TOPIC COMPARISON REPORT

Written by: Date Due: Jamaica A. Maglinte-Dacutanan January 6, 2013

A.

Topic # 1

1.

Statement of the Issue: The issue for this proposed note is whether or not Republic Act No. 9225, also known as the Citizenship Retention and Re-acquisition Act of 2003 or simply the Dual Citizenship Law, is in conflict with Section 5, Article IV of the 1987 Constitution.

2.

Principal Cases: a. b. Mercado v. Manzano (307 SCRA 630) Aznar v. Commission on Elections (185 SCRA 703)

3.

Form of Note: This topic lends itself to an issue-focused note considering that R.A. 9225 has not yet been decided by the Supreme Court, all arguments raised by proponents and critics alike are just mere opinions. The concept between dual citizenship v. dual allegiance presents a still novel issue and props several questions that are yet to be delved deeper. It may be asked whether they are the same, or what are the problems that may arise to a person who has dual citizenship. Or most importantly, is dual citizenship, as espoused by R.A. 9225, allowed by our Constitution?

4.

Facts of Principal Cases:

a.

Mercado v. Manzano (307 SCRA 630) As what was stated in the case of Mercado v. Manzano, dual citizenship is different from dual allegiance. In this case, Ernesto S. Mercado and Eduardo B. Manzano were candidates for vice mayor of the city of Makati in the May 11, 1998 elections. Manzano garnered majority of the votes casted, but his proclamation was suspended due to the case filed by a certain Ernesto Mamaril who alleged that Manzano was not a citizen of the Philippines but of the United States and such disqualified to run for public office. In his answer, Manzano admitted that he is registered as a foreigner with the Bureau of Immigration under Alien Certificate of Registration number B-31623 and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San Francisco, California on September 14, 1955, and is considered an American citizen under US Laws.

b.

Aznar v. Commission on Elections (185 SCRA 703) In this case, Emilio Lito Osmea filed his certificate of candidacy with the COMELEC for the position of provincial Governor of Cebu in the January 18, 1988 elections. Petitioner, Jose B. Aznar, filed with the COMELEC a petition for the disqualification of Osmea on the ground that he is not a Filipino citizen since he is a citizen of the United States. COMELEC en banc decided to suspend the proclamation. Osmea maintained that he is a Filipino citizen, alleging that (1) he is the legitimate child of Dr, Emilio D. Osmea, a Filipino and son of the late President Sergio Osmea, Sr., (2) that he is a holder of a valid and subsisting Philippine Passport, (3) that he was continuously residing in the Philippines since birth and has not gone out of the country for more than six months, and (4) that he has been a registered voter in the Philippines since 1965.

5.

Legal Analysis: The conflict which is the subject of this note arises from the dissenting opinions between the framers of the law and some constitutionalists that bank their argument from Section 5 Article IV of the 1987 Constitution.

Side One: The framers of the law contend that dual citizenship does not contravene with the constitution because it prohibits not dual citizenship but dual allegiance. It further points out that only dual allegiance is prohibited by law because Dual allegiance is inimical to the national interest. Thus, dual citizenship is not dual citizenship. This is enshrined in the case of Mercado v. Manzano (307 SCRA 630) whereby dual citizenship was distinguished from dual allegiance. A review of the debate during the framing of the abovementioned law can also be used as a guide in determining the real intent of its provisions. Side Two: The critics, on the other hand, pointed out that since the court held that Section 5 Article IV of the 1987 Constitution sanctions only dual allegiance and not dual citizenship, then dual citizenship may be allowed. However, what the framers failed to consider is that based on the same decision what Section 5 Article IV of the 1987 Constitution does not sanction is dual citizenship per se. As can be inferred from the discussions of the court, dual citizenship per se refers to the involuntarily acquired citizenship which is a consequence of the application of different citizenship laws of different states or country of which the person itself have no control. But the case did not say that dual citizenship that can be acquired voluntarily or by some positive act, like that authorized under R.A. 9225, is not under the proscription of Section 5 Article IV of the 1987 Constitution. A perusal or a ruling of the United States Supreme Court in the famous case of Kawakita v. U.S. presents a concrete example of a problem that might arise with regards to a person who has a dual or multiple citizenship.

6.

Important Case Law other Than Principal Cases: Cordora v. COMELEC, et.al. (G.R. No. 176947, 19 February 2009) In this case, dual citizenship was distinguished from dual allegiance. The Supreme Court explained that dual citizenship is involuntary and arises when, as a result of the concurrent application of the different laws of two or more states/countries, a person is simultaneously considered a national by the said states/countries. 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/countries. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition his active participation in the naturalization process.

7.

Law Review Literature: A. Upon research, one good article that deals with the issue herein presented is one of R. Palabrica on Doubts about Dual Citizenship, a commentary published on the Philippine Daily Inquirer, January 12, 2002 which tackles problems of dual citizenship. B. Another is one by Joaquin Bernas entitled Dual Citizenship and Dual Allegiance, published on newspaper TODAY, July 2, 2003.

8.

