Ch"apter SV

45

A BRIEF EISITORY OF CONTI,ICT OF LITWS (212A.D.),4/{5; SsdTt Rome,44S;ThetdiC of Caracalla the Coming of Barbarians, 44S;The Rehrrn to Territorial Iaw, 4.,46; Tro Jurigts trbo.m France,l+Z; the UutcUTh*ry of Territoriality and Crcmity,gS; Writara of t.bgfgtn "ni 20th Centurier., Ug.

PHILIPPINE CONFLICTOF LAWS

Chapter'l PRELIMINARY CONSIDERATION

INTRODUCTORY PROBLEM
If in a moment of deep infatuation, a Filipino gets married in to a lovely, midi-skirted female ro- "t ir"Ito* rr"iti, trr" I:tqfollowing questions may rigitfirny be asked: rbe law or wuicn puntrry will govera the rralidity of the marriage? which particular "":"-. yil-l sovern their personal righ; ""d "bld;;; * Pg* n'sDand and wrfe, assuming the marriage to be valid? How about their matrimonial property relations? the responsegto_theseregar interrogations will, insofar as we *":"Td, depend,_toa rrery great ejent on theappli"."tioo T of what gl'att be referred to in thi; hunble heatise *'piifi,ppi",. of Laws (otherwise called philippine private I"t";ff; 3+"
IraWr.

fittingly poi"t"g out by kof. Robert A Lflar, a former of the supreme court ofArkansas, oanycasewhich involv"" {u*ice facts occ''rring in more than one state or nation, so that iD decidin; the case, it is necessary to make s choice between tn" u*tortn" differernt states or countries, is a conllict of laws *"".; fUft ri it* Inut of Conflict of l-clws, p. I).

DEFINMON 9r CONFUCT OF LAWS

(1830) edition'of his well-known ?rivate _,-, .fo the second International Law,'westrake be$os his discussion as follows:
rii

PTIIIJPPINE CONTLICf OF IAWS

PBEUMINARY CONSIDERATION

%ivate Inter:national Law is tlat department of national law which ariees ft.om the fact that there ale in the world different tenitorial jurisdiction possessing different lawg." lbe definition obviougly leaves much to be desired: while it indicates the basic canse of 'conlli:ts" prdble"'", nowhere does it show a.ruIe of action or conduct Sle venture to suggest the foilowing definition: ., CONFI,ICT OTI,A\trS(ONPRIVAI]E INTERNATIONAL I,AW) IS TIIAT PART OF TIIE MUMCIPAL I"AST'Ur.. A SIAIE WIIICE DIRECIS ITS COT'RTS AI.ID ADMINI$ TRATT\{E AGENCIES, WEEN CONFRONTED WITH A LEGAL PROBLEM IIWOLVING A FOREIGN EI,EIT,TE}IT, WHEITIER OR NOT THET SHOT'LD APPLY A FOREIGN I,AW OR FTOREIGN I,AWS. Ttere
narngly:

having before them cases involving the operation aqd effect of the laws of another state or country.' (R.C. Minar, Conflict of La,ws, 1901,p. 4). (4) AIVfERICAN RESTATEMENT - "That part of the law of each state which determines whether fu1dsaling with a legal situation the law of some other state will be rrecognized,be given efrect or be appiied is called conflict of laws." ('4ncrican Restetement of &nflict of La.ws,p. 2). ELEMENTS OF THE DEFTNITTON DISCUSSED (1) Conflbt of Lous Is Potrt of the Muniaipol Law of a State

are in this definition four (4) important elements, Qsnflict of laws is part of t}Lemunicipal l.aw of a state;

(1) (2, (3)

Since every state has its own municipal law, it follows quite naturally that each state has also its own conflict of laws. Hence,the confli61of laws of the Philippines is different from its counterpart, say in France or Japan or Cuba or England. gimilsrly, American conflict of laws differs in the various states of the American Federal Union. And precisely becausethe subject is bart of tbe municipal Iow,o it is NOT international in character. It is however given the appellation of II{IERS{ATIONAL LAW because of the presence of a FOREIGN element in a given problem. In light of what has been said, We are now ready to define PHILIPPINE CONT'LICT OF tA\trS as that part of the nunicipal law of the philippines which directs its courts and gdminisfrzf,iyg agencies,when confronted with a legal problem invol-ving a foreign elemenl whether or not they should apply a foreign law or foreign laws. (2, Thc Direction to Courts and Administ vtiue Agenci.et

There is a directive tncourts al.d,adrninistrative agercics; There is a legal problem involving a foretgn elcmett;

(4) Finally, tJrere is eitJrer an opplication or ennneppliution of a forcign but or forctgz laws. Before'We discuae the elements hereinabove enunerated, guoted hereunder are the definitions of the subject grven by oqtstnding: authorities. (1) GOODRICH - 'Tt is that part of the law which deals with the extent to which the law of a state operates, and deternines whether the nrles of one or another state should govern a legal sihration. A conflict of laws pmblem is pnesentedwhenefer a legal oontroversy arises in which there. is a foreign elemerrt." (H-F. M.rXh Conflbt o{Lauss,3d. Mitiora 7949,p. 1). (2) CIIESHIR.E - ?rivate Intemational Law is that partof law which oomea into play when the issue befor the court affect8 eome fact, wenf or transaction tbat is so dosely connected witb a foreign qrstem of law as to necessitate recourse to tbat e5rstem." (G.C. Clnaldrg Priaate Intenational Ia ut, 3d, Editio4 7947,p. 6). (3) MINOR - 'Conflict of laws embnices those universal principles of rfgbt and justice which goyetarthe courts of one gtate

