Philippine-conflict-of-laws(1).pdf

PHILIPPINE CONFLICT OF LAWS by EDGARDO L. PARAS* Litt., B., LI.B., LI.M., LI.D. Associate Justice, Supreme Court Member, Supreme Court Committee for the Revision o f the Rules of Court Member, Senate Electoral Tribunal Professor of Law and Pre-Bar Reviewer AdeM, SBC, UST, FEU, UE, MLC, SSC, PLS, Lyceum, Arellano, UM and UP Law Center Law Dean, Perpetual Help College o f Rizal Full Professor, UST Graduate School Founder-Consultant, Paras Law Office

EIGHTH EDITION 1996

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To my dearly beloved wife Gloria my loving children Emmanuel, Edgardo, Jr., and Eugene; my caring daughter-in-law Ylva Marie; and my talented grandchildren Yla Gloria Marie and Edgardo III, in all o f whom I have found inspiration and affection — I dedicate this humble work.

PREFACE TO THE 1996 EDITION

This eighth edition (revised) embodies the same format and style as that of the previous ones. Necessarily, the most recent cum relevant decisions, both local and foreign, have been included in synopsis form, for easy understanding. For that matter, the Paras Family would like to extend its gratitude to Dr. Edgardo “Edgie” C. Paras, Jr., a product of the Hague Academy of International Law, for the updating efforts, and also to Mr. and Mrs. Juanito F. Fontelera for the speedy release of this new edition. Manila, Philippines

PREFACE TO THE 1990 EDITION

This book is now on its seventh edition, embodying the same format and style, and made more currently relevant with the addition of the most recent decisions and doctrinal precepts capped by easily-understandable illustrations. For the eventual realization of this new volume, the author hereby values the solicitious help rendered by his son, Dr. Edgardo “Edgie” C. Paras, Jr. (Doctor of Civil Law and Ph.D. in Business), an alumnus of l’Academie de droit international de la Haye, and columnist of Business Star — for invaluable research work done, editing, and styling. Grateful acknowledgment is likewise made to the owners and publishers of Rex Book Store (Mr. and Mrs. Juanito F. Fontelera), for their enthusiasm in making possible the speedy publication of this volume. EDGARDO L. PARAS Padre Faura, Manila Supreme Court of the Philippines June 15, 1990

PREFACE TO THE 1984 EDITION

There is something unusual to be said of Conflict of Laws, Philippine Style, and it is this: the fundamental principles on which the subject is premised hardly undergo any change. Our regard for the sanctity of contracts, the immutability of personal rights and obligations, the proper accord given to status — all these remain the same. One important note has to be made however and this is the complete repeal effective January 1, 1983 of the Usury Law thru Central Bank Circular No. 905. The cause is simple enough: the demeaning of our currency, and the recurrence of economic fiascos experienced in recent years. EDGARDO L. PARAS July 16, 1984

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PREFACE TO THE 1979 EDITION

Our world is troubled anew: Red China has invaded Vietnam ostensibly in “self-defense”, and although she has promised to withdraw her troops, the withdrawal, so breathlessly awaited by Soviet Russia and the United States, has been rather long in coming; Iran has been rocked asunder by a successful religious revolt, but counter-elements, particularly the leftists, and the women non­ conformists, threaten a continuing civil strife; Israel and Egypt continue their mad struggle for alleged self-vindication despite heroic efforts of the American presidency; the Arabs have once again raised the price of oil in a spectacular bid for economic autocracy; and in the meantime, we in our country are poised to suffer the advert of insufferable prices. YET the fundamental tenets of Conflict of Laws remain, unchanged. The rules remain municipal in character domestic in application but universal in aspiration they continue to work for justice and harmony — for the welfare of all people in all parts of the world. EDGARDO L. PARAS Manila, Philippines March 30, 1979

PREFACE TO THE 1976 EDITION

In the last few years, the Philippines has played an increasingly significant role in international affairs: the resurgence of the ASEAN (Association of South East Asian Nations), with President Ferdinand E. Marcos^emerging as the leader non-pareil; the declaration by the “Group of Seventy-seven” of its economic and social faith; the beginning of diplomatic ties with Red China and Soviet Russia. As a direct resultant thereof, our citizens have come in contact with diverse political and legal systems, and with problems in multinational commerce which require for their resolution the application of conflicts rules. It is our fond hope that this modest revised edition will meet the challenge posed by the interplay of these international forces. EDGARDO L. PARAS Manila, Philippines July, 1976

PREFACE TO THE 1973 EDITION

Despite the advent of a new Constitution and the auspicious introduction of essential reforms, the subject of “Philippine Conflict of Laws” has undergone little change in the fundamentals: basically, we still adhere to the nationality theory in matters of status and capacity, and the territoriality principle still lords it over penal disposition of property, whether movable or immovable, still depend on the lex rei sitae; successional rights remain undiminished in the meantime, despite socio-economic overtones of charge; renvoi and characterization continues to be as vexing and fascinating as before. Amendments there has been, however, to the enumeration of those who are considered citizens of the country and to the possession by foreigners and foreign juridical entities of rights apropos our natural and developmental resources: greater incentives have been set up to improve the financial climate and the government has taken pains to ensure more expeditious legal processes whenever foreigners or tourists are concerned. It is ardently to be hoped that with the overhauling of our political traditions and practices, and the resultant improvement in our national discipline, our people may at long, long last find surcease from want and disillusionment. EDGARDO L. PARAS Manila, Philippines October 12, 1973

PREFACE TO THE 1970 EDITION In these days of social ferment, both in our restless native land and in affluent foreign shores, it is perhaps imperative for us to re-examine the validity of hitherto basic international and national institutons. The very existence of society is at stake: we face a future that is uncertain; it is desirable that this uncertainty be minimized. What is the solution? The history of mankind reveals that regardless of ideology, two contending forces have always struggled against each other, namely, LAW and LIBERTY. Ironic as it may seem these two are direct and oppositef contradictories: the uncompromising strictures imposed by law, by their very nature, diminish ever so ceaselessly the liberty of the citizens; upon the other hand, the abuses of misunderstood liberty cause ever so inevitably the death of law and authority. When, at a particular place and at a particular time, the masters of authority have begun to choke even the feeble voices of emotional dissent, the people cry out for freedom; the clamor grows, sometimes in the clandestine secrecy of night, sometimes openly, publicly; when the change demanded is refused, blood-red hands become the answer, and liberty emerges triumphant. BUT then, the time, the veryf protagonists of liberty become abusive; from out of the confusion, anarchy rules; no one is safe, the danger grows, and one day, there will be a cry, deafening, mighty, crushing, for the return of law. When at long, long last law has been restored, there will be peace. But the lull will be short for this power that has returned will again seek to abuse, and the cycle is on. Thus far swung the PENDULUM of history, from the far far right to the far far left to the far far right, and so on ad infinitum. Earlier, I asked what the solution was; it would seem that there can be only one: we, in our country, and throughout the rest of the “civilized” world must learn to enjoy LIBERTY WITHIN THE CONTEXT OF LAW. Only then may we begin to fulfill the “mad, mad dream” of our ancient aspirations. EDGARDO L. PARAS Manila, Philippines July 4, 1970

PREFACE TO THE 1968 EDITION

Whether it be in the pursuit of our daily bread or in the challenging arena of forensic combat, the element of conflict has always intrigued mortal men. Thus it is that even in this jet age of ours, where to be fashionable is to be “mod” and where students live and swear by the “a-go-go” way of life, the study of “Conflict of Laws,” no matter how difficult, no matter how mentally exhausting, continues to be terribly fascinating. This humble treatise is an attempt to simplify the subject. Needless to say, there were many hazards along the way, the most notable of which was, and is the scantiness of pertinent Philippine jurisprudence; The reader will therefore please forgive the author if in the course of his study, he will come across hypothetical problems (with their equally hypothetical solutions) that are virtually explorations into the unknown. The author acknowledges with gratitude the tremendous help that has been offered by previous researchers; he also appreciates the cooperative enthusiasm of those wonderful publishers, Mr. and Mrs. Juanito F. Fontelera, and their nationally known “Rex Book Store.” EDGARDO L. PARAS Manila, Philippines January 2, 1968

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TABLE OF CONTENTS

Chapter I ;....................................................................................... PRELIMINARY CONSIDERATION Introductory Problem, 1; Definition of Conflict of Laws, 1; Elements of the Definition Discussed, 3; Importance of the Subject, 5; Basic Cause for Conflicts Problems, 6; Examples of Diversity in Laws and Interpretations, 6; Scope of Functions of Conflict of Laws, 8; How Conflict of Laws Is Observed, 8; Why Conflict Is Observed, 9; Names Given to the Subject, 9; Conflict of Laws and the Law of Nations (Public International Law) Distinguished, 10; Donald Baer Commander U.S. Naval Base, Subic Bay v. Hon. Tito V. Tizon, L-24294, July 15, 1979, 12; Sources of Conflict of Laws, 13; The Indirect Sources, 14; The Direct Sources, 14. Chapter I I ....................................................................................... WHAT THE TRIBUNALS OF THE FORM MUST DO Alternatives Given to the Court, 25; The Question of Jurisdiction, 25; Gemperle v. Schenker, L-18164, Jan. 23, 1967, 32; Refusal to Assume Jurisdiction, 35; Heine v. New York Insurance Co., 45 Fed. (2d) 426 (1940), 38; Assumption of Jurisdiction, 39; Application of the Internal or Domestic Law, 39; When the Law of the Forum Expressly Provides for the Application of the Internal Law, 40; When the Proper Foreign Law Has Not Been Properly Pleaded and Proved, 43; Philippine Trust Co. v. Bohanan, et al., L-12105, Jan. 30, 1960; 44; Fluemer v. Hix, 54 Phil. 610, 44; In re: Testate ^of Suntay, 95 Phil. 500, 45; Exceptions to the Application of the Proper Foreign Law (Exceptions to the Application of Comity), 46; Querubin v. Querubin, L-3693, 47 O.G. (Supp. 12) p. 316, 49.

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Chapter III THEORIES ON WHY THE FOREIGN LAW MAY IN SOME CASES BE GIVEN EFFECT Introduction, 64; The Theory of Comity, 65; Hilton v. Guyot, 159 U.S. 113, 67; Johnston v. Companie Generale Transatiantique, 242 N.Y. 381, 68; The Theory of Vested Rights, 68; Loucks v. Standard Oil Co. of New York, 225 N.Y. 448, 70; The Theory of Local Law, 71; The Theory of Harmony of Laws, 72; The Theory of Justice, 72; The Right Theory, 73; Collateral Matters, 73. Chapter I V ......................................................... .............................

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THE NATURE AND COMPOSITION OF CONFLICTS RULES Nature of Foreign Judgm ents, 74; Recognition and Enforcement of Foreign Judgments Distinguished, 74; Reasons' for the Recognition and Enforcement of Foreign /'Judgments, 75; Reasons Why Not All Foreign Judgments Can Be Recognized or Enforced in Our Country, 75; Conditions and Requisites Before Foreign Judgments May Be Recognized and Enforced in the Philippines, 76; Illustrative Cases on the Recognition and Enforcement of Foreign Judgments, 78; Sawyer v. Maine Insurance Co., 12 Mass. 291, 78; Cousins Hix v. Fluemer, 54 Phil. 610, 78; Barretto Gonzales v. Gonzales, 58 Phil. 67, 79; Provisions of the Rules of Court on Foreign Judgments, 79; Whose Judgment Is Really Enforced, 80. Chapter V ...................................................................... ..............

81

NATURE AND COMPOSITION OF CONFLICT RULES Nature of Conflicts Rules, 81; Kinds of Conflicts Rules, 82; Composition of Conflicts Rules, 84. Chapter V I ...................................................................................... THE CHARACTERIZATION OF CONFLICTS RULES Introduction to the Concept of Characterization or Classification, 86; Characterization Defined, 87; Factors Which Give Rise to the Problem of Characterization, 87; Steps in Characterization, 88; First Step — The Determination of the Facts Involved, 88; Second Step — The Characterization of the Factual Situation, 89; Third Step — The Determination of the Conflicts Rule Which Is to Be Applied, 90; Fourth Step — The Characterization of the Point of Contact or the Connecting Factor, 91; Fifth Step — The

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Characterization of the Problem as Substantive or Procedural* 93; Sixth Step — The Pleadings and Proving of the Proper Foreign Law, 97; Seventh Step — The Application of the Proper Foreign Law to the Problem, 97; Theories on Characterization, 98. Chapter V I I .....................................................................................

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THE VARIOUS THEORIES ON STATUS AND CAPACITY Status Defined, 100; Capacity Defined, 100; Characteristics of Status, 101; Personal Law, 101; Justification of Personal Law, 102; Defect of Personal Law, 102; The Theories on Personal Law or the Law That Should Govern States and Capacity in General, 102. Chapter V IH ................................................................................... THE NATIONALITY THEORY The Theory Restated, 104; Nationality and Citizenship, 104; Defects o f Nationality Theory, 104; The Three Kinds of Citizens of the Philippines, 105; Two Theories on Whether the Place or Ancestry Determines Citizenship, 106; The Problem of Dual and Multiple Nationalities, 106; Dual Allegiance of Citizens, 109; The Problem of Stateless Individuals, 110; Successional Rights, 110; Where a Declaration of Philippine Citizenship May Be Made, 111; Lorenzo Lim & Juana Alvarez Lim v. De La Rosa, etc., L17790, March 31, 1964, 111; In re: Petition for correction of entry of certificate of birth of the minor, Chua Tan Chuan, L-25439, March 28, 1969, 113; Republic v. Hon. Manolo L. Maddela, L-21664, March 28, 1969, 113; Dugcoy Jao v. Republic, G.R. No. 29397, March 29, 1983, 114; Citizenship o f a foreign Woman Who Marries a Foreigner, 114; Citizenship of a Foreign Woman Who Marries a Filipino, 115; In re: Petition to declare Zita Ngo Burca to possess all the qualifications and none of the disqualifications for naturalization, L-24252, Jan. 30, 1967, 116; Citizens of the Philippines, 119; Roa v. Collector of Customs, 23 Phil. 321, 120; Citizens of the Philippines Under the 1935 Constitution and New Civil Code, 121; Citizens of the Philippines Under the 1987 Constitution, 122; Citizens at the time of the Adoption of the Philippine Constitution (May 14, 1935), 122; Citizens By Virtue of Having Been Elected to a Public Office in the Philippines, 124; Chiongbian v. De Leon, G.R. L-2007, Jan. 31,1949,126; Children of Filipino Fathers, 127; Children

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of Filipino Mothers, 129; Commonwealth Act No. 625, 131; Laureto Talaroc v. Alejandro D. Uy, G.R. L-5397, Sept. 26, 1952,133; Naturalized Filipino Citizens, 134, Naturalization Defined, 134; Presidential Decree No. 1379, 136; Attributes of Naturalization, 140, Tan Ching v. Republic, L-33216, June . 28, 1983, 141; Qualifications for Naturalization, 142; The First Qualification — Age, 143; The Second Qualification — Ten Years Residence, 143; The Third Qualification — Good Morals and Conducts and Belief in the Principles Underlying the Philippine Constitution, 145; The Fourth Qualification — Real Estate or Occupation, 151; Tan Ching v. Republic, L-35216, June 28, 1983; Fifth Qualification — Language Requisites, 155; Sixth Qualification — Enrollment of Minor Children o f School Age, 156; D isqualifications for Naturalization, 158; Comment, 159; Steps in Naturalization Proceedings, 161; The Declaration of Intention, 162; Filing of the Petition for Naturalization, 168; The Hearing of the Petition, 172; Rehearing After Two Years in Case of Approval of the Petition, 174; Republic Act No. 530, 174; Yvanovich v. Republic, L-15998, May 26, 1964, 176; The Taking of the Oath, 180; Cancellation of the Naturalization, 181; How in General Citizenship May Be Lost, 183; How Philippine Citizenship May Be Lost, 186; Willie Yu v. Miriano Defensor Santiago, G.R. No. 83882, Jan. 24, 1989 187; Frivaldo v. COMELEC, 174 SCRA 245,188; Jose B. Aznar v. COMELEC and Emilio Mario Renner Osmena, G.R. No. 83820, May 25, 1990,188; Denaturalization Proceedings, 189; How Philippine Citizenship May Be Reacquired, 189; U.S. Naturalization Law Vis-a-Vis Filipino Veterans. Chapter I X ...................................................................................... THE DOMICILIARY THEORY The Domiciliary Theory Restated, 191; Defects of the Domiciliary Theory, 191; Domicile Distinguished from Citizenship or Nationality, 191; Importance of Knowing Domicile, 192; Definition of Domicile, 193, The Three Kinds of Domicile, 193; Rules for the Domicile or Origin (Domicillium Origins), 193; Rules for the Constructive Domicile (Domicilium Necessarium), 194; Rules for Domicile of Choice, 198; In Re Dorrance’s Estate, 309 Pa. 151, 200; In Re Dorrance’s Estate, 115 N.J. Eq. 268, 200; Velilla v. Posadas, 62 Phil. 624, 201; Gallego v. Vera, 73 Phil. 453, 202; Testate Estate o f Bohanan, L-2105, January 30, 1960, 202; The cases of Imelda Marcos and Agapito “Butz” Aquino, 203; Domicile D istinguished from Residence, 206; Constitutional and Penal Safeguards on Domicile, 207.

Chapter X ......................................... ...............................................

209

THE SITUS OR ECLECTIC THEORY The Situs or Eclectic Theory Restated, 209; Examples, 209. Chapter X I .......................................................... ...........................

211

THE PROBLEM OF THE RENVOI Introduction to the Renvoi Problem, 211; Proposed Solutions, 212; Transmission, 215; Double Renvoi Distinguished from Transmission, 215; Implications of Renvoi and Transmission, 215; Argument in Favor of Each of the Proposed Solutions for Renvoi, 216; Suggested Conclusion, 217; Philippine Law on the Matter, 217; Testate Estate of Amos G. Beilis, et al. v. Edward A. Beilis, L-23678, June 6, 1967, 219. j , Chapter X I I ....................................................................................

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RULES ON STATUS IN GENERAL Synopsis of the Rules on Status in General, 222; In General, 222; The Beginning of Personality of Natural Persons, 223; Ways and Effects of Emancipation, 224; Age of Majority, 225; Use of Names and Surnames, 226; Titles of Nobility, 227; Absence, 227; Presumptions of Death and Survivorship, 227; End of Personality, 230; Legislative Jurisdiction Distinguished from Judicial Jurisdiction, 230; Ybanez de Barnuevo v. Fuster, 29 Phil. 606, 230. Chapter X III............................................................................. ...... MARRIAGE AS A CONTRACT Marriage Defined, 232; The Two Aspects of Marriage, 232; Synopsis of the Rules on Marriage, as a Contract, 233; Marriage as a Contract (In General), 234; Formal Requisites in Marriage in Conflict of Laws, 234; Substantial or Essential Requisites, 235; Marriages Celebrated Abroad Between Filipinos, 236; Illustrative Problems, 236; Marriages Celebrated Abroad Between Foreigners, 237; Mixed Marriages Celebrated Abroad, 239; Marriages Celebrated in the Philippines Between Foreigners, 239; Mixed Marriages in the Philippines, 240; Marriages By Proxy, 240; Distinctions 09 Between the Contract of Marriage and Ordinary Contracts, 241.

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Chapter XIV

243 MARRIAGE AS A STATUS

Synopsis or Rules for Marriage as a Status, 243; Personal Rights and Obligations, 244; Ly Giok Ha, et al. v. Emilio Galang, et al., G.R. No. L-10760, May 17, 1957, 245; Bar Question, 1959, 246; Effect of Change of Nationality, 247; Scope of Personal Relations Between the Husband and the Wife, 247; Duty to Live Together, 247; Duty to Observe Mutual Respect and Fidelity, 249; Duty to Render Mutual Help and Support, 250; Rules on Procedure, 250; Property Relations Between the Husband and Wife, 250; The Matrimonial Property Regimes, 251; Family Code Vis-a-Vis Corporation Code, 251; Immutability of Matrimonial Property Regime Doctrine, 255; Im m utability o f the Regime Distinguished from Mutability of the law, 255; Some Cases, 256; Harden v. Emilio Pena, 48 O.G. 1307, 256; Collector of Internal Revenue v. Fisher, G.R. L-11622, Jan. 28, 1961, 256. Chapter X V .....................................................................................

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ANNULMENT A VOIDABLE MARRIAGE AND DE' IATION OF NULLITY OF A VOID MARRIAGE Synopsis of the Rules on Annulment of a Voidable Marriage and the Declaration of Nullity of a Void Marriage, 258; Annulment Distinguished from Declaration of Nullity of a Void Marriage, 258; Grounds for Annulment or Declaration or Nullity, 259; Illustrative Problems, 260; Proper Courts, 261; Church Annulments and Declarations of Nullity, 261; Psychological Incapacity, 261. Chapter X V I ................................................................................... ABSOLUTE DIVORCE Synopsis of Rules for Absilute Divorce, 263; Absolute Divorce Distinguished from Annulment, 264; Kinds of Divorce, 264; Rules Today for Absolute Divorce, 264; Manila Surety and Fidelity Co. v. Teodoro, L-20530, June 29, 1967, 265; Illustrative Problems, 266; Prevailing Rule Today Re: Marriages Celebrated Abroad and Effect of Foreign Divorce, 269; Imelda Manalaysay Pilapil v. Hon. Ibay-Somero, Hon. Victor and Erick Ekkihard Geiling, G.R. No. 80116, June 30, 1989, 271; Rules on Absolute Divorce Prior to the New Civil Code and the Family Code, 265; Bar Examination Problem — 1958, 279; Bar Examination Problem, 281; xviii

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Japanese Occupation, 281; Validity of Absolute Divorce Obtained on the Philippine Under the Old Laws, 283. Chapter XVII.................................................................................. LEGAL SEPARATION Some Grounds for Legal Separation, 285; Legal Separation Distinguished From Absolute Divorce, 286; Legal Separation Distinguished From Annulment of Marriage, 286; Grounds for Legal Separation, 286; Residence Requirements, 287; Our Internal Laws on Legal Separation, 288; Pastor B. Tenchavez v. Vicente F. Escano, L-19671, Nov. 29,1965, 289; Comment, 293; People v. Schneckenburger, 73 Phil. 413, 294; Ocampo v. Florenciano, L-13553, Feb. 23, 1960, 296; Effect of Death During Pendency of the Case, 301. Chapter XVIII............................................................. ................... PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP, AND FUNERAL Synopsis of the Pertinent Conflicts Rules, 302; Paternity and Filiation Defined, 303; Conflicts Rules on Paternity and Filiation, 304; Philippine Internal Rules on Legitimation and Recognition, 305; Doctrine of Immutability of Status, 306; Definition and Purpose of Adoption, 306; Conflicts Rules on Adoption, 307; People v. Judge Tolentino, G.R. 94147, June 8, 1994; 307; Joseph K. Katancik v. Republic, L-15472, June 30, 1962, 309; Ching Leng v. Galang, G.R. No. L-11931, Oct. 27, 1958, 311; Validity of Foreign Decrees Respecting Adoption, 313; Guardianship, 314; Guardian Over the Person, 314; Guardian over the Property, 314; General Guardians, 314; Guardianship Rules in the Philippines, 315; Bar Question — 1959, 315; Funerals, 316. Chapter X I X .................................................... ............................... REAL AND PERSONAL PROPERTIES Synopsis of Conflicts Rules on Property, 318; Real Property, 322; Scope of the Rules in Case of Real Property, 322; Swank v. Hufnagle, 111 Ind. 453; 323; Exceptions to the Rule in the Case of Real Property, 324; The Rules for Personal Property, 327; Rationale for the Doctrine as Applied to Personal Property, 327; Scope of the Theory for Personal Property, 328; ‘Chose’ Defined, 329; Choses in Possession That Usually Move, 330; Bar Question — 1953, 330; Intangible Personal Property (Choses in Action), 331; Filipino Society of

Composers, Authors and Publishers v. Tan, G.R. No. 36401, March 16, 1987, 341. Chapter X X ............................................................................ ........ WILLS, SUCCESSION, AND ADMINISTRATION Synopsis of Conflicts Rules, 344; Extrinsic and Intrinsic Validity of Wills in General, 347; Extrinsic Validity of Joint Wills, 347; Intrinsic Validity of Wills, 348; Philippine Trust Co. v. Bohanan, et al., G.R. L-12105, Jan. 30, 1960, 349; Miciano v. Brimo, 50 Phil. 867, 350; Bar Question — 1960, 351; Testate Estate on Amos G. Beilis, et al. v. Edward A. Beilis, L-23678, June 6, 1967, 352; Theories on the Proper Law for the Transmission of Successional Rights, 354; Capacity to Succeed, 355; Revocation of Wills, 355; Interpretation of the Words of a Will, 356; Effect of Change of Nationality of the Testator, 357; Caduciary Rights, 357; In the Estate of Musuros (1936), 2 All E.R. 1666, 358; Probate, 359; Probate of Wills Executed Abroad, 360; Administration of Estate of Deceased Persons, 361; Conflict Rules on Administration, 364; Testate Estate of Idonah Slade Perkins; Renato Tayag v. Benguet Consolidated, Inc., L-23145, Nov. 29, 1968, 366; Trusts, 367. Chapter X X I .....................................................

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OBLIGATIONS AND CONTRACTS Synopsis of Conflicts Ruies, 370; Conflicts Rules for Specific Contracts, 371; Definition of Obligations and Contracts in General, 373; From the Viewpoint of Conflict of Laws, 374; Formal or Extrinsic Validity, 375; Bar Question — 1953, 377; Capacity of the Parties, 378; Insular Government v. Frank, 13 Phil. 236; 378; Suggestions for the Conflicts Rule on the Capacity in General, 380; Intrinsic Validity of Contracts, 380; Molina v. De la Riva, 6 Phil. 12, 382; Companie de Commerce, etc. v. Hamburg-Amerika, etc. 36 Phil. 590, 383; Bar Question — 1966, 385; Conflicts Rules for Specific Contracts, 385; Bar Question — 1966, 386; Bar Question — 1966, 386; Philippine Banking Corporation, representing the Estate of Justina Santos v. Canon, Faustino v. Lui She, administratix of the Intestate Estate of Wong Hong, L-17587, Sept. 12, 1967, 387. Chapter XXII...................... .................................................. ........ TORTS (QUASI DELICTS) Synopsis of Conflicts Rules, 390; Tort Defined, 390; Liability and Damages for Torts in General, 391; Characterization of

the Locus Delicti, 392; Special Rules, 393; Some Cases, 394; Morrisette v. Can Pac. R. Co., 76 VT. 267, 394; Le Forest v. Tolman, 177 Mass. 109, 394; Enforceability of Foreign Torts in the Philippines, 395; Slater v. Mexican National Railway Co., 194 U.S. 120, 396; Application By Philippine Courts of the Proper Lex Loci Delicti Commissi, 397. Chapter X X III............................ .............................. ...................

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CRIMES Synopsis of Conflicts Rules, 399; Crimes Defined, 401; Crimes Distinguished From Torts, 402; Sim ilarities, 402; Characterization, 403; Theories as to What Court Has Jurisdiction to Try Criminal Cases (Theories on ExtraTerritorial Competence), 403; Illustrative Examples of the Aforementioned Theories, 406; The Philippine Theory in Criminal Law, 407; Illuh Asaali, et al. v. Commissioner of Customs, L-24170, Dec. 16, 1968, 408; Query, 409; Crimes Committed Aboard Public Vessels, 409; Crimes Committed Aboard Private or Merchant Vessels, 410; Bar Question — 1961, 411; The Philippine-United States Military Bases Agreement, 412; The 1987 Constitution on the RP-US Military Bases Agreement, 415; The Mutual Defense Board, 415. Chapter XXTV................................................................................ JURIDICAL PERSONS Synopsis of Conflicts Rules, 416; Corporation Defined, 420; Theories on the Personal or Governing Law of a Corporation, 420; The First Theory, 420; The Second Theory, 421; The Third Theory, 421; Exemplification of the Theories, 421; Theory Followed in the Philippines, 421; Pedro R. Palting v. San Jose Petroleum, Inc., L-14441, Dec. 17, 1966, 423; Filipinas Insurance Co. v. Christern Huenefeld & Co., L2294, May 25, 1951, 424; The ‘Grandfather Rule’, 426; What the Personal Law of the Corporation Governs, 426; Phil. Association of Free Labor Unions (PAFLU) et al. v. Sec. of Labor, et al., L-22228, Feb. 27, 1969, 427; Validity of Corporate Acts and Contracts, 429; Right to Sue and Amenability to Court Processes, 429; Bar Question — 1955, 433; Bar Question — 1957, 433; Wang Laboratories, Inc. v. Mendoza, G.R. No. 72147, Dec. 1, 1987, (First Division), 434; Manner and Effect of Dissolution, 438; Domicile of a Corporation, 439; Receivership of a Corporation, 439; Partnerships, 439; Conflict Rules on Partnerships, 439; Receivership of a Partnership, 441; Domicile of a Partnership, 442; Foundations, 442; Taxation of Juridical Persons, 442. xxi

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Chapter XXV

445

A BRIEF HISTORY OF CONFLICT OF LAWS Ancient Rome, 445; The Edict of Caracalla (212 A.D.), 445; The Coming of Barbarians, 445; The Return to Territorial Law, 446; Two Jurists From France, 447; The Dutch Theory of Territoriality and Comity, 448; Writers of the 19th and 20th Centuries, 449.

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PHILIPPINE CONFLICT OF LAWS Chapter I PRELIMINARY CONSIDERATION

INTRODUCTORY PROBLEM If in a moment of deep infatuation, a Filipino gets married in Vietnam to a lovely, midi-skirted female from strife-torn Haiti, the following questions may rightfully be asked: The law of which country will govern the validity of the marriage? Which particular legal system will govern their personal rights and obligations as husband and wife, assuming the marriage to be valid? How about their matrimonial property relations? The responses to these legal interrogations will, insofar as we are concerned, depend, to a very great extent on the application of what shall be referred to in this humble treatise as Philippine Conflict of Laws (otherwise called Philippine Private International Law). As fittingly pointed out by Prof. Robert A. Leflar, a former Justice of the Supreme Court of Arkansas, “any case which involves facts occurring in more than one state or nation, so that in deciding the case, it is necessary to make a choice between the laws of the different states or countries, is a conflict of laws case.” (Leflar, The Law o f Conflict o f Laws, p. 1).

DEFINITION OF CONFLICT OF LAWS In the second (1880) edition of his well-known “Private International Law,” Westlake begins his discussion as follows: l

PHILIPPINE CONFLICT OF LAWS

2

“Private International Law is that department of national law which arises from the fact that there are in the world different territorial jurisdiction possessing different laws.” The definition obviously leaves much to be desired: while it indicates the basic cause of “conflicts” problems, nowhere does it show a rule of action or conduct. We venture to suggest the following definition: CONFLICT OF LAWS (OR PRIVATE INTERNATIONAL LAW)" IS THAT PART OF THE MUNICIPAL LAW OF A STATE WHICH DIRECTS ITS COURTS AND ADMINIS­ TRATIVE AGENCIES, WHEN CONFRONTED WITH A LEGAL PROBLEM INVOLVING A FOREIGN ELEMENT, WHETHER OR NOT THEY SHOULD APPLY A FOREIGN LAW OR FOREIGN LAWS. There are in this definition four (4) important elements, namely: (1)

Conflict of laws is part of the municipal law of a state;

(2)

There is a directive to courts and administrative agencies;

(3)

There is a legal problem involving a foreign element;

% (4) Finally, there is either an application or a non-application of &foreign law or foreign laws. Before We discuss the elements hereinabove enumerated, quoted hereunder are the definitions of the subject given by outstanding authorities. (1) GOODRICH — “It is that part of the law which deals with the extent to which th| law of a state operates, and determines whether the rules of one or another state should govern a legal situation. A conflict of laws problem is presented whenever a legal controversy arises in which there is a foreign element.” (H.F. Goodrich, Conflict o f Laws, 3rd Edition, 1949, p. l). (2) CHESHIRE — “Private International Law is that part of law which comes into play when the issue before the court affects some fact, event, or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system.” (G.C. Cheshire, Private International Law, 3rd Edition, 1947, p. 6). (3) MINOR — “Conflict of laws embraces those universal principles of right and justice which govern the courts of one state

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having before them cases involving the operation and effect of the laws of another state or country.” (R.C. Minor, Conflict o f Laws, 1901, p. 4). (4) AMERICAN RESTATEMENT - "That part of the law of each state which determines whether in dealing with a legal situation the law of some other state will be recognized, be given effect, or be applied is called conflict of laws.” (American Restatement o f Conflict o f Laws, p. 2).

ELEMENTS OF THE DEFINITION DISCUSSED (1)

Conflict o f Laws Is Part o f the Municipal Law o f 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 conflict of laws of the Philippines is different from its counterpart, say in France or Japan or Cuba or England. Similarly, American conflict of laws differs in the various states of the American Federal Union. And precisely because the subject is “part of the municipal law,” it is NOT international in character. It is however given the appellation of INTERNATIONAL 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 CONFLICT OF LAWS as that part of,the municipal law of the Philippines which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not they should apply a foreign law or foreign laws.

(2)

The Direction to Courts and Administrative Agencies It is the judicial tribunals of a country that ultimately are called upon to decide or resolve “conflicts” problems. Various administrative agencies of the state, such as the Department of Foreign Affairs, the Bureau of Immigration, the Securities and Exchange Commission, and the like also decide PRELIMINARILY a given controversy involving a ^foreign factor.

(3)

A Legal Problem Involving a Foreign Element In an existing situation premised on certain facts, a “foreign element” has to be present before the matter can be

4

PHILIPPINE CONFLICT OF LAWS

considered a “conflicts” problem. Eliminate the “foreign element” and the problem is obviously NOT a question calling for private international law. If a Cebuana marries a Tagalog in Ilocos Norte, the priest being a resident of the Visayan region, what law governs the validity of the marriage? In this problem, there is NO foreign element that comes into play; verily, it is not one calling for the solutions offered by Philippine conflict of laws. Make the groom, however, a gigolo from Japan, or make the blushing bride a/mestizilla” from France, or let the wedding take place somewhere in the hinterlands of Afghanistan, and immediately, a problem in conflict of laws, will arise, namely: “the law of which country governs the validity of the marriage contract, assuming that indeed a marriage has really taken place?” As has been well-stated by Prof. Minor, “if the transaction in question arises wholly within a single state, all the parties interested having been, and continuing to be, domiciled and actually present there (and we may add, all nationals of the very same state), the question being raised there also, no foreign element exists to cause any interference with the usual and regular enforcement of the domestic municipal law by the domestic tribunals. There is no room in such a case for the application of the rules of Private International Law.” (Minor, Conflict o f Laws, p. 4). But, gravely warns Cheshire, “the moment a case is seen to be affected by a foreign element, the court must look beyond its own internal law, lest the relevant rule of the internal system to which the case most appropriately belongs, should happen to be in conflict with the forum. Private International Law comes into operation, therefore, whenever the Court has a suit before it that contains a foreign element.” (Cheshire, Private International Law, p. 3). (4)

The Application or Non-Application o f a Foreign Law or Foreign Laws When our courts are confronted with a “conflicts” problem over which they may have jurisdiction (and are willing to assume such jurisdiction), the solution will have to be found in the applicatoin of either the LOCAL law or FOREIGN law. In a good number of cases, our courts will discover, perhaps to their dismay, that they have no alternative except to apply directly Philippine internal law in the resolution of the problem

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(as 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 into and applied. This later alternative becomes particularly urgent when our own law, by reason of justice or convenience or plain common decency, commands our tribunals to apply the law or laws of a foreign state. For the purpose of our subject, the phrase “foreign system of law” may include not only the law of foreiign states (as the word “states” is understood in the national or political sense) but also the law of political subdivisions which have their own legal system (for example: insofar as the state of California is concerned, the laws of New York or Hawaii or Texas are “foreign laws”). (See Graveson, Conflict o f Laws, p. 4). Parenthetically, the question may be asked: in applying the law or a foreign state, does not a sovereign state recognize the superiority of another state? In recognizing the principles of a foreign legal system, do we not implicitly admit the inadequacy of our own jurisprudence? Professor Raleigh C. Minor has a ready response: It is to be observed that the rules of Private International Law do not derive force from a power superior to the sovereign states which recognize and enforce them. On the contrary, the very essence of a sovereign state is that it has no superior. It is one of the fundamental principles of this branch of the law that each sovereign state is supreme within its own limits. It is, therefore, within the power of such state at any time to exclude any or all foreign laws from operating within its borders. To the extent that if it cannot do this, it is not sovereign. Hence, when effect is given to a foreign law in any territory, it is only because the municipal law of that state temporarily abdicates its supreme authority in favor of the foreign law, which for the time being, with reference to that particular matter, becomes itself, by will of that state, its municipal law.” (R.C. Minor, Conflict of Laws, 1991, pp. 5-6).

IMPORTANCE OF THE SUBJECT With the advent of information superhighway, conflict of laws has assumed increasing importance. For instance, two individuals, nationals and domiciliaries of two different states may in the space of a few hours, engage in a mercantile transaction over chattels

6

PHILIPPINE CONFLICT OF LAWS

still to be manufactured in a third state, and to be delivered at a given port of a fourth state. Should legal complications ensue, which of the countries involved will have jurisdiction over the case, and which state’s laws will be applicable? Briefly stated, we may say that the subject is important in order: (a)

to adjust conflicting rights in international, mercantile and corporate transactions; and

(b)

tp solve personal, family, property, and successional, contractual problems, possessed of facts or elements operating in two or more states.

BASIC CAUSE FOR CONFLICTS PROBLEMS “Conflicts problems” come into being through variance in the municipal laws of the countries involved. Indeed, the sad truth is that there is a “multiplicity of governments with separate legal systems.” (Leflar, op. cit., p. 13). As a matter of fact, a single state, such as the United States or Switzerland, may even have territorial subdivisions (also referred to as states), each of which has its own internal or local legislation; in other states, such as India (prior to its partition), different systems^of law may govern different classes: one system may apply exclusively to Mohammedans; another system, to the Hindus. And even assuming that the laws in various countries are uniformly the same, still different municipal tribunals may give identical laws varying interpretations. This is no surprising. Municipal legislation, by its very nature, tends to be diverse becauge each group of people is virtually a nation in itself, with a culture, a language, and a religion peculiarly its own: with varying moods and national tempers; with distinctive customs, traditions, ideals and beliefs.

EXAMPLES OF DIVERSITY IN LAWS AND INTERPRETATIONS (1)

In the Matter o f Wills In the Philippines, oral wills are not allowed; in Massachusetts, U.S.A., an oral will is valid only if executed by soldiers in actual service or by mariners at sea and only with

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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 the Matter o f Marriage In the Philippines and in America, monogamy is practised; in Moslem countries, a man 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 recognize marriages “mortis causa” (effective after death) as when, for sentimental reasons, a girl is married to the corpse of her lover. In the Philippines, we give effect only to marriages in “articulo mortis” (at the point of death).

(3) In the Matter o f Divorce The Civil Code of the Philippines 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. (4) In the Matter of Income Tax Exemptions 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 tax, not as judges but as private citizens. In the Philippines, under the 1935 Constitution, salaries of members of the judiciary were exempt from income taxation on the premise that a contrary rule would result in the diminution of the salaries, and would, therefore, contravene the Constitution. Be it noted, however, that under both the 1973 and 1987 Constitutions, this exemption has been eliminated. Thus, in Nitafan v. Com. of Internal Revenue, G.R. No. 78780, July 23, 1987, the Supreme Court held that “the true intent of the framers of the 1987 Constitution . . . was to make the salaries of the members of the Judiciary taxable.”

PHILIPPINE CONFLICT OF LAWS

8

SCOPE OF FUNCTIONS OF CONFLICT OF LAWS G.C. Cheshire states the scope and three-fold functions of Conflict of Laws in the following manner: “(1) To prescribe the conditions under which the court is competent to entertain such a suit; “(2) To determine for each class of cases the particular territorial system of law by reference to which the rights of the parties must be ascertained; “(3) Torjspecify the circumstances in which a foreign judgment can be recognized as decisive of the question in dispute.” (Cheshire, Private International Law, p. 3). In other words, the three (3) specific aims of functions are: (1)

the determination of which country has jurisdiction;

(2)

the applicability to a particular case of either the local or the foreign law;

(3)

the determination of the force, validity and effectiveness of a foreign judgment.

Thus, three questions, present themselves: the question, firstly, of jurisdiction; the question, secondly, of choice o f law; and the question, finally, of applicability o f a foreign judgment. Of the three undoubtedly the most important is the choice of law. Let us suppose that a Filipino movie star goes to Reno, Nevada, and obtains a decree of absolute divorce from his Filipino wife. Let us further suppose that three years later the Filipino wife sues in Manila for support from said husband. Three questions will confront the Filipino judge. Firstly, does he have jurisdiction over the case? Secondly, what law will he ajjply in determining whether or not a proper cause of action exists — shall it be Nevada law or Philippine law? Thirdly, should he recognize as valid and binding in the Philippines the reno divorce decree?

HOW CONFLICT OF LAWS IS OBSERVED (1) States may observe conflict of laws by complying faithfully with its “conflict rules” (rules of Private International Law). The rules must be applied to the end that justice will be served. Moreover, states must, insofar as is practicable try to harmonize their own rules of equity with the legislation and jurisprudence in other lands.

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(2) Private individuals may in their own way abide by our conflicts rules by observing them and by complying with judicial decisions on the subject. Furthermore, fairness 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 marriage in the Philippines of Filipino first cousins. If the first cousins get married, say, in California (where such marriages are legal and binding), their attempt at an evasion would be futile since under the explicit provisions of Art. 37 of our Family Code, such a marriage, even if valid in the place of celebration, cannot be countenanced in this country for the simple reason that it is “incestuous,” as determined by Philippine law.

WHY CONFLICT OF LAWS IS OBSERVED (1) States must of necessity observe the subject because it is part of their own municipal law. Surely, a government, anywhere and anytime, is duty bound to enforce and respect its own municipal legislation. (2) Upon the other hand, individual citizens observe it because of fear of municipal sanctions. For instance, the marriage which they may have so enthusiastically entered into may by one judicial stroke be tom 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 Two different schools of thought give various appellations to the subject: on the one hand, the school emphasizing the “international” angle call it “Private International Law” (also: “International Private Law,” “Civil International Law,” “Extraterritorial law.” “Private Law of Nations,” “Private Law of Foreigners,” “The Extraterritorial Recognition of Rights,” “The Law of Strangers,” “The Theory of the Extraterritorial Authority of Laws”). Upon the other hand, the other school stresses the “conflict” angle, and the principal name given by this group is “Conflict of Laws” (also: “Collision of Laws,” “Conflict of Statutes,” “Choice of Law”). „ Incidentally, it should be observed that the name “Private International 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:

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PHILIPPINE CONFLICT OF LAWS

(1)

Firstly, it stresses the “conflict,” whereas the principal objective of the subject is precisely to resolve or eliminate said “conflict.”

(2)

Secondly, there may be no conflict at all in the laws themselves: the “conflict may exist only in the mind of the judge who, unsure of himself, and bereft of judicial maturity, may hesitate and find himself confused.

(3)

Thirdly, aside from the existence of a conflict of laws, there may also be a conflict of jurisdiction, and a conflict ,*nay 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 semantics involved can serve no useful purpose. The significant thing to bear in mind is the stress underlying each phrase. The only reason we have used the name “Conflict of Laws” for this book is the fact it is the official name given both by our Department of Education, Culture and Sports/Commission on Higher Education and our own Supreme Court (insofar as the Bar Examination is concerned).

CONFLICT OF LAWS AND THE LAW OF NATIONS (PUBLIC INTERNATIONAL LAW) DISTINGUISHED CONFLICT OF LAW (1) municipal in character

BASIS Nature

LAW OF NATIONS (1) international in character

(2) dealt in by Persons private indivi­ Involved duals

(2) the parties involved are sovereign states and other entities possessed of an international personality, such as the United Nations Organization

(3) transactions are Transactions private ones Involved between private individuals

(3) transactions are entered into which generally affect public interest; those which in general are of

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interest only to sovereign states (4) the remedy here Remedies or is to resort to Sanctions municipal tribu­ nals

(4) the rem edies may be peaceful or forcible. Peace­ ful rem edies include diplomatic negotiation, tender and exercise of good offices, mediation, inquiry and conciliation, arbitration, judicial set­ tlem ent by the Inter­ national 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 diplo­ matic relations, retor­ sions, reprisals, embargo, boycott, non-intercourse, pacific blockades, collect­ ive measures under the U.N. Charter, and finally war.

The distinctions 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 Thought, 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 maintain, can act onjy 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:

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(1)

The question of citizenship and nationality is properly a part of both subjects: part of the Law of Nations in the sense that a state’s observance of it depends primarily on the actuations of the citizenry; and part of Conflict of Laws for oftentimes it is the law of the citizenship or the law of the nationality that should govern a person’s capacity and status.

(2)

While generally a state may resolve a “conflicts” problem freely, and even use its own internal law exclusively in ^deciding a given situation, still, should there be a treaty obliging a state to apply foreign law to certain cases, the state is of necessity compelled to abide by such treaty. (See Hans Kelsen, Principles of International Law, p. 257).

(3)

Under both subjects, if State A should recognize the government of State B, the latter is automatically given permission 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 defendant in a foreign country. For if the rule were otherwise, aside from the fact that an insult against a sovereign state has been made, how can the judgment ever be effectively enforced? (See Max Wulfsohn, et al. vs. Russian Socialist Federated Soviet Republic, United States o f Appeals o f New York, 1923). However, if a recognized state is given permission to sue in another, a counterclaim (whether compulsory or permissive) may be filed against the former. A contrary rule will be eminently unfair. Donald Baer Commander U.S. Naval Base, Subic Bay vs. Hon. Tito V. Tizon L-24294, July 15, 1974 FACTS: If a Filipino is granted a timber license may he conduct a logging operation within a U.S. Military Base when the U.S. Base Commander refuses to grant him permission to do so? HELD: (thru Mr. Justice, later to become Chief Justice Enrique M. Fernando): No, he cannot conduct such a logging operation. To sue the Base Commander (to compel the allowance of the operation) would amount to a suit against the U.S. Government. This cannot be

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done in view of the principle of state immunity from suit. True, the Base Commander does not possess diplomatic immunity (and he may, therefore, be proceeded against in his personal capacity, or when the action taken by him cannot be imputed to the government 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 Commissions and Administrative Bodies Have A Distinct Juridical Personality Independent o f the Municipal Law of the State Southeast Asian Fisheries Development Center Aquaculture Department v. National Labor Relations Commission G.R. No. 86773, Feb. 14, 1992 Permanent international com m issions and administrative bodies have been created by the agreement of a considerable number of States for a variety of international purposes, economic or social and mainly non-political. Among the notable instances are the International Labor Organization, the International Institute of Agriculture, and the International Danube Commission. Insofar as they are autonomous and beyond the control of any one State, they have a distinct juridical personality independent of the municipal law of the State where they are situated. As such, they must be deemed to possess a species of international personality.

SOURCES OF CONFLICT OF LAWS There are indirect and direct sources of Conflict of Laws. «There are two indirect sources: the natural moral law, and the works of writers. There are six direct sources: constitutions, codifications, special laws, treaties and conventions, judicial decisions, and international customs.

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THE INDIRECT SOURCES (1)

The Natural Moral Law The natural moral law is that rule of human conduct implanted by God in our nature and in our conscience, urging us to do whatever is right and avoid whatever is evil.

(2)

Works o f Writers Among the famous writers on the subject may be cited the fallowing: (a) (b) (c) (d) (e) (f) (g) ■(h) (i) (j) (k)

Westlake — “Private International Law” Falconbridge — “Essays on the Conflict of Laws” E. Rabel — “The Conflict of Laws” J. Story — “Commentaries on the Conflict of Laws” H.F. Goodrich — “Conflict of Laws” G.C. Cheshire — “Private International Law” J.H. Beale — “Conflict of Laws” R.C. Minor — “Conflict of Laws” W.W. Cook — “Legal and Logical Bases of the Conflict of Laws” E.G. Lorenzen — “Cases on Conflict of Laws” Graveson — “Conflict of Laws”

The above-mentioned legal scholars are considered sources (indirect) of Conflict of Laws insofar as their writings have influenced judicial decisions on the subject.

THE DIRECT SOURCES (1)

Constitutions In Philippine Conflict of Laws, the Philippine Constitution plays a fundamental part. For instance, it enumerates the citizens of the Philippines. (Art. IV, 1935 Constitution; Art. Ill, 1973 Constitution and Art. IV, 1987 Constitution). Also Art. XII, Sec. 2 of the 1987 Constitution is explicit, reading in part: “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of

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natural resources shall be under the full 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 citizens, or corporations or associations at least sixty per 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-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.” Recall that under the Parity Amendment to the 1935 Constitution, the patrimonial rights referred 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 President of the Philippines and the President of the United States and entered into on July 4, 1946 did not continue beyond July 3, 1974. In Pedro R. Palting v. San Jose Petroleum, Inc., (L-14441, 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, reciprocal rights are granted Filipino citizens (whether natural or juridical). After the expiration of Parity Rights, the Government decided to grant American entities a grace period ending May, 1975 whereby lots acquired by them would either be actually disposed of, or made the subject matter of plans 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 family dwelling purposes before July 3, 1974 permission to continue holding such lands (up to 5000 square meters only, however) and to transfer their ^ownership to qualified persons and entities. These three (3) types of American citizens are the following: 1)

those who were formerly Filipino citizens;

2)

those who have become permanent residents of the Philippines; and

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16

3)

those who have resided in the Philippines continuously for at least twenty (20) years.

Then President Ferdinand E. Marcos pointed out that these properties had been acquired in GOOD FAITH, in the honest belief that such properties could be held even after the expiration of parity. Under the 1973 Constitution, titles of American citizens to the private lands are void as against the Government but valid as against private persons. With this new decree, according to Mr. Marcos, these three types of American citizens are granted “special consideration and compassion” in the interest of justice. Meanwhile, with the advent of the 1987 Constitution, “lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or grant. Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor.” (Art. XII, Sec. 3, The 1987 Phil. Const.). (2)

Codifications The Civil Code of the Philippines, which took effect on August 30, 1950 (Lara v. Del Rosario, G.R. L. 6339, 50 O.G. 1957), contains several important articles on Philippine Conflict of Laws, the most fundamental of which are Articles 15, 16, 17, 66, 71, 99,124, 815, 816, 817, and 819. The other provisions will be enumerated in detail in the subsequent pages. The Philippine Code of Commerce which is really the Code of Commerce of Spain (extended to the Philippines by Royal Decree of August 6, 1888, and effective here beginning

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December 1, 1888) also contains some provisions on “conflicts” problems. One such provision is Art. 15. In other countries mention may be made of:

(3)

(a)

The French Napoleonic Code of 1804 which stressed the “nationality” theory. (Said theory has tremendously 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 national law of the father.

(c)

The Civil Code of Switzerland of 1907, which provides among others that although capacity to contract is governed by the national law of the person concerned, still if the transaction is effected in Switzerland, the foreigner may be considered capacitated if he be so considered under either his own law or Swiss law.

Special Laws Among Philippine legislation dealing 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 (Bangko Sentral Act). These laws regulate, for instance, the treatment of foreign insurance companies, the reciprocal privileges in the matter of patents, the requisites before an alien may obtain a copyright, the conditions under which alien retail trade may still continue, and the grant of incentives to foreign investors.

(4)

Treaties and Conventions

Some countries are parties to certain treaties which « embody “conflicts” rules; the rules are therefore binding on the courts of the signatories concerned. Among the most important conventions on the matter are: (a)

The European Hague Conventions of 1896, 1902, and 1905. Among the rules chosen were those concerning the

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18

validity of marriage and marriage contracts, their effects on property and status, divorce and judicial separation, guardianship o f minors and persons under civil interdiction, testamentary and intestate succession, and parts of judicial procedure.

(5)

(b)

The Geneva Conventions of 1823, 1926, 1930, and 1931. They dealt with arbitration and foreign arbitral awards; and matters concerning negotiable instruments.

(c)

The Treaties of Montevideo of 1899 (revised in 1940). •Here, the countries of South America adhering to the domiciliary theory (as distinguished from the nationality theory) agreed on rules concerning domicile, property, ju rid ical acts, marriage settlem ent, succession, prescription, jurisdiction, commercial law, maritime law, bills of exchange, and the like.

(d)

The Codigo Bustamante of 1898 — which was entered into by American states following the nationality theory, and which gave rules on practically all aspects of Conflict of Laws.

Judicial Decisions 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 decisional jurisprudence. Under Art. 8 of the Civil Code of the Philippines, “judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines.” Judicial decisions, though not laws, are indeed evidence of what the laws mean. The decisions referred to are those enunciated by the Supreme Court. Thus, our Supreme Tribunal, in Miranda, et al. v. Imperial, et al. (77 Phil. 1066), categorically stated that “only the decisions of this Honorable Court establish jurisprudence in this jurisdiction.” Decisions of subordinate courts are therefore only persuasive in nature, and can have no mandatory effect. However, the Court continued, “this does not militate against the fact that a conclusion or pronouncement of the Court of Appeals which covers a point of law still undecided in the Philippines may still serve as a juridical guide for the inferior courts. It is even possible that such conclusion or pronouncement may be raised to the status of the doctrine, if

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after it has been subjected to test in the crucible of analysis and revision, the Supreme Court should find that it has merits and qualities sufficient for its consecration as a rule of jurisprudence.” (Ibid., see also Gaw Sin Gee v. Market Master o f the Divisoria Market, et al., C.A. 46 O.G. 2617). (6)

International Customs Almost all states, in their respective municipal laws, adhere to certain principles or customs in deciding “conflicts” problems. Among the principles and customs uniformly followed are the following: (a)

The “lex situs” (law of the place where the property is situated) governs almost everything that concerns real property: formalities for their alienation, the capacity to encumber or otherwise dispose of them, and so forth. In the Philippines this rule applies to both real and personal property. (Art. 16, par. 1, Civil Code).

(b)

The “lex loci celebrationis” (law of the place of celebration or execution) governs generally all transactions insofar as formalities or solemnities are concerned. One important exception to this rule is whenever property is involved, in which case it is the lex situs that should control. (Art. 17, par. 1, Civil Code).

(c)

Either the “lex nationalii” or the “lex domicilii” (the national law or the domiciliary law) of the deceased governs the successional rights to his estate. In our country, we have expressly adopted the “lex nationalii.” (Art. 16, par. 2, Civil Code).

(d)

In the sphere o f crim inal law, the principle of “territoriality” and the principle of “generality” are usually fundamental maxims. Under the rule of “territoriality 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 exceptions to this rule. (See Art. 2, Revised Penal Code). This principle of “generality” states that the criminal laws of a country bind both the citizens and the aliens who are in the said country or territory. This principle is enunciated in our Civil Code in the following terms: “Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the

PHILIPPINE CONFLICT OF LAWS

principles of public international law and to treaty stipulations.” (Art. 14, Civil Code). It should be noted that aliens whether male or; female come under our territorial jurisdiction. This is because aliens, while in our country, owe some sort of allegiance, even if it be temporary. Parenthetically, it will be observed that Art. 14 of the Civil Code in dealing with the principle of “generality” recognizes two exceptions: (a) 'Firstly, the principles of public international law. (Examples are the immunities granted to diplomatic officials and visiting heads of foreign states provided that the latter do not travel incognito. If they travel incognito but with the knowledge of our government officials, heads of states are entitled to immunity. If the incognito travel is without the knowledge of our country, the diplomatic immunity cannot be insisted upon, and the heads of states thus travelling may be arrested for the commission of a crime. However, once they reveal and prove their identity, immunity is given.) (b)

Secondly, the presence of treaty stipulations. Thus, we had, for instance, the now abrogated Philippines-United States Military Bases Agreement of March 14, 1947, which contained some provisions exempting certain members of the armed forces of the United States from the jurisdiction of our courts. (See 43 O.G. No. 3, pp. 1020-1034). Incidentally, the Supreme Court held that the bases agreement is constitutional. Reasoned the cgurt: if bases may validly be granted the United States under our Constitution, it follows necessarily that the lesser attribute of jurisdiction over certain offenses may be waived or given by law or treaty. Furthermore, the grant of bases necessarily includes the waiver of jurisdiction within the terms “necessary appurtenances to such bases, and the rights incident thereto.” (Dizon v. Philrycom, 46 O.G. Sup. No. 1, p. 68; see also Miquiabas v. Com. Gen. Phil. Ryukus Command, U.S. Army, G.R. L-1988, Feb. 24, 1948). The Agreement had already undergone various amendments: firstly, on the extent of criminal jurisdiction

PRELIMINARY CONSIDERATION

21

(effective Aug. 10, 1965 — Mendez-Blair Exchange of Notes); and secondly, on the duration of the agreement (Ramos-Rusk Exchange of Notes of Sept. 16, 1966 — decreasing the term of 99 years to 25 years, counted from Sept. 16, 1966). However, in an opinion rendered in November, 1968, then Secretary of Justice (later to become Supreme Court ChieiJ Justice) Claudio Teehankee, ruled that the amendments are not yet in force for lack of Senate concurrence. [Ironically, the United States Government has considered the amendments as already effective on the theory that the Bases Agreement (together with all amendments thereto) is not a treaty, but a mere President Executive Agreement, which does not necessitate Congressional action.] Prior to its abrogation, the position of the Philippine government has been that the Amendments referred to hereinabove are already EFFECTIVE, firstly, because the Amendments may be considered as amendments to a Presidential Executive Agreement, not to a treaty; and secondly, because, as of that time, the National Assembly referred to in the 1973 Constitution has not yet been convened. By reason of the May 14, 1984 elections, (not merely interim) Batasang Pambansa had come into being. The onset of the Corazon C. Aquino government saw this issue become a constitutional one. The 1987 Constitution, Art. XVIII, Sec. 25 of the Transitory Provisions states that: “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.” Lawyer-author Hector S. de Leon in his textbook on the New Philippine Constitution avers: “The R.P.-U.S. Military Bases Agreement is merely an executive agreement entered into between the President of the Philippines and the President of the

PHILIPPINE CONFLICT OF LAWS

United States. Such an agreement does not require legislative concurrence. It is binding only upon the heads of States entering into them. (See Art. VIII, Sec. 4[2].) Thus, all disbursements under the Bases Agreement for the Philippines have to be approved by the U.S. Congress. A treaty, upon the other hand, requires the concurrence of the legislative body to be valid and effective. It is an international agreement binding upon the States as parties thereto. (See Art. VII, Sec. 21.)” t According to 1986 Constitutional Commission member Vicente B. Foz, in his Manila Bulletin (Nov. 23, 1989) column, there was no conflict between the Constitution and the Military Bases Agreement. Wrote he: “When a treaty and a country’s constitution conflict, which will prevail? The query is especially timely because the Constitution and the Philippine-United States Military Bases Agreement speak differently on MBA’s termination. The first says it will expire in 1991, while the second expressly provides that after Sept. 16, 1991, it will be subject to termination upon one year’s notice by either party. “After the expiration in 1991 of the Agreement. . . ” says the Constitution, but the MBA provides “. . . this Agreement and agreed revisions thereof shall remain in force for a period of 25 years from September 16,1966 after which . . . it shall become subject to term ination upon one year’s notice by either governm ent.’’ When they were fram ing the new Constitution in late 1986, the framers assumed that, as commonly thought, the MBA automatically ends on Sept. 16,1991. But as early as Sept. 16, 1966 when the RamosRusk Notes werf exchanged, formally amending the MBA, it is officially known that only after Sept. 16, 1991 will either government have the option to serve notice of termination on the other, to take effect a year after. The agreement has the force of international law between the two countries. “Previously we would discourage any efforts to create a constitutonal issue over the apparent conflict between the fundamental law and the MBA on termination date. The country has nothing to gain and something to lose by holding up the ultimate question of whether to allow the American continued access to the Philippine bases.

PRELIMINARY CONSIDERATION

23

But, if we anticipate such an issue to arise, how is it going to be resolved? Professor Edgardo L. Paras, now associate justice of the Supreme Court, answers the poser in his book “International Law and World Organizations” in the following manner: 1. From the viewpoint of the world, the treaty ought to prevail to avoid international embarrassment and to prevent charges of international delinquency. The state must accordingly update its municipal constitution. 2. From the viewpoint of the state itself, it would seem that most constitutions (including our own) provide that a treaty may be declared unconstitutional by a state’s own national courts; it is thus clear that, from this standpoint, municipal law, prevails — though, of course, it should also be evident that the decision of a national court, while binding on municipal authorities would have NO international effect, for indeed it is a settled principle of international law that a sovereign cannot be permitted to set up its municipal law against a claim founded on international law. “A fundamental principle governing the appli­ cation and enforcement of treaties, pacta sunt servanda dictates that treaties must be observed in good faith. Quoting, international law publicist Kelsen, Paras said, ‘Treaties have a binding effect, for by means of them rights and obligatoins are established.’ Citing a decision of the International Court of Justice, Paras said, ‘If a treaty is contrary to a signatory’s national constitution, the international legal order dem ands faithful compliance with the treaty, to avoid international embarrassment.” “In the case of our Constitution, its transitory provision on the military bases mentions the MBA expiry merely in passing. It doesn’t make a categorial, blackand-white declaration 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 mandate contrary to what some senators would make us believe. The most significant thrust of the transitory provision is its unequivocal requirement that after the MBA expires, foreign military bases, troops and facilities

PHILIPPINE CONFLICT OF LAWS

shall be allowed only under a treaty concurred in by the Senate, and if Congress so requires, ratified by the people in a plebiscite.” NOTE: The RP-US Military Bases Agreement has been terminated by the Philippine Government in 1991.

Chapter II WHAT THE TRIBUNALS OF THE FORUM MUST DO

ALTERNATIVES GIVEN TO THE COURT Whenever a conflicts problem presents itself before a tribunal of the forum, the court is primarily confronted with the question of jurisdiction. (Leflar, op cit., pp. 5-6). When a court is without jurisdiction, it has no alternative except to dismiss the case. Any judgment rendered without or in excess of jurisdiction is clearly null and void even in the state that rendered it, in view of the lack of “due process.” (Pennoyer v. Neff, 95 U.S. 714). Upon the other hand, when a tribunal possesses jurisdiction, it may: (1)

refuse to assume jurisdiction on the ground of forum non conveniens; or

(2)

assume jurisdiction, in which case it may either: (a)

apply the internal law of the forum (lex fori); or

(b)

apply the proper foreign law (lex causae). (See Stimson, Conflict of Laws, p. 348).

THE QUESTION OF JURISDICTION Jurisdiction Defined „

In general, jurisdiction (from the Latin “jus dicere” — the “right to speak”) is the authority of a tribunal to hear and decide a case. (Herrera v. Barretto, 25 Phil. 245; De la Cruz v. Moir, 36 Phil. 213.) Complete jurisdiction necessarily 25

PHILIPPINE CONFLICT OF LAWS

includes not only the power to hear and determine a cause, but also the power to enforce any judgment it may render thereon. (14 Amer. Jur., pp. 363-364; Ballentine’s Law Dictionary). In the realm of Conflict of Laws, jurisdiction has essentially the same definition, with the added element of possible enforceability in foreign states, subject, of course, to the rights of said states [See Fenwick, International Law., (1948), p. 342], The Encyclopedia Britannica says that in the Conflict of Laws, jurisdiction is the power of the state to create legal interests which other states will recognize and enforce. (Vol. 12, p. 412). Ultimately, it is the court of the forum which decides whether or not jurisdiction, considering the attendant circumstances, is present. For this purpose, it is usually the law o f the forum that furnishes the yardstick FOR THE PRESENCE OR ABSENCE OF JURISDICTION. Kinds o f Jurisdiction Although jurisdiction may be variously classified from different viewpoints, we shall for the present content ourselves with three (3) kinds: (1) (2) (3)

jurisdiction over the subject matter; jurisdiction over the person; and jurisdiction over the res. (As distinguished from jurisdiction over the subject matter, which is generic in character, jurisdiction over the res is jurisdiction over the particular subject matter involved, as when, for instance, specific properties which are the subject of the litigation have been properly attached. (See Banco Espafiol-Filipino v. Palanca, 37 Phil. 921; Bernabe v. Vergara, 73 Phil. 676.)

Jurisdiction Over the Subject Matter Jurisdiction over the subject matter is conferred by law and is defined as the authority of a court to hear and decide cases of the general class to which the proceedings in question belong. (Reyes v. Diaz, 73 Phil. 484). The consent or the submission of the parties on this point is of no consequence; indeed, only the law confers it, and only the law may change

WHAT THE TRIBUNALS OF THE FORUM MUST DO

27

it. (Calauag v. Pecson, 82 Phil. 8). In the Philippines this law on the jurisdiction of our courts may be found in the Philippine Constitution and in the Judiciary Act of 1948, as amended by Batas Pambansa Big. 129 (also as amended). It is not enough, however, that the court has this power in the abstract: something more is vital, and this is the invoking of such power by the filing of the proper petition or com­ plaint. (Calauag v. Pecson, 82 Phil. 8). Therefore, it may truly be said that it is the allegations in the petition or complaint, read together with the proper jurisdictional law, that will con­ fer jurisdiction on the court. (Baguioro v. Barrios, 77 Phil. 120). / If the allegations in the complaint show prima facie a lack of jurisdiction, the court must immediately dismiss the case. No preliminary hearing on the evidence is needed. (Administrator v. Alberto, G.R. L-12123, Oct. 31, 1958). If, upon the other hand, the complaint, on its face, reveals the presence of jurisdiction, trial in the meantime must be held. Should the evidence in the trial show that the court really has no jurisdiction, the court has no course except to dismiss the case. (Manlapaz v. Pagdanganan, 54 O.G. No. 34, Dec. 1, 1958, p. 7890). Parenthetically, it is worthwhile to note that legal provisions prescribing the period in which a decision should be rendered are merely directory, not mandatory — in the sense that even if a judgment is promulgated after the expiration of the period, said judgment would generally still be valid — unless the intent to the contrary is manifest. Of course, the officer who failed to comply with the lav/ may be dealt with administratively. (PAFLU v. Sec. of Labor, et al., L2228, Feb. 27, 1969). Jurisdiction Over the Person Jurisdiction over the person is the power of a court to render a judgment that will be binding on the parties involved: ■the plaintiff and the defendant. Jurisdiction over the person of the plaintiff is acquired from the moment he institutes the action by the proper pleading. (Manila Railroad Co. v. Attorney-General, 20 Phil. 523).

PHILIPPINE CONFLICT OF LAWS

Jurisdiction over the person of the defendant is acquired through the following means: voluntary appearance; personal or substituted service of summons. (Rule 14, Rules of Court). NOTE: (1)

The first way is by voluntary appearance in court or voluntary submission to the jurisdiction of the court (Rule 14, Sec. 23, Rules o f Court) except, of course, if the precise purpose of the appearance is to question the jurisdiction of the court over his person. (Carballo v. Encarnacion, 92 ’Phil. 974). [NOTE: An appearance by motion, by answer, or by a simple manifestation of appearance, whether in person or through an attorney, is sufficient. (Flores v. Sarbito, 37 Phil. 746; Lezama v. Piccio, 95 Phil. 899).] /;

(2)

The second way is through personal or substituted service of summons (Rule 14, Secs. 7 and 8, Rules o f Court). [NOTE: This is referred to as service by the coercive process in the manner provided by law. (Tolendano v. Severino, 78 Phil. 283).] Personal Service — “The summons shall be served by handing a copy thereof to the defendant in person, or if he refuses to receive it, by tendering it to him. (Rule 14, Sec. 7, Rules of Court). Service of summons may be made at night as well as during the day or even on a Sunday or holiday because of its ministerial character. (Laus v. CA, 219 SCRA 688 [1993]). Substituted Service — “If the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant’s dwelling house or residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof.” (Rule 14, Sec. 8, Rules of Court; Laus v. CA, 219 SCRA 688 [1993]). Strict compliance with these modes is required

WHAT THE TRIBUNALS OF THE FORUM MUST DO

29

before the court can acquire jurisdiction over the person of the defendant. (Pantaleon v. Asuncion, 105 Phil. 761; Sequito v. Letrondo, 105 Phil. 1139). Thus service through a 12-year old daughter of the defendant is not valid substituted service, even if she was a Grade Four pupil, in view, even if she was a Grade Four pupil, in view of the lack of suitable age and discretion. (Sequito v. Letrondo, supra.) However, the question of erroneous service o f summons must be raised before judgment is rendered, otherwise, this would be a clear case of waiver. (Jaranilla v. Gonzales, 96 Phil. 3). Moreover, defective service may be cured by actual receipt of the summons by the defendant, or if in any manner, knowledge of the existence of the case should come to the attention of the defendant himself. (Sequito v. Letrondo, supra). (3)

Effect of summons by publication (Secs. 16, 17, 18, Rule 124, Rules of Court). This manner of summons is good only if the action is in rem or quasi in rem (Sec. 17) or involves the personal status of the plaintiff (Sec. 17; Fontanilla v. Dominguez, 73 Phil. 579). If the action is in personam, summons by publication would not be sufficient service on the person of the defendant, whether or not said defendant is in the Philippines. (Pantaleon v. Asuncion, 105 Phil. 761). While there is no prohibition against availing of a foreign newspaper in extraterritorial service of summons, neither should such publication in a local newspaper of general circulation be altogether interdicted. (Sahagun v. CA, 198 SCRA 44 [1991]).

Jurisdiction Over the Res Jurisdiction over the res or thing is jurisdiction over the particular subject matter in controversy, regardless of the persons who may be interested thereon. Said jurisdiction may for instance be acquired by coercive seizure of the property by attachment proceedings. (See Banco Espanol-Filipino v. Palanca, 37 Phil. 921; Bernabe v. Vergara, 73 Phil. 676). Illustrative Examples: 1)

Problem: An American, not residing in the Philippines, intimidated a Filipino woman into marrying him in

PHILIPPINE CONFLICT OF LAWS

Manila. The day following the marriage, the man left the wife, and departed for parts unknown. Subsequently, the woman filed in the Regional Trial Court of Manila a suit asking for the annulment o f the marriage and for consequential damages. Since the husband could not be found, service of summons was made by publication. Incidentally, the man has no property in the Philippines. (a) r* (b)

Does the Court have jurisdiction to annul the marriage, assuming that the intimidation can be duly proved? Does the Court have jurisdiction to award damages to the woman in case the marriage is annulled?

ANSWER: (a) Yes, the Court has jurisdiction to annul the marriage, assuming the intimidation to be duly proved. The Court has jurisdiction over the subject matter — annulment of a marriage — a jurisdiction granted it by law; jurisdiction over the person of the plaintiff — for the simple reason that she filed the complaint before it; and finally, jurisdiction over the res — the annulment itself. While it is true that the summons here was merely by publication, this is sufficient because the proceeding partakes of an action in rem, more particularly, it involves the personal status of the plaintiff. Neither personal service of summons nor voluntary appearance by the defendant in court, in person or through an attorney, is required. (See Sec. 17, Rule 14, Rules o f Court; See also Fontanilla v. Dominguez, 73 Phil. 579). As a matter of fact, in a case like this, jurisdiction over the person of the defendant is NOT essential, and if the law demands service by publication, it is merely to satisfy the constitutional requirement of due process. (Perkins v. Dizon, 69 Phil. 186). Moreover, the Family Code sanctions the annulment of a marriage even if the defendant does not appear, in the following words: “In all cases of annulment or declaration of absolute nullity of marriage, the court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases

WHAT THE TRIBUNALS OF THE FORUM MUST DO

31

referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment.” (Art. 48 of the Family Code). It is true that marriage may be annulled for certain causes, but if instead of proving these causes the party concerned will only submit either a stipulation of facts (facts agreed upon and signed by both the husband and wife) or a confession of judgment (a statement by the erring spouse to the effect that he or she is not against the annulment), then the court will refuse to render judgment. Instead, the Court will proceed as in Art. 60, 2nd par. of the Family Code. It is provided for in Art. 60, par. 2, that “In any case, the court shall order the prosecuting attorney or fiscal assigned to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed.” Thus, a marriage cannot be annulled by means of a summary judgment. (Jocson v. Robles, 22 SCRA 521)

^

(b) No, the Court has no jurisdiction to awa damages to the woman, even if the marriage is annulled, and even if ordinarily, damages should have been adjudged. This is because an award of damages is clearly a judgment in personam, enforceable not against the whole world as in a proceeding in rem, but only against the party concerned, the defendant. There can be no valid judgment in personam here because the service of summons was only by publication. There was neither a voluntary appearance nor personal or substituted service of summons. Hence, for the purpose of awarding damages there was NO jurisdiction over the person of the defendant. (See Pantaleon v. Asuncion, 105 Phil. 761). While indeed there was jurisdiction over the personal status of the plaintiff, there was no jurisdiction to grant a relief which would be a personal liability of the defendant. (Pennoyer v. Neff, 95 U.S. 714; Banco EspafiolFilipino v. Palanca, 37 Phil. 921). [NOTE: In the problem hereinabove presented concerning the award of damages, the defendant had NO property in the Philippines. Now, then, suppose the defendant has properties here, would

32

PHILIPPINE CONFLICT OF LAWS

the answer be the same? YES, the answer would be the same; since the court never acquired jurisdiction over his person, it cannot now satisfy his liability from his properties found in this country. The reason is evident: since he never incurred personal liability, how can his properties be held liable? HOWEVER, there is one exception to this rule: when previously, the court had acquired jurisdiction over the property itself, such as by attachment or by any other proceeding in rem, the court may validly render the property liable for the payment of the damages, notwithstanding the fact that the only summons on the defendant was summons by publication. (See Pennoyer v. Neff, 95 U.S. 714; Perkins v. Dizon, 69 Phil. 186). (2)

Similarly, an action for the recognition of an illegitimate child concerns the personal status of the plaintiff, and summons by publication would be sufficient on a non­ resident defendant; but an award for support is a proceeding in personam, and summons by publication is not adequate therefor.

(3)

Similarly, again, if a debtor-mortgagor is a non-resident defendant, summons by publication would be sufficient for the foreclosure of the mortgage, but not for award of the deficiency, in case the proceeds are insufficient to cover the indebtedness. Gemperle v. Schenker L-18164, Jan. 23, 1967 FACTS: Sometime in 1952, Raul Schenker — acting through his wife and attorney in fact, Helen Schenker — filed with the Rizal Court of First Instance (now Regional Trial Court) a complaint (regarding certain corporate shares in the Philippine Swiss Trading Co., Inc.) against a certain William Gemperle. Gemperle in turn sued the couple for damages (action in personam), allegedly because of certain libelous matters in connection with the case filed against him. The principal issue in the case with the Supreme Court was whether or not the lower court had obtained jurisdiction over the person of Paul Schenker, who admittedly was a Swiss citizen and resident of Zurich, Switzerland. The summons in the case filed by Gemperle

WHAT THE TRIBUNALS OF THE FORUM MUST DO

33

had actually been served in the Philippines personally only on Helen (although addressed to both Paul and Helen). HELD: There was jurisdiction over the person of Paul, the alien non-resident, it appearing from Helen’s answer to the complaint that she was the representative and attorney-in-fact of her husband in the civil case they had filed against Gemperle. In other words, Helen had authority to sue and had actually sued, on behalf of her husband, so that she was, also empowered to represent him in suits filed against him, particularly in a case, like the one at bar, which is a consequence of the action that had been brought by her on his behalf. How Service Is Made on a Private Foreign Corporation “SEC. 14. Service upon private foreign corporations. — If the defendant is a foreign corporation or a non-resident joint stock company or association, doing business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or if there be no such agent, on the government official designated by law to that effect, or any of its officers or agents within the Philippines.” (Rule 14, Rules o f Court) NOTE: The private foreign corporation must be DOING BUSINESS in the Philippines (and not engaged merely in an isolated transaction), otherwise the rule hereinabove quoted does not apply, and our courts cannot acquire jurisdiction over the same. (Pacific Micronisian Line, Inc. v. Baens del Rosario, 96 Phil. 23). Whether the business it is doing is illegal or not is immaterial, for either way there is no question that it should be held amenable to our legal processes. (General Corporation o f the Phil. v. Union Insurance Society o f Canton, 90 Phil. 868). Nonetheless, for purposes of acquiring jurisdiction by way of service of summons, there is no need to prove first the fact that defendant is doing business in the Philippines. (Signetics Corp. v. CA, 225 SCRA 737 [1993]). 08Effect of Vitiated Personal Service of Summons (a)

Vitiation by Fraud X)

If fraud was availed of in personally serving the summons on the defendant in a proceeding in

PHILIPPINE CONFLICT OF LAWS

personam, and such fraud was thru the initiative or at the instigation of the plaintiff, the court does NOT acquire jurisdiction over the person of such defendant. (See Dunlap and Co. v. Cody, 31 Iowa, 260, Ex parte Edwards, 99 Cal. App. 541). Example: If a woman-plaintiff in a breach of promise damage suit lures the defendant into her state by fraudulently alleging serious illness on the part of her mother, and succeeds subsequently in having a sheriff personally serve summons on the occasion of the defendant’s arrival in her state, such defendant is not subject to the jurisdiction of the court. 2)

(b)

Upon the other hand, if the plaintiff has in no way intervened in the perpetration of the fraud, the court acquired jurisdiction. (See Taylor, Petitioner, 29, R.I. 129.)

Vitiation by Force 1)

If the force used is LEGAL, as in extradition proceedings, jurisdiction may properly be acquired.

2)

If the force is ILLEGAL, as in the case of kidnapping or abduction, jurisdiction is not obtained. (See Dunlap and Co. v. Cody, 31 Iowa 260.)

Repercussions o f Submission (Voluntary or Coercive) to Jurisdiction (a)

On the part o f the plaintiff: If a plaintiff goes to court by filing a complaint or a pleading, he puts the judicial machinery into action, and he is, therefore, now subject to any set-offs, counterclaims, cross-claims, etc. that the forum may provide as proper elements of a defense. (Aldrich v. Blatchford and Company, 175 Mass. 369). The reason is patent: having chosen a particular forum, and a particular judicial machine, the plaintiff, in all fairness, has to accept the entire machine completely. In availing himself of its benefits, he announces his readiness to assume its burdens. (See Goodrich, Conflict of Laws, p. 158.)

WHAT THE TRIBUNALS OF THE FORUM MUST DO

(b)

35

On the part o f the defendant: Once properly before a court, defendant is subject to its jurisdiction as to all subsequent matters in the same suit, such as appeals. (Dadmun v. Dadmun, 279 Mass. 217); but certainly not as to an entirely different action which is not an essential concomitant of the original litigation. (New York Life Insurance Co. v. Dunlevy, 241 U.S. 578.)

Continuing Jurisdiction Even if the Defendant Leaves Even if the defendant leaves the state of the forum prior to the final determination of the suits, the jurisdiction over him that had been previously acquired continues. Mr. Justice Oliver Wendell Holmes, Jr. explains the reason for this in the case of Michigan Trust Co. v. Ferry, 228 U.S. 346, 353. He says in characteristic felicitous terms: “Ordinary jurisdiction over a person is based on the power of the sovereign asserting it to seize that person and imprison him to await the sovereign’s pleasure. But when the power exists and is asserted by service at the beginning of a cause, or if the party submits to the jurisdiction in whatever form may be required, we dispense with the necessity of maintaining the physical power, and attribute the same force to the judgment or decree whether the party remain within the jurisdiction or not. This is one of the decencies of civilization that no one may dispute.” It should be noted that the principle hereinabove adverted to applies not only to cases where jurisdiction had been acquired by personal service within the state, but also to those instances where judgments in personam as already explained may validly be given. (See Goodrich, Conflict o f Laws, p. 157.)

REFUSAL TO ASSUME JURISDICTION Basis As already stated at the beginning of this Chapter, if the forum has jurisdiction, it may decide either to refuse to assume that jurisdiction, it may go ahead and assume it.

PHILIPPINE CONFLICT OF LAWS

It has been said that every sovereign has the right to refuse to assume jurisdiction over a particular litigation, even granting that it indeed possesses such jurisdiction. As a matter of fact, a state without jurisdiction or without the possibility of acquiring it, cannot refuse to assume jurisdiction for there would be nothing to refuse. The reason often given for refusal to assume jurisdiction is that to do so would prove inconvenient for the forum: forum non conveniens. The inconvenience may be manifested, among othpr things, in the following ways: (1)

the evidence and the witnesses may not be readily available. (Koster v. Lumbermen’s Mutual Casualty Co., 330 U.S. 518);

(2)

the court dockets of the forum may already be clogged: to permit additional cases would inevitably hamper the speedy administration of justice;

(3)

the evils of “forum-shopping” (the practice of looking over the courts of the world for possible procedural advantages) ought to be curbed;

(4)

the forum has no particular interest in the case; the parties may either be citizens or residents; the subject matter of the litigation had evolved somewhere else;

(5)

other courts are open: certainly, the case may be better tried in said courts. (See Stimson, Conflict of Laws, pp. 348-352)

In the case of Cuba Railroad Co. v. Crosby, 222 U.S. 473, the Supreme Court of the United States, thru Mr. Justice Holmes, said that when we get right down to the grass-roots of the matter, the litigants should not really complain when the courts to which they have come apply the principle of forum non conveniens. These are the words of Mr. Justice Holmes: “It should be remembered that parties do not enter into civil relations in foreign jurisdictions in reliance upon our own courts. They could not complain if our courts refused to meddle with their affairs and remitted them only to the place that established and would enforce their rights . . . The only just ground for complaint would be

WHAT THE TRIBUNALS OF THE FORUM MUST DO

37

if their rights and liabilities, when enforced by our courts, should be measured by a different rule from that under which the parties dealt.” Upon the other hand, Prof. Goodrich believes that the principle should sparingly, if at all, be used. He says: “It may be argued that some courts are crowded, and that foreign suits are burdensome, while the fees paid do not cover the cost of the suit. However, if one state shuts its courts to residents of another state, there may be retaliation by the other state. In the long run, there will probably be no gain but a loss, and it would seem more desirable on the whole, to allow free flow of litigation.” (Goodrich, Conflict o f Laws, pp. 15-16). Be that as it may, it would seem clear that our own Philippine Courts, even at the risk of retaliation by foreign states, may at times profitably and legally make use of the principle of forum non conveniens. Certainly, our country is a sovereign state, and there is nothing in our civil or procedural legislation that would militate against the proposition that in the exercise of our own discretion, we may at times refuse to assume cognizance over a certain case. However, be it remembered that the doctrine should generally apply only if the defendant is a corporation. After all, if the defendant is an individual, it may be difficult for the convenient or proper forum to acquire jurisdiction over him — thus leaving the plaintiff without any remedy. (See Stimson, Conflict of Laws, p. 349). Application o f the Principle (1)

If neither the plaintiff, nor the defendant, nor the cause of action is related to the forum, the action will not be heard.

(2) m

Courts of equity and of law occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or non-residents, or where for kindred reason, the litigation can more appropriately be conducted in a foreign tribunal. (Canada Malting Company v. Patterson Steamship, 285 U.S. 413, 423).

