The ‘dark side’ of political dynasties

dy·nas·ty (dî’nə-stê)

n. pl. dy·nas·ties

1. A succession of rulers from the same family or line. 
2. A family or group that maintains power for several generations: a political dynasty controlling the state.

[Middle English dynastie, from Old French; from Late Latin dynastîa, lordship; from Greek dunasteia, fromdunastês, lord; see dynast.] 
[http://www.thefreedictionary.com/dynasty]

Some social scientists (including political scientists) work on their theoretical constructs and argue that they can make equal cases for political dynasties being a force for social good, even as others make a case for these being social evils.

I think we need to deal with our current realities and our experiences with the phenomenon of Filipino political dynasties.

A number of my friends observed that the bill seems aimed squarely at the Binay clan. I agree with their observation only to the extent that the Binays are one of the obvious targets.

But they are not the sole targets.

Our officially written and approved history, incomplete, and many times inaccurate, records all kinds of socially, economically, and politically influential and powerful families that often got to dictate what should happen.

I remember growing up in the 1950s and hearing that there were in the country “big and powerful families that could make things happen,” and that people were well warned not to cross.

I heard names like the Osmeñas and the Duranos of Cebu; the Arroyos at one time and then the Eugenio and Fernando Lopez brothers of Iloilo; in Negros, the dynasties were more socio-economic rather than political but they, too, were known to support certain politicians.

There were the Romuladezes of Leyte and the Teveses of Negros Oriental. And there were the Muslim overlords in Mindanao -- names like Kiram, Ututalum, Pendatun, and Alonto. In Luzon, we heard of the Crisologos and Singsons of Ilocos Sur; the Montaños of Cavite; the Lazatins of Pampanga; the Cojuangcos of Tarlac; and the Reyeses and the Santoses of Bulacan.

To be fair, many of these families did a lot of good for the people they served initially. A number were known not to abuse their position. Many of those families of my youth are still there but are no longer considered dynasties. They are just “well-situated”.

What made these powerful families remain as powerful as they had?

The shift to the “dynasties-as-evil” phenomenon came with the Marcos-Romualdez reign. Marcos was probably the most intelligent and far-thinking president we ever sat in office. He had parlayed his skills to build political, economic and social capital, and once seated, worked to increase all of those.

Assured of his popularity with a re-election, he then connived with his cabal to consolidate his hold on the country by declaring Martial Law. Within this context, he was able to do what he wanted, but always cloaked in legality. The allies who worked with him were given the chance to develop their own fiefdoms, their own satrapies.

The Marcos-Romualdez alliance developed the first of the deep dynasties -- family members holding appointive positions in many sectors and elective positions at many layers of government. Through various means he managed to hold a nation enthralled, then much later in thrall as his administration’s various means of securing agreement or negating dissent became more widely known. And for a while it seemed that the country would be under this dynasty’s stranglehold for a long while.

Ferdinand’s and Imelda’s dreams, jointly and singly, fell apart as the illusion of prodigious Philippine growth development melting away, at first slowly, then with gathering speed and the lies were revealed.

It took ex-Senator Benigno “Ninoy” S. Aquino Jr.’s murder to catalyze the nation that until that time had been stricken into inaction by fear.

As a taxi driver told me a week after Ninoy’s murder, “Duwag po ako pero noong pinatay nila si Ninoy, para hung sinabi nila na kung nakaya nilang patayin ang isa, kaya nilang pumatay ng marami; Kung nakuha nilang patayin ang magaling at popular, kahit sino kaya nilang patayin.” [I am a coward but when they killed Ninoy, it was as if they were saying they can kill one and they can kill many. If they can kill one of the best, they can kill anybody.] The fellow never read Joseph Conrad’s “Lord Jim”.

We no longer have Marcos in power, though the rest of family are around, unrepentant, even defiant, eager to re-establish themselves. But the family’s resurrection into prominence isn’t what I call “Ferdinand’s Revenge”.

His real revenge is the way he has corrupted the minds of even some of of the best of us, people who spoke the right sentiments when in rebellion against him and his cabal but who were astute students of the cabal’s ways and means.

These people, given the opportunity, did not hesitate to build their own empires. They managed to get either appointed or elected into positions of power and influence from where they built their political, social and economic networks.

Instead of dismantling the mechanisms of abuse, they retained and improved them, drawing more resources than even the Marcos cabal did.