It is the judicial tribunals of a count5y that ultimately are cailed upon to decide or resolve '6enflisfs' problems. Various administrative agencies of the state, such as the Department of Foreign Afrairs, the Bureau of Immigratiou, the Securities and Exchange Commission, and the like also decide PRELIMINARILY a given controversy involving a foreign factor. (8) A l4ol Prcblcm Inooloing o Fotzign Elcment

In an existing situation premised on cer0ain facts, a 'forergu element'ha^s to be preseut before the matter cau be

PEIIJPPINE CONFIJCT OF IAWS congidered a 'conflicts" problem. sumingte the "foreiga element'pnd the problem-is obviouslyNCII a q"rtioo-.;ifr for private international law. If a Cebuana marries a Tagalogin IlocoeNorte, the priest being a resident of the region, what t"* g;";;;A; yafidity of the marrilSe?lisayan ID-this p-Uf"oq there ie"NO f";G element that comee_a*-pr" ""hy, it ig:not o"u,"Ui"g- 6i the solutions offered by philippine "ni* of laws. Make-the grrmm, however, a. qrSotlfrom Japan, or'make the blushing bride a 'mestizilla' fro-r trtance, o.let th" wedding take,ph; gomewhele in the hinterrands ofAfghaqistan, ana immediatetn a pr,oblem in conflict of laws, will-aiise;-nadely .the tr* oi whicb country governs the varidity of the marriag contrac! ' assuming that indeed a marriage has really takeln place2; hpq beeu well-statd by hof. ililro", lfthe .A,s hansaction in question arises wholly within a singre state, sn tbe parties interested having been" and continuing to b";domiciled and actually present there (aud we may add, all aationals of the very as"ne state), the question being raisd f,lgp nlse, ae foreigu element exists to causeany interference with the usual and regular enforcement of the domestic m'aisipsl.Iaw by the domestic fo-ilrrnqls. There is no room h such I cas foi the application of the nrles of Private International Law., (Milwr. Conflict of Laws, p. 4). But, gravely warri,b.CheehLe, .the moment a case is seen to be slfecbd by aforcign elprneaf the court plst look beyond its owu internal lawrleet the nelevant ruIe of the internal s5rsten to which the cagemost appmpriatcly belongs, should hqppen to be in conflict with,the forunr-kivate Interaationpl Le..,vcomes into operation, therefoie, whenever ttre Court hgs a suit before it that 6qstrinr.s fomgn elerneal' (Clushilz, Privab Intzrnatiano,l In , p. 3).,, " (1) TIu Applicotian or Non-Apptication or Fotzign Laws of a Forctga Lau

PREUMINARYCONSIDERATION

(a-swhen, for instance, the proper foreign law has not been properly pleaded and proved); in other litigations, a foreign legal or judicial system may be inquired Lto "oa applied. This later alternative becomcspqrticurarly urgent "rhen o,r, 9m laq by reason ofjustice or conveuiencgor plain coynmon decency,comnands our tribunals to apply the i"w o" laws of a foreign state. For the pu_.pos" of our subject, the phrase lforeigo system of lav' may include not only the law of foreign sta;'s tr" tnu word "states'is understood in the national oi political'sense) but also the law of political suHivisions which Lave their o*o legal system (for example: insofar as the state of califo*ia is concerned, the laws of New york or Hawaii or Texas are "foreiga laws'). (See Graueson, Conflict of La,uts,p. 4). Parenthetically, the question may be asked: in applying the law or a foreign state, doesnot a sovereign state *;;g;i"" the superi'rity of another stat? In recognizing the principres of a foreign legal system, do we not implicitly a-dmit'the inadequary of our own jurjsprudence? professor Raleigh C. Minor has a ready response: It is to be observedthat the nrres of kivate rntemationar Law do not derive force from a power superior to the sovereigu states which recoguiie and enforce them. on tae contrar5r,the very essenceofa sovereign state is that it has no superior. It is one of the firndamental principles of this branch oith" r"* that each sovereign state is supreme within its owu limits. rt is, therefore, witbln the power of such state at "ni tim" t" exclude any or all foreign laws from operating within its borders. To the extent that if it cpnnoi do thl, it is not sovereign. Ilence,_when effect is given to a foreign law in any territory, it is onry because the municipal hwlf that state temporarily abdicates its supreme authority in favor of the foreigu law, which for the time being, with reference to that particular matter, becomes itse[ by will of that state, its municipal law." (8.C. Minar, Conflict of La.ws,tSSt, pp. i-6). IIIPORTANCE OF THE SUBJECT with the advent of information zuperhighway, conllict of laws has assuned increasing importance. For instance, two individuals, nationals and domiciliaries of two difhrent etates may in the space of a few hours, engage in a mercantile transaction over chattels

. _ ,^ . When our courts are con_fronted with a.@nllictE'prpblem over which they may have juriedictioa (eil "n" *ilil"S t" aaaume such jurisdiction), the solutiou Ul-,baieto U5 Or-a in the applicatoin of either the IOCAL'b#or trOREIClN lsr. In a geod nurnber of ca8es,our,otirtc'*fli ajgcovcr,.r6rii; to their dismay, tbat they have no alternative ercept to apply directly Philippine intemar raw in the resoruti-on ortle pr"ut"-

PHILIPPINE CONFIJqT OF I"A\['S

PREIJMINARY CONSIDERATTON

gtill to be manufactured in " ini"a state, and to.be delivered at a given port of a fourth state. should legal so"'plications ensue, which of the countries involved will have jurisdiction over the case, and which state's laws will be applicable? "Briefly stated, $'e may say that the subject is importJnt in order: (a) (b) to adjust canflialiqg rights in international, mereantile and corporate transactio.f; an4 to solve personal, famiiy, property, and successional, contractual problems, possessedof facts or. elements operating in two or mone states.

