concepts of state in relation to different cases

8/14/2019 Concepts of State in Relation to Different Cases

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That I guaranty they are law abiding citizens and I guaranty their

behavior while they are in the Philippines; I also guaranty their

support and that they will not become a public charge.

That I guaranty their voluntary departure upon the termination of

the authorized stay granted them by the Government (Rollo, p.

41).

As "guests," petitioner and her two children lived in the house ofBanez.

Petitioner and her children were admitted to the Philippines as

temporary visitors under Section 9(a) of the Immigration Act of

1940.

In 1981, Marina Cabael discovered the true relationship of her

husband and petitioner. She filed a complaint for "concubinage"

with the Municipal Trial Court of Urdaneta, Pangasinan against

the two. This case was, however, dismissed for lack of merit.

On March 25, 1982, the immigration status of petitioner was

changed from temporary visitor to that of permanent resident

under Section 13(a) of the same law. On April 14, 1982, petitioner

was issued an alien certificate of registration.

Not accepting the set-back, Banez' eldest son, Leonardo, filed a

letter complaint with the Ombudsman, who subsequently

referred the letter to the CID. On the basis of the said letter,

petitioner was detained at the CID detention cell. She later

released pending the deportation proceedings (DEP Case No. 90-

400) after posting a cash bond (Rollo, pp. 15-16). Thereafter, she

manifested to the CID that she be allowed to depart voluntarily

from the Philippines and asked for time to purchase her airline

ticket (Rollo, p. 10). However, she a change of heart and moved

for the dismissal of the deportation case on the ground that she

was validly married to a Filipino citizen (Rollo, pp. 11-12).

In the Decision dated September 27, 1990, the CID, through public

respondents, disposed as follows:

WHEREFORE, IN VIEW OF THE FOREGOING, the Board of

Commissioners finds the second marriage of Bernardo Banes to

respondent Djumantan irregular and not in accordance with the

laws of the Philippines. We revoke the Section 13(a) visa

previously granted to her (Rollo, p. 23).

Public respondents denied petitioner's motion for reconsideration

in their Resolution dated January 29, 1991 (Rollo, pp. 31-33).

Hence, this petition.

We issued a temporary restraining order, directing public

respondents to cease and desist from executing or implementing

the Decision dated September 27, 1990 and the Resolution dated

January 29, 1991 (Rollo, pp. 34-36).

On September 20, 1994, Leonardo C. Banez manifested that his

father died on August 14, 1994 and that he and his mother were

withdrawing their objection to the granting of a permanent

resident visa to petitioner (Rollo, pp. 173-175).

II

Petitioner claims that her marriage to Banez was valid under

Article 27 of P.D. No. 1085, the Muslim Code, which recognizes

the practice of polyandry by Muslim males. From that premise,

she argues that under Articles 109 of the Civil Code of the

Philippines, Article 68 of the Family Code and Article 34 of the

Muslim Code, the husband and wife are obliged to live together

and under Article 110 of the Civil Code of the Philippines, the

husband is given the right to fix the conjugal residence. She claims

that public respondents have no right to order the couple to live

separately (Rollo, pp. 5-7).

When asked to comment on the petition, the Solicitor Generaltook the position that the CID could not order petitioner's

deportation because its power to do so had prescribed under

Section 37 (b) of the Immigration Act of 1940 (Rollo, pp. 57-74).

III

We need not resolve the validity of petitioner's marriage to

Banez, if under the law the CID can validly deport petitioner as an

"undesirable alien" regardless of her marriage to a Filipino citizen.

Therefore, to be first resolved is the question on petitioner's

immigration status, particularly the legality of her admission into

the country and the change of her status from temporary visitor

to permanent resident. Upon a finding that she was not lawfully

admitted into the country and she did not lawfully acquire

permanent residency, the next question is whether the power todeport her has prescribed.

There was a blatant abuse of our immigration laws in effecting

petitioner's entry into the country and the change of her

immigration status from temporary visitor to permanent resident.

All such privileges were obtained through misinterpretation.

Never was the marriage of petitioner to Banez disclosed to the

immigration authorities in her applications for temporary visitor's

visa and for permanent residency.

The civil status of an alien applicant for admission as a temporary

visitor is a matter that could influence the exercise of discretion

on the part of the immigration authorities. The immigration

authorities would be less inclined to allow the entry of a woman

who claims to have entered into a marriage with a Filipino citizen,who is married to another woman (Cf. Shiu Shin Man v. Galang, 3

SCRA 871 [1961]).

Generally, the right of the President to expel or deport aliens

whose presence is deemed inimical to the public interest is as

absolute and unqualified as the right to prohibit and prevent their

entry into the country (Annotations, 8 ALR 1286). this right is

based on the fact that since the aliens are not part of the nation,

their admission into the territory is a matter of pure permission

and simple tolerance which creates no obligation on the part of

the government to permit them to stay (3 Am. Jur. 2d. 72).

The interest, which an alien has in being admitted into or allowed

to continue to reside in the country, is protected only so far as

Congress may choose to protect it (United States ex rel. Kaloudis

v. Shauhnessy 180 F. 2d. 489).

There is no law guaranteeing aliens married to Filipino citizens the

right to be admitted, much less to be given permanent residency,

in the Philippines.

The fact of marriage by an alien to a citizen does not withdraw her

from the operation of the immigration laws governing the

admission and exclusion of aliens (United States ex rel. Knauff v.

Shauhnessy, 338 US 537 94 L. Ed. 317, 70 S. Ct. 309 [1950]; Low

Wah Suey v. Backus, 225 US 460 56 L. Ed. 1165, 32 S. Ct. 734


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[1912]; Annotations, 71 ALR 1213). Marriage of an alien woman to

a Filipino husband does not ipso facto make her a Filipino citizen

and does not excuse her from her failure to depart from the

country upon the expiration of her extended stay here as an alien

(Joaquin v. Galang, 33 SCRA 362 [1970]).

Under Section 9 of the Immigration Act of 1940, it is not

mandatory for the CID to admit any alien who applies for a

visitor's visa. Once admitted into the country, the alien has noright to an indefinite stay. Under Section 13 of the law, an alien

allowed to stay temporarily may apply for a change of status and

"may be admitted" as a permanent resident. Among those

considered qualified to apply for permanent residency if the wife

or husband of a Philippine citizen (Immigration Act of 1940, Sec.

13[a]). The entry of aliens into the country and their admission as

immigrants is not a matter of right, even if they are legally

married to Filipino citizens.

IV

We now address the issue raised by the Solicitor General that the

right of public respondents to deport petitioner has prescribed,

citing Section 37(b) of the Immigration Act of 1940.

Said Section 37(b) provides:

Deportation may be effected under clauses 2, 7, 8, 11 and 12 of

paragraph (a) of this section at any time after entry, but shall not

be effected under any clause unless the arrest in the deportation

proceedings is made within five years after the cause for

deportation arises. Deportation under clauses 3 and 4 shall not be

effected if the court, or judge thereof, when sentencing the alien,

shall recommend to the Commissioner of Immigration that the

alien be not deported (As amended by Rep. Act No. 503).

Section 37(a) of the said law mentioned in Section 37(b) thereof

provides:

The following aliens shall be arrested upon the warrant of the

Commissioner of Immigration or of any other officer designatedby him for the purpose and deported upon the warrant of the

Commissioner of Immigration after a determination by the Board

of Commissioners of the existence of the ground for deportation

as charged against the alien:

1) Any alien who enters the Philippines after the effective

date of this Act by means of false and misleading statements or

without inspection and admission by the immigration authorities

at a designating port of entry or at any place other than at a

designated port of entry.

