CHAPTER V

CITIZENSHIP AND DUAL NATIONALITY- CASES

CASE NO. 1

EN BANC

G.R. No. 142840 May 7, 2001

ANTONIO BENGSON III, petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C. CRUZ,
respondents.

CONCURRING OPINION

DISSENTING OPINION

KAPUNAN, J.:

The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the
constitutional requirement that "no person shall be a Member of the House of Representative
unless he is a natural-born citizen."1

Respondent Cruz was a natural-born citizen of the Philippines. He was born in San Clemente,
Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then applicable was the
1935 Constitution.2

On November 5, 1985, however, respondent Cruz enlisted in the United States Marine Corps
and without the consent of the Republic of the Philippines, took an oath of allegiance to the
United States. As a Consequence, he lost his Filipino citizenship for under Commonwealth Act
No. 63, section 1(4), a Filipino citizen may lose his citizenship by, among other, "rendering
service to or accepting commission in the armed forces of a foreign country." Said provision
of law reads:

SECTION 1. How citizenship may be lost. – A Filipino citizen may lose his citizenship
in any of the following ways and/or events:

xxx

(4) By rendering services to, or accepting commission in, the armed 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 Philippine citizenship if either of the following
circumstances is present:

(a) The Republic of the Philippines has a defensive and/or offensive pact of alliance
with said foreign country; or

(b) The said foreign country maintains armed forces on Philippine territory with the
consent of the Republic of the Philippines: Provided, That the Filipino citizen
concerned, at the time of rendering said service, or acceptance of said commission,
and taking the oath of allegiance incident thereto, states that he does so only in
connection with his service to said foreign country; And provided, finally, That any
Filipino citizen who is rendering service to, or is commissioned in, the armed forces
of a foreign country under any of the circumstances mentioned in paragraph (a) or
(b), shall not be Republic of the Philippines during the period of his service to, or
commission in, the armed forces of said country. Upon his discharge from the service
of the said foreign country, he shall be automatically entitled to the full enjoyment of
his civil and politically entitled to the full enjoyment of his civil political rights as a
Filipino citizen x x x.
Whatever doubt that remained regarding his loss of Philippine citizenship was erased by his
naturalization as a U.S. citizen on June 5, 1990, in connection with his service in the U.S.
Marine Corps.

On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through repatriation
under Republic Act No. 2630.3 He ran for and was elected as the Representative of the Second
District of Pangasinan in the May 11, 1998 elections. He won by a convincing margin of 26,671
votes over petitioner Antonio Bengson III, who was then running for reelection. 1âwphi1.nêt

Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with respondent House
of Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was not qualified
to become a member of the House of Representatives since he is not a natural-born citizen
as required under Article VI, section 6 of the Constitution.4

On March 2, 2000, the HRET rendered its decision5 dismissing the petition for quo warranto
and declaring Cruz the duly elected Representative of the Second District of Pangasinan in
the May 1998 elections. The HRET likewise denied petitioner's motion for reconsideration of
the decision in its resolution dated April 27, 2000.6

Petitioner thus filed the present petition for certiorari assailing the HRET's decision on the
following grounds:

1. The HRET committed serious errors and grave abuse of discretion, amounting to
excess of jurisdiction, when it ruled that private respondent is a natural-born citizen of
the Philippines despite the fact that he had ceased being such in view of the loss and
renunciation of such citizenship on his part.

2. The HRET committed serious errors and grave abuse of discretion, amounting to
excess of jurisdiction, when it considered private respondent as a citizen of the
Philippines despite the fact he did not validly acquire his Philippine citizenship.

3. Assuming that private respondent's acquisition of Philippine citizenship was

invalid, the HRET committed serious errors and grave abuse of discretion, amounting
to excess of jurisdiction, when it dismissed the petition despite the fact that such
reacquisition could not legally and constitutionally restore his natural-born status.7

The issue now before us is whether respondent Cruz, a natural-born Filipino who became an
American citizen, can still be considered a natural-born Filipino upon his reacquisition of
Philippine citizenship.

Petitioner asserts that respondent Cruz may no longer be considered a natural-born Filipino
since he lost h is Philippine citizenship when he swore allegiance to the United States in 1995,
and had to reacquire the same by repatriation. He insists that Article citizens are those who
are from birth with out having to perform any act to acquire or perfect such citizenship.

Respondent on the other hand contends that he reacquired his status as natural-born citizen
when he was repatriated since the phrase "from birth" in Article IV, Section 2 refers to the
innate, inherent and inborn characteristic of being a natural-born citizen.

The petition is without merit.

The 1987 Constitution enumerates who are Filipino citizens as follow:

(1) Those who are citizens of the Philippines 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 mother, who elect Philippine
citizenship upon reaching the age of majority, and

(4) Those who are naturalized in accordance with law.8

There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways
of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and
the naturalized citizen. A person who at the time of his birth is a citizen of a particular country,
is a natural-born citizen thereof.9

As defined in the same Constitution, natural-born citizens "are those citizens of the Philippines
from birth without having to perform any act to acquire or perfect his Philippine citezenship."10

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 disqualification13 provided by law to become a Filipino citizen.
The decision granting Philippine citizenship becomes executory only after two (2) years from
its promulgation when the court is satisfied that during the intervening period, the applicant
has (1) not left the Philippines; (2) has dedicated himself to a lawful calling or profession; (3)
has not been convicted of any offense or violation of Government promulgated rules; or (4)
committed any act prejudicial to the interest of the nation or contrary to any Government
announced policies.14

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.15

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
qualifications17 and none of the disqualification mentioned in Section 4 of C.A. 473.18

Repatriation, on the other hand, may be had under various statutes by those who lost their
citizenship due to: (1) desertion of the armed forces;19 services in the armed forces of the allied
forces in World War II;20 (3) service in the Armed Forces of the United States at any other
time,21 (4) marriage of a Filipino woman to an alien;22 and (5) political economic necessity.23

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.

In Angat v. Republic,24 we held:

xxx. Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the
person desiring to reacquire Philippine citizenship would not even be required to file
a petition in court, and all that he had to do was to take an oath of allegiance to the
Republic of the Philippines and to register that fact with the civil registry in the place
of his residence or where he had last resided in the Philippines. [Italics in the
original.25

Moreover, repatriation results in the recovery of the original nationality.26 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, which provides:

Section 1. Any person who had lost his Philippine citizenship by rendering service to,
or accepting commission in, the Armed Forces of the United States, or after
separation from the Armed Forces of the United States, acquired United States
citizenship, may reacquire Philippine citizenship by taking an oath of allegiance to the
 Republic of the Philippines and registering the same with Local Civil Registry in the
place where he resides or last resided in the Philippines. The said oath of allegiance
shall contain a renunciation of any other citizenship.

Having thus taken the required oath of allegiance to the Republic and having registered the
same in the Civil Registry of 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.27 It bears stressing
that the act of repatriation allows him to recover, or return to, his original status before he
lost his Philippine citizenship.

Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had
to perform an act to regain his citizenship is untenable. As correctly explained by the HRET in
its decision, the term "natural-born citizen" was first defined in Article III, Section 4 of the 1973
Constitution as follows:

Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth
without having to perform any act to acquire or perfect his Philippine citizenship.

Two requisites must concur for a person to be considered as such: (1) a person must be a
Filipino citizen birth and (2) he does not have to perform any act to obtain or perfect his
Philippine citizenship.

Under the 1973 Constitution definition, there were two categories of Filipino citizens which
were not considered natural-born: (1) those who were naturalized and (2) those born before
January 17, 1973,38 of Filipino mothers who, upon reaching the age of majority, elected
Philippine citizenship. Those "naturalized citizens" were not considered natural-born obviously
because they were not Filipino at birth and had to perform an act to acquire Philippine
citizenship. Those born of Filipino mothers before the effectively of the 1973 Constitution were
likewise not considered natural-born because they also had to perform an act to perfect their
Philippines citizenship.

The present Constitution, however, now consider those born of Filipino mothers before the
effectivity of the 1973 Constitution and who elected Philippine citizenship upon reaching the
majority age as natural-born. After defining who re natural-born citizens, Section 2 of Article IV
adds a sentence: "Those who elect Philippine citizenship in accordance with paragraph (3),
Section 1 hereof shall be deemed natural-born citizens." Consequently, only naturalized
Filipinos are considered not natural-born citizens. It is apparent from the enumeration of who
are citizens under the present Constitution that there are only two classes of citizens: (1) those
who are natural-born and (2) those who are naturalized in accordance with law. A citizen who
is not a naturalized Filipino, i.e., did not have to undergo the process of naturalization to obtain
Philippine citizenship, necessarily is natural-born Filipino. Noteworthy is the absence in said
enumeration of a separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such persons, they would either
be natural-born or naturalized depending on the reasons for the loss of their citizenship and
the mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruz
was not required by law to go through naturalization proceeding in order to reacquire his
citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary
qualifications to be elected as member of the House of Representatives.

A final point. The HRET has been empowered by the Constitution to be the "sole judge" of all
contests relating to the election, returns, and qualifications of the members of the House.29 The
Court's jurisdiction over the HRET is merely to check "whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction" on the part of the latter.30 In the
absence thereof, there is no occasion for the Court to exercise its corrective power and annul
the decision of the HRET nor to substitute the Court's judgement for that of the latter for the
simple reason that it is not the office of a petition for certiorari to inquire into the correctness of
the assailed decision.31 There is no such showing of grave abuse of discretion in this case.

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.

EN BANC
G.R. No. 142840 May 7, 2001

ANTONIO BENGSON III, petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C. CRUZ,
respondents.

CONCURRING OPINION

PANGANIBAN, J.:

I concur in the ponencia of Mr. Justice Santiago M. Kapunan, holding that the House Electoral
Tribunal did not gravely abuse its discretion in ruling that Private Respondent Teodoro C. Cruz
remains a natural-born Filipino citizen and is eligible to continue being a member of Congress.
Let me just add a few points.

The Facts in Brief

It is undisputed that Congressman Cruz was born on April 27, 1960 in San Clemente, Tarlac,
to Filipino parents. He was, therefore, a Filipino citizen, pursuant to Section 1 (2),1 Article IV of
the Constitution. Furthermore, not having done any act to acquire or perfect the
Philippine citizenship he obtained from birth, he was a natural-born Filipino citizen, in
accordance with Section 22 of the same Article IV.

It is not disputed either that private respondent rendered military service to the United States
Marine Corps from November 1958 to October 1993. On June 5, 1990, he was naturalized as
an American citizen, in connection with his US military service. Consequently, under Section
1 (4)3 of CA No. 63, he lost his Philippine citizenship.

Upon his discharge from the US Marine Corps, private respondent returned to the Philippines
and decided to regain his Filipino citizenship. Thus, on March 17, 1994, availing himself of the
benefits of Republic Act (RA) No. 2630, entitled "An Act Providing for Reacquisition of
Philippine Citizenship by Persons Who Lost Such by Rendering Service to, or Accepting
Commission in, the Armed Force of the United States,"4 Cruz took his oath of allegiance to the
Republic and registered the same with the Local Civil Registry of Mangatarem, Pangasinan.
On the same day, he also executed an Affidavit of Reacquisition of Philippine Citizenship.

Main Issue

The main question here is: Did the House of Representatives Electoral Tribunal (HRET)
commit grave abuse of discretion in holding that, by reason of his repatriation, Congressman
Teodoro C. Cruz had reverted to his original status as a natural-born citizen? I respectfully
submit that the answer is "No." In fact, I believe that the HRET was correct in its ruling.

1. Repatriation Is Recovery of Original Citizenship

First, repatriation is simply the recovery of original citizenship. Under Section 1 of RA 2630, a
person "who ha[s] lost his citizenship" may "reacquire" it by " taking an oath of allegiance to
the Republic of the Philippines." Former Senate President Jovito R. Salonga, a noted authority
on the subject, explains this method more precisely in his treatise, Private International Law.5
He defines repatriation as "the recovery of the original nationality upon fulfillment of certain
condition."6 Webster buttresses this definition by describing the ordinary or common usage of
repatriate, as "to restore or return to one's country of origin, allegiance, or citizenship; x x x."7
In relation to our subject matter, repatriation, then, means restoration of citizenship. It is not a
grant of a new citizenship, but a recovery of one's former or original citizenship.

To "reacquire" simply means "to get back as one's own again."8 Ergo, since Cruz, prior to his
becoming a US citizen, was a natural-born Filipino citizen, he "reacquired" the same status
upon repatriation. To rule otherwise – that Cruz became a non-natural-born citizen – would
not be consistent whit the legal and ordinary meaning of repatriation. It would be akin to
naturalization, which is the acquisition of a new citizenship. "New." Because it is not the same
as the with which he has previously been endowed.
In any case, "the leaning, in questions of citizenship, should always be in favor of [its] claimant
x x x."9 Accordingly, the same should be construed in favor of private respondent, who claims
to be a natural-born citizen.

2. Not Being Naturalized, Respondent Is Natural Born

Second, under the present Constitution, private respondent should be deemed natural-born,
because was not naturalized. Let me explain.

There are generally two classes of citizens: (1) natural-born citizens and (2) naturalized
citizens.10 While CA 63 provides that citizenship may also be acquired by direct act of the
Legislature, I believe that those who do become citizens through such procedure would
properly fall under the second category (naturalized).11

Naturalized citizens are former aliens or foreigners who had to undergo a rigid procedure, in
which they had to adduce sufficient evidence to prove that they possessed all the qualifications
and none of the disqualifications provided by law in order to become Filipino citizens. In
contrast, as stated in the early case Roa v. Collector of Customs,12 a natural-born citizen is a
citizen "who has become such at the moment of his birth."

The assailed HRET Decision, penned by Mr. Justice Vicente V. Mendoza, explains clearly who
are considered natural-born Filipino citizens. He traces the concept as first defined in Article
III of the 1973 Constitution, which simply provided as follows:

"Sec 4. A natural-born citizen is one who is a citizen of the Philippines from birth
without having to perform any act to acquire or perfect his Philippine citizenship."

Under the above definition, there are two requisites in order that a Filipino citizen may be
considered "natural-born": (1) one must be a citizen of the Philippines from birth, and (2) one
does not have to do anything to acquire or perfect one's Philippine citizenship.13 Thus, under
the 1973 Constitution, excluded from the class of "natural-born citizens" were (1) those who
were naturalized and (2) those born before January 17, 1973, of Filipino mothers who, upon
reaching the age of majority, elected Philippine citizenship.14

The present Constitution, however, has expanded the scope of natural-born citizens to include
"[t]hose who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof,"
meaning those covered under class (2) above. Consequently, only naturalized Filipino citizens
are not considered natural-born citizens. Premising therefrom, respondent – being clearly and
concededly not naturalized – is, therefore, a natural-born citizen of the Philippines.15

With respect to repatriates, since the Constitution does not classify them separately, they
naturally reacquire their original classification before the loss of their Philippine citizenship. In
the case of Congressman Teodoro C. Cruz, upon his repatriation in1994, he reacquired his
lost citizenship. In other words, he regained his original status as a natural-born Filipino citizen,
nothing less.

3. No Grave Abuse of Discretion on the Part of HRET

Third, the HRET did not abuse, much less gravely abuse, its discretion in holding that
Respondent Cruz is a natural-born Filipino citizen who is qualified to be a member of Congress.
I stress that the Court, in this certiorari proceeding before us, is limited to determining whether
the HRET committed grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing its assailed Decision. The Court has no power to reverse or modify HRET's rulings,
simply because it differs in its perception of controversies. It cannot substitute its discretion for
that of HRET, an independent, constitutional body with its own specific mandate.

The Constitution explicitly states that the respective Electoral Tribunals of the chambers of
Congress "shall be the sole judges of all contests relating to the election, returns, and
qualifications their respective members."16 In several cases,17 this Court has held that the
power and the jurisdiction of the Electoral Tribunals are original and exclusive, as if they
remained in the legislature, a coequal branch of government. Their judgment are beyond
judicial interference, unless rendered without or in excess of their jurisdiction or with grave
abuse of discretion.18 In the elegant words of Mr. Justice Hugo E. Gutierrez Jr.:19
 "The Court does not venture into the perilous area of trying to correct perceived
errors of independent branches of the Government. It comes in only when it has to
vindicate a denial of due process or correct an abuse of discretion so grave or glaring
that no less than the Constitution calls for remedial action."

True, there is no settled judicial doctrine on the exact effect of repatriation. But, as earlier
explained, the legal and common definition of repatriation is the reacquisition of the former
citizenship. How then can the HRET be rebuked with grave abuse of discretion? At best, I can
concede that the legal definition is not judicially settled or is even doubtful. But an interpretation
made in good faith and grounded o reason one way or the other cannot be the source of grave
abuse amounting to lack or excess of jurisdiction. The HRET did not violate the Constitution
or the law or any settled judicial doctrine. It was definitely acting within its exclusive domain.

Be it remembered that our Constitution vests upon the HRET the power to be the sole judge
of the qualifications of members of the House of Representatives, one of which is citizenship.
Absent any clear showing of a manifest violation of the Constitution or the law or nay judicial
decision, this Court cannot impute grave abuse of discretion to the HRET in the latter's actions
on matters over which full discretionary authority is lodged upon it by our fundamental law.20
Even assuming that we disagree with the conclusion of public respondent, we cannot ipso
facto attribute to it "grave abuse of discretion." Verily, there is a line between perceived error
and grave abuse.21

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as
is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. "It must be grave
abuse of discretion as when the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and must be so patent and so gross as to amount to
an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all
in contemplation of law."22

That the HRET, after careful deliberation and purposeful study, voted 7 to 2 to issue its
Decision upholding the qualifications of Congressman Cruz could not in any wise be
condemned as gravely abusive. Neither can I find any "patent or gross" arbitrariness or
despotism "by reason of passion or hostility" in such exercise.

4. In Case of Doubt, Popular Will Prevails

Fourth, the court has a solemn duty to uphold the clear and unmistakable mandate of the
people. It cannot supplant the sovereign will of the Second District of Pangasinan with
fractured legalism. The people of the District have clearly spoken. They overwhelmingly and
unequivocally voted for private respondent to represent them in the House of Representatives.
The votes that Cruz garnered (80, 119) in the last elections were much more than those of all
his opponents combined (66, 182).23 In such instances, all possible doubts should be resolved
in favor of the winning candidate's eligibility; to rule otherwise would be to defeat the will of the
people.24

Well-entrenched in our jurisprudence is the doctrine that in case of doubt, political laws must
be so constructed as to give life and spirit to the popular mandate freely expressed through
the ballot.25 Public interest and the sovereign will should, at all times, be the paramount
considerations in election controversies.26 For it would be better to err in favor of the people's
choice than to be right in complex but little understood legalisms.27

"Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign
will in order to ensure the survival of our democracy. In any action involving the possibility of
a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the
issues in a manner that would give effect to the will of the majority, for it is merely sound public
policy to cause elective offices to be filled by those who are the choice of the majority. To
successfully challenge a winning candidate's qualifications, the petitioner must clearly
demonstrative that the ineligibility is so patently antagonistic to constitutional and legal
principles that overriding such ineligibility and thereby giving effect to the apparent will of the
people would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote."28

5. Current Trend Towards Globalization

Fifth, the current trend, economically as well as politically, is towards globalization.29
Protectionist barriers dismantled. Whereas, in the past, governments frowned upon the
opening of their doors to aliens who wanted to enjoy the same privileges as their citizens, the
current era is adopting a more liberal perspective. No longer are applicants for citizenship eyed
with the suspicion that they merely want to exploit local resources for themselves. They are
now being considered potential sources of developmental skills, know-how and capital. 1âwphi 1.nêt

More so should our government open its doors to former Filipinos, like Congressman Cruz,
who want to rejoin the Filipino community as citizens again. They are not "aliens" in the true
sense of the law. They are actually Filipino by blood, by origin and by culture, who want to
reacquire their former citizenship.

It cannot be denied that most Filipinos go abroad and apply for naturalization in foreign
countries, because of the great economic or social opportunities there. Hence, we should
welcome former Filipino citizens desirous of not simply returning to the country or regaining
Philippine citizenship, but of serving the Filipino people as well. One of these admirable Filipino
is private respondent who, in only a year after being absent from the Philippines for about eight
(8) years, was already voted municipal mayor of Mangatarem, Pangasinan. And after serving
as such for just one term, he was overwhelmingly chosen by the people to be their
representative in Congress.

I reiterate, the people have spoken. Let not a restrictive and parochial interpretation of the law
bar the sovereign will. Let not grave abuse be imputed on the legitimate exercise of HRET's
prerogatives.

WHEREFORE, I vote to DISMISS the petition.

CASE NO. 2

EN BANC

March 8, 2016

G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.

x-----------------------x

G.R. No. 221698-700

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO
D. VALDEZ Respondents.

DECISION

PEREZ, J.:

Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the
Rules of Court with extremely urgent application for an ex parte issuance of temporary
restraining order/status quo ante order and/or writ of preliminary injunction assailing the
following: (1) 1 December 2015 Resolution of the Commission on Elections (COMELEC)
Second Division; (2) 23 December 2015 Resolution of the COMELEC En Banc, in SPA
No. 15-001 (DC); (3) 11 December 2015 Resolution of the COMELEC First Division; and
( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC),
SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having been issued without
jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.

The Facts

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn

infant in the Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3
September 1968. Parental care and custody over petitioner was passed on by Edgardo to
his relatives, Emiliano Militar (Emiliano) and his wife. Three days after, 6 September 1968,
Emiliano reported and registered petitioner as a foundling with the Office of the Civil
Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and Certificate of Live
Birth, the petitioner was given the name "Mary Grace Natividad Contreras Militar." 1

When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a.
Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her
adoption with the Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the
trial court granted their petition and ordered that petitioner's name be changed from "Mary
Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although
necessary notations were made by OCR-Iloilo on petitioner's foundling certificate
reflecting the court decreed adoption, the petitioner's adoptive mother discovered only
2

sometime in the second half of 2005 that the lawyer who handled petitioner's adoption
failed to secure from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's
new name and the name of her adoptive parents. Without delay, petitioner's mother
3

executed an affidavit attesting to the lawyer's omission which she submitted to the OCR-
Iloilo. On 4 May 2006, OCR-Iloilo issued a new Certificate of Live Birth in the name of
Mary Grace Natividad Sonora Poe. 4

Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with
the local COMELEC Office in San Juan City. On 13 December 1986, she received her
COMELEC Voter's Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro
Manila. 5

On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F927287 6

by the Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May
1998, she renewed her Philippine passport and respectively secured Philippine Passport
Nos. L881511 and DD156616. 7

Initially, the petitioner enrolled and pursued a degree in Development Studies at the
University of the Philippines but she opted to continue her studies abroad and left for the
8

United States of America (U.S.) in 1988. Petitioner graduated in 1991 from Boston College
in Chestnuts Hill, Massachusetts where she earned her Bachelor of Arts degree in Political
Studies. 9

On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares

(Llamanzares), a citizen of both the Philippines and the U.S., at Sanctuario de San Jose
Parish in San Juan City. Desirous of being with her husband who was then based in the
10

U.S., the couple flew back to the U.S. two days after the wedding ceremony or on 29 July
1991. 11

While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16
April 1992. Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were
12

both born in the Philippines on 10 July 1998 and 5 June 2004, respectively. 13

On 18 October 2001, petitioner became a naturalized American citizen. She obtained U.S.
14

Passport No. 017037793 on 19 December 2001. 15

On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support
her father's candidacy for President in the May 2004 elections. It was during this time that
she gave birth to her youngest daughter Anika. She returned to the U.S. with her two
daughters on 8 July 2004. 16

After a few months, specifically on 13 December 2004, petitioner rushed back to the
Philippines upon learning of her father's deteriorating medical condition. Her father 17

slipped into a coma and eventually expired. The petitioner stayed in the country until 3
February 2005 to take care of her father's funeral arrangements as well as to assist in the
settlement of his estate. 18

According to the petitioner, the untimely demise of her father was a severe blow to her
entire family. In her earnest desire to be with her grieving mother, the petitioner and her
husband decided to move and reside permanently in the Philippines sometime in the first
quarter of 2005. The couple began preparing for their resettlement including notification
19

of their children's schools that they will be transferring to Philippine schools for the next
semester; coordination with property movers for the relocation of their household goods,
20

furniture and cars from the U.S. to the Philippines; and inquiry with Philippine authorities
21

as to the proper procedure to be followed in bringing their pet dog into the country. As 22

early as 2004, the petitioner already quit her job in the U.S. 23

Finally, petitioner came home to the Philippines on 24 May 2005 and without delay,
24

secured a Tax Identification Number from the Bureau of Internal Revenue. Her three (3)
children immediately followed while her husband was forced to stay in the U.S. to
25

complete pending projects as well as to arrange the sale of their family home there. 26
The petitioner and her children briefly stayed at her mother's place until she and her
husband purchased a condominium unit with a parking slot at One Wilson Place
Condominium in San Juan City in the second half of 2005. The corresponding 27

Condominium Certificates of Title covering the unit and parking slot were issued by the
Register of Deeds of San Juan City to petitioner and her husband on 20 February 2006. 28

Meanwhile, her children of school age began attending Philippine private schools.

On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal
of some of the family's remaining household belongings. She travelled back to the
29

Philippines on 11 March 2006. 30

In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the
family's change and abandonment of their address in the U.S. The family home was
31

eventually sold on 27 April 2006. Petitioner's husband resigned from his job in the U.S.
32

in April 2006, arrived in the country on 4 May 2006 and started working for a major
Philippine company in July 2006. 33

In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian
Hills, Quezon City where they built their family home and to this day, is where the couple
34

and their children have been residing. A Transfer Certificate of Title covering said
35

property was issued in the couple's name by the Register of Deeds of Quezon City on 1June
2006.

On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines
pursuant to Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition
Act of 2003. Under the same Act, she filed with the Bureau of Immigration (BI) a sworn
36

petition to reacquire Philippine citizenship together with petitions for derivative citizenship
on behalf of her three minor children on 10 July 2006. As can be gathered from its 18 July
37

2006 Order, the BI acted favorably on petitioner's petitions and declared that she is deemed
to have reacquired her Philippine citizenship while her children are considered as citizens
of the Philippines. Consequently, the BI issued Identification Certificates (ICs) in
38

petitioner's name and in the names of her three (3) children. 39

Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31
August 2006. She also secured from the DFA a new Philippine Passport bearing the No.
40

XX4731999. This passport was renewed on 18 March 2014 and she was issued Philippine
41

Passport No. EC0588861 by the DFA. 42

On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson

of the Movie and Television Review and Classification Board (MTRCB). Before 43

assuming her post, petitioner executed an "Affidavit of Renunciation of Allegiance to the

United States of America and Renunciation of American Citizenship" before a notary
public in Pasig City on 20 October 2010, in satisfaction of the legal requisites stated in
44

Section 5 of R.A. No. 9225. The following day, 21 October 2010 petitioner submitted the
45

said affidavit to the BI and took her oath of office as Chairperson of the MTRCB. From
46 47

then on, petitioner stopped using her American passport. 48

On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in
Manila an "Oath/Affirmation of Renunciation of Nationality of the United States." On that 49

day, she accomplished a sworn questionnaire before the U.S. Vice Consul wherein she
stated that she had taken her oath as MTRCB Chairperson on 21 October 2010 with the
intent, among others, of relinquishing her American citizenship. In the same 50

questionnaire, the petitioner stated that she had resided outside of the U.S., specifically in
the Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to present. 51

On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of
Nationality of the United States" effective 21 October 2010. 52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy
(COC) for Senator for the 2013 Elections wherein she answered "6 years and 6 months" to
the question "Period of residence in the Philippines before May 13, 2013." Petitioner 53

obtained the highest number of votes and was proclaimed Senator on 16 May 2013. 54

On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No.

DE0004530. 55

On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016
Elections. In her COC, the petitioner declared that she is a natural-born citizen and that
56

her residence in the Philippines up to the day before 9 May 2016 would be ten (10) years
and eleven (11) months counted from 24 May 2005. The petitioner attached to her COC
57

an "Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and sworn to

before a notary public in Quezon City on 14 October 2015. 58

Petitioner's filing of her COC for President in the upcoming elections triggered the filing
of several COMELEC cases against her which were the subject of these consolidated cases.

Origin of Petition for Certiorari in G.R. No. 221697

A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a
petition to deny due course or cancel said COC which was docketed as SPA No. 15-001
(DC) and raffled to the COMELEC Second Division. She is convinced that the
59

COMELEC has jurisdiction over her petition. Essentially, Elamparo's contention is that
60

petitioner committed material misrepresentation when she stated in her COC that she is a
natural-born Filipino citizen and that she is a resident of the Philippines for at least ten (10)
years and eleven (11) months up to the day before the 9 May 2016 Elections. 61

On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a

natural-born Filipino on account of the fact that she was a foundling. Elamparo claimed
62

that international law does not confer natural-born status and Filipino citizenship on
foundlings. Following this line of reasoning, petitioner is not qualified to apply for
63

reacquisition of Filipino citizenship under R.A. No. 9225 for she is not a natural-born
Filipino citizen to begin with. Even assuming arguendo that petitioner was a natural-born
64

Filipino, she is deemed to have lost that status when she became a naturalized American
citizen. According to Elamparo, natural-born citizenship must be continuous from birth.
65 66

On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by
the sworn declaration she made in her 2012 COC for Senator wherein she indicated that
she had resided in the country for only six ( 6) years and six ( 6) months as of May 2013
Elections. Elamparo likewise insisted that assuming arguendo that petitioner is qualified
to regain her natural-born status under R.A. No. 9225, she still fell short of the ten-year
residency requirement of the Constitution as her residence could only be counted at the
earliest from July 2006, when she reacquired Philippine citizenship under the said Act.
Also on the assumption that petitioner is qualified to reacquire lost Philippine Citizenship,
Elamparo is of the belief that she failed to reestablish her domicile in the Philippines. 67

Petitioner seasonably filed her Answer wherein she countered that:

(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was
actually a petition for quo warranto which could only be filed if Grace Poe wins in
the Presidential elections, and that the Department of Justice (DOJ) has primary
jurisdiction to revoke the BI's July 18, 2006 Order;

(2) the petition failed to state a cause of action because it did not contain allegations
which, if hypothetically admitted, would make false the statement in her COC that
 she is a natural-born Filipino citizen nor was there any allegation that there was a
willful or deliberate intent to misrepresent on her part;

(3) she did not make any material misrepresentation in the COC regarding her
citizenship and residency qualifications for:

a. the 1934 Constitutional Convention deliberations show that foundlings

were considered citizens;

b. foundlings are presumed under international law to have been born of

citizens of the place where they are found;

c. she reacquired her natural-born Philippine citizenship under the

provisions of R.A. No. 9225;

d. she executed a sworn renunciation of her American citizenship prior to

the filing of her COC for President in the May 9, 2016 Elections and that
the same is in full force and effect and has not been withdrawn or recanted;

e. the burden was on Elamparo in proving that she did not possess natural-
born status;

f. residence is a matter of evidence and that she reestablished her domicile

in the Philippines as early as May 24, 2005;

g. she could reestablish residence even before she reacquired natural-born

citizenship under R.A. No. 9225;

h. statement regarding the period of residence in her 2012 COC for Senator
was an honest mistake, not binding and should give way to evidence on her
true date of reacquisition of domicile;

i. Elamparo's petition is merely an action to usurp the sovereign right of the

Filipino people to decide a purely political question, that is, should she serve
as the country's next leader. 68

After the parties submitted their respective Memoranda, the petition was deemed submitted
for resolution.

On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding

that petitioner's COC, filed for the purpose of running for the President of the Republic of
the Philippines in the 9 May 2016 National and Local Elections, contained material
representations which are false. The fallo of the aforesaid Resolution reads:

WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny
Due Course to or Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the
Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016
National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe
Llamanzares is hereby CANCELLED. 69

Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner
which the COMELEC En Banc resolved in its 23 December 2015 Resolution by denying
the same.70

Origin of Petition for Certiorari in G.R. Nos. 221698-700

This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad),
Antonio P. Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before
the COMELEC which were consolidated and raffled to its First Division.

In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of

Procedure, docketed as SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the
71

requisite residency and citizenship to qualify her for the Presidency. 72

Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons
of unknown parentage, particularly foundlings, cannot be considered natural-born Filipino
citizens since blood relationship is determinative of natural-born status. Tatad invoked the
73

rule of statutory construction that what is not included is excluded. He averred that the fact
that foundlings were not expressly included in the categories of citizens in the 193 5
Constitution is indicative of the framers' intent to exclude them. Therefore, the burden lies
74

on petitioner to prove that she is a natural-born citizen. 75

Neither can petitioner seek refuge under international conventions or treaties to support her
claim that foundlings have a nationality. According to Tatad, international conventions
76

and treaties are not self-executory and that local legislations are necessary in order to give
effect to treaty obligations assumed by the Philippines. He also stressed that there is no
77

standard state practice that automatically confers natural-born status to foundlings. 78

Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to
reacquire Philippine citizenship under R.A. No. 9225 because it only applies to former
natural-born citizens and petitioner was not as she was a foundling. 79

Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with
the ten (10) year residency requirement. Tatad opined that petitioner acquired her domicile
80

in Quezon City only from the time she renounced her American citizenship which was
sometime in 2010 or 2011. Additionally, Tatad questioned petitioner's lack of intention to
81

abandon her U.S. domicile as evinced by the fact that her husband stayed thereat and her
frequent trips to the U.S.82

In support of his petition to deny due course or cancel the COC of petitioner, docketed as
SPA No. 15-139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not
bestow upon her the status of a natural-born citizen. He advanced the view that former
83

natural-born citizens who are repatriated under the said Act reacquires only their Philippine
citizenship and will not revert to their original status as natural-born citizens. 84

He further argued that petitioner's own admission in her COC for Senator that she had only
been a resident of the Philippines for at least six (6) years and six (6) months prior to the
13 May 2013 Elections operates against her. Valdez rejected petitioner's claim that she
could have validly reestablished her domicile in the Philippines prior to her reacquisition
of Philippine citizenship. In effect, his position was that petitioner did not meet the ten (10)
year residency requirement for President.

Unlike the previous COMELEC cases filed against petitioner, Contreras' petition, 85

docketed as SPA No. 15-007 (DC), limited the attack to the residency issue. He claimed
that petitioner's 2015 COC for President should be cancelled on the ground that she did not
possess the ten-year period of residency required for said candidacy and that she made false
entry in her COC when she stated that she is a legal resident of the Philippines for ten (10)
years and eleven (11) months by 9 May 2016. Contreras contended that the reckoning
86

period for computing petitioner's residency in the Philippines should be from 18 July 2006,
the date when her petition to reacquire Philippine citizenship was approved by the BI. He 87

asserted that petitioner's physical presence in the country before 18 July 2006 could not be
valid evidence of reacquisition of her Philippine domicile since she was then living here as
an American citizen and as such, she was governed by the Philippine immigration laws. 88
In her defense, petitioner raised the following arguments:

First, Tatad's petition should be dismissed outright for failure to state a cause of action. His
petition did not invoke grounds proper for a disqualification case as enumerated under
Sections 12 and 68 of the Omnibus Election Code. Instead, Tatad completely relied on the
89

alleged lack of residency and natural-born status of petitioner which are not among the
recognized grounds for the disqualification of a candidate to an elective office. 90

Second, the petitions filed against her are basically petitions for quo warranto as they focus
on establishing her ineligibility for the Presidency. A petition for quo warranto falls within
91

the exclusive jurisdiction of the Presidential Electoral Tribunal (PET) and not the
COMELEC. 92

Third, the burden to prove that she is not a natural-born Filipino citizen is on the
respondents. Otherwise stated, she has a presumption in her favor that she is a natural-
93

born citizen of this country.

Fourth, customary international law dictates that foundlings are entitled to a nationality
and are presumed to be citizens of the country where they are found. Consequently, the
94

petitioner is considered as a natural-born citizen of the Philippines. 95

Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under
R.A. No. 9225 or the right to reacquire her natural-born status. Moreover, the official acts
96

of the Philippine Government enjoy the presumption of regularity, to wit: the issuance of
the 18 July 2006 Order of the BI declaring her as natural-born citizen, her appointment as
MTRCB Chair and the issuance of the decree of adoption of San Juan RTC. She believed97

that all these acts reinforced her position that she is a natural-born citizen of the
Philippines.98

Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her
domicile of choice in the Philippines as demonstrated by her children's resettlement and
schooling in the country, purchase of a condominium unit in San Juan City and the
construction of their family home in Corinthian Hills. 99

Seventh, she insisted that she could legally reestablish her domicile of choice in the
Philippines even before she renounced her American citizenship as long as the three
determinants for a change of domicile are complied with. She reasoned out that there was
100

no requirement that renunciation of foreign citizenship is a prerequisite for the acquisition

of a new domicile of choice. 101

Eighth, she reiterated that the period appearing in the residency portion of her COC for
Senator was a mistake made in good faith. 102

In a Resolution promulgated on 11 December 2015, the COMELEC First Division ruled

103

that petitioner is not a natural-born citizen, that she failed to complete the ten (10) year
residency requirement, and that she committed material misrepresentation in her COC
when she declared therein that she has been a resident of the Philippines for a period of ten
(10) years and eleven (11) months as of the day of the elections on 9 May 2016. The
COMELEC First Division concluded that she is not qualified for the elective position of
President of the Republic of the Philippines. The dispositive portion of said Resolution
reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby

RESOLVES, to GRANT the Petitions and cancel the Certificate of Candidacy of MARY
GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of
President of the Republic of the Philippines in connection with the 9 May 2016
Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First
Division's Resolution. On 23 December 2015, the COMELEC En Banc issued a Resolution
denying petitioner's motion for reconsideration.

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions
for certiorari with urgent prayer for the issuance of an ex parte temporary restraining
order/status quo ante order and/or writ of preliminary injunction. On 28 December 2015,
temporary restraining orders were issued by the Court enjoining the COMELEC and its
representatives from implementing the assailed COMELEC Resolutions until further
orders from the Court. The Court also ordered the consolidation of the two petitions filed
by petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments were held in
these cases.

The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to
ANNUL and SET ASIDE the:

1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA
No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares.

2. Resolution dated 11 December 2015, rendered through its First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner,
vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007
(DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D.
Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent.

3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the

1 December 2015 Resolution of the Second Division.

4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the

11 December 2015 Resolution of the First Division.

The procedure and the conclusions from which the questioned Resolutions emanated are
tainted with grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a
QUALIFIED CANDIDATE for President in the 9 May 2016 National Elections.

The issue before the COMELEC is whether or not the COC of petitioner should be denied
due course or cancelled "on the exclusive ground" that she made in the certificate a false
material representation. The exclusivity of the ground should hedge in the discretion of the
COMELEC and restrain it from going into the issue of the qualifications of the candidate
for the position, if, as in this case, such issue is yet undecided or undetermined by the proper
authority. The COMELEC cannot itself, in the same cancellation case, decide the
qualification or lack thereof of the candidate.

We rely, first of all, on the Constitution of our Republic, particularly its provisions in
Article IX, C, Section 2:

Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections,
returns, and qualifications of all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective municipal officials
 decided by trial courts of general jurisdiction, or involving elective barangay
officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving

elective municipal and barangay offices shall be final, executory, and not
appealable.

(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling places,
appointment of election officials and inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the
Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful,
and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or

coalitions which, in addition to other requirements, must present their platform or
program of government; and accredit citizens' arms of the Commission on
Elections. Religious denominations and sects shall not be registered. Those which
seek to achieve their goals through violence or unlawful means, or refuse to uphold
and adhere to this Constitution, or which are supported by any foreign government
shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political

parties, organizations, coalitions, or candidates related to elections constitute
interference in national affairs, and, when accepted, shall be an additional ground
for the cancellation of their registration with the Commission, in addition to other
penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for
inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases
of violations of election laws, including acts or omissions constituting election
frauds, offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending,

including limitation of places where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses, malpractices, and
nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation or
disregard of, or disobedience to its directive, order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct
of each election, plebiscite, initiative, referendum, or recall.

Not any one of the enumerated powers approximate the exactitude of the provisions of
Article VI, Section 17 of the same basic law stating that:

The Senate and the House of Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices of the Supreme Court
to be designated by the Chief Justice, and the remaining six shall be Members of
the Senate or the House of Representatives, as the case may be, who shall be chosen
on the basis of proportional representation from the political parties and the parties
 or organizations registered under the party-list system represented therein. The
senior Justice in the Electoral Tribunal shall be its Chairman.

or of the last paragraph of Article VII, Section 4 which provides that:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating
to the election, returns, and qualifications of the President or Vice-President, and
may promulgate its rules for the purpose.

The tribunals which have jurisdiction over the question of the qualifications of the
President, the Vice-President, Senators and the Members of the House of Representatives
was made clear by the Constitution. There is no such provision for candidates for these
positions.

Can the COMELEC be such judge?

The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on

Elections, which was affirmatively cited in the En Banc decision in Fermin v.
104

COMELEC is our guide. The citation in Fermin reads:

105

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of
candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in
Rule 25 § 1, the following:

Grounds for disqualification. - Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law
or who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be
supplied by a mere rule. Such an act is equivalent to the creation of a cause of action which
is a substantive matter which the COMELEC, in the exercise of its rule-making power
under Art. IX, A, §6 of the Constitution, cannot do it. It is noteworthy that the Constitution
withholds from the COMELEC even the power to decide cases involving the right to vote,
which essentially involves an inquiry into qualifications based on age, residence and
citizenship of voters. [Art. IX, C, §2(3)]

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into
grounds for disqualification is contrary to the evident intention of the law. For not only in
their grounds but also in their consequences are proceedings for "disqualification" different
from those for a declaration of "ineligibility." "Disqualification" proceedings, as already
stated, are based on grounds specified in § 12 and §68 of the Omnibus Election Code and
in §40 of the Local Government Code and are for the purpose of barring an individual from
becoming a candidate or from continuing as a candidate for public office. In a word, their
purpose is to eliminate a candidate from the race either from the start or during its progress.
"Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the
Constitution or the statutes for holding public office and the purpose of the proceedings for
declaration of ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does not
imply that he is not disqualified from becoming a candidate or continuing as a candidate
for a public office and vice versa. We have this sort of dichotomy in our Naturalization
Law. (C.A. No. 473) That an alien has the qualifications prescribed in §2 of the Law does
not imply that he does not suffer from any of [the] disqualifications provided in §4.

Before we get derailed by the distinction as to grounds and the consequences of the
respective proceedings, the importance of the opinion is in its statement that "the lack of
provision for declaring the ineligibility of candidates, however, cannot be supplied by a
mere rule". Justice Mendoza lectured in Romualdez-Marcos that:

Three reasons may be cited to explain the absence of an authorized proceeding for
determining before election the qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity
for determining his eligibility for the office. In contrast, whether an individual should be
disqualified as a candidate for acts constituting election offenses (e.g., vote buying, over
spending, commission of prohibited acts) is a prejudicial question which should be
determined lest he wins because of the very acts for which his disqualification is being
sought. That is why it is provided that if the grounds for disqualification are established, a
candidate will not be voted for; if he has been voted for, the votes in his favor will not be
counted; and if for some reason he has been voted for and he has won, either he will not be
proclaimed or his proclamation will be set aside.

Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or,
as in this case, his domicile, may take a long time to make, extending beyond the beginning
of the term of the office. This is amply demonstrated in the companion case (G.R. No.
120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence
was still pending in the COMELEC even after the elections of May 8, 1995. This is contrary
to the summary character proceedings relating to certificates of candidacy. That is why
the law makes the receipt of certificates of candidacy a ministerial duty of the COMELEC
and its officers. The law is satisfied if candidates state in their certificates of candidacy that
they are eligible for the position which they seek to fill, leaving the determination of their
qualifications to be made after the election and only in the event they are elected. Only in
cases involving charges of false representations made in certificates of candidacy is the
COMELEC given jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections
for President, Vice President, Senators and members of the House of Representatives.
(R.A. No. 7166, § 15) The purpose is to preserve the prerogatives of the House of
Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the
Constitution of the election, returns and qualifications of members of Congress of the
President and Vice President, as the case may be. 106

To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin,

led to the amendment through COMELEC Resolution No. 9523, on 25 September 2012 of
its Rule 25. This, the 15 February1993 version of Rule 25, which states that:

Grounds for disqualification. -Any candidate who does not possess all the qualifications
of a candidate as provided for by the Constitution or by existing law or who commits any
act declared by law to be grounds for disqualification may be disqualified from continuing
as a candidate.107

was in the 2012 rendition, drastically changed to:

Grounds. - Any candidate who, in action or protest in which he is a party, is declared by

final decision of a competent court, guilty of, or found by the Commission to be suffering
from any disqualification provided by law or the Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel

a Certificate of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or
a combination thereof, shall be summarily dismissed.

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an

authorized proceeding for determining before election the qualifications of candidate. Such
that, as presently required, to disqualify a candidate there must be a declaration by a final
judgment of a competent court that the candidate sought to be disqualified "is guilty of or
found by the Commission to be suffering from any disqualification provided by law or the
Constitution."

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides
of one to the other. Both do not allow, are not authorizations, are not vestment of
jurisdiction, for the COMELEC to determine the qualification of a candidate. The facts of
qualification must beforehand be established in a prior proceeding before an authority
properly vested with jurisdiction. The prior determination of qualification may be by
statute, by executive order or by a judgment of a competent court or tribunal.

If a candidate cannot be disqualified without a prior finding that he or she is suffering from
a disqualification "provided by law or the Constitution," neither can the certificate of
candidacy be cancelled or denied due course on grounds of false representations regarding
his or her qualifications, without a prior authoritative finding that he or she is not qualified,
such prior authority being the necessary measure by which the falsity of the representation
can be found. The only exception that can be conceded are self-evident facts of
unquestioned or unquestionable veracity and judicial confessions. Such are, anyway, bases
equivalent to prior decisions against which the falsity of representation can be determined.

The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that
deals with, as in this case, alleged false representations regarding the candidate's citizenship
and residence, forced the COMELEC to rule essentially that since foundlings are not 108

mentioned in the enumeration of citizens under the 1935 Constitution, they then cannot
109

be citizens. As the COMELEC stated in oral arguments, when petitioner admitted that she
is a foundling, she said it all. This borders on bigotry. Oddly, in an effort at tolerance, the
COMELEC, after saying that it cannot rule that herein petitioner possesses blood
relationship with a Filipino citizen when "it is certain that such relationship is
indemonstrable," proceeded to say that "she now has the burden to present evidence to
prove her natural filiation with a Filipino parent."

The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.

At the outset, it must be noted that presumptions regarding paternity is neither unknown
nor unaccepted in Philippine Law. The Family Code of the Philippines has a whole chapter
on Paternity and Filiation. That said, there is more than sufficient evider1ce that petitioner
110

has Filipino parents and is therefore a natural-born Filipino. Parenthetically, the burden of
proof was on private respondents to show that petitioner is not a Filipino citizen. The
private respondents should have shown that both of petitioner's parents were aliens. Her
admission that she is a foundling did not shift the burden to her because such status did not
exclude the possibility that her parents were Filipinos, especially as in this case where there
is a high probability, if not certainty, that her parents are Filipinos.

The factual issue is not who the parents of petitioner are, as their identities are unknown,
but whether such parents are Filipinos. Under Section 4, Rule 128:

Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in
issue as to induce belief in its existence or no-existence. Evidence on collateral matters
shall not be allowed, except when it tends in any reasonable degree to establish the
probability of improbability of the fact in issue.

The Solicitor General offered official statistics from the Philippine Statistics Authority
(PSA) that from 1965 to 1975, the total number of foreigners born in the Philippines was
111

15,986 while the total number of Filipinos born in the country was 10,558,278. The
statistical probability that any child born in the Philippines in that decade is natural-born
Filipino was 99.83%. For her part, petitioner presented census statistics for Iloilo Province
for 1960 and 1970, also from the PSA. In 1960, there were 962,532 Filipinos and 4,734
foreigners in the province; 99.62% of the population were Filipinos. In 1970, the figures
were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures for
the child producing ages (15-49). In 1960, there were 230,528 female Filipinos as against
730 female foreigners or 99.68%. In the same year, there were 210,349 Filipino males and
886 male aliens, or 99.58%. In 1970, there were 270,299 Filipino females versus 1, 190
female aliens, or 99.56%. That same year, there were 245,740 Filipino males as against
only 1,165 male aliens or 99.53%. COMELEC did not dispute these figures. Notably,
Commissioner Arthur Lim admitted, during the oral arguments, that at the time petitioner
was found in 1968, the majority of the population in Iloilo was Filipino. 112

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she
was abandoned as an infant in a Roman Catholic Church in Iloilo City.1âwphi1 She also
has typical Filipino features: height, flat nasal bridge, straight black hair, almond shaped
eyes and an oval face.

There is a disputable presumption that things have happened according to the ordinary
course of nature and the ordinary habits of life. All of the foregoing evidence, that a person
113

with typical Filipino features is abandoned in Catholic Church in a municipality where the
population of the Philippines is overwhelmingly Filipinos such that there would be more
than a 99% chance that a child born in the province would be a Filipino, would indicate
more than ample probability if not statistical certainty, that petitioner's parents are
Filipinos. That probability and the evidence on which it is based are admissible under Rule
128, Section 4 of the Revised Rules on Evidence.

To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm.
In the words of the Solicitor General:

Second. It is contrary to common sense because foreigners do not come to the Philippines
so they can get pregnant and leave their newborn babies behind. We do not face a situation
where the probability is such that every foundling would have a 50% chance of being a
Filipino and a 50% chance of being a foreigner. We need to frame our questions properly.
What are the chances that the parents of anyone born in the Philippines would be
foreigners? Almost zero. What are the chances that the parents of anyone born in the
Philippines would be Filipinos? 99.9%.

According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average,
there were 1,766,046 children born in the Philippines to Filipino parents, as opposed to
1,301 children in the Philippines of foreign parents. Thus, for that sample period, the ratio
of non-Filipino children to natural born Filipino children is 1:1357. This means that the
statistical probability that any child born in the Philippines would be a natural born Filipino
is 99.93%.

From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while
the total number of Filipinos born in the Philippines is 15,558,278. For this period, the ratio
of non-Filipino children is 1:661. This means that the statistical probability that any child
born in the Philippines on that decade would be a natural born Filipino is 99.83%.

We can invite statisticians and social anthropologists to crunch the numbers for us, but I
am confident that the statistical probability that a child born in the Philippines would be a
natural born Filipino will not be affected by whether or not the parents are known. If at all,
the likelihood that a foundling would have a Filipino parent might even be higher than
99.9%. Filipinos abandon their children out of poverty or perhaps, shame. We do not
imagine foreigners abandoning their children here in the Philippines thinking those infants
would have better economic opportunities or believing that this country is a tropical
paradise suitable for raising abandoned children. I certainly doubt whether a foreign couple
has ever considered their child excess baggage that is best left behind.
To deny full Filipino citizenship to all foundlings and render them stateless just because
there may be a theoretical chance that one among the thousands of these foundlings might
be the child of not just one, but two, foreigners is downright discriminatory, irrational, and
unjust. It just doesn't make any sense. Given the statistical certainty - 99.9% - that any child
born in the Philippines would be a natural born citizen, a decision denying foundlings such
status is effectively a denial of their birthright. There is no reason why this Honorable Court
should use an improbable hypothetical to sacrifice the fundamental political rights of an
entire class of human beings. Your Honor, constitutional interpretation and the use of
common sense are not separate disciplines.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935
Constitution's enumeration is silent as to foundlings, there is no restrictive language which
would definitely exclude foundlings either. Because of silence and ambiguity in the
enumeration with respect to foundlings, there is a need to examine the intent of the framers.
In Nitafan v. Commissioner of Internal Revenue, this Court held that:
114

The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of
the people adopting it should be given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the realization of the purpose of
the framers and of the people in the adoption of the Constitution. It may also be
safely assumed that the people in ratifying the Constitution were guided mainly by
the explanation offered by the framers. 115

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934
Constitutional Convention show that the framers intended foundlings to be covered by the
enumeration. The following exchange is recorded:

Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted:
"The natural children of a foreign father and a Filipino mother not recognized by the father.

xxxx

President:
[We] would like to request a clarification from the proponent of the amendment. The
gentleman refers to natural children or to any kind of illegitimate children?

Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage,
natural or illegitimate children of unknown parents.

Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them
Filipino, that is, I refer to the Spanish Code wherein all children of unknown parentage
born in Spanish territory are considered Spaniards, because the presumption is that a child
of unknown parentage is the son of a Spaniard. This may be applied in the Philippines in
that a child of unknown parentage born in the Philippines is deemed to be Filipino, and
there is no need ...

Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.

Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.

Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the
children of unknown parentage."

Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is
not unknown.

President:
Does the gentleman accept the amendment or not?

Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a
Filipina with a foreigner who does not recognize the child. Their parentage is not unknown
and I think those of overseas Filipino mother and father [whom the latter] does not
recognize, should also be considered as Filipinos.

President:
The question in order is the amendment to the amendment from the Gentleman from Cebu,
Mr. Briones.

Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the
Legislature?

Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the
constitution need [not] refer to them. By international law the principle that children or
people born in a country of unknown parents are citizens in this nation is recognized, and
it is not necessary to include a provision on the subject exhaustively.
116

Though the Rafols amendment was not carried out, it was not because there was any
objection to the notion that persons of "unknown parentage" are not citizens but only
because their number was not enough to merit specific mention. Such was the account, 117

cited by petitioner, of delegate and constitution law author Jose Aruego who said:

During the debates on this provision, Delegate Rafols presented an amendment to

include as Filipino citizens the illegitimate children with a foreign father of a
mother who was a citizen of the Philippines, and also foundlings; but this
amendment was defeated primarily because the Convention believed that the cases,
being too few to warrant the inclusion of a provision in the Constitution to apply to
them, should be governed by statutory legislation. Moreover, it was believed that
the rules of international law were already clear to the effect that illegitimate
children followed the citizenship of the mother, and that foundlings followed the
nationality of the place where they were found, thereby making unnecessary the
inclusion in the Constitution of the proposed amendment.

This explanation was likewise the position of the Solicitor General during the 16 February
2016 Oral Arguments:

We all know that the Rafols proposal was rejected. But note that what was declined was
the proposal for a textual and explicit recognition of foundlings as Filipinos. And so, the
way to explain the constitutional silence is by saying that it was the view of Montinola and
Roxas which prevailed that there is no more need to expressly declare foundlings as
Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct.
Framers of a constitution can constitutionalize rules based on assumptions that are
imperfect or even wrong. They can even overturn existing rules. This is basic. What matters
here is that Montinola and Roxas were able to convince their colleagues in the convention
that there is no more need to expressly declare foundlings as Filipinos because they are
already impliedly so recognized.

In other words, the constitutional silence is fully explained in terms of linguistic efficiency
and the avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a
class, as Filipinos under Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive
policy is carried over into the 1973 and 1987 Constitution. It is appropriate to invoke a
famous scholar as he was paraphrased by Chief Justice Fernando: the constitution is not
silently silent, it is silently vocal.
118

The Solicitor General makes the further point that the framers "worked to create a just and
humane society," that "they were reasonable patriots and that it would be unfair to impute
upon them a discriminatory intent against foundlings." He exhorts that, given the grave
implications of the argument that foundlings are not natural-born Filipinos, the Court must
search the records of the 1935, 1973 and 1987 Constitutions "for an express intention to
deny foundlings the status of Filipinos. The burden is on those who wish to use the
constitution to discriminate against foundlings to show that the constitution really intended
to take this path to the dark side and inflict this across the board marginalization."

