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By:
Filomeno V. Aguilar Jr., professor, Department of History and Project Director at the Institute of Philippine Culture (IPC), School of Social Sciences, Ateneo de Manila University.
The recent Supreme Court decision on Grace Poehas made many legal minds raise the question of whether or not they still knew the law as they had learned it in law school. Although the High Court’s decision is acceptable to a majority of the electorate as a recent survey reveals, many lawyers find it hard to accept the decision, which they believe throws the book on citizenship out the window. For instance, that foundlings are presumed natural-born Filipinos is unprecedented.
This case reminds us that citizenship is not a static, but rather a dynamic, political concept. New legislation may be enacted – such as, in 2003, RA 9225, “An Act Making the Citizenship of Philippine Citizens Who Acquire Foreign Citizenship Permanent” – which changes the rules of political membership. But the law need not be changed for a different reading to surface. The same law can be interpreted differently under a new set of circumstances.
Today, we take it for granted that the Philippines follows the principle ofjus sanguinis (law of the blood) to determine citizenship, but in the first half of the 20th century, the principle of jus soli (law of the soil) was once regnant.
In fact, the 1899 Malolos Constitution enunciated jus soli as the principle of citizenship, declaring that Filipinos included “all persons born on Filipino territory.” Malolos was remarkably inclusive. However, the US military invasion of the Philippines truncated the Malolos Republic and left no opportunity to probe its tenets on citizenship before a court of law.
The invention of Philippine citizenship came with the Philippine Bill of 1902, signed into law on July 1, 1902, to become the country’s “first organic act.” Section 4 stipulated that the “inhabitants” of the Philippine Islands who were Spanish subjects on April 11, 1899, the date when the Treaty of Paris was proclaimed as duly ratified by both Spain and the United States, became “citizens of the Philippine Islands” (unless one opted for Spanish nationality). Philippine citizenship was a direct successor to Spanish subjecthood. The diverse populations in the country at that time thus acquired Philippine citizenship, a political status they could pass on to their children – suggesting jus sanguinis as one of the means to determine Philippine citizenship.
The original provision in the Philippine Bill of 1902 was retained in Section 2 of the Jones Law, or the Philippine Autonomy Act, which was signed into law in 1916. It also devolved authority to the Philippine Assembly to enact a law on Philippine citizenship within the parameters of US law for persons inadvertently excluded by the Philippine Bill. The legislature then declared persons born in the Philippine Islands as its citizens, aside from those already considered Filipino citizens by virtue of the 1902 and 1916 legislations.
However, as early as 1911, the Philippine Supreme Court had already begun to apply the principle of jus soli and grant Philippine citizenship to persons with “Chinese” fathers and “Filipino” mothers, usually travelers from China who were prohibited by local authorities from entering the country based on the Chinese Exclusion Laws. Among several cases, only two will be noted here: those of Benito Muñoz and Tranquilino Roa.
Cases
The Supreme Court first enunciated jus soli citizenship in the case of Benito Muñoz, who was born in Camalig, Albay, on January 17, 1880. Muñoz was denied admission in January 1911 as he returned to the Philippines from China, where his Chinese father and Filipina mother had sent him when he was 11 years old.
Muñoz asserted he was a “native and citizen” of the Philippines and “presented satisfactory proof that he would have returned sooner to the Philippine Islands had it not been for certain financial difficulties, and that he had never intended to expatriate himself and had never taken any active steps to that end.”
The Court ruled on November 23, 1911, that Muñoz was a Philippine citizen. The Court also emphasized that Muñoz, who stayed in China for some twenty years until he was 31 years old, had the “honest” intention to return to the Philippines (“the animus revertendi existed”).
Tranquilino Roa, who was born in Luculan, Mindanao, on July 6, 1889, was similarly denied entry as he returned to the Philippines from China in October 1910.
Roa’s father went to China in 1895 and died there 5 years later. His “Filipina” mother later sent him to China to study “and always with the intention of returning” to the Philippines, which he did in 1910 before he reached his 21st birthday.
In its October 30, 1912 decision, the Supreme Court declared Roa a citizen of the Philippine Islands “and never having expatriated himself, he still remains a citizen of this country.” We note that in these two cases, being in a foreign country did not mean expatriation.
The Supreme Court’s decision on Roa’s case advanced an interpretation of Section 4 of the Philippine Bill that “the doctrine or principle of citizenship by place of birth which prevails in the United States was extended to the Philippine Islands, but with limitations.” The Court argued that Section 4 “must be read according to its spirit and intent….It is to be given that construction which best comports with the principles of reason and justice.”
The Court cited approvingly a previous US Supreme Court decision that “no principle has been more repeatedly announced by the judicial tribunals of the country, and more constantly acted upon, than that the leaning, in questions of citizenship, should always be in favor of the claimant of it.”
