Ingenious

Perfecto Yasay, whose appointment as foreign secretary was rejected on Wednesday by the Commission on Appointments, might be less than perfect a Cabinet official as most of his colleagues in that exalted stratum of our society that either joins or separates the people from their leader. His questionable Filipino citizenship earned him the pejorative distinction of a “foreigner secretary” holding the foreign affairs portfolio. The issue sprang from a thesis that the Philippines’ erstwhile top diplomat did not have Filipino citizenship because he had not reacquired it since his renunciation of US citizenship in 1993.

The legal quagmire in which Yasay found himself is former Sorsogon Governor Juan Frivaldo in déjà vu. Frivaldo acquired US citizenship after he fled martial law. Like Yasay, he also swore by Job that he had not abandoned his intent to return to his native land. Frivaldo won the governorship of Sorsogon after martial law but was unseated because he had not reacquired Philippine citizenship. He again won the governorship in the succeeding elections and was allowed to assume the post only after he had taken positive steps to reacquire Philippine citizenship. The controversy that cost Yasay his confirmation as foreign secretary thus involves the modality for the loss and reacquisition of Philippine citizenship.

Media reports have it that Yasay was granted US permanent residency in 1979 after he fled martial law along with kindred steak commandos. He was granted US citizenship in 1986 and returned to the Philippines post-Edsa. In 1993, he relinquished his American citizenship and returned his US passport. Since then he has traveled to and from the United States on a visitor visa and a Philippine passport. In the same year, 1993, he was appointed associate commissioner of the Securities and Exchange Commission. He eventually became SEC chair and served from 1995 until 2000. In 2010, he ran for vice president under the banner of Bangon Pilipinas of Eddie Villanueva, who ran for president.

Objectors to Yasay’s confirmation as foreign secretary pointed out that he is not a Filipino citizen because he did not take the required steps to reacquire Filipino citizenship after he renounced his US citizenship in 1993.  Yasay disputed this submission with an argument that he did not validly acquire US citizenship because under American naturalization law he is not qualified to be a US citizen as he continued to harbor a desire to return to his native land. In legal parlance, the proposition is considered hair-splitting—an ingenious argument to support a proposition not clearly established by a legal norm. In other words, Yasay used a provision of an American law to interpret or apply Philippine law on the modality for loss or reacquisition of Philippine citizenship.

Commonwealth Act No. 63 (1936) provides that Philippine citizenship may be lost by, among other ways, naturalization in a foreign country, express renunciation of citizenship, or subscribing to an oath of allegiance to a foreign country. Yasay did all these when he accepted US citizenship. Republic Act No. 9225 (2003) provides that natural-born citizens of the Philippines who lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country would be deemed to have reacquired Philippine citizenship upon taking an oath of allegiance.

Yasay’s argument stands on shaky ground not only because Philippine courts or legal authorities will not consider foreign law in applying or interpreting Philippine law but also because of the doctrine of estoppel. This doctrine holds that a person cannot deny the adverse effects of his or her act. In the context of Philippine law, Yasay effectively renounced his Philippine citizenship when he took on American citizenship. But he could be deemed to have reacquired Philippine citizenship in 2010 because a certificate of candidacy for vice president contains an oath of allegiance.

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Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student at San Beda College Graduate School of Law in Manila.