Rare Periodicals

Certain vexatious questions in our Nationality Laws

Media

Part of The Lawyers Journal

Title

Certain vexatious questions in our Nationality Laws

Creator

Garcia, Leon T.

Language

English

Source

The Lawyers Journal Volume XIX (Issue No.6) June 30, 1954

Year

1954

Subject

Philippines -- Statutes, Laws, legislations, etc.

Rights

Abstract

[The question of nationality has in the past been the cause of international complications or even wars that it has become the concern of international bodies which gather in convention or conferences for the purpose of finding ways and means of minimizing as much as possible the conflicts in the Municipal Laws of the various countries of the world. Such problems arise every now and then and there seems to be no end to questions growing out of such conflicts. Our nationality laws cannot be an exception to this.]

Fulltext

CERTAIN VEXATIOUS QUESTIONS IN OUR NATIONALITY LAWS* BY ATTY. LEON T. GARCIA (Vice Consul oJ/ the Philippines) The question of nationality has in the past been the cause of inte1·national complications or even wars tha.t it has become the conc1:rn of international bodies which gather in convention or conferences for the purpose of finding ways and means of minimizing ns much as possible the conflicts in the Municipal Laws of the various countries of the world. Sui::h problems arise every now and then and there seems to be no end to questions growing out of such conflicts. Our nationa~ity laws cannot be an exception to this. It is, therefore, my desit'c to present to you some of the most v<>xntious questions in our nationality laws. Firstly: - Whether or nOt it.. was ever the policy of the United States to extend to the Philippines the appli~ation of thc princirle of jus sofi - a doctrine which predominates in the United States-a principle which was applicable in the Philippine:; dcring the Spanish Regime. Secondly: - Whether or not bv the marriage of an alien woman to a Filipino citizen which automatically make her a citizen of the Philipr>ines. her minor children pr~viously begotten with a .de.. ceased husband or other man, follow her new political status. Was it ever the policy of the United States to extend to the> Philippines the applic&.tion of the principle of jus soli as it applies in the United States - a p1'inciple which was .J.pplicable in thr Philippines under the Stlanish regin .. c? ls the prindple of jus soli a:;: enunciated in the Roa case and other cases based on it., in consonance with Jaw? If not, why? If, in the affirmative, how far is it justified? Docs the jiu soli principle affect those per~ sons born between the period Ap?"il 11, 1899 and July 1, lfl02?. Before the American Occupation in the Philippines, th<'re hnd not been so mtl~h iieed for elariiir.ation of the provisions of th!' Sp:.i.nish Civil Code in the matter of citizenship, because there was no such term of "Philippine citizen", or "citizc>nship of the Philippines", but that the natives of this country, generally, were regarded and denominated as "Spanish subjects", or "subjects of Spain". In passing, it mny be stated that under the Spanish Jaw in the Islands, beth tl1e doctrines of jus so/i and jus san9uinis were reC'ognizcd in this jurisdiction as provided in Articles 17, etc., of the Spanish Civil Code, which enumerates the following aS Spaniards: (a) persons born in the Spanish territory; (b) children of a Spanish father or mother, even if they were born outside of Spain; (c) foreigners who have obtained a certific'lte of naturalization; and (d) those \vho have ,not obtained such c£rtificates but ~ ~acquired domicile in any town in the Monarchy. Article 18 of the Civil Code, however, gave to children the nationality of their parents while they remain under parental authority. That in order for those born of foreign parE:nts in Spz.nish territory to enjoy the benefits which paragraph 1 of Article 17 gave to them, it is indispensable roo.uisite that the parents declare, in the manner and before the official in charge of the civil registrY specified in Article 19, that they choose in the name of their children, the Spanish nationality. renouncing any other. Article 19 gave to children of foreign pa1·ents born in Spanish domains the right to declare within .::i. year following th~ir majority or ;:mancipation, whelher they desire to enjoy the Spanish nationality. With the clmnge of sovereignty, however, the aforesaid provisions yert!lining to nationality being political in nature, wen: ipso facto abrogated because, "pursuant to well-established public h!w, when a nation cedes territory to another, either in view o! conquest or for some other cause.. such Jaws which arc of a pclitical nature and pertain to th<.: prerogatives of the previous government, immediately ceased upon transfer of soverl'ignty.'' <Up. Alty, Gen. U.S., July 10, 1899, cited in Mariano Sy-Jueco v. ?ifanuel A. Hoxas, decided by the Court of Appeals, January 31, 1941, CA-G.R. No. 7026, anrl ·also in ,Roa v. Collector of Custom:.., 23 Phil. 315). Under international practice in general, the inhahitants of ceded territories, not only automatically lose their o!fl political allegiance but also acquire that of the 'lAnexing State. Ordinarily, the reservation is made that they conset·ve their criginal nationality by means of option. <See Garci.::i., "Problems of Citit.cnship in the Philippines'', p. 19, and authorities cited>. By Article 1 .x vf the Treaty of Pad;, of Dcr;ember 10, 1898, ~tween the Umted States of America and Spain, it was pro. v1ded that "the civil tlnd political status of the na.tive inhabitants of the territories hereby ceded to the United States, shall be ·determined l=y thr: Congress." Filipinos remaining in this countl"y or temporarily sojourning abrnnd who were not natives of the Pe. ninsula could not, according to the terms of the treaty, eleci to retain their allegiance to ·Spain. By the cession, their allegiance became due to the United Stz.tes and they became entitled to its protection.. (Uoa case, supra). Although they did not become citizens of the United States, the Filipinos ceased to be aliens in the sense of the immigration laws. It was not the intention ot the Commissioner::; who negotiated the Treaty to give those inhabitants (of the Philippines and Porto Rico), the status of citizens of the United States. <Garcia, "Problems of Citizenship', p, 21; and Moore, "III Digest of Intcrnationa.l Law", p. 32L) Despite the authority conferred upon it by the Treaty, the Congress of the United States did not enact a law to that effect until J uly 1, 1902, when it appro\•erl the Philippine Bill of 1902, which provides as follows: "That all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April 1899, and then resided if! the Islands, and their children born subseque11t thereto, she.II be deemed and held to be citizens of the Philippine Islands, and as such entitlcr! to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the pro\•isions of the treaty of peace between the United States and Spain signed at Paris December 10, 1898." <Section 4, Philippine Bill of 1902, which is similar to Section 7 of Act of Congress f)( the United States establishing civil government for Porto Rico" approved April 12, 1900.