PHILIPPINE JURISPRUDENCE - FULL TEXT

The Lawphil Project - Arellano Law Foundation

BAR MATTER No. 914 October 1, 1999
RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR vs. VICENTE D. CHING

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

BAR MATTER No. 914 October 1, 1999

RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR,

vs.

VICENTE D. CHING, applicant.

RESOLUTION

KAPUNAN, J.:

Can a legitimate child born under the 1935 Constitution of a Filipino mother and
an alien father validly elect Philippine citizenship fourteen (14) years after he has
reached the age of majority? This is the question sought to be resolved in the
present case involving the application for admission to the Philippine Bar of
Vicente D. Ching.

The facts of this case are as follows:

Vicente D. Ching, the legitimate son of the spouses Tat Ching, a Chinese citizen,
and Prescila A. Dulay, a Filipino, was born in Francia West, Tubao, La Union on 11
April 1964. Since his birth, Ching has resided in the Philippines.

On 17 July 1998, Ching, after having completed a Bachelor of Laws course at the
St. Louis University in Baguio City, filed an application to take the 1998 Bar
Examinations. In a Resolution of this Court, dated 1 September 1998, he was
allowed to take the Bar Examinations, subject to the condition that he must
submit to the Court proof of his Philippine citizenship.

In compliance with the above resolution, Ching submitted on 18 November 1998,

the following documents:

1. Certification, dated 9 June 1986, issued by the Board of Accountancy of the

Professional Regulations Commission showing that Ching is a certified public
accountant;

2. Voter Certification, dated 14 June 1997, issued by Elizabeth B. Cerezo, Election

Officer of the Commission on Elections (COMELEC) in Tubao La Union showing that
Ching is a registered voter of the said place; and

3. Certification, dated 12 October 1998, also issued by Elizabeth B. Cerezo,

showing that Ching was elected as a member of the Sangguniang Bayan of Tubao,
La Union during the 12 May 1992 synchronized elections.

On 5 April 1999, the results of the 1998 Bar Examinations were released and
Ching was one of the successful Bar examinees. The oath-taking of the successful
Bar examinees was scheduled on 5 May 1999. However, because of the
questionable status of Ching's citizenship, he was not allowed to take his oath.
Pursuant to the resolution of this Court, dated 20 April 1999, he was required to
submit further proof of his citizenship. In the same resolution, the Office of the
Solicitor General (OSG) was required to file a comment on Ching's petition for
admission to the bar and on the documents evidencing his Philippine citizenship.

The OSG filed its comment on 8 July 1999, stating that Ching, being the
"legitimate child of a Chinese father and a Filipino mother born under the 1935
Constitution was a Chinese citizen and continued to be so, unless upon reaching
the age of majority he elected Philippine citizenship" 1 in strict compliance with
the provisions of Commonwealth Act No. 625 entitled "An Act Providing for the
Manner in which the Option to Elect Philippine Citizenship shall be Declared by a
Person Whose Mother is a Filipino Citizen." The OSG adds that "(w)hat he acquired
at best was only an inchoate Philippine citizenship which he could perfect by
election upon reaching the age of majority." 2 In this regard, the OSG clarifies that
"two (2) conditions must concur in order that the election of Philippine citizenship
may be effective, namely: (a) the mother of the person making the election must
be a citizen of the Philippines; and (b) said election must be made upon reaching
the age of majority." 3 The OSG then explains the meaning of the phrase "upon
reaching the age of majority:"

The clause "upon reaching the age of majority" has been construed to mean a
reasonable time after reaching the age of majority which had been interpreted by
the Secretary of Justice to be three (3) years (VELAYO, supra at p. 51 citing Op.,
Sec. of Justice No. 70, s. 1940, Feb. 27, 1940). Said period may be extended under
certain circumstances, as when a (sic) person concerned has always considered
himself a Filipino (ibid., citing Op. Nos. 355 and 422, s. 1955; 3, 12, 46, 86 and 97,
s. 1953). But in Cuenco, it was held that an election done after over seven (7)
years was not made within a reasonable time.

