Public Office and Republic Act No. 9225 (the “Dual Citizenship” Law)

Who are citizens of the Philippines? Article IV of the 1987 Constitution provides in part:

“Section 1. The following are citizens of the Philippines:
x-x-x
(4) Those who are naturalized in accordance with law.
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. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.
Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law.”

Republic Act No. 9225 (the Citizenship Retention and Re-acquisition Act of 2003) declares “the policy of the State that all Philippine citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act”, and allows former natural-born Filipinos who became naturalized citizens of another country, to re-acquire or retain their Philippine citizenship (re-acquire – for those who became naturalized citizens of another country before RA 9225 took effect; retain – for those who became naturalized citizens of another country after RA 9225 took effect) upon taking an oath of allegiance to the Republic.

Filipinos who re-acquire or retain their Philippine citizenship under RA 9225 enjoy full civil and political rights and are subject to all attendant liabilities and responsibilities under existing laws of the Philippines, with the following conditions applicable to those appointed to or running for public office:

“(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath;
x-x-x
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens. x-x-x”

This article discusses a few of the many possible issues that may be raised against “RA 9225 Filipinos” who are holders of or aspirants for public office. How the Supreme Court resolved these issues in the cases cited below may signal how it will do so in similar cases in the future, given the fast approaching 2016 elections.

A. Natural-born, or naturalized?

While it is the declared policy of RA 9225 that “all Philippine citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act”, the re-acquisition or retention of Philippine citizenship under RA 9225 is not automatic, but optional on the part of the former natural-born Filipino. Because he is not compelled to do so, and if such is his desire, he needs to take an oath of allegiance to the Republic.

There is no question that once the former natural-born Filipino takes the oath, he has re-acquired or retained his Filipino citizenship. Thus given the definition of natural-born and naturalized Filipino citizens in Article IV Sections 2 and 1(4), what kind of Filipino citizen is he?

In other words: since the re-acquisition or retention of Philippine citizenship under RA 9225 is not automatic, is the former natural-born Filipino citizen who desires to re-acquire or retain his Philippine citizenship and who is required to take an oath of allegiance – an act that is necessary in order to acquire or perfect his Philippine citizenship – now a naturalized Filipino citizen?

The difference between natural-born and naturalized citizens is significant, because there are government positions that do not require the holder to be a natural-born Filipino – for example, elective local officials (Local Government Code, Sec. 39). On the other hand there are many others that do – for example the President, the Vice-President Philippine Constitution (Art. VII Sec. 2 and 3), Members of the Supreme Court and lower collegiate courts (Art. VIII Sec. 7), Members of Congress (Id., Art. VI Sec. 3 and 6), Chairman and Members of the Constitutional Commissions (Id., Art. IX B[1], C[1], and D[1]), the Ombudsman and his Deputies (Id., Art. XI Sec. 8), the Members of the Governing Board of the Bangko Sentral (Id., Art. XII Sec. 20), and the Chair and Members of the Commission on Human Rights (Id., Art. XIII Sec. 17).

However the Supreme Court held in Sobejana-Condon v. COMELEC (2012) that a former natural-born Filipino who re-acquires or retains his Philippine citizenship under RA 9225 is a natural-born Filipino:

“The ‘sworn renunciation of foreign citizenship’ must be deemed a formal requirement only with respect to the re-acquisition of one’s status as a natural-born Filipino so as to override the effect of the principle that natural-born citizens need not perform any act to perfect their citizenship.”

Parenthetically, RA 9225 is not the only law that recognizes the right of former natural-born Filipinos to revert to such status after they renounce their foreign citizenship. There is also RA 8171 (An Act Providing for the Repatriation of Filipino Women Who Have Lost Their Philippine Citizenship by Marriage to Aliens and of Natural-Born Filipinos), and the repatriation of the former Filipino under said law will allow him to recover his natural-born citizenship (Tabasa v. Court of Appeals, 2006).