Today we not only hear of the Binays but the Revillas, the Remullas, and the Ejercitos. And there are many more that have chosen to stay regional and provincial but dynastic nonetheless.

Our anti-bribery/anti-extortion laws punish both the extorter and the extorted. If the extorter can plant the seed of seeming willful collusion on the part of the extorted, he or she turns them into bribers instead. Under such conditions, no business owner would risk blowing the whistle. No one will testify that foundational work permits are given only to outfits linked with the mayor; and that on top of that, that the company had to yield a condominium unit per tower.

Last I heard, one powerful political family demand a floor per tower. But that is rumor, of course, because one cannot get anyone to testify. And it will remain rumor until someone is brave enough to risk jail.

Our current cultural norms, rooted in agrarian society and feudal systems, is in confluence with the poverty of our people to ensure a system where powerful politicians can distribute ill gotten largesse, distributing these freely, promising more benefits while keeping people a state of false hopes.

To be sure, the system provides patronage through “KBL” -- kasal, binyag, libing [marriage, baptism, and internment] -- gifts and contributions help the poor, as do helping them get jobs; subsidized basic (substandard) education (assured by beggaring the education budget) and intervening in appointments of teachers and officials; subsidized health services; birthday cakes plus a P1000 gift; free movies for seniors, etc.

But the costs are clear to those who would understand.

We need to change our corrupt system.

A long term solution is improved mass education and continuing information, communication and education programs for our out-of-school and even our employed and supposedly knowledgeable people.

Ours is a steep uphill battle.

But fight it we must, for our self respect and dignity as a people, and more so for our children and grandchildren who will inherit all these. There is a saying that the worst thing that can happen is for our children to spit on our graves. Let us make sure this does not happen.

Mario Antonio G. Lopez teaches at the Asian Institute of Management and consults for business, government and civil society.

maglopez@gmail.com

source:  Businessworld

Changing our game by changing the Charter

This column will re-echo the popular call for the amendment of the 1987 Constitution’s economic provisions (only), with accompanying enabling laws and budgetary commitments, even if it’s falling on deaf ears and empty minds.

And I favor a process where results are obtained from inclusive, open, and transparent nationwide consultations, processed in a constitutional convention and approved in a national referendum.

I disfavor amending the Constitution by adopting the phrase “unless otherwise provided by law” because it seems to me that current restrictions will remain in place until Congress decides to amend these on its own good time, ignoring the urgency of the matter. A caveat: deceitful overreach into political territory like term limits and language to accommodate the Comprehensive Agreement on the Bangsamoro-Bangsamoro Basic Law might be attempted. It must be prevented.

We need to grow the economy, attract foreign direct investments (FDIs), improve our competitiveness, reverse the diaspora, increase purchasing power and disposable income, raise gross national well-being, and enhance national security. The Philippines, although awash with domestic savings, needs long-term capital particularly in strategic services and infrastructure, energy, mining, national defense, public safety and others required to attain and sustain a 7%-10% growth in Gross Domestic Product (GDP).

Our average foreign direct investment in the past five years has been below $3 billion.

While 2015 is expected to be a banner year compared to past performance, the FDI flows today versus that of other countries in the region would still pale in comparison. Although we’ve improved our report card in the “Ease of Doing Business,” and Japan’s taking the risk of divesting and relocating some of its China business to the Philippines, we’re still generally unattractive because of the Constitution’s restrictions, institutional unreliability, and corrupt practices that turn off foreign investors.

Lack of foreign competition has enabled local conglomerates to tighten their grip of the economy.

If inclusive growth is the way to go, Article 2 of the 1987 Constitution should be restated as follows: “The State shall develop a self-reliant, productive and competitive economy that will best serve the interest of the Filipino people.” The Filipino people should be the ultimate beneficiary of dynamic economic growth and sustainable development.

The lack of vital infrastructure is a disincentive to FDIs needed in manufacturing, agriculture, and services to effectively reduce poverty. We need FDIs to build and operate new, efficient airports and seaports; tollways, telecom facilities; irrigation systems; power utilities; information technology and defense capacities, to name some strategic areas that investors weigh, consider, and compare before making a decision.

