Comparison of Philippine Citizenship Laws

 

A.  Spanish Laws on Citizenship

Not all the laws of Spain on citizenship were made applicable to the Philippines. Those that were effective were extended by Royal decrees.[1]  Four can be traced back as early as the 1800s.

According to Law 3, Book 6, Title II, of Novisima Recopilacion promulgated in Spain on 16 July 1805, the following were considered citizens:

All foreigners who obtained the privilege of naturalization those who were born in these kingdoms; those who, residing therein may be converted to the holy Catholic faith; those being self-supporting, established their domicile therein; those who ask for and obtain residence in any town thereof; those who marry native women of said kingdoms and domiciled therein; and in case of a foreign woman who marries a native man, she thereby becomes subject to the same laws and acquires the same domicile as her husband; those who establish themselves in the country by acquiring real property; those who have trade or profession and go there to practice the same; also those who practice some mechanical trade therein or keep a retail store;... those who reside for a period of ten years in a home of his own; and also foreigners who, in accordance with the common law, royal orders and other laws of the kingdom, may have become naturalized or acquired residence therein...

 

Though it is unclear whether or not the Philippines would have been within the scope of these laws, some authors and Supreme Court justices later argued that the Philippines, as a colony would have been included as one of the “kingdoms” in that law:

Moreover, the Government of the Spanish Monarchy, in encouraging the multiplication of her subjects during the period of her glory and in granting citizenship by birth in “these kingdoms” which were carried forward in the Spanish Civil Code in 1889, under the same policy of the multiplication of her subjects, can have no other intention than to apply said law to the inhabitants of its dominions, colonies and territories under its sovereignties.[2]

 

Another law of Spain which involved citizenship was the Order of the Regency of 14 August 1941. Some provisions stated that:

Foreigners who desire to gain Spanish citizenship should apply for it by means of an application filed with the Governor-General who was empowered in the interest of the nation to grant or deny the same. Compliance with this Royal Decree has been declared absolutely essential for the acquisition of citizenship with a view to acquire the status of a Spanish subject in the Philippine Islands prior to the change of sovereignty.[3]

 

The Royal Decree of 23 August 1868, promulgated specifically for the Philippine Islands, provided for the political status of children of foreigners born in the Philippines. The following were considered foreigners:

First, the legitimate and recognized natural children of a father who belongs to another independent State, and the unrecognized natural, and other illegitimate children of a mother belonging to another State born outside of the Spanish dominions; Second- The children specified in the preceding paragraph, born in the Spanish dominions or on board Spanish vessels on high seas if they do not, on attaining the age of majority fixed in the laws of the kingdom, elect Spanish nationality; Third- Those being Spaniards, acquire another nationality, as well by renouncing the first as be accepting employment from another government without authority of the sovereign; Fourth- The woman who contracts marriage with the subject of another state.[4]

 

Finally, there was the Law of 4 July 1870 – the “Ley Extranjera de Ultramar” which was expressly extended to the Philippines by Royal Decree of 13 July 1870, and published in the Official Gazette on 18 September 1870:

Art. 1. These are foreigners: (a) All persons born of foreign parents outside of the Spanish territory; (b) Those born outside of the Spanish territory of foreign fathers and Spanish mothers while they do not claim Spanish nationality; (c) Those born in Spanish territory of foreign parents, or foreign fathers and Spanish mothers, while they do not make that claim; (d) Spaniards who may have lost their nationality; (e) Those born outside of Spanish territory of parents who may have lost their Spanish nationality; and (f) The Spanish woman married to a foreigner. For purposes of this article, national vessels are considered a part of Spanish dominions.

 

Art. 2. Foreigners who under the laws obtain naturalization papers or acquire domicile in any town in the Spanish provinces of the Ultramar are considered Spaniards.

