RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR,
vs.
VICENTE D. CHING, applicant.
R E S O L U T I O N
Can
a legitimate child born under the 1935 Constitution of a Filipino
mother and an alien father validly elect Philippine citizenship fourteen
(14) years after he has reached the age of majority? This is the
question sought to be resolved in the present case involving the
application for admission to the Philippine Bar of Vicente D. Ching.
The facts of this case are as follows:
Vicente D. Ching, the legitimate son of the spouses
Tat Ching, a Chinese citizen, and Prescila A. Dulay, a Filipino, was
born in Francia West, Tubao, La Union on 11 April 1964. Since his birth,
Ching has resided in the Philippines.
On 17 July 1998, Ching, after having completed a
Bachelor of Laws course at the St. Louis University in Baguio City,
filed an application to take the 1998 Bar Examinations. In a Resolution
of this Court, dated 1 September 1998, he was allowed to take the Bar
Examinations, subject to the condition that he must submit to the Court
proof of his Philippine citizenship.
In compliance with the above resolution, Ching submitted on 18 November 1998, the following documents:
1. Certification, dated 9 June 1986, issued by the
Board of Accountancy of the Professional Regulations Commission showing
that Ching is a certified public accountant;
2. Voter Certification, dated 14 June 1997, issued by
Elizabeth B. Cerezo, Election Officer of the Commission on Elections
(COMELEC) in Tubao La Union showing that Ching is a registered voter of
the said place; and
3. Certification, dated 12 October 1998, also issued
by Elizabeth B. Cerezo, showing that Ching was elected as a member of
the Sangguniang Bayan of Tubao, La Union during the 12 May 1992
synchronized elections.
On 5 April 1999, the results of the 1998 Bar
Examinations were released and Ching was one of the successful Bar
examinees. The oath-taking of the successful Bar examinees was scheduled
on 5 May 1999. However, because of the questionable status of Ching's
citizenship, he was not allowed to take his oath. Pursuant to the
resolution of this Court, dated 20 April 1999, he was required to submit
further proof of his citizenship. In the same resolution, the Office of
the Solicitor General (OSG) was required to file a comment on Ching's
petition for admission to the bar and on the documents evidencing his
Philippine citizenship.
The OSG filed its comment on 8 July 1999, stating
that Ching, being the "legitimate child of a Chinese father and a
Filipino mother born under the 1935 Constitution was a Chinese citizen
and continued to be so, unless upon reaching the age of majority he
elected Philippine citizenship" 1 in strict compliance with
the provisions of Commonwealth Act No. 625 entitled "An Act Providing
for the Manner in which the Option to Elect Philippine Citizenship shall
be Declared by a Person Whose Mother is a Filipino Citizen." The OSG
adds that "(w)hat he acquired at best was only an inchoate Philippine
citizenship which he could perfect by election upon reaching the age of
majority." 2 In this regard, the OSG clarifies that "two (2)
conditions must concur in order that the election of Philippine
citizenship may be effective, namely: (a) the mother of the person
making the election must be a citizen of the Philippines; and (b) said
election must be made upon reaching the age of majority." 3 The OSG then explains the meaning of the phrase "upon reaching the age of majority:"
The clause "upon reaching the age of majority" has
been construed to mean a reasonable time after reaching the age of
majority which had been interpreted by the Secretary of Justice to be
three (3) years (VELAYO, supra at p. 51 citing Op., Sec. of Justice No. 70, s. 1940, Feb. 27, 1940). Said period may be extended under certain circumstances, as when a (sic) person concerned has always considered himself a Filipino (ibid., citing Op. Nos. 355 and 422, s. 1955; 3, 12, 46, 86 and 97, s. 1953). But in Cuenco, it was held that an election done after over seven (7) years was not made within a reasonable time.
In conclusion, the OSG points out that Ching has not
formally elected Philippine citizenship and, if ever he does, it would
already be beyond the "reasonable time" allowed by present
jurisprudence. However, due to the peculiar circumstances surrounding
Ching's case, the OSG recommends the relaxation of the standing rule on
the construction of the phrase "reasonable period" and the allowance of
Ching to elect Philippine citizenship in accordance with C.A. No. 625
prior to taking his oath as a member of the Philippine Bar.