B. Sworn renunciation of foreign citizenship

RA 9225 requires a Filipino citizen who re-acquired or retained his Philippine citizenship to renounce his foreign citizenship/s as a condition precedent to being appointed to or running for public office in the Philippines. The renunciation must be under oath, the foreign citizenship must be formally rejected through an affidavit duly sworn before an officer authorized to administer oaths (Sobejana-Condon v. COMELEC, 2012). And the filing of a certificate of candidacy does not ipso facto amount to a renunciation of a candidate’s foreign citizenship under RA 9225 (Guzman v. COMELEC, 2009).

But the execution of an affidavit of renunciation is not enough. As the Supreme Court emphasized in Maquiling v. COMELEC (2013), which involved a natural-born Filipino who re-acquired his Filipino citizenship under RA 9225, executed an oath of renunciation of his American citizenship but still used his US Passport, and then ran for Mayor in his town in the 2010 elections:

“The use of a foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of representation of one’s nationality and citizenship; it does not divest Filipino citizenship regained by repatriation but recants the Oath of Recantation required to qualify one to run for an elective position.
x-x-x
The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute and perpetual renunciation of foreign citizenship and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship.
x-x-x
This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid for public office, as it effectively imposed on him a disqualification to run for an elective local position.”

Maquiling v. COMELEC was recently followed by Arnado v. COMELEC (2015); both involve the same former American citizen who in the earlier case ran for Mayor in the 2010 elections, and in the 2013 elections in the latter case:

“Arnado has not yet satisfied the twin requirements of Section 5(2) of RA 9225 at the time he filed his CoC for the May 13, 2013 elections; subsequent compliance does not suffice.
x-x-x
The Comelec En Banc did not err, nor did it commit grave abuse of discretion, in upholding the Resolution of the Comelec Second Division disqualifying Arnado from running for public office. It is worth noting that the reason for Arnado’s disqualification to run for public office during the 2010 elections – being a candidate without total and undivided allegiance to the Republic of the Philippines – still subsisted when he filed his CoC for the 2013 elections on October 1, 2012. The Comelec En Banc merely adhered to the ruling of this Court in Maquiling lest it would be committing grave abuse of iscretion had it departed therefrom.”

Such is the strictness of the afore-mentioned eligibility requirement that the Supreme Court emphasized in Arnado v. COMELEC that it cannot be dispensed with even if was apparently unattended by bad faith, nor overridden by an election victory:

“The ruling in Maquiling is indeed novel in the sense that it was the first case dealing with the effect of the use of a foreign passport on the qualification to run for public office of a natural-born Filipino citizen who was naturalized abroad and subsequently availed of the privileges under RA 9225. It was settled in that case that the use of a foreign passport amounts to repudiation or recantation of the oath of renunciation. Yet, despite the issue being novel and of first impression, plus the fact that Arnado could not have divined the possible adverse consequences of using his US passport, the Court in Maquiling did not act with leniency or benevolence towards Arnado. Voting 10-5, the Court ruled that matters dealing with qualifications for public elective office must be strictly complied with. Otherwise stated, the Court in Maquiling did not consider the novelty of the issue as to excuse Arnado from strictly complying with the eligibility requirements to run for public office or to simply allow him to correct the deficiency in his qualification by submitting another oath of renunciation. Thus, it is with more reason that in this case, we should similarly require strict compliance with the qualifications to run for local elective office.
x-x-x
In Maquiling, this Court emphasized that popular vote does not cure the ineligibility of a candidate. Thus, while in this case Arnado won by landslide majority during the 2013 elections, garnering 84% of the total votes cast, the same “cannot override the constitutional and statutory requirements for qualifications and disqualifications.” In Velasco v. Comelec, this Court pronounced that election victory cannot be used as a magic formula to bypass election eligibility requirements; otherwise, certain provisions of laws pertaining to elections will become toothless…”

