VISA FREE ENTRY TO INDIAN NATIONALS

Indian nationals may enter the Philippines visa free at any port of entry for as long as they possess the following requirements:

1. Passport with validity of at least six (6) months beyond the contemplated stay;
2. Return or onward ticket to the next country of destination;
3. Valid and current AMERICAN, JAPANESE, AUSTRALIAN, CANADIAN, SHENGEN, SINGAPORE, or UNITED KINGDOM visa (AJACSSUK) or permanent residence permit;
4. No derogatory record (i.e., watchlist or blacklist) with the Bureau of Immigration.

They will be issued an initial authorized stay of fourteen (14) days. This may be extended for another seven (7) days for a maximum of twenty-one (21) days.

This admission cannot be extended beyond twenty-one (21) days and cannot be converted to other visa categories.

VISA FREE ENTRY TO CHINESE NATIONALS

Chinese nationals may be granted VISA FREE ENTRY to the Philippines for a stay of up to seven (7) days provided that the possess the following requirements:

1. Passport valid for at least six (6) months beyond the contemplated stay;
2. Return or onward ticket to the next country of destination;
3. Any of the following valid and current visas: AMERICAN, JAPANESE, AUSTRALIAN, CANADIAN, or SHENGEN
4. No derogatory record (i.e., watchlist or blacklist) with the Bureau of Immigration (BI)

The seven (7) day visa entry may be extended by an additional fourteen (14) days for a maximum of twenty-one (21) days.

A Chinese  national who enters the Philippines under this type of admission cannot extend his or her stay.

This admission cannot be converted into other Philippine visa types which would allow further stay in the country.  This admission program is primarily for promotion and encouragement of tourism for Chinese nationals.

Dentists, optometrists, and doctors are exempted from business permits. How about other professionals?

The DILG issued Memorandum Circular 2016-170 on November 28, 2016 exempting medical and dental clinics from obtaining business permits or mayor’s permits for their operation.

It declared that medical and dental clinics used for medical and dental checkups and for medical and dental procedures are a direct consequence of the practice of one’s profession, and therefore exempt from payment of business or mayor’s permit, provided that the practitioners pay the corresponding profession tax (PTR) for practice of their profession.

The DILG issued the circular because it noticed that several local governments were still requiring medical and dental clinics to pay for business permits despite a previous 1999 decision of the Secretary of Finance giving an opinion that professions requiring professions requiring government examination, like dentists and doctors, are required to pay professional tax, “but are exempted from payment of mayor’s permit or license fee for the practice of such profession. Medical clinics, as a direct consequence of the practice of such profession cannot be be imposed with a graduated tax on the premise that it is a business establishment offering to render professional service.”

Dentists were explicitly exempted as early as 1999. The decision was reiterated by the DILG in August 2013. Many of my dentist friends had never applied for mayor’s permits since they opened their own clinics.

With doctors, though, it depends. Those with strong organizations in the provinces don’t pay. Most others pay because they knew no better.

Strangely, the DILG also noted a trial court decision that declared that an optometric clinic should be exempted from payment of a business or mayor’s permit because it is an indispensable part or ingredient of the profession of an optometrist. It appears to have confused optometry with opthalmology and thought that it was considered as medical practice. In any case, optometry is a profession.

One last thing. Note that the local government may require a business permit if clinics have established shops for the purpose of generating income from sales of products (i.e., medicines in case of medical clinics, glasses in case of optometry clinics, toothpaste, toothbrushes, etc., in case of dental clinics).

The circular settled the issue for dentists, doctors, and optometrists.

What about the other professions?

Many lawyers and law offices do not apply for business permits because they know the law, can argue it credibly, and have the additional capability to file a complaint with the Ombudsman that is serious enough to convince a local government employee not to put his job on the line to prosecute them.

But it’s also odd that many law offices still pay for business permits because it’s something they have been doing for a long time. One even waits smugly for a case to be filed against a non-paying law office to serve as a lesson. But no cases have even been filed.

How about engineers, architects, interior designers, accountants, real estate brokers, etc.?

Under section 139 of the Local Government Code, a person authorized to practice his profession shall pay the professional tax (PTR) to the LGU where he practices his profession or where he maintains his principal office (in case he practices his profession in multiple cities). He shall be entitled to practice his profession in any part of the Philippines without being subjected to any other national or local tax, license, or fee for the practice of such profession (note that income tax and VAT to the BIR are NOT taxes for the practice of a profession).