PHILIPPINE CONFLICT OF LAWS

Heine v. New York Insurance Co. 45 Fed. (2d) 426 (1940) FACTS: Several German citizens brought insurance claims against the New York Life Insurance Company on insurance contracts and policies issued in Germany. Although the plaintiffs were citizens and residents of Germany, and although the defendant was a New York corporation, suit was brought not in Germany nor in New York, but in Oregon, U.S.A. The Oregon court had undoubtedly jurisdiction over the subject matter; over the plaintiffs (on account of their pleadings); and over the defendant (service of summons having been made on its resident or statutory agent in Oregon.) However, the following facts stood out: (a)

The cause of action did not arise in Oregon.

(b)

The material witnesses were not residents of Oregon.

(c)

The records of the defendant company were either in the home office in New York or in its German office.

(d)

The plaintiffs were not citizens or residents of Oregon; the defendant was a New York corporation.

(e)

The courts of New York and of Germany were open.

The plaintiffs, fearful that the Oregon court would dismiss the case on the ground of forum non conveniens, argued that inasmuch as the court had jurisdiction over the subject matter and over the parties, it had no alternative, except to decide the case on the merits, notwithstanding, the alleged non-accrual of the cause of action in OregSh, the non-residence of the parties, and possible inconvenience and difficulty in deciding the case. ISSUE: May the Oregon court, in the exercise of its discretion, still refuse to take cognizance of the case? HELD: Yes, the Oregon court may still validly refuse to assume jurisdiction over the case on the ground of forum non conveniens. The court said: “This is a matter resting in a court’s discretion. It may retain jurisdiction, or it may, in the exercise of sound discretion, decline to do so, as circumstances suggest.

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The courts have repeatedly refused, in their discretion, to entertain jurisdiction, where both parties are ‘non­ residents of the forum . . . It is unthinkable that residents and citizens of Germany may import bodily into this court numerous actions against a non-resident defendant, on contracts made and payable in Germany, and insist as a matter of right that, because it has obtained jurisdiction over the defendant by service on its statutory agent, the taxpayers, citizens, and residents of the district having business in the court should stand aside and await the conclusion of the case, where as here, the courts of Germany and the home state of the defendant are open and functioning. “The courts of Germany and New York . . . are competent to take jurisdiction of the controversies, and service can be made on the defendant in either of such jurisdictions. To require the defendant to defend the action in this district would impose upon it great and unnecessary inconvenience and expense, and probably compel them to produce here (3,000 miles away from its home office) numerous records, books, and papers, all of which are in daily use by it in taking care of current business. In addition, it would no doubt, consume months of the time of this court to try to dispose of this case, thus necessarily disarranging the calendar, resulting in delay, inconvenience, and expense to other litigants who are entitled to invoke its jurisdiction.”

ASSUMPTION OF JURISDICTION When the forum assumes jurisdiction over a case, it may, under proper circumstances: (1)

apply the internal or domestic law (lex fori); or

(2)

apply the proper foreign law (lex causae).

APPLICATION OF THE INTERNAL OR DOMESTIC LAW JThere are at least three (3) instances, when the forum has to apply the internal or domestic law (lex fori) in adjudicating a conflicts problem set before it. These instances are the following: (1)

when the law of the forum expressly so provides in its conflicts rules;

PHILIPPINE CONFLICT OF LAWS

40

(2)

when the proper foreign law has not been properly pleaded and proved;

(3)

when the case involves any of the exceptions to the application of the proper foreign law (exceptions to comity): (a)

when the foreign law, judgment, or contract is contrary to a sound and established public policy of the forum;

(b) **

when the foreign law, judgment, or contract, is contrary to almost universally conceded principles of morality (contra bonos mores);

(c)

when the foreign law, judgment, or contract involves procedural matters;

(d)

when the case involves penal laws, contracts, judgments;

(e)

when the case involves purely fiscal (that is, revenueproducing) or administrative matters;

(f)

when the application of the foreign law, judgment, or contract, may work undeniable injustice to the citizens or residents of the forum;

(g)

when the application of the foreign law, judgment, or contract, may work against the vital interests and national security of the state of the forum;

(h)

when the case involves real or personal property situated in the forum. (See Art. 17, par. 3, and Art. 16, par. 1, Civil Code. See also Minor, Conflict of Laws, pp. 9-26; Goodrich, Conflict o f Laws, pp. 2124, 30). ^

WHEN THE LAW OF THE FORUM EXPRESSLY PROVIDES FOR THE APPLICATION OF THE INTERNAL LAW Our Civil Code cites certain instances when our courts in resolving a conflict problem have no course except to apply our own internal law. Among them are the following: (1)

When, for example, a Filipino father, with a Chinese child, dies, the estate of said father shall be distributed in accordance with Philippines law. The reason is simple:

WHAT THE TRIBUNALS OF THE FORUM MUST DO

41

the deceased is a Filipino national. (Art. 16, par. 2, Civil Code). Similarly, the capacity of the Chinese child to inherit from his Filipino father is governed, not by Chinese law, but by Philippine law. Again the reason is obvious: the deceased is a Filipino. (Art. 1039, Civil Code). (2)

If a will executed by an alien abroad is revoked in our country, the revocation must comply with the formalities of Philippine law. (Art. 829, Civil Code).

(3)

Regarding matrimonial property relations, Art. 80 of our Family Code says: “In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place o f the celebration o f the marriage and their residence. “This rule shall not apply: “(1) Where both spouses are aliens; “(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and “(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity.”

Examples: (a)

„

A Filipino gentleman marries an American. In the Philippines, in the absence of a marriage settlement, it is presumed that the matrimonial property relations shall be the absolute community of property. (Art. 75, Family Code). Let us assume that in America the general rule is “complete separation of property.” Now, then, if the husband earns twenty thousand pesos a month, who will be its owner — the husband alone, or both of the spouses as common owners? Answer: The property should be considered as owned in common by the spouses. Since the husband is a Filipino, their property relationship shall be governed by the

PHILIPPINE CONFLICT OF LAWS

regime referred to in our law as “the regime of absolute community.” (Art. 75, Family Code). [NOTE: It will be observed here that the forum, i.e., the Philippine court, has no alternative except to apply our own internal law, since this is the explicit provision of our conflicts rule. (Art. 80, Family Code) on the matter.] An American gentleman marries a Filipina. During the marriage, the husband earns P5 million with which he purchases a house located in the Philippines. (Under the •Parity Amendment, a U.S. citizen may not purchase Philippine land — Republic v. Quasha, L-30299, Aug. 17, 1971); while a house is real property, it is not land, so same may be validly purchased by an alien. Question: Should the house be considered the separate property of the husband, or must we regard the same as conjugal? Answer: The house must be considered as separate property of the husband. Under Art. 80 of the Family Code, there is no doubt that the husband, being an American, the matrimonial property regime in his country must be followed, and consequently, their property relations shall be governed by the “separation of property” regime. Therefore, the P5 million earned by him solely shall be his exclusive property; thus, also, whatever is substituted therefor shall be deemed as his separate property. This is true both iinder Philippines and American laws. (See Art. 109, par. 4, Family Code). [NOTE: Under Presidential Decree No. 713, three (3) types of American citizens, who had acquired private residential lands for family dwelling purposes before July 3, 1974, are allowed to continue holding such lands (up to 5,000 square meters only, however) and to transfer their ownership to qualified persons or entities: 1)

those who were formerly Filipino citizens;

2)

those who have become permanent residents of the Philippines; and

3)

those who have resided in the Philippines continuously for at least twenty (20) years.]

OBJECTION: Art. 80 of the Family Code, among other things states: “This rule shall not apply: (1) Where

WHAT THE TRIBUNALS OP THE FORUM MUST DO

43

both spouses are aliens; (2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and (3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity.” Now, then, since the subject matter here is a Philippine house, should we not apply here the regime of absolute community, since after all this is the general rule in the Philippines? ANS.: The objection is untenable: 1)

Firstly, the matrimonial property regime is governed by the national law of the husband, not by the location of the property. (Art. 80, Family Code).

2)

Secondly, the phrase alluded to refers not to the ownership of the property but to the requisites and the manner of its disposition, alienation, and encumbrancing. For instance, if the husband wishes to donate the house to a friend, he must comply with the formalities not of American law but of Philippine law, since the house is situated in our country. (Art. 16, par. 1, Civil Code). Hence, to be valid even as between the immediate parties to the transaction, a public instrument is essential. (Art. 749, Civil Code). If instead of donating to a friend, he desires to donate the house to his wife during the existence of their marriage, the donation would generally be VOID under Art. 87 of our Family Code, unless the gift be a moderate one considering the financial circumstances of the husband. (See Harding v. Commercial Union Assurance Co., 28 Phil. 464.)

WHEN THE PROPER FOREIGN LAW HAS NOT BEEN PROPERLY PLEADED AND PROVED The second case when our internal law shall control presents itself when the proper foreign law, which should ordinarily govern the litigation, is not properly pleaded and proved. There is NO judicial notice of any foreign law. A foreign law must be properly pleaded and proved as a fact. (Adong v. Cheong Seng Gee, 43 Phil.

PHILIPPINE CONFLICT OF LAWS

44

43; Sy Joe Lieng v. Syquia, 16 Phil. 137). If the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law. (Lim v. Collector, 36 Phil. 472; Fluemer v. Hix, 54 Phil. 610; In re Testate Estate o f Suntay, 95 Phil. 500). Philippine Trust Co. v. Bohanan, et al. L-12105, Jan. 30, 1960 FACTS: In the probate of a will made by a Nevada citizen, Nevada law was properly presented in evidence. However, in a hearing (held subsequently) of the proposed project of partition of the estate, said foreign law was not introduced anymore. In the partition, was it still necessary to reintroduce the proved Nevada law? HELD: No more, in view of its prior satisfactory proof during the probate proper. The answer would have been different had there been no prior allegation and proof. Proof o f Foreign Law (1)

If the foreign law is WRITTEN LAW (such as a statute or a constitution), it may be proved by: (a)

an official publication thereof; or

(b)

by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has custody. [NOTE: The certificate may be made by a secretary of an embassy or a legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (Rule 132, Sec. 25, Rules o f Court). Fluemer v. Hix 54 Phil. 610

FACTS: Hix died with a will allegedly executed in accordance with the formalities of West Virginia law. To prove the existence of said foreign law, the proponent of

WHAT THE TRIBUNALS OF THE FORUM MUST DO

45

the will presented in evidence a copy of said law found in a book (West Virginia Code) in our National Library. The corresponding certificate was signed by the Director of the National Library. Issue: Has the existence of said law been properly proved? HELD: No, because the legal requisites for proof of a written foreign law have not been properly complied with. There was no proof that the book referred to was an official publication of the State of West Virginia; there was no certification by the officer having custody of the original; finally, there was no proof that said alleged law was still in force at the time of the execution of the will. (2)

If the foreign law is UNWRITTEN LAW as customs or traditions, it may be proved by: (a)

the oral testimony of expert witnesses; or

(b)

by printed and published books of reports of decisions of the country involved, if proved to be commonly admitted in such courts. (Rule 130, Sec. 45, Rules of Court). In re: Testate Estate of Suntay 95 Phil. 500

FACTS: To prove Chinese law, the proponents of a will presented in evidence written answers (to certain written questions) of the Chinese consul-general. Issue: Has the existence of said law been proved? HELD: No, firstly, because the witness should have been presented for the purpose of confrontation and crossexamination; and secondly because, a Chinese consulgeneral is not necessarily an expert on the matter. How a Proved Foreign Law Must be Interpreted by Our Courts It is believed, as a general proposition, that a foreign law that has been duly pleaded and proved in our courts of justice Thust receive the same interpretation given to said law by the foreign tribunals concerned. An exception, however, to this rule may be stated: if somewhere in our laws we find a statute worded identically, we cannot be blamed if we disregard the foreign interpretation, and instead use our own previous interpretation of the same.

46

PHILIPPINE CONFLICT OF LAWS

EXCEPTIONS TO THE APPLICATION OF THE PROPER FOREIGN LAW (EXCEPTIONS TO THE APPLICATION OF COMITY) (1)

First Exception to the Proper Foreign Law — When the foreign law, judgment, or contract is contrary to a sound and established public policy of the forum: (a)

Codal Provision Involved

^

“Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign counrty.” (Art. 17, par. 3, Civil Code).

(b)

Public Policy Defined Public policy is simply the manifest will of a state, that which it desires on account of its own fundamental principles of justice, its own conception of morals, and its deep-rooted traditions for the common-weal. (See Chaffee v. Farmer’s Cooperative Elec. Co., 39 N.D. 585; Loucks v. Standard Oil Company of New York, 224 N.Y. 99.)

(c)

Query: When is a foreign law, judgment or contract contrary to our public policy? ANSWER: (1)

When we already have a conflicts rule on the matte# (a rule governing a situation where a foreign element is involved) this rule is the expression of our public policy on the matter. Therefore, any foreign law, judgment, or contract that contravenes our conflicts rule on the matter is clearly VIOLATIVE of our public policy.

(2)

While we do not have a conflicts rule on the matter, the mere fact that a foreign law is different from or dissimilar to our own internal law on the matter does not mean that said foreign law is contrary to our public policy.

WHAT THE TRIBUNALS OF THE FORUM MUST DO

47

Otherwise stated, while the foreign law may be contrary to our law, it is not necessarily contrary to our public policy. In a case like this we have to discover our public policy in the history of our legislations on the matter, in the clear intent and purpose of the law concerned, in the internal jurisprudence we have developed thereon. Indeed, if we are to disregard every foreign law that is NOT IDENTICAL with ours on the pretext that our public policy would otherwise be violated, there would surely be no necessity for conflict of laws. On this point, Prof. Goodrich furnishes us with the following comment: “The mere fact that the law of the forum and the law of the place of the foreign operative facts differ is CLEARLY NOT a sufficient reason for the former to deny enforcement. If it were, rules in conflict of laws calling for the application of foreign law in a particular set of facts would be practically nullified.” (Goodrich, Conflict o f Laws, p. 22). On his part, Mr. Justice Benjamin Cardozo, in Loucks v. Standard Oil Company of New York, 224 N.Y. 99, eloquently says: “Our own scheme of legislation may be different. We may even have no legislation on the subject. That is not enough . . . We are not so provincial as to say that every solution of a problem is wrong, because we deal with it otherwise at home. Similarity of legislation has indeed this importance: its presence shows beyond question that the foreign statute does not offend local policy. But its absence does not prove the contrary.” (d)

Examples Where We Have Conflicts Rules 1)

Two Filipinos made joint wills (wills made in the same instrument) while they were in Germany. In said country joint wills are valid. May the joint wills be successfully probated in the Philippines?

48

PHILIPPINE CONFLICT OF LAWS

ANS.: No, because they are contrary to Philippine public policy. The Civil Code provides: “Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.” “Art. 819. Wills, prohibited by the proceeding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed.” “(NOTE: If the joint wills in Germany, had been executed by Germans, they may be considered valid in our country, for it is clear that the prohibition indicated in Art. 819 refers exclusively to Filipino citizens.) 2)

An American dies, leaving properties in the Philippines. In his will, he gave nothing to his children (inasmuch as in his own state, there are no compulsory heirs). Can his will be given effect in the Philippines, despite the fact that in the Philippines it is our policy to grant children their legitimes? ANS.: Yes, his will can be given effect. After all, since he was an American our public policy on the matter is enunciated in Art. 16, par. 2w?of the Civil Code (a conflicts rule). Inasmuch as under his national law, children are not entitled to any legitime we should respect said law. (See also Testate Estate of Amos G. Beilis, et al. v. Edward A. Beilis, L23678, June 6, 1967. Facts are found in the Chapter on Renvoi.)

3)

May a decree of absolute divorce obtained abroad a Filipinos today be given effect in the Philippines? ANS.: No, because the decree would run counter to an important public policy of our

WHAT THE TRIBUNALS OF THE FORUM MUST DO

49

forum. Filipinos today are incapacitated to obtain a judgment for absolute divorce. The incapacity alluded to hereinabove follows Filipinos wherever they may go. The Civil Code provides: “Art. 15. Laws relating to family rights and duties, or to the status, condition, and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.” Querubin v. Querubin L-3693, 47 O.G. (Supp. 12) p. 316 FACTS: A Filipino married an American lady, with whom he subsequently had a daughter. The man later obtained a California divorce on account of his wife’s adultery with another man. The custody of the daughter was awarded to the innocent husband. However, the court said that the child could not be brought out of California without judicial permission. A year later, the Filipino came back to the Philippines bringing the child with him to his residence in Ilocos Sur. In the meantime, the wife had married her former paramour and had been able to obtain an amendment of the divorce decree, this time, granting the custody of the child to her. To obtain enforcement of this amendment in the Philippines she brought a petition for the writ of habeas corpus in Ilocos Sur. The lower court denied her petition, hence, this appeal to the Supreme Court. Issue: May she be awarded the custody of the child? HELD: No, she should not be given the child’s custody. Under Philippine law, two important things stand out, namely: (a) Preference in parental author­ ity is given to the father, not to the mother. (b) The guilty spouse generally loses parental authority.

50

PHILIPPINE CONFLICT OF LAWS

The law, good customs, and the interests of public order imperatively demand that a child must not be placed under the care of a faithless wife. We should not therefore comply with the decree of a foreign tribunal: said decree undermines our social order, violates indeed sound principles of morality. [NOTE: The case discussed above was decided under the old law. Under the new Civil Code, the rule is the same, except that if the child be under 7 years of age, there should be no separation from the mother, unless there be compelling reasons therefor (Art. 363). (Note: Art. 117 of the Child and Youth Welfare Code provides that “in case of separation of his parents, no child under five years of age shall be separated from his mother, unless the court finds compelling reasons to do so.”) Even the commission, is not a compelling reason. For her moral dereliction will not have any effect upon the baby who is as yet unable to understand the situation.” (Report of the Code Commission, p. 12).] 4)

Two Filipino first cousins got married in California, where the marriage is considered valid. May the marriage be recognized in the Philippines? ANS.: No, the marriage is not regarded as effective here, for while it is valid in the place of celebration it is considered incentuous under Philippine law. [NOTE: Marriages between first cousins are considered in incestuous under our law. (Art. 38(1), Family Code).]

5)

QUERY: If a Filipino step-brother marries his Filipino step-sister in California, and the marriage is considered valid there, will their marriage be recognized in the Philippines? ANS.: It is submitted that the marriage will be considered as valid here, for the simple

WHAT THE TRIBUNALS OF THE FORUM MUST DO

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reason that it is not bigamous, polygamous, or incestuous. Statutes which restrict natural rights, sich as the right to marry must be construed restrictively or strictly; that is, if a marriage does not fall under enumerated exceptions, it should come under the general rule. OBJECTION: How about Art. 15 of the Civil Code, which states that the capacity of a Filipino is governed by Philippine laws even if he should be abroad? If a Filipino step-brother cannot marry his step-sister here, should not this incapacity follow him wherever he may go? And how about Art. 17 of the Civil Code, which state that prohibitive Philippine laws shall not be rendered ineffective by foreign laws or conventions? Is not the prohibition of marriage between a step-brother and a step­ sister a prohibitory Philippine law? Finally, if we render nugatory said Articles of the Civil Code, are we not encouraging the parties to “evade” our laws by the simple expedient of marrying abroad? REPUTATION: It is humbly believed that in the particular problem presented — a marriage between Filipinos in a foreign country — the abovecited Arts, of the Civil Code, should NOT apply because: 1)

Said articles, compared with Art. 26 of the Family Code which is our ONLY law on foreign marriages, are merely general provisions. It is well known that in case o f conflict between general and particular provisions, the particular provisions) should prevail.

2)

As has already been intimidated, any law restricting a natural right should be re­ strictively construed. What the law does not include, it excludes. Inclusio unios, exclusio est alterius. Since the marriage is neither bigamous nor polygamous nor

PHILIPPINE CONFLICT OF LAWS

incestuous under Philippine law, it is clear that applying Art. 26, the marriage must be regarded as completely valid. 3)

If Art. 26, does not control the case, what would be its use? It is a cardinal rule in legal hermeneutics that every provision in a statute must be construed to give some effect to it.

4)

In case of doubt, the doubt must be resolved in favor of the validity of a mar­ riage. Under Art. 149 of the Family Code, “the family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, fam ily relations are governed by law and no custom, practice or agreement destructive if the family shall be recognized or given effect.” Also, Art. XV, Sec. 2 of the 1987 Philippine Constitution provides that “marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.” In other words, every intendment of law or facts leans toward the validity of marriage.

Regarding the charge of “evasion,” how can the parties be guilty of evasion when they are IMPLICITLY ALLOWED to marry under the provisions of Art. 26, which, it is reiterated, is the only applicable article on the subject? [NOTE: What has been said about a foreign valid marriage between a Filipino step­ brother and his Filipino step-sister applies also to all the marriages referred to in Art. 38 (quasi-incestuous marriages) of the Family Code, Art. 38 reads as follows: “The following marriages shall be void from the beginning for reasons of public policy: (1)

Between collateral blood rela-

WHAT THE TRIBUNALS OF THE FORUM MUST DO

53

tions, whether legitimate or illegitimate, up to the fourth civil degree; (2) Between step-parents and step-children; (3) Between parents-in-law and children-in-law (4) Between the adopting parent and the adopted child; (5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; and (9) Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse.”] (e)

Examples Where We Do Not Have Explicit Conflicts Rules 1)

Under our Usury Law, the maximum interest that may lawfully be charged are 14% per annum if the debt is unsecured, and 12% per annum if the debt is secured by a mortgage on registered land — land protected by a Torrens Title (Secs. 2 and 3, Usury Law). Now, then, if a contract of loan is entered into in a foreign country at 16% interest per annum, a rate considered usual and lawful in said country, should the stipulation concerning the interest be enforceable in our courts? ANS.: Yes, since evidently the parties intended to follow the law prevailing in the place where the transaction had been con­ summated. And this is true, regardless of

PHILIPPINE CONFLICT OF LAWS

whether the parties are Filipinos or not. While it is true that the rate of interest stipulated differs from the maximum fixed in our Usury Law, still not every deviation from our internal rules should be considered a violation of our public policy on the matter. It cannot be denied, of course, that usury is almost universally abhorred by all civilized men, but as to when exactly an interest charged is considered usurious is something the nations of the world still have to agree upon. It should be noted that although maximum rates are fixed in our Usury Law, the same law does not say that said rates apply even when the contract had been agreed upon in a foreign state. Stated differently, Secs. 2 and 3 of the Usury Law can hardly be considered conflict rules. [NOTE: Under Central Bank Circular No. 905, effective January 1, 1983, there are no more maximum rates for loans. In effect, therefore, the Usury Law has already been repealed; in Liam Law v. Olympic Sawmill Co. & Elino Lee Chi, L-30771, May 28, 1984, the Supreme Court held that “for sometime now, usury has been legally non-existent. Interest can now be charged as lender and borrower may agree upon.”] Sec. 1 of the Negotiable Instruments Law enu­ merates the requisites for a negotiable instrument. Now, then, suppose the instrument is a Japanese negotiable one, does it have to adhere to our own local requirements for negotiability? ANS.: It would seem that we have no explicit conflicts rules on the matter. Therefore, it is suggested that the negotiability of the paper be tested by the criterion imposed under Japanese laws. Under the American Restate­ ment of Private International Law, however, the law of the place where the note was contracted upon is the law that will govern its

WHAT THE TRIBUNALS OF THE FORUM MUST DO

55

negotiability or non-negotiability. (American Restatement, Sec. 348). (2)

Second Exception to the Application of the Proper Foreign Law — When the foreign law, judgment, or contract, is contrary to almost universally conceded principles of morality, (contra bonos mores). Man, being a rational animal, has a two-fold exist­ ence: the physical and the moral. These are the two distinctive features of every human being: in case of conflict the moral nature must prevail. There are things so inherently vicious, so demo­ ralizing to civilized existence that almost everywhere they are condemned: the sale of human flesh for human pleasure (prostitution); contracts to corrupt the fair administration of justice; agreements to reward crime; transactions that ultimately lead to human slavery or involuntary servitude. All these even if valid in the place where agreed upon — surely will not be countenanced in any civilized forum. The question has been asked: are the standards of morality immutable? We believe a distinction must be made; objectively, the standards of morality can never change — for anything that militates against man’s rational nature is inherently, and will forever be, contrary to the natural moral law; subjectively, standards of morality can, and do, change — for what may appear as pleasant and natural to one state may be regarded with abhorrence in another; it may even be unabashedly shunned or repudiated by the first state in succeeding generations.

(3)

Third Exception to the Application of the Proper Foreign Law — When the foreign law, judgment, or contract involves procedural matters: (a)

Basis There are no vested rights in the rules of procedure; one must take the procedural formalities of a forum in the state in which he finds them, otherwise he would arrogate unto himself the herculean task of remaking the forum’s judicial machinery to suit his particular whims.

PHILIPPINE CONFLICT OF LAWS

(b)

v*

Examples: 1)

An American, used to trials by jury in the United States (e.g., the 1995 murder case of O.J. Simpson that attracted a worldwide audience for at least one lull year), cannot insist on a jury trial in the Philippines in case he is accused of a crime he has committed in our country.

2)

An English lady will be completely unjustified in demanding an application of English rules of court in a litigation which she may commerce before our tribunals.

3)

In general, it may be stated that the following are governed by the internal rules of the forum: a) b)

forms of the proper action joinder and misjoinder of parties

c)

admissibility and probable effect of evidence certain defenses periods within which to appeal cost of the suit the various modes of discovery

d) e) f) g)

(NOTE: There are certain rules which although regarded as purely procedural in one forum are considered substantive in another. How this problem is usually resolved will be dealt qp in a subsequent Chapter.) Fourth Exception to the Application of the Proper Foreign Law — When the case involves penal laws, judgments, contracts: (a)

“Penal laws, judgments, contracts” Defined In conflict of laws, when is a law, judgment, or contract considered penal in character? The answer is vital: for if it be penal, the law, judgment or contract that arises in a foreign jurisdiction will ordinarily be rejected (not enforced) in our forum. The answer to the question is not easy: nonetheless, an attempt shall be made:

WHAT THE TRIBUNALS OF THE FORUM MUST DO

(b)

57

1)

Criminal statutes and judgments are no doubt penal.

2)

In all other cases, if the purpose of the “penalty” is to remedy an act of injustice against the general public, it clearly should be regarded as “penal” in character; if, upon the other hand, what is sought to be corrected is merely an injustice against a particular individual, the “penalty” is not penal, [see Huntington v. Attrill, 146 U.S. 657 (1892).]

Examples: 1)

Criminal statutes If a Filipino murders a friend in New York, he cannot be prosecuted in the Philippines for the crime he committed in a foreign state. The criminal statutes of New York are deemed penal, even in an interna­ tional sense; hence, they will be denied enforcement in the local forum. It will be noted that in our country, as in many other states, we believe in the principle of territoriality as a cardinal maxim of criminal law.

2)

Contracts with a Penalty Clause A enters into a contract with B in State C. The contract among other things, categorically stipulates that in the event of default, forfeiture of any advance payment would ensue. One of the parties defaulted. Issue: May the “penalty clause” be enforced in our own courts of justice? ANS.: Yes, because in the international sense, the “penalty clause” should not be considered a penalty. Hence, its enforcement in a foreign forum is proper.

(c)

Rules Regarding Penalties in Divorces 1)

If the prohibition to remarry within a certain period is directed only against the GUILTY spouses, the prohibition is PENAL in character

PHILIPPINE CONFLICT OF LAWS

and therefore will not be enforced in a foreign forum. 2)

If the prohibition is directed against both the GUILTY and the INNOCENT spouse, the same — cannot be deemed penal in character; it will be regarded merely as an expression of the policy of the forum which decreed the divorce: hence, the prohibition will ordinarily be enforced in a foreign jurisdiction unless the same will come under any of the other exceptions to the application of the proper foreign law.

Examples: 1)

A citizen of State X was divorced in said state by his wife on account of concubinage. In the divorce decree, he was prohibited to remarry within a period of one year, because he was the GUILTY party. No prohibition was imposed on his former wife. If he should come to the Philippines, and should desire to remarry here within the prohibited period, do you believe that he will be granted a marriage license in this country? ANS.: Yes, because the prohibition is PENAL in character, and will thus be refused enforcement in our forum. OBJECTION: But is it not a fact that inasxx|ach as he is a foreigner in our shores he must first obtain a certificate of legal capacity from his diplomatic or consular official in. the Philippines — a certificate attesting to his legal capacity to marry? Now, then, since the certificate has to state the prohibition hereinabove alluded to, should he be not considered INCAPACITATED under our laws? REFUTATION: The prohibition stated in the certificate will be disregarded in view of its penal character. Hence, he should be consid­ ered capacitated.

WHAT THE TRIBUNALS OF THE FORUM MUST DO

2)

59

In problem No. 1, if both the guilty and the innocent spouses has been prohibited, would the answer be the same? ANS.: No, because this time, the inca­ pacity should be given effect in our forum, since the same is NOT PENAL in character. , ,

(d)

Observations on the Principle o f Territoriality in Criminal Law. As has already been commented on, criminal law is territorial in character: thus, when crimes are committed outside our territorial jurisdiction, the criminals are generally exempted from penal liability in our country. The reason why we ordinarily refuse enforcement of a penal law has been aptly stated by Mr. Chief Justice Marshall: “No society takes concern in any crime but what is hurtful to itself’ (The Antelope, 10 Wheat, 66 123). How valid is this principle of “territoriality?” It is believed that: 1)

if a person has already been convicted in State A but has fled to State B, the latter state should be given the right to hold him liable, even in the absence of an extradition treaty between the two states. After all, State B has the right to protect its own citizens from the danger posed by the intruder; moreover, if rape is committed for instance in California, is this not a virtual rape against the whole of womankind? If. robbery takes place in Argentina, is this not a virtual transgression against the rights of property owners all over the world?

2)

if, upon the other hand, there has a yet been no trial and conviction, it would be very hard to disregard the principle of territoriality in view of the difficulty of obtaining for instance the proper evidence or proofs that can validly sustain a conviction. However, so long as this obstacle of proof can be overcomed, it is suggested that the principle be relaxed for the

PHILIPPINE CONFLICT OF LAWS

reasons stated in the preceding paragraph: thus, if a Filipino commits bigamy for instance in Arizona, he should be held liable therefor as soon as he returns to our country. Under our present penal statutes, he escapes criminal punishment. (5)

Fifth Exception to the Application of the Proper Foreign Law — When the case involves purely fiscal (that is revenue-producing) or administrative matters: ,* The Philippines has every right in the world to refuse enforcement of foreign laws and judgments that involve purely fiscal or revenue-producing matters, for after all we should not be burdened with the task of implementing the financing activities of other countries. Hence, if a Filipino doing business in New York is assessed for his income tax liability there, and he decides to abandon his business and instead comes back to the Philippines to escape from the New York tax, the state of New York cannot successfully sue him in our courts for said liability. After all, a tax liability does not arise from a contract entered into with the government concerned: it is a unilateral demand, a legal imposition which can be successfully enforced only so long as he remains withiun the territorial jurisdiction of the foreign state. Similarly the administrative codes of alien govern­ ments are of no use to us: moreover, we cannot be expected to assist in the implementation of foreign governmental functions.

(6)

Sixth Exception to the Application of the Proper Foreign Law — When the application of the foreign law, judgment, or contract may work undeniable injustice to the citizens or residents of the forum: To give justice is the most important function of law; hence, a law or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of Laws. Let us assume that in country X, all contract entered into by persons under 25 years of age are considered void. Now, then, if two Filipinos, sojourning in country X, enter into a contract there despite the fact that both are only 24 years old, should our tribunals give

WHAT THE TRIBUNALS OF THE FORUM MUST DO

61

effect to such a contract? When we consider the fact that in our country, the age of 18 (under RA 6809, approved on Dec. 13, 1989) is the age of majority; and when we consider the further fact that when the parties agreed on the transaction, they evidently did not have in mind the laws of country X, we are faced with no alternative except to recognize the efficacy of the meeting of the minds. A contrary answer would presuppose that the parties did not seriously intend to comply with their stipulations. Let us now take another example. In State Y, a person 15 years of age can validly contract. A Filipino boy, 15 years old, contracts with another in said state. If we assume the contract to be binding on the boy, we shall be doing violence to our sense of justice. Upon the other hand, if a just liability is incurred, we ought not to hesitate on its enforcement. Prevailing circumstances should naturally determine the justness of a claim. (See Minor, Conflict of Laws, pp. 13-14.) (7)

Seventh Exception to the Application of the Proper Foreign Law — When the application of the foreign law, judgment, or contract may work against the vital interests and national security of the state of the forum: The national interests of the forum should not be jeopardized; thus, any foreign law, judgment, or contract that may result in the undermining of our governmental processes will obviously be refused enforcement in our forum: Examples: (a)

A contract entered into between a Filipino employee and an alien government by virtue of which the former is supposed to furnish the latter with secret or classified military maps involving the defense of the Philippines cannot conceivably be countenanced by our courts even if in the country where the agreement was entered into the contract is regarded as valid.

(b)

An agreement that may inevitably corrupt our officials and employees places our democracy in a precarious position.

”a

PHILIPPINE CONFLICT OF LAWS

(c)

A judgment, the enforcement of which will lead our country to war, can have no validity in our forum.

Eighth Exception to the Application of the Proper Foreign Law — When the case involves real or personal property situated in the forum: Traditionally and necessarily, REAL property has always been governed by the “LEX SITUS” (that is, if the land is situated in the Philippines, Philippine law controls its alienation, its disposition, its encumbrance). Tfre reasons are obvious; the land is part and parcel of our country; to apply foreign law to it would generally render nugatory our own territorial sovereignty; moreover, in view of our patrimonial interest in the property, good sense dictates the enforcement not of any foreign law but of our own peculiarly chosen law. With reference to PERSONAL property, our rule used to be “mobilia sequuntur personam” (the thing follows the law of the owner). (Art. 10, old Civil Code.) The old rule grew up in the Middle Ages when movable property .could easily be carried from place to place. (Pullman’s Palace Car Co. v. Comm, o f Pennsylvania, 141 U.S. 18-22). However, now that there has been a great increase in the amount and variety of personal property not immediately connected with the person of the owner (Wharton, Conflict o f Laws, Secs. 297-311), it was deemed advisable by the Congress of the Philippines to adopt the doctrine of lex situs or lex rei sitae also in the case of movables. (Report o f Senator Lorenzo Tanada, Chairman, Special Committee on the new Civil Code). Examples: (a)

With respect to real property If a Chinese sells his Philippine land (acquired prior to the 1935 Constitution) to a Filipino, Philippine law governs the formalities and the intrinsic validity of the sale, even if for example, the contract is entered into in Japan.

(b)

With respect to personal property Shares of stock of a foreigner, even if personal property, can be taxed in the Philippines so long as

WHAT THE TRIBUNALS OF THE FORUM MUST DO

63

the company was incorporated in this country. [Wells Fargo Bank v. Coll. o f Int. Rev., 40 O.G. (85) No. 12, p. 159; 70 Phil. 325]. Thus, taxes may be imposed on dividends from shares in a gas corporation situated in the Philippines even if the stockholders do not reside here. (Manila Gas Corporation v. Coll, 62 Phil. 895).

Chapter III THEORIES ON WHY THE FOREIGN LAW MAY IN SOME CASES BE GIVEN EFFECT

INTRODUCTION As already discussed, when the forum assumes jurisdiction over a conflict case, it will apply either the internal law or the proper foreign law. We have seen the various instances where we have to apply the local law; we shall eventually consider the various cases where we shall use the foreign law. A preliminary question, however, arises: why should we ever apply the foreign law? Is not our internal law sufficient? Various theories have attempted to give the answer. Among them are the following: (1)

The Theory o f Comity Under this theory, we apply the foreign law because of its convenience, and finally, because we want to give protection to our citizens, residents, and transients in our land.

(2)

The Theory o f Vested Rights Here we seek to enforce not the foreign law itself but the rights that have been vested under such foreign law.

(3)

The Theory o f Local Law The adherents of this school of thought believe that we apply foreign law not because it is foreign, but because our own laws, by applying similar rules, require us to do so; hence, it is as if the foreign law has become part and parcel of our own local law. 64

THEORIES ON WHY THE FOREIGN LAW MAY IN SOME CASES BE GIVEN EFFECT

(4)

65

The Theory o f Harmony o f Laws The theorists here insist that in many cases we have to apply the foreign laws so that wherever a case is decided, that is, irrespective of the forum, the solution should be approximately the same: thus, identical or similar solutions anywhere and everywhere. When the goal is realized there will be a “harmony of laws.”

(5)

The Theory o f Justice The purpose of all laws, including Conflict of Laws, is the dispensing of justice; if this can be attained in many cases by applying the proper foreign law, we must do so.

THE THEORY OF COMITY Definition o f Comity In the case of Hilton v. Guyot, 159 U.S. 113, the Supreme Court of the United States said that “comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and goodwill upon the other. But it is the recognition which one nation allows within its territory, to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, of other persons who are under the protection of its laws.” Defects of the Theory o f Comity The theory has been criticized on various grounds: (1)

The theory presupposes the existence of an inter­ national duty. There is no such duty. Theoretically, every state may apply its own internal law exclu­ sively.

(2)

The theory assumes, although in a minimal sense, a desire to show courtesy to other states. This is not true. The real reason for the application of the proper foreign law is the avoidance of “gross inconvenience and injustice to litigants, whether natives or foreigners.” (Dicey, Digest of the Law of England with Reference to Conflict of Laws, pp. 10-11).

PHILIPPINE CONFLICT OF LAWS

Prof. Minor has aptly pointed out that the basis of Conflict of Laws is “something more than comity to the litigants. It is in answer to the demands of justice and enlightened policy.” (Minor, Conflict of Laws, p. 5). (3)

The theory apparently leaves the application of the foreign law to the discretion of the forum. Clearly, this will prevent the adoption of definite rules and principles for Conflict of Laws. (Goodrich, Conflict o f Laws, p. 11).

Justification o f the Theory of Comity (1)

No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. Thus, only by the “comity of nations” may we allow the enforcement in our country of foreign laws and judgments. (Hilton v. Guyot, 159 U.S. 113).

(2)

The recognition of foreign laws cannot be claimed as a right, but only as a favor or courtesy. It is permitted and accepted by all civilized communities from mutual interest and convenience, from a sense of the inconvenience which would otherwise result, and from moral necessity to do justice, in order that justice may be done in return. Comity, being voluntary and not obligatory, rests in the discretion of the tribunals of the forum, and is governed by certain more or less recognized rules. (American Jurisprudence, Vol. II, p. 229).

Kinds o f Comity

^

There are two kinds of comity: comity that is based on reciprocity, and comity based on the persuasiveness of a foreign judgment. Comity based on reciprocity is simple: if the laws and judgments of the forum are recognized in a foreign state,the forum in turn will recognize the laws and judgments emanating from said foreign state. (Hilton v. Guyot, 159 U.S. 113). Upon the other hand, com ity based on the persuasiveness o f the foreign judgment is precisely what

THEORIES ON WHY THE FOREIGN LAW MAY IN SOME CASES BE GIVEN EFFECT

67

it says: if the forum is persuaded that a foreign judgment is meritorious and has been rendered by a court of competent jurisdiction, it will not hesitate to enforce that foreign judgment in the forum even if the foreign forum does not reciprocate. (Johnston v. Companie Generale Transatlantique, 242 N.Y. 381, U.S. Court o f Appeals). Case Illustrating Comity Based on Reciprocity Hilton v. Guyot 159 U.S. 113 FACTS:

A French national sued an American in a French tribunal. Judgment was rendered in favor of the Frenchman. Later, suit was filed in America to enforce the French judgment. The American court discovered that: (a)

The French trial was indeed fair and im­ partial;

(b)

French courts do not give full faith and credence to decisions o f American tribunals.

Issue: Should the American court enforce the French judgment? HELD:

No, because after all, French tribunals do not regard American decisions with finality, even though the American courts had jurisdiction and even if there had been a fair and impartial trial in America. The Court, applying the principle of RECIPROCITY said: “The reasonable, if not the necessary, conclusion, appears to us to be that judgments rendered in France, or in any other foreign country, by the laws of which our own judgments are reviewable upon the merits,, ARE NOT ENTITLED to full credit and conclusive effect when sued upon in this country, but are only prima facie evidence of the justice of the plaintiffs claim.”

PHILIPPINE CONFLICT OF LAWS

68

Case Illustrating Comity Based on the Persuasiveness o f a Foreign Judgment Johnston v. Companie Generate Transatiantique 242 N.Y. 381 FACTS:

**

HELD:

An Am erican sued in France a French corporation. Judgment was rendered by the French tribunal in favor of the defendant. Defeated, the American tried again, but this time, in an American court. The American judge found the French decision to be a final judgment on the merits and devoid of fraud. Issue: Will the French ruling be enforced in America? Yes. “Comity rests, not on the basis of recip­ rocity, but rather upon the persuasiveness of the foreign judgment. When the facts of the whole appear to have been inquired into by the French courts, judicially, honestly, and with full jurisdiction and with the intention of arriving at the right conclusion, and when they have heard the facts and come to a conclusion, it shall no longer be open to a party invoking the foreign court against a resident of France to ask the American court to sit as a Court of Appeal from that which gave the judgment . . . Here, the plaintiff, an American citizen, was the actor in the French court. After having sought the jurisdiction of the foreign tribunal, brought the defendant into that court and litigated the question there, he now seeks to impeach the judgment rendered against him. The principles of com ity should give conclusiveness to such a judgment as a bar to the present action.”

THE THEORY OF VESTED RIGHTS Definition of the Theory The theory of vested rights, simply put, is this: “We seek to enforce not the foreign law or the foreign judgment itself,

THEORIES ON WHY THE FOREIGN LAW MAY IN SOME CASES BE GIVEN EFFECT

69

but simply the vested rights that have been vested under such foreign law or judgment.” In MacDonald v. Railway, 71 N.H. 448, the theory was stated by the Court in this manner: “When a right is claimed upon acts occurring in another country, courts look to the law of the country, not to extend the binding force of a foreign law beyond the territorial limits of sovereignty to which it belongs . . . It isnot the foreign law but the rights acquired under it which are enforced by the courts of another country.” Prof. Goodrich states the justification of this theory in the following manner: “No law exists as such except the law of the land. Principles of Conflict of Laws are “law’ in the true sense and involve no departure from the theory that the territorial law is supreme. But it is a principle of civilized law that rights once vested under the law continue until destroyed or cut off by law, and that such rights are recognized and enforced in one state though they have come into being in another, unless such enforcement is for good reason, though contrary to the public policy of the jurisdiction where enforcement is sought.” (Goodrich, Conflict of Laws, p. 14). In King v. Sarria, 69 N.Y. 24, the Court held that “a right having been created by the appropriate law, the recognition of its existence follows everywhere.” Basis o f the Theory of Vested Rights In a sense we may state that the theory of vested rights is based on the cardinal principle of territoriality. Under the territoriality principle, a judge cannot directly recognize or sanction foreign laws and judgments: it is his own territorial law which must exclusively govern all problems demanding his decision. Under the vested rights theory, extraterritorial effect is given not to foreign laws and judgments as such but Merely to the rights they have created. This seems to be the basis of the theory adopted in recent years by: (a)

Profs. Beale and Goodrich of the United States; and by

(b)

Messrs. Schmithoff and Dicey of England.

PHILIPPINE CONFLICT OF LAWS

Case Illustrating the Vested Rights Theory Loucks v. Standard Oil Co. of New York 225 N.Y. 448 FACTS:

"*

New York resident, Mr. Loucks, was killed in Massachusetts through the reckless impru­ dence of the defendant’s driver. The adminis­ trators of Loucks’ estate sued in New York to recover damages on the basis of a Massa­ chusetts statute granting a monetary award in a case like this. The defendant alleges that New York cannot apply the Massachusetts law on the matter. Issue: May the New York court award damages on the basis of the Massachusetts law?

HELD:

Yes, not necessarily because the Massachusetts statute will be applied in New York, but because the vested right created under the Massachusetts law should be recognized and rendered efficacious in New York. After all, there is nothing in the Massachusetts statute that outrages the public policy of New York. The fundamental policy is that there shall be some atonement for the wrong. Rights lawfully vested shall be every where maintained. Only exceptional circumstances should prevent the enforcement of a vested right.

Defects o f the VestedRights Theory (1)

The advocates of the theory insist that they do not really apply the foreign law; instead, they merely enforce the vested rights created by said foreign law. But then, in recognizing said vested rights, they implicitly recognize the foreign law, for how else can they determine whether or not there has been a vesting of rights? (Nussbaum, Principles of Private International Law, p. 28).) Indeed, there has to be first a choice of proper applicable foreign law; then, and only then, may there be an examination of the rights involved.

THEORIES ON WHY THE FOREIGN LAW MAY IN SOME CASES BE GIVEN EFFECT

71

(2)

The theory is based on a mistaken notion of the concept of “territoriality.” “Territorial law,” which to the advocates of the theory seems very desirable, means not only the internal law of the territory but also its conflicts rules (which embody necessarily a constant reference to the proper foreign law).

(3)

Sometimes the forum is not faced with the problem of “vested rights”; instead, the problem is whether or not to apply certain foreign disabilities or incapacities. Example: Two citizens of State X (who are second cousins) desire to marry in Manila. Unfortunately, in the certificate of legal capacity to marry which they must obtain from their diplomatic or consular officials in the Philippines (Art. 21, Family Code) they are INCAPACITATED under their own national law. Will they be allowed to marry in our country? The answer is obviously in the negative. Here, we do not apply any “vested rights.” (See Wolff, Private International Law, p. 3.)

THE THEORY OF LOCAL LAW Statement o f the Theory: The adherents of this school of thought believe that we apply foreign law not because it is foreign, but because our own rules by applying similar rules require us to do so: hence, it is as if the foreign law has become part and parcel of our own local law. Elaboration of the Theory: Prof. W. W. Cook, one of the firmest advocates of the theory, explains it in the following words:

»

“The forum, when confronted by a case involving foreign elements, always applies its own law to the case; but in doing so, adopts and enforces as its own law a rule of decision identical, or at least highly similar though not identical, in scope with a rule of decision found in the system of law in force in another state or country with which some or all the foreign elements are connected, the rule so selected being in many groups of cases, the rule

72

PHILIPPINE CONFLICT OF LAWS

of decision which the given foreign state or country would apply, not to this very group of facts now before the court of the forum, but to a similar but purely domestic group of facts involving no foreign element. The rule thus ‘incorporated’ into the law of the forum may for convenience be called the ‘domestic rule’ of the foreign state, as distinguished from its rule applicable to cases involving foreign right, but a right created by its own law.” (Cook, Legal and Logical Bases o f the Conflict o f Laws, pp. 20 -21).

Example o f the Application o f the Theory: A Chinese national dies, leaving properties located in the Philippines. Under Art. 16, par. 2 of our Civil Code, the successional rights to his estate are governed by Chinese law, in view of his nationality. Ordinarily, therefore, our forum here applies the Chinese or foreign law. According to the advocates of the theory, however, we do not apply the Chinese law itself; instead we simply apply Art. 16, par. 2 of our own Civil Code (and therefore Philippine law) which for the purpose of the instant litigation automatically incorporates unto itself the Chinese internal law on succession.

THE THEORY OF HARMONY OF LAWS The Theory Stated: In many cases we have to apply the foreign law so that wherever a case is decided, that is, irrespective of the forum, the solution should approximately be the same: thus, identical or similar problems must have identical or similar solutions anywhere. When the goal is realized there will be a “harmony of laws.” [See Goodrich, 36 W. Va. L. Q. (1930), pp. 156-164.] The theory is ideal: paradoxically, it goes against reality.

THE THEORY OF JUSTICE Statement o f the Theory: The purpose of all laws, including Conflict of Laws, is the dispensing of justice: if this can be attained in

THEORIES ON WHY THE FOREIGN LAW MAY IN SOME CASES BE GIVEN EFFECT

73

many cases by applying the proper foreign law, we must do so. Criticism o f the Theory: There is no dispute that justice is the final end of law; nonetheless, exactly what is just and what is unjust? Almost every man has his own notion of fairness and equity: to leave the adjudication of conflicts problems to the varying whims of judicial fancy may in itself symbolize the highest form of injustice.

THE RIGHT THEORY It will be observed that the theories hereinabove adverted to do not mutually exclude one another: perhaps, the truth may be found in their combination. Certainly, if the world is to progress in understanding and judgment it must recognize this imperative postulate: that sometimes we have to apply the proper foreign law because courtesy, convenience, and international duty so demand; because there are vested rights we cannot conceivably ignore; because all too often the foreign law has apparently become part and parcel of our law; because identical situations should be resolved by identical remedies, irrespective of the forum; and finally, because to do otherwise may ultimately result in the negation of justice.

COLLATERAL MATTERS Before we discuss the proper foreign law which is to be applied, we would do well to first examine the following collateral matters: (1)

The Nature and Proof of Foreign Judgments

(2)

The Nature and Composition of Conflicts Rules

(3)

The Characterization or Classification of Conflict Rules and Judgments

(4)

The Various Theories on Status and Capacity

<45)

The Problem of the Renvoi

Chapter IV THE NATURE AND PROOF OF FOREIGN JUDGMENTS

NATURE OF FOREIGN JUDGMENTS A foreign judgment does not of itself have any extra-territorial application. Thus, it may ordinarily be enforced only within the territory of the tribunal issuing it. For a foreign judgment to be ever made effective in our country, it is imperative that it be proved in accordance with our prescribed rules on the matter. (See Goodrich, Conflict o f Laws, pp. 600-601).

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS DISTINGUISHED (1)

Recognition of a foreign judgment — means that our courts will allow said foreign judgment to be presented as a defense to a local litigation (the defense of res adjudicata); enforcement, upon the other hand, exists when a plaintiff wants the courts to positively carry out and make effective in the Philippines a foreign judgment. (See Perkins v. Benguet Consolidated Mining Co., G.R. L1981, 1982, May 28, 1954).

(2)

Recognition involves merely the sense of justice; enforcement virtually implies a direct act of sovereignty. (Perkins v. Benguet Consolidated Mining Co., supra).

(3)

Recognition does not require either action or a special proceeding; enforcement necessitates a separate action or proceeding brought precisely to make the foreign judgment effective. (See Gorayeb v. Hashim, 50 Phil. 23; Perkins v. Benguet Consolidated Mining Co., supra.). 74

THE NATURE AND PROOF OF FOREIGN JUDGMENTS

(4)

75

Recognition may exist without enforcement; enforce­ ment necessarily carries with its recognition. (See Nussbaum, Principles o f Private International Law, p. 229.) For instance, when an American in Manila who is sued for bigamy, presents in defense a foreign divorce decree dissolving his prior marriage, what he wants is a recognition of the foreign judgment, not its enforcement.

NOTE:

It must be borne in mind, however, that for BOTH recognition and enforcement, proof of the foreign judgment has to be presented. Moreover, the requisites or conditions for the recognition or enforcement of foreign judgments must be present. These requisites and conditions will be discuss­ ed subsequently after a few more preliminary details.

REASONS FOR THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS The reasons for the recognition and enforcement of foreign judgments are basically the same as the theories given earlier for the application of the proper foreign law; furthermore, the exceptions to the application of the foreign law, also already discussed, are generally applicable to foreign judgment.

REASONS WHY NOT ALL FOREIGN JUDGMENTS CAN BE RECOGNIZED OR ENFORCED IN OUR COUNTRY There are various reasons why not all foreign judgments can be enforced or recognized in the Philippines: (1)

Firstly, the requisite proof thereof may not be adequate;

(2)

Secondly, they may contravene our established public policies;

”»(3)

Thirdly, they may contradict one another: obviously, we cannot be guided by contradictions;

(4)

Fourthly, in some countries the administration of justice may be shockingly corrupt. (See Nussbaum, Principles of Private International Law, p. 232).

76

PHILIPPINE CONFLICT OF LAWS

CONDITIONS AND REQUISITES BEFORE FOREIGN JUDGMENTS MAY BE RECOGNIZED AND ENFORCED IN THE PHILIPPINES (1)

There must be p roof of the foreign judgment; for recognition, there is no necessity for a separate action or proceeding; enforcement requires such separate action or proceeding. (See Perkins v. Benguet Consolidated Mining Co., G.R. L-1981, 1982, May 28, 1954.)

(2)

TJie judgment must be on a civil or commercial matter (because if on a criminal or revenue or administrative or remedial matter, the same would fall under the exceptions to the application of the foreign law). (See Goodrich, Conflict o f Laws, pp. 623-624.)

(3)

There must be no lack of jurisdition, no want of notice, no collusion, no fraud, no clear mistake of law or fact. (Sec. 50 (b), Rule 39, Rules o f Court). NOTE:

(4)

(a)

Fraud here means EXTRINSIC FRAUD; that is, fraud based on facts not controverted or resolved in the case where the judgment was rendered. (Labayen v. Talisay-Silay Milling Co., 40 O.G., 2nd Supp.. No. 3, p. 109). In other words, INTRINSIC fraud or fraud which goes to the very existence of the cause of action such as fraud in obtaining the consent to a contract is deemed already adjudged and, therefore, such fraud can no longer militate against the recognition or enforcement of the foreign judgment. (See Beale, Conflict o f Laws, Vol. II, p. 1403). #

(b)

Regarding “clear mistake of law or fact,” the Supreme Court of the United States, reversing the Supreme Court of the Philippines, held that even if there is a clear mistake of law or fact, this alone will not prevent the recognition or the enforcement of a foreign (Hongkong) judgment which otherwise fulfills all the other requisites. (Ingenohl v. Walter E. Olsen and Co., 273 U.S. 541, reversing 47 Phil. 189).

The judgment must not contravene a sound and

THE NATURE AND PROOF OF FOREIGN JUDGMENTS

77

established public policy of the forum. (Querubin v. Querubin, 47 O.G. 315, [Supp. 12]). NOTE: (a)

An unfaithful mother, awarded by a U.S. court custody of her child, was denied said custody by o u i Philippine courts. (Querubin v. Querubin, supra).

(b)

A litigant, not satisfied with the decision of a Philippine court, resorted to a foreign court to obtain another remedy. Failing in this foreign venture, he now seeks the enforcement of the Philippine decision which he had formerly abandoned. HELD: “The litigants, whether they are citizens or foreigners, should respect the decisions of Philippine courts; but if they choose to resort to a foreign court, asking for a remedy that is incompatible with the execution of a decision obtained in the Philippines and obtain a decision that is adverse, they should not be permitted to repudiate the decision of the foreign court and to ask the enforcement of the decision of the Philippine court which they have abandoned. To permit them to litigate in that manner is contrary to the order and public interest of the Philippines because it disturbs the orderly administration of justice.” (Perkins v. Benguet Consolidated Mining Co., G.R. L-1981, 1982, May 28, 1954).

(5)

The judgment must be RES JUDICATA in the state that rendered it. (Beale, Conflict of Laws, Vol. II, p. 1390). NOTE: The requisites for RES JUDICATA are the following: (a)

The judgment must be FINAL;

(b)

The court rendering the judgment must have JURISDICTION over the subject matter and the parties; (The forum judges its own jurisdiction by its own law on the matter; the forum also decides whether or not the foreign tribunal had jurisdiction. In determining this question, the forum apparently

78

PHILIPPINE CONFLICT OF LAWS

is free to adopt any reasonable and just standard or criterion.) (See Ramirez v. Gmur, 42 Phil. 855.) (c)

The judgment must be on the MERITS;

(d)

There must be IDENTITY o f parties, of subject matter, and of cause of action — except that with reference to the last, the real cause of action is now the recognition or enforcement of the foreign judgment on the original cause of action. (See San Diego v. Cardona, 70 Phil. 281; Aguirre v. Atienza, G.R. No. L-10665, Aug. 30, 1958.)

^

ILLUSTRATIVE CASES ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS Sawyer v. Maine Insurance Co. 12 Mass. 291 FACTS:

For alleged violation of a blockade, a vessel was condemned and declared forfeited in favor of the government. There were no judicial proceeding instituted, no notice, no opportunity for defense. All that was done was a forfeiture declaration made by a high government official. Issue: Should the forfeiture be given effect?

HELD:

No, in view of the lack of judicial proceedings. This is not the foreign final judgment referred to in Private International Law. Cousins Hix v. Fluemer ^ 54 Phil. 610

FACTS:

A husband and his wife were living apart thru their mutual consent. The matrimonial domicile was in the Philippines. The husband, in order to get a foreign divorce, left the Philippines, pretended to reside in the foreign country, obtained a divorce decree, returned to our country, continued to live here engaging himself in business. The divorce was considered valid in a foreign country, the husband having alleged in his petition for divorce his intent to obtain a permanent residence in said foreign

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state. Issue: Should we consider the foreign court as possessed of jurisdiction? HELD:

While the foreign state may consider that it had jurisdiction, we are inclined to regard the foreign tribunal to be without jurisdiction. Under the facts, the residence in the foreign state was certainly not bona fide; therefore, the foreign court had no jurisdiction. Barretto Gonzales v. Gonzales 58 Phil. 67

FACTS:

A Filipino husband and wife, in collusion with each other obtained a Reno decree of absolute divorce, after the husband had obtained a Reno, Nevada “residence” for divorce purposes. Issue: Should the foreign divorce be given effect here?

HELD:

No, in view of the collusion, and in view of the fact that the Reno court had really acquired no jurisdiction. The Reno residence of the husband was not bona fide. NOTE: This was decided under the old law, when we still had the absolute divorce law Act 2710. Incidentally, under the old law, foreign divorces between Filipinos were recognized only if the following conditions were present: (a)

the foreign court granting the divorce must have had JURISDICTION;

(b)

the cause of the divorce must have been adultery on the part of the wife or concubinage on the part of the husband. No other ground was recognized (obiter dictum of the Supreme Court in this case of Gonzales).

PROVISIONS OF THE RULES OF COURT ON FOREIGN JUDGMENTS “SEC. 50. Effect of foreign judgments. The effect of a judgment of a tribunal of a foreign country, having jurisdiction to pronounce the judgment is as follows:

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(a)

In case of a judgment against a specific thing, the judgment is conclusive upon the title to the thing;

(b)

In case of a judgment against a person, the judgmentis presumptive evidence of a right as between the parties and their successors in interest by a subsequent title; but the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.” (Rule 39, Revised Rules o f Court). s

WHOSE JUDGMENT IS REALLY ENFORCED It would seem that when our courts enforce a foreign judgment by allowing it, the effect is that it is really our own court’s judgment that we enforce.

Chapter V NATURE AND COMPOSITION OF CONFLICTS RULES

NATURE OF CONFLICTS RULES (1)

D efinition: Conflicts rules (or rules o f Private International Law) are the provisions found in a country’s own law which govern factual situations possessed of a foreign element. According to Dean Falconbridge, “a conflict rule of the forum, as distinguished from domestic or local rule of the law of the forum, is usually expressed in the form of an abstract proposition that a given legal question is ‘governed’ by the “law’ of a particular countiy, which is to be ascertained in the manner indicated in the rule.’ (Falconbridge, Essays on the Conflict o f Laws, (1954), pp. 37-38).

(2)

Examples: (a)

Art. 815, Civil Code: When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such w ill may be probated in the Philippines.

(b)

Art. 1039, Civil Code: Capacity to succeed is governed by the law of the nation of the decedent.

**

(c)

Art. 1753, Civil Code: The law of the country to which the goods are to be transported shall govern the liability of the 81

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common carrier for their loss, destruction, or dete­ rioration. (3)

Compared With Purely Internal Rules A purely internal rule governs a purely domestic problem, one without any foreign element; a conficts rule applies when the factual situation involves a foreign element. The former directly answers a given problem; the latter merely indirectly responds by indicating whether internal or foreign law is to be applied. r*

Examples: (a)

A Filipino girl, anxious to donate her land in Greenhills, wants to know whether she must execute for the conveyance thereof of a private or a public instrument. She turns to Art. 749 of the Civil Code and finds her question DIRECTLY answered: Art. 749 is a purely internal rule.

(b)

The same girl wants to know what her successional rights would be in case her father, a German citizen, dies. She discovers that Art. 16, par. 2 of the Civil Code answers her question INDIRECTLY: the successional rights are governed by the national law of her father, namely, German law. So that to know what precisely are her rights, she has to consult German law. Art. 16, par. 2 is, therefore, a conflict rule.

KINDS OF CONFLICTS RULES There are two (2) kinds of conflicts rules: (1)

the one-sided rule (which indicates when Philippine internal law will apply); and

(2)

the all-sided rule (which indicates when foreign law is to be applied). Examples:

(1)

the one-sided rule (unilateral rule) Art. 15, Civil Code: “Laws relating to family rights and duties, or to the status, condition, and legal capacity

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of persons are binding upon citizens of the Philippines, even though living abroad.” NOTE: Under this Article, the capacity, etc. of a Filipino shall be governed generally by Philippine law; what law governs the capacity, etc. of a German? This is NOT expressly answered by the Article. The matter will be discussed in the succeeding pages. (2)

the all-sided rule (multilateral rule) Art. 16, par, Civil Code:“However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property maybe found.” NOTE: It is obvious under this Article that if the deceased is a German, German law governs; if a Cuban law applies Cuban law governs, and so forth. Clearly, therefore, the Article is all sided.

Observation:

&

Art. 15 (supra, concerning family rights, etc.) is literally one-sided as already explained; nonetheless, the Supreme Court has invariably given it a more extensive application and today, by judicial construction, it has become an all sided conflicts rule. Analogy, reciprocity, and convenience are the reasons for this interpration. Thus, the status, capacity, etc. of foreigners are generally governed by their own national law. In Gibbs v. Gov’t, 49 Phil. 293, the Supreme Court made the observation that “we should resort to the law of California, the nationality and domicile of Mrs. Gibbs, to ascertain the norm which would be applied here as law were there any question as to her status.” (See also Babcock Templeton v. Rider Babcock, 52 Phil. 130; In Re Estate o f Johnson, 39 Phil. 156.) As a matter of fact, the Court categorically stated in Recto v. Harden, L-6897, Nov. 29, 1956, that where the spouses are citizens of the United States, their marital and personal status, and their dissolution, are governed

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by the laws of the United States, which sanction divorce. This, according to the Court, is pursuant to Art. 15 of the Civil Code.

COMPOSITION OF CONFLICTS RULES Every conflicts rule consists of two parts: (1)

the factual situation (the set of facts presenting a conflicts problem);

(2)

-tfie point of contact or the connecting factor (the law of the country with which the factual situation is most intimately connected).

Prof. Rabel, in his Conflict o f Laws (Vol. 1, p. 42), says that “the first part of the rule defines its object, that is, certain operative facts, the legal consequences of which are determined in the second part. From another point of view, the first part raises, and the second part answers, a legal question.” Examples: (1)

(2)

In the conflicts rule “capacity to succeed is governed by the law of the nation of the decedent.” (Art. 1039, Civil Code): (a)

“Capacity to succeed” — is the factual situation indicating that a person is dead, and someone alleges a right or capacity to inherit from the former.

(b)

“Law of the nation o f the decedent” (or national law of the deceased) is the point of contact. More accurately, it is the nation o f the decedent which is the point of1contact. It is evident that in our law, we consider the decedent’s nation or country as the place which in life he was most intimately connected.

In the conflicts rule “the law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction, or deterioration.” (Art. 1753, Civil Code): (a)

“The liability o f the common carrier for their loss, destruction, or deterioration” is the factual situation;

(b)

“The law of the country to which the goods are to be transported” is the point of contract.

NATURE AND COMPOSITION OF CONFLICTS RULES

NOTE: In abbreviated form we may say that: (a)

“loss, destruction, or deterioration o f goods transitu” is the factual situation;

(b)

“Law of the destination” is the point of contact.

Chapter VI THE CHARACTERIZATION OF CONFLICTS RULES

INTRODUCTION TO THE CONCEPT OF CHARACTERI­ ZATION OR CLASSIFICATION Should one day the Supreme Court declare that “bright law students” will be exempted from the bar examinations, the important question comes up: who will determine who these “bright law students” are? Should it be the Supreme Court itself, the Department of Education, Culture and Sports, the Commission on Higher Education (CHED), the various schools and universities involved, the various professors? The process of determining who these students are is called classification or characterization. In the same way, in the subject of Conflict of Laws, the problem may crop up. While, for instance, it is almost universally admitted that the validity of a marriage depends upon whether or not there has been compliance with the law of the place where it was performed, the following questions may be asked: Firstly, by whose law should we judge whether or not a certain factual situation is indeed a marriage? SeconcUy, assuming that everybody agrees on the fact that there indeed has been a marriage, where exactly is the “place where it was performed” if, say, the marriage took place at the border of two states, with the man on one side, and the woman, on the other? Which law shall we consider in determining this point: the law of the state where the man was, or the law of the state where the woman was, or should we apply our own internal law as the yardstick? Then, again, suppose we have a rule that we recognize all valid foreign marriages except “incestuous ones.” Whose definition of “incestuous” marriages shall we use ours, or the definition of the place where the marriage was contracted? The 86

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answers to all these are given by what we refer to as characterization or classification in Conflict of Laws.

' CHARACTERIZATION DEFINED Characterization as used in our subject is simply the 'process of determining under what category a certain set of facts or rules fall. Falconbridge in his “Essays on the Conflict of Laws (p. 50) defines it as the “process of deciding whether or not the facts relate to the kind of question specified in a conflicts rule.” Characterization was first discussed by Franz Kahn in 1891; then by Bartin who referred to it as the “doctrine of qualification.” Falconbridge admits that its synonyms are classification and qualification, but in view of the many legal meaning of these two terms, he candidly professes an affection for the term “characterization.” According to Falconbridge, “one of the notably controversial features of the discussion of characterization relates to the problem of whether the characterization should be based on the concepts of the law of the forum or upon the concepts of the proper foreign law, or upon concepts derived from the study of comparative law.” (Falconbridge, Essays on the Conflict o f Laws, p. 58). The ultimate purpose, of course, of characterization is to enable the forum to select the proper law.

FACTORS WHICH GIVE RISE TO THE PROBLEM OF CHARACTERIZATION According to Dean R. H. Graveson of the University of London, the problem of characterization arises from three (3) main factors: “(1) Different legal systems attach to the same legal term with different meanings, that is, an identity of name covers a difference of nature or content of a legal idea. The conception of domicile in Common Law countries and Civil Code countries is a typical example. It does not follow that one definition is right, and the others wrong-, it merely involves the need to find a principle for the ascertainment of which definition shall apply either generally or in any particular case. “(2) Different legal systems may contain ideas or conceptions completely unknown to one another . . . . “(3) Different legal systems apply different principles for the

88

PHILIPPINE CONFLICT OF LAWS

solution of problems which, in general terms, are of a common nature.” (Graveson, Conflict of Laws, p. 31).

STEPS IN CHARACTERIZATION Falconbridge suggests three (3) im portant steps in characterization: (1)

Characterization of the questions;

(2) ^election of the proper law; and (3)

Application of the proper law. (Falconbridge, Essays on the Conflict o f Laws, p. 50).

On our part, We believe that the following should be the steps taken in the application of the proper foreign law: (1)

The determination of the facts involved;

(2)

The characterization of the factual situation;

(3)

The determination of the conflicts rule which is to be applied;

(4)

The characterization of the point of contact or the connecting factor;

(5)

The characterization of the problem as procedural or substantive;

(6)

The pleading and proving of the proper foreign law; and

(7)

The application of the proper foreign law to the problem.

It will be noticed, however, that in this enumeration only steps (2), (3), (4) and (5) concern themselves with characterization proper.

FIRST STEP — THE DETERMINATION OF THE FACTS INVOLVED In every case, the law that will be applied will have to depend upon the facts involved. Thus, the facts have to be ascertained. If, for instance, it is clearly determine that no foreign element is involved, no problem in Conflict of Laws arises. To determine what the facts are, the forum has to be guided necessarily (but only preliminary) by its own rules of pleading and proof. We, of course, cannot as yet make use of any foreign criterion or rule; we do not even know at this stage what the problem is all about.

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SECOND STEP — THE CHARACTERIZATION OF THE FACTUAL SITUATION After we have preliminary uncovered the facts in the situation presented, we are now faced with the duty of determining whether the problem before us is one, say, of succession or of conjugal marital rights; one of tort or of contract. This process is called the characterization of the factual situation. We may define the process as the assigning o f the proven facts into their particular category (that is, do the facts constitute a problem of succession or a problem of marital property rights;or do they constitute a problem in torts or a problem in contracts)? Examples: (1)

A Californian wife dies. Her Californian husband claims the entire conjugal property as his, alleging that under California law on marital property, the entire conjugal property is his and that this is so not because of succession, but because of accretion. Under our own law, this is clearly a problem, not of accretion, but of succession. Issue: Whose characterization of the factual situation shall apply California or Philippine law? This is a problem in the characterization of a factual situation.

(2)

Under Art. 26 of the Family Code, a marriage celebrated abroad is valid in the place of celebration, EXCEPT when the marriage is bigamous, or polygamous, or incestuous. Now, then, in our country a marriage between first cousins is incestuous. Suppose in the foreign country where the marriage took place, the same marriage is not incestuous, whose definition or classification or characterization of “incestuous marriage” should we follow: the characte­ rization in the Philippines, or the characterization in the foreign country? This, again, is an example of a problem in the characterization of a factual situation.

Suggested Solution: (1) o

In the absence of an express conflicts rule on the matter, it is suggested that the characterization of the forum should be adhered to, unless there would result a clear case of injustice. Hence, in the first example given, the Supreme Court of the Philippines (without, however, discussing the question of characterization) apparently considered the problem, not one of accretion to conjugal

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property, but as one involving succession, inasmuch as the conjugal properties referred to were lands located in the Philippines. (See Gibbs v. Government o f the Philippine Islands, 59 Phil. 293). Parenthically, it should be observed that inasmuch as the case was held to be one of succession, inheritance taxes could properly be collected. Obviously, the Court must have been swayed by the financial benefit that would accrue to our government,' if it would consider, as it really did, the matter as one involving succession. (2)

If we have an express conflicts rule on the matter of characterization, there is no question that we have to abide by such characterization. Thus, in the second example given (concerning the incestuous marriage), Art. 26 of our Family Code specifically provides: “All m arriages solemnized outside the Philippines in accordance with the laws in force in the country where they were performed, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.” It is, therefore, clear that the marriage abroad of the Filipino first cousins, even if valid where celebrated, shall be considered VOID in our country, because under OUR characterization, a marriage between first cousins is INCESTUOUS. (Art. 38, par. 1, Family Code).

THIRD STEP — THE DETERMINATION OF THE CONFLICTS RULE WHICH IS TO BE APPLIED After having properly classified the factual situation into its legal category, the next question that will be asked is: what conflicts rule must we follow — the conflicts rule that we have on the matter, or some foreign conflicts rules? The question has been made necessary in view of the existence in the world today not only of conflicting internal laws, and conflicting internal judgments, but also of conflicting conflicts rules. However, there can be little debate on this matter; it is clear that our own conflicts rule, that is, the conflicts rule of the forum, should indubitably be applied. There are two good reasons for this: firstly, this is precisely the purpose of a conflicts rule; secondly, at this stage, we still have to definitely

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ascertain the precise foreign country that has the nearest or the most intimate connection with the facts that have been brought out.

FOURTH STEP — THE CHARACTERIZATION OF THE POINT OF CONTACT OR THE CONNECTING FACTOR On the assumption that we have determined the proper conflicts rule which we are going to follow, a new problem confronts us: whose characterization of the point of contact should be adhered to? Examples: (1)

X dies in the Philippines, with personal and real properties situated here. Under Art. 16, par. 2 of the Civil Code, the successional rights to his estate shall be governed by his national law. During his lifetime, X had become a naturalized Filipino citizen, but inasmuch as he had failed to comply with certain requisites of Chinese law (he was a Chinese, when he sought Philippine naturalization), China up to the time of his death still considered him a Chinese national. Now, then, under Art. 16, par. 2, the point of contact is his NATIONALITY. The trouble is what was his nationality at the time of his death? Applying Chinese characterization, he was a Chinese; applying our characterization, he was already a Filipino. Whose characterization must we follow? This is an example of a problem in the characterization of the point of contact.

(2)

Aboard a ship of Philippine registry, anchored at a pier in country X, two Filipinos were married. Art. 26 of the Family Code, provides that the validity of the marriage depends generally on the observance of the lex loci celebrationis (the law of the place of celebration). The question, however, is: where is the locus celebrationis (place of performance or celebration) is it the Philippines, because the ship is of Philippine registry; or is it country X, because it was certainly performed within the territorial boundaries of said country? This again is an example of a problem involving the characterization of the point of contact.

•a

PHILIPPINE CONFLICT OF LAWS

Suggested Solution: In case of doubt, the characterization of the forum must certainly prevail. This seems to be the prevailing weight of authority. (Lorenzen, Selected Essays, p. 135). Hence, in the first example, FX should be considered a Filipino. This also accords with the time-honored principle that nationality is a matter exclusively determinable by the country concerned. As it happens in this case, the forum considers him its own citizen. In the second example, the marriage should be considered to have been performed in the Philippines. To the general rule that the characterization of the forum determines the point of contact, we must give at least two (2) exceptions: (1)

If the problem deals with real or personal property, it is virtually futile to speak of characterization, particularly if the question deals with the validity of their disposition or alienation, or the capacity of the contracting parties. In so far as Philippine Conflict of Laws is concerned, it is the lex situs that will govern. If the property is situated at the boundary of two states, the law that should apply in case of conflict (as when, applying the law of the first state, the contract will be considered valid; but, applying the law of the second state, the contract will be deemed void) is the lex situs of the portion of the land directly involved.

(2)

If the forum is merely an incidental place of trial, the characterization of the forum has to give way to any common characterization that may exist in the foreign countries involved. Examples'. A enters into a contract with B, although at the time of agreement they are in different countries. Let us assume that under the law of the two countries involved, the locus celebrationis is State X; let us also assume, that under our own characterization, the locus celebrationis is State Y. If our forum has no substantial connection with the case (as when, for instance, the parties are neither citizens nor residents of our country, and the transaction has no connection whatsoever with the Philippines), we may very well refuse to assume jurisdiction over the case on the ground of forum non conveniens. However, should we decide to consider the

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case on the merits, we should cast aside our own characterization; instead we should consider State X as the true locus celebrationis. After all, this is the common characterization of the two countries essentially involved. (See Lorenzen, Selected Essays, p. 135). If, upon the other hand, there is no common characterization, We are of the b elief that we may avail ourselves of the characterization that will uphold the efficacy of the contract. If this may be attained by making use of our own characterization, by all means, we must do so.

FIFTH STEP — THE CHARACTERIZATION OF THE PROBLEM AS SUBSTANTIVE OR PROCEDURAL The Basis o f the Problem: At the outset, it must be stated that the problem of characterization of the matter as one pertaining to “substantive law” or “procedural law” is not met in ALL kinds of conflicts cases; the question is relevant only in some of them. Secondly, the problem itself does not seem so important inasmuch as the distinction between what is “substantive” and what is “procedural” treads dangerously on a very thin line: in many instances a denial of certain remedial processes often results in the negation of substantial justice; and all too often what may appear to be “substantial rights” are really nothing but “procedural processes” thickly disguised. There is no question that procedural matters are governed by the law of the forum. This was discussed under the heading of “Exceptions to the Application of the Proper Foreign Law.” Therefore, such matters as service of process, joinder or splitting of a cause of action, periods within which to appeal, requisites for the perfection of an appeal, and so forth are governed by the lex fori. All states regard them as purely procedural questions. This is true even if the action is based upon a foreign substantive law. (Restatement o f the Conflict o f Laws, Sec. 685; Salonga, Private International Law 131 [1979]). A law on prescription of actions is sui generis in Conflict of Laws in the sense that it may be viewed either as procedural or substantive, depending on the characterization given such a law. However, the characterization of a statute into a procedural or substantive law becomes irrelevant when the country of the forum has a “borrowing statute.” Said statute

ILIPPINE CONFLICT OF LAWS

has the practical effect of treating the foreign statute of limitation as one of substance. (Goodrich, Conflict of Laws 152-153 [1938]). A “borrowing statute,” directs the state of the forum to apply the foreign statute of limitations to the pending claims based on a foreign law. (Siegel, Conflicts 183 [1975]). While there are several kinds of “borrowing statutes,” one forum provides that an action barred by the laws of the place where it accrued, will not be enforced in the forum even though the local statute has not run against it. (Goodrich and Scoles, Conflict o f Laws, 152-153 [1938]). Section 48 of our Code of Civil Procedure is of this kind. Said Section provides: “If by the laws of the state or country where the cause of action arose, the action is barred, it is also barred in the Philippine Islands.” Section 48 has not been repealed or amended by the Civil Code of the Philippines. Article 2270 of said Code repealed only those provisions of the Code of Civil Procedure as to which were inconsistent with it. There is no provision in the Civil Code of the Philippines, which is inconsistent with or contradictory to Section 48 of the Code of Civil Procedure. (Paras, Philippine Conflict o f Laws 104 [7th ed.]). In light of the 1987 Constitution, however, Section 48 cannot be enforced ex proprio vigore insofar as it ordains the application in this jurisdiction of Section 156 of the Amiri Decree No. 23 of 1976. The courts of the forum will not enforce any foreign claim obnoxious to the forum’s public policy. (Canadian Northern Railway Co. v. Eggen, 252 U.S. 553, 40 S. Ct. 402, 64 L. ed. 713 [1920]). To enforce the one-year prescriptive period of the Amiri Decree No. 23 of 1976 as regards the claims in question would contravene the public policy on the protection to labor. (Cadalin v. POEA; 57 SCAD 260 [1994]). However, in matters like the Statute of Frauds and periods of prescription, some states view them as pertaining to “Substantive Law”; others treat them as part of “Procedural Law,” and still others, just cannot seem to make up their mind on the subject. Now, then, if the forum considers them as substantive, and the foreign state designated in the forum’s conflicts rule chooses to view them as procedural (or vice versa), whose characterization shall prevail? It is obvious that an arbitrary selection one way or the other may prove unjust. Suggested Solution: It would seem that the modern trend today would be to consider the prescriptive period or the Statute o f Frauds that

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the parties had in mind at the time the transaction took place. For instance, if Englishmen in England undertook a contract, all of the elements of which are in England, it is obvious that they intended English law to completely govern their actuations; it is also evident that they intended the English law on prescription and the English Statute of Frauds to control their rights and obligations. This, in nutshell form, is what is referred to as the “totality approach” of Prof. Rabel. According to this eminent authority, we have to: (1)

first get the law intended by the parties to govern the contract;

(2)

then, proceed to apply that intended law in its “TOTALITY” including its periods of prescription and its Statute of Frauds.

It is evident, however, that the “totality approach” must admit at least one exception; namely, if the subject matter governs property located in the Philippines, our own law on prescription and our own Statute of Frauds must apply. This is the clear import of Art. 16, par. 1 of the Civil Code: “Real property as well as personal property is subject to the law of the country where it is situated.” By way of resume of our position on the subject, we hereby restate our suggested rule on the matter: The forum must apply the periods of prescription and the Statute of Frauds which the parties evidently had in mind at the time they entered into the transaction; however, when the subject matter deals with real or personal property located in the forum, the forum has no alternative except to apply its own periods of prescription and its own Statute of Frauds, unless of Course the forum’s conflicts rules provide otherwise. Example: A , an Englishman, borrowed a sum of money in England from B, another Englishman. The contract was evidenced by a written document, a promissory note. The contract subsequently matured. Six (6) years after maturity, suit was brought in the Philippines by B against A for the recovery of the amount •a borrowed. Let us assume that in England, the prescriptive period to sue on a written contract is four (4) years; in the Philippines, ten (10) years is the period of prescription (Art. 1144, Civil Code). Issue: Has the cause of action prescribed? If we apply English law, there is no doubt

PHILIPPINE CONFLICT OF LAWS

that the action has already prescribed; if we apply Philippine law, we can still entertain the cause of action. ANSWER: Regardless of the Philippine or English characterization of prescription (as to whether it is substantive or procedural), the answer is: the action has already prescribed. English law was evidently intended by the parties to govern the case; therefore, we should apply the English law on prescription. NOTE: If the suit had been for the recovery of a parcel of land in the Philippines, or for the recovery of a cai"situated here, there is no question that our own law on prescription must control. (See Art. 16, par. 1, Civil Code). The rule that we have just discussed is apparently the rule that we have in Sec. 48 of our own Code of Civil Procedure. This section has not yet been repealed; there is no contradictory legislation in our Civil Code or anywhere else in our laws. Said section says: “Sec. 48. I f Barred at Place Where Cause of Action Arose, Barred Here. — If, by the laws of the state or country where the cause of action arose, the action is barred, it is also barred in the Philippine Islands.” Unfortunately, in the case of D’ Almeida v. Hagedorn, (1080, May 22, 1957), the Supreme Court did not apply said Sec. 48. In said case, an action was brought in 1945 in the Philippines on two demand notes executed in 1942 and 1943 in Hongkong where both the debtor and the creditor were residing until the Philippines was liberated from the Japanese Occupation Forces. The Court, in applying the rule that the Moratorium Laws (Exec. Qrders Nos. 25 and 32; Rep. Act No. 342) suspended the running of the prescriptive period, ruled that prescription is governed by the law o f the forum; it, therefore, concluded that the action had not yet prescribed. It would seem from this ruling that even if the cause of action accrued in Hongkong, and has already prescribed under Hongkong law, still the action has not yet prescribed under the law of the forum, that is, the law of the Philippines. Sec. 48, therefore, of the Code of Civil Procedure was never taken into consideration. However, one important fact must be stated: in the I f Almeida case, there was NO PROOF that the claim was barred under Hongkong law; it is well-settled that in the

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absence of proof of the proper foreign law, it is presumed to be the same as Philippine law. Regarding Sec. 48 of the Code of Civil Procedure, a query may be asked: suppose the cause of action accrued in TWO or MORE foreign states, the prescriptive law of which state must we consider? It is submitted that if the cause of action is divisible, that is, if one part of it accrued in State A (where the action has prescribed) and another part accrued in State B (where the action has not yet prescribed), we may still entertain in our jurisdiction that part which has not not prescribed. Upon the other hand, if the cause of action be indivisible, we are not allowed to split it; in such a case, we shall have no alternative except to consider again the law intended by the parties (in its totality, including the period of prescription) unless, of course, in the implementation of said law our judicial processes may be unduly hindered or inconvenienced. (See Goodrich, Conflict of Laws, p. 189).

SIXTH STEP — THE PLEADING AND PROVING OF THE PROPER FOREIGN LAW How the proper foreign law is pleaded and proved has already been discussed. It is understood that any previous characterization already made may be rendered practically useless unless there is competent evidence of the existence of the foreign law on the matter, for in such a case, we shall have to use our own internal law. It will not be amiss at this point to reiterate that if a duly proved foreign law has already been given a judicial interpration in the country of origin, it must generally be given an identical interpration in the Philippines, unless, of course we already have a similar or identical internal law, and said internal law has received a diametrically opposite construction before our own tribunals.

SEVENTH STEP — THE APPLICATION OF THE PROPER FOREIGN LAW TO THE PROBLEM Once we have ascertained the pertinent facts, characterized the situation and the point of contact, made up our mind as to the proper conflicts rule, and been satisfied with the relevancy, competency, and admissibility of the foreign law or laws involved, nothing else remains except the application of the selected proper law to the problem at hand.