On 27 July 1999, Ching filed a Manifestation,
attaching therewith his Affidavit of Election of Philippine Citizenship
and his Oath of Allegiance, both dated 15 July 1999. In his
Manifestation, Ching states:
1. I have always considered myself as a Filipino;
2. I was registered as a Filipino and consistently declared myself as one in my school records and other official documents;
3. I am practicing a profession (Certified Public Accountant) reserved for Filipino citizens;
4. I participated in electoral process[es] since the time I was eligible to vote;
5. I had served the people of Tubao, La Union as a member of the Sangguniang Bayan from 1992 to 1995;
6. I elected Philippine citizenship on July 15, 1999 in accordance with Commonwealth Act No. 625;
7. My election was expressed in a statement signed and sworn to by me before a notary public;
8. I accompanied my election of Philippine
citizenship with the oath of allegiance to the Constitution and the
Government of the Philippines;
9. I filed my election of Philippine citizenship and my oath of allegiance to (sic) the Civil Registrar of Tubao La Union, and
10. I paid the amount of TEN PESOS (Ps. 10.00) as filing fees.
Since Ching has already elected Philippine
citizenship on 15 July 1999, the question raised is whether he has
elected Philippine citizenship within a "reasonable time." In the
affirmative, whether his citizenship by election retroacted to the time
he took the bar examination.
When Ching was born in 1964, the governing charter
was the 1935 Constitution. Under Article IV, Section 1(3) of the 1935
Constitution, the citizenship of a legitimate child born of a Filipino
mother and an alien father followed the citizenship of the father,
unless, upon reaching the age of majority, the child elected Philippine
citizenship. 4 This right to elect Philippine citizenship
was recognized in the 1973 Constitution when it provided that "(t)hose
who elect Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred and thirty-five" are citizens of the
Philippines. 5 Likewise, this recognition by the 1973
Constitution was carried over to the 1987 Constitution which states that
"(t)hose born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority" are Philippine
citizens. 6 It should be noted, however, that the 1973 and
1987 Constitutional provisions on the election of Philippine citizenship
should not be understood as having a curative effect on any
irregularity in the acquisition of citizenship for those covered by the
1935 Constitution. 7 If the citizenship of a person was
subject to challenge under the old charter, it remains subject to
challenge under the new charter even if the judicial challenge had not
been commenced before the effectivity of the new Constitution. 8
C.A. No. 625 which was enacted pursuant to Section
1(3), Article IV of the 1935 Constitution, prescribes the procedure that
should be followed in order to make a valid election of Philippine
citizenship. Under Section 1 thereof, legitimate children born of
Filipino mothers may elect Philippine citizenship by expressing such
intention "in a statement to be signed and sworn to by the party
concerned before any officer authorized to administer oaths, and shall
be filed with the nearest civil registry. The said party shall accompany
the aforesaid statement with the oath of allegiance to the Constitution
and the Government of the Philippines."