In conclusion, the OSG points out that Ching has not formally elected Philippine
citizenship and, if ever he does, it would already be beyond the "reasonable time"
allowed by present jurisprudence. However, due to the peculiar circumstances
surrounding Ching's case, the OSG recommends the relaxation of the standing
rule on the construction of the phrase "reasonable period" and the allowance of
Ching to elect Philippine citizenship in accordance with C.A. No. 625 prior to
taking his oath as a member of the Philippine Bar.

On 27 July 1999, Ching filed a Manifestation, attaching therewith his Affidavit of

Election of Philippine Citizenship and his Oath of Allegiance, both dated 15 July
1999. In his Manifestation, Ching states:

1. I have always considered myself as a Filipino;

2. I was registered as a Filipino and consistently declared myself as one in my

school records and other official documents;

3. I am practicing a profession (Certified Public Accountant) reserved for Filipino

citizens;

4. I participated in electoral process[es] since the time I was eligible to vote;

5. I had served the people of Tubao, La Union as a member of the Sangguniang

Bayan from 1992 to 1995;
6. I elected Philippine citizenship on July 15, 1999 in accordance with
Commonwealth Act No. 625;

7. My election was expressed in a statement signed and sworn to by me before a

notary public;

8. I accompanied my election of Philippine citizenship with the oath of allegiance

to the Constitution and the Government of the Philippines;

9. I filed my election of Philippine citizenship and my oath of allegiance to (sic) the

Civil Registrar of Tubao La Union, and

10. I paid the amount of TEN PESOS (Ps. 10.00) as filing fees.

Since Ching has already elected Philippine citizenship on 15 July 1999, the
question raised is whether he has elected Philippine citizenship within a
"reasonable time." In the affirmative, whether his citizenship by election
retroacted to the time he took the bar examination.

When Ching was born in 1964, the governing charter was the 1935 Constitution.
Under Article IV, Section 1(3) of the 1935 Constitution, the citizenship of a
legitimate child born of a Filipino mother and an alien father followed the
citizenship of the father, unless, upon reaching the age of majority, the child
elected Philippine citizenship. 4 This right to elect Philippine citizenship was
recognized in the 1973 Constitution when it provided that "(t)hose who elect
Philippine citizenship pursuant to the provisions of the Constitution of nineteen
hundred and thirty-five" are citizens of the Philippines. 5 Likewise, this recognition
by the 1973 Constitution was carried over to the 1987 Constitution which states
that "(t)hose born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority" are Philippine citizens. 6
It should be noted, however, that the 1973 and 1987 Constitutional provisions on
the election of Philippine citizenship should not be understood as having a
curative effect on any irregularity in the acquisition of citizenship for those
covered by the 1935 Constitution. 7 If the citizenship of a person was subject to
challenge under the old charter, it remains subject to challenge under the new
charter even if the judicial challenge had not been commenced before the
effectivity of the new Constitution. 8

C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of the 1935
Constitution, prescribes the procedure that should be followed in order to make a
valid election of Philippine citizenship. Under Section 1 thereof, legitimate children
born of Filipino mothers may elect Philippine citizenship by expressing such
intention "in a statement to be signed and sworn to by the party concerned before
any officer authorized to administer oaths, and shall be filed with the nearest civil
registry. The said party shall accompany the aforesaid statement with the oath of
allegiance to the Constitution and the Government of the Philippines."

However, the 1935 Constitution and C.A. No. 625 did not prescribe a time period
within which the election of Philippine citizenship should be made. The 1935
Charter only provides that the election should be made "upon reaching the age of
majority." The age of majority then commenced upon reaching twenty-one (21)
years. 9 In the opinions of the Secretary of Justice on cases involving the validity
of election of Philippine citizenship, this dilemma was resolved by basing the time
period on the decisions of this Court prior to the effectivity of the 1935
Constitution. In these decisions, the proper period for electing Philippine
citizenship was, in turn, based on the pronouncements of the Department of State
of the United States Government to the effect that the election should be made
within a "reasonable time" after attaining the age of majority. 10 The phrase
"reasonable time" has been interpreted to mean that the election should be made
within three (3) years from reaching the age of
majority. 11 However, we held in Cuenco vs. Secretary of Justice, 12 that the three
(3) year period is not an inflexible rule. We said:

