Feature Post: What are the pros and cons of dual citizenship?

Dear Filipino,

Do you know the history of the enactment of the Philippine Law that allows former Filipino Citizens to reacquire their lost Philippine citizenship? Is there any group or individuals who lobbied for the passage of the law, be it in the Philippines or abroad? Please explain the benefits or disadvantages of the Philippine Dual Citizenship law. Thank you.

Always a Filipino

Dear Always,

This is a very good question and I want to give that extra effort to answer this.  The reason for this is because I really haven’t seen a comprehensive discussion of the Philippine Dual Citizenship law anywhere, especially the pros and cons part, to enable folks to make an educated decision.

In any case, since your question touches on some legal issues, first things first.

DISCLAIMER: The material presented herein [not just in this blogpost but the entire blog!] is intended for information purposes only.  It is not intended as professional advice and should not be construed as such.  The services of a competent professional should be sought if legal or other specific expert assistance is required.  Any unauthorized use of material contained herein is at the user’s own risk.  Transmission of the information and material herein is not intended to create, and receipt does not constitute, an agreement to create an attorney-client relationship with that good-looking sample of the human specie otherwise known as The Filipino who is licensed to practice law in California but not in the Philippines or anywhere else.

Additionally, please note that while most of the discussion here applies to all Filipinos -- or should I say ex-Filipinos? -- regardless where they got their foreign citizenship, some parts of the discussion here are US-specific.

With the above out of the way, we can now begin.

I.  Overview

Citizenship is commonly defined as “the state of being vested with the rights, privileges, and duties of a citizen,” who is “a native or naturalized member of a state or other political community.”  It is widely believed that the concept was first introduced to the West by the ancient Greeks who implemented it in small communities and who distinguished their citizens from the non-citizens – i.e., the slaves, the “barbarians” and the women.  It was then expanded by the ancient Romans to cover their entire empire and in so doing legitimize their rule over their conquered territories, and further refined by the French, who, by staging the French Revolution, did away with a “caste system” for their citizens so that the commoners would have the same rights as the nobles.

The modern concept of citizenship has of course developed further, and countries and supranational entities (e.g., the European Union with their concept of an EU citizen) are up to now still debating related matters.  Complicating things a bit is the issue of citizenship versus nationality: The former is deemed “more exclusive” while the latter is afforded those people from colonial territories who do not enjoy all citizenship rights.  (Because of the size of the former British Empire, the UK has probably the most interesting and most confusing citizenship and nationality laws.  When I was living in London, I was surprised to find out a very long list of qualified Commonwealth citizens hailing from about 50+ countries who are entitled to register to vote if they meet certain requirements.)

There is no uniform rule of international law relating to the acquisition of citizenship and an individual may actually acquire multiple citizenships by automatic operation of law of the relevant countries.  For instance, a person may acquire multiple citizenships through (a) the jus soli principle (“right of soil” or citizenship by virtue of just being born in the nation’s territory like what the US famously has); (b) the jus sanguini principle (“right of blood” or citizenship based on ancestry); (c) marriage; (d) the process of naturalization; (e) his country's membership in supranational communities or signing of treaties (i.e., some countries have dual citizenship agreements with other countries).

II.  The Philippine Experience With Dual Citizenship

Because the Philippines was a US territory during the period starting in 1898 when the US bought the country from Spain until 1946 when the US granted it independence, all Filipinos were considered US nationals but were never US citizens.  This meant Filipinos could go in and out of the US, reside and work without restrictions, but not vote or hold elective office.  Citizens of Puerto Rico -- which is also a former Spanish colony which was acquired by the US in the same deal with Spain in 1898 -- were in the same position until 1917 when they were collectively made US citizens as a result of the Jones-Shafroth Act passed by the US Congress.

The Commonwealth period was the closest Filipinos got to enjoying dual citizenship as an entire group of people, and nothing comes even close to that period.  The new legal regime currently in place in the Philippines is at best a distant second in terms of substance.