Evaluation of Topic: a. Appropriateness of the case law for an issue-focused note: Although the cases cited herein clearly distinguished dual citizenship from dual allegiance, it does not mean that there is no conflict that might arise. What these cases failed to explain is the matter on what kind of citizenship, whether voluntary or involuntary, gives rise, in one way or another, to dual allegiance. A careful evaluation of what entails citizenship with regards to allegiance is a point that is very much rich in discussion, therefore provides an ample material for a note. b. Timing: R.A. 9225 was signed into law in the year 2003 and jurisprudence cited herein was decided a couple of years ago. However, it does not mean that the subject of this proposed note is no longer viable because in reality, questions on citizenship and allegiance are always raised during election protests from time to time. Furthermore, constitutionality of R.A. 9225 is not yet brought upon the attention of the Supreme Court. c. Preemption: So far, only short articles regarding the subject matter of this proposed note has been published, which in my point of view, are not able to preempt the herein topic.

d.

Interest: Philippine citizenship has always been valued and treasured by our Supreme Court that it once described it as not a cheap commodity. Hence, it is not only a matter of judicial importance but also of societal significance.

e.

Scope of the legal issue: Because the proposed note revolves around dual citizenship as contemplated on R.A. 9225 and Section 5 Article IV of the 1987 Constitution on allegiance, it only tackles on a narrow issue of statutory interpretation involving a conflict between a statute and the Constitution. What makes it broad is the impact of dual citizenship vis--vis dual allegiance in the society.

9.

Weighing the Factors: I believe there is ample material for a note. In addition, there are no problems with timing or preemption.

B.

Topic # 2

1.

Statement of the Issue: The issue for this proposed note is whether or not divorce should be legalized in the Philippines considering that annulment, declaration of nullity of marriage and legal separation has its limitations as remedy for broken marriages in the Philippines. Furthermore, it also touches the implication of Filipinos who marries aliens and later on avails of divorce in the aliens country where it is legalized.

2.

Principal Case: a. Amor-Catalan vs. Court of Appeals (514 SCRA 607)

3.

Form of Note: This topic lends itself to a classic casenote because it focuses extensively on the probability of legalizing divorce in the Philippines and the implication of marriages by and between a Filipino and an alien who later on applies for a divorce. As mentioned in Amor-Catalan vs. CA, divorce was defined as the legal dissolution of a lawful union for a cause arising after marriage.

4.

Facts of Principal Case: a. Amor-Catalan vs. Court of Appeals (514 SCRA 607) Petitioner Felicitas Amor-Catalan married respondent Orlando on June 4, 1950 in Mabini, Pangasinan. Thereafter, they migrated to the United States of America and allegedly became naturalized citizens thereof. After 38 years of marriage, Felicitas and Orlando divorced in April 1988. On June 16, 1988, Orlando married respondent Merope in Calasiao, Pangasinan. Petitioner contends that said marriage was bigamous since Merope had a prior subsisting marriage with Eusebio Bristol. She filed a petition for declaration of nullity of marriage with damages in the RTC of Dagupan City against Orlando and Merope.

5.

Legal Analysis: The issue for this proposed note is the pressing need to legalized divorce in the Philippines as evidenced by a couple of house bills in Congress that are submitted involving the said matter. Since this proposed note focuses on the legalization of divorce; it shall only tackle one side which will deal in the advantages of having a divorce law in the Philippines. At present, under the Family Code, the available procedures for the dissolution of marriage are: (1) declaration of nullity of marriage; (2) annulment; and (3) legal separation. Declaration of nullity of marriage is a remedy available in void marriages those which are not valid from its inception or from the very beginning. This means that any of the essential or formal requisites of marriage is absent. Voidable marriages

on the other hand are those, which may be dissolved thru annulment under Article 45 of the family Code. Given that the grounds for annulment and declaration of nullity are exclusive, battery not being one of them, a battered wife cannot resort to these remedies when confronted by violence in the marriage. And while it is true that the remedies of a declaration of nullity and annulment allow the parties to remarry, it must be noted that the ground claimed must have existed prior to or at the time of the celebration of marriage but only became manifest after the celebration thereof. Furthermore, legal separation, which essentially deals mostly with the legal effects on the property regime of the parties, recognizes grounds that need not have historical precedence; that is, the defects need only exist after the celebration of the marriage. Importantly, it recognizes battery as one of the grounds for its grant. However, the downside of legal separation is that it does not allow the parties to contract a subsequent marriage. The dilemma also of Filipinos marrying aliens from countries who recognizes divorce imposes another issue that, although it is already recognized that the Filipino spouse shall also be entitled to remarry in case the alien spouse decides to file a divorce in his native country and which was subsequently approved, divorce in one way or another is already being recognized in our jurisdiction.

6.

