Chapter 8 - The nationality Theory paras notes
multiple citizenship may really exist.
The Theory of Restated
- nationality theory is the theory by virtue of which the
status us and capacity of an individual are generally
governed by the law of his nationality.
Nationality and citizenship
- nationality is membership in an ethnic, social , racial, and
cultural group,
- citizenship is membership in a political society.
In the Philippine Conflict of Laws, - we shall consider
nationality an citizenship as synonymous terms: thus ..
- when we say that successional right to the estate of a
person shall be governed by his national law, we really mean
the law of the state of which the deceased was a citizen at
the time of his death.
Defects of the Nationality Theory
The nationality theory poses certain defects:
1. Sometimes, change of nationality or citizenship is hard to
effectuate:
2. some individuals for varying reasons are stateless,
3. as will be discussed later, there are persons possessed of
dual or multiple nationalities.
4. It is not always desirable to apply to aliens their national
law.
The Three Kinds of citizens of the Philippines
1. 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.
2. naturalized citizens - citizens who are not natural born
citizens; those who become such through judicial
proceedings.
3. Citizens by election - citizen s who by virtue of certain
legal provisions, become such by choosing or electing
Philippine citizenship at the age of twenty one or within a
reasonable time thereafter.
Two Theories on Whether Place or Ancestry
Determines Citizenship
1. Jus soli - if born in a country, a person is a citizen of the
same.
2. Jus sanguinis - One follo0ws the citizenship of his
parents ; this is citizenship by blood.
The Problem of Dual and multiples Nationalities
- Citizenship is a matter exclusively determined by a
country's own law.
The determination by our tribunals of a person's particular
foreign citizenship cannot, of course, be regarded as binding
by the courts.
Any question as to whether a person possesses the
nationality of a particular state should be determined in
accordance with the law of that state.
In so far as the Philippines is concerned his only a Filipino,
not a Chinese.. And insofar as china is concerned, he may be
only a Chinese, not a Filipino.
However, from the viewpoint of a third state , dual or
a. In as much as we regard him as a Filipino citizen, there is
no doubt that applying Arti.16 par. 2 of our Civil Code,
Philippine law shall control the successional rights to his
estate.
Rule - get the law of the forum if the forum is one of the
countries of which the deceased was a national.
b. If the deceased is not a citizen of the forum, we must get
the law of the nation of which he was both a national and a
domiciliary.
Effective Nationality - It is evident that here the deceased
himself considered the domicile as the more effective
connecting factor for his personal law.
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 personal
matters and of any conventions in force, a third state shall
apply 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 a
resident, or the nationality of the country with which in the
circumstance he appears to be in fact most closely
connected.
c. To properly apply Art. 16 par. 2 of our cc, it is believed
that in a case like this our rule should be:
1. first, get the Cuban and the Singaporean law on
succession, and apply them insofar as they are consistent
with or identical to the other;
2. secondly, in so far as there is a conflict, we must refer to
the law of the domicile, to resolve the conflict.
Before concluding this discussion on dual or multiple
citizenship, let us enumerate chiefly the various ways or
modalities in which this situation might arise:
Modalities:
1. Through a naturalized Citizen's Failure to comply with
Certain Legal Requirements in the Country of Origin
2. From a Combined Application of Jus soli and Jus soli and
Jus Sanguinis
3. By the Legislative Act of State
4. By the Voluntary Act of the Individual Concerned
Dual Allegiance of Citizens
Dual allegiance of citizens is inimical to the m=national
interest and shall be dealt with by law. - constitution.
The Problem of Stateless Individuals:
1. How statelessness is brought about:
A person may become stateless by any of the following
means:
1.1. He may have been deprived of his citizenship for an
cause, such as the commission of crime;
1.2. He may have renounced his nationality by certain acts,
express or implied;
1.3. He may have voluntarily asked for a released from his
original state;
1.4. He may have been born in a country which recognizes
only the principle of jus sanguinis
2. Personal law of stateless individuals:
Personal law of stateless individuals shall be: Hague
Conference of 1928
2.1 The law of the domicile or habitual residence;
2.2 secondarily the law of the place of temporary residence.
SUCCESSIONAL RIGHTS
Art. 16 cc, The rights to the succession of a person are
governed by his national law
WHERE A DECLARATIONOF PHLIPPINE CITIZENSHIP MAY
BE MADE
A judicial declaration that a person is a Filipino citizen cannot
be made in a petition for naturalization for the reason that in
this jurisdiction, there can be no independent action for the
judicial declaration of the citizenship of an individual.
Justiciable controversies, - imply a given right, legally
demandable and enforceable, an act or omission violative of
said right, and a remedy, granted by law for said breach of
said right.