} This is a statement oi the p.>licy for th'1sc wh.:, were Spanish subjects on April 11, 1899, mt?aning those who were already born and were Spanish subjects on tlrnt date; and also as lo those who were born on and after the effectivity of the Act of July 1, 1902. The ioregoi11g provision of Jaw did not seem to cover persons Lorn in the Philippines of foreign parents from end after April 11, 1899 to July 1, 1902. For our use in this di':l~ussion Jet thig period be ca.lied a "vacuum" period in the absence of any law a.t the time. Said specific provision was amended by an Act of Congress approved on March 23, 1912 which added the following proviso: "Provided, that the Philippine Legislature is he1·eby nu. thorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of ot!ter insular possession of the United States, and such other persons residing ill the Philippine Islands who could become citizens of t-he United States, if residin,l therein." The provisions of section 4 of the Philippine Bill of 1902 as amended by the Act of March 23, 1912, were embodied substanJune 30, 1954 THE LAWYERS JOURNAL 265 CERTAIN VEXATIOUS QUESTION .. tially in the Philippine Autonomy Act ot 1916, otherwise known as the Jones Law approved on August 29, 1916. This provision in addition to the treaty constitutes lhc basis from which an analysis may be made whether or not it was ever the intention ,,f the United States to apply in this country the principle of ju.• soli, which predominates in the United Stutes as it WM also applica.hlE< in the Philippines dul'ing the former isovereign. An interpretation of the above provisions of the American Law for the Philippine Islands, which has become a legal doctrine ir. our jurisdiction and repea~edly fr>llowed, is found in the dechiiun ot the case of Roa v. Collector of Customs, 23 Phil. 315, which said: "Here Congress declared that a.ll inhabitants of the Philippine Islands continuing to reside therein who were Spani!!h subjects on the 11th of April, 1899, and then resided in this country, and their children . born subsequent th:n·eto, sJiall be deemed and held to be citizens of this country. According to those provisions it is not necessar:r for such persons to do anything whatsoever in order that they may acquire full citizenship. The same is true with reference to Spanish subjects who were born in Spain proper and who had not elected to retain their allegiance to the Crown. By section 4 the doctrine or principle of citizenship by place of birth which prevails in the Untted States was extended to the Philippine Islands, but with limitations. In the United States every person with certain exceptions, born in the United States is a citizen of that country. Under section 4 every person born after April 11, 1899, of parents who were Spanish subjects on that date and who continued to reside in this country are at the moment of birth ipso fa.cto citizens of the Philippines." For our purposes in this discussion, it must be borne in mind that Roa was born in the Philippines in 1889 of a Chinese father and Filipino mother legally marl'ied at the time of his birth. Bi~ father went to China and died there in 1900. Roa wns sent to China by his mothe'r in 1901 for study and returned here in 1910 when he was nearly 21 years of age. The Supreme Court dednred him to be a citizen of the Philippines. This decision has been followed thereafter in a number of cases a.nd became the rule until 30th September 1939, when in the Pae Chua case <G.R. No. 46451, 40 Off. Gaz. 2 Supp. 244), our Supreme Court abandoned it end hf'ld that a person of Chinese parentage, born in the Philippines in 1914, is not a citizen thereof, because she followed the citizenship of her parents and l'he was not a citizen of the Philippnies under Section 2 of the Jones Law, <Act of August 29, 1916>. But in Torres v. Tan Chim <G.R. No. 46953, F'ebruary 3, 1940) and in Gallofin v. Ordoiiez <G.R. No. 46782, June 27, 1940, 40 Off. Gaz. 8th Supp. 122, No. 12 September 20, 1940), said Court reverted to the rule of fus soli. Attention is invited to the fact that in the case of Tan Chim, the issue involved is the citizenship of his alleged father, Alejandro Tan Bangcc; who natter) was born in Manila in 1893. This case is similar to the Roa case in the sense that in both cases, the subjects involved were born in tht. Philippines before the advent of the American sovereignty, of Chinese fathers and Filipino mothers. The Court said: "We can not reverse the doctrine in Roa case .s-upra, if to convert him into an alien after final pronouncement in 1912, that he was a Filipino. If we depart from the rule there established notwithstanding the almost exact 3nalogy between the two cases, nothing short of legal anachronism would follow and we should avoid this result." In the Gallofin v. Ordoiiez case, supra, Ordoiiez was born in Pasay, Rizal, in 1891 of Chinese father and Filipino mother as IUegitimate child. Similarly, in Yu Ching Po. v. Gatlofin, G.R. No. 46795, promulgated on October 6, 1939, it was held that a person born in the Philippines of a. Filipino..mestizo father and a mestiza-Chinese mother, notwithstanding vagueness in point of paternity and matc.rnity, because according to our decision, "no deeen si es hijo de padre Filipino de madre china, o si lo es de padre chino y de madre Filipino", is a Filipino citizen, for the reason that under article 17, paragraph 1 of the Civil Code, which was in force in that year, he was a Spanish subject, which nationality he conserved. Again on September 16, 1947, in the case of .lose Tan Chong v. Secretary of Labor, G.R. No. 47616 and La.m Swee Sang v. Commonwealth, G.R. No. 46723, jointly decided l>y the Supreme Court on that date, it was held that the petitioner in the first case •born in Laguna in July, 1915 of Chinese father and Filipino mother lawfully married> and the applicant in the second case \born in Jolo, Sulu, on May 8, 1900, of Chinese father a.nd Filipin<:' mother) who were born of alien parentage, were not and are not, under this section (section 2 of the Jones Law), citizens of the Philippines. Then on September 26, 1952, in the case of Talaroc Y. Uy, G.R. No. L-5397 in quo warranto prot'eedings instituted by defeated candidate against the elec.tion of Alejandro D. Uy on the ground that the latter was a Chinese national, the court h<!ld that Uy wa11 a citizen of the Philippines, for having been born on Jan. 28, 1912 in Iligan, Lan~o. of Chinese father and Filipino m:>ther while hi's 'parents were living as common-law husband and wife; latter contracted religious marriage in March 1914; father having died in Jligan in 1917 and mother died a widow in 1949. He became a citizen of the Philippines for as a minor at the time of death of his father in 1917, he followed his mother's citizenship who reacquired her original citizenship following the death of her husband. <Note: Com. Act 63 approved on October 21, 1986, provicle-s certain procedure for a Filipino woman who lost her original citizenship by marriage