2) Any alien who enters the Philippines after the effective

date of this Act, who was not lawfully admissible at the time of

entry;

3) Any alien who, after the effective date of this Act, is

convicted in the Philippines and sentenced for a term of one year

or more for a crime involving moral turpitude committed within

five years after his entry, is so convicted and sentenced more than

once;

4) Any alien who is convicted and sentenced for a

violation of the law governing prohibited drugs;

5) Any alien who practices prostitution or is an inmate of

a house of prostitution or is connected with the management of a

house of prostitution, or is a procurer;

6) Any alien who becomes a public charge within five

years after entry from causes not affirmatively shown to have

arisen subsequent to entry;

7) Any alien who remains in the Philippines in violation of

any limitation or condition under which he was admitted a non-

immigrant;

8) Any alien who believes in, advises, advocates or

teaches the overthrow by force and violence of the Government

of the Philippines, or of constituted law and authority, or who

disbelieves in or is opposed to organized government, or who

advises, advocates, or teaches the assault or assassination of

public officials because of their office, or who advises, advocates,

or teaches the unlawful destruction of property, or who is a

member of or affiliated with any organization entertaining,

advocating or teaching such doctrines, or who on any manner

whatsoever lends assistance, financial or otherwise, to thedissemination of such doctrines;

9) Any alien who commits any of the acts described in

Sections forty-five and forty-six of this Act, independent of

criminal action which may be brought against him: Provided, That

in the case of an alien who, for any reason, is convicted and

sentenced to suffer both imprisonment and deportation, said

alien shall first serve the entire period of his imprisonment before

he is actually deported: Provided, however, That the

imprisonment may be waived by the Commissioner of

Immigration with the consent of the Department Head, and upon

payment by the alien concerned of such amount as the

Commissioner may fix and approved by the Department Head,

and upon payment by the alien concerned of such amount as the

Commissioner may fix and approved by the Department Head (as

amended by R.A. No. 144);

10) Any alien who, at any time within five years after

entry, shall have been convicted of violating the provisions of the

Philippine Commonwealth Act Numbered Six hundred and fifty-

three, otherwise known as the Philippine Alien Registration Act of

1941 (now Republic Act No. 562), or who, at any time after entry,

shall have been convicted more than once of violating the

provisions of the same Act;

11) Any alien who engages in profiteering, hoarding, or

black-marketing, independent of any criminal action which may

be brought against him;

12) Any alien who is convicted of any offense penalized

under Commonwealth Act Numbered Four hundred and seventy-

three, otherwise known as the Revised Naturalization Laws of the

Philippines, or any law relating to acquisition of Philippine

citizenship;

13) Any alien who defrauds his creditor by absconding or

alienating properties, to prevent them from being attached or

executed.

Under clause 1 of Section 37(a), an "alien who enters the

Philippines after the effective date of this Act by means of false

and misleading statements or without inspection and admission


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by the immigration authorities at a designated port of entry or at

any place other than at a designated port of entry" is subject to

deportation.

The deportation of an alien under said clause of Section 37(a) has

a prescriptive period and "shall not be effected ... unless the

arrest in the deportation proceedings is made within five years

after the cause for deportation arises" (Immigration Act of 1940,

Sec. 37[b]).

Congress may impose a limitation of time for the deportation of

alien from the country (Costanzo v. Tillinghast, 287 US 341 77 L.

Ed. 350, 53 S. Ct. 152 [1932]; Guiney v. Bonham [CA 9] 261 F. 582,

8 ALR 1282).

In Board of Commissioners (CID) v. Dela Rosa, 197 SCRA 853

(1991), we held that under Section 37(b) of the Immigration Act of

1940, the deportation of an alien may be barred after the lapse of

five years after the cause of deportation arises. Justice Feliciano,

in his dissenting opinion, qualified the broad statement of the law

as follows:

Examination of the above quoted Section 37 (b) shows that the

five (5) year limitation is applicable only where deportation issought to be effected under clauses of Section 37 (a) other than

clauses 2, 7, 8, 11 and 12; that where deportation or exclusion is

sought to be effected under clauses of Section 37(a), no period of

limitation is applicable; and that to the contrary, deportation or

exclusion may be effected "at any time after entry."

Justice Davide, in his dissenting opinion, clarified:

Note that the five-year period applies only to clauses other than

2, 7, 8, 11 and 12 of paragraph (a) of the Section. In respect to

clauses 2, 7, 8, 11, and 12, the limitation does not apply.

In Lam Shee v. Bengzon, 93 Phil. 1065 (1953), the alien admitted

that she had gained entrance into the Philippines fraudulently by

making use of the name of a Chinese resident-merchant other

than that of her lawful husband. The Court, however, held thatshe could no longer be deported "for the simple reason that more

than 5 years had elapsed from the date of her admission."

The right of public respondents to deport petitioner has

prescribed.

Petitioner was admitted and allowed entry into the Philippines on

January 13, 1979 on the basis of false and misleading statements

in her application and in the other supporting documents

submitted to the immigration authorities. Leonardo C. Banez first

complained with the CID on November 19, 1980 about the

manner petitioner was admitted into the country and asked for

her deportation (Rollo, pp. 77-78). After the EDSA Revolution, he

sent a follow-up letter to the CID requesting action on his 1980

letter-complaint (Rollo, p. 78).

Tolling the prescriptive period from November 19, 1980, when

Leonardo C. Banez informed the CID of the illegal entry of

petitioner into the country, more than five years had elapsed

before the issuance of the order of her deportation on September

27, 1990.

In their Comment, public respondents urged that what is barred

under Section 37(b) is the deportation of an alien and claimed

that what they ordered was not the deportation of petitioner but

merely the revocation of Section 13(a) which refers to the visa

previously granted her (Rollo, p. 102).

The "arrest" contemplated by Section 37(b) refers to the arrest for

the purpose of carrying out an order for deportation and not the

arrest prior to proceedings to determine the right of the alien to

stay in the country. When public respondents revoked thepermanent residence visa issued to petitioner, they, in effect,

ordered her arrest and deportation as an overstaying alien.

WHEREFORE, the petition is GRANTED and the temporary

restraining order issued on June 4, 1991 is MADE PERMANENT.

The Decision of the Board of Commissioners dated September 27,

1990 revoking the issuance of the permanent resident visa to

petitioner and the Resolution dated January 29, 1991 are

REVERSED.

SO ORDERED

Election of Philippine Citizenship

BAR MATTER No. 914 October 1, 1999

RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR OF

VICENTE D. CHING.

FACTS:

Vicente D. Ching, a legitimate son of the spouses Tat Ching, a

Chinese citizen, and Priscila Dulay, a Filipina, was born in Tubao,La

Union on April 11, 1964. Since birth, Ching has resided in the

Philippines. On July 17, 1998, Ching, after graduated of Bachelor

of Laws course at St. Louis University in Baguio City, filed an

application to take the 1998 Bar Exam. The Supreme Court

allowed him to take provided that he can produce proof of his

Philippine citizenship. In compliance with said requirements,

Ching submitted the following documents:

A. Certification from Board of Accountancy of the PRC

showing that he is a Certified Public Accountant.

B. Voter certification from COMELEC Tubao La Union.

C. Certification that he served as Sangguniang Bayan

member

On April 5, 1999 Ching was included as one of the lucky passers of

the Bar Exam and the schedule of their oath taking was on May 5,

1999 but he was not allowed to take his oath due the

questionable citizenship issue.

ISSUES:

Whether or not Ching is a Filipino citizen

Whether or not his election to Philippine citizenship is

within the reasonable time prescribed by law

RULING:

No. Since the applicant was born on 1964, the governing charter

with regard to citizenship issue is the 1935 Constitution.

Therefore as what is provided by the said Constitution, which said


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that the citizenship of a legitimate child born of a Filipino mother

with an alien father followed the citizenship of the father unless

upon reaching the age of majority which is 21 years of age elected

Philippine citizenship. In the case at bar, Ching did not elect his

citizenship when he reach 21 years old but instead in 1999 which

is 14 years after reaching the age of majority which the court

considered as not within the reasonable period of time

considering the length of 14 years after he reaches 21 years old.

In addition to that, the Court said that Philippine citizenship cannever be treated like commodity that can be claimed when

needed and suppressed when convenient.

In view of the foregoing, the Court DENIED Vicente D. Chings

application for admission to the Philippine Bar.

Doctrine of Implied Election

CO vs. HRET

Facts: The HRET declared that respondent Jose Ong, Jr. is a

natural born Filipino citizen and a resident of Laoang, Northern

Samar for voting purposes. The congressional election for the

second district of Northern Samar was held. Among the

candidates who vied for the position of representative in thesecond legislative district are the petitioners, Sixto Balinquit and

Antonio Co and the private respondent, Jose Ong, Jr. Respondent

Ong was proclaimed the duly elected representative of the second

district of Northern Samar. The petitioners filed election protests

on the grounds that Jose Ong, Jr. is not a natural born citizen of

the Philippines and not a resident of the second district of

Northern Samar.

Issue: Whether or not Jose Ong, Jr. is a citizen of the Philippines.