reference to their wages and personal property. Upon the other hand, in North Carolina, for an oral will to be valid, there must be at least two witnesses at the time it is uttered; the will must have been made during the testator,s last sickness, and either in his own residenceor where he had previously resided. (2') In thc Motter of Marriage In the Philippines and in Anerica, monogamy is practised; in Moslem countries, a mah may generally have as many as four wives, provided he has the capacity to take care of them; in Mustang, Tibet, on account of the scarcity of females and the sterility of the agricultural soil, a woman is allowed to have several husbands,usually brothers. Moreover somestates recogaize marriages omortis causa, (effective after death) as when, for sentimental reasons, a girl is married to the corpse of her lover. In the Philippines, we glve eftect only to marriages in "articuLo mortis" (at the point of death). (3) In th.e Motter of Divorce The Civil Code of the Philippiaes does not recognize absolute divorce; almost all North American States grant it. It should even be noted that in New Hampshire, as well as in Kentucky, membership in a religious sect which prohibits or interferes with marital duties is a good ground for absolute divorce. @) In the Motter of Incontc Tat Eremptions In the United States members of the judiciary are not exempted from the payment of income tax on their salaries as judicial officers on the theory that they pay the ta+ not os judges but as privatc citizens.In the philippines, under tJre 1935 Constitution, salaries of members of the judiciary were u,empt from income taxation on the premise that a contrar;r mle would result in the diminufion of the salaris, snfl would, therefore, contravenethe Constitution. Be it noted, however, that under both the 1973 and 198? Constitutions, thie exemption hae been eliminated. Thus, in Nitafan v. Com. of Intcrnol Reuenrn,G.R. No. 787&0,July 28, lg8?, the Suprerne Court held that "the true intent of the framers of tne fggZ constitution . . . was to make the salaries of the members of

BASIC CAUSE FOR CO;FLrcTS PROBLEMS

'Conflicts problems' come into being through uarihnce in the muaicipal laws of the countries involved. Indeed, the sad truth is that there is a 'nultiplicity of govemments with separate legal systems." (Leflar, op. cit. p. 13).As a matter of fact, a single etate, such a.sthe United States or Switzerland, may even have teritorial suHivisions (nlsq refend to as states), each of which has its own iDtrnal or local legislation; in other states, such a8 hq_(pTlgf_!9_ its partition), different systems of law.may govenr differenticlasses: one Erstem may apply exdusively to Mohnmmedans;anotber qrstem, to the Hindue. And even aasuming that the l,awe i;' various countrieg ate uniforoly the sqge, gtill different municipal tribll+lls nay give identical laws var5ring interpretations. Ihis is no surprising. Muaicipal legialation,.by ita very nsture, tende to be diverse because each gloup'of 'people,is virtually a nation in itself, with a cailture, a language, and a'ruligion peculiady its own: with varying moodg and national tempera; with distinctive customs, haditions, ideals and beliefg. OF DIVERSITY IN I-AWS EHf,IPLES AI{D INTERPRETATIONS I (1) In t E Aeft.r of WIlb ?T1 . -"v

In ,tbc 'Philippinoa, oral wilb 'arc.not tllorcd;.,1n . P..sacLu$ttq.US-A., an oral wilt it ytdldonly tfcccntcd by rctul ecrvice sdldicm lD or by marinerr at rea and only with

the Judiciary taxable."

PHILIPPINE CONH,IT

OF,IAWS

PRELIMINARY CONSIDERATION

SCOPE OF FUNCTIONS OF CONFLICT OF LAWS

G.c. cheshire states tEe scope and three-ford functions of Conflict of Laws in the following manner: '(1) To prescribe the conditions under whrch the court is competent to entertain such a suit; '(2) To determine for each class o{ cases the particular territorial system of law by refereuce to whiO tUe rightg of the parties must be ascertained; ' \ '(3) To spcci$ the circumstances in which a fordgi^;uagneut can be recognized as decisive of the guestionin dispute.' (Chcshire, Priuatc httcrnotiorwl Law, p. .3). In other words, the three (3) specific aims of functions are: (1) the determination of which country t'i." 5uJsdiction; (2) (3) the applicability to a partianlar caseofeither the local or the foreign law; the determination of the force, validity anil eflbctivenege of a foreign judgment.

Q) kivate individuals may in their own way abide by our conflicts rules by observing them and by complying with judicial decisions on ttre subject. Furthermore, fa::ness demands that they should not try to evade our laws by the simple expedient of going elsewhere and resorting to a foreign forum. Thus, Art. 81 of our Civil Code prohibits the ma:riage in the Philippines of Filipino first cousins. If the first cousins get married, say, in California (where such marriages are legal and binding), their 3il{gynpt at an evasion would be futile since under the explicit provisions of Art. 3? of our Family Code, such a marriage, even if valid in the place of celebration, cannot be countenancedin this country for the sinple reason that it is tlcestuous," as determined by Philippine law. WHY CONFLICT OF LAWS IS OBSERVED (1) States must of necessitSr observe the subject because it is part of their own municipal law. Surely, a govemment, anywhere and anytime, is duty bound to enforce and respect its own municipal legislation. Q) Upon the sthsy hand, individual citizens obsenreit because offear of municipal sanctions. For instance, the marriage which they may have so enthusiastically entered into may by ouejudicial stroke be torn asunder; their contracts valid elsewhere may suddenly be nullified; there is even a chance that they may go to jail. NAMES GIVEN TO THE SUBJECT Iho different schools of thought give various appellations to the subject: on the one hand, the school emphasizing the "intcmational" angle call it ?rivate International Law" (also: "International Private Law," "Civil International Law," "Extraterritorial law." 'kivate Law of Nations,' Sivate Law of Foreigners,"The Extraterritorial Recognition of Rights,"'The Law oThe theory of the Extraterritorial Authority of of Strangers," Laws"). Upon the other haad, the other school stressesthe "conJlict" angle, and the princ:;al name given by this group is "Conflict of Lawso (also: "Collision of Laws," "Conflict of Statutes,' "Choice of Law"). Incidentally, it should be observed that the name ?rivate Intemational Law" is rather misleading, for as we have already discussed,it is municipal, not international in character. However, the name "Conflict of Laws" has even more defects:

