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Ch"apter SV

45
A BRIEF EISITORY OF CONTI,ICT OF LITWS
SsdTt
Rome, 44S; ThetdiC of Caracalla (212
A.D.),4/{5;
the Coming of Barbarians, 44S; The Rehrrn to Territorial
Iaw, 4.,46; Tro Jurigts trbo.m France, l+Z; the UutcU Th*ry
of Territoriality and Crcmity,
gS;
Writara of t.bg fgtn "ni
20th Centurier., Ug.
PHILIPPINE
CONFLICT
OF LAWS
Chapter'l
PRELIMINARY
CONSIDERATION
INTRODUCTORY
PROBLEM
If in a moment of deep infatuation, a Filipino gets married in
I:tq-
to a lovely, midi-skirted female ro- "t ir"Ito* rr"iti, trr"
following questions
may rigitfirny be asked: rbe law or wuicn
puntrry will govera the rralidity of the marriage? which particular
Pg*
"":"-. yil-l
sovern their personal righ; ""d "bld;;;
*
n'sDand and wrfe, assuming the marriage to be valid? How about
their matrimonial property relations?
the responseg to_these regar interrogations will, insofar as we
T
*":"Td, depend,_to a rrery great ejent on theappli"."tioo
of
what
gl'att
be referred to in thi; hunble heatise *'piifi,ppi",.
3+"
of Laws (otherwise
called
philippine private
I"t";ff;
IraWr.
fittingly poi"t"g out by kof. Robert A Lflar, a former
{u*ice
of the supreme court ofArkansas,
oany
case which involv""
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
_,-,
.fo
the second (1830)
edition'of his well-known ?rivate
International
Law,'westrake be$os his discussion as follows:
rii
PTIIIJPPINE CONTLICf OF IAWS
%ivate Inter:national Law is tlat department of national
law which ariees ft.om the fact that there ale in the world
different tenitorial jurisdiction possessing different lawg."
lbe definition obviougly leaves much to be desired: while it
indicates the basic canse of
'conlli:ts"
prdble"'", nowhere does it
show a.ruIe of action or conduct
Sle venture to suggest the foilowing definition:
.,
CONFI,ICT OTI,A\trS(ONPRIVAI]E INTERNATIONAL
I,AW) IS TIIAT PART OF TIIE MUMCIPAL I"AST'Ur.. A
SIAIE WIIICE DIRECIS ITS COT'RTS AI.ID ADMINI$
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 are in this definition four (4) important elements,
narngly:
(1)
Qsnflict of laws is part of t}Le municipal l.aw of a state;
(2, There is a directive tncourts al.d,adrninistrative agercics;
(3) There is a legal problem involving a
foretgn
elcmett;
(4) Finally, tJrere is eitJrer an opp lication 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 pnesented whenefer 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 goyetar the courts of one
gtate
PBEUMINARY CONSIDERATION
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 fu1 dsaling 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
Since every state has its own municipal law, it follows
quite naturally that each state has also its own conflict of
laws. Hence, the confli61 of 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 because the 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
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
obviously NCII a q"rtioo-.;ifr
for private international
law.
If a Cebuana marries a Tagalogin Ilocoe Norte, the priest
being a resident of the
lisayan
region, what t"* g;";;;A;
yafidity
of the marrilSe? 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;
'
.A,s hpq
beeu well-statd by hof. ililro", lfthe 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 cause any 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 cage most appmpriatcly
belongs, should hqppen
to be in conflict with,the forunr-kivate
Interaationpl Le..,v comes into operation, therefoie, whenever
ttre Court hgs a suit before it that 6qstrinr.s fomgn elerneal'
(Clushilz,
Privab Intzrnatiano,l In
,
p. 3).,,
"
TIu Applicotian or Non-Apptication of a Forctga Lau
or Fotzign Laws
. _ ,^ .
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"-
(a-s
when, 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 becomcs pqrticurarly urgent "rhen o,r,
9m
laq by reason ofjustice or conveuiencg or 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, does not 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 observed that 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 essence ofa 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
PREUMINARY CONSIDERATION
(1)
PREIJMINARY CONSIDERATTON
PHILIPPINE CONFIJqT OF I"A\['S
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, $'e may say that the subject is importJnt in
order:
(a)
to adjust canflialiqg rights in international, mereantile
and corporate transactio.f; an4
(b) to solve personal, famiiy, property, and successional,
contractual problems, possessed of facts or. elements
operating in two or mone states.