Held:Yes, in the year 1895, the private respondents grandfather,

Ong Te, arrived in the Philippines fromChina and established his

residence in the municipality of Laoang, Samar. The father of the

private respondent, Jose Ong Chuan was born in China in 1905

but was brought by Ong Te to Samar in the year 1915, he filed

with the court an application for naturalization and was declareda Filipino citizen. In 1984, the private respondent married a

Filipina named Desiree Lim. For the elections of 1984 and1986,

Jose Ong, Jr. registered himself as a voter of Laoang, Samar, and

voted there during those elections. Under the 1973 Constitution,

those born of Filipino fathers and those born of Filipino mothers

with an alien father were placed on equal footing. They were both

considered as natural born citizens. Besides, private respondent

did more than merely exercise his right of suffrage. He has

established his life here in the Philippines. On the issue of

residence, it is not required that a person should have a house in

order to establish his residence and domicile. It is enough that he

should live in the municipality or in a rented house or in that of a

friend or relative. To require him to own property in order to be

eligible to run for Congress would be tantamount to a property

qualification. The Constitution only requires that the candidate

meet the age, citizenship, voting and residence requirements.

Natural Born Citizens

Bengson v House of Representatives Electoral Tribunal

G.R. No 142840, May 7, 2001

Facts:The citizenship of Teodoro Cruz, a member of the HOR, is

being questioned on the ground that he is not a natural-born

citizen of the Philippines.

Cruz was born in the Philippines in 1960, the time when the

acquisition of citizenship rule was still jus soli. However, he

enlisted to the US Marine Corps and he was naturalized as US

citizen in connection therewith. He reacquired Philippine

citizenship through repatriation under RA 2630 and ran for and

was elected as a representative. When his nationality was

questioned by petitioner, the HRET decided that Cruz was a

natural born citizen of the Philippines.

Issue:WON Cruz is a natural born citizen of the Philippines.

Held: Yes, Natural-born citizens "are those citizens of the

Philippines from birth without having to perform any act to

acquire or perfect his Philippine citezenship." On the other hand,

naturalized citizens are those who have become Filipino citizens

through naturalization, generally under Commonwealth Act No.

473, otherwise known as the Revised Naturalization Law, which

repealed the former Naturalization Law (Act No. 2927), and by

Republic Act No. 530.11 To be naturalized, an applicant has to

prove that he possesses all the qualifications12 and none of the

disqualification.

Filipino citizens who have lost their citizenship may however

reacquire the same in the manner provided by law.Commonwealth Act No. (C.A. No. 63), enumerates the three

modes by which Philippine citizenship may be reacquired by a

former citizen: (1) by naturalization, (2) by repatriation, and (3) by

direct act of Congress.

Naturalization is mode for both acquisition and reacquisition of

Philippine citizenship. As a mode of initially acquiring Philippine

citizenship, naturalization is governed by Commonwealth Act No.

473, as amended. On the other hand, naturalization as a mode for

reacquiring Philippine citizenship is governed by Commonwealth

Act No. 63.16 Under this law, a former Filipino citizen who wishes

to reacquire Philippine citizenship must possess certain

qualifications and none of the disqualification mentioned in

Section 4 of C.A. 473.

Repatriation, on the other hand, may be had under variousstatutes by those who lost their citizenship due to: (1) desertion

of the armed forces; services in the armed forces of the allied

forces in World War II; (3) service in the Armed Forces of the

United States at any other time, (4) marriage of a Filipino woman

to an alien; and (5) political economic necessity.

As distinguished from the lengthy process of naturalization,

repatriation simply consists of the taking of an oath of allegiance

to the Republic of the Philippine and registering said oath in the

Local Civil Registry of the place where the person concerned

resides or last resided.

Moreover, repatriation results in the recovery of the original

nationality. This means that a naturalized Filipino who lost his

citizenship will be restored to his prior status as a naturalized

Filipino citizen. On the other hand, if he was originally a natural-

born citizen before he lost his Philippine citizenship, he will be

restored to his former status as a natural-born Filipino.

In respondent Cruz's case, he lost his Filipino citizenship when he

rendered service in the Armed Forces of the United States.

However, he subsequently reacquired Philippine citizenship under

R.A. No. 2630.

Having thus taken the required oath of allegiance to the Republic

and having registered the same in the Civil Registry of


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Magantarem, Pangasinan in accordance with the aforecited

provision, respondent Cruz is deemed to have recovered his

original status as a natural-born citizen, a status which he

acquired at birth as the son of a Filipino father. It bears stressing

that the act of repatriation allows him to recover, or return to, his

original status before he lost his Philippine citizenship

Tecson Vs. Comelec

424 SCRA 277

G.R. No. 161434

March 3, 2004

Facts:Victorino X. Fornier, petitioner initiated a petition before

the COMELEC to disqualify FPJ and to deny due course or to

cancel his certificate of candidacy upon the thesis that FPJ made a

material misrepresentation in his certificate of candidacy by

claiming to be a natural-born Filipino citizen when in truth,

according to Fornier, his parents were foreigners; his mother,

Bessie Kelley Poe, was an American, and his father, Allan Poe, was

a Spanish national, being the son of Lorenzo Pou, a Spanish

subject. Granting, petitioner asseverated, that Allan F. Poe was a

Filipino citizen, he could not have transmitted his Filipino

citizenship to FPJ, the latter being an illegitimate child of an alienmother. Petitioner based the allegation of the illegitimate birth of

respondent on two assertions - first, Allan F. Poe contracted a

prior marriage to a certain Paulita Gomez before his marriage to

Bessie Kelley and, second, even if no such prior marriage had

existed, Allan F. Poe, married Bessie Kelly only a year after the

birth of respondent.

Issue:Whether or Not FPJ is a natural born Filipino citizen.

Held: It is necessary to take on the matter of whether or not

respondent FPJ is a natural-born citizen, which, in turn, depended

on whether or not the father of respondent, Allan F. Poe, would

have himself been a Filipino citizen and, in the affirmative,

whether or not the alleged illegitimacy of respondent prevents

him from taking after the Filipino citizenship of his putative father.

Any conclusion on the Filipino citizenship of Lorenzo Pou couldonly be drawn from the presumption that having died in 1954 at

84 years old, Lorenzo would have been born sometime in the year

1870, when the Philippines was under Spanish rule, and that San

Carlos, Pangasinan, his place of residence upon his death in 1954,

in the absence of any other evidence, could have well been his

place of residence before death, such that Lorenzo Pou would

have benefited from the "en masse Filipinization" that the

Philippine Bill had effected in 1902. That citizenship (of Lorenzo

Pou), if acquired, would thereby extend to his son, Allan F. Poe,

father of respondent FPJ. The 1935 Constitution, during which

regime respondent FPJ has seen first light, confers citizenship to

all persons whose fathers are Filipino citizens regardless of

whether such children are legitimate or illegitimate.

But while the totality of the evidence may not establish

conclusively that respondent FPJ is a natural-born citizen of the

Philippines, the evidence on hand still would preponderate in his

favor enough to hold that he cannot be held guilty of having made

a material misrepresentation in his certificate of candidacy in

violation of Section 78, in relation to Section 74, of the Omnibus

Election Code.

Dual Citizenship and Dual Allegiance

Mercado Vs. Manzano

307 SCRA 630

G.R. No. 135083

May 26, 1999

Facts: Petitioner Ernesto Mercado and Private respondent

Eduardo Manzano are candidates for the position of Vice-Mayor

of Makati City in the May, 1998 elections. Private respondent was

the winner of the said election but the proclamation was

suspended due to the petition of Ernesto Mamaril regarding the

citizenship of private respondent. Mamaril alleged that theprivate respondent is not a citizen of the Philippines but of the

United States. COMELEC granted the petition and disqualified the

private respondent for being a dual citizen, pursuant to the Local

Government code that provides that persons who possess dual

citizenship are disqualified from running any public position.

Private respondent filed a motion for reconsideration which

remained pending until after election. Petitioner sought to

intervene in the case for disqualification. COMELEC reversed the

decision and declared private respondent qualified to run for the

position. Pursuant to the ruling of the COMELEC, the board of

canvassers proclaimed private respondent as vice mayor. This

petition sought the reversal of the resolution of the COMELEC and

to declare the private respondent disqualified to hold the office of

the vice mayor of Makati.

Issue: Whether or Not private respondent is qualified to hold

office as Vice-Mayor.

Held: Dual citizenship is different from dual allegiance. The former

arises when, as a result of the concurrent application of the

different laws of two or more states, a person is simultaneously

considered a national by the said states. For instance, such a

situation may arise when a person whose parents are citizens of a

state which adheres to the principle of jus sanguinis is born in a

state which follows the doctrine of jus soli. Private respondent is

considered as a dual citizen because he is born of Filipino parents

but was born in San Francisco, USA. Such a person, ipso facto and

without any voluntary act on his part, is concurrently considered a

citizen of both states. Considering the citizenship clause (Art. IV)

of our Constitution, it is possible for the following classes of

citizens of the Philippines to possess dual citizenship: (1) Thoseborn of Filipino fathers and/or mothers in foreign countries which

follow the principle of jus soli; (2) Those born in the Philippines of

Filipino mothers and alien fathers if by the laws of their fathers

country such children are citizens of that country; (3) Those who

marry aliens if by the laws of the latters country the former are

considered citizens, unless by their act or omission they are

deemed to have renounced Philippine citizenship. Dual allegiance,

on the other hand, refers to the situation in which a person

simultaneously owes, by some positive act, loyalty to two or more

states. While dual citizenship is involuntary, dual allegiance is the

result of an individuals volition.