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PHILIPPINE CONFLICT OF LAWS

- THEORIES ON CHARACTERIZATION There are at least six (6) different theories on characterization or classification: the lex fori theory, the lex causae theory, the universal analytical theory, the dual theory of lex fori and lex causae, the autonomous theory, and the totality theory. (1)

The lex fori theory — this is the most common theory: here, the forum merely considers its own concepts its own characterization, otherwise, according to the adherents of this theory (Bartin and Kahn) there will be ’A virtual surrender of sovereignty right in the forum’s own home. (See Graveson, Conflict o f Laws, p. 32; Lorenzen, Selected Essays, p. 92). This theory has one outstanding defect; unless the characterization of the foreign state is considered, grave injustice may apply. (Robertson, Characterization in the Conflict of Laws, p. 33). This theory is, however, apparently adhered to in the Philippines. (See Gibs v. Government o f the Philippine Islands, 59 Phil. 293).

(2)

The lex causae theory — This is the exact opposite of the lex situs theory: here, we are supposed to follow the characterization of the foreign state which is the principal point of contact. Advocated by the Frenchman Despagnet, this theory has one important drawback — it begs the question, for the simple reason that we do not know exactly what the principal point of contact (the lex causae) is UNTIL AFTER we shall have made a characterization of the factual situation. (See Lorenzen, Selected Essays, p. 135).

(3)

The universal a n a ly tica l theory (also called the comparative approach theory) — Here, common factors both in the lex fori and the lex causae are taken into consideration in order to avoid unjust results; stated differently, characterization comes only after a general comparative analytical study of the jurisprudence of all the states involved. (See Graveson, Conflict of Laws, p. 33). Indeed, “this operation includes comparative research. Thoughtful courts have always employed this method, but systematic efforts are needed to free national conflicts rules from undue dependence on internal conceptions.” (Rabel, Conflict o f Laws, Vol. I, pp. 49-50). The theory,

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also called the com parative approach theory, is championed notably by Rabel, Robertson, and Beckett. (4)

The dual theory o f lex fori and lex causae — This is similar to the comparative approach theory except that instead of considering worldwide conceptions, only two concepts enter into the picture the characterization of the lex fori and that of the lex fori and that of the lex causae. (See Graveson, Conflict o f Laws, p. 33).

(5)

The autonomous theory — This theory sponsored by Dr. M artin W olff wants the forum to consider the characterization o f the country referred to in the conflicts rule of the lex causae. Hence, if the characterization in the forum State A points to State B as the lex causae, and the conflicts rule in State B refers to State C as the proper point of contact, it is the characterization in State C which must be used by State A. This theory has hardly any follower. (See Wolff, Private International Law, p. 155).

(6)

The totality theory — This is a very simple theory: get the characterization intended by the parties; or to put it more elaborately, get the law intended by the parties to apply, and then proceed to apply the characterization given by that intended law. The trouble with this theory is that sometimes it is hard to discover exactly what law was intended by the parties.

'* V * 'V ' '

. ' , "y .

■ ,/

Chapter V3I THE VARIOUS THEORIES ON STATUS AND CAPACITY

STATUS DEFINED When an individual is referred to as being married, widowed, divorced, or single; when his relationship with his parents is spoken of as legitimate or illegitimate we concern ourselves with what is generally referred to as his status. How is status defined? Status, in our opinion, is the place o f an individual in society, and consists of personal qualities and relationships, more or less permanent, with which the state and the community are concerned. Among the things which make up the status of a person are the following: his being married or unmarried, widowed, or divorced; his being a legitimate or an illegitimate child of his parents; his being a minor or his having reached the age of majority; his capacity to enter into various transactions. Our definition is primarily based on that given by Prof. Beale of Harvard University. Prof. Beale says that status — “is a personal quality of relationship, not temporary in nature nor terminable at the mire will of the parties, with which third persons and the state are concerned.” (Beale, Conflict of Laws, Vol. 11, p. 649).

CAPACITY DEFINED Capacity is merely a part of status, and may be defined as the sum total of his rights and obligations. (See Graveson, Conflict of Laws, p. 96).

100

THE VARIOUS THEORIES ON STATUS AND CAPACITY

101

Our Civil Code distinguishes two (2) kinds of capacity: capacity to act and juridical capacity: (1)

capacity to act — (active capacity) — power to do acts with legal effects;

(2)

juridical capacity — (passive capacity) — the fitness to be the subject of legal relations. (See Art. 37, Civil Code).

CHARACTERISTICS OF STATUS (1)

Status is conferred principally by the state not by the individual. (However, in certain forms, such as the status of husband and wife, or of adopter and adopted, conferment by the state is predicated upon some voluntary act of the individual: for instance, his entering into a marriage, or his petitioning for an adoption.) (See Graveson, Conflict of Laws, p. 93.)

(2)

Status is a matter of public or social interest. [Thus, marriage, for example, is considered as a special contract. (Art. 1, Family Code)].

(3)

Status being a concept of social order, cannot easily be terminated at the mere will or desire of the parties concerned. (See Beale, Conflict o f Laws, Vol. II, p. 649).

(4)

Status is genernlly supposed to have a universal character: when a certain status is created by the law of one country, it is GENERALLY judicially recognized all over the world. (Lord Justice Scott in Re Luck, 1940 1. Ch. 864).

PERSONAL LAW As a consequence of the generally universal imprint of status, the phrase “personal law” has come into being: the “personal law" of an individual may be defined as the law that attaches to an individual, wherever he may go — a law that generally governs his status, his capacity, his family relations, and the consequences of his actuations; this “personal law” may be his “national law” or his “domiciliary law” or the “law of the situs,” depending upon the theory applied and enforced in the forum.

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JUSTIFICATION OF PERSONAL LAW Prof. Graveson writes that: “The idea of personal law is based on the conception of man as a social being, so that those transactions of his daily life which affect him most closely in a personal sense, such as marriage, divorce, legitimacy, many kinds of capacity, and succession may be governed universally by that system of law most suitable and adequate for the purpose.” (Graveson, Conflict of Laws, p. 66). In the absence of such uniformity, grave uncertainty will result. (Rabel, Conflict o f Laws, Vol. I, pp. 107-108).

DEFECT*OF PERSONAL LAW “Personal law” is understood differently in various countries and even when there is uniformity in the concepts, still varying theories as to the determinative law have come up into play: some states consider NATIONALITY as the connecting factor; others, the DOMICILE; and still others, the SITUS. Moreover, the characterization of nationality, domicile, and situs has always been variable.

THE THEORIES ON PERSONAL LAW OR THE LAW THAT SHOULD GOVERN STATUS AND CAPACITY IN GENERAL There are at least three (3) theories on what the personal law should be: (1)

The NATIONALITY theory — by virtue of which the status and capacity of an individual are generally governed by the law of his nationality. (This is also called the PERSONAL theory).

(2)

The DOMICILIARY theory — which regards the law of the domicile as the proper determinative law on status and capacity. (This is also known as the TERRITORIAL theory.)

(3)

The SITUS theory — which views the particular place or situs of an event or transaction as generally the controlling law. (This has also been referred to as the ECLECTIC theory).

Each theory has its own merits and demerits: we cannot be dogmatic on this point. Much certainly depends on the social, economic, religious, and political background of the individual

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country involved: some countries even try to combine the theories without any harmful effect. (See Graveson, Conflict o f Laws, p. 66). Thus, some quarters have suggested that citizens should be governed by their national law, and aliens, by their domiciliary law. The theories will be analyzed and discussed in the succeeding chapters: obviously, the NATIONALITY theory will be considered first in as much as in our country, the same generally prevail, on account, among others, of the following provisions of the Civil Code and the Family Code, respectively. (1)

Art. 15 of the Civil Code. Laws relating to family rights and duties, or to the status, conditions and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.

(2)

Art. 16, par. 2 o f the Civil Code. Intestate and testa­ mentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

(3)

Art. 21, o f the Family Code. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials. Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage.

(4)

Art. 1039, o f the Civil Code. Capacity to succeed is governed by the law o f the nation of the decedent. NOTE: The capacity to inherit is not governed by the national law of the heirs, devisee, or legatee, but by the national law of the decedent. This is true whether the succession be testate or intestate.

Chapter VIII THE NATIONALITY THEORY

THE THEORY RESTATED As has already been said, the NATIONALITY THEORY is the theory by virtue of which the status and capacity of an individual are generally governed by the law of his nationality. This is the theory which we have principally adopted in the Philippines. (Arts. 15, 16, 1039, Civil Code; Art. 21, Family Code).

NATIONALITY AND CITIZENSHIP While nationality is membership in an ethnic, social, racial, and cultural group, citizenship is membership in a political society. This is the classic distinction between the two in political science, international business, and sociology classes. Thus, as a political unit, the state may consist of several nations, e.g., United States citizens may really be composed of English, French, German, Bulgarian, Japanese, Chinese, Filipino, and other nationals. From another viewpoint the term national includes not only citizenship, but all those owing allegiance to a particular state, like subjects, or the inhabitants of colonies. However, in this treatise on Philippine Conflict of Laws, we shall consider nationality and citizenship as SYNONYMOUS terms: thus, when we say that successional right to the estate of a person shall be governed by his national law, we really mean the law of the state of which the deceased was a citizen at the time of his death.

DEFECTS OF THE NATIONALITY THEORY The nationality theory poses certain defects: (1)

Sometimes, change of nationality or citizenship is hard to effectuate: thus, a person who may no longer 104

THE NATIONALITY THEORY

105

wish the law of his country to follow him whenever he may go (because he has found it undesirable, e.g., refugees from Communist or Socialist countries) may find it difficult to be naturalized elsewhere. (2)

Some individuals, for varying reasons are STATE- , LESS. What will be their personal law?

(3)

As will be discussed later, there are persons possessed of DUAL or MULTIPLE nationalities. Which citizenship will control?

(4)

It is not always desirable to apply to aliens their national law.

THE THREE KINDS OF CITIZENS OF THE PHILIPPINES (a)

Natural-born citizens — those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. (Art. TV, Sec. 2, The 1987 Philippine Constitution). (This must be distinguished from the native born citizen, one born in the country of which he is a citizen. Hence, a child born to a Filipino mother in Germany is a natural born, but not native born citizen). [NOTE: Under the 1987 Constitution, certain government officials must be natural-born Filipinos, e.g. the Chief Justice and Associate Justices of the Supreme Court, the Senate president and members of the Senate, the speaker and members of the House of Representatives, the chairmen and members of the Constitutional Commissions — Civil Service, Audit, Elections.]

(b)

Naturalized citizens — citizens who are not natural-born citizens; those who become such through ju d i­ cial proceedings. (See Art. TV, Sec. 1 [4], the 1987 Phil. Const.).

M

Citizens by election — citizens who by virtue of certain legal provisions, become such by choosing (or electing) Philippine citizenship at the age of twenty-one (21) or within a reasonable time thereafter. (See In Re Petition of Zita Ngo Burca, L-24252, Jan. 30, 1967).

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PHILIPPINE CONFLICT OF LAWS

TWO THEORIES ON WHETHER PLACE OR ANCESTRY DETERMINES CITIZENSHIP (1)

Jus soli — If both in a country, a person is a citizen of the same. (This is not applied in the Philippines today). (Tan Chong v. Sec. o f Labor, G.R. 47616, Sept. 16, 1947; Tio Tian v. Rep., L-9602, April 25, 1957).

(b)

Jus sanguinis — One follows the citizenship of his parents; this is citizenship by blood. (This is the rule followed in the Philippines).

THE PROBLEM OF DUAL AND MULTIPLE NATIONALITIES Strictly speaking, the problem of dual or multiple nationalities or citizenships can hardly arise because citizenship is a matter to be exclusively determined by a country’s own law. In other words, Philippine law are only allowed to determine who are Filipino citizens and who are not. They may not ordinarily state that a person is, for example, a Chinese or a German; they may only decree that said person is NOT a Filipino. The determination by our tribunals of a person’s particular foreign citizenship cannot, of course, be regarded as binding by other courts. Thus, Art. 2 of the Hague Convention on Conflict of Nationality Laws (April 12, 1930) says: “Any question as to whether a person possesses the nationality of a particular state should be determined in accordance with the law of that state.” EXAMPLE: A Chinese applicant for naturalization in the Philippines had all the qualifications and none of the disqualifications. However, the Solicitor-General objected on the ground that he had not previously obtained permission to renounce Chinese citizenship from the Chinese Ministry of the Interior, which permission was indispensable under Chinese Law. The Philippine Court, in the case of Johnny Chaustinek v. Republic, (G.R. L-2275, May 18, 1851), held that the applicant can be naturalized, because insofar as our country is concerned it is insignificant that he disobeyed Chinese law. What matters is his compliance with our laws. Now, then, it is clear that in so far as we are concerned, the applicant is now a Filipino. Suppose that in China, for failing to follow Chinese rules, he is still regarded as a Chinese citizen — will this not be a case of DUAL CITIZENSHIP?

THE NATIONALITY THEORY

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ANSWER: Strictly speaking, this is not a case of dual citizenship. In so far as the Philippines is concerned he is only a Filipino, not a Chinese. And insofar as China is concerned, he may be only a Chinese, not a Filipino. However, from the viewpoint of a third state, dual or multiple citizenship may really exist. Thus, in the example given, Japan, a third state, may view the applicant as BOTH a Filipino and a Chinese the moment he is naturalized. It is therefore, in this sense that we shall now try to solve the problem of personal law in connection with multiple or dual citizenship. Suggested instances and their solutions: (a)

A testator, considered a Filipino citizen under our law, and a Chinese under Chinese law, died in France, leaving properties in the Philippines. How should a Filipino judge in a Philippine court of justice determine the successional rights to the estate of the decedent? ANSWER: Inasmuch as we regard him as a Filipino citizen, there is no doubt that applying Art. 16, par. 2 of our Civil Code, Philippine law shall control the successional rights to his estate. (Rule — get the law of the forum if the forum is one of the countries of which the deceased was a national).

(b)

A testator, considered a Chinese under Chinese law, and a Japanese under the Japanese law, died in Manila, leaving properties in the Philippines. Prior to his death, the deceased was domiciled in Japan. How should a Filipino judge presiding over a Philippine tribunal adjudicate successional rights to the estate of the deceased? ANSWER: Japanese law shall be applied because the deceased was BOTH a citizen and a domiciliary of Japan. Japanese law, obviously is preferred over Chinese law, for the DOMICILE was also in Japan. In a case like this, it has been said that the domiciliary theory. (Rule — If the deceased is not a citizen of the forum, we must get the law of the nation of which he was both a national and a domiciliary. This is the theory of effective nationality: it is evident that here the deceased himself considered the domicile as the more effective connecting factor for his personal law. This rule does not militate against Art. 16, par. 2 of the Civil Code — for after all,

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it cannot be denied that indeed the deceased was a national of Japan at the moment of death.) (See Rabel, Conflict o f Laws, Vol. II, p. 121). (NOTE: The solution given is in accordance with Art. 5 of the Hague Convention on Conflict of Nationality Laws: “Within a third state, a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in personal matters and of any conventions in force, a third state shall apply the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally a resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.” (c)

A testator, considered a Cuban under Cuban law, and a Singaporean under Singaporean law, was domiciled at the moment of his death in Italy. He died in Alaska, leaving properties in the Philippines. How should a Philippine court dispose of the successional rights to his estate? ANSWER: To properly apply Art. 16, par. 2, of our Civil Code, it is believed that in a case like this our rule should be: 1)

first, get the Cuban and the Singaporean law on succession, and apply them insofar as they are consistent with or identical to each other;

2)

secondly, in so far as there is a conflict, we must refer to the law of Italy, the law of the domicile, to resolve the conflict.

Before concluding this discussion on dual or multiple citizenship, let us enumerate chiefly the various ways (c? modalities) in which this situation might arise: (a)

Through a Naturalized Citizen’s Failure to Comply with Certain Legal Requirements in the Country of Origin Example: A Chinese may become a naturalized Filipino citizen under our law, but if he had not previously obtained from the Chinese Ministry of the Interior

THE NATIONALITY THEORY

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permission to renounce Chinese citizenship, China may still consider him a Chinese citizen. (See Johnny Chaustinek v. Republic, G.R. L-2275, May 18, 1951). (b)

From a Combined Application o f Jus Soli and Jus Soli ■ and Jus Sanguinis Example: While a married Filipino couple was in the United States, a child was bom to the wife. The child is an American citizen under American law, by virtue of the principle of jus soli. At the same time under Philippine law, he is a Filipino citizen because of jus sanguinis.

(c)

By the Legislative Act of States Example. A Filipino citizen may by the legislative act of a foreign state be considered by such state also as its citizen. The reason for the award may of course, vary.

(d)

By the Voluntary Act of the Individual Concerned Example: A citizen of State X may become a naturalized citizen of State Y, but at the same time, he may have received permission from State X to remain a citizen of State X . (See Wolff, Private International Law, p. 128).

DUAL ALLEGIANCE OF CITIZENS Aznar v. Comelec & Emilio Osmeiia G.R. No. 83820, May 25, 1990 Justice Edgardo Paras: The statement in the 1987 Philippine Constitution that “dual allegiance of citizens is inimical to the national interest and shall be dealt with by law” (Art. IV, Sec. 5) has no retroactive effect. 09 And while it is true that even before the 1987 Consti­ tution, our country had already frowned upon the concept of dual citizenship or allegiance, the fact is it actually existed. Be it noted further that under the aforecited proviso, the effect of such dual citizenship or allegiance shall be dealt with by a future law. Said law has not yet been enacted.

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PHILIPPINE CONFLICT OF LAWS

THE PROBLEM OF STATELESS INDIVIDUALS (a)

How statelessness is brought about: A person may become stateless by any of the follow­ ing means:

(b)

1)

He may have been deprived of his citizenship for any cause, such as the commission of a crime;

2)

He may have renounced his nationality by certain acts, express or implied;

3)

He may have voluntarily asked for a released from his original state;

4)

He may have been born in a country which recog­ nizes only the principle o f ju s sanguinis — citizenship by blood, of parents whose law recognizes only the principle of jus soli — citizenship by birth in a certain place. Thus, he is neither a citizen of the country where he was born, nor a citizen of the country of his parents.

Personal law of stateless individuals: The Hague Conference of 1928 on International Private Law suggested that the personal law of stateless individuals shall be: 1)

the law of the domicile (habitual residence); or

2)

secondarily the law of the place of temporary residence. (See Rabel, Conflict of Laws, Vol. 2, p. 123.) (NOTE: The query has been asked — What rule shall govern if a stateless person has no domicile? The question assumes an impossible premise; as will be seen in the Chapter on domicile, no natural person can ever be without a domicile.)

SUCCESSIONAL RIGHTS Under Art. 16 of the Civil Code, the rights to the succession of a person are governed by his national law. Suppose the deceased had no nationality or citizenship, what should apply? ANS.: The law of the domicile. (Suppose there is no domicile? This cannot be, for no person can ever be without a domicile.)

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WHERE A DECLARATION OF PHILIPPINE CITIZENSHIP MAY BE MADE A judicial declaration that a person is a Filipino citizen cannot be made in a petition for naturalization for the reason that in this jurisdiction, there can be no independent action for the judicial declaration of the citizenship of an individual. Courts of justice exist for the settlement of justiciable controversies, which imply a given right, legally demandable and enforceable, an act or omission violative of said right, and a remedy, granted by law for said breach of said right. As an INCIDENT only of the adjudication of the rights of the parties to a controversy, the court may pass upon, and make a pronouncement relative to their status. Otherwise such pronouncement is beyond judicial power. This holding OVERRULES the holding in Pablo y Sen, et al. v. Republic, L-6868, April 30, 1955 and other previous cases to the effect that the court can make a declaration that an applicant for naturalization is already a Filipino citizen in the same naturalization proceedings if the evidence so warrants. (Tan Yu Chin v. Republic, L-15775, April 29, 1961; Tan v. Republic, L-16108, Oct. 31, 1961; Dionisio Palaran v. Republic, L-15047, Jan. 20, 1962; Reyes, et al. v. Republic, L-17642, Nov. 27, 1964; Lao Yap Han Diok v. Republic, L-19107-19109, Sept. 30, 1964.) Indeed a declaration of Philippine citizenship CANNOT be validly made in an action for declaratory relief (In Re Villa Abrille v. Rep., L-7096, May 31, 1956) or in a summary action for a change or correction in the Civil Registry under Art. 412 of the Civil Code. (Tin v. Rep., L-5609, Feb. 5, 1964). One instance when a declaration of Philippine citizenship may be made is a petition for injunction (to restrain for instance the Alien Control Officer, acting under orders from an Associate Commissioner of Immigration, from compelling certain people, allegedly Filipinos, to register as aliens). (Lorenzo Lim, etc. v. De la Rosa, L-17790, March 31, 1964). In case a person claims to be a Filipino, doubts must be resolved in favor of the Government and against the claimant. (Commissioner o f Immigration, et al. v. Garcia, L-28082, June 28, 1974). Lorenzo Lim & Juana Alvarez Lim v. De la Rosa, etc. L-17790, March 31, 1964 FACTS:

Lorenzo Lim alleges that he is a citizen of the Philippines, but the Department of Justice, in three separate opinions rendered in 1955, 1956

PHILIPPINE CONFLICT OF LAWS

112

T*

HELD:

and 1958, denied said claim. Pursuant to said opinions, respondent Alien Control Officer, upon orders from respondent Associate Commissioner of the Bureau of Immigration, required said petitioner to register as an alien within ten (10) days upon receipt of the notice in accordance with the provisions of the Alien Registration Act under which all aliens residing in the Philippines must register with the Bureau of Immigration. Petitioner Lorenzo Lim and his wife, the other petitioner thereupon filed an injunction suit with the Court of First Instance (now Regional Trial Court) of Manila to enjoin respondents from requiring or compelling them (the spouses) to register as aliens. The lower court, after hearing, rendered judgment holding that the said spouses are Filipino citizens, and enjoining respondents from requiring their registration as aliens. Respondents brought this appeal on the principal ground that petitioners’ citizenship cannot be determined under the petition. What would be the remedy of a citizen or an inhabitant of the country claiming to be a citizen thereof, who is being required or com pelled to register as an alien by administratrative officers of the Government, who, relying upon rulings or opinions of superior administrative officers, are in turn complying with their duty? If the person claiming to be a citizen of the country who is being required or compelled to register as alien can show, establish or prove that he is such citizen, the remedy of injunction to prevent the officers from requiring or compelling him to register as alien is certainly the proper and adequate remedy to protect his right. The finding of the trial court that petitioner Lorenzo Lim is such a citizen being supported by the evidence presented, the judgment appealed from is affirmed. In the case at bar, the following were proved:

THE NATIONALITY THEORY

113

(a)

After the passage of Commonwealth Act No. 625, Lim elected Philippine citizen­ ship.

(b)

In 1955, he was a registered voter.

(c)

In 1957, he was issued a Filipino passport.

(d)

In 1957, also, the Court of First Instance (now Regional Trial Court) of Zamboanga City, in granting a petition for a change of name stated that Lim is a Filipino citizen.

(e)

Lim has never been registered as an alien.

(f)

The certificate of registration of his busi­ ness name recites that Lim is a Filipino citizen.

In re: Petition for correction of entry of certificate of birth of the minor Chua Tan Chuan L-25439, March 28, 1969 FACTS:

An illegitimate child of a Chinese father and a Filipino mother was registered in the Civil Registry as a Chinese. She filed a petition for the correction o f the entry to make her citizenship read as “Filipino” in view of the absence of a marriage between her parents. Will the petition prosper?

HELD:

(Thru Mr. Justice Enrique M. Fernando, later to become Chief Justice): No, the petition will not prosper, because although ostensibly this is a mere petition for a clerical correction, still in substance, what is sought is a judicial declaration of Philippine citizenship. (See Reyes v. Republic, L-17642, Nov. 27, 1964). Republic v. Hon. Manolo L. Maddela L-21664, March 28, 1969

FACTS:

Miguela Tan Suat, a Chinese woman married to a Filipino, went to court to seek a declaration of Philippine citizenship and to compel the Commissioner of Immigration to cancel the

PHILIPPINE CONFLICT OF LAWS

114

certificate of registration in view of her mar­ riage. Will the petition prosper? HELD:

(Thru Mr. Justice Querube Makalintal, later to become Chief Justice): No, because generally, no person claiming to be a citizen can get a judicial declaration of citizenship.

<■*

(NOTE: The proper remedy would have been for her to file a petition for citizenship or naturalization under the Burca ruling). Dugcoy Jao v. Republic G.R. No. 29397, March 29, 1983

FACTS:

An illegitimate daughter of a Filipino mother was erroneously registered as an alien. She further claimed that she lost her citizenship upon marriage to an alien. Her alien husband died later. She petitioned the Regional Trial Court for “judicial repatriation” and which the court did declaring her such.

ISSUE:

Was there proper repatriation?

HELD:

No, for the simple fact that there is no law authorizing “judicial repatriation.” The woman in this instance only has to take the necessary oath of allegiance and to register said oath in the civil registry. Regarding the petitioner’s claim of Philippine citizenship prior to the marriage, such may not be established in an action where the mother or his heirs are not partners thereto. Clearly, in a non-adversarial suit where affected persons are not made parties, Philippine citizenship may not be declared.

CITIZENSHIP OF A FILIPINO WOMAN WHO MARRIES A FOREIGNER (1) Rule Prior to the 1973 Constitution If she acquired his nationality, she lost Philippine citizenship otherwise she remained a Filipino.

THE NATIONALITY THEORY

(2)

115

Rule Under the 1973 Constitution A female citizen of the Philippines who marries an alien shall retain her Philippine citizenship, UNLESS by her act or omission she is deemed, under the law, to have renounced her citizenship. (Art. Ill, Sec. 2, 1973 Constitution).

(3)

Rule Under the 1987 Constitution Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it. (Art. TV, Sec. 4, 1987 Constitution).

CITIZENSHIP OF A FOREIGN WOMAN WHO MARRIES A FILIPINO (1) Rule Prior to the MOY YA Case If she has all the qualifications and none of the disqualifications for Philippine citizenship she becomes a Filipino, PROVIDED, that she is able to prove these facts in a proper proceedings. If she is unqualified (lacks qualifications) or disqualified (possesses disqualifications), she cannot be considered a Filipino citizen. This is so even if by virtue of said diverse citizenship, the husband and the wife will not be able to live together. This apparent subversion of family solidarity, and the consequent violation of the duty to live together, according to the Supreme Court, are irrelevant to the issue of citizenship an issue which concerns only the right of a sovereign state to determine what aliens can remain within its territory and under what conditions, they can stay therein. (Chay v. Galang, L-19977, Oct. 30, 1964). The ruling abovestated applied also to the wife of a naturalized Filipino. While it is true that under Sec. 15 of the Naturalization Law, “Any woman who is now or may hereafter be married to a citizen of the Philippines . . . shall be deemed a citizen of the Philippines,” still the law requires that she “might herself be „ lawfully naturalized” implying that she must first prove that she has all the qualifications and none of the disqualifications for naturalization. This rule is in line with the national policy of selective admission to Philippine citizenship, which after all, is a privilege granted only to those who are found worthy thereof, and not indiscriminately to anybody at all on the

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PHILIPPINE CONFLICT OF LAWS

basis alone of marriage to a man who is a citizen of the Philippines, irrespective of moral character, ideological beliefs, and identification with Filipino customs and traditions. (Choy King Tee v. Emilio L. Galang, L-18351, March 26, 1965; Agustin de Austria, et al. v. Conchu, L-20716, June 22, 1965; Olegario Brito, et al. v. Commissioner, L-16829, June 30, 1965). In the case of Zita Ngo Burca (L-24252, Jan. 30, 1967), the Supreme Court thru Mr. Justice Conrado Sanchez, categorically held that the proper proceeding in which an alien woman married to a Filipino can be herself declared a Filipino citizen is a citizenship (naturalization) proceeding. In re: Petition to declare Zita Ngo Burca to possess all the qualifications and none of the disqualifications for naturalization L-24252, Jan. 30, 1967 FACTS:

This was a petition to declare Zita Ngo Burca, a Chinese citizen and wife of Francisco Burca, a Filipino citizen, as possessing “all the qualifications and none of the disqualifications” for naturalization under Commonwealth Act 473 — The Naturalization Law — for the purpose of cancelling her alien registry with the Bureau of Immigration. Notice of hearing was sent to the SolicitorGeneral and duly published. The SolicitorGeneral opposed and moved to dismiss the petition on two grounds: (a)

firstly, that “there is no proceeding established by law or the rules for the judicial declaration of the citizenship of an individual”; and

(b)

secondly, that an an application for Philippine citizenship, Burca’s petition “is fatally defective for failure to contain or mention the essential allegations under Sec. 7 of the Naturalization Law,” such as, among others, the petitioner’s former places of residence. Moreover, there was the absence of the affidavits of at least two supporting witnesses.

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The trial court granted the petition, but the SolicitorGeneral appealed the case to the Supreme Court. HELD:

(a)

“By constitutional and legal precepts, an alien woman who marries a Filipino citizen, does not by mere act o f marriage — autom atically become a Filipino citizen.” Reason: She must possess all the qualifications and none of the disquali­ fications for naturalization. (Ly Giok Ha, et al. v. Galang, et al., L-31332, March 31, 1966). [NOTE: The court observed that if it is enough to have none of the disqua­ lifications (without requiring the presence of qualifications), there is a danger that a person such as a maintainer of a bawdy house, who has not been previously con­ victed by a competent court, could become a Filipino — since it is the conviction that could disqualify.]

(b)

“The rule heretofore adverted to is to be observed whether the husband be: “(1) a natural-born Filipino. (Austria, et al. v. Conchu, L-20716, June 22, 1965); “(2) a naturalized Filipino. (Lao Chay, et al. v. Galang, L-19977, Oct. 30, 1964); or “(3) a Filipino by election.”

(c)

“If an alien woman married to a Filipino does not ipso facto become a Filipino citizen, she has to file a petition for citizenship (a petition for naturalization).” This petition must: (1)

recite that she possesses all the qualifications set forth in Sec. 2, and none of the disqualifications under Sec. 4 of the Revised Naturalization Law;

1X8

PHILIPPINE CONFLICT OF LAWS

(2)

(d)

be filed in the Court of First Instance (now Regional Trial Court) where the petitioner has resided at least one year immediately preceding the filing of the petition.

“Any action by any other office, agency, board or official, administrative or otherwise — other than the judgment o f a competent court o f justice — certifying or declaring that an alien wife of a Filipino citizen is also a Filipino citizen, is hereby declared null and void.”

The Supreme Court, after treating Burca’s petition as one for naturalization, then went to the merits of the petition and denied the same on the ground that not all of her former places of residence had been stated therein, and on the further ground that the petition was not supported by the affidavit of at least two credible persons. Some Observations on the Burca Ruling (a)

If the Court insists on the presence of all qualifications, would this not be unfair? For instance, why demand a 10-year residence period of an alien woman married to a Filipino, when only a 5-year residence is required for an alien man married to a Filipino woman? Besides, how many alien wives can own real estate (prior to becoming a Filipino) or exercise a lucrative trade or profession independently of their Filipino husband, when their principal function is to act as housewives?

(b)

It is unfortunate that in referring to an alien woman married to a Filipino the Court used the phrase “ipso facto,” that is, the Court said that “she does not ipso facto become a Filipino citizen.” Because of the use of the phrase the Court had to conclude that since the woman does not automatically (ipso facto) become Filipino, it follows that she has to do something, namely, ask for naturalization in a naturalization proceeding. It is believed that the more appropriate legal and accurate term is necessarily.” Hence, the alien wife does not “necessarily” become a Filipino by the mere fact of marriage, since it may turn out that indeed she should

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not be. In other words, it is submited that the condition should be resolutory, not suspensive. In other words, upon the occurrence of a bona fide marriage to a Filipino, the alien woman should be presumed immediately as a Filipino. Should she turn out to be disqualified by reason of legal disqualification, she should be stripped of Philippine citizenship. Unfortunately, under the present ruling, the filing of naturalization proceedings on her part has been made a condition precedent. It is even more unfortunate that since the advent of the Naturalization Law, foreign wives of foreign petitioners for naturalization have herefore scarcely been required to file petitions (joint or separate) for naturalization. (2)

R ule A fter the MOY YA Case In Moy Ya Lim Yao v. Com. of Immigration, G.R. No. L21289, 41 SCRA 292, the Supreme Court reversed the Burca ruling and held that “under Sec. 15 of Com. Act No. 473 (the Revised Naturalization Law) an alien woman marrying a Filipino, native-born or naturalized, becomes ipso facto a Filipino provided she is not disqualified to be a citizen of the Philippines under Sec. 4 of the same law. Moreover, “an alien woman married to an alien who is subsequently naturalized here follows the Philippine citizenship of her husband the moment he takes his oath as a Filipino citizen, provided she does not suffer from any of the disqualifications under said Section 4.” The decision in effect ruled that it is not necessary for an alien citizen to prove in a judicial proceeding that she possesses all the qualifications set forth in Sec. 2 and none of the disqualifications under Sec. 4, both of the Revised Naturalization Law. (Yap v. Republic, L-27430, May 17, 1972).

CITIZENS OF THE PHILIPPINES Before the advent of Spain in our country, there were no Filipino citizens. Our inhabitants dwelt in isolated barangays under varfous headsmen. When Spain came, she made all our people “subjects of Spain,” thus, there were still no Filipino citizens. With the coming of the Americans, our political status was clarified by the U.S. Congress, conformably with the provisions of the Treaty of Paris on December 10, 1898 (this treaty transferred our country from Spanish to American sovereignty).

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PHILIPPINE CONFLICT OF LAWS

The Philippine Bill of 1902 (U.S. Act of July 1, 1902) provided in Section 4 thereof — “That all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain signed at Paris, December tenth, eighteen hundred and ninety-eight.” This was the very first document (actually, a fundamental law then) which declared who Filipino citizens were. Now then, did the Philippine Bill of 1902 recognize Filipino citizenship on the mere basis of jus soli, that is, simply because of birth in the Philippines? Actually no, for there is nothing in this Bill which referred to jus soli, however, in an obiter dictum in the case of Roa v. Collector o f Customs, 23 Phil. 321, the Court thru Mr. Justice Street said that ju s soli was recognized in the Philippines. Roa v. Collector of Customs 23 Phil. 321 FACTS:

Roa was born in the Philippines of a Chinese father and a Filipino mother. He was a legitimate child. After his father’s death, he went t8 China to pursue his studies, but later, when he returned to the Philippines (still a minor), he was not allowed entry on the ground that he was a Chinese. Issue: should he be allowed re-entry?

HELD:

(thru Mr. Justice Street). Yes, he should be allowed to re-enter the Philippines in view of his Filipino citizenship. Upon his father’s death, his mother reacquired Philippine citizenship. And because he was a minor, Roa followed his mother’s citizenship. Besides (and this is now the obiter), Roa was born in the Philippines;

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resultantly, by the doctrine of jus soli, he is a Filipino citizen. [N.B. In the cases of Tan Chong v. Sec. o f Labor - GR-L-47616, Sept. 16, 1947, Lam Swee Sang v. Commonwealth, 45 O.G. 1269, and Tio Tian v. Republic, L-9602, April 25, 1957, the Supreme Court ruled that jus soli by itself was never recognized in the Philippines].

CITIZENS OF THE PHILIPPINES UNDER THE 1935 CONSTITUTION AND NEW CIVIL CODE (1)

Those who were citizens of the Philippines at the time of the adoption of the Constitution of the Philippines.

(2)

Those born in the Philippines of foreign parents who, before the adoption of said Constitution, had been elected to a public office in the Philippines.

(3)

Those whose fathers are citizens of the Philippines.

(4)

Those whose mothers are citizens of the Philippines, and upon reaching the age of majority, elect Philippine citizenship.

(5)

Those who are naturalized in accordance with the law. (Art. TV, 1935 Constitution, Art. 48, Civil Code).

CITIZENS OF THE PHILIPPINES UNDER THE 1973 CONSTITUTION (1)

Those who are citizens of the Philippines at the time of the adoption of this Constitution.

(2)

Those whose fathers or mothers are citizens o f the Philippines.

(3)

Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five.

(4)

Those who are naturalized in accordance with law. (Art. Ill, Sec. 1, 1973 Constitution).

(NOTE: It would seem that children born after the effective date of the 1973 Constitution, January 17, 1973, of mothers who are citizens of the Philippines are Filipinos without need o f election to be such. (See No. 3, Sec. 1, Art. Ill,

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PHILIPPINE CONFLICT OF LAWS

1973 Constitution). One important question, however, may arise: was the 1973 Constitution already effective in the MORNING of January 17, 1973? We personally heard then President Marcos say over the radio that day — January 17, 1973: “It is now NOON, January 17, 1973. I am now signing the new Constitution”. How about the children bom of Filipino mothers that morning? To be Filipinos, do they have to elect Philippine citizenship? When they were born that morning, was the 1973 Constitution already effective?

CITIZENS OF THE PHILIPPINES UNDER THE 1987 CONSTITUTION (1)

Those who are citizens of the Philippines at the time of the adoption of this Constitution.

(2)

Those whose fathers or mothers are citizens of the Philippines.

(3)

Those bom before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority.

(4)

Those who are naturalized in accordance with law.

CITIZENS AT THE TIME OF THE ADOPTION OF THE PHILIPPINE CONSTITUTION (MAY 14, 1935) The following were the citizens of the Philippines at the time of the adoption of the Philippine Constitution on May 14, 1935; (a)

Persons bom in the Philippines who resided therein on April 11, 1899, and were Spanish subjects on that date, unless they had lost their citizenship on or before the adoption of the Philippine Constitution on May 14, 1935 (as inferred from the Philippine Bill of 1902, the Jones Law, and the Philippine Constitution itself);

(b)

Natives of Peninsular Spain who resided in the Philippines on April 11, 1899, and who did not declare their intention of preserving their Spanish nationality between that date and Oct. 11, 1900, unless they had lost their citizenship by May 14, 1935 (as inferred from the Philippine Bill of 1902, the Jones Law, and the Philippine Constitution);

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123

(c)

Spanish naturalized citizens (subjects who resided in the Philippines on April 11, 1899, and who did not declare their intention of preserving their Spanish nationality between that date and Oct. 11, 1900, unless they had lost their citizenship by May 14, 1935). (Carlos Palanca v. Republic o f the Philippines, No. L-301, April 7, 1948, and the Philippine Constitution);

(d)

Children born of (1), (2) and (3) subsequent to April 11, 1899, unless they had lost their citizenship by May 14, 1935. (Phil. Bill o f 1902, Jones Law o f 1916 and the Philippine Constitution);

(e)

Persons who became naturalized citizens of the Philippines in accordance with the formal procedure set forth in the Naturalization Law since its enactment on March 22, 1920, unless they had lost their citizenship by May 14, 1935 (by inference from the N aturalization Law and the Philippine Constitution);

(f)

Children of persons embraced under (e), unless they had lost their citizenship by May 14, 1935;

(g)

Filipino women who, after having lost Philippine citizenship by m arriage to foreigners, had subsequently becom e widows and regained Philippine citizenship on or before May 14, 1935. (Roa v. Collector o f Customs, 23 Phi. 321; Talaroc v. Uy, G.R. L-5397, Sept. 26, 1952);

(h)

Children of No. (7) who were still under 21 years of age at the time their mothers regained Philippine citizenship. (Roa v. Collector, supra; Talaroc v. Uy, supra);

(i)

Foreign women who married Filipino citizens on or before May 14, 1935, provided that they themselves could be lawfully naturalized, provided further that they had not lost Philippine citizenship by May 14, 1935. [See Sec. 13 (a) o f Act 3448, as amended] and provided finally that their Filipino citizenship had been so declared by judgment of a court of justice in the proper naturalization or citizenship proceedings. (In Re Burca, L-24252, Jan. 30, 1967);

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PHILIPPINE CONFLICT OF LAWS

(j)

All other persons born in the Philippines who on the strength of the erroneous recognition of the “jus soli” doctrine in the Roa case were mistakenly declared by the courts to be Filipino citizens, unless they had lost their citizenship by May 14, 1935, (See Tan Chong v. Sec. o f Labor, G.R. L-47616, Sept. 16, 1947; Talaroc v. Uy, G.R. L-5397, Sept. 26, 1952).

[NOTE: In an obiter dictum in Roa v. Collector, 23 Phil. 321, the Supreme Court declared that during the advent of American sovereignty in the Philippines, h* we recognized here in our country the doctrine of jus soli — the theory applied in the United States. This dictum was applied in many subsequent cases. (Vano v. Collector, 23 Phill. 41; Go Julian v. Government, 45 Phil. 286; Haw v. Collector, 59 Phil. 612, etc.). The error was discovered and the doctrine was thus . repudiated in subsequent cases, like Tan Chong v. Sec. o f Labor, G.R. 47616, Sept. 16, 1947, and Lam Swee Sang v. Commonwealth, 45 O.G. 1269. Unfortunately, in an obiter in Talaroc v. Uy, G.R. L5397, Sept. 26, 1952, the Court apparently misled by an obiter in the Tan Chong case, supra, reverted to the Roa doctrine. In Tio Tian v. Republic, L-9602, April 25, 1957, the Court, however apparently returned to the Tan Chong ruling.] [NOTE: With the advent of the 1987 Constitution, the new proviso reads: “Those who are citizens of the Philippines at the time of the adoption of this (1987) Constitution.”]

CITIZENS BY VIRTUE OF HAVING BEEN ELECTED TO A PUBLIC OFFICE INjTHE PHILIPPINES The law says: “Those born in the Philippines of foreign parents vho before the adoption of the Philippine Constitution, had been :lected to a public office in the Philippines” (Art. IV, Sec. 1, No. 2, 1935 Constitution; Art. 48, No. 2, Civil Code). (NOTE: This proviso las been eliminated in the 1973 and 1987 Constitutions. It is mderstood however that those falling under No. 2 of the 1935 Constitution may now be classified under No. 1 of both the 1973 tnd 1987 Constitutions.) (a)

This provision does not rely on jus soli exclusively; service should have been rendered.

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125

(b)

If “born OUTSIDE the Philippines,” the article does not apply.

(c)

If “appointed” and not “elected” the article does not apply.

(d)

If “private” instead of “public” office, the article does not apply.

(e)

Who is considered the Philippine citizen, the “parent” or the “child”? Answer. The child himself in view of his service. Of course, the children of the child himself would also be citizens of the Philippines because of No. 3 of Art. 48 of the Civil Code, and No. 3, Sec. 1, Art. IV of the 1935 Constitution. In other words, this paragraph on citizens by virtue of their election benefits not only the individual himself who was elected, but also his children; hence, this would allow derivative citizenship. (See Chiongbian v. De Leon, G.R. L-2007, January 31, 1949).

(f)

Reason for the Provision: Fermin Caram, a delegate to the Constitution Convention, was born in the Philippines o f Syrian parents. Before the Constitution Convention, he had previously been elected to the Provincial Board of Iloilo, although he was not a Filipino citizen, since his parents were foreigners, and he him self had never been naturalized as a Filipino. There was, therefore, the anomalous situation of a non-Filipino having been elected to a public office in the Philippines, an anomaly that obviously was caused by the then prevailing belief that mere birth in the Philippines was sufficient to make one a Filipino citizen. (See Roa Case, supra). Curing this anomaly had been apparently the principal motive of this provision. Otherwise, a non-Filipino would have participated in the drafting of the Philippine Constitution. (See Caram v. Montinola, IV Lawyer's Journal, p. 850). Despite this apparent intent to favor a particular individual, namely, the person who had been elected to a public office in the Philippines although not yet a Filipino, the Supreme Court had given to the proviso not only a personal connotation but also a

126

PHILIPPINE CONFLICT OF LAWS

derivative implication, hence even his own children had been given the benefits. (See Chiongbian v. De Leon, supra). Chiongbian v. De Leon G.R. L-2007, Jan. 31, 1949 FACTS:

i*

HELD:

An alien married couple had a son Victoriano Chiongbian, who had been born in the Philippines. Victoriano, although a foreigner, was elected to the position of municipal councilor (of Plaridel, Occidental Misamis) in 1925. Victoriano himself had his own son, William Chiongbian, who was still a minor at the time of the adoption of the Philippine Constitution. William was able to register certain vessels in his own name when he became of age. Customs officials, however, wanted to cancel the registration on the theory that while Victoriano may be considered a Filipino (by virtue of his election to a public office prior to the adoption of the Constitution), still William should not be so considered, for the grant in this provision is strictly personal, that is, it should not benefit Victoriano’s descendants. Issue: Should William be also considered a Filipino citizen, although he himself had not held public office prior to the adoption of the Philippine Constitution? Yes, William Chiongbian is a Filipino The parents of Victoriano are certainly not Filipinos; but Victoriano himself was a Filipino because he was born in the Philippines of foreign parents, and before the adoption of the Philippine Constitution he had been elected to a public office in the Philippines. (Par. 2, Sec. 1, Art. TV, 1935 Const.). Therefore, William Chiongbian, who was then a minor, also became a Filipino citizen, his father, being a Filipino. (Par. 3, Sec. 1, Art. IV, 1935 Constitution). QUERY: In the above case of Chiongbian, when did Victoriano himself become a Filipino

127

THE NATIONALITY THEORY

upon the adoption of the Constitution, or from the time of his election? ANSWER: Although the Supreme Court said: “It is conclusive that upon the adoption of the Constitution, Victoriano Chiongbian, father of herein petitioner, having been elected to public office in the Philippines before the adoption of the Constitution, became a Filipino citizen by virtue of Art. IV, Sec. 1, Subsection 2 of the Constitution.” Still it is believed that “upon the adoption” should be constrv mean “by virtue o f adoption.” In othu.. 3, Victoriano became a Filipino, not upon the adoption, but because of the adoption of the Constitution; and precisely because of this Constitution, he should be deemed a Filipino from the time o f his election. Otherwise, we would legally sanction the spectacle of a non-Filipino holding a Filipino public office prior to the adoption of the Philippine Constitution. (See Mr. Justice Claro M. Recto’s opinion in Caram v. Montinola, TV L.J. 850).

CHILDREN OF FILIPINO FATHERS (a)

This paragraph enunciates the principles of JUS SANGUINIS.

(b)

The rule applies whether the mother is a Filipino or not; and whether the child is born in the Philippines or outside.

(c)

The rule certainly is applicable if the father is a naturalborn Filipino citizen; does it also apply if the father is a naturalized Filipino'?

To answer this question, let us first examine the pertinent provisions of the Naturalization Law on the matter. Sec. 15 of the law says:

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PHILIPPINE CONFLICT OF LAWS

“1.

Minor children of persons naturalized under this law who have been in the Philippines shall be consid­ ered citizens thereof.

2.

A foreign-born minor child, if dwelling in the Philippines at the time of the naturalization of the parent, shall automatically become a Philippine citizen, and a foreign-born minor child who is not in the Philippines at the time the parent is naturalized, shall be deemed a Philippine citizen only during his minority, unless he resides permanently in the Philippines when still a minor, in which case he' will continue to be a Philippine citizen even after becoming of age.

“3.

A child born outside the Philippines, after the naturalization of his parents shall be considered a Philippine citizen, unless within one year after reaching the age of majority, he fails to register himself as a Philippine citizen at the Philippine con­ sulate of the country where he resides and to take the necessary oath of allegiance.”

The question may now be properly answered in the following manner: (a)

(b)

a minor child born BEFORE naturalization 1)

if born in the Philippines — is a Filipino

2)

if bom outside the Philippines a)

if dwelling in the Philippines at the time of the parent’s naturalization — is a Filipino;

b)

if dwelling outside the Philippines at the time of parent’s naturalization — is a Filipino only during his m inority unless he resides permanently in the Philippines when still a minor, in which case he will continue to be a Philippine citizen even after becoming of age.

a minor child born AFTER naturalization 1)

if bom in the Philippines — is a Filipino

2)

if bom outside the Philippines — shall be considered a Philippine citizen, unless within one year after reaching the age of majority he fails to register

THE NATIONALITY THEORY

129

himself as a Philippine citizen at the Philippine con­ sulate of the country where he resides and to take the necessary oath of allegiance. It will be observed that: (a)

in the case of children already of age at the time of the parent’s naturalization, they do not become Filipino citizens unless they themselves be naturalized;

(b)

in the case of minors, who were born IN the Philippines before the parent’s naturalization, and in the case of a minor, born OUTSIDE the Philippines but already dwelling IN the Philippines at the time of the parent’s naturalization — no condition is imposed by the law: they are FILIPINO CITIZENS;

(c)

in the case of minors bom OUTSIDE the Philippines, the law is more strict on the child born BEFORE natural­ ization because he is compelled to reside here, whereas in the case of the child born AFTER naturalization, all that the law requires is registration. Both of these requisites appear to be unconstitutional, since the fundamental law makes no distinction; nonetheless it would seem that these requirements are proper, and unless complied with could result in loss of Philippine citizenship, a loss which under the Constitution itself can properly be provided for by law.

CHILDREN OF FILIPINO MOTHERS (a)

Provision o f the 1935 Constitution — “Those whose mothers are citizens of the Philippines upon reaching the age of majority elect Philippine citizenship” [Art. IV, Sec. 1(4), 1935 Const.] [Be it noted that under the 1973 and 1987 Constitutions, the “election” is no longer required. (See Art. Ill, Sec. 1, No. 2, 1973 Constitution and Art. TV, Sec. 1, No. 2, 1987 Constitution).]

(b)

Requisites under the 1935 Constitution

**

1)

The father here must not be a Filipino citizen, otherwise, another provision (already discussed) applies;

2)

The mother must be a Filipino citizen;

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PHILIPPINE CONFLICT OF LAWS

3) (c)

Upon reaching the age of majority, the child, to be a Filipino, must elect Philippine citizenship.

Query. As of what moment must the mother be a citizen of the Philippines? Theories: 1)

The first theory is that the mother must be a citizen of the Philippines at the time of the birth of the child.

2) ,J*

The second theory is that the mother must be a Filipino citizen at the time the child elects Philippine citizenship.

3)

The third theory is that it is sufficient for the mother to have been a Filipino citizen at the time of her marriage to a foreigner.

The Correct Theory: It would seem that the third theory — that the mother is a Filipino at the time of her marriage to an alien — is the CORRECT theory. (See Matter o f Robert Cu, G.R. L-3018, July 18, 1951), for two (2) cogent reasons: 1)

If the first or the second theory is to be applied, very few children can avail themselves of the option, for in many instances, the mother would follow the husband’s nationality and thus lose Philippine citizenship;

2)

Also, unless we apply the third theory, the right to elect Philippine citizenship will depend in many cases on the husband’s national law — a law which may vary from time to time, even to the extent of denationalizing its own citizens. (See Hudson, Cases on International Law, p. 201). (NOTE: In the case of Villahermosa u. Commissioner o f Immigration, L-1663, March 31, 1948), however, the Supreme Court seemed to imply that the second should be adhered to. In said case the Court made the observation that the child can elect Philippine citizenship only if at the time of such election the mother has already reacquired Philippine citizen­ ship.

THE NATIONALITY THEORY

(d)

131

Query: Within what period after attaining the age of majority must the child elect Philippine citizenship? Answer: The option must be exercised within a REASONABLE period after having attained the age of majority. (Opinion o f the Secretary o f Justice, Aug. 12, 1945; June 26, 1947.) What is reasonable is a question of fact, depending upon the peculiar circumstances of each case. In one instance, three years was still considered a reasonable period. (Opinion o f the Secretary o f Justice, No, 20, s. 1948). But generally five years would be unreasonable. (Lim Teco v. Com. o f Customs, 24 Phil. 84.)

(e)

Query: Before the child elects Philippine nationality, what is his nationality? Answer: Generally, this would be the nationality of the father, if the child is a legitimate child. But of course this would depend on the father’s national law.

(f)

Query: Suppose a Filipino mother is not married to a Chinese but is merely cohabiting with him, is the child still a Filipino? Answer: Yes, a child bom outside a lawful marriage of an alien father and a Filipino mother, being illegitimate, follows the mother’s citizenship. However, if the parents should marry each other later, the legitimated child should generally follow the father’s citizenship. (Kok Hua v. Rep., G.R. L-5047, May 8, 1952; Zamboanga Transportation Co. v. Lim, L-10975, May 27, 1959).

(g)

Law on the Option to Elect Philippine Citizenship COMMONWEALTH ACT NO. 625 AN ACT PROVIDING THE MANNER IN WHICH THE OPTION TO ELECT PHILIPPINE CITIZENSHIP SHALL BE DECLARED BY A PERSON WHOSE MOTHER IS A FILIPINO CITIZEN Section 1. The option to elect Philippine citizenship in accordance with subsection (4), Sec. 1, Art. IV of the Constitution shall be expressed in a statement to be signed and sworn by the party concerned before

PHILIPPINE CONFLICT OF LAWS

132

any officer authorized to administer oaths, and shall be filed with the nearest Civil Registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the Constitution and Government of the Philippines. Sec. 2. If the party concerned is absent from the Philippines, he may make the statement herein authorized before any officer of the Government of the United States (now before embassy and consular officials of the Philippines abroad save in those cases * where there are no officials yet, in which case the party concerned has to do so before the embassy or consular officials of the United States in the country where he may be), and he shall forward such statement together -with his oath of allegiance, before the Civil Registry of Manila. Sec. 3. The Civil Registrar shall collect as filing fees of the statement the amount of ten pesos. Sec. 4. The penalty of prision correccional, or a fine not exceeding ten thousand pesos or both shall be imposed on anyone found guilty of fraud or falsehood in making the statement herein prescribed. Sec. 5. This Act shall take effect upon its approval. Approved, June 7, 1941. (h)

Query. If a Filipino woman marries a foreigner, she gets her husband’s nationality or citizenship, if the laws of her husband’s country so provide. In such a case, she loses Philippine citizenship. Now then, upon the husband’s death, does she ^immediately reacquire Philippine citizenship? "'s‘ ANSWER: It depends: 1)

If she became a widow before the effectivity of Com. Act No. 63 (Oct. 21, 1936), she immediately reacquired Philippine citizenship without any need of repatriating herself, since it would be unfair to require repatriation (reacquisition of citizenship by a formal act) before there existed any Act requiring her to do so. There is one exception, however, and this would be if she, by outward or external acts,

THE NATIONALITY THEORY

133

decided to continue being a citizen of her husband’s country. (Talaroc v. Uy, G.R. L-5397, Sept. 26, 1952). 2)

If she became a widow on or after Oct. 21, 1936, she has to repatriate herself, otherwise she remains a foreigner. (Talaroc v. Uy, supra; Villahermosa v. Commissioner o f Immigration, G.R. L-l 663, March 31, 1948). (NOTE: If the woman repatriates herself, does her repatriation carry with it the repatriation of her minor child?) ANSWER: No, for repatriation means reac­ quisition. Since the child never was a Filipino previously, it is obvious that he cannot reacquire that which he never had. (See Villahermosa v. Com. o f Immigration, G.R. L -l663, March 31, 1948). It should be observed, however, that if instead of repatriation (for repatriation, there must be a FORMAL ACT) the widow had automatically regained Philippine citizenship, the nationality of her minor child would follow hers. (Talaroc v. Uy, L-5397, Sept. 26, 1952). Laureto Talaroc v. Alejandro D. Uy G.R. L5397, Sept. 26, 1952

FACTS:

Uy was elected municipal mayor. Talaroc, a defeated candidate for said office, brought quo warranto o proceedings against Uy, alleging the latter’s Chinese citizenship, and consequent disability. Uy was born in Lanao in 1912 of a Chinese father and a Filipino mother. While Uy was still a minor, his father died in 1917. The mother died in 1949, without expressly repatriating herself. Uy had voted in previous Philippine elections, and on some occasions he had even been allowed to hold public offices.

HELD:

When Ursula Diabo, Uy’s mother became a widow, Com. Act No. 63 had not yet been enacted; therefore, without need of repatriation he automatically followed the nationality of the mother. Hence, Uy became a Filipino. Uy is, therefore, eligible.

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NATURALIZED FILIPINO CITIZENS Under Art. 49 of the Civil Code, “naturalization and the loss and reacquisition of citizenship of the Philippines are governed by special laws.” Our Naturalization Laws is Com. Act No. 473, as amended by Rep. Act No. 530. Loss and reacquisition of Philippine citizenship are governed by Com. Act No. 63, as amended. In the 1987 Constitution, we have the following provision: (1)

“Philippine citizenship may be lost or reacquired in the manner provided by law.” (Art. TV, Sec. 3, Constitution).

NATURALIZATION DEFINED Naturalization is the process of acquiring the citizenship of another country. (a)

In the strict sense, it is a judicial process, where formalities of the law have to be complied with including a judicial hearing and approval of the petition.

(b)

In the loose and broad sense, it may mean not only the judicial process but also the acquisition of another citizenship by such acts as marriage to a citizen, and the exercise of the option to elect a particular citizenship.

NOTE: Be it remembered that with the advent of martial law, Philippine citizenship had been granted by: Direct Presidential Decree (as recognition of work done by alien for the Philippines) or thru Naturalization by Presidential Degree (where less rigorous requirements were demanded, and the applicants were screened by certain committees in the Department of Justice, and later by a National Presidential Committee. The latter in turn, made the recommendations to the President of the Philippines. This more rapid way of granting Philippine Naturalization was brought about by the Chinese nationality problem which came about as a direct resultant of the opening of diplomatic relations between our country and Red China (People’s Republic of China), and the severance of our diplomatic ties with Taiwan (Nationalist China).

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Under Letter of Instructions (LOI) No. 270 (later amended by LOI No. 283, dated June 5, 1975, which extended the deadline for the filing of applications, and by LOI’s No. 280, June 5, 1975 and No. 491, Dec. 29, 1976) the special committee created by the President had the following composition: (1)

Solicitor-General — Chairman

(2)

Undersecretary of Foreign Affairs — Member

(3)

Director General of the National Intelligence Security Administration (NISA) (now National Intelligence Coordinating Agency [NICAj) — Member.

It will be noted that actually the Naturalization Law of 1940 was not amended. However, the Committee was instructed by the President to take the preliminary steps that would be needed — “in order that aliens permanently residing in this country who, having developed and demonstrated love for and loyalty to the Philippines and affinity to the customs, traditions and ideals of the Filipino people, as well as contributed to the economic, social and cultural development of our country, may be integrated into the national fabric by the grant of Philippine citizenship.” (See Official Gazette 3037, May 26, 1975). There were basic differences between the Naturalization Law and LOI No. 270 as amended: (1)

The Naturalization Law provided for a judicial process; the LOI dealt with an administrative inquiry;

(2)

The first called for separate cases heard by the trial court; the second also separately dealt with each applicant, but the investigation was summary in character;

(3)

The first resulted in a finality of court decision (although, of course, denaturalization proceedings could later be instituted); the second only dealt with a recommendation as to whether or not the alien was to be included in the list of persons to be naturalized by Presidential Decree;

(4)

With respect to the language requirements, the first stated that the applicant “must be able to speak and

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write English or Spanish and any one of the principal Philippine languages;” the second required that he “must be able to speak and write Pilipino; or English or Spanish, and any of the principal Philippine languages” (thus if the applicant could speak and write Pilipino, he need not know English or Spanish or any other principal Philippine language); (5)

While the first allowed no waiver of the income requisite, the second authorized the Committee to waive the income requirement, if the applicant was a bona fide college student, is above 18 years of age, and was capable of becoming a useful citizen on the basis of his qualifications and potentials;

(6)

While the first made no express mention of the effect of being born in a foreign country, the second specifically provided that if the applicant was born in a foreign country, he should been legally admitted into the Philippines either as an immigrant or non-immigrant.

Finally, it should be borne in mind that under Presidential Decree No. 1379, made effective on May 17, 1978, it was no longer the President who signed Decree granting naturalization to those recommended by the Special Committee; rather, Presidential Decree No. 1379 already granted naturalization to those whose applications were pending with the Committee as of said date PROVIDED that the Committee found the applicants possessed of all the qualifications and none of the disqualifications enunciated in the pertinent LOIs. PRESIDENTIAL DECREE NO. 1379 GRANTING CITIZENSHIPTO DESERVING ALIENS WHO HAVE APPLIED FOR.NATURALIZATION AND FOR OTHER PUR­ POSES. WHEREAS, pursuant to Letters of Instructions Nos. 270 and 491 applications for naturalization by decree were received by the Special Committee on Naturalization created under LOI 270 for processing and evaluation. WHEREAS, while a substantial number of applications thus filed have already been passed upon resulting in the naturalization of 16,399 alien applicants, there remain 22,439 more applicants whose applications are still pending consideration;

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WHEREAS, on the basis of its performance resulting in the approval of its recommendations with respect to alien applicants whose application for naturalization should be granted there is ground to entrust the approval of the remaining applications for naturalization to the Special Committee on Naturalization under the guidelines provided in LOI 270 and 491; WHEREAS, it is necessary to grant naturalization to such alien applicants as may be found by the Special Committee on Naturalization to possess the qualifications and not suffering from any disqualifications to obviate the need of approving separate recommendations by the Committee and promulgating the corresponding decree as has heretofore been done; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby provide as follows: SECTION 1. The Special Committee on Naturalization created under Letter of Instruction No. 270, as amended by LOI Nos. 283 and 491, shall from time to time determine who of the individuals of foreign nationality, who have pending applications for naturalization by decree, possess the qualifications and do not suffer from any of the disqualifications provided in LOI 270, as amended by LOI Nos. 283 and 491, until all applications for naturalization filed with it shall have been disposed of. SEC. 2. Philippine citizenship is hereby granted to such individuals of foreign nationality who have pending applications for naturalization by decree as may be determined by the Special Committee on Naturalization to have all the qualifications and none of the disqualifications, as provided in section 1. Citizenship granted under this Decree shall take effect upon the applicant taking the oath of allegiance as Philippine citizen and the issuance to him of the corresponding certificate of naturalization by the Special Committee. The Commission on Immigration and Deportation (now the Bureau of Immigration) shall thereupon cancel his certificate of registration as alien and issue to him the corresponding identification certificate as citizen. SEC. 3. If an applicant is granted naturalization but dies before taking the oath of allegiance as Filipino citizen and the issuance to him of the certificate of naturalization, his widow, if residing in the Philippines and found by the Special Committee to have none of the disqualifications specified in said LOI 270, may

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take the oath of allegiance as Filipino citizen, after which the minor children of said deceased alien and his wife, subject to the provisos of the next succeeding sections, shall follow the acquired Filipino citizenship of their mother. SEC. 4. Alien wives and minor children of persons naturalized under this Decree shall be deemed Philippine citizens provided that: (a) The alien wife shall, in all cases, not suffer from any of the disqualifications for naturalization under Letter of Instryption No. 270; (b) The alien wife and minor children of persons naturalized under this Decree reside permanently in the Philippines at the time of his naturalization; (c) If the alien wife does not reside in the Philippines at the time of the naturalization of her husband, she shall come to the Philippines and reside in this country in good faith within one year from the naturalization of her husband; (d) If minor children do not reside in the Philippines at the time of the naturalization of their father they shall, within one (1) year from the naturalization of their father, in good faith reside in this country and, if of school age, enroll in Philippine schools. The fact that any such minor child of school age fails to graduate from a Philippine school, except for valid reasons shown, shall be considered prima facie evidence of failure in good faith to enroll in Philippine schools. SEC. 5. In case the alien naturalized under this Decree is a woman, her minor children may elect Philippine citizenship pursuant to existing law upon reaching the age of majority. SEC. 6. The Special Committee may cancel certificates of naturalization issued under this Decree in the following cases: (a) If it finds that the naturalized persons or his duly authorized representative made any false statement or misrepresentation or committed any violation of law, rules and regulations in connection with the petition for natural­ ization, or if he otherwise obtained Philippine citizenship, fraudulently or illegally, the certificate of naturalization shall be cancelled; (b) If the naturalized person or his wife, or any of his minor children who acquire Filipino citizenship by virtue of

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his naturalization shall, within five (5) years next following the grant of Philippine citizenship, establish permanent residence in a foreign country, that individual’s certificate of naturalization or acquired citizenship shall be cancelled or revoked; provided that the fact of such person’s remaining for more than one year in his country of origin, or two years in any other foreign country, shall be considered prima facie evidence of intent to permanently reside therein; (c) If the naturalized persons or his wife or child with acquired citizenship allows himself or herself to be used as a dummy in violation of any constitutional or legal provision requiring Philippine citizenship as a condition for the exercise, use, or enjoyment of a right, franchise, or privilege, the certificate of naturalization or acquired citizenship shall be cancelled or revoked; (d) If the naturalized person or his wife or child with acquired citizenship commits any act inimical to national security, the certificate of naturalization or acquired citizenship shall be cancelled or revoked. SEC. 7. In case the naturalized person holds any hereditary title, or belongs to any order of nobility, he shall make an express renunciation of his title or membership in this order of nobility before the Special Committee or its duly authorized representative, and such renunciation shall be included in the records of his application for citizenship; and SEC. 8. The Special Committee shall promulgate such rules and regulations as may be necessary for the effective and expeditious implementation of the provisions of this Decree. SEC. 9. Any person who shall fraudulently make, falsify, forge, change, alter, or cause or aid any person to do the same, or who shall purposely aid and assist in falsely making, forging, falsiflying, changing or altering an application for naturalization under LOI 270 and its amendments, or a naturalization certificate issued under this Decree for the purpose of making use thereof, or in order that theja m e may be used by another person or persons and any person who shall purposely aid and assist another in obtaining a naturalization certificate in violation of this Decree, shall be punished by a fine of not more than Five Thousand Pesos (P5,000.00) and by imprisonment for not more than five years, and in case that the person convicted is a naturalized citizen his certificate of

PHILIPPINE CONFLICT OF LAW£i

140

naturalization shall, if not earlier cancelled by the Special Committee, be ordered cancelled. SEC. 10. All laws, decrees and instructions inconsistent with this decree shall be deemed repealed. SEC. 11. This Decree shall take effect immediately. Done in the City of Manila, this 17th day of May in the year of Our Lord, nineteenth hundred and seventy eight.

ATTRIBUTES OF NATURALIZATION (a)

Citizenship is not a right, it is a privilege. (Ching Leng v. Galang, L-l 1931, Oct. 27, 1958). Indeed, a highly regarded privilege requiring full and strict compliance with legal requisites (Dy v. Rep., L-21958, Sept. 28, 1970). Thus, to acquire Philippine citizenship by naturalization is merely a privilege granted to certain aliens under certain conditions. (Kin v. Republic, L-6894, April 27, 1955). “The Naturalization Law grants to aliens the privilege of obtaining Philippine citizenship under certain conditions; the conditions must be complied with.” (Kin v. Republic, supra). Said law must, therefore, be strictly construed against the applicant. (Lim v. Republic, 16 SCRA 25). Petitions for naturalization involve public interest; hence, even if objections to a defective petition had not been raised in the trial court, the higher tribunal may subject the entire records of the case to scrutiny. Citizenship thru naturalization must not be easily given away. (Chua v. Republic, 15 SCRA 170). Naturalization being a privilege and not a right, the burden is on the applicant to show clearly that he has complied with every condition that the law imposes. (Kwan Kwock How v. Republic, L-18521, Jan. 30, 1964; see also Lee Ng Len v. Republic, L-20151, March 31, 1965). Thus, for instance, the government is not estopped by failure to object at the hearing to presentation of evidence regarding the character of the applicant. (Rep. v. Barcelona, 58 SCRA 169). Indeed, the state can at all stage of the proceeding

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raise the issue of noncompliance w ith the legal requirements even without filing a formal opposition to the application. (Tan Teng Hen v. Rep., 58 SCRA 500). Tan Ching v. Republic L-33216, June 28, 1983 J. Vicente Abad Santos: Even if applicant is about to take his oath the state may still object to his qualifications. (b)

The requisite conditions for naturalization are laid down by Congress; courts cannot change or modify them. (Bautista v. Republic, L-3353, Dec. 29, 1950). Strict compliance with the requirements of the Naturalization Law is therefore essential for the acquisition of Philippine citizenship by an alien. (Orestoff v. Gov’t., 71 Phil. 240; Que Tiac v. Republic, L-20174, Jan. 31, 1972). A judge must not, therefore, grant naturalization simply because the applicant happens to be harrassed by certain employees at the Office of the Solicitor-General (against whom applicant was a complaining witness in a criminal complaint) for a naturalization case is not a private contest between the applicant and the Office of the SolicitorGeneral but a matter impressed with the highest public interest in view of the important consequences that would follow a grant of naturalization. (Rep. v. Cloribel, L-27281, June 30, 1970; Sy v. Rep., 55 SCRA 724).

(c)

Only foreigners may be naturalized. (Palanca v. Republic, 45 O.G. 204, Sept. 1949). If the petitioner turns out to be already a Filipino, the petition for naturalization as such must be turned down. (Yan Tu v. Republic, L-15775, April 29, 1960).

(d)

Just as a state may denationalize its own citizens, so may naturalization be revoked, by the cancellation of the certificate of naturalization. In this sense, a final judgment for naturalization can never be truly final. (Rep. v. Co Bon Lee, L-11499, April 29, 1961).

„ (e)

Naturalization demands allegiance to our Constitution, laws, and government. (Sec. 11, Com. Act No. 473, as amended).

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(f)

Naturalization is a proceeding in rem, and therefore jurisdiction over the entire world is acquired by publication. (Tan Teng Hen v. Rep., 58 SCRA 500).

QUALIFICATIONS FOR NATURALIZATION Our Naturalization Law requires the petitioner for natural­ ization to have ALL the qualifications and NONE of the disqualifications referred to therein. (Ly Hong v. Rep., L-14630, Sept. 30, 1960). In fact, the petitioner himself must take the witness stand so th&t he may be examined regarding his qualifications. It is NOT for the “character witnesses” to show that the petitioner has all the qualifications and none of the disqualifications. (Palaran v. Republic, L-15047, Jan. 30, 1962). Upon the other hand, it is not sufficient for the petitioner to undertake this task alone. The sworn assertions made by him must be supported by the affidavits of at least two credible witnesses (Ny v. Rep., L-16302, Feb. 28, 1962) as well as by their sworn TESTIMONY. (Yap v. Republic, L-13944, March 30, 1962). Parenthetically, the qualifications must be possessed at the time the petitioner applies for naturalization, not subsequently. (Pablo Lee v. Republic, L-20148, April 30, 1965). The testimony of petitioner’s witnesses to the effect that petitioner is not in anyway disqualified simply “because he possesses all the qualifications to become a Filipino” does NOT prove affirmatively that the petitioner does not possess any of the disqualifications. To possess the qualification is one thing, and it is another not to possess any of the disqualifications. (Kho Eng Poe v. Republic, L17146, June 20, 1962). The following are the QUALIFICATIONS for naturalization: (a)

The petitioner must not be less than 21 years of age on the date of the hearing of the petition;

(b)

He must have, as a rule, resided in the Philippines for a continuous period of not less than ten years;

(c)

He must be of good moral character, and believe in the principles underlying the Philippine Constitution, and must have conducted him self in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is living;

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(d)

He must own real estate in the Philippines worth not less than P5,000, Philippine currency, or must have some lucrative trade, profession, or lawful occupation;

(e)

He must be able to speak and write English or Spanish and any one of the principal Philippine languages; and

(f)

He must have enrolled his minor children of school age in any of the public schools or private schools recognized by the Bureau of Private Schools where Philippine history, government, and civics are taught or prescribed as part of the school curriculum during the entire period of the residence required of him, prior to the hearing of his petition for naturalization as citizen. (Sec. 2, Com. Act No. 473, as amended).

[NOTE — An alien wife cannot independently of her husband apply for naturalization for assuming that she would become a Filipino, she would still be under her husband’s law, an alien (or non-Filipino), and there would be the dual citizenship which is not allowed under our laws. (Po v. Rep. L-30669, July 31, 1970)].

THE FIRST QUALIFICATION — AGE (a)

Minors do not have to file a petition for naturalization; if their father is naturalized, they generally also become Filipino citizens. (See Dee v. Republic, L-3683, Jan. 28, 1953).

(b)

At the time applicant files a bona fide declaration of intention to become a Filipino, he does not have to be 21 years of age. The age requirement is as of the date of the hearing of the petition; not the date of the declaration of intention, nor even the date of the filing of the petition.

(c)

It will be noted that the age of majority in the country of the petitioner does not matter.

THE? SECOND QUALIFICATION — TEN YEARS RESIDENCE (a)

The residence contemplated is not mere legal residence, but ACTUAL and SUBSTANTIAL residence in order that the purpose of the law be obtained:

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PHILIPPINE CONFLICT OF LAWS

(b)

1)

firstly, to enable the government and the community to observe the conduct of the applicant; and

2)

secondly, to ensure his having imbibed sufficiently the principles and the spirit of our institutions. (Dy v. Republic, L-4548, Nov. 26, 1952).

The residence requirement is REDUCED to five years in any of the following cases: 1) '•*

If the applicant has honorably held office under the Government of the Philippines or under that of any of the provinces, cities, municipalities, or political subdivisions thereof;

2)

If he has established a new industry or introduced a useful invention in the Philippines;

3)

If he is married to a Filipino woman;

4)

If he had been engaged as a teacher in a public or recognized private school not established for the exclusive instruction of children of persons of a particular nationality or race in any of the branches of education or industry for a period of two years; and

5)

If he was born in the Philippines. (Sec. 3, Com. Act No. 473, as amended).

(c)

If the petitioner wants to avail himself of the reduced period of five years, he has the burden of proving that he comes under any of the instances enumerated in (b). The reason is obvious: the shorter period is an exception to the general rule. (Ng Sin v. Rep., L-7590, Sept. 20, 1955).

(d)

Although the residence BOTH for ten years or five years must be ACTUAL, SUBSTANTIVE, and CONTINUOUS (and not mere legal residence) still PHYSICAL presence is not necessarily required for the entire period of residence required of the petitioner. Not every absence is fatal to continuous residence. So long as there is an intent to return (animus revertendi) the residence may still be considered continuous. The temporary absence must, however, be of short duration: certainly an absence of say six years is not of a short duration. (Dargani v. Republic, G.R. L-11525, Dec. 24, 1959).

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THE THIRD QUALIFICATION GOOD MORALS AND CONDUCTS AND BELIEF IN THE PRINCIPLES UNDERLYING THE PHILIPPINE CONSTITUTION (a)

Regarding good morals, there is NO NECESSITY for a criminal conviction for a crime involving moral turpitude. True such a conviction is required to show a DISQUALIFICATION, but lack of a conviction does not necessarily mean that the petitioner is of good moral character. (See Tio Tek Chay v. Republic, L-19112, Oct. 30, 1964). One who GAMBLES in violation of Arts. 195199 of the Revised Penal Code (as repealed and modified by Presidential Decrees Nos. 449, 483, and 1602, as amended by Letter o f Instructions No. 816), even if for some reason or another he is not criminally convicted, is a person who lacks good moral character, and is, therefore, lacking in one of the necessary qualifications. (Ly Hong v. Republic, L-14630, Sept. 30, 1960). But a mere violation of a municipal ordinance against the playing of “mahjong” is a minor moral transgression involving no moral turpitude or wilful criminality, and the petitioner therefore is not by that fact alone disqualified. (Chiong v. Republic, L-10976, April 16, 1958). Upon the other hand, the use of a meter stick without the seal of the Internal Revenue Office, involves moral turpitude because it manifests an evil intent on the part of the applicant to defraud purchasers. (AO Un v. Republic, No. L-18506, Jan. 30, 1964). Query: If because of certain specified acts, a petition is denied because of lack of irreproachable conduct, is there a chance that the alien can later on be granted naturalization upon proof of having reformed? YES, provided that a sufficient number of years has elapsed. A second petition filed less than a year after the denial of the first application would not comply with the number of years required. (Sy Chut v. Republic, L-17960, Sept. 30, 1964). But if for a reasonable number of years after the denial of one’s application, the petitioner proves in the requisite proceeding to have reformed and has observed irreproachable conduct, the bar may be lifted. (Sy Chut v. Republic, L-17960, Sept. 30, 1964).

(b)

What constitutes “proper and irreproachable conduct” must be determined, not by the law of the country of which the petitioner is a citizen (China, for sometime,

«

146

PHILIPPINE CONFLICT OF LAWS

allowed polygamy) but by the standard of morality prevalent in this country, and this in turn, by the religious beliefs and social concepts existing here. (Yu Singco v. Republic, 50 O.G. 104). In the case of Chua Pun v. Rep., (L-16825, Dec. 22, 1961), the Supreme Court, through Mr. Justice J.B.L. Reyes, had occasion to point out that “morally irreproachable conduct” imposes a HIGHER standard of morality than “good moral character.” Hence, merely being “very good” or a “law-abiding citizen” will not be enough for naturalization purposes. In the case of r*Ly Lam Go v. Republic, L-15858, July 31, 1962, the Court speaking through Mr. Justice Sabino Padilla, said that evidence of irreproachable conduct may be proved by competent evidence other than the testimony of the two vouching witnesses. Evidence, for example that no derogatory policy and court record exists against him would corroborate the testimony of the applicant as regards his proper and irreproachable conduct. (See Mo Yuen Tsi v. Republic, L-17137, June 29, 1962). If the petition does not allege that the petitioner is of good moral character and that he is not suffering from any mental alienation, it (the petition) contains a serious infirmity which cannot be disregarded. (Yao Mun Teck v. Republic, 37 SCRA 55; Lim Biak Chiao v. Republic, 55 SCRA 8; Sy v. Republic, 55 SCRA 724). The infirmity is jurisdictional. (Republic v. Barcelona, 58 SCRA 698). (c)

Examples of improper conduct are the following: 1)

Illicit and open cohabitation with a woman other than one’s own wife (Yu Lo v. Rep., 48 O.G. 4334), even if later on petitioner marries the mother of his 13 children six months before applying for naturalization. (Sy Kian v. Republic, 54 O.G. 3902). However, in one case, the Supreme Court, while dismissing the petition of an alien who married his common — law wife during the pendency of petition, nonetheless made the dismissal, “without prejudice to the filing of another petition for naturalization.” (Sy Tian Lai v. Rep., L-5867, April 29, 1945).

2)

Failure to register oneself as an alien even if he erroneously believed himself to be already a Filipino. (Cu v. Republic, L-16073, March 27, 1961).

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3)

Failure to file an income tax return. (Co v. Rep., L12150, May 26, 1960; Justino O. Cu alias Justo Dee v. Rep., L-1334, July 21, 1962), as well as deliberate and fraudulent non-payment of income tax. (Yao v. Rep., L-5074, March 3,1953). If the tax return shows a lower income than the true one, naturalization will be denied. (Lim Siong v. Rep., 56 O.G. 5041). Misrepresenting oneself to be married, just to be able to obtain an income tax deduction will also result in the denial of the petition. (Deetuanka v. Rep., L-12981, Jan. 29, 1960).

4)

Suppression of a material fact in the petition, a fact which, if revealed, would result in the denial of the application. (Dy Chan Tiao v. Rep., L-6430, Aug. 31, 1954).

5)

Desertion of a common-law wife and children simply to be able to marry another. (Yu Singco v. Rep., L6162, Dec. 29, 1954).

6)

Engaging in the retail business in violation of the Retail Trade Nationalization Law. (Ong v. Rep., L14625, Oct. 24, 1960).

7)

Frequenting of gambling dens and playing prohibited games, even if the applicant has not been convicted of this crime against public morals. (Sy Hong v. Rep., L-14630, Sept. 30, 1960).

8)

Signing of his name as Robert Dee Koa Gui in his Marriage Certificate although his name is only Koa Gui in the Alien Certificate of Registration and in the Immigrant Certificate of Residence (Koa Gui v. Republic, L-13717, July 31, 1962). (In this case, he explained that he used the additional name “Robert Dee” because this was the Christian name given him when he was BAPTIZED preparatory to his canonical marriage. He also explained that he had never used said additional name in his social or business dealings. This explanation was NOT considered satisfactory by the Court, which held that the use of the additional Chinese name “Dee” was likely to confuse his identity as a contracting party to the marriage. The Court said further that in this

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country, marriage is a sacred institution that requires full and accurate disclosure of the identity of the contracting parties). The use of an alias without proof that the same is an authorized exception under the Anti-Alias Law, does not speak well of petitioner’s moral norms. (Hiok v. Rep., L17118, Nov. 17, 1964). Besides, the use of various names makes impossible the full identification of the petitioner in the necessary notices, thereby preventing possible oppositors from setting up valid objections to the naturalization. (Andres Ong Khan v. Republic, L-19709, Sept. 30, 1964). Upon the other hand, when the petitioner described himself in his petition as “Ong Bon Kok alias Uy Sae Tin,” this does not necessarily mean that he used this alias. It merely indicates that Ong Bon Kok is the same person formerly known as Uy Sae Tin. This alias appears in his declaration of intention and petition for naturalization because the law requires it and because failure to comply with said requirement would have been a ground for the denial of said petition. In other words, if the records do not show that in his activities he really used such an alias, and if the government has no proof on this matter, the petition ought to be granted. (See Ong Kok v. Republic, L-19583, Sept. 30, 1964). 9)

An attempt to circumvent the Constitution by purchasing a parcel of land thru his mother-in-law, a Filipino citizen. (Fong v. Republic, L-15991, May 30, 1961).

10)

Membership in “Hiat Kan Luan,” the most active Chinese guerilla unit affiliated with the Chinese Communist Party is a ground for denial of naturalization for the applicant would then be a communist suspect. (Qua v. Rep., L-16975, May 30, 1964).

11)

Pleading guilty to a violation of the Price Tag Law simply to avoid troublesome court proceedings betrays a lack of faith in the administration of justice in this country. (Chai v. Rep., L-19112, Oct. 30, 1964).

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(d)

03

149

12)

Conniving with another businessman to agree on a common price at which to offer for lumber being requisitioned by a city so that the two conspirators can get the higher price and thus be able to split the difference. (Ong Giok Tin v. Republic, L-18212, Dec. 8, 1964).

13)

Discrepancy in stating his gross income in the income tax return and in the statement needed for the issuance of Residence Tax B (now Community Tax Certificate). (Harry Ong Ping Seng v. Republic, L-19575, February 26, 1965).

14)

Offering P500 to a municipal mayor for the repeal of a certain municipal ordinance. (Watt v. Rep., L20718, Aug. 30, 1972).

15)

Falsely stating that he had never previously filed any petition for naturalization. (Ang To v. Rep., L26952, Aug. 30, 1972).

16)

Conducting a business without a renewal of the required permit. (Yoy On v. Republic, 38 SCRA 486).

Examples of conduct that will NOT PREVENT natural­ ization: 1)

Justifiable discrepancy in the use of petitioner’s surname. (Cheng v. Rep., L-12791, Feb. 23, 1960).

2)

Failure to present alien certificate of registration of his wife and minor children, so long as they were really registered. The Court held here that compliance with the law of the country need not be enumerated as in a bill of particulars. (Lim v. Rep., 57 O.G. 1032).

3)

Running a properly licensed cabaret, for such conduct is not necessarily immoral, otherwise the government would not have allowed the cabaret to exist. (Sy Chiuco v. Rep., L-7545, Oct. 25, 1955).