As an incident only of the adjudication of the rights of the
parties to a controversy, the court may pass upon, and make
a pronouncement relative to their status.
Indeed a declaration of Philippine citizenship cannot be
validly made in an action for declaratory relief.
In case a person claims to be a Filipino, doubts must be
resolve in favor of the Government and against the claimant.
CITIZENSHIP OF A FILIPINO WOMAN WHO MARRIES A
FOREIGNER
1. Rule under the 1987 constitution
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.
2. Rule after the MOY YA Case
The SC reversed the Burca Ruling and held that -- an alien
woman marrying a Filipino, native-born or naturalized,
becomes ipso facto a Filipino provided she is not disqualified
to be a citizen of he Philippines under SEC. 4 of the same
law.
Moreover, an alien woman married to an alien who is
subsequently naturalized here follows the Philippine
citizenship of her husband the moment he takes his oath as
a Filipino citizen, provided she does not suffer from any of
the disqualifications under said Sect. 4.
The decision in effect ruled that it is not necessary for an
alien citizen to prove in a judicial proceeding that she
possesses all the qualifications set forth in Sec. 2 and none
of the disqualifications under Sec. 4 both of the Revised
Naturalization Law.
CITIZENS OF THE PHLIPPINES
With the coming of the Americans, our political status was
clarified by the Us. congress, conformable with the
provisions of the Treaty of Paris o December 10, 1898, this
treaty transferred our county from Spanish to American
sovereignty
CITIZENS OF THE PHLIPPINES UNDER THE 1987
CONSTITUTION
1. Those who are citizens of the Phlippines at the time of the
adoption of this Constitution.
2. Those whose fathers or mothers are citizens of the
Philippines.
3. Those born before January 17, 1973, of Filipino mothers,
who elect Philippine citizenship upon reaching the age of
majority.
4. those who are naturalized in accordance with law.
CITZENS BY VIRTUE OF HAVING BEEN ELECTED TO
APUBLIC OFFICE INTHE PHIPPINES
The law says: those born in the Philippines of foreign
parents who before the adoption of the Philippine
Constitution, had been elected to a public office in the
Philippines.
Despite this apparent intent to favor a particular
individual,namely, the person who had been elected to a
public office in the Philippines although not yet a Filipino the
SC had given to the proviso not only a personal connotation
but also a derivative implication, hence even his own
children had been given the benefits.
CHILDREN OF FILIPINO FATHERS
1. This paragraph enunciates the principles of Jus Sanguinis
2. the rule applies whether the mother is a Filipino or not
and whether the child is born in the Philippines of outside.
3. The rule certainly is applicable if the father is a natural
born Filipino citizen; does it also apply if the father is a
naturalized Filipino.
a. The Question child born before naturalization
a.1 if born in the Philippines - is a Filipino
a.2 if born outside the Phip pines
a.2.1 if dwelling in the Philippines at the time of the parent's
naturalization- is a Filipino
a.2.2 If dwelling outside the Philippines at the time of
parent's naturalization - is a Filipinos only during his minority
unless he resides permanently in the Philippine when still a
minor, in which case he will continue to be a Philippine
citizen even after becoming of age.
b. a minor child born after naturalization
b.1.1 if born in the Philippines - is a Filipino
b.1.2 if born outside the Philippines - shall be considered a
Philippine citizen, unless within one year after reaching the
age of majority he fails to register himself as a Philippine
citizen at the Philippine consulate of country where he reside
and to take the necessary oath of allegiance.
It will be observed that:
i. in the case of children already of age at the time of eh
parent's naturalize ion, they do not become Filipino citizens
unless they themselves be naturalized;l
ii. In the case of minors, who were born in the Philippines
before the parent's naturalization,
and in the case of a minor born outside the Philippines but
already dwelling in the Philippines at the time of the parent's
naturalization -n condition is imposed by the law; they are
Filipino citizens;
iii. In the case of minors born outside the Philippines the law
is more strict on the child born before naturalization because
he is compelled to reside here,
whereas in the case of the child born after naturalization, all
that the law requires is registration.
Both of these requisites appear to be unconstitutional, since
the fundamental law makes no distinction; nonetheless it
would seem that these requirements are proper, and unless
complied with under the Constitution itself can properly be
provided for by law.
NATURALIZED FILIPINO CITIZENS
Naturalization and the loss and reacquisition of citizenship of
the Philippines are governed by special laws.
Constitution: Philippine citizenship may be lost or reacquired
in the manner provided by law.
NATURALIZATIO FEFINED
Naturalization is the process of acquiring the citizenship of
another country.
1. In the strict sense, it is a judicial process, where
formalities of the law have to be co plied with including a
judicial hearing and approval of the petition.