Unlike Vietnam that recently lifted its ownership restrictions to boost FDI flows, we still need to amend our land ownership and 60/40 rules that encourage dummyism and restrict the choices of foreign players to a limited bench of local partners. We must plug the entry of dubious investors with hidden agendas that feed the corruption of our institutions and harm national security. A telltale sign is when the scope and quality of bids in public-private partnership projects fall below expectations.

As such, the following game changers should be considered:

• Limit the negative list to vital infrastructure impinging on public safety and national security.

• No equity limit.

• Allow foreign investors in the exploration, development and utilization of natural resources.

• Allow foreigners to own residential, commercial and industrial property.

• Liberalize investments in new media and tertiary education.

Globalization, science, and technology have facilitated with ease the movement and spread of information, funds, goods, services and human capital. Transnationals are quick to spot new markets and opportunities and move their resources to the planet’s farthest corners. Direct investments reduce transportation costs, and take advantage of the local workforce and natural resources.

Properly directed and well-managed FDIs expand the pool of capital; speed up technology transfers and know-how; compel domestic firms to innovate and compete; and create other positive spillover effects. Economic downturns in leading economies have intensified competition to attract global FDI inflows. This leads to the big question as to what factors encourage or discourage foreign investors from placing their bets on a specific location.

The World Bank cites the following:

Market size
Market size, which is usually decided by the host country’s population, GDP and per capita income, is one of the most important in FDI location decisions. Market size provides insights about the host location’s general economic and demographic conditions; potential demand, purchasing power and growth; economies of scale and local resources.

Trade openness
Openness and market freedom encourages FDI and economic growth. Companies prefer host countries that are close to their export markets, have friendly import-export policies and participate actively in regional or global trade agreements.

Tax incentives
Tax incentives serve as an indicator for investors where the host country wants to channel investments to preferred growth areas. All things being relatively equal, tax incentives impact on investors’ decisions when compared to other locations. The records show that countries with tax havens and low corporate tax rates attract a steady stream of FDIs.

Labor costs
Export-oriented FDI companies tend to move their production to places offering low tax rates, labor rates, raw materials, and energy to control costs and optimize profits.

Economic and political stability
Stability and predictability increase investors’ trust and sense of security about returns on their investment. Corruption, confusion, and dysfunction do not. Geopolitical instability also drives away risk-averse investors. Example: China’s aggressive military expansion and recklessness in the East and South China Seas.

Due to the tensions and hostility toward Japanese investors, their companies are divesting from China and relocating elsewhere.

What’s clear is the region’s geopolitical and economic dynamics that are changing the direction of foreign direct investment flows.

We must be quick and nimble to catch the waves of change to alter course to where the sun burns bright and never sets on all Filipinos.

Rafael M. Alunan III is chair of the M.A.P. National Security Committee. He was former Secretary of the Interior and Local Government, and also held the post of chair of the National Action Committee on Anti-Hijacking and Terror in the Ramos administration.

rmalunan@gmail.com

map@map.org.ph

http://map.org.ph

source:  Businessworld

Grandfather Rule, a supplement to the Control Test

Certain provisions of the Philippine Constitution were crafted to protect the rights of Filipino citizens to utilize our natural resources and to engage in nationalized activities. However, this should not deter foreign economic investments that would allow the country to efficiently explore these natural resources and effectively operate public utilities or reserved activities.

In determining compliance with the minimum Filipino equity requirement, there are two acknowledged tests. One is the control test or the liberal rule. The other is the Grandfather Rule, which is known to be the stricter and more stringent test. In applying these tests, there had been confusion as to whether one method excludes the use of the other.

The control test provides that shares belonging to corporations or partnerships at least 60% of the capital of which is owned by Filipino citizens shall be considered of Philippine nationality. This test is straightforward and does not scrutinize further the ownership of the Filipino shareholdings.

On the other hand, the Grandfather Rule determines the actual Filipino ownership and control in a corporation by tracing both the direct and indirect shareholdings in the corporation.

According to the January 2015 Resolution of the Supreme Court in the case of Narra Nickel Mining and Development Corp. vs. Redmont Consolidated Mines Corp. (G.R. No. 195580), “the Grandfather test was originally intended to look into the citizenship of the individuals who ultimately own and control the shares of stock of a corporation for purposes of determining compliance with the constitutional requirement of Filipino ownership”.