lbus, three questions, present themselves:the question, firstly, of jurisdirtion ' tJre queetion, secondly, of clnice ofkut;..alrd t}ie question, finally, of applicability of a forcignjrdgrent.-Ofthe three undoubtedly the most important is the choice of law. ' kt us suppose tbat a Filipino'movie star goeeto R";, Nevada, and obtains a decree of absolute divorce from his Filipirio wife. Lt us furtJrer suppose that tb.ree years later tbe.Eilipido.iife guss in will,oonfr,ont Manila for support from eaid husbaod. fbree quQqtione case? the Eilipino judge. FirstJy, doegbe have jurisdidioffovtttho Secondly, whatlaw will te apply in detirninin[ w]idfier or not a proper cauae of action exists - shall it be Nevada la* or Pbiliirpine law? Thirdly, should he recognize as valid and b-iafligg"ln the Philippines the reno divorce dectee? HOW CONFLICT OF LAWS IS OBSERVED (1) States may obserre conflict of laws by complying falthfully "gsnflict rules' (nrles of Private Intenatiolul Lav). The with its nileg must be applied to the end that jtutice,ufllSo,rcned. Moreover, states muet, ineofar as is,pr:acticabb'frry*d haraonfze their own rules of equity with the legislation andjuiicPnrden& in r ' 1.']' ' . other lands

PHILIPPINE CONII,ICT OF IAWS

I I
I I

PRELIMINARY CONSIDERATION

l1

(1)

"conflict," whereas the principal Firstly, it stresses the objective of the subject is precisely to resolve or eliminate said "conllict." Secondly, there may be rc conflipl sl e.ll in the'laws themselves: the "conflict may exist only in the mind of the judge who, unsure of hirnself, and bereft of judicial maturity, may hesitate and find himself con-firsed. Thirdly, aside from the existence of a conllict of liaws, there may also be a conflist ofjurisdiction, and a conllict rnay arise between provisions in our Civil Code and in our Revised Penal Code. Even in the Civil Code itself, inconsistent provisions may be present.

I'
)
E

interest only to sovereign states (4) the remedy here Remediesor is to resort to Sanctions municipal tribunals (4) the remedies may be peacefulor forcible. Peaceful remedies include diplomatic negotiation, tender and exercise of good oflices, nediation, inquiry and conciliation, arbitration,'' judicial settlement by the lnternational Court of Justice. reference to regional agencies such as the Organization of American States, reference to the United Nations itself. Forcible remedies include the severance of diplomatic relations, retorsions, reprisals, embargo, boycott, non-intercourse, pacific blockades, collective measures under the U.N. Charter, end finally war.

(2,

,o

I
a a a o a

(3)

:l 'a

Be that as it may, it'is clear that any further academic discussion on the semantici involved can serr/e no useful pur?ffte. The sigDificant thing to bear fu1rnind is the stress underlying each pbrase. lbe only reason we have used the name'Conflict of Laws" for tbis book is the fact it is the official name giveu both by our DeparAent of Education, Culhre and SportdComvnissioaon Higher Education and our own Supreme Court (insofar as the Bar Ilrnrnination is concemed). CONFUCT OF LAWS AND THE LAW OF NATIONS

{ , c
I

p,

:
I
t I a

(puBuc n{TERNAfiONAL LAW)DTSnNGUISHED

CONFLICT OF I.AW
(1) municipal in character (2) dealt in by private individuals Nature Persons Involved I,AW OF NATIONS (1) internatiennl ia character

(2) the parties involved ane sovereigngtates arid other entities possessedof an internatiormt personality, such as the United Natione Organizatiou (3) transactions are Transactions (3) transactiona are entered into which gerpraUy atrect ones Involved private public intereet; those between private which in general are of individuals

The Cistinctions hereinabove adverted to have been advanced by the Dualist School of Thought. This is also the majority opinion: the school believes that the two subjects are world apart, at least insofar as the above-mentioned distinctions are concerned. According to the Monist School of T?rought, however, Private and Public International Law are in essenceidentical for both of them manifest a single conceptof law, ultimately addressed to the same individual. States,the adherents of this schoolmaiatain, can act only through individuals: what can bind individuals must, therefore, necessarilybind also the respective states to which they belong. On several topics, it cannot be denied that the two subjects may overlap each other, hence:

12

PHIIJPPINE CONFI.ICT OF IAWS

PRELIMINARY CONSIDERATION

(1)