 

 

B.  Treaty of Paris

To end the six-month hostilities between Spain and the United States following the declaration of war by the United States in 25 April 1898, Commissioners met in Paris on 1 October 1898 to produce a treaty that would bring an end to the war. The treaty was signed on 10 December 1898 whereby Spain yielded possession of the Philippines, along with Puerto Rico, Guam and Cuba, to the United States.  The treaty tackled the disposition of the Islands ceded by Spain to the United States

Article IX of the Treaty of Paris defined those who were the citizens of the Philippines. The provision read:

Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject thereof to such laws as are applicable to other foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratification of this treaty, a declaration of their decision to preserve such allegiance; in default of which they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside.

 

The civil and political status of the native inhabitants of the territories   thereby ceded to the United States shall be determined by the Congress.[5]

 

            Under the Treaty, native subjects and Spanish subjects who did not exercise their option to leave the Philippines, but remained in the country and adopted the nationality of the Philippines were considered citizens of the Philippines. However, those Spanish subjects who remained in the Philippines, but who declared before a court of record their intention to preserve their allegiance to Spain within a year and a half from the date of ratification of the treaty (11 April 1900) retained their Spanish nationality.

In the case of Bosque v. U.S., 1 Phil.88 (1908) it was held that the absence of a Spanish subject from the Philippines during the entire period allowed by treaty for making a declaration of his intention to preserve allegiance to the Crown of Spain prevented the loss of his Spanish Nationality by his failure to make such a declaration. It was opined that under the treaty it was necessary that he had a residence de facto in the Philippines for the eighteen months following the ratification of the treaty.

A child under parental authority whose father did not take advantage of the right of declaration of Spanish citizenship as provided for by the treaty also was considered a citizen of the Philippines.[6] However, if the child had no parents or guardians in the Philippines or Puerto Rico at the time the treaty was ratified, he would retain his Spanish nationality without the necessity of declaring such to be his intention.[7]

           

C.  The Philippine Bill

The Philippine Bill was enacted by the Congress of the United States on 1 July 1902. It was the composite report of two Philippine Commissions, the work of the War Departments of the United States, hearing before the committees of U.S. Congress and legislative conferences. The act was originally thought out to be a temporary one. It was meant to prepare the Filipinos for independence and self-governance for a period of at most eight years. However, it became the guide for the administration of civil government of the Philippines for fourteen years. It has little character of a constitutional act. Those provisions which one would expect to find in a constitution, such as establishing the framework for government, limiting governmental powers, and providing for the political organization of the executive, legislative and judicial branches, were lacking[8]. An assembly was, however, authorized for a future date. Most of the sections concerned general legislation on commerce, the sale and lease of public lands, utilization of forests, granting of mining claims, municipal bonds and franchises. The Bill of Rights was also extended.

Section 4 of the Philippine Bill defines who the citizens of the Philippines were. It stated:

That all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of  the United States, except as such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the united States and Spain signed at Paris December tenth, eighteen hundred and ninety-eight: Provided, That the Philippine legislature is hereby authorized to provide by law for the acquisition Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possessions of  the United States, and such other persons residing in the Philippine Island who could become citizens of the United States if residing therein.[9]

 

All those that were considered citizens of the Philippines under the Treaty of Paris were deemed to be citizens under the Philippine Bill.

All those born after 11 April 1899 to parents who were Spanish subjects on that date and who continued to reside in the Philippines were ipso facto citizens of the Philippine Islands.       In effect the doctrine of jus soli, citizenship by place of birth, which prevails in the United States, was extended to the Philippines.[10]

A woman of foreign nationality who married a citizen of the Philippines was also considered a Philippine citizen as she followed her husband’s citizenship.[11]

Children born of Chinese fathers and Filipina mothers within the Philippines, with certain exceptions, were also citizens of the Philippines. Even though the Chinese father and mother of the child were not legally married, the child was nevertheless presumed prima facie to be a citizen of the Philippines, inasmuch as under the law he followed the status of his legally recognized parent, who is his mother, a Filipina.  If such children were taken to their father’s country during their minority, they still remained citizens of the Philippines. However, if their fathers’ origin claimed them as citizens under the principle of jus sanguinis, they were then considered as possessing dual nationality.