4)

Formerly, the use of unauthorized aliases, when after all no prejudice has been caused other people, inasmuch as in such a case, this would be a minor transgression. (Hao Bing Chiong v. Rep., L-13526, Nov. 24, 1956). But later, the court ruled in many, many cases that the use of other names or aliases

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deliberately by him, without prior judicial approval is unlawful, and reflects the absence of a good moral character. (Uni Bun v. Rep., L-12822, April 26, 1961; Yap v. Rep., L-26820, July 31, 1970, Chua Bong Chiong v. Rep., L-29200, May 31, 1971; Watt v. Rep. and other cases, Aug. 30, 1972). (e)

Belief in the principles underlying the Constitution: 1) s

The law requires a belief in said principles, not the ability to enumerate them expressly (Lim v. Rep., 57 O.G. 1032). Thus, even if petitioner testifies that he knows them, and even names some of said principles, knowledge is not equivalent to belief. One thing is to know and another, to believe in what one knows. Thus, evidence of knowledge is no evidence of belief. (See Qua v. Republic, L-16975, May 30, 1964). An ability to recite the preamble of the Philippine Constitution and to sing our National Anthem in the national language would, of course, be desirable.

2)

A belief in the principle embodied in Philippine laws does NOT necessarily mean a belief in the principles of the Philippine Constitution, for according to the unduly strict interpretation by the Court here, the scope o f law in ordinary parlance does not necessarily include the Constitution. (Co v. Rep., L12150, May 26, 1960). The omission in the petition of the assertion by the petitioner of the assertion by the petitioner that he believes in the principles of the Philippine Constitution “is NOT cured by a mere statement at the hearing of the petitioner’s belief in the IDEALS of the Filipino people. (Ching v. Republic, L-15955, Oct. 26, 1961).

3)

Failure to state the customs, traditions, and ideals of the Filipinos which the applicant desires to embrace is not a fatal defect, for his knowledge of these things can be presumed if he has studied in high school. (Pang Kok Hua v. Rep., L-5047, May 8, 1952).

4)

The possibility that the applicant expects to receive certain benefits from naturalization should not prevent approval of the petition: the expectation is

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natural, for if he does not have such expectation, he will not even apply for naturalization. (Co. v. Rep., 56 O.G. 3036). BUT if the applicant declares that he is NOT willing to embrace Philippine citizenship if he would not be allowed to acquire real estate and engage in retail business, the sincerity of the petitioner in becoming a citizen is put in serious doubt by this declaration, and, therefore, the petition should be denied. The Naturalization Law, according to the Court must be rigidly enforced and strictly construed in favor of the government and against the applicant. (Chan Chen v. Rep., L-13370, Oct. 31, 1960).

THE FOURTH QUALIFICATION — REAL ESTATE OR OCCUPATION (a)

"*

In the absence of credible proof regarding allegations of property ownership, the Court will be constrained to conclude that petitioner has not met the requirement of ownership of property. One good proof is the certificate of assessment or a declaration of real estate property ownership. (Justino O. Cu alias Justo Dee v. Republic, L13341, July 31, 1962). However, the requirement as to the ownership of real estate in the Philippines OR the possession of some lucrative trade, profession, or lawful occupation is in the ALTERNATIVE. This has to be so in the face of the constitutional prohibition in general against landholdings by aliens. (Krivenko v. Reg. o f Deeds, 79 Phil. 461). In our country, aliens may hold land if ownership thereof had been acquired prior to the adoption of the Constitution (Art. XIII, Sec. 1, 1935 Constitution) or if he purchased land after the effectivity of the Constitution by virtue of the exercise of the right of repurchase which had already been vested in him even prior to the adoption of said Constitution. In the case of Vasquez v. Li Seng Giap, 51 O.G. 717, however, it would seem that the Court held that if an alien after the adoption of the Constitution, unlawfully acquired land, the acquisition can be considered valid and effective so long as the alien later on becomes a naturalized Filipino citizen. The Court in this case held that inasmuch as the purpose of the Constitution “is to preserve the nation’s land for future generations of Filipinos, the aim or

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purpose would not be thwarted but achieved by making lawful the acquisition of real estate by aliens who become Filipino citizens by naturalization.” In the case of King v. Republic, L-2687, May 23, 1951, the Court stated the rule that as long as the alien already owns the land, the requirement in the law is satisfied even if at the time of the filing of the petition, the certificate of title has not yet been issued in his name. (b)

In the absence of real estate worth P5,000, the alien may ^present evidence that he has some “known lucrative trade, profession, or lawful occupation.” While apparently the word “lucrative” modifies only “trade,” it has been held to also apply to “profession” and ‘lawful occupation”; thus, while to be a “student” is a “lawful occupation”; still it is not by itself a “lucrative” one, and therefore comes short of the legal requirement. (Lim v. Republic, L-3920, Nov. 20, 1951). The term “lucrative” implies substantial or gainful employment, or the obtaining of tangible receipts. (Lim v. Republic, supra). In Felix Tan v. Republlic, L19580, April 30, 1965, the Court stated that for lucrative employment to be present there must be an appreciable margin of income over expenses in order to provide for adequate support in the event of unemployment, sickness, or disability to work. The object is to forestall one’s becoming an object of charity. (See also Watt v. Republilc, 46 SCAD 683; Ong v. Rep., 57 SCAD 684). The financial capability of a petitioner for naturalization must be determined as of the time of the filing of the application. (Yu v. Republic, 52 O.G. 6511). The following have been held NOT sufficiently lucrative: 1)

an annual thcome of P8,687.50 when the petitioner has no real estate and has a wife and five children to support. (Keng Giok v. Rep., L-13347, Aug. 31, 1961). In this case, the applicant was the manager of a jewelry store, and his salary appeared to be declining every year.

2)

a monthly salary of P150.00, received by the petitioner as a salesman in his father’s grocery store. (Que Choc Cui v. Rep., L-16184, Sept. 30, 1961). [NOTE:The fact that the petitioner’s father is his employer, and that he still lives with him makes

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doubtful the truth of his employment, and gives rise to the suspicion that he was employed by his father only for the purpose of the petition. (Justino O. Cu v. Republic, L-13341, July 21, 1962).] 3)

A yearly income of PI,000 when the petitioner has a wife and 12 children to support (Hao Su Siong, etc. v. Republic, L-13045, July 30, 1962), or even P5,000. This is so notwithstanding the fact that the petitioner may have NO children. (Kao Gui v. Republic, L-13717, July 31, 1962).

4)

An annual income of P4,200 for a married applicant with three children. This is so even if the wife herself receives income from her coconut lands because the petitioner, not his wife, is the applicant. (Uy v. Rep., L-19578, Oct. 27, 1964).

5)

An annual income of P5,234 in 1961, and P8,067 in 1962, petitioner having a wife and 5 children to support, it being immaterial that his income increases every year. (Yap Bun Pin v. Republic, L-19577, Oct. 30, 1964).

6)

An annual income of PI,800 as a purchasing agent even if petitioner is unmarried and without a family, and even if occasionally, he receives substantial commissions as an insurance underwriter, because such income may be considered speculative in character. (Felipe Tochip v. Republic, L-19637, Feb. 26, 1965). Bonuses must not be considered part of the income because they are speculative. (Ong v. Republic, L-19418).

7)

An annual income of P4,800 for a married man, even if allowances and bonuses are periodically given to him because said additional amounts, given in case of profit, are purely contingent, accidental, or incidental. (Yu Kian Chie v. Rep., L-20169, Feb. 26, 1965).

8)

An annual income of P8,000 proved by evidence introduced in court when the income alleged in the petition is only PI,800 per annum. This is because qualifications are determined as o f the date of the filing of the petition. Here the increased income

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subsequent to the filing was due to additional earnings produced by property inherited subsequent to the filing. (Watt v. Rep., L-20718, Aug. 30, 1972). 9)

An annual income of P8,168.91 where an applicant has a wife and five children, ranging in age from 10 years to 5 months. (Felix Ong v. Republic, L-34995, June 28, 1974).

10)

An annual income of P6,500.00 (in 1961) when the petitioner had 10 children, 5 of whom were still dependent upon him for support. Such income is not adequate to enable him and the members of his big family “to live with reasonable comfort, in accordance with the demands of human dignity at this stage of civilization.” (Chua Kian Lai v. Rep., L-37443, Sept. 11, 1974, 59 SCRA 40).

*

11)

The mere fact that the applicant is an assistant manager and paymaster in a business owned and controlled by his brother does not necessarily make him possessed of a lucrative income. (Lee Ong v. Republic, 37 SCRA 169).

Upon the other hand, the following have been held to satisfy the statutory requirement: 1)

A monthly salary of P250.00 of an unmarried and childless applicant. (Rep. v. Lim, L-3030, Jan. 31, 1951).

2)

A monthly salary of P80.00, with free board and lodging, of an unmarried, childless, and working student. (Lim v. Rep., 49 O.G. 122). •V#

So long as the income is sufficiently lucrative, it is not important that the petitioner should be the registered owner of the business from which he derives his income. The business may be registered in the name of his Filipino wife. This is conduct worthy of emulation because “it shows esteem of family, and this in turn, is an indication that he is a moral and law-abiding citizen.” (Ong Sang v. Rep., L-4609, Oct. 30, 1952). It is understood of course that his wife should not be used as a mere dummy to cover up illegal business. A “lucrative income” has been defined as “a gainful employment.” It is not only that the person having the

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employment gets enough for his ordinary necessities in life. It must be shown that the employment gives one an income such that there is an appreciable margin of his income over his expenses as to be able to provide for an adequate support in the event of unemployment,, sickness, or disability to work and thus avoid one’s becoming the object of charity or a public charge.” [See Lim Biak Chiao v. Republic, (L-28541, Jan. 14, 1974) citing Swee Din Tan v. Republic, 109 Phil. 287 (I960).] Tan Ching v. Republic L-35216, June 28, 1983 Justice Vicente Abad Santos: If the applicant does not present his income tax returns because the fiscal does not ask for them, the applicant cannot be blamed.

FIFTH QUALIFICATION — LANGUAGE REQUISITES (a)

The law says that the petitioner must “be able to speaks and write English or Spanish and any one of the principal Philippine languages.” (Sec. 2, Naturalization Law).

(b)

A deaf-mute cannot speak, therefore, he cannot be naturalized. (Orestoff v. Government, 40 O.G. 37, 13th Supp.). The ability to write may be inferred from the ability to speak in business and society. (De Sero v. Rep., 53 O.G. 3425). If the applicant can understand, but cannot speak and write the requisite languages, he is not qualified. (Te Chao Ling v. Rep., L-7346, Nov. 25, 1955). The finding by the trial court that the petitioner does not speak, read, and write Tagalog (the dialect or language he claims to know) must be given weight and value unless its finding is clearly erroneous. (Lao Teck Sing v. Republic, L-14735, July 31, 1962). Upon the other hand, faultless, fluent, and idiomatic language is not essential; it is sufficient that in the petitioner’s association with Filipinos in daily life he can understand them. (Zuellig v. Rep., 83 Phil. 768). This is particularly so if he was able to get along with his guerrilla comrades during the hazardous resistance movement during the Japanese occupation (Kookooritchkin v. Sol. Gen., 81 Phil. 435). However, if the applicant when asked to write the words “Good morning sir, how are you?” wrote the following “Good

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morning sir, who ras you?” petitioner committed two mistakes, showing that he cannot write in the English language in a sufficient and intelligent manner which would warrant the conclusion that he possesses a working knowledge thereof. (Lim Bun v. Rep., L-12822, April 26, 1961). c)

The law does not require a speaking and writing knowledge of BOTH English and Spanish, for the law says “OR” with reference to these two. The legal requirement regarding the alternative knowledge of English has NOT been abrogated with the adoption of Tagalog as an official language of this country, for after all Tagalog or Pilipino has not been declared the exclusive official language. (Bautista v. Rep., 87 Phil. 818).

(d)

The law, in addition to English OR Spanish requires “any one of the principal Philippine languages.” Any dialect spoken by a substantial portion of the population of the country comes under the category of “principal Philippine languages.” To this class, among others, belong TAUSIG, which is the Moro dialect in the province of Sulu; CHAVACANO, spoken in Cavite and Zamboanga. (Wu Siock Boon v. Republic, 49 O.G. 489); and HILIGAYNON. (Yap v. Solicitor-General, 81 Phil. 486). The ability to speak and write any of the principal Philippine languages may be inferred from the lengthy residence in a city where the petitioner has been doing business. (Ong Ho Ping v. Rep., L-9712, April 27, 1957) or from his birth and residence all his life in the Philippines (Leelin v. Rep., 84 Phil. 352) or even from a technical and fluent command of English. (Kookooritchkin v. Sol. Gen., 81 Phil. 455). However, if there is nothing in the record to wlkrrant the presumption of knowledge of native dialect, and if no question in any dialect was even propounded to him in order to demonstrate his knowledge thereof, the Court cannot just simply presume such speaking and writing ability. (Lorenzo Go v. Republic, L-20019, Feb. 26, 1965).

SIXTH QUALIFICATION — ENROLLMENT OF MINOR CHILDREN OF SCHOOL AGE (a)

The reason for this provision is for the children of the applicant (prospective Filipino citizens themselves) to

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learn and imbibe the customs, traditions, and ideals of Filipinos: this is preparatory to a life of responsible and law abiding citizenship. (Dee v. Rep., L-3683, Jan. 28, 1953). Since under the law, naturalization generally gives the wife and minor children of the petitioner Philippine citizenship, it is necessary that the petitioner prove the filiation of his alleged children. (Yu Kay Guan v. Rep., L12628, July 28, 1960). (b)

Compliance with this provision must be competently and affirmatively shown, otherwise the application will have to be denied. (Chan Su Hok v. Rep., L-3470, Nov. 27, 1951). The educational requirement cannot be exacted from those whose children are not of school age. (Yu Kay Oh v. Rep., L-10084, Dec. 19, 1957. See also Que Tiac v. Republic, 43 SCRA 56). Enrollment of the minor children of school age in the designated schools is sufficient; their completion of primary and secondary education is not demanded under this provision. (Yrostorza v. Rep., 83 Phil. 727). Enrollment in an exclusive Chinese school does hot satisfy the law. (Chua Pieng v. Rep., 48 O.G. 4349. See also Rep. v. Barcelona, 58 SCRA 698), unless of course the Government recognizes it and Philippine history, government, and civics are taught therein or are prescribed as part of the curriculum. (Uy Yu v. Rep., L5592, Dec. 21, 1953). Failure to identify the school concerned is fatal to the application for naturalization. (Po v. Republic, 40 SCRA 37; Sy Chuang v. Rep., 40 SCRA 411).

(c)

All the children concerned should have been enrolled; this is completely mandatory. Failure to enroll even one of them will result in a denial of the petition even if: 1)

he happens to be out of the Philippines and he could not be brought to the Philippines because of insufficient finances. (Tan Hi v. Rep., L-3354, Jan. 25, 1951). If, of course, it is physically impossible to bring back the child to the Philippines, this would be a justifiable excuse. (Hao Lian Chu and Haw Pusoy v. Rep., L-3265, 48 O.G. 1780). However, the mere outbreak of the Civil War in China is not an adequate ground. (Koe Sengkee v. Rep., L-3863, Dec. 27, 1951).

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2)

the absent child was bom and grew up in China and is already married (Dy Chan Tiao v. Rep., L6430, Aug. 31, 1954), or has already reached the age of majority. (Quing Ku Chay v. Rep., L-3265, Dec. 27, 1951).

3)

the child died before or during the pendency of the proceedings. (Chua Pieng v. Rep., 48 O.G. 4349).

4)

and finally, even if the child is adopted by a Filipino (Tan Hoi v. Rep., L-15266, Sept. 30, 1960) since after all said adopted child by virtue of the adoption does NOT become a Filipino (Ching Leng v. Galang, L-11931, Oct. 27,1958) but remains a Chinese child, one who stands to become a Filipino himself should his father by nature be granted naturalization. (Tan Hoi v. Rep., supra). However, if the child of the petitioner resided in a place where there is no school for a deaf and mute children, failure to enroll said child may be considered justified. (Garchitorena, etc. v. Rep., L-15102, April 20, 1961).

,*

(d)

The denial of the first petition for naturalization by reasons of applicant’s failure to bring to the Philippines his child of school age is a bar to the grant of a subsequent petition even if at the time the new petition is presented, the child is no longer of school age. (Yap Chun v. Rep., L-l 8516, Jan. 30, 1964).

DISQUALIFICATIONS FOR NATURALIZATION Sec. 4. Naturalization Law. The following cannot be naturalized as Philippine citizens: (a)

Persons opposed**to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments;

(b)

Persons defending or teaching the propriety of violence, personal assault, or assassination for the success and predominance of their ideas;

(c)

Polygamists or believers in the practice of polygamy;

(d)

Persons convicted of a crime involving moral turpitude;

(e)

Persons suffering from mental alienation or incurable contagious diseases;

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(f)

Persons who, during the period of their residence in the Philippines have not mingled socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the Filipinos;

(g)

Citizens or subjects of nations with whom the United States and the Philippines are at war; and

(h)

Citizens or subjects of a foreign country other than the United States, whose laws do not grant Filipinos the right to become naturalized citizens or subject thereof.

COMMENT: (a)

The burden of proof as to qualifications is on the applicant; the; burden of proceeding with respect to the disqualifications is ordinarily on the state. The state is not, however, bound by what are contained in the pleadings relating to qualifications and disqualifications. (Yap Chin v. Rep., L-4177, June 29, 1952). However, in Singh v. Rep., 51 O.G. 5172, the Court held that a petitioner must establish by proof that he has NONE of the disqualifications. This ruling was reiterated in Ly Hong v. Rep., L-14630, Sept. 30, 1960. The reason, according to the Court is that the Naturalization Law should be strictly construed, and doubts resolved, against the applicant. As a matter of fact, even without any objection on the part of the Government (SolicitorGeneral’s Office), the Court may motu proprio (on its own accord) DENY the application if the evidence fails to prove that all the requirements have been met. (Pe v. Republic, L-16980, Nov. 29, 1961; Hao Su Siong, etc. v. Republic, L-13045, July 30, 1962).

(b)

Re Par. (c) —Mere belief in polygamy without practising it is enough to disqualify. “Polygamy” is the marriage of one man to several wives at the same time or vice-versa.

(
Re Par. (d) —Moral turpitude is that which shows in a person the presence of injustice, dishonesty, immodesty, or immorality. (An act o f moral turpitude is one of business, vileness, or depravity in the private and social duties which a man owes his fellowmen, to society in general, contrary to the accepted and customary rule of

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right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals. It implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not merely be mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. [Zari v. Flores, 94 SCRA 317]). Crimes involving moral turpitude include estafa (Villasanta v. Peralta, 54 O.G. 954), concubinage (In re Isada, 60 Phil. 915), and profiteering. (Tak Ng v. Rep., L-13017, Dec. 23, 1959)\ but not “speeding” (Daniel Ng Teng Lin v. Rep., L-10214, April 28, 1958) nor the playing of “mahjong” during the prohibited hours. (Chiong v. Rep., L-10976, April 16, 1958). (d)

Re Par. (e) — The disease must be BOTH incurable and contagious to constitute a disqualification.

(e)

Re Par. (f) — This may be rebutted by a complete (from grade school to college) education in the proper Philippine schools. (Joaquin Yap v. Rep., L-11178, April 23, 1958). The law requires, however, that an applicant should “mingle socially” with Filipinos as a fact, and is not content with personal beliefs to that effect. The burden laid on an applicant to affirmatively show that he maintains social relations with the Filipinos be shown by concrete instances (with dates, places, names). The law demands that the “social mingling” takes place during the ENTIRE period of residence in the Philippines in order to preclude any temporary sporadic social intercourse set up only for naturalization purposes. Receipts for contributions to charitable organizations will not suffice for these contributions may have been made without any significant social intercourse to mingle socially, an applicant must deal with and receive Filipinos in his home, and visit Filipino homes in a spirit of friendliness and equality without discrimination. (Chua v. Rep., L-19775, Sept. 29, 1964) Enrollment of the children at a Chinese school, even if it is recognized by the Government, argues against the alleged sincere desire of the petitioner to embrace Filipino customs and traditions, as well as to mingle socially with the Filipinos, for he could have enrolled his children in a school owned

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or run by Filipino citizens. In the Chinese school referred to, most of the students are Chinese or foreigners, with the Filipinos forming the minority. (Uy Ching Ho v. Republic, L-19582, March 26, 1965). (f)

Re Par. (h) — The petitioner must prove that his country allows the naturalization of Filipino citizens. (Singh v. Rep., 51 O.G. 5172). Among the countries already shown to grant reciprocal naturalization rights to Filipinos are the United States by Pub. Act No. 483 of the 79th U.S. Congress. (Pritchard v. Rep., 81 Phil. 244), Nationalist China (Taiwan) (Yap v. Sol. Gen., 85 Phil. 217), and Spain (Delgado v. Rep., L-2564, Jan. 28, 1950). Formerly, it was not necessary for petitioner to show that the laws of Nationalist China allow Filipinos to be citizens of that country, it being sufficient that he submits proof of Chinese citizenship. The reason then given by our Court is that in a number of decisions, it has been found that indeed Filipinos may be naturalized in Nationalist China. (Cu v. Republic, 51 O.G. 5625; Ng Liam Keng v. Rep., L14146, April 29, 1961). HOWEVER, the Court reversed this dictum on the ground that laws may be repealed at anytime, and the applicant must, therefore, fully establish that his nation grants reciprocal rights to our citizens at the time his application is heard. The burden of proof is on petitioner. (Chua v. Republic, L-19775, Sept. 29, 1964). Upon the other hand, the applicant does not have to obtain permission from his country to renounce his original citizenship or nationality. It is enough that our rules are complied with; to seek compliance with the rules of other countries would be in a case such as this “a brazen encroachment upon the sovereign will and power of the people of this Republic.” (Pardo v. Rep., 86 Phil. 340). In the case of stateless individuals, they may be naturalized without proving that their original country grants reciprocal rights to Filipinos on this matter. (Kookooritchkin v. Rep., 81 Phil. 435; Bermont v. Rep., L3323, July 18, 1951).

STEPS IN NATURALIZATION PROCEEDINGS (a)

A declaration of intention to become a Filipino citizen must first be filed, unless the applicant is exempted from this requirement. (Secs. 5 and 6, Com. Act No. 473).

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(b)

The petition for naturalization must then be filed. (Sec. 8, Com. Act No. 473).

(c)

After publication in the Official Gazette, the petition will be heard. (Sec. 9, Com. Act No. 473, as amended).

(d)

If the petition is approved, there will be a rehearing two years after the promulgation of the judgment awarding naturalization. (Sec. 1, Rep., Act No. 530).

(e)

The last step will be the taking of the oath of allegiance to support and defend the Constitution and the laws of the Philippines. (Sec. 11, Com. Act No. 473, as amended.)

THE DECLARATION OF INTENTION (a)

The Codal Provision “One year prior to the filing of his petition for the admission to Philippine citizenship, the applicant for Philippine citizenship shall file with the Office o f the Solicitor-General a declaration under oath that it is his bona fide intention to become a citizen of the Philippines.” (Sec. 5, Naturalization Law).

(b)

Mandatory Character Unless the applicant is exempted by law, the filing of this intention is mandatory, and failure would be fatal. (Chua Pieng v. Republic, L-4032, Oct. 25, 1952; Ong Khan v. Rep., L-4866, Oct. 28, 1960). A filing fee is paid simultaneously with the filing of the declaration as provided for in a regulation issued by the Secretary of Justice. Even if the declaration is filed one year prior to the filing of the petition for naturalization, still if the filing fee for such declaration is paid later, say, 51/2 months prior to the petition for naturalization, the filing of the declaration produces NO legal effect (Lee v. Republic, L15027, Jan. 31, 1964, where the Court applied a pari materia ruling in Lazaro v. Endencia, 57 Phil. 552).

(c)

Reasons for the Provision The period of one year is intended to give the state a reasonable time to screen and study the qualifications of the applicant. (Chua v. Rep., L-4112, Aug. 28, 1952);

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secondly, it is a means by which good intention and sincerity of purpose may be gauged. (Kiat v. Rep., L4802, April 29, 1953) (d)

Contents o f the Declaration Aside from the bona fide intention to become a Filipino, the declarant must also set forth his name and personal circumstances, and that “he has enrolled his minor children if any, in any of the public schools or private schools recognized by the Bureau of Private Schools of the Philippines (now the Department of Education, Culture and Sports), where Philippine history, civics, and government are taught or prescribed as part of school curriculum, during the entire period of residency in the Philippines required of him prior to the hearing of his petition for naturalization as Philippine citizen. Each declarant must furnish two photographs of himself. (See Sec. 5, Naturalization Law).

(e)

o

Persons Exempt from the Requirement to Make a Declaration o f Intention: 1)

Persons born in the Philippines and who have received their primary and secondary in public schools or private schools recognized by the Government, and not limited to any race or nationality;

2)

Those who have resided continuously in the Philippines for a period of thirty years or more before filing their application; and

3)

The widow and minor children of an alien who has declared his intention to become a citizen of the Philippines and dies before he is actually naturalized.

NOTE: In the cases abovementioned, it is also necessary that the applicant has given primary and secondary education to ALL his children in the public schools or in private schools recognized by the government and not limited to any race or nationality. (Sec. 6, Naturalization Law). See also Tan Ten Koc v. Republic, No. L-18344, Feb. 28, 1964 where the Court ruled that a petitioner whose children stopped schooling merely because of marriage and illness, is NOT exempt from

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filing the declaration of intention if he is not able to present satisfactory proof that said marriage and illness made it ABSOLUTELY necessary for the children to stop going to school. In this case, the petitioner, despite his 30-year residence was NOT granted the benefit of the exemption. (f)

Strict Interpretation o f the Exemptions: 1)

Regarding number (1) in the preceding number, aside from birth in the Philippines, the applicant who wishes exemption from the declaration of intention must have COMPLETED his secondary course. This is the interpretation given by the Court to the phrase “received their primary and secondary education.” (Pidelo v. Rep., L-7796, Sept. 29, 1955). Thus, finishing a part of the fourth year course in high school is not enough (Dy v. Rep., 49 O.G. 939) unless at the time of the filing and hearing of the petition, he is still enrolled in said fourth year, in which case, the law does not demand an impossibility. (King v. Rep., L-3264, Nov. 29, 1950). In the King case, the Court ruled that substantial com pliance was sufficient, considering the circumstances of the case; in Uy Boco v. Rep., 85 Phil. 320, the Court held that, in general, there should be a strict, not a mere substantial compliance with the law. In Lee Ng Len v. Republic (L-20151, March 31, 1965), the Supreme Court stressed that the burden lies on the applicant to satisfactorily show that all schools attended by him are NOT LIMITED to students of particular nationality, and are regularly attended by a sizable number of Filipino students from whom applicant could have imbibed Filipino customs and traditions. In case of failure to prove this, applicant cannot be considered exempt from filing the declaration of intention. (See also Chong King Keh Yeng v. Rep., 61 SCRA 531). The fact that the school is not limited to any race or nationality cannot be presumed merely from the fact that the school is recognized by the Government. Deficiency of proof here is FATAL to the claim for exception. (Lim Cho Koan v. Republic, L-21198, Jan. 22, 1966; Tan Kian Sy v. Republic, L-31376, July

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25, 1972). Upon the other hand, the bare un­ supported testimony o f the applicant o f the nonlimitation of the school is not sufficient. (See Guan v. Rep., L-26196, July 31, 1970). However, while the petitioner him self m ust have COMPLETED his secondary education, his children need not have finished the same; it is sufficient that they are enrolled (Tan v. Rep., L-1551, Oct. 31, 1949), unless they are not yet of school age. (Gotauco v. Rep., 55 O.G. 2247). The best evidence to show the respective ages of the children would be their birth certificates. Failure to submit said certificates would be FATAL. (Hao Su Siong, etc. v. Rep., L13045, July 30, 1962). All the children of school age must have been enrolled however, or finished. (Ny Sin v. Rep., L-7590, Sept. 20, 1955). The fact that one of the children was living in Hongkong does not justify failure to send him to school here in the Philippines. (See Tan v. Rep., L-20604, May 29, 1970). Needless to say, the enrollment does not have to be during the entire period of residence for otherwise the children would be in school forever so long: absurd or impossible situations were never intended by the drafters of the law. (Pritchard v. Rep., 81 Phil. 244). For one of the children not to be given secondary education simply because she got married is not a valid excuse. (Lee Cho v. Rep., L12408, Dec. 28, 1958). However in Ong Kue v. Rep., L-14550, July 26, 1960, the Court allowed marriage as a justifiable excuse for not continuing with the proper studies, inasmuch as by virtue of such marriage, the girl was released from the parental authority of the applicant. (Art. 399, Civil Code). In the same case, the Court also considered ill-health, attested to by a medical certificate of another child as a valid reason for not completing her secondary education. In Sy Kiap v. Rep., 44 O.G. 3362, the Court had occasion to say that the enrollment in government-approved schools of the Philippines, in addition to other requisites was required since such is one of the tests of the bona fide intention of the applicant to become a citizen: this would forestall aliens and their minor children from becoming

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citizens of this country without knowing its insti­ tutions and the duties of citizenship.

(g)

2)

Regarding number (2) in the preceding number, it has been held that for the person to be exempt from the filing of the declaration of intention, the residence here of thirty years must be actual and substantial not a mere legal residence. (By v. Rep., 48 O.G. 4813; Kiat Chun Tan v. Rep., L-4802, April 29, 1953; Co Cho v. Republic, L-17917, April 30, 1964). A mere six-month absence from our country, with, however, intent to return here does not interrupt the 30-year “continuous” residence. (Ting v. Rep., 54 O.G. 3496). A residence here, however, of only 29 years is not enough to exempt petitioner from filing the declaration of intention. (Chua v. Rep., L-4112, Aug. 28, 1952). If the applicant did not file a declaration of intention because he thought that while a minor, he could be considered a resident here because of the Philippine residence of his father — although said minor was actually in China, he will be denied naturalization. The rule that a minor follows his father’s residence does NOT apply when the residence required is ACTUAL. (See Yek Tek v. Rep., L-19898, June 28, 1965).

3)

Regarding number (3), it has been held that while the right given to the widow and the minor children of the petitioner who has died, to continue the proceedings APPLIES whether the petitioner dies before or after final decision is rendered, but before judgment becomes executory, the widow may be allowed to take the oath of allegiance once the naturalization proceeding of her deceased husband shall have been completed on her own behalf and of her children, if she herself might be lawfully naturalized. (Tan Lim, et al. v. Republic, L-13786, May 31, 1961).

QUERY'. Is it ajurisdictional requirement for the petition for naturalization to state that the applicant has filed a declaration of intention or is exempt from making such a declaration? ANSWER: If the ruling enunciated by the Supreme

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Court in the case of Sy Ang Hoc v. Rep., L-12400, March 29, 1961, is to be strictly adhered to, the answer is a resounding yes. This would be a veritable legal bombshell; it would destroy, on the ground of lack of jurisdiction, so many “fiscal decisions” on the matter of naturalization. In the Sy Ang Hoc case, while the declaration of intention was really filed with the Office of the Solicitor-General within the proper period still this fact of compliance was NOT AVERRED in the PETITION for citizenship. The Court ruled that this was a JURISDICTIONAL DEFECT. The Court observed: “Sec. 7 of Com. Act 473 requires that there should be an averm ent in the petition for naturalization that the petition has complied with the requirements of Sec. 5 of said Act, which refers to the filing of the declaration of intention to become a Filipino citizen, one (1) year prior to the filing of the petition for naturalization, in this particular case, June 16, 1954. Petitioner has not averred in his petition that ‘he has complied with the requirements of Sec. 5 of this Act. It is TRUE that on May 22, 1953, within the reglamentary period, the petitioner filed with the Office of the SolicitorGeneral a declaration of intention (Exh. D). But the law provides specifically that the filing of the declaration of intention must be averred in the petition. The declaration of intention is so essential in cases of naturalization that its incorporation in the petition has become jurisdictional.” If by “incorporation” is meant that attaching of the declaration of intention as an integral part of the petition, not much damage will be done to the decided cases on naturalization. But if the word means that the averment must be made in the petition itself, even though the declaration of intention is already attached, this appears to be a little absurd and trivial. To say that lack of such an averment is a JURISDICTIONAL defect would rend into pieces many “final judgments” on naturalization. It need not be pointed out that all too often, such an averment has NOT been done. As has been previously intimated, the Court held in the case of Rep. v. Co Bon Lee, L-11499, April 29, 1961, that:

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“Unlike final decisions in actions and other proceedings in court, a decision or order granting citizenship to the application does not really become executory; and a naturalization proceeding, not being a judicial adversary proceeding, the decision rendered therein is not res judicata as to any of the reasons or matters which would support a judgment cancelling the certificate of naturalization for illegal or fraudulent procurement. As a matter of fact, it is settled in this jurisdiction that a certificate of naturalization may be cancelled upon grounds or conditions subsequent to the granting of the certificate of naturalization.” The Sy Ang Hoc case has however been repeatedly reiterated. Thus it has been ruled that “the failure . . . of the petitioner to make a statement in his original petition about his having filed, or his being exempt from that requirement, constitutes a FATAL DEFECT in his petition and rendered the same VOID.” (Tan v. Republic, L-19897, June 24, 1965; Tan Kian Sy v. Republic, L-31376, July 25, 1972; Ong Khan v. Rep., 109 Phil. 855).

FILING OF THE PETITION FOR NATURALIZATION (a)

Where petition is to be filed After the lapse of one year from the time the declaration of intention is filed, the petition for naturalization may be presented in court. Under Sec. 8 of the Naturalization Law — “The Court of First Instance (now The Regional Trial Court) of the province in which the petitioner has resided, for at least one year immediately preceding the filing of the petition shall have exclusive original jurisdiction to hear the petition.”

.

Let it be noted that the law says “preceding the filing” not “preceding the hearing.” (Squillantini v. Republic, L-2785, Jan. 31, 1951). The petition must indicate specifically or one by one the fact that applicant has all the qualifications. Thus a blanket allegation that he has “all the required to Commonwealth Act No. 473”

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is not sufficient. Hence if the petition fails to state that the petitioner has good moral character, the petition is nullified. (Chua Kian Lai v. Republic, L-37443, Sept. 11, 1974). The “residence” required under this particular provision is not physical, actual, or substantial residence; mere LEGAL residence is sufficient. (King v. Rep., L72687, May 23, 1951). Thus, in one case, an applicant residing in one province, had to temporarily stay in another province during the entire period of the Japanese occupation. The Court held that for the purpose of the provision now under consideration the petition must be filed in the first province. (Chan Kim Lian v. Rep., 49 O.G. 128). In another case, a Pasay resident who had to leave his damaged house in Pasay and stay temporarily in Manila was deemed by the Court not to have abandoned his Pasay residence. (Zuellig v. Republic, 83 Phil. 786). Indeed, the intent to return (animus revertendi) must always be taken into account in the determination of one’s domestic residence. (King v. Rep., supra). The purpose of the one-year residence. (King v. Rep., supra). The purpose of the one-year residence is to facilitate the determination by official authorities of the different activities of the applicant, specially with regard to his qualifications. (Chieng Yen v. Republic, L-18885, Jan. 31, 1964). It has been held that petition must be denied when the applicant fails to state in his petition his present and former places of residence. (Koa Gui v. Republic, L13717, July 31, 1962). The omission in the petition of some of applicant’s former places of residence is in itself a sufficient disqualification. (Yeng v. Rep., L-18885, Jan. 31, 1964; Tan Tiu v. Rep., L-21550, Jan. 30, 1970; Dy v. Rep., L-21958, Sept. 28, 1970; Ang To v. Rep., L-26952, Aug. 30, 1972). And this is so even if the applicant was only a minor at the time of stay at those former residences. (Rep. u. Ko Keng, L-19829, Aug. 31, 1970; Dy v. Rep., L-21958, Sept. 28, 1970). Good faith in omitting the places of residence is immaterial. (Rep. v. Barcelona, 58 SCRA 698). Likewise the deficiency of the petition is not cured by testimony of applicant during the hearings re his present and former places of residence. (Chua Kian Lai v. Rep., 59 SCRA 40). The purpose of indicating all former places of residence is to facilitate a checking up of applicant’s activities. (Long v. Rep., L-18758, May 30,

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1964). An omission of this requirement, therefore, in effect falsifies the truth and indicates a lack of good moral character. (Giok v. Rep., L-13347, Aug. 31, 1964). Evidence of additional residences presented during the trial will not cure the original defect. (Qua v. Rep., L-19834, Oct. 27, 1964; Chua Kian Lai v. Republic, L-37443, Sept. 11, 1974). The failure of the applicant to mention the name he had been baptized with is FATAL because persons who might have derogatory information against such name might not come forward with it in the belief that the applicant is a different person. (Kwan Kwock How v. Republic, L-18521, Jan. 30, 1964). (b)

The Supporting Affidavit The affidavit of two credible persons must support the petition for naturalization. Said persons must state: 1)

That they are citizens of the Philippines;

2)

That they personally know the petitioner to be a resident of the Philippines for the period of time required by the Naturalization Law;

3)

That the petitioner is a person of good repute and is morally irreproachable; and

4)

That he has, in their opinion, all the qualifications, and none of the disqualifications for naturalization. (Sec. 7, Naturalization Law).

Within the purview of the Naturalization Law, a “credible person” is one who is not only a Filipino citizen (Watt v. Rep., L-20718, Aug. 30, 1972) but who also has a good standing in the community, one known to be honest and upright. Evidence must be presented on this point, however. (Dy Shin Sheng v. Rep., L-13496, April 27, 1960). The two “credible persons” which the law demands are in a sense insurers of the applicants qualifications, and hence in themselves, must be individuals of probity and good standing in the community, with their words taken at face value. (O Ku Phuan v. Rep., L-23406, Aug. 31, 1967; Hao Guan Seng v. Rep., L-23936, Sept. 13, 1967). Thus, an employment as a bookkeeper in a Chinese firm for over thirty years is not necessarily satisfactory proof of probity and good standing in the community; neither is mere membership in the police force, particularly if

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171

the policeman character-witness had once upon a time been accused, although acquitted, of a violation of our opium laws. (Teh v. Republic, L-19831, Sept. 30, 1964). Where the character witness’ knowledge cannot be considered competent, because said business dealings afford little room for personal matters and do not provide a reliable basis for gauging a person’s moral character. (Uy v. Rep., L-19578, Oct. 27, 1964). A mere customer of the applicant’s store cannot act as such witness, neither a person who is a mere neighbor who meet the petitioner every day and possesses a nodding acquintance with him. (Tse v. Rep., L-19542, Nov. 9, 1964). The relationship must not be merely on the business level; there must be social relations — friendship more or less with the petitioner’s parents, brothers, and sisters. (Saw Cen v. Republic, L-20310, April 30, 1965). A witness who resides in a place far from where the applicant lives is likewise disqualified to be witness for him. (Lara v. Rep., L-18203, May 29, 1964). What must be “credible” is not necessarily the testimony itself, but the person giving it. (Si Ng v. Republic, L-16828, May 30, 1962; Ong Ling Chuan v. Republic, L-18550, Feb. 28, 1964). Ordinarily, the affiants must be the very ones presented during the hearing (Singh v. Rep., 51 O.G. 5172), unless, of course, good reasons exist for a substitution as in the of death (Pe v. Rep., 5855) or unexpected absence. (Ong v. Rep., 55 O.G. 3290). With reference to (2), it should be noted that the witnesses are not required to attest and testify to the conduct of the applicant during the ENTIRE period of his residence in the Philippines; it is enough that the knowledge is for the period of time REQUIRED under the Naturalization Law. Upon the other hand, the period of infancy or childhood is NOT included in the phrase “during the entire period o f his residence in the Philippines.” Such period refers to that time when a person become conscious and responsible for his acts and conduct in the community where he lives. (Dy Lam Go v. Republic, L-15858, July 31, 1962). The witness, however, must NOT be under the authority or influence of the petitioner. (Lo v. Republic, L-15919, May 19, 1961). Hence, the circumstance that one of the witnesses was the lawyer of petitioner’s father lends doubt as to the veracity of his testimony, and leads one to conclude that his declarations

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are biased and untrustworthy. (Ong Ling Chua v. Republic, L-18550, Feb. 28, 1964). The father-in-law of petitioner’s counsel is not a reliable character witness. (Chong King Keh Yeng v. Rep., 61 SCRA 521). Hence, also employees or persons in the service of the petitioner, or of the business enterprise owned or operated by him or his family, are not competent to be the attesting witnesses here. (See Watt v. Rep. and other cases, L20718, Aug. 30, 1972). Thus, the driver of the applicant’s brother cannot be the credible witness needed. (Yoy On v. Rep., 38 SCRA 485). To prove the “good repute” of the petitioner, the personal opinion of the two witnesses that the applicant is a hard-working, law-abiding and a credit to the community is NOT sufficient. For “good repute” primarily means the opinion of the community about the petitioner, not just the opinion of two individuals. (Kwan Kwock How v. Republic, L-18521, Jan. 30, 1964).

THE HEARING OF THE PETITION After proper publication once a week for three consecutive weeks in the Official Gazette, and in one of the newspapers of general circulation in the province where the petitioner resides, and proper posting of the petition, the same shall be heard by the :ourt. (Sec. 9, Naturalization Law). Failure of the appellant to publish his petition “once a week for three weeks" is fatal to the petition because this affects the jurisdiction of the trial court. This s so even if at the time publication was made the Official Gazette :ame out once only every MONTH. What should be done in this :ase would be to publish the same once a month for three consecutive MONTHS. Failure on the part of the government to object is mmaterial for the defect is fatal, impairing as it does the very root ir foundation of the authority to decide the case regardless of whether the one to blame therefor is the Clerk of Cour or the letitioner or his counsel. (Cy Quing Reyes v. Republilc, L-10761, 'Jov. 29, 1958; Tan Cona v. Republic, L-13224, April 27, 1960). To ivoid unfairness however, the abovementioned ruling was iIODIFIED in the Gan Tsitung v. Rep. case, GR-20819, Nov. 29, 965, in the sense that the doctrine o f lack o f jurisdiction in the ituation given should apply only to certificates of naturalization cquired after May 29, 1957, when the Ong Son Cui case was ecided. Prior certificates are therefore to the considered valid des­ ite the defective publication. (Yao Mun Tec v. Rep., 37 SCRA 55).

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The purpose of the publication is to apprise the public of the pendency of the petition so that those who know of any legal objection to it may come forward with said information. (Yu Seco v. Rep., L-13441, June 30, 1960). What should be published is the petition itself; publication merely of the notice of the filing of the petition is not enough. (Po v. Rep., L-27443, July 19, 1971, 40 SCAD 37). Nor is the publication of a mere synopsis of the petition be regarded as sufficient. The entire petition must be published verbatim or textually. This is because Sec. 9 of CA 473 says the petition must be published. Each of the six qualifications needed for naturalization must be specifically alleged (Chua Bon Chiong v. Rep., 39 SCRA 318). The proceeding being one is rem, the publication requirement must be strictly enforced (Tan Teng Hen v. Rep., L31862, Aug. 21, 1974) for it is jurisdictional. (Chua Bon Chiong v. Rep., 39 SCRA 318; Sy v. Republic, 55 SCRA 724). The Office of the Solicitor-General (not the complainant himself) may the properly speak for the Government. (Anti-Chinese League v. Felix and Lim, L-998, Feb. 20, 1957; Go v. Anti-Chinese League and Fernandez, 84 Phil. 468). Be it noted that notice to the Solicitor-General of the naturalization proceedings, the orders and steps leading to the oathtaking, is essential to the validity of such proceedings. (Lim v. Rep., L-27126, May 29, 1970; Tan Ngo v. Rep., L-30934, Jan. 31, 1972; Watt v. Rep., L-20718, Aug. 30, 1972; Uy Giok Chiu v. Rep., L28579, Aug. 30, 1972; Rep. v. CFI ofAlbay, 60 SCFA 195). The non­ inclusion of the alias of the petitioner in the publication of the petition is FATAL, for it deprives a person, knowing the petitioner by said alias, of the opportunity to come forward, the inform the authorities of anything that may effect the petitioner. The defect is therefore JURISDICTIONAL. (Saw Cen v. Republic, L-20310, April 30, 1965; Chua Bon Chiong v. Rep., 39 SCRA 318; Go Chiu Beng v. Rep., 46 SCRA 617). (Of course, if the alias was without judicial authority, this defect by itself would result in the denial of the petition for the use of said alias is illegal). (Dy v. Republic, L21958, Sept. 28, 1970). If the records do not show that the copies of the petition, and the general notice of the hearing of the petition were posted at a public and conspicuous place in the municipal building, this discrepancy constitutes a jurisdictional defect. (Tan Kong Kiat v. Rep., L-19915, June 23, 1965). The requirement that the certificate o f arrival be made part of the petition is mandatory. Failure in this regard is fatal. (YuTiv. Republic, L-19913, June 23, 1965). If after due hearing it is proved that the applicant has all the qualifications and none o f the disqualifications, it is MANDATORY for the court to grant the petition. What the law

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grants, the court are not allowed to deny. (Go v. Anti-Chinese League, supra). In case of an appeal, the period of thirty days must be counted from the date the Solicitor-General had previously directed the fiscal or the city attorney to appear in behalf of the SolicitorGeneral, and even if said fiscal or attorney had received his own copy of the decision earlier. This is so because the authorization cannot be construed to have divested the Solicitor-General of his control of the stand or defense of the state. (See Sec. 10, Revised Naturalization Law; Republic v. Chiu and Hon. Abbas, etc. L-20846, Oct. 31, 19Jp4). Thus, the period must not be counted from the time notice was received by the Fiscal. (Rep. v. Maddela, 42 SCAD 151). If the State appeals from the judgment of the CFI granting naturalization, and the applicant fails to file the appellee’s brief, the petition for naturalization will be dismissed for lack of interest. (Tiu v. Republic, 61 SCRA 518). Upon the other hand, even if there is an appellee’s brief, the State’s appeal subjects the entire case to scrutiny by the Supreme Court even if the subject of scrutiny was not touched upon in the briefs or pleadings of the parties. (Chua v. Rep., 39 SCRA 318).

REHEARING AFTER TWO YEARS IN CASE OF APPROVAL OF THE PETITION (a)

Even if the Court approves the petition the decision will not be executory until after two years from its promulgation. Certain conditions will have to be fulfilled and proper proof thereof must be presented. The pertinent law on this matter is Rep. Act No. 530 amending the Naturalization Law. Said Rep. Act was approved on June 16, 1950, it was published in 46 O.G. 4729. ,v3j f

REPUBLIC ACT NO. 530 AN ACT MAKING ADDITIONAL PROVISIONS FOR NATURALIZATION Section 1. The provisions of existing laws notwithstanding, no petition for Philippine citizenship shall be heard by the courts until after six months from the publication of the application required by law, nor shall any decision granting the application become executory until after two years from its promulgation and after the court, on proper

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hearing with the attendance of the Solicitor General or his representative is satisfied and so finds that during the intervening time the applicant:

(b)

(1)

has not left the Philippines,

(2)

has dedicated himself continuously to a lawful calling or profession,

(3)

has not been convicted of any offense or violation of government promulgated rules,

(4)

or committed any act prejudicial to the nation or contrary to any Government announced policies.

Comment: The purpose of the two-year period is to place the petitioner on probation. (Dee Sam v. Rep., L-9097, Feb. 29, 1956). The period starts from the time the judgment becomes final: thus, if the government does NOT appeal, the starting period begins from the time the judgment of the trial court is promulgated; if the government appeals, the period starts from the time the appellate court promulgates its judgment awarding naturalization. These rules are obvious, for it is only upon final judgment that the authorities concerned will know the naturalization is about to be granted; hence, from that time, a close scrutiny of the petitioner’s conduct will be made. (Rep. v. Makalintal, 48 O.G. 4346; Chaustinek v. Anti-Chinese League and Fernandez, 50 O.G. 1499; Pisingan Chiong v. Rep., L-15313, March 25, 1961). During the hearing on the petition to take oath, any question affecting the qualification of the applicant may be invoked. (Lim Hok Albano v. Republic, L-10912, Oct. 31, 1958). On appeal therefore, the appellate court can inquire whether or not applicant is not disqualified for naturalization. (Ong Ching Guan v. Republic, L-15691, March 27, 1961). The failure of an applicant to pass successfully (without violation of the requirement) the two-year probationary period results in the loss of whatever rights he may have acquired under the decision authorizing his naturalization inasmuch as said decision was rendered nullified by a subsequent one denying the grant of the certificate of naturalization (denied because the applicant had been

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convicted during the probationary period for the violation of a municipal ordinance). (c)

Comment: Re — Leaving the Philippines During the two-year probation period, the physical presence of the petitioner in the Philippines is required not mere legal residence, otherwise the government will not have the opportunity to observe and scrutinize his conduct. Unless he be actually in our country, how can he dedicate himself to a lawful calling and profession? Moreover, if he be allowed to stay abroad, he may commit in a foreign soil acts inimical to our interests. (Uy v. Rep., 52 O.G. 5874). Should he leave our shores, the fact that he intends to return or that he has no desires of establishing a domicile elsewhere is immaterial. The law on this matter does not speak of residence or domicile; it says: “left.” (Te Tek Lay v. Rep., 51 O.G. 5154). In certain cases, however, the physical absence from the Philippines may be excused: if the petitioner leaves for abroad on a government mission; if he has been kidnapped or forcibly removed from the country; if he has to go and stay abroad, for sometime not too long to undergo an operation to save his life (Uy v. Rep., supra); but not if the purpose is to obtain a medical checkup, or to strengthen business connections (Uy v. Rep., supra), or to help in the settle­ ment of the estate of a relative (Dee Sam v. Rep., L-9097) or to help his wife obtain medical treatment abroad (Isasi v. Rep., 53 O.G. 6529), or to gather information abroad on insurance matters in behalf of his firm, even if incidentally, he may be able to obtain a presidential . appointment to act as a representative of the Philippine government, particularly when such appointment has been given merely to accommodate him and to give some official color to the trip. (See Yvanovich v. Republic, L -l5998, May 26, 1964). Yvanovich v. Republic L-15998, May 26, 1964 FACTS:

On March 20, 1957, petitioner was allowed by the trial court to become a Filipino citizen in a resolution promulgated for that purpose subject to the provisions of R.A. No. 530. During

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the two-year probationary period, he requested permission from the lower court to leave the Philippines for business reasons. Although his request was denied, he went abroad just the same. Petitioner now contends that he went abroad to gather information on insurance and reinsurance schemes being used in other countries in the interest of the company he represents but at the same time he was appointed by the President of the Philippines “as representative of the Republic of the Philippines to observe economic trends in connection with social security system and insurance treaties in foreign countries.” With this connection, he desires to convey the impression that he left the Philippines not of his own volition but at the instance of the government. HELD:

This contention is belied by his own evidence. Thus, in his own letter to the Solicitor General mentioned elsewhere, he indicated that his purpose in going abroad was principally for the benefit of the Fieldmen’s Insurance Company, Inc. of which he is the Executive Vice President, General Manager, and Chief Administrative Officer elected by its Board of Directors to make the necessary contact with its reinsurers abroad in the shortest time possible. He emphasized that as such official it was his duty to establish fresh contact in the world reinsurance market for the world reinsurer’s requirement of said company and that “he is going to journey in Europe and also in America, which trip is scheduled to be during the middle part of August 1, 1957 and expected not to exceed three months,” all in behalf of the Fieldmen’s Insurance Company, Inc. It is true that petitioner is invoking in his behalf a letter of former President Carlos P. Garcia wherein apparently he was given authority to go abroad as a representative of the Republic of the Philippines “to observe

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economic trends in connection with social security system and insurance treaties in foreign countries.” But this letter cannot give him comfort, for there it appears that he was to be given a formal appointment for that purpose but that his trip would be at his own expenses. It also appears that such appointment was never extended. At any rate, even if the required authority were given by our government still it could not erase the impression that his trip abroad was in the interest of his business concern, for it is to be presumed that his designation was extended merely to accommodate him just to give some official color to his trip. Certainly, such trip cannot furnish any valid justification for infringing the letter and spirit o f Republic Act No. 530. (d)

Comment: Re — Dedication to Lawful Calling or Profession Said calling or profession must be exercised in the Philippines during the two-year period (Uy v. Rep., supra).

(e)

Comment: Re — Non-Conviction or Violation The law says “not been convicted.” Hence, it is not essential that the offense or violation was “committed” during the two-year period. If the commission was before the two-year period, but the conviction was within said time, the petitioner will not be allowed to take his oath (Tiu San v. Rep,, L-7301, April 20, 1955). On the other hand, if the commission was within the time specified in the law, but conviction has not yet taken place because of the pendency of the case in court, the oath taking will be postponed until after the final adjudication of the charge: if acquitted, oath taking will come next; if convicted, it is clear that the oath will never be taken. (Ching Leng v. Rep., L-6268, May 10, 1954). Be it noted also that the law says “has not been convicted of any offense or violation of government promulgated rules.” Hence, a conviction for the violation of a municipal ordinance during this period of two years will effectively prevent the oath taking. A municipal

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ordinance is after all a government promulgated rule; moreover, here the law makes no distinction between acts mala in se and acts mala prohibita. (Tiu San v. Rep., L-7301, April 20, 1955). (f)

Comment: Re — Commission of Prejudicial Act or One Contrary to Public Policy The law says “committed any act prejudicial to the interest of the nation or contrary to any government announced policies.” Because of the use o f the word “committed” it follows that here it is not essential that the petitioner be “convicted.” If criminal proceedings have been instituted, the Court may postpone the taking of the oath until the criminal case has been decided. (Ching Leng v. Rep., L-6268, May 10, 1954). The execution of the petitioner of an “agreement to sell” and his consenting to the placing of his nationality as a “Filipino” (although he was not yet one) comes under this provision, and he will not be allowed to take his oath. (Tan Tiam v. Republic, L-14802, May 30, 1961). In the case of Antonio Kay See v. Republic, G.R. L17318, Dec. 28, 1962, the Supreme Court thru Mr. Justice Alejo Labrador disqualified an alien from taking his oath, because during the two-year probationary period, he failed to still register as an alien. The fact that his failure to still register was due to an honest belief that he was exempted therefrom is of no moment.

(g)

Effectivity of Rep. Act No. 530 Under Sec. 4 of the Act, effectivity will take place upon its approval. Said approval took place on June 16, 1950. And although it was signed at the last hour of June 16, 1950, it is considered to be effective from the first hour of said date, in other words, it took effect not on the midnight of June 16 but at midnight, June 15, 1950. To count the effectivity of a law from the moment of actual signing would make such effectivity depend upon the fallible memory of man. The law specifies the date, not the hour or the minute of effectivity. (Rep. vs. Encarnacion, et al., 87 Phil. 843).

(h) Applicability to Pending Cases and to Those Where the Petitioner Has Not Yet Taken the Oath

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PHILIPPINE CONFLICT OF LAWS

“This Act shall take effect upon its approval, and shall apply to cases pending in court, and to those where the applicant has not yet taken the oath o f citizenship: Provided, however, that in pending cases where the requisite of publication under the old law had already been complied with, the publication herein required shall not apply.” (Sec. 4, Rep. Act No. 530).

THE TAKING OF THE OATH After due hearing (after two years) by the same court that granted the naturalization, the order of the court granting citizenship shall be registered, if the court is convinced that the conditions imposed for the two-year probation period have been duly fulfilled and proved. (Anselmo Lim Hok Albano v. Rep., 56 O.G. 4750; Sec. 2, Rep. Act No. 530). The filing of the petition to take the oath must be done within a reasonable time after the expiration of said two-year period. A delay of more than 6 years in this regard reveals petitioner’s lack of interest in the matter. If his right to take the oath, in view of the attending circumstances, is an extremely doubtful one, the doubt ought to be resolved in favor of the state, and against the petitioner. (Cheng Kiat Giam v. Republlic, -16999, June 22, 1965). A copy of the petition to take the oath, as well as the notice of hearing thereof, must be served on the office Df the Solicitor-General, even if previously, the Solicitor-General had already authorized the Provincial Fiscal to represent the state at the hearing of the application for naturalization. Authority to represent at the latter hearing is NOT authority to represent at ;he hearing for the taking of oath. This defect is FATAL. (Lee Luan Jo v. Jarencio, -21521, Oct. 29, 1965). In case all requisites have jeen complied with, the petition to take the oath will be granted. The oath will then be taken £y the applicant, whereupon, and NOT BEFORE, he will be entitled to all the privileges of a Filipino :itizen. (Sec. 2, Rep. Act No. 530). The taking of allegiance letermines the beginning of his new status as a regular member of iur citizenry. (Tiu Peng Hong v. Rep., 52 O.G. 782). Thus, the act if a trial judge in allowing the applicant to take the oath even 5EFORE the two-year period is highly irregular. (Ong So v. Repubic, 20145, June 30, 1965). Incidentally, the renunciation of titles or rders of nobility must also be registered or recorded in the court. See Sec. 17, Naturalization Law). If at the time the petitioner akes his oath his former minor children have already become of ge, such children naturally do not automatically become Filipinos,

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because at the time of the naturalization of the parent, (that is, the attainment of Filipino citizenship by the parent) said children are no longer minors. (Sec. 15, Naturalization Law; Tiu Peng Hong v. Rep., 52 O.G. 782). If the records of the naturalization proceedings and the certificate of naturalization issued have been destroyed or lost, a petition for the reconstitution of the records may be filed within the prescription period fixed by law. (Rep. Act No. 441). In said petition, mere oral evidence would be utterly insufficient and unsatisfactory. A contrary rule would throw the door wide open for the commission of fraud against the state. (Procopy Moscal v. Republic, L-10836, Nov. 29, 1960).

CANCELLATION OF THE NATURALIZATION Sec. 18 of the Naturalization Law provides: “Upon motion made in the proper proceedings by the SolicitorGeneral or his representatives, or by the proper Provincial Fiscal, the competent Judge may cancel that naturalization certificate issued and its registration in the Civil Registry: (a)

If it is shown that said naturalization certificate was obtained fraudulently or illegally;

(b)

If the person naturalized shall, within the five years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and establish his permanent residence therein: Provided, that the fact of the person naturalized remaining for more than one year in his native country or the country of his former nationality, or two years in any country, shall be considered as prima facie evidence of his intention of taking up his permanent residence in the same;

(c)

If the petition was made on an invalid declaration of intention;

(d)

If it is shown that the minor children of the person naturalized failed to graduate from public or private high school recognized by the Bureau of Private Schools, where Philippine history, government, and civics are taught or prescribed as part of the school curriculum, through the fault of their parents either by neglecting to support them or by transferring them to another school or schools. A certified copy of the decree cancelling the naturalization certificate shall be forwarded by the Clerk of the Court

**

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PHILIPPINE CONFLICT OF LAWS

to the Office of the President and the Office of the Solicitor-General; (e)

If it is shown that the naturalized citizen has allowed himself to be used as a dummy in violation of the Consti­ tution or legal provisions requiring Philippine citizenship as a requisite for the exercise, use or enjoyment of a right, franchise, or privilege.” The Solicitor-General personally or through his delegate and the provincial fiscal are the only officers or persons authorized by law to appear on behalf of the Government to ask for the cancellation of a naturalization certificate already issued. (Anti-Chinese League of the Philippines v. Felix, et al., 77 Phil. 1012). An alien who misrepresents his length of residence in the Philippines (Bell v. Atty. Gen., 56 Phil. 667), or who conceals the fact that he is disqualified to become a Filipino citizen deserves to have his naturalization certificate cancelled because such certificate may be considered to have been obtained fraudulently or illegally. (Gurbuxani v. Government, 69 Phi. 280). Should it turn out that the naturalized citizen was already a Filipino even before he was naturalized, the naturalization certificate should naturally be cancelled because said certificate is unnecessary. (Palanca v. Rep., 80 Phil. 578). A decision in a naturalization case can never be res judicata as to any of the reasons or matters which would support a judgment cancelling the certificate of naturalization for illegal or fraudulent procurement. As a matter of fact, it is settled in this jurisdiction that a certificate of naturalization may be cancelled upon grounds or conditions subsequent to the granting of the certificate of naturalization. (Rep. v. Co. Bon Lee, L-11499, Apri 29, 1961). The reason why the decision in a naturalization case is not res judicata is because the case is not a judicial adversary proceeding. (Tan Teng Hen v. Rep. L-31862, Aug. 21, 1974). Indeed it is settled that the doctrine of estoppel or of laches does not apply against the government suing in its capacity as sovereign or asserting government rights. It has been held that the government is never estopped by mistake or errors on the part of its agents. (Pineda v. CFI o f Tayabas, 52 Phi. 803, 807). Estoppel cannot give validity to an act that is prohibited by law or is against public policy. (Benguet

183

THE NATIONALITY THEORY

Consolidated v. Pineda, 52 O.G. No. 4, p. 1961; Eugenio v. Perdido, L-7083, May 18, 1955).

HOW IN GENERAL CITIZENSHIP MAY BE LOST (a)

By Substitution of a New Nationality Comment: 1)

One example is by becoming a naturalized citizen of a foreign state. (Com. Act No. 63, as amended by Rep. Act No. 106).

2)

Another example is in the case of a Filipino woman who marries a foreigner. If she acquires her husband’s nationality, she loses Philippine citizen­ ship. (Sec. 1, Com. Act No. 63, as amended by Republic Act No. 106). NOTE: If a Filipino woman married a stateless citizen she retains Philippine citizenship for the simple reason that she has not acquired any new nationality. (Commonwealth v. Baldello, 37 O.G. 2080).

(b)

By renunciation of citizenship Comment: 1)

This is also known as EXPATRIATION. In Roa v. Collector o f Customs, 23 Phil. 321, the Supreme Court defined expatriation as the voluntary renunciation or abandonment of nationality and allegiance. The right has been said to be a natural and inherent right of individuals. (U.S. v. Karuth, 19 F. Supp. 581).

2)

The renunciation may be (Secs. 2 and 3, Com. Act Republic Act No. 106). renunciation exists in the

EXPRESS or IMPLIED No. 63, as amended by A form of IMPLIED following provisions:

“By subscribing to an oath of allegiance to support the constitution or laws or a foreign country upon attaining 21 years of age or more.” (Sec. 3, Com. Act No. 63, as amended by Rep. Act No. 106).

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PHILIPPINE CONFLICT OF LAWS

3)

(c)

Renunciation, whether express or implied, cannot be lawfully done while the Philippine Republic is at war with any country. (Sec. 3, Com. Act No. 63, as amended by Rep. Act No. 106). (See also People v. Manayao, 44 O.G. 4867), where the defendant in a case of treason against our government unsuccessfully pleaded that inasmuch as he had renounced Philippine citizenship during the war, he cannot be held guilty of treason.

By deprivation Comment: 1)

Deprivation exists when a person is deprived of his citizenship as a sort of punishment.

2)

Deprivation may take any of the following forms: a)

cancellation of the certificate of naturalization. (Sec. 4, Com. Act No. 63, as amended by Rep. Act No. 106).

b)

cancellation of citizenship for having been declared by competent authority a deserted of the Philippine Armed Forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted. (Sec. 1, No. 6, Com. Act No. 63, as amended by Rep. Act No. 106). In case of pardon or amnesty, citizenship may be reacquired by repatriation. (Sec. 2, No. 2, Com. Act No. 63, as amended by Rep. Act No. 106).

c)

forfeiture of citizenship by rendering service to, or accepting a commission in the armed forces of a foreign country. NOTE: The law on this point, however, provides that the rendering of a service, to, or the acceptance of a commission in, the armed forces of a foreign country, and taking of the oath of allegiance incident thereto, with the consent of the Republic of the Philippines, shall NOT divest a Filipino of his Philippine citizenship if either of the following circum­ stances is present:

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185

1)

The Republic of the Philippines has a defensive and/ or offensive pact of alliance with the said foreign country; or

2)

The said foreign country maintains armed forces on Philippine territory with the consent of the Republic of the Philippines;

PROVIDED, that the Filipino citizen concerned, at the time of rendering said service, or acceptance of said commission, and taking the oath of allegiance incident thereto states that he does so ONLY in connection with his service to said foreign country; and PROVIDED FINALLY, with reference to (1) and (2) the citizen concerned shall NOT be permitted to participate or vote in any election of the Republic of the Philippines during the period of his service to, or commission in, the armed forces of said foreign country. Upon his discharge from the service of the said foreign country he shall be automatically entitled to the full employment of his civil and political rights as a Filipino citizen. (Sec. 1, No. 4, Com. Act No. 63, as amended by Rep. Act No. 106). (d)

By release Comment: As distinguished from deprivation, release is VOLUNTARY in the sense that a person asks the permission of his country to be freed from citizenship therein. This is NOT expressly provided for by our law so no prior permission is essential. All the citizen is required to do is to renounce. (See Sec. 1, No. 1, Com. Act No. 63, as amended by Rep. Act No. 106).

(e)

By Expiration Comment: 1)

Here citizenship is lost in view of a long stay abroad. The principle is ordinarily NOT applicable to Filipinos.

2)

However, if a naturalized citizen, within five years from the time he is issued the naturalization certificate, permanently resides in a different country, his naturalization certificate may be cancelled on this ground. This is our equivalent of

PHILIPPINE CONFLICT OF LAWS

186

EXPIRATION. (See Sec. 18, etter (a), Com. Act No. 473, as amended by Com. Act No. 535).

HOW PHILIPPINE CITIZENSHIP MAY BE LOST Under Commonwealth Act No. 63, as amended by R.A. No. 106, a Filipino citizen may lose his citizenship in any of the following ways: (1)

By naturalization in foreign countries;

A2)

By express renunciation of citizenship;

(3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty one years of age or more: Provided, however, That a Filipino may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any country; (4) By rendering service to, or accepting commission in, the armed forces of a foreign country: Provided, That the rendering of service to, or the acceptance of such commission, in the armed forces of a foreign country, and the taking of an oath of allegiance incident thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his citizenship if either of the following circumstances is present: (a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with the said foreign country; or (b) The said foreign country maintains armed forces on Philippine territory with the consent of the Republic of the Philippines: Provided, That the Filipino citizen concerned, at the time of rendering said service, or acceptance of said commission, and taking the oath of allegiance incident thereto, states that he does so only in connection with his service to said foreign country: And provided finally, That any Filipino citizen who is rendering service to, or is commissioned in, the armed forces of a foreign country under any of the circumstances mentioned in paragraph (a) or (b), shall not be permitted to participate nor vote in any election of the Republic of the Philippines during the period of his service to, or commission, in the armed forces of said foreign country. Upon his discharge from the service of said foreign

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country, he shall be automatically entitled to the full enjoyment of his civil and political rights as a Filipino citizen; (5)

By cancellation of the certificate of naturalization;

[N.B. This cancellation is not barred by estoppel nor by res judicata for the judgment directing issuance of the certificate of naturalization is a mere grant of a political privilege. (Yao Mun Tek v. Rep., 37 SCAD 55; Tan Teng Hen v. Rep., 58 SCAD 500). (6) By having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted; and (7) In the case of a woman, upon her marriage to a foreigner, if by virtue of the laws in force in her husband’s country, she acquires his nationality. N.B. — Under the 1987 Constitution said female RETAINS her Philippine citizenship unless by her act or omission she is deemed under the law, to have renounced her citizenship. (Art. IV, Sec. 4). The provisions of this section notwithstanding, the acquisition of citizenship by a natural born Filipino citizen from one of the Iberian and any friendly democratic IberoAmerican countries or from the United Kingdom shall not produce loss or forfeiture of his Philippine citizenship if the law of that country grants the same privilege to its citizens and such had been agreed upon by treaty between the Philippines and the foreign country from which citizenship is acquired. (As amended by Rep. Act No. 2639 and by Rep. Act No. 3834, approved June 22, 1963). Willie Yu v. Miriam Defensor Santiago G.R. No. 83882, Jan. 24, 1989 By declaring him self as a Portuguese citizen in commercial documents, in addition to securing a Portuguese passport, petitioner has clearly renounced his Philippine citizenship. While normally the question of whether or not a person has renounced his Philippine citizenship shoud be heard before a trial court of law in adversary proceedings, this has become

PHILIPPINE CONFLICT OF LAWS

188

unnecessary as this Court, no less, upon insistence of petitioner, had to look into the fact and satisfy itself on whether or not petitioner’s claim to continued Philippine citizenship is meritorious. Frivaldo v. Comelec 174 SCRA 245 Claiming his naturalization as an American citizen as involuntary (stating that it was the ony way he coud stay in the U.S. and thereby protect himself from Marcos), he avers that the filing of his certificate of candidacy in the Philippine elections is an act of renouncing his U.S. citizenship and concomitantly his reacquiring of Philippine citizenship. His claim that he is a Filipino is absurd. Similarly situated Filipinos stayed on the U.S. but never found it necessary to abandon Philippine citizenship nor pledged allegiance to the U.S.. His participation in the Philippine elections would have rendered him Stateless, at best. If he really wanted to require Philippine citizenship, he could have easily done so via the process of repatriation. But the truth is, he never did. Jose B. Aznar v. Comelec and Emilio Mario Renner Osmena G.R. No. 83820, May 25, 1990 J. Edgardo L. Paras: In the case of Osmena, the Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed there is NO express renunciation here of Philippine citizenship, truth to tell, there is even NO implied renunciation of said citizenship. When we consider that the renunciation needed to lose Philippine citizenship must be “express,” it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either “express” or “implied.”

DENATURALIZATION PROCEEDINGS Denaturalization proceedings (to cancel one’s naturalization certificate for instance) must be commenced upon motion by the

THE NATIONALITY THEORY

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Solicitor-General or by his representative or by the Provincial Fiscal (now called Prosecutor). The Judge cannot therefore motu proprio declare null and void the grant of citizenship by a competent court. (See Sec. 18, C.A. No. 473; see also Gueto v. Catolico, L-25204 and L-25219, Jan. 23, 1970). A requirement not existing at the time naturalization was applied for and granted is not a proper ground for denaturalization. (Chan Teck Lao v. Rep., 55 SCRA 1).

HOW PHILIPPINE CITIZENSHIP MAY BE REACQUIRED Under C.A. No. 63 as amended by R.A. No. 106, Philippine citizenship may be reacquired as follows: “Sec. 2.How citizenship may be reacquired — Citizenship may be reacquired: “(1) By naturalisation: Provided, That the applicant possesses none of the disqualifications prescribed in Section two of Act Numbered Twenty-nine hundred and twenty-seven; “(2) By repatriation of deserters of the Army, Navy or Air Corps: Provided, That a woman who lost her citizenship by reason of her marriage to an alien may be repatriated in accordance with the provisions of this Act after the termination of the marital status; and “(3) By direct act of the National Assembly (now Congress). “Sec. 3. Procedure incident to reacquisition for Philippine citizenship — The procedure prescribed for naturalization under Act Numbered Twenty-nine hundred and twenty-seven, as amended, shall apply to the reacquisition of Philippine citizenship by naturalization provided for in the next preceding section: Provided, That the qualifications and special qualifications prescribed in Sections three and four of said Act shall not be required; and provided further, “(1) That the applicant be at least twenty-one years of age and shall have resided in the Philippines at least six months before he applies for naturalization; 09 “(2) That he shall have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines, in his relations with the constituted government as well as with the community in which he is living; and

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PHILIPPINE CONFLICT OF LAWS

“(3) That he subscribes to an oath declaring his intention to renounce absolutely and perpetually all faith and allegiance to the foreign authority, state or sovereignty of which he was a citizen or subject. “Sec. 4. Repatriation shall be effected by merely taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry.”

U.S. NATURALIZATION LAW VIS-A-VIS^FILIPINO VETERANS The U.S. Immigration and Nationality Act of 1990 provides the naturalization of Filipino war veterans who served in an active duty status under the command of the United States Armed Forces in the Far East (USAFFE), or within the Army, the Philippine Scouts, or recognized guerilla units. Under Section 113 of the United States Naturalization Law, veterans need not go to the United States after their US naturalization in Manila in order to petition members of their families. Petitions for spouse and minor children may be filed with the embassy and processed in four to six months from the time of filing, if there are no problems with their petitions and applications for visa. Adult sons and daughters must wait at least 10 to 20 years before depending on the rate of movement of the immigration visa priority dates. Even illegitimate children who are unmarried and below 21 years old may be petitioned by veterans as long as they can substantiate their relationship with their fathers. “Unmarried” includes single, divorced or widowed. In the case of naturalized veterans who may wish to go the U.S., their relatives may apply for a tourist visa in order to accompany them in their travel provided they can convince the consular officer that they have strong family ties and financial reasons to compel them to return to the Philippines. Benefits provided to veterans by the different States are independent of federal benefits and differ from State to State. Most of the time, eligibility is dependent on the State being the place of residency or home of record at the time of enlistment or induction.

Chapter IX THE DOMICILIARY THEORY

THE DOMICILIARY THEORY RESTATED The domiciliary theory in conflict of laws is the theory that in general the status, condition, rights, obligations, and capacity of a person should be governed by the law of his domicile.

DEFECTS OF THE DOMICILIARY THEORY Firstly, various countries have varying concepts as to the real meaning of domicile: hence, the characterization itself of domicile may present quite a big problem. Secondly, domicile is comparatively easier to change than nationality; thus an individual dissatisfied with the law of his particular domicile may simply effectuate a change of domicile so as to have a different "personal law.” Thirdly, for ulteriour motives, persons may pretend to be domiciliaries of one state when in truth their domicile may be elsewhere.

DOMICILE DISTINGUISHED FROM CITIZENSHIP OR NATIONALITY Domicile speaks of one’s permanent place of abode, in general; upon the other hand, citizenship and nationality indicate ties of allegiance and loyalty. A person may be a citizen or national of one state^ without being a domiciliary thereof; conversely, one may possess his domicile in one state without necessarily being a citizen or national thereof.

191

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PHILIPPINE CONFLICT OF LAWS

IMPORTANCE OF KNOWING DOMICILE Although the Philippines generally adheres to the nationality theory it is also worthwhile to know something about the domiciliary theory because: (a)

Firstly, our own law makes in some cases the law of the domicile as the controlling factor in the solution of conflicts problems rather than the national law of the person involved. This is particularly true in the revocation o,£ wills. Thus, Art. 829 of the Civil Code says: “A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code.”

(b)

Secondly, in some codal provisions, both the domiciliary and the nationality theories are used. For instance, Art. 816 of the Civil Code provides that: “The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes.”

(c)

Thirdly, as already intimated in previous chapters, the domiciliary theory often runs to the rescue of the nationality theoryin solving conflicts problems posed by stateless individuals, and by those possessed of a dual or multiple citizenship.

(d)

Fourthly, during the years when we were under the control and jurisdiction of the United States, many domiciliary rules prevalent then were engrafted into our jurisprudence.

(e)

Some very important nations of the world have adopted almost invariably the domiciliary theory: a comparative study of the approaches of both theories is, therefore, imperative.

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193

DEFINITION OF DOMICILE Domicile is that place where a person has certain settled, fixed, legal relations because: (a)

it is assigned to him also by the law AT THE MOMENT OR BIRTH (domicile o f origin)', or

(b)

it is assigned to him also by the law AFTER BIRTH on account of a legal disability caused for instance by minority, insanity, or marriage in the case of a woman (constructive domicile or domicile by operation o f law)', or

(c)

because he has his home there — that to which, whenever he is absent, he intends to return (domicile o f choice), (See American Restatement, Sec. 9; Story, Conflict o f Laws, Sec. 41).

THE THREE KINDS OF DOMICILE As indicated in the definition, there are usually three types or kinds of domicile classified according to the manner it has come about: the domicile o f origin, the constructive domicile (or the domicile by operation of law), and the domicile o f choice. (a)

The domicile of origin is acquired at birth', constructive domicile is given after birth.

(b)

Domicile of origin applies only to infants', constructive domicile refers to all those who lack capacity to choose their own domicile', infants, married women, idiots, and the insane. Legal disabilities prevent their making a choice.

(c)

Domicile of origin never changes; for a person is born only once; constructive domicile may change from time to time, depending upon circuinstances which will be subsequently discussed.

(d)

While both the domicile of origin and the constructive domicile are fixed by LAW, domicile of choice is a result of the VOLUNTARY WILL AND ACTION of the PERSON CONCERNED.

RULES FOR THE DOMICILE OR ORIGIN (DOMICILIUM ORIGINS) The domicile of origin of:

PHILIPPINE CONFLICT OF LAWS

194

(a)

a legitimate child — is the domicile of choice of his father at the moment of the birth of the child. Example: If a Filipino child is bom in France at the time that his father is domiciled in Japan, the domicile of origin of the child is in Japan. However, if the child is posthumous (one born after the death of the father) its domicile of origin is the domicile of choice of the mother.

(b)

an illegitimate child — is the domicile of choice of the .mother at the time of the birth of the child.

(c)

a legitimated child (an illegitimate child who subsequently is granted the status of a legitimate child by the process called legitimation) — is the domicile of the father at the time of the birth (not the legitimation) of the child. This is so because “the effects of legitimation shall retroact to the time of the child’s birth.” (Art. 180, Family Code).

(d)

an adopted child — is not the domicile of the adopter (for generally adoption takes place sometime after the birth of the child) but the domicile of the real parent or the parent by consanguinity.

(e)

a foundling (an abandoned infant whose parents are unknown) is the country where it was found. Query: Suppose the parents become known, what will be the domicile of origin of the foundling? Answer: It is NOT a foundling, and therefore cannot have a domicile of origin as a foundling. If legitimate, we follow the rules hereinabove given; if illegitimate, follow the indicated rules. v# '

RULES FOR THE CONSTRUCTIVE DOMICILE (DOMICILIUM NECESARIUM) (a)

Rules for Infants: 1)

If legitimate — the domicile of choice of either the father or the mother. Example : If at the time the child is say six years old, the domicile of choice of either the father or the mother is in the United States (California)

THE DOMICILIARY THEORY

195

then California will be the constructive domicile of the child at that age. If by the time the child say becomes eleven years old, the father or mother is already domiciled in China, China will be the constructive domicile of said child at the age of eleven. (NOTE: In case of death of either parent, the parent present shall continue exercising parental authority over the child. (Art. 212, Family Code)) hence, this time the constructive domicile is the domicile of choice of the surviving parent. The following articles of the Family Code are in point: “Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the .father’s decision shall prevail, unless there is a judicial order to the contrary.” “Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.” It would seem, therefore, that in our country the legitimate child follows the domicile of both the father and the mother who jointly exercise parental authority over him.) [NOTE: If both parents of the legitimate child are dead, the constructive domicile of the child will be that of the parent who died later. (See Goodrich, Conflict of Laws, p. 90p3).] 2)

If illegitimate — the domicile of choice of the mother (after all she is supposed to take care of the child). (See Minor, Conflict o f laws, pp. 92-93). Under Art. 176 of the Family Code, “illegitimate children shall be under the parental authority of their mother.”

3)

If adopted — the domicile of choice of the adopter (Restatement, Sec. 35).

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PHILIPPINE CONFLICT OF LAWS

4)

(b)

If a ward — the domicile of choice of the guardian (over the person of the ward). (See Beale, Vol. I, Confict of Laws, p. 220).

Rules for Married Women: 1)

*

2)

If the marriage is VALID — the constructive domicile of a wife is the domicile of choice of both husband or the wife. Art. 69 of the Family Code states that “the husband and wife shall fix the family domicile. In case of disagreement the court shall decide.” In certain instances, however, the wife is allowed to have a separate domicile; in this case, her domicile will not be a constructive one any more; it will be her domicile of choice. In the following instances, among others, the wife may be allowed to have a separate domicile: a)

If the husband lives abroad, or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (Art. 69, id.).

b)

If they are legally separated. (Art. 63, par. 1, Family Code).

c)

If the husband forcibly ejects the wife from the conjugal home so that he may have illicit relations with another. (De la Vina v. Villarea, 41 Phi. 13).

d)

If there is a separation de facto of the spouses. (See De la Vina v. Villareal, supra). However, it must be noted that under Art. 221 (Par. 1) of th&4 Civil Code, “any contract for personal separation between husband and wife shall be void and of no effect.”

If the marriage is VOIDABLE, the marriage is regarded as valid until annulled; therefore, prior to annulment the constructive domicile of the wife is the domicile of choice of both the wife and the husband, unless she is permitted under the circumstances to select her own domicile of choice. After the marriage is annulled, the woman ceases to be a wife; hence, being no longer under any legal

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197

disability, she no longer has any constructive domicile. If she decides to remain in the domicile of her former husband, this would be her own freely selected domicile o f choice, not her constructive domicile. (See Minor, Conflict of Laws, pp. 97-105). 3)

(c)

If the marriage is VOID, it is as if there was no marriage, and the “wife” is not really one. Hence, she is not laboring under any legal disability; consequently, she had no constructive domicile. Should she continue being domiciled in the same place as where her “husband” is a domiciliary, such place would not be her constructive domicile, it would be her domicile of choice. (See Goodrich, Conflict of Laws, p. 77). If a marriage is null and void its existence is generally not recognized at all by the law, therefore, there is no necessity of declaring such a marriage nidi and void. (People v. Mendoza, L-5877, Sept. 28, 1954; People v. Aragon, L-10016, Feb. 28, 1957). However, in case damages are sought, it is obvious that the void marriage must be declared as such by the courts.

Rules for Idiots, Lunatics, and the Insane: Idiots, lunatics, and the insane are generally devoid of any intelligence that may enable them to freely select their own domicile of choice; hence the law assigns to them their domicile: 1)

If they are below the age of majority — they are still considered infants under the law; thus, the rules for infants are applicable to them.

2)

If they are above the age of majority a distinction must be made: if they have guardians over their persons, they have to follow the domicile of choice of their guardians; if they have no guardians over their persons, their constructive domicile is in the place where they had their domicile of choice shortly before they became insane.

It should be remembered, however, that a voluntary domicile of choice may be acquired by insane individuals if at the time of the choice they were in their lucid intervals. Furthermore, the choice of a voluntary domicile

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PHILIPPINE CONFLICT OF LAWS

does not require as much intelligence as would normally be essential for binding oneself in a CONTRACT; to enter into an agreement respecting a contract one must possess capacity to assume a burden; upon the other hand, the choice of a domicile does not necessarily carry with it the assumption of obligations. As Goodrich so aptly puts it: “In changing domicile, the actor merely subjects himself to the operation of the legal system of the new jurisdiction — a system that must be presumed to guard rights and privileges and to operate equally upon all. So that the t£st is said to be whether the party had sufficient reason and understanding to choose his place of residence.” (Goodrich, Conflict of Laws, p. 94). Query. If the husband is insane or otherwise incapacitated^ what is the constructive domicile of his wife? Answer: Prof. Minor believes that in a case like this the wife is free from all legal disability insofar as domicile is concerned; therefore, she is free to select her own domicile of choice. (Minor, Conflict of Laws, p. 100).

RULES FOR DOMICILE OF CHOICE Domicile of choice is that which is voluntarily chosen by a sui juris — as his more or less permanent home that to which, whenever he is absent, he intends to return. (See Story, Conflict o f Laws, Sec. 14). (See also Utengsu v. Rep., 50 O.G. 4781, October, 1954). In the Civil Code, Art. 50 refers to what we call the “domicile of choice.” Said Article reads: “For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence.” In the case of Corre v. Tan Corre, L10128, Nov. 13, 1956, the tJourt had occasion to define domicile of choice as “the permanent home, the place to which whenever absent for business or pleasure, one intends to return, and depends on facts and circumstances, in the sense that they disclose intent.” These are certain fundamental principles governing domicile of choice: (a)

No natural person must ever be without a domicile.

(b)

No person can have two or more domiciles at the same time, except for certain purposes, and from different legal viewpoints.