The practice of a profession is defined as an activity or undertaking rendered by a registered and licensed professional who is regulated by the Professional Regulation Commission (PRC) or the Supreme Court (in case of lawyers). Professionals those who are licensed after passing a government exam by the PRC or the Supreme Court.

Under the law, ALL professionals and the offices they manage as part of their profession are exempted from payment of business permits. The exemption is been in place since 1991, when the Local Government Code came into effect.

It is now 2016. More than 25 years have passed and many professionals are still applying for business permits in their respective local governments. That’s a lot like giving to charity, so maybe we should not make it an issue, right? It’s okay if that’s how you feel.

But those who think otherwise should look squarely at their respective professional organizations and ask why they’ve never questioned this since 1991.

Only one professional organization questioned why they were still required to pay for a mayor’s permits, and their constituents (dentists) have been exempted since 1999.

How about the organizations of architects, real estate brokers, interior designers, engineers, etc.? It surprises me as well that the professional organization of lawyers, the Integrated Bar of the Philippines, has not filed a case for its constituent lawyers. Why have none filed a case? I find it strange that they spend for many activities, but a case to free its constituents from payment of business permits seems beneath them.

The law has been around since 1991. The case for dentists was won in 1999, and it explained fully the exemption. Other professional organizations could use that verbatim as an argument for their respective cases.

To professionals who read this, I think it’s time for you to look to your professional organizations, remind them of how much you pay in annual dues, and then ask them to start taking care of this by filing a case for your profession, or maybe to lobby your profession’s inclusion in a new DILG circular on exemption of applications for business or mayor’s permits.

 

Due Process and the Generals

President Duterte gave the names of five generals allegedly involved in the drug trade. 

Three of them are still in the service. They have been relieved from their posts, but are still ranking generals with pay and all the benefits. The two are retired, but they still enjoy the benefits of their retirement. Except for naming them, no criminal case has yet been filed, and only the three in service face administrative investigation, otherwise, they all still enjoy the benefits of their status.

Was there are violation of due process? Of course not. There is no violation of due process.
Due process requires that a process be undertaken to prove guilt or liability. It is a process that is every person’s due – hence the technical term, “due process.” 

It requires that a person be informed of the charges against him, allows him to participate and give evidence on his behalf, and then allows a neutral party to rule on his case after examining everything on the table. If no such process is performed, or if any step is removed, then there is a violation of due process.

The three who are still part of the service have the opportunity to establish their innocence. Their case is now with the NAPOLCOM and they are being given every opportunity to defend themselves. Until then, they are generals who deserve the benefits of their rank and station, and will remain as such unless their guilt is proven.

I disagree with those who have said that they were stripped of their positions without any trial or proceeding – hence, a violation of due process.

The president has absolute control and discretion over the Executive Department. Those in the Executive serve at his pleasure (save for those exceptions provided by law). He can replace people for any reason under the sun. 
He did not trust the three generals, so he replaced them. It was that simple. But he did not strip them of their rank, their pay, or their benefits. That would have been a violation of due process. In fact, the President was very lenient on them – he warned them and called them out by name, so that there were no surprises.

I disagree with people who say that the President exposed them to trial in the court of public opinion, and therefore, committed a violation of due process.

The court of public opinion is not a real court, and is not covered by the definition of due process. How can there be a violation of due process when there is no case pending in a court, tribunal, or administrative agency? How can there be a violation of due process when nothing was taken from a person? How can there be a violation of due process when there is no official declaration of guilt or liability?

A public officer is ALWAYS in the public eye, and all accusations against them are fair game in the court of public opinion. It is for this reason that they are not covered by the provisions on libel – one can say anything against them and not be liable for libel unless what was said was malicious and based on lies.

For a president to expose said generals to the court of public opinion is not a violation of due process. I would even say that it was his right to do so, for as long as his accusations are based on the truth. The proceedings before the NAPOLCOM will give due process to the generals.

In the meantime, they can also clear their names in the court of public opinion by using the media and social media as an avenue to prove their innocence. It’s a free media we have, and an unregulated social media. Censorship will not be an issue.

As to the two retired generals, they have nothing to fear. I do not know if their case has been endorsed for investigation. But their freedoms, their rights, and their benefits have not been curtailed or taken away. If they want, they could prove their case in the court of public opinion. 