The question of citizenship and nationality is properly a part of both subjects: part ofthe Law of Nations-in ine sense that a state's observanceof it dependsprimarily on the actuations of the citizenry; and part of ionnict of Laws for oftentimes it is the law of the citizenship or the Iaw of the nationality that should govern a ierson,s capacit5r and status. While generally a state may resolvea .conflis1s'problem freely, n"d even use its own intenal law exclusively in deciding a given situation, still, should there be a treaty a state to qpply foreign law to certain "*"J, *[gtlrg the state is of necessity compelled to abide by such treaty. (SeeHans l{elsen, Prirciplcs of International law, p. 257). doa"" both subjects, if State A should recognize the government of State B, tle latter is automatically given peraission to sue in the courts of the former. However, it should be noted that a sovereign state, whether recognized or not, cannot be made a delendant in a foreigu country. For if the mle were othemrise, aside from the fact that an insult ageinst a sovereign state has been made, how can the judgment ever be effectively enforced? (See Mas Wulfsohn, et aI. vs. Russian Soci.olist Fedzrated Sovbt Republic, United Stqtes of Appeok of Neut York, 1923). However, if a recognized etate is given permission to sue in another, a counterclaim (whether compulsory or perrrissive) may be filed against the former. A contrary rule wiII be erninently unfair. Donsld Baer Cornr"ander U.S-NavaI Baee, Subic Bay ve. Eon Tito V. Tizon :. I-':24294, JuIy 15, l9Z4 FACTS: If a Filipino is granted a timber lieense mayhe conduct a loggingoperationwithin a U.S. Military Base when the U.S. Base Commander refuses to grant him perrrission to do so? HELD: (thrr Mr. Justice, later to become ChiefJustice Enrique M. Femando): No, he cannot conduct' such a logging operation. To sue the Base Co"'-ander (to compel the allowance of the operation) would amount to a suit againat the U.S. Goverament. This cannot be

(2) -

done in view of the principle of state immunity from suit. Tlue, the Base Commander does not possessdiplomatic immunity (and he may, therefore, be proceededagainst in his personal capacity, or when the action trken by him cannot be imputed to the govemment he represents). But here, the suit is not actually against him, but against the U.S. Government, which has merely acted on the basis of its treaty stipulations with our Republic. international Commissinnsand,Administltiue Bodics Houe A Distinct Juridical Persorwlity Indcpend.entof th.e Muniripal Law of tlu Ststc Southeast Asian Fisheries Development Center Aquaculture Departnent v. National Labor Relations gernrn iesiql G.R No. 86773, Feb. 14 1992 Permanent international commissions and adrninish.ative bodieshave been createdby the agreement of a considerable number of States for a variety of international purposes, economic or social and rrainlv non political. Among the notable iastances are the International Labor Organization, the International Institute of furiculture, and the International Danube Qeinrnis5iea. Insofar as they are autonomous and beyond the control ofany one State, they have a distinctjuridical personatity independent of the rnunicipol l.o.w of the State where they are situatcd. As such, they must be deemed to possessa speciesof internati.onal personali$t. SOURCES OF CONFLICT OF LAWS There are indirect and direct sources of Conflict of Laws. fhere are two indirect sources: the natural moral law, and the works 6f writers.

(3)

'

Iaws, judicialdecisions, treatiesandconventions, andinternaiional

customs.

Ihere are six direct sources:constitutions, codifications, special

t1

PHILIPPINE CONIT.ICT OF LAWS

PRELIMINAR,Y CONSIDERATION

THE INDIRECT SOURCES

(f) The Neturo.l Moral Lou Tbe natural moral law is that rule of human conduct implanted by God in our nature and in our conscience,urging us to do whatever Ls right and avoid whatever is evil. (2, Works of Writen - -41aory the famo-us writers on the subject may be cited the following:
(a) (b) (c) (d) (e) (f) (h) (i) 0) (k)

G)

Westlake - frivate Interaational Law" Falconbridge - "Essays on the Conflict of Laws' E. Rabel - "The Conllict of Lawe' J. Story - 'Ccmmentaries on the Conflict of Laws" H.F. Goodrish - sCenflict of Laws" G.C. Cheshire - Sivate Intemationat LawJ.H. Beale - 'Conflict of Laws" RC. Minor - 'Qsnflidt of Lawso W.WW' Cook -'I*gal and Logical Basesof the Conl1ictof
o Laws" E.G. LorenzeD. - "Cases en Qenfligt of Laws' Graveson - "Conflict of Laws" ^

natural resources shall be under the full control and supervision of the State. The State may directly undertake joint venture, such activities, or it may enter into co-production, or production-sharing agreements with Filipino citizcns, or at least sixtyper centum of whose corporations or associations capital is owned by such citizens. Such agreementsmay be for a period not exceeding twenty-five years, renewable for not more than twenty-frve years, and under such terms and conditions as may be provided by law. In ca*es of water rights for irrigation, water supply, fisheries, or industrial uses other than the developrnent of water power, beneficial use may be the measure and limit of the grant.' Rcall that under the Parif A:nendment to the 1935 Constitution, the patrimoniat rights refened to were extended to Americans. This was by virtue of an ordinance appended to the Constitution in 1947-The arrangement embodiedin an Executive Agreement between the hesident of the Philippines agd the President of the Unitd States and entered into on July 4, 1946 did not continue beyoud July 3, 1974. In Pedro R. Palting u. San JosePetrclcu.rn,ItLc.,(L-L444L, Dec. 17, 1966), the Supreme Court, thru Mr. Justice Jesus Barrera held that an American citizen (natural or juridical) can take advantage of parity only if in his own particular riChts are granted Filipino state in the United States, citizens (whether natural or juridical). After Cheexpiraticn of Parity Rights, the Government deciiled to grant American entities a grace period ending May, 1975 whereby lots acquired by them would cither be actually disposed oi or made the subject matter of pla.s which would dispose of them eventually. Later, in June, 1975, Presidential DecreeNo. 713 was issued granting three types of American citizens, who had acquired private residential lands for fanily dwelling purposes before July 3, 1974 permission to continue holding such lands (up to 5000 square meters only, however) and to transfer ttreir ownership to qualified persorur aud entities. These three (3) types of Anerican citizens are the following: i) those who were formerly Filipino citizens; Philippines; and

Itre above-mcntioned legal scholars are considered sourcea (indirect) of Conflict of Laws insofar as their writings have inflqgnssd judicial decisions on the subject.