Children born in the Philippines of Chinese parents were also considered citizens of the Philippines.[12] A child born of alien parents, who went to his father’s native land at a tender age and remained there during minority, on becoming of age, he should elect Philippine citizenship if he desires to be a citizen of the Philippines. A failure to express such desire within a reasonable period of time should be regarded as a strong presumption of his purpose to become definitely identified with the body politic of his father’s country.[13]

Citizenship may be lost by the action of a person, either express or implied. Expatriation is the voluntary renunciation of one’s nationality and allegiance by becoming a citizen of another country.[14] Actual renunciation may not be necessary in order to forfeit citizenship; a mere absence for a prolonged period, without an intention to return may be sufficient. The rule of the Department of State of the United States government was adopted, whereby, a continued residence abroad for three years, after attainment of majority, produces a loss of citizenship, unless it is clearly proved that animus revertendi existed. Commission of certain crimes may also cause the loss of citizenship[15].

 

 

D.  The Philippine Autonomy Act (Jones’ Law)

The Philippine Bill was later on superseded by Philippine Autonomy Act. The latter was superior in various ways to the former. It essentially mirrored a constitution as it provided for a framework of government, Bill of Rights and certain positive powers and prohibitions. It, however, retained in toto the same provision on citizenship as its predecessor. Section 2 of the Act stated:

That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequent thereto, shall be deemed citizens of the Philippine Islands, except as such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provision of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight, and except such others as have since become citizens of some other country: Provided, That the Philippine legislature, herein provided for, is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possession of the United States, or who could become citizens of the United States under the laws of  the United States if residing therein.[16]

 

As the above-stated provision is just a re-enactment of Section 4 of the Philippine Bill, all persons considered as citizens under the former law were also considered as such under the Philippine Autonomy Act. However, it was only in the latter that the proviso, also found in the Philippine Bill, providing for suppletory law for the acquisition of Philippine citizenship was given effect by the enactment of Act No. 2927 by the Philippine Legislature in 1920. The said law constituted the Naturalization Act of the Philippines. Under the law citizenship may now be acquired by the following groups of people:

a.        natives of the Philippines who are not citizens thereof;

b.       natives of insular possessions of the United States; and

c.        citizens of the United States, or

d.       foreigners who, under the laws of the United States, may become citizens of the later country if residing therein.[17]

 

E.  1935 Constitution

In the 1935 Constitution, Filipino citizenship was defined, classified and regulated by Article IV, which stated that:

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 the 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.

 

Section 2. Philippine citizenship may be lost or reacquired in the manner provided by law.[18]

 

Those who were considered citizens at the time of the adoption of the constitution included those deemed citizens under the Jones Law: “all inhabitants of the Philippine Islands, who were Spanish subjects on the 11^th day of April, 1989, and then residing in the said islands, and their children born and subsequent thereto...” This was in turn a reproduction of Section 4 of the Philippine Bill of 1902.[19]

Those who were naturalized according to the Naturalization Law of Act No. 2927 (March 26, 1920), come under the scope of Section 1(1). Under this Act, the privilege of naturalization was given to the following persons:

(1) natives of the Philippines who were not citizens of the Philippines, because they were not living in the Philippines on April 11, 1899, and were not subjects of Spain on that date, not were they children of Filipino citizens born after that date; (2) natives of the insular possessions of the United States, such as natives of Guam, Hawaii, Puerto Rico, and the Virgin Islands; (3) residents of the Philippines who were citizens of the United States; and (4) residents of the Philippines who could become citizens of the United States under the American laws if residing there.[20]

 

As can be seen from the previous citizenship laws, the principle of jus sanguinis was not applicable prior to the 1935 Constitution. Before Section 1, which considered citizens those whose fathers were Filipino citizens, the prevailing doctrine had been jus soli.[21] By recognizing the principle of jus sanguinis, it was recognized that a blood relationship would serve “as a better guarantee of loyalty to the country of one’s parents”[22] than jus soli.