There is no violation of due process if no freedom, right, or benefit is taken from you by the state. These may only be taken from you after a legal process. We have neither instance in the case of the five generals.

Visa Downgrade with Orders to Leave

[THIS SITE IS NO LONGER UPDATED. PLEASE LOOK AT THE UPDATED ARTICLE HERE: “Order to Leave” in your visa downgrade ]

Philippine law allows conversion of visas ONLY from a temporary visitor’s (9a) visa. If a foreign national has a different visa status when he enters the country, he will be required to downgrade his visa to a 9a visa before he could convert to another. (Conversions to other visa types are allowed whether one enters under tourist, business, or balikbayan 9a visas).

However, there are three visa types which will contain an Order to Leave when they are downgraded. Immigration Administrative Order No. SBM-2013-013 enumerates them as follows:

(1) Where the visa to be downgraded is Section 9f/Student visa under Commonwealth Act No. 613 or the Philippine Immigration Act (PIA) of 1940, as amended, regardless of total or
cumulative period;

(2) Where the visa to be downgraded is a non-immigrant category and the total or cumulative period within the country exceeds 5 years;

(3) Where there is a badge of fraud or fact that casts suspicionon the applicant’s visa [Badge  of fraud examples: Insufficient explanation in downgrading from Temporary Resident Visa (TRV) by marriage; Derogatory information provided by employer when downgrading from a 9g visa, etc.]

The foreign national may file a letter with the Office of the Commissioner requesting for reconsideration (MR) from the order to leave under numbers (2) and (3) on valid and exceptional grounds, and upon payment of the MR fee.There is no MR available to holders of student visas (9f).

The Bureau of Immigration has allowed non-immigrant foreign nationals whose stay in the country exceeds 5 years to stay (after filing a MR) on the ground that they are applying for a different visa status (i.e., immigrant visa, retirement visa, etc.), to take care of his minor child with an unemployed common law (unmarried) spouse, etc. The grounds to justify stay, however, are reviewed and approved on a case-to-case basis.

The Order to Leave should not to be confused with deportation. The effect is not the same, and it will not put the foreign national on the immigration blacklist. These rules are in implementation of the strict requirements of the Philippine Immigration Act of 1940, a very restrictive law which was issued before globalization was en vogue (it was enacted before World War II).

The foreign national may even come  back on the same day and will be allowed entry into the Philippines under a new 9a visa period if he is not a restricted foreign national. Please note, however, that he must still present an exit flight ticket to the immigration officer upon entry along with his passport.

A small reminder should be made to holders of Special Non-Immigrant 47a2 visas, commonly known as PEZA visas. The new regulations will not allow holders of these visas to change their status to another non-immigrant status without departing from the country.  If they stay beyond expiration of their 47a2 visa, they will have to update their stay with the bureau, but they will not be downgraded. They will instead be issued an order to leave.

Grace Poe’s “Misrepresentation” in terms of Residency

(Backdrop: After Grace Poe filed her Certificate of Candidacy (CoC) for president, several cases were filed before the COMELEC. These cases were raffled to different divisions, and these divisions had to decide the case before them independent of the others. This is why two divisions issued separate decisions. Both divisions declared that Grace Poe made material misrepresentations with regard to filling out her CoC. One division declared that her misrepresentation was only with regard to the fact of her residency (not citizenship).  The other division declared that there was misrepresentation with regard to BOTH citizenship and length of residence.)

 I don’t think that Grace Poe intended to misrepresent herself as a natural-born citizen. Even now, many lawyers have different opinions on the citizenship of foundlings. Only the Supreme Court can declare her citizenship status with finality. This is a difficult question of law, and it would be unfair to say that she misrepresented her citizenship when even legal experts don’t agree on the status of her citizenship.

Let’s instead look at what the COMELEC divisions commonly agreed on – her misrepresentation of residency. Assuming that Poe can be considered a natural-born citizen, when should she be considered a resident? Did she misrepresent her residency? 

Two COMELEC divisions both found that she misrepresented her residency to make it appear that she was qualified to run for the presidency. 

The best indication was the inconsistency between that her CoC for Senator and for President. 

She stated in her CoC for senator that she would have been a resident of the Philippines for 6 years and 6 months by May 13, 2013. That means that she considered her residence to have started from November 2006. However, when she filed her CoC for president, she stated that she was a resident for 10 years and 11 months. This would mean that she was a resident since May 2005!  

