The use of foreign passport and its impact on dual citizenship, effective renunciation, and holding of public office under RA 9225

The use of a foreign passport after taking the oath of allegiance and executing an affidavit of renunciation under Republic Act No. 9225, or the "Citizenship Retention and Re-acquisition Act of 2003," is a positive act showing the applicant's continued possession of a foreign citizenship. While it does not divest him of his reacquired Filipino citizenship, it negates his qualification to run for an elective post or be appointed to a government position. This, in a nutshell, is the ruling in the 2013 case of Maquiling vs. Comelec, et. al. (G.R. No. 195649), penned by Chief Justice Maria Lourdes P.A. Sereno.

In the Maquiling case, it has been established that private respondent Rommel Arnado is a natural born Filipino citizen. Subsequently, however, he was naturalized as a US citizen, thereby losing his Filipino citizenship. In July 2008, with the intention for repatriation, he took his oath of allegiance to the Republic of the Philippines. His application was approved. In April 2009, he again took an oath of allegiance and executed an affidavit of renunciation of his US citizenship. In November 2009, he filed his certificate of candidacy for mayor in a certain town in Mindanao.

In April 2010, another mayoralty candidate (and also private respondent), Linog Balua, sought the disqualification and/or the cancellation of Arnado’s cerficate of candidacy. Apparently, Arnado used his US passport in entering and leaving the Philippines between the period April 2009 and June 2009, July 2009 and November 2009, January 2010 and March 2010. Balua presented as evidence a computer-generated travel record and a certification from the Bureau of Immigration and Deportation (BID).

In so declaring that Arnado is disqualified from holding public office and even from being a candidate during the 2010 elections, C.J. Sereno explained:

“Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the date he filed his COC, he used his US passport four times, actions that run counter to the affidavit of renunciation he had earlier executed. By using his foreign passport, Arnado positively and voluntarily represented himself as an American, in effect declaring before immigration authorities of both countries that he is an American citizen, with all attendant rights and privileges granted by the United States of America.”

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“While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No. 63 constituting renunciation and loss of Philippine citizenship, it is nevertheless an act which repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen of another country to be qualified to run for a local elective position.

“When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his American citizenship, he recanted his Oath of Renunciation that he “absolutely and perpetually renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA” and that he “divest(s) [him]self of full employment of all civil and political rights and privileges of the United States of America.”

“We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented himself as an American citizen by using his US passport.”

With that, C.J. Sereno passionately said:

“The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship.”

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“Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and political rights accorded by the state to its citizens. It likewise demands the concomitant duty to maintain allegiance to one’s flag and country. While those who acquire dual citizenship by choice are afforded the right of suffrage, those who seek election or appointment to public office are required to renounce their foreign citizenship to be deserving of the public trust. Holding public office demands full and undivided allegiance to the Republic and to no other.”  

Pork barrel and competitive bidding: a palliative solution to a systemic problem

“The result of direct earmarking is pork, but it will no longer be officially called PDAF. No more funds will be disbursed through NGOs, eliminating kickbacks. And projects will have to go through competitive bidding, making them transparent.

The requirement for competitive bidding and the elimination of NGOs would prevent a repeat of the P10-billion pork barrel scam,” so says Department of Budget and Management (DBM) Secretary Butch Abad. (From: http://newsinfo.inquirer.net/473637/pork-barrel-stays-in-2014-budget-says-abad#ixzz2cymdTECk) Not so fast, sir.

Before jumping into this conclusion, may I recommend that the good Secretary and PNoy first revisit Republic Act (RA) No. 9184, otherwise known as the “General Procurement Reform Act (GPRA).”

The law, as it is right now, is prone to abuse, and the Ombudsman can very well provide a report of complaints arising from RA 9184 violations. The wily legislators and the willing heads of concerned line agencies may simply re-focus and re-direct their attention to the bidding process and their pet Bids and Awards Committees (BACs).