It is true that this clause has been construed to mean a reasonable period after
reaching the age of majority, and that the Secretary of Justice has ruled that three
(3) years is the reasonable time to elect Philippine citizenship under the
constitutional provision adverted to above, which period may be extended under
certain circumstances, as when the person concerned has always considered
himself a Filipino. 13

However, we cautioned in Cuenco that the extension of the option to elect

Philippine citizenship is not indefinite:

Regardless of the foregoing, petitioner was born on February 16, 1923. He

became of age on February 16, 1944. His election of citizenship was made on May
15, 1951, when he was over twenty-eight (28) years of age, or over seven (7)
years after he had reached the age of majority. It is clear that said election has
not been made "upon reaching the age of majority." 14

In the present case, Ching, having been born on 11 April 1964, was already thirty-
five (35) years old when he complied with the requirements of C.A. No. 625 on 15
June 1999, or over fourteen (14) years after he had reached the age of majority.
Based on the interpretation of the phrase "upon reaching the age of majority,"
Ching's election was clearly beyond, by any reasonable yardstick, the allowable
period within which to exercise the privilege. It should be stated, in this
connection, that the special circumstances invoked by Ching, i.e., his continuous
and uninterrupted stay in the Philippines and his being a certified public
accountant, a registered voter and a former elected public official, cannot vest in
him Philippine citizenship as the law specifically lays down the requirements for
acquisition of Philippine citizenship by election.

Definitely, the so-called special circumstances cannot constitute what Ching

erroneously labels as informal election of citizenship. Ching cannot find a refuge in
the case of In re: Florencio Mallare, 15 the pertinent portion of which reads:

And even assuming arguendo that Ana Mallare were (sic) legally married to an
alien, Esteban's exercise of the right of suffrage when he came of age, constitutes
a positive act of election of Philippine citizenship. It has been established that
Esteban Mallare was a registered voter as of April 14, 1928, and that as early as
1925 (when he was about 22 years old), Esteban was already participating in the
elections and campaigning for certain candidate[s]. These acts are sufficient to
show his preference for Philippine citizenship. 16

Ching's reliance on Mallare is misplaced. The facts and circumstances obtaining

therein are very different from those in the present case, thus, negating its
applicability. First, Esteban Mallare was born before the effectivity of the 1935
Constitution and the enactment of C.A. No. 625. Hence, the requirements and
procedures prescribed under the 1935 Constitution and C.A. No. 625 for electing
Philippine citizenship would not be applicable to him. Second, the ruling in Mallare
was an obiter since, as correctly pointed out by the OSG, it was not necessary for
Esteban Mallare to elect Philippine citizenship because he was already a Filipino,
he being a natural child of a Filipino mother. In this regard, the Court stated:

Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a

Filipino, and no other act would be necessary to confer on him all the rights and
privileges attached to Philippine citizenship (U.S. vs. Ong Tianse, 29 Phil. 332;
Santos Co vs. Government of the Philippine Islands, 42 Phil. 543, Serra vs.
Republic, L-4223, May 12, 1952, Sy Quimsuan vs. Republic, L-4693, Feb. 16, 1953;
Pitallano vs. Republic, L-5111, June 28, 1954). Neither could any act be taken on
the erroneous belief that he is a non-filipino divest him of the citizenship
privileges to which he is rightfully entitled. 17

The ruling in Mallare was reiterated and further elaborated in Co vs. Electoral
Tribunal of the House of Representatives, 18 where we held:

We have jurisprudence that defines "election" as both a formal and an informal

process.

In the case of In re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the
exercise of the right of suffrage and the participation in election exercises
constitute a positive act of election of Philippine citizenship. In the exact
pronouncement of the Court, we held:

Esteban's exercise of the right of suffrage when he came of age constitutes a

positive act of Philippine citizenship. (p. 52: emphasis supplied)

The private respondent did more than merely exercise his right of suffrage. He
has established his life here in the Philippines.