We find no such intent or language permitting discrimination against foundlings. On the

contrary, all three Constitutions guarantee the basic right to equal protection of the laws.
All exhort the State to render social justice. Of special consideration are several provisions
in the present charter: Article II, Section 11 which provides that the "State values the
dignity of every human person and guarantees full respect for human rights," Article XIII,
Section 1 which mandates Congress to "give highest priority to the enactment of measures
that protect and enhance the right of all the people to human dignity, reduce social,
economic, and political inequalities x x x" and Article XV, Section 3 which requires the
State to defend the "right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty, exploitation, and other
conditions prejudicial to their development." Certainly, these provisions contradict an
intent to discriminate against foundlings on account of their unfortunate status.

Domestic laws on adoption also support the principle that foundlings are Filipinos. These
laws do not provide that adoption confers citizenship upon the adoptee. Rather, the adoptee
must be a Filipino in the first place to be adopted. The most basic of such laws is Article
15 of the Civil Code which provides that "[l]aws relating to family rights, duties, status,
conditions, legal capacity of persons are binding on citizens of the Philippines even though
living abroad." Adoption deals with status, and a Philippine adoption court will have
jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic, a child left by
119

an unidentified mother was sought to be adopted by aliens. This Court said:

In this connection, it should be noted that this is a proceedings in rem, which no court may
entertain unless it has jurisdiction, not only over the subject matter of the case and over the
parties, but also over the res, which is the personal status of Baby Rose as well as that of
petitioners herein. Our Civil Code (Art. 15) adheres to the theory that jurisdiction over the
status of a natural person is determined by the latter's nationality. Pursuant to this theory,
we have jurisdiction over the status of Baby Rose, she being a citizen of the Philippines,
but not over the status of the petitioners, who are foreigners. (Underlining supplied)
120

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to
Govern the Inter-Country Adoption of Filipino Children and For Other Purposes"
(otherwise known as the "Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled
"An Act Establishing the Rules and Policies on the Adoption of Filipino Children and For
Other Purposes" (otherwise known as the Domestic Adoption Act of 1998) and this Court's
A.M. No. 02-6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino children"
and include foundlings as among Filipino children who may be adopted.

It has been argued that the process to determine that the child is a foundling leading to the
issuance of a foundling certificate under these laws and the issuance of said certificate are
acts to acquire or perfect Philippine citizenship which make the foundling a naturalized
Filipino at best. This is erroneous. Under Article IV, Section 2 "Natural-born citizens are
those who are citizens of the Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship." In the first place, "having to perform an
act" means that the act must be personally done by the citizen. In this instance, the
determination of foundling status is done not by the child but by the authorities. Secondly,
121

the object of the process is the determination of the whereabouts of the parents, not the
citizenship of the child. Lastly, the process is certainly not analogous to naturalization
proceedings to acquire Philippine citizenship, or the election of such citizenship by one
born of an alien father and a Filipino mother under the 1935 Constitution, which is an act
to perfect it.

In this instance, such issue is moot because there is no dispute that petitioner is a foundling,
as evidenced by a Foundling Certificate issued in her favor. The Decree of Adoption
122

issued on 13 May 1974, which approved petitioner's adoption by Jesusa Sonora Poe and
Ronald Allan Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her
"foundling parents," hence effectively affirming petitioner's status as a foundling. 123

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an
international law can become part of the sphere of domestic law either by transformation
or incorporation. The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local
legislation. On the other hand, generally accepted principles of international law, by virtue
124

of the incorporation clause of the Constitution, form part of the laws of the land even if
they do not derive from treaty obligations. Generally accepted principles of international
law include international custom as evidence of a general practice accepted as law, and
general principles of law recognized by civilized nations. International customary rules
125

are accepted as binding as a result from the combination of two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element
known as the opinionjuris sive necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is rendered obligatory by the existence
of a rule of law requiring it. "General principles of law recognized by civilized nations"
126

are principles "established by a process of reasoning" or judicial logic, based on principles

which are "basic to legal systems generally," such as "general principles of equity, i.e.,
127

the general principles of fairness and justice," and the "general principle against
discrimination" which is embodied in the "Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the International
Convention on the Elimination of All Forms of Racial Discrimination, the Convention
Against Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation." These are the same core
128

principles which underlie the Philippine Constitution itself, as embodied in the due process
and equal protection clauses of the Bill of Rights. 129

Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as
part of the generally accepted principles of international law and binding on the State. 130

Article 15 thereof states:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.
The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC).
Article 7 of the UNCRC imposes the following obligations on our country:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth
to a name, the right to acquire a nationality and as far as possible, the right to know and be
cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their
national law and their obligations under the relevant international instruments in this field,
in particular where the child would otherwise be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political
Rights (ICCPR). Article 24 thereof provide for the right of every child "to acquire a
nationality:"

Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language,
religion, national or social origin, property or birth, the right, to such measures of protection
as are required by his status as a minor, on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to
grant nationality from birth and ensure that no child is stateless. This grant of nationality
must be at the time of birth, and it cannot be accomplished by the application of our present
naturalization laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of
which require the applicant to be at least eighteen (18) years old.

The principles found in two conventions, while yet unratified by the Philippines, are
generally accepted principles of international law. The first is Article 14 of the 1930 Hague
Convention on Certain Questions Relating to the Conflict of Nationality Laws under which
a foundling is presumed to have the "nationality of the country of birth," to wit:

Article 14

A child whose parents are both unknown shall have the nationality of the country of birth.
If the child's parentage is established, its nationality shall be determined by the rules
applicable in cases where the parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of
the State in which it was found. (Underlining supplied)

The second is the principle that a foundling is presumed born of citizens of the country
where he is found, contained in Article 2 of the 1961 United Nations Convention on the
Reduction of Statelessness:

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to
the contrary, be considered to have been born within the territory of parents possessing the
nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to the 1961
Convention on the Reduction of Statelessness does not mean that their principles are not
binding. While the Philippines is not a party to the 1930 Hague Convention, it is a signatory
to the Universal Declaration on Human Rights, Article 15(1) ofwhich effectively affirms
131

Article 14 of the 1930 Hague Convention. Article 2 of the 1961 "United Nations
Convention on the Reduction of Statelessness" merely "gives effect" to Article 15(1) of the
UDHR. In Razon v. Tagitis, this Court noted that the Philippines had not signed or
132 133

ratified the "International Convention for the Protection of All Persons from Enforced
Disappearance." Yet, we ruled that the proscription against enforced disappearances in the
said convention was nonetheless binding as a "generally accepted principle of international
law." Razon v. Tagitis is likewise notable for declaring the ban as a generally accepted
principle of international law although the convention had been ratified by only sixteen
states and had not even come into force and which needed the ratification of a minimum of
twenty states. Additionally, as petitioner points out, the Court was content with the practice
of international and regional state organs, regional state practice in Latin America, and
State Practice in the United States.

Another case where the number of ratifying countries was not determinative is Mijares v.
Ranada, where only four countries had "either ratified or acceded to" the 1966
134 135

"Convention on the Recognition and Enforcement of Foreign Judgments in Civil and

Commercial Matters" when the case was decided in 2005. The Court also pointed out that
that nine member countries of the European Common Market had acceded to the
Judgments Convention. The Court also cited U.S. laws and jurisprudence on recognition
of foreign judgments. In all, only the practices of fourteen countries were considered and
yet, there was pronouncement that recognition of foreign judgments was widespread
practice.

Our approach in Razon and Mijares effectively takes into account the fact that "generally
accepted principles of international law" are based not only on international custom, but
also on "general principles of law recognized by civilized nations," as the phrase is
understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the
policy against discrimination, which are fundamental principles underlying the Bill of
Rights and which are "basic to legal systems generally," support the notion that the right
136

against enforced disappearances and the recognition of foreign judgments, were correctly
considered as "generally accepted principles of international law" under the incorporation
clause.

Petitioner's evidence shows that at least sixty countries in Asia, North and South America,
137

and Europe have passed legislation recognizing foundlings as its citizen. Forty-two (42) of
those countries follow the jus sanguinis regime. Of the sixty, only thirty-three (33) are
parties to the 1961 Convention on Statelessness; twenty-six (26) are not signatories to the
Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments pointed out
that in 166 out of 189 countries surveyed (or 87.83%), foundlings are recognized as
citizens. These circumstances, including the practice of jus sanguinis countries, show that
it is a generally accepted principle of international law to presume foundlings as having
been born of nationals of the country in which the foundling is found.

Current legislation reveals the adherence of the Philippines to this generally accepted
principle of international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's
Rules on Adoption, expressly refer to "Filipino children." In all of them, foundlings are
among the Filipino children who could be adopted. Likewise, it has been pointed that the
DFA issues passports to foundlings. Passports are by law, issued only to citizens. This
shows that even the executive department, acting through the DFA, considers foundlings
as Philippine citizens.

Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention
on Statelessness is rational and reasonable and consistent with the jus sanguinis regime in
our Constitution. The presumption of natural-born citizenship of foundlings stems from the
presumption that their parents are nationals of the Philippines. As the empirical data
provided by the PSA show, that presumption is at more than 99% and is a virtual certainty.

In sum, all of the international law conventions and instruments on the matter of nationality
of foundlings were designed to address the plight of a defenseless class which suffers from
a misfortune not of their own making. We cannot be restrictive as to their application if we
are a country which calls itself civilized and a member of the community of nations. The
Solicitor General's warning in his opening statement is relevant:

.... the total effect of those documents is to signify to this Honorable Court that those treaties
and conventions were drafted because the world community is concerned that the situation
of foundlings renders them legally invisible. It would be tragically ironic if this Honorable
Court ended up using the international instruments which seek to protect and uplift
foundlings a tool to deny them political status or to accord them second-class citizenship. 138

The COMELEC also ruled that petitioner's repatriation in July 2006 under the provisions
139

of R.A. No. 9225 did not result in the reacquisition of natural-born citizenship. The
COMELEC reasoned that since the applicant must perform an act, what is reacquired is
not "natural-born" citizenship but only plain "Philippine citizenship."

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of

repatriation statutes in general and of R.A. No. 9225 in particular.

In the seminal case of Bengson Ill v. HRET, 140

repatriation was explained as follows:

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.

R.A. No. 9225 is a repatriation statute and has been described as such in several cases.
They include Sobejana-Condon v. COMELEC where we described it as an "abbreviated
141

repatriation process that restores one's Filipino citizenship x x x." Also included is
Parreno v. Commission on Audit, which cited Tabasa v. Court of Appeals, where we
142 143

said that "[t]he repatriation of the former Filipino will allow him to recover his natural-
born citizenship. Parreno v. Commission on Audit is categorical that "if petitioner
144

reacquires his Filipino citizenship (under R.A. No. 9225), he will ... recover his natural-
born citizenship."

The COMELEC construed the phrase "from birth" in the definition of natural citizens as
implying "that natural-born citizenship must begin at birth and remain uninterrupted and
continuous from birth." R.A. No. 9225 was obviously passed in line with Congress' sole
prerogative to determine how citizenship may be lost or reacquired. Congress saw it fit to
decree that natural-born citizenship may be reacquired even if it had been once lost. It is
not for the COMELEC to disagree with the Congress' determination.

More importantly, COMELEC's position that natural-born status must be continuous was
already rejected in Bengson III v. HRET where the phrase "from birth" was clarified to
145

mean at the time of birth: "A person who at the time of his birth, is a citizen of a particular
country, is a natural-born citizen thereof." Neither is "repatriation" an act to "acquire or
perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out that there are
only two types of citizens under the 1987 Constitution: natural-born citizen and naturalized,
and that there is no third category for repatriated citizens:
It is apparent from the enumeration of who are citizens under the present Constitution that
there are only two classes of citizens: (1) those who are natural-born and (2) those who are
naturalized in accordance with law. A citizen who is not a naturalized Filipino, ie., did not
have to undergo the process of naturalization to obtain Philippine citizenship, necessarily
is a natural-born Filipino. Noteworthy is the absence in said enumeration of a separate
category for persons who, after losing Philippine citizenship, subsequently reacquire it.
The reason therefor is clear: as to such persons, they would either be natural-born or
naturalized depending on the reasons for the loss of their citizenship and the mode
prescribed by the applicable law for the reacquisition thereof. As respondent Cruz was not
required by law to go through naturalization proceedings in order to reacquire his
citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary
qualifications to be elected as member of the House of Representatives. 146

The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And
while we may always revisit a doctrine, a new rule reversing standing doctrine cannot be
retroactively applied. In Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr., 147

where we decreed reversed the condonation doctrine, we cautioned that it "should be

prospective in application for the reason that judicial decisions applying or interpreting the
laws of the Constitution, until reversed, shall form part of the legal system of the
Philippines." This Court also said that "while the future may ultimately uncover a doctrine's
error, it should be, as a general rule, recognized as good law prior to its abandonment.
Consequently, the people's reliance thereupon should be respected." 148

Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a
falsehood when she put in the spaces for "born to" in her application for repatriation under
R.A. No. 9225 the names of her adoptive parents, and this misled the BI to presume that
she was a natural-born Filipino. It has been contended that the data required were the names
of her biological parents which are precisely unknown.

This position disregards one important fact - petitioner was legally adopted. One of the
effects of adoption is "to sever all legal ties between the biological parents and the adoptee,
except when the biological parent is the spouse of the adoptee." Under R.A. No. 8552,
149

petitioner was also entitled to an amended birth certificate "attesting to the fact that the
adoptee is the child of the adopter(s)" and which certificate "shall not bear any notation
that it is an amended issue." That law also requires that "[a]ll records, books, and papers
150

relating to the adoption cases in the files of the court, the Department [of Social Welfare
and Development], or any other agency or institution participating in the adoption
proceedings shall be kept strictly confidential." The law therefore allows petitioner to
151

state that her adoptive parents were her birth parents as that was what would be stated in
her birth certificate anyway. And given the policy of strict confidentiality of adoption
records, petitioner was not obligated to disclose that she was an adoptee.

Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in
the same case for cancellation of COC, it resorted to opinionatedness which is, moreover,
erroneous. The whole process undertaken by COMELEC is wrapped in grave abuse of
discretion.

On Residence

The tainted process was repeated in disposing of the issue of whether or not petitioner
committed false material representation when she stated in her COC that she has before
and until 9 May 2016 been a resident of the Philippines for ten (10) years and eleven (11)
months.

Petitioner's claim that she will have been a resident for ten (10) years and eleven (11)
months on the day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years' residence in the
Philippines before the day of the elections. Since the forthcoming elections will be held on
9 May 2016, petitioner must have been a resident of the Philippines prior to 9 May 2016
for ten (10) years. In answer to the requested information of "Period of Residence in the
Philippines up to the day before May 09, 2016," she put in "10 years 11 months" which
according to her pleadings in these cases corresponds to a beginning date of 25 May 2005
when she returned for good from the U.S.

When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is
the Philippines. There are three requisites to acquire a new domicile: 1. Residence or bodily
presence in a new locality; 2. an intention to remain there; and 3. an intention to abandon
the old domicile. To successfully effect a change of domicile, one must demonstrate an
152

actual removal or an actual change of domicile; a bona fide intention of abandoning the
former place of residence and establishing a new one and definite acts which correspond
with the purpose. In other words, there must basically be animus manendi coupled with
animus non revertendi. The purpose to remain in or at the domicile of choice must be for
an indefinite period of time; the change of residence must be voluntary; and the residence
at the place chosen for the new domicile must be actual. 153

Petitioner presented voluminous evidence showing that she and her family abandoned their
U.S. domicile and relocated to the Philippines for good. These evidence include petitioner's
former U.S. passport showing her arrival on 24 May 2005 and her return to the Philippines
every time she travelled abroad; e-mail correspondences starting in March 2005 to
September 2006 with a freight company to arrange for the shipment of their household
items weighing about 28,000 pounds to the Philippines; e-mail with the Philippine Bureau
of Animal Industry inquiring how to ship their dog to the Philippines; school records of her
children showing enrollment in Philippine schools starting June 2005 and for succeeding
years; tax identification card for petitioner issued on July 2005; titles for condominium and
parking slot issued in February 2006 and their corresponding tax declarations issued in
April 2006; receipts dated 23 February 2005 from the Salvation Army in the U.S.
acknowledging donation of items from petitioner's family; March 2006 e-mail to the U.S.
Postal Service confirming request for change of address; final statement from the First
American Title Insurance Company showing sale of their U.S. home on 27 April 2006; 12
July 2011 filled-up questionnaire submitted to the U.S. Embassy where petitioner indicated
that she had been a Philippine resident since May 2005; affidavit from Jesusa Sonora Poe
(attesting to the return of petitioner on 24 May 2005 and that she and her family stayed
with affiant until the condominium was purchased); and Affidavit from petitioner's
husband (confirming that the spouses jointly decided to relocate to the Philippines in 2005
and that he stayed behind in the U.S. only to finish some work and to sell the family home).

The foregoing evidence were undisputed and the facts were even listed by the COMELEC,
particularly in its Resolution in the Tatad, Contreras and Valdez cases.

However, the COMELEC refused to consider that petitioner's domicile had been timely
changed as of 24 May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim
conceded the presence of the first two requisites, namely, physical presence and animus
manendi, but maintained there was no animus non-revertendi. The COMELEC 154

disregarded the import of all the evidence presented by petitioner on the basis of the
position that the earliest date that petitioner could have started residence in the Philippines
was in July 2006 when her application under R.A. No. 9225 was approved by the BI. In
this regard, COMELEC relied on Coquilla v. COMELEC, Japzon v. COMELEC and
155 156

Caballero v. COMELEC. During the oral arguments, the private respondents also added
157

Reyes v. COMELEC. Respondents contend that these cases decree that the stay of an alien
158

former Filipino cannot be counted until he/she obtains a permanent resident visa or
reacquires Philippine citizenship, a visa-free entry under a balikbayan stamp being
insufficient. Since petitioner was still an American (without any resident visa) until her
reacquisition of citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July
2006 cannot be counted.

But as the petitioner pointed out, the facts in these four cases are very different from her
situation. In Coquilla v. COMELEC, the only evidence presented was a community tax
159

certificate secured by the candidate and his declaration that he would be running in the
elections. Japzon v. COMELEC did not involve a candidate who wanted to count
160

residence prior to his reacquisition of Philippine citizenship. With the Court decreeing that
residence is distinct from citizenship, the issue there was whether the candidate's acts after
reacquisition sufficed to establish residence. In Caballero v. COMELEC, the candidate
161

admitted that his place of work was abroad and that he only visited during his frequent
vacations. In Reyes v. COMELEC, the candidate was found to be an American citizen
162

who had not even reacquired Philippine citizenship under R.A. No. 9225 or had renounced
her U.S. citizenship. She was disqualified on the citizenship issue. On residence, the only
proof she offered was a seven-month stint as provincial officer. The COMELEC, quoted
with approval by this Court, said that "such fact alone is not sufficient to prove her one-
year residency."

It is obvious that because of the sparse evidence on residence in the four cases cited by the
respondents, the Court had no choice but to hold that residence could be counted only from
acquisition of a permanent resident visa or from reacquisition of Philippine citizenship. In
contrast, the evidence of petitioner is overwhelming and taken together leads to no other
conclusion that she decided to permanently abandon her U.S. residence (selling the house,
taking the children from U.S. schools, getting quotes from the freight company, notifying
the U.S. Post Office of the abandonment of their address in the U.S., donating excess items
to the Salvation Army, her husband resigning from U.S. employment right after selling the
U.S. house) and permanently relocate to the Philippines and actually re-established her
residence here on 24 May 2005 (securing T.I.N, enrolling her children in Philippine
schools, buying property here, constructing a residence here, returning to the Philippines
after all trips abroad, her husband getting employed here). Indeed, coupled with her
eventual application to reacquire Philippine citizenship and her family's actual continuous
stay in the Philippines over the years, it is clear that when petitioner returned on 24 May
2005 it was for good.

In this connection, the COMELEC also took it against petitioner that she had entered the
Philippines visa-free as a balikbayan. A closer look at R.A. No. 6768 as amended,
otherwise known as the "An Act Instituting a Balikbayan Program," shows that there is no
overriding intent to treat balikbayans as temporary visitors who must leave after one year.
Included in the law is a former Filipino who has been naturalized abroad and "comes or
returns to the Philippines." The law institutes a balikbayan program "providing the
163

opportunity to avail of the necessary training to enable the balikbayan to become

economically self-reliant members of society upon their return to the country" in line with
164

the government's "reintegration program." Obviously, balikbayans are not ordinary

165

transients.

Given the law's express policy to facilitate the return of a balikbayan and help him
reintegrate into society, it would be an unduly harsh conclusion to say in absolute terms
that the balikbayan must leave after one year. That visa-free period is obviously granted
him to allow him to re-establish his life and reintegrate himself into the community before
he attends to the necessary formal and legal requirements of repatriation. And that is
exactly what petitioner did - she reestablished life here by enrolling her children and buying
property while awaiting the return of her husband and then applying for repatriation shortly
thereafter.

No case similar to petitioner's, where the former Filipino's evidence of change in domicile
is extensive and overwhelming, has as yet been decided by the Court. Petitioner's evidence
of residence is unprecedented. There is no judicial precedent that comes close to the facts
of residence of petitioner. There is no indication in Coquilla v. COMELEC, and the other
166

cases cited by the respondents that the Court intended to have its rulings there apply to a
situation where the facts are different. Surely, the issue of residence has been decided
particularly on the facts-of-the case basis.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the
COMELEC ruled that petitioner's claim of residence of ten (10) years and eleven (11)
months by 9 May 2016 in her 2015 COC was false because she put six ( 6) years and six (
6) months as "period of residence before May 13, 2013" in her 2012 COC for Senator.
Thus, according to the COMELEC, she started being a Philippine resident only in
November 2006. In doing so, the COMELEC automatically assumed as true the statement
in the 2012 COC and the 2015 COC as false.

As explained by petitioner in her verified pleadings, she misunderstood the date required
in the 2013 COC as the period of residence as of the day she submitted that COC in 2012.
She said that she reckoned residency from April-May 2006 which was the period when the
U.S. house was sold and her husband returned to the Philippines. In that regard, she was
advised by her lawyers in 2015 that residence could be counted from 25 May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence
before 13 May 2013) as inquiring about residence as of the time she submitted the COC,
is bolstered by the change which the COMELEC itself introduced in the 2015 COC which
is now "period of residence in the Philippines up to the day before May 09, 2016." The
COMELEC would not have revised the query if it did not acknowledge that the first version
was vague.

That petitioner could have reckoned residence from a date earlier than the sale of her U.S.
house and the return of her husband is plausible given the evidence that she had returned a
year before. Such evidence, to repeat, would include her passport and the school records
of her children.

It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and
conclusive admission against petitioner. It could be given in evidence against her, yes, but
it was by no means conclusive. There is precedent after all where a candidate's mistake as
to period of residence made in a COC was overcome by evidence. In Romualdez-Marcos
v. COMELEC, the candidate mistakenly put seven (7) months as her period of residence
167

where the required period was a minimum of one year. We said that "[i]t is the fact of
residence, not a statement in a certificate of candidacy which ought to be decisive in
determining whether or not an individual has satisfied the constitutions residency
qualification requirement." The COMELEC ought to have looked at the evidence
presented and see if petitioner was telling the truth that she was in the Philippines from 24
May 2005. Had the COMELEC done its duty, it would have seen that the 2012 COC and
the 2015 COC both correctly stated the pertinent period of residency.

The COMELEC, by its own admission, disregarded the evidence that petitioner actually
and physically returned here on 24 May 2005 not because it was false, but only because
COMELEC took the position that domicile could be established only from petitioner's
repatriation under R.A. No. 9225 in July 2006. However, it does not take away the fact that
in reality, petitioner had returned from the U.S. and was here to stay permanently, on 24
May 2005. When she claimed to have been a resident for ten (10) years and eleven (11)
months, she could do so in good faith.

For another, it could not be said that petitioner was attempting to hide anything. As already
stated, a petition for quo warranto had been filed against her with the SET as early as
August 2015. The event from which the COMELEC pegged the commencement of
residence, petitioner's repatriation in July 2006 under R.A. No. 9225, was an established
fact to repeat, for purposes of her senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC,
petitioner recounted that this was first brought up in the media on 2 June 2015 by Rep.
Tobias Tiangco of the United Nationalist Alliance. Petitioner appears to have answered the
issue immediately, also in the press. Respondents have not disputed petitioner's evidence
on this point. From that time therefore when Rep. Tiangco discussed it in the media, the
stated period of residence in the 2012 COC and the circumstances that surrounded the
statement were already matters of public record and were not hidden.

Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for
quo warranto. Her Verified Answer, which was filed on 1 September 2015, admitted that
she made a mistake in the 2012 COC when she put in six ( 6) years and six ( 6) months as
she misunderstood the question and could have truthfully indicated a longer period. Her
answer in the SET case was a matter of public record. Therefore, when petitioner
accomplished her COC for President on 15 October 2015, she could not be said to have
been attempting to hide her erroneous statement in her 2012 COC for Senator which was
expressly mentioned in her Verified Answer.

The facts now, if not stretched to distortion, do not show or even hint at an intention to hide
the 2012 statement and have it covered by the 2015 representation. Petitioner, moreover,
has on her side this Court's pronouncement that:

Concededly, a candidate's disqualification to run for public office does not necessarily
constitute material misrepresentation which is the sole ground for denying due course to,
and for the cancellation of, a COC. Further, as already discussed, the candidate's
misrepresentation in his COC must not only refer to a material fact (eligibility and
qualifications for elective office), but should evince a deliberate intent to mislead,
misinform or hide a fact which would otherwise render a candidate ineligible. It must be
made with an intention to deceive the electorate as to one's qualifications to run for public
office.
168

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good
number of evidenced dates all of which can evince animus manendi to the Philippines and
animus non revertedi to the United States of America. The veracity of the events of coming
and staying home was as much as dismissed as inconsequential, the focus having been
fixed at the petitioner's "sworn declaration in her COC for Senator" which the COMELEC
said "amounts to a declaration and therefore an admission that her residence in the
Philippines only commence sometime in November 2006"; such that "based on this
declaration, [petitioner] fails to meet the residency requirement for President." This
conclusion, as already shown, ignores the standing jurisprudence that it is the fact of
residence, not the statement of the person that determines residence for purposes of
compliance with the constitutional requirement of residency for election as President. It
ignores the easily researched matter that cases on questions of residency have been decided
favorably for the candidate on the basis of facts of residence far less in number, weight and
substance than that presented by petitioner. It ignores, above all else, what we consider
169

as a primary reason why petitioner cannot be bound by her declaration in her COC for
Senator which declaration was not even considered by the SET as an issue against her
eligibility for Senator. When petitioner made the declaration in her COC for Senator that
she has been a resident for a period of six (6) years and six (6) months counted up to the
13 May 2013 Elections, she naturally had as reference the residency requirements for
election as Senator which was satisfied by her declared years of residence. It was
uncontested during the oral arguments before us that at the time the declaration for Senator
was made, petitioner did not have as yet any intention to vie for the Presidency in 2016 and
that the general public was never made aware by petitioner, by word or action, that she
would run for President in 2016. Presidential candidacy has a length-of-residence different
from that of a senatorial candidacy. There are facts of residence other than that which was
mentioned in the COC for Senator. Such other facts of residence have never been proven
to be false, and these, to repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however
stayed in the USA to finish pending projects and arrange the sale of their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner]
enrolled Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College
in Makati City in 2005. Anika was enrolled in Learning Connection in San Juan in 2007,
when she was already old enough to go to school.

In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson
Place Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the
construction of their family home in Corinthian Hills was completed.

Sometime in the second half of 2005, [petitioner's] mother discovered that her former
lawyer who handled [petitioner's] adoption in 1974 failed to secure from the Office of the
Civil Registrar of Iloilo a new Certificate of Live Birth indicating [petitioner's] new name
and stating that her parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal
of some of the family's remaining household belongings.1a\^/phi1 [Petitioner] returned to
the Philippines on 11 March 2006.

In late March 2006, [petitioner's] husband informed the United States Postal Service of the
family's abandonment of their address in the US.

The family home in the US was sole on 27 April 2006.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the
Philippines on 4 May 2006 and began working for a Philippine company in July 2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where
they eventually built their family home. 170

In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case
fall under the exclusive ground of false representation, to consider no other date than that
mentioned by petitioner in her COC for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her
candidacy as President of the Republic, the questioned Resolutions of the COMELEC in
Division and En Banc are, one and all, deadly diseased with grave abuse of discretion from
root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No.
15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent, stating that:

[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May
9, 2016 National and Local Elections filed by respondent Mary Grace Natividad Sonora
Poe-Llamanzares is hereby GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled
Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby
RESOLVES, to GRANT the petitions and cancel the Certificate of Candidacy of MARY
GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of
President of the Republic of the Philippines in connection with the 9 May 2016
Synchronized Local and National Elections.

3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015
Resolution of the Second Division stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby

RESOLVES, to DENY the Verified Motion for Reconsideration of SENATOR MARY
GRACE NATIVIDAD SONORA POE-LLAMANZARES. The Resolution dated 11
December 2015 of the Commission First Division is AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015
Resolution of the First Division.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES is DECLARED QUALIFIED to be a candidate for
President in the National and Local Elections of 9 May 2016.

SO ORDERED.
CASE NO. 3

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 99358 January 30, 1995

DJUMANTAN, petitioner,
vs.
HON. ANDREA D. DOMINGO, COMMISSIONER OF THE BOARD OF IMMIGRATION,
HON. REGINO R. SANTIAGO and HON. JORGE V. SARMIENTO, COMMISSIONERS
BUREAU OF IMMIGRATION AND DEPORTATION, respondents.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court with preliminary
injunction, to reverse and set aside the Decision dated September 27, 1990 of the Commission
on Immigration and Deportation (CID), ordering the deportation of petitioner and its Resolution
dated January 29, 1991, denying the motion for reconsideration.

Bernard Banez, the husband of Marina Cabael, went to Indonesia as a contract worker.

On April 3, 1974, he embraced and was converted to Islam. On May 17, 1974, he married
petitioner in accordance with Islamic rites. He returned to the Philippines in January 1979.

On January 13, 1979, petitioner and her two children with Banez, (two-year old Marina and
nine-month old Nikulas) arrived in Manila as the "guests" of Banez. The latter made it appear
that he was just a friend of the family of petitioner and was merely repaying the hospitability
extended to him during his stay in Indonesia.

When petitioner and her two children arrived at the Ninoy Aquino International Airport on
January 13, 1979, Banez, together with Marina Cabael, met them.

Banez executed an "Affidavit of Guaranty and Support," for his "guests," stating inter alia, that:

That I am the guarantor for the entry into the Philippines of Mrs. Djumantan,
42 years old, and her two minor children, MARINA, 2 years old, and NIKULAS,
9 months old, all Indonesian citizens, who are coming as temporary visitors.

That I am willing to guaranty them out of gratitude to their family for the
hospitality they have accorded me during the few years that I have stayed in
Indonesia in connection with my employment thereat.

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 of Banez.
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 General took 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 to deport 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 [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 no right 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 designated by 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 the
dissemination 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
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 is sought 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 that she 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 the permanent 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.
CASE NO. 4

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 135083 May 26, 1999

ERNESTO S. MERCADO, petitioner,

vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS,
respondents.

MENDOZA, J.:

Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were

candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The other
one was Gabriel V. Daza III. The results of the election were as follows:

Eduardo B. Manzano 103,853

Ernesto S. Mercado 100,894

Gabriel V. Daza III 54,275 1

The proclamation of private respondent was suspended in view of a pending petition for
disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was
not a citizen of the Philippines but of the United States.

In its resolution, dated May 7, 1998, the Second Division of the COMELEC granted the
2

petition of Mamaril and ordered the cancellation of the certificate of candidacy of private
respondent on the ground that he is a dual citizen and, under §40(d) of the Local
Government Code, persons with dual citizenship are disqualified from running for any
elective position. The COMELEC's Second Division said:

What is presented before the Commission is a petition for disqualification

of Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of
Makati City in the May 11, 1998 elections. The petition is based on the
ground that the respondent is an American citizen based on the record of the
Bureau of Immigration and misrepresented himself as a natural-born
Filipino citizen.

In his answer to the petition filed on April 27, 1998, the respondent admitted
that he is registered as a foreigner with the Bureau of Immigration under
Alien Certificate of Registration No. B-31632 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, September 14, 1955, and is considered in American citizen
under US Laws. But notwithstanding his registration as an American
citizen, he did not lose his Filipino citizenship.
 Judging from the foregoing facts, it would appear that respondent Manzano
is born a Filipino and a US citizen. In other words, he holds dual citizenship.

The question presented is whether under our laws, he is disqualified from

the position for which he filed his certificate of candidacy. Is he eligible for
the office he seeks to be elected?

Under Section 40(d) of the Local Government Code, those holding dual
citizenship are disqualified from running for any elective local position.

WHEREFORE, the Commission hereby declares the respondent Eduardo

Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati
City.

On May 8, 1998, private respondent filed a motion for reconsideration. The motion
3

remained pending even until after the election held on May 11, 1998.

Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the
COMELEC, the board of canvassers tabulated the votes cast for vice mayor of Makati City
but suspended the proclamation of the winner.

On May 19, 1998, petitioner sought to intervene in the case for disqualification. Petitioner's
4

motion was opposed by private respondent.

The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc
rendered its resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC
en banc reversed the ruling of its Second Division and declared private respondent
qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections. The 5

pertinent portions of the resolution of the COMELEC en banc read:

As aforesaid, respondent Eduardo Barrios Manzano was born in San

Francisco, California, U.S.A. He acquired US citizenship by operation of
the United States Constitution and laws under the principle of jus soli.

He was also a natural born Filipino citizen by operation of the 1935

Philippine Constitution, as his father and mother were Filipinos at the time
of his birth. At the age of six (6), his parents brought him to the Philippines
using an American passport as travel document. His parents also registered
him as an alien with the Philippine Bureau of Immigration. He was issued
an alien certificate of registration. This, however, did not result in the loss
of his Philippine citizenship, as he did not renounce Philippine citizenship
and did not take an oath of allegiance to the United States.

It is an undisputed fact that when respondent attained the age of majority,

he registered himself as a voter, and voted in the elections of 1992, 1995
and 1998, which effectively renounced his US citizenship under American
law. Under Philippine law, he no longer had U.S. citizenship.

At the time of the May 11, 1998 elections, the resolution of the Second
Division, adopted on May 7, 1998, was not yet final. Respondent Manzano
obtained the highest number of votes among the candidates for vice-mayor
of Makati City, garnering one hundred three thousand eight hundred fifty
three (103,853) votes over his closest rival, Ernesto S. Mercado, who
obtained one hundred thousand eight hundred ninety four (100,894) votes,
or a margin of two thousand nine hundred fifty nine (2,959) votes. Gabriel
Daza III obtained third place with fifty four thousand two hundred seventy
five (54,275) votes. In applying election laws, it would be far better to err
 in favor of the popular choice than be embroiled in complex legal issues
involving private international law which may well be settled before the
highest court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727).

WHEREFORE, the Commission en banc hereby REVERSES the resolution

of the Second Division, adopted on May 7, 1998, ordering the cancellation
of the respondent's certificate of candidacy.

We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED

as a candidate for the position of vice-mayor of Makati City in the May 11,
1998, elections.

ACCORDINGLY, the Commission directs the Makati City Board of

Canvassers, upon proper notice to the parties, to reconvene and proclaim
the respondent Eduardo Luis Barrios Manzano as the winning candidate for
vice-mayor of Makati City.

Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the
evening of August 31, 1998, proclaimed private respondent as vice mayor of the City of
Makati.

This is a petition for certiorari seeking to set aside the aforesaid resolution of the
COMELEC en banc and to declare private respondent disqualified to hold the office of
vice mayor of Makati City. Petitioner contends that —

[T]he COMELEC en banc ERRED in holding that:

A. Under Philippine law, Manzano was no longer a U.S. citizen when he:

1. He renounced his U.S. citizenship when he attained the

age of majority when he was already 37 years old; and,

2. He renounced his U.S. citizenship when he (merely)

registered himself as a voter and voted in the elections of
1992, 1995 and 1998.

B. Manzano is qualified to run for and or hold the elective office of Vice-
Mayor of the City of Makati;

C. At the time of the May 11, 1998 elections, the resolution of the Second
Division adopted on 7 May 1998 was not yet final so that, effectively,
petitioner may not be declared the winner even assuming that Manzano is
disqualified to run for and hold the elective office of Vice-Mayor of the City
of Makati.

We first consider the threshold procedural issue raised by private respondent Manzano —
whether petitioner Mercado his personality to bring this suit considering that he was not an
original party in the case for disqualification filed by Ernesto Mamaril nor was petitioner's
motion for leave to intervene granted.

I. PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of
the COMELEC in support of his claim that petitioner has no right to intervene and,
therefore, cannot bring this suit to set aside the ruling denying his motion for intervention:
 Sec. 1. When proper and when may be permitted to intervene. — Any
person allowed to initiate an action or proceeding may, before or during the
trial of an action or proceeding, be permitted by the Commission, in its
discretion to intervene in such action or proceeding, if he has legal interest
in the matter in litigation, or in the success of either of the parties, or an
interest against both, or when he is so situated as to be adversely affected
by such action or proceeding.

xxx xxx xxx

Sec. 3. Discretion of Commission. — In allowing or disallowing a motion

for intervention, the Commission or the Division, in the exercise of its
discretion, shall consider whether or not the intervention will unduly delay
or prejudice the adjudication of the rights of the original parties and whether
or not the intervenor's rights may be fully protected in a separate action or
proceeding.

Private respondent argues that petitioner has neither legal interest in the matter in
litigation nor an interest to protect because he is "a defeated candidate for the vice-
mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of
Makati City if the private respondent be ultimately disqualified by final and
executory judgment."

The flaw in this argument is it assumes that, at the time petitioner sought to intervene in
the proceedings before the COMELEC, there had already been a proclamation of the results
of the election for the vice mayoralty contest for Makati City, on the basis of which
petitioner came out only second to private respondent. The fact, however, is that there had
been no proclamation at that time. Certainly, petitioner had, and still has, an interest in
ousting private respondent from the race at the time he sought to intervene. The rule in
Labo v. COMELEC, reiterated in several cases, only applies to cases in which the election
6 7

of the respondent is contested, and the question is whether one who placed second to the
disqualified candidate may be declared the winner. In the present case, at the time petitioner
filed a "Motion for Leave to File Intervention" on May 20, 1998, there had been no
proclamation of the winner, and petitioner's purpose was precisely to have private
respondent disqualified "from running for [an] elective local position" under §40(d) of R.A.
No. 7160. If Ernesto Mamaril (who originally instituted the disqualification proceedings),
a registered voter of Makati City, was competent to bring the action, so was petitioner since
the latter was a rival candidate for vice mayor of Makati City.

Nor is petitioner's interest in the matter in litigation any less because he filed a motion for
intervention only on May 20, 1998, after private respondent had been shown to have
garnered the highest number of votes among the candidates for vice mayor. That petitioner
had a right to intervene at that stage of the proceedings for the disqualification against
private respondent is clear from §6 of R.A. No. 6646, otherwise known as the Electoral
Reform Law of 1987, which provides:

Any candidate who his been declared by final judgment to be disqualified

shall not be voted for, and the votes cast for him shall not be counted. If for
any reason a candidate is not declared by final judgment before an election
to be disqualified and he is voted for and receives the winning number of
votes in such election, the Court or Commission shall continue with the trial
and hearing of action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of
guilt is strong.
Under this provision, intervention may be allowed in proceedings for disqualification even
after election if there has yet been no final judgment rendered.

The failure of the COMELEC en banc to resolve petitioner's motion for intervention was
tantamount to a denial of the motion, justifying petitioner in filing the instant petition for
certiorari. As the COMELEC en banc instead decided the merits of the case, the present
petition properly deals not only with the denial of petitioner's motion for intervention but
also with the substantive issues respecting private respondent's alleged disqualification on
the ground of dual citizenship.

This brings us to the next question, namely, whether private respondent Manzano possesses
dual citizenship and, if so, whether he is disqualified from being a candidate for vice mayor
of Makati City.

II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under §40 of the Local
Government Code of 1991 (R.A. No. 7160), which declares as "disqualified from running
for any elective local position: . . . (d) Those with dual citizenship." This provision is
incorporated in the Charter of the City of Makati. 8

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides
with him in this case, contends that through §40(d) of the Local Government Code,
Congress has "command[ed] in explicit terms the ineligibility of persons possessing dual
allegiance to hold local elective office."

To begin with, 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
9

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. 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) Those born 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 father's' country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter's country the former
are considered citizens, unless by their act or omission they are deemed to
have renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may, without performing
any act, be also a citizen of another state; but the above cases are clearly possible given the
constitutional provisions on 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 individual's volition.

With respect to dual allegiance, Article IV, §5 of the Constitution provides: "Dual
allegiance of citizens is inimical to the national interest and shall be dealt with by law."
This provision was included in the 1987 Constitution at the instance of Commissioner Blas
F. Ople who explained its necessity as follows: 10
 . . . I want to draw attention to the fact that dual allegiance is not dual
citizenship. I have circulated a memorandum to the Bernas Committee
according to which a dual allegiance — and I reiterate a dual allegiance —
is larger and more threatening than that of mere double citizenship which is
seldom intentional and, perhaps, never insidious. That is often a function of
the accident of mixed marriages or of birth on foreign soil. And so, I do not
question double citizenship at all.

What we would like the Committee to consider is to take constitutional

cognizance of the problem of dual allegiance. For example, we all know
what happens in the triennial elections of the Federation of Filipino-Chinese
Chambers of Commerce which consists of about 600 chapters all over the
country. There is a Peking ticket, as well as a Taipei ticket. Not widely
known is the fact chat the Filipino-Chinese community is represented in the
Legislative Yuan of the Republic of China in Taiwan. And until recently,
sponsor might recall, in Mainland China in the People's Republic of China,
they have the Associated Legislative Council for overseas Chinese wherein
all of Southeast Asia including some European and Latin countries were
represented, which was dissolved after several years because of diplomatic
friction. At that time, the Filipino-Chinese were also represented in that
Overseas Council.

When I speak of double allegiance, therefore, I speak of this unsettled kind

of allegiance of Filipinos, of citizens who are already Filipinos but who, by
their acts, may be said to be bound by a second allegiance, either to Peking
or Taiwan. I also took close note of the concern expressed by some
Commissioners yesterday, including Commissioner Villacorta, who were
concerned about the lack of guarantees of thorough assimilation, and
especially Commissioner Concepcion who has always been worried about
minority claims on our natural resources.

Dull allegiance can actually siphon scarce national capital to Taiwan,

Singapore, China or Malaysia, and this is already happening. Some of the
great commercial places in downtown Taipei are Filipino-owned, owned by
Filipino-Chinese — it is of common knowledge in Manila. It can mean a
tragic capital outflow when we have to endure a capital famine which also
means economic stagnation, worsening unemployment and social unrest.

And so, this is exactly what we ask — that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on Citizenship
which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO
CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW.

In another session of the Commission, Ople spoke on the problem of these citizens with
dual allegiance, thus:
11

. . . A significant number of Commissioners expressed their concern about

dual citizenship in the sense that it implies a double allegiance under a
double sovereignty which some of us who spoke then in a freewheeling
debate thought would be repugnant to the sovereignty which pervades the
Constitution and to citizenship itself which implies a uniqueness and which
elsewhere in the Constitution is defined in terms of rights and obligations
exclusive to that citizenship including, of course, the obligation to rise to
the defense of the State when it is threatened, and back of this,
Commissioner Bernas, is, of course, the concern for national security. In the
course of those debates, I think some noted the fact that as a result of the
wave of naturalizations since the decision to establish diplomatic relations
 with the People's Republic of China was made in 1975, a good number of
these naturalized Filipinos still routinely go to Taipei every October 10; and
it is asserted that some of them do renew their oath of allegiance to a foreign
government maybe just to enter into the spirit of the occasion when the
anniversary of the Sun Yat-Sen Republic is commemorated. And so, I have
detected a genuine and deep concern about double citizenship, with its
attendant risk of double allegiance which is repugnant to our sovereignty
and national security. I appreciate what the Committee said that this could
be left to the determination of a future legislature. But considering the scale
of the problem, the real impact on the security of this country, arising from,
let us say, potentially great numbers of double citizens professing double
allegiance, will the Committee entertain a proposed amendment at the
proper time that will prohibit, in effect, or regulate double citizenship?

Clearly, in including §5 in Article IV on citizenship, the concern of the Constitutional

Commission was not with dual citizens per se but with naturalized citizens who maintain
their allegiance to their countries of origin even after their naturalization. Hence, the phrase
"dual citizenship" in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood
as referring to "dual allegiance." Consequently, persons with mere dual citizenship do not
fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be
subject to strict process with respect to the termination of their status, for candidates with
dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they
elect Philippine citizenship to terminate their status as persons with dual citizenship
considering that their condition is the unavoidable consequence of conflicting laws of
different states. As Joaquin G. Bernas, one of the most perceptive members of the
Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us
because we have no control of the laws on citizenship of other countries. We recognize a
child of a Filipino mother. But whether she is considered a citizen of another country is
something completely beyond our control." 12

By electing Philippine citizenship, such candidates at the same time forswear allegiance to
the other country of which they are also citizens and thereby terminate their status as dual
citizens. It may be that, from the point of view of the foreign state and of its laws, such an
individual has not effectively renounced his foreign citizenship. That is of no moment as
the following discussion on §40(d) between Senators Enrile and Pimentel clearly shows: 13

SENATOR ENRILE. Mr. President, I would like to ask clarification of line

41, page 17: "Any person with dual citizenship" is disqualified to run for
any elective local position. Under the present Constitution, Mr. President,
someone whose mother is a citizen of the Philippines but his father is a
foreigner is a natural-born citizen of the Republic. There is no requirement
that such a natural born citizen, upon reaching the age of majority, must
elect or give up Philippine citizenship.

On the assumption that this person would carry two passports, one
belonging to the country of his or her father and one belonging to the
Republic of the Philippines, may such a situation disqualify the person to
run for a local government position?

SENATOR PIMENTEL. To my mind, Mr. President, it only means that at

the moment when he would want to run for public office, he has to repudiate
one of his citizenships.

SENATOR ENRILE. Suppose he carries only a Philippine passport but the

country of origin or the country of the father claims that person,
nevertheless, as a citizen? No one can renounce. There are such countries
in the world.
 SENATOR PIMENTEL. Well, the very fact that he is running for public
office would, in effect, be an election for him of his desire to be considered
as a Filipino citizen.

SENATOR ENRILE. But, precisely, Mr. President, the Constitution does

not require an election. Under the Constitution, a person whose mother is a
citizen of the Philippines is, at birth, a citizen without any overt act to claim
the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under
the Gentleman's example, if he does not renounce his other citizenship, then
he is opening himself to question. So, if he is really interested to run, the
first thing he should do is to say in the Certificate of Candidacy that: "I am
a Filipino citizen, and I have only one citizenship."

SENATOR ENRILE. But we are talking from the viewpoint of Philippine

law, Mr. President. He will always have one citizenship, and that is the
citizenship invested upon him or her in the Constitution of the Republic.

SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts

that will prove that he also acknowledges other citizenships, then he will
probably fall under this disqualification.

This is similar to the requirement that an applicant for naturalization must renounce "all
allegiance and fidelity to any foreign prince, potentate, state, or sovereignty" of which at
14

the time he is a subject or citizen before he can be issued a certificate of naturalization as

a citizen of the Philippines. In Parado v. Republic, it was held:
15

[W]hen a person applying for citizenship by naturalization takes an oath that

he renounce, his loyalty to any other country or government and solemnly
declares that he owes his allegiance to the Republic of the Philippines, the
condition imposed by law is satisfied and compiled with. The determination
whether such renunciation is valid or fully complies with the provisions of
our Naturalization Law lies within the province and is an exclusive
prerogative of our courts. The latter should apply the law duly enacted by
the legislative department of the Republic. No foreign law may or should
interfere with its operation and application. If the requirement of the
Chinese Law of Nationality were to be read into our Naturalization Law,
we would be applying not what our legislative department has deemed it
wise to require, but what a foreign government has thought or intended to
exact. That, of course, is absurd. It must be resisted by all means and at all
cost. It would be a brazen encroachment upon the sovereign will and power
of the people of this Republic.

III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on
September 4, 1955, of Filipino parents. Since the Philippines adheres to the principle of jus
sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at
birth at least, he was a national both of the Philippines and of the United States. However,
the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995,
and 1998, private respondent "effectively renounced his U.S. citizenship under American
law," so that now he is solely a Philippine national.

Petitioner challenges this ruling. He argues that merely taking part in Philippine elections
is not sufficient evidence of renunciation and that, in any event, as the alleged renunciation
was made when private respondent was already 37 years old, it was ineffective as it should
have been made when he reached the age of majority.

In holding that by voting in Philippine elections private respondent renounced his

American citizenship, the COMELEC must have in mind §349 of the Immigration and
Nationality Act of the United States, which provided that "A person who is a national of
the United States, whether by birth or naturalization, shall lose his nationality by: . . . (e)
Voting in a political election in a foreign state or participating in an election or plebiscite
to determine the sovereignty over foreign territory." To be sure this provision was declared
unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk as beyond the power given
16

to the U.S. Congress to regulate foreign relations. However, 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. Private respondent's
certificate of candidacy, filed on March 27, 1998, contained the following statements made
under oath:

6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-

BORN" OR "NATURALIZED") NATURAL-BORN

xxx xxx xxx

10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A,

BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI,
PROVINCE OF NCR.

11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO,

A FOREIGN COUNTRY.

12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I

WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE
PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND
ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL
ORDERS AND DECREES PROMULGATED BY THE DULY
CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE
PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON
MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR
PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE FACTS
STATED HEREIN ARE TRUE AND CORRECT OF MY OWN
PERSONAL KNOWLEDGE.

The filing of such certificate of candidacy sufficed to renounce his American citizenship,
effectively removing any disqualification he might have as a dual citizen. Thus, in Frivaldo
v. COMELEC it was held: 17

It is not disputed that on January 20, 1983 Frivaldo became an American.

Would the retroactivity of his repatriation not effectively give him dual
citizenship, which under Sec. 40 of the Local Government Code would
disqualify him "from running for any elective local position?" We answer
this question in the negative, as there is cogent reason to hold that Frivaldo
was really STATELESS at the time he took said oath of allegiance and even
before that, when he ran for governor in 1988. In his Comment, Frivaldo
wrote that he "had long renounced and had long abandoned his American
citizenship — long before May 8, 1995. At best, Frivaldo was stateless in
the interim — when he abandoned and renounced his US citizenship but
before he was repatriated to his Filipino citizenship."
 On this point, we quote from the assailed Resolution dated December 19,
1995:

By the laws of the United States, petitioner Frivaldo lost his

American citizenship when he took his oath of allegiance to
the Philippine Government when he ran for Governor in
1988, in 1992, and in 1995. Every certificate of candidacy
contains an oath of allegiance to the Philippine Government.

These factual findings that Frivaldo has lost his foreign nationality long
before the elections of 1995 have not been effectively rebutted by Lee.
Furthermore, it is basic that such findings of the Commission are conclusive
upon this Court, absent any showing of capriciousness or arbitrariness or
abuse.

There is, therefore, no merit in petitioner's contention that the oath of allegiance contained
in private respondent's certificate of candidacy is insufficient to constitute renunciation
that, to be effective, such renunciation should have been made upon private respondent
reaching the age of majority since no law requires the election of Philippine citizenship to
be made upon majority age.

Finally, much is made of the fact that private respondent admitted that he is registered as
an American citizen in the Bureau of Immigration and Deportation and that he holds an
American passport which he used in his last travel to the United States on April 22, 1997.
There is no merit in this. Until the filing of his certificate of candidacy on March 21, 1998,
he had dual citizenship. The acts attributed to him can be considered simply as the assertion
of his American nationality before the termination of his American citizenship. What this
Court said in Aznar v. COMELEC applies mutatis mundatis to private respondent in the
18

case at bar:

. . . Considering the fact that admittedly Osmeña was both a Filipino and an
American, the mere fact that he has a Certificate staring he is an American
does not mean that he is not still a Filipino. . . . [T]he Certification that he
is an American does not mean that he is not still a Filipino, possessed as he
is, of both nationalities or citizenships. Indeed, there is no express
renunciation here of Philippine citizenship; truth to tell, there is even no
implied renunciation of said citizenship. When We consider that the
renunciation needed to lose Philippine citizenship must be "express," it
stands to reason that there can be no such loss of Philippine citizenship when
there is no renunciation, either "express" or "implied."

To recapitulate, 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 have said before as a dual citizen.

On the other hand, private respondent's oath of allegiance to the Philippines, 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.

His declarations will be taken upon the faith that he will fulfill his undertaking made under
oath. Should he betray that trust, there are enough sanctions for declaring the loss of his
Philippine citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-
Santiago, we sustained the denial of entry into the country of petitioner on the ground
19
that, after taking his oath as a naturalized citizen, he applied for the renewal of his
Portuguese passport and declared in commercial documents executed abroad that he was a
Portuguese national. A similar sanction can be taken against any one who, in electing
Philippine citizenship, renounces his foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.1âwphi1.nêt

SO ORDERED.
CASE NO. 5

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-24530 October 31, 1968

BOARD OF IMMIGRATION COMMISSIONERS and COMMISSIONER OF IMMIGRATION,

petitioners,
vs.
BEATO GO CALLANO, MANUEL GO CALLANO, GONZALO GO CALLANO, JULIO GO
CALLANO and THE COURT OF APPEALS, respondents.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Frine C. Zaballero
and Solicitor Bernardo P. Pardo for petitioners.
Demetrio B. Salem for respondents.

DIZON, J.:

On July 13, 1962, the Department of Foreign Affairs informed the Commissioner of Immigration
that, on the basis of the findings made by the National Bureau of Investigation, the signatures
of former Secretary of Foreign Affairs, Felixberto M. Serrano, on certain documents, amongst
them cable authorization No. 2230-V (File No. 23617) authorizing the documentation of Beato
Go Callano and others, were not authentic. Thereupon, the Department declared several
documents among them the cable authorization just mentioned to be null, void and of no effect,
and the documentation made by the Philippine Consulate General at Hongkong pursuant to
said cable authorization consisting of the certificates of registration and identity issued to Beato
Go Callano and his brothers Manuel, Gonzalo and Julio for travel to the Philippines were
cancelled. All this was done without previous notice served nor hearing granted to said parties.

On August 21 of the same year, the Board of Immigration Commissioners, exercising its power
of review under Section 27 (b) of Commonwealth Act No. 613, as amended, issued, also
without any previous notice and hearing, an order reversing the decision of the Board of
Special Inquiry dated January 4, 1962, admitting Beato and his three brothers for entry as
citizens; ordering their exclusion as aliens not properly documented for admission pursuant to
Section 27 (a) (17) of the Philippine Immigration Act of 1940, as amended, and ordering that
they be returned to the port whence they came or to the country of which they were nationals,
upon the ground that they had been able "to enter this country and gain admission as Filipino
citizens by the fraudulently secured authorization." On the same date (August 21, 1962) the
Commissioner of Immigration issued a warrant of exclusion commanding the deportation
officer "to carry out the exclusion of the above-named applicants (the Go Callano brothers) on
the first available transportation and on the same class of accommodation in which they arrived
to the port whence they came or to the country of which they are nationals."