Poe reasoned that it was an “honest mistake” on her part, but did not adduce any evidence to prove this. Neither did she ever have that fact corrected, and it only came up again when she filed her CoC for president.

Both COMELEC decisions noted that her allegation of “honest mistake” had nothing to back it up. This stark inconsistency was considered a clear indication of her intent to hide the fact of her residency and to mislead the Filipino electorate.

  
But it isn’t just because of this inconsistency that the COMELEC declared her to have materially misrepresented her residency. The COMELEC went further to discuss WHEN she could have been considered to have become a resident of the Philippines. 

The decision in the first case declared that Poe could have only become a resident when she re-acquired her Filipino citizenship (assuming that she was natural-born) when she took her Oath of Allegiance on July 2006. 

  
The case of Coquilla v. COMELEC clarified that a former Filipino who became a US citizen had no right to reside in the Philippines unless immigration laws allow him to stay as a temporary visitor or a resident alien. The person in that case even went so far as to get a community tax certificate (cedula) and to spread the word that he was going to run for local office. The Supreme Court said that even these acts demonstrating his intent to establish his residency cannot be counted because he had no right to reside here. Since he had no right to reside in the Philippines, he cannot be considered to have acquired residency. The SC stated:

“In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000, when he reacquired Philippine citizenship, petitioner was an alien without any right to reside in the Philippines save as our immigration laws may have allowed him to stay as a visitor or as a resident alien.”

Grace Poe was in the country from December 2004, and left the country several times using her US passport. Each time she arrived, it was stamped with a temporary visitor’s visa.  She allegedly only became a Filipino citizen again in July 2006. 

So her stay in the country from December 2004 to July 2006 cannot be counted to her residency because she had no right to reside here. At most, she was only a temporary visitor. She never had her visa stamp amended. And since she left and came back several times with the same visa, she can’t deny this legal conclusion.

The second COMELEC decision was kinder on Poe because it implicitly would have counted the period as part of her residency if she were in the Philippines under an immigrant visa even if she were still an alien. Unfortunately for Poe, she was here on a temporary visitor’s Balikbayan visa, not an immigrant visa.

Why is visa status important?

A visa is a conditional authorization given to a foreigner by a state. It is evidence that you have the permission of a country to enter its borders, and gives conditions for your stay. It determines your residency status in the country you enter. Only foreigners are required visas.

An alien that enters the country has a visa stamped on her passport to make her aware of her status and how long she is permitted to stay. By entering and leaving the country several times with a temporary visitor’s visa, Grace Poe was continually aware of her status as a non-resident alien. She was a non-resident alien up to that point when she took her oath of allegiance. To declare otherwise is to misrepresent herself in an attempt to deceive the public.

It also appears that Poe did not even have an alien certificate of registration (ACR I-Card) to prove that she is a registered resident alien. This is further indication that she can’t even be considered a resident of the country.

In fact the second COMELEC decision noted that becoming a citizen is not enough to establish residency and cited Supreme Court cases as basis. Poe should have also demonstrated an intent to reside here. The first indication of that was when she registered as a voter in San Juan on August 2006. Hence, assuming that she actually re-acquired her citizenship, she could only be considered a resident starting August 2006.

One last thing. Her publicists seem to argue that it is the intent to reside here that is important. That’s not accurate. She has to be physically present, have a right to reside, along with an intent to reside, and perform acts that demonstrate her intent to reside. But the visa stamps on her US passport are conclusive evidence of her status as a non-resident. It’s difficult to escape that.

People say that it should be left to the electorate to decide on Poe’s candidacy. The Supreme Court declared something that can be raised as a counter-argument:

“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.”

Tax Situs Problems in Electronic Commerce

Electronic commerce transactions have the same tax treatment as their hard-copy equivalent. But one of the problems we should be experiencing with the increasing complexity of the e-commerce ecosystem will be that of tax situs.

The provision in the Philippine E-Commerce law which deals with tax situs is section 23, which attributes a place of dispatch and receipt of electronic data messages.

Under the law, an electronic document is deemed dispatched at the place where the originator has its place of business (or residence, if he has no place of business), and is received at the place where the addressee has its place of of business (or residence, if no place of business), even when either of them use a mobile device to transmit or receive the electronic document evidencing the transaction.

Note that it does not matter where the transaction took place. What matters is the place of business of the originator and the receiver . This rule shall apply to determine the tax situs of an e-commerce transaction.