By filing a certificate of candidacy when he ran for his present

post, private respondent elected Philippine citizenship and in

effect renounced his American citizenship. The filing of such

certificate of candidacy sufficed to renounce his American

citizenship, effectively removing any disqualification he might

have as a dual citizen.

By declaring in his certificate of candidacy that he is a Filipino

citizen; that he is not a permanent resident or immigrant of

another country; that he will defend and support the Constitution

of the Philippines and bear true faith and allegiance thereto and

that he does so without mental reservation, private respondent

has, as far as the laws of this country are concerned, effectively

repudiated his American citizenship and anything which he may


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have said before as a dual citizen. On the other hand, private

respondents oath of allegiance to the Philippine, when

considered with the fact that he has spent his youth and

adulthood, received his education, practiced his profession as an

artist, and taken part in past elections in this country, leaves no

doubt of his election of Philippine citizenship.

Naturalization

G.R. No. 104654 June 6, 1994

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.

HON. ROSALIO G. DE LA ROSA, PRESIDING JUDGE OF THE

REGIONAL TRIAL COURT, BRANCH 28, MANILA and JUAN G.

FRIVALDO, respondents.

G.R. No. 105715 June 6, 1994

RAUL R. LEE, petitioner,

vs.

COMMISSION ON ELECTIONS and JUAN G. FRIVALDO,

respondents.

G.R. No. 105735 June 6, 1994

RAUL R. LEE, petitioner,

vs.

COMMISSION ON ELECTIONS and JUAN G. FRIVALDO,

respondents.

The Solicitor General for petitioner in G.R. No. 104654.

Yolando F. Lim counsel for private respondent.

QUIASON, J.:

In Frivaldo v. Commission on Elections, 174 SCRA 245 (1989), this

Court declared private respondent, Juan G. Frivaldo, an alien andtherefore disqualified from serving as Governor of the Province of

Sorsogon.

Once more, the citizenship of private respondent is put in issue in

these petitions docketed as G.R. No.104654 and G.R. No. 105715

and G.R. No. 105735. The petitions were consolidated since they

principally involve the same issues and parties.

I

G.R. No. 104654

This is a petition for certiorari under Rule 45 of the Revised Rules

of Court in relation to R.A. No. 5440 and Section 25 of the Interim

Rules, filed by the Republic of the Philippines: (1) to annul the

Decision dated February 27, 1992 of the Regional Trial Court,

Branch 28, Manila, in SP Proc. No. 91-58645, which re-admitted

private respondent as a Filipino citizen under the Revised

Naturalization Law (C.A. No. 63 as amended by C.A. No. 473); and

(2) to nullify the oath of allegiance taken by private respondent on

February 27, 1992.

On September 20, 1991, petitioner filed a petition for

naturalization captioned: "In the Matter of Petition of Juan G.

Frivaldo to be Re-admitted as a Citizen of the Philippines under

Commonwealth Act No. 63" (Rollo, pp. 17-23).

In an Order dated October 7, 1991 respondent Judge set the

petition for hearing on March 16, 1992, and directed the

publication of the said order and petition in the Official Gazette

and a newspaper of general circulation, for three consecutive

weeks, the last publication of which should be at least six months

before the said date of hearing. The order further required theposting of a copy thereof and the petition in a conspicuous place

in the Office of the Clerk of Court of the Regional Trial Court,

Manila (Rollo, pp. 24-26).

On January 14, 1992, private respondent filed a "Motion to Set

Hearing Ahead of Schedule," where he manifested his intention to

run for public office in the May 1992 elections. He alleged that the

deadline for filing the certificate of candidacy was March 15, one

day before the scheduled hearing. He asked that the hearing set

on March 16 be cancelled and be moved to January 24 (Rollo, pp.

27-28).

The motion was granted in an Order dated January 24, 1992,

wherein the hearing of the petition was moved to February 21,

1992. The said order was not published nor a copy thereof posted.

On February 21, the hearing proceeded with private respondent

as the sole witness. He submitted the following documentary

evidence: (1) Affidavit of Publication of the Order dated October

7, 1991 issued by the publisher of The Philippine Star (Exh. "A");

(2) Certificate of Publication of the order issued

by the National Printing Office (Exh. "B"); (3) Notice of Hearing of

Petition (Exh. "B-1"); (4) Photocopy of a Citation issued by the

National Press Club with private respondents picture (Exhs. "C"

and "C-2"); (5) Certificate of Appreciation issued by the Rotary

Club of Davao (Exh. "D"); (6) Photocopy

of a Plaque of Appreciation issued by the Republican College,

Quezon City (Exh. "E"); (7) Photocopy of a Plaque of Appreciation

issued by the Davao-Bicol Association (Exh. "F"); (8) Certificationissued by the Records Management and Archives Office that the

record of birth of private respondent was not on file (Exh. "G");

and (8) Certificate of Naturalization issued by the United States

District Court (Exh. "H").

Six days later, on February 27, respondent Judge rendered the

assailed Decision, disposing as follows:

WHEREFORE, the petition is GRANTED. Petitioner JUAN G.

FRIVALDO, is re-admitted as a citizen of the Republic of the

Philippines by naturalization, thereby vesting upon him, all the

rights and privileges of a natural born Filipino citizen (Rollo, p. 33).

On the same day, private respondent was allowed to take his oath

of allegiance before respondent Judge (Rollo, p. 34).

On March 16, a "Motion for Leave of Court to Intervene and to

Admit Motion for Reconsideration" was filed by Quiterio H.

Hermo. He alleged that the proceedings were tainted with

jurisdictional defects, and prayed for a new trial to conform with

the requirements of the Naturalization Law.

After receiving a copy of the Decision on March 18, 1992, the

Solicitor General interposed a timely appeal directly with the

Supreme Court.


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G.R. No. 105715

This is a petition for certiorari, mandamus with injunction under

Rule 65 of the Revised Rules of Court in relation to Section 5(2) of

Article VIII of the Constitution with prayer for temporary

restraining order filed by Raul R. Lee against the Commission on

Elections (COMELEC) and private respondent, to annul the en

banc Resolution of the COMELEC, which dismissed his petition

docketed as SPC Case No. 92-273. The said petition sought toannul the proclamation of private respondent as Governor-elect

of the Province of Sorsogon.

Petitioner was the official candidate of the Laban ng

Demokratikong Pilipino (LDP) for the position of governor of the

Province of Sorsogon in the May 1992 elections. Private

respondent was the official candidate of the Lakas-National Union

of Christian Democrats (Lakas-NUCD) for the same position.

Private respondent was proclaimed winner on May 22, 1992.

On June 1, petitioner filed a petition with the COMELEC to annul

the proclamation of private respondent as Governor-elect of the

Province of Sorsogon on the grounds: (1) that the proceedings

and composition of the Provincial Board of Canvassers were not inaccordance with law; (2) that private respondent is an alien,

whose grant of Philippine citizenship is being questioned by the

State in G.R. No. 104654; and (3) that private respondent is not a

duly registered voter. Petitioner further prayed that the votes

case in favor of private respondent be considered as stray votes,

and that he, on the basis of the remaining valid votes cast, be

proclaimed winner.

On June 10, the COMELEC issued the questioned en banc

resolution which dismissed the petition for having been filed out

of time, citing Section 19 of R.A. No. 7166. Said section provides

that the period to appeal a ruling of the board of canvassers on

questions affecting its composition or proceedings was three

days.

In this petition, petitioner argues that the COMELEC acted withgrave abuse of discretion when it ignored the fundamental issue

of private respondents disqualification in the guise of

technicality.

Petitioner claims that the inclusion of private respondents name

in the list of registered voters in Sta. Magdalena, Sorsogon was

invalid because at the time he registered as a voter in 1987, he

was as American citizen.

Petitioner further claims that the grant of Filipino citizenship to

private respondent is not yet conclusive because the case is still

on appeal before us.