The warrant of exclusion, for one reason or another, was not served immediately upon the
parties ordered deported, who, on November 16, 1962, filed in the Court of First Instance of
Manila an action for injunction to restrain the Board of Immigration Commissioners and the
Commissioner of Immigration from executing the order of exclusion or deportation already
mentioned. They based their action on the following grounds: (1) that the Board had no
jurisdiction to exclude them from the Philippines because they were not aliens but Filipino
citizens, and (2) that the order of exclusion was issued by the Board without due process and
in violation of the Constitution. Months later, the Court of First Instance issued a writ of
preliminary injunction restraining the respondents in the case from deporting the petitioners.
After trial, the Court rendered judgment finding that, according to petitioners' undisputed
evidence, "the petitioners herein are the illegitimate children of Emilia Callano, a Filipino
citizen, with her common-law husband — a Chinese citizen," and concluding that "until the
petitioners left for China in 1947, they must be considered as citizens of the Philippines as
they were born of a Filipino mother and an alien father who, however, was not married to their
mother."
Notwithstanding the above finding and conclusion, however, the Court dismissed the case
holding that "the petitioners are citizens of the Republic of China and not being properly
documented for entry into the Philippines as found by the Immigration Commissioner, the writ
of preliminary injunction heretofore issued by this Court shall be deemed dissolved upon
finality of this decision." The grounds upon which the Court based its decision were: (1)
because petitioners stayed in China for a period of fifteen years before returning to the
Philippines, they must be considered as citizens of the Chinese Republic; (2) as petitioners
were recognized by their alien father as his children, they became Chinese citizens under the
Chinese law of nationality. While the Court also found that the cable authorization mentioned
heretofore was a forgery, it held that, for the purpose of the petition before it, "it was immaterial
to determine the genuineness or falsity of the cable authorization. For if the petitioners are
Filipino citizens, they are entitled to remain within the territorial jurisdiction of the Republic in
whatever way they might have entered."

After the denial of herein respondents' motion for re-consideration, they appealed to the Court
of Appeals where they raised the following issues: (a) that being Filipino citizens by birth, they
did not lose their citizenship nor acquire Chinese citizenship, neither by their prolonged stay
in China nor by their alleged recognition by their Chinese father, and (b) that the cablegram
authorization was not a forgery.

In due time the Court of Appeals rendered the decision now under review by certiorari,
reversing that of the lower court.

Like the court of origin, the Court of Appeals found that herein respondents were the illegitimate
children of Go Chiao Lin, a Chinese citizen, and Emilia Callano, a Filipino citizen, who started
living maritally in Malitbog, Leyte, in 1934; that out of their illegitimate union were born the
following: Beato, in Sugod, Leyte, on September 28, 1936; Manuel, in Libagon, Leyte, on June
17, 1941; Gonzalo, in Malitbog, Leyte, on April 17, 1943, and Julio in Malitbog, Leyte, on
January 31, 1945. The Court of Appeals also found that in 1946, Go Chiao Lin, Emilia and
their four sons went to Amoy, China, on vacation, but Go died there the same year. In 1948,
Emilia had to return to the Philippines as the maid of Consul Eutiquio Sta. Romana because
she was penniless, leaving her children behind. Subsequently the latter were able to go to
Hongkong, where they sought and obtained employment. In 1961, they applied with the
Philippine Consul General in Hongkong for entry into the Philippines as Filipino citizens. On
December 12 of that year, the Consulate received a cablegram from the Department of Foreign
Affairs authorizing it to investigate whether the petitioners for entry were the illegitimate
children of Emilia Callano a Filipino citizen, and, if satisfied, after a thorough screening, to
issue the corresponding document certifying that they were Filipino citizens. The Consulate
made thereafter the appropriate investigation, and on the basis of evidence presented
consisting of the sworn statements of the applicants, their birth certificates and blood test
reports, said office issued late that month a certificate of registration and identity to the effect
that the applicant had submitted sufficient evidence of their citizenship and identity and had
been allowed to register in the Consulate as Filipino citizens and to travel directly to the
Philippines.

On December 26 of the same year 1961, they arrived in Manila by plane from Hongkong. As
the Immigration Inspector at the airport was of the opinion that their travel documents did not
constitute conclusive proof of citizenship, he referred their case to the Board of Special Inquiry
No. 2. Thereupon the latter conducted an investigation at which the respondents presented
oral and documentary evidence to sustain their right to admission as Filipinos (Exhs. B, D, E
and H; pp. 93-98; 99-100; 101-102; 104 of the Record). Upon these evidence, the Board on
January 4, 1962, promulgated a decision finding the Go Callano brothers to be the illegitimate
children of Emilia Callano, a Filipino citizen, and entitled to admission, as they were in fact
admitted, as Filipino citizens.

That Go Chiao Lin, a Chinese citizen, and Emilia Callano a Filipino, lived maritally in several
municipalities of Leyte since 1934 and that out of their union the four private respondents were
born, are facts found, after appropriate proceedings, first, by the Philippine Consulate General
in Hongkong; second, by the Board of Special Inquiry who investigated their case in Manila
upon their arrival thereat in 1961; third, by the Court of First Instance of Manila, and lastly, by
the Court of Appeals. These facts, according to well settled jurisprudence, are not reviewable
by Us in this appeal by certiorari.
In this appeal, the Board of Immigration Commissioners and the Commissioner of Immigration
maintain the following propositions: (1) that, in view of the fact that the cable authorization
referred to heretofore is a forgery, all the proceedings had in connection therewith are void
and, as a result, the private respondents must be deported as aliens not properly documented;
(2) that, granting that they were Filipino citizens when they left the Philippines in 1946, they
lost that citizenship, firstly, by staying in China for a period of fifteen years, and secondly,
because they were recognized by their common-law father, they became citizens of the
Republic of China in accordance with the Chinese Nationality Law.

The Court of First Instance of Manila declared the cablegram authorization a forgery on the
strength of the testimony of Mr. Logan — a handwriting expert. This finding, however, was
reversed by the Court of Appeals, the pertinent portion of its decision being the following:

The next question raised by the petitioners-appellants is whether the Government

has satisfactorily proved that the signature of the Secretary of Foreign Affairs on the
cable authorization, Exhibit 1, is a forgery. Felipe P. Logan, chief of the questioned
documents division of the National Bureau of Investigation, testified that he made a
comparative examination of the signature of the Department Secretary on Exhibit 1
and the signatures of the same official on the detail orders, Exhibits 3-G to 3-L, and
from the significant differences in the writing characteristics which he observed and
concluded that the signature on Exhibit 1 was not written by the Department
Secretary.

Before it can be said that the questioned signature is a forgery there must be
competent proof that the specimens are the genuine signature of the Secretary.
According to witness, Logan, he knows that the signatures on the detail orders are
genuine "because they were submitted to me by an agent who took them from the
files of the Department of Foreign Affairs" (p. 52, transcript). The foregoing testimony
of the witness does not prove the genuineness of the specimen signatures, more so
because the agent who allegedly took the detail others from the files of the Foreign
Affairs Department was not presented as a witness. The NBI expert concluded, from
his observation that there are significant differences between the questioned
signature and the specimen signatures on the detail orders, that the former is a
forgery. But the conclusion is stultified by the admission of the same witness that
even between the specimen signatures there are variations in the handwriting
characteristics of the signatory (p. 24, transcript). Our appreciation of the evidence
showed that there are variations indeed between the specimen signatures (Exhibits
S-1 to S-5); there are distinct similarities even between the questioned signature and
the specimen signatures (cf. Q-5, S-4 and S-5). Upon the evidence presented by the
Government, it cannot be said that the forgery of the questioned signature has been
satisfactorily proven.

Even if the competent proofs were presented showing that the questioned signature
is a forgery, the forgery of the signature on the cable authorization would not have
nullified the documentation of the petitioners by the consulate in Hongkong. We were
not cited to any specific rule or regulation of the Department of Foreign Affairs stating
that the prior authorization of this Department is necessary before the consular
official abroad can act in documentation cases. On the other hand, as per resolution
of the Cabinet of August 24, 1948, the President suggested and the Cabinet
"resolved to restore the prewar practice of entrusting to our respective consular
officials abroad the duty of receiving all visa applications and investigating the
qualifications of the applicants." (cited in Espina, Immigration Laws, 1956 Ed., p.
142.) It is evident from the aforequoted resolution that the Executive branch of the
Government intended that the right to screen applicants for entry into this country
should be lodged in the consular officials abroad. Giving effect to this intention, the
Supreme Court stated in Ng Gioc Lin vs. The Secretary of the Department of Foreign
Affairs, G.R. No. L-2175, March 31, 1950, "that although the foreign service has been
placed under the over-all direction and supervision of the Department of Foreign
Affairs by Executive Order No. 18 (42 Off. Gaz., 2064), this does not necessarily
mean that the Department Secretary takes the place of the consular officers abroad
in the matter of the issuance of passport visas, for the Secretary cannot relieve those
officers of their responsibility under the law. ... The reason of the law in conferring
upon the consuls themselves the duty and power to grant passports and visas is
obvious. The applicant for visa is in a foreign country and the Philippine consular
 officer there is naturally in a better position than the home office to determine through
investigation conducted on the spot whether or not the said applicant is qualified to
enter the Philippines." It can be deduced from the foregoing that the documentation
of the petitioners in Hongkong was not vitiated by a substantial defect even assuming
that it was done without prior authorization from the Foreign Affairs Department.

It must be stated in this connection that the petitioners became Philippine citizens
because of their relation with their mother who is a Filipino. Their status was
conferred on them neither by the documentation by the consulate in Hongkong nor
by the finding of the Board of Special Inquiry in Manila. Consequently, whatever
defects there are in the proceedings before the consulate and the board of inquiry
cannot affect their status. Therefore, even assuming that the petitioners were not
properly documented, there is no basis for the finding of the respondent Board that
they are aliens who can be excluded.

Due, therefore, to the pronouncement made by the Court of Appeals regarding the
insufficiency of the evidence presented by herein petitioners to prove the alleged forgery —
again, a matter not now within our power to review — the questioned cablegram must be
deemed to be authentic. But be that as it may, we agree with both the Court of First Instance
of origin and the Court of Appeals that, even assuming that said document was forged, this
would not automatically render void all the proceedings had before the Philippine Consulate
in Hongkong and the Board of Special Inquiry, both of which ended with a definite finding that
the Callanos were Filipino citizens. That these proceedings and finding can not be nullified by
the Department of Foreign Affairs summarily and without giving the parties concerned an
opportunity to be heard is too evident to require any demonstration.

To the other questions relied upon by herein petitioners, the following portions of the decision
of the Court of Appeals would seem to be sufficient answer:

The question, whether petitioners who are admittedly Filipino citizens at birth
subsequently acquired Chinese citizenship under the Chinese Law of Nationality by
reason of recognition or a prolonged stay in China, is a fit subject for the Chinese law
and the Chinese court to determine, which cannot be resolved by a Philippine court
without encroaching on the legal system of China. For, the settled rule of
international law, affirmed by the Hague Convention on Conflict of Nationality Laws
of April 12, 1930 and by the International Court of Justice, is that "Any question as to
whether a person possesses the nationality of a particular state should be
determined in accordance with laws of that state ." (quoted in Salonga, Private
International Law, 1957 Ed., p. 112.) There was no necessity of deciding that
question because so far as concerns the petitioners' status, the only question in this
proceeding is: Did the petitioners lose their Philippine citizenship upon the
performance of certain acts or the happening of certain events in China? In deciding
this question no foreign law can be applied. The petitioners are admittedly Filipino
citizens at birth, and their status must be governed by Philippine law wherever they
may be, in conformity with Article 15 (formerly Article 9) of the Civil Code which
provides as follows: "Laws relating to family rights and duties, or to the status,
conditions and legal capacity of persons are binding upon citizens of the Philippines,
even though living abroad." Under Article IV, Section 2, of the Philippine Constitution,
"Philippine citizenship may be lost or reacquired in the manner provided by law,"
which implies that the question of whether a Filipino has lost his Philippine citizenship
shall be determined by no other than the Philippine law.

Section 1 of Commonwealth Act No. 63, as amended by Republic Act No. 106,
provides that a Filipino citizen may lose his citizenship by naturalization in a foreign
country; express renunciation of citizenship; subscribing to an oath of allegiance to
support the constitution or laws of a foreign country; rendering service to, or
accepting a commission in, the armed forces of a foreign country; cancellation of the
certificate of naturalization; declaration by competent authority that he is a deserter of
the Philippine armed forces in time of war; in the case of a woman by marriage to a
foreigner if, by virtue of laws in force in her husband's country, she acquires his
nationality. Recognition of the petitioners by their alien father is not among the
ground for losing Philippine citizenship under Philippine law, and it cannot be said
that the petitioners lost their former status by reason of such recognition. About the
only mode of losing Philippine citizenship which closely bears on the petitioners is
 renunciation. But even renunciation cannot be cited in support of the conclusion that
petition lost their Philippine citizenship because the law requires an express
renunciation which means a renunciation that is made known distinctly and explicitly
and not left to inference or implication; a renunciation manifested by direct and
appropriate language, as distinguished from that which is inferred from conduct.
(Opinion No. 69 of the Secretary of Justice, Series of 1940.) Indeed, as the Supreme
Court held in U.S. v. Ong Tianse, 29 Phil. 332, a case for deportation, where Ong, a
natural child of a Filipino mother and a Chinese father, born in the Philippines, was
brought by his parents to China when he was 4 years old, where he remained for 18
or 19 years, returning to the Philippines at 25 years of age, "The fact that a minor
child in those conditions was taken to China and remained there for several years is
not sufficient ground upon which to hold that he has changed his nationality, when,
after reaching his majority, he did not express his desire to choose the nationality of
his father." The import of the foregoing pronouncement is that of itself a protracted
stay in a foreign country does not amount to renunciation. Moreover, herein
petitioners were all minors when they where brought to China in 1446. They were
without legal capacity to renounce their status. Upon their return to the Philippines
only Beato Go Callano had attained the age of majority, but even as to him there
could not have been renunciation because he did not manifest by direct and
appropriate language that he was disclaiming Philippine citizenship. On the contrary,
after he has attained the age of majority, he applied for registration as a Philippine
citizen and sought entry into this country, which are clear indicia of his intent to
continue his former status. The foregoing shows that the petitioners have not lost
their Philippine citizenship.

Lasty, petitioners claim that the private respondents are barred from questioning the decision
of the Board of Immigration Commissioners dated August 21, 1962 and the warrant of
exclusion issued by the Commissioner of Immigration on the same date, because they did not
appeal from either to the Secretary of Justice.

We find this to be without merit for the reason that, as stated before, both orders were issued
without previous notice and hearing and were, therefore, in violation of due process. As a
matter of fact, even in the case of an alien,decisions of the Board of Immigration
Commissioners, like that of any other administrative body, do not constitute res judicata so as
to bar a re-examination of the alien's right to enter or stay (Ong Se Lun, et al. vs. Board of
Immigration, G.R. No. L-6017, September 16, 1954), and the courts can grant relief if said
Board abused its powers, or committed serious legal errors, or denied the alien a fair hearing
(Lao Tang Bun vs. Fabre, 81 Phil. 682).

WHEREFORE, the decision under review is hereby affirmed, with costs. It is so ordered.
CASE NO. 6

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 179848 November 27, 2008

NESTOR A. JACOT, petitioner,

vs.
ROGEN T. DAL and COMMISSION ON ELECTIONS, respondents.

DECISION

CHICO-NAZARIO, J.:

Petitioner Nestor A. Jacot assails the Resolution1 dated 28 September 2007 of the Commission on
Elections (COMELEC) En Banc in SPA No. 07-361, affirming the Resolution dated 12 June 2007
of the COMELEC Second Division2 disqualifying him from running for the position of Vice-Mayor of
Catarman, Camiguin, in the 14 May 2007 National and Local Elections, on the ground that he failed
to make a personal renouncement of his United States (US) citizenship.

Petitioner was a natural born citizen of the Philippines, who became a naturalized citizen of the US
on 13 December 1989. 3

Petitioner sought to reacquire his Philippine citizenship under Republic Act No. 9225, otherwise
known as the Citizenship Retention and Re-Acquisition Act. He filed a request for the administration
of his Oath of Allegiance to the Republic of the Philippines with the Philippine Consulate General
(PCG) of Los Angeles, California. The Los Angeles PCG issued on 19 June 2006 an Order of
Approval4 of petitioner’s request, and on the same day, petitioner took his Oath of Allegiance to the
Republic of the Philippines before Vice Consul Edward C. Yulo. 5 On 27 September 2006, the
Bureau of Immigration issued Identification Certificate No. 06-12019 recognizing petitioner as a
citizen of the Philippines.6

Six months after, on 26 March 2007, petitioner filed his Certificate of Candidacy for the Position of
Vice-Mayor of the Municipality of Catarman, Camiguin. 7

On 2 May 2007, respondent Rogen T. Dal filed a Petition for Disqualification 8 before the COMELEC
Provincial Office in Camiguin against petitioner, arguing that the latter failed to renounce his US
citizenship, as required under Section 5(2) of Republic Act No. 9225, which reads as follows:

Section 5. Civil and Political Rights and Liabilities.–Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:

xxxx

(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any
public officer authorized to administer an oath.

In his Answer9 dated 6 May 2007 and Position Paper10 dated 8 May 2007, petitioner countered that
his Oath of Allegiance to the Republic of the Philippines made before the Los Angeles PCG and
the oath contained in his Certificate of Candidacy operated as an effective renunciation of his
foreign citizenship.

In the meantime, the 14 May 2007 National and Local Elections were held. Petitioner garnered the
highest number of votes for the position of Vice Mayor.
On 12 June 2007, the COMELEC Second Division finally issued its Resolution11 disqualifying the
petitioner from running for the position of Vice-Mayor of Catarman, Camiguin, for failure to make
the requisite renunciation of his US citizenship. The COMELEC Second Division explained that the
reacquisition of Philippine citizenship under Republic Act No. 9225 does not automatically bestow
upon any person the privilege to run for any elective public office. It additionally ruled that the filing
of a Certificate of Candidacy cannot be considered as a renunciation of foreign citizenship. The
COMELEC Second Division did not consider Valles v. COMELEC12 and Mercado v. Manzano13
applicable to the instant case, since Valles and Mercado were dual citizens since birth, unlike the
petitioner who lost his Filipino citizenship by means of naturalization. The COMELEC, thus, decreed
in the aforementioned Resolution that:

ACCORDINGLY, NESTOR ARES JACOT is DISQUALIFIED to run for the

position of Vice-Mayor of Catarman, Camiguin for the May 14, 2007 National and
Local Elections. If proclaimed, respondent cannot thus assume the Office of Vice-
Mayor of said municipality by virtue of such disqualification.14

Petitioner filed a Motion for Reconsideration on 29 June 2007 reiterating his position that his Oath
of Allegiance to the Republic of the Philippines before the Los Angeles PCG and his oath in his
Certificate of Candidacy sufficed as an effective renunciation of his US citizenship. Attached to the
said Motion was an "Oath of Renunciation of Allegiance to the United States and Renunciation of
Any and All Foreign Citizenship" dated 27 June 2007, wherein petitioner explicitly renounced his
US citizenship.15 The COMELEC en banc dismissed petitioner’s Motion in a Resolution16 dated 28
September 2007 for lack of merit.

Petitioner sought remedy from this Court via the present Special Civil Action for Certiorari under
Rule 65 of the Revised Rules of Court, where he presented for the first time an "Affidavit of
Renunciation of Allegiance to the United States and Any and All Foreign Citizenship" 17 dated 7
February 2007. He avers that he executed an act of renunciation of his US citizenship, separate
from the Oath of Allegiance to the Republic of the Philippines he took before the Los Angeles PCG
and his filing of his Certificate of Candidacy, thereby changing his theory of the case during the
appeal. He attributes the delay in the presentation of the affidavit to his former counsel, Atty.
Marciano Aparte, who allegedly advised him that said piece of evidence was unnecessary but who,
nevertheless, made him execute an identical document entitled "Oath of Renunciation of Allegiance
to the United States and Renunciation of Any and All Foreign Citizenship" on 27 June 2007 after
he had already filed his Certificate of Candidacy. 18

Petitioner raises the following issues for resolution of this Court:

WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF

DISCRETION WHEN IT HELD THAT PETITIONER FAILED TO COMPLY WITH
THE PROVISIONS OF R.A. 9225, OTHERWISE KNOWN AS THE "CITIZENSHIP
RETENTION AND RE-ACQUISITION ACT OF 2003," SPECIFICALLY SECTION
5(2) AS TO THE REQUIREMENTS FOR THOSE SEEKING ELECTIVE PUBLIC
OFFICE;

II

WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF

DISCRETION WHEN IT HELD THAT PETITIONER FAILED TO COMPLY WITH
THE PROVISIONS OF THE COMELEC RULES OF PROCEDURE AS REGARDS
THE PAYMENT OF THE NECESSARY MOTION FEES; AND

III

WHETHER OR NOT UPHOLDING THE DECISION OF PUBLIC RESPONDENT

WOULD RESULT IN THE FRUSTRATION OF THE WILL OF THE PEOPLE OF
CATARMAN, CAMIGUIN.19

The Court determines that the only fundamental issue in this case is whether petitioner is
disqualified from running as a candidate in the 14 May 2007 local elections for his failure to make
a personal and sworn renunciation of his US citizenship.

This Court finds that petitioner should indeed be disqualified.

Contrary to the assertions made by petitioner, his oath of allegiance to the Republic of the
Philippines made before the Los Angeles PCG and his Certificate of Candidacy do not substantially
comply with the requirement of a personal and sworn renunciation of foreign citizenship because
these are distinct requirements to be complied with for different purposes.

Section 3 of Republic Act No. 9225 requires that natural-born citizens of the Philippines, who
are already naturalized citizens of a foreign country, must take the following oath of allegiance to
the Republic of the Philippines to reacquire or retain their Philippine citizenship:

SEC. 3. Retention of Philippine Citizenship.–Any provision of law to the contrary

notwithstanding, natural-born citizens of the Philippines who have lost their
Philippine citizenship by reason of their naturalization as citizens of a foreign
country are hereby deemed to have reacquired Philippine citizenship upon taking
the following oath of allegiance to the Republic:

"I __________ solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and
will maintain true faith and allegiance thereto; and that I impose this obligation upon
myself voluntarily, without mental reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.

By the oath dictated in the afore-quoted provision, the Filipino swears allegiance to the Philippines,
but there is nothing therein on his renunciation of foreign citizenship. Precisely, a situation might
arise under Republic Act No. 9225 wherein said Filipino has dual citizenship by also reacquiring or
retaining his Philippine citizenship, despite his foreign citizenship.

The afore-quoted oath of allegiance is substantially similar to the one contained in the Certificate
of Candidacy which must be executed by any person who wishes to run for public office in
Philippine elections. Such an oath reads:

I am eligible for the office I seek to be elected. I will support and defend the
Constitution of the Philippines and will maintain true faith and allegiance thereto;
that I will obey the laws, legal orders and decrees promulgated by the duly
constituted authorities of the Republic of the Philippines; and that I impose this
obligation upon myself voluntarily, without mental reservation or purpose of
evasion. I hereby certify that the facts stated herein are true and correct of my own
personal knowledge.

Now, Section 5(2) of Republic Act No. 9225 specifically provides that:

Section 5. Civil and Political Rights and Liabilities.–Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:

xxxx

(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any
public officer authorized to administer an oath.

The law categorically requires persons seeking elective public office, who either retained their
Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of any
and all foreign citizenship before a public officer authorized to administer an oath simultaneous with
or before the filing of the certificate of candidacy.20

Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been
naturalized as citizens of a foreign country, but who reacquired or retained their Philippine
citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and
(2) for those seeking elective public offices in the Philippines, to additionally execute a
personal and sworn renunciation of any and all foreign citizenship before an authorized public
officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as candidates
in Philippine elections.

Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation
of any and all foreign citizenship) requires of the Filipinos availing themselves of the benefits under
the said Act to accomplish an undertaking other than that which they have presumably complied
with under Section 3 thereof (oath of allegiance to the Republic of the Philippines). This is made
clear in the discussion of the Bicameral Conference Committee on Disagreeing Provisions of House
Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No.
9225), where the Hon. Chairman Franklin Drilon and Hon. Representative Arthur Defensor
explained to Hon. Representative Exequiel Javier that the oath of allegiance is different from the
renunciation of foreign citizenship:

CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public office in the
Philippines shall meet the qualifications for holding such public office as required
by the Constitution and existing laws and, at the time of the filing of the certificate
of candidacy, make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath." I think it’s
very good, ha? No problem?

REP. JAVIER. … I think it’s already covered by the oath.

CHAIRMAN DRILON. Renouncing foreign citizenship.

REP. JAVIER. Ah… but he has taken his oath already.

CHAIRMAN DRILON. No…no, renouncing foreign citizenship.

xxxx

CHAIRMAN DRILON. Can I go back to No. 2. What’s your problem, Boy? Those
seeking elective office in the Philippines.

REP. JAVIER. They are trying to make him renounce his citizenship thinking that
ano…

CHAIRMAN DRILON. His American citizenship.

REP. JAVIER. To discourage him from running?

CHAIRMAN DRILON. No.

REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship.
When he runs for office, he will have only one. (Emphasis ours.)

There is little doubt, therefore, that the intent of the legislators was not only for Filipinos reacquiring
or retaining their Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance
to the Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish
to run for elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos
must only have one citizenship, namely, Philippine citizenship.

By the same token, the oath of allegiance contained in the Certificate of Candidacy, which is
substantially similar to the one contained in Section 3 of Republic Act No. 9225, does not constitute
the personal and sworn renunciation sought under Section 5(2) of Republic Act No. 9225. It bears
to emphasize that the said oath of allegiance is a general requirement for all those who wish to run
as candidates in Philippine elections; while the renunciation of foreign citizenship is an additional
requisite only for those who have retained or reacquired Philippine citizenship under Republic Act
No. 9225 and who seek elective public posts, considering their special circumstance of having more
than one citizenship.

Petitioner erroneously invokes the doctrine in Valles21 and Mercado,22 wherein the filing by a person
with dual citizenship of a certificate of candidacy, containing an oath of allegiance, was already
considered a renunciation of foreign citizenship. The ruling of this Court in Valles and Mercado is
not applicable to the present case, which is now specially governed by Republic Act No. 9225,
promulgated on 29 August 2003.

In Mercado, which was cited in Valles, the disqualification of therein private respondent Manzano
was sought under another law, Section 40(d) of the Local Government Code, which reads:

SECTION 40. Disqualifications. The following persons are disqualified from

running for any elective local position:

xxxx

(d) Those with dual citizenship.

The Court in the aforesaid cases sought to define the term "dual citizenship" vis-à-vis the concept
of "dual allegiance." At the time this Court decided the cases of Valles and Mercado on 26 May
1999 and 9 August 2000, respectively, the more explicitly worded requirements of Section 5(2) of
Republic Act No. 9225 were not yet enacted by our legislature.23

Lopez v. Commission on Elections24 is the more fitting precedent for this case since they both share
the same factual milieu. In Lopez, therein petitioner Lopez was a natural-born Filipino who lost his
Philippine citizenship after he became a naturalized US citizen. He later reacquired his Philippine
citizenship by virtue of Republic Act No. 9225. Thereafter, Lopez filed his candidacy for a local
elective position, but failed to make a personal and sworn renunciation of his foreign citizenship.
This Court unequivocally declared that despite having garnered the highest number of votes in the
election, Lopez is nonetheless disqualified as a candidate for a local elective position due to his
failure to comply with the requirements of Section 5(2) of Republic Act No. 9225.

Petitioner presents before this Court for the first time, in the instant Petition for Certiorari, an
"Affidavit of Renunciation of Allegiance to the United States and Any and All Foreign Citizenship,"25
which he supposedly executed on 7 February 2007, even before he filed his Certificate of
Candidacy on 26 March 2007. With the said Affidavit, petitioner puts forward in the Petition at bar
a new theory of his case–that he complied with the requirement of making a personal and sworn
renunciation of his foreign citizenship before filing his Certificate of Candidacy. This new theory
constitutes a radical change from the earlier position he took before the COMELEC–that he
complied with the requirement of renunciation by his oaths of allegiance to the Republic of the
Philippines made before the Los Angeles PCG and in his Certificate of Candidacy, and that there
was no more need for a separate act of renunciation.

As a rule, no question will be entertained on appeal unless it has been raised in the proceedings
below. Points of law, theories, issues and arguments not brought to the attention of the lower court,
administrative agency or quasi-judicial body need not be considered by a reviewing court, as they
cannot be raised for the first time at that late stage. Basic considerations of fairness and due
process impel this rule.26 Courts have neither the time nor the resources to accommodate parties
who chose to go to trial haphazardly.27

Likewise, this Court does not countenance the late submission of evidence. 28 Petitioner should
have offered the Affidavit dated 7 February 2007 during the proceedings before the COMELEC.

Section 1 of Rule 43 of the COMELEC Rules of Procedure provides that "In the absence of any
applicable provisions of these Rules, the pertinent provisions of the Rules of Court in the Philippines
shall be applicable by analogy or in suppletory character and effect." Section 34 of Rule 132 of the
Revised Rules of Court categorically enjoins the admission of evidence not formally presented:

SEC. 34. Offer of evidence. - The court shall consider no evidence which has not
been formally offered. The purpose for which the evidence is offered must be
specified.

Since the said Affidavit was not formally offered before the COMELEC, respondent had no
opportunity to examine and controvert it. To admit this document would be contrary to due process.
29 Additionally, the piecemeal presentation of evidence is not in accord with orderly justice.30

The Court further notes that petitioner had already presented before the COMELEC an identical
document, "Oath of Renunciation of Allegiance to the United States and Renunciation of Any and
All Foreign Citizenship" executed on 27 June 2007, subsequent to his filing of his Certificate of
Candidacy on 26 March 2007. Petitioner attached the said Oath of 27 June 2007 to his Motion for
Reconsideration with the COMELEC en banc. The COMELEC en banc eventually refused to
reconsider said document for being belatedly executed. What was extremely perplexing, not to
mention suspect, was that petitioner did not submit the Affidavit of 7 February 2007 or mention it at
all in the proceedings before the COMELEC, considering that it could have easily won his case if it
was actually executed on and in existence before the filing of his Certificate of Candidacy, in
compliance with law.

The justification offered by petitioner, that his counsel had advised him against presenting this
crucial piece of evidence, is lame and unconvincing. If the Affidavit of 7 February 2007 was in
existence all along, petitioner’s counsel, and even petitioner himself, could have easily adduced it
to be a crucial piece of evidence to prove compliance with the requirements of Section 5(2) of
Republic Act No. 9225. There was no apparent danger for petitioner to submit as much evidence
as possible in support of his case, than the risk of presenting too little for which he could lose.

And even if it were true, petitioner’s excuse for the late presentation of the Affidavit of 7 February
2007 will not change the outcome of petitioner’s case.

It is a well-settled rule that a client is bound by his counsel’s conduct, negligence, and mistakes in
handling the case, and the client cannot be heard to complain that the result might have been
different had his lawyer proceeded differently.31 The only exceptions to the general rule -- that a
client is bound by the mistakes of his counsel -- which this Court finds acceptable are when the
reckless or gross negligence of counsel deprives the client of due process of law, or when the
application of the rule results in the outright deprivation of one’s property through a technicality.32
These exceptions are not attendant in this case.

The Court cannot sustain petitioner’s averment that his counsel was grossly negligent in deciding
against the presentation of the Affidavit of 7 February 2007 during the proceedings before the
COMELEC. Mistakes of attorneys as to the competency of a witness; the sufficiency, relevancy or
irrelevancy of certain evidence; the proper defense or the burden of proof, failure to introduce
evidence, to summon witnesses and to argue the case -- unless they prejudice the client and
prevent him from properly presenting his case -- do not constitute gross incompetence or
negligence, such that clients may no longer be bound by the acts of their counsel. 33

Also belying petitioner’s claim that his former counsel was grossly negligent was the fact that
petitioner continuously used his former counsel’s theory of the case. Even when the COMELEC
already rendered an adverse decision, he persistently argues even to this Court that his oaths of
allegiance to the Republic of the Philippines before the Los Angeles PCG and in his Certificate of
Candidacy amount to the renunciation of foreign citizenship which the law requires. Having
asserted the same defense in the instant Petition, petitioner only demonstrates his continued
reliance on and complete belief in the position taken by his former counsel, despite the former’s
incongruous allegations that the latter has been grossly negligent.

Petitioner himself is also guilty of negligence. If indeed he believed that his counsel was inept,
petitioner should have promptly taken action, such as discharging his counsel earlier and/or
insisting on the submission of his Affidavit of 7 February 2007 to the COMELEC, instead of waiting
until a decision was rendered disqualifying him and a resolution issued dismissing his motion for
reconsideration; and, thereupon, he could have heaped the blame on his former counsel. Petitioner
could not be so easily allowed to escape the consequences of his former counsel’s acts, because,
otherwise, it would render court proceedings indefinite, tentative, and subject to reopening at any
time by the mere subterfuge of replacing counsel. 34

Petitioner cites De Guzman v. Sandiganbayan,35 where therein petitioner De Guzman was unable
to present a piece of evidence because his lawyer proceeded to file a demurrer to evidence, despite
the Sandiganbayan’s denial of his prior leave to do so. The wrongful insistence of the lawyer in
filing a demurrer to evidence had totally deprived De Guzman of any chance to present
documentary evidence in his defense. This was certainly not the case in the Petition at bar.

Herein, petitioner was in no way deprived of due process. His counsel actively defended his suit by
attending the hearings, filing the pleadings, and presenting evidence on petitioner’s behalf.
Moreover, petitioner’s cause was not defeated by a mere technicality, but because of a mistaken
reliance on a doctrine which is not applicable to his case. A case lost due to an untenable legal
position does not justify a deviation from the rule that clients are bound by the acts and mistakes
of their counsel.36

Petitioner also makes much of the fact that he received the highest number of votes for the position
of Vice-Mayor of Catarman during the 2007 local elections. The fact that a candidate, who must
comply with the election requirements applicable to dual citizens and failed to do so, received the
highest number of votes for an elective position does not dispense with, or amount to a waiver of,
such requirement.37 The will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed that the candidate was qualified. The rules on
citizenship qualifications of a candidate must be strictly applied. If a person seeks to serve the
Republic of the Philippines, he must owe his loyalty to this country only, abjuring and renouncing
all fealty and fidelity to any other state.38 The application of the constitutional and statutory
provisions on disqualification is not a matter of popularity.39

WHEREFORE, the instant appeal is DISMISSED. The Resolution dated 28 September 2007 of the
COMELEC en banc in SPA No. 07-361, affirming the Resolution dated 12 June 2007 of the
COMELEC Second Division, is AFFIRMED. Petitioner is DISQUALIFIED to run for the position of
Vice-Mayor of Catarman, Camiguin in the 14 May 2007 National and Local Elections, and if
proclaimed, cannot assume the Office of Vice-Mayor of said municipality by virtue of such
disqualification. Costs against petitioner.

SO ORDERED.
CASE NO. 7

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 198742 August 10, 2012

TEODORA SOBEJANA-CONDON, Petitioner,

vs.
COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR
and WILMA P. PAGADUAN, Respondents.

SERENO,*

PERLAS-BERNABE, JJ *

DECISION

REYES, J.:

Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2)
of Republic Act (R.A.) No. 9225 renders a dual citizen ineligible to run for and thus hold
any elective public office.

The Case

At bar is a special civil action for certiorari under Rule 64 of the Rules of Court seeking to
1

nullify Resolution dated September 6, 2011 of the Commission on Elections (COMELEC)

2

en banc in EAC (AE) No. A-44-2010. The assailed resolution (a) reversed the Order dated3

November 30, 2010 of COMELEC Second Division dismissing petitioner’s appeal; and
(b) affirmed the consolidated Decision dated October 22, 2010 of the Regional Trial Court
4

(RTC), Bauang, La Union, Branch 33, declaring petitioner Teodora Sobejana-Condon

(petitioner) disqualified and ineligible to her position as Vice-Mayor of Caba, La Union.

The Undisputed Facts

The petitioner is a natural-born Filipino citizen having been born of Filipino parents on
August 8, 1944. On December 13, 1984, she became a naturalized Australian citizen owing
to her marriage to a certain Kevin Thomas Condon.

On December 2, 2005, she filed an application to re-acquire Philippine citizenship before

the Philippine Embassy in Canberra, Australia pursuant to Section 3 of R.A. No. 9225
otherwise known as the "Citizenship Retention and Re-Acquisition Act of 2003." The 5

application was approved and the petitioner took her oath of allegiance to the Republic of
the Philippines on December 5, 2005.

On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of

Australian Citizenship before the Department of Immigration and Indigenous Affairs,
Canberra, Australia, which in turn issued the Order dated September 27, 2006 certifying
that she has ceased to be an Australian citizen. 6

The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections.
She lost in her bid. She again sought elective office during the May 10, 2010 elections this
time for the position of Vice-Mayor. She obtained the highest numbers of votes and was
proclaimed as the winning candidate. She took her oath of office on May 13, 2010.

Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan and Luis M.
7

Bautista, (private respondents) all registered voters of Caba, La Union, filed separate
8

petitions for quo warranto questioning the petitioner’s eligibility before the RTC. The
petitions similarly sought the petitioner’s disqualification from holding her elective post
on the ground that she is a dual citizen and that she failed to execute a "personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized to
administer an oath" as imposed by Section 5(2) of R.A. No. 9225.

The petitioner denied being a dual citizen and averred that since September 27, 2006, she
ceased to be an Australian citizen. She claimed that the Declaration of Renunciation of
Australian Citizenship she executed in Australia sufficiently complied with Section 5(2),
R.A. No. 9225 and that her act of running for public office is a clear abandonment of her
Australian citizenship.

Ruling of the RTC

In its consolidated Decision dated October 22, 2010, the trial court held that the petitioner’s
failure to comply with Section 5(2) of R.A. No. 9225 rendered her ineligible to run and
hold public office. As admitted by the petitioner herself during trial, the personal
declaration of renunciation she filed in Australia was not under oath. The law clearly
mandates that the document containing the renunciation of foreign citizenship must be
sworn before any public officer authorized to administer oath. Consequently, the RTC’s
decision disposed as follows:

WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private

respondents] and AGAINST (petitioner):

1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and

ineligible to hold the office of Vice-Mayor of Caba, La Union;

2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said

municipality; and

3) DECLARING the position of Vice-Mayor in said municipality vacant.

SO ORDERED. 9

Ruling of the COMELEC

The petitioner appealed to the COMELEC but the appeal was dismissed by the Second
Division in its Order dated November 30, 2010 for failure to pay the docket fees within
10

the prescribed period. On motion for reconsideration, the appeal was reinstated by the
COMELEC en banc in its Resolution dated September 6, 2011. In the same issuance, the
11

substantive merits of the appeal were given due course. The COMELEC en banc concurred
with the findings and conclusions of the RTC; it also granted the Motion for Execution
Pending Appeal filed by the private respondents.

The decretal portion of the resolution reads:

WHEREFORE, premises considered the Commission RESOLVED as it hereby

RESOLVES as follows:

1. To DISMISS the instant appeal for lack of merit;

2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and

3. To GRANT the Motion for Execution filed on November 12, 2010.

SO ORDERED. (Emphasis supplied)

12

Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc.

The Petitioner’s Arguments

The petitioner contends that since she ceased to be an Australian citizen on September 27,
2006, she no longer held dual citizenship and was only a Filipino citizen when she filed
her certificate of candidacy as early as the 2007 elections. Hence, the "personal and sworn
renunciation of foreign citizenship" imposed by Section 5(2) of R.A. No. 9225 to dual
citizens seeking elective office does not apply to her.

She further argues that a sworn renunciation is a mere formal and not a mandatory
requirement. In support thereof, she cites portions of the Journal of the House of
Representatives dated June 2 to 5, 2003 containing the sponsorship speech for House Bill
(H.B.) No. 4720, the precursor of R.A. No. 9225.

She claims that the private respondents are estopped from questioning her eligibility since
they failed to do so when she filed certificates of candidacy for the 2007 and 2010 elections.

Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the
substantive merits of her appeal instead of remanding the same to the COMELEC Second
Division for the continuation of the appeal proceedings; and (b) allow the execution
pending appeal of the RTC’s judgment.

The Issues

Posed for resolution are the following issues: I) Whether the COMELEC en banc may
resolve the merits of an appeal after ruling on its reinstatement; II) Whether the COMELEC
en banc may order the execution of a judgment rendered by a trial court in an election case;
III) Whether the private respondents are barred from questioning the qualifications of the
petitioner; and IV) For purposes of determining the petitioner’s eligibility to run for public
office, whether the "sworn renunciation of foreign citizenship" in Section 5(2) of R.A. No.
9225 is a mere pro-forma requirement.

The Court’s Ruling

I. An appeal may be simultaneously

reinstated and definitively resolved
by the COMELEC en banc in a
resolution disposing of a motion for
reconsideration.

The power to decide motions for reconsideration in election cases is arrogated unto the
COMELEC en banc by Section 3, Article IX-C of the Constitution, viz:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases,
including pre-proclamation controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of decisions shall be decided
by the Commission en banc.
A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules of
Procedure, to wit:

Any motion to reconsider a decision, resolution, order or ruling of a Division shall be

resolved by the Commission en banc except motions on interlocutory orders of the division
which shall be resolved by the division which issued the order.

Considering that the above cited provisos do not set any limits to the COMELEC en banc’s
prerogative in resolving a motion for reconsideration, there is nothing to prevent the body
from directly adjudicating the substantive merits of an appeal after ruling for its
reinstatement instead of remanding the same to the division that initially dismissed it.

We thus see no impropriety much more grave abuse of discretion on the part of the
COMELEC en banc when it proceeded to decide the substantive merits of the petitioner’s
appeal after ruling for its reinstatement.

Further, records show that, in her motion for reconsideration before the COMELEC en
banc, the petitioner not only proffered arguments on the issue on docket fees but also on
the issue of her eligibility. She even filed a supplemental motion for reconsideration
attaching therewith supporting documents to her contention that she is no longer an
13

Australian citizen. The petitioner, after obtaining an unfavorable decision, cannot be

permitted to disavow the en banc’s exercise of discretion on the substantial merits of her
appeal when she herself invoked the same in the first place.

The fact that the COMELEC en banc had remanded similar appeals to the Division that
initially dismissed them cannot serve as a precedent to the disposition of the petitioner’s
appeal. A decision or resolution of any adjudicating body can be disposed in several ways.
To sustain petitioner’s argument would be virtually putting a straightjacket on the
COMELEC en banc’s adjudicatory powers.

More significantly, the remand of the appeal to the COMELEC Second Division would be
unnecessarily circuitous and repugnant to the rule on preferential disposition of quo
warranto cases espoused in Rule 36, Section 15 of the COMELEC Rules of Procedure. 14

II. The COMELEC en banc has the

power to order discretionary
execution of judgment.

We cannot subscribe to petitioner’s submission that the COMELEC en banc has no power
to order the issuance of a writ of execution and that such function belongs only to the court
of origin.

There is no reason to dispute the COMELEC’s authority to order discretionary execution

of judgment in view of the fact that the suppletory application of the Rules of Court is
expressly sanctioned by Section 1, Rule 41 of the COMELEC Rules of Procedure. 15

Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued
by an appellate court after the trial court has lost jurisdiction. In Batul v. Bayron, we 16

stressed the import of the provision vis-à-vis election cases when we held that judgments
in election cases which may be executed pending appeal includes those decided by trial
courts and those rendered by the COMELEC whether in the exercise of its original or
appellate jurisdiction.

III. Private respondents are not

estopped from questioning
petitioner’s eligibility to hold public
office.
The fact that the petitioner’s qualifications were not questioned when she filed certificates
of candidacy for 2007 and 2010 elections cannot operate as an estoppel to the petition for
quo warranto before the RTC.

Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances
where a petition questioning the qualifications of a registered candidate to run for the office
for which his certificate of candidacy was filed can be raised, to wit:

(1) Before election, pursuant to Section 78 thereof which provides that:

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. – A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later
than twenty-five days from the time of the filing of the certificate of candidacy and shall
be decided, after due notice and hearing, not later than fifteen days before the election; and

(2) After election, pursuant to Section 253 thereof, viz:

Sec. 253. Petition for quo warranto. – Any voter contesting the election of any Member of
the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility
or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo
warranto with the Commission within ten days after the proclamation of the results of the
election. (Emphasis ours)

Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file
the petition within the twenty-five (25)-day period prescribed by Section 78 of the Omnibus
Election Code for whatever reasons, the elections laws do not leave him completely
helpless as he has another chance to raise the disqualification of the candidate by filing a
petition for quo warranto within ten (10) days from the proclamation of the results of the
election, as provided under Section 253 of the Omnibus Election Code. 17

The above remedies were both available to the private respondents and their failure to
utilize Section 78 of the Omnibus Election Code cannot serve to bar them should they opt
to file, as they did so file, a quo warranto petition under Section 253.

IV. Petitioner is disqualified from

running for elective office for
failure to renounce her Australian
citizenship in accordance with
Section 5(2) of R.A. No. 9225.

R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-
born citizens who have lost their Philippine citizenship by taking an oath of allegiance to
18

the Republic, thus:

Section 3. Retention of Philippine Citizenship. – Any provision of law to the contrary

notwithstanding, natural-born citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country are hereby
deemed to have re-acquired Philippine citizenship upon taking the following oath of
allegiance to the Republic:

"I, _____________________, solemnly swear (or affirm) that I will support and
defend the Constitution of the Republic of the Philippines and obey the laws and
legal orders promulgated by the duly constituted authorities of the Philippines; and
I hereby declare that I recognize and accept the supreme authority of the Philippines
and will maintain true faith and allegiance thereto; and that I imposed this
 obligation upon myself voluntarily without mental reservation or purpose of
evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.

The oath is an abbreviated repatriation process that restores one’s Filipino citizenship and
all civil and political rights and obligations concomitant therewith, subject to certain
conditions imposed in Section 5, viz:

Sec. 5. Civil and Political Rights and Liabilities. – Those who retain or re-acquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be subject
to all attendant liabilities and responsibilities under existing laws of the Philippines and the
following conditions:

(1) Those intending to exercise their right of suffrage must meet the requirements under
Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The
Overseas Absentee Voting Act of 2003" and other existing laws;

(2) Those seeking elective public office in the Philippines shall meet the qualification for
holding such public office as required by the Constitution and existing laws and, at the time
of the filing of the certificate of candidacy, make a personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance
to the Republic of the Philippines and its duly constituted authorities prior to their
assumption of office: Provided, That they renounce their oath of allegiance to the country
where they took that oath;

(4) Those intending to practice their profession in the Philippines shall apply with the
proper authority for a license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines
cannot be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they are
naturalized citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed forces
of the country which they are naturalized citizens. (Emphasis ours)

Under the provisions of the aforementioned law, the petitioner has validly re-acquired her
Filipino citizenship when she took an Oath of Allegiance to the Republic of the Philippines
on December 5, 2005. At that point, she held dual citizenship, i.e., Australian and
Philippine.

On September 18, 2006, or a year before she initially sought elective public office, she
filed a renunciation of Australian citizenship in Canberra, Australia. Admittedly, however,
the same was not under oath contrary to the exact mandate of Section 5(2) that the
renunciation of foreign citizenship must be sworn before an officer authorized to
administer oath.

To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the Court
to interpret the "sworn renunciation of any and all foreign citizenship" in Section 5(2) to
be a mere pro forma requirement in conformity with the intent of the Legislature. She
anchors her submission on the statement made by Representative Javier during the floor
deliberations on H.B. No. 4720, the precursor of R.A. No. 9225.

At the outset, it bears stressing that the Court’s duty to interpret the law according to its
true intent is exercised only when the law is ambiguous or of doubtful meaning. The first
and fundamental duty of the Court is to apply the law. As such, when the law is clear and
free from any doubt, there is no occasion for construction or interpretation; there is only
room for application. Section 5(2) of R.A. No. 9225 is one such instance.
19

Ambiguity is a condition of admitting two or more meanings, of being understood in more

than one way, or of referring to two or more things at the same time. For a statute to be
considered ambiguous, it must admit of two or more possible meanings. 20

The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC, we 21

declared its categorical and single meaning: a Filipino American or any dual citizen cannot
run for any elective public position in the Philippines unless he or she personally swears to
a renunciation of all foreign citizenship at the time of filing the certificate of candidacy.
We also expounded on the form of the renunciation and held that to be valid, the
renunciation must be contained in an affidavit duly executed before an officer of the law
who is authorized to administer an oath stating in clear and unequivocal terms that affiant
is renouncing all foreign citizenship.

The same meaning was emphasized in Jacot v. Dal, when we held that Filipinos re-
22

acquiring or retaining their Philippine citizenship under R.A. No. 9225 must explicitly
renounce their foreign citizenship if they wish to run for elective posts in the Philippines,
thus:

The law categorically requires persons seeking elective public office, who either retained
their Philippine citizenship or those who reacquired it, to make a personal and sworn
renunciation of any and all foreign citizenship before a public officer authorized to
administer an oath simultaneous with or before the filing of the certificate of candidacy.

Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have
been naturalized as citizens of a foreign country, but who reacquired or retained their
Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act
No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally
execute a personal and sworn renunciation of any and all foreign citizenship before an
authorized public officer prior or simultaneous to the filing of their certificates of
candidacy, to qualify as candidates in Philippine elections.

Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn
renunciation of any and all foreign citizenship) requires of the Filipinos availing
themselves of the benefits under the said Act to accomplish an undertaking other than that
which they have presumably complied with under Section 3 thereof (oath of allegiance to
the Republic of the Philippines). This is made clear in the discussion of the Bicameral
Conference Committee on Disagreeing Provisions of House Bill No. 4720 and Senate Bill
No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where the Hon.
Chairman Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon.
Representative Exequiel Javier that the oath of allegiance is different from the renunciation
of foreign citizenship;

xxxx

The intent of the legislators was not only for Filipinos reacquiring or retaining their
Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance to the
Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they
wish to run for elective posts in the Philippines. To qualify as a candidate in Philippine
elections, Filipinos must only have one citizenship, namely, Philippine citizenship. 23

(Citation omitted and italics and underlining ours)

Hence, in De Guzman v. COMELEC, we declared petitioner therein to be disqualified

24

from running for the position of vice-mayor for his failure to make a personal and sworn
renunciation of his American citizenship.

We find no reason to depart from the mandatory nature infused by the above rulings to the
phrase "sworn renunciation". The language of the provision is plain and unambiguous. It
expresses a single, definite, and sensible meaning and must thus be read literally. The 25

foreign citizenship must be formally rejected through an affidavit duly sworn before an
officer authorized to administer oath.

It is conclusively presumed to be the meaning that the Legislature has intended to convey. 26

Even a resort to the Journal of the House of Representatives invoked by the petitioner leads
to the same inference, viz:

INTERPELLATION OF REP. JAVIER

Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited to
natural-born Filipinos and not to naturalized Filipinos.

Rep. Libanan replied in the affirmative.

Rep. Javier subsequently adverted to Section 5 of the Bill which provides that natural-born
Filipinos who have dual citizenship shall continue to enjoy full civil and political rights.
This being the case, he sought clarification as to whether they can indeed run for public
office provided that they renounce their foreign citizenship.

Rep. Libanan replied in the affirmative, citing that these citizens will only have to make a
personal and sworn renunciation of foreign citizenship before any authorized public
officer.

Rep. Javier sought further clarification on this matter, citing that while the Bill provides
them with full civil and political rights as Filipino citizens, the measure also discriminates
against them since they are required to make a sworn renunciation of their other foreign
citizenship if and when they run for public office. He thereafter proposed to delete this
particular provision.

In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding
any issues that might be raised pertaining to the citizenship of any candidate. He
subsequently cited the case of Afroyim vs. Rusk, wherein the United States considered
a naturalized American still as an American citizen even when he cast his vote in
Israel during one of its elections.

Rep. Javier however pointed out that the matter of voting is different because in voting,
one is not required to renounce his foreign citizenship. He pointed out that under the Bill,
Filipinos who run for public office must renounce their foreign citizenship. He pointed out
further that this is a contradiction in the Bill.

Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign
citizenship and are now entitled to reacquire their Filipino citizenship will be considered
as natural-born citizens. As such, he likewise inquired whether they will also be considered
qualified to run for the highest elective positions in the country.
Rep. Libanan replied in the affirmative, citing that the only requirement is that they make
a sworn renunciation of their foreign citizenship and that they comply with the residency
and registration requirements as provided for in the Constitution.

Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those
who are citizens at the time of birth without having to perform an act to complete or perfect
his/her citizenship.

Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal
of CA No. 63. The repeal, he said, would help Filipino citizens who acquired foreign
citizenship to retain their citizenship. With regard then to Section 5 of the Bill, he explained
that the Committee had decided to include this provision because Section 18, Article XI of
the Constitution provides for the accountability of public officers.

In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign
citizenship will only become a pro forma requirement.

On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens
who became foreign citizens and who have reacquired their Filipino citizenship under the
Bill will be considered as natural-born citizens, and therefore qualified to run for the
presidency, the vice-presidency or for a seat in Congress. He also agreed with the
observation of Rep. Javier that a natural-born citizen is one who is a citizen of the country
at the time of birth. He also explained that the Bill will, in effect, return to a Filipino citizen
who has acquired foreign citizenship, the status of being a natural-born citizen effective at
the time he lost his Filipino citizenship.

As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized
Filipino citizens and Filipino citizens by election who are all disqualified to run for certain
public offices. He then suggested that the Bill be amended by not considering as natural-
born citizens those Filipinos who had renounced their Filipino citizenship and acquired
foreign citizenship. He said that they should be considered as repatriated citizens.

In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latter’s
comments on the matter. He however stressed that after a lengthy deliberation on the
subject, the Committees on Justice, and Foreign Affairs had decided to revert back to the
status of being natural-born citizens those natural-born Filipino citizens who had acquired
foreign citizenship but now wished to reacquire their Filipino citizenship.

Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of
her marriage to a foreigner can regain her repatriated Filipino citizenship, upon the death
of her husband, by simply taking her oath before the Department of Justice (DOJ).

Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino
citizens who are not considered natural-born. He reiterated that natural-born Filipino
citizens who had renounced their citizenship by pledging allegiance to another sovereignty
should not be allowed to revert back to their status of being natural-born citizens once they
decide to regain their Filipino citizenship. He underscored that this will in a way allow such
Filipinos to enjoy dual citizenship.

On whether the Sponsors will agree to an amendment incorporating the position of Rep.
Javier, Rep. Libanan stated that this will defeat the purpose of the Bill.

Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired
foreign citizenships and later decided to regain their Filipino citizenship, will be considered
as repatriated citizens.
Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had ruled
that only naturalized Filipino citizens are not considered as natural-born citizens.

In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are
Filipino citizens under the 1935 Constitution and who elected Filipino citizenship upon
reaching the age of maturity, are not deemed as natural-born citizens.

In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the
recovery of one’s original nationality and only naturalized citizens are not considered as
natural-born citizens.