The shareholdings should ideally be traced (i.e. grandfathered) to the point where natural persons hold the shares. However, this may be impractical and a limit must be set when tracing through the corporate layers to attribute nationality. Citing a memorandum from the Securities and Exchange Commission (SEC), the Supreme Court noted the suggestion of the SEC to apply the Grandfather Rule on two levels of corporate relations for publicly-held corporations or where shares are traded in the stock exchange, and to three levels for closely held ones or those which are not traded in any stock exchange. Clearly, the limits should not go beyond the level of what is reasonable.

The Supreme Court clarified the role of these tests in determining compliance with the required Filipino equity threshold. The Court explained that the use of the Grandfather Rule is a supplement to the Control Test in implementing the wisdom of the “Filipinization” provisions of the Constitution.

The Supreme Court recognized the intention of the framers of the Constitution to apply the Grandfather Rule in cases where there is corporate layering. It likewise noted that corporate layering, while admittedly allowed by the Foreign Investment Act, becomes illegal if used to circumvent the Constitution and other applicable laws.

The Court further discussed that the Grandfather Rule applies only when the 60-40 Filipino-foreign ownership is in doubt or where there is reason to believe that there is non-compliance with the provisions of the Constitution on the nationality restriction.

How then we do we determine the existence of doubt? In its Resolution, the high court clarified that “doubt” does not automatically mean the mere failure of the Filipino ownership to meet the 60% threshold of the corporation’s equity. “Doubt” refers to various indicia that the “beneficial ownership” and “control” of the corporation do not in fact reside in Filipino shareholders but in foreign stakeholders.

To demonstrate these signs of doubt, the Court referred to the indicators of a dummy status as identified in a Department of Justice Opinion on the Anti-Dummy Law. These would be where the foreign investors provide practically all the funds and technological support for a joint venture undertaken with their Filipino partners, and where such foreign investors get to manage the company even while being minority stockholders.

In the Narra Nickel Mining case, the Supreme Court found that while the petitioning corporations complied with the Control Test, factual circumstances nonetheless raise doubt as to their true nationality and therefore requires the application of the Grandfather Rule. Some of the indicators of “doubt” found by the Court in the said case are the following: (1) the three mining corporations had the same 100% Canadian owned foreign investor, (2) the similar corporate structure and shareholder composition of the three corporations, (3) a major Filipino shareholder within the corporate layering did not pay any amount with respect to its subscription, and (4) the dubious act of the foreign investor in conveying its interests in the mining corporations to another domestic corporation, among others. These instances demonstrate that corporate layering was utilized to allow a foreign corporation to gain control of these mining corporations in the Philippines.

After applying the Grandfather Rule, the Supreme Court was able to trace and conclude that the Filipino shareholders did not actually have the required amount of control and beneficial ownership in the mining companies, and consequently failed to comply with the nationality requirement under the Constitution.

In a fitting ending, the Supreme Court enunciated its original April 2014 decision that “the Control Test is still the prevailing mode of determining whether or not a corporation is a Filipino corporation”. It is only in case of doubt, based on the attendant facts and circumstances of the case, that the Grandfather Rule is applied.

Elinor E. de Gracia is a manager at the Tax Services Department of Isla Lipana & Co., the Philippine member firm of the PwC network.

(02) 845-2728

elinor.e.de.gracia@ph.pwc.com

source:  Businessworld

How US may change the PHL Constitution

THE United States-led Trans-Pacific Partnership (TPP) is the most contentious international treaty in memory.

It starts from the fact that the US government has not released a full copy of the agreement. In fact, the most detailed information comes from the group WikiLeaks. The controversy has been going on for 18 months, and negotiations started five years ago.

For an agreement that will cover about 40 percent of the global economy, shrouded in secrecy and confusion even from supporters, no one seems that enthusiastic about TPP, except government officials and multinational corporations.

US labor unions say that the TPP will allow a massive inflow of foreign workers pushing Americans out of their jobs. South Koreans are opposed, because the potential to disrupt their beef and rice industries is very real, as they must open up to foreign imports. Because the TPP requires signatories to adhere to US copyright regulations, Japanese artists are furious that the Japanese tradition of “self-publishing” will be curtailed.

All countries must also follow a drug-patent extension provision, which, according to the US publication the New England Journal of Medicine, will “cause an increase in medical drug prices in less-developed countries, as generic drugs might not be available until the US Food and Drug Administration gives its approval.”

