Chapter VIII THE NATIONALITY THEORY

THE NATIONALITY THEORY: It is the theory by virtue of which the status and capacity of an individual are generally governed by the law of his nationality. NATIONALITY AND CITIZENSHIP: Nationality membership in an ethnic, social, racial, and cultural group. - Refers to membership in a political community, one that is personal and more or less permanent, not temporary. Citizenship membership in a political society. The term national includes not only citizenship but all those owing allegiance to a particular state, like subjects, or the inhabitants of colonies. - A citizen is one who owes allegiance to and is entitled to the protection of the State. However, in this treatise on Philippine Conflict of Laws, we shall consider both as SYNONYMOUS terms. DEFECTS OF THE NATIONALITY THEORY: The nationality theory poses certain defects: 1. Change of nationality or citizenship is hard to effectuate;

2. Some individuals are stateless; 3. There are persons who possessed dual or multiple nationalities; and 4. It is not always desirable to apply to aliens their national law. THREE KINDS OF CITIZENSHIP OF THE PHILIPPINES: a) Natural-born citizens those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship (Art. IV, Sec. 2 1987 Phil.

Const.) b) Naturalized citizens not

natural born citizens; but through judicial proceedings. c) Citizens by election by virtue of certain legal provisions, by choosing Philippine citizenship at the age of 21 or within a reasonable time thereafter. TWO THEORIES ON WHETHER PLACE OR ANCESTRY DETERMINES CITIZENSHIP: 1) Jus Soli Citizenship follows the place of Birth (not applied in the Phil.); and 2) Jus Sanguinis Citizenship follows the citizenship of his parents (applied in the Phil.) THE PROBLEM OF DUAL AND MULTIPLE NATIONALITIES: It can hardly arise because citizenship is a matter to be exclusively

determined by a countrys own law. Philippine law are only allowed to determine who are Filipino citizens and who are not. General Principle It is the State that has the authority, based on its own municipal law, to determine who are its nationals or citizens. - Article 2 of the Hague Convention also states that questions as to whether a person possesses the nationality of a particular state

allegiance to the countries of their origin. THE PROBLEM OF STATELESS INDIVIDUALS: a) How statelessness is brought about: - He may have been deprived of his citizenship for any cause; - He may have renounced his nationality by certain acts, express or implied; - He may have voluntarily asked for a release from his original state; and

shall be determined in accordance with the law of that state.

Problem of dual or multiple citizenship might arise in various ways:

(Statelessness - It refers to an individual who has been stripped of his nationality by his own former government without having an opportunity to acquire another.)
- He may have been born in a country which recognizes only the principle of jus sanguinis - or citizenship by blood, of parents whose law recognizes only the principle of jus soli - citizenship by birth in a certain place. Thus he is neither a citizen of the country of his parents. b) Personal law of stateless individual: The Hague Conference of 1928 on International Private Law suggested that personal law of stateless individuals shall be the law of the domicile or the law of the place of temporary residence.

a) Through a naturalized citizens failure to comply with certain legal requirements in the country of origin; b) From combined application of Jus Soli and Jus Sanguinis; c) By the Legislative Act of States; and d) By the Voluntary Act of the Individual Concerned.
DUAL ALLEGIANCE OF CITIZENS: -Art. IV Sec. 5 clearly states that dual allegiance of citizens is inimical to the national interest and it shall be dealt with by law. It has no retroactive effect. The provision in the Constitution is concerned not with dual citizenship per se but with naturalized citizens of the Philippines who still maintain their

(What if a stateless person has no domicile? This is an impossible premise

inasmuch as no natural person can ever be without a domicile.

SUCCESSIONAL RIGHTS: Art. 16 of the Civil Code states that the rights to succession of a person are governed by his national law. WHERE A DECLARATION OF PHILIPPINE CITIZENSHIP MAY BE MADE: One instance when a declaration of Philippine citizenship may be made is a petition for injunction (to restrain for instance the alien control officer, acting under orders from an associate commissioner of immigration, from compelling certain people, allegedly Filipinos, to register as aliens). CITIZENSHIP OF A FILIPINO WOMAN WHO MARRIES A FOREIGNER: Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it. (Art. IV, Sec.

ipso facto a Filipino, provided she is not disqualified to be a citizen of the Philippines under Sec. 4 of the same law.

that she is not disqualified to be a Filipino citizen not necessarily in court but even before an agency like the Immigration Commission.
NATURALIZED FILIPINO CITIZENS: In the 1987 Constitution, we have the following provision: (Art. IV, Sec. 3)

Philippine citizenship may be lost or reacquired in the manner provided by law.