2. In the loose and broad sense, it may mean not only the
judicial process but also the acquisition of another
citizenship by such actsqas marriage to a citizen, and the
exercise of the option to elect a particular citizenship
ATTRIBUTES OF NATURALIZATION
a. citizenship is not a aright , it is a privilege.
b. The requisite conditions for naturalization are laid down
by Congress; courts cannot change or modify them.
c. Just s as state may denationalize it sown citizens, so may
naturalization be revoked, by th cancellation of he certificate
of naturalization.
e. Naturalization demands allegiance to our Constitution ,
laws, and government.
f. Naturalizations a pro9ceeding in rem, and therefore
jurisdiction over the entire world is acquired by publication.
QUALIFICATION FOR NATURALIZATION
a. The petitioner must not be less than 21 years of age on
the date of the herring of he petition;
b. He must have, as a rule, resided in the Philippines for a
continuous period of not less than ten years;
c. e must be of good moral character, and believe in the
principles underlying the Philippine constitution, and must
have conducted himself in a proper and irreproachable
manner during the entire period of his residence in the
Philippines in his relation with the constituted government as
will as with the community in which he is living
d. He must own real estate n th Philippines worth not less
than P5000, Philippines currency, or must have some
lucrative trade, profession, or lawful occupation;
e. He must be able to speak and write English or Spanish
and any one of the principal Philippine languages; and
f. He 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 where Philippine
history,government,and civics are taught or prescribed as
part of eh school curriculum during the entire period of the
residence required of him, prior to the hearing of his petition
for naturalization as citizen.
DISQUALIFICATONS FOR NATURALIZATION
1. Persons opposed to organized government or affiliated
with any association or group of persons who uphold and
teach doctrines opposing all organized government;
2. Persons defending teaching the propriety of violence,
personal assault, or assassination for the success and
predominance of their ideas;
3. Polygamists or believers n the practice of polygamy;
4. Persons convicted of a 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 mingled socially with the Filipinos or
who have not evinced a sincere desire to learn and embrace
the customs, traditions,and ideas 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 NTURALIZATION PROCEEDINGS
1. A declaration of intention to become a Filipino citizen
must first be filed, unless the applicant is exempted from
this requirement.
2. The petition for naturalization must then be filed
3. After publication in the official Gazette, the petition will be
heard;
4. If the petition is approved, there will be are hearing two
years after the promulgation of the judgment awarding
naturalization .
5. The last step will be the taking of the oath of allegiance to
support and defend the Constitution and the laws of the
Philippines.
CANCELLATION OF TEH NATURALZATIOIN
1. It is shown that said naturalization certificate was
obtained fraudulently or illegally;
It 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
establish his permanent residence therein
Provided , that the fact of the person naturalized remaining
for more than one year in his native country or the county of
his former nationality,or two years in any country, shall be
considered as prima facie evidence of his intention of taking
up his permanent residence in the same
3. If the petition was made on an invalid declaration of
intention;
4. If it is shown that the minor children of eh person
naturalized failed to graduate from public or private high
school recognized by the Bureau of Private Schools, where
Philippine history, government,and civics are taught or
prescribed as part of he school curriculum , through the fault
of their parents either by neglecting to support them or by
transferring them to another school or schools.
5. If it is shown that the naturalized citizen his allowed
himself to be used as a dummy i violative of the Constitution
or legal provisions requiring Philippine citizenship as a
requisite for the exercise, use or enjoyments of a right,
franchise, or privilege.
HOW IN GENERAL CITIZENSHIP MAY BE LOST
1. By substitution of a New Nationality
2. By renunciation of citizenship
3. By deprivation
4. B release
5. By expiration
HOW NATURALIZATION MAY BE LOST
1. By naturalization in foreign countries;
2. By express renunciation of citizenship
By subscribing to an oath of allegiance to support the
constitution or laws of a foreign country upon attaining
twenty one years of age or more;
Provided however that a Filipino may not divest himself of
Philippine citizenship in any manner while the RP is at war
with any country
4. By rendering service to , or accepting commission in the
armed force of a foreign country;
Provided, That the rendering of service to , or the
acceptance of such commission, in the armed forces of a
foreign country, and the taking of an oath of allegiance
incident thereto, with the consent of the Republic of the
Philippines, shall not divest a Filipino of his citizenship if
either of the following circumstance is present;
5. By cancellation of the certificate of naturalization
7. In the case of a woman, upon here marriage to a
foreigner, if by virtue of the laws in force in her husband's
country, she acquires his nationality.
HOW PHILIPPINE MAY BE REACQURED
1. By naturalization
2. By repatriation of deserters of the Army, Navy or Air corps
Provided, That the applicant possesses none of the
disqualifications
3. By direct act of the National Assembly