The plight of ABS-CBN: Of dual citizenship, foreign ownership of mass media

The plight of ABS-CBN: Of dual citizenship, foreign ownership of mass media

By Justice Noel Gimenez Tijam (Ret.)

| First of a three-part series |

Ret. Justice Noel Gimenez Tijam

Robust debates recently sparked following the renewal initiatives of the congressional franchise of a mass media giant that is ABS-CBN. Some propose a rather simplified solution to the controversy by invoking past legislative acts where the lower House granted or renewed franchise to alleged similarly-situated broadcasting networks, without question. Others, however, dare challenge what is often disguised as a harmless given.

This terrain of impassioned exchanges breeds further questions and prods discourse. The novelty of the issues involved affects and, naturally, resists nonchalance. Emphasis must be placed that the issues are Constitutional and legal, rather than personal. The approach remains in the context of what is interpreted as Constitutionally and legally permissible. If the Constitution’s normative contents were correctly treated as setting forth evaluative standards – of what things ought to be – then it is a disservice, if not cowardice or treachery even, to remain silent and unheard.

Let us therefore disabuse ourselves from thinking that the issues confronting ABS-CBN denigrate or disparage dual citizens. Topics on the contributions of dual citizens, their stature and standing in the international community, are irrelevant because these are already acknowledged and undisputed, and, thus, would have no bearing to the fact in issue which is compliance with the Constitutional and legal requirements. It is entirely acceptable that there are countless dual citizens who are patriotic, talented, and productive, but the issue is not the acceptance of dual citizens as good individuals in the community. Non-compliance and disobedience to the letter and the spirit of the Constitution cannot be cloaked by enterprise and stature. The main issue is whether or not a dual citizen is allowed to manage and own industries in the Philippines expressly reserved by the Constitution to be 100% Filipino-controlled.

As such, any reference to the contributions of dual citizens for the purpose of legitimizing an otherwise unconstitutional act is pure red herring.

Inasmuch as the ABS-CBN’s quandary is regarded as Constitutionally repercussive, it is fitting to begin with the fundamental tenets of Constitutional construction: verba legis, ratio legis est anima, and ut magis valeat quam pereat.

1 The words of the Constitution are understood in the sense they have in common use.

1 Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003.

2 Simply, the framers and the people say what they mean. What the text says therefore compels acceptance and rejects alteration or modification. The text of the Constitution is not to be read in isolation or in truncated parts, but are to be interpreted as portions of a cohesive whole. All provisions bearing upon a particular subject are to be broughtint o view and to be so interpreted as to effectuate its purpose. 2 These fundamentals carry significance because the ABS-CBN’s quest for the renewal of its franchise cannot be divorced from compliance with non-derogable requirements, foremost of which is the limiting provision that ownership and management of mass media must belong to citizens of the Philippines. Compliance with the citizenship requirement admits empirical data and is, thus, demonstrable. All that is required is for ABS-CBN to demonstrate that it is, indeed, 100% Filipino-owned and managed.

This issue may be addressed on two thrusts: one, is ABS-CBN wholly-owned and managed by Filipinos, and, two, does ABS-CBN permit foreign participation in its enterprise such that it dilutes the required 100% Filipino control.

The aberration of dual citizenship

The basic facts, insofar as admitted and uncontroverted, are that Eugenio (Gabby) Lopez III was born in the United States (US) to Filipino parents; that he participated in US elections and Philippine elections; and that he carries both US and Philippine passports and uses the former when travelling to Europe and the latter for travel to Asia. He received education from the US, but later on managed a broadcasting network in Philippine soil. He paid taxes to both countries.

Because two countries afford him rights and protection as well as exacted from him correlative obligations by virtue and as a consequence of citizenship “by birth,” Gabby Lopez III is someone understood, in a global platform, to be a “dual citizen” or a “transnational,” having identified as a Filipino and an American, at the same time.