On whether the Sponsors would agree to not giving back the status of being natural-born
citizens to natural-born Filipino citizens who acquired foreign citizenship, Rep. Libanan
remarked that the Body in plenary session will decide on the matter. 27

The petitioner obviously espouses an isolated reading of Representative Javier’s statement;

she conveniently disregards the preceding and succeeding discussions in the records.

The above-quoted excerpts of the legislative record show that Representative Javier’s
statement ought to be understood within the context of the issue then being discussed, that
is – whether former natural-born citizens who re-acquire their Filipino citizenship under
the proposed law will revert to their original status as natural-born citizens and thus be
qualified to run for government positions reserved only to natural-born Filipinos, i.e.
President, Vice-President and Members of the Congress.

It was Representative Javier’s position that they should be considered as repatriated

Filipinos and not as natural-born citizens since they will have to execute a personal and
sworn renunciation of foreign citizenship. Natural-born citizens are those who need not
perform an act to perfect their citizenship. Representative Libanan, however, maintained
that they will revert to their original status as natural-born citizens. To reconcile the
renunciation imposed by Section 5(2) with the principle that natural-born citizens are those
who need not perform any act to perfect their citizenship, Representative Javier suggested
that the sworn renunciation of foreign citizenship be considered as a mere pro forma
requirement.

Petitioner’s argument, therefore, loses its point. The "sworn renunciation of foreign
citizenship" must be deemed a formal requirement only with respect to the re-acquisition
of one’s status as a natural-born Filipino so as to override the effect of the principle that
natural-born citizens need not perform any act to perfect their citizenship. Never was it
mentioned or even alluded to that, as the petitioner wants this Court to believe, those who
re-acquire their Filipino citizenship and thereafter run for public office has the option of
executing an unsworn affidavit of renunciation.

It is also palpable in the above records that Section 5 was intended to complement Section
18, Article XI of the Constitution on public officers’ primary accountability of allegiance
and loyalty, which provides:

Sec. 18. – Public officers and employees owe the State and this Constitution allegiance at
all times and any public officer or employee who seeks to change his citizenship or acquire
the status of an immigrant of another country during his tenure shall be dealt with by law.

An oath is a solemn declaration, accompanied by a swearing to God or a revered person or

thing, that one’s statement is true or that one will be bound to a promise. The person making
the oath implicitly invites punishment if the statement is untrue or the promise is broken.
The legal effect of an oath is to subject the person to penalties for perjury if the testimony
is false.
28
Indeed, the solemn promise, and the risk of punishment attached to an oath ensures
truthfulness to the prospective public officer’s abandonment of his adopted state and
promise of absolute allegiance and loyalty to the Republic of the Philippines.

To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial
purposes; it would also accommodate a mere qualified or temporary allegiance from
government officers when the Constitution and the legislature clearly demand otherwise.

Petitioner contends that the Australian Citizenship Act of 1948, under which she is already
deemed to have lost her citizenship, is entitled to judicial notice. We disagree.

Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged
and proven. To prove a foreign law, the party invoking it must present a copy thereof and
29

comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court which reads:

Sec. 24. Proof of official record. – The record of public documents referred to in paragraph
(a) of Section 19, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal custody of the
record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with
a certificate that such officer has the custody. If the office in which the record is kept is in
a foreign country, the certificate may be made by a secretary of the embassy or legation,
consul general, consul, vice- consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office. (Emphasis ours)

Sec. 25. What attestation of copy must state. – Whenever a copy of a document or record
is attested for the purpose of the evidence, the attestation must state, in substance, that the
copy is a correct copy of the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there be any, or if he be
the clerk of a court having a seal, under the seal of such court.

The Court has admitted certain exceptions to the above rules and held that the existence of
a foreign law may also be established through: (1) a testimony under oath of an expert
witness such as an attorney-at-law in the country where the foreign law operates wherein
he quotes verbatim a section of the law and states that the same was in force at the time
material to the facts at hand; and (2) likewise, in several naturalization cases, it was held
by the Court that evidence of the law of a foreign country on reciprocity regarding the
acquisition of citizenship, although not meeting the prescribed rule of practice, may be
allowed and used as basis for favorable action, if, in the light of all the circumstances, the
Court is "satisfied of the authenticity of the written proof offered." Thus, in a number of
decisions, mere authentication of the Chinese Naturalization Law by the Chinese Consulate
General of Manila was held to be a competent proof of that law. 30

The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the
above methods. As uniformly observed by the RTC and COMELEC, the petitioner failed
to show proof of the existence of the law during trial. Also, the letter issued by the
Australian government showing that petitioner already renounced her Australian
citizenship was unauthenticated hence, the courts a quo acted judiciously in disregarding
the same.

We are bound to arrive at a similar conclusion even if we were to admit as competent

evidence the said letter in view of the photocopy of a Certificate of Authentication issued
by Consular Section of the Philippine Embassy in Canberra, Australia attached to the
petitioner’s motion for reconsideration.
We have stressed in Advocates and Adherents of Social Justice for School Teachers and
Allied Workers (AASJS) Member v. Datumanong that the framers of R.A. No. 9225 did
31

not intend the law to concern itself with the actual status of the other citizenship.

This Court as the government branch tasked to apply the enactments of the legislature must
do so conformably with the wisdom of the latter sans the interference of any foreign law.
If we were to read the Australian Citizen Act of 1948 into the application and operation of
R.A. No. 9225, we would be applying not what our legislative department has deemed wise
to require. To do so would be a brazen encroachment upon the sovereign will and power
of the people of this Republic. 32

The petitioner’s act of running for public office does not suffice to serve as an effective
renunciation of her Australian citizenship. While this Court has previously declared that
the filing by a person with dual citizenship of a certificate of candidacy is already
considered a renunciation of foreign citizenship, such ruling was already adjudged
33

superseded by the enactment of R.A. No. 9225 on August 29, 2003 which provides for the
additional condition of a personal and sworn renunciation of foreign citizenship. 34

The fact that petitioner won the elections can not cure the defect of her candidacy.
Garnering the most number of votes does not validate the election of a disqualified
candidate because the application of the constitutional and statutory provisions on
disqualification is not a matter of popularity. 35

In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their
citizenship and seek elective office, to execute a personal and sworn renunciation of any
and all foreign citizenships before an authorized public officer prior to or simultaneous to
the filing of their certificates of candidacy, to qualify as candidates in Philippine elections.
36

The rule applies to all those who have re-acquired their Filipino citizenship, like petitioner,
without regard as to whether they are still dual citizens or not. It is a pre-requisite imposed
for the exercise of the right to run for public office.

Stated differently, it is an additional qualification for elective office specific only to

Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is
the operative act that restores their right to run for public office. The petitioner's failure to
comply therewith in accordance with the exact tenor of the law, rendered ineffectual the
Declaration of Renunciation of Australian Citizenship she executed on September 18,
2006. As such, she is yet to regain her political right to seek elective office. Unless she
executes a sworn renunciation of her Australian citizenship, she is ineligible to run for and
hold any elective office in the Philippines.

WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The
Resolution dated September 6, 2011 of the Commission on Elections en bane in EAC (AE)
No. A-44-2010 is AFFIRMED in toto.

SO ORDERED.
CASE NO. 8

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 195649 April 16, 2013

CASAN MACODE MAQUILING, Petitioner,

vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G.
BALUA, Respondents.

DECISION

SERENO, CJ.:

THE CASE

This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of the Rules of
Court to review the Resolutions of the Commission on Elections (COMELEC). The
Resolution1 in SPA No. 10-1 09(DC) of the COMELEC First Division dated 5 October 201
0 is being assailed for applying Section 44 of the Local Government Code while the
Resolution2 of the COMELEC En Banc dated 2 February 2011 is being questioned for
finding that respondent Rommel Arnado y Cagoco (respondent Arnado/Arnado) is solely
a Filipino citizen qualified to run for public office despite his continued use of a U.S.
passport.

FACTS

Respondent Arnado is a natural born Filipino citizen.3 However, as a consequence of his

subsequent naturalization as a citizen of the United States of America, he lost his Filipino
citizenship. Arnado applied for repatriation under Republic Act (R.A.) No. 9225 before the
Consulate General of the Philippines in San Franciso, USA and took the Oath of Allegiance
to the Republic of the Philippines on 10 July 2008.4 On the same day an Order of Approval
of his Citizenship Retention and Re-acquisition was issued in his favor.5

The aforementioned Oath of Allegiance states:

I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the Constitution
of the Republic of the Philippines and obey the laws and legal orders promulgated by the
duly constituted authorities of the Philippines and I hereby declare that I recognize and
accept the supreme authority of the Philippines and will maintain true faith and allegiance
thereto; and that I impose this obligation upon myself voluntarily without mental
reservation or purpose of evasion.6

On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed
an Affidavit of Renunciation of his foreign citizenship, which states:

I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce
all allegiance and fidelity to the UNITED STATES OF AMERICA of which I am a citizen,
and I divest myself of full employment of all civil and political rights and privileges of the
United States of America.
I solemnly swear that all the foregoing statement is true and correct to the best of my
knowledge and belief.7

On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of

Kauswagan, Lanao del Norte, which contains, among others, the following statements:

I am a natural born Filipino citizen / naturalized Filipino citizen.

I am not a permanent resident of, or immigrant to, a foreign country.

I am eligible for the office I seek to be elected to.

I will support and defend the Constitution of the Republic of the Philippines and will
maintain true faith and allegiance thereto. I will obey the laws, legal orders and decrees
promulgated by the duly constituted authorities.

I impose this obligation upon myself voluntarily without mental reservation or purpose of
evasion.8

On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed
a petition to disqualify Arnado and/or to cancel his certificate of candidacy for municipal
mayor of Kauswagan, Lanao del Norte in connection with the 10 May 2010 local and
national elections.9

Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte
and that he is a foreigner, attaching thereto a certification issued by the Bureau of
Immigration dated 23 April 2010 indicating the nationality of Arnado as "USA-
American."10To further bolster his claim of Arnado’s US citizenship, Balua presented in
his Memorandum a computer-generated travel record11 dated 03 December 2009 indicating
that Arnado has been using his US Passport No. 057782700 in entering and departing the
Philippines. The said record shows that Arnado left the country on 14 April 2009 and
returned on 25 June 2009, and again departed on 29 July 2009, arriving back in the
Philippines on 24 November 2009.

Balua likewise presented a certification from the Bureau of Immigration dated 23 April
2010, certifying that the name "Arnado, Rommel Cagoco" appears in the available
Computer Database/Passenger manifest/IBM listing on file as of 21 April 2010, with the
following pertinent travel records:

DATE OF Arrival : 01/12/2010

NATIONALITY : USA-AMERICAN

PASSPORT : 057782700

DATE OF Arrival : 03/23/2010

NATIONALITY : USA-AMERICAN

PASSPORT : 05778270012

On 30 April 2010, the COMELEC (First Division) issued an Order13 requiring the
respondent to personally file his answer and memorandum within three (3) days from
receipt thereof.

After Arnado failed to answer the petition, Balua moved to declare him in default and to
present evidence ex-parte.
Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado
garnered the highest number of votes and was subsequently proclaimed as the winning
candidate for Mayor of Kauswagan, Lanao del Norte.

It was only after his proclamation that Arnado filed his verified answer, submitting the
following documents as evidence:14

1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the

Philippines dated 03 April 2009;

2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela,

Leoncio Daligdig, and Jessy Corpin, all neighbors of Arnado, attesting that Arnado
is a long-time resident of Kauswagan and that he has been conspicuously and
continuously residing in his family’s ancestral house in Kauswagan;

3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del

Norte dated 03 June 2010 stating that Arnado is a bona fide resident of his barangay
and that Arnado went to the United States in 1985 to work and returned to the
Philippines in 2009;

4. Certification dated 31 May 2010 from the Municipal Local Government

Operations Office of Kauswagan stating that Dr. Maximo P. Arnado, Sr. served as
Mayor of Kauswagan, from January 1964 to June 1974 and from 15 February 1979
to 15 April 1986; and

5. Voter Certification issued by the Election Officer of Kauswagan certifying that

Arnado has been a registered voter of Kauswagan since 03 April 2009.

THE RULING OF THE COMELEC FIRST DIVISION

Instead of treating the Petition as an action for the cancellation of a certificate of candidacy
based on misrepresentation,15 the COMELEC First Division considered it as one for
disqualification. Balua’s contention that Arnado is a resident of the United States was
dismissed upon the finding that "Balua failed to present any evidence to support his
contention,"16 whereas the First Division still could "not conclude that Arnado failed to
meet the one-year residency requirement under the Local Government Code."17

In the matter of the issue of citizenship, however, the First Division disagreed with
Arnado’s claim that he is a Filipino citizen.18

We find that although Arnado appears to have substantially complied with the requirements
of R.A. No. 9225, Arnado’s act of consistently using his US passport after renouncing his
US citizenship on 03 April 2009 effectively negated his Affidavit of Renunciation.

xxxx

Arnado’s continued use of his US passport is a strong indication that Arnado had no real
intention to renounce his US citizenship and that he only executed an Affidavit of
Renunciation to enable him to run for office. We cannot turn a blind eye to the glaring
inconsistency between Arnado’s unexplained use of a US passport six times and his claim
that he re-acquired his Philippine citizenship and renounced his US citizenship. As noted
by the Supreme Court in the Yu case, "a passport is defined as an official document of
identity and nationality issued to a person intending to travel or sojourn in foreign
countries." Surely, one who truly divested himself of US citizenship would not continue to
avail of privileges reserved solely for US nationals.19

The dispositive portion of the Resolution rendered by the COMELEC

First Division reads:

WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel
the certificate of candidacy of Rommel C. Arnado is hereby GRANTED. Rommel C.
Arnado’s proclamation as the winning candidate for Municipal Mayor of Kauswagan,
Lanao del Nore is hereby ANNULLED. Let the order of succession under Section 44 of
the Local Government Code of 1991 take effect.20

The Motion for Reconsideration and

the Motion for Intervention

Arnado sought reconsideration of the resolution before the COMELEC En Banc on the
ground that "the evidence is insufficient to justify the Resolution and that the said
Resolution is contrary to law."21 He raised the following contentions:22

1. The finding that he is not a Filipino citizen is not supported by the evidence
consisting of his Oath of Allegiance and the Affidavit of Renunciation, which show
that he has substantially complied with the requirements of R.A. No. 9225;

2. The use of his US passport subsequent to his renunciation of his American

citizenship is not tantamount to a repudiation of his Filipino citizenship, as he did
not perform any act to swear allegiance to a country other than the Philippines;

3. He used his US passport only because he was not informed of the issuance of his
Philippine passport, and that he used his Philippine passport after he obtained it;

4. Balua’s petition to cancel the certificate of candidacy of Arnado was filed out of
time, and the First Division’s treatment of the petition as one for disqualification
constitutes grave abuse of discretion amounting to excess of jurisdiction;23

5. He is undoubtedly the people’s choice as indicated by his winning the elections;

6. His proclamation as the winning candidate ousted the COMELEC from

jurisdiction over the case; and

7. The proper remedy to question his citizenship is through a petition for quo
warranto, which should have been filed within ten days from his proclamation.

Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of

Kauswagan, and who garnered the second highest number of votes in the 2010 elections,
intervened in the case and filed before the COMELEC En Banc a Motion for
Reconsideration together with an Opposition to Arnado’s Amended Motion for
Reconsideration. Maquiling argued that while the First Division correctly disqualified
Arnado, the order of succession under Section 44 of the Local Government Code is not
applicable in this case. Consequently, he claimed that the cancellation of Arnado’s
candidacy and the nullification of his proclamation, Maquiling, as the legitimate candidate
who obtained the highest number of lawful votes, should be proclaimed as the winner.

Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his
Motion for Reconsideration. Arnado opposed all motions filed by Maquiling, claiming that
intervention is prohibited after a decision has already been rendered, and that as a second-
placer, Maquiling undoubtedly lost the elections and thus does not stand to be prejudiced
or benefitted by the final adjudication of the case.
RULING OF THE COMELEC EN BANC

In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6
of Republic Act No. 6646, the Commission "shall continue with the trial and hearing of the
action, inquiry or protest even after the proclamation of the candidate whose qualifications
for office is questioned."

As to Maquiling’s intervention, the COMELEC En Banc also cited Section 6 of R.A. No.
6646 which allows intervention in proceedings for disqualification even after elections if
no final judgment has been rendered, but went on further to say that Maquiling, as the
second placer, would not be prejudiced by the outcome of the case as it agrees with the
dispositive portion of the Resolution of the First Division allowing the order of succession
under Section 44 of the Local Government Code to take effect.

The COMELEC En Banc agreed with the treatment by the First Division of the petition as
one for disqualification, and ruled that the petition was filed well within the period
prescribed by law,24 having been filed on 28 April 2010, which is not later than 11 May
2010, the date of proclamation.

However, the COMELEC En Banc reversed and set aside the ruling of the First Division
and granted Arnado’s Motion for Reconsideration, on the following premises:

First:

By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced
his Philippine citizenship as though he never became a citizen of another country. It was at
that time, April 3, 2009, that the respondent became a pure Philippine Citizen again.

xxxx

The use of a US passport … does not operate to revert back his status as a dual citizen prior
to his renunciation as there is no law saying such. More succinctly, the use of a US passport
does not operate to "un-renounce" what he has earlier on renounced. The First Division’s
reliance in the case of In Re: Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago,
et al. is misplaced. The petitioner in the said case is a naturalized citizen who, after taking
his oath as a naturalized Filipino, applied for the renewal of his Portuguese passport. Strict
policy is maintained in the conduct of citizens who are not natural born, who acquire their
citizenship by choice, thus discarding their original citizenship. The Philippine State
expects strict conduct of allegiance to those who choose to be its citizens. In the present
case, respondent is not a naturalized citizen but a natural born citizen who chose greener
pastures by working abroad and then decided to repatriate to supposedly help in the
progress of Kauswagan. He did not apply for a US passport after his renunciation. Thus the
mentioned case is not on all fours with the case at bar.

xxxx

The respondent presented a plausible explanation as to the use of his US passport. Although
he applied for a Philippine passport, the passport was only issued on June 18, 2009.
However, he was not notified of the issuance of his Philippine passport so that he was
actually able to get it about three (3) months later. Yet as soon as he was in possession of
his Philippine passport, the respondent already used the same in his subsequent travels
abroad. This fact is proven by the respondent’s submission of a certified true copy of his
passport showing that he used the same for his travels on the following dates: January 31,
2010, April 16, 2010, May 20, 2010, January 12, 2010, March 31, 2010 and June 4, 2010.
This then shows that the use of the US passport was because to his knowledge, his
Philippine passport was not yet issued to him for his use. As probably pressing needs might
be undertaken, the respondent used whatever is within his control during that time.25
In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the
use of foreign passport is not one of the grounds provided for under Section 1 of
Commonwealth Act No. 63 through which Philippine citizenship may be lost.

"The application of the more assimilative principle of continuity of citizenship is more

appropriate in this case. Under said principle, once a person becomes a citizen, either by
birth or naturalization, it is assumed that he desires to continue to be a citizen, and this
assumption stands until he voluntarily denationalizes or expatriates himself. Thus, in the
instant case respondent after reacquiring his Philippine citizenship should be presumed to
have remained a Filipino despite his use of his American passport in the absence of clear,
unequivocal and competent proof of expatriation. Accordingly, all doubts should be
resolved in favor of retention of citizenship."26

On the other hand, Commissioner Rene V. Sarmiento dissented, thus:

Respondent evidently failed to prove that he truly and wholeheartedly abandoned his
allegiance to the United States. The latter’s continued use of his US passport and enjoyment
of all the privileges of a US citizen despite his previous renunciation of the afore-mentioned
citizenship runs contrary to his declaration that he chose to retain only his Philippine
citizenship. Respondent’s submission with the twin requirements was obviously only for
the purpose of complying with the requirements for running for the mayoralty post in
connection with the May 10, 2010 Automated National and Local Elections.

Qualifications for elective office, such as citizenship, are continuing requirements; once
any of them is lost during his incumbency, title to the office itself is deemed forfeited. If a
candidate is not a citizen at the time he ran for office or if he lost his citizenship after his
election to office, he is disqualified to serve as such. Neither does the fact that respondent
obtained the plurality of votes for the mayoralty post cure the latter’s failure to comply
with the qualification requirements regarding his citizenship.

Since a disqualified candidate is no candidate at all in the eyes of the law, his having
received the highest number of votes does not validate his election. It has been held that
where a petition for disqualification was filed before election against a candidate but was
adversely resolved against him after election, his having obtained the highest number of
votes did not make his election valid. His ouster from office does not violate the principle
of vox populi suprema est lex because the application of the constitutional and statutory
provisions on disqualification is not a matter of popularity. To apply it is to breath[e] life
to the sovereign will of the people who expressed it when they ratified the Constitution and
when they elected their representatives who enacted the law.27

THE PETITION BEFORE THE COURT

Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified
to run for public office despite his continued use of a US passport, and praying that
Maquiling be proclaimed as the winner in the 2010 mayoralty race in Kauswagan, Lanao
del Norte.

Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC
En Banc for ruling that Arnado is a Filipino citizen despite his continued use of a US
passport, Maquiling now seeks to reverse the finding of the COMELEC En Banc that
Arnado is qualified to run for public office.

Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First
Division’s disqualification of Arnado, Maquiling also seeks the review of the applicability
of Section 44 of the Local Government Code, claiming that the COMELEC committed
reversible error in ruling that "the succession of the vice mayor in case the respondent is
disqualified is in order."
There are three questions posed by the parties before this Court which will be addressed
seriatim as the subsequent questions hinge on the result of the first.

The first question is whether or not intervention is allowed in a disqualification case.

The second question is whether or not the use of a foreign passport after renouncing foreign
citizenship amounts to undoing a renunciation earlier made.

A better framing of the question though should be whether or not the use of a foreign
passport after renouncing foreign citizenship affects one’s qualifications to run for public
office.

The third question is whether or not the rule on succession in the Local Government Code
is applicable to this case.

OUR RULING

Intervention of a rival candidate in a

disqualification case is proper when
there has not yet been any
proclamation of the winner.

Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed
a Motion for Reconsideration of the First Division Resolution before the COMELEC En
Banc. As the candidate who garnered the second highest number of votes, Maquiling
contends that he has an interest in the disqualification case filed against Arnado,
considering that in the event the latter is disqualified, the votes cast for him should be
considered stray and the second-placer should be proclaimed as the winner in the elections.

It must be emphasized that while the original petition before the COMELEC is one for
cancellation of the certificate of candidacy and / or disqualification, the COMELEC First
Division and the COMELEC En Banc correctly treated the petition as one for
disqualification.

The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:

Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election
to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong.

Mercado v. Manzano28

clarified the right of intervention in a disqualification case. In that case, the Court said:

That petitioner had a right to intervene at that stage of the proceedings for the
disqualification against private respondent is clear from Section 6 of R.A. No. 6646,
otherwise known as the Electoral Reforms Law of 1987, which provides: Any candidate
who has been declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or
any intervenor, may during the pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of guilt is strong. Under this provision,
intervention may be allowed in proceedings for disqualification even after election if there
has yet been no final judgment rendered.29

Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC
En Banc has already ruled that Maquiling has not shown that the requisites for the
exemption to the second-placer rule set forth in Sinsuat v. COMELEC30 are present and
therefore would not be prejudiced by the outcome of the case, does not deprive Maquiling
of the right to elevate the matter before this Court.

Arnado’s claim that the main case has attained finality as the original petitioner and
respondents therein have not appealed the decision of the COMELEC En Banc, cannot be
sustained. The elevation of the case by the intervenor prevents it from attaining finality. It
is only after this Court has ruled upon the issues raised in this instant petition that the
disqualification case originally filed by Balua against Arnado will attain finality.

The use of foreign passport after renouncing one’s foreign citizenship is a positive and
voluntary act of representation as to one’s nationality and citizenship; it does not divest
Filipino citizenship regained by repatriation but it recants the Oath of Renunciation
required to qualify one to run for an elective position.

Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:

Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil
and political rights and be subject to all attendant liabilities and responsibilities under
existing laws of the Philippines and the following conditions:

xxxx

(2)Those seeking elective public in the Philippines shall meet the qualification for holding
such public office as required by the Constitution and existing laws and, at the time of the
filing of the certificate of candidacy, make a personal and sworn renunciation of any and
all foreign before any public officer authorized to administer an oath.

x x x31

Rommel Arnado took all the necessary steps to qualify to run for a public office. He took
the Oath of Allegiance and renounced his foreign citizenship. There is no question that
after performing these twin requirements required under Section 5(2) of R.A. No. 9225 or
the Citizenship Retention and Re-acquisition Act of 2003, he became eligible to run for
public office.

Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July
2008 when he applied for repatriation before the Consulate General of the Philippines in
San Francisco, USA, and again on 03 April 2009 simultaneous with the execution of his
Affidavit of Renunciation. By taking the Oath of Allegiance to the Republic, Arnado re-
acquired his Philippine citizenship. At the time, however, he likewise possessed American
citizenship. Arnado had therefore become a dual citizen.

After reacquiring his Philippine citizenship, Arnado renounced his American citizenship
by executing an Affidavit of Renunciation, thus completing the requirements for eligibility
to run for public office.

By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen,

regardless of the effect of such renunciation under the laws of the foreign country.32
However, this legal presumption does not operate permanently and is open to attack when,
after renouncing the foreign citizenship, the citizen performs positive acts showing his
continued possession of a foreign citizenship.33

Arnado himself subjected the issue of his citizenship to attack when, after renouncing his
foreign citizenship, he continued to use his US passport to travel in and out of the country
before filing his certificate of candidacy on 30 November 2009. The pivotal question to
determine is whether he was solely and exclusively a Filipino citizen at the time he filed
his certificate of candidacy, thereby rendering him eligible to run for public office.

Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November
2009, the date he filed his COC, he used his US passport four times, actions that run counter
to the affidavit of renunciation he had earlier executed. By using his foreign passport,
Arnado positively and voluntarily represented himself as an American, in effect declaring
before immigration authorities of both countries that he is an American citizen, with all
attendant rights and privileges granted by the United States of America.

The renunciation of foreign citizenship is not a hollow oath that can simply be professed
at any time, only to be violated the next day. It requires an absolute and perpetual
renunciation of the foreign citizenship and a full divestment of all civil and political rights
granted by the foreign country which granted the citizenship.

Mercado v. Manzano34 already hinted at this situation when the Court declared:

His declarations will be taken upon the faith that he will fulfill his undertaking made under
oath. Should he betray that trust, there are enough sanctions for declaring the loss of his
Philippine citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-
Santiago, we sustained the denial of entry into the country of petitioner on the ground that,
after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese
passport and declared in commercial documents executed abroad that he was a Portuguese
national. A similar sanction can be taken against anyone who, in electing Philippine
citizenship, renounces his foreign nationality, but subsequently does some act constituting
renunciation of his Philippine citizenship.

While the act of using a foreign passport is not one of the acts enumerated in
Commonwealth Act No. 63 constituting renunciation and loss of Philippine citizenship,35
it is nevertheless an act which repudiates the very oath of renunciation required for a former
Filipino citizen who is also a citizen of another country to be qualified to run for a local
elective position.

When Arnado used his US passport on 14 April 2009, or just eleven days after he
renounced his American citizenship, he recanted his Oath of Renunciation36 that he
"absolutely and perpetually renounce(s) all allegiance and fidelity to the UNITED
STATES OF AMERICA"37 and that he "divest(s) himself of full employment of all civil
and political rights and privileges of the United States of America."38

We agree with the COMELEC En Banc that such act of using a foreign passport does not
divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by
representing himself as an American citizen, Arnado voluntarily and effectively reverted
to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the
instant Arnado represented himself as an American citizen by using his US passport.

This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to
Arnado’s bid for public office, as it effectively imposed on him a disqualification to run
for an elective local position.
Arnado’s category of dual citizenship is that by which foreign citizenship is acquired
through a positive act of applying for naturalization. This is distinct from those considered
dual citizens by virtue of birth, who are not required by law to take the oath of renunciation
as the mere filing of the certificate of candidacy already carries with it an implied
renunciation of foreign citizenship.39 Dual citizens by naturalization, on the other hand, are
required to take not only the Oath of Allegiance to the Republic of the Philippines but also
to personally renounce foreign citizenship in order to qualify as a candidate for public
office.

By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual
citizen enjoying the rights and privileges of Filipino and American citizenship. He was
qualified to vote, but by the express disqualification under Section 40(d) of the Local
Government Code,40 he was not qualified to run for a local elective position.

In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven
days, or from 3 April 2009 until 14 April 2009, on which date he first used his American
passport after renouncing his American citizenship.

This Court has previously ruled 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 officer's entire
tenure. Once any of the required qualifications is lost, his title may be seasonably
challenged. x x x.41

The citizenship requirement for elective public office is a continuing one. It must be
possessed not just at the time of the renunciation of the foreign citizenship but
continuously. Any act which violates the oath of renunciation opens the citizenship issue
to attack.

We agree with the pronouncement of the COMELEC First Division that "Arnado’s act of
consistently using his US passport effectively negated his "Affidavit of Renunciation."42
This does not mean, that he failed to comply with the twin requirements under R.A. No.
9225, for he in fact did.

It was after complying with the requirements that he performed positive acts which
effectively disqualified him from running for an elective public office pursuant to Section
40(d) of the Local Government Code of 1991.

The purpose of the Local Government Code in disqualifying dual citizens from running for
any elective public office would be thwarted if we were to allow a person who has earlier
renounced his foreign citizenship, but who subsequently represents himself as a foreign
citizen, to hold any public office.

Arnado justifies the continued use of his US passport with the explanation that he was not
notified of the issuance of his Philippine passport on 18 June 2009, as a result of which he
was only able to obtain his Philippine passport three (3) months later.43

The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national
who sought naturalization as a Filipino citizen and later applied for the renewal of his
Portuguese passport. That Arnado did not apply for a US passport after his renunciation
does not make his use of a US passport less of an act that violated the Oath of Renunciation
he took. It was still a positive act of representation as a US citizen before the immigration
officials of this country.

The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in
possession of his Philippine passport, the respondent already used the same in his
subsequent travels abroad."44 We cannot agree with the COMELEC. Three months from
June is September. If indeed, Arnado used his Philippine passport as soon as he was in
possession of it, he would not have used his US passport on 24 November 2009.

Besides, Arnado’s subsequent use of his Philippine passport does not correct the fact that
after he renounced his foreign citizenship and prior to filing his certificate of candidacy, he
used his US passport. In the same way that the use of his foreign passport does not undo
his Oath of Renunciation, his subsequent use of his Philippine passport does not undo his
earlier use of his US passport.

Citizenship is not a matter of convenience. It is a badge of identity that comes with

attendant civil and political rights accorded by the state to its citizens. It likewise demands
the concomitant duty to maintain allegiance to one’s flag and country. While those who
acquire dual citizenship by choice are afforded the right of suffrage, those who seek
election or appointment to public office are required to renounce their foreign citizenship
to be deserving of the public trust. Holding public office demands full and undivided
allegiance to the Republic and to no other.

We therefore hold that Arnado, by using his US passport after renouncing his American
citizenship, has recanted the same Oath of Renunciation he took. Section 40(d) of the Local
Government Code applies to his situation. He is disqualified not only from holding the
public office but even from becoming a candidate in the May 2010 elections.

We now resolve the next issue.

Resolving the third issue necessitates revisiting Topacio v. Paredes45 which is the
jurisprudential spring of the principle that a second-placer cannot be proclaimed as the
winner in an election contest. This doctrine must be re-examined and its soundness once
again put to the test to address the ever-recurring issue that a second-placer who loses to
an ineligible candidate cannot be proclaimed as the winner in the elections.

The Facts of the case are as follows:

On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to
fill the office of municipal president. The petitioner, Felipe Topacio, and the respondent,
Maximo Abad, were opposing candidates for that office. Topacio received 430 votes, and
Abad 281. Abad contested the election upon the sole ground that Topacio was ineligible in
that he was reelected the second time to the office of the municipal president on June 4,
1912, without the four years required by Act No. 2045 having intervened.46

Abad thus questioned the eligibility of To p a c i o on the basis of a statutory prohibition

for seeking a second re-election absent the four year interruption.

The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot be
transferred from an ineligible candidate to any other candidate when the sole question is
the eligibility of the one receiving a plurality of the legally cast ballots."47

This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was
comparing "the effect of a decision that a candidate is not entitled to the office because of
fraud or irregularities in the elections x x x with that produced by declaring a person
ineligible to hold such an office."

The complete sentence where the phrase is found is part of a comparison and contrast
between the two situations, thus:

Again, the effect of a decision that a candidate is not entitled to the office because of fraud
or irregularities in the elections is quite different from that produced by declaring a person
ineligible to hold such an office. In the former case the court, after an examination of the
ballots may find that some other person than the candidate declared to have received a
plurality by the board of canvassers actually received the greater number of votes, in which
case the court issues its mandamus to the board of canvassers to correct the returns
accordingly; or it may find that the manner of holding the election and the returns are so
tainted with fraud or illegality that it cannot be determined who received a plurality of the
legally cast ballots. In the latter case, no question as to the correctness of the returns or the
manner of casting and counting the ballots is before the deciding power, and generally the
only result can be that the election fails entirely. In the former, we have a contest in the
strict sense of the word, because of the opposing parties are striving for supremacy. If it be
found that the successful candidate (according to the board of canvassers) obtained a
plurality in an illegal manner, and that another candidate was the real victor, the former
must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest,
as the wreath of victory cannot be transferred from an ineligible candidate to any other
candidate when the sole question is the eligibility of the one receiving a plurality of the
legally cast ballots. In the one case the question is as to who received a plurality of the
legally cast ballots; in the other, the question is confined to the personal character and
circumstances of a single individual.48 (Emphasis supplied)

Note that the sentence where the phrase is found starts with "In the other case, there is not,
strictly speaking, a contest" in contrast to the earlier statement, "In the former, we have a
contest in the strict sense of the word, because of the opposing parties are striving for
supremacy."

The Court in Topacio v. Paredes cannot be said to have held that "the wreath of victory
cannot be transferred from an ineligible candidate to any other candidate when the sole
question is the eligibility of the one receiving a plurality of the legally cast ballots."

A proper reading of the case reveals that the ruling therein is that since the Court of First
Instance is without jurisdiction to try a disqualification case based on the eligibility of the
person who obtained the highest number of votes in the election, its jurisdiction being
confined "to determine which of the contestants has been duly elected" the judge exceeded
his jurisdiction when he "declared that no one had been legally elected president of the
municipality of Imus at the general election held in that town on 4 June 1912" where "the
only question raised was whether or not Topacio was eligible to be elected and to hold the
office of municipal president."

The Court did not rule that Topacio was disqualified and that Abad as the second placer
cannot be proclaimed in his stead. The Court therein ruled:

For the foregoing reasons, we are of the opinion and so hold that the respondent judge
exceeded his jurisdiction in declaring in those proceedings that no one was elected
municipal president of the municipality of Imus at the last general election; and that said
order and all subsequent proceedings based thereon are null and void and of no effect; and,
although this decision is rendered on respondents' answer to the order to show cause, unless
respondents raised some new and additional issues, let judgment be entered accordingly in
5 days, without costs. So ordered.49

On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal
basis to stand on. It was a mere pronouncement of the Court comparing one process with
another and explaining the effects thereof. As an independent statement, it is even illogical.

Let us examine the statement:

"x x x the wreath of victory cannot be transferred from an ineligible candidate to any other
candidate when the sole question is the eligibility of the one receiving a plurality of the
legally cast ballots."
What prevents the transfer of the wreath of victory from the ineligible candidate to another
candidate?

When the issue being decided upon by the Court is the eligibility of the one receiving a
plurality of the legally cast ballots and ineligibility is thereafter established, what stops the
Court from adjudging another eligible candidate who received the next highest number of
votes as the winner and bestowing upon him that "wreath?"

An ineligible candidate who receives the highest number of votes is a wrongful winner. By
express legal mandate, he could not even have been a candidate in the first place, but by
virtue of the lack of material time or any other intervening circumstances, his ineligibility
might not have been passed upon prior to election date. Consequently, he may have had
the opportunity to hold himself out to the electorate as a legitimate and duly qualified
candidate. However, notwithstanding the outcome of the elections, his ineligibility as a
candidate remains unchanged. Ineligibility does not only pertain to his qualifications as a
candidate but necessarily affects his right to hold public office. The number of ballots cast
in his favor cannot cure the defect of failure to qualify with the substantive legal
requirements of eligibility to run for public office.

The popular vote does not cure the

ineligibility of a candidate.

The ballot cannot override the constitutional and statutory requirements for qualifications
and disqualifications of candidates. When the law requires certain qualifications to be
possessed or that certain disqualifications be not possessed by persons desiring to serve as
elective public officials, those qualifications must be met before one even becomes a
candidate. When a person who is not qualified is voted for and eventually garners the
highest number of votes, even the will of the electorate expressed through the ballot cannot
cure the defect in the qualifications of the candidate. To rule otherwise is to trample upon
and rent asunder the very law that sets forth the qualifications and disqualifications of
candidates. We might as well write off our election laws if the voice of the electorate is the
sole determinant of who should be proclaimed worthy to occupy elective positions in our
republic.

This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC50 when we
pronounced:

x x x. 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 requires strict 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.51
(Emphasis supplied)

This issue has also been jurisprudentially clarified in Velasco v. COMELEC52 where the
Court ruled that the ruling in Quizon and Saya-ang cannot be interpreted without
qualifications lest "Election victory x x x becomes a magic formula to bypass election
eligibility requirements."53

We have ruled in the past that a candidate’s victory in the election may be considered a
sufficient basis to rule in favor of the candidate sought to be disqualified if the main issue
involves defects in the candidate’s certificate of candidacy. We said that while provisions
relating to certificates of candidacy are mandatory in terms, it is an established rule of
interpretation as regards election laws, that mandatory provisions requiring certain steps
before elections will be construed as directory after the elections, to give effect to the will
of the people. We so ruled in Quizon v. COMELEC and Saya-ang v. COMELEC:

The present case perhaps presents the proper time and opportunity to fine-tune our above
ruling. We say this with the realization that a blanket and unqualified reading and
application of this ruling can be fraught with dangerous significance for the rule of law and
the integrity of our elections. For one, such blanket/unqualified reading may provide a way
around the law that effectively negates election requirements aimed at providing the
electorate with the basic information to make an informed choice about a candidate’s
eligibility and fitness for office.

The first requirement that may fall when an unqualified reading is made is Section 39 of
the LGC which specifies the basic qualifications of local government officials. Equally
susceptive of being rendered toothless is Section 74 of the OEC that sets out what should
be stated in a COC. Section 78 may likewise be emasculated as mere delay in the resolution
of the petition to cancel or deny due course to a COC can render a Section 78 petition
useless if a candidate with false COC data wins. To state the obvious, candidates may risk
falsifying their COC qualifications if they know that an election victory will cure any defect
that their COCs may have. Election victory then becomes a magic formula to bypass
election eligibility requirements. (Citations omitted)

What will stop an otherwise disqualified individual from filing a seemingly valid COC,
concealing any disqualification, and employing every strategy to delay any disqualification
case filed against him so he can submit himself to the electorate and win, if winning the
election will guarantee a disregard of constitutional and statutory provisions on
qualifications and disqualifications of candidates?

It is imperative to safeguard the expression of the sovereign voice through the ballot by
ensuring that its exercise respects the rule of law. To allow the sovereign voice spoken
through the ballot to trump constitutional and statutory provisions on qualifications and
disqualifications of candidates is not democracy or republicanism. It is electoral anarchy.
When set rules are disregarded and only the electorate’s voice spoken through the ballot is
made to matter in the end, it precisely serves as an open invitation for electoral anarchy to
set in.1âwphi1

Maquiling is not a second-placer as

he obtained the highest number of
votes from among the qualified
candidates.

With Arnado’s disqualification, Maquiling then becomes the winner in the election as he
obtained the highest number of votes from among the qualified candidates.

We have ruled in the recent cases of Aratea v. COMELEC54 and Jalosjos v. COMELEC55
that a void COC cannot produce any legal effect.

Thus, the votes cast in favor of the ineligible candidate are not considered at all in
determining the winner of an election.

Even when the votes for the ineligible candidate are disregarded, the will of the electorate
is still respected, and even more so. The votes cast in favor of an ineligible candidate do
not constitute the sole and total expression of the sovereign voice. The votes cast in favor
of eligible and legitimate candidates form part of that voice and must also be respected.
As in any contest, elections are governed by rules that determine the qualifications and
disqualifications of those who are allowed to participate as players. When there are
participants who turn out to be ineligible, their victory is voided and the laurel is awarded
to the next in rank who does not possess any of the disqualifications nor lacks any of the
qualifications set in the rules to be eligible as candidates.

There is no need to apply the rule cited in Labo v. COMELEC56 that when the voters are
well aware within the realm of notoriety of a candidate’s disqualification and still cast their
votes in favor said candidate, then the eligible candidate obtaining the next higher number
of votes may be deemed elected. That rule is also a mere obiter that further complicated
the rules affecting qualified candidates who placed second to ineligible ones.

The electorate’s awareness of the candidate’s disqualification is not a prerequisite for the
disqualification to attach to the candidate. The very existence of a disqualifying
circumstance makes the candidate ineligible. Knowledge by the electorate of a candidate’s
disqualification is not necessary before a qualified candidate who placed second to a
disqualified one can be proclaimed as the winner. The second-placer in the vote count is
actually the first-placer among the qualified candidates.

That the disqualified candidate has already been proclaimed and has assumed office is of
no moment. The subsequent disqualification based on a substantive ground that existed
prior to the filing of the certificate of candidacy voids not only the COC but also the
proclamation.

Section 6 of R.A. No. 6646 provides:

Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election
to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong.

There was no chance for Arnado’s proclamation to be suspended under this rule because
Arnado failed to file his answer to the petition seeking his disqualification. Arnado only
filed his Answer on 15 June 2010, long after the elections and after he was already
proclaimed as the winner.

The disqualifying circumstance surrounding Arnado’s candidacy involves his citizenship.

It does not involve the commission of election offenses as provided for in the first sentence
of Section 68 of the Omnibus Election Code, the effect of which is to disqualify the
individual from continuing as a candidate, or if he has already been elected, from holding
the office.

The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed,

Arnado was both a Filipino and an American citizen when he filed his certificate of
candidacy. He was a dual citizen disqualified to run for public office based on Section
40(d) of the Local Government Code.

Section 40 starts with the statement "The following persons are disqualified from running
for any elective local position." The prohibition serves as a bar against the individuals who
fall under any of the enumeration from participating as candidates in the election.

With Arnado being barred from even becoming a candidate, his certificate of candidacy is
thus rendered void from the beginning. It could not have produced any other legal effect
except that Arnado rendered it impossible to effect his disqualification prior to the elections
because he filed his answer to the petition when the elections were conducted already and
he was already proclaimed the winner.

To hold that such proclamation is valid is to negate the prohibitory character of the
disqualification which Arnado possessed even prior to the filing of the certificate of
candidacy. The affirmation of Arnado's disqualification, although made long after the
elections, reaches back to the filing of the certificate of candidacy. Arnado is declared to
be not a candidate at all in the May 201 0 elections.

Arnado being a non-candidate, the votes cast in his favor should not have been counted.
This leaves Maquiling as the qualified candidate who obtained the highest number of votes.
Therefore, the rule on succession under the Local Government Code will not apply.

WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of the

COMELEC En Bane dated 2 February 2011 is hereby ANNULLED and SET ASIDE.
Respondent ROMMEL ARNADO y CAGOCO is disqualified from running for any local
elective position. CASAN MACODE MAQUILING is hereby DECLARED the duly
elected Mayor of Kauswagan, Lanao del Norte in the 10 May 2010 elections.

This Decision is immediately executory.

Let a copy of this Decision be served personally upon the parties and the Commission on
Elections.

No pronouncement as to costs.

SO ORDERED.
CASE NO. 9

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 210164 August 18, 2015

ROMMEL C. ARNADO, Petitioner,

vs.
COMMISSION ON ELECTIONS and FLORANTE CAPITAN, Respondents,

CONCURRING OPINION

SERENO, CJ:

In Moy Ya Lim Yao v. Commissioner of Immigration, 1 we emphasized the variable nature of a

person's citizenship, which cannot be determined with finality or become the basis of rules that
can be applied to any and all proceedings thereafter. We said:

Everytime the citizenship of a person is material or indispensable in a judicial or administrative

case, whatever the corresponding court or administrative authority decides therein as to such
citizenship is generally not considered as res adjudicata, hence it has to be threshed out again
and again as the occasion may demand. 2

In election contests, this pronouncement gains significance, as elective local officials are
constitutionally allowed to run and serve for three consecutive terms. 3 While citizenship is a
continuing requirement that must be possessed not only at the time of election or assumption
of office, but also during the entire tenure of the official,4 it is not a continuing disqualification
to run for and hold public office.5

As such, each case involving the question of an elective official's citizenship must be treated
anew in accordance with the surrounding relevant facts and applicable laws.

In this regard, I agree with some of the statements of J Brion in his Dissenting Opinion. Indeed,
the Court's ruling in Maquiling v. COMELEc6 went only so far as to determine whether Rommel
C. Arnado (Amado) was qualified to run for public office in the 2010 elections. It did not operate
as, nor was it intended to be, a final determination of Amado's citizenship that would forever
derail his career as a public official.

In Maquiling, we reiterated that natural-born citizens of the Philippines who have lost their
citizenship by reason of their naturalization as citizens of a foreign country may qualify to run
for public office upon taking the Oath of Allegiance 7 and making a sworn renunciation of their
foreign citizenship.8 Arnado subjected his citizenship to attack when he continued to use his
United States (US) passport to travel in and out of the country despite previously renouncing
his US citizenship. The Court ruled that his use of his US passport nullified the effect of his
previous renunciation of US citizenship. While he did not lose his Philippine citizenship in the
process, he reverted to his status as a dual citizen and remained as such at the time that he
filed his Certificate of Candidacy for the position of mayor of Kauswagan, Lanao del Norte in
the 2010 elections. Under Section 40(d) of the Local Government Code, those with dual
citizenship are disqualified from running for any elective local position.

Considering that the Court had pinpointed the defect in Amado's oath of renunciation, the
simple act of taking the oath anew would have been enough compliance with the requirement
of the law.

The Decision found that from the time Amado used his US passport to travel in and out of the
country up to the filing of his Certificate of Candidacy for the succeeding elections in 2013,
there had been no change in his circumstances. 9 He still had not made a sworn renunciation
of his US citizenship. Thus, the ruling in Maquiling still applies: that Arnado had dual citizenship
when he filed for his candidacy on 1 October 2012.
It did not matter that Maquiling was promulgated months after Arnado had filed for candidacy.
Since he was not totally unaware that the use of his US passport might have adverse
consequences on his candidacy for the 2013 elections, the Decision concludes that he should
have been prudent enough to remedy whatever defect there might have been in his
citizenship.10

Even J. Brion concedes that Amado could have been more circumspect in order to secure his
qualification to run for public office. 11 However, it is insisted that the members of this Court
should remove the present case from the shadow of Maquiling and arrive at its resolution
based merely on the attendant factual and legal considerations specific to it.12

It cannot be denied that by virtue of its being a decision of the Court that joins the country's
body of laws as jurisprudence, Maquiling serves as a "legal consideration" in the resolution of
the present case. Maquiling' s application cannot be helped, especially since the Decision
therein hinged not only on relevant laws, but largely on the facts then presented before the
Court. Thus, while the legal conclusion in Maquiling was not a final determination of Amado's
citizenship - as it applied only for purposes of the 2010 elections - the facts on which its legal
conclusion was founded cannot be totally ignored.

A person's citizenship may be "threshed out again and again"13 in every proceeding as long as
it becomes relevant and necessary. Except for some clearly unmeritorious cases, it is always
a good idea to decide on the merits, especially in election controversies in which the law is
sometimes placed at odds with the will of the people. At the same time, the Court puts a
premium on economy, and where previous declarations of one's citizenship become pertinent,
those cases may be used as a take-off point if only to emphasize the differences and
similarities, as well as the measures that were taken in the interim.

One point of contention between the Decision and the Dissenting Opinion is the finding that
Arnado used his US passport for his travels in and out of the country on 12 January 2010 and
23 March 2010.

One point of contention between the Decision and the Dissenting Opinion is the finding that
Arnado used his US passport for his travels in and out of the country on 12 January 2010 and
23 March 2010.

Maquiling indeed made a finding that Arnado used his US passport for travel on those dates.
In the Court Resolution dated 2 July 2013, we said:

Well-settled is the rule that findings of fact of administrative bodies will not be interfered with
by the courts in the absence of grave abuse of discretion on the part of said agencies, or unless
the aforementioned findings are not supported by substantial evidence. They are accorded
1âw phi 1

not only great respect but even finality, and are binding upon this Court, unless it is shown that
the administrative body had arbitrarily disregarded or misapprehended evidence before it to
such an extent as to compel a contrary conclusion had such evidence been properly
appreciated.

Nevertheless, it must be emphasized that COMELEC First

Division found that Arnado used his U.S. Passport at least six times after he renounced his
American citizenship. This was debunked by the COMELEC En Banc, which found that Arnado
only used his U.S. passport four times, and which agreed with Amado's claim that he only used
his U.S. passport on those occasions because his Philippine passport was not yet issued. The
COMELEC En Banc argued that Amado was able to prove that he used his Philippine passport
for his travels on the following dates: 12 January 2010, 31 January 2010, 31 March 2010, 16
April 2010, 20 May 2010, and 4 June 2010.

None of these dates coincide with the two other dates indicated in the certification issued by
the Bureau of Immigration showing that on 21 January 2010 and on 23 March 2010, Arnado
arrived in the Philippines using his U.S. Passport No. 057782700 which also indicated therein
that his nationality is USA-American. Adding these two travel dates to the travel record
provided by the Bureau of Immigration showing that Arnado also presented his U.S. passport
four times (upon departure on 14 April 2009, upon arrival on 25 June 2009, upon departure on
29 July 2009 and upon arrival on 24 November 2009), these incidents sum up to six.
The COMELEC En Banc concluded that "the use of the US passport was because to his
knowledge, his Philippine passport was not yet issued to him for his use." This conclusion,
however, is not supported by the facts. Arnado claims that his Philippine passport was issued
on 18 June 2009. The records show that he continued to use his U.S. passport even after he
already received his Philippine passport. Arnado's travel records show that he presented his
U.S. passport on 24 November 2009, on 21 January 2010, and on 23 March 2010. These facts
were never refuted by Arnado.

Thus, the ruling of the COMELEC En Banc is based on a misapprehension of the facts that
the use of the U.S. passport was discontinued when Amado obtained his Philippine passport.14
(Emphases supplied)

It is important to clarify that the certification from the Bureau of Immigration indicated that
Amado arrived in the country using his US passport on 12 January 2010 and 23 March 2010.15
The Court gave full credence to the certification, not only because it carried with it the
presumption of regularity, but more important, Arnado never bothered to refute the contents
thereof.

On the basis of this finding, the Court rejected the claim that Amado's use of his US passport
several times were mere isolated acts that were done only because he was not yet issued his
Philippine passport.16

To my mind, this is the turning point of Maquiling that regrettably still applies in this case: that
whatever professions of faith and allegiance to the Republic that Amado claims when his
citizenship is in question, the fact remains that during the instances that he used his US
passport despite having a Philippine passport in his possession, those same professions
became hollow. And, that up to the filing of Amado's Certificate of Candidacy for the 2013
elections, he failed to remedy the fatal blow that such repeated use of his US passport dealt
on his electoral qualifications.

I therefore concur with the DISMISSAL of the PETITION.

DISSENTING OPINION

BRION, J.:

The present certiorari petition, filed under Rule 64 in relation with Rule 65 of the Rules of
1

Court, involves the disqualification of the present petitioner, Rommel C. Amado (Arnado),
in the May 13, 2013 National and Local Elections (May 2013 Elections).

This case traces its roots to the earlier disqualification case [docketed as SPA No . .J0-109
(DC)] filed against Amado in relation with the May 10, 2010 Elections, that led to the
Court's decision in Maquiling v. Comelec disqualifying Arnado. To some extent, the
2

present case is factually linked to the earlier disqualification case.

As in Maquiling, Amado and his qualification to run for public office are at the center of
the present petition. Private re8pondent Florante Capitan seeks to strengthen the linkage
with the earlier Maquiling case by adopting the Maquiling positions and considering the
present case as a seamless continuation of Maquiling.

Despite some commonalities, the present disqualification case, however, is separate and
substantively distinct from the Maquiling disqualification case. The present case involves
an election period (2013) separate and distinct from the election period covered by the
Maquiling ruling (2010). The factual circumstances and consequent legal considerations
also vary, as will be explained below, so that the present case need not necessarily follow
the governing ruling in Maquiling.

Thus, at the outset, I invite the Court: to keep an open mind and remove any initial
impression that the present case is a re-run of Maquiling; to recognize that at some point,
the present case diverges from and must be viewed independently of Maquiling; and to
resolve it from the perspective solely of the attendant factual and legal considerations
specific to it.

The Court must not also forget that this is an election case where the electorate has its own
separate interest to protect. This is an interest that the Court must not ignore when the issues
posed carry the potential of setting aside the electorate's expressed choice.

Notably, the present controversy involves .a candidate whose disqualification (to run for
elective office) has twice been sought based on the same cited facts and grounds, but who
nevertheless has twice been elected by a clear and overwhelming majority of the voters -
in the May 2010 and May 2013 Elections. In 2013, he garnered 84% of the votes of the
people of Kauswagan.

This clear and undeniably overwhelming voice of the electorate, to my mind, renders it
necessary for the Court to consider and apply deeper democratic principles. The 3

circumstances of the present controversy call for this kind of consideration, particularly
when the electorate's already limited democratic decision making process runs the risk of
being negated for no clear and conclusive reason, as discussed below.

To disregard the electorate's voice once can perhaps be excused by invoking the rule of
law; to ignore the people's voice a second time can only be justified by clear reasons from
this Court that the people can readily understand.

I submit this Dissenting Opinion to object to the ponencia's conclusion that Arnado
is disqualified from running in the May 2013 Elections and that his proclamation as
elected Mayor of Kauswagan, Lanao del Norte, should now be set aside.

I specifically find the ponencia 's conclusions grossly erroneous and tainted with grave
abuse of discretion based on the following considerations:
(1) Amado became a "pure" Philippine citizen on April 3, 2009, after he took his
oath of allegiance and executed his affidavit of renunciation. That he was
subsequently deemed to have recanted his renunciation is unfortunate, but even the
Maquiling ruling recognizes that for some eleven (11) days (i.e., from April 3 to
14, 2009), he was qualified to run for public office because he was a "pure" Filipino.

Arnado more than reconfirmed and regained this status and was qualified to run for
public office in the May 2013 Elections based on his persistent assertions of sole
allegiance to the Republic and his repeated renunciation of his US citizenship.

a. Separately from the April 3, 2009 Affidavit of Renunciation that

Maquiling said Amado recanted, Arnado executed on May 9, 2013, another
Affidavit of Renunciation affirming the terms of his April 3, 2009 Affidavit
and thus cured any defect in his qualification to run in the May 2013
Elections.