to a foreigner, to re- · acquire her fost citi~enship after dissolution of marriage. Hence automatic reversion was abrogated by Com. Act No. 63) From a review of the diHel"ent cases which were decided by the Supreme Court following the principle of the Roa Case, it is revealed that in the majority of such cases the persons were born in the Philippines of Chinese fathers and I•'ilipino mothers, legally married, or in some cases bom illegitimate and whose births took place before the ndvent of the Am.!rican Sovereignty. Among such cases are Vano v. Collector of Customs, 23 Phil. 80 in which subject was born in the Philippines of Chinese father and Filipin? mother in 1892; U.S. v. Ong Tianse, 29 Phil. 332, born in Leyte, in 1890 o! Chinese father and Filipino mother; U.S. v. Ang, 36 Phil. 8i'i8, born in Philippines of Chin1:se father and Filjpino mother; U.S. v. Lim Bin, 36 Phil. 924, born in Philippines in 1882 of Chinese parents; Basilio Santos Co. v. Governml!nt 52 Phil. 543, born in Malolos, Bulacan, as illegitimate child of a Chinese father and Filipino mother before ·the American Regime; Yu Ching Po v. Gallofin, G.R. No. 4679f>, 11romulgated on October ti, 1939, father of person involved was born in the Philippines during enforcement of the Civil Code; Mariano Sy- J ueco v. Manuel A. Roxas CCourt of Appeals case) CA-G.R. No. 7026, decided .:in January 31 1941, born a.s natural son of Chinese father and Filipino mother <parents contracted marriage in 1898>; Torres v. Tan Chim, G.R. No. 46953, February 3, 1940, father of person involved was born in Manila in 1893, of Chinese father and Fili~ino mother; and Gallofin v. Ordonez, G.R. No. 46782, June 27, 1940, 40 Off. Gaz. 8th Suppl. 122 No. 12 Septt!mber 20, 1940, born in Rizal in 1891, of Chinese father and Filipino mother (illegitimate). As to persons born of foreign parents (Chinese parents) during the period covered by the American :r:egimc, that is, from April 11, 1899, there are only two cases so far upon witich the Supreme Court make pronouncement, because for a long period of 266 THE LAWYERS JOURNAL June 30, 1954 CERTAIN VEXATIOUS QUESTION. time, the bench, the bar and the public had had t·he impression that the mere fact of birth in this country, of a child irrcspectivl'! iJi the nationality of the parents, conferred citizenship upon such person. In the case of Teofi\0 Haw v. Collector of Customs, S:l Phil. 612, in which Haw was born in Tey::bas, in 1916, d Chinese pa. rcntage, it was hE:ld that the "petitioner's birth in the Philippines makes him a citizen of the Philippines". This is the only csse decided by our Sup1·eme Court in which the principle of jus soli aa applied in the United States pursuant to the provi;lion of the 14th Amendment to the Constitution, was actually applied in this j uris. diction covering persons bom in the Philippines of foreiln pnrents during the American regime. The reason of the C:iurt was based on the 14th amendment to the Constitution of the United States which pervaded the legal minds of the Court as well as the members of the legal profession at the t ime, on the n.\'sumpt.ion that persons of ~imilar cirr.umstance'f if born in the United States could Mt have been denied admission in said country being citizen!' there. i;f, and on the strength of such nn analogy, it was believed thz.t e iierson bom in the Philippines could not have been denied admission into the country of their birt h which gave them PhilippinC citizenship. Such was the real impression at the time, and whether it was the correct view or not, attempt shall be made to analyzf'. the provision of the Congressional Ads to S(-E! the real intent of Congress as embodied in the law. · Between the decision of Teo!ilo Haw case supra and that uf Paz Chua case Sripra, both of whom were born in the Philippines after July 1, 1902, there is very sti-ong reason supporting the view and which is in consonance with the law, that the fus soli principle was not provided in the Philippine Hill and, therefore, t h!::! mere fact of birth in this country afte1 · that da.te did nol confer Philippine citizenship. This new ruling on Paz Chua case to the effect that the prin. ciple of j11s soli was not carried on in the Organic Act of 1902, was further strengthened when the same Court decideri jointly the two cases by declaring that: "x x petitioner Jose Tan Chong in the case o( Jose Tan Chong v. Secretary of Labor, G.R. No. 47616 <who was born in La.guna in 1915 of Chinese father and Filini1:0 mother, legally married); and applicant L.:im Swee Sang, :n the case Lam Swee Sang v. Commonwealth, G.R. No. 47623 (who we.s born in Sulu, in 1900, of Chinese father and Filipino mother ), were not and are not, under section 4, Act of July 1, 1902, and section 2, Act of August 29, 1916, citizens of the Philippi:ie Islands." Said Court further held: "Conside1·ing that the common law principle or rul<! o( jus soli obtaining• in England and in the United States as embodied. in the Fourteenth Amendment to the Constitution of the United States, has never been extended to this jurisdiction I Sec. 4, Act o( 1 July, 1902; Sec. 5, Act of 29 August 1916); and considering that the law in force and applicable to the petitioner and the applicant in the two cases :-it the time of their birth is section 4 of the Philippine Bill (Act of 1 July 1902) as amended by Act of 23 March 1912, which provides that only those inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the 11th day of April, 1899, and then resided in said Islands, and their childi-m born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands,'· We are of the opinion and so hold that the petitioner in the first case and the applicant in the second case, who were: born of alien panmtage were not and are not under said sections citizens of the Philippine Islands." ''Needless tu say, this decisi"n jg not intended or designed to deprive, as it cannot divest, of their F ilipino citizenship, those who were declared to be Filipino citizens, or u11on whom such citizenship had been conferred, by the court because of the doctrine or the principle of res adjudicata.'' The concurring opinion of Mr. Justice Hilado, in the two cases Inst mentioned is a simple, concise clarification of t-he issue in cer. tain respects, which says: "I concur in the .revocation of the doctrine of fus soli enunciated, among other cases, in the Roa v. Collector of Customs, 23 Phil. 315. Besides, the ruling of t-hat case can not be invoked in favor of the petitioner in G.R. NI}. 