Petitioner prays for: (1) the annulment of private respondents

proclamation as Governor of the Province of Sorsogon; (2) the

deletion of private respondents namefrom the list of candidates

for the position of governor; (3) the proclamation of the governor-

elect based on the remaining votes, after the exclusion of the

votes for private respondent; (4) the issuance of a temporary

restraining order to enjoin private respondent from taking his

oath and assuming office; and (5) the issuance of a writ of

mandamus to compel the COMELEC to resolve the pending

disqualification case docketed as SPA Case No. 92-016, against

private respondent.

G.R. No. 105735

This is a petition for mandamus under Rule 65 of the Revised

Rules of Court in relation to Section 5(2) of Article VIII of the

Constitution, with prayer for temporary restraining order. The

parties herein are identical with the parties in G.R. No. 105715.

In substance, petitioner prays for the COMELECs immediate

resolution of SPA Case No. 92-016, which is a petition for the

cancellation of private respondents certificate of candidacy filed

on March 23, 1992 by Quiterio H. Hermo, the intervenor in G.R.

No. 104654 (Rollo, p. 18).

The petition for cancellation alleged: (1) that private respondent

is an American citizen, and therefore ineligible to run as candidate

for the position of governor of the Province of Sorsogon; (2) that

the trial courts decision

re-admitting private respondent as a Filipino citizen was fraught

with legal infirmities rendering it null and void; (3) that assuming

the decision to be valid, private respondents oath of allegiance,

which was taken on the same day the questioned decision was

promulgated, violated Republic Act No. 530, which provides for atwo-year waiting period before the oath of allegiance can be

taken by the applicant; and (4) that the hearing of the petition on

February 27, 1992, was held less than four months from the date

of the last publication of the order and petition. The petition

prayed for the cancellation of private respondents certificate of

candidacy and the deletion of his name from the list of registered

voters in Sta. Magdalena, Sorsogon.

In his answer to the petition for cancellation, private respondent

denied the allegations therein and averred: (1) that Quiterio H.

Hermo, not being a candidate for the same office for which

private respondent was aspiring, had no standing to file the

petition; (2) that the decision re-admitting him to Philippine

citizenship was presumed to be valid; and (3) that no case had

been filed to exclude his name as a registered voter.

Raul R. Lee intervened in the petition for cancellation of private

respondents certificate of candidacy (Rollo, p. 37.).

On May 13, 1992, said intervenor urged the COMELEC to decide

the petition for cancellation, citing Section 78 of the Omnibus

Election Code, which provides that all petitions on matters

involving the cancellation of a certificate of candidacy must be

decided "not later than fifteen days before election," and the case

of Alonto v. Commission on Election, 22 SCRA 878 (1968), which

ruled that all pre-proclamation controversies should be summarily

decided (Rollo,

p. 50).

The COMELEC concedes that private respondent has not yet

reacquired his Filipino citizenship because the decision granting

him the same is not yet final and executory (Rollo, p. 63).

However, it submits that the issue of disqualification of a

candidate is not among the grounds allowed in a

pre-proclamation controversy, like SPC Case No. 92-273.

Moreover, the said petition was filed out of time.

The COMELEC contends that the preparation for the elections

occupied much of its time, thus its failure to immediately resolve

SPA Case No. 92-016. It argues that under Section 5 of Rule 25 of


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the COMELEC Rules of Procedure, it is excused from deciding a

disqualification case within the period provided by law for reasons

beyond its control. It also assumed that the same action was

subsequently abandoned by petitioner when he filed before it a

petition for quo warranto docketed as EPC No. 92-35. The quo

warranto proceedings sought private respondents

disqualification because of his American citizenship.

II

G.R. No. 104654

We shall first resolve the issue concerning private respondents

citizenship.

In his comment to the States appeal of the decision granting him

Philippine citizenship in G.R. No. 104654, private respondent

alleges that the precarious political atmosphere in the country

during Martial Law compelled him to seek political asylum in the

United States, and eventually to renounce his Philippine

citizenship.

He claims that his petition for naturalization was his only available

remedy for his reacquisition of Philippine citizenship. He tried toreacquire his Philippine citizenship through repatriation and direct

act of Congress. However, he was later informed that repatriation

proceedings were limited to army deserters or Filipino women

who had lost their citizenship by reason of their marriage to

foreigners (Rollo, pp. 49-50). His request to Congress for

sponsorship of a bill allowing him to reacquire his Philippine

citizenship failed to materialize, notwithstanding the

endorsement of several members of the House of Representatives

in his favor (Rollo, p. 51). He attributed this to the maneuvers of

his political rivals.

He also claims that the re-scheduling of the hearing of the petition

to an earlier date, without publication, was made without

objection from the Office of the Solicitor General. He makes

mention that on the date of the hearing, the court was jam-

packed.

It is private respondents posture that there was substantial

compliance with the law and that the public was well-informed of

his petition for naturalization due to the publicity given by the

media.

Anent the issue of the mandatory two-year waiting period prior to

the taking of the oath of allegiance, private respondent theorizes

that the rationale of the law imposing the waiting period is to

grant the public an opportunity to investigate the background of

the applicant and to oppose the grant of Philippine citizenship if

there is basis to do so. In his case, private respondent alleges that

such requirement may be dispensed with, claiming that his life,

both private and public, was well-known. Private respondent cites

his achievement as a freedom fighter and a former Governor of

the Province of Sorsogon for six terms.

The appeal of the Solicitor General in behalf of the Republic of the

Philippines is meritorious. The naturalization proceeding in SP

Proc. No. 91-58645 was full of procedural flaws, rendering the

decision an anomaly.

Private respondent, having opted to reacquire Philippine

citizenship thru naturalization under the Revised Naturalization

Law, is duty bound to follow the procedure prescribed by the said

law. It is not for an applicant to decide for himself and to select

the requirements which he believes, even sincerely, are applicable

to his case and discard those which be believes are inconvenient

or merely of nuisance value. The law does not distinguish

between an applicant who was formerly a Filipino citizen and one

who was never such a citizen. It does not provide a special

procedure for the reacquisition of Philippine citizenship by former

Filipino citizens akin to the repatriation of a woman who had lost

her Philippine citizenship by reason of her marriage to an alien.

The trial court never acquired jurisdiction to hear the petition for

naturalization of private respondent. The proceedings conducted,

the decision rendered and the oath of allegiance taken therein,

are null and void for failure to comply with the publication and

posting requirements under the Revised Naturalization Law.

Under Section 9 of the said law, both the petition for

naturalization and the order setting it for hearing must be

published once a week for three consecutive weeks in the Official

Gazette and a newspaper of general circulation respondent cites

his achievements as a freedom fighter and a former Governor of

the Province of Sorsogon for six terms.

The appeal of the Solicitor General in behalf of the Republic of the

Philippines is meritorious. The naturalization proceeding in SP

Proc. No. 91-58645 was full of procedural flaws, rendering the

decision an anomaly.

Private respondent, having opted to reacquire Philippine

citizenship thru naturalization under the Revised Naturalization

Law, is duty bound to follow the procedure prescribed by the said

law. It is not for an applicant to decide for himself and to select

the requirements which he believes, even sincerely, are applicable

to his case and discard those which he believes are inconvenient

or merely of nuisance value. The law does not distinguish

between an applicant who was formerly a Filipino citizen and one

who was never such a citizen. It does not provide a special

procedure for the reacquisition of Philippine citizenship by former

Filipino citizens akin to the repatriation of a woman who had losther Philippine citizenship by reason of her marriage to an alien.

The trial court never acquired jurisdiction to hear the petition for

naturalization of private respondent. The proceedings conducted,

the decision rendered and the oath of allegiance taken therein,

are null and void for failure to comply with the publication and

posting requirements under the Revised Naturalization Law.

Under Section 9 of the said law, both the petition for

naturalization and the order setting it for hearing must be

published once a week for three consecutive weeks in the Official

Gazette and a newspaper of general circulation. Compliance

therewith is jurisdictional (Po Yi Bo v. Republic, 205 SCRA 400

[1992]). Moreover, the publication and posting of the petition and

the order must be in its full test for the court to acquire

jurisdiction (Sy v. Republic, 55 SCRA 724 [1974]).

The petition for naturalization lacks several allegations required

by Sections 2 and 6 of the Revised Naturalization Law, particularly:

(1) that the petitioner is of good moral character; (2) that he

resided continuously in the Philippines for at least ten years; (3)

that he is able to speak and write English and any one of the

principal dialects; (4) that he will reside continuously in the

Philippines from the date of the filing of the petition until his

admission to Philippine citizenship; and (5) that he has filed a


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declaration of intention or if he is excused from said filing, the

justification therefor.

The absence of such allegations is fatal to the petition (Po Yi Bi v.