This provision has to be read in tandem with section 18 on attribution of electronic data messages, which tells us that an electronic message is deemed to be that of the originator if it was sent by (a) a person who had authority to act on behalf of the originator with respect to that electronic message, or by (b) an information system programmed by or on behalf of the originator to operate automatically.

It also has to be read with section 22 which deals with when a receiver receives the electronic message.

It now looks easy to determine where a transaction originates and where it is accepted and consented to.

In transactions involving two parties, tax situs is easy. The only problem which needs to be answered is where the transaction was considered perfected. Of course, that requires an in-depth study of the transaction. One needs to determine who made the offer and who accepted the offer. Acceptance is usually considered as the point wherein the transaction is perfected. The place of perfection is where the tax is levied.

When more than two parties are involved, however, this can become muddled. This happens when there are several corporations involved in the transaction.
What happens, for example, if corporations from several jurisdictions are involved in a transaction? If corporation A were to solicit orders for the product of corporation B, and corporation C buys a product solicited by A, where did perfection of a contract occur? Who among the three are considered the originator or the addressee?

When C responded to the advertisement of A, was he making an offer to purchase which was passed onto B, or was B using A as an agent to offer his products to C?

The answer to the question will tell us where the contract of sale was perfected and will give us the tax situs.

If it is shown that C was making an offer to purchase to A, and that A accepted the offer, then tax situs is in the place of business of A. If it were C that was accepting the offer and B was merely using A as its agent or conduit, then tax situs is in the place of business of C. If C used A as an agent to make an offer to B, then tax situs in in the place of business of B. If A, B, and C have offices in different countries, how and where will B be taxed for sale of its product?

Tax situs is not just dependent on what transaction was made, what relation the parties have to each other, how it was made, and where the residence of the parties are.

In addition, the originator and the addressee may even agree as to where an e-document is dispatched and received. This means that they can determine where their transactions can be perfected. This means that they can determine their tax situs on their own. The flexibility this gives is almost appalling in scope.

How about those transactions between multiple suppliers who are in an online store or marketplace like eBay or Amazon? Where is tax situs and how could it be determined?

What about transactions that use alternative forms of compensation like Bitcoin, credits, ex-deals, or barter? Are these even covered by tax situs laws? I can make strong arguments for and against either position.

In the future, many more forms of these transactions will occur in cyberspace. The ability to determine how to tax these transactions will be important for the government. Otherwise, the state will lose out on revenue generation for public benefit. It also opens up avenues for money laundering and opportunities to sabotage economies.

Can a Foundling be a Natural-Born Citizen? (Arguments on the Citizenship of Grace Poe)

 In a Philippine election, a candidate will be disqualified if she is not a Filipino citizen. If she wants to be President or Vice-President, she also has to be a natural-born Filipino.

When Grace Poe’s citizenship is questioned, she will have to prove her citizenship, as well as whether she is naturalized or natural-born.

She can only be a natural-born Filipino if she was born to a Filipino mother or father. There is no other way. But since she does not know her biological parents, or their citizenship, could she be considered Filipino? And if she is a Filipino citizen, is she natural-born or naturalized?

A foundling is an abandoned child whose parents or relatives are unknown. Nobody knows if her biological parents are Filipino. A person who looks Filipino could be a foreigner – for example, if she was born of a Malaysian father and an Italian mother. On the other hand, a blonde, blue-eyed girl can be a natural-born Filipino if she was born to naturalized Caucasian parents.

Citizenship is governed by only one law – the Philippine Constitution, (of which there are three versions – the 1935, 1973, and 1987 Constitutions).

Under the 1973 and 1987 Constitutions, those born of Filipino fathers or mothers are Filipino citizens. But if a person with a Filipino mother and an alien father was born before January 17, 1973, that person can only be a Filipino citizen if she elects Philippine citizenship some time upon reaching the age of majority. If she does not, then she would not be considered Filipino. (This was because under the 1935 Constitution, which was in effect before the 1973 Constitution, Filipino citizenship is automatically granted only to those with Filipino fathers.) If the Filipino mother is unmarried, the child is automatically Filipino. Lastly, a person can be a Filipino citizen if she is naturalized by law.

Legal experts have made their opinions on the citizenship of foundlings. Here are their arguments:

Foundlings cannot be considered citizens unless they prove that one of their biological parents is Filipino.

