Citizen Jane

AS EASY AS ABC (The Philippine Star) - November 7, 2015 - 9:00am

This Sunday, we tackle three questions to ABC that are based on real life scenarios, all solvable by understanding the issue of citizenship. One Jane married a foreigner, the other Jane is a dual citizen, and the last Jane, a foundling.

Q. After falling in love with her charm, wit and humor, Mr. Foreigner married Filipina Jane in the US. They decided to settle in the Philippines. Mr. Foreigner purchased a valuable beachfront property at a very popular Philippine tourist destination. Since Mr. Foreigner could not own land, the title over the property was placed under Jane’s name. All of the cash to pay for the property came from Mr. Foreigner. The relationship had gone cold, and while Jane thought she could bear the cold shoulder treatment just to stay in marriage, the husband filed for divorce. The husband is compelling Jane to sell the property. Can foreigner-husband seek reimbursement from Jane, or at least recover half the value of the property?

A. You would think it is fair for the foreigner-husband to get at least half of the value of the land since it is property bought during marriage, and thus conjugal anyway. But Jane here would really be smiling from ear to ear. First, the husband certainly cannot get full reimbursement. He cannot assert that he is the beneficial owner of the property, even if he paid for it 100 percent. As it is illegal for foreigners to purchase land in the Philippines to begin with, he cannot complain in court because he would have dirty hands.

What is even more interesting is that he cannot even claim half of the value of the land. To say that the ownership of the property is conjugal is to say that the husband owns half of it. Well, he cannot own any of it. To give the husband conjugal rights over the land will grant him ownership rights. According to Supreme Court decisions, this is a right that the Constitution does not permit him to have. For Jane, she may have lost a husband but she will shed no tears. She owns a beach property that she can lease to expats and tourists all year round.

Q. Mr. Filipino impregnated an American woman whom he did not marry. She went home to the US and gave birth there to baby Jane. Mr. Filipino eventually married and had three children by his wife. Mr. Filipino died with a will, bequeathing a valuable piece of property to his daughter Jane. The children dispute the will, saying that their illegitimate sister Jane is an American. Can Jane, now all grown up, come to the Philippines to claim her inheritance?

A. Jane is what you call a dual citizen. She is an American, following US law that those born in the US are US citizens. She is also a Filipino, following Philippine law because one of her parents, her father in this case, is a Filipino. Since she has not renounced her Philippine citizenship (she acquired US citizenship involuntarily by being born, not by her choice, in the US), she still enjoys civil rights as a Filipino, including the right to own land, by succession, or even by purchase.

The story could change if Jane renounced her Philippine citizenship. If the scenario is that Jane migrated to the US and became a naturalized US citizen, she would be required to swear allegiance to the US. Jane cannot have dual allegiance, so she will be considered a foreigner. If Jane is already a foreigner, she could not own land except through intestate succession (parent dies without a will) so that her legitime (legal right share) will be respected. But this could be problematic if the deceased had left other properties and the estate is much bigger than just the land. In that case, hereditary succession alone is not enough for Jane to get her hands on the valuable land. There must also be an extrajudicial partition, which means her siblings, and the mother of her siblings must agree that she gets a piece of the land. Note that what is only required in the law is that she gets her legitime, which is one half of the share of the legitimate children. The legitime of the three legitimate children is half of the estate of the deceased. So Jane’s legitime in this case will be one-sixth (1/6) of the estate. If that 1/6 can be satisfied without touching the land (like by simply receiving cash), she may not succeed in getting even a pot of soil from that property.

Q. Jane was a proud adopted daughter of Filipino parents. She learned of the bitter truth that she was a foundling before she was adopted. The truth came out, courtesy of her political detractors, as she filed her candidacy for a second term in Congress. As a foundling, they say she could not satisfy the requirement of being a natural born citizen. Will they succeed in disqualifying her to run for a second term?

A. May I say first that making one a foundling is one of the earliest forms of human rights violation one can ever do to another fellow human being, let alone one’s own blood. A foundling is jurisprudentially defined as an abandoned child whose parents, guardian or relatives are unknown. Now, the fact that no issue of citizenship was raised when Jane ran for Congress the first time and won does not prevent any interested party (any voter in that district) from raising a question on her citizenship when she files her candidacy anew.

If a foundling is adopted by Filipino parents, she would take the nationality of the parents. This is following the Philippine Constitution that says that “those whose fathers or mothers are citizens of the Philippines” are Philippine citizens. Because the Constitution did not qualify, even adoptive fathers or adoptive mothers are included in the term “fathers or mothers”. The effect of adoption is that all legal ties with the biological parents are cut off, and the adopted child becomes the legitimate child of the adoptive parents. So citizenship is not a question. The question is whether the adopted child can be considered a natural born Filipino.

Our Constitution defines natural born citizens as “those who are citizens from birth without having to perform any act to acquire or perfect their Philippine citizenship”. As a foundling, one’s parents are unknown, in the legal sense. The identity of the parents is critical in a jus sanguinis jurisdiction. If Philippine law applies the rule of jus soli, then the foundling will be a citizen in the place where it is born. In Jane’s case, had she not been adopted by Filipino parents, her Filipino citizenship would not have been perfected legally. She may be a citizen, but not legally natural born. I keep saying “legally” because she may in fact and in truth be a natural born Filipino, but without legal proof of her biological parents, the injustice on her political rights will be endured.

Indeed, there is international law basis that foundlings can be treated as citizens of the countries where they are found. In my view, however, international law to which the Philippines is not a signatory does not have the effect of a binding contract, and is at best persuasive. Our laws after all don’t change just because some international law is executed. A persuasive international rule may find it difficult to overcome the provisions of the Constitution, such as the express provision on who are natural born citizens. Citizen Jane, candidate for Congress in this scenario, may be the best candidate for Congress, but that argument is political, not legal.

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Alexander B. Cabrera is the chairman and senior partner of Isla Lipana & Co./PwC Philippines. He also chairs the tax committee of the Management Association of the Philippines (MAP). Email your comments and questions to aseasyasABC@ph.pwc.com. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.

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