Section 1(2), at the time the Constitution was framed, was said to be inserted for the benefit of Delegate Fermin Caram of Iloilo. Since Caram was born of Syrian parents and had not been naturalized, an “anomaly of the Constitution being signed by one who is not a citizen” would have been an issue, if thus subsection had not been included. However, the Supreme Court has held that the delegates would not have added such a provision without considering its effect on others.[23]

Section 1(4) contemplated a situation where only the mother was a Filipino citizen, and gave the child an opportunity to elect Filipino citizenship only when he reached the age of majority. Prior to his reaching such an age, he at most has an inchoate right to Filipino citizenship.[24] The provision is also applicable to mothers who were Filipinos before acquiring the nationality of their foreign spouses. To restrict its interpretation in such a way that the time of election was considered controlling as to the status when the mother should be a Filipina would have nullified the particular provision.[25] For illegitimate children however, this provision would not have been applicable, since the citizenship of the father would not then be material, since an illegitimate child as a rule follows the nationality of the mother.[26]

The right to elect is governed by Commonwealth Act No. 652, which states the requirements and procedure for election, and must be express:

Option to elect Philippine citizenship shall be expressed in a statement to be filed and sworn to by the party concerned before any officer authorized to administer oath and shall be filed with the nearest civil registrar. The party elected must likewise accompany the aforementioned statement with the oath of allegiance to the Constitution and the Government of the Philippines. Where the party concerned resides abroad, he must make the statement before any officer of the government of the Philippines authorized to administer oaths and must forward such statement together with his oath of allegiance to the civil registrar of Manila.[27]

 

On the naturalization of non-citizens, Section 1(5) possessed great significance. Desirable aliens are welcomed, but a balance must be created wherein the law “bars undesirables without unduly discouraging the worthwhile aliens desirous of becoming Filipinos.”[28] Naturalization has been defined as the “legal act of adopting an alien and clothing him with the rights that belong to a natural born citizen. Naturalization may be obtained through a general law of naturalization applied through a judicial process.”[29]

 

            F.  1973 Constitution

Article III, Section 2 enumerates the following as citizens of the Philippines:

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

2.                   Those whose fathers or mothers are citizens of the Philippines

3.                   Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five

4.                   Those who are naturalized in accordance with law.

 

The purpose of the first paragraph of the provision was to protect the continued enjoyment of Philippine citizenship to those who already possess the right as of 17 January 1973.

The Section 2(2) followed the principle of jus sanguinis. However, unlike the 1935 Constitution, Filipino mothers were placed by the 1973 Constitution on equal footing with Filipino fathers as far as the determination of the citizenship of their children was concerned. The father or mother may be a natural-born Filipino or a Filipino by naturalization or by election. The only important consideration here was that the mother must be a Filipino at the time of the birth of the child. It must be reiterated that this rule applied only to those born of a Filipino mother on or after 17 January 1973.

As the 1973 Constitution followed the doctrine of jus sanguinis, it disregarded the place of birth of a person. As long as one was born of Filipino parents, he was considered a Filipino. If he was born in a country where the rule of jus soli was the prevailing principle, it would be a case of dual citizenship.

The Section 2(3) defined the status of individuals who elect Philippine citizenship under the 1935 Constitution. Under the said Constitution, a child born of a Filipina mother married to an alien was considered an alien unless he elected Philippine citizenship within a reasonable period after reaching the age of majority. However, if his mother reacquired her Philippines citizenship during his minority there was no need for election since by operation of law, he is a Filipino citizen.

Section 2(4) provided for a means by which even individuals, who were not Filipino citizens by virtue of birth or of Filipino mothers, may become citizens of the Philippines through naturalization.