47616 nor of the applicant in G.R. No. 47623 for the reason that, while Tranquilino Roa in that case was born in the Philippines in the year 1889, when article 17, etc. seq. of the Civil Code were yet in force here and made him Spanish subject, the said petitioner and applicant in the instant cases were born, although also in the Philippines, in 1915 and 1900, respectively, i.e. after the abrogation of said articles, due to political character, upon the change of soverignt~· following the Treaty o( Paris ending the Spanish-American war. <Roa v. Insular Collector of Customs, 23 Phil. 315, 330; Hal!eck's International Law, Chapter 34, par. 14; American and Ocean Insurance Companies v. 356 Bales o( Cotton, Pet (26 U.S.) 511, 542; 7 L. ed. 242). As decl:?.red in the majority opinion, the citizet1. ship of said petitioner and applicant should be determined as of the dates of their ·respective /,frths. "At the t ime petitioner in G.R. No. 47616 was born U915) the law on Philippine citizenship was . contained in the Philippine Bill, section 4, as amended by the Act of Congress of March 23, 1912. Petitioner could not be a Filipino citizen upon the date of his birth because his father, who was legally married to his mother, was a Chinese citizen and not a subject of Spain on April 11, 1899, like his mother .. "The applicant in G.R. No. 47623 could not possibly be 3. Filipino citizen upon his birth CltJOOl because, aside from thefact that his father, who h: presumed to have been legally married to his mother, was a Chinese subject, there was no 1011· on Philippine citizc1~hip at that time, because firstly even the aforesaid articles of the Civil Code had previously been s.brogated, as already stated, by the change of sovereignty in the Philippines following the Spanish-American war, secondly, said articles at any rate did not regulate Philip_pim: citizenship nor did they make said applicant's f!:l'hcr a Spanish subject, and thirdly, the Philippine Bill was oot enacted until July 1, 1902." We are fully in accord with the majority and i:i the concurring opinions in the Tan Chong Case Cborn in Philippine'.l in 1915) G.R. No. 47616 that the Philippine Bill of 1902 which has no provision on the application of jus soli principle, was applied in his case because t hat was the law in force at the time of his birth. But we humbly dissent from the opinion in the other case of Lam Swee Sang G.R. No. 47623 <born 1900) because there being no law on Philippine citizenship a.t that time, the principle of jus sanguinis was applied to him by the court. In the absence of law at the time c-f Lam Swee Sang's birth in Sulu, the next question is: How E.hou\d his citizenship be determined? The Civil Code provisions on citizenship were by the t ime of his birth already abrogated; the Philippine Organic Act cannot apply to him for the simple reason that its provisions while d0termining the political status of the native inhabitants of the Philippines as of April 11, 1889, as agreed in the Treaty of Paris, cannot apply retroactively upon pe1·sons born in thu Philippines before it became effective in 1902 ; hence, the Court declared him k. be not a citizen of the Philippines, for he followed the Chinese nationality of his parents, who were Chinese citizens at the time 'l( his birth. But the Court failed to consider the case from another angle, t.hat is, it should have laid stress on the fact that at the time of June 30, 1954 THE LAWYERS JOURNAL 267 CERTAIN VEXATIOUS QUESTION. birth of applicant in this country, lhe Philippine$ wa.s alreadr a territory of the United States, in which the dcmncratic way of life was more pronounced than in any part of the world. It should have been borne in mind by said Court that any r:erson born like the circumstances of the applicant <1900> in P.L, began to breath a new air in a new atmosphere, under a democr<>cy whose p1·cvailing r ule was to the effect that the mere fact of birth in the United States conferred citizenship upon such person, irrespective of his pat·ents' citizenship. That was the paramount principle which predominated in the new sovereign country then and at the present time, We do not believe that the United States could have disregarded the position of those situated like the applicant, when even the early justices of the Supreme Court of the Philippines entertained the view as Mr. Justice Malcolm said in his concuning opinion in the Lim Bin case supra, that the principle of 111s soli was applicable in this country with limitation, on the· ba.sis of the case of U.S. v. Wong Kim Ark, 169 U.S. 649 . During the period of indecision on the part of the United States until the Organic Act of 1902 was actually enacted, the benefit of .such an indecision should be in favor of the persons who would otherwise be prejudiced thereby. And such rights acquired during said va. cant period, cannot be abridged by any subsequent legislation in the same way that rights to life, liberty and property should be protected. Although the Constitution of the United States did not extend to the island ez propio vigore, however, the same principle upon which the Government of the United States lies, and which underlie the protection of life, liberty and property, carry with them the right to the possession of a certain kind of political status which should naturally identify them as a result of their birth in a United States territory. The former sovereign actually applied in the Philippines the same principle or doctrine of jus soli aS it was and is still being applied in the United States. And no justifiable reason may be attributed, why same principle should not be applied in the · Philippines during this vacuum period. It would seem an injustice to let such persons' status to hang in the balance during such period of indecision on the part of the United States. Such an i:adecision on the part of the new sovereign can. not and should Mt prejudice the rights of person who would he.ve Leen adversely affected thereby Th£' fundamental reasons relied upon by the Supreme Court of the Philippines in the Roa case and the subsequent cases based on it, we honestly believe, while not exactly applicable or appropriate on the circumstances of the Roa and similar cases, for they were born during the Spanish Regime, would, undoubtedly, be the very same fundamental and persuasive reasons which very aptly would fit ant.I uphold the rights acquired by the persons born during the vacant (vacuum) period between April 11, 1899 and J uly 1, 1902, exclusive. The circumstances of these persons differentiate or distinguish their status from those born after the enactment of the Philippine Bill of 1902, it being the expression of thr! policy of -thi:: United States in the Philippines and should goverr. in determining lhe citizenship of persons born after the latter date SUMMARY OF PART I Summarizing our analysis of the antecedents, the development or evolution of the Philippine laws on citizenship, starting from the Spanish Regime, through the period of the Military-Civil Occupation, to the period of the Civil-Autonomous Administration by the United States of America, a nd the trends of the constructbn or interpretation of said laws by the Courts of this country, bee.ring specifically on the present inquiry - whether or not it was ever the policy of the United States to extend here the principle of jua soli, it is our conviction that the following points may now be considered as clear and uncontradictcd: Firstly. - That there is actually no basis, and therefore, no justification for the Courts to have over-used the term "jus aoli" allegedly as a doctrine in this jurisdiction in conner.tion with the interpretation of section 4 of the Philippine Bill of 1902 and section 2 of the Jones Law of 