BASIC CAUSE FOR CO;FLrcTS PROBLEMS
'Conflicts
problems' come into being through uarihnce in the
muaicipal laws of the countries involved. Indeed, the sad truth is
that there is a
'nultiplicity
of govemments with separate legal
systems." (Leflar,
op. cit. p. 13). As a matter of fact, a single etate,
such a.s the United States or Switzerland, may even have teritorial
suHivisions (nlsq refend to as states), each of which has its own
iDtrnal or local legislation; in other states, such a8
hq_(pTlgf_!9_
its partition), different systems of law.may govenr differenticlasses:
one
Erstem
may apply exdusively to Mohnmmedans; anotber qrstem,
to the Hindue.
And even aasuming that the l,awe i;' various countrieg ate
uniforoly the sqge,
gtill
different municipal tribll+lls nay give
identical laws var5ring interpretations.
Ihis is no surprising. Muaicipal legialation,.by ita very nsture,
tende to be diverse because each gloup'of
'people,is
virtually a
nation in itself, with a cailture, a language, and a'ruligion peculiady
its own: with varying moodg and national tempera; with distinctive
customs, haditions, ideals and beliefg.
EHf,IPLES OF DIVERSITY IN I-AWS
?
T1
.
AI{D INTERPRETATIONS
(1) In t E Aeft.r of WIlb
I -"v
In ,tbc 'Philippinoa,
oral wilb
'arc.not
tllorcd;.,1n
.
P..sacLu$ttq.US-A., an oral wilt it
ytdldonly
tfcccntcd by
sdldicm lD rctul ecrvice or by marinerr at rea and only with
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 residence or 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 some states
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, contravene the 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
the Judiciary taxable."
PHILIPPINE CONH,IT OF,IAWS
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) the applicability to a partianlar case ofeither the local or
the foreign law;
(3) the determination of the force, validity anil eflbctivenege
of a foreign judgment.
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 goee to 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
Manila for support from eaid husbaod. fbree quQqtione will,oonfr,ont
the Eilipino
judge.
FirstJy, doeg be have
jurisdidioffovtttho
case?
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
with its
"gsnflict
rules' (nrles
of Private Intenatiolul Lav). The
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
other l ands r
'
1. ' ]'
'
.
PRELIMINARY CONSIDERATION
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 countenanced in 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 obsenre it because
offear of municipal sanctions. For instance, the marriage which they
may have so enthusiastically entered into may by oue
judicial
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:
"Internati onal
Pri vate Law,"
"Ci vi l
Internati onal Law,"
"Extraterritorial
law."
'kivate
Law of Nations,' Sivate Law of
Foreigners,"The Extraterritorial Recognition of Rights,"'The Law
of Strangers,"
oThe
theory of the Extraterritorial Authority of
Laws"). Upon the other haad, the other school stresses the
"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:
PHILIPPINE CONII,ICT OF IAWS
(1)
Firstly, it stresses the
"conflict,"
whereas the principal
objective of the subject is precisely to resolve or eliminate
said
"conllict."
(2, 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.
(3)
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.
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 fu1
rnind
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 SportdComvnissioa on Higher
Education and our own Supreme Court
(insofar as the Bar
Ilrnrnination is concemed).
CONFUCT OF LAWS AND THE LAW OF NATIONS
(puBuc n{TERNAfiONAL LAW) DTSnNGUISHED
CONFLICT OF
I.AW
I,AW OF NATIONS
I
I
I
I
I '
a
)
, o
E
I
a
a
a
o
a
:l
' a
p,
{
I
,
c
d
:
I
t
I
a
(4) the remedy here
i s to resort to
municipal tribu-
nals
Remedies or
Sanctions
PRELIMINARY CONSIDERATION l 1
interest only to sovereign
states
(4)
the remedi es may be
peaceful or forcible. Peace-
ful remedi es i ncl ude
diplomatic negotiation,
tender and exercise of
good oflices, nediation,
inquiry and conciliation,
arbitration,'' judicial
set-
tlement by the lnter-
national Court of Justice.
reference to regional
agenci es such as the
Organization of American
States, reference to the
United Nations itself.
Forcible remedies include
the severance of diplo-
mati c rel ati ons, retor-
sions, reprisals, embargo,
boycott, non-intercourse,
pacific blockades, collect-
ive measures under the
U.N. Charter, end finally
war.