(2) The legal consequences of the Maquiling ruling is limited to Arado's

qualification for public office in the May 2010 elections.

a. The intervening 2010 Maquiling disqualification ruling did not and could
not have invalidated Arnado's status as a "pure" Philippine citizen who was
qualified to run for public office after having complied with the RA No.
9225 requirements in the May 2013 Elections.

(3) The Comelec gravely abused its discretion in ruling that the May 9, 2013
Confirmation of the Oath of Affirmation was filed out of time.

a. The Comelec grossly failed to consider (i) the circumstances of the filing
of the October 1, 2012 Certificate of Candidacy (CoC), and (ii) the
circumstances and the dynamics between the 2010 Maquiling case and
ruling, and the present 2013 disqualification case, in terms of the retroactive
application of the Maquiling ruling.

b. When Amado filed his CoC on October 1, 2012 (for the 2013 Elections),
the prevailing Comelec en bane ruling [in its February 2, 2011 resolution in
SPA No. 10-109 (DC)] was that he was not disqualified to run for elective
public office; hence, Amado did not need to execute another affidavit of
renunciation.

c. Based solely on the Maquiling Decision (that pertained to Arnado's

disqualification for the 2010 elections), the Comelec disqualified Arnado
for the May 2013 elections because his October 1, 2012 CoC was not
supported by any Affidavit of Renunciation (since Maquiling considered
his April 3, 2009 Affidavit of Renunciation for the 2010 elections
effectively recanted). This Comelec ruling disregards the unusual
consequences of the April 3, 2009 Affidavit and the unique circumstances
under which the October 1, 2012 CoC was filed.

d. Since the Comelec did not accept the Affidavit of Renunciation that
Arnado filed on May 9, 2013 (for the 2013 Elections) in the light of the
2010 Maquiling ruling, he was placed in an impossible situation of being
disqualified in 2013 for a ruling applicable to the 2010 elections, without
being given the opportunity to submit his compliance for the May 2013
elections.

e. Notably, his May 9, 2013 Affidavit of Renunciation, submitted to comply

with his May 2013 candidacy, was rejected because it should have been
 filed on October 1, 2012 (i.e., when he filed his CoC for the May 2013
elections). If the Maquiling ruling, made on April 16, 2013, was made to
retroactively apply to October 1, 2012, so should the opportunity to comply
be similarly made retroactive. To the extent he was denied this opportunity
is grave abuse of discretion.

(4) Af any rate, all doubts should be resolved in favour of Arnado's qualification:

a. Arnado' s unequivocal acts and show of allegiance to the Republic and

renunciation of other citizenships, taken together, should have resolved all
doubts in favor of his qualification;

b. the mandate of the people of Kauswagan that twice elected Amado as

their Mayor should be respected and upheld.

I. Roots of the Present Petition

A. Factual Background

For a· fuller understanding of the present disqualification case, I reiterate below the
important antecedent facts.

Arnado is a natural-born Filipino citizen who lost his Filipino citizenship after becoming a
naturalized citizen of the United States of America (US.) in 1985.

In 2003, Congress enacted Republic Act (RA) No. 9225 (Citizenship Retention and Re-
Acquisition Act of 2003). 4

Arnado opted to re-acquire his Philippine citizenship pursuant to RA No. 9225 and soon
filed the required application before the Philippine Consul General in San Francisco,
U.S.A. On July 10, 2008, Arnado took his Oath of Allegiance to the Republic of the
Philippines; the Approval of his Citizenship retention and re-acquisition was issued on the
same date.

On April 3, 2009, Arnado executed an Affidavit of Renunciation of his foreign citizenship

(interchangeably referred to, from here on, as April 3, 2009 Affidavit of Renunciation or
2009 express renunciation).

On April 14, 2009, Arnado left the country for the US using his US passport - US passport
(No. 057782700) - which identified his nationality as "USA-American." He returned to the
country on June 25, 2009, using the same US passport. He again left for the US on July 29,
2009, and returned to the country on November 24, 2009, still using his US passport.

Unknown to Amado, however, the Philippine Consulate General in San Francisco, USA,
had approved and issued in his favor a Philippine Passport (No. XX 3979162) on June 18,
2009. He only received this Philippine passport three months later.
5 6

From then on, he used his Philippine passport in his travels on the following dates:
December 11, 2009 (departure); January 12, 2010 (arrival); January 31, 2010 (departure);
March 31, 2010 (arrival); April 11, 2010 (departure); April 16, 2010 (arrival); May 20,
2010 (departure); and June 4, 2010 (arrival). 7

B. The Maquiling Case and its Incidents

On November 30, 2009, Amado filed his CoC for the mayoralty post of Kauswagan, Lanao
del Norte, for the May 2010 Elections. On the same day, he executed another Affidavit of
Renunciation with Oath of Allegiance. 8
Notably, this Affidavit of Renunciation came after his travel using an American passport.

Linog C. Balua, another mayoralty candidate, filed with the Comelec a petition to
disqualify Amado and/or to cancel his CoC (2010 Disqualification case) on the ground that
Arnado remained a US citizen: he continued to use his US passport for entry to and exit
from the Philippines after executing the April 3, 2009 Affidavit of Renunciation. Balua's
petition was docketed as SPA No. 10-109 (DC).

Arnado was proclaimed the winning candidate in the May 2010 Elections.

In a resolution dated February 2, 2011, the Comelec En Banc ruled [in SPA No. 10-109
(DC)) that Arnado's use of his US passport, subsequent to his 2009 Affidavit of
Renunciation, did not have the effect of reverting him to his status as a dual citizen. The
Comelec En Banc found believable and plausible Arnado's explanation that he continued
to use his US passport because he only knew of and received his Philippine passport three
months after it was issued on June 18, 2009. As soon as he received his Philippine passport,
he used it in his subsequent travels abroad.

The 2010 disqualification case eventually reached this Court via the petition for certiorari
filed by Maquiling; the case was. docketed as GR No. 195649 entitled Maquiling v.
Comelec.

a. The Court's Maquiling Decision.

In its April 16, 2013 Decision, the Court annulled and set aside the Comelec En Banc 's
February 2, 2011 Resolution; disqualified Amado from running for the position of Mayor;
and declared Maquiling the duly elected mayor of Kauswagan, Lanao del Norte, in the May
2010 Elections. The Court ruled that by his subsequent use of his US passport, Arnado
effectively disavowed or recanted his April 3, 2009 Affidavit of Renunciation.

In ruling on the case, the Court significantly acknowledged that:

i. The "act of using a foreign passport does not divest Arnado of his Filipino
citizenship, which he re-acquired by repatriation. By representing himself as an
American citizen, however, Amado voluntarily and effectively reverted to his
earlier status as a dual citizen. Such reversion was not retroactive; it took place the
instant Arnado represented himself as an American citizen by using his US
passport. "

ii. "In effect, Arnado was solely and exclusively a Filipino citizen only for a period
of eleven days, or from April 3, 2009, until 14 April 2009, on which date he first
used his American passport after renouncing his American citizenship." 10

C. The Present Disqualification Case

On October l, 2012, and while the Maquiling case was still pending before this Court (so
that the existing standing rule was the Comelec ruling that he was qualified to be a
candidate), Arnado filed his CoC for the same mayoralty post for the May 2013 Elections.
11

Thus, Arnado saw no need to undertake another Renunciation.

Respondent Florante Capitan also filed his CoC for the same position.
12

On April 16, 2013, the Court issued its Decision in Maquiling v. Comelec, disqualifying
Arnado for the May 2010 Elections.

Apparently in response to the Maquiling ruling, Arnado executed on May 9, 2013, an Oath
of Allegiance and Oath of Renunciation affirming the terms of his April 3, 2009 Affidavit
of Renunciation(herein referred to as 2013 Affidavit). Arnado undertook the required acts
13

as soon as he was aware that they had to be done to perfect his May 2013 candidacy.

On May 10, 2013, Capitan filed a petition to disqualify Arnado from running for the
14

Kauswagan mayoralty post and/or to cancel his CoC (2013 Disqualification case) based on
the Court's Maquiling ruling. The case was docketed as SPA No. 13-309 (DC) and was
raffled to the Comelec

Second Division (Second Division). 15

On May 14, 2013, during the pendency of the 2013 Disqualification case before. the
Second Division, Arnado was proclaimed the duly elected Mayor of Lanao del Norte in the
May 2013 Elections. 16

Capitan responded to the proclamation by filing a petition to nullify Arnado's proclamation,

arguing that pursuant to the Maquiling ruling (which declared Amado disqualified from
running for any local elective office), Arnado's proclamation was void and carried no legal
effect.

In a resolution dated July 2, 2013, the Court denied Arnado's motion for reconsideration of
the April 16, 2013 Maquiling Decision.

II. The Proceedings before the Comelec

A. Comelec Second Division Ruling

In its resolution dated September 6, 2013, in SP A No. 13-309(DC), the Comelec Second
Division disqualified Amado from running in the May 2013 Elections.

The Second Division declared that at the time he filed his CoC on October 1, 2012, Arnado
still failed to comply with RA No. 9225's requirement of making a personal and sworn
renunciation of any and all foreign citizenship, as his April 3, 2009 Affidavit of
Renunciation had been deemed withdrawn or recalled pursuant to Maquiling. His 2013
Affidavit did not rectify this failure as this subsequent affidavit should have been executed
on or before the filing of his CoC on October 1, 2012

B. The Comelec En Banc Ruling

In its December 9, 2013 resolution, the Comelec En Banc fully affirmed the Second
Division's ruling; annulled Arnado's proclamation; and declared Capitan the duly elected
mayor of Kauswagan..

III. The Issues

The issues raised for the Court's consideration are:

A. Whether the Comelec En Banc and the Second Division violated procedural due
process and committed grave abuse of discretion in failing to dismiss the petitions
filed by Capitan for forum shopping and/or late filing;

B. Whether the Comelec En Banc violated due process and committed grave abuse
of discretion by allowing . Commissioner Elias Yusoph to review the decision he
wrote for the Second Division;

C. Whether the Comelec committed grave abuse of discretion in disenfranchising

84o/o of the voters ofKauswagan in the May 2013 elections; and
 D. Whether the Comelec committed grave abuse of discretion in disqualifying
Arnado who had fully complied with the requirements of RA No. 9225 before the
filing of his CoC on October 1, 2012.

IV. Refutation of the Ponencia

A. Re-acquisition of Philippine citizenship

under RA No. 9225; purposes and legal
effect of the oath of allegiance and oath
of renunciation

RA No. 9225 was enacted to allow natural-born Filipino citizens who lost their Philippine
citizenship through naturalization in a foreign country, to expeditiously re-acquire
Philippine citizenship. It is a unique mode of re-acquiring Philippine citizenship and is a
17

far departure from the citizenship re-acquisition procedure under Commonwealth Act (CA)
No. 63, the law in place before RA No. 9225 was enacted.
18

Under CA No. 63, Philippine citizenship may be re-acquired by: (1) naturalization; (2)
repatriation of deserters of the Army, Navy, or Air Corps, or of a woman who has lost her
citizenship by reason of marriage to an alien after the termination of her marital status; and
(3) direct act of the National Assembly. 19

Notably, re-acquisition of Philippine Citizenship under the first mode (i.e., by

naturalization) involves the more stringent procedure laid down in CA No. 473. The 20

reacquisition of Philippine citizenship under the second mode (i.e., by repatriation), on the
other hand, provides for an easier procedure as it requires only the taking of the oath of
allegiance to the Republic of the Philippines and registration in the proper civil registry; it
applies, however, only to the specific group of persons enumerated therein.

Under the procedure currently in place under RA No. 9225, the re-acquisition of Philippine
citizenship requires only the taking of an oath of allegiance to the Republic of the
Philippines in a manner similar to the second mode under CA No. 63. But, RA No. 9225
provides for a deeper effect by declaring it a State policy that under its terms "all Philippine
citizens of another country shall be deemed not to have lost their Philippine citizenship" 21

under the conditions provided therein.

The full implication of the effects of RA No. 9225 can fully be appreciated by considering
Section 3 of the law, which reads:

Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary

notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a
foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking
the following oath of allegiance to the Republic:

"'I , solemnly swear (or affirm) that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal orders promulgated by the duly
constituted authorities of the Philippines; and I hereby declare that I recognize and accept
the supreme authority of the Philippines and will maintain true faith and allegiance thereto;
and that I imposed this obligation upon myself voluntarily without mental reservation or
purpose of evasion." [emphases supplied]

By its express terms, this oath is one of allegiance that recognizes the "supreme authority"
of the Philippines and the obligation to "maintain true faith and allegiance thereto."

These terms, while seemingly allowing dual citizenship for natural-born Filipino citizens
who have lost their Philippine citizenship by reason of their naturalization as citizens in a
foreign country, carry the implicit effect of renouncing their foreign citizenship and
22
allegiance because of the renewed allegiance that is accorded to the supreme authority of
the Republic. 23

In effect, the problem of dual allegiance created by dual citizenship is transferred from the
Philippines to the foreign country. Since the latest oath that the person takes is one of
allegiance to the Republic, whatever treatment the foreign country may have on his or her
status is a matter outside the concern and competence of the Philippine government!. 24

The congressional exchanges on dual citizenship and the potential problem of dual
allegiance (which under the Constitution is inimical to public interest), attest to this
interpretation as these exchanges reconciled the possession of dual citizenship and the dual
allegiance that the Constitution states to "be inimical to public interest."

Pursuing his point, Rep. Dilangalen noted that under the measure, two situations exist - the
retention of foreign citizenship, and the reacquisition of Philippine citizenship. In this case,
he observed that there are two citizenships and therefore, two allegiances. He pointed out
that under the Constitution, dual allegiance is inimical to public interest. He thereafter
asked whether with the creation of dual allegiance by reason of retention of foreign
citizenship and the reacquisition of Philippine citizenship, there will now be a violation of
the Constitution ....

Rep. Locsin underscored that the measure does not seek to address the constitutional
injunction on dual allegiance as inimical to public interest. He said that the proposed law
aims to facilitate the reacquisition of Philippine citizenship by speedy means. However, he
said that in one sense, it addresses the problem of dual citizenship by requiring the taking
of an oath. He explained that the problem of dual citizenship is transferred from the
Philippines to the foreign country because the latest oath that will be taken by the former
Filipino is one of allegiance to the Philippines and not to the United States, as the case may
be. He added that this is a matter which the Philippine government will have no concern
and competence over.

Rep. Dilangalen asked why this will no longer be the country's concern, when dual
allegiance is involved.

Rep. Locsin clarified that this was precisely his objection to the original version of the bill,
which did not require an oath of allegiance. Since the measure now requires this oath, the
problem of dual allegiance is transferred from the Philippines to the foreign country
concerned, he explained.

Rep. Dilangalen asked whether in the particular case, the person did not denounce his
foreign citizenship and therefore still owes allegiance to the foreign government, and at the
same time, owes his allegiance to the Philippine government, such that there is now a case
of dual citizenship and dual allegiance.

Rep. Locsin clarified that by swearing to the supreme authority of the Republic, the person
implicitly renounces his foreign citizenship. However, he said that this is not a matter that
he wishes to address in Congress because he is not a member of a foreign parliament but a
Member of the House.

Rep. Locsin replied that it is imperative that those who have dual allegiance contrary to
national interest should be dealt with by law. However, he said that the dual allegiance
problem is not addressed in the bill. He then cited the Declaration of Policy in the bill which
states that "It is hereby declared the policy of the State that all citizens who become citizens
of another country shall be deemed not to have lost their Philippine citizenship under the
conditions of this Act." He stressed that what the bill does is recognize Philippine
citizenship but says nothing about the other citizenship.
Rep. Locsin further pointed out that the problem of dual allegiance is created wherein a
natural-born citizen of the Philippines takes an oath of allegiance to another country and in
that oath says that he abjures and absolutely renounces all allegiance to his country of origin
and swears allegiance to that foreign country. The original Bill had left it at this stage, he
explained. In the present measure, he clarified, a person is required to take an oath and the
last he utters is one of allegiance to the country. He then said that the problem of dual
allegiance is no longer the problem of the Philippines but of the other foreign country.
[emphases supplied]

Jurisprudence confirms this interpretation of RA No. 9225 in AASJS v. Hon. Datumanong 25

when the Court pointedly declared:

By swearing to the supreme authority of the Republic, the person implicitly renounces his
foreign citizenship. Plainly, from Section 3, Rep. Act No. 9225 stayed clear out of the
problem of dual allegiance and shifted the burden of confronting the issue of whether OF
not there is dual allegiance to the concerned foreign country. What happens to the other
citizenship was not made a concern of Rep. Act No. 9225. [emphasis supplied]
26

The oath of allegiance taken under RA No. 9225 entitles a person to enjoy full civil and
political rights that include the right to participate, directly or indirectly, in the
establishment or administration of the government. He or she may now vote.
27

To be voted upon to an elective office, however, a natural-born Filipino citizen who has
implicitly renounced foreign allegiance when he or she swears allegiance to the Republic
under RA No. 9225 must still make his or her previous implicit renunciation "express." In
the words of the law, he must "make a personal and sworn renunciation of any and all
foreign citizenship." [Section 5(2) of RA No. 9225]

Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be subject
to all attendant liabilities and responsibilities under existing laws of the Philippines and the
following conditions:

(2) Those seeking elective public in the Philippines shall meet the qualification for holding
such public office as required by the Constitution and existing laws, and at the time of the
filing of the certificate of candidacy, make a personal and sworn renunciation of any and
all foreign citizenship before any public officer authorized to administer an oath; ....
[emphases and underscoring supplied]

The requirement of an express renunciation, however, does not negate the effect of, or
make any less real, the prior implicit renunciation of citizenship and allegiance made upon
taking the oath of allegiance. Thus, persons availing of RA No. 9225 do not renounce their
foreign citizenship for the first time by executing the Affidavit of renunciation that Section
5(2) of the law requires; they have implicitly made this renunciation when they swore
allegiance to the supreme authority of the Republic.

What the oath of renunciation simply does is to make express what natural-born. Filipino
citizens have already implicitly renounced. The requirement of express renunciation
highlights the implication that it is not the exclusive means by which natural-born Filipino
citizens may renounce their foreign citizenship. In reality, the oath of renunciation is a
requirement simply for the purpose of running for elective public office, apparently to
ensure that foreign citizenship and mixed loyalties are kept out of the elective public
service.

To paraphrase Japzon v. Comelec, the oath of renunciation makes these natural-born

28

potential candidates for public office "pure" Philippine citizens from the perspective of
29

the election laws.

In sum, the oath of allegiance not only allows these natural-born Filipinos to re-acquire
Philippine citizenship; thereby, they also implicitly renounce their citizenship and
allegiance to any and all foreign country as they assert allegiance to the "supreme authority
of the Philippines and xx x maintain true faith and allegiance thereto". The oath of
renunciation, on the other hand, complements their oath of allegiance through the express
manifestation, for purpose of running for public office, that the candidate is a "pure"
Filipino.

B. Arnado's attainment, loss of "pure"

Filipino citizen status, and subsequent
Developments

Based on the above discussions, I find - as the ponencia and the majority in Maquiling did
- that Arnado became a "pure" Philippine citizen when he took his oath of allegiance to the
Philippines on July 10, 2008, and his oath of renunciation on April 3, 2009. With his oath
30

of renunciation, he became solely a Filipino citizen with total allegiance to the Republic of
the Philippines.

He could have, at that point, validly run for public office, except that subsequent to his
renunciation, he travelled using his U.S. passport - a development that the Maquiling ruling
unfortunately characterized as a recantation of his previous renunciation of American
citizenship.

Had the developments that transpired in Amado's political life simply stopped with his
candidacy in the May 2010 Elections, then the present case and its complications would
have been avoided. But as subsequent developments showed, a confluence of complicating
factors arose.

First, Arnado ran again for the same office in the May 2013 Elections, and events
overlapped. His disqualification case was not resolved with dispatch so that the period for
the filing of the CoC for the May 2013 Elections (in October 2012) was set while the
present case was still pending with this Court.

Second, at that time, the standing ruling was the Comelec en bane decision that Arnado
was not disqualified and had perfected the required submissions for his candidacy. No
restraining order or any other ruling from this Court intervened to prevent this Comelec
ruling from being the governing rule in the interim.

As a result, Amado saw no need to undertake remedial measures addressing the matters
complained about in the 2010 Maquiling disqualification case. But at that point, he had
already filed two oaths of renunciation - on April 3, 2009 and on November 30, 2009 -
when he filed his CoC for the May 2010 Elections.

Third, he did not submit any oath of renunciation together with his October 1, 2012 CoC
since, to his knowledge, he had complied with the requirements of RA No. 9225 and the
Local Government Code, and had attained "pure" Filipino citizen status. (That he did attain
this status based on the 2008 oath of allegiance and his 2009 affidavit of renunciation is in
fact confirmed by Maquiling, although his subsequent recantation intervened.)

Arnado's political world was overturned when the Court resolved the May 2010
disqualification case on April 16, 2013, or a few days before the May 2013 elections. But
Arnado did not fully dwell on the past. While filing a motion for reconsideration of the
Maquiling ruling, he also acted on his October 1, 2012 CoC by executing and submitting,
on May 9, 2013, an Oath of Allegiance and Oath of Renunciation affirming his April 3,
2009 Affidavit of Renunciation.
Thus, from the perspective of the laws governing natural-born Filipinos who have re-
acquired Philippine citizenship and who wish to run for public office, Amado did not only
comply with the twin requirements of RA No. 9225 as of April 3, 2009; he even exceeded
the requirements of the law by asserting his oath of allegiance to the Republic four times,
while also impliedly renouncing any and all foreign citizenships for the same number of
"times, and twice expressly renouncing any and all other citizenships (with one express
renunciation declared recanted by Maquiling).

All these are material considerations that should be taken into account in resolving the
present case and are more fully discussed under separate headings below.

C. The Comelec gravely abused its

discretion in ruling that the May 9,
2013 Confirmation of Oath of
Affirmation was out of time.

After the promulgation of the Maquiling Decision disqualifying Amado for the May 2010
elections and relying solely on its terms, the Comelec disqualified Amado for the May
2013 elections because his October 1, 2012 CoC was not supported by any Affidavit of
Renunciation (since Maquiling considered his April 3, 2009 Affidavit of Renunciation for
the May 2010 elections effectively recanted).

The Comelec ruling and its underlying reasons are, on their face, patently unreasonable
since they did not consider at all the surrounding circumstances of the filing of the October
1, 2012 CoC and the circumstances that led to the absence of any oath of renunciation after
the Maquiling ruling. The Comelec approach is in fact simplistic to the point of grave abuse
of discretion. Apparently, it considered that with the oath of renunciation·recanted and with
no oath filed with the October 1, 2012 CoC, then the CoC should be considered fatally
deficient. The ponencia 's reasoning also runs this way.

Subject to fuller discussions below, I submit that the Comelec missed out on at least three
(3) basic considerations.

First, at the time the October 1, 2012 CoC was filed, the prevailing ruling, although then
contested before the Court, was the Comelec en bane ruling that did not consider Arnado
disqualified. To reiterate, no intervening restraining order was issued by this Court
addressing this Comelec ruling. Hence, there was no immediate need, at the time of the
CoC's filing, for a replacement supporting oath of renunciation.

Second, since the Comelec did not accept Amado's May 9, 2013 Affidavit of Renunciation
(for the May 2013 Elections) in the light of the Maquiling 11Jling (affecting the May 2010
elections), he was placed in an impossible situation of being disqualified in the May 2013
Elections for a ruling applicable only to the May 2010 Elections, without being given the
opportunity to submit his compliance for the May 2013 Elections.

Third, along the same line of thought, Arnado's May 9, 2013 Affidavit of Renunciation,
submitted to comply with his May 2013 candidacy, was rejected because it should have
been filed on October 1, 2012 (i.e., when he filed his CoC for the May 2013 elections).

If the Maquiling ruling of April 16, 2013, which addressed the separate 2010
disqualification case, was made to retroactively apply to October 1, 2012, in the separate
2013 disqualification case, then a retroactive opportunity should also be given in the 2013
disqualification case to comply with what retroactively applied in Maquiling.

To the extent that Arnado was denied the chance to submit a replacement ·oath of
renunciation in 2013, there was an unfair and abusive denial of opportunity equivalent to
grave abuse of discretion.
D. The Maquiling ruling is limited to
Arnado 's qualification to run for public
office and only for the purpose of the
May 2010 elections

I submit that the ponencia 's ruling, insofar as it adopts the Maquiling ruling, is an overreach
that runs counter to the policy behind RA No. 9225.

I submit that the extent of the legal consequences of the Maquiling ruling affect solely
Arnado 's qualification to run for public office and only for the purpose of the May 2010
elections. These consequences should not be extended to situations outside of and not
contemplated by Maquiling.

The following reasons support my view:

First, the Maquiling ruling only considered the material facts surrounding the May 2010
Elections. The critical facts on which the Maquiling case turned dwelt with the travels of
Amado using his U.S. passport. These facts are not contested in the present case. Nor am I
contesting that for eleven days in April 2009, Amado was a "pure" Filipino, until a
recantation of his renunciation oath took place. These are settled and accepted facts.

The Maquiling ruling left out, because these are facts that it did not consider material for
its resolution (such as the overlaps in the filing of the October 1, 2012 CoC and the
resolution of Maquiling; the effect of Maquiling on the 2013 disqualification case; the oath
of allegiance and renunciation that accompanied the November 30, 2009 CoC for the May
2010 elections) or because they were outside the scope of the relevant facts of Maquiling
(such as the prevailing Comelec en bane ruling on October 1, 2012 when Amado filed his
CoC; the facts surrounding the filing of the CoC on October 1, 2012; and the May 9, 2013
filing of the Oath of Allegiance and Oath of Renunciation affirming his April 3; 2009
Affidavit of Renunciation).

From these perspectives, how can the 2010 Maquiling case be a seamless continuation of
the 2013 disqualification case now before this Court?

Second, the implied renunciation of foreign citizenship that Amado made on several
occasions is different from and has distinct legal implications separate from the express
renunciation he made on April 3, 2009.

The implied renunciation of foreign citizenship proceeds from the oath of allegiance that
natural-born Filipino citizens take to re-acquire Philippine citizenship. This is patent from
the terms of the oath of allegiance and is a consequence of the resulting re-acquisition of
Philippine citizenship.

The express renunciation, in contrast, is an after-the-fact requirement that arises only if

these natural-born Filipino citizens choose to run for public office. The requirement of an
express renunciation of foreign citizenship arises only after they have re-acquired
Philippine citizenship for the exclusive purpose of qualifying them for elective public
office.

Note in this regard that Maquiling declared as recanted only the express renunciation that
Arnado executed on April 3, 2009, not the implied renunciation that Amado made on
several occasions when he swore allegiance to the supreme authority of the Republic.

This Maquiling declaration and the distinction that it signifies are crucial: first, the implied
renunciation of foreign allegiance that Amado made on several occasions still stands as
valid, as Maquiling affected only his April 3, 2009 express renunciation; second, the
implied renunciation must be valid because it did not affect Amado's reacquisition of
Filipino citizenship; and third, Arnado's express renunciation was declared recanted solely
for the purpose of the May 2010 Elections, not for any and all other purposes.

In short, Maquiling did not declare Arnado 's renunciation of his US citizenship invalid for
all purposes; it certainly could not have done so as that case involved an election
disqualification case that challenged Amado's candidacy for the mayoralty post by reason
of an alleged defect in his qualification, i.e., Amado's isolated acts that, to the majority,
effectively recanted his express renunciation.

In ruling as it did, Maquiling did not and could not have gone beyond the confines of the
underlying election disqualification case and could not have ruled on Arnado 's Philippine
citizenship per se without exceeding the confines of the Court's jurisdiction.

Citizenship and its loss, acquisition, and re-acquisition are much broader concepts that
cannot definitively be affected by a Court ruling in an election disqualification case, even
if the disqualification case touches on the citizenship qualification of the candidate. Thus,
I submit that Maquiling invalidated Arnado 's renunciation oath solely for the purpose of
his qualification/or the May 2010 elections.

Third, Amado became a "pure" Philippine citizen as of April 3, 2009, a legal consequence
that Maquiling recognized and conceded as it declared that "he in fact did" comply with
the "twin requirements under RA No. 9225" for the purpose of election qualification.

What made the Court rule against Amado's qualification for the May 2010 Elections was
the finding of positive, albeit isolated, acts that effectively "disqualified him from running
for an elective public office pursuant to Section 40(d) of the Local Government Code of
1991."

Otherwise stated, Amado, in the Maquiling sense, was indisputably already a "pure"
Philippine citizen as of April 3, 2009. He reverted to a dual citizen status (and only from
the perspective of the concerned foreign country) only on the date subsequent to April 3,
2009, and only by virtue of the ruling that considered his use of his US passport on isolated
occasions as a "voluntar[y] and effective[] [act of] revert[ing] to [the] earlier status [of] a
dual citizen."

To quote and highlight the majority's pronouncement on this point: "[s]uch reversion was
not retroactive as it took place the instant Arnado represented himself as an American
citizen by using his US passport. ,,31

Thus, even if only for qualification purposes, the April 3, 2009 Affidavit of Renunciation
was a valid and Court-recognized express declaration of Amado's renunciation of his US
citizenship that the Court cannot lightly disregard in the present disqualification case.

Fourth, even Maquiling did not perpetually and absolutely disqualify Arnado from running
for any elective public office, or from running in any elections as they declared that "[h]e
is disqualified xx from becoming a candidate in the May 2010 elections. " 32

In other words, Maquiling declared Amado as disqualified from running only in the May
2010 Elections; they did not declare him as disqualified for any and all other elections,
including the May 2013 Elections.

E. Arnado's May 9, 2013 Affidavit of

Renunciation, affirming his April 3,
2009 Affidavit, cured any alleged defect
in his qualification to run for public
office during the May 2013 Elections
I take exception to the ponencia 's ruling that ignores Amado's May 9, 2013 Affidavit of
Renunciation simply because it was executed after Amado filed his CoC on October 1,
2012. I submit that Arnado's May 9, 2013 Affidavit of Renunciation bears crucial
significance to Amado's qualification to run for the May 2013 Elections which the Court
cannot and should not lightly ignore.

Maquiling unequivocably held that by using an American passport, he effectively recanted

his express renunciation of his US citizenship.

Jurisprudence defines the act of recantation to mean to "withdraw or repudiate formally

and publicly;" "to renounce or withdraw prior statement." To "retract" means to "take
back;" "to retract an offer is to withdraw it before acceptance. "
33

That Arnado took back his statement disavowing allegiance to the US government,
however, does not render invalid his status as a natural-born Filipino citizen; neither does
it negate the fact that he had impliedly renounced his US citizenship, and had subsequently
made an express renunciation of his US citizenship.

Granting that Amado's use of his US passport amounted to a withdrawal of the express
renunciation he made of his allegiance to the US, this withdrawal does not erase the fact
that he did make an express renunciation of his US citizenship.

To my mind, this express renunciation, even if recanted, may still be re-affirmed, ·in the
same way a statement already made and subsequently denied, can be re-confirmed. Thus,
Arnado's 2013 Affidavit of Renunciation can validly re-affirm the 2009 express
renunciation that the Court held to have been recanted in Maquiling.

Note that in the May 9, 2013 Affidavit of Renunciation, Amado categorically stated that
he renounces his US citizenship, as well as any and all foreign citizenship; swears
allegiance to the Republic; and confirms the renunciation (of his US citizenship). he had
previously made in the April 3, 2009 Affidavit of Renunciation.

Note, likewise, that as explained above, the April 3, 2009 Affidavit of Renunciation is a
valid and Court-confirmed oath that Amado had validly confirmed in his May 9, 2013
Affidavit. To confirm means "to make firm: strengthen in a resolution, conviction, loyalty,
position; to give new assurance of the truth or validity; to state or imply the truth," and
34

implies a prior existing act.

Finally, note that the Maquiling ruling was issued after Amado took his oath of allegiance
to the Republic four times - on July 10, 2008, April 3, 2009 (when he executed the affidavit
of renunciation); November 30, 2009 (when he filed his CoC for the May 2010 Elections);
and October 1, 2012 (when he filed his CoC for the May 2013 Elections). It was also issued
after Arnado renounced his US citizenship expressly on April 3, 2009, and impliedly on
four occasions - on July 10, 2008; April 3, 2009; November 30, 2009; and October 1, 2012
- when he swore allegiance to the supreme authority of the Republic.

In fact, in his October 1, 2012 CoC, Amado made the following oath:

I will support and defend the Constitution of the Republic of the Philippines and will
maintain true faith and allegiance thereto. I will obey all laws, legal orders and decrees
promulgated by the duly constituted authorities. I impose this obligation upon myself
voluntarily, without mental reservation and purpose of evasion.

Taken together, all these facts undeniably show that Amado's May 9, 2013 Affidavit of
Renunciation was not entirely new, nor completely different and independent from the oath
of renunciation that Arnado took on April 3, 2009. Rather, it affirmed and revalidated the
Court-recognized renunciation oath that he had earlier taken.
Indisputably, Maquiling found that Amado's express renunciation had been validly made.
This express renunciation, having been disavowed, can be re-affirmed by subsequent acts
- through his May 9, 2013 Affidavit of Renunciation and through the statement in his
October 1, 2012 CoC.

The statement in Amado's October 1, 2012 CoC, for instance, is substantially similar to the
oath of allegiance required in RA No. 9225. This oath not only recognizes Amado's Filipino
citizenship, but impliedly renounces his US citizenship. That he swore sole allegiance to
the Philippine Republic in his October 1, 2012 CoC in effect affirmed his express
renunciation of US citizenship; and thus dispenses with the need for another express
renunciation.

Rather than an oath that should simply be brushed aside as the Comelec did, the May 9,
2013 Affidavit served: first, to repair his reverted dual citizen status as declared in
Maquiling; and second, to re-assert and emphasize his clear intent to renounce his US
citizenship which he had expressly done once and impliedly done four times.

In this sense, the May 9, 2013 Affidavit of Renunciation retroacted to April 3, 2009, and
cured any alleged defect in Amado's October 1, 2012 CoC. More importantly, it cured any
defect that the intervening Maquiling ruling introduced on Amado's qualification to run for
public office during the May 2013 Elections.

That Amado executed his May 9, 2013 Affidavit of Renunciation while Maquiling was still
under the Court's consideration (it was not confirmed on reconsideration until July 2, 2013)
is not without significance. While the May 9, 2013 Affidavit was filed for purposes of the
present disqualification case, it could have, had the Court been so inclined, considered as
a factor in ruling on Maquiling's reconsideration; but apparently it was not at all considered
since Amado's use of his US passport was the focal point of the controversy.

F. The intervening Maquiling ruling did

not and could not have invalidated his
status as a "pure" Philippine citizen
who was qualified to run and had filed a
valid CoC for the May 2013 Elections

As the legal consequences of the Maquiling. ruling on Amado's renunciation of his US

citizenship did not extend beyond his qualification to run for public office during the May
2010 elections; and that the May 9, 2013 Affidavit of Renunciation cured any alleged
defect in Amado's qualification to run for the May 2013 Elections, I submit that the
Maquiling ruling on April 16, 2013 did not affect and could not have affected Armado's
qualification to run for public office for the purpose of the May 2013 Elections.

Under the circumstances, Amado had effectively become a "pure" natural-born Philippine
citizen again on October 1, 2012, when he executed the retroactive and curative May 9,
2013 Affidavit of Renunciation, and which status continued well beyond the May 2013
Elections. In this way, Arnado qualified for the position of Mayor of Kauswagan, Lanao
del Norte, and filed a valid CoC.

G. When Arnado filed his CoC on October

1, 2012, the Comelec En Banc, in its
February 2, 2011 Resolution in SPA
No. 10-109(DC), declared him as
qualified to run/or the elective office;
hence, Arnado did not need to execute
another Affidavit of Renunciation
because of this standing Comelec ruling
I likewise strongly object to the ponencia for faulting Amado for not executing another
oath of renunciation at the time of or prior to the filing of his CoC on October 1, . 2012,
reasoning out that as "early as 2010 x x x Amado has gotten wind that the use of his US
passport might pose a problem to his candidacy."

It should be remembered that in the February 2, 2011 Resolution in SP A No. 10-109(DC),

the Comelec En Banc declared Arnado as a "pure" Philippine citizen again, qualified to run
for elective public office. This Comelec ruling still stood and had not yet been overturned
at the time Arnado filed his CoC on October 1, 2012 for the May 2013 Elections. Arnado,
therefore, had every right and reason to rely on this Comelec ruling and to believe that he
was not disqualified to run in the May 2013 Elections.

I concede that, as the events have shown, he should, in retrospect, have exercised greater
care and have taken every. step to secure his qualification to run for public office. His
failure, however, should not and cannot affect his qualification which then stands and is
authoritatively affirmed by the Comelec.

Indeed "there is no law prohibiting him from executing an Affidavit of Renunciation every
election period" as the ponencia puts it. But, note that there is equally no law that requires
him to constantly and consistently· assert his renunciation of any and all foreign
citizenship. Neither is there any law that expressly or impliedly imposes on natural-born
Filipino citizens the obligation to constantly assert their allegiance to the Republic and
perform positive acts to assert this allegiance.

In fact, as the law stands, natural-born Filipino citizens who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country need only to
take an oath of allegiance to the supreme authority of the Republic to re-acquire Philippine
citizenship as they are "deemed not to have lost their Philippine citizenship." Once they re-
acquire their Philippine citizenship after complying with these legal steps, they no longer
need to perform any positive act to assert Philippine citizenship or to elect citizenship. 35

H. Arnado 's persistent assertions of his

allegiance to the Republic and
renunciation of his US citizenship more
than sufficiently proved his determined
resolve to profess allegiance only to the
Republic; these continuing assertions
should have resolved any doubt in favor
of his qualification

RA No. 9225 is a relatively new statutory enactment whose provisions have not been
exhaustively interpreted and ruled upon by this Court, through an appropriate case. In this
respect, I submit that in situations of doubt where the strict application of the equivocal
letter of the law would clearly and undoubtedly disregard the legislative intent, the Court
must and should tread lightly as it rules on the relatively uncharted area of application
where RA No. 9225 overlaps with our elections laws.

The unique factual situation of this case presents such situation of doubt which the Court
must resolve in the light of the clear legislative intent, rather than from the strict application
of the equivocal letter of the law. I find that Amado's persistent assertion of his allegiance
to the Republic and renunciation of his US citizenship more than sufficiently prove his
determined resolve to profess allegiance only to the Republic and to none other.

I submit that the following considerations should not be missed.

At the time Amado filed his CoC on October 1, 2012, he had fully satisfied all of the
requirements of RA No. 9225 to run for elective public office: he has re-acquired Philippine
citizenship after having filed the Oath of Allegiance and secured the order of approval on
July 10, 2008; he has also met all of the qualifications under the Constitution and the law
for the local elective office; and he has already executed an Affidavit of Renunciation on
April 3, 2009.

Likewise, as of October 1, 2012, Amado had sworn allegiance to the Republic four times,
i.e., on July 10, 2008; April 3, 2009; November 30, 2009; and October 1, 2012. He had
also renounced his US citizenship expressly on April 3, 2009, and impliedly thrice on July
10, 2008, November 30, 2009, and October 1, 2012.

Additionally, on October 1, 2012, the Comelec en bane, via the February 2, 2011 resolution
in SPA No. 10-109(DC), had ruled in his favour, affirmed the existence and validity of his
oath of renunciation, and confirmed his continuing qualification for the elective post. At
that time, the February 2, 2011 Comelec ruling had not yet been reversed by this Court and
stood as the final and most recent ruling as regards his qualification to run for the local
elective post. As it had not yet been reversed, he clearly and rightfully had every reason to
rely on this Comelec ruling when he filed his CoC on October 1, 2012.

In these lights, Amado's allegiance to the supreme authority of the Republic and his
renunciation of any and all foreign allegiance, including those to the US government,
cannot be doubted. From the time he had re-acquired "pure" Philippine citizenship under
the terms of RA No. 9225, Arnado has persistently asserted these oaths even while the law
does not require him to do so.

In this situation, any doubt or ambiguity should be resolved in favor of his full Filipino
citizenship - with his qualification to run for the May 2013 Elections - since the thrust of
RA No. 9225 is to encourage the return to Filipino citizenship of natural-born Filipinos
who lost their Philippine citizenship through their acquisition of foreign citizenship. Note
36

in this regard that Amado consciously and voluntarily gave up a very much sought-after
citizenship status in favor of returning to full Filipino citizenship and of participating in
Philippine governance. 37

I. Maquiling did not say that Arnado used

his US passport again on January 12,
2010, and on March 23, 2010

A minor matter, asserted by the ponencia, which should be corrected is the claim that
Amado "used his US passport on January 12, 2010, and on March 23, 2010, as found by
this Court in Maquiling."

I strongly object to this observation as the ponencia clearly misread Maquiling.

Nowhere in Maquiling did the Court make a finding that Arnado used his US passport
again on January 12, 2010, and March 23, 2010 - months after he had received his
Philippine passport. Rather, the alleged use by Arnado of his US passport on these dates
was a mere assertion of Balua, before the Comelec First Division in the Maquiling case;
interestingly, Balua was no longer a party when the case reached this Court. In fact, the
Court in Maquiling, quoting a portion of the Comelec En Banc decision, noted that on
January 12, 2010, what Arnado used was his Philippine passport, not his US passport.

J. Under the circumstances, the Comelec

committed grave abuse of discretion

In this Rule 64-Rule 65 petition, the Court's review is limited to the jurisdictional issue of
whether the Comelec acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction.
As a concept, grave abuse of discretion generally refers to capricious or whimsical exercise
of judgment as is equivalent to lack of jurisdiction; the abuse of discretion must be patent
and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a
duty enjoined by law, or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion and hostility. Mere
abuse of discretion is not enough; it must be grave.

The Court's review power is also limited by the condition, under Section 5, Rule 64 of the
Rules of Court, that findings of fact of the Comelec, supported by substantial evidence,
shall be final and non-reviewable. In this respect, the Court does not ordinarily review the
Comelec' s appreciation and evaluation of evidence as any misstep by the Comelec in this
regard generally involves an error of judgment, not of jurisdiction.

In exceptional situations, however, where the assailed judgment is based on

misapprehension or erroneous apprehension of facts or on the use of wrong or irrelevant
considerations in deciding an issue -situations that are tainted with grave abuse of
38

discretion - the Court is not only obliged but has the constitutional duty to intervene. 39

When grave abuse of discretion is present, the resulting errors mutate from error of
judgment to one of jurisdiction.

I find that, based on the reasons discussed above, the Comelec' s action in this case as it
disqualified Amado from running for the May 2013 Elections, was clearly tainted with
grave abuse of discretion.

The Comelec committed grave abuse of discretion when: first, it relied completely and
indiscriminately on the Maquiling ruling - the wrong and irrelevant, or at the very least,
incomplete - consideration in deciding the underlying disqualification case; and second, it
did not make its own finding of facts and evaluation of the evidence, independent of
Maquiling, and disregarded relevant facts and evidence subsequent to Maquiling - a clear
misapprehension of the facts. Note that the Comelec, both in the September 6, 2013, and
December 9, 2013 resolutions, quoted heavily portions of the Maquiling ruling and drew
its discussions and conclusion largely from Maquiling.

For these reasons, and under the circumstances of this case, I submit that the assailed
Comelec actions must be struck down for grave abuse of discretion amounting to lack or
excess of jurisdiction.

K. At any rate, all doubts should be

resolved in favor of Arnado 's
qualification: the mandate of the people
of Kauswagan that twice elected Arnado
as their Mayor should be respected and
upheld

Independently of all these issues - of Amado's qualification to run for the May 2013
Elections and the intervention of the Maquiling ruling - the

Court cannot and should not now ignore the undeniable fact that the people of Kauswagan,
Lanao del Norte, have themselves responded to the situation of doubt that might have arisen
because of the factual link between the present disqualification case and the intervention
of the Maquiling ruling.

The people themselves made their own ruling when they elected Arnado as their mayor in
the two successive elections - the May 2010 and the May 2013 elections - despite the
"foreigner" label his rivals, even the ponencia, sought to continuously pin on him.
Arnado received an overwhelming 8,902 votes as against the meager 1,707 votes of his
opponent Capitan in the May 2013 Elections; in the May 2010 Elections, he received the
majority 5,952 of the total 11,309 votes cast. At this point, "even this Court should heed
this verdict by resolving all doubts regarding Arnado's eligibility in his favor.". This is not
a novel approach. To reiterate what Sinaca v. Mula teaches us:
40 41

[When] a candidate has received popular mandate, overwhelmingly and clearly expressed,
all possible doubts should be resolved in favor of the candidate's eligibility for to rule
otherwise is to defeat the will of the people. Above and beyond all, the determination of
the true will of the electorate should be paramount. It is their voice, not ours or of anyone
else, that must prevail. This, in essence, is the democracy we continue to hold sacred.

In the words of another leading case - Frivaldo v. Comelec42- the law and the courts,
including this Court, must give serious consideration to the popular will.

"In any action involving the possibility of a reversal of the popular electoral choice, this
Court must exert utmost effort to resolve the issues in a manner that would give effect to
the will of the majority, for it is merely sound public policy to cause elective offices to be
filled by those who are the choice of the majority. To successfully challenge a winning
candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so
patently antagonistic to constitutional and legal principles that overriding such ineligibility
and thereby giving effect to the apparent will of the people would ultimately create greater
prejudice to the very democratic institutions and juristic traditions that our Constitution and
laws so zealously protect and promote. 43

Under the evidentiary and unique factual situation of this case, the alleged eligibility of
Amado is not antagonistic, patently or otherwise, to constitutional and legal principles such
that giving effect to the sovereign will would create prejudice to our democratic
institutions.

Notably, the Office of the Sanggunianng Bayan, through Resolution No. 002-2014 dated 44

January 2, 2014, and the Liga ng Mga Barangay, through Resolution No. 001-2014 dated 45

January 2, 2014, expressed their continuing and overwhelming support for Amado,
notwithstanding the Comelec rulings disqualifying him from the May 2013 Elections, and
implores the Court to heed the Kauswagan people's voice under the principle vox populi,
vox dei.

Under the circumstances of this case, the ponencia 's action that resolves all doubts against
Amado's eligibility undoubtedly defeats the will of the Kauswagan electorate. In ruling
46

as it does, the ponencia effectively disenfranchises an undoubtedly overwhelming majority

of the Kauswagan people as "[t]he rights of suffrage can be denied by a debasement or
dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free
exercise of the franchise."

47
The Court should respect and uphold the will of the electorate.

For the above reasons, I vote to grant the petition.

CONCURRING AND DISSENTING OPINION

LEONEN, J.:

Petitioner Rommel C. Amado renounced his foreign citizenship in accordance

with Republic Act No. 9225 no less than three times. After he had filed his
candidacy for the position of Mayor in 2013, this court promulgated its Decision in
Maquiling v. Commission on Elections, 1 which made it impossible for him to again
renounce or reiterate his renunciation of his foreign citizenship. In the 2013
elections, he won garnering 84o/o of the votes cast in his municipality. The majority
opinion requires him now, yet again, to renounce his foreign citizenship.

I concur with the ponencia's finding that petitioner's claim of procedural infirmities
that occurred during the proceedings before the Commission on Elections is
unsubstantiated.

However, I cannot agree with the conclusion that petitioner remained an

American citizen in accordance with this court's ruling in Maquiling. Petitioner was
already a Filipino citizen at the time he filed his Certificate of Candidacy on
October 1, 2012. He was qualified to run in the 2013 Elections. The Petition should
be granted.

Petitioner has performed all the acts required by Republic Act No. 92252 in order
to reacquire his Filipino citizenship.

Under Section 39(a) of the Local Government Code,3 a candidate for Mayor must
be a citizen of the Philippines, a registered voter, a resident in the municipality or
city where he or she intends to be elected for at least one (1) year immediately
preceding the day of election, and be able to read and write Filipino or any local
language or dialect.

Section 40(d) of the Local Government Code 4 expressly disqualifies those who
possess dual citizenship from running in any local elective position. These
provisions, however, do not disqualify candidates who might have lost their
citizenship but were able to reacquire it before running for public office.

Article IV, Section 3 of the Constitution provides that "Philippine citizenship may be
lost or reacquired in the manner provided by law."

Those who lose their Filipino citizenship through naturalization in another country
may reacquire it through the procedure outlined in Republic Act No. 9225. This
also applies to naturalized citizens who wish to reacquire their Filipino citizenship in
order to run for public office.

According to Section 3 of Republic Act No. 9225:

SEC. 3. Retention of Philippine Citizenship. - Any provision of law to the contrary

notwithstanding, natural-born citizenship by reason of their naturalization as
citizens of a foreign country are hereby deemed to have re-acquired Philippine
citizenship upon taking the following oath of allegiance to the Republic:

"I , solemnly swear (or affirm) that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal orders promulgated by
the duly constituted authorities of the Philippines; and I hereby declare that I
recognize and accept the supreme authority of the Philippines and will maintain
true faith and allegiance thereto; and that I impose this obligation upon myself
voluntarily without mental reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act,
become citizens of a foreign country shall retain their Philippine citizenship upon
taking the aforesaid oath.

The effect of reacquisition is the restoration of Philippine citizenship to natural-born

Filipino citizens who have been naturalized as citizens in a foreign country. All that
is required to retain their citizenship is to take the oath of allegiance under the law.

In the previous repatriation law, naturalized citizens seeking to reacquire Philippine

citizenship only had to take an oath of allegiance in order to regain their
citizenship, including the right to seek public office. 5 Act No. 636 states:

SEC. 4. Repatriation shall be effected by merely taking the necessary oath of

allegiance to the Commonwealth of the Philippines and registration in the proper
civil registry.

The same requirement is present in the present reacquisition law. Philippine

citizenship is deemed to have been reacquired through the taking of the oath of
allegiance embodied in Section 3 of Republic Act No. 9225. However, unlike the
previous law, the mere act of taking the oath of allegiance is not sufficient
compliance for those seeking to run for public office. The law includes an
additional requisite before they become qualified to run for public office, thus:

SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or re-acquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:

(2) Those seeking elective public in the Philippines shall meet the qualification for
holding such public office as required by the Constitution and existing laws and,
at the time of the filing of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized
to administer an oath[.] (Emphasis supplied)

In Japzon v. Commission on Elections: 7

[F]or a natural born Filipino, who reacquired or retained his Philippine citizenship
under Republic Act No. 9225, to run for public office, he must: ( 1) meet the
qualifications for holding such public office as required by the Constitution and
existing laws; and (2) make a personal and sworn renunciation of any and all
foreign citizenships before any public officer authorized to administer an oath.8

The law requires a personal and sworn renunciation of all foreign citizenships
before the candidate files a certificate of candidacy.

In Jacot v. Dal and Commission on Elections,9 this court disqualified Nestor A.

Jacot from running for Vice Mayor of Catarman, Camiguin, after he failed to make
a personal and sworn renunciation of his American citizenship:

The law categorically requires persons seeking elective public office, who either
retained their Philippine citizenship or those who reacquired it, to make a personal
and sworn renunciation of any and all foreign citizenship before a public officer
authorized to administer an oath simultaneous with or before the filing of the
certificate of candidacy.

Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who
have been naturalized as citizens of a foreign country, but who reacquired or
retained their Philippine citizenship (1) to take the oath of allegiance under Section
3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the
Philippines, to additionally execute a personal and sworn renunciation of any and
all foreign citizenship before an authorized public officer prior or simultaneous to
the filing of their certificates of candidacy, to qualify as candidates in Philippine
elections.

Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and
sworn renunciation of any and all foreign citizenship) requires of the Filipinos
availing themselves of the benefits under the said Act to accomplish an
undertaking other than that which they have presumably complied with under
Section 3 thereof (oath of allegiance to the Republic of the Philippines). This is
made clear in the discussion of the Bicameral Conference Committee on
Disagreeing Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on 18
August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman
Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon.
Representative Exequiel Javier that the oath of allegiance is different from the
renunciation of foreign citizenship:

CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public office in the
Philippines shall meet the qualifications for holding such public office as required
by the Constitution and existing laws and, at the time of the filing of the certificate
of candidacy, make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath." I think it's
very good, ha? No problem?

REP. JAVIER.... I think it's already covered by the oath.

CHAIRMAN DRILON. Renouncing foreign citizenship.

REP. JAVIER. Ah ... but he has taken his oath already.

CHAIRMAN DRILON. No ... no, renouncing foreign citizenship.

CHAIRMAN DRILON. Can I go back to No. 2. What's your problem, Boy? Those
seeking elective office in the Philippines.

REP. JAVIER. They are trying to make him renounce his citizenship thinking that ano
...

CHAIRMAN DRILON. His American citizenship.

REP. JAVIER. To discourage him from running?

CHAIRMAN DRILON. No.

REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship. When he
runs for office, he will have only one.

There is little doubt, therefore, that the intent of the legislators was not only for
Filipinos reacquiring or retaining their Philippine citizenship under Republic Act No.
9225 to take their oath of allegiance to the Republic of the Philippines, but also to
explicitly renounce their foreign citizenship if they wish to run for elective posts in
the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only
have one citizenship, namely, Philippine citizenship.

By the same token, the oath of allegiance contained in the Certificate of

Candidacy, which is substantially similar to the one contained in Section 3 of
Republic Act No. 9225, does not constitute the personal and sworn renunciation
sought under Section 5(2) of Republic Act No. 9225. It bears to emphasize that the
said oath of allegiance is a general requirement for all those who wish to run as
candidates in Philippine elections; while the renunciation of foreign citizenship is
an additional requisite only for those who have retained or reacquired Philippine
citizenship under Republic Act No. 9225 and who seek elective public posts,
considering their special circumstance of having more than one citizenship.10
(Emphasis in the original)

Section 5 of Republic Act No. 9225 restores full civil and political rights to those who
wish to reacquire their citizenship, including the right to vote and be voted for. A
candidate may have the right to vote and be voted for as long as he or she has
already done all positive acts necessary for the reacquisition of his or her Philippine
citizenship before filing his or her certificate of candidacy.

Residency as a requirement for public office must also be interpreted as a

separate matter from citizenship. Residence is said to be synonymous to
domicile.11 Domicile requires both physical presence and animus revertendi or
intent to return.12 Citizenship may be presumed from one's domicile,13 but this
presumption is disputable. Further proof other than domicile may be required to
prove citizenship.

A person residing in the Philippines is presumed to be a Filipino citizen. Domicile,

however, does not ipso facto prove his or her citizenship. A Filipino may reside in
the United States but still remain a Filipino citizen. An American may also reside in
the Philippines and still remain an American citizen. The presumption created by
residency is not conclusive of one's citizenship.

Residency also need not be continuous for as long as the total number of required
years have been complied with before the election. Section 39(a) of the Local
Government Code requires residency for "at least one (1) year immediately
preceding the day of the election for local elective office." A candidate for local
elective office may be eligible to run for as long as he or she is proven to have
animus revertendi in a certain domicile for at least one (1) year immediately
preceding the elections.

The purpose of the residency requirement is "to give candidates the opportunity
to be familiar with the needs, difficulties, aspirations, potentials for growth[,] and
all matters vital to the welfare of their constituencies; likewise, it enables the
electorate to evaluate the office seekers' qualifications and fitness for the job they
aspire for."14 The length of a candidate's residency depends on the time
necessary to acquire familiarity with the constituency as well as sensitivity to the
welfare of the constituents. The requirement seeks "to exclude a stranger or
newcomer, unacquainted with the conditions and needs of a community and not
identified with the latter, from an elective office to serve that community."15

Continuity does not always guarantee familiarity. A momentary absence from the
country does not negate the purpose of the residency requirement.16 A
candidate who has spent some time abroad may offer a unique perspective as
opposed to a candidate who has never left the country.