As recently as April 3, Trade Secretary Gregory L. Domingo, said there is not enough time for the Philippines to join the TPP.

The song has now changed. From the BusinessMirror on June 25: “The Philippines is definitely joining the US-led Trans-Pacific Partnership bloc once presented the opportunity, Trade Secretary Gregory L. Domingo said on Thursday.”

But here is the kicker: “The DTI noted that the TPP will require liberalizing restrictions on foreign-equity ownership and government procurement and adopting zero tariffs for all products with sensitivities to agriculture and industrial products. The DTI conceded that ‘selected sections of the Constitution may be amended at a certain point when the Philippines takes a solid step toward joining the TPP.’”

While we will give Domingo the benefit of the doubt for thinking out loud about possible future discussions, the irony of all this is unmistakable.

The Philippines is “definitely joining” a trade agreement of which no one in the public has seen the details. We have not been enlightened on any of the specific benefits or disadvantages to the Philippines. The TPP requires changes to the economic provisions of the Philippine Constitution that has strong opposition and that Congress has already tacitly rejected.

Why the sudden urgency for joining the TPP? Is there any chance at all that the Philippines must be a part of the TPP and change the Constitution because of US pressure in light of the current situation in the West Philippine Sea? Things are never what they appear to be.

source:  Business Mirror

Ex-Chief Justice weighs in on citizenship issue

Now that Senator Grace Poe has overtaken in the public opinion polls all the aspirants for the presidency, she and her supporters should brace themselves for a minute scrutiny of her qualifications to vie for the highest position in the land. This will not necessarily be malicious but mandatory in the interests of electing a legally qualified President.

In my previous column, I asked:

When and how did Poe reacquire her Philippine citizenship, thereby becoming a dual citizen?

Or did she simply assume that she “automatically reacquired” Philippine citizenship upon renouncing her US citizenship?

Poe appears to have answered the two questions herself in an interview with GMA News, which I quoted verbatim:

“To revert back to Filipino citizenship, ire-renounce mo lang yung US citizenship mo. Yun lang ang ginawa ko. Yun kasi ang condition ng Dual Citizenship Law. Hindi iyon to reacquire Philippine citizenship kasi it reverts back to that automatically.” (To revert back to Filipino citizenship, you simply renounce your US citizenship. That’s all I did. That is the condition of the Dual Citizenship Law. You need not reacquire Philippine citizenship because it reverts back to that automatically)

Poe’s statement implies that she did not undergo any formal process to reacquire her Philippine citizenship, having presumed, in her own words, that “to revert back to Filipino citizenship, ire-renounce mo lang yung US citizenship mo.”

And she underscored that by stating, “Yun lang ang ginawa ko.” (That’s all I did.)

Sadly, Poe is mistaken. In the case of Labo, Jr. vs Comelec, the Supreme Court held: “Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be restored only after the returning renegade makes a formal act of re-dedication to the country he has abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of the Philippines.”

Former Chief Justice Artemio Panganiban has written two pieces in another paper on this controversy. In the first piece, Panganiban supported the thesis that as a foundling, Poe could be considered a natural-born Filipino. The second piece discussed Poe’s reported “reacquisition” of her Philippine citizenship.

In his second piece, Panganiban may have assumed that Poe took the Oath of Allegiance to the country. But he raised a red flag when he commented on the case of David vs Aglipay:

“Renato David, who became a Canadian before the effectivity of RA 9225, represented himself to be a Filipino citizen in his application to purchase public land filed before he took his oath of allegiance. Not having taken the required oath, he had not yet reacquired his Philippine citizenship when he executed under oath his said application. Thus, the Court held that he was liable for falsification of a public document.”

There are several steps required for reacquisition of Philippine citizenship, through the Bureau of Immigration, the Department of Foreign Affairs and the Department of Justice. The final act is taking the Oath of Allegiance.

The question that Poe should answer is: Did she or did she not follow the mandated procedures, particularly taking the Oath? If not, then she did not reacquire her Philippine citizenship, based on the jurisprudence cited by Panganiban and based on the provisions of RA 9225.

Now, granting for the sake of argument, that Poe did take the Oath. If that happened as a consequence of her renunciation of US citizenship -- which was either in 2010 or 2012, depending on which media report you wish to believe (according to one news report, Poe’s US passport was issued by the Washington Passport Agency in December 2011) -- this means she lacks the 10-year residency requirement to qualify as a candidate for President or Vice-President.