This newly established legal regime is due in no small measure to the Marcos dictatorship.  According to Prof. E. San Juan, Jr. of Washington State University: “There was no real Filipino diaspora before the Marcos dictatorship in the 1970s and 1980s.  It was only after the utter devastation of the Philippines in World War II, and the worsening of economic and political conditions in the neo-colonial set-up from the late 1960s to the present, that Filipinos began to leave in droves.”  This development led Marcos to sign the Balikbayan Act in 1973 (Presidential Decree 185), which allowed “a natural born citizen of the Philippines who has lost his Philippine citizenship to be a transferee of private land, for use by him as his residence.”  The law also gave legal status to balikbayans as “returnees” or “people coming back home” to the country, and became the foundation moving forward for giving other benefits and privileges to the balikbayans not otherwise available to ordinary travelers.

But the strongest push for dual citizenship actually came from anti-Marcos activists based in the US, which was home to the exiled family of Ninoy Aquino, the father of the sitting president.  The need for the law became especially manifest when Marcos fell and US-based supporters of the new administration wanted some say in the running of the country without having to give up newly acquired citizenship rights in the US.  According to a SF-based community leader, Rodel E. Rodis:

After fighting Marcos and martial law from within the United States until People Power ended the dictatorship in 1986, we wanted the right to vote in Philippine elections and the right to be dual citizens which people in more than 100 other countries enjoy.  We were affected by the corrupt leaders elected in the Philippines which our taxes also paid to support, all without having a say in the election of that government.

Overseas-based Filipinos and organizations worldwide rallied to the cause and lobbied Philippine politicians through letters, phone calls and personal visits to pass laws on dual citizenship and overseas voting.  One of the most notable of these individuals is Rene Pascual, who, when he became president of the California Chapter of the Integrated Bar of the Philippines in 1998, tirelessly made it almost a personal mission for his organization to lead the push for the passage of said laws. [EDIT 1/12/2011.]

III.  The Passage of the Laws: The OAVA and CRRA

But as Rodis would note, from that fateful day in 1986, it would take “five Congresses, four Presidents, 64 filed absentee voting bills and 16 long years before the Philippine Congress finally passed the Overseas Absentee Voting Act, officially known as Republic Act [RA] 9189, on February 13, 2003.”

Even after passage of the new law, however, a provision under Section 5(4), which came to be seen as a “poison pill,” required overseas Filipino voters to sign an “Affidavit of Intent to Return” to the Philippines to live there permanently after three years, with threat of sanctions if they don’t.  Predictably therefore, few took advantage of the new law.  (Representative Teddy Locsin, who was responsible for inserting the dreaded provision, supposedly promised to author a bill removing the same from the Act.)

Shortly after passage of RA 9189, in August of 2003, then-Senate President Franklin Drilon successfully pushed for the passage of RA 9225 or the Citizenship Retention and Re-acquisition Act of 2003, hoping the bill would bring in investments and other benefits from hyphenated Filipinos based abroad.  Known popularly as the Dual Citizenship Law, it grants natural-born Filipinos (i.e., citizens of the Philippines from birth who do not have to perform any act to acquire or perfect their Philippine citizenship) who have lost their Filipino citizenship through naturalization in a foreign country the opportunity to retain or reacquire their Filipino citizenship.  The bill seeks to revise the decades-old law which mandated that natural-born Filipinos who become naturalized citizens of another country automatically lose their Philippine citizenship.

In other words, from August 2003 onwards, a natural born Filipino who becomes a naturalized citizen of another country is deemed not to have lost his/her citizenship under the provisions of the new law.  On the other hand, one who lost his Filipino citizenship prior to August 2003 has the opportunity to reacquire it without having to renounce his present foreign citizenship, in a way leaving the decision to foreign courts to determine what the impact is on the foreign citizenship of the individual who decided to reacquire his Filipino citizenship.

IV.  The Good: The Benefits of Reacquiring Philippine Citizenship

Individuals who reacquire Filipino citizenship under RA 9225 may once again enjoy the bundle of civil and political rights afforded all other Filipino citizens under Philippine laws, as follows:

(a)  Right to own real property in the Philippines

This is probably the most tangible, immediate, and for some, most important, impact of the new law because the Philippine Constitution prohibits foreigners from owning any form of real property in the Philippines.  While there are privileges granted to foreigners or former Filipinos as far as property ownership is concerned, these privileges are more restricted and the laws can be quite complicated. This is why before passage of the law, folks who were not Philippine citizens were generally holding titles in the name of a family member, friend or business partner – i.e., a “dummy.”

(b)  Right to engage in business and/or practice one’s profession

Many industries and lines of work in the Philippines are reserved only for Filipinos -- e.g., engaging in retail and media businesses, in professions that require a license to practice, etc.  So for former Filipinos who want to retire in the Philippines and open up a small business/office, dual citizenship has a huge benefit.