Legal principles that the Supreme Court had consistently applied in a span of decades find application here.

First of all, the Supreme Court ruled that one who claims to be Filipino must satisfactorily PROVE that she is Filipino, by showing that one of her biological parents are Filipino.

The Supreme Court declared that there can be no presumption of Philippine citizenship. That means that if a foundling cannot prove citizenship, she cannot be considered Filipino.

Secondly, the act of adoption will not confer Filipino citizenship. If the foundling was adopted by a Filipino citizen, this act will not confer citizenship on the child.

Thirdly, the Philippine Constitution does not give a presumption or deem as Filipino those who cannot identify their source of citizenship.

There is a list of persons who are considered citizens. One’s citizenship can be passed by blood (the principle of jus sanguinis), or one becomes a naturalized citizen by action of law. These are the only two ways one can be a citizen.

Many legal experts do not like this position. They feel that it prejudices foundlings rather harshly. They say that it would have weird repercussions. They say, for example, that a lot of street kids are foundlings, and lack documentation of their citizenship. It would be crazy for the State to consider all of them illegal aliens and try to deport them.

However, this belief is exaggerated.

The Supreme Court was rather strict in its doctrine. Their decisions indicate that the only time that a person is required to prove her citizenship is when Filipino citizenship is actually questioned in a proceeding precisely for that purpose. So, that means that if a foundling was registered as a Filipino citizen, there would be no question about her citizenship at all – unless a court case is filed where she must prove it. (Thankfully, the only court cases that may be filed against them for proving citizenship are election cases and petitions for certiorari governing immigration cases.)

Why should the foundling be the one to prove her citizenship? That’s the effect of the Supreme Court’s doctrine that there is no presumption of citizenship – the one who claims to be Filipino must be the one to prove it.

Foundlings should automatically be considered Filipino citizens.

Those of this opinion feel that the State should exercise some compassion with regard to foundlings. After all, it is not their fault that they are foundlings. Instead of making life harder for them, the State, as Parens Patriae (Latin for “parent of the country”), must have compassion and should grant them citizenship. Even if they are blond and blue-eyed and very Caucasian.

The counter-argument to that position is that the Philippines is a government of laws, not of men. Hence the government should act based on the laws that govern it, not simply out of compassion, because nobody should be exempt from the law.

The Supreme Court noted in its decisions that Philippine laws on citizenship are very restrictive. It is so restrictive that the drafters of our Constitution even differentiate between natural-born and naturalized. The Supreme Court has already declared that there is no presumption of citizenship and that one who claims to be Filipino should prove it. It may be harsh, but that’s the law.

The second legal basis is based on international law. Some experts are of the belief that principles of international law require the Philippines to bestow citizenship on foundlings. Two international laws are of notable importance.

The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Law, states in Article 14, “A child whose parents are both unknown shall have the nationality of the country of birth.” The second is the 1961 Convention on Reduction of Statelessness. Article 2 of that convention allows a foundling to be considered to have been born of parents who are citizens of the contracting state. (Exact words: “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.”).

There is a big problem with that argument – first of all (and most importantly), the Philippines is not a signatory to those international conventions. Those conventions go against the Philippine Constitution (1935, 1973, and 1987) provisions on citizenship. That may be why we never became party to them.

Those who argue in favor of these conventions say that they are now considered “customary international law” and by virtue of the constitutional law principle that “adopts the generally accepted principles of international law as part of the law of the land,” the Philippines has actually adopted these two conventions even though it is not signatory thereto. They believe that these conventions were brought about by international custom and that, because of the length of time that has passed, these conventions have ripened into something that one can derive rights from.

Again, there are problems with that. Any law, whether local or international, which goes against any provision of the Constitution is void. Since these conventions go against our citizenship provisions, then they cannot have an effect here.

Also, international customary laws are those aspects of international law that derive from widespread custom, acceptance, and practice by States. But these conventions cannot be considered customary international law because many countries do not accept them. There are few States that have signed, ratified, and accepted them. Since there is no widespread acceptance of the principles in these conventions, they cannot be considered international custom.

In any case, both conventions do not require the contracting State to bestow citizenship conclusively (i.e., permanently) on the foundling. They allow the state leeway to remove citizenship if it could be shown that the child’s parents are not citizens.