It would help clarify the issue if Poe were to voluntarily present documents to establish the legality of her alleged reacquisition of Philippine citizenship, as well as the corresponding timeline. Disappointingly, she has chosen to remain silent, perhaps buying time while her lawyers study the situation. Unfortunately, that erodes her self-proclaimed moral ascendancy.

I hate to say this, but this matter, if left unresolved, could open a whole new can of worms. First, it brings into question the legitimacy of her appointment as head of the Movie and Television Review and Classification Board (MTRCB), which requires Philippine citizenship. One is constrained to ask: Was Poe wittingly or unwittingly guilty of falsifying a public document?

Then there is the matter of repeated trips to the Philippines using her US passport; the fact that she managed and, conceivably, worked in her late father’s company; and the fact that she bought a house in the Philippines in 2005 “as a temporary residence while a more permanent house was under construction,” to quote a media report.

Did she do all of these as an American citizen and was she allowed by law? To the jaded observer, there’s probably nothing wrong with that, what with aliens routinely illegally working, doing business and buying property in our country, under the approving noses of authorities.

But for someone being considered for the presidency of the Philippines, that is crucial. And for someone who has waved the banner of honesty and integrity as the standard for her political career, the issue cannot simply be dismissed as “the way things are done.”

The situation gets murkier for Poe. In her certificate of candidacy for the Senate, filed in 2012, she stated, under oath, that she would have been a resident of the Philippines for six years and six months by election day, May 13, 2013.

That issue, raised by UNA party interim president Representative Toby Tiangco, may be enough to place Poe’s residency as a presidential candidate under a dark cloud. The cloud becomes darker if she reckoned her Philippine residency as a US citizen, rather than as a citizen of the Philippines.

Article VII, Section 2 of the 1987 Constitution states: “No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election.”

Section 3 states: “There shall be a Vice-President who shall have the same qualifications and term of office and be elected with, and in the same manner, as the President.”

In other words, the fundamental law of the land is crystal clear on the matter. The 10-year residency requirement is an integral part of the enumeration of the qualifications of a Philippine President. The legal eagles may argue that residency is separate from the other qualifications, but that argument would be treading on very shaky ground indeed.

But, in fairness to Senator Poe, we may all be like Chicken Little, frantically announcing that the sky is about to fall. Poe has continued to be noncommittal about her presidential or vice-presidential plans, if any. She may decide not to run for either position at all, and all of these could be nothing more than an intellectual exercise.

Of course, Poe’s advisers may suggest that the best way to overcome the objections is to fabricate documents to support the validity of her Philippine citizenship and her residency.

I should hope not. Otherwise, we can all forget about her purported honesty and integrity.

Greg B. Macabenta is an advertising and communications man shuttling between San Francisco and Manila and providing unique insights on issues from both perspectives.

gregmacabenta@hotmail.com

source:  Businessworld

WITH DUE RESPECT by Artemio V. Panganiban: Grace Poe’s citizenship

CRITICS CHALLENGE the citizenship qualifications of Sen. Grace Poe to run for, be elected to and hold a higher public office allegedly because 1) as a foundling, she was stateless, 2) by her marriage, she acquired the American citizenship of her husband, and 3) her adoption by Fernando Poe Jr. and Susan Roces did not confer natural-born citizenship on her. I respectfully disagree.

Natural-born citizen. Under our 1987 Constitution, “[n]o person may be elected President [or Vice-President or Senator or Congressman] unless he [or she] is a natural-born citizen of the Philippines…”

In turn, “[n]atural-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.”

Since the Constitution requires natural-born citizenship “from birth” and since Senator Poe was born in 1968, the governing law would be the 1935 Constitution. Neither that Charter nor any statute as of that year expressly conferred citizenship on foundlings.

However, the framers of the 1935 Constitution explained that expressly providing citizenship rules for foundlings was unnecessary since that could be determined from international law. Note that under the same Charter (and also under the present one), “the Philippines … adopts the generally accepted principles of international law as part of the law of the Nation.”

Applicable international law. Mijares vs Ranada (April 12, 2005) held that “generally accepted principles of international law … even if they [are] not derived from treaty obligations… [have] two elements: the established, widespread and consistent practice on the part of states; and a psychological element known as the opinio juris sive necessitates (opinion as to law or necessity) … a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.”