C. Residence

In Romualdez-Marcos v. COMELEC (1995) the Supreme Court applied the principle of animus revertendi in finding that the petitioner was qualified to run for the position of Representative of the First District of Leyte in the 1995 elections even though she had not actually lived in the district for at least one year prior to the said elections:

“We have stated, many times in the past, that an individual does not lose his domicile even if he has lived and maintained residences in different places. Residence, it bears repeating, implies a factual relationship to a given place for various purposes. The absence from legal residence or domicile to pursue a profession, to study or to do other things of a temporary or semi-permanent nature does not constitute loss of residence. Thus, the assertion by the COMELEC that “she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places” flies in the face of settled jurisprudence in which this Court carefully made distinctions between (actual) residence and domicile for election law purposes…
x-x-x
From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that petitioner was ineligible to run for the position of Representative of the First District of Leyte, the COMELEC was obviously referring to petitioner’s various places of (actual) residence, not her domicile. In doing so, it not only ignored settled jurisprudence on residence in election law and the deliberations of the constitutional commission but also the provisions of the Omnibus Election Code (B.P. 881).”

However, the principle of animus revertendi cannot be applied lock stock and barrel to candidates who re-acquired or retained their Philippine citizenship under RA 9225.

The Supreme Court explained in Caballero v. COMELEC (2015) that RA 9225 treats citizenship independently of residence:

“Petitioner was a natural born Filipino who was born and raised in Uyugan, Batanes. Thus, it could be said that he had his domicile of origin in Uyugan, Batanes. However, he later worked in Canada and became a Canadian citizen. In Coquilla v. COMELEC, we ruled that naturalization in a foreign country may result in an abandonment of domicile in the Philippines. This holds true in petitioner’s case as permanent resident status in Canada is required for the acquisition of Canadian citizenship. Hence, petitioner had effectively abandoned his domicile in the Philippines and transferred his domicile of choice in Canada. His frequent visits to Uyugan, Batanes during his vacation from work in Canada cannot be considered as waiver of such abandonment.
x-x-x
Hence, petitioner’s retention of his Philippine citizenship under RA No. 9225 did not automatically make him regain his residence in Uyugan, Batanes. He must still prove that after becoming a Philippine citizen on September 13, 2012, he had reestablished Uyugan, Batanes as his new domicile of choice which is reckoned from the time he made it as such.”

And the Supreme Court stressed the importance of the residency requirement, which must be actually, and not just substantially complied with:

“Petitioner’s argument that his nine (9) months of actual stay in Uyugan, Batanes, prior to the May 13, 2013 local elections is a substantial compliance with the law, is not persuasive. x-x-x
x-x-x
Petitioner had made a material misrepresentation by stating in his COC that he is a resident of Uyugan, Batanes for at least one (1) year immediately proceeding the day of the election, thus, a ground for a petition under Section 78 of the Omnibus Election Code. Section 74, in relation to Section 78, of the OEC governs the cancellation of, and grant or denial of due course to COCs x-x-x”

D. Effect of foreign citizenship laws

A holder or prospective holder of public office who will advance the argument that he or she is no longer a citizen of another country under its laws will need to take heed of what the Supreme Court said in Sobejana-Condon v. COMELEC:

“Petitioner contends that the Australian Citizenship Act of 1948, under which she is already deemed to have lost her citizenship, is entitled to judicial notice. We disagree.
Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven. To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court …
x-x-x
This Court as the government branch tasked to apply the enactments of the legislature must do so conformably with the wisdom of the latter sans the interference of any foreign law. If we were to read the Australian Citizen Act of 1948 into the application and operation of R.A. No. 9225, we would be applying not what our legislative department has deemed wise to require. To do so would be a brazen encroachment upon the sovereign will and power of the people of this Republic.”

Given the very fluid and dynamic discourse on the 2016 elections, it would be interesting to see how the Supreme Court will resolve these and all other issues that may arise from the interplay between RA 9225 and public office.

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