(1) municipal in
character
(2) dealt in by
pri vate i ndi vi -
duals
(1)
internatiennl ia character
(2)
the parties involved ane
sovereign
gtates
arid other
entities possessed of an
internatiormt personality,
such as the Uni ted
Natione Organizatiou
(3)
transactiona are entered
into which gerpraUy atrect
public intereet; those
which in general are of
Nature
Persons
Involved
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 essence identical for both of
them manifest a single concept of law, ultimately addressed to the
same individual. States, the adherents of this school maiatain, can
act only through individuals: what can bind individuals must,
therefore, necessarily bind also the respective states to which they
belong.
On several topics, it cannot be denied that the two subjects
may overlap each other, hence:
(3)
transactions are
pri vate ones
between
private
individuals
Transactions
Involved
12
. PHIIJPPINE
CONFI.ICT OF IAWS
(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 observance
of it depends primarily
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.
(2)
While generally a state may resolve a
.conflis1s'problem
freely, n"d even use its own intenal law exclusively in
deciding a given situation, still, should there be a treaty
-
*[gtlrg
a state to qpply foreign law to certain "*"J,
the state is of necessity compelled to abide by such
treaty. (See Hans l{elsen, Prirciplcs of International law,
p. 257).
(3)
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 loggingoperation within 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 Chief-
Justice 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
PRELIMINARY CONSIDERATION
done in view of the principle of state immunity from suit.
Tlue, the Base Commander does not possess diplomatic
immunity (and
he may, therefore, be proceeded against
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 Commissinns and, Administltiue
Bodics Houe A Distinct Juridical Persorwlity
Indcpend.ent of 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 i nternati onal commi ssi ons and
adrninish.ative bodies have been created by 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
possess a species of 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.
Ihere are six direct sources: constitutions, codifications, special
Iaws, treaties and conventions, judicial
decisions, and internaiional
customs.
t1
PHILIPPINE CONIT.ICT OF LAWS
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 Law-
J.H. Beale
-
'Conflict
of Laws"
RC. Minor
-
'Qsnflidt
of Lawso
W.WW' Cook
-'I*gal
and Logical Bases of the Conl1ict of
Laws" o
^
0)
E.G. LorenzeD.
-
"Cases
en Qenfligt of Laws'
(k)
Graveson
-
"Conflict
of Laws"
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'nceE shall uot be
alienated- fire exploration, development, and utilization of
PRELIMINAR,Y CONSIDERATION
natural resources shal l be under the ful l control and
supervision of the State. The State may directly undertake
such activities, or it may enter into co-production,
joint
venture,
or production-sharing agreements with Filipino citizcns, or
corporations or associations at least sixtyper centum of whose
capital is owned by such citizens. Such agreements may 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 embodied in 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 Jose Petrclcu.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
state in the United States, riChts are granted Filipino
citizens
(whether natural or
juridical).
After Che expiraticn 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 Decree No. 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;
2) those who have become permanent residents of the
Philippines; and
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)
G)
(h)
(i)
PRELIMINARY CONSIDERATION
t 7 16
PHILIPPINE CONFLICT OF I.AWS
3) those who have resided in the
ph;lippines
conti.uously
for at least twentyt20) years.
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 ti mber, ni neral l ands,' and nati onal 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 exceeding tweuty-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.G-
7957), 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
December 1, 1888) also coutains some provisions on
"conflicts"
problems. One such provision is Art. lb.
In other countries mention may be made of:
The French Napoleonic Code of 1804 which stressed the
"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.)
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.
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
considered under either his own law or Srarss law.
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.
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 conventions on the matter are:
(a)
The European Hague Conventions of lg96, 1902, and
1905. Among the rules chosen were those concerning the
(a)
(b)
(q)
(3)
(4)
l 8
PHILIPPINE
CONT'LIT OF IAWS
validity of marriage and marriage contracts, their effects
on property
and status, divorce and judicial
separation,
guardi anshi p
of mi nors and pei oons
under ci vi l
interdiction,
testamentary
and intestate succession,
qnd
parts
of judicial
procedure.
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.
(b)
(c)
(d)
(6) Judicial Deci.sions
In the Philippines, as well as in many other countries,
the
'conflicts"
rules that have been the subject of codal and
special legislation are hopelessly inadequate;hence, the need
for decisionaljurispqudence. IfnderArt. 8 oftheCivil Code of
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
thi s Honorabl e Court establ i sh j uri sprudence
i n thi s
jurisdiction."