NATURALIZATION: It is the process of acquiring the citizenship of another country. In strict sense it is a judicial process, where formalities of the law have to be complied with including a judicial hearing and approval of the petition. In broad sense it is the acquisition of another citizenship by such acts as marriage to a citizen, and the exercise of the option to elect a particular citizenship. MODES OF ACQUIRING PHILIPPINE CITIZENSHIP BY NATURALIZATION:

4, 1987 Constitution).
CITIZENSHIP OF A FOREIGN WOMAN WHO MARRIES A FILIPINO: Under Sec. 15 of the Revised Naturalization Law (Com. Act No. 475), an alien woman marrying a Filipino, native-born or naturalized, becomes

1. Judicial process
by RA 530

2. Legislative process
Philippine citizenship is conferred by a special act of Congress on deserving aliens.

f) Naturalization is a proceeding in rem,

and therefore jurisdiction over the entire world is acquired by publication. QUALIFICATIONS FOR NATURALIZATION: 1) First qualification Age (21 years of age on the date of the hearing of the petition). Minors do not have to file a petition for naturalization if their father is naturalized, they generally also become Filipino Citizens. 2) Second qualification Ten years residence (The residence contemplated is Actual and Substantial residence) this is to observe the conduct of the applicant and to ensure his having imbibed sufficiently the principle and the spirit of our institutions.

3. Administrative process
Naturalization Law of 2000. Committee on Naturalization is created, with the power to approve, deny, or reject applications for naturalization filed with said Committee. ATTRIBUTES OF NATURALIZATION: a) Citizenship is not a right, it is a privilege. Indeed, a highly regarded privilege requiring full and strict compliance with legal requisites. Naturalization being a privilege and not a right, the burden is on the applicant to show clearly that he has complied with every condition that the law imposes. b) The requisite conditions for naturalization are laid down by congress; courts cannot change or modify them. Strict compliance with the requisites of the naturalization law is therefore essential for the acquisition of Philippine citizenship by an alien. c) Only foreigners may be naturalized. d) Just as a state may denationalize its own citizens, so may naturalization be revoked, by the cancellation of the certificate of naturalization. e) Naturalization demands allegiance to our Constitution, Laws, and Government.

However the ten years is reduced to five years in any of the following cases: a) If the applicant has honorably held office under the Government of the Philippines or that of any of the provinces, cities, municipalities, or political subdivisions; b) If he has established a new industry or introduced a useful invention in the Philippines; c) If he is married to a Filipino woman; d) If he had been engaged as a teacher in a public or private school not established for the exclusive instruction of children of persons of a particular nationality for a period of 2 years; and e) If he was born in the Philippines.

So long as there is an intent to return, the residence may still be considered continuous. 3) Third qualification Good morals and
conducts and belief in the principles underlying the Philippine Constitution. Regarding good morals, there is no necessity for a criminal conviction for a crime involving moral turpitude. True such a conviction is required to show a disqualification, but lack of a conviction does not necessarily mean that the petitioner is of good moral character. What constitutes proper and irreproachable conduct must be determined by the standard of morality prevalent in this country, and this in turn, by the religious beliefs and social concepts existing here. 4) Fourth qualification Real estate or occupation (must own real estate in the Philippines worth not less than 5,000 Philippine currency, or must have some lucrative trade, profession, or lawful occupation). 5) Fifth qualification Language requisites (must be able to speak, read and write english or spanish and any one of the principal Philippine languages). 6) Sixth qualification Enrollment of minor children of school age (must have enrolled his minor children of school age in any of the public schools or private schools recognized by the Bureau of Private Schools prior to the hearing of his petition for naturalization as citizen.

DISQUALIFICATIONS FOR NATURALIZATION: Section 4 of the Naturalization Law The following cannot be naturalized as Philippine citizens: 1. Persons opposed to organized government or affiliated with any association or group of persons who upholds and teach doctrines opposing all organized governments; 2. Persons defending or teaching the propriety of violence, personal assault, or assassination for the success and predominance of their ideas; 3. Polygamists or believers in the practice of polygamy; 4. Persons convicted of crime involving moral turpitude; 5. Persons suffering from mental alienation or incurable contagious diseases; 6. Persons who, during the period of their residence in the Philippines have not mingles socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, ideals of the Filipinos; 7. Citizens or subjects of nations with whom the United States and the Philippines are at war; and 8. Citizens or subjects of a foreign country other than the United States, whose laws do not grant Filipinos the right to become naturalized citizens or subject thereof.