 

G.  1987 Constitution

The 1987 Constitution builds on the previous Constitutions, but modifies provisions which cannot be found in the 1973 and 1935 Constitution. Those who were citizens during the adoption of the new Constitution were considered citizens. However, this does not rectify any defects in the acquisition of such citizenship under the 1935 or 1973 Constitution. “If a person’s citizenship was subject to judicial challenge under the old law, it still remains subject to challenge under the new – whether or not the judicial challenge had been commenced prior to the effectivity of the new Constitution.”[30]

The principle of jus sanguinis still applies, and in following the lead of the 1973 Constitution, the Filipino woman is placed on the same footing as Filipino men in matters of citizenship. It is essential, however, that the mother is a Filipina when the child is born.[31] The principle of parental authority is still applicable in the new Constitution, so this article only applies to legitimate children, not to adopted or illegitimate ones. Mothers have parental authority over illegitimate children. Adopted children, on the other hand, as they are not related by blood, do not follow their adoptive parents’ citizenship, despite being under their parental authority.[32]

As for those who were born after the adoption of the 1973 Constitution of Filipino mothers, the 1987 Constitution still provides the transitory provision that was also in the 1973 Constitution: “Those born before 17 January 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority.”[33]

Naturalization still remains one of the ways by which a person may acquire citizenship. Section 2 of the 1987 Constitution defines natural born citizens:

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. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens

 

In the 1973 Constitution, the second sentence was not yet included. Furthermore, even under the 1935 Constitution, it was not settled whether the child of a Filipino mother who elects Philippine citizenship was a natural-born Filipino or a naturalized one. A liberal view was adopted by the 1987 Constitution, based on the argument that the election retroacts to the moment of birth, since it was such that gives him potential to make the election.[34]

However, if a person loses his citizenship and subsequently reacquires such citizenship, that person would no longer be considered a natural-born Filipino but a naturalized one (whether under the 1973 or the 1987 Constitution). An exception to this rule is reacquiring one’s citizenship through repatriation, where one regains one’s former citizenship.[35]

Section 3 states that “Philippine citizenship may be lost or reacquired in the manner provided by law.”[36] The loss of citizenship is governed by two laws, Commonwealth Act No. 63 (for natural-born and naturalized citizenship) and Commonwealth Act No. 473 (for naturalized citizenship). Under C.A. No. 63, citizenship may be lost: “through naturalization in a foreign country, by express renunciation of citizenship, by oath of allegiance to a foreign country, by rendering service in the armed forces of a foreign country, and by being a deserter of the armed forces.” Under Commonwealth Act No. 473, one’s certificate of naturalization may be cancelled if “found to have been fraudulently obtained, by permanent residence in the country of origin within five years of naturalization, or when petition is found to have been made on an invalid declaration of intent, or upon failure to comply with the requirements for the education of minor children, or if the person allows himself to be a “dummy” for aliens.”[37]

Reacquisition may happen either through naturalization or repatriation.

Section 4, which states that “citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission, they are deemed under the law, to have renounced it,”[38] modifies the 1973 Constitution by “making no reference to sex... on the chance that some country might have a law which divests a foreign husband of his citizenship.”[39]

In Section 5, the Constitution “recognizes the problem of dual allegiance, but leaves concrete ways of dealing with it to Congress.”[40] The same may be said of dual citizenship, which is not contemplated in the provision, it being a “seldom intentional and perhaps never insidious...condition that arises from the fact that Philippine law cannot control international law, and the laws of other countries on citizenship.”[41] Dual Citizenship is covered by RA 9225, which provides that natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their citizenship after taking the oath mentioned therein.

As can be seen, though there had been changes from the Spanish Laws to the Philippine Constitutions, continuity has been maintained. Each Constitution usually includes a provision to accommodate previous ones. Major changes include the transition from jus soli to jus sanguinis in the 1935 Constitution, the equalization of men and women (fathers and mothers) as regards citizenship in the 1973 Constitution, and the classification of children of Filipino mothers who needed to elect citizenship as natural-born, the retention of citizenship upon marriage to foreigners, and the recognition of the problem of dual allegiance in the 1987 Constitution.