Following this principle, the Supreme Court of the Philippines espoused a compassionate reading of Section 4 of the Philippine Bill. It asserted that to construe this provision as preventing Roa’s return to the Philippines “would have the effect of excluding the appellant from his native country, from home and all that home means, from his mother, brothers, and sisters, and compel him to live in practically a strange country and among strange people.”
The Court suggested that, in addition to birth in the territory, personal sentiments and affection and familial ties were implicated in the principle of political belonging.
Wong Kim Ark
The Filipino and American justices of the Supreme Court exemplified liberality throughout the period of US colonial rule. The case decisions indicate that they were drawing from the “activist” or “reformist” edge of the US Supreme Court, exemplified in its March 1898 decision on the case of Wong Kim Ark, born in San Francisco in 1873 of Chinese parents who, although legal migrants, were ineligible for naturalization. The Court’s recognition of Wong’s US citizenship contradicted the prevailing public sentiment and anti-Sinicism that were fueling the Chinese Exclusion Laws at the time.
The landmark case of Wong Kim Ark exerted a powerful jurisprudential influence on the Philippine Supreme Court, its invocation made all the more stark by the parallel exclusion laws that immigrants confronted in both the Philippines and the United States. The force of this jurisprudence moved justices in the Philippines to uphold “the principles of reason and justice” by insisting on the extension of the Fourteenth Amendment to the Philippines as the spirit of the law. The High Court thus contradicted the earlier stance of the US Congress and the executive branch, particularly the Bureau of Insular Affairs of the War Department.
In the convention that was called to draft the 1935 Constitution there was spirited debate on the two principles of citizenship. Advocates of jus sanguinis raised the specter of those born in the country of foreign parentage who would use Philippine citizenship to steal the “national patrimony.” One’s real political sentiments, it was believed, resided “in the blood,” which gave one a set of immutable personal as well as political characteristics. The 1935 Charter enshrined jus sanguinis.
Sea change
The tide of legal opinion was undergoing a sea change, which would culminate in 1947, when the Supreme Court closed Tan Chong’s case. Records indicate that Jose Tan Chong was born in San Pablo, Laguna, in July 1915, of a “Chinese” father named Tan Chong Hong and a “Filipino” mother named Antonia Mangahis. His parents took him to China in 1925 when he was 10 years old, and he returned to the Philippines on January 25, 1940, when he was 24 years old. He was denied entry for being a Chinese citizen, a decision affirmed by the Secretary of Labor who ordered his deportation.
On October 15, 1941 the Supreme Court – with an all-Filipino bench but still under US jurisdiction – affirmed the judgment of the lower court that Tan Chong, “having been born in the Philippines before the approval of our [1935] Constitution, of a Chinese father and a Filipino mother, is a Filipino citizen.” The Court also noted that Tan Chong’s delayed return to the Philippines was due to “his father [who] would not allow him to come, and he did not have the means to pay for his transportation back to the Philippines until the date of his return.”
A week after the Court issued its decision, the solicitor general filed a motion for reconsideration, contending that Tan Chong was not a citizen based on the laws at the time of his birth. The war intervened before the case could be resolved, destroying the records that had to be reconstituted in 1946.
On September 16, 1947, the Supreme Court – now of the formally independent Republic of the Philippines – proceeded to resolve the prewar motion for reconsideration.
It admitted: “In a long line of decisions, this Court has held that the principle of jus soli applies in this jurisdiction.” But after providing a different reading of previous case decisions, it proceeded to assert, “While birth is an important element of citizenship, it alone does not make a person a citizen of the country of his birth.” Jose Tan Chong, then 32 years old, was declared not a citizen of the Philippines. One could only speculate that, had the case been resolved prior to the war, Tan Chong would have been declared a Filipino citizen.
In 1947, the Supreme Court argued that the US tenet of jus soli embodied in the Fourteenth Amendment was never extended to the Philippines. It rendered a different reading of Section 4 of the Philippine Bill of 1902 as amended in 1912. Reinterpreting the same legal texts but in a different context, the Supreme Court abandoned jus soli. The book on citizenship that had been in use was thrown out of the window.
Jus sanguinis has since been the regnant principle in Philippine citizenship. But as this highly condensed history suggests, invoking “the principles of reason and justice” does not occur in a vacuum. Whatever is deemed absolute about citizenship holds only for a given time and place. It is open to change given the predominating spirit of the times. – Rappler.com
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Filomeno V. Aguilar Jr is professor in the Department of History and Project Director at the Institute of Philippine Culture (IPC), both in the School of Social Sciences, Ateneo de Manila University. An extended discussion may be found in Between the Letter and Spirit of the Law: Ethnic Chinese and Philippine Citizenship by Jus Soli, 1899-1947 published in Southeast Asian Studies, vol. 49, no. 3 (2011): 431–463.
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