STEPS IN NATURALIZATION PROCEEDINGS: a) A declaration of intention to become a Filipino Citizen must first be filed, unless the applicant is exempted from this requirement; b) The petition for naturalization must then be filed; c) After publication in the official gazette, the petition will be heard; d) If the petition is approved, there will be a rehearing 2 years after the promulgation of the judgment awarding naturalization; and e) The taking of the oath of allegiance to support and defend the Constitution and the laws of the Philippines. PROCEDURE FOR FILING OF DECLARATION: 1. For filing of declaration of intention one(1) year prior to the filing of the petition with the Office of the SOLICITOR GENERAL.

C. Widow or minor children of an

alien who has declared his intention to become a citizen of the Philippines & dies before he is actually naturalized. 2. Filing of the petition in the RTC one (1) year after the filing of the declaration of intention. 3. Publication of the intention in the OG or in a newspaper of general circulation once a week for three(3) weeks. 4. Actual residence in the Philippines during the entire the proceedings. 5. Hearing of the petition six(6) months after the publication. 6. Promulgation of the petition. 7. Rehearing after two(2) years. 8. Oath taking & issuance of Certificate of Naturalization.

NOTE: The judicial process takes 3

years to accomplish plus the 10 year residency requirement. So, all in all, it will take 13 years. Cancellation of the Naturalization: 1. If it is shown that the said naturalization certificate was obtained fraudulently or illegally; 2. If the person naturalized shall, within the five years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and

The following are exempt from filing declaration of intention: A. Born in the Philippines and
have received their primary & secondary education in public & private schools recognized by the government & not limited to any race or nationality. B. Resided in the Philippines for thirty (30) years or more before filing of the petition.

established his permanent residence therein; 3. If the petition was made on an invalid declaration of intention; 4. If it is shown that the minor children of the person naturalized failed to graduate from public or private high school. 5. If it is shown that the naturalized citizen has allowed himself to be used as a dummy in violation of the Constitution or legal provisions requiring Philippine citizenship as a requisite for the exercise, use or enjoyment of a right, franchise, or privilege. HOW IN GENERAL CITIZENSHIP MAY BE LOST: a) By substitution of a new nationality; b) By renunciation of citizenship (also

2. By express renunciation of citizenship; (case: Willie YU v. Defensor-

Santiago, G.R. No. 83882)

3. By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty one (21) years of age or more; 4. By rendering service to, or accepting commission in, the armed forces of a foreign country; 5. By cancellation of the certificate of naturalization; 6. By having been declared by competent authority, a deserter of the Philippine armed forces in times of war, unless subsequently, a plenary pardon or amnesty has been granted; and 7. A woman who marries an alien, if by her act or omission, she is deemed under the law to have renounced her Philippine citiizenship. HOW PHILIPPINE CITIZENSHIP MAY BE REACQUIRED: 1. By naturalization, provided that the applicant possesses none of the disqualifications prescribed for naturalization. 2. By repatriation, shall be effected by merely taking the necessary oath of allegiance to the Republic of the Philippines & registration in the proper civil registry. 3. By direct act of congress (C.A.63) 4. By taking oath of allegiance (if natural born under the Dual Citizenship Law, R.A.9225)

known as EXPATRIATION); c) By deprivation (exists when a person is deprived of his citizenship as a sort of punishment); d) By release (as distinguished from deprivation, release is VOLUNTARY in the sense that a person asks the permission of his country to be freed from citizenship therein); e) By expiration (here citizenship is lost in view of a long stay abroad. This principle is ordinarily not applicable to Filipinos).
HOW PHILIPPINE CITIZENSHIP MAY BE LOST: 1. By naturalization in foreign countries;

THE NATIONALITY THEORY CASES: 1) PETITION FOR LEAVE TO RESUME PRACTICE OF LAW, BENJAMIN M. DACANAY, petitioner FACTS: This BAR matter concerns the petition of Benjamin M. Dacanay for leave to resume the practice of law. Petitioner was admitted to the Philippine BAR in March 1960. He practiced law until he migrated to Canada in December 1998 to seek medical attention for his ailments. He subsequently applied for Canadian citizenship to avail of Canadas citizen in May 2004. On July 14, 2006, pursuant to Republic Act 9225, petitioner reacquired his Philippine citizenship. On that day he took his oath of allegiance as a Filipino citizen before the Philippine Consulate General in Toronto, Canada. Thereafter he returned to the Philippines and now intends to resume his law practice. ISSUE: WON petitioner lost his membership in the Philippine Bar when he gave up his Philippine citizenship in May 2004. RULING: By virtue of his reacquisition of Philippine citizenship in 2006, petitioner

