hret
Dissenting opinion

Carpio

Article IV-Citizenship 1935 constitution

Section 1. The following are citizens of the Philippines:

1. Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution.

2. Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had
been elected to public office in the Philippine Islands.

3. Those whose fathers are citizens of the Philippines.

4. Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect
Philippine citizenship.

5. Those who are naturalized in accordance with law.

Citizenship is thus only acquired through (1) blood relation to the father (or mother under the 1987 constitution) who
must be a Filipino Citizen or (2) naturalization according to law.

In the case of Tan Chong V Secretary of Labor, it was decided in 1947, that the court finally abandoned the jus soli
principle, and affirmed jus sanguinis for the Philippines.

Citizenship of the petitioner can only be determined by p3 and p4 and p5.

The Solicitor general asserts that “The deliberations of the 1934 Constitutional Convention indicate the intention to
categorize foundlings as a class of persons considered as Philippine citizens. x x x. The 1935 Constitution's silence cannot
simply be interpreted as indicative of an intent to entrench a disadvantaged class in their tragedy. Not only is there no
evidence of such intent, but also the silence can be explained in a compassionate light, one that is geared towards
addressing a fundamental question of justice."

IN the records in the deliberations of the 1934 constitutional convention The proposed amendment is to declare as
Filipino citizens those natural or illegitimate children of Filipino mothers and alien fathers who do not acknowledge
them. Such amendedment includes “Children of unknown parentage”

 3 delegates voiced their objections

 One of them say that it should be left in the hands of the legislature, congress would decided whether to
categorize Filipinos (1) natural or illegitimate children of Filipino mothers and alien fathers who do not recognize
them; (2) Children of unknown parentage.
 As such, congress would need to provide the enabling law for them to be regarded as Filipino citizens.
 Foundlings would then be naturalized since they acquire Filipino citizenship by law.

There was no international law during the proceedings of the 1934 Constitutional Convention

Roa V. Collector of Customs the court stated:

Articles 17 to 27, inclusive, of the Civil Code deal entirely with the subject of Spanish citizenship. When these
provisions were enacted, Spain was and is now the sole and exclusive judge as to who shall and who shall not be
subjects of her kingdom, including her territories. Consequently, the said articles, being political laws (laws
regulating the relations sustained by the inhabitants to the former sovereign), must be held to have been abrogated
upon the cession of the Philippine Islands to the United States.
"By well-settled public law, upon the cession of territory by one nation to another, either following a conquest or
otherwise, * * * those laws which are political in their nature and pertain to the prerogatives of the former
government immediately cease upon the transfer of sovereignty." (Opinion, Atty. Gen., July 10, 1889.)

The 1930 Hague Convention does not guarantee a nationality to a foundling at birth. Therefore, there was no
prevailing customary international law at that time.

If the framers intended that foundlings be considered natural-born Filipino citizens, this would have created an
absurd situation where a child with unknown parentage would be placed in a better position than a child whose
mother is actually known to be a Filipino citizen. The framers of the 1935 Constitution could not have intended to
create such an absurdity.

nce a natural-born citizen is a citizen by birth who need not perform any act to acquire or perfect Philippine
citizenship, then those born of Filipino mothers and alien fathers and who had to elect citizenship upon reaching the
age of majority, an overt act to perfect citizenship, were not considered natural-born Filipino citizens. As a matter of
course, those whose parents are neither Filipino citizens or are both unknown, such as in the case of foundlings,
cannot be considered natural-born Filipino citizens.

The 1966 International Covenant on Civil and Political Rights

Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or
social origin, property or birth, the right to such measures of protection as are required by his status as a
minor, on the part of his family, society and the State.

The Covenant merely recognizes the right of a child to acquire a nationality. In short, the Covenant
does not guarantee a foundling a nationality at birth, much less natural-born citizenship at birth as
understood under the Philippine Constitution.

The 1948 Universal Declaration of Human Rights

Article 15.

(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
(Emphasis supplied)

Article 15(1) of the UDHR simply affirms the right of every human being to a nationality. Being a mere
declaration, such right guaranteed by the UDHR does not obligate states to automatically confer
nationality to a foundling at birth, much less natural-born citizenship at birth as understood under the
Philippine Constitution.

The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws

Article 14.

A child whose parents are both unknown shall have the nationality of the country of birth. If the
child's parentage is established, its nationality shall be determined by the rules applicable in cases where
the parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of the State
in which it was found.
Article 14 merely states that a foundling "shall have the nationality of the country of birth." It does not say that
a foundling shall have the nationality at birth of the country where the foundling is found. Nowhere in Article 14 is
nationality guaranteed to a foundling at birth, much less natural-born citizenship at birth as understood
under the Philippine Constitution. Likewise, Article 14 merely lays down the presumption that a foundling is
born in the territory of the state in which the foundling is found. This is the only presumption that Article 14
establishes.