Republic, 205 SCRA 400 [1992]).

Likewise, the petition is not supported by the affidavit of at least

two credible persons who vouched for the good moral character

of private respondent as required by Section 7 of the RevisedNaturalization Law. Private respondent also failed to attach a copy

of his certificate of arrival to the petition as required by Section 7

of the said law.

The proceedings of the trial court was marred by the following

irregularities: (1) the hearing of the petition was set ahead of the

scheduled date of hearing, without a publication of the order

advancing the date of hearing, and the petition itself; (2) the

petition was heard within six months from the last publication of

the petition; (3) petitioner was allowed to take his oath of

allegiance before the finality of the judgment; and (4) petitioner

took his oath of allegiance without observing the two-year waiting

period.

A decision in a petition for naturalization becomes final only after30 days from its promulgation and, insofar as the Solicitor General

is concerned, that period is counted from the date of his receipt

of the copy of the decision (Republic v. Court of First Instance of

Albay, 60 SCRA 195 [1974]).

Section 1 of R.A. No. 530 provides that no decision granting

citizenship in naturalization proceedings shall be executory until

after two years from its promulgation in order to be able to

observe if: (1) the applicant has left the country; (2) the applicant

has dedicated himself continuously to a lawful calling or

profession; (3) the applicant has not been convicted of any

offense or violation of government promulgated rules; and (4) the

applicant has committed any act prejudicial to the interest of the

country or contrary to government announced policies.

Even discounting the provisions of R.A. No. 530, the courts cannotimplement any decision granting the petition for naturalization

before its finality.

G.R. No. 105715

In view of the finding in G.R. No. 104654 that private respondent

is not yet a Filipino citizen, we have to grant the petition in G.R.

No. 105715 after treating it as a petition for certiorari instead of a

petition for mandamus. Said petition assails the en banc

resolution of the COMELEC, dismissing SPC Case No. 92-273,

which in turn is a petition to annul private respondents

proclamation on three grounds: 1) that the proceedings and

composition of the Provincial Board of Canvassers were not in

accordance with law; 2) that private respondent is an alien, whose

grant of Filipino citizenship is being questioned by the State in

G.R. No. 104654; and 3) that private respondent is not a duly

registered voter. The COMELEC dismissed the petition on the

grounds that it was filed outside the three-day period for

questioning the proceedings

and composition of the Provincial Board of Canvassers under

Section 19 of R.A. No. 7166.

The COMELEC failed to resolve the more serious issue the

disqualification of private respondent to be proclaimed Governor

on grounds of lack of Filipino citizenship. In this aspect, the

petition is one for quo warranto. In Frivaldo v. Commission on

Elections, 174 SCRA 245 (1989), we held that a petition for quo

warranto, questioning the respondents title and seeking to

prevent him from holding office as Governor for alienage, is not

covered by the ten-day period for appeal prescribed in Section

253 of the Omnibus Election Code. Furthermore, we explained

that "qualifications for public office are continuing requirements

and must be possessed not only at the time of appointment or

election or assumption of office but during the officers entire

tenure; once any of the required qualification is lost, his title may

be seasonably challenged."

Petitioners argument, that to unseat him will frustrate the will of

the electorate, is untenable. Both the Local Government Code and

the Constitution require that only Filipino citizens can run and be

elected to public office. We can only surmise that the electorate,

at the time they voted for private respondent, was of the

mistaken belief that he had legally reacquired Filipino citizenship.

Petitioner in G.R. No. 105715, prays that the votes cast in favor of

private respondent be considered stray and that he, being the

candidate obtaining the second highest number of votes, be

declared winner. In Labo, Jr. v. COMELEC, 176 SCRA 1 (1989), we

ruled that where the candidate who obtained the highest numberof votes is later declared to be disqualified to hold the office to

which he was elected, the candidate who garnered the second

highest number of votes is not entitled to be declared winner (See

also Geronimo v. Ramos, 136 SCRA 435 [1985]; Topacio v.

Paredes, 23 Phil. 238 [1912]).

G.R. No. 105735

In view of the discussions of G.R. No. 104654 and G.R. No.

105715, we find the petition in G.R. No. 105735 moot and

academic.

WHEREFORE, the petitions in G.R. No. 104654 and G.R. No.

105715 are both GRANTED while the petition in G.R. No. 105735

is DISMISSED. Private respondent is declared NOT a citizen of the

Philippines and therefore DISQUALIFIED from continuing to serveas GOVERNOR of the Province of Sorsogon. He is ordered to

VACATE his office and to SURRENDER the same to the Vice-

Governor of the Province of Sorsogon once this decision becomes

final and executory. No pronouncement as to costs.

Loss of Citizenship: By naturalization in a foreign country

G.R. No. 87193 June 23, 1989

JUAN GALLANOSA FRIVALDO, petitioner,

vs.

COMMISSION ON ELECTIONS AND THE LEAGUE OF

MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED

BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents.

J.L. Misa & Associates for petitioner.

Lladoc, Huab & Associates for private respondent.

CRUZ, J.:

Petitioner Juan G. Frivaldo was proclaimed governor-elect of the

province of Sorsogon on January 22, 1988, and assumed office in

due time. On October 27, 1988, the League of Municipalities,

Sorsogon Chapter (hereafter, League), represented by its


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President, Salvador Estuye, who was also suing in his personal

capacity, filed with the Commission on Elections a petition for the

annulment of Frivaldo; election and proclamation on the ground

that he was not a Filipino citizen, having been naturalized in the

United States on January 20, 1983. In his answer dated May 22,

1988, Frivaldo admitted that he was naturalized in the United

States as alleged but pleaded the special and affirmative defenses

that he had sought American citizenship only to protect himself

against President Marcos. His naturalization, he said, was "merelyforced upon himself as a means of survival against the unrelenting

persecution by the Martial Law Dictator's agents abroad." He

added that he had returned to the Philippines after the EDSA

revolution to help in the restoration of democracy. He also argued

that the challenge to his title should be dismissed, being in reality

a quo warranto petition that should have been filed within ten

days from his proclamation, in accordance with Section 253 of the

Omnibus Election Code. The League, moreover, was not a proper

party because it was not a voter and so could not sue under the

said section.

Frivaldo moved for a preliminary hearing on his affirmative

defenses but the respondent Commission on Elections decided

instead by its Order of January 20, 1988, to set the case for

hearing on the merits. His motion for reconsideration was deniedin another Order dated February 21, 1988. He then came to this

Court in a petition for certiorari and prohibition to ask that the

said orders be set aside on the ground that they had been

rendered with grave abuse of discretion. Pending resolution of

the petition, we issued a temporary order against the hearing on

the merits scheduled by the COMELEC and at the same time

required comments from the respondents.

In their Comment, the private respondents reiterated their

assertion that Frivaldo was a naturalized American citizen and had

not reacquired Philippine citizenship on the day of the election on

January 18, 1988. He was therefore not qualified to run for and be

elected governor. They also argued that their petition in the

Commission on Elections was not really for quo warranto under

Section 253 of the Omnibus Election Code. The ultimate purpose

was to prevent Frivaldo from continuing as governor, hiscandidacy and election being null and void ab initio because of his

alienage. Even if their petition were to be considered as one for

quo warranto, it could not have been filed within ten days from

Frivaldo's proclamation because it was only in September 1988

that they received proof of his naturalization. And assuming that

the League itself was not a proper party, Estuye himself, who was

suing not only for the League but also in his personal capacity,

could nevertheless institute the suit by himself alone.

Speaking for the public respondent, the Solicitor General

supported the contention that Frivaldo was not a citizen of the

Philippines and had not repatriated himself after his

naturalization as an American citizen. As an alien, he was

disqualified from public office in the Philippines. His election did

not cure this defect because the electorate of Sorsogon could not

amend the Constitution, the Local Government Code, and the

Omnibus Election Code. He also joined in the private respondent's

argument that Section 253 of the Omnibus Election Code was not

applicable because what the League and Estuye were seeking was

not only the annulment of the proclamation and election of

Frivaldo. He agreed that they were also asking for the termination

of Frivaldo's incumbency as governor of Sorsogon on the ground

that he was not a Filipino.

In his Reply, Frivaldo insisted that he was a citizen of the

Philippines because his naturalization as an American citizen was

not "impressed with voluntariness." In support he cited the

Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a

German national's naturalization in Liechtenstein was not

recognized because it had been obtained for reasons of

convenience only. He said he could not have repatriated himself

before the 1988 elections because the Special Committee on

Naturalization created for the purpose by LOI No. 27C had not yet

been organized then. His oath in his certificate of candidacy that

he was a natural-born citizen should be a sufficient act ofrepatriation. Additionally, his active participation in the 1987

congressional elections had divested him of American citizenship

under the laws of the United States, thus restoring his Philippine

citizenship. He ended by reiterating his prayer for the rejection of

the move to disqualify him for being time-barred under Section

253 of the Omnibus Election Code.