THE DOMICILIARY THEORY

199

(c)

Every sui juris may change his domicile.

(d)

Once acquired, it remains the domicile unless a new one is obtained: 1)

by a capacitated persons;

2)

with freedom of choice;

3)

with actual physical presence in the place chosen;

4)

and a provable intent that it should be one’s fixed and permanent place of abode — one’s home — that is, there should be “animus manendi” (intent to remain) or “animus nonrevertendi” (intent not to return to the original abode). (See Velilla v. Posadas, 62 Phil. 624; Zuellig v. Rep., 64 O.G. (Supp. No. 11, p. 220); L-1550, May 30, 1949; Quetulio v. Ruiz, C.A. 46 O.G. 155; Gallego v. Vera, 73 Phi. 453).

Comment — Re: Principle (a) ONE domicile Every natural person has a domicile; he cannot be without one. If he never leaves his domicile of origin, the same becomes his domicile of choice after attaining the age of majority or after being otherwise emancipated. (Minor, Conflict of Laws, pp. 67-72). Comment — Re: Principle (b) ONLY ONE domicile Generally, no natural person can have more than one domicile at a time. (Minor, Conflict of Laws, p. 68). While a person may have more than one residence (vacation or summer residence, legal residence) the Civil Code recognizes only one domicile: the place of habitual residence. (Art. 50, Civil Code). Otherwise the law supposed to follow the person in certain cases would be indeterminate. (Beale, Vol. I, Coflict o f Laws, p. 124). However, since domicile serves different purposes, it has been suggested that a man may possibly have one domicile (say, for the purpose of taxation) and another domicile (say, for the purpose of obtaining a legal separation). (Cook, Legal **and Logical Bases o f the Conflict of Laws, pp. 194-210). Moreover, the characterization of domicile presents a big problem; the general rule, however, is for the forum to characterize the domicile of the litigant before it. (See In Re Dorrance’s Estate, 309 Pa. 151; 115 N.J. Eq. 268).

PHILIPPINE CONFLICT OF LAWS

200

Illustrative Cases: (a)

From Pennsylvania In Re Dorrance’s Estate 309 Pa. 151 FACTS:

r*

HELD:

(b)

Mr. Dorrante, a resident of New Jersey, bought a large estate in Pennsylvania, where he began to live with his wife and children, and where eventually a daughter of his was married. HOWEVER, at the time, he maintained his house in New Jersey, going there once in a while; and in his will be stated that he was a resident of New Jersey (to avoid paying certain taxes in Pennsylvania). The issue was whether or not he was domiciled in Pennyslvania for the tax appraisement of his estate. The Pennsylvania court held that he was domiciled in Pennsylvania as shown by his CONDUCT, notwithstanding his expressed desire to still have New Jersey as his domicile for purposes of taxation. His declaration as to New Jersey is utterly self-serving, and contrary to his actual conduct of living in Pennsylvania.

From New Jersey (the same case) In Re Dorrance’s Estate 115 N.J. Eq. 268 FACTS:

Same as in the Pennsylvania case. The issue was v|Jiether or not the Pennsylvania decision was binding on the courts of New Jersey.

HELD:

The domicile of the deceased was in New Jersey as evidenced by his INTENTION to return there, notwithstanding actual residence in Pennsylvania. In view of the animus manendi, he never lost his New Jersey domicile. A man may choose his own domicile; the motive that may prompt him is immaterial. As between two residence, a man may select which one is his true domicile. Hence, the Pennsylvania decision does not bind New Jersey courts.

THE DOMICILIARY THEORY

201

Comment — Re: Principles (c) and (d) — CHANGE and RETENTION of domicile (a)

For a change of domicile intention to reside elsewhere without actual residence in the place chosen will not be sufficient; upon the other hand, actual residence in the new place without the intention to make it the permanent abode will also not be enough. In other words, to effect a change of domicile both the ACTUAL STAY and the INTENT must concur.

(b)

For a retention of the old domicile — there need NOT be a concurrence of the two: for unless a new domicile is acquired, the old one is retained. Hence, one may retain his old domicile so long as he resides there OR even if not, so long as he intends to return. (See Cheshire, Private International Law, pp. 215-216).

(c)

As Prof. Cheshire puts it: “Intention without residence or residence without intention will not suffice for the acquisition of a domicile, but will be sufficient for the retention of an existing domicile.” (Cheshire, ibid.). Velilla v. Posadas 62 Phil. 624 FACTS:

Mr. Moody lived and worked in Manila for more than 25 years. However, he wandered around in various countries until he died in Calcutta. Issue: Where was his domicile at the time of death?

HELD:

His domicile at the time of his death was in the Philippines, because he never acquired any new domicile in a foreign country, despite his wandering abroad. To effect the abandonment of one’s domicile, there must be a deliberate and provable choice of a new domicile, coupled with actual residence in the place chosen, with a declared or provable intent that it should be one’s fixed and permanent place of abode, one’s home. This was NOT proved.

202

PHILIPPINE CONFLICT OF LAWS

Gallego v. Vera 73 Phil. 453 Questions: To acquire a new domicile of choice what things must concur? HELD:

There must concur: (1)

residence or bodily presence in the new locality;

(2)

an intention to remain there; and

(3)

an intention to abandon the old domicile.

In other words there must be an animus non revertendi or an animus manendi. The intent to remain in or at the domicile of choice must be for an indefinite period of time. The acts of the person must conform with his purpose. The change of residence must be voluntary, the residence at the place chosen for the domicile must be actual-, and to the fact of residence there must be added the animus manendi. Testate Estate of Bohanan L-2105, January 30, 1960 FACTS:

The testator was born in Nebraska, had properties in California, and had a temporary, although long, residence in the Philippines. In his will executed in Manila, he stated that he had selected as his domicile and permanent residence, the state of Nevada.

HELD:

His permanent domicile in the United States depended upon his personal intent or desire, and as he selected Nevada as his domicile, he was at the time of his death a domiciliary of Nevada. (Incidentally, in the United States, a person is a national or a citizen, not of the state where he was born, but of the state in which he is domiciled). Nobody else but the testator can choose his own domicile or permanent residence for him, because such choice is his exclusive and permanent right.

THE DOMICILIARY THEORY

203

The Cases of Imelda Marcos and Agapito “Butz” Aquino. Two celebrated cases reaching the Supreme Court (SC) hit the headlines recently. These cases have a bearing on future election disputes, vis-a-vis “conflict of laws” issues. These are Imelda Romualdez Marcos v. the Com­ mission on Elections, (COMELEC), G.R. 119976, en banc resolutions of Sept. 12 and Oct. 25, 1995 and Agapito A. Aquino v. Comelec, G.R. 120265, en banc resolutions of Sept. 12 and Oct. 25, 1995. The first made final the proclamation of Imelda Marcos as the duly elected representative of the first congressional district of Leyte over respondent (private) Cirilo Roy Montejo. The case started when Montejo asked Comelec to disqualify Marcos for allegedly lacking the one-year residency requirement mandated under the 1987 Philippine Constitution. Montejo claimed the former First Lady placed her residency in the first district of the province at seven months preceding the balloting (i.e., five months short of the required residency). Marcos argued, however, that she has been a resident of the area since childhood and has not abandoned her residency. After the poll body disqualified her, she took the case to the SC. In an en banc resolution dated Sept. 12, 1995, the SC, voting 8 to 5, granted Marcos’ petition that she be declared qualified to run and be elected to a congressional seat. Chief Justice Narvasa and Justice Mendoza voted to grant the petition on the ground that neither the Comelec nor the SC has competence over the issue of disqualifications of candidates for representatives, exclusive jurisdiction over such an issue being vested in the House of Representatives Electoral Tribunal (HRET), in accordance with Section 17, Article VI of the 1987 Philippine Constitution. Justices Romero, Bellosillo, Melo, Puno, Kapunan, and Francisco voted to grant the petition on the basic

204

PHILIPPINE CONFLICT OF LAWS

theory that the petitioner was qualified to run and be voted for as representative. Justices Padilla, Regalado, Davide, and Hermosisima, Jr. voted to dismiss the petition on the ground that the petitioner was not qualified to run and be voted for. Justice Vitug voted to dismiss the petition on the ground that there was no grave abuse of discretion on the part of Comelec in disqualifying the petitioner. The SC resolved that the conclusions herein reached did not preclude the issue of the petitioner’s qualification in an appropriate proceeding before the HRET. Acting on the Motion for Reconsideration filed by private respondent Montejo on Sept. 27, 1995, the Court resolved, by a vote of 9 to 6, to deny the motion with finality, for lack of merit last Oct. 25, 1995. Two of the nine justices who voted to deny the motion maintained their view that the challenged resolutions of the Comelec are null and void for lack of jurisdiction. In the second case, Supreme Court (SC), in its Sept. 12, 1995 resolution, has barred petitioner Agapito A. Aquino from assuming the post of representative for the second district of Makati. This is the case of Aquino vs. Commission on Elections (Comelec) GR 120265, en banc resolution of Sept. 12, 1995 and Oct. 25, 1995. In an eight to five vote, the congressional aspirant was disqualified ^ the ground that he is ineligible for the post. Justices Padilla, Regalado, Melo, Puno, Kapunan, Francisco, and Hermosisima voted to dismiss Aquino’s petition, while Justice Vitug said the Comelec committed no grave abuse of discretion when the body disqualified him. The five justices who voted in Aquino’s favor were: Chief Justice Narvasa and Justice Davide, Romero, Bellosillo, and Mendoza. Narvasa and Mendoza pointed out that the House of Representatives Electoral Tribunal

THE DOMICILIARY THEORY

205

has exclusive jurisdiction to hear cases questioning the eligibility of candidates for the lower chamber. The disqualification case against the former senator stemmed from a complaint filed by the “Move Makati” group, which alleged that he fell short of the required residency. He elevated the issue before the SC, after the poll body found him ineligible to run in the May polls. He won by a margin of around 2,500 votes against political rival Augusto Syjuco Jr. Acting on the Motion for Partial Reconsideration filed by private respondents Move Makati and Mateo P. Bedon on Oct. 6, 1995, the SC resolved, by a vote of 10 to 4, with one abstention, to deny the motion with finality, for lack of merit, last Oct. 25, 1995. Two of the 10 justices who voted to deny the motion maintained their view that the challenged resolutions of the Comelec were null and void for lack of jurisdiction. The Court further resolved to note the opposition to the Motion for Partial Reconsideration filed by counsel for the petitioner, and the Motion to Compute the Period to Fille Motion for Reconsideration dated Sept. 27, 1995. Be it noted that the SC’s basis in denying with finality Syjuco’s motion to proclaim him a duly elected representative of the second district of Makati (following the disqualification of Aquino for lack of the one-year residency requirement), is merely a reiteration of its earlier doctrine that a candidate who got the secondhighest number of votes cannot be proclaimed winner, since he is not the choice of the electorate. (d)

In view of their legal disability, infants, idiots, lunatics and the insane cannot acquire any domicile of choice. Because of lack of voluntariness, the following cannot also acquire a new domicile of choice:

&

1)

A convict or a prisoner. Here, his domicile of choice is the one previously possessed by him, unless he deliberately makes the new locality his permanent home, after he gets out of prison. (See Minor, Conflict of Laws, pp. 111-112).

206

PHILIPPINE CONFLICT OF LAWS

2)

Involuntary exiles — those compelled by the com­ mand of a superior political power to abandon their country (Here, the domicile of choice is still the previously existing domicile since there was no freedom of choice). NOTE: Voluntary exiles deliberately choose their new domicile, unless of course they intend to eventually return to their native land.

3)^ Soldiers — since they are compelled to follow the dictates of military exigencies. (Their domicile of choice is their domicile at the time of their enlistment in the armed forces.) (See Harris v. Harris, 205 Iowa 108). 4)

Public officials and employees, diplomats, and consular officers since their stay abroad is in an official, not personal capacity. (Their domicile, of choice, is therefore, their previously existing domicile, unless they manifestly desire to take up permanent residence in the place of employment.)

DOMICILE DISTINGUISHED FROM RESIDENCE The principal distinction is this: while residence is more or less temporary, domicile is more or less permanent. Secondly, while a person can have several places of residence, he can have generally only one domicile. As a matter of fact, under the Civil Code, domicile carries a note of habituality. (Art. 50). In Utengsu vs. Republic, 50 O.G. 4781, Oct. 1954, the Supreme Court held: “There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether permanent or temporary; domicile denotes a fixed permanent residence to which when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for one and the same purpose at any time, but he may have numerous places of residence. His place of residence generally is his place of domicile, but is not by any means, necessarily so since no length of residence without intention of remaining will constitute domicile.” 'See also Kennan on Residence and Domicile, pp. 26, 35, 36).

THE DOMICILIARY THEORY

207

NOTE: The distinctions given hereinabove apparently reverse the opinions given by the same Supreme Court in at least two cases. In Larena v. Teves, 61 Phil. 36, the Court said that “the term ‘residence’ is synonymous with home or domicile denoting a permanent dwelling place, to which the party when absent intends to return.” In Nuval v. Guray, 52 Phil. 645, the Court said that “the term residence is synonymous with domicile which imports not only intention to reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such intention.” NOTE : Incidentally it should be pointed out that the place of obtaining a residence certificate and the data contained therein are NOT CONCLUSIVE as to the real residence or domicile of a person owning said certificate. (Zuellig v. Rep., 83 Phil. 768).

CONSTITUTIONAL AND PENAL SAFEGUARDS ON DOMICILE (a)

Constitutional Provisions “The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired.” (Art. Ill, Sec. 1, No. 4, 1935 Constitution). “The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety, or public health.” (Art. Ill, Sec. 6, 1987 Constitution). “The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court.” (Art. Ill, Sec. 6, 1987 Constitution).

«a

NOTE: The right includes freedom to live and work where the individual desires (Meyer v. Nebraska, 262 U.S. 360), subject only to reasonable restraint by general law for the common good. (Blackstone, Constitutional Law, pp. 535-536; Lorenzo v. Dir. of Health, 50 Phil. 55).

(b)

Penal Provisions for the Crime o f EXPULSION Under Art. 127 of the Revised Penal Code if a public officer or employee without legal authority expels a person from the Philippines or compels a person to change his

PHILIPPINE CONFLICT OF LAWS

208

residence, the penalty of prision correccional (six months and one day to six years) shall be imposed upon him. (c)

Under Art. 32 o f the Civil Code “Any public officer or employee, or any private individual (who) directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs the liberty of abode and of changing the same shall be liable for damages . . . Whether or not the defendant’s act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.”

Chapter X THE SITUS OR ECLECTIC THEORY THE SITUS OR ECLECTIC THEORY RESTATED The situs or eclectic theory in general states that the capacity, legal condition, or status of an individual should be governed not necessarily by the law of his nationality nor by the law of his domicile but by the law of the place (situs) where an important element of the problem occurs or is situated. However, the theory distinguishes between two (2) kinds of participation of the individual concerned: (1)

If the participation is active (as when he does the act vol­ untarily) — the governing law is the law of the ACTUAL SITUS (the place of the transaction or event); and

(2)

If the participation is passive (as when the effects of the act are set forth in the law) — the governing law is the law of the LEGAL SITUS (the legal situs of an individual is supposed to be his DOMICILE).

EXAMPLES: (1)

Problem: Two Filipinos, domiciled in Japan, get married in California. What law governs: (a)

the validity of the marriage?

(b)

the marital obligations of husband and wife?

Answer: If we apply the SITUS THEORY, the answers will be as follows: (a) •<»

The act of getting married is a voluntary one; hence the participation of the man and the woman is ACTIVE. Since the marriage took place in California, California is the ACTUAL SITUS, hence California law governs the validity of the marriage. 209

210

PHILIPPINE CONFLICT OF LAWS

(b)

Generally, the marital obligations of husband and wife are not fixed by them; they are regulated or imposed by the law. Hence, their participation in this matter may be said to be merely-PASSIVE. The governing law is, therefore, the law of the LEGAL SITUS, which is the DOMICILE of the parties. Since they are domiciled in Japan, their marital rights and obligations are governed by Japanese law.

s NOTE: The problem given above has been answered in accordance with the SITUS THEORY. However, the theory that we follow in the Philippines on the same matter is DIFFERENT. Applying our conflicts rules on the matter, our answers are:

(2)

(a)

If the marriage is valid in California, the marriage is also valid in the Philippines (SITUS THEORY) except if the marriage be bigamous, polygamous, or incestuous as determined by Philippine law (NATIONALITY THEORY since the parties are both Filipinos).

(b)

Their PERSONAL marital obligations are governed by Philippine law under Art. 15 of the Civil Code (NATIONALITY THEORY). Their property relations are also governed by Philippine law (NATIONALITY THEORY) by virtue of Art. 80 of the Family Code, which can be applied by analogy.

Problem: What law governs the capacity of a German to alienate his lands and cars located in the Philippines? Answer.^Applying the SITUS THEORY to the problem, said capacity is governed by the law of the place where the property is located. Since the properties are in the Philippines, the law of the Philippines shall govern. NOTE: Incidentally, it will be observed that as to this matter, the rule in the Philippines is identical because of Art. 16, par. 1 of the Civil Code, which stresses the principle of “lex situs” or the principle of “lex rei sitae.” From this viewpoint, we apply in this matter also the SITUS THEORY, and not the NATIONALITY THEORY.

Chapter XI THE PROBLEM OF THE RENVOI

INTRODUCTION TO THE RENVOI PROBLEM If all states would adopt uniformly the NATIONALITY THEORY, or if all would agree to apply the DOMICILIARY THEORY, the problem often referred to as the “renvoi” will hardly arise. Yet we must be realistic: various countries have variant theories and concepts; therefore, the problem of the “renvoi” has come, apparently to stay. Renvoi literally means a referring back; the problem arises when there is a doubt as to whether a reference to a foreign law — (a)

is a reference to the INTERNAL law of said foreign law; or

(b)

is a reference to the WHOLE of the foreign law, including its CONFLICTS RULES.

In the latter case, if one state involved follows the NATIONALITY theory, and the other, the DOMICILIARY theory, there is a possibility that the problem may be referred back to the law of the first state. Illustrative Example: An English domiciliary of the Philippines dies in Manila leaving his English child. Under Art. 16, par. 2 of the Civil Code, successional rights to the estate of the deceased Englishman are governed by his national law, that is, English law. If what is meant by English law is the English internal law on succession, it is clear that such law will govern the successional rights of the child. If upon the other hand, what is meant by English law is the whole law of England, including English conflicts rules, then the successional rights of the child shall be governed according 211

212

PHILIPPINE CONFLICT OF LAWS

to English conflicts rules, by the law of the domicile of the deceased, namely, Philippine law, since according to the problem the deceased was domiciled in the Philippines at the moment of death. In short, the issue is: should the successional rights of the child be governed by English internal law on succession, or by the Philippine internal law on succession?

PROPOSED SOLUTIONS Various solutions have been proposed for the problem: (1)

we may reject the renvci [This means that we do not want the problem to be sent back to us; that we do not want the matter to be referred back to us. In other words, v/e consider the reference in Art. 16, par. 2 of the Civil Code to be a mental reference to the INTERNAL law of England on succession. Conclusion: we apply the ENGLISH internal law on successional rights of the child. (See Goodrich, Conflict o f Laws, pp. 18-20). j

(2)

we may acccept the renvoi [Here, the reference is to the WHOLE of English law, including its conflicts rules. Inasmuch as English conflicts rules refer the matter back to the law of the domicile, namely, the Philippines, the successional rights of the child shall be determined by our internal law on succession. This clearly illustrates the "single renvoi” or the “single remission”: we mentally referred the matter to England because of Art. 16, par. 2 of the Civil Code; English conflicts rules in turn referred back the matter to us. Conclusion: The Philippine internal law on succession will apply. (See Beale, Conflict of Laws, Vol. Ill, pp. 1930-1939).]

(3)

we may follow the theory of desistment (also referred to as the mutual-disclaimer o f jurisdiction theory) [Under this theory, we desist or refrain from applying the English law because we tell ourselves: under Art. 16, par. 2 of the Civil Code, we are asked to apply the English or national law, but how can we apply English law when said law is based, NOT ON NATIONALITY but on the domicile? Since, therefore, we ought not to

THE PROBLEM OF THE RENVOI

213

apply English law, we have no alternative except to apply Philippine law. Conclusion: the successional rights o f the English child shall be governed by the Philippine internal law on succession. It will be observed that under both theories of “accepting the renvoi” and “desistm ent,” Philippine internal law on succession applies. T h e conclusion is the same but the process is different. In accepting the renvoi, we referred the matter (mentally) to English law, and England referred it back to us; in desisting, we found English law inadequate because it is founded on a different basis, and so we desisted from applying it, hence, we had to apply Philippine interned law.J (4)

we may make use of the “foreign court theory” [This simply means that our Philippine court, in deciding the case, will put itself in the position of the English (or foreign court); and whatever the English court will do respecting the case the Philippine court will likewise do. Kence, if the English judge in England, when confronted with the same problem, would apply English internal law, the Philippine judge in the Philippines would also use English internal law. If the English judge decides the case in accordance with the Philippine internal law on succession, the Filipino judge will also follow suit by making use of Philippine internal law on succession. It is a sort of “follow the leader.” There in one clear advantage in this system; regardless of Forum, the applicable law will be the same. However, there appears to be one drawback, namely, if we follow the “foreign court theory’ and England follows also the same theory, the result would be — we would do what England would do but England would do what we do but we would do what England would do, etc. This phenomenon has been referred to as “international pingpong,” “international football,” “revolving doors,” and “inextricable circle,” etc. (Griswold, 51 Harvard Law Review 1183; see aso Testate Estate of Edward Christensen, L-16759, Jan. 31, 1963).] NOTE: If we adopt the “foreign court theory” we may discover that the foreign court may: (a)

reject the renvoi;

C&)

accept the renvoi;

2l4

PHILIPPINE CONFLICT OF LAWS

(c)

follow the desistment theory; or

(d)

follow the “foreign court theory” itself.

HENCE: (a)

If the foreign court “rejects the renvoi,” the ultimate result is that we will apply OUR internal law on succession.

(b) **■

If the foreign court “accepts the renvoi,” the ultimate end is or us to apply ENGLISH internal law on succession. This results in what is generally referred to as the DOUBLE RENVOI. Definition o f “double renvoi”: It is that which occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi. Example: In the original example we gave in the problem of renvoi, the double renvoi works out in the following manner: The Philippine court adopts the foreign court theory and, thefore, will do what the English court would do. But the English court, let us say, accepts the renvoi — that is, it refers the matter to the Philippines (domicile) which in turn refers the matter to England (nationality). Since England in the problem accepts the referring back to England (acceptance of the renvoi), it will in deciding the matter apply the English internal law on succession. Since under the premises, we have adopted t^ie foreign court theory, the Philippine court, in deciding the case will do what the English judge has done, namely, apply also the English internal law on succession. [See in Re Annesley (1926) Ch. 692.]

(c)

If the foreign court follows the “desistment theory,” the inevitable conclusion is that we will apply the English internaliaw on succession.

(d)

If the foreign court also follows the “foreign court theory” the result will be the vicious circle already adverted to as “international pingpong.”

Th e p r o b l e m o f t h e r e n v o i

215

TRANSMISSION Transmission is the process of applying the law of a foreign state thru the law of a second foreign state. Example-. An Italian domiciled in the Philippines dies in England. If the case is tried in England, the English court (following the DOMICILIARY THEORY) refers to the law of the Philippines, but discovers that the Philippines, in turn; refers the matters to Italy (following our NATIONALITY THEORY). Hence, England, thru Philippine law, ultimately applies Italian law. If this is done, what has occurred is a TRANSMISSION; Trouble will begin, however, if Italy (for example) will provide in its conflicts rules that the successional rights to the estate of an Italian shall be governed by the law of the state where he actually was at the time of death, namely, England. England will be faced with the problem of what it should do regarding the transmission of the matter back to it.

DOUBLE RENVOI DISTINGUISHED FROM TRANSMISSION (1)

Double renvoi deals with TWO countries; transmission, with THREE or MORE countries.

(2)

Double renvoi deals with a “referring back”; transmission, with a “transmitting.”

IMPLICATIONS OF RENVOI AND TRANSMISSION (1)

Both renvoi and transmission may apply not only to successional rights; they may refer also to marriage, to other contracts and agreements, in fact, to almost anything covered by Conflict of Laws.

(2)

Both problems may occur even if (in RENVOI) the two countries BOTH adhere, say, to the NATIONALITY THEORY or BOTH to the DOMICILIARY THEORY. Examples: (a)

Two citizens of State X (which follows the Nationality Theory) get married in State Y (which also adheres to the Nationality Theory.) In State X the conflicts rule is: “If our citizens marry in a foreign country, and the marriage is valid there, it will also be valid in our country.” Note that there is

PHILIPPINE CONFLICT OF LAWS

216

a reference here to a foreign law — the law of State Y. Upon the other hand, the conflicts rule in State Y is: “If foreigners get married here their marriage will be considered as valid here provided that it will also be considered as valid in the country of which they are citizens, if the marriage had been celebrated in their country.” Observed that here there is a reference to a foreign law — the law of State X. Thus, the courts in State X will be confronted by the problem of renvoi', is the reference in their conflicts rule to the foreign law a reference to the foreign INTERNAL law on marriage, or a reference to the whole of the foreign law, including the foreign conflicts rules? (b)

Transmission in marriage problems may be illustrated thus: Two Filipinos domiciled in China get married in England. Under our law, if the marriage is valid where celebrated, it will generally be* valid also here in the Philippines. However, let us grant that in England the law is: “Marriages here in England between foreigners shall be considered as valid here only if they are recognized as valid in the law of their DOMICILE.” Now, then, our Philippine courts may eventually have to apply Chinese law, thru the law of another state, England. This would be a clear case of TRANSMISSION.

ARGUMENT IN FAVOR OF EACH OF THE PROPOSED SOLUTIONS FOR RENVOI (1) Rejection o f the Renvoi Unless we reject the renvoi, we shall in a sense be surrendering our legislative sovereignty, or we shall be applying not our own conflicts rules but the conflicts rules of foreign states. (See Cheshire, Private International Law, p. 93). CONTRA: Our conflicts rules say merely that a certain foreign law will be applied: it does not distinguish whether said foreign law is an internal rule or conflicts rule. Hence, the argument given BEGS THE QUESTION. (Griswold, Conflict o f Laws, pp. 1176-1177).

THE PROBLEM OF THE RENVOI

217

(2) A cceptance o f the Renvoi We should accept the renvoi because this would result in a harmony of decisions, irrespective of forum. (See Rabel, Conflict of Laws, Vo. I, p. 81). CONTRA: If all countries accept the renvoi, the result will not be harmony, but discord — for ultimately, each country will apply its own internal law. (See Cheshire, Private International aw., p. 91). Indeed, harmony would result only if one state accepts the renvoi, and the other rejects it. (Ibid.) (3)

The D esistm ent Theory This has exactly the same advantages and the same disadvantages as the acceptance of the renvoi.

(4)

The Foreign Court Theory As already intimated, this generally produces a harmony of decisions; as a matter of fact, it was specifically designed to combat the defects of the single renvoi (acceptance of the renvoi). CONTRA: As also already explained, the theory if adopted by both the forum and the foreign court will cause what we have already referred to as “international ping-pong.”

SUGGESTED CONCLUSION In the absence of more definitive rules on the matter it is suggested that the theory be adopted which, considering the circumstances of a given situation, will best result in fairness, equity, and justice. For instance, in the case o f long time domiciliaries of the Philippines, it may seem desirable to presume that they intended to die with Philippine internal law taking care of the distribution of their estate in the Philippines; hence, it would be better to accept the renvoi (single renvoi or single remission). In all other instances, to reject the renvoi would seem to be the more desirable solution.

PHILIPPINE LAW ON THE MATTER Perhaps the very first case where our Supreme Court has been able to expound at length on what we ought to do when confronted by the renvoi problem is the case entitled “In the Matter

218

PHILIPPINE CONFLICT OF LAWS

o f Testate Estate of the Deceased Edward E. Christensen, Deceased; Adolfo C. Aznar and Lucy Christensen v. Helen Christensen Garcia,” penned by Justice Alejo Labrador, the decision, which was promulgated on January 31, 1963 as G.R. No. L-16759, in effect held that if a California citizen dies domiciled in the Philippines, our courts are under Art. 16, par. 2 of the Civil Code compelled to apply the National law of the deceased (California law); but since said California law itself refers back the matter to the Philippines (the place of domicile), we have no alternative except to accept the referring back to us (substantiality, this is the theory of the single renvoi or the theory of acceptance of the renvoi). To do otherwise (i.e., to refer back again the matter to the foreign country, with the possibility that once again the problem will be rumed to us) would in the Court’s opinion to give rise to “international football.” The salient acts of the Christensen case are these: Edward E. Christensen, though born in New York, migrated to California, where he resided (and consequently was a California citizen) or a period of nine years. In 1913 he came to the Philippines where he became a domiciliary till the time of his death. However, during the entire period of his residence in this country he had always considered himself a citizen of California. In his will executed on March 5, 1951, he instituted an acknowledged natural daughter, Maria Lucy Christensen (now Mrs. Bernard Danay) as his only heir, but left a legacy of a sum of money in favor of Helen Christensen Garcia (who in a decision rendered by the Supreme Court was declared another acknowledged natural daughter of his). Counsel or the acknowledged natural daughter Helen claims that under Art. 16, par. 2 of the Civil Code, California law should be applied; that under California law, the matter is referred back to the law of the domicile; that, therefore, Philippine law is ultimately applicable; that finally, th£ share of Helen must be increased in view of the successional rights of illegitimate children under Philippine law. Upon the other hand, counsel or the child Maria Lucy contends that inasmuch as it is clear that under Art. 16, par. 2 of our Civil Code, the national law of the deceased must apply, our courts must immediately apply the internal law of California on the matter; that under California law there are no compulsory heirs and consequently a testator could dispose off any property possessed by him in absolute dominion and that finally, illegitimate children not being entitled to anything under California law, the will of the deceased giving the bulk of the property to Maria Lucy must remain undisturbed.

THE PROBLEM OF THE RENVOI

219

The Court in deciding to grant more successional rights to Helen said in effect that there are two rules in California on the matter: the internal law (which should apply to Californians domiciled in California); and the conflicts rule (which should apply to Californians domiciled OUTSIDE of California). The California conflicts rule, found in Art. 946 of the California Civil Code, says — “If there is no law to the contrary in the place where personal property is situated, it is deemed to follow the person of its owner and is governed by the law of his domicie.” Christensen being domiciled outside California the law of his domicile, the Philippines, ought to be followed. Were we to throw back the matter to California, the problem would be tossed back and forth between the states concerned, resulting in “international football.” (The case was remanded to the trial court or further proceedings — the determination of successional rights under Philippine law.) Testate Estate of Amos G. Beilis, et al. v. Edward A. Beilis, L-23678, June 6, 1967

**

FACTS:

Amos G. Beilis was a citizen and resident of Texas at the time of his death. Before he died, he had made two wills, one disposing of his Texas properties, the other disposing of his Philippine properties. In both wills, his recognized illegitimate children were not given anything. Texas has no conflicts rule (rule of Private International Law) governing successional rights. Furthermore, under Texas Law, there are no compulsory heirs and therefore no legitimes. The illegitimate children opposed the wills on the ground that they have been deprived of their legitimes to which they would be entitled, if Philippine law were to apply. Issue: Are they entitled to their legi­ times?

HELD:

(Thru Mr. Justice Jose P. Bengzon) (1)

Said children are NOT entitled to their legitimes — or under Texas Law which we must apply (because it is the national law o f the deceased), there are no legitimes. (See Art. 16, par. 2, Civil Code).

PHILIPPINE CONFLICT OF LAWS

220

(2)

The renvoi doctrine, applied in Testate Estate o f Edward Christensen, Aznar v. Christensen Garcia, L-16749, Jan. 31, 1963, cannot be applied. Said doctrine is usually pertinent where the decedent is a national of one country, and a domiciliary of another. In the present case, the decedent was BOTH a national and a domiciliary of Texas at the time of his death. So that even assuming that Texas has a conflict of law rule providing that the law of the domicile should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas Law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule in Texas, it should not be presumed different from ours. (Lim v. Collector, 36 Phil. 472; In re Testate Estate of Suntay, 95 Phil. 500).

(3)

The contention that the national law of the deceased (Art. 16, par. 2 and Art. 1039) should be disregarded because of Art. 17, par. 3 which in effect states that our prohibitive laws should not be rendered nugatory by foreign laws, is WRONG, firstly because Art. 16, par. 2 and Art. 1039 are special provisions, while Art. 17, par. 3 is merely a general provision; and secondly, because Congress deleted the phrase “notwithstanding the provisions of this and the next preceding article” when it incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change, the second paragraph of Art. 10 of the old Civil Code as Art. 16

THE PROBLEM OF THE RENVOI

221

of the new. It must have been its purpose to make the second paragraph of Art. 16 a specific provision in itself, which must be applied in testate and intestate successions. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent. It is, therefore, evident that whatever public policy or good customs may be involved in our system of legitimes Congress has not intended to extend the same to the succession of foreign nationals. (4)

It has been pointed out by the oppositor that the decedent executed two wills — one to govern his Texas estate and the other his Philippine estate — arguing rom this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent’s intention in executing a separate Philippine will, it will NOT ALTER the law, or as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner’s will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void or his national law, in this regard, cannot be ignored.

Chapter XII RULES ON STATUS IN GENERAL

SYNOPSfS OF THE RULES ON STATUS IN GENERAL POINT OF CONTACT

FACTUAL SITUATION (1) beginning of personality natural persons

(1)

national law of the child (Art. 15, Civil Code).

(2) ways and effects of eman­ cipation

(2)

national law (Art. 15)

(3) age of majority

(3)

national law (Art. 15)

(4) use of names and surnames

(4)

national law (Art. 15)

(5) use of titles of nobility

(5)

national law (Art. 15)

(6) absence

(6)

national law (Art. 15)

(7) presumptions of death and survivorship

(7)

lex fori (See Arts. 43, 390, 391, Civil Code; Rule 131, Sec. 5 (jj), Rules of Court)

IN GENERAL In general, the status of a person depends on his national law. This is evident in Art. 15 of our Civil Code which states that: “Laws relating to family rights and duties, or to the legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.” Although literally, Art. 15 is a one-sided conflicts rule, it has been construed by our Supreme Court to be ALL-SIDED and, 222

RULES ON STATUS IN GENERAL

223

therefore, the nationality rule here applies to ALL nationals. (Gibbs v. Government, 49 Phil. 293; Recto v. Harden, L-6897, Nov. 29, 1956).

THE BEGINNING OF PERSONALITY OF NATURAL PERSONS Arts. 40 and 41 of our Civil Code give our internal rules on the beginning of human personality: “Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. “Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.” Commment: (1)

Personality does not begin at birth, it begins at conception. (This is called presumptive personality.) (It is, of course, essential that birth should occur later, otherwise the fetus will be considered as never having possessed legal personality.)

(2)

If the conditions specified in Art. 41 of the Civil Code are not complied with, the birth and the death of the child will NOT be recorded in the Civil Registry.

(3)

Two Kinds of Children (a)

Ordinary — with an intra-uterine life of at least seven months. (Mere birth is sufficient here.)

(b)

Extraordinary — if the intra-uterine life be less than seven months. (Here the child must have lived or at least 24 hours after its complete delivery from the maternal womb.) (NOTE: The term “extraordinary’ was used instead of “premature,” or while a child with an intra-uterine life of say eight months is still considered premature, it is for the purpose of Art. 41 considered an ordinary child.)

PHILIPPINE CONFLICT OF LAWS

224

(4)

For Beneficial Civil Purposes Note that the law says the fetus is considered born only for civil purposes (Art. 41, Civil Code), which are beneficial or favorable (Art. 40, Civil Code). Therefore, a conceived child, thru the mother, or instance, may be the recipient of a donation; but if the donation be onerous or should prove burdensome, the donation will not be considered valid. Similarly, a conceived child can be acknowledged even before it is born. (De Jesus v. Syquia, 58 Phil. 866). It is also already entitled to be supported. ■fSee Kyne v. Kyne, 100 Pac, 806).

(5)

Requirement of Human Form Eliminated Under the old Civil Code, the law required the child to have a human form. However, this requirement has been eliminated because it has been proved by medical science that no monster can be born of human beings. (Report, Code Commission, pp. 79, 124-125).

(6)

Arts. 40 and 41 of the Civil Code apply only to Filipino babies. If the child be a foreigner, the beginning of its personality depends upon its national law. (Art. 15, Civil Code). Example: An alien mother of State X gave birth to a child in Manila. The child had an intra-uterine existence of only six months, and it dies three hours after complete separation from the maternal womb. Now then under the laws of State X (unlike our law) the child possessed a legal personality. Question: Should we regard the child as having had personality? Answer: Yes, because this is a matter that depends upon his national law. (Art. 15, Civil Code).

WAYS AND EFFECTS OF EMANCIPATION Emancipation takes place by way of: (1)

marriage of the minor (Art. 234, Family Code)

(2)

attainment of the age of minority (ibid.)

RULES ON STATUS IN GENERAL

225

(3)

parental concession (ibid.) (child must be at least 18, and must consent). This must be thru the recording in the Civil Register of an agreement in a public instrument executed by the parent exercising parental authority and the minor at least 18 years of age. Such emancipation shall be irrevocable (ibid).

(4)

judicial concession (child must be at least 18, and must consent, and the concession must be deemed convenient for the minor). [NOTE — Emancipation is final or irrevocable (Art. 234, ibid).] “Art. 404. An orphan who is a minor may, at the instance of any relative or other person, obtain emancipation by concession upon an order of the Court o f First Instance (now Regional Trial Court).”

It has been held in this connection that if a minor is married, the father cannot get her custody from the husband in view of the emancipation. (Ching Huat v. Co Heong, 44 O.G. 1241). However if a minor enters into a voidable marriage, and the marriage is annulled, it is as if he was never emancipated. (See 2 Manresa, pp. 755-756). Under Art. 234 of the Family Code, “such emancipation shall be irrevocable,” provided, of course, there was no vitiated consent. Regarding suing in courts it is understood that procedural rules in our courts of justice are governed not by the national law of the litigants but by the lex fori.

AGE OF MAJORITY Art. 234 of the Family Code (as amended by RA 6809) states that: “Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of eighteen years.” Problems: «,(1)

A citizen of State X wants to apply for Philippine naturalization. In State X, he is already considered of major age, being 19 years old. Question: At that age may he already file his petition to be a Filipino citizen?

226

PHILIPPINE CONFLICT OF LAWS

Answer: Yes, provided that at the time of hearing of the petition he is already 21 years old. If at said time he is not yet 21 years of age, the hearing of the petition will have to be postponed, notwithstanding the act that in his own country, he has already reached the age of majority. Be it noted that the Naturalization Law does not say he must be of major age, it says explicitly that he must be 21. Moreover even if it had said “of major age” this must be understood to mean the age of majority in the Philippines, because rules on naturalization and Rationality are dependent purely on our laws. (2)

A female from State•Y marries a Filipino, but because she is a deaf-mute she does not become a Filipino. The marriage however is valid. Now then, assume that she is only 18, but in State Y, marriage makes her a person of major age. Is she still a minor? Answer: We shall consider her a person of major age, in view of the marriage. (See Rabel, Conflict of Laws, Vol. I, p. 173).

USE OF NAMES AND SURNAMES Under our law, legitimate children shall principally use the surname of the father. (Art. 364, Civil Code). An adopted child shall bear the surname of the adopter. (Art. 365, Civil Code). Legitimated children shall principally employ the surname of the father. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. The reason is that they are LEGITIMATE children. Illegitimate children, unless recognized also by the father, shall bear the surname of the mother. (See Art. 176, Family Code). A married woman may use: (1)

Her maiden first name and surname and add her husband’s surname, or

(2)

Her maiden first name and her husband’s surname, or

(3)

Her husband’s full name, but prefixing a word indicating that she is his wife, such as “Mrs.”

In this connection, in the case of Silva v. Peralta, L-13114t Nov. 25, 1960, our Supreme Court held that the right of the wife to use the husband’s surname is exclusive in the sense that another woman should not misrepresent herself as the wife by using the husband’s name with the prefix “Mrs.”

RULES ON STATUS IN GENERAL

227

TITLES OF NOBILITY The right to use a title of nobility depends upon the national law of the individual concerned. (See Rabel, Conflict o f Laws, Vol. I, p. 169) An Englishman, who may have such a title, is allowed to use the same in our country, but if he applies or Philippine naturalization, he must renounce any hereditary title or order of nobility he possesses. (See 17, Naturalization Law.) Under our Constitution such titles of royalty or nobility are not allowed. (Art. Ill, Sec. 1(9), (1935); Art. XV, Sec. 5 (1973); Art. VI, Sec. 3 [1987]).

ABSENCE Absence, being the legal status of a person who disappears from his domicile, his whereabouts being unknown, is naturally governed by the national law. (Art. 15, Civil Code; see also Rabel, Conflict of Laws, I, p. 166). Accordingly Prof. Rabel believes that generally in a country adhering to the nationality theory, a country’s courts have jurisdiction to declare whether or not its nationals are absent from theirs. (Rabel, op. cit., p. 169). While this observation of Prof. Rabel is no doubt correct, it must be pointed out that under our laws it would seem that our own courts also have jurisdiction to declare an alien domiciliary in the Philippines as absent under the conditions laid down in our Civil Code. (See Arts. 384, 385, and 386, Civil Code). Thus, before a person may be declared absent the petition or complaint must contain allegations sufficient to indicate that the periods of time referred to in our law before a declaration of absence can be made have already elapsed. (See Abaling v. Fernandez, 25 Phil. 33). Said periods are apparently applicable to both Filipinos and foreigners. The periods are set out in Art. 384 of the Civil Code, which provides that: “Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared.” Under Art. 386 of the same Code “the judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation.”

PRESUMPTIONS OF DEATH AND SURVIVORSHIP In our country, regardless of the nationality involved, it is the lex fori that governs the rules on presumption of death as well as

228

PHILIPPINE CONFLICT OF LAWS

survivorship. This is because in certain cases there may be a burden of proof. Our periods before a person may be presumed dead are found in Arts. 390 and 391 of the Civil Code: “Art. 390. After the absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except or those of succession. “The absentee shall not be presumed dead or the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of fivy, years shall be sufficient in order that his succession may be opened. “Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: “(1) A person on board a vessel lost during a sea voyage, or an airplane which is missing, who has not been heard of for four years since the loss of the vessel or airplane; “(2) A person in the armed forces who has taken part in war, and has been missing for four years; “(3) A person who has been in danger of death under other circumstances and his existence has not been known, for four years.” The absence referred to in Art. 390 is called “ordinary absence”; while that in Art. 391 is termed “qualified absence.” In ordinary absence, death is presumed to have occurred on the last day of the period; in case of qualified or extraordinary absence, death is presumed to have occurred at the beginning of the period. (See Judge Advocate General v. Gonzales, et al., C.A. 48 O.G. No. 12, p. 5329). Our courts have held that they will NOT declare a person presumptively dead even after the lapse of the periods indicated above because (1) such a declaration would be useless since such a presumption is already given in the law itself; and (2) secondly, because such a judgment can never be final in the sense that it may turn out that the person concerned is still alive. However, in case property rights are involved, then in the same proceeding or the determination and distribution of said property rights, such a judicial declaration of presumptive death may be made. (In re Presumption of the Death ofNecoloi Szatrow, G.R. L-1780; Lukban v. Rep., 52 O.G. 1441; in Re William Que v. Rep., L-14058, March 24, 1960).

RULES ON STATUS IN GENERAL

229

The rules on survivorship, upon the other hand, are found in Art. 43 of the Civil Gode and in Rule 131, Sec. 5 (kk and jj) of the Rules of Court: “Art. 43. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other.” Under the Rules of Court, Art. 43 is COPIED and is referred to as Rule 131, Sec. 3 (kk). Immediately preceding it is Rule 131, Sec. 3 (jj), which reads as follows: “Sec. 3 (jj). When two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is presumed from the probabilities resulting from the strength and age of the sexes, according to the following rules: 1.

If both were under the age of fifteen years, the older is presumed to have survived;

2.

If both were above the age of sixty, the younger is presumed to have survived;

3.

If one is under fifteen and the other above sixty, the former is presumed to have survived;

4.

If both be over fifteen and under sixty, and the sexes be different, the male is presumed to have survived; if the sexes be the same, then the older;

5.

If one be under fifteen or over sixty, and the other between those ages, the latter is presumed to have survived.”

Art. 43 applies when the case involves two or more persons who are “called to succeed each other” (example: father and son). In all other cases, we should apply Rule 131, Sec. 3 *®(jj). Neither Art. 43 nor the Rules of Court’s presumption on survivorship can apply when there are acts, known or knowable, from which a contrary conclusion can be inferred. In such a case, the rule of preponderance of evidence controls. (Joaquin v. Navarro,

230

PHILIPPINE CONFLICT OF LAWS

L-5426-28, May 29, 1953; Victory Shipping v. Workmen’s Com­ pensation Commission, L-9268, Nov. 28, 1959).

END OF PERSONALITY Under Art. 42 of the Civil Code “Civil personality is extinguished by DEATH. The effect of death upon the rights and obligations of the deceased is determined by law, by contract, and by will.” The death referred to is PHYSICAL DEATH. Civil interdiction (CIVIL DEATH) merely restricts civil personality and capacity ttf act. (Art. 38, Civil Code). The rule enunciated in Art. 42 is universally recognized throughout the world. Incidentally, a judicial decree in a foreign country placing a person under civil interdiction will not be recognized in our forum: this is because such a judgment is PENAL in character.

LEGISLATIVE JURISDICTION DISTINGUISHED FROM JUDICIAL JURISDICTION Judicial jurisdiction is authority to hear and determine a legal controversy. This was discussed earlier, where we stated that the jurisdiction of our tribunals of justice is governed by our own law on the matter. Upon the other hand, legislative jurisdiction, aside from the authority to enact laws (which is legislative jurisdiction in the NARROW sense) is the competence of a person’s national law (in countries adhering to the NATIONALITY theory) to govern his STATUS. Thus, while under Art. 15 of our Civil Code, a foreigner’s status is governed by his national law (legislative jurisdiction) (Recto v. Harden, L-6897, Nov. 29, 1956) our own Philippine courts, not the foreign courts, will have authority to decide questions concerning said foreigner’s status (jud jpial jurisdiction) by applying his national law. (Ybanez de Barnuevo v. Fuster, 29 Phil. 606; Beale, Conflict of Laws, Vol. I, p. 308) Ybanez de Barnuevo v. Fuster 29 Phil. 606 FACTS:

Two Spaniards, husband and wife, obtained a divorce from each other. The validity of the divorce was assailed in a Philippine court. Issue: Considering the act that this question of status involves two Spaniards domiciled in our country, may our own courts take cognizance

RULES ON STATUS IN GENERAL

231

of the case despite the act that under the law questions of status are resolved by the application of their national (Spanish) law? HELD:

Yes, because the jurisdiction of our courts is generally submitted to the territorial principle. Both our citizens and aliens should endeavor to have their rights established by the tribunals of the State which have coercive means to enforce their decisions; otherwise a person runs the risk of incurring useless expenditures to obtain a judgment that cannot be enforced. (See Torres Campos, “Elementos del Derecho Internacional Privado,” p. 108).

Chapter XIII MARRIAGE AS A CONTRACT

MARRIAGE DEFINED From the Christian viewpoint (in its literal sense, one who professes the Christian religion [Rubi v. Provincial Board of Mindoro, 39 Phi. 684]), marriage is a union of one man with one woman or the reciprocal blessings of a domestic home life, and for the birth, rearing, and education of children.

THE TWO ASPECTS OF MARRIAGE Marriage has two (2) aspects: (1)

It is a CONTRACT;

(2)

It is also a UNION, a STATUS, a LEGAL RELATION. Under Art. 1 of the Family Code — “Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law or the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.”

In this Chapter, we shall deal with marriage as a CONTRACT.

232

233

MARRIAGE AS A CONTRACT

SYNOPSIS OF THE RULES ON MARRIAGE AS A CONTRACT POINT OF CONTACT

FACTUAL SITUATION (1) if celebrated abroad

( 1)

(a) between Filipinos

(a) lex loci celebration is without prejudice to the exceptions under Arts. 26, 35 (1), (4), (5) and (6), 36, 37 and 38 of the Family Code (bigam ous, polyga­ mous, and incestuous marriages), and consu­ lar marriages.

(b) between foreigners

(b) lex loci celebrationis except if the marriage is:

(c) mixed

(2) if celebrated in the Phil­ ippines (a) between foreigners

1)

highly immoral (like bigamous and poly­ gamous marriages)

2)

or UNIVERSALLY considered INCES­ TUOUS, i.e., between brothers and sisters (whole or half-blood, whether the relation­ ship is legitimate or illegitimate); and bet­ ween ascendants and descendants.

(c)

apply (1-b) — to uphold the validity o f the marriage

(2)

(a) national law (Art. 21, Family Code) provided

234

PHILIPPINE CONFLICT OF LAWS

the marriage is not highly immoral or universaly considered incestuous) (b) mixed

(3) marriage by proxy (NOTE: a im yriage by proxy is considered as celebrated where the proxy appears)

(b) national law of the Fili­ pino (otherwise public policy may be militated against) (3) lex loci celebrationis (with prejudice to the foregoing rules)

MARRIAGE AS A CONTRACT (IN GENERAL) Generally marriage as any other contract has two kinds of requisites: the formal and the essential requisites. Under our Family Code, formalities in general do NOT affect the validity of the marriage (example of such formalities: if a judge solemnizes the marriage, the ceremony must be in OPEN COURT) (See Arts. 7 and 8, id); however, there are so called formalities which are now considered as ESSENTIAL requisites under our law (example: marriage license, except in marriages of exceptional character). (Art. 3, id.).

FORMAL REQUISITES IN MARRIAGE IN CONFLICT OF LAWS Although from our viewpoint formal requisites or marriage (as already discussed) do NOT matter much, it is worthwhile to examine briefly the theories in Conflict of Laws on the subject of FORMAL REQUISITES. The three (3) usual theories are: (1)

The COMPULSORY rule — here it is imperative for the parties to follow the formalities of the place of celebration (lex loci celebrationis — law of the place of celebration; or locus regit actum — law of the place where the act was done or performed). This seems to be the rule we follow here. (See Art. 17, par. 1, Civil Code).

(2)

The OPTIONAL rule — here the parties may follow

] xARRIAGE AS A CONTRACT

235

EITHER the lex loci celebrationis or their national law. This rule is followed in MOST countries. (3)

The ECCLESIASTICAL rule - under this theory, the formalities of BOTH the lex loci celebrationis and the national law o f the parties (im posing religious requirements) must be complied with. The States following this rule include Spain and Palestine. (See Rabel, Conflict o f Laws, Vol. I, pp. 211-214).

SUBSTANTIAL OR ESSENTIAL REQUISITES The substantial or essential requisites or Filipinos who marry in the Philippines are as follows: (1)

Legal capacity of the contracting parties (this refers to the proper ages and the lack of impediments caused by relationship or by an existing marriage);

(2)

The consent of the contracting parties, freely given;

(3)

Authority of the person solemnizing the marriage; and

(4)

A marriage license, except in a marriage of exceptional character. (Art. 3, Family Code).

It is, of course, understood that the parties must be of opposite sexes (this requirement is implied in the first essential requisite); furthermore, there must be a CELEBRATION of the marriage (although no particular form is required here). The necessity or celebration may be inferred from essential requisite No. 3 which speaks of the “authority of the solemnizing officer.” (Art. 3, Family Code). Incidentally, it has been held that the marriage ceremony need not be in writing: signs would suffice (People v. Cotas, C.A. 40 O.G. 3154), but in no case would a common-law marriage between Filipinos in the Philippines be considered as valid, for solemnization must be before the proper officer. (See Cruz v. Catandes, CA. 39 O.G. 324; Enriquez, et al. v. Enriquez, et al., 8 Phil. 565). A commonlaw marriage is one where the man and the woman just live together (or cohabit) as husband and wife without getting married. Query: Is a common-law marriage valid in the Philippines if between foreigners, and if the relationship began abroad? Answer: It would seem that the answer is yes, provided it is valid according to their national law and according to the laws of the place where the relationship began. After all, to avoid

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injustice, we have to consider also the particular conceptions of marriage in foreign jurisdictions. However, it should not be bigamous, polygamous, or universally considered incestuous. We shall now examine briefly the conflicts rules on the substantial validity of a marriage.

MARRIAGES CELEBRATED ABROAD BETWEEN FILIPINOS For 'ftiarriages celebrated abroad between Filipinos, the controlling rule is indicated in Art. 26 of the Family Code: “All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38. The same proviso (Art. 26) further provides that “where a marriage between a Filipino citizen and a foreign is validly celebrated and a divorce is thereafter validly obtained abroad by the client spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.” Be it noted that we follow in this article the rule of LEX LOCI CELEBRATIONIS. However, there are several exceptions (Examples: if the marriage be BIGAMOUS, POLYGAMOUS, or INCESTUOUS). These exceptions are caused by our nationality theory. (See Art. 15, Civil Code). It is, of course, understood that if a marriage in a foreign country between Filipinos be celebrated or performed inside the Philippine consulate abroad, it is as if the marriage had been celebrated not in a foreign country, but right here in the Philippines. *

ILLUSTRATIVE PROBLEMS (1)

Filipino first cousins got married in California, where the marriage is considered valid. Will their marriage be recognized in the Philippines? Answer: No, because such a marriage is incestuous as determined by Philippine law.

(2)

A Filipino step-brother wanted to marry his Filipino step­ sister in the Philippines, but because in our country, a

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step-brother cannot validly marry his step-sister, the two decided to get married in California, where let say, the marriage is valid. Will our court recognize the validity of their marriage abroad? Answer. Yes, because it is valid in the place of celeb­ ration and the marriage is neither bigamous, polygamous, or incestuous as determined by Philippine law. The controlling article of the Civil Code is Art. 26 of the Family Code and not Art. 15 nor Art. 17, par. 3 of the Civil Code. In case of conflict between a particular provision (Art. 26, Family Code) and general provisions (Arts. 15 and 17, par. 3 of the Civil Code) the particular provision prevails. Art. 26 of the Family Code must be construed restrictively because it is a statute in derogation of a natural right, namely, the right to get married. What the law does not include it excludes. If Art. 26, Family Code will not be applied, it will be rendered useless, contrary to all rules of statutory construction. Finally, in case of doubt, we should resolve the doubt in favor of the validity of the marriage. [NOTE: If this marriage between the step-brother and the step-sister had been performed inside the Philippines consulate in San Francisco by our consul or vice-consul, the marriage will be deemed to have taken place in the Philippines, and will therefore be considered VOID],

MARRIAGES CELEBRATED ABROAD BETWEEN FOREIGNERS If marriage between foreigners is celebrated validly abroad, the same will be recognized as valid here (in accordance with the principle of lex loci celebrationis), provided it is not highly immoral (bigamous, polygamous, etc.) and provided it is not UNIVERSALLY considered incestuous. There are two kinds of universally considered incestuous marriages: (a) those between ascendants and descendants (whether the relationship be legitimate or illegitimate); (b) those between brothers and sisters (whether of the full or half blood, and whether the relationship be legitimate or illegitimate). Example-. A marriage in California between American first cousins will be recognized as valid here if valid in the place of celebration because it is neither immoral nor universally considered

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incestuous. It is true that were we to apply Art. 26 of the Family Code, it would be “incestuous” under Philippine law but then Art. 26 applies only to Filipinos, not to foreigners (despite the lack of express distinction in the law), otherwise it is as if our Family Code were to rule the world. (See Rabel, Conflict o f Laws, Vol. I, p. 177). In the case of In Re Miller’s Estate, 239 Mich. 455, it was held that a universally considered incestuous marriage is one where there is “such a relation between contracting parties as to make the marriage incestuous according to the general opinion of Christendo’m, and by that test the prohibited degrees include besides persons in the direct line of consanguinity, brothers and sisters only, and no other collateral kindred.” (See also Minor, Conflict of Laws, p. 161). Query: If a Turk brings to the Philippines four wives, to all of whom he got married validly in Turkey, should we recognize as valid all the four marriages? Answer: We distinguish: (1)

For cohabitation purposes in the forum, I believe that only the first wife will be recognized as legitimate; the rest will be deemed mere concubines. (A “concubine” is a mistress kept by a husband in the conjugal dwelling. [See Art. 334, Revised Penal Code].)

(2)

For the purpose of dermining successional rights to the estate of the husband in case of death, all the wives (as well as all of the children) should be regarded as legitimate. (See Lorenzen, Selected Essays on the Conflict of Laws, pp. 16-17). This is because, under Art. 16, par. 2 of the Civil Code, the successional rights shall be governed by the fJATIONAL LAW of the deceased. If a Turk considers all his wives and all his children as LEGITIMATE and grants them successional rights, we have no alternative except to allow all of them to inherit. Thus, Prof. Lorenzen aptly says: “Suppose, again, that a Mohammedan having two wives should attempt to cohabit with both within the limits of the forum. In this case, there should be no doubt that the local rule should have precedence. Upon the other hand, if a child born of the second marriage in a country where polygamy is recognized, should claim by descent title to real property situated in the forum, the courts would no doubt recognize

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that claim. According to the traditional view, it is customary to say that a polygamous marriage will not be recognized on grounds of public policy. Such a statement, however, is inaccurate, or a judge cannot close his eyes to the institution of polygamy in all cases, and it is only when it reaches a certain point of contact with the law of the forum that it can be said to come into real conflict with its social policy. Only in these cases will the judge be justified to regard it as of no effect.” (Lorenzen, op. cit., pp. 16-17).

MIXED MARRIAGES CELEBRATED ABROAD By mixed marriages in this paragraph We mean marriages between Filipinos on the one hand and aliens or foreigners upon the other hand. It is our opinion that if by one law the marriage is VALID, and by another law the marriage is VOID, that which will uphold the validity of the marriage should be followed by us. Example: If a Filipino girl marries her American first cousin in California and the marriage is valid in the place of celebration, how should we regard the marriage? If we apply the rule or Filipinos, the marriage would be void, or it is clearly incestuous. If, however, we choose to regard it in the light of the rules for foreigners, the marriage, not being universally considered incestuous, should be deemed valid. To say that on the part of the girl, the marriage is void, and on the part of the man, it is valid would result in an absurd situation. Hence, We believe that to avoid absurdity, and to do justice to the girl, the marriage should be regarded by Philippine courts as completely valid, on both sides. After all the marriage was performed in foreign shores and it is not by itself immoral. As repeatedly stressed by Prof. Minor “it is of the utmost importance to the very existence of society that its well-spring, the marriage relation, should be kept pure and unpolluted.” (Minor, Conflict of Laws, p. 19). Indeed, Art. 149 of the Family Code emphasizes the act that “The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects.”

MARRIAGES CELEBRATED IN THE PHILIPPINES BETWEEN FOREIGNERS Should foreigners decide to marry in this country, their capacity to marry shall be governed by their national law. This is the clear inference from Art. 21 of the Family Code which says: “When either

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or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract mar­ riage, issued by their respective diplomatic or consular officials. Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage.” It is evident that the capacity will have to be attested to by the officials concerned: officials of their respective nationalities who no doubt are supposed to be well-versed in their own national law. The most important diplomatic officials are the (a) ambassador, (b) minister plenipotentiary and envoy extraordinary, (c) the minister resident, and (d) the charge d’affaires — in charge of affairs. The consular officials are the (a) consul general, (b) consul, (c) vice-consul and (d) consular agent. Even if allowed by their respective national laws, and even if they are armed with the needed certificate of legal capacity, still foreigners will not be allowed to get married here if: (1)

the marriage will be highly immoral (bigamous, polygamous, etc.);

(2)

the marriage will be universally considered incestuous (as already defined),

Example: Chinese first cousins may validly marry here provided that such a marriage is recognized by Chinese law.

MIXED MARRIAGES IN THE PHILIPPINES If a Filipino marries in the Philippines an American, it is believed that the national law of the Filipino should be followed otherwise our public policy on this point may be militated against. Thus, a Filipino girl cannot marry her American first cousin in Manila. Obviously they will not be able to obtain the requisite marriage license. And even if the marriage be of an exceptional character, as when one of the parties is at the point of death, the marriage will still be void. True, in this case, there would be no necessity for a marriage license, but the fact remains that they are still incapacitated to marry each other.

MARRIAGES BY PROXY A marriage by proxy is one where one of the parties is merely represented at the ceremony by a friend or delegate. The rule or such a marriage may be stated in the following manner:

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(a)

If performed in the Philippines — the marriage is void because physical presence of both parties is required under Art. 6 of the Family Code. The rule applies, how­ ever, only in the case of Filipinos and in mixed marriages. In the case of foreigners, it is believed that if such a marriage is recognized by their national law, we should also consider their marriage as valid here. (Parenthetically, it must be noted that a marriage by proxy is regarded as celebrated in the place where the proxy appears.)

(b)

If performed abroad, whether between Filipinos or foreigners or mixed, the controlling rule is lex loci celebrationis, subject to the exceptions already discussed, and subject further to special provisions as may be found in special laws (e.g., immigration laws for purposes of immigration).

DISTINCTIONS BETWEEN THE CONTRACT OF MARRIAGE AND ORDINARY CONTRACTS Before We end this short chapter on marriage as a contract, We would like to point out that there are several points of differentiation between a marriage contract and an ordinary contract: (1)

Ordinary contracts are mere contracts; marriage is also an inviolable social institution;

(2)

In ordinaiy contracts, the agreements entered into usually depend on the stipulations agreed upon by the contracting parties unless those stipulations violate the law, public policy, public order, good customs or good morals. In marriage, the nature and the consequences as well as the incidents, are governed by the law — except with reference to marriage settlements. In marriage therefore, as a general rule, stipulations are of no value.

(3)

The age requirement in ordinary contract is the age of majority, or marriage, the age requirements vary.

(4)

An ordinary contract may end either thru the express provision of the law, thru expiration of the term or which the contract was agreed upon, thru fulfillment of the purpose for which the contract was entered into, and

**

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PHILIPPINE CONFLICT OF LAWS

even thru mutual agreement. In marriage, only death or annulment or legal causes (or absolute divorce in specified instances for foreigners and Moslems) dissolves the contract. (5)

The substantial or intrinsic validity of an ordinary contract is usually resolved by an inquiry into the law intended by the parties (lex loci voluntatis or lex loci intentionem). The validity of a marriage contract, upon the other hand, is verified generally by a reference to the lex celebrationis.

Chapter XIV MARRIAGE AS A STATUS

SYNOPSIS OR RULES FOR MARRIAGE AS A STATUS POINT OF CONTACT

FACTUAL SITUATION (1)

Personal Rights and Obli­ gations between Husband and Wife

(1)

(mutual fidelity, cohabi­ tation, respect, assistance and support; right of wife to use husband’s name; duty to follow husband’s residence)

National law of the hus­ band. (NOTE: Effect of subse­ quent change of national­ ity -

(a) if both will have a new common nationality — the new one. (b) if only one will change — the last common nationality. (c) if there never was any common nationality — the national law of the husband at the time of the wedding. (See Hague Conven­ tion o f 1905 Wolff, Private International Law, pp. 360-361). 243

244

(2)

PHILIPPINE CONFLICT OF LAWS

Property Relations bet­ ween Husband and Wife.

(2)

National law o f the husband, without preju­ dice to what the Civil Code provides concerning REAL property located in the Phil. (Art. 80) (NOTE: Effect of change o f nationality — NO EF­ FECT. This is the doctrine of IMMUTABILITY IN THE MATRIMONIAL PROPERTY REGIME.)

PERSONAL RIGHTS AND OBLIGATIONS Marriage as a status carries with it implications in two fields: the realm of personal rights and obligations of the spouses; and the realm of property relations. Generally, the first field is a personal affair between the husband and wife, and as such, will not ordinarily be interfered with by the courts of justice; in the second, there are several judicial sanctions applicable. Personal relations between the spouses are in this jurisdiction governed by the national law of the parties. (Art. 15, Civil Code)', to avoid the possibility of conflict between two antagonistic legal systems, the national law of the husband is usually given preference — obviously because of a compelling reason: That is, the nationality of the wife principally depends upon the nationality of the husband. For instance, a Filipino woman who marries a foreigner loses her Philippine citizenship if by virtue of the laws of her husband’s country, she acquires his citizenship. [Sec. 1 (7), Com. Act No. 63, as amended by Rep. Act No. 106]. Conversely, under the Naturalization Law, any foreign “woman who is now or may hereafter be married to a citizen of the Philippines and who might herself be lawfully naturalized shall be deemed a citizen of the Philippines.” (Sec. 15, par. 1, Com. Act No. 473, Naturalization Law). Obviously under this provision marriage seemingly automatically confers upon the wife Philippine citizenship on the alien woman, provided she herself may be lawfully naturalized. The law does not require her to show that she has none of the

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disqualifications: she is apparently presumed qualified, and it is now incumbent for the Government to prove that she in fact is disqualified. However, in at least two cases, the Supreme Court held that the woman does not ipso facto acquire Philippine citizenship: upon her is the burden of proving that she has changed her status from that of alien to citizen (Ly Giok Ha, et al. v. Galang, et al., 54 1,1g, 356) and this has been construed to mean that she must prove she IS NOT DISQUALIFIED to become a Filipino citizen. (Ly Giok Ha, et al. v. Galang, et al., supra; Cua v. Board o f Immigration Commissioners, 53 O.G. 8567, G.R. L-9997, May 22, 1957). In the case of Lee Suan Ay v. Galang, L-l 1855, promulgated December 23, 1960, the Supreme Court went one step further: it held that the woman must prove that she has all .the QUALIFICATIONS and none of the DISQUALIFICATIONS for Philippine citizenship. As to what kind of action or proceeding she is supposed to bring to establish this requirement, the Court did not in said case expressly specify. However, as already discussed in the Chapter on Nationality, the Supreme Court, in 1967 ruled through Mr. Justice Conrado Sanchez, that the proper action would be to file a petition for naturalization. (Re Petition of Zita Ngo Burca, L-24252, Jan. 30, 1967). Ly Giok Ha, et al. v. Emilio Galang, et al. G.R. No. L-10760, May 17, 1957 FACTS:

Ly Giok Ha, a Chinese woman was allowed entry into the Philippines as a temporary visitor on May 14, 1955. She was supposed to stay only up to May 14, 1956. She, of course, had to put up a cash bond of P10,000. On March 8, 1956, however, she married a Filipino named Restituto Lacasta. Immediately thereafter she informed the Commissioner of Immigration of her change of status; she requested cancellation of her alien immigration papers and cancellation of her bond; she also asked for a refund of the money upon the theory that upon her marriage to a Filipino, she had herself become a Filipino citizen. All the requests were denied by the Commissioner.

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HELD:

Since the pleadings do not allege, and since the records do not show, that she has none of the disqualifications for Philippine citizenship, the case must be remanded to the trial court for the introduction of any evidence on this point. (Note: The remand was ordered by the Court for this was a case of first impression, that is, there had previously been no precedent on the matter.)

r

Bar Question Question: A Japanese woman came to the Philippines and was admitted as a transient. (A “transient” is one whose stay is of uncertain duration, or of a short time, or for a brief period only each time. (Magat v. CA, L-55801, Aug. 30, 1982). It was found a few days later,that her passport had been forged. Deportation proceedings were then started against her. Ten days later, she married a Filipino. Could she still be subject to deportation? Why? Answer: Yes, the Japanese woman can still be the subject of deportation proceedings, because mere marriage to the filipino did not automatically or necessarily make her a Filipino. It is essential that she must not, among other things, possess any of the disquali­ fications for naturalization. It is clear that entryinto the Philippines on a forged passport disqualifies her for naturalization. (See Sec. 15, Com. Act No. 473). Having entered the Philippines as an alien transient, it was incumbent for her to prove that she is not one of those disqualified from being naturalized as a citizen under Sec. 4 o f the Revised Naturalization Law. Inasmuch therefore as she is still a Japanese, she can be deported. (See Ly Giok Ha, et al. v. Galang, et al., L-10760, May 17, 1957; Cua v. Republic, L-9997, May 22, 1957, 53 O.G. 8567).

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EFFECT OF CHANGE OF NATIONALITY If the husband will effect a subsequent change of nationality the following rules are believed applicable: (1)

If both the husband and the wife will have a new common nationality — the new national law will govern their personal relations;

(2)

If only one will change nationality — the last common nationality will be applicable;

(3)

If there never was any common nationality — the governing rule will be the national law of the husband at the time that the marriage was entered into. (See Hague Convention o f 1905; Wolff, Private International Law, pp. 360-361).

SCOPE OF PERSONAL RELATIONS BETWEEN THE HUSBAND AND THE WIFE Personal rights and obligations between the husband and the wife, all of which are generally governed by the national law of the husband, but subject to the principles of characterization and to the exceptions to the application of the proper foreign law, include the following: (1)

mutual idelity, cohabitation, and respect;

(2)

mutual assistance and support;

(3)

right of the wife to use the husband’s name;

(4)

duty of the wife to follow the husband to his residence or domicile. (See Rabel, Conflict o f Laws, Vol. I, p. 306).

Under Art. 68 of the Family Code, “the husband and wife are obliged to live together, observe mutual love, respect and idelity, and render mutual help and support.”

DUTY TO LIVE TOGETHER *• (a)

There is a duty and a right to live togher: cohabitation or consortium (including sexual intercourse). A husband cannot be successfully accused of rape (unless there has been legal separation, in which case there is no more right to have sexual intercourse). But he can be accused

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PHILIPPINE CONFLICT OF LAWS

of coercion if he forces his wife (not legally separated from him) against her will. (b)

The wife may establish a separate residence or domicile in the following cases: (1)

If the husband continually indulges in illicit relations with others. (Dadivas v. Villanueva, 54 Phil. 92);

(2)

If the husband is immoderate or barbaric in his demands for sexual intercourse. (Goitia v. Campos, Rueda, 35 Phil. 252);

■¥”

(3)

If the husband grossly insults her (Talana v. Willis, C.A., 35 O.G. 1369); or maltreats her. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54);

(4)

If she has been virtually driven out of their home of her husband and she is threatened with violence if she should return. (Garcia v. Santiago and Santiago, 53 Phil. 952);

(5)

If the husband continually gambles and refuses to support the family. (Panuncio v. Sula, CA. 34 O.G. 1291);

(6)

If the husband lives as a vagabond having no fixed home. (1 Manresa 329);

(7)

If the court exempts her because the husband lives abroad. (Art. 69, Family Code). INOTE: Such exemption shall not apply if the same is not compatible with the solidarity of the family. (Art. 69, Family Code).]

(c)

If the wife refuses; unjustifiably to live with her husband, the court will admonish but not order her to return; and even if an oHer is made, contempt proceedings against the wife will not prosper in case of disobedience. The remedy here for the husband is to refuse to grant support. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54; Art. 127, No. 1, Family Code). Query. If the husband is the Philippine ambassador to a foreign land, may the court order the wife to follow the husband? Answer: No, or this is a personal obligation, even if required under the law. Of course, the refusal of the wife

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may be justified or not. If justified, she will still be entitled to support; otherwise no. (See Arroyo v. Vasquez de Arroyo, 42 Phil. 54). Query: If the wife is the Philippine ambassador to a foreign country, is the husband required to follow her? Where is the matrimonial domicile? Where is the constructive .domicile or domicile of choice of the wife? Answer: The husband is not obliged under any law to follow his wife to the foreign State. The matrimonial domicile is still in the domicile of the wife. The wife, being a wife, despite her ambassadorial position, has a domicile of choice: she has however a constructive domicile, namely the family domicile, which she and her husband shall fix. In the case of disagreement, the court shall decide. (Art. 69, Family Code). (d)

The court cannot order a wife to have sexual intercourse with the husband. Similarly, it cannot also compel a husband to carnally possess the wife. This is impractical; moreover, specific performance generally is NOT a remedy in personal obligations. But support may, of course, be denied. Moreover, the party who refuses unjustifiably to have carnal relations may be held liable for moral damages — In view of the denial of marital consortium. (Tenchavez v. Escano, L-19671, Nov. 29, 1965).

(e)

Damages are recoverable from a stranger if he: (1)

injures the wife and deprives the husband of “consortium.” (Lilius v. Manila Railroad Co., 62 Phil. 56).

(2)

tries to interfere with the domicile home life of the spouses. (See Art. 26, Civil Code; Lilius v. Manila Railroad Co., supra).

DUTY TO OBSERVE MUTUAL RESPECT AND FIDELITY Instead of obedience, Art. 68 of the New Family Code now requires mutual love, respect and fidelity, mutual help and support. A husband and a wife can chastise or reprimand each other, but may not inflict force, except when either catches the other in the act of sexual intercourse with a stranger. (Art. 247, Revised Penal

PHILIPPINE CONFLICT OF LAWS ;

250

Code). If according to the national law of the husband, he may brutally treat his wife, the same cannot be given cognizance under our law otherwise our policy would be offended. If the spouses’ national law, however, permits infidelity to be a ground for legal separation or disinheritance for or unworthiness in matters of succession, the same will be recognized as valid here. (See Arts. 15, and 16, Civil Code).

DUTY TO RENDER MUTUAL HELP AND SUPPORT Marriage is a fifty-fifty proposition; therefore, there generally must be mutual help and support. Mutual help includes the right to defend the life, honor and property of the other spouse. (See Art. 11, Revised Penal Code). Support includes medical attendance, even if the doctor was called by another person. (Pelayo v. Lauron, 12 Phil. 435).

RULES ON PROCEDURE To enforce rights granted by the husband’s national law, resort is had to the lex fori, hence should suits be litigated in the Philippines our procedural rules will have to be followed. (See Rabel, Conflict o f Laws, Vol. I, 307).

PROPERTY RELATIONS BETWEEN THE HUSBAND AND WIFE Art. 80 of the Family Code is our conflicts rule on the subject of property relations between the husband and the wife: “Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. “This rule shall not apply: (1)

Where both spouses are aliens;

(2)

With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and

(3)

With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in

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a foreign country whose laws require different formalities for its extrinsic validity.” Be it noted that the law chooses the matrimonial property regime under the national law of the HUSBAND, instead of the wife. And this is true, even if both the spouses are foreigners of different nationalities. For in such a case, Art. 80 can clearly be applied by analogy.

THE MATRIMONIAL PROPERTY REGIMES Among the various matrimonial property regimes in force today throughout the world are the following: (a)

the absolute community regime (here almost all the properties of the marriage are owned in common by the husband and the wife);

(b)

the relative community regime (or the conjugal partnership of gains or the ganancial system) — (here everything earned during the marriage belongs to the conjugal partnership);

(c)

complete separation of property regimes — (here, each owns his or her earnings);

(d)

dotal or dowry system — (here, the wife before marriage delivers a dowry or property to the husband to help out in the marriage obligations, but later, when the marriage is dissolved, the property or its value must be returned);

(e)

complete absorption or administration by the husband (the husband owns all the properties of the marriage, but he is liable for all the debts); and

(f)

marital administration system — each spouse still owns his or her property, but the husband ADMINISTERS ALL the properties.

In the Philippines the general rule is the absolute community regime. (Art. 88, Family Code).

FAMILY CODE VIS-A-VIS CORPORATION CODE With the advent of the Family Code, certain effects on the Corporation Code (Batas Pambansa Big. 68, as amended) may be discerned, inter alia, when we look into the rights of a wife to

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PHILIPPINE CONFLICT OF LAWS

become an incorporator of a corporation, to transfer her corporate shares to another person and to exercise her voting rights. Sec. 10 of the Corporation (which refers to the number and qualifications of incorporators), has always been interpreted, in the case of an incorporator who is a married woman, as requiring the marital consent of her husband for her to sign the Articles of Incorporation. This view is anchored in the presumption that a married woman who acts as an incorporator binds conjugal funds and since it is the husband who is presumptively the administrator of the conjugal funds, his consent is necessary. The woman, of course, is excused from securing the husband’s consent if she can show that she is a widow, is using her paraphernal funds or is otherwise no longer under the “marital care” of the husband. Upon the other hand, Arts. 96 and 124 of the Family Code, unequivocably vest the administration of both the community and conjugal properties on both husband and wife jointly. Moreover, Art. 73 of the same Code is explicit in allowing either spouse to exercise any legitimate profession, occupation, business or activity without the consent of the other. If the wife thus were to exercise an ordinary occupation or profession, the passage of the Family Code presupposes that she no longer needs the consent of her husband. While ordinarily this conclusion can be reached, in our problem, however, the wife will need money to be .a subscriber or incorporator and if the money she uses will be community or conjugal funds, the husband is required to give his consent. Now if the money is her exclusive or separate property, she does not need her husband’s consent. (Under the Family Code, there is no mention of the term “paraphernal,” instead what is used is “exclusive” or “separate” property.) By virtue of Art. 75 of the Family Code, most marriages after the effectivity of the Code vml be governed by the regime of absolute community of property. Such must be so because most couples will not even be aware that there are different property regimes available or that they even have a choice at all. Let us assume that both husband and wife owned shares of stock before they got married. If they failed to agree on what property regime to adopt, the shares of stock they used to own individually would have to be deemed as community property now, governed by the rules of co-ownership under Art. 90 of the Family Code and therefore also by Sec. 56 of the Corporation Code (which refers to voting in case of joint ownership of stock). Co-ownership

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will automatically have to be the case, even if the stock certificates are still in their respective names, including the maiden name of the wife. Given such a situation, would it be necessary now to require proof o f consent (by the other spouse) to vote such shares even if the shares appear in the name of one spouse alone? Yes, since this is the logical consequence of holding these shares as community property governed by the rules of co-ownership. In the absence of such consent, the Corporate Secrary would be saddled in the added responsibility of requiring a proxy from any of the spouses who comes to vote at a stockholders’ meeting — even if such shares he or she will vote upon happen to be exclusively in his or her name alone. If the Corporate Secretary fails to demand such proxy signed by the other co-owner/spouses, will the latter be allowed to impugn the vote cast by the other spouse at the stockholders’ meeting on the ground that, as a co-owner, he or she was not consulted by the spouse who voted the shares? If so, what effect will that have on the validity of corporate acts where the vote cast by the spouse happens to be the determining vote? The vote of the wife can be invalidated or her failure to secure the consent of her husband. Art. 52 of the Family Code states that the judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children’s presumptive legitimes shall be recorded in the appropriate civil registry and registries of properties; otherwise, the same shall not affect third persons. The aforementioned provision of the Family Code should be taken in conjunction with Sec. 63 of the Corporation Code (which refers to the certificate of stock and transfer shares) because if shares of stock are involved in the liquidation of properties after the annulment of marriage, it is not enough to record the judgment affecting them in the registry of property as provided in the Family Code. As farther required by Sec. 63 of the Corporation Code, any transfer of the shares to one or the other spouse must also be registered in the books of the corporation (i.e., the proper entries mu9& be made in the stock and transfer books; the old certificates must be used in the name of the transferee). Art. 51 of the Family Code provides that in case of partitions following annulment, the value of the presumptive legitimes of all common children shall be delivered in cash, property or sound

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securities. In a situation such as this, the requirements of Sec. 63 of the Corporation Code regarding the proper manner of transferring the shares of stock, if any, representing the whole or part of the presumptive legitimes of the children must have to be complied with. This, as already explained, refers not only to the proper recording in the registry of property but also the endorsement of the stock certificates, the cancellation of old certificates, and the issuance of new ones. PROBLEM: An American, whose national law follows the system of comple separation of property, marries a Filipino woman, whose national law provides, in the absence of a contrary stipulation in a marriage settlement, or the absolute community regime. (Art. 75, Family Code). The husband as a technical consultant in an engineering project of the Philippine government earns the sum of P4 million with which he purchases a house (not the land) located in the Philippines. Question: Who owns the house — the husband or both of the spouse? Answer: The husband is the exclusive owner of the house. Applying Art. 80 of the Family Code, it is clear that their matrimonial property relationship shall be governed by the complete separation o f property regime. In other words, under Art. 80, it is the national law of the husband that designates the matrimonial property regime to be enforced. Under the complete separation of property regime, whatever is earned by either spouse shall belong to him exclusively. The P4 million is therefore clearly his exclusive individual property. Whatever is acquired by the individual property of a spouse shall naturally belong to him or to her exclusively. This is true, both under American law and under Philippine law. (Art. 109,»Family Code). Hence, the house must be considered as the exclusive property of the husband. [NOTE: Art. 80 of the Civil Code does not refer to the system of marital property relationship: it refers to such things as the alienation, or disposition of the properties concerned.] Similarly, the husband will not be allowed generally to donate the house in favor of his wife during the existence of the marriage. (Art. 87, Family Code). This is because insofar as capacity to alienate or encumber real property in the Philippines is concerned, it is not the national law that controls. What governs the

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transaction is the lex situs. This is also true with reference to formalities required in the alienation. (Art. 16, par. 1, Civil Code). [NOTE: Be it noted that the example speaks of a house purchased by an American, not the land on which it has been constructed. This is because, according to the Supreme Court, the Parity Amendment does not allow U.S. citizens to purchase land in the Philippines. (Republic v. William H. Quasha, L-30299, August 17, 1972). A house may be bought, however, for while a house is real property, it is not land.]

IMMUTABILITY OF MATRIMONIAL PROPERTY REGIME DOCTRINE The doctrine of immutability insofar as the matrimonial property regime is concerned is this — that regardless of change of nationality on the part of the husband or of the wife or of both, the original property regime at the start of the marriage remains. This doctrine was recognized to by almost all countries adhering to the nationality principle. (See Rabel, Conflict of Laws, Vol. I, p. 453). Example: An American husband (whose national law imposes generally the complete separation of property regime) marries a Filipino woman. It is clear under Art. 80 of the Family Code that the system that will prevail is the complete separation of property regime. Now then, if the husband subsequently becomes a national of State X whose law demands the absolute community system, by virtue of the doctrine of immutability, the original property relationship — complete separation of property — shall remain, despite the change of nationality on the part of the husband. The reasons for the doctrine are as follows: marital peace in property relationship shall be more or less guaranteed; the spouses will not be able to prejudice creditors, who in turn cannot jeopardize the interest of the spouses; even the spouses may protect themselves from each other. (See Rabel, Conflict o f Laws, Vol. I, p. 354).

IMMUTABILITY OF THE REGIME DISTINGUISHED FROM MUTABILITY OF THE LAW While subsequent change of nationality does not affect the original property regime (doctrine of immutability) in the marital

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property relationship), it cannot be denied that when the law of the original nationality itself changes the marital regime, the property relationship has to change accordingly (doctrine of mutability insofar as the law itself is concerned). This cannot be helped for law is essentially a dynamic thing; however, vested rights must be duly protected. Example: In our previous example of the immutability doctrine, we saw that the change of nationality of the American husband did not alter the system originally entered into: the complete separation of propertjyregime. If, however, subsequent legislation in the country of original nationality (America) alters the system for example to the conjugal partnership regime, this later regime must of necessity control. However, it is understood that properties already acquired prior to the effectivity of the new law shall still be governed by the original system — complete separation of property regime. Otherwise a person may be deprived of his property without due process of law. (See Art. 32, No. 6, Civil Code).

SOME CASES Harden v. Emilio Pena 48 O.G. 1307 FACTS:

An American citizen married a Filipino woman. Both were domiciled in Manila. Issue: What law governs the ownership o f the personal properties of the marriage?