Firstly, the composition of the bids and awards committee (BAC) itself may already be compromised as it would be the head of the agency (i.e., head of procuring entity) who chooses its members as well as appoints the technical working group and the secretariat, through a memorandum or office order, for a term of one (1) year. Moreover, the BAC choice of a winning supplier/contractor – based on a pass/fail test – or the use of alternative modes of procurement (e.g., negotiated, direct contracting) is merely recommendatory; it may be approved or disapproved by the head of the procuring entity. (Sec. 12 & Sec. 37)

Thus, while the heads of the agencies and the lawmakers appear passive and non-participants to the bidding process, they will call the final shot, eventually. There is the tendency then for the BAC members to do their bosses’ (whispered) bidding, (pun intended). An explosive mix of “utang na loob” (debt of gratitude) to the boss/es, fear of ostracism by fellow members, and, for some, the expectation or receipt of a “share,” would simply be overwhelming. The anti-graft laws be damned.  

Secondly, the procuring entity, through the BAC, can tweak or rig the terms of reference or certain requirements to eventually favor a particular supplier/contractor. RA 9184 says, “The Procuring Entity may require additional document requirements or specifications necessary to complete the information required for the bidders to prepare and submit their respective bids.” (Sec. 17) It may also subject the winning bidder to a post-qualification review, for its possible disqualification, assuming the “favored/chosen” bidder does not submit the lowest calculated bid (LCB).

Other concerns, such as the bidders’ falsification of bid documents and requirements, their collusion among each other and with public officers, splitting of contracts and the use of alternative methods of procurements to avoid public bidding, are just some other means to achieve the same end as discussed in the first issue.

With much respect and trepidation, may I suggest the following then:

PNoy must rethink and reconsider the role of the Commission on Audit (COA), from simply being an observer during bidding and conducting post-audit, to actually doing pre-audit. COA may take due notice of the approved budget for the contract (ABC), the duly Bureau of Internal Revenue (BIR)-stamped and updated income tax returns (ITRs) of the bidders, the prevailing cost of labor, supplies and/or materials, the availability of goods, among other things.

The manner by which the BAC is constituted must also be reviewed. Instead of being a mere ad hoc body, regular plantilla positions, with specific qualifications, may be created for its members, fairly immune to lawmakers and whoever sits as head of the procuring entity, but subject nonetheless to laws on public employees and officers. In this manner, potential conflict on issues of procurement with the functions of those who head the Budget, Finance, Treasury, Legal and Property offices - positions usually occupied by BAC members - as well as possible abuses, may be avoided.  

Also, the terms of reference and eligibility requirements for a certain undertaking must be submitted by the procuring entity to, and must be duly approved by, the Government Procurement Policy Board (GPPB), in order to avoid any suspicion of arbitrariness or partiality.

My suggestions may be incorrect: I don’t claim that I hold the surefire solution. However, RA 9184, as the cornerstone of the new dispensation of the pork barrel, is riddled with loopholes and ought to be reviewed and revised, lest all government biddings may very well be reduced to a mere “moro-moro,” with the Filipino taxpayers still ending up tragically as losers. Better yet, just abolish the pork barrel.

Other acts of child abuse, cruelty and exploitation under Republic Act (RA) No. 7610

One may be surprised that Republic Act (RA) No. 7610, also known as “Special Protection of Children Against Abuse, Exploitation and Discrimination Act,” was approved into law as early as June 17, 1992.

Under this law, the State creates sanctions to deter violations against children such as trafficking, child prostitution and other forms of sexual abuse, and discrimination against children from indigenous communities. RA 7610 allows children to enjoy their rights protected from any abuse or prejudice which may threaten their development.

Section 10 of this law provides -

“(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development shall suffer the penalty of prision mayor in its minimum period. (Six years and one day)

The penalty for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve (12) years of age. (Thirty years)”

Two notable cases are:

Jumaquio vs. Villarosa (GR No. 165924, [2009])

The case originates from an incident that happened on August 2, 2003, when petitioner Resty Jumaquio allegedly threatened and assaulted two young men, then ages 13 and 17.  