Considering the importance and urgency of the question herein

raised, the Court has decided to resolve it directly instead of

allowing the normal circuitous route that will after all eventually

end with this Court, albeit only after a, long delay. We cannot

permit this delay. Such delay will be inimical to the public interest

and the vital principles of public office to be here applied.

It is true that the Commission on Elections has the primaryjurisdiction over this question as the sole judge of all contests

relating to the election, returns and qualifications of the members

of the Congress and elective provincial and city officials. However,

the decision on Frivaldo's citizenship has already been made by

the COMELEC through its counsel, the Solicitor General, who

categorically claims that Frivaldo is a foreigner. We assume this

stance was taken by him after consultation with the public

respondent and with its approval. It therefore represents the

decision of the COMELEC itself that we may now review.

Exercising our discretion to interpret the Rules of Court and the

Constitution, we shall consider the present petition as having

been filed in accordance with Article IX-A Section 7, of the

Constitution, to challenge the aforementioned Orders of the

COMELEC.

The basic question we must resolve is whether or not Juan G.Frivaldo was a citizen of the Philippines at the time of his election

on January 18, 1988, as provincial governor of Sorsogon. All the

other issues raised in this petition are merely secondary to this

basic question.

The reason for this inquiry is the provision in Article XI, Section 9,

of the Constitution that all public officials and employees owe the

State and the Constitution "allegiance at all times" and the

specific requirement in Section 42 of the Local Government Code

that a candidate for local elective office must be inter alia a citizen

of the Philippines and a qualified voter of the constituency where

he is running. Section 117 of the Omnibus Election Code provides

that a qualified voter must be, among other qualifications, a

citizen of the Philippines, this being an indispensable requirement

for suffrage under Article V, Section 1, of the Constitution.

In the certificate of candidacy he filed on November 19, 1987,

Frivaldo described himself as a "natural-born" citizen of the

Philippines, omitting mention of any subsequent loss of such

status. The evidence shows, however, that he was naturalized as a

citizen of the United States in 1983 per the following certification

from the United States District Court, Northern District of

California, as duly authenticated by Vice Consul Amado P. Cortez

of the Philippine Consulate General in San Francisco, California,

U.S.A.


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OFFICE OF THE CLERK

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

September 23, 1988

TO WHOM IT MAY CONCERN:

Our records show that JUAN GALLANOSA FRIVALDO, born onOctober 20, 1915, was naturalized in this Court on January 20,

1983, and issued Certificate of Naturalization No. 11690178.

Petition No. 280225.

Alien Registration No. A23 079 270.

Very truly yours,

WILLIAM L. WHITTAKER

Clerk

by:

(Sgd.)

ARACELI V. BAREN

Deputy Clerk

This evidence is not denied by the petitioner. In fact, he expressly

admitted it in his answer. Nevertheless, as earlier noted, he claims

it was "forced" on him as a measure of protection from the

persecution of the Marcos government through his agents in the

United States.

The Court sees no reason not to believe that the petitioner was

one of the enemies of the Marcos dictatorship. Even so, it cannot

agree that as a consequence thereof he was coerced into

embracing American citizenship. His feeble suggestion that hisnaturalization was not the result of his own free and voluntary

choice is totally unacceptable and must be rejected outright.

There were many other Filipinos in the United States similarly

situated as Frivaldo, and some of them subject to greater risk than

he, who did not find it necessary nor do they claim to have

been coerced to abandon their cherished status as Filipinos.

They did not take the oath of allegiance to the United States,

unlike the petitioner who solemnly declared "on oath, that I

absolutely and entirely renounce and abjure all allegiance and

fidelity to any foreign prince, potentate, state or sovereignty of

whom or which I have heretofore been a subject or citizen,"

meaning in his case the Republic of the Philippines. The martyred

Ninoy Aquino heads the impressive list of those Filipinos in exile

who, unlike the petitioner, held fast to their Philippine citizenshipdespite the perils of their resistance to the Marcos regime.

The Nottebohm case cited by the petitioner invoked the

international law principle of effective nationality which is clearly

not applicable to the case at bar. This principle is expressed in

Article 5 of the Hague Convention of 1930 on the Conflict of

Nationality Laws as follows:

Art. 5. Within a third State a person having more than one

nationality shall be treated as if he had only one. Without

prejudice to the application of its law in matters of personal status

and of any convention in force, a third State shall, of the

nationalities which any such person possesses, recognize

exclusively in its territory either the nationality of the country in

which he is habitually and principally resident or the nationality of

the country with which in the circumstances he appears to be in

fact most closely connected.

Nottebohm was a German by birth but a resident of Guatemalafor 34 years when he applied for and acquired naturalization in

Liechtenstein one month before the outbreak of World War II.

Many members of his family and his business interests were in

Germany. In 1943, Guatemala, which had declared war on

Germany, arrested Nottebohm and confiscated all his properties

on the ground that he was a German national. Liechtenstein

thereupon filed suit on his behalf, as its citizen, against

Guatemala. The International Court of Justice held Nottebohm to

be still a national of Germany, with which he was more closely

connected than with Liechtenstein.

That case is not relevant to the petition before us because it dealt

with a conflict between the nationality laws of two states as

decided by a third state. No third state is involved in the case at

bar; in fact, even the United States is not actively claiming Frivaldoas its national. The sole question presented to us is whether or

not Frivaldo is a citizen of the Philippines under our own laws,

regardless of other nationality laws. We can decide this question

alone as sovereign of our own territory, conformably to Section 1

of the said Convention providing that "it is for each State to

determine under its law who are its nationals."

It is also worth noting that Nottebohm was invoking his

naturalization in Liechtenstein whereas in the present case

Frivaldo is rejecting his naturalization in the United States.

If he really wanted to disavow his American citizenship and

reacquire Philippine citizenship, the petitioner should have done

so in accordance with the laws of our country. Under CA No. 63 as

amended by CA No. 473 and PD No. 725, Philippine citizenship

may be reacquired by direct act of Congress, by naturalization, orby repatriation.

While Frivaldo does not invoke either of the first two methods, he

nevertheless claims he has reacquired Philippine citizenship by

virtue of a valid repatriation. He claims that by actively

participating in the elections in this country, he automatically

forfeited American citizenship under the laws of the United

States. Such laws do not concern us here. The alleged forfeiture is

between him and the United States as his adopted country. It

should be obvious that even if he did lose his naturalized

American citizenship, such forfeiture did not and could not have

the effect of automatically restoring his citizenship in the

Philippines that he had earlier renounced. At best, what might

have happened as a result of the loss of his naturalized citizenship

was that he became a stateless individual.

Frivaldo's contention that he could not have repatriated himself

under LOI 270 because the Special Committee provided for

therein had not yet been constituted seems to suggest that the

lack of that body rendered his repatriation unnecessary. That is

far-fetched if not specious Such a conclusion would open the

floodgates, as it were. It would allow all Filipinos who have

renounced this country to claim back their abandoned citizenship

without formally rejecting their adoptedstate and reaffirming

their allegiance to the Philippines.


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It does not appear that Frivaldo has taken these categorical acts.

He contends that by simply filing his certificate of candidacy he

had, without more, already effectively recovered Philippine

citizenship. But that is hardly the formal declaration the law

envisions surely, Philippine citizenship previously disowned is

not that cheaply recovered. If the Special Committee had not yet

been convened, what that meant simply was that the petitioner

had to wait until this was done, or seek naturalization by

legislative or judicial proceedings.

The argument that the petition filed with the Commission on

Elections should be dismissed for tardiness is not well-taken. The

herein private respondents are seeking to prevent Frivaldo from

continuing to discharge his office of governor because he is

disqualified from doing so as a foreigner. Qualifications for public

office are continuing requirements and must be possessed not

only at the time of appointment or election or assumption of

office but during the officer's entire tenure. Once any of the

required qualifications is lost, his title may be seasonably

challenged. If, say, a female legislator were to marry a foreigner

during her term and by her act or omission acquires his

nationality, would she have a right to remain in office simplybecause the challenge to her title may no longer be made within

ten days from her proclamation? It has been established, and not

even denied, that the evidence of Frivaldo's naturalization was

discovered only eight months after his proclamation and his title

was challenged shortly thereafter.