HELD:

This is governed by Philippine law ^inasmuch as the parties were domiciled in Manila.

Collector of Internal Revenue v. Fisher G.R. L>11622, Jan. 28, 1961 FACTS:

In 1909, two British nationals got married in Manila. Subsequently, they transferred their domicile to California where the man died in 1951. Issue: What law governs their matrimonial property relations?

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HELD:

Since both were British nationals, the governing law is British law, provided that the same is properly pleaded and proved. This is so even if the marriage had been celebrated in Manila. How­ ever, since the marriage was celebrated under the old Civil Code, our conflicts rule on the matter is found in the old Civil Code, not in the new Civil Code.

OBSERVATION:

In this case, the Court incidentally commented that had the new Civil Code been applicable the governing conflicts rule would not be Art. 16, par. 2, which deals with successional rights, but Art. 124 of the new Civil Code (now Art. 80 of the Family Code) which precisely deals with property relations between the husband and the wife — whether the marriage be celebrated in the Philippines or abroad.)

Chapter XV ANNULMENT OF A VOIDABLE MARRIAGE AND DECLARATION OF NULLITY OF A VOID MARRIAGE

SYNOPSIS OF THE RULES ON ANNULMENT OF A VOIDABLE MARRIAGE AND THE DECLARATION OF NULLITY OF A VOID MARRIAGE POINT OF CONTACT

FACTUAL SITUATION (1) grounds for annulment (if the marriage is voidable merely) and grounds for declaration of nullity (if the marriage is void ab initio)

(1)

the law alleged to have been violated: in other words, it is the law of the place of celebration (lex loci celebrationis) subject to certain exceptions, that furnishes the grounds.)

(NOTE: The proper court to annul the marriage or to declare it null and void is the court of the country of which the parties are nationals or domiciliaries.) (See Rabel, Conflict of Laws, Vol. I, p. 530) '

ANNULMENT DISTINGUISHED FROM DECLARATION OF NULLITY OF A VOID MARRIAGE A voidable marriage is valid until it is annulled. The remedy here is therefore ANNULMENT. If the marriage is null and void (void ab initio), there ordinarily is no need of a declaration of nullity — since there obviously is nothing to annul. (People v. 258

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Mendoza, G.R. L-5877, Sept. 28, 1954). However, if a party wants to obtain damages because of a void marriage, the only way to obtain said damages would obviously be by asking the proper court to declare the marriage null and void. Example-. If a man forces a girl to marry him the marriage is voidable, that is, valid until annulled; the proper remedy is annulment, otherwise in the absence of any adverse litigation thereon, the marriage continues to be valid. (See Art. 45, No. 4, Family Code). If, upon the other hand, a girl marries a man, already married to somebody else the marriage is null and void. (Art. 35, No. 4, Family Code). Ordinarily, there is no necessity of asking for a judicial declaration that the marriage is void; and therefore, the girl can just go ahead and get married to someone else without incurring any criminal or civil liability. (See People v. Mendoza, L-5877, Sept. 28, 1954). However, should she desire to obtain damages from the man who had deluded her into thinking that he was still a bachelor, the only way she can legally force him to give her a monetary settlement would be to go to court. In the proceeding which she will institute, the court will expressly or implicitly declare the marriage null and void.

GROUNDS FOR ANNULMENT OR DECLARATION OR NULLITY In Conflict of Laws, the grounds for the annulment of a marriage alleged to be voidable, and the grounds for the declaration of nullity of a marriage alleged to be null and void are the grounds provided for by the law alleged to have been violated. In general, it is the law of the place of celebration (lex loci celebrationis), subject to certain exceptions, that furnishes the grounds. The reason is simple: the lex loci celebrationis is usually the rule applied to discover if a marriage is valid or not; conformably, it is the same rule that should tell us whether a marriage is voidable or not; and whether it is void or not. In the Chapter on Marriage as a Contract we stated that generally, if a marriage is valid where celebrated, it is valid in the forum subject to designated exceptions. (Art. 26, Family Code). By necessary implication we may say: if a marriage is voidable where celebrated, it shall also be voidable in our country (subject to certain exceptions where the marriage is considered VOID); and if a marriage is void where celebrated, it has also be void in this country.

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PHILIPPINE CONFLICT OF LAWS

ILLUSTRATIVE PROBLEMS (1)

Two Americans got married in State X where, or example, sterility is a ground for annulment of the marriage. May the marriage be annulled in Philippine courts on the ground let us say of sterility on the part of the hus­ band? ANSWER: Yes. Since the marriage is voidable in State X, it shall also be voidable here. This is true even if under our internal law, sterility is not such a ground.

(2) Suppose in the preceding problem, it had been two Filipinos who had married in State X, would the marriage be also annulled in our country if say the husband happens to be sterile? ANSWER: Yes, and for exactly the same reason. Since the marriage is voidable in State X, it is also to be regarded as voidable by us here in the Philippines. This is the necessary implication from Art. 26 (Family Code). Of course, if in addition to sterility, the parties happened to be also first cousins, then the exceptions in Art. 26 (Family Code); would apply and the marriage will be regarded by our courts here as null and void. [OBSERVATION: It must be borne in mind that insofar as the grounds for annulment or nullity are concerned it is NOT THE NATIONAL LAW that governs; it is the LEX LOCI CELEBRATIONIS, subject to certain exceptions. While it is true that under Art. 15 of the Civil Code, status shall be governed by the national law, still in this problem, it is the very existence o f the status that is in issue, |ind the marriage contract is as we have seen not governed by Art. 15 but by Art. 26 (Family Code). Upon the other hand, as we shall have occasion to point out in the Chapter on Legal Separation, the grounds for legal separation are those indicated in the national law of the parties concerned, and not those in the place of celebration of the marriage. On this point, Art. 15 (Civil Code), will apply because a suit or legal separation necessarily admits the validity of the marriage.] (3)

Two Filipinos are married by the Philippine Ambassador to the United States inside the Philippine consulate in Washington, D.C. In America, let us say, the Ambassador

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261

is authorized to perform marriages. Will such a marriage be given cognizance in the Philippines? ANSWER: No. Having been celebrated in the Philippine consulate in Washington, the marriage is considered to have been performed in the Philippines. Under our law, the ambassador cannot perform a marriage; only consul-generals consuls, and vice-consuls can under Art. 7, par. 5, of the Family Code. Hence, it follows that the marriage is void.

PROPER COURTS Since we follow the nationality theory, our courts have jurisdiction to take cognizance of annulment and nullity suits where the litigants are Filipinos, or where they are domiciliaries of the Philippines. (See Rabel, Conflict o f Laws, Vol. I, p. 539).

CHURCH ANNULMENTS AND DECLARATIONS OF NULLITY Church annulments of marriages and declarations o f their nullity are only for religious purposes, and are not binding on the civil laws and courts of our country, unless amendments to our Family Code are made.

PSYCHOLOGICAL INCAPACITY Today, there is controversy on whether or not absolute divorce is allowed in our country. Anent the non-existence of absolute divorce, it is theoretically correct to say that we have no divorce law at present (except insofar as Muslim divorces are concerned). But the startling truth is that under Article 36 of the Family Code, there seems to be a basis for the conclusion that we now have a semblance of absolute divorce here in the Philippines. ^Article 36 of said Family Code reads: “A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.” (As amended by Executive Order No. 227, dated July 17, 1987).

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Observe that if a marriage can be declared void by the church (such as the Catholic Church) on the ground of “psychological incapacity,” the same ground may be given as cause for cancellation of a marriage in our civil courts without the necessity of prior church cancellation. Please note cancellation of the marriage, not legal separation, and said cancellation will allow either or both parties to get married again to some other persons. Under church laws, examples of “psychological incapacity” will include inter alia, a wrong concept of marital vows and marital infidelity,jtlcoholism, gambling, womanizing, and adamant refusal to give support to a degree incompatible with a mature understanding of responsible married life. This degree is of course subject to determination by the courts, particularly, the Supreme Court. And even if these causes should manifest themselves long after the wedding, said causes are considered to be potentially existing already at the time of the celebration of the marriage. Surely, this is actual absolute divorce, although given another name. Note that for marriages celebrated on or after Aug. 3, 1988 (date of effectivity of the Family Code) the period within which to file the action does not prescribe, i.e., the action can be brought before our civil courts at anytime. For marriages entered into before said date, the period of prescription is ten (10) years counted not from the celebration of the marriage, but from Aug. 3, 1988. [NOTE: See, however, Leouel Santos v. CA & Julia Rosario Bedia-Santos, G.R. 112019, Jan. 4, 1995, 58 SCAD 17, (J. Vitug, ponente), where it was held that “until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree, extent, and other conditions of that incapacity must, in every case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity is preremptorily decreed. The well-considered opinions of psychiatrists, psychologists, and persons with expertise in psychological disciplines might be helpful or even desirable.”]

Chapter XVI ABSOLUTE DIVORCE

SYNOPSIS OF RULES FOR ABSOLUTE DIVORCE FACTUAL SITUATION

POINT OF CONTACT

(1) if sought in the Philippines (whether by Filipinos or by foreigners)

(1) lex fori (therefore, will not be granted)

(2) if obtained abroad:

(2)

Exception; Moslem divorces

(a)

between Filipinos

(a) national law (therefore, not valid here even if valid abroad; and this is true regardless of the cause of divorce)

(b)

between foreigners

(b) national law (if valid in the State granting it, and valid according to the national law of the parties, will also be valid here) (See Art. 15, Civil code).

(c)

mixed

(c) apply (a) and (b) res­ pectively. See, however, Art. 26, second par. of the Family Code.

263

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PHILIPPINE CONFLICT OF LAWS

ABSOLUTE DIVORCE DISTINGUISHED FROM ANNULMENT While both absolute divorce and annulment dissolve the marital ties they differ in the following respects: absolute divorce presupposes a validly existing marriage; annulment ends a marriage which though considered valid in the interim, nonetheless, is defective; absolute divorce is granted for causes SUBSEQUENT to the marriage ceremony while causes for annulment exist at the very time the marriage is entered into.

KINDS OF DIVORCE There are generally two kinds of divorce: absolute (divorce a vinculo matrimoniee) — where the marital ties are dissolved; and relative (divorce a mensa et thoro — or separation from bed and board or legal separation) — where parties remain married, although this time, they are allowed to live separately from each other. In this Chapter we shall deal merely with ABSOLUTE DIVORCE.

RULES TODAY FOR ABSOLUTE DIVORCE (a)

If the divorce suit is brought here in the Philippines: (1)

between Filipinos — it will NOT prosper;

(2)

between foreigner — it will NOT prosper;

(3)

between a Filipino and a foreigner — it will NOT prosper.

The reason is that our courts today have NO jurisdiction to grant divorce to anybody for any reason. (Raymundo v. Penas, L-6705, Dec. 23, 1954). (b)

If the action is brought in a FOREIGN COURT: (1)

Between Filipinos — the divorce decree on any ground will NOT be recognized here even if allowed by said foreign court. (Arts. 15 and 17, Civil Code).

(2)

Between foreigners — the foreign decree of absolute divorce will be RECOGNIZED as valid here only if the following two conditions concur:” a)

the foreign court must have had jurisdiction to grant the absolute divorce;

ABSOLUTE DIVORCE

b)

265

the divorce must be recognized as valid by the NATIONAL law of the parties (See Recto v. Harden, G.R. L-6897, Nov. 29, 1956, where the Supreme Court said: “Inasmuch as Mr. and Mrs. Harden are admittedly citizens of the United States, their status and dissolution thereof are governed by the laws of the United States which sanction divorce.”) [NOTE: In case of CHANGE o f citizen­ ship, such as for instance by NATURAL­ IZATION, it is the citizenship AT THE TIME OF THE DIVORCE that controls. (See Art. 15, Civil Code)]

(3)

Between a Filipino and a foreigner (MIXED — that is, when the foreigner does NOT become a Filipino, or when the Filipino does NOT become a foreigner by virtue of the marriage) — Here the rule is to DENY the validity of the divorce since to rule otherwise would be unjust to the Filipino. (Be it noted that one of the exceptions to the application of the proper foreign law, is when same would result in INJUSTICE to the citizens or residents of the forum.) Manila Surety and Fidelity Co. v. Teodoro L-20530, June 29, 1967

FACTS:

The conjugal partnership of Jose Corominas, Jr. and Sonia Lizares (husband and wife) was dissolved upon their joint petition, by the Manila Juvenile Domestic Relations Court in 1957. Previously (in 1954), Corominas had obtained an absolute divorce in Nevada. After the dissolution of the conjugal partnership, Corominas married in Hongkong a girl named Trinidad Teodoro.

ISSUES:

Is the subsequent marriage valid? Are the fruits of Trinidad Teodoro’s private properties governed by co-ownership?

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PHILIPPINE CONFLICT OF LAWS

HELD:

(a)

The divorce decree cannot be considered valid here, hence the subsequent marriage is void and bigamous. The dissolution of the conjugal partnership did not dissolve the marriage bonds.

(b)

Although the subsequent marriage is void, Art. 144, Civil Code (now Art. 147, Family Code) (relating to co-ownership or to quasiconjugal assets) cannot apply to the fruits of Trinidad Teodoro’s private properties, since they were not acquired thru the couple’s work or industry, nor are they wages and salaries (consequently said fruits cannot be reached by the man’s judgment creditors).

v*

[NOTE: Said Art. 144 of the Civil Code reads: When a man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on coownership.]

f

[NOTE: Art. 147 of the Family Code reads in part: When a man and a woman who are capacitated to many each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on coownership.]

ILLUSTRATIVE PROBLEMS (1)

A Filipino husband and a Filipino wife went to Las Vegas where they obtained a divorce decree on account of the wife’s adultery. Will the divorce decree be recognized in the Philippines?

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267

ANSWER: No, because the divorce is contrary to an important public policy of the forum. (Arts. 15 and 17, Civil Code). (2)

An American movie actress married an American star in Hollywood. After several months of marriage, she obtained a valid divorce in Hollywood. If she should come to the Philippines, will she be allowed to get married here? ANSWER:Yes, provided she can get a certificate of legal capacity to contract marriage here. The certificate must be obtained from the proper American’s diplomatic or consular official — under Art. 66 of the Civil Code. The divorce will be recognized as valid here because it is valid in accordance with her national law and it is valid in the place which granted the same. (See Recto v. Harden, L-6897, Nov. 29, 1956).

(3)

A Filipino woman got married to H, a national of X country. Under the laws of X, the wife acquired the husband’s nationality. Moreover, she expressly renounced her Philippine citizenship. (See Art. IV, Sec. 4, 1987 Constitution). Later H and the wife obtained a decree of absolute divorce, which was considered as valid in country X. Upon the woman’s return to the Philippines, will she be allowed to marry again here? ANSWER: Yes, because by virtue of her acquisition of foreign citizenship in addition to her repudiation on renouncing of Philippine citizenship, the rules on foreigners govern the validity of the divorce. Inasmuch as her divorce is considered as valid in country X, her divorce should be recognized as valid in our courts, hence she can remarry in the Philippines.

(4)

A Filipino woman W, married an American H, but remained a Filipino. (See Art. IV, Sec. 4, 1987 Consti­ tution) Later H obtained a decree of absolute divorce in Reno, Nevada where he had a permanent domicile. Give the effect of the divorce decree. ANSWER: W, being a Filipino, is still a married woman, for the divorce is not valid insofar as she is concerned; so she cannot remarry in our country. The same may be said of the husband. While it is true that he is an American, still for us to uphold the validity of

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268

the divorce insofar as he is concerned would be UNJUST to the Filipino wife. (See exceptions to comity). (5)

QUESTION A and B, Filipino citizens, married in Manila in 1996. Soon thereafter B, the wife committed an act of adultery, in view of which A abandoned her. The wife then went to Reno, Nevada, and there obtained a final decree of divorce on the ground of abandonment on the part of A, and immediately thereafter, married C, an /fmerican. A, having learned of the Reno divorce decree and of the marriage of B to C, thereafter courted D, a Filipina, and subsequently married her in Hongkong, and thereafter cohabited with her in Manila. Two years later B divorced her American husband and returned to the Philippines. She then learned of the marriage of A to D, and she immediately instituted an action for concubinage against the latter. Decide, touching particularly on: (a)

the validity of the Reno divorce decree in this juris­ diction, and

(b)

the force and effect here of the marriage of A to D in Hongkong.

ANSWER: (a)

The Reno divorce decree CANNOT be recognized as valid in the Philippines because the couple’s status is governed by Philippine law (Art. 15, Civil Code) and because our prohibitory laws on persons (including our denial of absolute divorce) cannot be rendered nugatory and ineffective by a contrary foreign decree or judgment. (Art. 17, par. 3, Civil Code; see also Recto v. Harden and Harden, L-6897, Nov. 29, 1956; Raymundo v. Penas, L-6705, Dec. 23, 1954).

(b)

The marriage of A to D in Hongkong, while considered valid there, cannot be considered as valid here, because it is a bigamous marriage, as determined by Philippine law. It is clearly bigamous because as already stated, the absolute divorce is VOID and the previous marriage still subsists. (Arts. 15 and 17, Civil Code).

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269

Insofar as the criminal aspects of the case are concerned, be it noted that A cannot be prosecuted for bigamy inasmuch as the crime, if any, was committed in Hongkong, and thus outside of the jurisdiction of the Philippines. We follow in our country the principle of TERRITORIALITY, as a rule, insofar as crimes are concerned. A cannot also be convicted of concubinage for both A and B are in pari delicto (A, having committed concubinage, and B, adultery). The action must be instituted by the “offended party.” In this case there is NO offended party.

PREVAILING RULE TODAY RE: MARRIAGES CELEBRATED ABROAD AND EFFECT OF FOREIGN DIVORCE What is the general rule anent the validity of marriages celebrated abroad? Are these exceptions to the rule? What about the rule for void or voidable (valid until annulled) foreign marriages? Under Article 26 of the Family Code, “all marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37, and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.” Simply stated, the general rule for validity of marriages celebrated abroad is this: If valid where celebrated, it is also valid here. This is the doctrine of lex loci celebrationis, the law of the place of celebration. The exceptions: those prohibited under Articles 35 (1, 4, 5 and 6), 36, 37 and 38 of the Family Code. Thus: “Article 35. The following marriages shall be void from the beginning: those contracted by any party below eighteen (18) years of age even with the consent of parents or guardians; those bigamous or polygamous marriages not falling under Art. 41; those contracted through mistake of one contracting party as to the identity of the other; and those subsequent marriages that are void under Art. 53.” “Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacity ' ^

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PHILIPPINE CONFLICT OF LAWS

comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.” “Art. 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate: 1) between ascendants and descendants of any degree; and 2) between brothers and sisters, whether of the full or half blood. “Art. 38. The following marriages shall be void from the beginning for reasons of public policy: 1) between collateral blotfd relatives, whether legitimate or illegitimate, up to the fourth civil degree; 2) between step-parents, and step-children; 3) between parents-in-law and children-in-law; 4) between the adopting parent and the adopted child; 5) between the surviving spouse of the adopted child and the adopter; 6) between an adopted child and a legitimate child of the adopter; 7) between adopted children of the same adopter; and 8) between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse. Regarding the rule for void or voidable foreign marriages, be it noted that Art. 26 is framed in the affirmative “and valid there as such.” Now then, suppose the marriage is void in the place of celebration, should it also be considered as void in the Philippines? Answer: the general rule is yes. If void where celebrated, the marriage shall be considered void in the Philippines. Similarly, if voidable where celebrated, the marriage would also be voidable here in the Philippines, without prejudice of, course, to the exceptions under Art. 26. Note that there are requirements to prove a foreign marriage. These include: a) the existence of the pertinent provision of the foreign marriage law, and b) the celebration or performance of the marriage in accordance with said law. Needless to say, the foreign law is not of judicial notice, and it must, therefore, be proved as a fact. Hence, if there is no competent testimony on what said law is, the court cannot be convinced morally of the existence of such a marriage. As to a foreign divorce obtained by a foreigner married to a Filipino, bear in mind that the purpose of the second paragraph of Art. 26 is to avoid unfairness to a Filipino spouse. Note that the rule does not apply if both parties are Filipinos.

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Imelda Manalaysay Pilapil v. Hon. Ibay-Somera, Hon. Victor, and Erich Ekkehard Geiling G.R. No. 80116, June 30, 1989 J. Florenz D. Regalado: An ill-starred marriage of a Filipino and a foreigner which ended in a foreign absolute divorce, only to be followed by a criminal infidelity suit of the latter against the former, provides us the opportunity to lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question. On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich Ekke­ hard Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough, and the couple lived together for some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was bom on April 20, 1980. Thereafter, marital discord set in with mutual recriminations between the spouses, followed by a separation de facto between them. After about three and a half years of marriage, such connubial disharmony eventuated in private respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local Court in January, 1983. He claimed that there was failure of their marriage and that they had been living apart since April, 1982. Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still pending as Civil Case No. 8315866. On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of the child was granted to petitioner. The records show that under German law said court was locally and internationally competent for the divorce proceeding and that the dissolution of said marriage was legally founded on and authorized by the applicable law of that foreign jurisdiction.

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On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while still married to said respondent, petitioner had an affair with a certain William Chia as early as 1982 and with yet another man named James Chua sometime in 1983”. Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on the ground of insufficiency of evidence. However, upon review, the respondent city fiscal approved a resolution, date$L January 8, 1986, directing the filing of two complaints for adultery against the petitioner. The complaints were accordingly filed and were eventually raffled to two branches of the Regional Trial Court of Manila. The case entitled “People of the Philippines vs. Imelda Pilapil and William Chia”, docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the respondent judge; while the other case, “People of the Philippines vs. Imelda Pilapil and James Chua”, docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution of respondent fiscal be set aside and the cases against her be dismissed. A similar petition was filed by James Chua, her co­ accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions and directed the respondent city fiscal to inform the Department of Justice “if the accused have already been arraigned and if not yet arrainged, to move to defer further proceedings” and to elevate the entire records of both cases to his office for review. Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further proceedings thereon. As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case No. 8752434. On the other hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for review then pending before the Secretary of Justice.

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A motion to quash was also filed in the same case on the ground of lack of jurisdiction, which motion was denied by the respondent judge in an order dated September, 1987. The same order also directed the arraignment of both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while the petitioner refused to be arraigned. Such refusal of the petitioner being considered by respondent judge as direct contempt, she and her she submitted herself for arraignment. Later, private respondent entered a plea of not guilty. On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer for a temporary restraining order, seeking the annulment of the order of the lower court denying her motion to quash. The petitioner is anchored on the main ground that the court is without jurisdiction “to try and decide the charge of adultery, which is a private offense that cannot be prosecuted de officio, since the purported complainant, a foeigner, does not qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the criminal complaint.” On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordonez acted on the aforesaid petitions for review and, upholding petitioner’s ratiocinations, issued a resolution directing the respondent city fiscal to move for the dismissal of the com­ plaints against the petitioner. We find this petition meritorious. The writs prayed for shall accordingly issue. Under Article 344 of the Revised Penal Code, the crime of adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal, requirement. While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional a mandate

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since it is that complaint which starts the prosecutory proceeding and without which the court cannot exercise its jurisdiction to try the case. Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first four offenses above mentioned does not apply to adultery and concubinage. It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include the crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor. Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition. The absence4Sof an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal actions are generally and fundamentally commenced by the State, through the People of the Philippines, the offended party being merely the complainant witness therein. However, in the socalled “private crimes”, or those which cannon the prosecution de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and option.

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This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial. Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of the institution of the criminal action for adultery. This is a logical consequence since the raison d’etre of said provision of law would be absent where the supposed offended party had ceased to be the spouse of the alleged offender at the time of the filing of the criminal case. In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action be definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity to bring the action would be determined by his status before or subsequent to the commencement thereof, where such capacity or status existed priot to but ceased before, or was acquired subsequent to but did not exist at the time of, the institution of the case. We would thereby have the anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to do so. To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when precisely the status of a complainant as an offended spouse must exist where a criminal prosecution can be commenced only by one who in law can be categorized as possessed of such status. Stated directly and with reference to the present case, the inquiry would be whether it is necessary in the commencement of a criminal action for adultery that the marital bonds between the complainant and the accused be unsevered and existing at the time of the institution of the action by the former against the latter. American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution commenced, a divorce subsequently granted can have no legal

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effect on the prosecution of the criminal proceedings to a conclusion. In the cited Loftus case, the Supreme Court of Iowa held that no prosecution for adultery can be commenced except on the complaint of the husband or wife. Section 4932, Code. Through Loftus was husband o f defendant when the offense said to have been committed, he had ceased to be such when the prosecution was began; and appellant insists that his status was not such as to entitled him to make the complaint. We hav§*repeatedly said that the offense is against the unoffending spouse, as well as the state, in explaining reason for this provision in the statute; and we are of the opinion that the unoffending spouse must be such when the prosecution is commenced. We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering our statutory law and jural policy on the matter. We are convinced that in cases of such nature, the status of the complainant vis-a-vis the accused must be determined as of the time the complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse, and by this is meant that he is still married to the accused spouse, at the time of the filing of the complaint. In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned (Recto v. Harden, 100 Phil. 427 [1956]), in view of the nationality principle in our civil law on the matter of status of persons. Thus, in the case of Van Dorn vs. Romillo, Jr., et al., 139 SCRA 139 (1985), after a divorce was granted by a United States court between Alice Van Dorn, a Filipina, and her American husband, the latter filed a civil case in a trial court here alleging that her business concern was conjugal property and praying that she be ordered to render an accounting and that the plaintiff be granted the right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance. Thus, there can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on

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private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. Pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal assets. The said pronouncements foreshadowed and are adopted in the Family Code of the Philippines (Executive Order No. 209, as amended by Executive Order No. 227, effective on August 3, 1988), Article 26 whereof provides that “(w)here marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.” Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit. The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family, which is said to be one of the reasons for the particular formulation ,a of our law on adultery, since there would thenceforth be no spousal relationship to speak of the severance of the marital bond had the effect of dissociating the former spouses from each other, hence, the actuations of one would not affect or cast obloquy on the other.

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The aforecited case of United States vs. Mata (18 Phil. 490 [1911]) cannot be successfully relied upon by private respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished adultery “although the marriage be afterwards declared void”, the Court merely stated that “the lawmakers intended to declare adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear that she is entitled to have her marriage contract declared null and void, until and unless she actually secured a formal judicial declaration to that effect.” Definitely, it cannot be logically inferred therefrom that the complaint can still be filed after the declaration of nullity because such declaration that the marriage is void ab initio is equivalent to stating that it never existed. There being no marriage from the beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated and within the purview of the decision in said case is the situation where the criminal action for adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab initio. The same rule and requisites would necessarily apply where the termination of the marriage was effected, as in this case, by a valid foreign divorce. Private respondent’s invocation of Donio-Teven, et al. vs. Vamenta, 133 SCRA 616 (1984), must suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not involve a factual situation akin to the one at bar or any issue determinative of the controversy herein. Justice Edgardo L. Paras (concurring opinion): It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in Germany can no longer be considered as the offended party in case his former wife actually has carnal knowledge with another, because in divorcing her, he already implicitly authorized the woman to have sexual relations with others. A contrary ruling

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would be less than fair for a man, who is free to have six will be allowed to deprive the woman of the same privilege. In the case of Recto v. Harden (100 Phil. 427 [1956], the Supreme Court considered the absolute divorce between the American husband and his American wife as valid and binding in the Philippines on the theory that their status and capacity are governed by their National Law, namely American law. There is no decision if one of the parties say an American, is married to a Filipino wife, for then two (2) different nationalities would be involved. In the book of [then] Senate President Jovito Salonga entitled Private International Law and precisely because of the National Law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar as the Filipino wife is involved. This results in what he cedis a “socially grotesque situation,” where a Filipino woman is still married to a man who is no longer her husband. It is the opinion however, of the undersigned that very likely the opposite expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign law will work an injustice or injury to the people of residents of the forum. Consequently since to recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law, it would seem that under our law existing before the new Family Code (which took effect on August 3, 1988) the divorce should be considered void both with respect to the American husband and the Filipino wife. The case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]), cannot apply despite the fact that the husband was an American with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is concerned was NEVER put in issue.

RULES ON ABSOLUTE DIVORCE PRIOR TO THE NEW CIVIL CODE AND THE FAMILY CODE (1)

The Siete Partidas provided for legal separation, not absolute divorce. This was our law until Act No. 2710

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(the old Divorce Law) became effective on March 11, 1917. This Act allowed only absolute divorce. The provisions of the old Civil Code on divorce, suspended as they were by Gov. Gen. Weyler, were NEVER enforced in the Philippines. (Benedicto v. De la Rama, 3 Phil. 34; Fran­ cisco v. Jason, 60 Phil. 442). (2)

The Divorce Law (Act 2710) recognized only two grounds for absolute divorce and implicitly ruled out relative divorce. (Garcia Valdez v. Tuason, 40 Phil. 943). The two grounds were: (a)

adultery on the part of the wife

(b)

concubinage on the part of the husband.

NOTE: In either case, there had to be a previous criminal conviction (Sec. 8, Act 2710). This was needed as the only admissible proof of the above-mentioned offenses. (Raymundo v. Pehas, L-6705, Dec. 23, 1954). NOTE: While we were still under the old Divorce Law, some Filipino couples went to foreign countries and obtained their decrees of absolute divorce there. Were said decrees ever recognized as valid in the Philippines? ANS.: It depends. (a)

(b)

The absolute divorce would be considered as valid here, provided that the two following conditions CON­ CURRED: (1)

the foreign court must have had jurisdiction over the parties ^nd over the subject matter;

(2)

the ground for the divorce must have been one of the two grounds provided for under the Philippine absolute divorce law, namely adultery on the part of the wife and concubinage on the part of the husband. (See Barretto Gonzales v. Gonzales, 58 Phil. 57; Area v. Javier, 50 O.G. 3538 (1954]).

If either or both of the above-mentioned conditions were absent, the divorce would not be considered as valid here in the Philippines. (See Barretto Gonzales v. Gonzales, 58 Phil. 57; Area v. Javier, 50 O.G. 3538 [1954]).

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BAR EXAMINATION PROBLEM FACTS: X is a male Filipino. He married Y, an American woman in Nevada, U.S.A. They live together as husband and wife for a period of five years in the same state. X returned to the Philippines alone, leaving his wife in Nevada. After staying two years in the Philippines, X was sued for divorce in Nevada by Y, and she obtained a decree of divorce. Three years after the divorce decree had been granted, X married in the Philippines in the year 1952. QUESTION: Since the divorce in the problem was obtained in 1949 (three years prior to the 1952 marriage), it is evident that the new Civil Code does not apply: instead we have to use our principles — on absolute divorce decreed in foreign lands — enunciated under the old law. Without going into the question of jurisdiction, it is apparent that the ground for the divorce herein was NEITHER adultery on the part of the wife NOR concubinage on the part of the husband. Therefore, the divorce CANNOT be given effect in the Philippines. Therefore also the second marriage is VOID since the first marriage had not yet been dissolved when said second marriage was entered into [Barretto Gonzales v. Gonzales, 58 Phil. 67; Sikat v. Canson, 67 Phil. 207; Area v. Javier, 50 O.G. 3538 [1954]). [NOTE: In the Sikat and Area cases, the ground for the foreign divorce was DESERTION. In the Area case, the Supreme Court said: “If the decree is predicated on another ground (other than adultery or concubinage), the decree cannot be enforced in this jurisdiction. The above pronouncement is sound as it is in keeping with the well-known principle of Private International Law which prohibits the extension of a foreign judgment, or the law affecting the same, if it is contrary to the law or fundamental policy of the state of the forum . . . It is also in keeping with our concept of moral values which has always looked upon marriage as an institution.”]

JAPANESE OCCUPATION During the Japanese occupation, there was a new Absolute Divorce Law under Executive Order No. 141 (which enlarge the ground provided for under Act No. 2710). This Order was effective until Oct. 23, 1944 when General Douglas MacArthur, by

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proclamation, reestablished the Commonwealth Government. Said Proclamation in effect repealed said Executive Order and revived Act No. 2710, (Pena de Luz v. CFI, 43 O.G. p. 4102; Justo Bapista v. Castaneda, 42 O.G. 3186; Raymundo v. Penas, G.R. L-6705, Dec. 23, 1954). Executive Order No. 141 had been framed “as an answer to the cry of many victims of chronic matrimonial tragedies which under Act No. 2710, practically only death could dissolve.” (Editorial o f “The Tribune,” March 31, 1943). Sec. 2 of Executive Order No. 141 enumerated ten grouffds. It stated that: “A civil action for divorce may be brought by either spouse in a proper court of justice on any of the following grounds: (a)

Adultery on the part of the wife or concubinage on the part of the husband, committed under any of the forms described in the Revised Penal Code.

(b)

Attempt by one spouse against the life of the other.

(c)

A second or subsequent marriage contracted by either spouse before the marriage has been legally dissolved.

(d)

Loathsome contagious disease contracted by either spouse.

(e)

Incurable insanity which has reached such a stage that the intellectual community between the spouses had ceased.

(f)

Criminal conviction of either spouse of a crime in which the minimum penalty imposed is not less than six years imprisonment.

(g)

Repeated bodily violence by one against the other to such an extent that the spouses cannot continue living together without endangering the lives of both or either of them.

(h)

Intentional or unjustifiable desertion continuously for at least one year prior to the filing of the action.

(i)

Intentional absence from the last conjugal abode continuously for three consecutive years prior to the filing of the action.

(j)

Slander by deed or gross insult by one person against the other to such an extent as to make further living impracticable.”

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VALIDITY OF ABSOLUTE DIVORCE OBTAINED IN THE PHILIPPINES UNDER THE OLD LAWS (1) Absolute Divorce under Act No. 2710 (a)

If granted validly before August 30, 1950 (date of effectivity of the new Civil Code), the decree of absolute divorce remains valid today.

(b)

If PENDING merely on Aug. 30, 1950, the same would be allowed to continue till final judgment. This is true even if the final judgment on the crime (adultery or concubinage) was rendered only after August 30, 1950, because what is important is that the crime was committed BEFORE said date, AND the action for absolute divorce was also filed BEFORE said date (Raymundo v. Penas, L-6705, Dec. 23, 1954). [Act No. 2710 (the old Absolute Divorce Law) was repealed by the New Civil Code (Raymundo v. Penas, L6705, Dec. 23, 1954)., and today we only have relative divorce or legal separation in the Philippines.]

(2)

Absolute Divorce under Executive Order No. 141 (a)

If granted validly before October 23, 1944 (date of Gen. M acArthur’s proclam ation reestablishing the Commonwealth Government), the same will be considered as VALID (Raymundo v. Penas, supra). This is because our government under the Japanese Occupation Forces was considered a de facto government, and court decisions which did NOT partake of a political complexion continued to remain valid. Under the de facto principle, the judicial acts of the invader, done under the sanction of municipal law, should remain good. Were it otherwise, the whole social life of a community would be paralyzed by an invasion . . . (Hall, International Law, 7th Ed., p. 518; Co. Kim Cham v. Eusebio Valdez Tan Keh, G.R. L-5, Sept. 17, 1945).

fo)

If merely pending on Oct. 23, 1944, they were not allowed to continue, except if the action was based on the grounds which had ALSO been provided for under the old Divorce Law, namely, adultery on the part of the wife, and concubinage on the part of the husband (Pena de Luz v.

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CFI, 43 O.G. 4102; Nesperos v. Martinez, 43 O.G. 4660; Raymundo v. Penas, supra). [NOTE: Observe that while pending suits under Act No. 2710 were allowed to continue, those under Executive Order No. 2710 were allowed to continue, those under Executive Order No. 141 were GENERALLY not so allowed. The reason for the difference lies in the fact that the former are governed by the TRANSITIONAL PROVISIONS of the new Civil Code; the latter on the other hand were not covered by any law since the '“Proclamation of MacArthur did not contain any transitional provisions. (Raymundo v. Penas, supra).]

Chapter XVII LEGAL SEPARATION SOME GROUNDS FOR LEGAL SEPARATION

FACTUAL SITUATION

POINT OF CONTACT

(1) grounds for legal separation

(1) national law of the parties

(a) Adultery

(a) if of the same or com­ mon nationality — the common national law governs

(b) Concubinage

(b) if of different nation­ alities — the grounds given by BOTH nation­ al laws should ALL be considered proper grounds. (See Hague Convention on Legal Separation, Art. 8).

(c) Attempt by one . spouse against the life of the other

NOTE: Residence requirement if suit is brought in the Philippines: (a) if cause occurred in the Philippines — NO residence requirement (b) if cause occurred out­ side the Philippines — one year residence is required in our country. (Art. 99, Civil Code).

*0

285

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LEGAL SEPARATION DISTINGUISHED FROM ABSOLUTE DIVORCE Legal separation (divorce a mensa et thoro OR separation from bed and board OR relative divorce) is distinguished from absolute divorce as follows: (1)

Legal separation does not sever the marriage bonds (Art. 63, Family Code)-, absolute divorce dissolves the marriage hence the parties are allowed to remarry.

(2) Reconciliation prevents a suit for legal separation or rescinds one already granted. (Art. 66, Family Code)-, reconciliation does not revive a marriage already dissolved by a decree granting absolute divorce.

LEGAL SEPARATION DISTINGUISHED FROM ANNULMENT OF MARRIAGE The following are some points of differentiation between legal separation and annulment of a marriage: (1)

Legal separation can be granted for causes arising AFTER the celebration of the marriage; annulment requires causes existing PRIOR TO or AT THE TIME the wedding takes place;

(2)

The grounds for legal separation are those given by the national law of the parties concerned, inasmuch as this is purely a question of status, the validity of the marriage being presumed or admitted; annulment questions the very existence of that status, hence, generally the grounds for annulment are those given by the lex loci celebrationis (subject, of crifirse, to certain exceptions, already discussed).

GROUNDS FOR LEGAL SEPARATION Legal separation being a legal status the grounds therefor are those given by the national law of the spouses. (See Art. 15, Civil Code). If the nationality of the husband and wife be different, the grounds enumerated under the national law of the husband PLUS the grounds given by the national law of the wife constitute all the available grounds for granting them legal separation. (See Hague Convention on Legal Separation,Art. 8). Foreigners may sue for

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legal separation in the Philippines even if they did not get married here; the grounds of course will be those given by their national law. (See Art. 15, Civil Code). Example-. A man and a woman, citizens of State X, get married in State Y. They are now in the Philippines. In State X the presence of an incurable contagious disease is a ground for legal separation; in State Y as well as in the Philippines, this is not a ground. If the husband has said disease, may the wife sue in our courts for legal separation? ANSWER: Yes, because this is allowed by their national law (Art. 15, Civil Code) despite the fact that our Family Code provisions on Legal Separation do not consider this a proper ground. (See also Art. 2, Hague Convention on Legal Sepa­ ration). It is believed that this grant of legal separation will not be contrary to our public policy for after all we recognized in this country separation from bed and board. QUERY: In the preceding example, what will be the prescriptive period for the bringing of the suit in the Philippines? ANSWER: Since the cause of action accrued in State X (not here, because this ground is not recognized by our internal law) it follows that the prescriptive period is that provided for by the law of State X.

RESIDENCE REQUIREMENTS The pertinent rule regarding residence requirements is found in Art. 99 of the Civil Code which states that: “No person shall be entitled to a legal separation who has not resided in the Philippines for one year prior to the filing of the petition, unless the cause for the legal separation has taken place within the territory of this Republic.” Hence it follows that: (1)

If the cause took place in the Philippines — there is NO residence requirement (the local courts, despite the lack of residence, refuse to assume jurisdiction, on the theory of forum non conveniens. This is because our forum has a very intimate connection with the problem, namely, the occurring of the cause of the legal separation right here in the Philippines).

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(2)

If the cause took place outside the Philippines, the law requires a residence here of ONE YEAR.

It will be observed that the one-year residence requisite should SUSPEND the running of the prescriptive period. It is elementary that since one of the purposes of the Statute of Limitations is to penalize a person who sleeps on his rights, it is evident that the period during which the plaintiff is PROHIBITED to bring an action should necessarily suspend the running of the prescriptive period, for then he cannot be said to be “sleeping on his rights.” (See among othe.B cases Rio and Co. v. Jolkipli, L-12301, April 13, 1959 where the Supreme Court held that in instances where there is a debt moratorium law or executive order, the period of the moratorium SUSPENDS the running of the prescriptive period, evidently because during such period, the creditor CANNOT bring the action to recover, even if he so desires.) Under Art. 56 of the Family Code, where the action is barred by prescription, a petition for legal separation is denied. The requirement in Art. 99 of the Civil Code is jurisdictional. The Court of First Instance (now Regional Trial Court) has jurisdiction over the case as long as at least one party is a resident of the Philippines, even if he is a foreigner, and the marriage had been performed abroad. (See Ybanez de Barnuevo v. Fuster, 29 Phi. 607).

OUR INTERNAL LAWS ON LEGAL SEPARATION According to Article 55 of the Family Code, a petition for legal separation may be filed on any of the following grounds: 1) repeated physical violence or grossly abusive conduct directed against the petitioner, a common child,4ior a child of the petitioner; 2) physical violence or moral pressure to compel the petitioner to change religious or political affiliation; 3) attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; 4) final, judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; 5) drug addiction or habitual alcoholism of the respondent; 6) lesbianism or homosexuality of the respondent; 7) contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; 8) sexual infidelity (adultery or concubinage) or perversion; 9) attempt by the respondent against the life of the petitioner; or

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10) abandonment of petitioner by respondent without justifiable cause for more than one year. Comment: There are ten (10) grounds for legal separation enumerated in the Family Code. As to the proof needed, mere preponderance of evidence, not guilt beyond reasonable doubt, will suffice to prove the existence of any of the grounds, although in ground No. 4, previous criminal conviction is essential (this is a separate case) in view of the necessity of a “final judgment.” One common ground for legal separation is by the guilty spouse with any justifiable cause for more than one year. (Art. 55, No. 10, Family Code). Abandonment as used herein is synonymous to criminal desertion, i.e., a husband’s or wife’s abandonment or willful failure without just cause to provide for the care, protection or support of a spouse who is in ill health or necessitous circumstances. (Black’s Law Dictionary, abridged fifth edition, p. 232). This includes both the intention to abandon and the external act by which the intention is carried into effect. (Ibid., p. 1). Another ground for legal separation is bigamy. This is committed by any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. (Art. 349, Revised Penal Code). Pastor B. Tenchavez v. Vicente F. Escano L-19671, Nov. 29, 1965 FACTS:

*'*

In 1948, Pastor Tenchavez and Vicente Escano were married before a Catholic priest in the Philippines. On Oct. 22, 1950, Vicente obtained an absolute divorce from her husband from the State of Nevada, U.S.A. She then married in America an American. Both presently reside in California, the girl having acquired American citizenship in 1958. On July 30, 1955, however, Tenchavez had already initiated legal separation proceedings in the Philippines.

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PHILIPPINE CONFLICT OF LAWS

Issue: Will the legal separation proceedings and relief for damages prosper? HELD:

Yes, because the girl technically has committed adultery (in view of the sexual intercourse with her American husband), her divorce NOT BEING recognized here in the Philippines. Pastor, aside from being relieved of his duty to support her, can obtain damages from her — in view of her refusal to perform her wifely duties, her denial of consortium, and her desertion of her husband. (Art. 2176, Civil Code). NOTE: He is awarded P25,000 by way of moral damages and attorney’s fees. Later in a motion for reconsideration, defendant alleged, inter alia, that the grant of moral damages was not proper, on the theory that the same is not one of the effects of legal separation. The court, however, answered that the grant of damages was made, not necessarily because of the legal separation, but because of the unjustified denial of marital consortium. NOTE: The change from Philippine to American citizenship is immaterial for the change was made AFTER the grant of absolute divorce. What is important is the citizenship at the time o f the grant of the divorce. NOTE: Summing up, this case of Tench&vez gives us the following doctrines: (1)

a foreign divorce between Filipino citizens sought and decreed after the effectivity of the New Civil Code is not entitled to recognition as a valid decree in this country;

(2)

neither is the marriage contracted with another party by the “divorced” consort, subsequent to the foreign decree of divorce, entitled to validity in the Philip­ pines;

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(3)

the remarriage of the “divorced” wife and her cohabitation with a person other than the lawful husband entitles the latter to obtain a decree of legal separation;

(4)

the desertion and obtaining of an invalid divorce decree by one consort entitles the other to recover lawful damages;

(5)

an action for alienation of affections against the parents of one consort will not prosper in the absence of proof of malice and unworthy motives on their part;

(6)

a valid marriage remains subsisting under Philippine laws despite the decree of absolute divorce from a foreign court; and finally;

(7)

to grant effectivity to such foreign divorce would be to patently violate the declared policy of the State as enunciated in the 3rd paragraph of Art. 17 of the Civil Code.

Both adultery and concubinage are encompassed in the term “sexual infidelity” (i.e., referring to unfaithfulness in marriage. (Black’s Law Dictionary, fifth abridged edition, p. 398). “Sexual perversion,” upon the other hand, refers to an abnormality by a person in matters of sex. (See Webster’s Dictionary, 1992 ed.). (“Pre-marital sex” — indulging by an unmarried couple in sexual intercourse prior to getting married.) Adultery is the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife. It refers to the unlawful commence of a married man with an unmarried woman not being of the grade of adultery. In other jurisdictions, both parties are guilty of adultery, even though only one of them is married. Also, a distinction is being made between double and single adultery, the former "being committed when both parties are married to other persons, the latter where only one is so married. (Black’s Law Dictionary, fifth abridged edition, p. 25). There is what is known, too, as open and notorious adultery. To constitute living in open and notorious adultery,

292

PHILIPPINE CONFLICT OF LAWS

the parties must reside together publicly in the face of society, as if conjugal relations existed between them, and their so living and the fact that they are not husband and wife must be known in the community. (Ibid.) One form of adultery is known as illicit cohabitation, i.e., the living together as man and wife of two persons who are not lawfully married with the implication that they habitually practice fornication (unlawful sexual intercourse between two unmarried persons). (Ibid., pp. 380, 334). Adultery is that “which is committed by a married woman who shall have sexual intercourse with a man not her husband; and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void.” (Art. 333, par. 1, Revised Penal Code). Adultery cannot be committed by an unmarried girl. (Art. 333, Revised Penal Code)-, \ so a common law wife can never be guilty of adultery. (See U.S. v. Villafuerte, 4 Phil. 476). Even if a wife has been unjustifiably abandoned, she may still be liable for adultery, the abandonment being merely mitigating. (U.S. v. Serrano, 28 Phil. 320). Adultery may be proved by circumstantial evidence, like a photograph showing intimate relations; or the testimony of a witness who has seen the two defendants sleep together in scanty clothing, there being in this instance an opportunity to satisfy adulterous inclinations. (U.S. v. Feliciano, 36 Phil. 753). Every carnal intercourse is a separate act or crime of adultery; for adultery is a crime of result, and not of tendency; it is an instantaneous crime which is consummated or completed at the moment of carnal union. (People v. Zapata and Bondoc, L-3047, May 16, 1951). Concubinage upon the other hand, is committed by “any husband who shall (a) keep a mistress in the conjugal dwelling, or (b) have sexual intercourse under scandalous circumstances, or with a woman who is not his wife, (c) cohabit with her in any other place.” (Art. 334, par. 1, Revised Penal Code). Regarding “an attempt by one spouse against the life of the other,” the following things ought to be noted: the attempt must not be unjustified as in the case of lawful self-defense; nor must it be one where the attempt was made because the other was caught in flagrante delicto with a lover. The attempt must be one of attempted or frustrated parricide, not one caused by negligence for in the latter case, it cannot be said

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that there was an attempt. It has been held that maltreatment by a husband of his wife, like giving her fist blows on the face, pulling her hair, twisting her neck, of boxing her on the abdomen does not constitute attempts on her life, in an absence of an intent to kill. (Munoz v. Barrios, C.A. 5217). Art. 59, Family Code: “No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable.” Comment: It is the policy of the law to discourage legal separation (Juarez v. Turon, 51 Phil. 736) because the family is a basic social institution which public policy cherishes and protects (Art. 149, Family Code). Under Art. 56 of the same Code, the petition for legal separation shall be denied on any of the following grounds: 1) where the aggrieved party has condoned the offense or act complained of; 2) where the aggrieved party has consented to the commission of the offense or act complained of; 3) where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation; 4) where both parties have given ground for legal separation; 5) where there is collusion between the parties to obtain the decree of legal separation; or 6) where the action is barred by prescription. COMMENT: (1)

Defenses in Legal Separation:

(c) connivance; (d) recrimination or mutual guilt; Je) collusion; (f) prescription. (2)

Condonation (a)

This means forgiveness, express or implied. Condonation to constitute valid defense must be free, voluntary, and

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294

not induced by duress or fraud. (Black’s Law Dictionary, abridged fifth edition, p. 155). Sleeping together after full knowledge of the offense is condonation (Bugayong v. Ginez, L-10033, Dec. 28, 1956), unless the reason for the voluntary sexual intercourse is to save the marital relationship and maintain harmony (Keezer, Marriage and Divorce, p. 577), or for the purpose of attempting (unsuccessfully, however), at a reconciliation, (Hawkins v. Hawkins, 286 Pac. 747).

(3)

(b)

Each sexual intercourse of the wife outside marriage is a separate act of adultery. Therefore condonation of one act does not necessarily imply condonation of the others. (People v. Zapata and Bondoc, L-3047, May 16, 1951).

(c)

Where the wife left the conjugal home after her adulterous acts were discovered, the fact that the husband did not actively search for her is NOT condonation. It was not the duty of the husband to search for the wife under the circumstances. On the contrary, hers was the duty to return to the conjugal home. (De Ocampo v. Florenciano, L-13553, Feb. 23, 1960).

Consent The consent may be express or implied. While consent is implied in every agreement, such act must be unclouded by fraud, duress, or sometimes even mistake. (Black’s Law Dictionary, abridged fifth ed., p. 160). It is implied for instance from a husband’s abandonment of the wife after discovering her marital infidelity. (People v. Sansano and Ramos, 59 Phil. 73). People v. Schneckenburger 73 Phil. 413 FACTS:

A husband, who was an alien consul in Manila, and his wife entered into a mutual agreement whereby each could carnally live with others, without interference from either. Pursuant to the immoral agreement, the husband live with another woman, and in the prosecution for concubinage he presented in defense the prior agreement or consent. Is he guilty?

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HELD:

(4)

No, he is not guilty for after all the wife had previously given her consent. The Court also said: (1)

We do not legalize the agreement; the agreement is still null and void because it is contrary to the law and contrary to morals. BUT precisely because the girl had previously given her consent, she is now undeserving of our sympathy. She deserves less consideration than a woman who condones.

(2)

It is alleged that when the law speaks of consent, what is meant is condonation. This is NOT so; otherwise, why is consent used as the alternative of condonation? Consent is PRIOR to the act; condonation comes AFTER. (See also Matubis v. Praxedes, L -l1766, Oct. 25, 1960).

R ecrim ination or M utual Guilt “Recrimination” is a charge made by an accused person against the accuser; in particular, a countercharge of adultery or concubinage made by one charged with the same offense in a suit for legal separation, against the person who has charged him or her. (See Black’s Law Dictionary, abridged fifth ed., p. 663.) Both parties being in pari-delicto, there is no offended spouse who deserves to bring the action. This is true even if one of the parties has been pardoned but the other has not. (Benedicto v. De la Rama, 3 Phil. 34).

(5)

Collusion This is an agreement whereby one party will pretend to have committed the ground relied upon. (Keezer, Marriage and Divorce, p. 546). A legal separation obtained through w»collusion is VOID. Art. 60, Family Code: “No decree of legal separation shall be promulgated upon a stipulation of facts or a confession of judgment.

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PHILIPPINE CONFLICT OF LAWS

“In any case, the court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed.” Comment: (1)

The law requires proof, not a mere stipulation of facts or a confession of judgment. The confession of a judgment referred to is that where the defendant instead of defending himself, chooses instead to acknowledge the rightfulness of the plaintiffs action. (See Black’s Law Dictionary, p. 1026). The proof may be either direct or circumstantial evidence. It should be noted that the case may prosper even if the defendant does not appear. Ocampo v. Florenciano L-13553, Feb. 23, 1960 FACTS:

In 1951, Jose discovered that his wife, Serafica, was having illicit relations with a certain Arcales. Serafica then left the conjugal home. In 1955, Jose again caught his wife having carnal knowledge with a certain Nelson. Jose then told Serafina he was filing suit for legal separation. Serafica agreed on condition that she would NOT be charged criminally with adultery. The case for legal separation was then filed. When the Fiscal (now Prosecutor) outside o f court asked her why she failed to file an answer, she replied that she was in conformity with the legal separation. The lower court and the Court of Appeals both denied the legal separation on the ground that there was a confession of judgment under Art. 101 of the Civil Code (now Art. 61 of the Family Code). The case was appealed to the Supreme Court.

HELD:

The legal separation should be granted, in view of the presence of other evidence. Here there was only an extrajudicial admission and NOT a confession of judgment (which usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the

LEGAL SEPARATION

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plaintiffs demand). And even if the statement of the defendant really constitutes a confession of judgment, still inasmuch as there is evidence of adultery indepedently of such statement, the decree of legal separation may and should be granted since it would be premised not on her confession, but on the strength of thr> evidence presented by her husband. Indeed what the law prohibits is a judgm ent based EXCLUSIVELY or mainly on the confession of judgment. If a confession can automatically and by itself defeat the suit, any defendant who opposes the legal separation will immediately confess judgment, purposely to prevent the giving of the decree. Art. 57, Family Code: “An action for legal separation shall be filed within five years from the time of the occurrence of the cause.” Comment: Although prescription should ordinarily be alleged, this is not so in legal separation or annulment proceedings. Therefore, the court even by itself can take cognizance of prescription of the cause of action because the case involves public interest, and it is the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record (Brown v. Yambao, L-10699, Oct. 18, 1957). Art. 58, Family Code. “An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition.” Comment: The “cooling-off period” is the period of time in which no action may be taken by either sides. Similarly, the purpose of the six-month period before trial is to enable the parties to cool off. But the cooling-off period

PHILIPPINE CONFLICT OF LAWS

298

does not mean the over-ruling of such other provisions as custody, alimony, and support pendente lite according to the circumstances. (Art. 62, Family Code). Therefore, even during said period of six months, support pendente lite may be granted if justified; otherwise rank injustice may be caused. (Araneta v. Concepcion and Benitez Araneta, G.R. No. L-9667, July 31, 1956, O.G. 5165). Moreover, a writ of preliminary mandatory injunction for the return of the wife’s paraphernal property can in the meantime be heard and granted during the 6month period. (Semosa-Ramos v. Vamenta, 46 SCRA 110). Art. 61, Family Code: “After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. “The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court.” Comment: Note that the spouses can live separately after the filing of the petition for legal separation. But they are not required to do so. A third person may manage the property regime. The designation of this person may be done by the court. Art. 62, Family Code: “During the pendency of the action for legal separation, the provisions of Art. 49 shall likewise apply to the support of the spouses and the custody and support of the common children.” [Note: Art. 49 of the same Code provides: “During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the court shall provide for the support of the spouses and the custody and support of their common children. The court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It

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shall also provide for appropriate visitation rights of the other parent.”] Note that as in the annulment or declaration of nullity of a marriage, Art. 49 shall likewise apply to support and custody. Art. 63, Family Code: “The decree of legal separation shall have the following effects: “(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; “(2) The absolute community or the conjugal partnership shall be dissolved and liquidated, but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Art. 43 ( 2);

“(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and “(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law.” Comment: (1) Even if separated from each other, the obligation of mutual fidelity remains. The obligation of mutual support between the spouses CEASES. However, the court may order that the guilty spouse shall give support to the innocent one, the judgment for legal separation specifying the terms of such order. (Art. 198, Family Code). (2) The custody of the minor children may be given either to the INNOCENT spouse or to a GUARDIAN, but not to the GUILTY spouse, unless the children be less than seven years of age (See Art. 363, Civil Code) or five years of age (see the Youth and Welfare Code) and the mother be the guilty

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PHILIPPINE CONFLICT OF LAWS

spouse. According to the Code Commission, the commission by the mother of adultery is not a compelling reason to deprive her of the custody of the child (Report o f the Code Commission, p. 12). [NOTE: In case of separation of the parents, parental authority, shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. (Art. 213, Family Code). (3) The revocation of the provisions in a will refers to a will made prior to, not after, the decree of legal separation; otherwise it cannot be said that the decree revokes any provision, for the will had not yet been made. Art. 64, Family Code: “After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured. “The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation has become final.” Comment: Two (2) things that may be revoked by the innocent spouse are: 1.

donations made in favor of the offending spouse;

and 2. designation of the offending spouse as beneficiary in the insurance contracts of the innocent spouse.

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Art. 66, Family Code: “The reconciliation referred to in the preceding Article (Art. 65) shall have the following consequences: “(1) The legal separation proceedings, if still pending, shall thereby be terminated in whatever stage; and “(2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. “The court’s order containing the foregoing shall be recorded in the proper civil registries.” Comment: Reconciliation is a BILATERAL act, requiring common consent, whether express or implied. In law of domestic relations, reconciliation is a voluntary resumption of marital relations in the fullest sense. (Black’s Law Dictionary, abridged fifth ed., p. 661).

EFFECT OF DEATH DURING PENDENCY OF THE CASE While the law speaks of defenses in legal separation, namely: condonation, consent, connivance, mutual guilt (recrimination), collusion and prescription, one question persists: What is the effect of death during pendency of the case? If one party dies during the pendency of the cases, the same should be dismissed since the action is purely a personal one. This is true even if there would have been effects of property rights if a decree of legal separation had been granted. Without the decree, there can be no effects.

Chapter XVIII PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP, AND FUNERALS

SYNOPSIS OF THE PERTINENT CONFLICTS RULES FACTUAL SITUATION (1)

POINT OF CONTACT

Paternity and Filiation (including Parental Authority and Reciprocal Support) — legitimacy, legitimation, recognition, presum ptions of legitim acy, rights and obligations of parents and children, including parental authority, and reciprocal support.

(1) (a)

if legitim ate — national law of the father (see Art. 15, Civil Code.)

(b)

if illegitim ate — national law of the mother unless recog­ nized by the father, in which case, national law of the father. (See Art. 15, Civil Code).

(c)

determ ination of whether legitimate or illegitimate (na­ tional law o f the father, as a rule) — (See Art. 15, Civil Code).

Doctrine of Immutability o f Status — change of 302

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303

parent’s nationality does not affect the status of the child (2)

(3)

Adoption — creation of the status of adoption; rights and obligations of adopter and adopted.

(2)

NOTE: In the Philippines, adoption by a Filipino does not confer Filipino citizenship on an adopted alien child.

Guardianship (a) over the person

(a)

1) appointing court

1) court of the domi­ cile of the ward

2) powers of guard­ ian

2) coextensive with those of the ap­ pointing court (law o f the ap­ pointing state)

(b) over the property

(b)

1) appointing court

1) court where the property is found (lex rei sitae)

2) powers of guard­ ian

2) coextensive with those of the ap­ pointing court (law o f the ap­ pointing state)

(c) over the person and over the property (general guardian) (4)

in general, national law of the adopter

Funerals — incidents thereof

(c) see 3(a) and 3(b).

(4)

where the body is buried.

PATERNITY AND FILIATION DEFINED Paternity (or maternity) is the civil status of the father (or mother) with respect to the child begotten by him (or by her). (5

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PHILIPPINE CONFLICT OF LAWS

Sanchez Roman 953). Upon the other hand, filiation is the status of the child in relation to the father or mother. Similarly, parental affection is the love of the parents for the child; final affection is that of the child for the parents.

CONFLICTS RULES ON PATERNITY AND FILIATION To determine whether a child is legitimate or not, we have to inquire into the national law of the father. This is so because we generally adhere in our country to the nationality principle. (Art. 15, Civil OSde). (See also Rabel, Conflict of Laws, Vol. I, pp. 560562). Having determined the legitimacy or illegitimacy of the child, the next problem is to answer the questions: what rules govern the relationship and duties between the parent and the child? It is submitted that the following answers will generally be adequate: (1)

If the child has been determined to be legitimate, the national law of the father controls;

(2)

If the child is illegitimate the national law of the mother is decisive, unless the child be subsequently recognized by the father, in which case, the national law of the father prevails. (See Art. 15, Civil Code; Rabel, ibid.)

Example: In State X, all children whether born inside or outside wedlock are considered legitimate. In State Y, all children born outside wedlock are illegitimate. Now then a child is bom outside wedlock of a father, who is a citizen of State Y, and a mother, who is a citizen of State X. (a)

Should Philippine courts consider the child legitimate or illegitimate?

(b)

What country’s law will govern the relationship of parents and child?

Answers: (a)

The child should be considered ILLEGITIMATE, because such is the characterization under the father’s national law (law of State Y).

(b)

Inasmuch as the child is illegitim ate, the relationship of parents and child should be governed by the national law of the mother (law of State X, which incidentally regards the child as legitimate), unless the father recognizes the child as his own in

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305

which case, the law of State Y, the father’s national law, shall govern. NOTE: When we mention the relationship between the child and the parents, we inferentially include also the following matters: (a)

presumptions of legitimacy and illegitimacy (because these are substantive, not procedural in character). (See Rabel, Conflict of Laws, Vol. I, p. 556).

(b)

rights and obligations of parents and children;

(c)

parental authority;

(d)

reciprocal support.

Legitimation Defined: Legitimation is a remedy or process by means of which those who in fact were not born in wedlock, and should therefore be ordinarily considered illegitimate children, are, by fiction and upon compliance with certain requirements, regarded by the law as LEGITIMATE, it being supposed that they were born when their parents were already validly married. (See 1 Manresa, 5th Edition, p. 550). Authorities are unanimous in stating that the requisites for legitimation are those prescribed by the national law of the father. (See Rabel, Conflict o f Laws, Vol. I, p. 575).

PHILIPPINE INTERNAL RULES ON LEGITIMATION AND RECOGNITION In the Philippines, the following constitute the internal requisites for the legitimation of an illegitimate child:

«

(1)

The child must be conceived and born outside wedlock of parents who at the time of the conception (of the child) were disqualified by any impediment to marry each other. (Art. 77, Family Code)-, and

(2)

There must be a subsequent valid marriage (not prior) otherwise the child would already be legitimate, and there would be no need for legitimation. (Art. 178, Family Code). [NOTE: If a marriage is voidable but subsequently annulled, the legitimation remains valid — for after all, a voidable marriage is valid before it is annulled.]

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PHILIPPINE CONFLICT OF LAWS

DOCTRINE OF IMMUTABILITY OF STATUS The doctrine o f immutability of status is the theory that the status of a child, i.e., his legitimacy, etc. is NOT affected by any subsequent change in the nationality of the parents. However, the national law of the parents will, of course, be changed should the parents effect a change of nationality: the rights and obligations of parents and child will now be determined by the new national law. Example: A Filipino illegitimate child who becomes a legitimated'£hild of his Filipino parents by virtue of recognition by both parents and their subsequent valid marriage continues to be a legitimate child even if the parents should subsequently embrace another nationality. The parental and filial rights and obligations will now be governed, of course, by the laws of the NEW nationality, but the child is considered still a legitimated child, despite any contrary rule under the new nationality. Moreover, the new rights and obligations will be effective only from the moment the new nationality is embraced, not before. (See Rabel, Conflict of Laws, Vol. I, pp. 606-607).

DEFINITION AND PURPOSE OF ADOPTION Adoption is defined as the process of making a child whether related or not to the adopter, possess in general the rights accorded to a legitimate child. In the case of Prasnik v. Republic, L-8639, March 23, 1956, the Philippine Supreme Court, through Mr. Justice Felix Angelo Bautista, held that the modern trend is to consider adoption not merely an act to establish a relationship of paternity and filiation, but also an act which endows the child with a legitimate status. A second purpose „of adoption was given in the case of Yfiigo v. Republic, G.R. L-6294, namely to supply solace to those who have no children or to those who have lost them, so that the void which exists in a childless home may be filled. Under Art. 183 of the Family Code, “a person of age and in possession of full civil capacity and legal rights may adopt, provided he is in a position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family. Only minors may be adopted, except in the cases when the adoption of a person of majority age is allowed. In addition, the adopter must be at least sixteen years older than the person to be adopted, unless the adopter

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307

is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted.”

CONFLICTS RULES ON ADOPTION (1)

Whether or not the status of adoption has been created depends on the national law of the adopter. (See Art. 15, Civil Code; see also Cheshire, Private International Law, p. 524).

(2)

If the adoption takes place in the Philippines, our country’s procedural requisites must be complied with in accordance with the theory of lex fori in procedural matter. NOTE: In the case of Ynigo v. Republic, L-6294, June 28, 1954, the Supreme Court held that in this country, adoption (or paternity and filiation by fiction of law) cannot be allowed without judicial approval.

(3)

In the Philippines the following, among others, are not given the right to adopt:

Art. 184 of the Family Code provides that the following persons may not adopt: (1)

The guardian with respect to the ward prior to the approval of the final accounts rendered upon the termination of their guardianship relation;

(2)

Any person who has been convicted of a crime involving moral turpitude;

(3)

An alien, except: a.

A former Filipino citizen who seeks to adopt a relative by consanguinity; People v. Judge Tolentino G.R. 94147, June 8, 1994

FACTS:

Alvin, natural born US citizen, and his wife Evelyn, natural born Filipina who in 1988 became naturalized US citizens, jointly filed in 1990 a petition for adoption of Solomon, Evelyn’s 12-year old brother.

ISSUE:

Are Alvin and Evelyn qualified to adopt Solomon?

«

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PHILIPPINE CONFLICT OF LAWS

HELD:

No. An alien who may adopt a Filipino is one who is a former Filipino citizen seeking to adopt a relative by consanguinity, or one seeking to adopt the legitimate child of his or her Filipino spouse, or one who is marned to a Filipino citizen seeking to adopt jointly with his or her spouse a relative by consanguinity of the latter. Alvin is not a former Filipino citizen. Solomon is neither his relative by consanguinity nor the legitimate child of his spouse. When the petition was filed, Evelyn was no longer a Filipino citizen. While she may appear qualified (former Filipino adopting a relative), adoption cannot be granted in her favor alone because the law mandates joint adoption by husband and wife. (Art. 184, par. 3 (a) and Art. 185 of the Family Code [Executive Order 209]).

b.

One who seeks to adopt the legitimate child of his or her Filipino spouse; or

c.

One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter. Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on intercountry adoption as may be provided by law. [NOTE: “Consaguinity” is kinship; blood relationship; the connection or relation of persons descended from the same stock or common ancestor. Consanguinity is distinguished from affinity, which is the connection existing in consequence of a marriage, between each of the married persons and the kindred of the other. (Black’s Law Dictionary, abridged fifth ed., p. 159). Lineal consanguinity is that which subsists between persons of whom one is descended in a direct line from the other, as between son, father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between son, grandson, great-grandson, and so downwards in the direct descending line. (Ibid.)

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Collateral consanguinity is that which subsists between persons who have the same ancestors, but who do not descend (or ascend) one from the other. Thus, father and son are related by lineal consanguinity, uncle and nephew by collateral consanguinity. (Ibid.) Upon the other hand, affinity is distinguished into three (3) kinds: (1)

Direct, or that subsisting between the husband and his wife’s relations by blood, or between the wife and the husband’s relations by blood;

(2)

Secondary, or that which subsists between the husband and his wife’s relations by marriage; and

(3)

Collateral, or that which subsists between the husband and the relations of his wife’s relations. (Ibid., p. 29).] Joseph K. Katancik v. Republic L-15472, June 30, 1962

FACTS:

An American staff-sergeant of the United States Air Force at Clark Field, Pampanga, petitioned for the adoption of a child named Joseph Agullo. He was scheduled to serve in the Armed Forces for three more years, after which he expected to remain as a civilian employee in the Air Base. He manifested his intent to reside in the Philippines permanently.

HELD:

Since his stay in the Philippines is merely temporary and conditioned on his assignment in Clark Field, he is considered a non-resident alien, and, therefore, incapacitated to adopt. (See also Caraballo v. Republic, L-15080, April 25, 1962, the Court explained: “A foreigner who has a business or interest therein or property located in a country or state and goes and stays in that country or state to look after his business or property or to check up on the manner or way his business or property is being conducted or run by his manager but does not

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PHILIPPINE CONFLICT OF LAWS

intend to remain in the country indefinitely cannot be a resident of such country. Actual or physical presence or stay of a person in a place, not of his free and voluntary choice, and without intent to remain there indefinitely, does not make him a resident of the place.”) (See also Ellis v. Republic, L-16922, April 30, 1963). [NOTE: It would seem that the Court wants the adopter to be a HABITUAL RESI­ DENT or a DOMICILIARY of our country. Observe, however, that under Art. 50 of the Civil Code domicile means habitual residence implying that there can be residence other than habitual.]

*

[NOTE: In the Caraballo case, the Court explained the reason for disqualifying non­ resident aliens from adopting in our country. “Looking after the welfare of a minor to be adopted, the law has surrounded him with safeguards to achieve and insure such welfare. It cannot be gainsaid (denied) that an adopted minor may be removed from the country by the adopter, who is not a resident of the Philippines, and placed beyond the reach and protection of the country of his birth.”] (NOTE: May not a resident alien also change his residence and go elsewhere, taking along the child with him?)

„

(4)

[NOTE: In the Child and Youth Welfare Codf^an alien is no longer disqualified simply because he is a non-resident. An alien is not allowed to adopt if “disqualified to adopt according to the laws of his own country,” or he is an alien “with whose Government the Republic o f the Philippines has broken diplomatic relations.” (Art. 28, Child and Youth Welfare Code, P.D. 603).]

In the Philippines also, an alien with whose govern­ ment the Republic of the Philippines has no diplomatic relations may NOT be adopted. (See Art. 187, No. 2, Family Code).

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NOTE: This rule apparently has a Filipino citizen as the would-be adopter. The rule is obviously premised on the belief that if a Filipino adopts an alien, the adopted becomes a Filipino. The premise has been considered by our Supreme Court as false: in the case of ChingLengv. Galang, L-11931, Oct. 27, 1958, the Court held that in our country adoption by a Filipino of a foreigner does not confer upon the adopted child Philippine citizenship. However, regardless of this wrong premise, it would seem that the prohibition still stands, for despite (and perhaps precisely because of) the non-attaining of Philippine citizenship, there is still the possibility that should adoption be allowed, the adopted child may be tempted by reason o f blood to commit acts of sabotage and espionage against the Philippine government. It would follow, however, that the prohibition should only be'feasible in case the adopter be a Filipino. Should the adopting parent be also an alien, there is no plausible reason for the prohibition to remain, particularly if no similar restriction be found in the national law of the would be adopter. (See Art. 15, Civil Code). Adoption should generally be encouraged in view of the natural need it aims to fulfill, and this would particularly be true when no outstanding public policy of the forum would be outraged. As has already been said the national law of the adopter should generally govern the question of whether or not; adoption may be allowed. (See Rabel, Conflict of Laws, Vol. I, p. 641). (5)

■a

The rights and obligations of the adopter and the adopted are governed by the national law of the adopter. (See Art. 15, Civil Code, and by inference, Ching Leng v. Galang, supra.) If a Chinese child, for example, is adopted by a Filipino, the adopted does NOT become a Filipino, for under Philippine law (the national law o f the adopter) adoption of a foreigner does not grant said foreigner Philippine citizenship. (Ching Leng v. Galang, supra.) Ching Leng v. Galang G.R. No. L-11931, Oct. 27, 1958 FACTS:

Ching Leng, a Chinese was granted Philippine

312

PHILIPPINE CONFLICT OF LAWS

**

citizenship on May 2, 1950 by the Court of First Instance (Regional Trial Court) of Rizal. Later, his wife filed a petition for the adoption of his five illegitimate minor children. The adoption was allowed. Ching Leng then requested the Commissioner of Immigration for the cancellation of the alien certificates of registration of said minors on the theory that they were now Filipino citizens. Commissioner of Immigration Galang denied the request ; ' citing Opinion No. 269 of the Secretary of 1 Justice dated Oct. 9, 1954, which ruled that adoption does not effect a change of nationality of the adopted. Ching Leng then filed this action to compel Galang to cancel said alien certificates.

HELD:

The alien certificates of registration will not be cancelled because the adopted children have NOT become Filipinos, in view of the following reasons:

(a)

While generally an adopted child has the rights of a legitimate child, still citizenship is not a right but a mere privilege;

(b)

Granting that citizenship is a right, it is not enumerated as such as among the rights of legitimate children, and therefore is not one of those alluded to in the Civil Code (now Family Code);

(c)

Acquisition of citizenship partakes of the character of naturalization and this matter is regulated not by the Civil Code but by special laws. (Art. 49, Civil Code);

(d)

Under Sec. 15 of the Revised Naturalization Law, the words “minor children” refer generally to legitimate children of the mother for in the latter case, they follow her nationality, not that of the illegitimate father;

(e)

If adoption by a natural-born Filipino does not vest Philippine nationality in the adopted child, there is no plausible reason why adoption by a naturalized Filipino should have a more far-reaching effect; and

PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP AND FUNERALS

(f)

313

If adoption can confer Philippine nationality on the adopted, many people will resort to this method rather than to the more difficult process of formal naturalization proceedings.

[NOTE: Whether or not the illegitimate Chinese children in this case continued to be regarded as Chinese by China is a matter that of course depends on Chinese law. What is clear is that under our law, they are not Filipino citizens.) (6)

The law that governs the successional rights of an adopted child is the national law of the deceased, not the national law of the heir. (Art. 16, par. 2, Civil Code). Similarly, the law that determines the capacity of the adopted child to inherit is also the national law of the deceased. (Art. 1039, Civil Code).

VALIDITY OF FOREIGN DECREES RESPECTING ADOPTION Should the Philippine courts recognize a foreign decree concerning adoption? Unfortunately up to now there has been no legal provision or court decision which has answered this question. Examining the Private International Law of other countries, we discover that whereas some countries do give recognition (as in Argentina or Portugal) others upon the other hand, are reluctant to give recognition unless similar adoption proceedings are undertaken in their own countries (as in England). (See Rabel, Conflict of Laws, Vol. I, pp. 646-647). It would seem, however, from our Rules of Court that there is nothing to prevent our tribunals from recognizing a foreign decree of adoption so long as the court granting the same was vested with jurisdiction and so long as the judgment is meritorious and was arrived at impartially, and there was no collusion or extrinsic fraud. (See Sec. 50, Rule 39, Rules o f Court). This is particularly true if both the adopter and the adopted are nationals and domiciliaries of the forum that decreed the adoption. (See Rabel, Conflict of Law^, Vol. I, p. 647). In case we do recognize the foreign adoption, what effect should we give to it? In general, we should give to the decree the same effect as would be given by the national law of the adopter, inasmuch as adoption is a STATUS (See Art. 15, Civil Code) unless naturally

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PHILIPPINE CONFLICT OF LAWS

said effect would come under any of the exceptions to the application of the proper foreign law. Be it noted, however, that in the United States, a foreign adoption is given generally the effect of a local (not a foreign) adoption. (Sec. 143, American Restatement on the Conflict of Laws).

GUARDIANSHIP The rule is well-settled that there are generally three kinds of guardians: guardians over the person; guardians over the property; and general guardians (over BOTH the person and the property of the wards). From another point of view there are also the domiciliary guardians (appointed by the courts of the domicile of the wards) and the ancillary guardians (those appointed elsewhere).

GUARDIAN OVER THE PERSON Guardians over the person are appointed generally by the courts where the ward is domiciled. Their powers are coextensive with the authority of the appointing court, that is, they exercise powers that usually are recognizable only in the country which appointed them. Hence, a guardian as such is not permitted to sue in other jurisdictions unless his guardianship is also recognized in such foreign courts. However he may litigate in his own indivi­ dual or private capacity. (See Grimmett u. Whitherington, 66 Ark. 377.)

GUARDIAN OVER THE PROPERTY In accordance with the lex rei sitae rule, guardians over the property are appointed by th#fcourt where the property of the ward may be found; their powers are fixed by the appointing court, and cannot have extraterritorial application. Should the ward have properties in foreign states, ancillary guardianship proceedings are imperative. (See Minor, Conflict of Laws, p. 258).

GENERAL GUARDIANS A general guardian can generally be appointed only by a court of the country where the ward is domiciled and where the properties are located. His powers are coextensive with those of the court that designated him as such.

PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP AND FUNERALS

315

GUARDIANSHIP RULES IN THE PHILIPPINES Any relative, friend, or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor himself if fourteen years of age or over, may petition the court having jurisdiction for the appointment of a general guardian for the person or estate or both, of such minor or incompetent. (Sec. 1, Rule 93, Rules o f Court). When a person liable to be put under guardianship resides without (outside) the Philippines but has estate therein, any relative or friend of such person, or any one interested in his estate, in expectancy or otherwise, may petition a court having jurisdiction for the appointment of a guardian for the estate, and if after notice given to such person and in such manner as the court deems proper, by publication or otherwise, and hearing the court is satisfied that such non-resident is a minor or incompetent rendering a guardian necessary or convenient, it may, appoint a guardian for such estate. (Sec. 6, Rule 93, Rules of Court). This particular section does not apply to one who is travelling abroad and is therefore merely temporarily absent from the Philippines. (Yangco v. Court o f First Instance of Manila, 29 Phil. 183). A guardian appointed shall have the care and custody of the person of his ward, and the management of his estate, or the management of the estate only, as the case may be. The guardian of the estate of a non-resident shall have the management of all the estate of the ward within the Philippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the guardianship. (Sec. 1, Rule 96, Rules of Court). Bar QUESTION: The Court of First Instance (now Regional Trial Court) of La Union in a special proceeding appointed X a guardian of Y, a minor, beneficiary of arrears in pay, insurance, and other benefits from the U.S. Veterans Administration due to the death of his father, supposedly a member of the U.S. Armed Forces. A few years later, a motion was filed by the Administrator of Veterans’ Affai^g seeking a refund of sums allegedly wrongfully paid to the minor, its records in Washington showing that the father had no guerilla or other service in the Armed Forces of the United States. To the opposition of the guardian who submitted evidence of the father’s service records, the Administrator replied that under U.S. Law his decision is final and conclusive and that, therefore, the

316

PHILIPPINE CONFLICT OF LAWS

Philippine court was without jurisdiction. Decide the case with reasons. ANSWER: Clearly, the Philippine court has jurisdiction. In all questions of jurisdiction, it is the court of the forum that determines whether or not it possesses jurisdiction. To apply a foreign law on this matter would be to infringe on our national sovereignty. While it may be true that the provisions of the U.S. Code make the decisions of the U.S. Veterans’ Administrator final and conclusive when made on claims properly submitted to him for resolution, |£ill provisions are not applicable to cases where, as the one at bar, the Administrator is not acting as a judge but as litigant. There is a great difference between actions AGAINST the Administrator (which must be filed strictly in accordance with the conditions that are imposed by the Veterans’ Act, including the exclusive review by U.S. Courts), and those actions where the Veterans’ Administrator SEEKS A REMEDY from the Philippine Courts and submits to their jurisdiction by filing an action therein. If the findings of the Veterans’ Administrator, in actions where he is a party, are made conclusive on Philippine Courts, this in effect would deprive our tribunals of judicial discretion, and render them mere subordinate instrumentalities of the Veterans’ Administrator. (In Re Guardianship o f the Minor Yay Reginald Lelina, Viloria Severn v. Administrator o f Veterans’ Affairs, L-9620, June 28, 1957).

FUNERALS The incidents of funerals are governed by the law of the country where the body is to be buried. If the burial of a foreigner will take place in this country, our laws have to be complied with. Under the Civil Code, the duty and the right to make arrangements for the funeral of a relative devolve on the persons obliged to support the deceased while ?till alive. (Art. 305). Every funeral shall be in keeping with the social position of the deceased. (Art. 306) . The higher the social standing of the deceased in life, the more dignified and expensive should his funeral be, as a general rule. Prohibited, nonetheless, is pompous and elaborate funeral of a criminal on whom the DEATH penalty has been inflicted. (Art. 85, Revised Penal Code). Incidental to funerals are the so-called “funeral expenses,” i.e., the money expended in procuring the interment, cremation, or other disposition of a corpse, including suitable monument, perpetual care of burial lot and entertainment of those participating in the

PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP AND FUNERALS

317

wake. (Black’s Law Dictionary, abridged fifth ed., p. 344). Nonetheless, paupers should not be denied the benefit of a proper funeral. The Supreme Court in Hon. Jejomar C. Binay & The Mun. of Makati v. Hon. Eufemio Domingo, o f the Commission on Audit, G.R. No. 92389, Sept. 11, 1991, speiaking thru Justice Edgardo Paras in an en banc decision, held: “Resolution No. 60, reenacted under Resolution No. 243, of the Municipality of Makati, is a paragon of the continuing program of our government towards social justice. The Burial Assistance Program is a relief of pauperism, though not complete the loss of a member of a family is a painful experience, and it is more painful for the poor to be financially burdened by such death. Resolution No. 60 vivifies the very words of the late President Ramon Magsaysay, those who have less in life, should have more in law.”

Chapter XIX REAL AND PERSONAL PROPERTIES

SYNOPSIS OF CONFLICTS RULES ON PROPERTY FACTUAL SITUATION

POINT OF CONTACT

(1) Real property (extrinsic and intrinsic validity of alien­ ations, transfers, mort­ gages, capacity of parties, interpretation o f docu­ ments, effects of ownership, co-ownership, accession, usufruct, lease, easement# police power, eminent domain, taxation, quieting of title, registration, and prescription).

(1) lex rei sitae (Art. 16, par. 1, Civil Code)

Exceptions:

Exceptions:

(a) successional rights

(a) national law of dece­ dent (Art. 16, par. 2, Civil Code).

(b) capacity to succeed

(b) national law of decedent (Art. 1039, Civil Code).

(c) contracts involving real property but which do not deal with the title thereto

(c) the law intended will be the proper law of the contract (lex loci volun­ tatis or lex loci intentionis).

318

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REAL AND PERSONAL PROPERTIES

(d) contracts where the real property is given as security

(d) the principal contract (usually loan) is gov­ erned by the proper law of the contract — (lex loci voluntatis or the lex loci intentionis). NOTE: The mortgage itself, however, is governed by the lex rei sitae. There is a possibility that the prin­ cipal contract is valid but the mortgage is void; or it may be the other way around. If the principal contract is void, the mort­ gage would also be void (for lack of proper cause or consideration), although by itself, the mortgage could have been valid. s

(2) Tangible Personal Property (chooses in possession) (a) in general (see the things enumerated in No. 1).

(a) lex rei sitae (Art. 16, par. 1, Civil Code).

(Exceptions — same as those for real property (see No. 1)

Exceptions — same as those for real property except that in the example concerning the m ortgage the same must be changed to a pledge o f personal property.

(b) means of transport­ ation 1) vessels

(b) 1) law of the flag (or in some cases of the place of registry)

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PHILIPPINE CONFLICT OF LAWS

2) other means

2) law of the depot (storage place for supplies) or resting place

(c) thing in transitu (these things have a changing status because they move)

(c)

1) loss, destruction, v#. deterioration

1) law o f the desti­ nation (Art. 1753, Civil Code).