(c)  Right to travel with a Philippine passport

You’re probably asking, “If I have a blue passport (US) already, what use is the Philippine passport?” Well, not much unless you want to (1) stay indefinitely, (2) look for work, or (3) get an education in the Philippines.  The last two reasons may not be a bad idea: The Philippines is enjoying a lower unemployment rate than the US and with the high cost of college education in the US, many US-based parents have been opting to send their kids to school in the Philippines instead.

Additionally, a Philippine passport allows the holder to travel to member-nations of the ASEAN without a visa. [EDIT 1/12/11.]

(d)  Right to have citizenship benefits extend to one’s spouse/children

A Filipino citizen’s foreign spouse may be issued an immigrant visa which entitles the spouse to reside permanently in the Philippines.  If the citizen’s children are unmarried and below 18 years of age upon reacquisition of Filipino citizenship, they are also automatically awarded Filipino citizenships.

(e)  Right to vote in Philippine elections

Following the suit filed by well-known Fil-Am businesswoman, community leader and philanthropist Loida Nicolas Lewis in 2006, the Philippine Supreme Court held that dual citizens need not establish residence in the Philippines to be able to register as an absentee voter under RA 9189.

However, from what I gathered, the “Affidavit of Intent to Return” mentioned earlier is still a requirement in order to register, although there are plans to scrap it already as mentioned above.  I've heard folks from the Philippine embassies/consulates are downplaying the impact of this requirement, but if you are a Filipino immigrant in the US who is not a US citizen yet, do NOT execute this affidavit as it can be deemed contrary to US residency requirements, unless of course you do plan to go back already to the Philippines within the required period.

Not eligible for this right to vote are those candidates for or are occupying any public office in the country where they are naturalized citizens, or those who are in active service as commissioned or non-commissioned officers in the armed forces of the country where they are naturalized citizens.

(f)  Right to hold public office

After reacquiring Filipino citizenship, one can seek and, if elected, hold public office in the Philippines as long as he meets the required qualifications AND at the time of filing his certificate of candidacy -- note closely now – he makes a personal and sworn renunciation of any and all of his foreign citizenships before an authorized public officer.

Now, note that the requirement is a bit lower for the individual appointed to a public office. While a person with multiple citizenships who run for public office must renounce his foreign citizenships, the person appointed to a public office only needs to make a sworn renunciation of the oath of allegiance to the country he took his oath.

V.  The Bad: The Disadvantages of Reacquiring Philippine Citizenship

Individuals planning to reacquire Filipino citizenship under RA 9225 run the following risks:

(a)  Possible denial of application for (or loss of existing) security clearance status

While dual citizenship based solely on one’s parents' citizenship or birth in a foreign country is not necessarily fatal, the active exercising of a non-US citizenship can cause problems.  Specifically, the US Department of Defense requires that “any clearance be denied or revoked unless the applicant surrenders the foreign passport or obtains official permission for its use from the appropriate agency of the United States Government."  I won't be surprised if there are similar provisions in other institutions, whether in the US or other countries.

(b)  Possible charges of dual citizen’s “divided loyalties”

This is not a big issue unless you’re planning to, say, run for office in the country of your foreign citizenship and your opponents find out about it, in which case you should expect to be called a citizen-with-a-ready parachute, a double-timer, a bigamist, a carpet-bagger, or, given the times, even a mole, a sleeper agent or a Manchurian candidate!  It’s not necessarily a candidacy-killer but it can make things, well, a lot tougher.

(c)  Benefits of citizenship may not be available to dual citizen in some situations

By reacquiring Philippine citizenship, the new dual citizen will owe allegiance to – and is obliged to comply with the laws and regulations of – the foreign country of his citizenship as well as the Philippines.  Although the dual citizen’s failure to fulfill his obligations to one country may pose no problems for him while he’s in the other country because the country adversely affected may have few ways (or find it cumbersome) to force him to comply under the circumstances, the same cannot be said if the person travels to the country affected and gets apprehended.  In that situation, because two countries both have a jurisdictional claim over the dual citizen, he may find that any relevant benefits of citizenship (e.g., diplomatic or consular protections) from the country not really affected by his non-compliant actions are now inaccessible to him.