However, the 1935 Constitution and C.A. No. 625 did
not prescribe a time period within which the election of Philippine
citizenship should be made. The 1935 Charter only provides that the
election should be made "upon reaching the age of majority." The age of
majority then commenced upon reaching twenty-one (21) years. 9
In the opinions of the Secretary of Justice on cases involving the
validity of election of Philippine citizenship, this dilemma was
resolved by basing the time period on the decisions of this Court prior
to the effectivity of the 1935 Constitution. In these decisions, the
proper period for electing Philippine citizenship was, in turn, based on
the pronouncements of the Department of State of the United States
Government to the effect that the election should be made within a
"reasonable time" after attaining the age of majority. 10
The phrase "reasonable time" has been interpreted to mean that the
election should be made within three (3) years from reaching the age of
majority. 11 However, we held in Cuenco vs. Secretary of Justice, 12 that the three (3) year period is not an inflexible rule. We said:
majority. 11 However, we held in Cuenco vs. Secretary of Justice, 12 that the three (3) year period is not an inflexible rule. We said:
It is true that this clause has been construed to
mean a reasonable period after reaching the age of majority, and that
the Secretary of Justice has ruled that three (3) years is the
reasonable time to elect Philippine citizenship under the constitutional
provision adverted to above, which period may be extended under certain
circumstances, as when the person concerned has always considered
himself a Filipino. 13
However, we cautioned in Cuenco that the extension of the option to elect Philippine citizenship is not indefinite:
Regardless of the foregoing, petitioner was born on
February 16, 1923. He became of age on February 16, 1944. His election
of citizenship was made on May 15, 1951, when he was over twenty-eight
(28) years of age, or over seven (7) years after he had reached the age
of majority. It is clear that said election has not been made "upon
reaching the age of majority." 14
In the present case, Ching, having been born on 11
April 1964, was already thirty-five (35) years old when he complied with
the requirements of C.A. No. 625 on 15 June 1999, or over fourteen (14)
years after he had reached the age of majority. Based on the
interpretation of the phrase "upon reaching the age of majority,"
Ching's election was clearly beyond, by any reasonable yardstick, the
allowable period within which to exercise the privilege. It should be
stated, in this connection, that the special circumstances invoked by
Ching, i.e., his continuous and uninterrupted stay in the
Philippines and his being a certified public accountant, a registered
voter and a former elected public official, cannot vest in him
Philippine citizenship as the law specifically lays down the
requirements for acquisition of Philippine citizenship by election.
Definitely, the so-called special circumstances
cannot constitute what Ching erroneously labels as informal election of
citizenship. Ching cannot find a refuge in the case of In re: Florencio Mallare, 15 the pertinent portion of which reads:
And even assuming arguendo that Ana Mallare were (sic)
legally married to an alien, Esteban's exercise of the right of
suffrage when he came of age, constitutes a positive act of election of
Philippine citizenship. It has been established that Esteban Mallare was
a registered voter as of April 14, 1928, and that as early as 1925
(when he was about 22 years old), Esteban was already participating in
the elections and campaigning for certain candidate[s]. These acts are
sufficient to show his preference for Philippine citizenship. 16
Ching's reliance on Mallare is misplaced. The
facts and circumstances obtaining therein are very different from those
in the present case, thus, negating its applicability. First, Esteban Mallare
was born before the effectivity of the 1935 Constitution and the
enactment of C.A. No. 625. Hence, the requirements and procedures
prescribed under the 1935 Constitution and C.A. No. 625 for electing
Philippine citizenship would not be applicable to him. Second, the
ruling in Mallare was an obiter since, as correctly pointed out
by the OSG, it was not necessary for Esteban Mallare to elect Philippine
citizenship because he was already a Filipino, he being a natural child
of a Filipino mother. In this regard, the Court stated:
Esteban Mallare, natural child of Ana Mallare, a
Filipina, is therefore himself a Filipino, and no other act would be
necessary to confer on him all the rights and privileges attached to
Philippine citizenship (U.S. vs. Ong Tianse, 29 Phil. 332; Santos Co vs.
Government of the Philippine Islands, 42 Phil. 543, Serra vs. Republic,
L-4223, May 12, 1952, Sy Quimsuan vs. Republic, L-4693, Feb. 16, 1953;
Pitallano vs. Republic, L-5111, June 28, 1954). Neither could any act be
taken on the erroneous belief that he is a non-filipino divest him of
the citizenship privileges to which he is rightfully entitled. 17
The ruling in Mallare was reiterated and further elaborated in Co vs. Electoral Tribunal of the House of Representatives, 18 where we held:
We have jurisprudence that defines "election" as both a formal and an informal process.
In the case of In re: Florencio Mallare
(59 SCRA 45 [1974]), the Court held that the exercise of the right of
suffrage and the participation in election exercises constitute a
positive act of election of Philippine citizenship. In the exact
pronouncement of the Court, we held:
Esteban's exercise of the right of suffrage when he came of age constitutes a positive act of Philippine citizenship. (p. 52: emphasis supplied)
The private respondent did more than merely exercise his right of suffrage. He has established his life here in the Philippines.