2) validity and effect of the seizure of the goods

2) locus regit actum (where seized) — because said place is their temporary situs

3) disposition or alien­ ation of the goods

3) lex loci voluntatis or lex loci intentionis because here there is a contract

(3) Intangible Personal Property (Choses in action) (a) recovery of debts or involuntary assignment of debts (garnishment) (b) voluntary assignment of debts

(3) (a) where debtor may be effectively served with summons (usually the domicile) (b) lex loci voluntatis or lex loci intentionis (proper law of the contract) Other Theories: 1) national law of the debtor or creditor 2) dom icile o f the debtor or the cre­ ditor 3) lex loci celebrationis 4) lex loci solutionis

(c) taxation of debts

(c) domicile of creditor

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REAL AND PERSONAL PROPERTIES

(d) administration of debts

(d) lex situs of assets of the debtor (for these assets can be held liable for the payment o f the debts)

(e) negotiability or non­ negotiability of an in­ strument (bill of ex­ change, for example)

(e) the right embodied in the instrum ent (for example, in the case of a Swedish bill of ex­ change, Swedish law determines its negotia­ bility)

(f) validity of transfer, delivery or negotiation of the instrument

(f) in general, situs of the instrument at the time of transfer, delivery or negotiation

(g) effect on a corporation of the sale of corporate shares

(g) law of the place of incorporation

(h) effect between the parties of the sale of corporate shares

(h) lex loci voluntatis or lex loci intentionis (proper law of the contract) — for this is really a con­ tract; usually, this is the place where the certificates is deliver­ ed

(i) taxation on the divi­ dends of corporate shares

(i) law of the place of incorporation

(j) taxation on the income from the sale of corpo­ rate shares

(j) law of the place where the sale was consum­ mated

■('k) franchises

(k) law of the place that granted them

(1) goodwill of a business and taxation thereon

(1) law of the place where the business is carried on

#

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PHILIPPINE CONFLICT OF LAWS

(m) patents, copyrights, trademarks, trade names

(m) in the absence of a treaty, they are protect­ ed only by the state that granted them. NOTE: Foreigners may sue for infringement of trade­ marks and trade names in the Philippines only if Filipinos are granted reci­ procal concessions in the state of the foreigners.

REAL PROPERTY It is axiomatic that almost everything concerning real property should be governed by the law of the place where the property is situated (Art. 16, par. 1, Civil Code). This rule of lex situs or lex rei sitae is universally recognized. (Cheshire, Private International Law, p. 712). The reason for the rule is obvious: real property, particularly and , is PART of the country where it is located; its immovability makes it logical that it shall be subject to the laws of the States where it is found; contrary rules in foreign States can not certainly be given effect unless the SITUS so allows. (See Beale, Conflict of Laws, Vol. II, p. 938). As Wolff has so aptly pointed out: “As the place where a thing is situated is the natural center o f rights over it, everybody concerned with the thing may be expected to reckon with the law of such place.” (Wolff, Private International Law, p. 564). *

SCOPE OF THE RULES IN THE CASE OF REAL PROPERTY The theory of lex sitae governs the following things connected with real property: the extrinsic validity of alienations, transfers, mortgages, capacity of the parties, interpretation of documents, effects of ownership, co-ownership, accession, usufruct, lease, easement, police power, eminent domain, taxation, quieting of title, registration and prescription.

REAL AND PERSONAL PROPERTIES

323

Example: A Japanese donated in Germany in favor of a Filipino a parcel of land in the Philippines. (a)

The law of which country governs the formalities of the donation? Why?

(b)

The law of which country governs the capacity of the Japanese to make the alienation? Why?

(c)

The law of which country governs the intrinsic validity of the donation? Why?

Answers: (a)

The law of the Philippines — the lex rei sitae governs the formalities of the donation. (Art. 16, par. 1, Civil Code). The lex loci celebrationis doctrine enunciated under Art. 7, par. 1 of the Civil Code doesn’t apply because the transaction relates to land and must, therefore, be governed by the law of the place where the land is situated.

(b)

The law of the Philippines — the lex rei sitae — governs the capacity o f the Japanese to alienate. (Art. 16, par. 1, Civil Code). Here the doctrine of national law under Art. 15 of the Civil Code yields precisely because the subject matter is land.

(c)

The law of the Philippines the — lex rei sitae governs the intrinsic validity of the donation. (Art. 16, par. 1, Civil Code). The general rule of lex loci voluntatis (law of the place voluntarily agreed upon) or lex loci intentionis (law of the place intended) yields to the lex rei sitae rule because the subject matter is land. Swank v. Hufnagle 111 Ind. 453

FACTS: ••

In the State of Ohio a married woman named Hugnagle executed a mortgage on land owned by her and situated in the State of Indiana. Under Ohio law, the mortgage was valid; but under Indiana law, it was void or lack of capacity. How should the mortgage be con­ sidered?

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PHILIPPINE CONFLICT OF LAWS

HELD:

The mortgage should be regarded as VOID because “the validity of the mortgage of real property is to be determined by the law of the place where the property is situated.”

EXCEPTIONS TO THE RULE IN THE CASE OF REAL PROPERTY There are at least four (4) exceptions to the rule that the lex rei sitae governs real property: (1)

In the case of succession rights to real property, what should control is the national law o f the deceased. (Art. 16, par. 2, Civil Code);

(2)

Capacity to succeed (in inheritance problems) is also governed by the national law of the deceased. (Art. 1039, Civil Code); Example: A Turkish citizen died leaving parcels of land in the Philippines. How should our court distribute the successional rights of his heirs to said real property? Suppose one of the compulsory heirs is a Chinese, what law governs the capacity of this Chinese heir to inherit land in our country? Answer: The successional rights of the heir to the parcels of land in the Philippines shall be governed not by the lex rei sitae but by the national law of the deceased, that is, by Turkish law. (See Art. 16, par. 2, Civfl Code). Similarly, the capacity of the Chinese heir to inherit Philippine realty is also determined by Turkish law for this is the decedent’s national law. (Art. 1039, Civil Code).

(3)

Contracts involving real property but which do not deal with the title to such real property shall not necessarily be governed by the lex rei sitae. The proper law of the contract — which is the lex loci voluntatis or the lex loci intention is should be regarded as controlling. (See Beale, Conflict o f Laws, Vol. 11, p. 1216; see also Goodrich, Conflict of Laws, p. 548).

•REAL AND PERSONAL PROPERTIES

325

Example: In Manila, a German, owning land in Switzer­ land, agreed to pay as salary to a Japanese employee, 10% of the annual produce of the land in Switzerland, on condition that said land would not be expropriated by the Swiss authorities. It was the mutual desire of both parties that the stipulation of their employment contract should be governed by Philippine laws. What law governs the extrinsic and intrinsic validity of their agreement? Answer: The extrinsic validity of the agreement is governed by Philippine law because the contract was celebrated in our country. The intrinsic validity shall also be determined by Philippine law for this was likewise the lex loci voluntatis. The fact that the contract involved land located in Switzerland is of no moment, for the agreement does not concern itself with any transfer of title thereto, at least as between the parties. The fact that this case deals with foreign land in a way is merely incidental. (See for reference Liljedahl v. Glassgow, 180 Iowa, 827). (4)

In contracts where real property is given by way of security, the principal contract (which is generally the contract of loan) is governed by the proper law of the contract; the accessory contract of mortgage is, of course, governed by the law of the state where the real property mortgage is situated. (An “accessory contract” is made for assuring the performance of a prior contract, either by the same parties or by others — such as suretyship, mortgages, and pledge. (Black’s Law Dictionary, abridged fifth ed., p. 6.) (a)

If the principal contract is valid (as tested by the lex loci voluntatis or the lex intentionis), the validity of the accessory contract of mortgage is still to be determined by the lex rei sitae. If the mortgage is void by the lex rei sitae, the principal contract can still remain valid.

(b)

If, upon the other hand, tested by the lex loci voluntatis or the lex loci intentionis, the principal

PHILIPPINE CONFLICT OF LAWS

326

contract of loan is VOID, the mortgage would undoubtedly be also VOID (for the accessory loses standing should the principal be invalid), even if considered independently by itself the mortgage would have been regarded as VALID by the lex rei sitae. (See Goodrich, Conflict o f Laws, p. 467). Examples: (a)

Two Englishmen in England entered into a contract of loan, with Philippine land as security by way of mortgage. The contract of loan should be tested by English law since this is the proper law of the contract. If the loan is valid, it does not necessarily follow that the mortgage is also valid. The mortgage will, of course be also valid if it complies with the Philippine law on mortgages. But if, for instance, the debt or mortgagor in England was only the lessee of the Philippine land, the mortgage would be VOID under our law for here it is essential that the mortgagor be the OWNER of the land mortgaged.

(b)

Two Frenchmen in France entered into a contract of loan, with Philippine land as security by way of mortgage. Let us assume that in France, a contract of loan to be valid must be in a public instrument; in the Philippines, it does not have to be. Now then, if the contract of loan and the contract of mortgage are in a private instrument, can the mortgage be enforced in the Philippines?

Answer: Since^,. the contract of loan is in a private instrument and therefore VOID in France (which is ' the proper law of the contract of loan), the contract of mortgage is rendered automatically also VOID in our country — for when a principal contract fails, all the accessory obligations are also considered void. And this is true despite the fact that the mortgage standing by itself would have been deemed valid by Philippine laws. (An “accessory obligation” is one incidental to another or principal obligation; e.g., the obligation o f a mortgage. (B lack’s Law Dictionary, abridged fifth ed., p. 6).]

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THE RULES FOR PERSONAL PROPERTY In many states there are one set of conflicts rules for real property and one set for personal property. This was also true in the Philippines under the old Civil Code: real property was governed by the lex situs; personal property, by the national law of the owner in accordance with the principle of mobilia sequuntur personam (movable property follows the law of the owner). Many practical difficulties had to be encountered because of conflicts o f characterization of property into real and personal. The new Civil Code has to a very great extent simplified the problem by decreeing the concept of lex rei sitae applicable to BOTH real and personal property. Thus, Art. 16, par. 1 of the new Civil Code says: “Real property as well as personal property is subject to the law of the country where it is situated.”

RATIONALE FOR THE DOCTRINE AS APPLIED TO PERSONAL PROPERTY The old rule of “mobilia sequuntur personam” grew up in the Middle Ages when movable property could easily be carried from place to place. (Pullman's Palace Car Co. v. Comm, o f Pennsylvania, 141 U.S. 1822). Several reasons were set up to justify the doctrine of personal law following the property: (1)

Firstly, since personal property has no fixed situs, an artificial one must be created: this artificial situs should be the personal law of the owner;

(2)

Secondly, the rule is simple, and would apply wherever the location of personality; and

(3)

Thirdly, the rule is more stable, since the rule would remain despite the change location of the movable. (See Story Commentaries on the Conflict o f Laws, p. 376).

The doctrine of “mobilia sequuntur personam” has met severe criticism from various writers: (1)

WOLFF says that the rule results in instability or the personal law of the owner may also change;

(2)

SCHMITTHOFF remarks that the rule requires a useless and irrelevant inquiry into the transferor’s personal law — a law which the transferee may not at all be acquainted with or interested in;

^

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(3)

CHESHIRE ventures the opinion that the rule results in injustice-, and

(4)

BEALE mercilessly points out that “It has proved to be the refuge for a judge in a hurry, confronted with the difficult situation; and indeed like all maxims; it serves celerity (swiftness) rather than soundness o f thought.” (Beale, Conflict o f Laws, Vol. I, p. 978).

Decidedly, the rule of lex rei sitae has been adopted not only for real but also for personal property. In the words of Senator Lorenzo Tanada, “now that there has been great increase in the amount ancfvariety of personal property not immediately connected with the person of the owner (Wharton, Conflict o f Laws, Secs. 297311). it was deemed advisable by Congress of the Philippines to adopt the doctrine of lex rei sitae also to movables.” (Report of Senator Tanada, Chairman, Special Committee on the New Civil Code). Today, in many states, the theory of lex rei sitae has also been adopted for personal property. Various reasons have been given for this adoption, but it seems that the chief argument in its favor lies in the fact that the situs is easily ascertainable, making it convenient and fair for both the immediate parties and third persons, who maybe affected by rights in rem in the property (See Wolff, Private International Law, p. 564), and who are, therefore, interested in having these rights enforced and rendered effective by the state which logically (by reason of LOCATION) possesses the jurisdiction to issue the necessary legal and coercive process. (See Goodrich, Conflict of Laws, p. 470).

SCOPE OF THE THEORY FOR PERSONAL PROPERTY The doctrine of lex sitifs, with reference to personal property, extends in general to all the relations and situations already adverted to in the case of real property. Similarly, the exceptions to the rule in the case of immovables apply to problems in personal property. Even the examples of the exceptions are the same, except of course that the example of the mortgage should be modified to one of pledge o f personalty. (See preceding discussion on Real Property). In addition to the general rule, certain specific modifications have to be called into play in view of the very nature of movable property).

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Personal property may be tangible or intangible. The tangibles are more appropriately referred to as CHOSES IN POSSESSION and the intangible are more accurately known as CHOSES in ACTION (such as shares of stock, franchises, and copyrights). With reference to CHOSES IN POSSESSION, the doctrine of “lex rei sitae” presents no difficulty except perhaps in the case of usually moving objects (such as ships and goods in transit). CHOSES IN ACTION, however, sometimes present complicated problems.

‘CHOSE’ DEFINED The term “chose” is a thing, an article of personal property. A chose is a chattel personal, and is either in action or in possession. (Black’s Law Dictionary, abridged fifth ed., p. 125). Chose in action is a thing in action and is the right of bringing an action or right to recover a debt or money. This means any or all of the following: (1)

Right of proceeding in a court of law to procure payment of sum of money, or right to recover a personal chattel or a sum of money, or right to recover a personal chattel or a sum of money by action;

(2)

A personal right not reduced into possession, but recover­ able by a suit at law;

(3)

A right to personal things of which the owner has not the possession, but merely a right of action for their possession;

(4)

The phrase “chose in action” includes all personal chattels which are not in possession, and all property in action which depends entirely on contracts express or implied;

(5)

A right to receive or recover a debt, demand, or damages on a cause of action ex-contractu or for a tort or omission of a duty. (Black’s Law Dictionary, abridged fifth ed., p. 125).

Chose in possession is a personal thing of which one has possession, as distinguished from a thing in action. Taxes and customs, if paid, are a chose in possession; if unpaid, a chose in action. (Ibid.).

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CHOSES IN POSSESSION THAT USUALLY MOVE Choses in possession that usually move (like means of transportation and goods in transitu) naturally have a changing situs. Vessels, in view of their inherent movability, are governed by the LAW OF THE FLAG in many states; in others, the LAW OF THE PLACE OR REGISTRY takes the place of the lex rei sitae. Said law of the flag or the registry — as the case may be — is deemed controlling in case for instance of the sale or mortgage of the vessel if the vessel at the time of the transaction is on the HIGH SEXS. If the vessel, however, is docked at a foreign port, said port is usually regarded as the temporary lex situs by both the owner and third parties. (See Wolff, Private International Law, pp. 529-530). Regarding GOODS IN TRANSITU, the following rules generally should be regarded as applicable: (1) Liability for loss, destruction, or deterioration of goods in transitu is governed by the law o f the destination. Art. 1753 of the Civil Code provides that: “The law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction or deterioration.” If, in the course of the voyage the destination is changed, it is evident that the law of the new destination applies; if, upon the other other hand, the goods were never shipped, they never were in transitu and Art. 1753 cannot be made use of, and consequently the controlling law would be that of the actual situs.

Bar Question If, in a contract, certain limitations of liability as to the negligence on the part of the carrier are agreed upon, can the carrier invoke this clause of the contract at the point of destination, the laws thereof as well as those of the place, where the contract was made, permitting such limitations, if the damage and negligence of the carrier which caused such damage occurred while the merchandise was in transit in a state which did not recognize the validity of such stipulation? Answer. Yes, the carrier can invoke the clause in question. It does not matter that in the state where the damages occurred the stipulation is not recognized. What is important is the recognition given to the stipulation at the place of destination.

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Art. 1753 of the Civil Code provides that the law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction, or deterioration. (2) The validity aiid effect of the seizure of goods in transitu are governed by the law of the place where they were seized (locus regit actum) because this place was their temporary situs. (3) The disposition or alienation of the goods in transitu is generally governed by the law of the place voluntarily agreed upon (lex loci voluntatis), or the law of the place intended (lex loci intentionis). The reason is evident: the disposition or alienation is effected thru a contractual obligation. In some states, however, the transfer of title to chattels is governed by the law of the place of the chattels at the time of the transfer; and this title once accrued will ordinarily be recognized in any state into which the chattels are brought. (Emery v. Clough, 63 New Hampshire 552).

INTANGIBLE PERSONAL PROPERTY (CHOSES IN ACTION)

(1) For the recovery of debts or for the involuntary assignment of the debts (garnishment) the proper point of contact is the place where the debtor may be effectively served with summons (usually, but not always, this is the domicile of the debtor). Examples: (a)

A German, domiciled and found in California, owes a Filipino in Manila an amount of money. Generally, where should the Filipino sue for the recovery of the debt? Answer-. Generally suit must be instituted in California because the debtor is domiciled and found there; however, should he be in Japan, for instance, litigation may be commenced in the latter country. This is a convenient and practical solution.

(b) „

A Cuban, domiciled in Florida but found in New York owes by final judgment a Filipino in Manila a sum of money. The Cuban, however, has in the meantime no money; upon the other hand, he is the creditor of a Frenchman domiciled in Indonesia but now temporarily residing in Manila, where he is a university student. The Filipino creditor wants to file garnishment proceedings, that is, as a judgment creditor of the Cuban, he wants to

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attach the sum of money due the Cuban from the Frenchman so that said Frenchman may directly pay the money to him (the Filipino). May garnishment proceedings prosper in Manila? Answer-. Yes, because the Frenchman (the garnishee) is now in Manila where he may be effectively served with summons. This garnishment, if granted by the Court, operates as an involuntary assignment to the Filipino of the Frenchman’s debt (in favor of the Cuban); moreover, ''since the Filipino tribunal had effective jurisdiction, its assignment of the debt DISCHARGES the Frenchman’s liability. This discharge will generally be universally recognized. (Ibid). Indeed, it has been held that jurisdiction to reach by garnishment a claim due to one’s debtor rests upon jurisdiction over the garnishee. (Harris v. Balk, 198 U.S. 215). [NOTE: “Garnishment” is an ancillary remedy in aid of execution to obtain payment of a judgment whereby a person’s property, money, or credits in possession or under control of, or owing by, another are applied to payment of a former’s debt to a third person by proper statutory process against debtor and garnishee. (Black’s Law Dictionary, abridged fifth ed., p. 347].) (2) The validity and effectiveness of a voluntary assignment of a debt depends on the lex loci voluntatis or the lex loci intentionis; in other words, the proper law of the contract controls. (Cheshire, Private International Law, p. 599). Example-. A Filipino is the creditor of a German domiciled in Manila. The credit is the&result of a business transaction entered into in Manila; payment is stipulated to be made also in Manila. If the Filipino while vacationing in Japan assigns his credit in favor of a Russian, also domiciled in Manila, the proper law that should control the validity and the effectiveness of the assignment should be Philippine law, for it is evident that it is this law that the parties intended to be applicable (lex loci intentionis). After all, it is clear in the problem that Manila is the place which has the most substantial connection with the assignment. Other theories: (a)

One theory is that the controlling law is the national law of the debtor and the creditor if the forum adheres to the

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nationality principle; and the domiciliary law of the debtor and creditor if the forum is guided by the domiciliary principle. Otherwise stated, it is the personal law that should solve the problem of validity and effectiveness of the assignment. This theory is of difficult and impractical application when the personal law of the parties varies; furthermore, a needless investigation of the personal law would be inevitable, and business transaction would suffer. The rationale for the doctrine, however, is stated in the case of Harris v. Balk (198 U.S. 215), where the court batting for the personal law theory, ruled that “the obligation of the debtor to pay his debt clings to and accompanies him wherever he goes. He is as much bound to pay his debt in a foreign state when therein sued upon his obligation by his creditor, as he was in the state where the debt was contracted.” (b)

Another theory insists on the lex loci celebrationis of the assignment, that is, the law of the place where the voluntary assignment of the credit was made. (Goodrich, Conflict o f Laws, pp. 426-427; American Restatement, Secs. 348-350). Cheshire criticizes the theory on the ground that in a good number of cases the lex loci celebrationis may be purely accidental and is least connected with the credit that is assigned. (Cheshire, Private International Law, pp. 608-609). If this theory were correct, then, in the example given, Japanese law would govern the assignment simply because the act took place in Japan, while the creditor was vacationing there.

(c)

Finally there is the theory that it is the lex loci solutionis (law of the place of performance or law of the place whert payment may be asked of the debtor) that is controlling. (Westlake, A Treatise on Private International Law, p. 202). The inherent defect of this theory is the fact that there are many places where performance may be sought, namely, any state where the debtor may be served with summons. (See Cheshire, Private International Law, p. 598).

(3) The situs of a debt for purposes of taxation is the domicile of the creditor, and accordingly, the collectible credit may be taxed therein. (See Minor, Conflict of Laws, pp. 281-282). In our country, it should be noted that interests on debts are deductible from the gross income of the taxpayer.

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(4) For the purpose of administering debts, the situs is the place where the assets of the debtor are actuallly situated. An assignee in insolvency, for example, is required to take hold of the assets of the debtor for eventual distribution among the creditors: it is obvious that the lex situs of the properties will be the determining law. (See Minor, Conflict o f Laws, pp. 283-285). (5) The negotiability or the non-negotiability of an instrument (such as a bill of exchange) is determined by the right embodied in the instrument. (Wolff, Private International Law, p. 561). Thus, in the case of a Swedish bill of exchange it is Swedish law that determines whether or not it is negotiable; a Philippine cheque is governed by the Philippine Negotiable Instruments Law. In the United States, however, the American Restatement present a different criterion, namely, the place where the instrument was executed. (Sec. 348, American Restatement). (6) The validity of the transfer, delivery, or negotiation of the instrument is, in general, governed by the law of the situs of the instrument at the time of transfer, delivery, or negotiation. (See Cheshire, Private International Law, p. 622). NOTE: Under the Philippine Negotiable Instruments Law (Act No. 2031), “where a foreign bill (of exchange) appearing on its face to be such is DISHONORED by non-acceptance,, it must be duly PROTESTED for non-acceptance, and where such a bill which has not previously been dishonored by nonacceptance is DISHONORED by non-payment, it must be duly PROTESTED for non-payment. If it is not so protested, the drawer and indorsers are DISCHARGED. Where a bill does not appear on its face to be a foreign bill, protest thereof in case of dishonor is unnecessary.” (Sec. 153, Act No. 2031). (7) The effect on a corporation of the sale of corporate shares is governed by the law o f the place of incorporation. The reason is simple: to bind the corporation, the transfer must be recorded in its books. (Beale, Foreign Corporations, Sec. 376). Thus, in the case of a corporation incorporated in our country, no transfer of the share of stock “shall be valid, except as between the parties, until the transfer is recorded in the books of the corporation so as to show the names of the parties to the transaction, the date of the transfer, the number of the certificate or certificates, and the number of shares transferred.” (Sec. 63, Corporation Code). Until the transfer has been thus entered and noted on the corporate books, said transfer is not valid as to attaching or execution creditors of the

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assignor (TJnson v. Diosomito, 61 Phil. 535), unless said creditors actually knew or had notice of the unregistered transfer. (Fua Cun v. Summers, 44 Phil. 705). It should be noted, however, that what should be registered are transfer or absolute conveyance of the ownership in shares; therefore, registration in the corporate books of a chattel mortgage or a pledge of the corporate shares is NOT essential to bind the corporation or third parties so long as the requirements of the Chattel Mortgage Law and the law on pledge (as to effectivity on third parties) have been complied with. (Monserrat v. Ceron, 58 Phil. 261; Guan v. Samahang Magsasaka, 34 O.G. 2131; Bank of the P I. v. Caridad Estates, CA..-G.R. No. 16, O.G. Supp., Aug. 23, 1941, p. 265); (See E. Paras, et al. Corporate Law Practice and Litigation, 1994, pp. 366-367). (8) The effect between the parties of the sale of corporate shares is governed by the lex loci voluntatis or the lex loci intentionis (the proper law of the contract) — because this sale or transfer is really a contract. In many cases, the proper law of the contract is the place where the certificate is delivered. (Cheshire, Private International Law, p. 624). (9) Taxation on the dividends of corporate shares is governed by the law of the place of incorporation. Thus, it has been held that shares of stock of a foreigner, even if they are considered personal property under our law (Art. 417, No. 2, Civil Code) can be taxed in the Philippines. (See Wells Fargo Bank v. Coll. o f Int. Rev., 40 O.G. (85) No. 2, p. 159; 70 Phil. 325). Similarly, taxes may be imposed on dividends from shares in a gas corporation situated in the Philippines even if the stockholders do not reside here. (Manila Gas Corporation v. Coll., 62 Phil. 825). Situs of property, for tax purposes, is determined by whether the taxing state has sufficient contact with the personal property sought to be taxed to justify in fairness the particular tax. (Black’s Law Dictionary, abridged fifth ed., p. 721). A business situs is a situs acquired for tax purposes by one who has carried on a business in the state more or less permanent in its nature. This is a situs arising when tax certificates, for instance, are brought into the sta^g for something more than a temporary purpose, and are devoted to some business use there and thus become incorporated with the property of the state for revenue purposes. (Ibid.; p. 103). (10) Franchises are subject to the law of the place that granted them. The term “franchise” has several significations and there appears to be some confusion in its use. Generally, however, it is

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a special privilege conferred by the government on an individual or upon a corporation. (See People v. Utica Ins. Co., 8 Am. Dec. 243). With particular reference to corporations, the term “franchise” may refer either to the corporation itself (as a franchise belonging to the shareholders of the corporation) or to the different powers of a corporation (such as the franchise or the right of the corporation to hold and dispose of property) (See Pierce v. Emery, 32 N.H. 484) or the issuance of a bank note by an incorporated bank (see People v. Utica Ins. Co., supra). (A “franchise” has evolved into an elaborate agreement jander which the franchisee undertakes to conduct a business or sell a product or service in accordance with methods and procedures prescribed by the franchisor, and the franchisor undertakes to assist the franchisee thru advertising, promotion, and other advisory services. [Black’s Law Dictionary, abridged fifth ed., p. 336].) (11) The “goodwill” of a business, as well as taxation thereon, is governed by the law of the place where the business is carried on. Goodwill is the patronage of any established trade or business; the benefit acquired by an establishment beyond the mere value of the capital stocks, funds, or property employed therein in consequence of the general public patronage and encouragement which it receives from its customers. (See Menendez v. Holt, 128 U.S. 514). Under Art. 521 of the Civil Code, “the goodwill of a business is property, and may be transferred together with the right to use the name under which the business is conducted.” (12) Patents, copyrights, trademarks, and trade names are in the absence of a treaty protected only by the state that granted or recognized them. (Wolff, Private International Law, p. 558). A trademark is the name or symbol of goods made or manufactured (example: Guess); a trade name is the name or symbol of a store or business place (example: Rustan’s); a service mark is the name or symbol of services rendered (example: Federal Express) (See’ Sec. 38, Rep. Act No. 166, as amended which is our law on trademarks and trade names). Trademarks, trade names, and service marks must be registered at the Patents Office; if so registered, they are owned by and pertain to the person, corporation, or firm registering the same. (Art. 520, Civil Code). A certificate of registration of a trade name or a trademark is prima facie evidence of the validity of such registration, but the same may be rebutted. (People v. Lim Hoa, L-10612, May 30, 1958). Generally the protection is for twenty years, renewable for another twenty. (See Sec. 12, Rep. Act No. 166).

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Under the law, “any foreign corporation or juristic person to which a mark or trade name has been registered or assigned under this Act may bring an action hereunder for infringement, for unfair competition, or false designation of origin or false description, whether or not it has been licensed to do business in the Philippines under the Corporation Code, at the time it brings the complaint: Provided that the country if which the said foreign corporation or juristic person is a citizen or in which it is domiciled, by treaty, convention, or law, grants a similar privilege to corporations or juristic persons of the Philippines.” (Sec. 21-A o f Rep. Act No. 166, as amended by Rep. Act No. 638). A copyright is the right of literary property as recognized and sanctioned by positive law. (Black’s Law Dictionary, abridged fifth ed., p. 178). For that matter, the rights granted by Presidential Decree No. 49 (Decree on the Protection of Intellectual Property) shall, from the moment of creation, subsist with respect to any of the following classes of works; (1) Books, including composite and cyclopedic works, manuscripts, directories, and gazetteers; (2)

Periodicals, including pamphlets and newspapers;

(3) Lectures, sermons, addresses, dissertations prepared for oral delivery; (4)

Letters;

(5) Dramatic or dramatico-musical compositions; choreo­ graphic works and entertainments in dumb shows the acting form of which is fixed in writing or otherwise; (6)

Musical compositions, with or without words;

(7) Works of drawing, painting, architecture, sculpture, engraving, lithography, and other works of art; models or designs for works of art; (8)

Reproductions of a work of art;

(9) Original ornamental designs or models for articles of maifbfacture, whether or not patentable, and other works of applied art; (10) Maps, plans, sketches, and charts; (11) Drawings or plastic works of a scientific or technical character;

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(12) Photographic works and works produced by a process analogous to photography; lantern slides; (13) Cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings; (14) Computer programs; (15) Prints, pictorial illustrations, advertising copies, labels, tags, and box wraps; (16) dramatizations, translations, adaptations, abridgements, arrangements and other alterations of literary, musical or artistic works or of works of the Philippine Government as herein defined, which shall be protected as provided in Section 8 of this Decree. (17) Collections of literary, scholarly, or artistic works or of works referred to in Section 9 of this Decree which by reason of the selection and arrangement of their contents constitute intellectual creations, the same to be protected as such in accordance with Section 8 of this Decree. (18) Other literary, scholarly, scientific and artistic works. (Sec. 2, PD 49) The rights granted by this Decree shall not be lost except in the manner specifically provided herein. Neither shall they be subject to levy and attachment while in the possession of the creator or his heirs. (Sec. 3, Id.). Copyright shall consist in the exclusive right: (a) To print, reprint, publish, copy, distribute, multiply, sell, and make photographs, photo-engravings, and pictorial illustrations of the wojrks; (b) To make any translation or other version or extracts or arrangements or adaptations thereof; to dramatize it if it be a non-dramatic work; to convert it into a non-dramatic work if it be a drama; to complete or execute it if it be a model or design; (c) To exhibit, perform, represent, produce, or reproduce the work in any manner or by any method whatever for profit or otherwise; if not reproduced in copies for sale, to sell any manuscripts or any record whatsoever thereof; (d) To make any other use or disposition of the work consistent with the laws of the land.

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The creator or his heirs or assigns shall own the copyright in any of the work mentioned in Section 2 of this Decree. If the works is produced by two or more persons, the copyright shall belong to them jointly and their respective rights thereto shall be governed by the Rules of Civil Code on co-ownership. (Sec. 6, id.). The original title and the name of the author of the work shall be printed on all copies of the published translation. (Sec. 14, 3rd par., id.). The copyright may, by gift, inheritance or otherwise, be transferred or assigned in whole or in part. Such transfer or assignment shall entitle the transferee or assignee to all the rights and remedies which the transferor or assignor had with respect to the copyright. The copyright is not deemed transferred or assigned inter vivos in whole or in part, unless there is a written indication that such is the intention. (Sec. 15, id.). The copyright conferred by this Decree shall endure during the lifetime of the creator and for fifty (50) years after his death. In case of works of joint creation, the period of fifty (50) years shall be counted from the death of the last surviving co-creator. (Sec. 21, id.). Any person infringing a copyright shall be liable: (1)

To an injunction restraining such infringement.

(2) To pay to the copyright proprietor or his assigns or heirs such actual damages as he may have due to the infringement as well as the profits the infringor may have made due to such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or, in lieu of actual damages and profits, such damages which to the court shall appear to be just and which shall not be less than the sum of One Thousand Pesos, and shall not be regarded as penalty. (3) To deliver under oath, for impounding during the pendency of the action, upon such terms and conditions as the court may prescribe, all articles alleged to infringe a copyright. (4) To deliver under oath for destruction all infringing copies or devices, as well as all plates, molds or other means for making such infringing copies as the court may order. (5) To such other terms and conditions, including the payment of moral and exemplary damages, which the court may deem proper, wise and equitable. (Sec. 28, id.).

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Any person infringing any copyright secured by this Decree or aiding or abetting such infringement shall be deemed guilty of a crime punishable by imprisonment not exceeding one year or by fine not less than Two Hundred Pesos nor more than Two Thousand Pesos or both, in the discretion of the court. (Sec. 29, id.): Unless authorized by the copyright proprietor concerned, importation into the Philippines of any piratical copies or likeness of any work in which Philippine copyright subsists is prohibited, except whgn imported. (Sec. 30, id.). The Commissioner of Customs, subject to the approval of the Secretary of Finance, is hereby empowered to make rules and regulations for preventing the importation of articles the importation of which is prohibited under this Section and for seizing and condemning and disposing of the same in case they are discovered after they have been imported. (Sec. 30, id.). All actions, suits and proceedings shall, regardless of the amount involved, be originally cognizables by Court of First Instance (now Regional Trial Court). No damages may be recovered under this Decree after four years from the time the cause of action arose. Appeals shall be governed by the Rules of Court. (Secs. 57, 58, and 59, id.). By intellectual creation, the following persons acquire ownership: 1.

The author with regard to his literary, dramatic, historical, legal,philosophical, scientific or other work;

2.

The composer, as to his musical composition;

3.

The painter, sciflptor, or other artist with respect to the product of his art;

4.

The scientist or technologist or any other person with regard to his discovery or invention (Art. 721, Civil Code).

[NOTA BENE: The State shall protect and secure the exclu­ sive rights of gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law. (Sec. 13, Art. XIV, The 1987 Constitution). Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation’s historical and cultural heritage and resources, as well as artistic creations. (Sec. 15, id.).

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Letters and other private communications in writing are owned by the person to whom they are addressed and delivered, but they cannot be published or disseminated without the consent of the writer or his heirs. However, the court may authorize their publication or dissemination if the public good or the interest of justice so requires. (Art. 723, Civil Code).] Filipino Society of Composers, Authors and Publishers v. Tan G.R. No. 36401, March 16, 1987 Justice Edgardo Paras: The song “Dahil sa Iyo”, registered on April 20, 1956, became popular in radios, juke boxes, etc., long before registration. The song “Nearness of You,” registered on January 14, 1955, had become popular twenty five (25) years prior to 1968 or from 1943. The songs “Sapagkat Ikaw ay Akin” and “Sapagkat Kami Ay Tao Lamang,” both registered on July 10, 1966, have been known and sang as early as 1965 or three years before the hearing in 1968. The musical compositions in question had long become public property, and are therefore beyond the protection of the copyright law. Under Paragraph 33 of the Patent Office Administrative Order No. 3 (as amended, dated September 18, 1947), promulgated pursuant to Republic Act 165, “an intellectual creation should be copyrighted thirty (30) days after its publication, if made in Manila, or within sixty (60) days if made elsewhere, failure of which renders such creation public property .” If the general public has made use of the object sought to be copyrighted for thirty (30) days prior to the copyright application, the law deems the object to have been donated to the public domain and the same can no longer be copyrighted. The word “perform” as used in the Copyright Act is « applied to “one who plays a musical composition on a piano, thereby producing in the air sound waves which are heard as music. If the instrument he plays on is a piano plus a broadcasting apparatus, so that waves are thrown out, not only upon the air, but upon the other, then also he is performing the musical composition.

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The performance in a restaurant or hotel dining room, by persons employed by the proprietor; of a copyright musical composition, to entertain patrons, without charge for admission to hear it, infringes the exclusive right of the owner of the copyright. While it is possible in such establishments for the patrons to purchase their food and drinks and at the same time dance to the music of the orchestra, the music is furnished and used by the orchestra for the purpose of inducing the public to patronize the establishment and pay for the entertainment in the purchase of food and drinks. The proprietor conducts his place of business for profit and it is public; and the music is performed for profit. The playing of music in dine and dance establishment which was paid for by the public in the purchase of food and drink constituted “performance for profit” within Copyright Law. If the rights under the copyright are infringed only by a performance where money is taken at the door, they are very imperfectly protected. Performance, not different in kind from those of the defendants could be given, and that might compete with and even destroy the success of the monopoly that the law intends the plaintiffs to have. It is enough to say that there is no need to construe the statute so narrowly. The defendants’ performance are not eleemosynary. They are part of the total for which the public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to order is not important. It is true that the music is not the sole object but neither is the food, which probably could be gotten cheaper elsewhere. The object is a repast in surroundings that to the people having limited power of conversation or disliking the rival noise, give a luxurious pleasure not to be had from eating a silent meal. If music did not pay, it would be given up. If it pays, it pays out of the public’s pocket. Whether it pays or not, the purpose of employing it is profit, and that is enough. (Herbert v. Shanley Co., 242 U.S. 590, Holmes, J.). [NOTE: Absent a treaty, a copyright is protected only by the state that grants or recognizes it. Thus, a copyright in State X will not be enforced in our country in the absence of a treaty, unless a similar copyright is also applied for and granted in the Philippines.] [NOTE: With the advent of multimedia (CD-ROMs), cyberspace and Internet, needed at this point in time is a

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modification of existing international copyright law in order that the copyright could fulfill the fundamental functions of stimulating creation and guaranteeing in social interest the optimal use of works, despite the changed conditions of creation and usage of works, caused by the technological progress of the information superhighway age. (See Dr. E.C. Paras, Jr., “Multimedia and Copyright,” Foreign Relations Journal, Vol. X, No. 1, Mar. 1995, pp. 74-105).]

Chapter XX WILLS, SUCCESSION, AND ADMINISTRATION T *

SYNOPSIS OF CONFLICTS RULES

FACTUAL SITUATION

POINT OF CONTACT

(1) Extrinsic Validity of Wills (a) made by abroad

an

(1)

alien

(a) lex nationalii OR lex domicilii OR Philippine law (Art. 816, Civil Code), OR lex loci cele­ brationis (Art. 17, par. 1, Civil Code)

(b) made by a Filipino abroad

(b) lex nationalii OR lex loci celebrationis (Art. 815, Civil Code)

(c) made by an alien in the Philippines • ,^

(c) lex nationalii OR lex loci celebrationis (Art. 817, Civil Code)

■

(2) Extrinsic Validity of Joint Wills (made in the same instrument) (a) made by abroad

Filipinos

(2)

(a) lex nationalii (is void, even if valid where made) (Art. 819, Civil Code)

344

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345

(b) made by aliens abroad

(b) valid if valid according to lex nationalii, or lex domicilii or lex loci celebrationis (See No. 1 (a); see also Art. 819, Civil Code).

(c) made by aliens in the Philippines

(c) lex loci celebrationis therefore void even if apparently allowed by Art. 817 — because the prohibition on join t wills is a clear expres­ sion of our public policy)

(3) Intrinsic Validity of Wills (including order of suc­ cession, amount of su­ ccessional rights, and intrinsic validity of the provisions of the will)

(3) lex nationalii o f the deceased — regardless of the LOCATION and NATURE of the property (Art. 16, par. 2, Civil Code)

(4) Capacity to Succeed

(4) lex nationalii o f the deceased — not that of the heir (Art. 1039, Civil Code)

(5) Revocation of Wills (a) If done IN the Philip­ pines

(a) lex loci actus (of the revocation) (Art. 829, Civil Code)

(b) If done OUTSIDE the Philippines

(b)

1) by a NON-DOMICILIARY

1) lex loci celebrationis (of the making of will, not the revo­ cation), OR lex domicilii (Art. 829, Civil Code).

2) by a DOMICI­ LIARY of the Phil­ ippines

' 2) lex domicilii (Phil. Law) OR lex loci actus (of the revo­ cation) (Art. 17, Civil Code)

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PHILIPPINE CONFLICT OF LAWS

(6) probate o f wills made abroad

(6)

(a) if not yet probated abroad

(a) lex fori of the Philippines applies as to procedural aspects — that is — the will must be fully probated here and due execution must be shown [see (1)]

(b) if^already probated abroad

(b) lex fori of the Philippines again applies as to the procedural aspects — that is, the will must ALSO be probated here — but instead of proving due execution, generally it is enough to ask for the enforcement here of the foreign judgment on the probate abroad.

(7) executors and adminis­ trators

(7)

(a) where appointed

(a) place where domiciled at death or in case of nondomiciliary, where assets are found

(b) powers

(b) co-extensive with the qualifying or the appointing court — that is — powers may be exercised only within the territorial juris­ diction of the court con­ cerned NOTE: These rules also apply to principal, domi­ ciliary, or anciliary admi­ nistrators and receivers even in non-succession cases.

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EXTRINSIC AND INTRINSIC VALIDITY OF WILLS IN GENERAL Extrinsic validity of a will deals with the forms and solemnities in the making of wills (including the age and capacity of the testator to make the will; the number of witnesses; the form of the will — oral, private instrument, public instrument; and so forth). Upon the other hand intrinsic validity concerns itself with the order of succession, the amount of successional rights, and the intrinsic validity of the provisions of the will. Both kinds of validity are important: once a will is void extrinsically, it is clear that no effect can be given to it; a will that has complied with all formalities can also be rendered useless if all the provisions it contains are contrary to the law. The following are our conflicts rules on the extrinsic validity of wills: (1) If the will is made by an alien abroad, he must comply with the formalities of the lex nationalii OR the lex domicilii OR Philippine law (Art. 816, Civil Code) OR the lex loci celebrationis (Art. 17, par. l, Civil Code). Example: If a Japanese domiciled in Argentina makes a will in Mexico while vacationing there, the will may be considered extrinsically valid by our courts if it has complied with the formalities prescribed in Japan, Argentina, Mexico, or the Philippines. (2) If a Filipino makes a will abroad, he may comply with the formalities of the lex nationalii (Philippine law) or the lex loci celebrationis (the law of the place where he may be — and where obviously he makes the will). (Art. 815, Civil Code). (3) If an alien makes a will in the Philippines he is allowed to comply with the formalities of his own country (lex nationalii) or the law of the Philippines (Art. 817, Civil Code).

EXTRINSIC VALIDITY OF JOINT WILLS ^Joint wills are those executed in the same instrument by two or more testators. They are considered by our Civil Code as null and avoid. Mutual or reciprocal wills, upon the other hand, are those which contain reciprocal disposition in favor of the testator. Example of mutual will: A made a will in favor of B; B in turn

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PHILIPPINE CONFLICT OF LAWS

made A the heir in his (B’s) own will. Mutual wills are valid. Joint and mutual wills are void, not because they are mutual but because they are joint. Art. 818 of the Civil Code says: “Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.” The following are our conflicts rules on the matter: (1) If the joint wills were made by Filipinos abroad, the same shall be considered void in the Philippines, even if they are valid in the place where they were executed. Art. 819 of the Civil Code states that ‘Wills, prohibited by the preceding article (on joint wills) executed by Filipinos in a foreign country, shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed.” (2) Joint wills made by aliens abroad shall be considered as valid in the Philippines if valid according to the lex nationalii or lex domicilii or lex celebrationis. (Arts. 816 and 17, Civil Code). Be it noted that the prohibition referred to in Art. 819 applies only to Filipinos. (3) Joint wills made by aliens in the Philippines, even if valid in accordance with their national law, will not be countenanced in the Philippines because otherwise our public policy may be militated against.

INTRINSIC VALIDITY OF WILLS The intrinsic validity of wills including the order of succession, the amount of successional rights, and the intrinsic validity of the provisions of the wills shall be governed by the lex nationalii of the deceased — regardless of tjie LOCATION and NATURE of the property whether real or personal. (Art. 16, par. 2, Civil Code). Quoted hereunder are the exact words of Art. 16, par. 2 of the Civil Code: “However, intestate and testamentary successions, both with respect to the order of succession and the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.”

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Examples: (1)

A Chinese died in Manila leaving a BMW car and a parcel of land in Pampanga, Philippines. The law of which country governs the successional rights of his heirs to both the car and the land? Answer: The law of China, being the lex nationalii of the deceased, governs the successional right to BOTH the car and the parcel of land. (Art. 16, par. 2, Civil Code).

(2)

In the preceding problem, suppose the Chinese also left parcels of land in China and Cuba, what should our courts do? Answer: Our courts have no jurisdiction to award the Chinese and Cuban lands in favor of the heirs of the deceased since they are outside the Philippines. As a matter of fact, in the inventory of the assets of the deceased which is essential in every testamentary (and even intestate) proceedings, these lands will ordinarily not be included. While it is true that under Art. 16, par. 2 of the Civil Code, the law says “wherein said property may be found,” this cannot really be given effect unless the properties are themselves within the territorial jurisdiction of the Philippines. (See Gibbs v. Government). Philippine Trust Co. v. Bohanan, al. G.R. L-12105, Jan. 30, 1960 FACTS:

Testator was a citizen of Nevada, with properties in the Philippines, who gave nothing in his will to his Filipino wife, and very little to his children. Under Nevada law, however, which was duly proved, the wife and the children are NOT compulsory heirs, and are, therefore, not entitled to any legitime.

ISSUE:

Can the wife and the children justifiably complain?

HELD:

No, because under Art. 16, par. 2 of the Civil Code, the order of succession, the amount of successional rights (including the right, if any, to the legitime), and the intrinsic validity of

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PHILIPPINE CONFLICT OF LAWS

the provisions of the will shall be governed by the national law of the deceased (Nevada law) regardless of where the property is found, and whether the property be real or personal. Since under Nevada law, there is NO LEGITIME, the wife and the children cannot validly complain. Miciano v. Brimo 50 Phil. 867 E’kCTS:

Joseph G. Brimo’s will provide that even if he was a Turk, still he wanted his estate in the Philippines disposed of in accordance with Philippine laws (and not in accordance with Turkish law); and that should any of his legatees oppose the intention of his, his or her legacy would be considered cancelled. Andre Brimo, one of the brothers of the deceased, did not want this disposition in accordance with Philippine laws; he wanted Turkish law to be applied. He, therefore opposed practically every move that would divide the estate in accordance with Philippine internal laws on succession. Issue: Does Andre Brimo lose his legacy?

HELD:

No, Andre Brimo does not lose his legacy, because the condition referred to in the will is CONTRARY to our law. Art. 873 of the Civil Code says: “Impossible conditions and those contrary to law or good customs shall be considered as not imposed, and shall in no manner prejudice the heir, even if the testator should otherwise provide.” Indeed, the condition, namely, the disposal of the testator’s estate in accordance with Philippine internal law on succession, is against the second paragraph of Art. 16 of the Civil Code, which insists on the application of the national law of the deceased. The condition being disregarded, the legacy to Andre Brimo becomes unconditional, and therefore, he is entitled to his legacy.

(

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351

Bar Question Carl Schultz, Swiss citizen and resident of Baguio City, Philippines, for the last forty years, died in that city leaving six children and real and personal properties located in the Philippines. In his will executed in Switzerland where the institution of forced heirs does NOT exist, he designated as his SOLE HEIR his eldest son. Can the other children question the validity of the will in the probate proceedings filed before our courts? Explain briefly. Answer: The other children cannot question the extrinsic and intrinsic validity of the will. (a)

Extrinsically, the will is valid on the presumption that this alien abroad had executed the will in accordance with the formalities prescribed in Switzerland, which is all at once the place of execution, his country, and his domicile. (Arts. 17 and 816, Civil Code).

(b)

Intrinsically, the will is also valid. The designation of the eldest son as SOLE HEIR is valid, and will not properly constitute “preterition” or “pretermission” or “omission” as the terms are technically understood under Philippine law, because after all in Switzerland, of which the deceased was a national, there are NO forced or compulsory heirs. It is clear that the intrinsic validity of this provision shall be governed not by Philippine but by Swiss law. (Art. 16, par. 2, Civil Code). NOTE: The foregoing discussion is of course without prejudice to the problem posed by renvoi, if any. (See the Chapter on the Renvoi).

352

PHILIPPINE CONFLICT OF LAWS

Testate Estate of Amos G. Beilis, et al. v. Edward A. Beilis L-23678, June 6, 1967 FACTS:

v*

HELD:

Amos G. Beilis was a citizen and resident of Texas at the time of his death. Before he died, he had made two wills, one disposing of his Texas properties, the other disposing of his Philippine properties. In both wills, his recognized illegitimate children were not given anything. Texas has no conflicts rule (rule of Private International Law) governing successional rights. Furthermore, under Texas law, there are no compulsory heirs and therefore no legitimes. The illegitimate children opposed the wills on the ground that they have been deprived of their legitimes (to which they would be entitled, if Philippine law were to apply). Issue: Are they entitled to their legitimes? (Thru Mr. Justice Jose P. Bengzon) (1)

Said children are NOT entitled to their legitimes — for under Texas law which we must apply (because it is the national law of the deceased), there are no legitimes. (See Art. 16, par. 2, Civil Code).

(2)

The renvoi doctrine, applied in Testate Estate o f Edward Christensen, Aznar v. Christensen Garcia, L-16749, Jan. 31, 1963, cannot be applied. Said doctrine is ustfally pertinent where the decedent is a national of one country, and a domiciliary of another. In the present case, the decedent was BOTH a national and a domiciliary of Texas at the time of his death. So that even assuming that Texas has a conflict of law rule providing that the law of the domicile should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas

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353

has a conflicts rule adopting the situs theory (lex rei sitae) calling for the appli­ cation of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence however, of proof as to the conflict of law rule in Texas, it should not be presumed different from ours. (Lim v. Collector, 36 Phil. 472; In re Testate Estate of Suntay, 95 Phil. 500). (3)

The contention that the national law of the deceased (Art. 16, par. 2 and Art. 1039) should be disregarded because of Art. 17, par. 3 which in effect states that our prohibitive laws should not be rendered nugatory by foreign laws, is WRONG, firstly because Art. 16, par. 2 and Art. 1039 are special provisions, while Art. 17, par. 3 is merely a general provision; and secondly, because Congress deleted the phrase “notwithstanding the provisions of this and the next preceding article” when it incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change, the second paragraph of Art. 10 of the old Civil Code as Art. 16 of the new. It must have been its purpose to make the second paragraph of Art. 16 a specific provision in itself, which must be applied in testate and intestate successions. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent. It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes Congress has not intended to extend the same to the succession of foreign nationals.

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PHILIPPINE CONFLICT OF LAWS

(4)

**

It has been pointed out by the oppositor that the decedent executed two wills — one to govern his Texas estate and the other his Philippine estate — arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent’s intention in executing a separate Philippine will, it will NOT ALTER the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner’s will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void for his national law, in this regard, cannot be ignored.

THEORIES ON THE PROPER LAW FOR THE TRANSMISSION OF SUCCESSIONAL RIGHTS There are at least two theories on the proper law for the transmission of successional rights: the unitary or single system; and the slip or scission system. The unitary or single system: Under the unitary or single system, one law governs the transmission of BOTH real and personal property. In countries adhering to the nationality theory (such as the Philippines) the national law of the deceased governs real and personal property. (Art. 16, par. 2, Civil Code)\ states that follow the domiciliary principle make use of the domiciliary law of the dead man. (See Wharton, A Treatise on the Conflict o f Laws, Vol. I, p. 1276). The split or scission system: Under the split or scission system, one law governs real property while another determines successional rights to personal property. This theory is the rule followed in England and the United States, among others. (See Wolff, Private International Law, p. 578). The Philippine rule: It is clear under Art. 16, par. 2 of the Civil Code that the theory prevailing in this jurisdiction is the unitary system, that is whether the property be real or personal, only the national law of

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355

the deceased governs for the law says “whatever may be the nature of the property and regardless of the country wherein said property may be found.” Unfortunately, in actual practice, the rule may be made use of only if the properties are situated in the Philippines, for if they were in some foreign state, any judgment we may make on the matter may not be given effect in said foreign jurisdiction. Thus, if a Chinese dies leaving parcels of land in the Philippines as well as in Argentina, Art. 16, par. 2 of the Civil Code theorically directs our courts to distribute said parcels by applying Chinese law. Argentina courts may naturally object.

CAPACITY TO SUCCEED Art. 1039 of the Civil Code says “Capacity to succeed is governed by the law of the nation of the decedent.” Example: The German daughter of a Russian died in Manila with parcels of land in the Philippines, in Vietnam and in Pakistan. If you were the Filipino judge in a Philippine court how would you distribute the successional rights to the real property? Answer: I would distribute the land in the Philippines in accordance with the national law of the deceased which is German law. (Art. 16, par. 2, Civil Code). The capacity of the Russian father to inherit from his daughter shall be governed not by Russian law, but by German law — the national law of the decedent. (Art. 1039, Civil Code). I do not have jurisdiction to award to anybody the lands in Vietnam and in Pakistan, because they are outside the territorial jurisdiction of the Philippines.

REVOCATION OF WILLS (1)

If the revocation of a will is done in the Philippines, the lex loci actus of the revocation applies; hence Philippine law will have to be followed. (Art. 829, Civil Code).

(2)

If the revocation is done OUTSIDE the Philippines by a NON-DOMICILIARY of the Philippines, the testator may follow either the law of the place where the will had been made (lex loci celebrationis of the making not the revoking) or the lex domicilii. (Art. 829, Civil Code).

•a

(3)

If the revocation is done OUTSIDE the Philippines by a person who is DOMICILED here, the revocation may be

356

PHILIPPINE CONFLICT OF LAWS

done in accordance with the lex domicilii (Philippine law) or the lex loci actus o f the revocation not that of the making. (See Art. 17, Civil Code). It is unfortunate that a situation like this has not been provided for under Art. 829 of the Civil Code. Decidedly, the rule on the lex loci actus of the revocation was utilized because, after all, in the absence of a definite provision on the matter, the general rule enunciated in Art. 17, par. 1 of the Civil Code can certainly apply. ^ NOTE: The exact wording of Art. 829 of the Civil Code follows: “A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code.” Example: A Japanese domiciled in Italy made a will in Ecuador. While vacationing in Brazil, he decided to revoke his will. The law of which country or countries must he use in order that under our law his will may be considered to have been revoked? Answer: To properly revoke his will in order that Philippine courts may consider the revocation valid, the Japanese testator must comply with the formalities for revocation under either the law of Ecuador where the will had been made or the law of Italy where he is domiciled. (Art. 829, Civil Code).

INTERPRATION OF THE WORDS OF A WILL The words of a will should be interpreted by the rules on construction specifically referred to in the will; in default of their express mention in the will, the rules of interpration are those under the national law of the deceased, since we may reasonably presume that this was the testator’s intent. (See Minor, Conflict of Laws, p. 339). Thus, if the testator is a Japanese national, the term “compulsory heirs” in his will must be construed to refer to the compulsory heirs under Japanese law, unless the testator had expressly made mention of-some other law as applicable. (See Stumberg, Principles o f Conflict o f Laws, p. 386).

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EFFECT OF CHANGE OF NATIONALITY OF THE TESTATOR (a)

With reference to extrinsic validity of the will, the nationality at the time the will was executed should control. It is unfair to expect him to follow the formalities of some future national law which he will have should he subsequently embrace another nationality.

(b)

With reference to intrinsic validity, order o f succession and amount of successional rights (both in testamentary and intestate succession, as regards the latter two), the nationality at the moment o f death should be determinative of the national law to be followed. This is because the right to the succession are made effective only from the moment of death. (See Art. 777, Civil Code).

CADUCIARY RIGHTS Caduciary rights refer to the right of the state to claim thru escheat proceedings the properties of decedents who are not survived by any heirs. Dean Graveson calls them “the claims of the sovereign or other public authority of a country in which the deceased’s property is situated to that property on failure of all persons entitled to claim under the appropriate law.” (Graveson, Conflict of Laws, p. 324). The question of caduciary rights in Conflict of Laws may come up in the following example: A national of State X dies intestate in the Philippines, with no surviving relative. If he left properties in the Philippines, who should get them? Our law on the matter is not very clear. Under the Rules of Court it is provided that “the residue, if any (after payment of just debts, etc.) shall be disposed of as is provided by law in cases of estate in the Philippines belonging to persons who are inhabitants of another state or country.” (Rule 77, Sec. 4). There seems to be no other applicable law on the matter except Art. 16, par. 2 of the Civil Code which directs us to apply the national law of the deceased. Now then, our own internal law on the matter provides that the state, in the absence of any other legal heir, shall be the legal heir of the deceased. (Art. 1011, Civil Code). As a matter of fact, Art. 1013 of the Civil Code says: “After the payment of debts and charges, the personal property shall be assigned to the municipality or city where the deceased last resided in the Philippines, and the real estate to the municipalities or

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PHILIPPINE CONFLICT OF LAWS

cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate shall be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and center in such municipalities or cities. The court shall distribute the estate as the respective needs of each beneficiary may warrant. The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used.” Now then, if under the laws of State X, State X is itself the legal h&r of the deceased in the absence of any other legal heirs, should our courts award the properties to our own government, or should they give them to State X because of Art. 16, par. 2 of the Civil Code? If we consider the rights to said properties as still a matter appertaining to succession, we have no alternative except to award the properties to State X, together with resultant complications (as when the properties concerned are immovable). However We believe that we should classify the matter as caduciary in nature, and not one o f succession; therefore, the properties should go to our government. This is in consonance with the proposition that in a situation like this “rules of conflict of laws are largely abandoned and each country appears to work on the principle of seizing all property of the deceased lying within its borders”: otherwise stated we should regard the property as ownerless or “bona vacantia.” This is the rule followed notably in England. (Bona vacantia refers to unclaimed property — generally, personal property which escheats [goes to, confiscated] to the state because no owner, heir or next of kin claims it — now includes real as well as personal property and passes to state as an incident of sovereignty). [Black’s Law Dictionary, abridged fifth ed., p. 92]. Illustrative Case: In the Estate of Musuros (1936) 2 All. E.R. 1666 FXCTS:

A Turkish woman died intestate in England leaving, among other things, property in England. She had no heirs and no surviving relatives. The English court was called upon to decide what to do with the properties in Englan.d, considering the fact that under

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Turkish law (her national as well as domiciliary law) said properties were supposed to go to the Moslem Treasury in Turkey. HELD:

England can exercise caduciary rights over the property; therefore said property must go to the Government of England as “ownerless property” or “bona vacantia.”

PROBATE Probate is the act of proving before a compent court the due execution of a will possessed of testamentary capacity, as well as approval thereof by the said court. Probate has also been referred to as “probation, legalization, protocolization, authentication.” (Manahan v. Manahan, 58 Phil. 448). Necessity for Probate: A probate is essential because under the law “no will shall pass real or personal property unless it is proved and allowed in accordance with the Rules of Court.” (Art. 838, 1st par. Civil Code). So essential is probate that a provision in a will stating that “the will shall not be presented before the courts” is a VOID provision, for a person cannot by his actuations deprive a competent court of its jurisdiction. (Mendoza v. Pilapil, 40 O.G. 1855, 72 Phil. 546). However the heirs concerned may extrajudicially agree to partition the property among them, even though such partition is not in accordance with the provisions of the will. (Manalo v. Paredes, 47 Phil. 938). In this case, ownership is acquired not by testamentary succession, but by legal succession. If any heir not included in the partition feels aggrieved, his remedy would of course, be to ask for the probate of the will. Be it noted, however, that no judicial approval can ever be given to an extrajudicial partition unless the will is first probated. Neither may an unprobated will be presented as evidence of an act of partition among the co-heirs. (Guevara v. Guevara, 74 Phil. 479). Period o f Prescription: *b3

There is no period of prescription for the probate of a will. The Statute of Limitations fixes time limits for the filing of “civil actions” but not for “special proceedings” of which probate is admittedly one. The distinction is not merely verbal or a matter of terminology, for there are differences between the two. Probate proceedings are

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not exclusively established in the interest of surviving heirs but primarily for the protection of the testator’s expressed wishes that are entitled to respect as an effect of ownership and o f the right of disposition: If the probate of validly executed wills is required by PUBLIC POLICY, the state could not have intended the Statute of Limitations to defeat the policy. (Guevara v. Guevara, et al., L5405, Jan. 31, 1956). Parenthically, it must be stated that the rules of estoppel do not apply to probate proceedings for they are vested with public interest, and if estoppel would be applied, the ascertainment of the truth may be blocked. This should be avoided for the primary purpose of a probate is not the protection of the interest of living persons. (Obispo v. Obispo, C.A. 50 O.G. 514). As a matter of fact in probate proceedings (unlike in ordinary civil actions), the issues are fixed by LAW and not by the parties. (Vano v. Garces, et al., G.R. L-6303, June 30, 1954; 50 O.G. 3044).

PROBATE OF WILLS EXECUTED ABROAD a)

If a will executed abroad has NOT yet been probated in a foreign country, the ordinary Philippine probate procedure is required; that is, the lex fori of the Philippines applies as to the procedural aspects. It must be shown to the court that the foreign will has been validly executed in accordance with the formalities already discussed (concerning extrinsic validity). NOTE: It has been held in this connection that an alleged foreign probate cannot be deemed one unless it is shown that the foreign court was a duly authorized probate tribunal, and that the entire probate procedure there had been complied with. (In Re Testate o f Jose B. Suntay, 50 O.G. 5321).

(b)

If a foreign will has already been probated in a foreign country, does it still have to be probated here in the Philippines? The answer is in the affirmative, because a foreign judgment, no matter how intrinsically merito­ rious, generally cannot have automatic extraterritorial effect. The will has still to be probated here, BUT instead of proving all over again the due execution of the will, it is ordinarily sufficient to ask for the ENFORCEMENT here of the foreign judgment on the probate abroad. Of course, the lex fori of the Philippines again applies as to the procedural aspects in our courts. The pertinent

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rules on the subject are found in Rule 77 of the Rules of Court. RULE 77, ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES Section 1. Will proved outside Philippines may be allowed here. — Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed and recorded by the proper Court of First Instance (Regional Trial Court) in the Philippines. Sec. 2. Notice o f hearing for allowance. — When a copy of such will and of the order or decree of the allowance thereof, both duly authenticated, are filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction such court shall fix a time and place for the hearing, and cause notice thereto be given as in case of an original will presented for allowance. Sec. 3. When will allowed and, effect thereof. — If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the judge and attested by the seal of the court, to which shall be attached a copy of the will shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court.

ADMINISTRATION OF ESTATE OF DECEASED PERSONS Administration (of the estate of a deceased person) consists of the duties of the representative of the deceased person in bringing the estate of the deceased into a position in which he may safely distribute the balance or residue after payment of debts to the persons beneficially entitled. (Graveson, Conflict of Laws, p. 322). In8eed, there may be distribution of the estate only after the assets have been realized and the debts paid off. (Stumberg, Principles of Conflict o f Laws, p. 404). In charge of administration may be an executor, an administrator or an administrator with a will annexed:

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(a)

When there is a will, an executor appointed in such a will (by the testator naturally) takes charge of carrying out the wishes of the testator. “When a will has been proved and allowed, the Court shall issue LETTERS TESTAMENTARY thereon to the person named as executor therein if he is competent, accept the trust, and gives bond as required by these rules.” (Sec. 4, Rule 78, Rules of Court). (A “letter testamentary is the formal instrument of authority and appointment given to an executor by the proper court, upon admission of the will 10 probate, empowering him to enter upon the discharge of his office as executor. (Black’s Law Dictionary, abridged fifth ed., p. 767). A paper, instrument, document, gift, appointment, etc., is said to be “testamentary” when it is written or made so as to take effect until after the death of the person making it, and to be revocable and retain the property under his control during his life, although he may have believed that it would operate as an instrument of a different character. (Ibid.])

(b)

When there is NO will, it follows that there can be no executor, and, therefore, the Court appoints an ADMINISTRATOR, but only if an administrator is really required. Such an administrator will be given LETTERS OF ADMINISTRATION. (Sec. 5, Rule 79, Rules o f Court). “Letters of Administration” refer to a formal document issued by the probate court appointing on an administration of an estate. [Black’s Law Dictionary, abridged fifth ed., p. 471].)

(c)

If there is a will, but no executor has been named therein, or if the executor named is either incompent or unwilling, the Court will, if necessary, appoint an administrator, but this time he will be called ADMINISTRATOR WITH A WILL ANNEXED. (Sec. 5, Rule 79; Sec. 4, Rule 77, Rules o f Court). (“Administrator with will annexed” is one appointed as the administrator of the deceased’s estate after executors named in the will have refused or are unable to Act. [Black’s Law Dictionary, abridged fifth ed., 23].)

Under Philippine law, no person is competent to serve as executor or administrator who: (a)

is a minor;

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(b)

is not a resident of the Philippines;

(c)

is in the opinion of the Court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude. (Sec. 1, Rule 78, Rules o f Court).

An “executor” is a person appointed by a testator to carry out the directions and requests in his will, and to dispose of the property according to his testamentary provisions after his decease. (Black’s Law Dictionary, abridged fifth ed., p 294). An “administrator” is a person appointed by the court to administer (i.e., manage or take charge of) the assets and liabilities of a decedent (i.e., the deceased). Such person may be a male (i.e., administrator) or a female (i.e., administratrix) (Ibid.). NOTE: If the person performing these services is named by the decedent’s will, he is designated as the executor, or she the executrix, of the estate (Ibid.) [NOTE: As used in a statute, excluding one found incompetent to execute the duties of an administrator by reason of improvidence means that want of care and foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe, and liable to be lost or diminished in value, in case the administration should be committed to the improvident person. (Black’s Law Dictionary, abridged fifth ed., p. 386.) As used in statutes prescribing the qualifications of public officers, trustees, etc., the term “integrity,” means soundness or moral principle and character, as shown by one person dealing with others in the making and performance of contracts, and fidelity and honesty in the discharge of trusts; integrity is synonymous with “probity,” “honesty,” and “uprightness.” (Ibid., p. 415). “Moral turpitude” is the act or behavior that gravely violates moral sentiment or accepted moral standards of community and is a morally culpable quality held to be present in some criminal offenses as distinguished from others. (Ibid., p. 522).] *• Parenthetically, it may be stated that “a married woman may serve as executrix or administratrix, and the marriage of a single woman shall not affect her authority so to serve under a previous appointment.” (Sec. 3, Rule 78, Rules o f Court). The principal duties of executors and administrators are:

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(1)

to file a bond (the sum is to be fixed by the court) even before he enters upon the execution of his trust. (Sec. 1, Rule 81, Rules o f Court);

(2)

to make within three (3) months a true and complete inventory (Sec. 1, Rule 83, Rules o f Court) — the purpose being to provide a basis for subsequent accounting and liability;

(3)

to administer the estate in accordance with the will or the Rules of Court;

(4)

To'collect all accounts receivable, and to pay all debts and taxes;

(5)

to pay allowances (in a proper case) to the surviving spouse and to the children;

(6)

to maintain in tenantable repair the houses and other structures and fences belonging to the estate. (See Sec. 2, Rule 84, Rules o f Court);

(7)

to prepare a project of partition (to be submitted to the court);

(8)

to render a true and just account of his administration within one (1) year, and at any other time when required by the Court; and finally,

(9)

to perform all orders of the Court required of him.

Be it noted that an executor or administrator of an estate cannot appoint himself as an agent of said estate. Such an “AUTO­ CONTRACT” is not valid for the reason that the estate may be defrauded, as when, for instance, a person (acting as administrator) authorizes himself (as agent) to sell certain estate properties at an OVERPRICE (the excess price to be given to the agent himself). Natividad V. A. Jaroda v. Hon. Vicente Cusi, L-28214, July 30, 1969).

CONFLICT RULES ON ADMINISTRATION (1)

The executor is qualified, and the administrator is appointed, by the Court of the place where the deceased was domiciled at the time of death; or in the case of a nondomiciliary, where the assets or properties of the deceased are found. Incidentally, in the latter case, when the assets may be found in several provinces, the Court

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of First Instance (now Regional Trial Court) first taking cognizance is allowed to have exclusive jurisdiction over the probate proceedings. (Sec. 1, Rule 73, Rules o f Court). (2)

The rights, powers, and obligations of the executor, the administrator, and the administrator with a will annexed are coextensive with the territorial jurisdiction of the qualifying or the appointing court. Thus, an administrator appointed by a Philippine court can have jurisdiction only over the properties located in the Philippines. (In Re Testate Estate of Butler, L-3677, Nov. 29, 1951). Indeed, presence of the decedent’s properties in the Philippines is necessary to give the Philippine courts jurisdiction to grant administration. (See Graveson, Conflict o f Law, p. 324). Should the deceased have left properties in other states, the Philippine administrator has no right to take such properties, unless he is also appointed administrator in said foreign states. Upon the other hand, another individual may be appointed by the courts therein. (See Minor, Conflict o f Laws, p. 229). The administrator in the state where the testator was domiciled at the moment of death is referred to as the domicialiary or principal administrator; those appointed in other states are known as ancillary administrators and are authorized to act as such in what are called ancillary administration proceedings. (See Johannes v. Harvey, 43 Phil. 175) . If a Philippine Court will name a certain person as an executor for the estate of the testator in a foreign state, said executor must first qualify as such before the courts of the foreign country, otherwise he cannot enter into his duties as executor. (Minor, Conflict of Laws, p. 231).

(3)

Administration is governed not by the law on succession (national law of the deceased) but by the actual lex fori — up to the point of distribution. (Graveson, Conflict o f Laws, p. 322). And it is understood that the forum is the place where he was appointed (that is the law of the domicile in the :ase of the domiciliary administrator). (See Sec. 1, Rule 73, Rules of Court). Thus, an adminis­ trator appointed by a Philippine Court can sue and be sued as such in the Philippines; he can convey title to property located in the Philippines. (See Minor, Conflict of Laws, p. 232). He must pay off the debts of the estate with the assets found in our country: the preference and

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concurrence of credits shall be that prescribed under Philippine law following the theory of lex situs. (See Arts. 2236-2251, Civil Code). On the matter of debts and credits, Westlake has this to say: “Every administrator, principal or ancillary must apply the assets reduced into possession under his grant (of administration) in paying all the debts of the deceased whether contracted in the jurisdiction from which the grant issued or out of it, and whether owing t(^creditors, domiciled or resident in that jurisdiction or out of it, in that order of priority which according to the nature of the debts or of the assets is prescribed by the law of the jurisdiction from which the grant issued.” (Westlake, Private International Law, par. 110) [See also Re Kloebe (1884) 28 Ch. D. 175 Cases 453; Re Lorillard (1922) 92 L.J. Ch. 148 Cases 4571 Testate Estate of Idonah Slade Perkins; Renato Tayag v. Bengu Consolidated, Inc. L-23145, Nov. 29, 1968 FACTS:

*

Idonah Slade Perkins died domiciled in New York on March 27, 1960. Because she had properties both in New York and in the Philippines, a domiciliary administrator was appointed in New York by the New York courts, and an ancillary administrator was appointed in the Philippines by the Philippine courts. Now then, to satisfy the legitimate claims of local creditors, the Philippine ancillary admi­ nistrator; asked the New York administrator to surrender to the former two stock certificates owned by the deceased in a Philippine corporation, the Benguet Consolidated, Inc. Although said New York administrator had the stock certificates, he refused to surrender them despite the order of the Philippine court, prompting the court to consider said certificates as LOST for all purposes in connection with the administration of the deceased’s Philippine estate. He then ordered the Benguet Conso­ lidated Co. to cancel said certificates and to issue new certificates deliverable either to the

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ancillary administrator or to the Philippine probate court. The company refuses to issue the new certificates on the ground, firstly, that after all the old certificates still really exist, although in the possession of the New York administrator; and secondly, that in the future, the company may be held liable for damages because o f the presence o f conflicting certificates. Issue: Should the company issue the new certificates? HELD:

(Thru Mr. Justice Enrique M. Fernando, later to become Chief Justice): Yes, the company must issue the new certificates because of the following reasons: (a)

While factually the old certificates still exist, the same may by judicial fiction be considered as LOST — in view of the refusal of the New York administrator to surrender then, despite a lawful order by our courts. To deny the remedy would be derogatory to the dignity of the Philippine judiciary. The ancillary Philippine administrator is entitled to the possession of said certificates so that he can perform his duty as such administrator. A contrary finding by any foreign court or entity would be inimical to the honor of our country. After all an administrator appointed in one state has no power over property in another state. [Leon and Ghezzi v. Manufacturer's Life Ins. Co., 90 Phil. 459 (1951)].

(b)

The company has nothing to fear about contingent liability should the new certificates be issued. Its obedience to a lawful court order certainly constitutes a valid defense.

TRUSTS A trust is a fiduciary relationship concerning property which

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obliges the person holding it to deal with the property for the benefit of another. (Pacheco v. Arro, 47 O.G. 4099). In a trust, the trustee or holder has LEGAL TITLE to the property; a guardian, administrator, or executor does NOT have such title. In the Philippines, there are two (2) kinds of trusts: (1)

express trusts — those created by the parties, or by the intention of the trustor;

(2)

implied trusts — those created by operation of law. (Art. 1441, Civil Code).

An express trust may be created: (1)

by an act mortis causa — as in a will Note: Since a trust created in a will is a testamentary disposition, it follows that its extrinsic validity follows the conflicts rules for wills; and its intrinsic validity is governed by the national law of the deceased. (Art. 16, par. 2, Civil Code; See also Stumberg, Principles of Conflict o f Laws, p. 397).

(2)

by an act inter vivos (as by some writing or deed or meeting of the minds). (See Philippine Airlines, Inc. v. Heald Lumber Co., L-11497, Aug. 16, 1957). Note: Since the trust deals with property, the lex situs governs its extrinsic and intrinsic validity, subject to our previous discussion on choses in action (if such be the subject matter of the trust). (See Stumberg, Principles of Conflict of Laws, p. 400; See also American Restatement, Sec. 294). Thus, if a trustee appointed by a foreign state desires to administer Philippine lands for his trustor, he must seek appointment before our tribunals. (See Sec. 4, Rule 98, Rules o f Court).

Should an express trust concern lands located in the Philippines, the trust must be evidenced by a written instrument. Art. 1443 of the Civil Code says “No express trust concerning an immovable or any interest therein may be proved by parol evidence.” The requirement that the express trust be written is only for enforceability, not for validity bween the parties. Hence, this rule may by analogy be included under the Statute of Frauds. (See Gamboa v. Gamboa, 52 Phil. 503). For effectivity insofar as THIRD

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PERSONS are concerned, the trust must be in a public instrument and REGISTERED in the Registry of Property (since real property is involved). Express trust concerning property in the Philippines are ended by: (1)

mutual agreement by all the parties;

(2)

expiration of the term of the trust;

(3)

fulfillment of the resolutory condition;

(4)

rescission or annulment (as in other contracts);

(5)

loss of the subject matter of the trust (physical loss or legal impossibility);

(6)

order of the court (as when the purpose of the trust is being frustrated);

(7)

merger; and

(8)

accomplishment of the purpose of the trust;

It should be noted that a testamentary trust for the administration and eventual sale of certain properties of the testator ends not at the time the trustee’s petition for the sale of the property is approved by the court, but at the time said sale is actually made and the proceeds thereof distributed to the proper recipients. (Trusteeship o f Estate of Benigno Diaz, L-1011, Aug. 31, 1960).

Chapter XXI OBLIGATIONS AND CONTRACTS

SYNOPSIS OF CONFLICTS RULES

FACTUAL SITUATION

POINT OF CONTACT

(1) formal or extrinsic validity Exceptions:

(1) lex loci celebrationis (Art. 17, par. 1, Civil Code)

(a) alienation and encum­ brance of property

(a) lex situs (Art. 16, par. 1, Civil Code)

(b) consular contracts

(b) law of the Philippines (if made in Philippine consulates)

(2) capacity of the contracting parties

(2) national law (Art. 15, Civil Code) without prejudice to the case of Insular Gov­ ernment v. Frank, 13 Phil. 236, where the Supreme Court adhered to the theory o f lex loci celebrationis Exception:

Exception: (a) alienation and encum­ brance of property

(a) lex situs (Art. 16, par. 1, Civil Code)

(3) intrinsic validity (including interpretation of instru­ ments, and amount of damages for breach

(3) the proper law of the con­ tract — the lex contractus (in the broad sense), mean­ ing the lex loci voluntatis or the lex loci intentionis.

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OBLIGATIONS AND CONTRACTS

371

Note: Other theories are: (a) lex loci celebrationis (defect: this makes pos­ sible the evasion of the national law) (b) lex nationalii (defect this may impede com­ mercial transactions) (c) lex loci solutionis (law of the place of perform­ ance) (defect: there may be several places of performance). (d) Prof. Minor’s solution: 1) perfection — lex loci celebrationis. 2) cause or consid­ eration — lex loci considerations. 3) performance — lex loci solutionis. (defect: this theory combines the defects of the others)

CONFLICTS RULES FOR SPECIFIC CONTRACTS POINT OF CONTACT

FACTUAL SITUATION (1) Sales and Barter

(1)

(a) extrinsix validity (b) capacity of parties (c) intrinsic validity (2) Lease of Property (a) extrinsic validity (b) capacity of parties

(a) lex situs (b) lex situs (c) lex situs (2) (a) lex situs (b) lex situs

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(c) intrinsic validity

(c) lex situs lex

(3) Lease of Services (a) extrinsic validity (b) capacity of parties (c) intrinsic validity

(a) lex loci celebrationis (b) national law (c) loci voluntatis or lex loci intentionis

(4) Contract of Common Car­ riage of Goods (a) extrinsic validity

(a) fixed situs of the carrier (depot or resting place)

(b) capacity of parties

(b) fixed situs of the carrier

(c) intrinsic validity

(c) fixed situs of the carrier

(d) liability for loss, des­ truction, or deteriora­ tion of goods in transitu

(d) law of the destination (Art. 1753, Civil Code).

(5) Contract of Agency

(5)

(a) extrinsic validity

(a) lex loci celebrationis (unless the agency deals with the convey­ ance or encumbering of property — in which case the lex situs of the property applies)

(b) capacity of parties to be principal or agent

(b) national law o f the parties (unless the agency deals with the conveyance or encum­ bering of property — in which case the lex situs of the property applies)

\

(c) intrinsic validity

(c) lex loci voluntatis or lex loci intentionis (unless the agency deals with the conveyance or en­ cumbering of property, in which case the lex situs of the property applies)

OBLIGATIONS AND CONTRACTS

(6) Simple Loan (Mutuum)

373

(6)

(a) extrinsic validity (b) capacity of the parties (c) intrinsic validity (7) Commodatum

(a) lex loci celebrationis (b) national law (c) lex loci voluntatis or lex loci intentionis (7)

(a) extrinsic validity (b) capacity of the parties (c) intrinsic validity (8) Pledge, Chattel Mortgage, Real Mortgage, and Anti­ chresis

(a) lex situs (b) lex situs (c) lex situs (8)

a) lex situs (b) lex situs (c) lex situs

(a) extrinsic validity (b) capacity of parties (c) intrinsic validity

Note: These are accessory contracts only; therefore, if the principal contract (generally the contract of loan) is defective, the acces­ sory contract must also be deemed defective) (9) Guaranty and Suretyship (a) extrinsic validity (b) capacity of parties (c) intrinsic validity

(9) (a) lex loci celebrationis (b) national law (c) lex loci voluntatis or lex loci intentionis Note: These are also acces­ sory contracts; if the prin­ cipal contract is defective, the accessory contract is also generally defective.

DEFINITION OF OBLIGATIONS AND CONTRACTS IN GENERAL Obligation: While our Civil Code simply defines an obligation “as a juridical necessity to give, to do, or not to do.” (Art. 1156), a

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more accurate definition is the following: “An obligation is a juridical relation whereby a person (called the creditor) may demand from another (called the debtor) the observance of a determined conduct (the giving, doing, or not doing), and in case of breach, may demand satisfaction from the assets of the latter.” (Arias Ramos). (Quoted with approval by Justice J.B.L. Reyes in the Lawyer’s Journal, Jan. 31, 1951, p. 47). Contract: ' r* “A contract is a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service.” (Art. 1305, Civil Code).

FROM THE VIEWPOINT OF CONFLICT OF LAWS Strictly speaking, obligations and contracts as defined hereinabove include: (1)

those creating a status (like the contract of marriage);

(2)

those transferring real rights (like the sale of property);

(3)

those which are purely civil or commercial in nature.

In the realm of Conflict of Laws, a discussion of CONTRACTS does not include the first two. (See Wolff, Private International Law, p. 421). In this treatise, a special chapter has already been devoted to MARRIAGE AS A CONTRACT, and, therefore, the same will no longer be discussed here in the present chapter. Likewise another chapter has treated of both real and personal property, their conveyance, and they encumbering. However, inasmuch as property is involved in so many transactions, it was deemed prudent to also occasionally refer to them in this chapter. In general, an attempt will be made to discuss individually the following elements in a contract: (1)

formal or extrinsic validity;

(2)

capacity of the contracting parties;

(3)

intrinsic validity (including consideration or cause, the interpretation of the instruments, and nature of damages for breach or non-performance).

OBLIGATIONS AND CONTRACTS

375

FORMAL OR EXTRINSIC VALIDITY In our country, our general rule on formal or extrinsic validity is explicitly indicated in the first paragraph of Art. 17 of the Civil Code, namely: “The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.” This is the theory o f lex loci celebrationis. This is also followed in Art. 52, par. 2 of the Code of Commerce and in Art. 11 of the Spanish Civil Code. Illustrations: (a)

A contract entered into in Illinois must follow the formalities prescribed by the law there. It is compulsory for the1parties to do this (not merely optional). (See Insular Government v. Frank, 13 Phil. 236).

(b)

A power of attorney executed in Germany must follow German formalities so that said power may be given effect here in the Philippines. (Germann and Co: v. Donaldson, Sim, and Co., 1 Phil. 63).

Exceptions: (a)

If the contract involves say the sale of property, the formalities of the lex situs (not that of the lex loci celebrationis) must be complied with. Example: AChinese sold in Chile to a Filipino a parcel of land in the Philippines. The Philippine formalities for such a sale should be followed. (Art. 16, par. 1, Civil Code).

(b)

If the contract is celebrated in a foreign country (but within the premises of the Philippine embassy or consulate in said foreign state), Philippine formalities must be complied with, because under the principle of exterritoriality, it is as if the embassy or consulate is considered an extension of Philippine territory. Thus, the second paragraph of Art. 17 of the Civil Code read: “When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution.”