The former may be in a better position to observe the changes the country may
have undergone through the years, or may have a stronger intuition as to the level
of growth it still needs. What is important is that the purpose of residency is
complied with.

Petitioner took his Oath of Allegiance to the Republic of the Philippines on July 10,
2008. On April 3, 2009, he executed his Affidavit of Renunciation of his foreign
citizenship. Petitioner alleges that he executed his Affidavit of Renunciation with
Oath of Allegiance on November 30, 2009. On May 9, 2013, he again executed
the Affidavit Affirming Rommel C. Arnado 's "Affidavit of Renunciation Dated April
3, 2009. "
Petitioner renounced his American citizenship no less than three times before he
filed his Certificate of Candidacy on October 1, 2012. He had performed all the
acts required by Republic Act No. 9225 in order to reacquire his Filipino citizenship
before he ran for public office.

However, the ponencia takes exception to these findings of fact and rules that, in
accordance with this court's findings in Maquiling, petitioner's use of his American
passport after executing his Affidavit of Renunciation negated his Affidavit. I
cannot agree with this conclusion.

II

Petitioner's use of his American passport was an isolated act required by the
circumstances. At that time, he had not yet been issued his Philippine passport.

In the dissent in Maquiling led by Associate Justice Arturo D. Brion, it was pointed
out that when Amado traveled back to the United States, "he had no Philippine
passport that he could have used to travel to the United States to attend to the
winding up of his business and other affairs in America."17

The use of a foreign passport should not by itself cause the immediate nullity of
one's affidavit of renunciation. Its circumstances must also be taken into account.

The necessity of the use of his American passport is shown by the timeline of events,
thus:

Affidavit of Renunciation: April 3, 2009

Date of Issuance of Philippine Passport: June 18, 2009

Receipt of Philippine Passport: September 2009

Second Affidavit of Renunciation with Oath of Allegiance (alleged by petitioner):

November 30, 2009

Date of Travels18

Destination

Date of Departure from the Philippines

Date of Arrival in the Philippines

Passport

USA

April 14, 2009

June 25, 2009

American

USA

July 29, 2009

November 24, 2009

American

USA

December 11, 2009

January 12, 2010

Philippine

USA

January 31, 2010

March 31, 2010

Philippine

USA

April 11, 2010

April 16, 2010

Philippine

USA

May 20, 2010

June 4, 2010

Philippine

Petitioner could use only his American passport when he traveled on April 14, 2009
since the Consulate of the Philippines had not yet issued him a Philippine passport.

When petitioner received his Philippine passport sometime in September 2009, he

could not immediately use it to exit the United States since he entered the country
using an American passport. If he exited using a Philippine passport, one
presumably without an American visa, immigration authorities of both the
Philippines and the United States would have questioned his travel documents. He
would have had no choice but to use his American passport to exit the United
States.

However, petitioner did use his Philippine passport in his subsequent travels. Hence,
his isolated use of his American passport when he did not yet have his Philippine
passport is not sufficient cause to negate his Affidavit of Renunciation.

The ponencia cites Maquiling, in that Linog C. Balua, petitioner's rival candidate in
the 2010 Elections, presented a certification dated April 23, 2010 from the Bureau
of Immigration indicating that as of January 12, 2010 and March 23, 2010,
petitioner's nationality was "USA-American." The Computer Database/Passenger
Manifest states:

DATE OF Arrival

01/12/2010

NATIONALITY

USA-AMERICAN

PASSPORT

057782700

DATE OF Arrival
:

03/23/2010

NATIONALITY

USA-AMERICAN

PASSPORT

05778270019

This certification is contradicted by petitioner's Philippine passport which was

stamped by the Bureau of Immigration also on these dates. 20 It was, therefore,
erroneous for the ponencia to refer to the certification as "uncontroverted. "21

The ponencia unduly gives weight to the Bureau of Immigration's certification on

the basis that the copy of his Philippine passport was a mere "certified true copy
from the machine copy on file."22 Maquiling undoubtedly states that petitioner
was issued a Philippine passport and that he used it for his subsequent travels
abroad.23 There is a presumption that this piece of evidence, like the certification
by the Bureau of Immigration, can be relied upon since it forms part of the case
records. Under the presumption of regularity, his passport is presumed to have
been stamped by the Bureau of Immigration. Until and unless it is alleged and
proven that the stamps on his Philippine passport are fraudulent, it is presumed
that the Bureau of Immigration certified the use of his Philippine passport and the
use of his American passport on the dates alleged. It is also possible that at the
time the certification was issued, the Bureau of Immigration had not yet updated
its database. Therefore, it was erroneous for the ponencia to conclude that
petitioner used his American passport on January 12, 2010 and on March 23, 2010
based merely on the certification dated April 23, 2010.24

III

Even if the ponencia applied the ruling in Maquiling, Amado should have already
been qualified to run in the 2013 Elections

Maquiling held that petitioner's use of his American passport negated his Affidavit
of Renunciation, thus disqualifying him to run in the 2010 Elections:

We therefore hold that Amado, by using his US passport after renouncing his
American citizenship, has recanted the same Oath of Renunciation he took.
Section 40(d) of the Local Government Code applies to his situation. He is
disqualified not only from holding the public office but even from becoming a
candidate in the May 2010 elections. 25

Therefore, it can be reasonably concluded that, per Maquiling, petitioner's use of

his Philippine passport signifies his Philippine citizenship.

According to Republic Act No. 8239,26 a passport is "a document issued by the
Philippine government to its citizens and requesting other governments to allow its
citizens to pass safely and freely, and in case of need to give him/her all lawful aid
and protection."27

By definition, a Philippine passport is a document issued by the government to its

citizens. Clearly, a Philippine passport cannot be issued to an American citizen.
If this court concludes, as the ponencia has done, that petitioner remained an
American citizen, the facts should show that he continued to use his American
passport before he filed his Certificate of Candidacy for the 2013 Elections.

As of June 18, 2009, petitioner was issued a Philippine passport. He has continually
used his Philippine passport from December 11, 2009. He also executed an
Affidavit of Renunciation with Oath of Allegiance on November 30, 2009. By the
time he filed his Certificate of Candidacy on October 1, 2012, he was already the
bearer of a Philippine passport. In Yu v. Defensor-Santiago,28 a petition for habeas
corpus was filed against then Commissioner for Immigration and Deportation
Miriam Defensor-Santiago for the release of Willie Yu (Yu) from detention. This
court, confronted with the issue of Yu's citizenship, found:

Petitioner's own compliance reveals that he was originally issued a Portuguese

passport in 1971, valid for five (5) years and renewed for the same period upon
presentment before the proper Portuguese consular officer. Despite his
naturalization as a Philippine citizen on 10 February 1978, on 21 July 1981, petitioner
applied for and was issued Portuguese Passport No. 35/81 serias N. 1517410 by the
Consular Section of the Portuguese Embassy in Tokyo. Said Consular Office certifies
that his Portuguese passport expired on 20 July 1986. While still a citizen of the
Philippines who had renounced, upon his naturalization, "absolutely and forever
all allegiance and fidelity to any foreign prince, potentate, state or sovereignty"
and pledged to "maintain true faith and allegiance to the Republic of the
Philippines," he declared his nationality as Portuguese in commercial documents
he signed, specifically, the Companies Registry of Tai Shun Estate Ltd. filed in
Hongkong sometime in April 1980.

To the mind of the Court, the foregoing acts considered together constitute an
express renunciation of petitioner's Philippine citizenship acquired through
naturalization. In Board of Immigration Commissioners vs. Go Galiano, express
renunciation was held to mean a renunciation that is made known distinctly and
explicitly and not left to inference or implication. Petitioner, with full knowledge,
and legal capacity, after having renounced Portuguese citizenship upon
naturalization as a Philippine citizen resumed or reacquired his prior status as a
Portuguese citizen, applied for a renewal of his Portuguese passport and
represented himself as such in official documents even after he had become a
naturalized Philippine citizen. Such resumption or reacquisition of Portuguese
citizenship is grossly inconsistent with his maintenance of Philippine citizenship.29
(Emphasis supplied)

Yu's renewal of his Portuguese passport was a renunciation of his Philippine

citizenship. This court took into account Yu's application for renewal and his
declaration of his Portuguese nationality in commercial documents.

In contrast, petitioner was forced by his circumstances to use his American

passport at a time when he had not yet been issued a Philippine passport. Upon
the issuance of his Philippine passport, however, petitioner consistently used this
passport for his travels. His consistent use of his Philippine passport was a positive
act that showed his continued allegiance to the country.

Petitioner's continued intent to renounce his American citizenship is clear when he

executed his Affidavit Affirming Rommel C. Arnado 's "Affidavit of Renunciation
Dated April 3, 2009" on May 9, 2013.

Republic Act No. 9225 requires a personal and sworn renunciation from persons
who seek to reacquire their Philippine citizenship in order to run for local office.
Petitioner's Affidavit of Renunciation dated April 3, 2009, his continued use of his
Philippine passport, his alleged Affidavit of Renunciation with Oath of Allegiance
dated November 30, 2009, and his Affidavit dated May 9, 2013 are more than
enough evidence to show his personal and sworn renunciation of his American
citizenship.

IV

Election laws must be interpreted to give effect to the will of the people.

Petitioner garnered an overwhelming 8,902 votes, 84% of the total votes cast3° in
the 2013 mayoralty elections. If he is disqualified, Florante Capitan, his opponent
who garnered 1, 707 votes, a mere 16% of the total votes cast,31 will become the
duly elected mayor of Kauswagan, Lanao del Norte. This court will have
substituted its discretion over the sovereign will of the people.

The ponencia erroneously cites Lopez v. Commission on Elections32 as basis for

stating that petitioner's landslide victory could not override eligibility requirements.

In Lopez, a petition for disqualification was filed against Eusebio Eugenio K. Lopez
(Lopez) to disqualify him from running for Barangay Chair in the 2007 Barangay
Elections. Lopez argued that he was a dual citizen by virtue of Republic Act No.
9225 and, hence, was qualified to run.

This court disagreed and disqualified Lopez from running in public office since he
failed to make a personal and sworn renunciation of his American citizenship. It
also ruled that his subsequent victory in the elections could not cure the defect of
his disqualification:

While it is true that petitioner won the elections, took his oath and began to
discharge the functions of Barangay Chairman, his victory cannot cure the defect
of his candidacy. Garnering the most number of votes does not validate the
election of a disqualified candidate because the application of the constitutional
and statutory provisions on disqualification is not a matter of popularity.33

Lopez, however, does not apply since the candidate in that case failed to
execute a personal and sworn renunciation of his American citizenship.1avvphi1
In this case, petitioner made a personal and sworn renunciation of his American
citizenship no less than three times.

In Japzon v. Commission on Elections, 34 a petition for disqualification was brought

against Jaime S. Ty (Ty), who won as Mayor of MacArthur, Eastern Samar in the
2007 Elections. Ty was a natural born Filipino citizen who migrated to the United
States and stayed there for 25 years. He took an Oath of Allegiance in 2005 and
renounced his American citizenship before a notary public on March 19, 2007. The
question before this court, however, was whether his reacquisition of citizenship
has the effect of regaining his domicile, in compliance with the residency
requirements for elections.

In resolving the issue, this court found that Ty substantially complied with the
requirements of Section 5(2) of Republic Act No. 9225 when he personally
executed a Renunciation of Foreign Citizenship before a notary public before filing
his Certificate of Candidacy.1âwphi1 It also ruled that Ty was able to comply with
the residency requirements:

[W]hen the evidence of the alleged lack of residence qualification of a candidate

for an elective position is weak or inconclusive and it clearly appears that the
purpose of the law would not be thwarted by upholding the victor's right to the
office, the will of the electorate should be respected. For the purpose of election
laws is to give effect to, rather than frustrate, the will of the voters. To successfully
challenge Ty's disqualification, Japzon must clearly demonstrate that Ty's
ineligibility is so patently antagonistic to constitutional and legal principles that
overriding such ineligibility and thereby giving effect to the apparent will of the
people would ultimately create greater prejudice to the very democratic
institutions and juristic traditions that our Constitution and laws so zealously protect
and promote. In this case, Japzon failed to substantiate his claim that Ty is ineligible
to be Mayor of the Municipality of General Macarthur, Eastern Samar,
Philippines.35 (Emphasis supplied)

In Bengson III v. House of Representatives Electoral Tribunal, 36 a similar citizenship

issue was raised against Teodoro C. Cruz (Cruz) on the ground that he lost his
citizenship when he enlisted in the United States Marine Corps in 1985. This court
disagreed, stating that Cruz reacquired his Philippine citizenship through
repatriation under Republic Act No. 2630.

Former Associate Justice Artemio V. Panganiban's Concurring Opinion is

particularly instructive in stating that this court has a duty to uphold the clear
mandate of the people, thus:

4. In Case of Doubt, Popular Will Prevails

[T]he Court has a solemn duty to uphold the clear and unmistakable mandate of
the people. It cannot supplant the sovereign will of the Second District of
Pangasinan with fractured legalism. The people of the District have clearly spoken.
They overwhelmingly and unequivocally voted for private respondent to represent
them in the House of Representatives. The votes that Cruz garnered (80, 119) in the
last elections were much more than those of all his opponents combined (66, 182).
In such instances, all possible doubts should be resolved in favor of the winning
candidate's eligibility; to rule otherwise would be to defeat the will of the people.

Well-entrenched in our jurisprudence is the doctrine that in case of doubt, political

laws must be so construed as to give life and spirit to the popular mandate freely
expressed through the ballot. Public interest and the sovereign will should, at all
times, be the paramount considerations in election controversies. For it would be
better to err in favor of the people's choice than to be right in complex but little
understood legalisms. "Indeed, this Court has repeatedly stressed the importance
of giving effect to the sovereign will in order to ensure the survival of our
democracy. In any action involving the possibility of a reversal of the popular
electoral choice, this Court must exert utmost effort to resolve the issues in a
manner that would give effect to the will of the majority, for it is merely sound
public policy to cause elective offices to be filled by those who are the choice of
the majority. To successfully challenge a winning candidate's qualifications, the
petitioner must clearly demonstrate that the ineligibility is so patently antagonistic
to constitutional and legal principles that overriding such ineligibility and thereby
giving effect to the apparent will of the people would ultimately create greater
prejudice to the very democratic institutions and juristic traditions that our
Constitution and laws so zealously protect and promote."37 (Emphasis supplied)

Petitioner has proven over and over again that he has renounced his American
citizenship. He continues to use his Philippine passport for his foreign travels. His
landslide victory in the 2013 Elections represents the trust of his constituents in him.
To disqualify him from public office for the isolated and reasonable use of his
American passport would be to set aside the clear and unmistakable sovereign
will of the people. It will impose an unreasonable burden over his and the
electorate's fundamental right to suffrage.

ACCORDINGLY, I vote to GRANT the Petition.

CASE NO. 10

THIRD DIVISION

March 18, 2015

G.R. No. 199113

RENATO M. DAVID, Petitioner,

vs.
EDITHA A. AGBAY and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

VILLARAMA, JR., J.:

This is a petition for review under Rule 45 seeking to reverse the Order1 dated October 8, 2011
of the Regional Trial Court (RTC) of Pinamalayan, Oriental Mindoro, which denied the petition
for certiorari filed by Renato(petitioner)M. David. Petitioner assailed the Order2 dated March
22, 2011 of the Municipal Trial Court (MTC) of Socorro, Oriental Mindoro denying his motion
for redetermination of probable cause.

The factual antecedents:

In 1974, petitioner migrated to Canada where he became a Canadian citizen by naturalization.

Upon their retirement, petitioner and his wife returned to the Philippines. Sometime in 2000,
they purchased a 600-square meter lot along the beach in Tambong, Gloria, Oriental Mindoro
where they constructed a residential house. However, in the year 2004, they came to know
that the portion where they built their house is public land and part of the salvage zone.

On April 12, 2007, petitioner filed a Miscellaneous Lease Application3 (MLA) over the subject
land with the Department of Environment and Natural Resources (DENR) at the Community
Environment and Natural Resources Office (CENRO) in Socorro. In the said application,
petitioner indicated that he is a Filipino citizen.

Private respondent Editha A. Agbay opposed the application on the ground that petitioner, a
Canadian citizen, is disqualified to own land. She also filed a criminal complaint for falsification
of public documents under Article 172 of the Revised Penal Code (RPC) (I.S. No. 08-6463)
against the petitioner.

Meanwhile, petitioner re-acquired his Filipino citizenship under the provisions of Republic Act
No. 9225,4 (R.A. 9225) as evidenced by Identification Certificate No. 266-10-075 issued by the
Consulate General of the Philippines (Toronto) on October 11, 2007.

In his defense, petitioner averred that at the time he filed his application, he had intended to
re-acquire Philippine citizenship and that he had been assured by a CENRO officer that he
could declare himself as a Filipino. He further alleged that he bought the property from the
Agbays who misrepresented to him that the subject property was titled land and they have the
right and authority to convey the same. The dispute had in fact led to the institution of civil and
criminal suits between him and private respondent’s family.

On January 8, 2008,6 the Office of the Provincial Prosecutor issued its Resolution7 finding
probable cause to indict petitioner for violation of Article 172 of the RPC and recommending
the filing of the corresponding information in court. Petitioner challenged the said resolution in
a petition for review he filed before the Department of Justice (DOJ).

On June 3, 2008, the CENRO issued an order rejecting petitioner’s MLA. It ruled that
petitioner’s subsequent re-acquisition of Philippine citizenship did not cure the defect in his
MLA which was void ab initio.8

In the meantime, on July 26, 2010, the petition for review filed by petitioner was denied by the
DOJ which held that the presence of the elements of the crime of falsification of public
document suffices to warrant indictment of the petitioner notwithstanding the absence of any
proof that he gained or intended to injure a third person in committing the act of falsification. 9
Consequently, an information for Falsification of Public Document was filed before the MTC
(Criminal Case No. 2012) and a warrant of arrest was issued against the petitioner.

On February 11, 2011, after the filing of the Information and before his arrest, petitioner filed
an Urgent Motion for Re-Determination of Probable Cause10 in the MTC. Interpreting the
provisions of the law relied upon by petitioner, the said court denied the motion, holding that
R.A. 9225 makes a distinction between those who became foreign citizens during its effectivity,
and those who lost their Philippine citizenship before its enactment when the governing law
was Commonwealth Act No. 6311 (CA 63). Since the crime for which petitioner was charged
was alleged and admitted to have been committed on April 12, 2007 before he had re- acquired
his Philippine citizenship, the MTC concluded that petitioner was at that time still a Canadian
citizen. Thus, the MTC ordered:

WHEREFORE, for lack of jurisdiction over the person of the accused, and for lack of merit, the
motion is DENIED.

SO ORDERED.12

In his motion for reconsideration,13 petitioner questioned the foregoing order denying him relief
on the ground of lack of jurisdiction and insisted that the issue raised is purely legal. He argued
that since his application had yet to receive final evaluation and action by the DENR Region
IV-B office in Manila, it is academic to ask the citizenship of the applicant (petitioner) who had
re-acquired Philippine citizenship six months after he applied for lease of public land. The MTC
denied the motion for reconsideration.14

Dissatisfied, petitioner elevated the case to the RTC via a petition15 for certiorari under Rule
65, alleging grave abuse of discretion on the part of the MTC. He asserted that first, jurisdiction
over the person of an accused cannot be a pre-condition for the re-determination of probable
cause by the court that issues a warrant of arrest; and second, the March 22, 2011 Order
disregarded the legal fiction that once a natural-born Filipino citizen who had been naturalized
in another country re-acquires his citizenship under R.A. 9225, his Filipino citizenship is thus
deemed not to have been lost on account of said naturalization.

In his Comment and Opposition,16 the prosecutor emphasized that the act of falsification was
already consummated as petitioner has not yet re-acquired his Philippine citizenship, and his
subsequent oath to re-acquire Philippine citizenship will only affect his citizenship status and
not his criminal act which was long consummated prior to said oath of allegiance.

On October 8, 2011, the RTC issued the assailed Order denying the petition for certiorari after
finding no grave abuse of discretion committed by the lower court, thus:

ACCORDINGLY, the petition is hereby DENIED. At any rate petitioner is not left without any
remedy or recourse because he can proceed to trial where he can make use of his claim to be
a Filipino citizen as his defense to be adjudicated in a full blown trial, and in case of conviction,
to appeal such conviction.

SO ORDERED.17

Petitioner is now before us arguing that –

A. By supporting the prosecution of the petitioner for falsification, the lower court has
disregarded the undisputed fact that petitioner is a natural-born Filipino citizen, and
that by re-acquiring the same status under R.A. No. 9225 he was by legal fiction
"deemed not to have lost" it at the time of his naturalization in Canada and through
the time when he was said to have falsely claimed Philippine citizenship.

B. By compelling petitioner to first return from his legal residence in Canada and to
surrender or allow himself to be arrested under a warrant for his alleged false claim
to Philippine citizenship, the lower court has pre-empted the right of petitioner
through his wife and counsel to question the validity of the said warrant of arrest
 against him before the same is implemented, which is tantamount to a denial of due
process.18

In his Comment, the Solicitor General contends that petitioner’s argument regarding the
retroactivity of R.A. 9225 is without merit. It is contended that this Court’s rulings in Frivaldo
1âwphi1

v. Commission on Elections19 and Altarejos v. Commission on Elections20 on the retroactivity of

one’s re- acquisition of Philippine citizenship to the date of filing his application therefor cannot
be applied to the case of herein petitioner. Even assuming for the sake of argument that such
doctrine applies in the present situation, it will still not work for petitioner’s cause for the simple
reason that he had not alleged, much less proved, that he had already applied for reacquisition
of Philippine citizenship before he made the declaration in the Public Land Application that he
is a Filipino. Moreover, it is stressed that in falsification of public document, it is not necessary
that the idea of gain or intent to injure a third person be present. As to petitioner’s defense of
good faith, such remains to be a defense which may be properly raised and proved in a full-
blown trial.

On the issue of jurisdiction over the person of accused (petitioner), the Solicitor General opines
that in seeking an affirmative relief from the MTC when he filed his Urgent Motion for Re-
determination of Probable Cause, petitioner is deemed to have submitted his person to the
said court’s jurisdiction by his voluntary appearance. Nonetheless, the RTC correctly ruled that
the lower court committed no grave abuse of discretion in denying the petitioner’s motion after
a judicious, thorough and personal evaluation of the parties’ arguments contained in their
respective pleadings, and the evidence submitted before the court.

In sum, the Court is asked to resolve whether (1) petitioner may be indicted for falsification for
representing himself as a Filipino in his Public Land Application despite his subsequent re-
acquisition of Philippine citizenship under the provisions of R.A. 9225; and (2) the MTC
properly denied petitioner’s motion for re-determination of probable cause on the ground of
lack of jurisdiction over the person of the accused (petitioner).

R.A. 9225, otherwise known as the "Citizenship Retention and Re- acquisition Act of 2003,"
was signed into law by President Gloria Macapagal-Arroyo on August 29, 2003. Sections 2
and 3 of said law read:

SEC. 2. Declaration of Policy.–It is hereby declared the policy of the State that all Philippine
citizens who become citizens of another country shall be deemed not to have lost their
Philippine citizenship under the conditions of this Act.

SEC. 3. Retention of Philippine Citizenship.–Any provision of law to the contrary

notwithstanding, natural-born citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed
to have reacquired Philippine citizenship upon taking the following oath of allegiance to
the Republic:

"I ______________________, solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I
recognize and accept the supreme authority of the Philippines and will maintain true faith and
allegiance thereto; and that I impose this obligation upon myself voluntarily without mental
reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens
of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.
(Emphasis supplied)

While Section 2 declares the general policy that Filipinos who have become citizens of another
country shall be deemed "not to have lost their Philippine citizenship," such is qualified by the
phrase "under the conditions of this Act." Section 3 lays down such conditions for two
categories of natural-born Filipinos referred to in the first and second paragraphs. Under the
first paragraph are those natural-born Filipinos who have lost their citizenship by naturalization
in a foreign country who shall re-acquire their Philippine citizenship upon taking the oath of
allegiance to the Republic of the Philippines. The second paragraph covers those natural-born
Filipinos who became foreign citizens after R.A. 9225 took effect, who shall retain their
Philippine citizenship upon taking the same oath. The taking of oath of allegiance is required
for both categories of natural-born Filipino citizens who became citizens of a foreign country,
but the terminology used is different, "re-acquired" for the first group, and "retain" for the
second group.

The law thus makes a distinction between those natural-born Filipinos who became foreign
citizens before and after the effectivity of R.A. 9225. Although the heading of Section 3 is
"Retention of Philippine Citizenship", the authors of the law intentionally employed the terms
"re-acquire" and "retain" to describe the legal effect of taking the oath of allegiance to the
Republic of the Philippines. This is also evident from the title of the law using both re-
acquisition and retention.

In fine, for those who were naturalized in a foreign country, they shall be deemed to have re-
acquired their Philippine citizenship which was lost pursuant to CA 63, under which
naturalization in a foreign country is one of the ways by which Philippine citizenship may be
lost. As its title declares, R.A. 9225 amends CA 63 by doing away with the provision in the old
law which takes away Philippine citizenship from natural-born Filipinos who become
naturalized citizens of other countries and allowing dual citizenship,21 and also provides for the
procedure for re-acquiring and retaining Philippine citizenship. In the case of those who
became foreign citizens after R.A. 9225 took effect, they shall retain Philippine citizenship
despite having acquired foreign citizenship provided they took the oath of allegiance under the
new law.

Petitioner insists we should not distinguish between re-acquisition and retention in R.A. 9225.
He asserts that in criminal cases, that interpretation of the law which favors the accused is
preferred because it is consistent with the constitutional presumption of innocence, and in this
case it becomes more relevant when a seemingly difficult question of law is expected to have
been understood by the accused, who is a non-lawyer, at the time of the commission of the
alleged offense. He further cites the letter-reply dated January 31, 201122 of the Bureau of
Immigration (BI) to his query, stating that his status as a natural-born Filipino will be governed
by Section 2 of R.A. 9225.

These contentions have no merit.

That the law distinguishes between re-acquisition and retention of Philippine citizenship was
made clear in the discussion of the Bicameral Conference Committee on the Disagreeing
Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on August 18, 2003, where
Senator Franklin Drilon was responding to the query of Representative Exequiel Javier:

REP. JAVIER. I have some questions in Section 3. Here, under Section 3 of the Senate
version, "Any provision of law on the contrary notwithstanding, natural-born citizens of the
Philippines who, after the effectivity of this Act, shall… and so forth, ano, shall retain their
Philippine citizenship.

Now in the second paragraph, natural-born citizens who have lost their citizenship by reason
of their naturalization after the effectivity of this Act are deemed to have reacquired…

THE CHAIRMAN (SEN. DRILON). Prior to the effectivity.

REP. JAVIER. Well, you have two kinds of natural-born citizens here. Natural-born citizens
who acquired foreign citizenship after the effectivity of this act are considered to have retained
their citizenship. But natural-born citizens who lost their Filipino citizenship before the
effectivity of this act are considered to have reacquired. May I know the distinction? Do you
mean to say that natural-born citizens who became, let’s say, American citizens after the
effectivity of this act are considered natural-born?

Now in the second paragraph are the natural-born citizens who lost their citizenship before the
effectivity of this act are no longer natural born citizens because they have just reacquired their
citizenship. I just want to know this distinction, Mr. Chairman.

THE CHAIRMAN (SEN. DRILON). The title of the Senate version is precisely retention and
reacquisition. The reacquisition will apply to those who lost their Philippine citizenship
by virtue of Commonwealth Act 63. Upon the effectivity -- assuming that we can agree on
this, upon the effectivity of this new measure amending Commonwealth Act 63, the Filipinos
who lost their citizenship is deemed to have reacquired their Philippine citizenship upon the
effectivity of the act.

The second aspect is the retention of Philippine citizenship applying to future

instances. So that’s the distinction.

REP. JAVIER. Well, I’m just asking this question because we are here making distinctions
between natural-born citizens. Because this is very important for certain government positions,
‘no, because natural-born citizens are only qualified for a specific…

THE CHAIRMAN (SEN. DRILON). That is correct.

REP. JAVIER. ...positions under the Constitution and under the law.

THE CHAIRMAN (SEN. DRILON). Yes. We can get to that later on. It’s one of the provisions,
yes. But just for purposes of the explanation, Congressman Javier, that is our
conceptualization. Reacquired for those who previously lost [Filipino citizenship] by
virtue of Commonwealth Act 63, and retention for those in the future. (Emphasis
supplied)

Considering that petitioner was naturalized as a Canadian citizen prior to the effectivity of R.A.
9225, he belongs to the first category of natural- born Filipinos under the first paragraph of
Section 3 who lost Philippine citizenship by naturalization in a foreign country. As the new law
allows dual citizenship, he was able to re-acquire his Philippine citizenship by taking the
required oath of allegiance.

For the purpose of determining the citizenship of petitioner at the time of filing his MLA, it is
not necessary to discuss the rulings in Frivaldo and Altarejos on the retroactivity of such
reacquisition because R.A. 9225 itself treats those of his category as having already lost
Philippine citizenship, in contradistinction to those natural-born Filipinos who became foreign
citizens after R.A. 9225 came into force. In other words, Section 2 declaring the policy that
considers Filipinos who became foreign citizens as not to have lost their Philippine citizenship,
should be read together with Section 3, the second paragraph of which clarifies that such policy
governs all cases after the new law’s effectivity.

As to the letter-reply of BI, it simply quoted Section 2 of R.A. 9225 without any reference to
Section 3 on the particular application of reacquisition and retention to Filipinos who became
foreign citizens before and after the effectivity of R.A. 9225.

Petitioner’s plea to adopt the interpretation most favorable to the accused is likewise
misplaced. Courts adopt an interpretation more favorable to the accused following the time-
honored principle that penal statutes are construed strictly against the State and liberally in
favor of the accused.23 R.A. 9225, however, is not a penal law.

Falsification of documents under paragraph 1, Article 17224 in relation to Article 17125 of the
RPC refers to falsification by a private individual, or a public officer or employee who did not
take advantage of his official position, of public, private, or commercial documents. The
elements of falsification of documents under paragraph 1, Article 172 of the RPC are:

(1)that the offender is a private individual or a public officer or employee who did not
take advantage of his official position;

(2)that he committed any of the acts of falsification enumerated in Article 171 of the
RPC; and

(3)that the falsification was committed in a public, official or commercial document.26

Petitioner made the untruthful statement in the MLA, a public document, that he is a Filipino
citizen at the time of the filing of said application, when in fact he was then still a Canadian
citizen. Under CA 63, the governing law at the time he was naturalized as Canadian citizen,
naturalization in a foreign country was among those ways by which a natural-born citizen loses
his Philippine citizenship. While he re-acquired Philippine citizenship under R.A. 9225 six
months later, the falsification was already a consummated act, the said law having no
retroactive effect insofar as his dual citizenship status is concerned. The MTC therefore did
not err in finding probable cause for falsification of public document under Article 172,
paragraph 1.

The MTC further cited lack of jurisdiction over the person of petitioner accused as ground for
denying petitioner’s motion for re- determination of probable cause, as the motion was filed
prior to his arrest. However, custody of the law is not required for the adjudication of reliefs
other than an application for bail.27 In Miranda v. Tuliao,28 which involved a motion to quash
warrant of arrest, this Court discussed the distinction between custody of the law and
jurisdiction over the person, and held that jurisdiction over the person of the accused is deemed
waived when he files any pleading seeking an affirmative relief, except in cases when he
invokes the special jurisdiction of the court by impugning such jurisdiction over his person.
Thus:

In arguing, on the other hand, that jurisdiction over their person was already acquired by their
filing of the above Urgent Motion, petitioners invoke our pronouncement, through Justice
Florenz D. Regalado, in Santiago v. Vasquez:

The voluntary appearance of the accused, whereby the court acquires jurisdiction over his
person, is accomplished either by his pleading to the merits (such as by filing a motion to quash
or other pleadings requiring the exercise of the court’s jurisdiction thereover, appearing for
arraignment, entering trial) or by filing bail. On the matter of bail, since the same is intended to
obtain the provisional liberty of the accused, as a rule the same cannot be posted before
custody of the accused has been acquired by the judicial authorities either by his arrest or
voluntary surrender.

Our pronouncement in Santiago shows a distinction between custody of the law and
jurisdiction over the person. Custody of the law is required before the court can act upon the
application for bail, but is not required for the adjudication of other reliefs sought by the
defendant where the mere application therefor constitutes a waiver of the defense of lack of
jurisdiction over the person of the accused. Custody of the law is accomplished either by arrest
or voluntary surrender, while jurisdiction over the person of the accused is acquired upon his
arrest or voluntary appearance. One can be under the custody of the law but not yet subject
to the jurisdiction of the court over his person, such as when a person arrested by virtue of a
warrant files a motion before arraignment to quash the warrant. On the other hand, one can
be subject to the jurisdiction of the court over his person, and yet not be in the custody of the
law, such as when an accused escapes custody after his trial has commenced. Being in the
custody of the law signifies restraint on the person, who is thereby deprived of his own will and
liberty, binding him to become obedient to the will of the law. Custody of the law is literally
custody over the body of the accused. It includes, but is not limited to, detention.

xxxx

While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify that,
as a general rule, one who seeks an affirmative relief is deemed to have submitted to
the jurisdiction of the court. As we held in the aforecited case of Santiago, seeking an
affirmative relief in court, whether in civil or criminal proceedings, constitutes voluntary
appearance.

xxxx

To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the
person of the accused is deemed waived by the accused when he files any pleading
seeking an affirmative relief, except in cases when he invokes the special jurisdiction
of the court by impugning such jurisdiction over his person. Therefore, in narrow cases
involving special appearances, an accused can invoke the processes of the court even though
there is neither jurisdiction over the person nor custody of the law. However, if a person
invoking the special jurisdiction of the court applies for bail, he must first submit himself to the
custody of the law.29 (Emphasis supplied)

Considering that petitioner sought affirmative relief in filing his motion for re-determination of
probable cause, the MTC clearly erred in stating that it lacked jurisdiction over his person.
Notwithstanding such erroneous ground stated in the MTC's order, the RTC correctly ruled
that no grave abuse of discretion was committed by the MTC in denying the said motion for
lack of merit.

WHEREFORE, the petition is DENIED. The Order dated October 8, 2011 of the Regional Trial
Court of Pinamalayan, Oriental Mindoro in Civil Case No. SCA-07-11 (Criminal Case No. 2012)
is hereby AFFIRMED and UPHELD.

With costs against the petitioner.

SO ORDERED.
CASE NO. 11

356 U.S. 44 (1958)

PEREZ
v.
BROWNELL, ATTORNEY GENERAL.

No. 44.

Supreme Court of United States.

Argued May 1, 1957.

Restored to the calendar for reargument June 24, 1957.

Reargued October 28, 1957.

Decided March 31, 1958.[*]

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

45*45 Charles A. Horsky argued the cause for petitioner. With him on the briefs
were Fred Okrand, A. L. Wirin, Jack Wasserman and Salvatore C. J. Fusco.

Oscar H. Davis argued the cause for respondent on the original argument, and
Solicitor General Rankin on the reargument. With them on the briefs were Warren
Olney, III, then Assistant Attorney General, and J. F. Bishop. Beatrice Rosenberg
was also with them on the brief on the reargument.

John W. Willis filed a brief for Mendoza-Martinez, as amicus curiae.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

Petitioner, a national of the United States by birth, has been declared to have lost
his American citizenship by operation of the Nationality Act of 1940, 54 Stat. 1137,
as amended by the Act of September 27, 1944, 58 Stat. 746. Section 401 of that
Act[1] provided that

"A person who is a national of the United States, whether by birth or naturalization,
shall lose his nationality by:

.....

"(e) Voting in a political election in a foreign state or participating in an election

or plebiscite to determine the sovereignty over foreign territory; or

.....

46*46 "(j) Departing from or remaining outside of the jurisdiction of the United States
in time of war or during a period declared by the President to be a period of
national emergency for the purpose of evading or avoiding training and service
in the land or naval forces of the United States."

He seeks a reversal of the judgment against him on the ground that these
provisions were beyond the power of Congress to enact.

Petitioner was born in Texas in 1909. He resided in the United States until 1919 or
1920, when he moved with his parents to Mexico, where he lived, apparently
without interruption, until 1943. In 1928 he was informed that he had been born in
Texas. At the outbreak of World War II, petitioner knew of the duty of male United
States citizens to register for the draft, but he failed to do so. In 1943 he applied for
admission to the United States as an alien railroad laborer, stating that he was a
native-born citizen of Mexico, and was granted permission to enter on a
temporary basis. He returned to Mexico in 1944 and shortly thereafter applied for
and was granted permission, again as a native-born Mexican citizen, to enter the
United States temporarily to continue his employment as a railroad laborer. Later
in 1944 he returned to Mexico once more. In 1947 petitioner applied for admission
to the United States at El Paso, Texas, as a citizen of the United States. At a Board
of Special Inquiry hearing (and in his subsequent appeals to the Assistant
Commissioner and the Board of Immigration Appeals), he admitted having
remained outside of the United States to avoid military service and having voted
in political elections in Mexico. He was ordered excluded on the ground that he
had expatriated himself; this order was affirmed on appeal. In 1952 petitioner,
claiming to be a native-born citizen of Mexico, 47*47 was permitted to enter the
United States as an alien agricultural laborer. He surrendered in 1953 to
immigration authorities in San Francisco as an alien unlawfully in the United States
but claimed the right to remain by virtue of his American citizenship. After a
hearing before a Special Inquiry Officer, he was ordered deported as an alien not
in possession of a valid immigration visa; this order was affirmed on appeal to the
Board of Immigration Appeals.

Petitioner brought suit in 1954 in a United States District Court for a judgment
declaring him to be a national of the United States.[2] The Court, sitting without a
jury, found (in addition to the undisputed facts set forth above) that petitioner had
remained outside of the United States from November 1944 to July 1947 for the
purpose of avoiding service in the armed forces of the United States and that he
had voted in a "political election" in Mexico in 1946. The court, concluding that he
had thereby expatriated himself, denied the relief sought by the petitioner. The
United States Court of Appeals for the Ninth Circuit affirmed. 235 F. 2d 364. We
granted certiorari because of the constitutional questions raised by the petitioner.
352 U. S. 908.

48*48 Statutory expatriation, as a response to problems of international relations,

was first introduced just a half century ago. Long before that, however, serious
friction between the United States and other nations had stirred consideration of
modes of dealing with the difficulties that arose out of the conflicting claims to the
allegiance of foreign-born persons naturalized in the United States, particularly
when they returned to the country of their origin.

As a starting point for grappling with this tangle of problems, Congress in 1868
formally announced the traditional policy of this country that it is the "natural and
inherent right of all people" to divest themselves of their allegiance to any state,
15 Stat. 223, R. S. § 1999. Although the impulse for this legislation had been the
refusal by other nations, notably Great Britain, to recognize a right in naturalized
Americans who had been their subjects to shed that former allegiance, the Act of
1868 was held by the Attorney General to apply to divestment by native-born and
naturalized Americans of their United States citizenship. 14 Op. Atty. Gen. 295, 296.
In addition, while the debate on the Act of 1868 was proceeding, negotiations
were completed on the first of a series of treaties for the adjustment of some of
the disagreements that were constantly arising between the United States and
other nations concerning citizenship. These instruments typically provided that
each of the signatory nations would regard as a citizen of the other such of its own
citizens as became naturalized by the other. E. g., Treaty with the North German
Confederation, Feb. 22, 1868, 2 Treaties, Conventions, International Acts, etc.
(comp. Malloy, 1910), 1298. This series of treaties initiated this country's policy of
automatic divestment of citizenship for specified conduct affecting our foreign
relations.
49*49 On the basis, presumably, of the Act of 1868 and such treaties as were in
force, it was the practice of the Department of State during the last third of the
nineteenth century to make rulings as to forfeiture of United States citizenship by
individuals who performed various acts abroad. See Borchard, Diplomatic
Protection of Citizens Abroad, §§ 319, 324. Naturalized citizens who returned to the
country of their origin were held to have abandoned their citizenship by such
actions as accepting public office there or assuming political duties. See Davis to
Weile, Apr. 18, 1870, 3 Moore, Digest of International Law, 737; Davis to Taft, Jan.
18, 1883, 3 id., at 739. Native-born citizens of the United States (as well as
naturalized citizens outside of the country of their origin) were generally deemed
to have lost their American citizenship only if they acquired foreign citizenship. See
Bayard to Suzzara-Verdi, Jan. 27, 1887, 3 id., at 714; see also Comitis v. Parkerson,
56 F. 556, 559.

No one seems to have questioned the necessity of having the State Department,
in its conduct of the foreign relations of the Nation, pass on the validity of claims
to American citizenship and to such of its incidents as the right to diplomatic
protection. However, it was recognized in the Executive Branch that the
Department had no specific legislative authority for nullifying citizenship, and
several of the Presidents urged Congress to define the acts by which citizens
should be held to have expatriated themselves. E. g., Message of President Grant
to Congress, Dec. 7, 1874, 7 Messages and Papers of the Presidents (Richardson
ed. 1899) 284, 291-292. Finally in 1906, during the consideration of the bill that
became the Naturalization Act of 1906, a Senate resolution and a
recommendation of the House Committee on Foreign Affairs called for an
examination of the problems relating to American citizenship, expatriation and
protection 50*50 abroad. In response to these suggestions the Secretary of State
appointed the Citizenship Board of 1906, composed of the Solicitor of the State
Department, the Minister to the Netherlands and the Chief of the Passport Bureau.
The board conducted a study and late in 1906 made an extensive report with
recommendations for legislation.

Among the recommendations of the board were that expatriation of a citizen "be
assumed" when, in time of peace, he became naturalized in a foreign state,
engaged in the service of a foreign state where such service involved the taking
of an oath of allegiance to that state, or domiciled in a foreign state for five years
with no intention to return. Citizenship of the United States, Expatriation, and
Protection Abroad, H. R. Doc. No. 326, 59th Cong., 2d Sess. 23. It also
recommended that an American woman who married a foreigner be regarded
as losing her American citizenship during coverture. Id., at 29. As to the first two
recommended acts of expatriation, the report stated that "no man should be
permitted deliberately to place himself in a position where his services may be
claimed by more than one government and his allegiance be due to more than
one." Id., at 23. As to the third, the board stated that more and more Americans
were going abroad to live "and the question of their protection causes increasing
embarrassment to this Government in its relations with foreign powers." Id., at 25.

Within a month of the submission of this report a bill was introduced in the House
by Representative Perkins of New York based on the board's recommendations.
Perkins' bill provided that a citizen would be "deemed to have expatriated himself"
when, in peacetime, he became naturalized in a foreign country or took an oath
of allegiance to a foreign state; it was presumed that a naturalized citizen who
resided for five years in a foreign state had 51*51 ceased to be an American
citizen, and an American woman who married a foreigner would take the
nationality of her husband. 41 Cong. Rec. 1463-1464. Perkins stated that the bill
was designed to discourage people from evading responsibilities both to other
countries and to the United States and "to save our Government [from] becoming
involved in any trouble or question with foreign countries where there is no just
reason." Id., at 1464. What little debate there was on the bill centered around the
foreign domicile provision; no constitutional issue was canvassed. The bill passed
the House, and, after substantially no debate and the adoption of a committee
amendment adding a presumption of termination of citizenship for a naturalized
citizen who resided for two years in the country of his origin, 41 Cong. Rec. 4116,
the Senate passed it and it became the Expatriation Act of 1907. 34 Stat. 1228.

The question of the power of Congress to enact legislation depriving individuals of

their American citizenship was first raised in the courts by Mackenzie v. Hare, 239
U. S. 299. The plaintiff in that action, Mrs. Mackenzie, was a native-born citizen and
resident of the United States. In 1909 she married a subject of Great Britain and
continued to reside with him in the United States. When, in 1913, she applied to the
defendants, members of a board of elections in California, to be registered as a
voter, her application was refused on the ground that by reason of her marriage
she had ceased to be a citizen of the United States. Her petition for a writ of
mandamus was denied in the state courts of California, and she sued out a writ of
error here, claiming that if the Act of 1907 was intended to apply to her it was
beyond the power of Congress. The Court, through Mr. Justice McKenna, after
finding that merging the identity of husband and wife, as Congress had done in
this instance, had 52*52 a "purpose and, it may be, necessity, in international
policy," continued:

"As a government, the United States is invested with all the attributes of
sovereignty. As it has the character of nationality it has the powers of nationality,
especially those which concern its relations and intercourse with other countries.
We should hesitate long before limiting or embarrassing such powers. . . . We
concur with counsel that citizenship is of tangible worth, and we sympathize with
plaintiff in her desire to retain it and in her earnest assertion of it. But there is
involved more than personal considerations. As we have seen, the legislation was
urged by conditions of national moment. . . . It is the conception of the legislation
under review that such an act may bring the Government into embarrassments
and, it may be, into controversies. . . ." 239 U. S., at 311-312.

The Court observed that voluntary marriage of an American woman with a

foreigner may have the same consequences, and "involve national complications
of like kind," as voluntary expatriation in the traditional sense. It concluded: "This is
no arbitrary exercise of government." 239 U. S., at 312. See also Ex parte Griffin, 237
F. 445; Ex parte Ng Fung Sing, 6 F. 2d 670.

By the early 1930's, the American law on nationality, including naturalization and
denationalization, was expressed in a large number of provisions scattered
throughout the statute books. Some of the specific laws enacted at different times
seemed inconsistent with others, some problems of growing importance had
emerged that Congress had left unheeded. At the request of the House
Committee on Immigration and Naturalization, see 86 Cong. Rec. 11943, President
Franklin D. Roosevelt established a Committee composed of the Secretary of
State, 53*53 the Attorney General and the Secretary of Labor to review the
nationality laws of the United States, to recommend revisions and to codify the
nationality laws into one comprehensive statute for submission to Congress; he
expressed particular concern about "existing discriminations" in the law. Exec.
Order No. 6115, Apr. 25, 1933. The necessary research for such a study was
entrusted to specialists representing the three departments. Five years were spent
by these officials in the study and formulation of a draft code. In their letter
submitting the draft code to the President after it had been reviewed within the
Executive Branch, the Cabinet Committee noted the special importance of the
provisions concerning loss of nationality and asserted that none of these provisions
was "designed to be punitive or to interfere with freedom of action"; they were
intended to deprive of citizenship those persons who had shown that "their real
attachment is to the foreign country and not to the United States." Codification of
the Nationality Laws of the United States, H. R. Comm. Print, Pt. 1, 76th Cong., 1st
Sess. V-VII.

The draft code of the Executive Branch was an omnibus bill in five chapters. The
chapter relating to "Loss of Nationality" provided that any citizen should "lose his
nationality" by becoming naturalized in a foreign country; taking an oath of
allegiance to a foreign state; entering or serving in the armed forces of a foreign
state; being employed by a foreign government in a post for which only nationals
of that country are eligible; voting in a foreign political election or plebiscite; using
a passport of a foreign state as a national thereof; formally renouncing American
citizenship before a consular officer abroad; deserting the armed forces of the
United States in wartime (upon conviction by court martial); if a naturalized citizen,
residing in the state of his former nationality or birth for two years if he thereby
acquires the nationality of that state; or, if a naturalized citizen, 54*54 residing in
the state of his former nationality or birth for three years. Id., at 66-76.

In support of the recommendation of voting in a foreign political election as an

act of expatriation, the Committee reported:

"Taking an active part in the political affairs of a foreign state by voting in a political
election therein is believed to involve a political attachment and practical
allegiance thereto which is inconsistent with continued allegiance to the United
States, whether or not the person in question has or acquires the nationality of the
foreign state. In any event it is not believed that an American national should be
permitted to participate in the political affairs of a foreign state and at the same
time retain his American nationality. The two facts would seem to be inconsistent
with each other." Id., at 67.

As to the reference to plebiscites in the draft language, the report states: "If this
provision had been in effect when the Saar Plebiscite was held, Americans voting
in it would have been expatriated." Ibid. It seems clear that the most immediate
impulse for the entire voting provision was the participation by many naturalized
Americans in the plebiscite to determine sovereignty over the Saar in January
1935. H. R. Rep. No. 216, 74th Cong., 1st Sess. 1. Representative Dickstein of New
York, Chairman of the House Committee on Immigration and Naturalization, who
had called the plebiscite an "international dispute" in which naturalized American
citizens could not properly participate, N. Y. Times, Jan. 4, 1935, p. 12, col. 3, had
introduced a bill in the House in 1935 similar in language to the voting provisions in
the draft code, 79 Cong. Rec. 2050, but, although it was favorably reported, the
House did not pass it.

55*55 In June 1938 the President submitted the Cabinet Committee's draft code
and the supporting report to Congress. In due course, Chairman Dickstein
introduced the code as H. R. 6127, and it was referred to his committee. In early
1940 extensive hearings were held before both a subcommittee and the full
committee at which the interested Executive Branch agencies and others
testified. With respect to the voting provision, Chairman Dickstein spoke of the
Americans who had voted in the Saar plebiscite and said, "If they are American
citizens they had no right to vote, to interfere with foreign matters or political
subdivision." Hearings before the House Committee on Immigration and
Naturalization on H. R. 6127, 76th Cong., 1st Sess. 287. Mr. Flournoy, Assistant Legal
Adviser of the State Department, said that the provision would be "particularly
applicable" to persons of dual nationality, id., at 132; however, a suggestion that
the provision be made applicable only to dual nationals, id., at 398, was not
adopted.

Upon the conclusion of the hearings in June 1940 a new bill was drawn up and
introduced as H. R. 9980. The only changes from the Executive Branch draft with
respect to the acts of expatriation were the deletion of using a foreign passport
and the addition of residence by a naturalized citizen for five years in any foreign
country as acts that would result in loss of nationality. 86 Cong. Rec. 11960-11961.
The House debated the bill for a day in September 1940. In briefly summarizing the
loss of nationality provisions of the bill, Chairman Dickstein said that "this bill would
put an end to dual citizenship and relieve this country of the responsibility of those
who reside in foreign lands and only claim citizenship when it serves their purpose."
Id., at 11944. Representative Rees of Kansas, who had served as chairman of the
subcommittee that studied the draft code, said that clarifying 56*56 legislation
was needed, among other reasons, "because of the duty of the Government to
protect citizens abroad." Id., at 11947. The bill passed the House that same day.
Id., at 11965.

In the Senate also, after a favorable report from the Committee on Immigration,
the bill was debated very briefly. Committee amendments were adopted making
the provision on foreign military service applicable only to dual nationals, making
treason an act of expatriation and providing a procedure by which persons
administratively declared to have expatriated themselves might obtain judicial
determinations of citizenship. The bill as amended was passed. Id., at 12817-12818.
The House agreed to these and all other amendments on which the Senate
insisted, id., at 13250, and, on October 14, the Nationality Act of 1940 became
law. 54 Stat. 1137.

The loss of nationality provisions of the Act constituted but a small portion of a long
omnibus nationality statute. It is not surprising, then, that they received as little
attention as they did in debate and hearings and that nothing specific was said
about the constitutional basis for their enactment. The bill as a whole was
regarded primarily as a codification—and only secondarily as a revision —of
statutes that had been in force for many years, some of them, such as the
naturalization provisions, having their beginnings in legislation 150 years old. It is
clear that, as is so often the case in matters affecting the conduct of foreign
relations, Congress was guided by and relied very heavily upon the advice of the
Executive Branch, and particularly the State Department. See, e. g., 86 Cong. Rec.
11943-11944. In effect, Congress treated the Cabinet Committee as it normally
does its own committees charged with studying a problem and formulating
legislation. These considerations emphasize the importance, in the inquiry into
congressional power in this field, of keeping in mind the historical background
57*57 of the challenged legislation, for history will disclose the purpose fairly
attributable to Congress in enacting the statute.

The first step in our inquiry must be to answer the question: what is the source of
power on which Congress must be assumed to have drawn? Although there is in
the Constitution no specific grant to Congress of power to enact legislation for the
effective regulation of foreign affairs, there can be no doubt of the existence of
this power in the law-making organ of the Nation. See United States v. Curtiss-
Wright Export Corp., 299 U. S. 304, 318; Mackenzie v. Hare, 239 U. S. 299, 311-312.
The States that joined together to form a single Nation and to create, through the
Constitution, a Federal Government to conduct the affairs of that Nation must be
held to have granted that Government the powers indispensable to its functioning
effectively in the company of sovereign nations. The Government must be able
not only to deal affirmatively with foreign nations, as it does through the
maintenance of diplomatic relations with them and the protection of American
citizens sojourning within their territories. It must also be able to reduce to a
minimum the frictions that are unavoidable in a world of sovereigns sensitive in
matters touching their dignity and interests.

The inference is fairly to be drawn from the congressional history of the Nationality
Act of 1940, read in light of the historical background of expatriation in this country,
that, in making voting in foreign elections (among other behavior) an act of
expatriation, Congress was seeking to effectuate its power to regulate foreign
affairs. The legislators, counseled by those on whom they rightly relied for advice,
were concerned about actions by citizens in foreign countries that create
problems of protection and are inconsistent with American allegiance. Moreover,
we cannot ignore the fact that embarrassments 58*58 in the conduct of foreign
relations were of primary concern in the consideration of the Act of 1907, of which
the loss of nationality provisions of the 1940 Act are a codification and expansion.

Broad as the power in the National Government to regulate foreign affairs must
necessarily be, it is not without limitation. The restrictions confining Congress in the
exercise of any of the powers expressly delegated to it in the Constitution apply
with equal vigor when that body seeks to regulate our relations with other nations.
Since Congress may not act arbitrarily, a rational nexus must exist between the
content of a specific power in Congress and the action of Congress in carrying
that power into execution. More simply stated, the means—in this case,
withdrawal of citizenship—must be reasonably related to the end—here,
regulation of foreign affairs. The inquiry —and, in the case before us, the sole
inquiry—into which this Court must enter is whether or not Congress may have
concluded not unreasonably that there is a relevant connection between this
fundamental source of power and the ultimate legislative action.[3]

59*59 Our starting point is to ascertain whether the power of Congress to deal with
foreign relations may reasonably be deemed to include a power to deal generally
with the active participation, by way of voting, of American citizens in foreign
political elections. Experience amply attests that, in this day of extensive
international travel, rapid communication and widespread use of propaganda,
the activities of the citizens of one nation when in another country can easily
cause serious embarrassments to the government of their own country as well as
to their fellow citizens. We cannot deny to Congress the reasonable belief that
these difficulties might well become acute, to the point of jeopardizing the
successful conduct of international relations, when a citizen of one country
chooses to participate in the political or governmental affairs of another country.
The citizen may by his action unwittingly promote or encourage a course of
conduct contrary to the interests of his own government; moreover, the people or
government of the foreign country may regard his action to be the action of his
government, or at least as a reflection if not an expression of its policy. Cf. Preuss,
International Responsibility for Hostile Propaganda Against Foreign States, 28 Am.
J. Int'l L. 649, 650.