The proposition is that Gabby Lopez III, notwithstanding his dual citizenship, is entitled to the full rights and obligations as Filipino citizens. The claim is that a dual citizen is 100% Filipino. This is, literally, a half-truth for it conveniently cancels the fact that, as a dual citizen, he is likewise 100% American.

2 Civil Liberties Union v. The Executive Secretary, 272 Phil. 147, 162 (1991).

3 The argument is that the Constitution recognizes dual citizenship and, consequently, dual citizens ought to be given the same rights and privileges as Filipino citizens. This is inaccurate.

The Constitution never expressly mentioned dual citizenship. In fact, the Constitution does not even define citizenship (nor, parenthetically, does it make reference to nationality). Instead, the Constitution textually defines who are “citizens of the Philippines,” and, by inference, who are not:

ARTICLE IV – CITIZENSHIP

Section 1. The following are citizens of the Philippines:

[1] Those who are citizens of the Philippines at the time of the adoption of this Constitution;

[2] Those whose fathers or mothers are citizens of the Philippines;

[3] Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and

[4] Those who are naturalized in accordance with law.

Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.

Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law.

Section 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission, they are deemed, under the law, to have renounced it.

Section 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.

Attention is drawn to Section 1(2) and Section 4 as apparently recognizing dual citizens. This is not Constitutional recognition. The Constitution can only define who its citizens are but it cannot define who are citizens of other countries for the obvious reason that we have absolutely no control over citizenship laws of foreign jurisdiction.

At best, Section 1(2) embodies Constitutional tolerance of the possibility that dual or 4 even polygamous citizenship may arise ipso facto as a consequence of the operation of citizenship laws of different countries. Thus, dual citizenship – citizenship conferred by two countries similarly by birth right – was not proscribed by the Constitution.

However, neither tolerance nor lack of proscription, is synonymous with recognition.

Dual citizenship, an anomaly

Dual citizenship is an anomaly for it is a departure from the classical definition of citizenship which is the vinculum juris between an individual and the State characterized by exclusive and perpetual allegiance. The 1913 US case of Luria v. the United States, 3 defines citizenship as a “membership in a political society,” and one that is burdened by the implication of “reciprocal obligations” of a member’s allegiance, on one hand, and societal protection, on the other. George Bancroft observed in 1849 that nationals should “as soon tolerate a man with two wives as a man with two countries; as soon bear with polygamy as that state of double allegiance.”

Theodore Roosevelt in 1915 called the theory of dual nationality as a “self-evident absurdity.”

Certainly, there is an erupting movement in the international arena towards the acceptance of the status of dual citizenship and its recognition as a private interest over which the State has no business interfering with. Whether or not dual citizenship should be regarded as an interest or a right in terms of association and identification is another matter. For now, we limit ourselves as to how the Philippine Constitution treats dual citizenship.

Article IV, Section 1(2) and Section 4, as quoted, show the Framers’ cognizance of dual citizenship as a fact, that it may be the result of a legal accident be it due to one’s marriage to an alien or the application of the jus soli principle. Nevertheless, the Constitution is silent as to the status of dual citizens as members of the body politic, the repercussions of being so, and its correlative implications.

It is logical to presume that one’s status as a citizen of two countries would necessarily endow him or her of rights and privileges equally afforded to citizens of both countries. Such countries, in return, would expect loyalty and allegiance. After all, the protection afforded by a State to its citizen is a result of a delegated sovereignty by the people.

Is it then possible that a dual citizen, while possessing all the advantages offered by his/her countries, be patriotic and allegiant to only one? If a citizen of both US and the Philippines commits a crime in the latter country, flees and takes refuge in the US, 3 231 US 9 (1913), 5 can he be extradited to the Philippines because he is a Filipino citizen? Will this not deprive the US of its right to prosecute her citizen? Can the US refuse the request for extradition on such a basis? In other words, can dual allegiance be detached from a dual citizen? Will not dual citizenship entail divided loyalties?

To be continued

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