On account of that altercation, two separate Informations were filed with the RTC of San Jose City, for two distinct offenses of child abuse—Criminal Case No.  SJC-78-04 for child abuse committed through the use of threatening words, and Criminal Case No. SJC-79-04 for child abuse through the infliction of physical injuries. Both were upheld by the Supreme Court.  

In the first information, petitioner is charged with child abuse by uttering debasing, demeaning and degrading words to the minor.  

In the second, he is charged with child abuse by inflicting physical injuries that debase, demean and degrade the dignity of the children as human beings.

Sanchez vs. People of the Philippines (G.R. No. 179090, [2009])

Appellant contended that, after proof, the act should not be considered as child abuse but merely as slight physical injuries defined and punishable under Article 266 of the Revised Penal Code.

But according to the Supreme Court, appellant conveniently forgot that when the incident happened, VVV was a child entitled to the protection extended by R.A. No. 7610, as mandated by the Constitution.

As gleaned from the foregoing, the provision punishes not only those enumerated under Article 59 of Presidential Decree No. 603, but also four distinct acts, i.e., (a) child abuse,  (b) child cruelty, (c) child exploitation and (d) being responsible for conditions prejudicial to the child’s development.

An accused can be prosecuted and be convicted under Section 10 (a), Article VI of Republic Act No. 7610 if he commits any of the four acts therein.  The prosecution need not prove that the acts of child abuse, child cruelty and child exploitation have resulted in the prejudice of the child because an act prejudicial to the development of the child is different from the former acts.

It must be noted that in both cases, it was clearly established that the accused inflicted abuses against the victims, including the manner by which said abuses were inflicted or committed.

NLRC reverses Executive Labor Arbiter’s ruling; upholds legality of project employment

In a decision dated 11 June 2012, the National Labor Relations Commission (NLRC), reversed a decision of the Executive Labor Arbiter of Regional Arbitration Board (RAB) III Mariano Bactin, and declared that the complainant was a project employee of respondent company, in the case of Subic Drydock Corp (SDC) vs. Conde. SDC is being represented by this author.

“Undisputed is the fact that the Respondents merely accept contracts for repairs/maintenance of vessels from third parties and only on occasion when it has contracts of this nature that it will hire workers to do the job. The various contracts entered into between the Complainant and the Respondents  sufficiently prove the fixed-term employment between them. Careful review of the aforementioned documents shows that Complainant-Conde was hired as Mechanical Rigger assigned to different clients of Respondent-SDC such as MTSC Projects/Catleya; Super Shuttle Project; for M/V Cabilao, M/V Magsino and M/V Cabo. Thus, Respondent-SDC relies mainly on, and contingent to, the project it enters and thus, it hires project employees to meet the demands of specific projects,” NLRC states in its decision. 

Conde was initially hired as a project-based employee by SDC for a period of three months. When the last of his several contracts expired, he had just completed his project employment for two months as mechanical rigger for three vessels.

The Commission also duly noted in its decision that, “The fact that Complainant-Conde is a project employee is bolstered further with the Complainant having signed his various employment contracts for specific projects and specific period of time. He likewise signed the notice given him upon the expiration of each and every contract.”  It cited the case of William Uy Construction Corp., et. al. vs. Trinidad, involving a driver who was continuously and repeatedly rehired, but was still declared a project employee.

The case is under appeal.

SBDMC wins Php 100 million civil case versus SBMA; Court of Appeals affirms the ruling

In an Order dated 31 January 2013, the Regional Trial Court (RTC) of Olongapo City, Branch 75, presided by Judge Raymond C. Viray, pursuant to a motion for summary judgment filed by Subic Bay Development and Management Corp. (SBDMC), declared that Subic Bay Metropolitan Authority (SBMA) has no legal basis to collect and demand payment for the disputed billings, and that SBDMC is not and cannot be held liable for SBMA’s supposed claim, now amounting to more or less Php 100,000,000.00.

The case stemmed from SBMA's continued and repeated attempts to collect from SBDMC differential billings for power consumption of locators within the SBDMC-managed industrial park inside the Subic Bay Freeport Zone (SBFZ) between 1998 and 2002. During that period, SBMA was managing and operating the power distribution system within the Freeport. SBDMC then filed a petition for declaratory relief in 2010.