Under Art. 2 of the 1961 International Convention on Statelessness, “[a] foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within the territory of parents possessing the nationality of that State.”

Applying that article to Senator Poe, a foundling found in the Philippines is presumed, in the absence of contrary proof, to have Filipino biological parents. Since she was found near a church in Jaro, Iloilo, when she was only a few days old, her parents are presumed to be Filipinos.

Therefore, she is a natural-born citizen.

True, the Philippines is not a signatory or a “Contracting State” in this treaty. However, the treaty possesses the two elements of a generally accepted principle of international law because the grant of nationality to a foundling is an “established, widespread and consistent practice” of many states since 1961 to the present. Hence, it is deemed a “part of the law of the Nation.”

According to Razon vs Taglis (Dec. 3, 2009), this “widespread practice” or “international custom” could be shown from “State practice, State legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the UN General Assembly.”

Further, under the 1948 Universal Declaration of Human Rights (UDHR), to which the Philippines is a signatory and which our Supreme Court has consistently enforced, “Everyone has a right to a nationality.” Thus, a denial of nationality or citizenship to Senator Poe would be a plain violation of the UDHR.

Parenthetically, it is high time the Philippines acceded to and joined the 1961 Convention on Statelessness for the benefit of all Filipinos, especially illegitimate children whose parents are unknown, not just of Senator Poe. After all, it is not their fault that their parents have abandoned them.

American citizenship and adoption. True, she acquired American citizenship after she married her American husband. But she already renounced such citizenship in accordance with American law. And the American Embassy has affirmed such renunciation.

This affirmation is important because under the 1930 Hague Convention on the Conflict of Nationality Laws, “[i]t is for each State to determine under its own law who are its nationals.” Thus, American, not Philippine, law determines who are American citizens.

True also, our Supreme Court has ruled several times that adoption does not confer citizenship. It only gives the adopted child the civil rights of a legitimate child, like the right to use the surname of and to inherit from the adoptive parents.

In my humble opinion, these rulings do not apply to foundlings. They were issued by our Court to prevent aliens from short-circuiting our strict naturalization rules by undergoing the easier adult adoption processes.

However, I will no longer dwell on this issue because Senator Poe does not derive her natural-born citizenship from her adoption but from generally accepted principles of international law on the presumed citizenship of foundlings.

Her presumed citizenship can become indisputable if her paternity is established by deoxyribonucleic acid (DNA) evidence. Under existing jurisprudence starting with Tijing vs Court of Appeals (March 8, 2001) and People vs Vallejo (May 2, 2002), a DNA test is a conclusive way of proving filiations.

I will take up Grace Poe’s residence qualification in another column.

* * *

Comments to chiefjusticepanganiban@hotmail.com

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Gang rape of the Constitution by Fr Joel Tabora SJ

THERE is a gang rape ongoing. It is led by Speaker Sonny Belmonte and his gang of rapacious congressmen. It is to be joined by like-spirited senators. It is not a simple rape. It is multiple rape, violent and vicious. The victim: the Constitution.

The rapacious organ? The phrase: “unless otherwise provided by law,” inserted violently over and over again to kill the Constitution’s protection of the Filipino patrimony and its mandate to social justice.

In the national disarray that has seen the nation’s advocates for social justice divided – ironically – on the constitutionality of the proposed Bangsamoro Basic Law, on the constitutionality of the K-12 basic education reform, and the ferocious unfinished debate about the presidential qualification or disqualification of a man alleged to be thoroughly corrupt and of a damsel presumed to be Filipina, the rape is proceeding surreptitiously to subjugate the Constitution to a sinister will whose master appears to be “more investments” (see the “whereas” clauses) but whose real masters seem to be big local business or powerful foreign interests. With practically no serious national discussion on the rationale and the effects of the proposed constitutional amendments, the “Resolution of Both Houses No. 01” was passed by the House viva voce without actual quorum, on the understanding that the Senate is immediately to follow their rapacious action as a matter of urgency.

With no free, informed, prior consent of their constituents, with the resolution still unpublished in the official congressional website, approval without amendment was endorsed by the House Committee on May 3, 2015 “that by a vote of three –fourths (3/4) of all its Members, each House voting separately, and pursuant to Article VII of the Constitution, to propose amendments to Articles XII, XIV & XVI of the 1987 Constitution of the Republic of the Philippines, with the following proposals…” Incredibly, the House has approved this rape. The Senate has calendared its participation in it.