It follows that such activity is regulable by Congress under its power to deal with
foreign affairs. And it must be regulable on more than an ad hoc basis. The subtle
influences and repercussions with which the Government must deal make it
reasonable for the generalized, although clearly limited, category of "political
election" to be used in defining the area of regulation. That description carries with
it the scope and meaning of its context and purpose; classes of elections—
nonpolitical in the colloquial 60*60 sense—as to which participation by Americans
could not possibly have any effect on the relations of the United States with
another country are excluded by any rational construction of the phrase. The
classification that Congress has adopted cannot be said to be inappropriate to
the difficulties to be dealt with. Specific applications are of course open to judicial
challenge, as are other general categories in the law, by a "gradual process of
judicial inclusion and exclusion." Davidson v. New Orleans, 96 U. S. 97, 104.[4]

The question must finally be faced whether, given the power to attach some sort
of consequence to voting in a foreign political election. Congress, acting under
the Necessary and Proper Clause, Art. I, § 8, cl. 18, could attach loss of nationality
to it. Is the means, withdrawal of citizenship, reasonably calculated to effect the
end that is within the power of Congress to achieve, the avoidance of
embarrassment in the conduct of our foreign relations attributable to voting by
American citizens in foreign political elections? The importance and extreme
delicacy of the matters here sought to be regulated demand that Congress be
permitted ample scope in selecting appropriate modes for accomplishing its
purpose. The critical connection between this conduct and loss of citizenship is
the fact that it is the possession of American citizenship by a person committing
the act that makes the act potentially embarrassing to the American Government
and pregnant with the possibility of embroiling this country in disputes with other
nations. The termination of citizenship terminates the problem. Moreover, the fact
is not without significance that Congress has interpreted 61*61 this conduct, not
irrationally, as importing not only something less than complete and unswerving
allegiance to the United States but also elements of an allegiance to another
country in some measure, at least, inconsistent with American citizenship.

Of course, Congress can attach loss of citizenship only as a consequence of

conduct engaged in voluntarily. See Mackenzie v. Hare, 239 U. S. 299, 311-312. But
it would be a mockery of this Court's decisions to suggest that a person, in order
to lose his citizenship, must intend or desire to do so. The Court only a few years
ago said of the person held to have lost her citizenship in Mackenzie v. Hare, supra:
"The woman had not intended to give up her American citizenship." Savorgnan v.
United States, 338 U. S. 491, 501. And the latter case sustained the
denationalization of Mrs. Savorgnan although it was not disputed that she "had no
intention of endangering her American citizenship or of renouncing her allegiance
to the United States." 338 U. S., at 495.[5] What both women did do voluntarily was
to engage in conduct to which Acts of Congress attached the consequence of
denationalization irrespective of—and, in those cases, absolutely contrary to—the
intentions and desires of the individuals. Those two cases mean nothing—indeed,
they are deceptive—if their essential significance is not rejection of the notion that
the power of Congress to terminate citizenship depends upon the citizen's assent.
It is a distortion of those cases to explain them away on a theory that a citizen's
assent to denationalization may be inferred from his having engaged in conduct
that amounts to an "abandonment of citizenship" or a "transfer 62*62 of
allegiance." Certainly an Act of Congress cannot be invalidated by resting
decisive precedents on a gross fiction—a fiction baseless in law and contradicted
by the facts of the cases.

It cannot be said, then, that Congress acted without warrant when, pursuant to its
power to regulate the relations of the United States with foreign countries, it
provided that anyone who votes in a foreign election of significance politically in
the life of another country shall lose his American citizenship. To deny the power
of Congress to enact the legislation challenged here would be to disregard the
constitutional allocation of governmental functions that it is this Court's solemn
duty to guard.

Because of our view concerning the power of Congress with respect to § 401 (e)
of the Nationality Act of 1940, we find it unnecessary to consider—indeed, it would
be improper for us to adjudicate—the constitutionality of § 401 (j), and we
expressly decline to rule on that important question at this time.

Judgment affirmed.

MR. CHIEF JUSTICE WARREN, with whom MR. JUSTICE BLACK and MR. JUSTICE
DOUGLAS join, dissenting.

The Congress of the United States has decreed that a citizen of the United States
shall lose his citizenship by performing certain designated acts.[1] The petitioner in
63*63 this case, a native-born American,[2] is declared to have lost his citizenship
by voting in a foreign election.[3] Whether this forfeiture of citizenship exceeds the
bounds of the Constitution is the issue before us. The problem is fundamental and
must be resolved upon fundamental considerations.

Generally, when congressional action is challenged, constitutional authority is

found in the express and implied powers with which the National Government has
been invested or in those inherent powers that are necessary attributes of a
sovereign state. The sweep of those powers is surely broad. In appropriate
circumstances, they are adequate to take away life itself. The initial 64*64 question
here is whether citizenship is subject to the exercise of these general powers of
government.

What is this Government, whose power is here being asserted? And what is the
source of that power? The answers are the foundation of our Republic. To secure
the inalienable rights of the individual, "Governments are instituted among Men,
deriving their just powers from the consent of the governed." I do not believe the
passage of time has lessened the truth of this proposition. It is basic to our form of
government. This Government was born of its citizens, it maintains itself in a
continuing relationship with them, and, in my judgment, it is without power to sever
the relationship that gives rise to its existence. I cannot believe that a government
conceived in the spirit of ours was established with power to take from the people
their most basic right.

Citizenship is man's basic right for it is nothing less than the right to have rights.
Remove this priceless possession and there remains a stateless person, disgraced
and degraded in the eyes of his countrymen. He has no lawful claim to protection
from any nation, and no nation may assert rights on his behalf.[4] His very existence
is at the sufferance of the state within whose borders he happens to be. In this
country the expatriate would presumably enjoy, at most, only the limited rights
and privileges of aliens,[5] and like the alien he might even 65*65 be subject to
deportation and thereby deprived of the right to assert any rights.[6] This
government was not established with power to decree this fate.

The people who created this government endowed it with broad powers. They
created a sovereign state with power to function as a sovereignty. But the citizens
themselves are sovereign, and their citizenship is not subject to the general powers
of their government. Whatever may be the scope of its powers to regulate the
conduct and affairs of all persons within its jurisdiction, a government of the people
cannot take away their citizenship simply because one branch of that
government can be said to have a conceivably rational basis for wanting to do
so.
The basic constitutional provision crystallizing the right of citizenship is the first
sentence of section one of the Fourteenth Amendment. It is there provided that
"All persons born or naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the 66*66 United States and of the State wherein they
reside." United States citizenship is thus the constitutional birth-right of every person
born in this country. This Court has declared that Congress is without power to alter
this effect of birth in the United States, United States v. Wong Kim Ark, 169 U. S. 649,
703. The Constitution also provides that citizenship can be bestowed under a
"uniform Rule of Naturalization,"[7] but there is no corresponding provision
authorizing divestment. Of course, naturalization unlawfully procured can be set
aside.[8] But apart from this circumstance, the status of the naturalized citizen is
secure. As this Court stated in Osborn v. Bank of the United States, 9 Wheat. 738,
827:

"[The naturalized citizen] becomes a member of the society, possessing all the
rights of a native citizen, and standing, in the view of the constitution, on the
footing of a native. The constitution does not authorize Congress to enlarge or
abridge those rights. The simple power of the national Legislature, is to prescribe a
uniform rule of naturalization, and the exercise of this power exhausts it, so far as
respects the individual." (Emphasis added.)

Under our form of government, as established by the Constitution, the citizenship

of the lawfully naturalized and the native-born cannot be taken from them.

There is no question that citizenship may be voluntarily relinquished. The right of

voluntary expatriation was recognized by Congress in 1868.[9] Congress declared
that "the right of expatriation is a natural and inherent 67*67 right of all people . . .
."[10] Although the primary purpose of this declaration was the protection of our
naturalized citizens from the claims of their countries of origin, the language was
properly regarded as establishing the reciprocal right of American citizens to
abjure their allegiance.[11] In the early days of this Nation the right of expatriation
had been a matter of controversy. The common-law doctrine of perpetual
allegiance was evident in the opinions of this Court.[12] And, although impressment
of naturalized American seamen of British birth was a cause of the War of 1812,
the executive officials of this Government were not unwavering in their support of
the right of expatriation.[13] Prior to 1868 all efforts to obtain congressional
enactments concerning expatriation failed.[14] The doctrine of perpetual
allegiance, however, was so ill-suited to the growing nation whose doors were
open to immigrants from abroad that it could not last. Nine years before Congress
acted Attorney General Black stated the American position in a notable
opinion:[15]

"Here, in the United States, the thought of giving it [the right of expatriation] up
cannot be entertained for a moment. Upon that principle this country was
populated. We owe to it our existence as a nation. 68*68 Ever since our
independence we have upheld and maintained it by every form of words and
acts. We have constantly promised full and complete protection to all persons
who should come here and seek it by renouncing their natural allegiance and
transferring their fealty to us. We stand pledged to it in the face of the whole
world."

It has long been recognized that citizenship may not only be voluntarily renounced
through exercise of the right of expatriation but also by other actions in derogation
of undivided allegiance to this country.[16] While the essential qualities of the
citizen-state relationship under our Constitution preclude the exercise of
governmental power to divest United States citizenship, the establishment of that
relationship did not impair the principle that conduct of a citizen showing a
voluntary transfer of allegiance is an abandonment of citizenship. Nearly all
sovereignties recognize that acquisition of foreign nationality ordinarily shows a
renunciation of citizenship.[17] Nor is this the only act by which the citizen may show
a voluntary abandonment of his citizenship. Any action by which he manifests
allegiance to a foreign state may be so inconsistent with the retention of
citizenship as to result in loss of that status.[18] In recognizing the consequence of
such action, the Government is not taking away United States citizenship to
implement its general regulatory powers, for, as previously indicated, in my
judgment citizenship is immune from divestment under these 69*69 powers. Rather,
the Government is simply giving formal recognition to the inevitable consequence
of the citizen's own voluntary surrender of his citizenship.

Twice before, this Court has recognized that certain voluntary conduct results in
an impairment of the status of citizenship. In Savorgnan v. United States, 338 U. S.
491, an American citizen had renounced her citizenship and acquired that of a
foreign state. This Court affirmed her loss of citizenship, recognizing that "From the
beginning, one of the most obvious and effective forms of expatriation has been
that of naturalization under the laws of another nation." 338 U. S., at 498.
Mackenzie v. Hare, 239 U. S. 299, involved an American woman who had married
a British national. That decision sustained an Act of Congress which provided that
her citizenship was suspended for the duration of her marriage. Since it is
sometimes asserted that this case is authority for the broad proposition that
Congress can take away United States citizenship, it is necessary to examine
precisely what the case involved.

The statute which the Court there sustained did not divest Mrs. Mackenzie of her
citizenship.[19] It provided that "any American woman who marries a foreigner shall
take the nationality of her husband."[20] "At the termination 70*70 of the marital
relation," the statute continues, "she may resume her American citizenship . . . ."
(Emphasis added.) Her citizenship was not taken away; it was held in abeyance.

This view of the statute is borne out by its history. The 1907 Act was passed after the
Department of State had responded to requests from both houses of Congress for
a comprehensive study of our own and foreign nationality laws, together with
recommendations for new legislation.[21] One of those recommendations,
substantially incorporated in the 1907 Act, was as follows:[22]

"That an American woman who marries a foreigner shall take during coverture the
nationality of her husband; but upon termination of the marital relation by death
or absolute divorce she may revert to her American citizenship by registering within
one year as an American citizen at the most convenient American consulate or
by returning to reside in the 71*71 United States if she is abroad; or if she is in the
United States by continuing to reside therein." (Emphasis added.)

This principle of "reversion of citizenship" was a familiar one in our own law,[23] and
the law of foreign states.[24] The statute was merely declarative of the law as it was
then 72*72 understood.[25] Although the opinion in Mackenzie v. Hare contains
some reference to termination of citizenship, the reasoning is consistent with the
terms of the statute that was upheld. Thus, the Court speaks of Mrs. Mackenzie's
having entered a "condition," 239 U. S., at 312, not as having surrendered her
citizenship. "Therefore," the Court concludes, "as long as the relation lasts it is made
tantamount to expatriation." Ibid. (Emphasis added.)

A decision sustaining a statute that relies upon the unity of interest in the marital
community—a common-law fiction now largely a relic of the past—may itself be
outdated.[26] However that may be, the foregoing demonstrates 73*73 that
Mackenzie v. Hare should not be understood to sanction a power to divest
citizenship. Rather this case, like Savorgnan, simply acknowledges that United
States citizenship can be abandoned, temporarily or permanently, by conduct
showing a voluntary transfer of allegiance to another country.

The background of the congressional enactment pertinent to this case indicates

that Congress was proceeding generally in accordance with this approach. After
the initial congressional designation in 1907 of certain actions that were deemed
to be an abandonment of citizenship, it became apparent that further
clarification of the problem was necessary. In 1933 President Roosevelt, acting at
the request of the House Committee on Immigration and Naturalization,[27]
established a Committee of Cabinet members to prepare a codification and
revision of the nationality laws.[28] The Committee, composed of the Secretary of
State, the Attorney General and the Secretary of Labor, spent five years preparing
the codification that became the Nationality Act of 1940 and submitted their draft
in 1938. It is evident that this Committee did not believe citizenship could be
divested under the Government's general regulatory powers. Rather, it adopted
the position that the citizen abandons his status by compromising his allegiance.
In its letter submitting the proposed codification to the President, the Committee
described the loss-of-nationality provisions in these words:[29]

"They are merely intended to deprive persons of American nationality when such
persons, by their own acts, or inaction, show that their real attachment is to the
foreign country and not to the United States." (Emphasis added.)

74*74 Furthermore, when the draft code was first discussed by the House
Committee on Immigration and Naturalization —the only legislative group that
subjected the codification to detailed examination[30]—it was at once recognized
that the status of citizenship was protected from congressional control by the
Fourteenth Amendment. In considering the situation of a native-born child of alien
parentage, Congressmen Poage and Rees, members of the committee, and
Richard Flournoy, the State Department representative, engaged in the following
colloquy:[31]

"Mr. POAGE. Isn't that based on the constitutional provision that all persons born in
the United States are citizens thereof?

"Mr. FLOURNOY. Yes.

"Mr. POAGE. In other words, it is not a matter we have any control over.

"Mr. FLOURNOY. No; and no one wants to change that.

"Mr. POAGE. No one wants to change that, of course.

"Mr. FLOURNOY. We have control over citizens born abroad, and we also have
control over the question of expatriation. We can provide for expatriation. No one
proposes to change the constitutional provisions.

"Mr. REES. We cannot change the citizenship of a man who went abroad, who
was born in the United States.

"Mr. FLOURNOY. You can make certain acts of his result in a loss of citizenship.

"Mr. REES. Surely, that way."

75*75 It is thus clear that the purpose governing the formulation of most of the loss-
of-nationality provisions of the codification was the specification of acts that
would of themselves show a voluntary abandonment of citizenship. Congress did
not assume it was empowered to use denationalization as a weapon to aid in the
exercise of its general powers. Nor should we.

Section 401 (e) of the 1940 Act added a new category of conduct that would
result in loss of citizenship:

"Voting in a political election in a foreign state or participating in an election or

plebiscite to determine the sovereignty over foreign territory . . . ."

The conduct described was specifically represented by Mr. Flournoy to the House
Committee as indicative of "a choice of the foreign nationality," just like "using a
passport of a foreign state as a national thereof."[32]

The precise issue posed by Section 401 (e) is whether the conduct it describes
invariably involves a dilution of undivided allegiance sufficient to show a voluntary
abandonment of citizenship. Doubtless under some circumstances a vote in a
foreign election would have this effect. For example, abandonment of citizenship
might result if the person desiring to vote had to become a foreign national or
represent himself to be one.[33] Conduct of this sort is apparently what Mr. Flournoy
had in mind when he discussed with the committee the situation of an American-
born youth who had acquired Canadian citizenship through the naturalization of
his parents. Mr. Flournoy suggested that the young man might manifest 76*76 an
election of nationality by taking advantage of his Canadian citizenship and voting
"as a Canadian."[34] And even the situation that bothered Committee Chairman
Dickstein—Americans voting in the Saar plebiscite —might under some
circumstances disclose conduct tantamount to dividing allegiance.
Congressman Dickstein expressed his concern as follows:[35]

"I know we have had a lot of Nazis, so-called American citizens, go to Europe who
have voted in the Saar for the annexation of territory to Germany, and Germany
says that they have the right to participate and to vote, and yet they are
American citizens."

There might well be circumstances where an American shown to have voted at

the behest of a foreign government to advance its territorial interests would
compromise his native allegiance.

The fatal defect in the statute before us is that its application is not limited to those
situations that may rationally be said to constitute an abandonment of citizenship.
In specifying that any act of voting in a foreign political election results in loss of
citizenship, Congress has employed a classification so broad that it encompasses
conduct that fails to show a voluntary abandonment of American citizenship.[36]
"The connection between the fact proved and that presumed is not sufficient."
Manley v. Georgia, 279 U. S. 1, 7; see also Tot v. United States, 319 U. S. 463; Bailey
v. Alabama, 219 U. S. 219. The 77*77 reach of this statute is best indicated by a
decision of a former attorney general, holding that an American citizen lost her
citizenship under Section 401 (e) by voting in an election in a Canadian town on
the issue of whether beer and wine should be sold.[37] Voting in a foreign election
may be a most equivocal act, giving rise to no implication that allegiance has
been compromised. Nothing could demonstrate this better than the political
history of this country. It was not until 1928 that a presidential election was held in
this country in which no alien was eligible to vote.[38] Earlier in our history at least 22
States had extended the franchise to aliens. It cannot be seriously contended that
this Nation understood the vote of each alien who previously took advantage of
this privilege to be an act of allegiance to this country, jeopardizing the alien's
native citizenship. How then can we attach such significance to any vote of a
United States citizen in a foreign election? It is also significant that of 84 nations
whose nationality laws have been compiled by the United Nations, only this
country specifically designates foreign voting as an expatriating act.[39]

My conclusions are as follows. The Government is without power to take citizenship

away from a native-born or lawfully naturalized American. The Fourteenth 78*78
Amendment recognizes that this priceless right is immune from the exercise of
governmental powers. If the Government determines that certain conduct by
United States citizens should be prohibited because of anticipated injurious
consequences to the conduct of foreign affairs or to some other legitimate
governmental interest, it may within the limits of the Constitution proscribe such
activity and assess appropriate punishment. But every exercise of governmental
power must find its source in the Constitution. The power to denationalize is not
within the letter or the spirit of the powers with which our Government was
endowed. The citizen may elect to renounce his citizenship, and under some
circumstances he may be found to have abandoned his status by voluntarily
performing acts that compromise his undivided allegiance to his country. The
mere act of voting in a foreign election, however, without regard to the
circumstances attending the participation, is not sufficient to show a voluntary
abandonment of citizenship. The record in this case does not disclose any of the
circumstances under which this petitioner voted. We know only the bare fact that
he cast a ballot. The basic right of American citizenship has been too dearly won
to be so lightly lost.

I fully recognize that only the most compelling considerations should lead to the
invalidation of congressional action, and where legislative judgments are
involved, this Court should not intervene. But the Court also has its duties, none of
which demands more diligent performance than that of protecting the
fundamental rights of individuals. That duty is imperative when the citizenship of
an American is at stake—that status, which alone, assures him the full enjoyment
of the precious rights conferred by our Constitution. As I see my duty in this case, I
must dissent.

79*79 MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.

While I join the opinion of THE CHIEF JUSTICE, I wish to add a word. The philosophy
of the opinion that sustains this statute is foreign to our constitutional system. It gives
supremacy to the Legislature in a way that is incompatible with the scheme of our
written Constitution. A decision such as this could be expected in England where
there is no written constitution, and where the House of Commons has the final
say. But with all deference, this philosophy has no place here. By proclaiming it we
forsake much of our constitutional heritage and move closer to the British scheme.
That may be better than ours or it may be worse. Certainly it is not ours.

We deal here with the right of citizenship created by the Constitution. Section 1,
cl. 1, of the Fourteenth Amendment states "All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside." As stated by the Court in the historic
decision United States v. Wong Kim Ark, 169 U. S. 649, 702, "Citizenship by
naturalization can only be acquired by naturalization under the authority and in
the forms of law. But citizenship by birth is established by the mere fact of birth
under the circumstances defined in the Constitution."

What the Constitution grants the Constitution can take away. But there is not a
word in that document that covers expatriation. The numerous legislative powers
granted by Art. I, § 8, do not mention it. I do not know of any legislative power
large enough and powerful enough to modify or wipe out rights granted or
created by § 1, cl. 1, of the Fourteenth Amendment.
Our decisions have never held that expatriation can be imposed. To the contrary,
they have assumed that 80*80 expatriation was a voluntary relinquishment of
loyalty to one country and attachment to another. Justice Paterson spoke of
expatriation in Talbot v. Janson, 3 Dall. 133, 153, as "a departure with intention to
leave this country, and settle in another." The loss of citizenship in this country
without its acquisition in another country was to him the creation of "a citizen of
the world"—a concept that is "a creature of the imagination, and far too refined
for any republic of ancient or modern times." Ibid.

So far as I can find, we have, prior to this day, never sustained the loss of a native-
born American citizenship unless another citizenship was voluntarily acquired. That
was true both in Mackenzie v. Hare, 239 U. S. 299, and Savorgnan v. United States,
338 U. S. 491. We should look to their facts, not to loose statements unnecessary for
the decisions. In the Mackenzie case it was the marriage of a native-born woman
to an alien that caused the loss of one nationality and the acquisition of another.
In the Savorgnan case the native-born American citizen became naturalized in
Italy. In this case Perez did vote in a foreign election of some kind. But as THE CHIEF
JUSTICE has clearly shown, § 401 (e) of the Nationality Act of 1940 "is not limited to
those situations that may rationally be said to constitute an abandonment of
citizenship." Ante, p. 76.

Our landmark decision on expatriation is Perkins v. Elg, 307 U. S. 325, where Chief
Justice Hughes wrote for the Court. The emphasis of that opinion is that
"Expatriation is the voluntary renunciation or abandonment of nationality and
allegiance." Id., at 334.

Today's decision breaks with that tradition. It allows Congress to brand an

ambiguous act as a "voluntary renunciation" of citizenship when there is no
requirement and no finding that the citizen transferred his loyalty from this country
to another. This power is found in the 81*81 power of Congress to regulate foreign
affairs. But if voting abroad is so pregnant with danger that Congress can penalize
it by withdrawing the voter's American citizenship, all citizens should be filled with
alarm. Some of the most heated political discussions in our history have concerned
foreign policy. I had always assumed that the First Amendment, written in terms
absolute, protected those utterances, no matter how extreme, no matter how
unpopular they might be. Yet if the power to regulate foreign affairs can be used
to deprive a person of his citizenship because he voted abroad, why may not it
be used to deprive him of his citizenship because his views on foreign policy are
unorthodox or because he disputed the position of the Secretary of State or
denounced a Resolution of the Congress or the action of the Chief Executive in
the field of foreign affairs? It should be remembered that many of our most heated
controversies involved assertion of First Amendment rights respecting foreign
policy. The hated Alien and Sedition Laws grew out of that field.[1] More recently
the rise of fascism and communism 82*82 has had profound repercussions here.
Could one who advocated recognition of Soviet Russia in the 1920's be deprived
of his citizenship? Could that fate befall one who was a Bundist[2] in the late 1930's
or early 1940's and extolled Hitler? Could it happen in the 1950's to one who
pleaded for recognition of Red China or who proclaimed against the Eisenhower
Doctrine in the Middle East? No doubt George F. Kennan "embarrassed" our
foreign relations when he recently spoke over the British radio.[3] Does the
Constitution permit Congress to cancel his citizenship? Could an American who
violated his passport restrictions and visited Red China be deprived of his
citizenship? Or suppose he trades with those under a ban. To many people any of
those acts would seem much more heinous than the fairly innocent act of voting
abroad. If casting a ballot abroad is sufficient to deprive an American of his
citizenship, why could not like penalties be imposed on the citizen who expresses
disagreement with his Nation's foreign policy in any of the ways enumerated?

The fact that First Amendment rights may be involved in some cases and not in
others seems irrelevant. For the grant of citizenship by the Fourteenth Amendment
is clear and explicit and should withstand any invasion of the legislative power.

What the Court does is to make it possible for any one of the many legislative
powers to be used to wipe out or modify specific rights granted by the
Constitution, provided the action taken is moderate and does not do violence to
the sensibilities of a majority of this Court. The examples where this concept of Due
Process has been 83*83 used to sustain state action[4] as well as federal action,[5]
which modifies or dilutes specific constitutional guarantees, are numerous. It is
used today drastically to revise the express command of the first Clause of § 1 of
the Fourteenth Amendment. A right granted by the Constitution—whether it be
the right to counsel or the right to citizenship—may be waived by the citizen.[6] But
the waiver must be first a voluntary act and second an act consistent with a
surrender of the right granted. When Perez voted he acted voluntarily. But, as
shown, § 401 (e) does not require that his act have a sufficient relationship to the
relinquishment of citizenship—nor a sufficient quality of adhering to a foreign
power. Nor did his voting abroad have that quality.

The decision we render today exalts the Due Process Clause of the Fifth
Amendment above all others. Of course any power exercised by the Congress
must be asserted in conformity with the requirements of Due Process. Tot v. United
States, 319 U. S. 463; United States v. Harriss, 347 U. S. 612; Lambert v. California, 355
U. S. 225. But the requirement of Due Process is a limitation on powers granted, not
the means whereby rights granted by the Constitution may be wiped out or
watered down. The Fourteenth Amendment grants citizenship to the native-born,
as explained in United States v. Wong Kim Ark, supra. That right may be waived or
surrendered by the citizen. But I see no constitutional 84*84 method by which it
can be taken from him. Citizenship, like freedom of speech, press, and religion,
occupies a preferred position in our written Constitution, because it is a grant
absolute in terms. The power of Congress to withhold it, modify it, or cancel it does
not exist. One who is native-born may be a good citizen or a poor one. Whether
his actions be criminal or charitable, he remains a citizen for better or for worse,
except and unless he voluntarily relinquishes that status. While Congress can
prescribe conditions for voluntary expatriation, Congress cannot turn white to
black and make any act an act of expatriation. For then the right granted by the
Fourteenth Amendment becomes subject to regulation by the legislative branch.
But that right has no such infirmity. It is deeply rooted in history, as United States v.
Wong Kim Ark, supra, shows. And the Fourteenth Amendment put it above and
beyond legislative control.

That may have been an unwise choice. But we made it when we adopted the
Fourteenth Amendment and provided that the native-born is an American citizen.
Once he acquires that right there is no power in any branch of our Government
to take it from him.

Memorandum of MR. JUSTICE WHITTAKER.

Though I agree with the major premise of the majority's opinion—that Congress
may expatriate a citizen for an act which it may reasonably find to be fraught with
danger of embroiling our Government in an international dispute or of
embarrassing it in the conduct of foreign affairs—I cannot agree with the result
reached, for it seems plain to me that § 401 (e) is too broadly written to be
sustained upon that ground. That section, so far as here pertinent, expatriates an
American citizen simply for "voting in a political election in a foreign state." Voting
in a political election in a particular foreign state may be open to aliens under the
law of that state, as it was in presidential elections 85*85 in the United States until
1928 as the dissenting opinion of THE CHIEF JUSTICE observes. Where that is so—
and this record fails to show that petitioner's act of voting in a political election in
Mexico in 1946 was not entirely lawful under the law of that state—such legalized
voting by an American citizen cannot reasonably be said to be fraught with
danger of embroiling our Government in an international dispute or of
embarrassing it in the conduct of foreign affairs, nor, I believe, can such an act—
entirely legal under the law of the foreign state— be reasonably said to constitute
an abandonment or any division or dilution of allegiance to the United States.
Since these are my convictions, I dissent from the majority's opinion and join in so
much of the dissenting opinion of THE CHIEF JUSTICE as expresses the view that the
act of a citizen of the United States in voting in a foreign political election which is
legally open to aliens under the law of that state cannot reasonably be said to
constitute abandonment or any division or dilution of allegiance to the United
States.

This leaves open the question presented respecting the constitutionality of § 401
(j), but inasmuch as the majority have found it unnecessary to adjudicate the
constitutionality of that section in this case, it would be wholly fruitless for me now
to reach a conclusion on that question, and I neither express nor imply any views
upon it. Limiting myself to the issue decided by the majority, I dissent.

[*] [On the same day, an order was entered substituting Attorney General Rogers
for former Attorney General Brownell as the party respondent. See post, p. 915.]

[1] Incorporated into § 349 of the Immigration and Nationality Act of 1952, 66 Stat.
163, 267-268, 8 U. S. C. § 1481.

[2] Petitioner proceeded under § 503 of the Nationality Act of 1940, 54 Stat. 1137,
1171, which authorizes an individual to bring suit for a declaration of nationality in
a United States District Court against the head of any government agency that
denies him a right or privilege of United States nationality on the ground that he is
not a United States national. The judicial hearing in such an action is a trial de novo
in which the individual need make only a prima facie case establishing his
citizenship by birth or naturalization. See Pandolfo v. Acheson, 202 F. 2d 38, 40-41.
The Government must prove the act of expatriation on which the denial was
based by " `clear, unequivocal, and convincing' evidence which does not leave
`the issue in doubt'." Gonzales v. Landon, 350 U. S. 920; see Schneiderman v. United
States, 320 U. S. 118, 158.

[3] The provision of the Fourteenth Amendment that "All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are citizens
of the United States . . ." sets forth the two principal modes (but by no means the
only ones) for acquiring citizenship. Thus, in United States v. Wong Kim Ark, 169 U.
S. 649 (Chief Justice Fuller and Mr. Justice Harlan dissenting), it was held that a
person of Chinese parentage born in this country was among "all persons born . .
. in the United States" and therefore a citizen to whom the Chinese Exclusion Acts
did not apply. But there is nothing in the terms, the context, the history or the
manifest purpose of the Fourteenth Amendment to warrant drawing from it a
restriction upon the power otherwise possessed by Congress to withdraw
citizenship. The limit of the operation of that provision was clearly enunciated in
Perkins v. Elg, 307 U. S. 325, 329: "As at birth she became a citizen of the United
States, that citizenship must be deemed to continue unless she has been deprived
of it through the operation of a treaty or congressional enactment or by her
voluntary action in conformity with applicable legal principles."

[4] Petitioner in the case before us did not object to the characterization of the
election in which he voted as a "political election." It may be noted that, in oral
argument, counsel for the petitioner expressed his understanding that the election
involved was the election for Mexico's president.

[5] The District Court in Savorgnan stated: "I am satisfied from the proofs submitted
that at the time plaintiff signed Exhibits 1 and 2 [application for Italian citizenship
and oath of allegiance to Italian Government] she had no present or fixed
intention in her mind to expatriate herself." 73 F. Supp. 109, 111.

[1] Section 401 of the Nationality Act of 1940, 54 Stat. 1137, 1168-1169, as
amended, 8 U. S. C. § 1481.

The fact that the statute speaks in terms of loss of nationality does not mean that
it is not petitioner's citizenship that is being forfeited. He is a national by reason of
his being a citizen, § 101 (b), Nationality Act of 1940, 54 Stat. 1137, 8 U. S. C. § 1101
(a) (22). Hence he loses his citizenship when he loses his status as a national of the
United States. In the context of this opinion, the terms nationality and citizenship
can be used interchangeably. Cf. Rabang v. Boyd, 353 U. S. 427.

[2] Petitioner was born in El Paso, Texas, in 1909, a fact of which he was apprised
in 1928. His Mexican-born parents took him to Mexico when he was 10 or 11 years
old. In 1932 petitioner married a Mexican national; they have seven children. In
1943 and 1944 petitioner sought and received permission to enter this country for
brief periods as a wartime railroad laborer. In 1952 petitioner again entered this
country as a temporary farm laborer. After he had been ordered deported as an
alien illegally in the United States, he brought this action for a declaratory
judgment of citizenship, relying upon his birth in this country.

[3] Section 401 (e) of the Nationality Act of 1940, 54 Stat. 1169, 8 U. S. C. § 1481 (5).

The courts below concluded that petitioner had lost his citizenship for the
additional reason specified in § 401 (j) of the Nationality Act, which was added in
1944, 58 Stat. 746, 8 U. S. C. § 1481 (10):

"Departing from or remaining outside of the jurisdiction of the United States in time
of war or during a period declared by the President to be a period of national
emergency for the purpose of evading or avoiding training and service in the land
or naval forces of the United States."

The majority expressly declines to rule on the constitutional questions raised by §

401 (j). My views on a statute of this sort are set forth in my opinion in Trop v. Dulles,
post, p. 86, decided this day, involving similar problems raised by § 401 (g) of the
Nationality Act, 54 Stat. 1169, as amended, 8 U. S. C. § 1481 (8).

[4] See Borchard, Diplomatic Protection of Citizens Abroad (1916), § 8; 1

Oppenheim, International Law (7th ed., Lauterpacht, 1948), §§ 291-294; Holborn,
The Legal Status of Political Refugees, 1920-1938, 32 Am. J. Int'l L. 680 (1938); Preuss,
International Law and Deprivation of Nationality, 23 Geo. L. J. 250 (1934); Study on
Statelessness, U. N. Doc. No. E/1112 (1949); 64 Yale L. J. 1164 (1955).

[5] See Konvitz, The Alien and the Asiatic in American Law (1946); Comment, 20 U.
of Chi. L. Rev. 547 (1953). Cf. Takahashi v. Fish & Game Commission, 334 U. S. 410;
Oyama v. California, 332 U. S. 633.
[6] Harisiades v. Shaughnessy, 342 U. S. 580; Fong Yue Ting v. United States, 149 U.
S. 698.

Even if Congress can divest United States citizenship, it does not necessarily follow
that an American-born expatriate can be deported. He would be covered by the
statutory definition of "alien," 8 U. S. C. § 1101 (a) (3), but he would not necessarily
have come "from a foreign port or place" and hence may not have effected the
"entry," 8 U. S. C. § 1101 (a) (13), specified in the deportation provisions, 8 U. S. C. §
1251. More fundamentally, since the deporting power has been held to be
derived from the power to exclude, Fong Yue Ting v. United States, supra, it may
well be that this power does not extend to persons born in this country. As to them,
deportation would perhaps find its justification only as a punishment,
indistinguishable from banishment. See dissenting opinions in United States v. Ju
Toy, 198 U. S. 253, 264; Fong Yue Ting v. United States, supra, at 744.

Since this action for a declaratory judgment does not involve the validity of the
deportation order against petitioner, it is unnecessary, as the Government points
out, to resolve the question of whether this petitioner may be deported.

[7] U. S. Const., Art. I, § 8, cl. 4.

[8] See, e. g., Knauer v. United States, 328 U. S. 654; Baumgartner v. United States,
322 U. S. 665; Schneiderman v. United States, 320 U. S. 118.

[9] Act of July 27, 1868, 15 Stat. 223.

[10] Ibid.

[11] See Savorgnan v. United States, 338 U. S. 491, 498 and n. 11; Foreign Relations,
1873, H. R. Exec. Doc. No. 1, 43d Cong., 1st Sess., Pt. 1, Vol. II, 1186-1187, 1204, 1210,
1213, 1216, 1222 (views of President Grant's Cabinet members); 14 Op. Atty. Gen.
295; Tsiang, The Question of Expatriation in America Prior to 1907, 97-98, 108-109.

[12] See Shanks v. Dupont, 3 Pet. 242; Inglis v. Trustees of Sailor's Snug Harbour, 3
Pet. 99.

[13] 3 Moore, Digest of International Law, §§ 434-437; Tsiang, 45-55, 71-86, 110-112.

[14] Tsiang, 55-61.

[15] 9 Op. Atty. Gen. 356, 359.

[16] See, e. g., Savorgnan v. United States, 338 U. S. 491; Mackenzie v. Hare, 239 U.
S. 299; Bauer v. Clark, 161 F. 2d 397, cert. denied, 332 U. S. 839. Cf. Acheson v.
Maenza, 92 U. S. App. D. C. 85, 202 F. 2d 453.

[17] See Laws Concerning Nationality, U. N. Doc. No. ST/LEG/ SER.B/4 (1954).

[18] See, generally, Laws Concerning Nationality, op. cit. supra, note 17.

[19] Act of March 2, 1907, 34 Stat. 1228-1229. The full text is as follows:

"SEC. 3. That any American woman who marries a foreigner shall take the
nationality of her husband. At the termination of the marital relation she may
resume her American citizenship, if abroad, by registering as an American citizen
within one year with a consul of the United States, or by returning to reside in the
United States, or, if residing in the United States at the termination of the marital
relation, by continuing to reside therein."

[20] This clause merely expressed the well-understood principle that a wife's
nationality "merged" with that of her husband's. Cockburn, Nationality, 24; 3
Moore, Digest of International Law, 450-451, 453; 3 Hackworth, Digest of
International Law, 246-247. This was a consequence of the common-law fiction of
a unity of interest in the marital community. During coverture the privileges and
obligations of a woman's citizenship gave way to the dominance of her husband's.
Prior to the Act of March 2, 1907, the Department of State declined to issue
passports to American-born women who were married to aliens. 3 Moore, 454; 3
Hackworth, 247. The Attorney General ruled that a woman in such circumstances
was not subject to an income tax imposed on all citizens of the United States
residing abroad. 13 Op. Atty. Gen. 128. Several courts held that during the duration
of a marriage consummated prior to the Act between an American-born woman
and an alien, a court may entertain a petition for her naturalization. In re
Wohlgemuth, 35 F. 2d 1007; In re Krausmann, 28 F. 2d 1004; In re page, 12 F. 2d 135.
Cf. Pequignot v. Detroit, 16 F. 211.

[21] S. Res. 30, 59th Cong., 1st Sess.; H. R. Rep. No. 4784, 59th Cong., 1st Sess.

[22] H. R. Doc. No. 326, 59th Cong., 2d Sess. 29. The Department's covering letter
makes abundantly clear that marriage was not to result in "expatriation." Id., at 3.

[23] Consult, generally, 3 Moore, § 410 (2) ("Reversion of Nationality"); Van Dyne,
Naturalization, 242-255. Numerous cases contain references to a woman's
"reverting" to United States citizenship after the termination of her marriage to an
alien. E. g., Petition of Zogbaum, 32 F. 2d 911, 913; Petition of Drysdale, 20 F. 2d 957,
958; In re Fitzroy, 4 F. 2d 541, 542. The Department of State adopted the same
interpretation. In 1890 Secretary Blaine declared the view of the Department that:

"The marriage of an American woman to a foreigner does not completely divest

her of her original nationality. Her American citizenship is held for most purposes to
be in abeyance during coverture, but to be susceptible of revival by her return to
the jurisdiction and allegiance of the United States." (Emphasis added.) Foreign
Rel. U. S. 1890, 301.

In 1906 Secretary Root stated:

"Under the practice of the Department of State a widow or a woman who has
obtained an absolute divorce, being an American citizen and who has married
an alien, must return to the United States, or must have her residence here in order
to have her American citizenship revert on becoming femme sole." Foreign Rel. U.
S. 1906, Pt. 2, 1365.

[24] Consult, generally, 3 Moore, 458-462. H. R. Doc. No. 326, 59th Cong., 2d Sess.
269-538, a report by the Department of State which Congress requested prior to
its Act of March 2, 1907, contains a digest of the nationality laws of forty-four
countries. Twenty-five of those provided in widely varying terms that upon
marriage a woman's citizenship should follow that of her husband. Of these
twenty-five, all but two made special provision for the woman to recover her
citizenship upon termination of the marriage by compliance with certain
formalities demonstrative of the proper intent, and in every instance wholly
different from the ordinary naturalization procedures.

[25] In re Wohlgemuth, 35 F. 2d 1007; In re Krausmann, 28 F. 2d 1004; Petition of

Drysdale, 20 F. 2d 957; In re Page, 12 F. 2d 135.

In fact, Congressman Perkins, supporting the bill on the floor of the House,
explained its effect in these words:

"The courts have decided that a woman takes the citizenship of her husband, only
the decisions of the courts provide no means by which she may retake the
citizenship of her own country on the expiration of the marital relation. This bill
contains nothing new in that respect, except a provision that when the marital
relation is terminated the woman may then retake her former citizenship." 41
Cong. Rec. 1465.

Cases discussing the pre-1907 law generally held that a woman did not lose her
citizenship by marriage to an alien, although she might bring about that result by
other acts (such as residing abroad after the death of her husband) demonstrating
an intent to relinquish that citizenship. E. g., Shanks v. Dupont, 3 Pet. 242; In re
Wright, 19 F. Supp. 224; Petition of Zogbaum, 32 F. 2d 911; In re Lynch, 31 F. 2d 762;
Petition of Drysdale, 20 F. 2d 957; In re Fitzroy, 4 F. 2d 541; Wallenburg v. Missouri
Pacific R. Co., 159 F. 217; Ruckgaber v. Moore, 104 F. 947; Comitis v. Parkerson, 56
F. 556. This was also the view of the Department of State. 3 Moore, 449-450; 3 Hack-
worth, 247-248.

[26] The marriage provisions of the 1907 legislation were substantially repealed by
the 1922 Cable Act, 42 Stat. 1021, and the last remnants of the effect of marriage
on loss of citizenship were eliminated in 1931. 46 Stat. 1511. See Roche, The Loss of
American Nationality, 99 U. of Pa. L. Rev. 25, 47-49.

[27] See 86 Cong. Rec. 11943.

[28] Exec. Order No. 6115, April 25, 1933.

[29] Codification of the Nationality Laws of the United States, H. R. Comm. Print, Pt.
1, 76th Cong., 1st Sess. VII.

[30] The bill was considered by the House Committee on Immigration and
Naturalization and its subcommittee. Hearings before the House Committee on
Immigration and Naturalization on H. R. 6127, 76th Cong., 1st Sess. The Senate did
not hold hearings on the bill.

[31] Hearings, at 37-38.

[32] Id., at 132. The passport provision was apparently deleted by the
subcommittee, for it does not appear in the version of the bill that was printed
when hearings resumed before the full committee on May 2, 1940. Id., at 207.

[33] Cf. In the Matter of P______. 1 I. & N. Dec. 267 (this particular election in
Canada was open only to British subjects).

[34] Hearings, at 98.

[35] Id., at 286-287.

[36] The broad sweep of the statute was specifically called to the attention of the
committee by Mr. Henry F. Butler. Hearings, at 286-287. Mr. Butler also submitted a
brief, suggesting that the coverage of the statute be limited to those voting "in a
manner in which only nationals of such foreign state or territory are eligible to vote
or participate." Id., at 387.

[37] In the Matter of F______, 2 I. & N. Dec. 427.

[38] Aylsworth, The Passing of Alien Suffrage, 25 Am. Pol. Sci. Rev. 114.

[39] Laws Concerning Nationality, U. N. Doc. No. ST/LEG/SER. B/4 (1954). The
statutes of Andorra (191 sq. mi.: 5,231 pop.) provide for loss of nationality for a
citizen who "exercises political rights in another country," id., at 10, and this very
likely includes voting.

Of course, it should be noted that two nations, Romania and Russia, have statutes
providing that upon decree of the government citizenship can be withdrawn,
apparently for any reason. Id., at 396, 463.
[1] Miller, Crisis in Freedom (1951), 167-168, states the Federalist case for those laws:

"As in the case of the Alien Act, the Federalists justified the Sedition Law by citing
the power of Congress to provide for the common defense and general welfare,
and the inherent right of every government to act in self-preservation. It was
passed at a time of national emergency when, as a member of Congress said,
`some gentlemen say we are at war, and when all believe we must have war.'
`Threatened by faction, and actually at hostility with a foreign and perfidious foe
abroad,' the Sedition Act was held to be `necessary for the safety, perhaps the
existence of the Government.' Congress could not permit subversive newspapers
to `paralyze the public arm, and weaken the efforts of Government for the
defense of the country.' The wiles of France and its adherents were as dangerous
as its armies: `Do not the Jacobin fiends of France use falsehood and all the arms
of hell,' asked William Cobbett, `and do they not run like half famished wolves to
accomplish the destruction of this country?' If Congress had failed to take every
precautionary measure against such danger, the blood of the Republic would
have been upon its hands."

[2] Cf. Keegan v. United States, 325 U. S. 478.

[3] See Kennan, Russia, The Atom and the West (1957).

[4] See Betts v. Brady, 316 U. S. 455; In re Summers, 325 U. S. 561; Adamson v.
California, 332 U. S. 46; Bute v. Illinois, 333 U. S. 640; Feiner v. New York, 340 U. S. 315;
Breard v. Alexandria, 341 U. S. 622; Adler v. Board of Education, 342 U. S. 485;
Beauharnais v. Illinois, 343 U. S. 250; In re Groban, 352 U. S. 330; Breithaupt v. Abram,
352 U. S. 432.

[5] United Public Workers v. Mitchell, 330 U. S. 75; American Communications Assn.
v. Douds, 339 U. S. 382; Dennis v. United States, 341 U. S. 494.

[6] E. g., Adams v. McCann, 317 U. S. 269, 275.

CASE NO. 12

387 U.S. 253 (1967)

AFROYIM
v.
RUSK, SECRETARY OF STATE.

No. 456.

Supreme Court of United States.

Argued February 20, 1967.

Decided May 29, 1967.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

Edward J. Ennis argued the cause for petitioner. On the briefs was Nanette
Dembitz.

254*254 Charles Gordon, argued the cause for respondent. On the brief were
Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg
and Jerome M. Feit.

MR. JUSTICE BLACK delivered the opinion of the Court.

Petitioner, born in Poland in 1893, immigrated to this country in 1912 and became
a naturalized American citizen in 1926. He went to Israel in 1950, and in 1951 he
voluntarily voted in an election for the Israeli Knesset, the legislative body of Israel.
In 1960, when he applied for renewal of his United States passport, the Department
of State refused to grant it on the sole ground that he had lost his American
citizenship by virtue of § 401 (e) of the Nationality Act of 1940 which provides that
a United States citizen shall "lose" his citizenship if he votes "in a political election in
a foreign state."[1] Petitioner then brought this declaratory judgment action in
federal district court alleging that § 401 (e) violates both the Due Process Clause
of the Fifth Amendment and § 1, cl. 1, of the Fourteenth Amendment[2] which
grants American citizenship to persons like petitioner. Because neither the
Fourteenth Amendment nor any other provision of the Constitution expressly grants
Congress the power to 255*255 take away that citizenship once it has been
acquired, petitioner contended that the only way he could lose his citizenship was
by his own voluntary renunciation of it. Since the Government took the position
that § 401 (e) empowers it to terminate citizenship without the citizen's voluntary
renunciation, petitioner argued that this section is prohibited by the Constitution.
The District Court and the Court of Appeals, rejecting this argument, held that
Congress has constitutional authority forcibly to take away citizenship for voting in
a foreign country based on its implied power to regulate foreign affairs.
Consequently, petitioner was held to have lost his American citizenship regardless
of his intention not to give it up. This is precisely what this Court held in Perez v.
Brownell, 356 U. S. 44.

Petitioner, relying on the same contentions about voluntary renunciation of

citizenship which this Court rejected in upholding § 401 (e) in Perez, urges us to
reconsider that case, adopt the view of the minority there, and overrule it. That
case, decided by a 5-4 vote almost 10 years ago, has been a source of
controversy and confusion ever since, as was emphatically recognized in the
opinions of all the judges who participated in this case below.[3] Moreover, in the
other cases decided with[4] and since[5] Perez, this Court has consistently
invalidated on a case-by-case basis various other statutory sections providing for
involuntary expatriation. It has done so on various grounds and has refused to hold
that citizens can be expatriated without their voluntary renunciation of 256*256
citizenship. These cases, as well as many commentators,[6] have cast great doubt
upon the soundness of Perez. Under these circumstances, we granted certiorari to
reconsider it, 385 U. S. 917. In view of the many recent opinions and dissents
comprehensively discussing all the issues involved,[7] we deem it unnecessary to
treat this subject at great length.

The fundamental issue before this Court here, as it was in Perez, is whether
Congress can consistently with the Fourteenth Amendment enact a law stripping
an American of his citizenship which he has never voluntarily renounced or given
up. The majority in Perez held that Congress could do this because withdrawal of
citizenship is "reasonably calculated to effect the end that is within the power of
Congress to achieve." 356 U. S., at 60. That conclusion was reached by this chain
of reasoning: Congress has an implied power to deal with foreign affairs as an
indispensable attribute of sovereignty; this implied power, plus the Necessary and
Proper Clause, empowers Congress to regulate voting by American citizens in
foreign elections; involuntary expatriation is within the "ample scope" of
"appropriate modes" Congress can adopt to effectuate its general regulatory
power. Id., at 257*257 57-60. Then, upon summarily concluding that "there is
nothing in the . . . Fourteenth Amendment to warrant drawing from it a restriction
upon the power otherwise possessed by Congress to withdraw citizenship," id., at
58, n. 3, the majority specifically rejected the "notion that the power of Congress
to terminate citizenship depends upon the citizen's assent," id., at 61.

First we reject the idea expressed in Perez that, aside from the Fourteenth
Amendment, Congress has any general power, express or implied, to take away
an American citizen's citizenship without his assent. This power cannot, as Perez
indicated, be sustained as an implied attribute of sovereignty possessed by all
nations. Other nations are governed by their own constitutions, if any, and we can
draw no support from theirs. In our country the people are sovereign and the
Government cannot sever its relationship to the people by taking away their
citizenship. Our Constitution governs us and we must never forget that our
Constitution limits the Government to those powers specifically granted or those
that are necessary and proper to carry out the specifically granted ones. The
Constitution, of course, grants Congress no express power to strip people of their
citizenship, whether in the exercise of the implied power to regulate foreign affairs
or in the exercise of any specifically granted power. And even before the
adoption of the Fourteenth Amendment, views were expressed in Congress and
by this Court that under the Constitution the Government was granted no power,
even under its express power to pass a uniform rule of naturalization, to determine
what conduct should and should not result in the loss of citizenship. On three
occasions, in 1794, 1797, and 1818, Congress considered and rejected proposals
to enact laws which would describe certain conduct as resulting in expatriation.[8]
On each occasion 258*258 Congress was considering bills that were concerned
with recognizing the right of voluntary expatriation and with providing some
means of exercising that right. In 1794 and 1797, many members of Congress still
adhered to the English doctrine of perpetual allegiance and doubted whether a
citizen could even voluntarily renounce his citizenship.[9] By 1818, however, almost
no one doubted the existence of the right of voluntary expatriation, but several
judicial decisions had indicated that the right could not be exercised by the citizen
without the consent of the Federal Government in the form of enabling
legislation.[10] Therefore, a bill was introduced to provide that a person could
voluntarily relinquish his citizenship by declaring such relinquishment in writing
before a district court and then departing from the country.[11] The opponents of
the bill argued that Congress had no constitutional authority, either express or
implied, under either the Naturalization Clause or the Necessary and Proper
Clause, to provide that a certain act would constitute expatriation.[12] They
pointed to a proposed Thirteenth 259*259 Amendment, subsequently not ratified,
which would have provided that a person would lose his citizenship by accepting
an office or emolument from a foreign government.[13] Congressman Anderson of
Kentucky argued:

"The introduction of this article declares the opinion. . . that Congress could not
declare the acts which should amount to a renunciation of citizenship; otherwise
there would have been no necessity for this last resort. When it was settled that
Congress could not declare that the acceptance of a pension or an office from
a foreign Emperor amounted to a disfranchisement of the citizen, it must surely be
conceded that they could not declare that any other act did. The cases to which
their powers before this amendment confessedly did not extend, are very strong,
and induce a belief that Congress could not in any case declare the acts which
should cause `a person to cease to be a citizen.' The want of power in a case like
this, where the individual has given the strongest evidence of attachment to a
foreign potentate and an entire renunciation of the feelings and principles of an
American citizen, certainly establishes the absence of all power to pass a bill like
the present one. Although the intention with which it was introduced, and the title
of the bill declare that it is to insure and foster the right of the citizen, the direct
and inevitable effect of the bill, is an assumption of power by Congress to declare
that certain acts when committed shall amount to a renunciation of citizenship."
31 Annals of Cong. 1038-1039 (1818).

260*260 Congressman Pindall of Virginia objected the notion, later accepted by

the majority in Perez, that the nature of sovereignty gives Congress a right to
expatriate citizens:

"[A]llegiance imports an obligation on the citizen or subject, the correlative right

to which resides in the sovereign power: allegiance in this country is not due to
Congress, but to the people, with whom the sovereign power is found; it is,
therefore, by the people only that any alteration can be made of the existing
institutions with respect to allegiance." Id., at 1045.

Although he recognized that the bill merely sought to provide a means of

voluntary expatriation, Congressman Lowndes of South Carolina argued:

"But, if the Constitution had intended to give to Congress so delicate a power, it

would have been expressly granted. That it was a delicate power, and ought not
to be loosely inferred, . . . appeared in a strong light, when it was said, and could
not be denied, that to determine the manner in which a citizen may relinquish his
right of citizenship, is equivalent to determining how he shall be divested of that
right. The effect of assuming the exercise of these powers will be, that by acts of
Congress a man may not only be released from all the liabilities, but from all the
privileges of a citizen. If you pass this bill, . . . you have only one step further to go,
and say that such and such acts shall be considered as presumption of the
intention of the citizen to expatriate, and thus take from him the privileges of a
citizen. . . . [Q]uestions affecting the right of the citizen were questions to be
regulated, not by the laws of the General or State Governments, but by
Constitutional provisions. If there was anything 261*261 essential to our notion of a
Constitution, . . . it was this: that while the employment of the physical force of the
country is in the hands of the Legislature, those rules which determine what
constitutes the rights of the citizen, shall be a matter of Constitutional provision."
Id., at 1050-1051.
The bill was finally defeated.[14] It is in this setting that six years later, in Osborn v.
Bank of the United States, 9 Wheat. 738, 827, this Court, speaking through Chief
Justice Marshall, declared in what appears to be a mature and well-considered
dictum that Congress, once a person becomes a citizen, cannot deprive him of
that status:

"[The naturalized citizen] becomes a member of the society, possessing all the
rights of a native citizen, and standing, in the view of the constitution, on the
footing of a native. The constitution does not authorize Congress to enlarge or
abridge those rights. The simple power of the national Legislature, is to prescribe a
uniform rule of naturalization, and the exercise of this power exhausts it, so far as
respects the individual."

Although these legislative and judicial statements may be regarded as

inconclusive and must be considered in the historical context in which they were
made,[15] any doubt 262*262 as to whether prior to the passage of the Fourteenth
Amendment Congress had the power to deprive a person against his will of
citizenship once obtained should have been removed by the unequivocal terms
of the Amendment itself. It provides its own constitutional rule in language
calculated completely to control the status of citizenship: "All persons born or
naturalized in the United States . . . are citizens of the United States . . . ." There is no
indication in these words of a fleeting citizenship, good at the moment it is
acquired but subject to destruction by the Government at any time. Rather the
Amendment can most reasonably be read as defining a citizenship which a citizen
keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth
Amendment citizenship was not to be shifted, canceled, or diluted at the will of
the Federal Government, the States, or any other governmental unit.