Decisions ofsubordinate courts are therefore only
persuasive in nature, and can have no mandatory effect.
However, the Court continued,
'this
does not militate
againsl
the fact that a conclusion or pronouncement of 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 i s even possi bl e that such concl usi on or
pronouDcement may be raised to the status of the doctrine, if
PRELIMINARY CONSIDERATION
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.,
see also Gaw Sin Gee u. Market Master
of tlw Diuisoria Market, et al., CA. 46 O.G. 26IT).
(6)
Internationo.l Customs
Almost all states, in their respective municipal laws,
adhere to certain principles or custons in flgci'ling
s6enflisf,s,'
problems. Among the principles and customs uniformly followed
are the following:
(a)
The
"lex
situs' (Law
9f
the place where the property is
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,e concerned. One iurportant
exception to this rule is whenever property is involved,
in which case it 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 adopted the.lex nationalii.,
(Art.
16, par. 2, Ciuil Cdz).
(d)
In the sphere of cri mi nal l aw, the pri nci pl e
of
'territoriality"
and the principle of
"generalit5/
ar,e usually
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. (See
Art. 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 Code in the following terms: ?enal laws and those
ofpublic security and safety shall be obligatory upon all
who live or sojoun in Philippine territory, "obj""ito the
l 9
20
PHILTPPINE
CONFT,ICT OF TAWS
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:i,,,;.;r
er r.r1f,r.
(a)
Firstly, the plinciples
of puBlic
angrniigoriii
faw.
, - .
(P**Pt:".3'"
th" *el+tieg,gq3lea,to,d.iplomatic
9.ffi?"t"
ang visiqgc heads of 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 knowledge
of o*-"oLtry, the diplomatic
immunity cannot be insiltea upon;and tn" 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.
Reasoned the court::if bases may validly o-e ganted the
Uni ted States under our Consti tuti on,;l t
fol l ows
necessarily that the lesser attribute of jurisdibtion
over
certain offenses may be waived or givenly
law or t e^iy.
Furthermore,
the grant of basu, nu"""r"rily includes tlie^
wai ver of j uri sdi cti on
wi thi n the terms
"""i u""u*
appurtenances
to such bases, and the rQhts incideni
thereto." (Dizon
v.
philrycom,
46 O.G. Supl Wo. t, p. 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
PRELIMINARY
CONSIDERATION
(effective
Aug. 10, 1965
-
Mendez_Blair Exchange of
Notes); and secondly, on the duration of the "gr"ui","i
" (Ramos-Rusk
Exchange of Notes of Sept. 16, 1966 _
decreasing the term of 99 years to 2b years, counted
from Sept. 16, 1966).
However, in an opinion rendered inNovenber,
196g,
then Secretary of Justice
0ater tp become SupremeCourt
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
Congressional action.l
Prior to its abrogation, the position of the
pbilippine
governnent has been that the Amendments referrea to
hereinabove are already EFFECTI\IE, firstly, because the
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 come into 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 recognized as a treaty by the other contractinl State.;
Lawyer-author
Hector S. de Leon in his textbook on
the Neur Philippitu Constitutian avers:
"The
RP.-U.S. Military Bases Agreement
is merelv
an executive agreement entered into betwe"r, tll
President of the Philippines and the hesident
of the
22
PHILIPPINE
CONFLICT OF I..AWS
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 Bases Agreement 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. (See
Art.-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 exgrressly provides 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 become subject
to termi nati on upon oue,year' s noti ce l i y ei tl er
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.the Ramos_
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
b-y holding up the ultimatii quesUon
of whethert'allow
the American continued
...!"" to Ae ffrifippine bases.
PRELIMINARY CONSIDERATION
But, if w-e anticipate such an issue to arise, how is it
going to be resolved?
professor
Edgardo L. Faras, now
associate justice
of the Supreme Court, answeni
the poser
i" {"
booa
"Internatiorral
Law and World Organizations"
in
th!
fo[owing manrrer: l. From the viewpoint of the
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 i nternati onal l egal order demands fai thfui
compliance with the treaty, to avoid international
embarrassnent."
'In
the case of our Constitution, its transitorv
provision on the military bases mentions the MBA expiry
mey{ in passing. It doesn't make a categorial,
black-
and-white dedaration that the MBA shall terminate on
Sept. 16, 1991. Indeed, the provision doesn,t even indicate
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 some senators would 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