For those in the peculiar situation of the respondent who cannot be excepted to
have elected Philippine citizenship as they were already citizens, we apply the In
Re Mallare rule.

xxx xxx xxx

The filing of sworn statement or formal declaration is a requirement for those who
still have to elect citizenship. For those already Filipinos when the time to elect
came up, there are acts of deliberate choice which cannot be less binding.
Entering a profession open only to Filipinos, serving in public office where
citizenship is a qualification, voting during election time, running for public office,
and other categorical acts of similar nature are themselves formal manifestations
for these persons.

An election of Philippine citizenship presupposes that the person electing is an

alien. Or his status is doubtful because he is a national of two countries. There is
no doubt in this case about Mr. Ong's being a Filipino when he turned twenty-one
(21).

We repeat that any election of Philippine citizenship on the part of the private
respondent would not only have been superfluous but it would also have resulted
in an absurdity. How can a Filipino citizen elect Philippine citizenship? 19

The Court, like the OSG, is sympathetic with the plight of Ching. However, even if
we consider the special circumstances in the life of Ching like his having lived in
the Philippines all his life and his consistent belief that he is a Filipino, controlling
statutes and jurisprudence constrain us to disagree with the recommendation of
the OSG. Consequently, we hold that Ching failed to validly elect Philippine
citizenship. The span of fourteen (14) years that lapsed from the time he reached
the age of majority until he finally expressed his intention to elect Philippine
citizenship is clearly way beyond the contemplation of the requirement of electing
"upon reaching the age of majority." Moreover, Ching has offered no reason why
he delayed his election of Philippine citizenship. The prescribed procedure in
electing Philippine citizenship is certainly not a tedious and painstaking process.
All that is required of the elector is to execute an affidavit of election of Philippine
citizenship and, thereafter, file the same with the nearest civil registry. Ching's
unreasonable and unexplained delay in making his election cannot be simply
glossed over.

Philippine citizenship can never be treated like a commodity that can be claimed
when needed and suppressed when convenient. 20 One who is privileged to elect
Philippine citizenship has only an inchoate right to such citizenship. As such, he
should avail of the right with fervor, enthusiasm and promptitude. Sadly, in this
case, Ching slept on his opportunity to elect Philippine citizenship and, as a result.
this golden privilege slipped away from his grasp.

IN VIEW OF THE FOREGOING, the Court Resolves to DENY Vicente D. Ching's

application for admission to the Philippine Bar.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing,
Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.
Footnotes

1 Citing Cu vs. Republic of the Philippines, 89 Phil. 473, 476 (1951).

2 Citing CRUZ, Constitutional Law, 1991 Ed., p. 359.

3 Citing Cuenco. vs. Secretary of Justice, 5 SCRA 108, 110 (1962).

4 Sec. 1, Art. IV of the 1935 Constitution reads:

Sec. 1. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippine Islands at the time of the adoption of
the Constitution;

(2) Those born in the Philippine Islands of foreign parents who, before the
adoption of this Constitution, had been elected to public office;

(3) Those whose fathers are citizens of the Philippines;

(4) Those whose mothers are citizens of the Philippines, and, upon reaching the
age of majority, elect Philippine citizenship;

(5) Those who are naturalized in accordance with law.

5 Sec. 1(1), Article III, 1973 Constitution.

6 Sec. 1(3), Article IV, 1987 Constitution.

7 BERNAS, The Constitution of the Republic of the Philippines; First Ed. (1987), p.
502.

8 Ibid., citing Convention Session of November 27, 1972 and noting that it is also
applicable to the 1987 Constitution.

9 Art. 402, Civil Code.

10 Lim Teco vs. Collector of Customs, 24 SCRA 84, 88 (1912).

11 Muñoz vs. Collector of Customs, 20 SCRA 494: 498 (1911); Lorenzo vs.
Collector of Customs, 15 SCRA 559, 592 (1910).

12 5 SCRA 108 (1962).

13 Id., at 110.

14 Id.

15 59 SCRA 45 (1974)

16 Id., at 52.

17 Id.

18 199 SCRA 692 (1991).

19 Id., at 707-709 (Emphasis supplied).

20 Yu vs. Defensor-Santiago, 169 SCRA 364, 379 (1989)