It is true that the chief interest of the people in giving permanence and security to
citizenship in the Fourteenth Amendment was the desire to protect Negroes. The
Dred Scott decision, 19 How. 393, had shortly before greatly disturbed many
people about the status of Negro citizenship. But the Civil Rights Act of 1866, 14
Stat. 27, had already attempted to confer citizenship on all persons born or
naturalized in the United States. Nevertheless, when the Fourteenth Amendment
passed the House without containing any definition of citizenship, the sponsors of
the Amendment in the Senate insisted on inserting a constitutional definition and
grant of citizenship. They expressed fears that the citizenship so recently conferred
on Negroes by the Civil Rights Act could be just as easily taken away from them
by subsequent Congresses, and it was to provide an insuperable obstacle against
every governmental effort to strip Negroes of their newly acquired citizenship that
the first clause was added to the Fourteenth Amendment.[16] 263*263 Senator
Howard, who sponsored the Amendment in the Senate, thus explained the
purpose of the clause:

"It settles the great question of citizenship and removes all doubt as to what
persons are or are not citizens of the United States. . . . We desired to put this
question of citizenship and the rights of citizens . . . under the civil rights bill beyond
the legislative power . . . ." Cong. Globe, 39th Cong., 1st Sess., 2890, 2896 (1866).

This undeniable purpose of the Fourteenth Amendment to make citizenship of

Negroes permanent and secure would be frustrated by holding that the
Government can rob a citizen of his citizenship without his consent by simply
proceeding to act under an implied general power to regulate foreign affairs or
some other power generally granted. Though the framers of the Amendment were
not particularly concerned with the problem of expatriation, it seems undeniable
from the language they used that they wanted to put citizenship beyond the
power of any governmental unit to destroy. In 1868, two years after the Fourteenth
Amendment had been proposed, Congress specifically considered the subject of
expatriation. Several bills were introduced to impose involuntary expatriation on
citizens who committed certain acts.[17] With little 264*264 discussion, these
proposals were defeated. Other bills, like the one proposed but defeated in 1818,
provided merely a means by which the citizen could himself voluntarily renounce
his citizenship.[18] Representative Van Trump of Ohio, who proposed such a bill,
vehemently denied in supporting it that his measure would make the Government
"a party to the act dissolving the tie between the citizen and his country . . . where
the statute simply prescribes the manner in which the citizen shall proceed to
perpetuate the evidence of his intention, or election, to renounce his citizenship
by expatriation." Cong. Globe, 40th Cong., 2d Sess., 1804 (1868). He insisted that
"inasmuch as the act of expatriation depends almost entirely upon a question of
intention on the part of the citizen," id., at 1801, "the true question is, that not only
the right of expatriation, but the whole power of its exercise, rests solely and
exclusively in the will of the individual," id., at 1804.[19] In strongest of terms, not
contradicted by any during the debates, he concluded:

"To enforce expatriation or exile against a citizen without his consent is not a power
anywhere belonging to this Government. No conservative-minded 265*265
statesman, no intelligent legislator, no sound lawyer has ever maintained any such
power in any branch of the Government. The lawless precedents created in the
delirium of war . . . of sending men by force into exile, as a punishment for political
opinion, were violations of this great law . . . of the Constitution. . . . The men who
debated the question in 1818 failed to see the true distinction. . . . They failed to
comprehend that it is not the Government, but that it is the individual, who has
the right and the only power of expatriation. . . . [I]t belongs and appertains to the
citizen and not to the Government; and it is the evidence of his election to exercise
his right, and not the power to control either the election or the right itself, which is
the legitimate subject matter of legislation. There has been, and there can be, no
legislation under our Constitution to control in any manner the right itself." Ibid.

But even Van Trump's proposal, which went no further than to provide a means of
evidencing a citizen's intent to renounce his citizenship, was defeated.[20] The Act,
266*266 as finally passed, merely recognized the "right of expatriation" as an
inherent right of all people.[21]

The entire legislative history of the 1868 Act makes it abundantly clear that there
was a strong feeling in the Congress that the only way the citizenship it conferred
could be lost was by the voluntary renunciation or abandonment by the citizen
himself. And this was the unequivocal statement of the Court in the case of United
States v. Wong Kim Ark, 169 U. S. 649. The issues in that case were whether a person
born in the United States to Chinese aliens was a citizen of the United States and
whether, nevertheless, he could be excluded under the Chinese Exclusion Act, 22
Stat. 58. The Court first held that within the terms of the Fourteenth Amendment,
Wong Kim Ark was a citizen of the United States, and then pointed out that though
he might "renounce this citizenship, and become a citizen of . . . any other
country," he had never done so. Id., at 704-705. The Court then held[22] that
Congress could not do anything to abridge or affect his citizenship conferred by
the Fourteenth Amendment. Quoting Chief Justice Marshall's well-considered and
oft-repeated dictum in Osborn to the effect that Congress under the power of
naturalization has "a power to confer citizenship, not a power to take it away," the
Court said:

"Congress having no power to abridge the rights conferred by the Constitution

upon those who have become naturalized citizens by virtue of acts of Congress,
a fortiori no act . . . of Congress . . . 267*267 can affect citizenship acquired as a
birthright, by virtue of the Constitution itself . . . . The Fourteenth Amendment, while
it leaves the power, where it was before, in Congress, to regulate naturalization,
has conferred no authority upon Congress to restrict the effect of birth, declared
by the Constitution to constitute a sufficient and complete right to citizenship." Id.,
at 703.

To uphold Congress' power to take away a man's citizenship because he voted in

a foreign election in violation of § 401 (e) would be equivalent to holding that
Congress has the power to "abridge," "affect," "restrict the effect of," and "take . . .
away" citizenship. Because the Fourteenth Amendment prevents Congress from
doing any of these things, we agree with THE CHIEF JUSTICE'S dissent in the Perez
case that the Government is without power to rob a citizen of his citizenship under
§ 401 (e).[23]

Because the legislative history of the Fourteenth Amendment and of the

expatriation proposals which preceded and followed it, like most other legislative
history, contains many statements from which conflicting inferences can be
drawn, our holding might be unwarranted if it rested entirely or principally upon
that legislative history. But it does not. Our holding we think is the only one that can
stand in view of the language and the purpose of the Fourteenth Amendment,
and our construction of that Amendment, we believe, comports more nearly than
Perez with the principles of liberty and equal justice to all that the entire Fourteenth
Amendment was adopted to guarantee. Citizenship is no light trifle 268*268 to be
jeopardized any moment Congress decides to do so under the name of one of its
general or implied grants of power. In some instances, loss of citizenship can mean
that a man is left without the protection of citizenship in any country in the world—
as a man without a country. Citizenship in this Nation is a part of a co-operative
affair. Its citizenry is the country and the country is its citizenry. The very nature of
our free government makes it completely incongruous to have a rule of law under
which a group of citizens temporarily in office can deprive another group of
citizens of their citizenship. We hold that the Fourteenth Amendment was designed
to, and does, protect every citizen of this Nation against a congressional forcible
destruction of his citizenship, whatever his creed, color, or race. Our holding does
no more than to give to this citizen that which is his own, a constitutional right to
remain a citizen in a free country unless he voluntarily relinquishes that citizenship.

Perez v. Brownell is overruled. The judgment is

Reversed.

MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK, MR. JUSTICE STEWART, and MR.
JUSTICE WHITE join, dissenting.

Almost 10 years ago, in Perez v. Brownell, 356 U. S. 44, the Court upheld the
constitutionality of § 401 (e) of the Nationality Act of 1940, 54 Stat. 1169. The section
deprives of his nationality any citizen who has voted in a foreign political election.
The Court reasoned that Congress derived from its power to regulate foreign
affairs authority to expatriate any citizen who intentionally commits acts which
may be prejudicial to the foreign relations of the United States, and which
reasonably may be deemed to indicate a dilution of his allegiance to this country.
Congress, it was held, could appropriately consider 269*269 purposeful voting in a
foreign political election to be such an act.

The Court today overrules Perez, and declares § 401 (e) unconstitutional, by a
remarkable process of circumlocution. First, the Court fails almost entirely to
dispute the reasoning in Perez; it is essentially content with the conclusory and
quite unsubstantiated assertion that Congress is without "any general power,
express or implied," to expatriate a citizen "without his assent."[1] Next, the Court
embarks upon a lengthy, albeit incomplete, survey of the historical background
of the congressional power at stake here, and yet, at the end, concedes that the
history is susceptible of "conflicting inferences." The Court acknowledges that its
conclusions might not be warranted by that history alone, and disclaims that the
decision today relies, even "principally," upon it. Finally, the Court declares that its
result is bottomed upon the "language 270*270 and the purpose" of the Citizenship
Clause of the Fourteenth Amendment; in explanation, the Court offers only the
terms of the clause itself, the contention that any other result would be
"completely incongruous," and the essentially arcane observation that the
"citizenry is the country and the country is its citizenry."

I can find nothing in this extraordinary series of circumventions which permits, still
less compels, the imposition of this constitutional constraint upon the authority of
Congress. I must respectfully dissent.

There is no need here to rehearse Mr. Justice Frankfurter's opinion for the Court in
Perez; it then proved and still proves to my satisfaction that § 401 (e) is within the
power of Congress.[2] It suffices simply to supplement Perez with an examination of
the historical evidence which the Court in part recites, and which provides the
only apparent basis for many of the Court's conclusions. As will be seen, the
available historical evidence is not only inadequate to support the Court's
abandonment of Perez, but, with due regard for the 271*271 restraints that should
surround the judicial invalidation of an Act of Congress, even seems to confirm
Perez' soundness.

I.

Not much evidence is available from the period prior to the adoption of the
Fourteenth Amendment through which the then-prevailing attitudes on these
constitutional questions can now be determined. The questions pertinent here
were only tangentially debated; controversy centered instead upon the wider
issues of whether a citizen might under any circumstances renounce his citizenship,
and, if he might, whether that right should be conditioned upon any formal
prerequisites.[3] Even the discussion of these issues was seriously clouded by the
widely accepted view that authority to regulate the incidents of citizenship had
been retained, at least in part, by the several States.[4] It should therefore be
remembered that the evidence which is now available may not necessarily
represent any carefully considered, still less prevailing, viewpoint upon the present
issues.

Measured even within these limitations, the Court's evidence for this period is
remarkably inconclusive; the Court relies simply upon the rejection by Congress of
272*272 legislation proposed in 1794, 1797, and 1818, and upon an isolated dictum
from the opinion of Chief Justice Marshall in Osborn v. Bank of the United States, 9
Wheat. 738. This, as will appear, is entirely inadequate to support the Court's
conclusion, particularly in light of other and more pertinent evidence which the
Court does not notice.

The expatriation of unwilling citizens was apparently first discussed in the lengthy
congressional debates of 1794 and 1795, which culminated eventually in the
Uniform Naturalization Act of 1795.[5] 1 Stat. 414. Little contained in those debates
is pertinent here. The present question was considered only in connection with an
amendment, offered by Congressman Hillhouse of Connecticut, which provided
that any American who acquired a foreign citizenship should not subsequently be
permitted to repatriate in the United States. Although this obscure proposal
scarcely seems relevant to the present issues, it was apparently understood at
least by some members to require the automatic expatriation of an American who
acquired a second citizenship. Its discussion in the House consumed substantially
less than one day, and of this debate only the views of two Congressmen, other
than Hillhouse, were recorded by the Annals.[6] Murray of Maryland, for reasons
immaterial here, supported the proposal. In response, Baldwin of Georgia urged
that foreign citizenship was often conferred only as a mark of esteem, and that it
would be unfair to deprive of his domestic citizenship an American honored in this
fashion. There is no indication that any member believed the proposal to be
forbidden by the Constitution. The measure was rejected by the House without a
reported 273*273 vote and no analogous proposal was offered in the Senate.
Insofar as this brief exchange is pertinent here, it establishes at most that two or
more members believed the proposal both constitutional and desirable, and that
some larger number determined, for reasons that are utterly obscure, that it should
not be adopted.

The Court next relies upon the rejection of proposed legislation in 1797. The bill
there at issue would have forbidden the entry of American citizens into the service
of any foreign state in time of war; its sixth section included machinery by which a
citizen might voluntarily expatriate himself.[7] The bill contained nothing which
would have expatriated unwilling citizens, and the debates do not include any
pronouncements relevant to that issue. It is difficult to see how the failure of that
bill might be probative here.

The debates in 1817 and 1818, upon which the Court so heavily relies, are scarcely
more revealing. Debate centered upon a brief bill[8] which provided merely that
any citizen who wished to renounce his citizenship must first declare his intention
in open court, and thereafter depart the United States. His citizenship would have
terminated at the moment of his renunciation. The bill was debated only in the
House; no proposal permitting the involuntary expatriation of any citizen was
made or considered there or in the Senate. Nonetheless, the Court selects portions
of statements made by three individual Congressmen, who apparently denied
that Congress had authority to enact legislation to deprive unwilling citizens of
their citizenship. These brief dicta are, by the most generous standard, inadequate
to warrant the Court's broad constitutional conclusion. Moreover, it must be
observed that they were in great part deductions from 274*274 constitutional
premises which have subsequently been entirely abandoned. They stemmed
principally from the Jeffersonian contention that allegiance is owed by a citizen
first to his State, and only through the State to the Federal Government. The
spokesmen upon whom the Court now relies supposed that Congress was without
authority to dissolve citizenship, since "we have no control" over "allegiance to the
State . . . ."[9] The bill's opponents urged that "The relation to the State government
was the basis of the relation to the General Government, and therefore, as long
as a man continues a citizen of a State, he must be considered a citizen of the
United States."[10] Any statute, it was thought, which dissolved federal citizenship
while a man remained a citizen of a State "would be inoperative."[11] Surely the
Court does not revive this entirely discredited doctrine; and yet so long as it does
not, it is difficult to see that any significant support for the ruling made today may
be derived from the statements on which the Court relies. To sever the statements
from their constitutional premises, as the Court has apparently done, is to transform
the meaning these expressions were intended to convey.

Finally, it must be remembered that these were merely the views of three
Congressmen; nothing in the debates indicates that their constitutional doubts
were shared by any substantial number of the other 67 members who eventually
opposed the bill. They were plainly not accepted by the 58 members who voted
in the bill's favor. The bill's opponents repeatedly urged that, whatever its
constitutional validity, the bill was imprudent 275*275 and undesirable. Pindall of
Virginia, for example, asserted that a citizen who employed its provisions would
have "motives of idleness or criminality,"[12] and that the bill would thus cause
"much evil."[13] McLane of Delaware feared that citizens would use the bill to
escape service in the armed forces in time of war; he warned that the bill would,
moreover, weaken "the love of country, so necessary to individual happiness and
national prosperity."[14] He even urged that "The commission of treason, and the
objects of plunder and spoil, are equally legalized by this bill."[15] Lowndes of South
Carolina cautioned the House that difficulties might again arise with foreign
governments over the rights of seamen if the bill were passed.[16] Given these
vigorous and repeated arguments, it is quite impossible to assume, as the Court
apparently has, that any substantial portion of the House was motivated wholly,
or even in part, by any particular set of constitutional assumptions. These three
statements must instead be taken as representative only of the beliefs of three
members, premised chiefly upon constitutional doctrines which have
subsequently been rejected, and expressed in a debate in which the present
issues were not directly involved.

The last piece of evidence upon which the Court relies for this period is a brief
obiter dictum from the lengthy opinion for the Court in Osborn v. Bank of the United
States, 9 Wheat. 738, 827, written by Mr. Chief Justice Marshall. This use of the
dictum is entirely unpersuasive, for its terms and context make quite plain that it
cannot have been intended to reach the questions presented 276*276 here. The
central issue before the Court in Osborn was the right of the bank to bring its suit
for equitable relief in the courts of the United States. In argument, counsel for
Osborn had asserted that although the bank had been created by the laws of the
United States, it did not necessarily follow that any cause involving the bank had
arisen under those laws. Counsel urged by analogy that the naturalization of an
alien might as readily be said to confer upon the new citizen a right to bring all his
actions in the federal courts. Id., at 813-814. Not surprisingly, the Court rejected the
analogy, and remarked that an act of naturalization "does not proceed to give,
to regulate, or to prescribe his capacities," since the Constitution demands that a
naturalized citizen must in all respects stand "on the footing of a native." Id., at 827.
The Court plainly meant no more than that counsel's analogy is broken by
Congress' inability to offer a naturalized citizen rights or capacities which differ in
any particular from those given to a native-born citizen by birth. Mr. Justice
Johnson's discussion of the analogy in dissent confirms the Court's purpose. Id., at
875-876.

Any wider meaning, so as to reach the questions here, wrenches the dictum from
its context, and attributes to the Court an observation extraneous even to the
analogy before it. Moreover, the construction given to the dictum by the Court
today requires the assumption that the Court in Osborn meant to decide an issue
which had to that moment scarcely been debated, to which counsel in Osborn
had never referred, and upon which no case had ever reached the Court. All this,
it must be recalled, is in an area of the law in which the Court had steadfastly
avoided unnecessary comment. See, e. g., M`Ilvaine v. Coxe's Lessee, 4 Cranch
209, 212-213; The Santissima Trinidad, 7 Wheat. 283, 347-348. By any 277*277
standard, the dictum cannot provide material assistance to the Court's position in
the present case.[17]

Before turning to the evidence from this period which has been overlooked by the
Court, attention must be given an incident to which the Court refers, but upon
which it apparently places relatively little reliance. In 1810, a proposed thirteenth
amendment to the Constitution 278*278 was introduced into the Senate by
Senator Reed of Maryland; the amendment, as subsequently modified, provided
that any citizen who accepted a title of nobility, pension, or emolument from a
foreign state, or who married a person of royal blood, should "cease to be a citizen
of the United States."[18] The proposed amendment was, in a modified form,
accepted by both Houses, and subsequently obtained the approval of all but one
of the requisite number of States.[19] I have found nothing which indicates with any
certainty why such a provision should then have been thought necessary,[20] but
two reasons suggest themselves for the use of a constitutional amendment. First,
the provisions may have been intended in part as a sanction for Art. I, § 9, cl. 8;[21]
it may therefore have been thought more appropriate that it be placed within the
Constitution itself. Second, a student of expatriation issues in this period has
dismissed the preference for an amendment with the explanation that "the
dominant Jeffersonian view held that citizenship was within the jurisdiction of the
states; a statute would thus have been a federal usurpation of state power."[22] This
second explanation is fully substantiated by the debate in 279*279 1818; the
statements from that debate set out in the opinion for the Court were, as I have
noted, bottomed on the reasoning that since allegiance given by an individual to
a State could not be dissolved by Congress, a federal statute could not regulate
expatriation. It surely follows that this "obscure enterprise"[23] in 1810, motivated by
now discredited constitutional premises, cannot offer any significant guidance for
solution of the important issues now before us.

The most pertinent evidence from this period upon these questions has been
virtually overlooked by the Court. Twice in the two years immediately prior to its
passage of the Fourteenth Amendment, Congress exercised the very authority
which the Court now suggests that it should have recognized was entirely lacking.
In each case, a bill was debated and adopted by both Houses which included
provisions to expatriate unwilling citizens.

In the spring and summer of 1864, both Houses debated intensively the Wade-
Davis bill to provide reconstruction governments for the States which had seceded
to form the Confederacy. Among the bill's provisions was § 14, by which "every
person who shall hereafter hold or exercise any office . . . in the rebel service . . . is
hereby declared not to be a citizen of the United States."[24] Much of the debate
upon the bill did not, of course, center on the expatriation provision, although it
certainly did not escape critical attention.[25] Nonetheless, I have not found any
indication in the debates in either House that it was supposed that Congress was
without authority to deprive an unwilling citizen of his citizenship. The bill was not
signed by President Lincoln before the adjournment 280*280 of Congress, and thus
failed to become law, but a subsequent statement issued by Lincoln makes quite
plain that he was not troubled by any doubts of the constitutionality of § 14.[26]
Passage of the Wade-Davis bill of itself "suffices to destroy the notion that the men
who drafted the Fourteenth Amendment felt that citizenship was an `absolute.'
"[27]

Twelve months later, and less than a year before its passage of the Fourteenth
Amendment, Congress adopted a second measure which included provisions
that permitted the expatriation of unwilling citizens. Section 21 of the Enrollment
Act of 1865 provided that deserters from the military service of the United States
"shall be deemed and taken to have voluntarily relinquished and forfeited their
rights of citizenship and their rights to become citizens . . . ."[28] The same section
extended these disabilities to persons who departed the United States with intent
to avoid "draft into the military or naval service . . . ." [29] The bitterness of war did
not cause Congress here to neglect the requirements of the Constitution; for it was
urged in both Houses that § 21 as written was ex post facto, and thus was
constitutionally 281*281 impermissible.[30] Significantly, however, it was never
suggested in either debate that expatriation without a citizen's consent lay
beyond Congress' authority. Members of both Houses had apparently examined
intensively the section's constitutional validity, and yet had been undisturbed by
the matters upon which the Court now relies.

Some doubt, based on the phrase "rights of citizenship," has since been
expressed[31] that § 21 was intended to require any more than disfranchisement,
but this is, for several reasons, unconvincing. First, § 21 also explicitly provided that
persons subject to its provisions should not thereafter exercise various "rights of
citizens";[32] if the section had not been intended to cause expatriation, it is difficult
to see why these additional provisions would have been thought necessary.
Second, the executive authorities of the United States afterwards consistently
construed the section as causing expatriation.[33] Third, the section was apparently
understood by various courts to result in expatriation; in particular, Mr. Justice
Strong, while a member of the Supreme Court of Pennsylvania, construed the
section to cause a "forfeiture of citizenship," Huber v. Reily, 53 Pa. 112, 118, and
although this point was not expressly reached, his general understanding of the
statute was approved by this Court in Kurtz v. Moffitt, 115 U. S. 487, 501. Finally,
Congress in 1867 approved an exemption from the section's provisions for those
who had deserted after the termination of general hostilities, and the statute as
adopted specifically described the disability from which exemption was given as
a "loss of his citizenship." 282*282 15 Stat. 14. The same choice of phrase occurs in
the pertinent debates.[34]

It thus appears that Congress had twice, immediately before its passage of the
Fourteenth Amendment, unequivocally affirmed its belief that it had authority to
expatriate an unwilling citizen.

The pertinent evidence for the period prior to the adoption of the Fourteenth
Amendment can therefore be summarized as follows. The Court's conclusion
today is supported only by the statements, associated at least in part with a now
abandoned view of citizenship, of three individual Congressmen, and by the
ambiguous and inapposite dictum from Osborn. Inconsistent with the Court's
position are statements from individual Congressmen in 1794, and Congress'
passage in 1864 and 1865 of legislation which expressly authorized the expatriation
of unwilling citizens. It may be that legislation adopted in the heat of war should
be discounted in part by its origins, but, even if this is done, it is surely plain that the
Court's conclusion is entirely unwarranted by the available historical evidence for
the period prior to the passage of the Fourteenth Amendment. The evidence
suggests, to the contrary, that Congress in 1865 understood that it had authority,
at least in some circumstances, to deprive a citizen of his nationality.

II.

The evidence with which the Court supports its thesis that the Citizenship Clause of
the Fourteenth Amendment was intended to lay at rest any doubts of Congress'
inability to expatriate without the citizen's consent is no more persuasive. The
evidence consists almost exclusively of two brief and general quotations from
Howard 283*283 of Michigan, the sponsor of the Citizenship Clause in the Senate,
and of a statement made in a debate in the House of Representatives in 1868 by
Van Trump of Ohio. Measured most generously, this evidence would be
inadequate to support the important constitutional conclusion presumably drawn
in large part from it by the Court; but, as will be shown, other relevant evidence
indicates that the Court plainly has mistaken the purposes of the clause's
draftsmen.

The Amendment as initially approved by the House contained nothing which

described or defined citizenship.[35] The issue did not as such even arise in the
House debates; it was apparently assumed that Negroes were citizens, and that it
was necessary only to guarantee to them the rights which sprang from citizenship.
It is quite impossible to derive from these debates any indication that the House
wished to deny itself the authority it had exercised in 1864 and 1865; so far as the
House is concerned, it seems that no issues of citizenship were "at all involved."[36]

In the Senate, however, it was evidently feared that unless citizenship were
defined, or some more general classification substituted, freedmen might, on the
premise that they were not citizens, be excluded from the Amendment's
protection. Senator Stewart thus offered an amendment which would have
inserted into § 1 a definition of citizenship,[37] and Senator Wade urged as an
alternative the elimination of the term "citizen" from the Amendment's first
section.[38] After a caucus of the 284*284 chief supporters of the Amendment,
Senator Howard announced on their behalf that they favored the addition of the
present Citizenship Clause.[39]

The debate upon the clause was essentially cursory in both Houses, but there are
several clear indications of its intended effect. Its sponsors evidently shared the
fears of Senators Stewart and Wade that unless citizenship were defined,
freedmen might, under the reasoning of the Dred Scott decision,[40] be excluded
by the courts from the scope of the Amendment. It was agreed that, since the
"courts have stumbled on the subject," it would be prudent to remove the "doubt
thrown over" it.[41] The clause would essentially overrule Dred Scott, and place
beyond question the freedmen's right of citizenship because of birth. It was
suggested, moreover, that it would, by creating a basis for federal citizenship
which was indisputably independent of state citizenship, preclude any effort by
state legislatures to circumvent the Amendment by denying freedmen state
citizenship.[42] Nothing in the debates, however, supports the Court's assertion that
the clause was intended to deny Congress its authority to expatriate unwilling
citizens. The evidence indicates that its draftsmen instead expected the clause
only to declare unreservedly to 285*285 whom citizenship initially adhered, thus
overturning the restrictions both of Dred Scott and of the doctrine of primary state
citizenship, while preserving Congress' authority to prescribe the methods and
terms of expatriation.

The narrow, essentially definitional purpose of the Citizenship Clause is reflected in

the clear declarations in the debates that the clause would not revise the
prevailing incidents of citizenship. Senator Henderson of Missouri thus stated
specifically his understanding that the "section will leave citizenship where it now
is."[43] Senator Howard, in the first of the statements relied upon, in part, by the
Court, said quite unreservedly that "This amendment [the Citizenship Clause]
which I have offered is simply declaratory of what I regard as the law of the land
already, that every person born within the limits of the United States, and subject
to their jurisdiction, is . . . a citizen of the United States."[44] Henderson had been
present at the Senate's consideration both of the Wade-Davis bill and of the
Enrollment Act, and had voted at least for the Wade-Davis bill.[45] 286*286 Howard
was a member of the Senate when both bills were passed, and had actively
participated in the debates upon the Enrollment Act.[46] Although his views of the
two expatriation measures were not specifically recorded, Howard certainly never
expressed to the Senate any doubt either of their wisdom or of their
constitutionality. It would be extraordinary if these prominent supporters of the
Citizenship Clause could have imagined, as the Court's construction of the clause
now demands, that the clause was only "declaratory" of the law "where it now is,"
and yet that it would entirely withdraw a power twice recently exercised by
Congress in their presence.

There is, however, even more positive evidence that the Court's construction of
the clause is not that intended by its draftsmen. Between the two brief statements
from Senator Howard relied upon by the Court, Howard, in response to a question,
said the following:

"I take it for granted that after a man becomes a citizen of the United States under
the Constitution he cannot cease to be citizen, except by expatriation or the
commission of some crime by which his citizenship shall be forfeited."[47] (Emphasis
added.)

It would be difficult to imagine a more unqualified rejection of the Court's position;

Senator Howard, the clause's sponsor, very plainly believed that it would leave
unimpaired Congress' power to deprive unwilling citizens of their citizenship.[48]

287*287 Additional confirmation of the expectations of the clause's draftsmen may

be found in the legislative history, wholly overlooked by the Court, of the Act for
the Relief of certain Soldiers and Sailors, adopted in 1867. 15 Stat. 14. The Act,
debated by Congress within 12 months of its passage of the Fourteenth
Amendment, provided an exception from the provisions of § 21 of the Enrollment
Act of 1865 for those who had deserted from the Union forces after the termination
of general hostilities. Had the Citizenship Clause been understood to have the
effect now given it by the Court, surely this would have been clearly reflected in
the debates; members would at least have noted that, upon final approval of the
Amendment, which had already obtained the approval of 21 States, § 21 would
necessarily be invalid. Nothing of the sort occurred; it was argued by some
members that § 21 was imprudent and even unfair,[49] but Congress evidently did
not suppose that it was, or would be, unconstitutional. Congress simply failed to
attribute to the Citizenship 288*288 Clause the constitutional consequences now
discovered by the Court.[50]

Nonetheless, the Court urges that the debates which culminated in the
Expatriation Act of 1868 materially support its understanding of the purposes of the
Citizenship Clause. This is, for several reasons, wholly unconvincing. Initially, it should
be remembered that discussion of the Act began in committee some six months
after the passage of the Relief Act of 1867, by the Second Session of the Congress
which had approved the Relief Act; the Court's interpretation of the history of the
Expatriation Act thus demands, at the outset, the supposition that a view of the
Citizenship Clause entirely absent in July had appeared vividly by the following
January. Further, the purposes and background of the Act should not be
forgotten. The debates were stimulated by repeated requests both from President
Andrew Johnson and from the public that Congress assert the rights of naturalized
Americans against the demands of their former countries.[51] The Act as finally
adopted was thus intended "primarily to assail the conduct of the British
Government [chiefly for its acts toward naturalized Americans resident in Ireland]
and to declare the right of naturalized Americans to renounce their native
allegiance";[52] accordingly, very little of the lengthy debate was in the least
pertinent to the present issues. Several members did make plain, through their
proposed amendments to the bill or their 289*289 interstitial comments, that they
understood Congress to have authority to expatriate unwilling citizens,[53] but in
general both the issues now before the Court and questions of the implications of
the Citizenship Clause were virtually untouched in the debates.
Nevertheless, the Court, in order to establish that Congress understood that the
Citizenship Clause denied it such authority, fastens principally upon the speeches
of Congressman Van Trump of Ohio. Van Trump sponsored, as one of many similar
amendments offered to the bill by various members, a proposal to create formal
machinery by which a citizen might voluntarily renounce his citizenship.[54] Van
Trump himself spoke at length in support of his proposal; his principal speech
consisted chiefly of a detailed examination of the debates and judicial decisions
pertinent to the issues of voluntary renunciation of citizenship.[55] Never in his
catalog of relevant materials did Van Trump even mention the Citizenship Clause
of the Fourteenth Amendment;[56] so far as may be seen from his comments on the
House floor, Van Trump evidently supposed the clause to be entirely immaterial to
the issues of expatriation. This is completely characteristic of the debate in both
Houses; even its draftsmen and principal supporters, such as Senator Howard,
permitted the Citizenship Clause to 290*290 pass unnoticed. The conclusion seems
inescapable that the discussions surrounding the Act of 1868 cast only the most
minimal light, if indeed any, upon the purposes of the clause, and that the Court's
evidence from the debates is, by any standard, exceedingly slight.[57]

There is, moreover, still further evidence, overlooked by the Court, which confirms
yet again that the Court's view of the intended purposes of the Citizenship Clause
is mistaken. While the debate on the Act of 1868 was still in progress, negotiations
were completed on the first of a series of bilateral expatriation treaties, which
"initiated this country's policy of automatic divestment of citizenship for specified
conduct affecting our foreign relations." Perez v. Brownell, supra, at 48. Seven such
treaties were negotiated in 1868 and 1869 alone;[58] each was ratified by the
Senate. If, as the Court now suggests, it was "abundantly clear" to Congress in 1868
that the Citizenship Clause had taken from its hands the power of expatriation, it
is quite difficult to understand why these conventions were negotiated, or why,
once negotiated, 291*291 they were not immediately repudiated by the
Senate.[59]

Further, the executive authorities of the United States repeatedly acted, in the 40
years following 1868, upon the premise that a citizen might automatically be
deemed to have expatriated himself by conduct short of a voluntary renunciation
of citizenship; individual citizens were, as the Court indicated in Perez, regularly
held on this basis to have lost their citizenship. Interested Members of Congress,
and others, could scarcely have been unaware of the practice; as early as 1874,
President Grant urged Congress in his Sixth Annual Message to supplement the Act
of 1868 with a statutory declaration of the acts by which a citizen might "be
deemed to have renounced or to have lost his citizenship."[60] It was the necessity
to provide a more satisfactory basis for this practice that led first to the
appointment of the Citizenship Board of 1906, and subsequently to the Nationality
Acts of 1907 and 1940. The administrative practice in this period was described by
the Court in Perez; it suffices here merely to emphasize that the Court today has
not ventured to explain why the Citizenship Clause should, so shortly after its
adoption, have been, under the Court's construction, so seriously misunderstood.

It seems to me apparent that the historical evidence which the Court in part
recites is wholly inconclusive, 292*292 as indeed the Court recognizes; the
evidence, to the contrary, irresistibly suggests that the draftsmen of the Fourteenth
Amendment did not intend, and could not have expected, that the Citizenship
Clause would deprive Congress of authority which it had, to their knowledge, only
recently twice exercised. The construction demanded by the pertinent historical
evidence, and entirely consistent with the clause's terms and purposes, is instead
that it declares to whom citizenship, as a consequence either of birth or of
naturalization, initially attaches. The clause thus served at the time of its passage
both to overturn Dred Scott and to provide a foundation for federal citizenship
entirely independent of state citizenship; in this fashion it effectively guaranteed
that the Amendment's protection would not subsequently be withheld from those
for whom it was principally intended. But nothing in the history, purposes, or
language of the clause suggests that it forbids Congress in all circumstances to
withdraw the citizenship of an unwilling citizen. To the contrary, it was expected,
and should now be understood, to leave Congress at liberty to expatriate a citizen
if the expatriation is an appropriate exercise of a power otherwise given to
Congress by the Constitution, and if the methods and terms of expatriation
adopted by Congress are consistent with the Constitution's other relevant
commands.

The Citizenship Clause thus neither denies nor provides to Congress any power of
expatriation; its consequences are, for present purposes, exhausted by its
declaration of the classes of individuals to whom citizenship initially attaches.
Once obtained, citizenship is of course protected from arbitrary withdrawal by the
constraints placed around Congress' powers by the Constitution; it is not proper to
create from the Citizenship Clause an additional, and entirely unwarranted,
restriction 293*293 upon legislative authority. The construction now placed on the
Citizenship Clause rests, in the last analysis, simply on the Court's ipse dixit, evincing
little more, it is quite apparent, than the present majority's own distaste for the
expatriation power.

I believe that Perez was rightly decided, and on its authority would affirm the
judgment of the Court of Appeals.

[1] 54 Stat. 1168, as amended, 58 Stat. 746, 8 U. S. C. § 801 (1946 ed.):

"A person who is a national of the United States, whether by birth or naturalization,
shall lose his nationality by:

.....

"(e) Voting in a political election in a foreign state or participating in an election

or plebiscite to determine the sovereignty over foreign territory."

This provision was re-enacted as § 349 (a) (5) of the Immigration and Nationality
Act of 1952, 66 Stat. 267, 8 U. S. C. § 1481 (a) (5).

[2] "All persons born or naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States . . . ."

[3] 250 F. Supp. 686; 361 F. 2d 102, 105.

[4] Trop v. Dulles, 356 U. S. 86; Nishikawa v. Dulles, 356 U. S. 129.

[5] Kennedy v. Mendoza-Martinez, 372 U. S. 144; Schneider v. Rusk, 377 U. S. 163. In

his concurring opinion in Mendoza-Martinez, MR. JUSTICE BRENNAN expressed "felt
doubts of the correctness of Perez . . . ." 372 U. S., at 187.

[6] See, e. g., Agata, Involuntary Expatriation and Schneider v. Rusk, 27 U. Pitt. L.
Rev. 1 (1965); Hurst, Can Congress Take Away Citizenship?, 29 Rocky Mt. L. Rev. 62
(1956); Kurland, Foreword: "Equal in Origin and Equal in Title to the Legislative and
Executive Branches of the Government," 78 Harv. L. Rev. 143, 169-175 (1964);
Comment, 56 Mich. L. Rev. 1142 (1958); Note, Forfeiture of Citizenship Through
Congressional Enactments, 21 U. Cin. L. Rev. 59 (1952); 40 Cornell L. Q. 365 (1955);
25 S. Cal. L. Rev. 196 (1952). But see, e. g., Comment, The Expatriation Act of 1954,
64 Yale L. J. 1164 (1955).
[7] See Perez v. Brownell, supra, at 62 (dissenting opinion of THE CHIEF JUSTICE), 79
(dissenting opinion of MR. JUSTICE DOUGLAS); Trop v. Dulles, supra, at 91-93 (part I
of opinion of Court); Nishikawa v. Dulles, supra, at 138 (concurring opinion of MR.
JUSTICE BLACK).

[8] For a history of the early American view of the right of expatriation, including
these congressional proposals, see generally Roche, The Early Development of
United States Citizenship (1949); Tsiang, The Question of Expatriation in America
Prior to 1907 (1942); Dutcher, The Right of Expatriation, 11 Am. L. Rev. 447 (1877);
Roche, The Loss of American Nationality—The Development of Statutory
Expatriation, 99 U. Pa. L. Rev. 25 (1950); Slaymaker, The Right of the American
Citizen to Expatriate, 37 Am. L. Rev. 191 (1903).

[9] 4 Annals of Cong. 1005, 1027-1030 (1794); 7 Annals of Cong. 349 et seq. (1797).

[10] See, e. g., Talbot v. Janson, 3 Dall. 133.

[11] 31 Annals of Cong. 495 (1817).

[12] Id., at 1036-1037, 1058 (1818). Although some of the opponents, believing that
citizenship was derived from the States, argued that any power to prescribe the
mode for its relinquishment rested in the States, they were careful to point out that
"the absence of all power from the State Legislatures would not vest it in us." Id., at
1039.

[13] The amendment had been proposed by the 11th Cong., 2d Sess. See The
Constitution of the United States of America, S. Doc. No. 39, 88th Cong., 1st Sess.,
77-78 (1964).

[14] Id., at 1071. It is interesting to note that the proponents of the bill, such as
Congressman Cobb of Georgia, considered it to be "the simple declaration of the
manner in which a voluntary act, in the exercise of a natural right, may be
performed" and denied that it created or could lead to the creation of "a
presumption of relinquishment of the right of citizenship." Id., at 1068.

[15] The dissenting opinion here points to the fact that a Civil War Congress passed
two Acts designed to deprive military deserters to the Southern side of the rights of
citizenship. Measures of this kind passed in those days of emotional stress and
hostility are by no means the most reliable criteria for determining what the
Constitution means.

[16] Cong. Globe, 39th Cong., 1st Sess., 2768-2769, 2869, 2890 et seq. (1866). See
generally, Flack, Adoption of the Fourteenth Amendment 88-94 (1908).

[17] Representative Jenckes of Rhode Island introduced an amendment that

would expatriate those citizens who became naturalized by a foreign
government, performed public duties for a foreign government, or took up
domicile in a foreign country without intent to return. Cong. Globe, 40th Cong., 2d
Sess., 968, 1129, 2311 (1868). Although he characterized his proposal as covering
"cases where citizens may voluntarily renounce their allegiance to this country,"
id., at 1159, it was opposed by Representative Chanler of New York who said, "So
long as a citizen does not expressly dissolve his allegiance and does not swear
allegiance to another country his citizenship remains in statu quo, unaltered and
unimpaired." Id., at 1016.

[18] Proposals of Representatives Pruyn of New York (id., at 1130) and Van Trump
of Ohio (id., at 1801, 2311).
[19] While Van Trump disagreed with the 1818 opponents as to whether Congress
had power to prescribe a means of voluntary renunciation of citizenship, he
wholeheartedly agreed with their premise that the right of expatriation belongs to
the citizen, not to the Government, and that the Constitution forbids the
Government from being party to the act of expatriation. Van Trump simply
thought that the opponents of the 1818 proposal failed to recognize that their
mutual premise would not be violated by an Act which merely prescribed "how .
. . [the rights of citizenship] might be relinquished at the option of the person in
whom they were vested." Cong. Globe, 40th Cong., 2d Sess., 1804 (1868).

[20] Id., at 2317. Representative Banks of Massachusetts, the Chairman of the

House Committee on Foreign Affairs which drafted the bill eventually enacted into
law, explained why Congress refrained from providing a means of expatriation:

"It is a subject which, in our opinion, ought not to be legislated upon. . . . [T]his
comes within the scope and character of natural rights which no Government has
the right to control and which no Government can confer. And wherever this
subject is alluded to in the Constitution— . . . it is in the declaration that Congress
shall have no power whatever to legislate upon these matters." Id., at 2316.

[21] 15 Stat. 223, R. S. § 1999.

[22] Some have referred to this part of the decision as a holding, see, e. g., Hurst,
supra, 29 Rocky Mt. L. Rev., at 78-79; Comment, 56 Mich. L. Rev., at 1153-1154;
while others have referred to it as obiter dictum, see, e. g., Roche, supra, 99 U. Pa.
L. Rev., at 26-27. Whichever it was, the statement was evidently the result of serious
consideration and is entitled to great weight.

[23] Of course, as THE CHIEF JUSTICE said in his dissent, 356 U. S., at 66, naturalization
unlawfully procured can be set aside. See, e. g., Knauer v. United States, 328 U. S.
654; Baumgartner v. United States, 322 U. S. 665; Schneiderman v. United States,
320 U. S. 118.

[1] It is appropriate to note at the outset what appears to be a fundamental

ambiguity in the opinion for the Court. The Court at one point intimates, but does
not expressly declare, that it adopts the reasoning of the dissent of THE CHIEF
JUSTICE in Perez. THE CHIEF JUSTICE there acknowledged that "actions in
derogation of undivided allegiance to this country" had "long been recognized"
to result in expatriation, id., at 68; he argued, however, that the connection
between voting in a foreign political election and abandonment of citizenship
was logically insufficient to support a presumption that a citizen had renounced
his nationality. Id., at 76. It is difficult to find any semblance of this reasoning,
beyond the momentary reference to the opinion of THE CHIEF JUSTICE, in the
approach taken by the Court today; it seems instead to adopt a substantially
wider view of the restrictions upon Congress' authority in this area. Whatever the
Court's position, it has assumed that voluntariness is here a term of fixed meaning;
in fact, of course, it has been employed to describe both a specific intent to
renounce citizenship, and the uncoerced commission of an act conclusively
deemed by law to be a relinquishment of citizenship. Until the Court indicates with
greater precision what it means by "assent," today's opinion will surely cause still
greater confusion in this area of the law.

[2] It is useful, however, to reiterate the essential facts of this case, for the Court's
very summary statement might unfortunately cause confusion about the situation
to which § 401 (e) was here applied. Petitioner emigrated from the United States
to Israel in 1950, and, although the issue was not argued at any stage of these
proceedings, it was assumed by the District Court that he "has acquired Israeli
citizenship." 250 F. Supp. 686, 687. He voted in the election for the Israeli Knesset in
1951, and, as his Israeli Identification Booklet indicates, in various political elections
which followed. Transcript of Record 1-2. In 1960, after 10 years in Israel, petitioner
determined to return to the United States, and applied to the United States
Consulate in Haifa for a passport. The application was rejected, and a Certificate
of Loss of Nationality, based entirely on his participation in the 1951 election, was
issued. Petitioner's action for declaratory judgment followed. There is, as the District
Court noted, "no claim by the [petitioner] that the deprivation of his American
citizenship will render him a stateless person." Ibid.

[3] See generally Tsiang, The Question of Expatriation in America Prior to 1907, 25-
70; Roche, The Expatriation Cases, 1963 Sup. Ct. Rev. 325, 327-330; Roche, Loss of
American Nationality, 4 West. Pol. Q. 268.

[4] Roche, The Expatriation Cases, 1963 Sup. Ct. Rev. 325, 329. Although the
evidence, which consists principally of a letter to Albert Gallatin, is rather
ambiguous, Jefferson apparently believed even that a state expatriation statute
could deprive a citizen of his federal citizenship. 1 Writings of Albert Gallatin 301-
302 (Adams ed. 1879). His premise was presumably that state citizenship was
primary, and that federal citizenship attached only through it. See Tsiang, supra,
at 25. Gallatin's own views have been described as essentially "states' rights"; see
Roche, Loss of American Nationality, 4 West. Pol. Q. 268, 271.

[5] See 4 Annals of Cong. 1004 et seq.

[6] The discussion and rejection of the amendment are cursorily reported at 4
Annals of Cong. 1028-1030.

[7] The sixth section is set out at 7 Annals of Cong. 349.

[8] The bill is summarized at 31 Annals of Cong. 495.

[9] 31 Annals of Cong. 1046.

[10] 31 Annals of Cong. 1057.

[11] Ibid. Roche describes the Congressmen upon whom the Court chiefly relies as
"the states' rights opposition." Loss of American Nationality, 4 West. Pol. Q. 268, 276.

[12] 31 Annals of Cong. 1047.

[13] 31 Annals of Cong. 1050.

[14] 31 Annals of Cong. 1059.

[15] Ibid.

[16] 31 Annals of Cong. 1051.

[17] Similarly, the Court can obtain little support from its invocation of the dictum
from the opinion for the Court in United States v. Wong Kim Ark, 169 U. S. 649, 703.
The central issue there was whether a child born of Chinese nationals domiciled in
the United States is an American citizen if its birth occurs in this country. The dictum
upon which the Court relies, which consists essentially of a reiteration of the dictum
from Osborn, can therefore scarcely be considered a reasoned consideration of
the issues now before the Court. Moreover, the dictum could conceivably be read
to hold only that no power to expatriate an unwilling citizen was conferred either
by the Naturalization Clause or by the Fourteenth Amendment; if the dictum
means no more, it would of course not even reach the holding in Perez. Finally, the
dictum must be read in light of the subsequent opinion for the Court, written by
Mr. Justice McKenna, in Mackenzie v. Hare, 239 U. S. 299. Despite counsel's
invocation of Wong Kim Ark, id., at 302 and 303, the Court held in Mackenzie that
marriage between an American citizen and an alien, unaccompanied by any
intention of the citizen to renounce her citizenship, nonetheless permitted
Congress to withdraw her nationality. It is immaterial for these purposes that Mrs.
Mackenzie's citizenship might, under the statute there, have been restored upon
termination of the marital relationship; she did not consent to the loss, even
temporarily, of her citizenship, and, under the proposition apparently urged by the
Court today, it can therefore scarcely matter that her expatriation was subject to
some condition subsequent. It seems that neither Mr. Justice McKenna, who
became a member of the Court after the argument but before the decision of
Wong Kim Ark, supra, at 732, nor Mr. Chief Justice White, who joined the Court's
opinions in both Wong Kim Ark and Mackenzie, thought that Wong Kim Ark
required the result reached by the Court today. Nor, it must be supposed, did the
other six members of the Court who joined Mackenzie, despite Wong Kim Ark.

[18] The various revisions of the proposed amendment may be traced through 20
Annals of Cong. 530, 549, 572-573, 635, 671.

[19] Ames, The Proposed Amendments to the Constitution of the United States
during the First Century of Its History, 2 Ann. Rep. Am. Hist. Assn. for the Year 1896,
188.

[20] Ames, supra, at 187, speculates that the presence of Jerome Bonaparte in this
country some few years earlier might have caused apprehension, and concludes
that the amendment was merely an expression of "animosity against foreigners."
Id., at 188.

[21] The clause provides that "No Title of Nobility shall be granted by the United
States: And no Person holding any Office of Profit or Trust under them, shall, without
the Consent of the Congress, accept of any present, Emolument, Office, or Title,
of any kind whatever, from any King, Prince, or foreign State."

[22] Roche, The Expatriation Cases, 1963 Sup. Ct. Rev. 325, 335.

[23] Ibid.

[24] 6 Richardson, Messages and Papers of the Presidents 226.

[25] See, e. g., the comments of Senator Brown of Missouri, Cong. Globe, 38th
Cong., 1st Sess., 3460.

[26] Lincoln indicated that although he was "unprepared" to be "inflexibly

committed" to "any single plan of restoration," he was "fully satisfied" with the bill's
provisions. 6 Richardson, Messages and Papers of the Presidents 222-223.

[27] Roche, The Expatriation Cases, 1963 Sup. Ct. Rev. 325, 343.

[28] 13 Stat. 490. It was this provision that, after various recodifications, was held
unconstitutional by this Court in Trop v. Dulles, 356 U. S. 86. A majority of the Court
did not there hold that the provision was invalid because Congress lacked all
power to expatriate an unwilling citizen. In any event, a judgment by this Court 90
years after the Act's passage can scarcely reduce the Act's evidentiary value for
determining whether Congress understood in 1865, as the Court now intimates
that it did, that it lacked such power.

[29] 13 Stat. 491.

[30] Cong. Globe, 38th Cong., 2d Sess., 642-643, 1155-1156.

[31] Roche, The Expatriation Cases, 1963 Sup. Ct. Rev. 325, 336.
[32] 13 Stat. 490.

[33] Hearings before House Committee on Immigration and Naturalization on H. R.

6127, 76th Cong., 1st Sess., 38.

[34] See, e. g., the remarks of Senator Hendricks, Cong. Globe, 40th Cong., 1st
Sess., 661.

[35] The pertinent events are described in Flack, Adoption of the Fourteenth
Amendment 83-94.

[36] Id., at 84.

[37] Cong. Globe, 39th Cong., 1st Sess., 2560.

[38] Wade would have employed the formula "persons born in the United States
or naturalized under the laws thereof" to measure the section's protection. Cong.
Globe, 39th Cong., 1st Sess., 2768-2769.

[39] Cong. Globe, 39th Cong., 1st Sess., 2869. The precise terms of the discussion in
the caucus were, and have remained, unknown. For contemporary comment,
see Cong. Globe, 39th Cong., 1st Sess., 2939.

[40] Scott v. Sandford, 19 How. 393.

[41] Cong. Globe, 39th Cong., 1st Sess., 2768.

[42] See, e. g., the comments of Senator Johnson of Maryland, Cong. Globe, 39th
Cong., 1st Sess., 2893. It was subsequently acknowledged by several members of
this Court that a central purpose of the Citizenship Clause was to create an
independent basis of federal citizenship, and thus to overturn the doctrine of
primary state citizenship. The Slaughter-House Cases, 16 Wall. 36, 74, 95, 112. The
background of this issue is traced in tenBroek, The Antislavery Origins of the
Fourteenth Amendment 71-93.

[43] Cong. Globe, 39th Cong., 1st Sess., 3031. See also Flack, The Adoption of the
Fourteenth Amendment 93. In the same fashion, tenBroek, supra, at 215-217,
concludes that the whole of § 1 was "declaratory and confirmatory." Id., at 217.

[44] Cong. Globe, 39th Cong., 1st Sess., 2890. See also the statement of
Congressman Baker, Cong. Globe, 39th Cong., 1st Sess., App. 255, 256. Similarly,
two months after the Amendment's passage through Congress, Senator Lane of
Indiana remarked that the clause was "simply a re-affirmation" of the declaratory
citizenship section of the Civil Rights Bill. Fairman, Does the Fourteenth Amendment
Incorporate the Bill of Rights? 2 Stan. L. Rev. 5, 74.

[45] Senator Henderson participated in the debates upon the Enrollment Act and
expressed no doubts about the constitutionality of § 21, Cong. Globe, 38th Cong.,
2d Sess., 641, but the final vote upon the measure in the Senate was not recorded.
Cong. Globe, 38th Cong., 2d Sess., 643.

[46] See, e. g., Cong. Globe, 38th Cong., 2d Sess., 632.

[47] Cong. Globe, 39th Cong., 1st Sess., 2895.

[48] The issues pertinent here were not, of course, matters of great consequence
in the ratification debates in the several state legislatures, but some additional
evidence is nonetheless available from them. The Committee on Federal Relations
of the Texas House of Representatives thus reported to the House that the
Amendment's first section "proposes to deprive the States of the right . . . to
determine what shall constitute citizenship of a State, and to transfer that right to
the Federal Government." Its "object" was, they thought, "to declare negroes to
be citizens of the United States." Tex. House J. 578 (1866). The Governor of Georgia
reported to the legislature that the "prominent feature of the first [section] is, that
it settles definitely the right of citizenship in the several States, . . . thereby depriving
them in the future of all discretionary power over the subject within their respective
limits, and with reference to their State Governments proper." Ga. Sen. J. 6 (1866).
See also the message of Governor Cox to the Ohio Legislature, Fairman, supra, 2
Stan. L. Rev., at 96, and the message of Governor Fletcher to the Missouri
Legislature, Mo. Sen. J. 14 (1867). In combination, this evidence again suggests
that the Citizenship Clause was expected merely to declare to whom citizenship
initially attaches, and to overturn the doctrine of primary state citizenship.

[49] Senator Hendricks, for example, lamented its unfairness, declared that its
presence was an "embarrassment" to the country, and asserted that it "is not
required any longer." Cong. Globe, 40th Cong., 1st Sess., 660-661.

[50] Similarly, in 1885, this Court construed § 21 without any apparent indication
that the section was, or had ever been thought to be, beyond Congress' authority.
Kurtz v. Moffitt, 115 U. S. 487, 501-502.

[51] Tsiang, supra, n. 3, at 95. President Johnson emphasized in his Third Annual
Message the difficulties which were then prevalent. 6 Richardson, Messages and
Papers of the Presidents 558, 580-581.

[52] Tsiang, supra, at 95. See also 3 Moore, Digest of International Law 579-580.

[53] See, e. g., Cong. Globe, 40th Cong., 2d Sess., 968, 1129-1131.

[54] Van Trump's proposal contained nothing which would have expatriated any
unwilling citizen, see Cong. Globe, 40th Cong., 2d Sess., 1801; its ultimate failure
therefore cannot, despite the Court's apparent suggestion, help to establish that
the House supposed that legislation similar to that at issue here was impermissible
under the Constitution.

[55] Cong. Globe, 40th Cong., 2d Sess., 1800-1805.

[56] It should be noted that Van Trump, far from a "framer" of the Amendment,
had not even been a member of the Congress which adopted it. Biographical
Directory of the American Congress 1774-1961, H. R. Doc. No. 442, 85th Cong., 2d
Sess., 1750.

[57] As General Banks, the Chairman of the House Committee on Foreign Affairs,
carefully emphasized, the debates were intended simply to produce a
declaration of the obligation of the United States to compel other countries "to
consider the rights of our citizens and to bring the matter to negotiation and
settlement"; the bill's proponents stood "for that and nothing more." Cong. Globe,
40th Cong., 2d Sess., 2315.

[58] The first such treaty was that with the North German Union, concluded
February 22, 1868, and ratified by the Senate on March 26, 1868. 2 Malloy, Treaties,
Conventions, International Acts, Protocols and Agreements between the United
States and other Powers 1298. Similar treaties were reached in 1868 with Bavaria,
Baden, Belgium, Hesse, and Württemberg; a treaty was reached in 1869 with
Norway and Sweden. An analogous treaty was made with Mexico in 1868, but,
significantly, it permitted rebuttal of the presumption of renunciation of citizenship.
See generally Tsiang, supra, at 88.

[59] The relevance of these treaties was certainly not overlooked in the debates
in the Senate upon the Act of 1868. See, e. g., Cong. Globe, 40th Cong., 2d Sess.,
4205, 4211, 4329, 4331. Senator Howard attacked the treaties, but employed none
of the reasons which might be suggested by the opinion for the Court today. Id.,
at 4211.

[60] 7 Richardson, Messages and Papers of the Presidents 284, 291. See further
Borchard, Diplomatic Protection of Citizens Abroad §§ 319, 324, 325.