It is possible to harmonize this with the Supreme Court rulings of the past decades. A liberal Supreme Court could declare that there is an international customary law that allows a state to consider foundlings as citizens. However, if citizenship is questioned, the foundling has the burden of proving it. This will allow indigents with no citizenship records to vote, get passports, and not get deported.

NATURAL-BORN OR NATURALIZED?

It gets tricky now.

Let’s assume that the foundling derives Filipino citizenship by virtue of international law or international customary law, and not by virtue of blood ties to a Filipino biological parent.

Is a foundling considered natural-born or naturalized citizen?

The Constitution describes two types of citizens. A natural-born Filipino has more rights than a naturalized Filipino. They are the only ones who are allowed to hold positions in the highest executive, legislative, and judicial offices in the country, as well as the constitutional commissions.

This is how restrictive Philippine laws on citizenship are. (It is so hard to become a naturalized citizen that I actually think naturalized citizens love our country more because of the hassle they take to become a citizen, the huge investment, and the fact that they have greater stake in the country than most natural-born citizens.)

The Philippine Constitution defines a naturalized Filipino as one who became Filipino in accordance with law.

So, if a foundling derives her Filipino citizenship by virtue of international law, then she becomes a Filipino citizen by virtue of law! This makes her a naturalized Filipino citizen.

The constitution states that a natural-born Filipino is one who is a citizen from birth without having to perform any act to acquire or perfect the citizenship. One may argue that a child did not do anything to acquire or perfect citizenship, so she should be considered natural-born.

That’s a bad argument when you see it in the context of Supreme Court rulings.

In the first place, the Supreme Court has ruled that children of foreign nationals who are naturalized are also naturalized Filipinos even though they did not perform any act to acquire citizenship. They are not considered natural-born even when they did not do a thing to obtain their new nationality. They were naturalized in accordance with law. (Note that if the children were born AFTER their parents were naturalized, then they are considered natural-born).

In the second place, under the 1987 Constitution, international law forms part of the laws of the land. However, it does not form part of the Constitution, so that means that international law will not add new qualifications for Filipino citizenship. However, it is considered same level and effect as a law passed by the Legislature.

If these conventions would be considered laws that bestow nationality on foundlings, then any who derive their Filipino citizenship in accordance with them are citizens who were naturalized in accordance with law.

Since the only way to be a natural-born citizen is to have Filipino parents, then foundlings can only be considered natural-born citizens if they can adduce evidence showing that their biological parents are Filipinos.

That’s it. Those are the arguments. Now, we wait until a case is brought, and we’ll see how the Supreme Court would rule.

Immigration, Citizenship, and Grace Poe

Whether or not a foundling can be considered a Filipino citizen is something only the Supreme Court can clarify. Both sides have merit, but since we have a liberal Supreme Court, let’s assume that it declares Grace Poe a natural-born Filipino citizen.

She still has another problem – the ten-year residence requirement of the 1987 Constitution. Section 2 of Article 7 of the Constitution prohibits a person from being elected as president or vice-president if that person has not been a resident of the Philippines for at least ten years before the election. This may surprise some people but the actual legal definition for the word “year” is 365 days. If the time period is less than 365 days, then it is not yet a year. No one, not even the Supreme Court, can stretch this requirement even with legal acrobatics.

This is a problem for Poe because it is not clear if she would have been a Philippine resident for ten years by the 2016 Presidential Elections. In her Certificate of Candidacy for senator, Grace Poe alleged that she would have had residence in the Philippines for 6 years and 6 months on May 13, 2013 (therefore, she was a resident since November 2006). If that were the case then, by the 2016 Presidential Elections, she would have been a Philippine resident only for around nine years and six months. That disqualifies her from running for president or vice-president.

When Grace Poe left the country to become a citizen of the United States, she renounced not just her Filipino citizenship, but also her residency in the Philippines (as explained by the Supreme Court in Japzon v. COMELEC ). In fact, she renounced her residency even before she became a citizen of the US, i.e., when she obtained a green card that would allow her permanent residence there. These are explicit acts which leave no room for doubt on what she was leaving behind. In 2005, when she entered the country, she used a US passport. There is no proof that she was a Filipino at this point.

To prove that she is Filipino, she has to show that she has an Identification Certificate (IC) issued by the Bureau of Immigration (BI) and, if applicable, the Certificate of Affirmation of Citizenship issued by the Department of Justice (if her IC was issued before the implementing rules of Republic Act No. 9225, “The Citizenship Retention and Re-acquisition Act of 2003”). This indicates the date she took her Oath of Allegiance (taking of the Oath is the act that confers citizenship).