1916, in view of the fact that the perscns or individuals whose citizenship was then involved, were perscns born in the Philippines of Chinese fathers and Filipino mo. lhers, before the advent of the Americ:m sovereignty in the Philip. pines. Therefore, their citizenship was governed by the law then in force ii.nd effect, such as ttie Spanish Civil Code, and not by the Philippine Organic Acts. Secondly. - There was actually no specific provision in the Philippine Organic Acts (of 1902 and of 1916) in question, from which it might be considered or inferred that the mere fact of birth in this country from and after July 1, 1902, conferred citizenship u1ion those born thereafter in this country. Thirdly. - That the period from April 11, 1899 to July 1, 1902, exclusive, is a vacant vr vacuum period which is characterized by the absence of specific law on citizenship. Fourthly. - That the citizen:;h1p of persons born in the Philippines, should be determined as of the dates of their respectiw births, and by the Ja.w then in force at the time. CONCLUSION TO PART I Consequently, it may be conclllded that in not incorporating the principle of ;us soli within the terms and provisions of the aforementioned Organic Acts of 1902 and 1916, the United States. either inadvertently or deliber.ately, did not extend the application of the i;rinciple of jus soli to the Philippines, at least from and after July 1, 1902, when for the first time, Congress expressed in law its own policy in the Islands. That though said principle or rloetrine of jus soU W&S not actually adopted as a policy when Congress enacted the Organic Act of 1902, it shollld undoubtedly be considered as applying in this jurisdiction with limitation, at least from April 11, 1899 to July 1, 1902, exc\usi\1 e, as a necessnry alternative to upset any possible injustice or discrimination against the peoplr. affected, and as a necessary coni;equence of the fundamental principles which underlie the protection of life, liberty !lnd property a.'I embodied in Great Bill of Rights of the United States. RECOMM.END:\TION TO PART I In view of the foregoing clarification, it is our humble and considered view as we strongly recommend to all concerned, that in matters of citizenship, the following rules be ivfopted in deter. mining questions of citizenship in the manner suggested by Mr. Justice Malcolm of the Supreme Court in the case of U.S. v. Lim Bin, sup-ra, and Mr. Justice Jose Lopez Vito, of the Court of Appeals, in the case of Mariano Sy-Jueco v. Roxas, supra, with our humble amplifications, to wit: 1. If the child was born before the date on which the Spanish Civil Code took effect in the Philippines, his citizenship should be governed by the Jaws then in force, especially the Royal Decree of November 17, 1852, the Law of September 18, 1870, and the Law of the 3rd Title, 11th Volum·e of the 6th Novisima Rccopilacion; 2. If he was born after the Spanish Civil Code went into effect in these Islands, but previous to the acquisition of said Islands by th!l Unit!!d States, the .:iti:wnsh1p of the child must be governed by the provisions of the Civil Code; 3. If he was born a.fter the Philippines were ceded to the United States and before any law was promulg11t~d on July 1, 1902, - defining the status of the natives of the Philippines, his citizenship should be governed by the American law on citizen. ship, especially the 14th Amendment to the United States Constitution, and the interpretation made by the Supreme Court of the United States in the case of U.S. v. Wong Kim Ark, 1897 069 U.S. 469), an interpretation which constiiutes a legal doctrine applicable to a territory of the United States; at least, during the \'acant <vacuum) period when there was no law on citizenship in this jurisdiction: 268 THE LAWYERS JOURNAL June 30, 1954 CERTAIN VEXATIOUS QUESTION. 4. After the acquisition of the hilippine Islands by the United States, by virtue of the Treaty of Paris, and after the actua.l enactment of the Philippine Bill of July 1, 1002, the citizenship of persons born thereafter must be gove1·ned by the said Organic Acts. - II - Finally, we come to the second question - whether or not a minor child of an alien woman w!lo automatically becomes a Philippine citizen by reason of her marriage to a Philippine citizen, also b12con1cs ipso facto a citizen of the Philippines? That is, does an alien minor step-child of a Filipino citizen step-father become also a Philippine citizen like the mother·! ls the citizeuship acquired by marriage a naturalization within the meaning of Section 15 of Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law? Is there such thing as naturalization by marriage which may transmit citizenship to the wife's minor c~ildren by previous marriage or previous illicit relations with other man? And what is the citizenship of a minor child of a foreign divorcee mother who becomes a Filipino citizen by marriage to a Filipino, assuming that the divorce is cognizable in this country? The Jaw applicable or which has a bearing O!l thC foregoing questions, is section 15, paragraphs 1 and 3, thereof, which pro''ides as follows: "Effect of the naturalization on wife and children. - " Any woman who is now or may hereafter be married to a citizen of the Philippines, and who might herself be naturalized, shall be deemed a Philippine citizen. "A foreign-born minor child, if dwelling in the Philippine'! at the time of the na.turnlization of the parent, shall automatically become a Philippine citizen, and a. fo1·eign-born minor child, who is not in the Philippines at the time the parent· is naturalized, shall be deemed a Philippine citize;1 only during his minority, Unless he begins tn reside permanently in the Philippines when still a minor, in which case, he will continue to be a Philippine citizen even after becoming of age.'' The foregoing provisions are quoted for purposes of reference whether they really apply to the questions under scrutiny in view of the mothe1·'s acquisition of Philippine citizenship by virtue ot such marriage, and whether further there is such thing as "natura.lization by marriage." The first paragraph of Section 15 above quoted, confers Philippine citizenship upon alien woman upon her marriage to a citizen ::if the Philippines, if such alien woman herself might herself be lawfully naturalized. The phrase "'who might herself be naturalized", does not requil"t;! that the woman shall have the qualifica.. tions of residence, etc. as in the naturalization proceedings, but merely that she is of the class or race of person::i who may be naturalized. Inasmuch as race qualification has been removed from our Naturalization Law, it results that any woman who marries a citizen of the Philippines prior to or after Juno 17, 1939, and lhe marriage not having been dissoh"ed, and on the assumption that she possesses none of the disqualifications mentioned in section 4, Commonwealth Act No. 473, follows the citizenship cf her Filipino husband. (Garcia "Problems of Citizenship" p. 122, .and authorities cited). Although this paragraph provides for the conferment of citizenship upon the a.lien