According to the Court, “The role of SBDMC in the scheme of things is clear: It is the managing agent of SBMA with respect to the industrial park. In line with this conclusion, and in the absence of express agreement between SBDMC and SBMA with regard to power billing and collection of all locators within the industrial park, it is clear that Petitioner (SBDMC) merely acted as an agent of SBMA when it billed and collected power usage from locators…”

“SBDMC paid and SBMA received the amount collected from the locators. This role of Petitioner as mere collecting agent was further confirmed when SBMA took over the billing and collection directly theretofore performed by the petitioner. And since Petitioner is a mere collecting agent of Respondent (SBMA) with respect to power usage of the Locators within the SBGP (industrial park), there is no basis, in the absence of clear express agreement, for Respondent to charge and demand payment from Petitioner for disputed billings. To hold otherwise will violate the intent and agreements of the parties under the Joint Venture and companion agreements, which all contain “Entire Agreement” clause and which bar the introduction of ‘any rights, interests, understandings, agreements and obligations of the respective parties’ outside said agreements…” declared the Court.

Update: In a decision dated 30 January 2015, the Special Seventeenth (17th) Division of the Court of Appeals (CA G.R.-CV No. 100289) denied the appeal of the SBMA and affirmed in toto the assailed Order of RTC Branch 75 of Olongapo. 

(Disclosure: subiclawyer is handling the case for SBDMC)

When local government officials may properly secure services of private counsel

Respondent Alayan was appointed in 2000 as Municipal Government Department Head (Municipal Assessor) on temporary status.  In May 2001, she applied for change of status from temporary to permanent, which the Civil Service Commission-Camarines Sur Field Office (CSC-CSFO) denied for lack of relevant experience.  On appeal, the CSC-Regional Office in its August 13, 2001 Order approved her application effective May 22, 2001.  Thus, she reported for work and sought recognition of her appointment and the grant of the emoluments of the position from petitioner, then incumbent Mayor Gontang, which the latter denied. This compelled respondent to sue Gontang for mandamus before the regional trial court of Naga City.

The sole issue was whether or not the petition for certiorari may be dismissed on the ground of unauthorized representation of petitioner by private lawyers.

According to the Supreme Court: “The present case stemmed from Special Civil Action No. 2002-0019 for mandamus and damages. The damages sought therein could have resulted in personal liability, hence, petitioner cannot be deemed to have been improperly represented by private counsel. In Alinsug v. RTC Br. 58, San Carlos City, Negros Occidental, the Court ruled that in instances like the present case where personal liability on the part of local government officials is sought, they may properly secure the services of private counsel, explaining: 

‘It can happen that a government official, ostensibly acting in his official capacity and sued in that capacity, is later held to have exceeded his authority.  On the one hand, his defense would have then been underwritten by the people’s money which ordinarily should have been his personal expense.  On the other hand, personal liability can attach to him without, however, his having had the benefit of assistance of a counsel of his own choice.  In Correa v. CFI, the Court held that in the discharge of governmental functions, ‘municipal corporations are responsible for the acts of its officers, except if and when, and only to the extent that, they have acted by authority of the law, and in conformity with the requirements thereof.

‘In such instance, this Court has sanctioned the representation by private counsel.  In one case, We held that where rigid adherence to the law on representation of local officials in court actions could deprive a party of his right to redress for a valid grievance, the hiring of a private counsel would be proper.  And in Albuera v. Torres, this Court also said that a provincial governor sued in his official capacity may engage the services of private counsel when “the complaint contains other allegations and a prayer for moral damages, which, if due from the defendants, must be satisfied by them in their private capacity.’

“Consequently Attys. Fandiño and Saulon had the authority to represent petitioner at the initial stages of the litigation and this authority continued even up to his appeal and the filing of the petition for certiorari with the CA respecting the execution of the RTC judgment. It was therefore an error for the CA to have dismissed the said petition for certiorari on the ground of unauthorized representation.” (G.R. No. 191691 [2013])