has again met all the qualifications and has none of the disqualifications for membership in the bar. He be allowed to resume the practice of law in the Philippines, conditioned on his retaking the lawyers oath to remind him of his duties and responsibilities as a member of the Philippine Bar. 2) CIRILO R. VALLES vs. COMELEC and ROSALIND LOPEZ FACTS: Petitioner filed a disqualification case against respondent Rosalind Ybasco Lopez, in the May 1998 elections for governor of Davao Oriental. Rosalind Lopez was born on May 16, 1934 in Napier Terrace, Broome, Western Australia to the spouses Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, an Australian. In 1949, at the age of 15, she left Australia and came to settle in the Philippines. On June 1952, she was married to Leopoldo Lopez, a Filipino citizen. In 1992, she was elected as governor of Davao Oriental. In 1995 she ran for re-election as governor of the same place. Her opponent filed a disqualification, questioning her citizenship. In the May 1998 elections, the citizenship of petitioner was once again raised as an issue.

ISSUE: WON private respondent Rosalind Lopez is a Filipino citizen. RULING: The Supreme Court ruled that private respondent is a Filipino citizen and therefore qualified to run for a public office because 1. Her Father is a Filipino citizen and by virtue of the principle of jus sanguinis she was a Filipino citizen; 2. She was married to a Filipino, thereby making her also a Filipino citizen; and 3. She renounced her Australian citizenship on January 15, 1992. 3) FELISA LEE vs. COMMISSIONER OF IMMMIGRATION FACTS: On June 22, 1985 Lee, a Chinese citizen, married Jackson Barra, a Filipino citizen. Claimingto have acquired the citizenship of her husband by virtue of her marriage on the ground that she possessed all the qualifications and non of the disqualifications for naturalization as a Filipino citizen, she applied to the Commissioner of Immigration for cancellation of her alien certificate of registration. On November 2, 1962 the SolGen moved to dismissed the petition on the ground that the court had no

jurisdiction

over

the

case.

ISSUE: WON the court has jurisdiction

RULING: The Supreme held that there established by law judicial declaration an individual.

Court has repeatedly is no proceeding or the rules for the of the citizenship of

4) IN THE MATTER OF THE PETITION FOR ADMISSION AS CITIZEN OF THE PHILIPPINES. OH HEK HOW, petitioner appellee vs. Republic of the Philippines, oppositor-appellant FACTS: A decision granting his petition as citizen of the Philippines having been rendered on January 16, 1964, petitioner Oh Hek How filed on January 17, 1966, a motion alleging that he had complied with the requirements of R.A. No. 530 and praying that he be allowed to take his oath of allegiance as such citizen and issued the corresponding certificate of naturalization. The Government seasonably gave notice of its intention to appeal from the said order of February 9, 1966 and filed its record on appeal.

ISSUE: Whether or not the taking of an oath of petitioner is valid. RULING: The oath of allegiance taken by petitioner on November 28, 1966 and the certificate of naturalization issued to him in pursuance thereof, as well as the authority given therefore by the lower court are null and void. The order of February 9, had not and up to the present has become final and executory in view of the appeal duly taken by the Government. 5) EREMES KOOKOORITCHKIN vs. THE SOLICITOR GENERAL FACTS: In August 1941, Eremes kookooritchkin filed with the lower court a petition for naturalization, accompanied with supporting affidavits of two citizens, copy of a declaration of intention sworn in July 1940. The petition was finally granted on 1947. ISSUE: WON the declaration of intention to become a Filipino citizen filed by Eremes Kookooritchkin is invalid and insufficient as a basis for the petition of naturalization.

RULING: The undisputed fact that the petitioner has been continuously residing in the Philippines for about 25 years can be taken as evidence that he is enjoying permanent residence legally. The records leads to the conclusion that petitioner has shown legal residence in the Philippines for a continuous period of not less than ten years as required by section 2 of C.A. No. 473. 6) VICTORINO X. FORNIER vs. COMELEC and RONALD ALLAN KELLY POE, ALSO KNOWN AS FERNANDO POE JR. FACTS: On December 31, 2003, respondent Ronald Allan Kelly Poe, (hereinafter FPJ), filed his certificate of candidacy for the position of President of the Philippines. Petitioner initiated a petition before the COMELEC to disqualify FPJ and to deny due course or to cancel his certificate of candidacy on the grounds that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a naturalborn Filipino citizen when in truth, according to Fornier, his parents were foreigners. ISSUE: WON FPJ is a natural born Filipino citizen.

RULING: The fact of the matter perhaps the most significant consideration is that the 1935 Constitution, the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never be more explicit than it is. 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.