wife who marries a Filipino citizen, it cannot be said that she acquires it by naturalizatiou although the provision is included in section 15 of the naturalization law. At most it may be said that marriage is a form of acquisition of citizenship, not necessarily as a form of na.turalization, but following the principle of unity of nationality in the family, and following cur system of the family in which the father-husband is the head. While marriage is a form of institution and a source of acquisition of citizenship, it is not a kind of naturalization, beca.use naturalization implies certain form of procedure, be it in cnurt or in executive or administrative agency, to be followed with some formality of some kind as a pre-requisite, where the petitioner is the head of the. family, that is, the husband~father. In his default, however, if the wife so desires, then she has to comply with certain requirements as to qualifications and disqualifications, etc. But in case of marriage as a source of citizenship, the fact of marriage alone, without disqualification due to wa!" or due to lack of reciprocity as provided in ·section .4, and without even taking an oath of allcgin.nce, confers citizenship of the Filipino husband upon the alien wife. In short, if citizenship is transmitted to the alien wife, it is by her marriage that she acquires a distinct status whose personality is merged with her husband from whom she derives her new political status. The next question which now presents itself ia: Is this new citizenship of the wife transmisSible from her to her minor children pi·eviously born to her with another man, be it her legal husband or not? Does not the child pos:;css a certain citizenship already conferred upon him by reason of his birth, be it under the principle of ju.s soli or jus sanguinis? Could such citizenship of the minor children acquired when born, be merely laid aside as easy a~ that and get another upon the change of nationality by the mother? · In at least three Opinions, the Secretary of Justice expressed the view based on the alleged rule in the United States, to the effect that minor children of a.lien woman who automatically became citizens ot the Philippines by re:ison of their marriage to naturali2.ed citizens, also ipso facto became citizens of the Philippines. These are Op. No. 1, s. 1954 in the case of Sophie and Betty Lian, l!) and 18 years of age, born in China of Chinese parents; mothel', after becoming a widow, married another Chinese, who later was naturalized as citizen of the Philippines, were likewise considered citizrns; and Op. No. 111, s. 1953 re-citizenship of Zosimo Tan who was also c:onsidered as Filipino citizen, based on similar circumstances. The case of a certain Pascual, Op. No. 147, s. 1953 who was born in \915 of Spanish parents, his father having died in 1916, his mother · married a citizen of the Philippines, was also considered citizen o( the Philippines following the same vein as the other two Opinions. These three opinions were based on some American authorities to the effect that: "When the husband of an alien woman becomes a. naturalized citizen, she and her infant son, dwelling in this country, become citizens of the United States as fully as if they have become such in the special mode prescribed by the naturalization laws. United State ex rel. Fisher V. Rogers, U.S. Com'r et al., 144 Fed. p. 711; 712; United States v. Keller /c.c./13 Fed. 92; Kelly v. Owen, 7 Wall./74 U.S./26 Fed.j2nd/148, 149." Assuming the child in the American cases cited to be that of a previous husband of the woman, that is, step-c:hild of the naturalized citizen, still we cannot be guided by such a ruling in the United States, because, there is such a lot of differences in our Constitution and other laws -on citizenship, from the Jaws on citizenship in the United States. In the United States, an American wom::>.n who marries an alien does uot follow he~· husband's nationalit.y, which is opposed to ours. Under the Am~rican law iheY follow certain procedure for naturalization of alien women m:irried to citizens of the United States. Be it as it may, we must bear in mind that we have our own law on the subject which we will attempt to analyze for our clarification For instance, there is nothing to infer from the provision of paragraph 3 of section 15, Com. Act No. 473, from which it may be inferred that an alien woman who acquired citizenship by reason of marriage, may in turn. transmit, such hi.i:rh privilege of citizenship to her minor children of a previous marriage. In fa.ct the title of section 15, "Effect of naturalization on wife and children", indicates and refer only to the legal wife and legitimate children of applicant-husband-father of the family to which his June 30, 1954 THE LAWYERS JOURNAL 269 CERTAIN VEXATIOUS QUESTION . . . ,r;tep-childrcn -children of his wife with a previous husband, have no relation to him as would have the benefit of the efff'cts of naturalization. It must be stated further that the foreign wife who becomes a citizen by virtue of the marriage, has no privilege of her own, to re. transmit what has been transmitted to her or. the virtuality of that marriage, for her own personality is merged with her Filipino husband who is the head and the fountain rnurce of such right or high privilege. This is founded on the very principle which underlie our unique system of family institution, in which even in questions of inheritance certain legitime ls reserved upon the forced heirs, and on this analogy the logical conclusion is that the step-children of: the Filipino citizen, husband of the child's mother, shall not have such i·ight of succession to thf' pri\•ilege of citizenship coming solely from the 'step-father. But it may be argued that since she is the only surviving guardian of her own minor children, her minor ~hildren should follow her citizenship. As a matter of fact, in the dissenting opinion in the case of Villahermoso v. the Commissioner of lmmigrationi G.R. No. L-1GG3, March 31, 1948, 45 Off. Gaz. 167, No .. 9 Suppl. where a minor child of a Filipino woman marrieJ to a Chlnesf alien, docs not follow the mothe1"s citizenship folluwing the dPath of her alien husband. Messrs. Justices Perfecto an<l Tuazon (dissenters) argued that under Art. 18 of the Civil Code, "childien, while they remain under parentll.l authority, have the nationality of their parents," and that "since minor childl'en depend on their parents for their subsistence, support and protection, it stands to nason that they should foilow the nationality of said parents." This was the same argument used in the Roa c11se, supra, that "the weight of authority is to the effect that the marriage of an American woman to an alien confers upon her the nationality of her husband during coverture; but that thereafter on the dissolution of marriage by death, she converts ipu; f<1cto to her original stat\l9 unless her conduct or acts show that she elects the nationality of her deceased husband." The dissenting opinion, while pointing to fllltural law as a basis of unity of citizenship, such is not the case in the question