For those in the peculiar situation of the
respondent who cannot be excepted to have elected Philippine citizenship
as they were already citizens, we apply the In Re Mallare rule.
xxx xxx xxx
The filing of sworn statement or formal declaration is a requirement for those who still have to elect citizenship. For those already Filipinos when the time to elect came up, there are acts of deliberate choice which cannot be less binding.
Entering a profession open only to Filipinos, serving in public office
where citizenship is a qualification, voting during election time,
running for public office, and other categorical acts of similar nature
are themselves formal manifestations for these persons.
An election of Philippine citizenship presupposes that the person electing is an alien.
Or his status is doubtful because he is a national of two countries.
There is no doubt in this case about Mr. Ong's being a Filipino when he
turned twenty-one (21).
We repeat that any election of Philippine citizenship
on the part of the private respondent would not only have been
superfluous but it would also have resulted in an absurdity. How can a
Filipino citizen elect Philippine citizenship? 19
The Court, like the OSG, is sympathetic with the
plight of Ching. However, even if we consider the special circumstances
in the life of Ching like his having lived in the Philippines all his
life and his consistent belief that he is a Filipino, controlling
statutes and jurisprudence constrain us to disagree with the
recommendation of the OSG. Consequently, we hold that Ching failed to
validly elect Philippine citizenship. The span of fourteen (14) years
that lapsed from the time he reached the age of majority until he
finally expressed his intention to elect Philippine citizenship is
clearly way beyond the contemplation of the requirement of electing
"upon reaching the age of majority." Moreover, Ching has offered no
reason why he delayed his election of Philippine citizenship. The
prescribed procedure in electing Philippine citizenship is certainly not
a tedious and painstaking process. All that is required of the elector
is to execute an affidavit of election of Philippine citizenship and,
thereafter, file the same with the nearest civil registry. Ching's
unreasonable and unexplained delay in making his election cannot be
simply glossed over.
Philippine citizenship can never be treated like a commodity that can be claimed when needed and suppressed when convenient. 20
One who is privileged to elect Philippine citizenship has only an
inchoate right to such citizenship. As such, he should avail of the
right with fervor, enthusiasm and promptitude. Sadly, in this case,
Ching slept on his opportunity to elect Philippine citizenship and, as a
result. this golden privilege slipped away from his grasp.
IN VIEW OF THE FOREGOING, the Court Resolves to DENY Vicente D. Ching's application for admission to the Philippine Bar.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza,
Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and
Ynares-Santiago, JJ., concur.Footnotes
2 Citing CRUZ, Constitutional Law, 1991 Ed., p. 359.
3 Citing Cuenco. vs. Secretary of Justice, 5 SCRA 108, 110 (1962).
4 Sec. 1, Art. IV of the 1935 Constitution reads:
(2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office;
(3) Those whose fathers are citizens of the Philippines;
(4) Those whose mothers are citizens of the Philippines, and, upon reaching the age of majority, elect Philippine citizenship;
(5) Those who are naturalized in accordance with law.
6 Sec. 1(3), Article IV, 1987 Constitution.
7 BERNAS, The Constitution of the Republic of the Philippines; First Ed. (1987), p. 502.
8 Ibid., citing Convention Session of November 27, 1972 and noting that it is also applicable to the 1987 Constitution.
9 Art. 402, Civil Code.
10 Lim Teco vs. Collector of Customs, 24 SCRA 84, 88 (1912).
11 Muñoz vs. Collector of Customs, 20 SCRA 494: 498 (1911); Lorenzo vs. Collector of Customs, 15 SCRA 559, 592 (1910).
12 5 SCRA 108 (1962).
13 Id., at 110.
14 Id.
15 59 SCRA 45 (1974)
16 Id., at 52.
17 Id.
18 199 SCRA 692 (1991).
19 Id., at 707-709 (Emphasis supplied).
20 Yu vs. Defensor-Santiago, 169 SCRA 364, 379 (1989).
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