THE DIRECT SOURCES (f) Corutitutions In Philippine Conflict of Laws, the Philippine Constitution plays a fundamental part. For instance, it enumeratcs the citi2ens of the Philippines. (Art. IV, lgSS Constitution; Art. III, 1973 Constitutian ond, Art. IV, lgBT Constitution). Also Art. XII, Sec. 2 of the 198? Constitution is explicit, reading in part: "All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces ofpotential energr, fisheries, forests or timber, wildlife, flora and fauna, and other natural nes)urces are owned by the State. With the exception ofagricultural laads, all other natural reso'nceEshall uot be alienated- fire exploration, development, and utilization of

'

permanent 2) thosewho have become residents of the

16

PHILIPPINE CONFLICT OF I.AWS

PRELIMINARY CONSIDERATION

t7

3)

those who have resided in the ph;lippines conti.uously for at least twentyt20) years.

December 1, 1888) also coutains some provisions on "conflicts" problems. One such provision is Art. lb.

Then President Ferdinand E. Marcos pointed out that these properties had been acquired in GOOb FAIftI, in the honest beliefthat such properties could be held even after the expiration of parity. under the rgzS' constihrtion,-titles of Anerican citizens to the private randg are voirl as against the Government but valid as against privaic perso*. \Mith thi" new decree, according to Mr. Marcos, thise thee t1pes of Anerican citizens nre granted {specid consideration and compassion" jo tr" interest of justice. Meanwhile, with the advent of the l9g? Constitution, l,ands of the piiblic domrin are clo"sified into agricultural, forest or timber, nineral lands,'and national parks. Agricultural lands of the publib domain may be further classified by law according to thq uses to which they may be devoted. Alienable lands of the public domain shall be limitd to agricultural lauds. kivate corporations or associatioru may not hold such alienable lands of the public domain except by lease, for a period not exceedingtweuty-five yF, and not to exceed one thousand hectares in area. Citizene of the Pbilippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or grant Taking into acrount the reguirements of conservation, ecolory, and developmenf and subject to the requirements _of agrarian reform, the C,ongr,ess shall determine, by law, the siie of lpnds of the publis flemain qhich may be acquired, developed, held, or leased and the conditions tberefor.' (Afi. nI, Sec.3, Tlu 1987 Phil. Const.). " (2) Codifications The Civil Code of the Philippines, which took effect on August 30, 1950 (Laro u. Del Rosaria, Gn. L. 6339. 50 O.G7957), contains several imFortant artides on Philippine Conflict of Laws, the most fuudamental of which are Articles 18, 16, t'|,66,71, 99, L24,8L5,816,817,and 819.the other provisions will be enumerated in detbil in the subaeguent pages. The Philippine Code of Co"""erce which is really the Code of Co'""'erce of Spain (extended to the philippinee by Roy"I Decree of Auguat 6, 1888, and effective here begiDning

In other countries mention may be made of:

(a)

The French NapoleonicCode of 1804 which stressedthe "dationality" theory. (Said theory has tremeudously influenced other codes,such as the Spanish Civil Code, the Italian Civil Code, and our own Civil Code of the Philippines.)

(b) the Civil Code of Greece of 1940 which among other things, makes the relationship between a father and his illegitimate son depend upon the ''ational law of ttre father. (q) The Civil Code of Sw"itzerland of 1902, which provides among others that although capacity to contract is goveraed by the national law of the person concemed, still if the transaction is effected in Switaerland, the foreigner may be considered capacitated if he be so consideredunder either his own law or Srarsslaw. (3) Speeiol L,a.ws Among Philippine legislation dseling with our subject are the Corporation Code,the Insurance Act, the patent Law, the Presidential Decree on Intellectual property, the Nationalization of the Retail Trade Act, the Omnibus Investments Code, the Foreign Investments Act, and the Central Bank Act (Bangho Sentral Acd. These laws regulate, for instance, the treatment of forergn insurance cum.panies, the reciprocal privileges in the mattcr of patents, the requisites before an alien may obtain a copgight, the conditionJ under which alien retail trade may still continu, snd the grant of incentives to forefun investors. (4) Treaties and Conaentions Some countries are parties to certain treaties which embody "co.'flicts" rules; the rules are therefore binding on the courts of the signatories concerned. Among the irost important conventionson the matter are:

(a) The European Hague Conventions of lg96, 1902, and

1905.Among the rules chosenwere those concerningthe

l8

PHILIPPINE CONT'LIT

OF IAWS

PRELIMINARY CONSIDERATION

l9

validity of marriage and marriage contracts, their effects on property and status, divorce and judicial separation, guardianship of minors and peioons under civil interdiction, testamentary and intestate succession, qnd parts of judicial procedure. (b) Ttre Geneva Conventions of1823, 1926, 1930, and 1931. They dealt with arbihation and foreign arbihal awards; and matters coucning negotiable instnrments. Ihe Treaties of Montevideo of 1899 (revieed in 1940). Ilere, the eountries of South America adhering to the domiciliary theory (as distlnguished from the nationality theory) agreed on nrles concerning donicile, properby, juridical acts, marriage settlement, gu"cessioo, prescription, jurisdiction, commercial law, m.aritine l,aw, bills of uxs[eng, and the like. The Codigo Bustanante of 1898 - which was enterd into by Arnerican states following the nationality theory, and which gave rules on practically all aspects of Conllict of Laws. Deci.sions

alter it has been subjected to test in the crucible of analysis and revision, the Supreme Court should find that it has merits and quaiities suffrcient for its consecration as a rule of jurisprudence." (Ibi.d.,seealso Gaw Sin Geeu. Market Master of tlw Diuisoria Market, et al., CA. 46 O.G. 26IT). (6) Internationo.l Customs

(c)

(d)

(6)