VI.  And The Ugly? Nope -- Just Other Aspects to Consider

(a)  Income and property tax consequences

Note that Philippine taxation is based on where income is earned or where property is located, regardless of citizenship.  Thus, a person does not need to pay Philippine income tax for income earned abroad but does for income earned in the Philippines.  The same is true with property taxes: regardless of his citizenship, a person has to pay real property taxes if he owns real property in the Philippines.

Note also that while only incomes derived from the Philippines are subject to taxation by the Philippine government, in 1976, the Philippines and the US signed a treaty intended to avoid double taxation which provides that taxes paid in the Philippines may be credited in the US and vice versa.  Similar tax agreements are in place between the Philippines and many other countries.

(b)  Travel tax exemption

A Filipino who reacquires Philippine citizenship and is residing permanently overseas can also enjoy travel tax exemption extended to Filipinos permanently residing in other countries.

(c)  For US citizens: Does Uncle Sam get jealous?

The US Government does not formally endorse dual nationality as a matter of policy, but it also does not take any affirmative stand against it. According to the State Department:

The Department has a uniform administrative standard of evidence based on the premise that U.S. citizens intend to retain United States citizenship when they obtain naturalization in a foreign state, subscribe to a declaration of allegiance to a foreign state, serve in the armed forces of a foreign state not engaged in hostilities with the United States, or accept non-policy level employment with a foreign government.

So when performing any of the acts described above, a citizen will retain his US citizenship unless it was indeed his intention to relinquish it.  However, the Department of State again states:

The premise that a person intends to retain U.S. citizenship is not applicable when the individual:

1.  formally renounces U.S. citizenship before a consular officer;
2.  serves in the armed forces of a foreign state engaged in hostilities with the United States;
3.  takes a policy level position in a foreign state;
4.  is convicted of treason; or
5.  performs an act made potentially expatriating by statute accompanied by conduct which is so inconsistent with retention of U.S. citizenship that it compels a conclusion that the individual intended to relinquish U.S. citizenship. (Such cases are very rare.)

Cases in categories 2, 3, 4 and 5 will be developed carefully by U.S. consular officers to ascertain the individual's intent toward U.S. citizenship.

Intent may be shown by a person’s statements or conduct.  However, if the U.S. Government is unable to prove that the person had such an intent when he obtained the foreign citizenship, the person will have both nationalities.  In other words, the burden is on the US Government to demonstrate that a person performed a designated act both voluntarily and with the specific intent to renounce his US citizenship.

Additionally, while the State Department takes the position that acceptance of policy-level employment with a foreign government is a presumptive basis for denaturalization, several American dual citizens have held high positions in foreign governments without loss of citizenship, including as ambassadors of their other country’s citizenship.

VII.  Parting Thoughts

In an essay in The Atlantic Monthly entitled “Trans-national America,” the influential essayist Randolph S. Bourne, noting the unique attributes of America, rejected the “melting-pot” model of assimilation of immigrants, advocated dual citizenship, and argued that the country (and indeed the world) is going to be better off developing “international citizens” who maintain spiritual ties to their native country and hold on to their literature and culture. The essay was written in 1916 while the First World War was still raging, and yet, almost a century later, I think the idea still resonates to hyphenated Americans like me.

However, citizenship, especially the kind advanced by Bourne, cannot be taken lightly because responsible citizenship by definition means fulfilling one’s obligations to the community one belongs, not just taking advantage of its attendant rights and privileges.  As Aristotle once said: “To take no part in the running of the community's affairs is to be either a beast or a god!”

For Filipinos by birth who became citizens of another country by choice, the Philippine dual citizenship law provides another opportunity to contemplate what it really means to be a Filipino in today's world.  Above, I have numerated the technical pros and cons, the technical benefits and disadvantages, whether or not to re-acquire Philippine citizenship.  I can imagine the ability to own real property and, most especially, to vote probabaly loom large for many as key benefits couseling for an affirmative choice on the question, but I can also easily understand both pragmatic and noble reasons why going through the process of reacquisition is not advisable for many. 

Personally, I've come to the conclusion that one doesn't really need to undergo the legal formalities to show one's substantive "Filipino citizenship."  I think one just has to fulfill his obligations to the global Filipino community -- or even to humanity, in general -- which common decency, empathy and justice demand. 

Got a question for The Filipino?  Email him now at askthepinoy@gmail.com.