at issue, firstly because Article 18 of the Civil Code has already been abrogated by change of sovereignty, and secondly, the principle tha! "a minor child follows that of its surviving pa•·ent. the mother", was abandoned when section HO, Art. IV, of the Constitution was adopted to the effect that children of Filipino woman married to fr.reigner continue to be aliens until upon reaching the age of ma. jority, they elect Philippine citizenship. In view of mid Constitu. tic.nal provision, the Supreme Court held in the Villahermosa case, supra, that "Commonwealth Act No. 63, does not pr'lvide that upon the repatriation of a Filii)ina her children acquire Philippine citizenship. It would be illogical to cr>nsider Delfin as 1·epatriated like J1is mother, because he never was a Filipino citizen and could not have acquired such citizenship.'' Continuing, the Co\11t said: "While his Chinese father lived, Delfin was not a Filipi110. His mother was not l'.!. Filipino; she was a Chines1.:. After the death of his father, Vilbhermosa continued to be a Chinese, until she reacq1 1ired hel· Philippine <:itizenship in . .\.1 H·il, 1947. A.ftrr tlwl reacq•1isition Ddfin could clni1•1 that llis mother 11.1a11 a Filipina within tl•e meani1ty of pa1Tnf1raph 4. section J, of Article IV, of the Constitutio»; but according to same Organir Act, he Jwd lo elect Philippine citizenship 11pon uttai11i11g his majority." If the Philippine Constitution <Sec. 1 <4>, Art. JV), as interpret.ed by the Supreme Court in the Villahermosa casP., supra, promulgated a policy in which, despite the repatriation of a Filipino woman to her original Philippine dtizenship as Filipina after the dea.th of he1· alien husband, her minor son does not follow the Philippine citizenship of hi& Filipina mother, considering even the fact that such a child has in his blood 50% alien and 50% Filipino, it would be the height or injustice, and certainly .:ontrary to the spirit of the Co11stitution, to make as Philippine citizen ipso facto as ite worst, any full-blooded alien minor child of full-blooded alien mother who automatically became a citizen by her marriage to a Filipino husband. 1t could not have beC'n intended by the legislators to provi'1c such an easy way of making alien children citizens of the Philippines, and yet deny similar privilege to a child of a Filipino woman even after her repatriation as such Filipino citizen. It is true that it used to be the rule in this juri!:'diction previflus to adoption of the Constitution and the enactment of Com. Act No. 63, that "a F ilipino woman manied to a Chinese by placing herself within the jurisdiction of the Philippines after the death of her husband ipso facto followed her nationality she being the legally surviving guardian." a ·ut such old rule (in the Hoa case supra) wa..s abandoned upon the adoptio:-i vf the Constitution and the en. actment of Com. Act 63, and, therefore, any rule ir principle bor1·owed from the American decisions 01· jurisdictiou which are in conflict with our Constitution and law$' should be disregarded an<! forgotten. As the Constitution is a key to the interpretation of the provision of the Naturalizatiqn Law in ~uestion, so is the provision cf section 13 of the Philippine Immigration Act of 1940 <Com. Ac:t No. 613) which must be availed of as may aid :11 the clarification of other provisions of othel' law. Said Immigration Law provides for admission into the Philippines of certain "non-quota immigrants'', without regard to the quota limitations, precisely because of some special considerntion such as family relationship to citizen of the Philippines - a provision which forsees .i. con. tingency as b1·ought .i.bout by cases of a nature like one under inqui1·y. Sec. 13 of Com. Act No. 613 provides: "U ndci· the conditions "l<'t forth in this Act, there may be admitted into the Philippines immigrants termed 'quota immigrants' not in excess of 50 of any one nationality xx x except that the follnwing immigrant~. le11ned 'non-quota. immigrants' m:i.y he admitted without regard to such m1merical limitations. x xx "(a) The wire or the husband or the unmarried child undel' twrnty-one years of age of a Philippine citizen, if ·nccompanying or following to jf'in such citizen." Jn adopting this ;>revision in the Immigration Act, the legislature must have in mind cases like step-children, children, or hus.. band or wife of citizens. To our point of view, Md this is the most logical conclusion, that tht>~e am mg others •He the very cont':'ete exam1 iles of non-quota immigrants whc are permitted to come under section 13 of the Immigrati1J11 Law to enable them to enjo) the company of those under anti with whose care ;:;.nd protection they want to come and j.Jin in the Philippines. The difference of nationality among members of a family due to inter-marriages, is the vel'y contigency envisioned in this provision t)f the law, which fortunately, is an aid to the ~laJ'ification of the naturalization act. Ther~ is another important consideration which supports om· view thnt while the alien woman becomes a titizen by marria~ to a FiliJ'ino, the children of said wom<i.n by pri;viou;; hucband, do not become so, for it would contravene another provi:.;iC1n of the naturalization Jaw, for in section 2, par. sixth, among the qualifications required of applicants for naturali7.ation is that "he must have enrolled his minor children of school age, in any of the public schools or private schools x x x where l'hilippiuc history, ~ov­ ernment and civics are taught x x x". The Supreme Court coneidered this qualification a very important 'Jne, stat!ng that "the legislator evidently holds all the minor children of the applic~nt for citizenship must ll>arn Philippine history, government and civics, iw1rmtuch a.<i uJ)on 1wl11'tali:zation vf their ftlthe1· the11 1pso {ado acquire the privilege of Philippine citizenship." . (underscoring ours>. In not granting the application for naturalization of the applicant (Continued on pO.!Je :110) 270 THE LAWYERS JOURNAL June 30, 1954 to all of which the parties have given much attention - these are matters of form which do not alter the essential nature of the i·elationship of the parties to the transactions a.s revealed by the fundamental facts of record, It is contended that 1'if the Public Service Act were to be construed in such a manner as to include private lease contracts, said law would be unconstitutional," seemingly implying that, to prevent the law from being in contravention of the Constitution, it should be so read as to embrace only those persons and co:npanies that are in fact engaged in public service" with it.s corresponding qualification of ari offer to serve indi:.criminately th~ public." It has been already shown that the petitioners' lighters and tugboats were not leased, but used to carry goods for compensation at a fixed nte for a fixed weight. At the very least, they were hired, hired in the sense that the ·shippers did not have direction, control, and maintenance thereof, which is a characteristic feature cf lease. On the SC<'!ond proposition, the Public Service Commissiori has, in our