Important Case Law other Than Principal Cases: Corpuz v. Sto. Tomas and the Solicitor General (G.R. No. 186571, August 11, 2010) The above case involves a petition for review on certiorari seeking a direct appeal from the decision of the Regional Trial Court of Laoag City. Petitioner Gerbert R. Corpus is a naturalized Canadian citizen who married respondent Daisylyn Tirol Sto. Tomas but subsequently left for Canada due to work and other professional commitments. When he returned to the Philippines, he discovered that Sto. Tomas was already romantically involved with another man. This brought about the filing of a petition for divorce by Corpuz in Canada which was eventually granted by the Court Justice of Windsor, Ontario, Canada. A month later, the divorce decree took effect. Two years later, Corpuz has fallen in love with another Filipina and wished to marry her. He went to Civil Registry Office of Pasig City to register the Canadian divorce decree of his marriage certificate with Sto. Tomas. However, despite the registration, an official of National Statistics Office informed Corpuz that the former marriage still subsists under the Philippine law until there has

been a judicial recognition of the Canadian divorce by a competent judicial court in view of NSO Circular No. 4, series of 1982. Consequently, he filed a petition for judicial recognition of foreign divorce and/or declaration of dissolution of marriage with the RTC. However, the RTC denied the petition reasoning out that Corpuz cannot institute the action for judicial recognition of the foreign divorce decree because he is a naturalized Canadian citizen. It was provided further that Sto. Tomas was the proper party who can institute an action under the principle of Article 26 of the Family Code which capacitates a Filipino citizen to remarry in case the alien spouse obtains a foreign divorce decree.

7.

Law Review Literature: A. Upon research, I stumbled upon an article of Gina Mission entitled Breaking the Ties that Bind, specifically discussing the advantages of having a divorce law in the Philippines. B. Another article entitled Divorce in the Philippines: What Ma n has Put Together written by Conrado De Quiros was published in the Philippine Daily on September 7, 2013 which also talks about the probable implementation of divorce in the Philippines.

8.

Evaluation of Topic: a. Appropriateness of the case law for an issue-focused note: Although the case law cited herein only defines what divorce is, it is still open for a rich discussion if it is tackled in connection with the declaration of nullity of marriage, annulment and of legal separation. b. Timing: So far, only the Philippines and the Vatican City has no divorce law. Amidst the increasing numbers of women that are being abused by their spouses and children caught up in a situation of violence and conflict in the family, it calls for an urgent answer against the inadequate remedies provided by our constitution.

c.

Preemption: So far, only short articles regarding the subject matter of this proposed note has been published, which in my point of view, are not able to preempt the herein topic.

d.

Interest: Over the years, the number of cases reported for domestic violence has increased dramatically. Violence in marriage negate its ideals as the embodiment of love, care and safety and erode the bases upon which a marriage is founded. The family, being an inviolable social institution and as product of marriage, is everybodys concern.

e.

Scope of the legal issue: Because the proposed note revolves only around the possibility of legalizing divorce in the Philippines, it only tackles on a narrow issue. What makes it broad is its comparison between declaration of nullity of marriage, annulment, and legal separation and the importance of remarry which is of great societal implication.

9.

Weighing the Factors: I believe there is ample material for a note. In addition, there are no problems with timing or preemption.

C.

Comparison of Topic #1 and Topic #2. In comparing the two topics I will look at the strengths and weaknesses that both have in common before examining their differences. Finally, I will explain my own personal criteria for choosing my topic.

STRENGTHS OF BOTH TOPICS 1. Both issues are relevant and of great impact to the society. The issue on dual citizenship vis--vis dual allegiance is a pressing topic because it involves every citizens duty to be loyal to its country in exchange of the benefits and services it was able to provide. Moreover, the proposal of legalizing divorce in the Philippines is also a hot commodity in the present times due to the fact that we are one of the only two countries, Vatican City being the other, who does not have a divorce law. Ample materials can be used as references in both topics without, however, preempting the proposed note.

2.

WEAKNESSES OF BOTH TOPICS 1. Because both topics are very relevant and of great interest to the public, possible write-ups may be published or write-ups written in the past dealing with the same that was not able to come to come to the attention of the researcher in the course of writing the proposed note.

INDIVIDUAL WEAKNESSES 1. On the issue pertaining to R.A. 9225 dealing with dual citizenship in connection with the prohibited dual allegiance in Section 5 Article IV of the 1987 Constitution, a new law can be passed amending or repealing it or it can be declared unconstitutional. On the issue of legalizing divorce in the Philippines, several house bills are already submitted to the House of Congress dealing with it and there is a probability that one of which maybe passed. PERSONAL PREFERENCE After my research, I decided to choose the topic dealing with Republic Act No. 9225, also known as the Citizenship Retention and Re-acquisition Act of 2003 or simply the Dual Citizenship Law because for me it is more important to review the constitutionality of a statute that has already become part of the law of the land rather

2.

than something that is yet to become one. Additionally, it is already effective and applicable to everyone, yet there are still unresolved issues about it and believed to contravene the highest law of the land, which is our Constitution.

D.

Recommendation

I recommend the issue on dual citizenship provided in Republic Act No. 9225, also known as the Citizenship Retention and Re-acquisition Act of 2003 or simply the Dual Citizenship Law vis--vis dual allegiance enshrined in Section 5 Article IV of the 1987 Constitution.