Before she took her Oath, the State, by virtue of the Philippine Immigration Act, considered her an alien. Under Philippine law, aliens cannot be residents in the Philippines unless they are admitted as immigrants under Section 13 of the Philippine Immigration Act. And even if she were admitted into the country as a section 13 alien, her residency won’t count as residence for election purposes because she was not allowed to exercise political rights like the right to vote and the right to hold public office.

Residence in the context of political law is different from the usual definition of residence (which everyone knows as the place where one actually lives). Residence in political law is the place where one wishes to return to – the so-called animus revertendi. This means that a person can actually be living for several years in Manila or in Hawaii, but can still be considered to have residence (in the political sense) in Leyte because she has an animus to revert there. Weird as it may seem, that’s essentially what the Supreme Court ruled.

Some lawyers have said that if Grace Poe became a citizen only in November 2006, she should be considered to be a resident even before she regained her citizenship by virtue of the animus revertendi principle. Essentially, they say that she may have relinquished her Filipino citizenship, but that she never lost the desire to return to her country; hence, she never lost her residency. That position runs counter to a Supreme Court decision.

The residence of a person can only be counted from the time one enters the country to regain his residency (domicile) AND when one becomes a citizen (see Japzon v. COMELEC).  That is the only time that one has all the rights granted by the constitution – all civil and political rights.

Secondly, since by legal principle, aliens cannot be residents of the Philippines (unless they are considered immigrants with section 13 visas), then no stretch of legal fiction would allow an alien to use the principle of animus revertendi to establish residence or domicile here. It is just legally impossible. The law cannot recognize a will to return to someplace that the alien has no right to be in.

When Poe came back, she used her US Passport, and it was stamped with a visa permitting her to stay here as a guest (either as a temporary visitor or a permanent one). There is no press release of any date when she took her Oath of Allegiance and regained her status as natural-born Filipino citizen.

To prove her residence, she just has to show when she took her Oath of Allegiance (the IC is best proof that, and if applicable, the DOJ Certificate of Affirmation) and when she started living in the Philippines. That’s it. One can count the years, months, and days from there. Of course, if she does not have an IC, then she has no right to even be Senator.

There is a report that Grace Poe used her US Passport in 2009 and even had it renewed in 2011. She also filed her renunciation of her US citizenship only in the second quarter of 2012.

The law on citizenship re-acquisition and retention does NOT require her to renounce her US citizenship to obtain all the rights accorded to a Filipino citizen. According to the law, conferment of citizenship is upon taking the Oath of Allegiance. Does it mean that she would have all the political rights of a citizen at that point when she took her Oath? Yes, it does.

Section 5(2) of Republic Act No. 9225 requires that, “Those seeking elective 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 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.”

Grace Poe obviously made a sworn renunciation of foreign citizenship, based on the fact that there is on record an application for renunciation filed with the US government  in the second quarter of 2012. If she could show that she filed for renunciation before she filed her certificate of candidacy, then there is no problem. Based on the facts, she can’t run for president or vice-president, but at least she can keep her Senate seat.

There really is just one hitch. The BI can still revoke her citizenship at this point because of something she did not do. And if her citizenship is revoked because of it, then she would have no right to serve in public office, whether as a Senator or in any other capacity.

Section 5(3) of Republic Act No. 9225 requires that, “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 assumption of office. Provided, That they renounce their oath of allegiance to the country where they took that oath.”

Grace Poe was appointed to public office in 2010, but she did not renounce her allegiance to the US as she was required to by law. In fact, she used her US passport and even renewed it in 2011 AFTER her appointment to a public office. In a 2013 case, the Supreme Court declared that a public officer effectively recanted his oath of renunciation when he continued to use his US passport even after he has renounced his US citizenship. This meant that, at the time, the person had considered himself a citizen of the US.

If Grace Poe indeed made executed an Oath of Renunciation when she became a public official in 2010, she effectively recanted it when she used her US passport in 2011. After that, she only officially renounced her US citizenship in the second quarter of 2012. In fact, she only got a Philippine passport in 2014, a year after she became senator.

BI regulations allow revocation of citizenship upon a substantive finding of fraud, misrepresentation, or concealment on part of the applicant. Can there be such a finding in this case? That’s up to the BI now.