judgment, interpreted the law in accordance with legislative intent. Commonwealth Act No. 14G declares in unequivocal language that an enterprise of any of the kinds therein enumerated is a public service if conducted for hire or compensation eyen if the operator deals only with a portion of the public or limited clientele. It hns been seen that public utility, even where the term is not defined by statute, is not determined by the number of pe9plc actually served. Nor does the mr-re fact that service is rendered only under contract prevent a company from being a public utility. l43 Am. Jur. 573.) On the other hand, casual or inddental service de\·oid of public character and interest, it must be a<lmitted, is not brought within the category of public utility. The demarkation line is not susceptible of exact description or definition, eueh case being governed by its peculiar circumstances. "It is impossible to lay down any general rule on the subject whether the rendel'ing of incidental service to members of the public by an individual or corporation whose principal business is of 3 different nature coristitute such person a public utility. ln thf! result reached, the cases arc in conflict, as the question involved depends on such factors as the extent of service, whether such person or company has held himself or itself out as xeady to serve lhE: publie or a portion of the public generally, or in other ways conducted himself or itself as a public utility. In s.:veral cases, it has bei?n held that the incidental service rendered to others consti~ tuted such person or corporation a public utility, but in other cases, a contrary decision has been reached.'' C43 Am. Jur. 573.) The transportation service which wss the subject of complaint was not casual ·.)r incidental. It has been carried on regularly for years a.t almost uniform rates of charges. Although the number of the petitioners' customers was limited, the value of goods transported was not inconsiderable. Petitioners did not have the same customers all tbc time embraced in the complaint, and there was no reason to believe that they would not accept, and there was nothing to prevent them from accepting, new custome1·s that might be willing to avail of their service to the extent of their capacity. Upon the well-established facts as applied to the plain letter of Ce>nunonwealth Act No. 146, we are of the opinion that· the Public Service Commission's order does not invade private rights of J.>rOpe1-ty or contract. In at least one respect, the business complained of was a. matter of public concern. The Public Service Law was ~nacted not only tC' protect the public against unreasonable charges and poor, inefficient service, but also to prevent ruinous competition. That, we Ycnture to say, is the main purpose in bringing under the jurisdiction of the Public Service Commission motor vehicles, vther means of transportation, icti plants, etc., which cater to a limited portion of the public under private agreemer.ts. To the 'extent that such agreements may tend to wreck or impair the financial stability and efficiency of public utilities who do offer service to the public in reneral, they a.re affected with public intc1·est and come within the p(llicc power of the state to regulate. Just as the legislature may not "declare a company or enterprise to be a public utility when it is not inherently such," a public utility may not evade control and supervision of its op~ration by the government by selecting its customers under the guise of private transactions. For the rest, the constitutionality of Commonwealth Act No. 14G was upheld, implicity in Luzon Brokerage Company v. Public Service Commission, supra, and explicitly in Pangaeinan Transportation Co. v. Public Service ~mmission, 70 Phil. 221. Were there serious doubts, the c~urts should still be 1·eluctant to invalidate the Public Service I .aw or any provision thereof. Although the legislature can not, by its mere dcclsrn.tion, make something a public utility which is not in fact such, "the public policy of the state as announced by the legislature will be given due weight, and the determination of the legislature that a particular business is subject to the regulatory power, because the public welfare is dependent upon its proper conduct and regulation, will not lightly be disrega rded by the courts." (51 C. J. 5. ) The objection to the designntivn of Attorney Asvillera as commissioner to take the evidence was tardy. It was made for the first time after decision was rendered, following a prolonged hearing in which the petitioners c1·oss-examined the complainant's witnesse!\ and presented their own eVidence. The point is procedural, not jurisdictional, and may be waived by expressed consent or acquiescence. So it was held in Everret Steamship Corporation v. Chua Hiong, G. R. N.J. L-2933, and La Paz Ice l'lant and Cold Storage Co. v. Comision de Utilidades Publicas ct al., G. R. No. L-4053. Upon the foregoing considerations, the appealed order of the Public Service Commission is affirmed, with costs against the 1;etitioners. Paras, Pablo, Bnigwn, Padilla, Montemayor, Reyes, Jugo; Bautista Angelo nnd Labrndor, J.J., concur. CERTAIN VEXATIOUS QUESTION . CC011ti1111ed fro'm pnge ::!70) in Tan Hi v. Republic, G.R. No. L-3354, decided on January 25, 1951, the Supreme Court cited a previous decision of said Court which denied the application on the ground that "the applJcant for 11aturnliration had nin!' child1·en all enrolled in the Philippine schools e.xeept one, a minor because she lh-c frc1n infancy in China, where she W2.S enrolled in an English school in Amoy." From this decision of the Cc.urt it appears in bold rdief that if in an ordinury naturalization case the non-enrollment of a child bccau&c she is studying in her native country is a ground for rejecting an application for naturaliz:itivn, it results by inference that childn:n of mothers marrying Filipine> citizenil, much less cannot bt!comc citiZf'llS of the Philippines for that matter. CONCLUSION AND RECOMMENDATION TO PART II Any other interpretation to the contrary, like the three Opinions ,,f the Secretary of Justice hcrcinabove referred to, would lead to injustic.:i, inequity, and even absurd i·esults, which, perforce, must be ave>ided, for it would give i·ise to incong1·uous possibilities whnein full-blooded aliens with no interest or background on our socio.I, l)Olitica.l, and economic way of life could otherwise be Filipino citizens merely on papers contrary to the spirit of ·)Ul' ConsUtution and laws on the matter. . On the whole, therefore, whether the children ef the foreign woman a1·e legitimate or illegitimate, and whether the mother is a divorcee, or not, and on the ussumption that such mmor children have already citizenship of their own, such 'citizenship which the Municipal Law of the country of their birth has conferred upon them, be allowed to continue the same citir:enship--4. suggestion or a course which would tend to reduce conflict'i.ng problems of citizenship in the future. 310 THE LAWYERS JOURNAL June 30, 1954

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