Judicial

In the Philippines, as well as in many other countries, the 'conflicts" rules that have been the subject of codal and special legislation are hopelesslyinadequate;hence, the need for decisionaljurispqudence. IfnderArt. 8 oftheCivil Codeof the Philippines, Judicial decisions applying or interpreting the laws or the Constitution shall forrn part ofthe legal system of thb Philippines.' Judicial decisions, though rroilu*", .r" indeed evidence of whai the laws mean. Th'e decisions refened to are those enunciated by the.supreme Court. lhus, our Supreme Tribunal, in Mironda, et al. u. Imperia,l, et al. (77 phil. 1066), categorically stated that "only the decisions of this Honorable Court establish jurisprudence in this jurisdiction." Decisionsofsubordinate courts are therefore only persuasive in nature, and can have no mandatory effect. However, the Court continued, 'this doesnot militate againsl the fact that a conclusion or pronouncementof the Cou* of Appeals which covenr a point of law still undecided in the Philippines may still aerye as a juridical guide fo: the inferior courts. It is even possible that such conclusion or pronouDcement may be raised to the status of the doctrine, if

Almost all states, in their respective municipal laws, adhere to certain principles or custons in flgci'ling s6enflisf,s,' problems.Among the principles and customsuniformly followed are the following: (a) The "lex situs' (Law the place where the property is 9f situated)"governs olFost everything that concerns Lat property: formalities for their alienation, the capacity to encumber or otherwise .lispose of them, and so forth. In the Philippines this rule applies to both rd and personal property. (Art. 16, par. I, Civil Codc). (b) Ttre 'lex loci celebrationis" (law ofthe place ofcelebration or execution) govems generally all transactions insofar as fotsralities or solemnities ar,econcerned. One iurportant exception to this rule is whenever property is involved, in which caseit is the /er sifirs that should control. f/rt. 77, par. 1, Civil Codz). (c) Either the 1ex asgielalii" or the "lex domicilii" (the national law or the domiciliary law) of the deceased governs the successiooal rights to his estatc. In our country, we have expressly adoptedthe.lex nationalii., (Art. 16,par. 2, Ciuil Cdz). (d) In the sphere of criminal law, the principle of 'territoriality" and the principle of "generalit5/ ar,eusually fundamental maxims. Under the rule of "tritorialiqy'' the place or territory where a crime has been committed has jurisdiction to try the offense that has been committed. Of course there are several excepti^ns to this rule. (SeeArt. 2, Reuised pena.l Codc)- Ihis principle of "geuerality'' states that the criminal laws of a countrv bind both the citizens a:rd the qJiens who are in the saii country or territory. this principle is enunciated in our Civil Codein the following terms: ?enal laws and those who live or sojoun in Philippine territory, "obj""ito the

ofpublicsecurity andsafety shallbeobligatory uponall

20

PHILTPPINE CONFT,ICT OF TAWS

PRELIMINARY CONSIDERATION

principles of public international law and to treaty stipulations." (Art-. 14, Civil edd. It should be noted that aliens whether male or femate come under our trritorial jurisdiction. Ihis is because aliens, while io . our count4l, owe some sort of allegiance,,even if it be temporary. Parenthetically, it will be obsened:tnitrart'ifof the Civil Code in dealing *ith th;;;;;il*;i;#;r;; recognizes two exceptions: : ,, . ;_ . . .i:i,,,;.;r er r.r1f,r. i (a) Firstly, the plinciples of puBlic angrniigoriii faw.

(effective Aug. 10, 1965 - Mendez_Blair Exchange of Notes); and secondly,on the duration of the "gr"ui","i " (Ramos-RuskExchange of Notes of Sept. 16, 1966 _ decreasingthe term of 99 years to 2b years, counted from Sept. 16, 1966). However,in an opinion renderedinNovenber, 196g, then Secretary of Justice 0ater tp becomeSupremeCourt Chief Justice) Claudio Teehankee, ruled that the amendments are twt yet in force for lack of Senate concurrence. tllonically, the United States Government has considered the o-endments as already effective on the thgory that the Bases Agreemeut (together with all qmendments thereic) is not atreaty,.but a mer pr,esident Executive Agreement, which does zor necessitate Congressionalaction.l Prior to its abrogation, the position of the pbilippine governnent has been that the Amendments referrea to hereinaboveare already EFFECTI\IE, firstly, becausethe Amendments may be considered ", "meodments to a Presidential Executive Agreement, not to a treaty; and secondly, because,as of that time, the Natioual Asr"-lfy referred to in the 1923 Constitution has not yet been couvened.By reason of the May 14, 19g4 elections,(not merely interim) Batasang Pambansa had comeinto 6"i"g. Thi onset of the Corazon C. Aquino govemment siw this issue beclme a constitutional one. The l9g? Constitution, Art. XVI[, Sec. 25 of the Transitory Provisions statcs that .After the expiration in 1991 of the Agreement between the Republic of the philippines and the United States of Arnerica concerning Uifit""y Bases, foreign military bases, troops, or facitities shjl not be allowed in the-Philippines except under g treaty duly concurred in by the Senate and, wien the Cbngres-s so requires, ratified by a majority of the votes cast by the people in a national referendum held for that pririose, and recognizedas a treaty by the other contractinl State.; Lawyer-author Hector S. de Leon in his textbook on the Neur Philippitu Constitutian avers:

(P**Pt:".3'" - . th" *el+tieg,gq3lea,to,d.iplomatic 9.ffi?"t" ang visiqgc headsof fori;d-itats iiroviled that the latter do not travel turcdgnita.ItUCv.t*1r"f';;;;;; but with the knowredge or our go"urin-L-;t'offiJJ;;il; of states are entiiled_L irr-Gty. ff t}reinagnitotravel ie without the knowledgeof o*-"oLtry, the diplomatic immunity cannotbeinsiltea upon;andtn" frura" of "t A" 'thus
travelling may be arrested ior the ssmrnisgisp sf a crime. However, once they reveal,and prove their identity, immunity is given.)