This Court will not permit the anomaly of a person sitting as

provincial governor in this country while owing exclusive

allegiance to another country. The fact that he was elected by the

people of Sorsogon does not excuse this patent violation of the

salutary rule limiting public office and employment only to the

citizens of this country. The qualifications prescribed for elective

office cannot be erased by the electorate alone. The will of the

people as expressed through the ballot cannot cure the vice of

ineligibility, especially if they mistakenly believed, as in this case,

that the candidate was qualified. Obviously, this rule requiresstrict application when the deficiency is lack of citizenship. If a

person seeks to serve in the Republic of the Philippines, he must

owe his total loyalty to this country only, abjuring and renouncing

all fealty and fidelity to any other state.

It is true as the petitioner points out that the status of the natural-

born citizen is favored by the Constitution and our laws, which is

all the more reason why it should be treasured like a pearl of

great price. But once it is surrendered and renounced, the gift is

gone and cannot be lightly restored. This country of ours, for all

its difficulties and limitations, is like a jealous and possessive

mother. Once rejected, it is not quick to welcome back with eager

arms its prodigal if repentant children. The returning renegade

must show, by an express and unequivocal act, the renewal of his

loyalty and love.

WHEREFORE, the petition is DISMISSED and petitioner JUAN G.

FRIVALDO is hereby declared not a citizen of the Philippines and

therefore DISQUALIFIED from serving as Governor of the Province

of Sorsogon. Accordingly, he is ordered to vacate his office and

surrender the same to the duly elected Vice-Governor of the said

province once this decision becomes final and executory. The

temporary restraining order dated March 9, 1989, is LIFTED.

SO ORDERED

Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano,

Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado,

JJ., concur.

Sarmiento, J., took no part.

Cortes J., concurs in the result.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the pragmatic approach taken by the Court. I agree

that when the higher interests of the State are involved, the

public good should supersede any procedural infinities which may

affect a petition filed with the Commission on Elections. I fail to

see how the Court could allow a person who by his own

admissions is indubitably an alien to continue holding the office of

Governor of any province.

It is an established rule of long standing that the period fixed by

law for the filing of a protest whether quo warranto or election

contest is mandatory and jurisdictional. 1

As a rule, the quo warranto petition seeking to annul the

petitioner's election and proclamation should have been filed

with ten days after the proclamation of election results. 2 The

purpose of the law in not allowing the filing of protests beyond

the period fixed by law is to have a certain and definite time

within which petitions against the results of an election should be

filed and to provide summary proceedings for the settlement of

such disputes. 3 The Rules of Court allow the Republic of the

Philippines to file quo warranto proceedings against any public

officer who performs an act which works a forfeiture of his office.

4 However, where the Solicitor General or the President feel that

there are no good reasons to commence quo warrantoproceedings, 5 the Court should allow a person like respondent

Estuye or his league to bring the action.

I must emphasize, however, that my concurrence is limited to a

clear case of an alien holding an elective public office. And

perhaps in a clear case of disloyalty to the Republic of the

Philippines. 6 Where the disqualification is based on age,

residence, or any of the many grounds for ineligibility, 7 I believe

that the ten-day period should be applied strictly.

The pragmatic approach is also shown by the fact that the Court

found it inexpedient to wait for the final decision of COMELEC.

This step is most unusual but considering the total lack of any

serious grounds for the petitioner's claim of having regained his

Philippine citizenship, I am constrained to concur in the procedure

pro hac vice.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the pragmatic approach taken by the Court. I agree

that when the higher interests of the State are involved, the

public good should supersede any procedural infinities which may

affect a petition filed with the Commission on Elections. I fail to

see how the Court could allow a person who by his own


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admissions is indubitably an alien to continue holding the offi ce of

Governor of any province.

It is an established rule of long standing that the period fixed by

law for the filing of a protest whether quo warranto or election

contest is mandatory and jurisdictional. 1

As a rule, the quo warranto petition seeking to annul the

petitioner's election and proclamation should have been filedwith ten days after the proclamation of election results. 2 The

purpose of the law in not allowing the filing of protests beyond

the period fixed by law is to have a certain and definite time

within which petitions against the results of an election should be

filed and to provide summary proceedings for the settlement of

such disputes. 3 The Rules of Court allow the Republic of the

Philippines to file quo warranto proceedings against any public

officer who performs an act which works a forfeiture of his office.

4 However, where the Solicitor General or the President feel that

there are no good reasons to commence quo warranto

proceedings, 5 the Court should allow a person like respondent

Estuye or his league to bring the action.

I must emphasize, however, that my concurrence is limited to a

clear case of an alien holding an elective public office. Andperhaps in a clear case of disloyalty to the Republic of the

Philippines. 6 Where the disqualification is based on age,

residence, or any of the many grounds for ineligibility, 7 I believe

that the ten-day period should be applied strictly.

The pragmatic approach is also shown by the fact that the Court

found it inexpedient to wait for the final decision of COMELEC.

This step is most unusual but considering the total lack of any

serious grounds for the petitioner's claim of having regained his

Philippine citizenship, I am constrained to concur in the procedure

pro hac vice.

FRIVALDO VS COMELEC

GR # 87193, June 23, 1989 (Constitutional LawRecovery of

Citizenship)

FACTS: Private respondent questioned petitioner governorscandidacy and election for being null and void ab initio due to his

alienage. Petitioner governor contends that his active

participation in the elections had divested him of American

citizenship under the laws of the US, and restored him of his

Philippine citizenship.

ISSUE:Whether or not the filing of a certificate of candidacy by a

naturalized American effectively recovers his Philippine

citizenship.

HELD:No, Philippine citizenship previously disowned is not that

cheaply recovered. Citizenship once lost may be reacquired either

by naturalization or repatriation or by direct grant by law (CA 63)

which was not invoked by the petitioner.

LABO vs. COMELEC

176 SCRA 1

Facts:Petitioner Ramon Labo, elected mayor of Baguio City was

questioned on his citizenship. He was married in the Philippines to

an Australian citizen. The marriage was declared void in the

Australian Federal Court in Sydney on the ground that the

marriage had been bigamous. According to Australian records,

Labo is still an Australian citizen.

Issue: Whether or not Petitioner Labo is a citizen of the

Philippines.

Held: The petitioners contention that his marriage to an

Australian national in 1976 did not automatically divest him of

Philippine citizenship is irrelevant. There is no claim or finding that

he automatically ceased to be a Filipino because of that marriage.

He became a citizen of Australia because he was naturalized as

such through a formal and positive process, simplified in his casebecause he was married to an Australian citizen. As a condition

for such naturalization, he formally took the Oath of Allegiance

and/or made the Affirmation of Allegiance, renouncing all other

allegiance. It does not appear in the record, nor does the

petitioner claim, that he has reacquired Philippine citizenship.

Loss of Citizenship: By express renunciation or expatriation

IN RE PETITION FOR HABEAS CORPUS OF WILLIE YU, WILLIE YU,

PETITIONER, VS. MIRIAM DEFENSOR-SANTIAGO, BIENVENIDO P.

ALANO, JR., MAJOR PABALAN, DELEO HERNANDEZ, BLODDY

HERNANDEZ, BENNY REYES AND JUN ESPIRITU SANTO,

RESPONDENTS.

EN BANC

[ G.R. NO. 83882, JANUARY 24, 1989 ]

Facts:

Willie Yu (Petitioner) is a naturalized Filipino citizen. Petitioner

was holder of a Portuguese passport and despite his

naturalization on February 10, 1978 applied for a renewal of his

travel document with the Portuguese Embassy in Tokyo and was

issued same on July 21, 1981. Albeit, petitioner has renounced his

former allegiance, he continues to revert to the former whenever

convenient i.e. in business dealings and transactions local and

overseas. Herein respondent has detained petitioner for eventual

deportation alleging that the latter is not a citizen by virtue of his

acts & evidences adduced. Petitioner filed a petition for habeas

corpus seeking his release from detention.

Issue:

Whether the Bureau of Immigration & Deportation (BID) was

justified in detaining petitioner and processing him for

deportation.

Decision:

The court a quo, In Board of Immigration Commissioners vs. Go

Gallano, enunciated that express renunciation was held to mean a

renunciation that is made known distinctly and explicitly and not

left to inference or implication. Petitioner after having renounced

Portuguese citizenship upon naturalization, resumed or

reacquired his prior status as a Portuguese citizen by applying for

a renewal of his Portuguese passport and represented himself as

such in official documents even after becoming a naturalized

Filipino citizen. Such acts is grossly inconsistent with his

maintenance of Philippine Citizenship.

Philippine Citizensh

concepts of state in relation to different cases

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