For instance, pertinent to “all lands of the public domain, waters, mineral, coal, petroleum, and other mineral oils, all forces of potential energy, fishers, forests or timber, wildlife, flora and fauna and other natural resources …owned by the state” the Constitution provides, “The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or association at least 60 per centum of whose capital is owned by such citizens.” To this provision the joint congressional resolution now inserts: “unless otherwise provided by law.” The Constitutional provision precisely aimed at laying the ground rules in the national interest for all valid laws pertinent to such corporations exploiting the Filipino patrimony, is de-fanged by a killer provision that allows any law to disrespect or contradict this provision. “Unless otherwise provided by law” is license for lawmakers to craft laws in the best interest of foreign investors. We cannot say that such legislative treason is beyond lawmakers. Consider the current Philippine Mining Act (RA 7942) that allows foreigners to exploit Philippine minerals in a manner fully disadvantageous to the Filipino people. This was acknowledged in President Aquino’s. E.O 79 on mining. The Constitution safeguards the national patrimony for the Filipino people, but the resolution allows lawmakers to totally disregard it.

For instance, pertinent to “Land of the public domain …classified as agriculture, forest or timber, mineral lands and national parks,” the Constitution provides: “Private corporations or associations may not hold such alienable lands of the public domain except by lease for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area.” To this provision, the resolution appends, “unless otherwise provided by law.” This means that despite the Constitutional limits on the length of time a corporation may hold land and despite the Constitutional limitation to the size of land that may be held, Congress may legislate that owners, Filipino or foreign, may hold and exploit lands of the public domain, like mineral lands, for two hundred years. But what happens if the mining interests and activities of such a company displaces indigenous peoples like the B’laan of South Cotabato and threatens the integrity of the fresh water supply of Mindanao? What happens if a foreign company, that can be Swiss, Canadian or Chinese, is so capital strong that it can handle mineral exploration and exploitation in 25,000 hectares of our national patrimony, and does so, not to contribute to the development of the Philippine common weal but to maximize its profits and strengthen its own foreign economy? Would not such investments deprive the Philippine economy of valuable irreplaceable minerals its own entrepreneurs may wish to mine, exploit and utilize in the interests of the Philippine economy?

For instance, pertinent to Philippine education, the Philippine Constitution provides: “Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens.” To this safeguard the resolution now inserts the rapacious clause, “unless otherwise provided by law.” This means that law may provide that schools owned, operated and controlled by foreigners may now operate in our country. The rapacious clause does not limit this to higher education, where academic freedom is more appropriate, nor elucidate the framework within which foreign universities might interact with local universities. It would allow fully foreign owned and foreign controlled schools to operate even on the level of basic education where foundational life-long values of the students are formed. What if a school spouting the values of materialism in global free-market world has no interest in the value, makabayan, and no interest in the promotion of the Filipino common weal?

This rape is vicious because it hurts precisely those people which the Constitution seeks to help, the socially disadvantaged, the marginalized, the excluded, under the alibi of bringing in more investments. At least a discussion, similar to that on the proposed Bangsamoro Basic Law or the K-12 reform, of the proposed Constitutional amendments in the light of the social justice provisions of the Constitution and a genuine national dialogue on the desirability of the changes should have preceded the approvals.

Where the Constitution is involved, more real thought should have been provided by our legislators to specify the changes desired rather than the use of the rapacious clause “unless otherwise provided by law” to cover their theoretical vacuity. The changes proposed do not dismantle the “economy that excludes,” which Pope Francis condemns in EvangeliiGaudium (# 53-54). They strengthen it.

Finally, the gang rape opens up the Constitution to change of any of its other provisions. Defensive statements of legislators that this is not so are neither credible nor true. That means, from a constituent assembly or constitutional convention called prior to the next election to amend “economic provisions” of the constitutions, other provisions of the Constitution like the mandate for autonomous regions, the protection of academic freedom, and term limits may be disturbed. To do this before a regular national election is insane. It may even create a scenario where no elections are possible, extending the President’s term without a formal extension.

The multiple gang rape of the Constitution is a heinous crime.

source:  Manila Times