G)

.. Secondly, the presence of treaty stiprrtalioor. Thus, we hlda for instance, the -now. ahrogated P_hilippines-Uailfd Slates Mititary Bases 4gree_;i;f March 14, lg47, which contained "o-Jo"o"i"ioo" exempting certain members of the ,*.9a fgiu, ;i;h; Unitd States from the juriediction of our-coiii+".f5"" ng Q.G. No. J, pp. 1020-1054).Incidentally, tle Supreme Court held that the bases agrermeot is constihrtional. Reasonedthe court::if basesmay validly o-eganted the United States under our Constitution,;lt follows necessarily that the lesser attribute of jurisdibtion over certain offensesmay be waived or givenly law or t e^iy. Furthermore, the grant of basu, nu"""r"rily includes tlie^ waiver of jurisdiction within the terms """iu""u* appurtenances to such bases, and the rQhts incideni thereto." (Dizon v. philrycom, 46 O.G. Supl Wo. p. t, Oi; see ako Miquiabas u. Com. Gen.pitt. pinAs Co;;;;;, ','U.,S. Ar-it, G.R. Llggg, Feb. 24, igQg. The Agreement had already undergone various amendments:firstly, on the extent of "ri_irr.tlurisdiction

"TheRP.-U.S. Military Bases Agreement is merelv an executive agreement enteredinto betwe"r,tll President of the Philippines and the hesidentof the

22

PHILIPPINE CONFLICT OF I..AWS

PRELIMINARY CONSIDERATION

United States. Suci, .l agreemeut does not require legislative concurrence.It is binding only upon the heads ol Statf: grF"iog into thern. (See-Art- Wn, S"c. atZl.) Thus, all disbursements under the BasesAgreement for the Philippines have to be ippioved by the U--S.Congress. A t""t", upon the other hand, ,"goir", the concu:ence of the legislative body to be vaiid and effectiv.e.It is an intcrnational agreement binding upon the States as parties thereto. (SeeArt.-VII, Sec.Zj.), According to 1986 Constitutional Commission member Viceate B. Foz, inhts Manila Bultctin (Nov. 23, 1939) colunn, lherg was no'conflict between the Constitution and the Military Bases'hgreemiht. Wrote he: "When a treaty:nd a co,inhfe *oititotioo ss,,flict, yhi"h will prevail? 1he query is especially timely because the Constitution and the philippine-United States yr}F y Bages Agreenient speak ditrerently on MBA's termination. The first says it will expire in 1991, while the second exgrresslyprovides that after Sept. 16, tS9t, it will be subject to termination upon oo" yu"/" notice by either party. 'After the expiration in 1991 of thl Agreement. . ..? aays the Constitution, but the MBA provides g. . . thie Aglsement and agreed revisions thereof glaU lgrrqin in force for a period of 25 years from Septembgr 16, 1966 afterwhich . ... it shall becomesubject to termination upon oue,year's notice liy eitler go"urn-dit.'1.W1'en they iere franing the new Constitution in lale 198G,the,framers assumed that, as commonly thougbt tle Lfga automatically ends ou Sept. 16, 1991. But qs early as Sept 16, 1966 when.theRamos_ Rusk Notes were exchqnged,formally amending the I\,IBd it is officially kn6wn tlat o"ty rn", S"pt. 16, 1991 will either govenrment h,ave the option to serve notice of termination on tihe other, to take efect a year after. The agreemeut has the force of international law between the two countries. %eviously we would di""ou""ge."oy efforts to c,reate a constitutonal issue.ovcr the appareut,conflict between the firndarnental law and the lt[Bn po tprmination date. The countr5r,li6b hothing.to g"in and imething to lose the American continued ...!""

But, if w-eanticipate such an issue to arise, how is it going to be resolved?professor Edgardo L. Faras, now justice of the SupremeCourt, answenithe poser associate "Internatiorral Law and World Organizations" i" {" booa in fo[owing manrrer: l. From the viewpoint of the th! world, the treaty ought to prevail to avoid international embar:assment and to prevent charges of intemational delinquency. The state must accordingly update its municipal constitution. 2. Flom the viewpoint of the state itself, it would seem that most constitutions (including our own) provide that a treaty may be declarel nncons-titutional by a state,s own national courts; it is thus clear that, frorn this standpoin! m'niqipi hw, prevails - though, ofcourse, it should also bsevideni that the decision of a national court, while binding on municipal authorities would have NO international uF"ct, for indeed it is a settled principle of international law that a sovereiga csnnot be permitted to set up its municipal law againsl a claim fouaded on inter:rational law. 1A frrndamental principle governing the appli_ cation and enforcement of treaties, pacta sunt servond,a dictates that treaties must be observed in good faith. Quoting, international law publicist Kelsen, Fa::s said, Tleaties have a binding effect, for by meens of them riglb and obligatoins are established.;Citiog a decision of the International Court of Justice, paras said, .ff a tleaty is contrary to a signato4/s national constitution, the international legal order demands faithfui compliance with the treaty, to avoid international embarrassnent." 'In the case of our Constitution, its transitorv provision on the military basesmentions the MBA expiry mey{ in passing. It doesn't make a categorial, blackand-white dedaration that the MBA shall terminate on Sept. 16, 1991.Indeed,the provision doesn,t evenindicate a full date but only speaks matter of factly, "After the expiration in 1991 of the Agreement . . ." That falls short of a manflxlB conhary to wbat somesenatorswould make us befieve. The most significaut thrust of the transitory provision is its unequivocal requirement that afur the MBA expires, foreigu military bases,troops and facilitieo

b-yholdingup the ultimatiiquesUon of whethert'allow

to Ae ffrifippine bases.