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PHILIPPINE CONFLICT OP LAWS

NOTE: Exterritoriality is the fiction in international law by virtue of which certain foreign persons and their things are exempted from the jurisdiction of a State on the theory that they form an extension of the territory of their own state. Traditionally, diplomatic inmmunities have been premised on this “exterritoriality ” but in recent years the thought has grown that if ever diplomatic immunities continue to exist, it is because they are given as concessions of the national law of a state to assure full freedom in the exercise of diplomatic functions. (Justice Edgardo L. Paras and Dr. Edgardo C. Paras, Jr., Irtternational Law and World Politics, 1994, ed., p. 306). The principle of exterritoriality is contradistinguished from that of the extraterritoriality. The latter principle is the exemption of foreign persons from the laws and jurisdictions of the state in which they presently reside, an exemption which can exist only by virtue of a treaty stipulation to this effect. (Ibid.). While extraterritoriality deals with the exemption of persons only, exterritoriality exempts persons and things; extraterritoriality can exist only because of a treaty, while exterritoriality is generally premised on an international custom. (Ibid., p. 307). A provision on extraterritoriality allows the foreigners to be governed by their own diplomatic or consular tribunals. (Ibid.). Thus, acts of foreign governments purporting to have an extraterritorial effect should be recognized by U.S. courts only if they are consistent with the law and policy of the United States. Since the Costa Rican government’s unilateral attempt to repudiate private commercial obligations was inconsistent with U.S. law and policy, the court refused to recognize the extraterritorial effect of the Costa Rican government’s decrees. (Allied Bank International v. Banco Credito Agricola de Cartago, 757, F.2d 516 [U.S. Court of Appeals, 2d d r.], Mar. 18, 1985). Considering further that extraterritorial jurisdiction is the juridical power which extends beyond the physical limits of a particular state or country, i.e., the extraterritorial operation of laws involves operation upon persons, rights, or jural relations, existing beyond the limits of the enacting state or nation, but still amenable to its laws, crime is said to be extraterritorial when committed in a state or country other

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than that of the forum in which the party is tried. (Black’s Law Dictionary, abridged fifth ed., p. 303). Note: While the Statute of Frauds is considered by some as substantive in character, the majority of courts declare it to be merely procedural, and therefore governed by the lex fori. Thus, Goodrich states the following: “The law of the place where the action is brought controls all procedural matters and may require that before a contract is proved in its courts, it must meet certain formal requirements, no matter where the agreement was made. Courts taking this view of their local Statute of Frauds would then refuse enforcement of a foreign contract which did not conform to the local statute, though the contract was admittedly a valid one.” (Goodrich, Conflict o f Laws, p. 316). The better (and more just) approach, however, would be, as already discussed in the Chapter on CHARACTERIZATION, to consider the Statute of Frauds which the parties presumably intended to be applicable to their particular transaction (lex loci voluntatis or lex loci intentionis). (As adopted iri most states, the Statute of Frauds provides, that no suit or action shall be maintained on certain classes of contracts or engagements unless there shall be a note or memorandum thereof in writing signed by the party to be charged or by his authorized agent. [Black’s Law Dictionary, abridged fifth ed., p. 337]. [See Arts. 1403, 1405, and 1406, Civil Code].) BAR QUESTION QUESTION: Suppose our law provides that certain instruments shall be void and unenforceable unless they bear documentary stamps, and a written contract is entered into in the Philippines to be performed in France. The contract was not stamped in the Philippines as required by its law. The placing of a stamp on written contracts is not, however, required by the laws of France. In an action brought on the contract in France, may the defendant avail himself of the invalidity of the contract? Explain. ANSWER: Since the forum of the problem is France, the answer will depend not on Philippine Conflict of Laws, but on French Conflict of Laws. On the assumption that the French conflicts rule on the matter is identical with ours, it is believed that the contract should be considered as valid, and the defense

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of invalidity cannot be sustained. The rule to apply is evidently the lex loci voluntatis or the lex loci intentionis — that which was voluntarily agreed upon or intended by the parties — and we can assume that the parties intended French internal law to apply because the place of performance is there in France. We cannot presume that the parties were not sincere or that they did not intend to be bound by their agreement. “Ut res magis valeat qua pereat” (a contract should be so interpreted as to effectuate to the fullest extent the intention of the parties). Incidentally, Prof. Rabel, eminent authority on the subject, beliefes that the rule hereinabove discussed is that which is also followed in France. [Rabel, The Conflict o f Laws, pp. 368369; see also Pritchard v. Norton, 106 U.S. 124 (1882).]

CAPACITY OF THE PARTIES Capacity of the parties to enter into a contract is generally governed by the national law. (Art. 15, Civil Code). One outstanding exception, of course, is in the case of the alienation or encumbering of properties, both real and personal, for here capacity is doubtless governed by the lex situs. (Art. 16, par. 1, Civil Code). Example: If a Japanese enters into a contract with another Japanese in California, Japanese law governs their capacity to enter into the contract; but if the transaction concerns real or personal property in the Philippines, their capacity will be governed by Philippine law because of the location of the property. (Arts. 15 and 16, Civil Code). Unfortunately, however, our Supreme Court in a case NOT INVOLVING PROPERTY once held that instead of the national law, what should determine capacity to enter generally into a contract is the lex loci celebrationis. (Insular Government v. Frank, 13 Phil. 236)'. Insular Government v. Frank 13 Phil. 236 FACTS:

Mr. Frank, an American citizen from Illinois, U.S.A., entered into a contract with the Philippine government to serve as a stenographer for a period of two years. He served for only six months, and, therefore, the government

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379

sued for damages. Frank presented minority as a defense. The contract was •entered into in Illinois (in said State, Frank was considered an adult)-, under Philippine laws, Frank was still a minor. HELD:

The contract is valid because at the time and place of the making of the contract (loci celebrationis), Frank was of age and fully capacitated. Therefore, Frank can be held liable for damages.

OBSERVATION: The reason given by the court was: “No rule is better settled in law than that matters bearing upon the execution, interpretation, and validity where the contract was made. (Scudder v. Union National Bank, 91 U.S. 406). Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respect­ ing a remedy, such as the bringing of a suit, admissibility of evidence, and statutes of limitations, depend upon the law of the place where the suit is brought. The defendant being fully qualified to enter the contract at the place and time the contract was made, he cannot plead infancy as a defense at the place where the contract is being enforced.” It is believed that there are several errors in the sentences quoted: however, at this juncture mention will be made of merely one: Frank’s capacity should be judged by his NATIONAL LAW and not by the law of the place where the contract was entered into. This is the clear implication of Art. 15 of the Civil Code. (Art. 9 o f the Spanish Civil Code). Of course, in the instant case, whether Frank’s national law or the law of the place where the contract was made should be used is immaterial,

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for they happen to be the same; however, the doctrine would have had a different result if the contract had been entered into in the Philippines, for under the doctrine of lex loci celebrationis, the contracts would have been considered invalid; under the national law theory, the contract would be valid.

SUGGESTIONS FOR THE CONFLICTS RULE ON CAPACITY IN GENERAL If an alien, incapacitated under his national law, enters into an ordinary contract in the Philippines (where he is considered capacitated), Art. 15 of our Civil Code clearly ordains that the contract be considered defective (applying the nationality principle) in view of the incapacity. This may result firstly in inconvenience (for an investigation of the national law of a party may greatly impede business transactions); and secondly, may produce unjust effects. It is, therefore, suggested that as to ordinary contracts (those not involving status or property) the national law of the parties should be controlling except (if (1) the contract was entered into in the Philippines; or if (2) the performance thereof would be in the Philippines and our public policy on the matter will be jeopardized. (See the Geneva Convention, and the German Civil Code o f 1896).

INTRINSIC VALIDITY OF CONTRACT The intrinsic validity of a contract (including the consideration or cause thereof, the interpretation of the instruments, and the nature and amount of damages for breach or non-performance) must be governed by the “proper law of the contract” (the lex contractus, considered in the broad sense). This is the law voluntarily agreed upon by the parties (the lex loci voluntatis) or the law intended by them expressly or implicitly (the lex loci intentionis). While this rule is not expressly provided for in our laws, this is followed by most legal systems. (See I Castan 100; I Manresa 118119; Rabel, Conflict of Laws, Vo. II, p. 357). According to Dean Graveson, there are some aspects of a contract that cannot be subject to stipulation such as form and capacity; however in all other aspects the free will of the parties

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may properly govern. (See Graveson, Conflict o f Laws, p. 172). Manresa also opines that the parties may freely stipulate as to the determinative law. (1 Manresa, 118-119). In the case of Lauritzen v. Lauritzen, 73 Sup. Ct. 921, the United States Supreme Court held that “except as forbidden by some public policy, the tendency of the law is to apply in a contract matters the law which the parties intended to apply.” The rule is implicitly recognized in our own Civil Code — “The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.” (Art. 1306, Civil Code). The law selected may be expressly agreed upon (here there would be little difficulty) or may be implied (from such factors as the following: the law having the most substantial connection with the transaction; the nationality and domicile of the parties; the law most favorable for the effectivity or efficacy of the contract for we should presume that the parties intended to be bound by their agreement). (See Cheshire, Private International Law, pp. 312-313). Such agreements, may involve complex financial transactions like foreign debt (loan) and derivatives contracts (options like put, call, straddle, swaps, swaption, commodity futures, and the like). Limitations and Principles in the Choice of Law: (1)

The choice may be made expressly or impliedly. If of two possible choices, one law provides certainly specific remedies in case of breach, and the other does not, it is understood that the first law applies if the contract makes mention of said remedies. (See Wolff, Private International Law, p. 434).

(2)

Several laws may be selected, each of which governs different elements of the transaction. (Cheshire, Private International Law, p. 236).

(3)

Generally, the parties cannot select a law that has no connection at all with the transaction. (Cook, Legal and Logical Bases of the Conflict o f Laws, p. 423). However, important reasons may have prompted the parties to make such a choice: these reasons, we should disincline to disregard.

*• (4)

If the law selected should change, it is that law, as changed, that will apply, for we must presume that at the time of contracting, the parties were cognizant of the

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dynamic quality of law. One exception would be if the change is so revolutionary that it was never contemplated by the parties. In such a case, we must consider that law intended — and this is inferable from other circumstances. (See Wolff, Private International Law, pp. 430-431). (5)

If under the law selected, the contract is legal, but in the place of performance, it is illegal, the selected law must naturally prevail, and the contract should therefore be considered legal. (See Rabel, Conflict o f Laws, Vol. II, p. 537). A contrary rule, such as that stated in the American Restatement (Sec. 360) would frustrate the intention of the parties, and would make the place of performance the controlling factor, even if such place be merely accidental. Moreover the “place of performance” is characterized diversely by different countries. (See Wolff, Private International Law, p. 135).

(6)

Assuming that the law of the place of performance can be ascertained (as when there is an express stipulation on this point), still questions of substantial and essential validity (e.g., whether the contract is valid or voidable or void) should be governed by the proper law of the contract; only such minor details (e.g., payment during reasonable business hours) should be governed by the law of the place of performance (the lex loci solutionis). (Cheshire, Private International Law, p. 337).

(7)

While the parties may stipulate on the proper law of the contract, they cannot stipulate on the jurisdiction of courts. (See Molina v. De la Riva, 6 Phil. 12). Molina v. De la Riva 6 Phil. 12 FACTS:

An American corporation delivered in America to a German corporation a consignment of agricultural machinery to be carried on the German steamer “Bulgaria.” Vladivostok, Russia, was the place of destination. Under the BILL OF LADING, it was stipulated that in case of disputes under the contract; the question would be, at the carrier’s option, decided exclusively by German courts applying German law.. During the voyage, war broke

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out between Germany and Russia, and the ship had to go in the meantime to Manila. While in M anila, the shipper asked either for a transhipment of the goods to Russia, or their surrender by the carrier. When the carrier refused, the shipper started suit in Manila. The carrier raised the issue of jurisdiction, alleging that under the terms of the bill of lading, Philippine courts had no jurisdiction. HELD:

Philippine courts have jurisdiction for a contractual stipulation cannot operate to oust our courts of their jurisdiction under the law. Companie de Commerce, etc. v. Hamburg-Amerika, etc. 36 Phil. 590

FACTS:

A French shipper of goods aboard a German vessel felt prejudiced when the ship had to take refuge in Manila due to the outbreak of World War I, and so, he brought suit in our country for damages. Under the charter party (the contract), there was a clause providing for the settlement of disputes by first referring them to a Board of Arbitrators in London, England. Defendant asserted that our courts were WITHOUT jurisdiction over the subjectmatter — in view of the contractual stipulation referred to.

HELD:

Our courts have jurisdiction. Moreover, it was alleged and proved that in England, such a stipulation is considered valid, that is, it was NOT alleged and proved that compliance, is a CONDITION PRECEDENT for the enforce­ ment of the contract.

Other Theories on What Should Govern Intrinsic Validity: (1)

The Theory of lex loci celebrationis The advantage of this theory is that generally, the place of execution may readily be ascertained; moreover once this principle is universally adhered to, the parties

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PHILIPPINE CONFLICT OF LAWS

would know what law will apply, thus facilitating commercial agreements. (See Goodrich, Conflict o f Laws, p. 322). Defects: (a) the theory makes possible the evasion of the national law; (b) the place of contracting may have very little substantial connection with the transaction. (Ibid., p. 323). (2)

The theory of lex nationalii Defects: (a) the lex nationalii may not easily be determined; (b) an investigation of the lex nationalii may ,i>e timeconsuming; (c) the nationality of the parties may be different — all these impede commercial transactions. (See Lorenzen, Selected Essays, p. 291).

(3)

The theory of lex loci solutionis The theory finds justification in the inherent and natural connection of the place of performance with the contract itself. (See Story, Commentaries on the Conflict o f Laws, p. 376). Defects', there may be several places of performance for different parts of the contract; moreover in some cases the place of performance may not have been previously fixed. (See Goodrich, Conflict o f Laws, p. 325).

(4)

The theory of Prof. Minor According to Prof. Raleigh Minor, different laws govern the various elements of a contract, thus: (a)

the perfection of the contract — is governed by the lex loci celebrationis;

(b)

the sufficiency and validity of the cause or consideration — is determined by the lex loci considerations;

(c)

questions of performance are controlled by the lex loci solutionis. (Minor, Conflict of Laws, p. 420).

Example: In a contract entered into in Alaska where a Chinese would render a concert in Manila in consideration of an automobile to be manufactured in Germany — Prof. Minor would want to have the validity of the meeting of the minds tested by Alaskan law (lex loci celebrationis)-, the sufficiency of the cause or

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385

consideration, by German law (lex loci considerationis); and damages for nonperformance, by Philippine law (the lex loci solutionis). Defects: The theory suffers (in combined or cumulative form) the defects of all the other theories: moreover, the question of cause or consideration goes into the very validity of the contract itself, and must therefore not be considered separately from all questions on perfection. (See Lorenzen, Selected Essays, p. 270). BAR QUESTION X and Y entered into a contract in Madrid, Spain, wherein it was agreed that X would construct for Y an apartment in Manila, the consideration being Y’s house and lot in San Francisco, California. The laws of what country or countries would govern: (a)

the validity of the contract;

(b)

its performance;

(c)

its consideration? Reason.

ANS.: Since the contract deals with a building to be constructed in Manila, its seems clear that the validity thereof would depend on the lex situs, namely, Philippine law. In fact, Philippine law should govern everything about the contract. (Art. 16, par. 1, Civil Code). However, Prof. Minor would say that the validity of the contract, would be governed by the lex loci celebrationis — Spanish law; performance and damages in case of breach would depend on the lex loci solutionis — Philippine law; and the sufficiency of the consideration would depend on the lex loci considerationis — California law.

CONFLICTS RULES FOR SPECIFIC CONTRACTS ^or the conflicts rules on specific contracts, see the summary at the beginning of the Chapter. The rules have been derived generally from the preceding discussion on contracts in general. Attention must be called to the fact, however, that in contracts involving the alienation, disposition, carriage, or encumbering of property, the general determinative law is the lex situs.

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PHILIPPINE CONFLICT OF LAWS

BAR QUESTION What law governs the transportation of goods abroad a Philippine vessel from Europe to the Philippines? Discuss briefly. ANS.: Transportation of goods aboard a Philippine vessel from Europe to the Philippines will be governed: (a)

primarily by Arts. 17321766 of the Civil Code. (Art. 1753, Civil Code)\ and

(b)

subsidiarily, by the Code of Commerce. (Arts. 573736, 806-869);

(c)

In default of (a) and (b), by the Carriage of Goods by Sea Act. (Tart Lian Grocery, Inc. v. De la Rama Steamship Co., Inc., 54 O.G. 8076).

With respect to liability for loss, destruction, and deterioration of the goods in transitu, the law of the destination, i.e., the Philippines, will govern. (Art. 1753, Civil Code). BAR QUESTION A logging company uses big quantities of gasoline and diesel fuel, buying the same from an American Oil Company in big containers or drums. May the American Oil Company sell the gasoline and diesel fuel directly to the logging company? Reasons. ANS.: (a)

If the American Oil Company is selling the gasoline and diesel fuel from the United States, and exporting it to the logging company in the Philippines, such sales does not violate any Philippine law, not even the Retail Trade Act, because it is a sale made in the United States, and not in the Philippines, hence, the sale is outside the purview of the Retail Trade Act.

(b)

If the American Oil Company is in the Philippines, the direct sale to the logging company (incidentally, this is RETAIL sale, for the buyer is the consumer or end-user, despite the big quantities involved) can be made according to previous opinions of the

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Secretary of Justice only if the American Company is 100% American-owned (or 100% American-Filipino owned), at least during the effectivity of the LaurelLangley Agreement between the Philippines and the United States. (Opinion o f the Secretary o f Justice, No. 253, Series of 1954, and No. 71, Series o f 1963, re par. 2, Sec. 1, Rep. Act No. 1180). [In 1966, the Secretary of Justice ruled that American citizen and juridical entities wholly owned by them are exempt from the operation of the Retail Trade Act — Rep. Act No. 1180. And a Presidential Directive dated Dec. 31, 1966 has been issued to the effect that until otherwise decided by the Supreme Court, the opinion of the Secretary of Justice should be followed by all departments, offices, and instrumentalities under the Executive Department, both national and local. The validity of said Presidential Directive, pending resolution of the retail trade question by the Supreme Court, was sustained by the Supreme Court itself in Antonio J. Villegas v. Claudio Teehankee, L-27928, Jan. 18, 1967]. Philippine Banking Corporation, representing the Estate of Justina Santos y Canon Faustino v. Lui She, administratrix of the Intestate Estate of Wong Hong L-17587, Sept. 12, 1967 FACTS:

Justina Santos, an aged Filipino woman, leased to Wong, a Chinese citizen, a parcel of land on Rizal Avenue, Manila, for a period of fifty (50) years, and also gave to the latter an option to purchase the same (within said period of 50 years), payable in 10 years, on the condition that Wong would become a Filipino. Justina died. Wong also died without having become a Filipino. Justina’s administrator, the Philippine Banking Corporation now sues Wong’s estate and surviving spouse (administratrix of her husband’s estate) for the recovery of the land. It was alleged that no recovery should be

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allowed — firstly, because the contract was validly entered into, and secondly, assuming the nullity of the same, Justina’s administrator should not be allowed to recover on the theory that Justina herself was a party to the transaction. ISSUE: (a)

Is the contract valid? Reasons.

(b)

May Justina’s administrator recover the land? Reasons.

(a)

While generally the contract should have been valid, still there appears to be a deliberate plan to circum vent the Constitution. The lease of land for 50 years in favor of an alien is rather long (virtually depriving the lessor-owner of jus utendi, jus possedendi, jus abutendi for 50 years); the option to buy within same period of 50 years likewise deprives the lessor-owner of jus disponendi for a like period. Since all together these rights constitute the essence o f ownership, the contract has virtually made the lessee the OWNER, contrary to the intent o f the Constitution. Parenthetically, the statement in the Smith Bell case (Smith, Bel & Co. v. Reg. of Deeds o f Davao, L7084, Oct. 27, 1954) that a lease of land for99 years in favor of alien was a mere obiter dictum, premised on the provision in the Civil Code that a lease for 99 years is valid. It is obiter because in said Smith Bell case, the lease contract was only for 25 years, renewable for another period of 25 years. Thus the Court did not then squarely determine the effect of a long lease of land in favor of an alien.

(b)

Justina’s administrator will be allowed to recover the land, notwithstanding the fact

r* HELD:

's

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389

that Justina was herself a party to the illegal transaction. The “pari-delicto” (mutual guilt) rule to the effect that a party to an illegal transaction cannot get back what had previously been given, should in the present case be relaxed or modified because of the following reasons: 1)

firstly, Justina, the guilty party is already dead, and it is doubtful as to whether her heirs or the administrator of the estate can also be put under the cloud of guilt;

2)

secondly, under Art. 1416 of the Civil Code, the *pari delicto” rule cannot apply, if the law is for the protection of the person seeking recovery and if, by allowing recovery, public policy will be enhanced; and

3)

thirdly, because if recovery will not be allowed, the alien will continue having the property (in view of the government’s failure in very many cases to file the necessary escheat proceedings so that the lands concerned can become government property). This continued ownership by a disqualified alien can only result in a continuing violation o f the Constitution. (“Escheat” is the reversion of property to the state in consequence o f a want o f any individual competent to inherit. [Black’s Law Dictionary, abridged fifth ed., p. 282].)

Chapter XXII TORTS (QUASI-DELICTS)

SYNOPSIS OF CONFLICTS RULES FACTUAL SITUATION

POINT OF CONTACT

(1) Liability and Damages for Torts in General

(1) lex loci delicti commissi (law of the place where the delict was committed)

NOTE: The locus delicti (place of commission of torts) is faced by the problem of characteriza­ tion. In civil law countries, the locus delicti is generaly where the act began; in com­ mon law countries, it is where the act first became effective.

NOTE: Liability for foreign torts may be enforced in the Philippines if:

,

(a) the tort is not penal in character (b) if the enforcement of the tortious liability will not contravene our public policy (c) if our judicial machi­ nery is adequate for such enforcement.

*0

TORT DEFINED A tort is a legal wrong committed upon another’s person or property independent of a contract. It may be: (1)

a direct invasion of some legal right of the individual;

390

TORTS (QUASI-DELICTS)

391

(2)

the infraction of some public duty by which special damage accrues to the individual; and

(3)

the violation of some private obligations by which like damage accrues to the individual. (Black’s Law Dictionary, abridged fifth ed., p. 774). Three (3) elements of every tort action are:

(1)

existence of legal duty from defendant to plaintiff;

(2)

breach of duty; and

(3)

damage as proximate result. (Black’s Law Dictionary, abridged fifth ed., p. 774). Thus, an injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. (Ibid., p. 641).

In the Philippines, Art. 20 of the Civil Code reads: “Every person who, contrary to law, wilfully or negligently causes damage to another, shall imdemnify the latter for the same.” This Article correctly understood embraces two (2) concepts of tort: (1)

the Spanish tort — based on culpa aquiliana or negligence — “Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done.” (Art. 2176, Civil Code).

(2)

the American tort — based on malice and wilful intent. (See wording o f Art. 20; see also Prosser, Torts, p. 4).

LIABILITY AND DAMAGES FOR TORTS IN GENERAL Liability and damages for torts, in general, are governed by the lex loci delicti commissi (the law of the place where the delict or wrong or tort was committed). (See Cheshire, Private International Law, p. 367). Two (2) important reasons have been given for this rule: (1)

Firstly, the state where the social disturbance occurred has the primary duty to redress the wrong, and to determine the effects of the injury;

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(2)

Secondly, the law of said state must be presumed to have been foremost in the mind of the parties concerned: thus they acted with knowledge of the resultant consequences under said law. (See Rabel, Conflict of Laws, Vol. II, pp. 251-252).

While it may generally be said that the above-mentioned theory is almost universally followed, conflict often arises in the characterization of the locus delicti (the place where the wrong was committed). (See Wolff, Private International Law, p. 500).

CHARACTERIZATION OF THE LOCUS DELICTI There are at least three (3) theories as to where the locus delicti in torts is: (1)

Civil law theory — the locus delicti is where the act began. This is because rules on tort are intended to regulate human conduct; hence a person who wilfully or negligently acts contrary to social norms must be held liable for any injury caused. (See Rabel, Conflict of Laws, Vol. II, p. 303).

(2)

Common law theory — the locus delicti is where the tortious act first became effective. The reason is evident: until there is produced some effect, some result, no injury or wrong has really been committed, despite the disregard of human norxris. The law on torts seeks to give protection and redress; without injury, there is no necessity for judicial intervention and relief. (See Sec. 377, American Restatement).

(3)

The theory of Dr. Rabel — the locus delicti is the place which has the most substantial or essential connection with the act (example: the situs of the radio station that broadcasts a libelous or slanderous remark). (See Rabel, Conflict o f Laws, Vol. II, pp. 334-335).

Example: While negligently cleaning his gun, a person situated in State A accidentally shot another in State B, who then was rushed to a hospital in State C, where the victim finally died. Where is the locus delicti? Answer: (1)

According to the civil law theory, the locus delicti is State A because the negligent act occurred there.

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393

(2)

Under the common law theory, State B is the locus delicti because the injury was felt there.

(3)

From the viewpoint of Dr. Rabel’s theory, the locus delicti is evidently State A, because it has the most substantial connection with the tort. Had the gun not been fired, there would have been no injury.

It is submitted that generally the theory of Dr. Rabel should control as it is the most logical one.

SPECIAL RULES (1)

If the tort is committed aboard a public vessel, whether on the high seas or in foreign territorial waters, the country to which the vessel belongs is the locus delicti; the law o f the flag is thus the lex loci delicti commissi. (The “law of the flag” in maritime law, is that law of the nation or country whose flag is flown by a particular vessel. A shipowner who sends his vessel into a foreign port gives notice by his flag to all who enter into contracts with the master that he intends the law of that flag to regulate such contracts, and that they must either submit to its operation or not contract with him. [Black’s Law Dictionary, abridged fifth ed., p. 327].)

(2)

If the tort takes place aboard a private or merchant vessel on the high seas, the law of the flag is likewise the lex loci delicti commissi. If the vessel is in a foreign port or within foreign territorial waters, the rule is not uniform. However, it is suggested that generally the law of the flag must also be determinative. The rules in the case of crime should not necessarily be applied because in the case of torts the parties are interested merely in the civil liability, not the public punishment of the offense.

(3)

If the tort concerns property, whether real or personal, the lex situs is usually also the lex loci delicti commissi. (See Minor, Conflict of Laws, pp. 475-486).

(4)

Maritime Torts (a)

If the colliding vessels are of the same state, or carry the same flag, said law is the lex loci delicti commissi.

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(b)

If the vessels come from different states, whose laws however, on the matter are identical, said laws constitute the lex loci delicti commissi.

(c)

If the vessels come from different states with different laws, the lex loci delicti commissi is the general maritime law as understood and applied by the forum where the case is tried. (See The Belgenland, 114 U.S. 355; The Scotland, 105 U.S. 24).

SOME C/&ES Morrisette v. Can Pac. R. Co. 76 Vt. 267 FACTS:

A railroad employee of the Canadian Pacific Railway Company, while in the performance of his duties in Quebec suffered injuries there as a result of the Company’s negligence and hiw own contributory negligence. Suit was brought for damages in Vermont, where contributory negligence BARS recovery. Quebec law, upon the other hand, allows recovery and contributory negligence merely serves to reduce the amount of damages. Issue: May recovery be allowed?

HELD:

Yes, the victim may recover. The lex loci deicti commissi is clearly Quebec law, since the tort took place there. To enforce the liability will not in any way violate the public policy of Vermont. Neither will the application of the Quebec law militate against pure morals or abstract justice.

4

Le Forest v. Tolman 177 Mass. 109 FACTS:

Tolman owned and kept a dog in Massa­ chusetts. One day the dog which had strayed to New Hampshire bit someone named Le Forest in the latter state. Under Massachusetts law, recovery of damages may be had; in New

TORTS (QUASI-DELICTS)

395

Hampshire where the act took place, the injury is not actionable. Suit was brought in Mas­ sachusetts. ISSUE:

May the victim recover?

HELD:

Recovery will not be allowed since the lex loci delicti commissi is clearly New Hampshire law, which does not consider the injury actionable. In order to successfully maintain an action of tort, founded upon injury to person or property, the act which is the cause of the injury and the foundation of the action must at least be actionable or punishable by the law of the place in which it was done, if not also by the law of the place where redress is sought.

ENFORCEABILITY OF FOREIGN TORTS IN THE PHILIPPINES

9

In the Philippines, foreign torts may properly be the subject of suits provided certain conditions are present, aside from the requisite that our courts must have jurisdiction over the case. Incidentally, mention may be made of the fact that, generally, a suit to recover on a foreign tort is cognizable in any state where jurisdiction may be acquired over the person of the defendant (since the action for damages is one in personam). Even tort suits for trespass to real and personal property in foreign countries may properly be entertained in the Philippines, for, after all, we are merely concerned here with the recovery of damages, and not with the ownership, title, or encumbering of the property involved. If any question of title is involved, this would be merely incidental to the real issue — the commission of the alleged wrong. (See Goodrich, Confict o f Laws, p. 271). Thus, if the defendant is personally served by the summons of our tribunals, or if he voluntarily appears in court even without such service (unless of course, the precise purpose of his appearance is to question the jurisdiction of our courts [See DeJ.os Santos v. Montesa, Jr. 221 SCRA 15 (1993)], our courts may validly decide the case, applying the proper lex loci delicti commissi (as already discussed in the preceding paragraphs). However, as already intimated hereinabove, there are at least three (3) conditions which must be complied with, before recovery may be had for the aggrieved party, namely:

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(1)

The foreign tort must not be penal in character;

(2)

The enforcement of the tortious liability should not contravene our public policy; and

(3)

Our judicial machinery must be adequate for such enforcement. (See Minor, Conflict o f Laws, pp. 479-485). Slater v. Mexican National Railway Co. 194 U.S. 120 FACTS:

Suit was brought in a Texas court for damages because of a death in Mexico. Under Texas law, payment of damages should be in a lump sum; Mexican law however, which was the lex loci delicti commissi, ordained that payment be made in the installments over a long period of time, the amount for each to vary depending on the needs of the recipients.

HELD:

The Mexican manner of awarding indemnity is a remedy which Ame­ rican courts are not prepared to undertake, in view of the lack of the proper judicial machinery for the purpose. Hence, the case was dis­ missed, instead of having the court award the substitute Am erican remedy. The substitute may prove onerous and burdensome for the victim’s heirs.

OBSERVATION:

The decision of the United States Supreme Court is in line with Prof. Minor’s statement that the foreign lex loci delicti commissi will not be enforced if it creates a statutory tort, where the statute in creating the liability, at the same time, creates a method of redress or indemnification peculiar to the foreign state, and which may be remedied SOLELY by such state. (See Minor, Conflict of Laws, p. 485). Parenthetically, it

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397

should be stated that Prof. Minor distinguished two kinds of tort in the United States: the common law tort and the statutory tort. He says: Common law tort are such as are actionable, or at least condemned, by the common law without the aid of any statute, the demand for compensation being justified upon principles of inherent justice and of expediency; while statutory torts comprise those acts for which redress is given by statute, but which were not actionable at common law, either because no essential principle of right and justice demanded it, or because redress could not be afforded without violating some technical rule of the common law.” (Minor, Conflict of Laws, p. 477).

APPLICATION BY PHILIPPINE COURTS OF THE PROPER LEX LOCI DELICTI COMMISSI Once our tribunals find themselves confronted with the properly proved and pleaded lex loci delicti commissi, said law will now be used to govern, among other things, the following points: (1)

The proper prescriptive period — Under Sec. 48 of the Code of Civil Procedure, “If, by the laws of the state or country where the cause of action arose, the action is barred, it is also barred in the Philippine Islands;”

(2)

The proper parties — plaintiffs and defendants — of the case. (See Rabel, Conflict of Laws, Vol. I, p. 259);

(3)

Whether or not the act is considered the proximate cause of the injury. (See Stumberg, Principles of Conflict of Laws, p. 169);

(4)

The measure o f damages, except punitive (relating to punishment or penalty) ones. (See Rabel, op. cit., pp. 276277);

(5)

The burden of proof and the defenses that may be interposed. (See Minor, Conflict of Laws, pp. 485-490;

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PHILIPPINE CONFLICT OF LAWS

Rabel, op. cit., p. 283). (“Burden of Proof’ is a term which describes two [2] different concepts: (1) the burden o f persuasion, which under traditional view never shifts from one party to the other at any stage of the proceedings; and (2) the burden o f going forward with the evidence, which may shift back and forth between the parties as the trial progresses. [Black’s Law Dictionary, abridged fifth ed., p. 102]). (“Defenses” as used herein speak of a response to the claims of the other party, setting forth reasons why the claims should not be granted. The defense may be as simple as a flat denial of the other party’s factual allegations or may involve entirely new factual allegations. In the latter situation, the defense is an affirmative defense. (Ibid., p. 218). Under the Rides of Civil Procedure, many defenses may be raised by motion as well as by answer [Rule 6, Sec. 4, Rules of Court); while others must be pleaded affirmatively. (Rule 8, Sec. 1, id.].)

V

•

Chapter XXIII CRIMES

SYNOPSIS OF CONFLICTS RULES

FACTUAL SITUATION

POINT OF CONTACT

(1) essential elements of a crime; and penalties there­ for

(1) generally where committed (locus regit actum) Theories As to What Court Has Jurisdiction (a) territorial theory — where the crime was committed (b) nationality or personal theory — country of which the criminal is a citizen or a subject. (c) protective theory — any state whose national interests may be jeo­ pardized has jurisdic­ tion so that it may protect itself (d) real theory — any state whose penal code has been violated has juris-

399

400

PHILIPPINE CONFLICT OF LAWS

diction, whether the crime was committed inside or outside its territory (e) cosmopolitan or uni­ versality theory — the state where the cri­ minal is found or which has his custody has jurisdiction. (f) passive personality theory — the state of which the victim is a citizen or subject has jurisdiction. NOTE: In the Philip-pines, we follow the territorial theory in general; by way of exception, Art. 2 of the Revised Penal Code stres­ ses the protective theory. (2) the locus delicti of certain crimes: (a) frustrated, and con­ summated, homicide murder, infanticide, and parricide

(a) where the victim was injured (not where the aggressor wielded his weapon)

(b) attempted homicide, etc. *

(b) where the intended victim was (not where the aggressor was situated) — so long as the weapon or the bullet either touched him or fell inside the territory where he was

(c) bigamy

(c) where the illegal mar­ riage was performed

(d) theft and robbery

(d) where the property was unlawfully taken from

CRIMES

401

the victim (not the place to which the crim­ inal went after the com m ission o f the crime) (e) estafa or swindling through false repre­ sentations

(e) where the object of the crime was received (not where the fasle repre­ sentations were made)

(f) conspiracy to commit treason, rebellion, or sedition

(f) where the conspiracy was formed (not where the overt act of treason, rebellion or sedition was committed)

NOTE: Other conspiracies are not penalized by our laws. (g) libel

(g) where published or circulated

(h) continuing offense

(h) any place where the offense begins, exists, or continues

(i) complex crimes

(i) any place where any of the essential elements of the crime took place.

CRIMES DEFINED In general, a crime is an act or omission punishable by law. If the transgression is against our Revised Penal Code, it is referred to as a felony, if against a special law, it is more particularly designated as an offense-, and if against a local or municipal ordinance, it is known as an infraction. States punish crimes not necessarily to protect private interest but to vindicate public justice. ■^Crimes may be committed thru deliberate deceit and malice, or thru negligence. Parenthetically it may be stated that in the Philippines there are really no crimes called for instance “homicide thru reckless imprudence” or “arson thru reckless imprudence.” Offenses of these nature are called “criminal negligence” under Art. 365 of the Revised Penal Code (regardless of whether homicide or

402

PHILIPPINE CONFLICT OF LAWS

arson, etc. is involved) and the proper names of the abovementioned crimes should be “reckless imprudence resulting in homicide” and “reckless imprudence resulting in arson,” respectively. The reason is clear — the law punishes the negligent or careless ACT, not the RESULT (See People v. Buas, L-25366, March 29, 1968; Laura Corpus, et al. v. Felardo Paje, et al., L-26737, July 31, 1969).

CRIMES DISTINGUISHED FROM TORTS (1)

Crimes are offenses against the state; tort violate private 'lights. (Minor, Conflict of Laws, p. 498).

(2)

Crimes are prosecuted in the name of the state; require criminal proceedings; and insist on proof of guilt beyond reasonable doubt. Upon the other hand, tort actions are instituted in the name of the aggrieved party; the proceedings are civil in character; and mere preponderance of evidence would suffice to obtain judgment for the plaintiff. (See Prosser, Torts, p. 10).

(3)

Punishment, reformation, exemplarity, and deterrence are the avowed purposes of the law on crimes; torts demand civil indemnification and reparation.

SIMILARITIES (1)

Both crimes and torts are unlawful acts requiring redress.

(2)

Crimes require criminal intent for offenses of deceit and malice; crimes mala prohibita and crimes of negligence or imprudence do not necessitate criminal intent. Similarly torts based on malice (the American concept of tort) fundamentally insist on intent; torts based on negligence or culpa aquiliana or quasi-delicts (the Castilian concept of tort) cannot be premised on intent. NOTE: Both crimes and torts, governed as they are by lex loci delicti, have their respective defenses. For instance, as regards defense to criminal charge, such defenses include alibi, consent, “corporate” liability defenses, de minimis infraction, duress, entrapment, ignorance or mistake, infancy, insanity, intoxication, law enforcement authority, necessity, protection of property, public duty, legal impossibility, self-defense and protection of others. Defense also means the forcible repelling of an

403

CRIMES

attack made unlawfully with force and violence, such as the defense of one’s person or property or nation in time of war. (Black’s Law Dictionary, abridged fifth ed., p. 218).

CHARACTERIZATION Whether an act is a tort or a crime depends on the characterization accorded the actuation in the state where it was committed (if we follow the Territorial Theory of Criminal Law). (See Beale, Conflict of Laws, Vol. II, p. 1290). In the Philippines, certain acts may be BOTH torts and crimes. Example: If an intoxicated driver as a result of an imprudent maneuvering of his vehicle crashes into another automobile and injures the passengers of the latter, he has committed both a tort and a crime. Under Art. 33 of the Civil Code there may be an independent civil action for the injury, regardless of the pendency of a criminal suit on the same act. Moreover, the Civil Code, expressly provides that responsibility for fault or negligence “is entirely separate and distinct from the civil liability arising from negligence under the (Revised) Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.” (Art. 2177, Civil Code).

THEORIES AS TO WHAT COURT HAS JURISDICTION TO TRY CRIMINAL CASES (THEORIES ON EXTRA-TERRITORIAL COMPETENCE) There are at least six (6) different theories as to what tribunal or legal system has jurisdiction to take cognizance of criminal cases: (1) the territorial theory; (2) the nationality or personal theory; (3) the protective theory; (4) the real property; (5) the cosmopolitan or universality theory; and (6) the passive personality theory. (See Harvard Research in International Law, 29 A.J.I.L., Supp. 1935).

(1)

The Territorial Theory

Under the territorial theory, the state where the crime was committed has jurisdiction to try the case; the penal code „ it will apply will, of course, be its own; the penalties to be meted out will also depend on its own law. The theory is based on this rationale: crimes affect directly and particularly the dignity, authority, and sovereignty of the state where the crime was committed. The aggrieved state is duty bound to prosecute and punish the offender if only to restore public

404

PHILIPPINE CONFLICT OF LAWS

order and trust. In general, it is this theory that is adhered to in the Philippines. Parenthetically, in some countries the territorial principle includes: (a)

the subjective territorial principle — by means of which the state has jurisdiction to prosecute crimes begun within the state but completed abroad. (Harvard Research in International Law, 29 A.J.I.L., Supp., 1935, p. 484);

(b)

the objective territorial principle — thru which the state can prosecute offenses begun abroad but completed within its territory. (Ibid., p. 487). Examples'. If aliens conspire abroad with persons within the United States to violate the country’s tariff laws, said aliens may be validly prosecuted in the United States, provided, of course, that somehow the U.S. can get said aliens within its power. (See Ford v. US, 237 US 593; Strassheim v. Daily, 221 US 280). A French naval officer, for an act of negligence originating from a French vessel was tried in a Turkish Court because the act of negligence resulted in a collision with a Turkish vessel, and fatal consequences to some passengers aboard said latter vessel. (The Lotus case, PCIJ, Ser. A. No. 10, 2 Hudson, World Court Reports 20).

(2)

The N ationality or P ersonal Theory (also referred to as the active nationality principle) States which follow the nationality or personal theory in criminal law are of the opinion that the country of which the criminal is a citizen or a subject has jurisdiction to try him for the offense he is supposed to have committed, whether the effectuation of the act be inside or outside its territory, provided that the act is a crime under his country’s penal law. According to this theory, penal laws follow a citizen or subject wherever he may be and wherever the crime may be committed, even if this be outside of the territorial jurisdiction of his own native land. (See Minor, Conflict of Laws, p. 497). Other reasons have been given to justify the theory; the citizen’s misbehavior in a foreign land adversely affects the social and moral order

CRIMES

405

of his country; if a citizen abroad expects his country’s protection he should be ready to obey its laws. (Harvard Research, p. 519); penal laws are of a personal nature and follow the national wherever he goes. (Alcorta, Principios de Derecho Penal Internacional, pp. 115-119; 121-123). (3)

The P rotective Theory Adherents of the protective principle say that any state whose national interests may be jeopardized has jurisdiction over criminal offenses, even if committed outside of its territory, and in some cases, even if committed by an alien in order that it may properly protect itself. (See Harvard Research, p. 543). By way of exception, this principle finds support in Art. 2 of the Revised Penal Code of the Philippines. Thus, if a Filipino or an alien should counterfeit Philippine currency in Singapore, he is amenable to prosecution under our criminal laws the moment he sets foot on Philippine soil.

(4)

The R ea l Theory (also referred to as the E clectic Theory) The real or eclectic theory in Criminal Law may be stated in this wise: any state whose penal code has been transgressed upon has jurisdiction to bring to justice the perpetrators of the offense, whether the crime was committed inside or outside of its own territory. While the protective principle (No. 3) takes cognizance only of very important state prejudicing offenses, the real theory demands authority over ALL crimes committed against a state’s penal statutes so long as any substantial contact is made with the state (whether it be contact because of territoriality, nationality, or any of the other theories). Crimes here would include piracy, slavery, drug trafficking, immoral traffic in women and children, war crimes, etc. (Ibid., 478-479). Otherwise stated, the eclectic theory allows the simultaneous application o f all the theories on extraterritorial competence. (Alcorta, op. cit. pp. 146-147).

(5) ^The Cosm opolitan or University Theory Any state where the criminal is found or which has custody over him is vested with jurisdiction to try him for the crime he is alleged to have committed — unless extradition is possible. (See Hall, International Law, 262). This in nutshell

406

PHILIPPINE CONFLICT OF LAWS

form is the cosmopolitan or universality theory in Criminal Law.

(6) Passive Personality Theory (also called Passive Nationality Theory) The passive personality theory holds that the state of which the victim is a citizen or subject has jurisdiction. The reason seems to be this: a wrong having been inflicted on its citizen or subject, a state is duty bound to seek justice by criminally prosecuting the offender. This theory has been widely criticized (Harvard Research), principally because a national of one country may be one act subject himself to the penalties given by several foreign penal codes. (See Instructions of November 1, 1887, U.S. For. Rei. 75).

ILLUSTRATIVE EXAMPLES OF THE AFOREMENTIONED THEORIES (1)

A Frenchman commits a crime in England against a German. The criminal fled to Argentina where he is now in the protective custody of the police. Incidentally, the crime also violates the law of Russia because certain properties involved in the offense are in Russian territory. What country has jurisdiction over the offense? ANSWER: Under the territorial theory, England has jurisdiction because the crime was committed there. According to the nationality or personal theory, France has jurisdiction, the offender being a French national. Advocates of the real theory will be inclined to allow Russia (among others) to assume jurisdiction because, the Russian law on crime has apparently been violated. Argentina, which now has custody over the aggressor, will have jurisdiction, if we follow the cosmopolitan or universality theory. States which believe in the passive personality theory will say that Germany ought to have jurisdiction because the victim happens to be a German.

(2)

In the example given, if the crime had consisted of the counterfeiting of Philippine currency, our national economy will be imperilled; under the protective principle, it is undeniable that we possess jurisdiction.

CRIMES

407

THE PHILIPPINE THEORY IN CRIMINAL LAW As hereinabove intimated, the Philippines follows as a general rule the territorial theory; by way of exception, we also occasionally and in the proper cases make use of the protective theory. (See Art. 2, Revised Penal Code). Moreover, we consider our penal legislation to be endowed with the principle of generality — that is, regardless of the nationality of the criminal we consider him subject to our criminal processes. Thus Art. 14 of the Civil Code says: “Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations.” Example illustrating the territorial theory. If a Filipino murders his sweetheart in New York he cannot be prosecuted in the Philippines for the crime of murder. This is because the crime was committed outside of our territorial jurisdiction. Example illustrating the protective theory: If a Filipino government official in Japan commits a crime there in the exercise of his official functions, he can be tried therefor in the Philippines and by Philippine courts, even if the offense took place in a foreign state. (Art. 2, No. 4, Revised Penal Code). Art. 2 of the Revised Penal Code refers to crimes triable by our courts even if the offense was committed outside of our territorial jurisdiction. Said Article says: “Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere; its interior waters and maritime zone, but also outside of its jurisdiction, against those who: (1)

Should commit an offense while on a Philippine ship or airship (i.e., of Philippine Registry) (R.A. No. 776 on Registration of Aircraft).

(2)

Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands (this includes forging of bonds and treasury bills).

(3)

Should be liable for acts connected with the intro­ duction into these Islands of the obligations mentioned in the preceding number;

408

PHILIPPINE CONFLICT OF LAWS

(4)

While being public officers or employees, should commit an offense in the exercise of their official functions (the offenses contemplated include direct bribery, indirect ^bribery, frauds against the public treasury, malversation, etc.);

(5)

Should commit any of the crimes against national security (such as treason, misprision of treason, espionage, etc. but unfortunately not conspiracy, proposal and inciting to rebellion, or conspiracy and inciting to sedition. Correspondence with a hostile country, flight to enemy country, and crimes against the law of nations such as airplane hijacking and piracy or mutiny on the high seas) are, of course, included as punishable even if committed outside the Philippine territory.

NOTE: Examples of crimes committed against the Law of Nations are the crimes of aircraft (airline) hijacking or piracy. Hijackers or pirates are considered “outlaws of the whole of humanity” and may therefore be tried anywhere for their acts as such. Uluh Asaali, et al. v. Commissioner of Customs L-24170, Dec. 16, 1968 FACTS:

v

On Sept. 10, 1950, at about noon time, a Philippine customs patrol team on board Patrol Boat ST-23 intercepted five (5) sailing vessels on the high seas between British North Borneo and Sulu, while they were heading towards Tawi-tawi, Sulu. The vessels are all of Philippine registry, owned and manned by Filipino residents of Sulu. The cargo consisted of cigarettes without the required import license (hence, smuggled). They were seized by the patrol boat. ISSUE: May the seizure be made although the vessel was on the high seas?

HELD:

(Thru Mr. Justice Enrique M. Fernando, later to become Chief Justice):

409

CRIMES

Yes, for the following reasons: (a)

The vessels are of Philippine registry, hence under the Revised Penal Code, our penal laws may be enforced even outside our territorial jurisdiction.

(b)

It is well-settled in International Law that a state has the right to protect itself and its revenues, a right not limited to its own territory, but extending to the high seas. (Church v. Hubbart, 2 Cranch 187, 234).

QUERY Dr. Jose Santos and Aurora Flores, both Filipino citizens, were married in 1993 in Cebu, where they had been domiciled since childhood. In 1996, to acquire legal residence in Georgia for the purpose of divorce, he applied for and was granted American citizenship. Two weeks thereafter he filed an action for divorce against his wife before the courts of Georgia on the alleged ground of incompatibility of character. This was granted by default. Not long thereafter, he returned to the Philippines where he contracted another marriage with a nurse from Manila. Is Dr. Santos amenable to criminal prosecution and conviction for bigamy before our courts? Discuss briefly. ANSWER: Ordinarily, since Dr. Santos was already an American citizen at the time of the divorce, the divorce as to him should be valid, but with respect to the wife, the divorce should be void. However, this would be unfair to the wife. The better rule would be to consider the divorce void from the viewpoint of both, and therefore, Dr. Santos should be deemed guilty of bigamy.

CRIMES COMMITTED ABOARD PUBLIC VESSELS Whether the crime committed aboard a public vessel (such as a battleship) took place on the high seas or within our territorial waters (or maritime zone), the country whose flag the vessel carries has jurisdiction on the theory that the vessel is an extension of the territory of the said state. (See U.S. v. Fowler, 1 Phil. 14).

410

PHILIPPINE CONFLICT OF LAWS

CRIMES COMMITTED ABOARD PRIVATE OR MERCHANT VESSELS (1)

If the crime committed aboard a private or merchant vessel occurred on the high seas, the country of the flag of the vessel has jurisdiction. Thus, if the vessel carries the French flag, Philippine courts have no jurisdiction except, of course, in the instances enumerated under Art. 2 of the Revised Penal Code (such as the crime of piracy).

(2)

If* the crime aboard a private or merchant vessel of a foreign state took place inside Philippine territorial waters — two theories have generally been used to determine the question of jurisdiction: the English rule (which emphasizes the territorial principle) and the French rule (which stresses the nationality theory). (a)

(b)

The English Rule — Here the territory where the crime was committed (Philippines) will have jurisdiction except: 1)

in matters relating to the internal order and discipline in the vessel; and

2)

those which affect solely the ship and its occupants such as minor or petty criminal offenses committed by members of the crew. (See Hyde, International Law, Vol. I, p. 739).

The French Rule — Under this rule, founded on the opinion of the French Council of State in 1806, the state whose flag is flown by the vessel, would have jurisdiction except if the crime affects the peace, order, security, and safety of the territory. (See Brierly, The Law of Nations, p. 180).

It should be noted that in the case of People v. Wong Cheng (46 Phil. 729), the Philippine Supreme Court expressly stated that the English Rule obtains in the Philippines, and as authority therefor, it cited the case of U.S. v. Look Chaw (18 Phil. 573), which it had previously decided, but which on the contrary had applied the French, not the English Rule. Be that as it may, the difference between the two rules is largely academic and theoretical, the two rules being essentially the same. Thus, if aboard a German ship anchored in Manila Bay, the crime murder

CRIMES

411

is committed, under the English Rule, the Philippines would have jurisdiction in view of the general rule, under the French Theory, the Philippines would also have jurisdiction, under the exception for the crime indeed affects the peace and security of the territory. Whether we follow therefore the English or the French rule on the matter is not significant: the effect is the same. Mention, however, must be made of two pertinent rulings by our Supreme Court: (a)

The mere possession of opium aboard a foreign vessel in transit is not triable by our Courts because mere possession thereof, without being used in our territory, is not considered a disturbance of the public order. (U.S. v. Look Chaw, 18 Phil. 573).

(b)

Upon the other hand, “to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a breach of the public order here established, because it causes such drug to produce its pernicious effects within our territory. It seriously contravenes the purpose that our Legislature had in mind in enacting the aforesaid repressive statute (the Opium Law), and is therefore triable in our Courts.” (People v. Wong Cheng, 46 Phil. 729). BAR QUESTION

A French vessel in transit is anchored along a pier at Port Area, Manila. There was found in a cabin of one of the members of the crew, who is a Frenchman, a package of opium. The French sailor admitted possession of the same. May he be criminally prosecuted for illegal possession of opium in our courts? Why? Suppose the package of opium was already lowered from the boat and placed on a banca that was floating on the water alongside the vessel ready to be brought ashore, may a criminal prosecution be filed in the Philippines? Why? ^NS: (a)

No prosecution will succeed in the case involving merely the illegal possession of opium, because there is actually no disturbance of the public order in the Philippines. (U.S. v. Look Chaw, 18 Phil. 573).

412

PHILIPPINE CONFLICT OF LAWS

(b)

The act, however, of placing the opium aboard the banca, ready to be brought ashore is violation of our public morals, safety and order, consequently, the act should be punished. (See People v. Wong Cheng, 46 Phil, 729).

THE PHILIPPINE-UNITED STATES MILITARY BASES AGREEMENT (NOW TERMINATED) As amended, by the Mendez-Blair Exchange of Notes, effective August 10,1965, the rules on criminal jurisdiction in the PhilippineUnited States Military Bases Agreement of 1947 (Terminated in 1991 by tfie Aquino government) were the following: (1)

(2)

Exclusive Jurisdiction (a)

The Philippines had exclusive jurisdiction over members of the US armed forces or civilian component and their dependents with respect to offenses punishable by Philippine law, and not by US law. (Art. XIII, 2a, Revised Military Bases Agreement).

(b)

The military authorities of the United States had exclusive jurisdiction over person subject to the military law of the United States with respect to offenses punishable by US law but not by Philippine law. (Art. XIII, 2b, Revised Military Bases Agreement.)

C oncurrent Jurisdiction With respect to offenses punishable by both Philippine and U.S. law, the Philippines had the primary right to exercise jurisdiction in all offenses except in the following cases (in the following cases the U.S. has primary jurisdiction): (a)

Offenses committed by persons subject to U.S. military law — against the property or person of a member of the United States;

(b)

Offenses committed by persons subject to U.S. military law — against the property or person o f a member o f the United States armed forces or civilian component or of a dependent; and

(c)

Offenses committed by persons subject to U.S. military law — arising out of any act or omission done in the performance of official duty. (Art. XIII, 3 a, b, Revised Military Bases Agreement).

CRIMES

(3)

413

Waiver o f Jurisdiction The Agreement allowed a waiver by the State having the primary jurisdiction provided notification had been made as soon as practicable. (Art. XIII, 3c, Revised Military Bases Agreement). NOTE: Be it observed that the military authorities of the United States had no right to exercise jurisdiction over persons who were nationals of, or ordinarily resident in the Philippines unless they were members of the United States Armed Forces. (Art. XIII, 23, last paragraph, Revised Military Bases Agree­ ment). Be it remembered also that under the amended rules, whether the crime had been committed inside or outside the bases was completely immaterial. Example: When inside Clark Field Air Base an American lieutenant raped a Filipino girl-visitor, while both countries had jurisdiction over the criminal offense committed, in the instant case, the Philippines had primary jurisdiction for; while it was committed by a person subject to U.S. military law, still the crime was not committed: (a)

against the property or security of the United States;

(b)

nor against the property or person of —

(c)

1)

a member of the U.S. Armed Forces, or

2)

civilian component, or

3)

a dependent; and

nor was the rape done an act or omission done in the performance of official duty. (See Art. XIII, 3, ab Revised Military Bases Agreement).

Death Sentence The Agreement expressly stated that “a death sentence shall not be carried out in the Philippines by the authorities of the United Stated if the Legislation of the Republic of the Philippines does not provide for such punishment in a similar „pase. (Art. XIII, 7a, Revised Military Bases Agreement). Double Jeopardy Prohibited If trial had been made for a particular offense by one State, would the other conduct a trial for the same offense? In

414

PHILIPPINE CONFLICT OF LAWS

other words, did the prohibition against “double jeopardy” (ordinarily understood) apply? ANS.: The occurrence of “double jeopardy” being prohi­ bited, by express provision of the Agreement, hence, if already convicted or acquitted by one State, the other State could not prosecute anymore. However, the military authorities of the US could still try a member of its force — not criminally — but for a violation o f its rule or discipline arising from an act or omission for which he was criminally tried by the Philippine Courts. (Art. XIII, Revised Military Bases Agreement). When the Provisions on Criminal Jurisdiction Became Effective According to the United States Government, the amendments (hereinaboye discussed) on criminal jurisdiction became effective on August 10, 1965, the date expressly mentioned in the Exchange of Notes between the (then) Philippine Secretary of Foreign Affairs Mauro Mendez and then U.S. Ambassador William Blair. The Department of Justice of the Philippine Republic had ruled then that said amendments were already in force despite lack of Senate concurrence because the amendments were merely in the nature of Presidential Executive agreements (which were NOT treaties). Duration o f the Agreement In the original Agreement of March 14, 1947 (signed at Manila), the duration of the Bases Agreement was set for a period of 99 years. However, by virtue of the Ramos-Rusk Exchange bf Notes of Sept. 16, 1966, the term had been decreased to a period of twenty-five (25) years, counted from Sept. 16, 1966. Art. XXIX of the Agreement, as amended, then read: '* “Term of Agreement — Unless terminated earlier by mutual agreement of the two governments, this agreement and agreed revisions thereof shall remain in force for a period o f '25 years from Sept. 16, 1966, after which unless extended for a longer period by mutual agreement, it shall become subject to termination upon one year’s notice to either government. The foregoing amendment was agreed upon in Washington, D.C., U.S.A. between Narciso Ramos, Philippine

CRIMES

415

Secretary of Foreign Affairs and Dean Rusk, U.S. Secretary of State. The comments given (supra) on the effectivity of the amendment on criminal jurisdiction were likewise applicable to this amendment on duration.

THE 1987 CONSTITUTION ON THE RP-US MILITARY BASES AGREEMENT Art. XVIII, Sec. 25 of the Philippine Constitution provides: “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign Military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, satisfied by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.”

THE MUTUAL DEFENSE BOARD The Mutual Defense Board is an agency that has been created because of the PhilippineUnited States Mutual Defense Treaty; the latter still subsists today inspite or despite of the terminated (expired) RP-U.S. MBA (Military Bases Agreement). It is thus, an agency of BOTH the Philippine and United States Governments. If in the course of its investigative works, it should conclude that certain operations by Filipinos within US military or naval bases would be inconsistent with the security and operation of the Bases, its findings would be CONCLUSIVE on our courts of justice. (Donald Baer, Commander, US Naval Base, Subic Bay v. Hon. Tito V. Tizon and Edgardo Gener, L-24294, July 15, 1974).

Chapter XXIV JURIDICAL PERSONS

SYNOPSIS OF CONFLICTS RULES

FACTUAL SITUATION

POINT OF CONTACT

1

(1) Corporations

( )

(a) powers and liabilities

(a) general rule — law of the place of incorpo­ ration Exceptions: (1) for constitu­ tional purposes — even if the corporation was incorporated in the Philippines, it is not deemed a Filipino cor­ poration and therefore cannot acquire land, exploit our natural resources, and operate public utilities unless 60% of the capital is Filipino owned (or American owned because of the Parity Amendment). Art. XIII, Sec. 1 and Art. XIV, Sec. 8, 1935 Consti416

JURIDICAL PERSONS

417

tution; Art. XTV, Secs. 5, 8, 9, 1973 Consti­ tution; Art. XII, Secs. 2, 10, 11, 1987 Consti­ tution: (2) for wartim e purposes — here, we pierce the veil of cor­ porate identity and go to the nationality of the controlling stockholders to determine if a corpo­ ration is an enemy cor­ poration or not (the CONTROL TEST). (Filipinas Ins* Co. v. Christern Huenefeld & Co., L-2294, May 26, 1951; Doris Winship v. Phil. Trust Co., L-3869, Jan. 31, 1952). (b) formation of the corpo­ ration (requisites); kind of stocks; transfer of stocks to bind the cor­ poration; issuance, amount, and legality and dividends; powers and duties of members, stockholders, and officers

(b) law o f the place o f incorporation

(c) validity o f corporate acts and contracts (including ultra-vires acts)

(c) law of the place o f incorporation and law of the place of perform­ ance (the act or con­ tract must be author­ ized by BOTH LAWS)

(d) right to sue and amenability to court processes and suits against it.

(d) lex fori

418

PHILIPPINE CONFLICT OF LAWS

(e) manner and effect of dissolution

(e) law o f the place of incorporation provided that the public policy of the forum is not mili­ tated against

(f) domicile

(f) if not fixed by the law creating or recognizing the corporation or by any other provision — the domicile is where its legal representation is established or where it exercises its principal functions. (Art. 51, Civil Code).

r*

(g) receivers (appointment and powers)

NOTE: Theories oel the Personal or Governing Law of Corporations: (a) law of the place of in­ corporation (this is generally the Philip­ pine rule) (b) law of the place or cen­ ter o f management (centre o f adm inis­ tration or siege social) (central office principle)

(g) principal receiver is appointed by the courts of the state of incorporation; ancillary receivers, by the courts of any state where the corporation has assets (authority of receivers is CO-EXTENSIVE with the authority of the appointing court). (See Beale, Conflict of Laws, Vol. Ill, pp. 1568-1576).

JURIDICAL PERSONS

419

(c) law of the place of ex­ ploitation (exploitation centre or seige d’exploitation) [See Wolff, Priv. Int. Law, Oxford Univ. Press (1945), 300-304)]. (2) Partnership

(2)

(a) the existence or non­ existence of legal personality of the firm; capacity to contract; liability of the firm and the partners to third persons

(a) the personal law of the partnership — that is — the law of the place where it was created. (See Art. 15, Code of Com­ merce). (Subject, how­ ever, to the excep-tions given above as in the case of corporations).

(b) creation of branches in the Philippines; validly and effect o f the branches’ commercial transaction; and the jurisdiction of courts

(b) Philippine law (law of the place where the branches were created). (See Art. 15, Code o f Commerce).

(c) dissolution, winding up, and term ination of branches in the Philip­ pines

(c) Philippine law. (See Art. 15, Code of Com­ merce).

(d) domicile

(d) See rule on Corpora­ tions

(e) receivers

(3) Foundations (combination **’ of capital independent of individuals, usually not for profit)

(e) Philippine law insofar as the assets in the Philippines are concerned (authority of such receivers can be exercised as such only in the Philippines) (3) personal law of the foundation (place of the principal center of admi­ nistration). (See Rabel, Conflict o f Laws, Vol. II, pp. 113-114)._____________ .

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CORPORATION DEFINED A corporation is an artificial being created by operation of law, having the right of succession and the powers, attributes, and properties expressly authorized by law or incident to its existence. (Sec. 2, Corporation Code). While there are many classes of corporations — this treatise will deal only with private corporations — those formed for some private purpose, benefit, aim or end. Parenthetically, when we say that a corporation has “the right of succession,” we mean that even if the individual members or stockholders die from time to time, the corporation, as a juridical entity, continues until its term expires, (See Fletcher, Cyclopedia of the Law o f Private Corporations, Vol. I, pp. 12-13).

THEORIES ON THE PERSONAL OR GOVERNING LAW OF A CORPORATION There are at least three (3) theories on the personal or governing law of a private corporation: (1)

the theory that the personal law is the law of the place o f incorporation;

(2)

the theory that said personal law is the law of the place or center o f management (central office principle); and

(3)

the theory that insists on the law of the place o f exploitation as the personal law. (See Wolff, Private International Law, pp. 304-305).

THE FIRST THEORY The first theory — that the personal law of a private corporation is governed by the law of the place of incorporation — is premised on the idea that the corporation is merely a creature of the law under which it was organized; that without such law granting its existence, it would be a non-entity, devoid of any rights; and that therefore, wherever it may be, said law should govern its every actuation. (See Wolff, Ibid., p. 203). Unfortunately, such a doctrine, if adhered to literally, would make possible, evasion of many responsibilities by the simple expedient of a company organizing in one state and performing its corporate functions in another. The theory is followed by England, the United States, Russia, many German jurists, and in a modified way by the Philippines.

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421

THE SECOND THEORY The second theory is that the personal law is the law of the place or center of management (centre o f administration or seige social). Otherwise stated, it is not the place where corporation was made that is vital: what is significant is where the officers of the corporation exercise the functions of management and control (usually thru board meetings). The theory is sound, for all the big corporate problems arise because of decisions arrived at during board meetings. One practical difficulty, however, may arise when the board meets in different states: this may of course be cured by an express reference in its articles or by-laws to the principal meeting place. (See Rabel, Conflict o f Laws, Vol. II, pp. 42-43). Almost all civil law countries have adopted this theory.

THE THIRD THEORY The third theory is that the governing law of the corporation must be the law of the place principally affected by its activities, namely, the center of exploitation (exploitation centre or seige d’exploitation). This principle suffers from two fundamental defects: firstly, the corporation may have its enterprise scattered in all parts of the world; secondly, the physical acts are not as important and consequential as the decision arrived at in board conferences. (See Wolff, Private International Law, p. 301).

EXEMPLIFICATION OF THE THEORIES A private corporation organized in the United States is headed by a Board of Directors which regularly meets in Rome, Italy. The corporation manufactures certain medicinal products in France where it has set up pharmaceutical factories. The U.S., which follows the incorporation theory, would consider the corporation to be an American corporation; Italy, which insists on the “central office” principle (centre o f administration or siege social) will regard it as an Italian corporation and Italian law would be its personal law; France, which apparently adheres to the siege d’exploitation theory, will endow the corporation with French nationality, and will demand Frfifich law for its personal law.

THEORY FOLLOWED IN THE PHILIPPINES In this jurisdiction, the personal law of a corporation (as well

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as its NATIONALITY) is generally subjected to the INCOR­ PORATION TEST. Sec. 123 of the Corporation Code reads: “For the purposes of this Code, a foreign corporation is one formed, organized or existing under any laws other than those of the Philippines and whose laws allow Filipino citizens and corporations to do business in its own country or state. It shall have the right to transact business in the Philippines after it shall have obtained a license to transact business in this country in accordance with this Code and a certificate of authority from the appropriate government agency.” It would seem from this section that if the corporation was organized in the Philippines, it is a local or domestic corporation; if incorporated elsewhere, it is a FOREIGN corporation. It is logical, therefore, to conclude that as a rule, we follow the theory of incorporation . . . Indeed, “the sovereignty by which a corporation was created, under whose laws, it was organized, determines its NATIONAL character, and the fact that some of its incorporators were residents or citizens of a foreign nation does not change this rule.” (Philippine Sugar Estates v. United States, 39 U.S. Court of Claims, 225). Two (2) exceptions to the rule may be given:

(1) For Constitutional Purposes: Even if the corporation was incorporated in the Philippines, it is not deemed a Filipino corporation, and, therefore, cannot exploit our natural resources, and operate public utilities unless 60% of the capital is Filipino owned (Art. XIII, Sec. 1; and Art. XIV, Sec. 8, 1935 Constitution; Art. XIV, Secs. 5-9, 1973 Constitution; Art. XII, Secs. 2, 10-11, 1987 Constitution). NOTE: Subject to the acquired rights of foreign corporation owned or controlled directly by American under the terms of the Executive Agreement of July 4, 1946 (as enacted into law by Com. Act No. 733), other foreign corporations generally cannot exploit natural resources, or operate public utilities. Under the Laurel-Langley Trade Agreement of 1955 (as enacted by Rep. Act No. 1355, effective June 18, 1955) the right granted to American citizens in the Executive Agreement of 1946 with regards to natural resources in the Philippines may be exercised only thru the medium of

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423

a corporation organized under the laws of the Philippines at least 60% of the capital stock of which is owned or controlled by the citizens of the United States, subject to a reservation to the Government of the Philippines to deny such rights to American citizens or corporations 60% of the capital stock of which is owned or controlled by citizens of States of the United States which deny similar rights to citizens of the Philippines. (Art. VI, Secs. 2 and 3, Trade Agreement o f 1955), In Patting v. San Jose Petroleum, Inc., L-14441, Dec. 17, 1966, the Supreme Court ruled that before an American-owned and controlled corporation can make use of parity rights, it is essential to present proof that the various states (in the U.S.) of which the stockholders are citizens grant reciprocal parity rights to Filipino citizens and corporations. Pedbro R. Palting v. San Jose Petroleum, Inc. L-14441, Dec. 17, 1966 FACTS:

San Jose Petroleum, Inc., a Panamanian Corporation, filed with the Securities and Exchange Commission, a sworn registration statement, for the registration and licensing for the sale in the Philippines of certain shares of its capital stock, alleging that the entire proceeds of the sale would be devoted or used exclusively to finance the operations of San Jose Oil Company, Inc., a domestic mining corporation, which has petroleum concessions in several parts o f the Philippines. Pedro R. Palting and others, alleged prospective investors in the shares of San Jose Petroleum, filed an opposition on the ground, among others, that the tie-up between the issuer, San Jose Petroleum, Inc. (a foreign corporation — from Panama), and the San Jose Oil Company, Inc., a domestic corporation, violates the Constitution of the Philippines, the Corporation Law (now Corporation Code), and the Petroleum Act of 1949. It was not proved that the San Jose Petroleum, Inc. was Americanowned and controlled; and assuming that it was really American-owned and controlled, still it was not proved that various states (in the U.S.) of the various stockholders granted

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PHILIPPINE CONFLICT OF LAWS

reciprocal parity rights to Filipino citizens and corporations. Issue: Does the tie-up violate the Constitution? HELD:

*

Yes, the tieup violates the Constitution. It is “necessary to establish that the different states of which they (the stockholders) are citizens, allow Filipino citizens or corporations or associations owned or controlled by Filipino citizens, to engage in the exploitations, etc. of the natural resources of those states,” under paragraph 3, Art. VI of the Laurel-Langley Agreement (said Agreement otherwise called the Philippine Trade Agreement of 1955, was unauthorized under Rep. Act No. 1355). To hold otherwise would be grossly unfair.

(2) For Wartime Purposes: For wartime purposes — we pierce the veil o f corporate identity and go into the nationality of the controlling stockholders to determine if a corporation is an enemy corporation or not (this is referred to as the CONTROL TEST, as distinguished from the INCORPORATION TEST). (Filipinas Ins. Co. v. Christem Huenefeld & Co., L-2294, May 25, 1951; Doris Winship v. Phil. Trust Co., L3869, Jan. 31, 1952). Thus, a German-controlled corporation, even if incorporated in the Philippines, was considered an enemy corporation during the war for the purpose of freezing its assets. A contrary rule may endanger Philippines security. (David Wineshop v. Phil. Trust Co., L-3869, Jan. 31, 1952). [NOTE: The doctrine o f piercing the corporate veil (or disregarding the corporate fiction — permits the courts to impose personal liability on the shareholders of a corporation if the corporate form has been used to defeat the public convenience, justify wrongs, or protect fraud or crime. (Edgardo Paras, et al., Corporate Law Practice and Litigation, 1994, p. 11). (Tan Boon Bee & Co., Inc. v. Hon. Jarencio, et al., 163 SCRA 205, J. Paras, ponente)]. Filipinas Insurance Co. v. Christem Huenefeld & Co L-2294, May 25, 1951 FACTS:

Christem Huenefeld and Co., a corporation incorporated in the Philippines (but whose

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JURIDICAL PERSONS

majority stockholders were Germans) insured in 1941 its merchandise with a Philippine insurance company for P100,000. In 1942, fire destroyed the merchandise, resulting in loss to the company of P92,650. This amount was paid to the insured during the Japanese occupation by order of the Philippine Executive Commission. After liberation, suit was instituted to recover this amount on the theory that the insured was a German corporation (and, therefore, a public enemy, not insurable under our Insurance Law (now Sec. 7, Insurance Code) — there being war at the time between Germany and the United States. The Philippines was then under the United States). HELD:

The insurance contract became void when war broke out between the United States and Germany inasmuch as the insured was a German corporation (a public enemy and, therefore, non-insurable). Though incorporated here in the Philippines, the majority or controlling financial interest belonged to German citizens: hence, by the CONTROL TEST the corporation must be considered German. The control test was used because Germany or enemy interests usually masqueraded under innocent fronts — such as the cloak of domestic corporation structure. (See Clark v. Usbersee Finanz Korporation A. G. Decisions o f the United States Supreme Court, Dec. 18, 1947). The indemnity was therefor returned (computed in accordance with the Ballantyne Scales) MINUS (for the sake of fairness) the value of the premiums paid. OBSERVATIONS: (1)

Firstly, the Supreme Court o f the Philippines in this abovementioned case apparently agreed with the case of Daimler Co. v. Continental Tyre and Rubber Co., 1 K.B. 893 (1915) where the

426

PHILIPPINE CONFLICT OF LAWS

House of Lords of England said that the loyalty of a corporation is not tested by the nationality of the corporation itself (for a juridical person is itself incapable o f loyalty and enm ity) but by the nationality of the stockholders, since they, as human beings, are alone possessed of such attributes. (2) »»

Secondly, while the Supreme Court ruled unqualifiedly that the control test applies, it would seem, from the circumstances of the case, that said theory should be used only for wartime purposes. In other words the INCORPORATION TEST must still be regarded as the GENERAL RULE.

THE ‘GRANDFATHER RULE’ At the outset, be it noted that “no Supreme Court case has addressed the specific issue of determining the nationality of a corporate shareholder in a Philippine Corporation, in a non-war context.” Until 1977, the Securities and Exchange Commission (SEC) consistently applied the control test. That same year, the SEC issued an internal memorandum for the application of the so-called “grandfather rule.” (See Silverio Benny J. Tan, “The Grandfather Rule in Corporate Share Ownership," IBP Journal, Vol. XVII, No. 1, First Quarter 1989, pp. 7-14, cited in E. Paras, et al., Corporate Law Practice and Litigation, 1994, p. 23).

WHAT THE PERSONAL LAW OF THE CORPORATION GOVERNS It would seem that the personal law of the corporation (law of the place of incorporation) governs, among other things, the following matters: (1)

the requisites for the formation of the corporation (but not the pre-corporation contracts such as those entered into by promoters preliminary to the incorporation of the company). (See State v. Manhattan Verde Co., 109 Pac. 442). (Such preliminary contracts are governed by the proper law of the contract.) (See Wolff, Private Interna­ tional Law, pp. 360-370). ,

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JURIDICAL PERSONS

NOTE: If the company will be incorporated in the Philippines the following pertinent provisions on citizenship and residence must be complied with: (a)

Incorporators (5 or more, but not exceeding 15) do not need Philippine citizenship', but a majority of them must be Philippine residents. (Sec. 10, Corporation Code);

(b)

Members of the Board of Directors do not have to be Filipino citizens; however, a majority of them must be Philippine residents. (Sec. 23, 2nd par., Corporation Code);

(c)

The officers of the corporation do not have to be Filipino citizens or residents EXCEPT the secretary who must be a Filipino citizen and resident. (Sec. 25, 1st par., Corporation Code).

(2)

the kinds of stocks allowed;

(3)

the transfer of stocks in a way that would be binding on the corporation; '

(4)

the issuance, amount, and legality of dividends; and

(5)

the powers and duties of members, stockholders, and officers (in general). Phil. Association of Free Labor Unions (PAFLU) et al. v. Sec. of Labor, et al. L-22228, Feb. 27, 1969 FACTS:

Sec. 23 of Rep. Act No. 875 requires registration with the Office of the Secretary of Labor, before a labor organization can acquire legal personality. Said Sec. 23 reads as follows: “Any labor organization, association, or union of workers duly organized for the material, intellectual, and moral wellbeing of its members shall acquire legal personality and be entitled to all the rights and privileges granted by law to legitimate labor organiza­ tions within 30 days of filing with the office of the Sec. of Labor notice of its due organization and existence, and (certain specified) docu­ ments. . .”

428

PHILIPPINE CONFLICT OF LAWS

It is alleged that said requirement of registration —

HELD:

(1)

violates freedom o f assem bly and association, and is inconsistent with the Universal Declaration of Human Rights.

(2)

should be deemed repealed by the International Labor Organization Conven­ tion (ILO Convention) No. 87.

(Thru Mr. Chief Justice Roberto Concepcion): The theory to the effect that Sec. 23 of Republic Act 875 unduly curtails the freedom of assembly guaranteed in the Bill of Rights is devoid of factual basis. The registration prescribed therein is not a limitation to the right of assembly and association, which may be exercised with or without registration. (Ex parte R.J. Thomas, 174 S.W. 2d 958-960). The latter is merely a condition sine qua non for the acquisition of legal personality by labor organizations, etc., and the possession of the “rights and privileges granted by law to legitim ate labor organizations.” The Constitution does not guarantee these rights and privileges, much less said personality, which the mere statute creates, for the possession and exercise of which registration is required to protect both labor and the public against abuses, fraud and impostors who pose as organizers. Although not truly accredited agents*of the union they purport to represent, such requirement is a valid exercise of the police power. For the same reasons, said Sec. 23 does not impinge upon the right of organization guaranteed in the Declaration of Human Rights, or run counter to Art. 8 of the ILO Convention No. 87, which provides that “workers and employees shall have the right to establish and join organizations of their own choosing, without previous authorization,” that “workers and employees” organization shall not

429

JURIDICAL PERSONS

be liable to be dissolved or suspended by “administrative authority” that “the acquisition of legal personality by workers and employees’ organizations shall not be made subject to conditions of such a character as to restrict the application of the provisions” abovementioned; and that “the guarantee provided for in” said Convention shall not be impaired by the law of the land. The cancellation of a labor union’s registration certificate (for failure to comply with important requirements) would not entail a dissolution of said association or its suspension. The EXISTENCE of the organization would not be affected by said cancellation, although its juridical personality and its statutory rights and privileges — as distinguished from those conferred by the Constitution — would be suspended thereby. (See also B.S.P. v. Araos, L-10091, Jan. 29, 1958).

VALIDITY OF CORPORATE ACTS AND CONTRACTS The validity o f corporate acts and contracts is tested by the law of the place of incorporation and by the law of the place of performance. To be valid and binding the act or the contract must be authorized (not prohibited) by BOTH LAWS. If valid in the place of incorporation but void in the place of performance; or if valid in the place of incorporation — the legality of the act will seriously be questioned, and it is doubtful if it can be given any effect at all. (See Sec. 129, Corporation Code; See also Stumberg, Principles of Conflict of Laws, p. 329). This is, of course, without prejudice to the application of the principle of estoppel (See 17 Fletcher, op. cit., p. 100), i.e., an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. (Art. 1431, Civil Code).

RIGHT TO SUE AND AMENABILITY TO COURT PROCESSES The right of a private corporation to bring a suit in the forum, and its amenability to court processes and suits against it, are governed by the lex fori. From the theoretical viewpoint, a sovereign

430

PHILIPPINE CONFLICT OF LAWS

country like ours may completely prohibit a foreign corporation from transacting business in the Philippines; we may even prohibit it from filing suit here, even if it does transact business within our territorial jurisdiction. However, we have chosen to allow foreign corporation to do business and to file suits in our country UNDER CERTAIN CONDITIONS. Before discussing these conditions, a definition of “transacting or doing business” here is imperative. Thompson says that: “A foreign corporation is ‘doing business’ within a particrflar state when it transacts therein some substantial part of its ordinary business which is continuous in character as distinguished from merely casual or occasional transactions.” (8 Thompson, pp. 845-846). Similarly, our Supreme Court has held that to “transact business” connotes a continuity of business dealings and arrangements. (Mentholatum Co. v. Mangalinan, 72 Phil. 524). The pertinent rules: (1)

If a foreign corporation transacts business in the Philippines it must have the necessary license, therefor. (Sec. 123, Corporation Code); it cannot sue on such business unless such license has been obtained. (Mentholatum Co. v. Mangalinan, 72 Phil. 524).

(2)

If a foreign corporation is not doing business in the Philippines, such fact must be disclosed if it wants to sue in Philippine courts under the “isolated transactions rule.” Absent this disclosure, the court may choose to deny it the right to sue. (Commissioner o f Customs v. K.M.K. Gani, 182 SCRA 591 [1990]).

(3)

If a fpreign corporation duly licensed to transact business desires to withdraw, it must file a petition for withdrawal, and must meet the following requirements: (a) all claims which have accrued in the Philippines must be com prom ised or settled; (b) all taxes, imposts, assessments, and penalties, if any, lawfully due to the Philippine government or any of its agencies or political subdivisions must be paid, and (c) the petition for withdrawal of the license must be published once a week for 3 consecutive weeks, in a newspaper of general circulation in the Philippines. (Sec. 136, Corporation Code).

.

4$

JURIDICAL PERSONS

(4)

431

If the foreign corporation sues merely on isolated acts (and hence, does not “transact business”), the action may be allowed even without the license. (Marshall-Wells and Co. v. Elser and Co., 46 Phil. 71; Atlantic Mutual Insurance Co. and Continental Insurance Co. v. Cebu Stevedoring Co., Inc., L-18961, August 31, 1966).

Examples: (A)

A foreign corporation, even without a license, can sue in the Philippines to protect its reputation, corporate name, and goodwill; and may therefore ask that certain Philippine residents be restrained from organizing a local corporation with the same name and same business (Western Equipment Supply Co. v. Reyes, 51 Phil. 115) provided that a sim ilar privileged is granted to Philippine corporation in the foreign state involved. (Sec. 21-A, Rep. Act 166; Sec. 7, Rep. Act 628). NOTE: The “reciprocity” requirement is also essential in actions involving infringement of a trademark, or trade name; unfair competition; false designation of origin; false description. (Ibid.)', and infringement of a patent. (Sec. 41-a, Rep. Act No. 165, as amended by Rep. Act No. 637).

(b)

A foreign corporation which for the first time transports merchandise to the Philippines (although previously its vessel had been chartered by the NARIC to transport rice to the Philippines from abroad) is not “engaged in business” in the Philippines . (Eastboard Navigation Ltd. v. Juan Ysmael and Co., L-9090, Sept. 10, 1953).

(c)

The following do not necessarily transact business in the Philippines: a foreign corporation that owns the controlling interest of a domestic corporation (See People’s Tobacco Co. v. American Tobacco Co., 246 U.S. 79), even when it tries to sell its own shares or solicit contributions to its capital stock — here in our country. (See Mandel v. Swan Land and Cattle Co., 154 Illinois 177); a foreign corporation that desires to participate in bids for Philippine contracts — such an act of bidding being merely preparatory

432

PHILIPPINE CONFLICT OF LAWS

in character. (See State v. American Book Co., 69 Kan. 1). (3)

If the foreign corporation transacts business OUTSIDE of the Philippines, it may sue in the Philippines on such contracts, even without a license. (Pac. Veg. Oil Corp. v. Angel Q. Singzon, L-7917, April 29, 1955). After all, the license is needed for transacting business HERE in our country.

Examples: (a)

A foreign corporation obtained the services of a Filipino cook to serve on one of its vessels plying between Guam and the trust territories of the Pacific Islands. Said corporation may sue in our courts even without a license. (Pacific Macronisian Lines v. N. Baens del Rosario, L-7154, Oct., 1954).

(b)

An American corporation and a Filipino company, the latter thru its resident agent in California, entered into a contract of sale of goods, c.i.f. Pacific Coast. The transaction was entered into and was agreed upon to be consummated in the United States; obviously this cannot be considered as transacting business in the Philippines. (Pac. Vegetable Oil Corp., v. Singzon, L-7917, April 29, 1955).

(c)

If the corporation sells its goods in the Philippines thru a resident merchant on a commission basis, it is the merchant, not the corporation, that is doing business in the Philippines; hence, even without a license, the foreign corporation may sue in our ; courts. (See 8 Thompson, p. 85).

NOTE: In the following instances, the foreign corporation is “transacting business in the Philippines” and therefore, needs a license before it can so transact and before it will be allowed to bring a suit in our courts: (a)

A foreign corporation that sells goods in the Philippines thru an exclusive distributing agent (for an agent acts only in behalf of the principal that is transacting business here). (Mentholatum Co. v. A. Mangalinan, 72 Phil. 524).

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433

(b)

A foreign corporation selling goods in the Philippines thru a resident agent whose business it is to solicit orders and sell the corporate goods forwarded to it by the corporation for delivery to the buyers. (See 8 Thompson, 867).

(c)

A foreign corporation, which issues marine policies abroad to cover Philippinebound cargo, makes the policies payable in the Philippines and which appoints and keeps an agent here to receive and settle policy claims. (General Corporation o f the Phil., et al. v. Union Ins. Society o f Canton, et al., LL2684, 48 O.G. 73). BAR QUESTION

A is sued in the Regional Trial Court of Manila by California Candy Corporation, a corporation organized under the laws of California for damages in the amount of P5 million arising from a breach of contract whereby A had agreed to sell to said corporation 500 tons of sugar to be delivered in San Francisco, where the contract was entered into. Would you grant A’s motion to dismiss the complaint on the ground that the plaintiff corporation has no capacity to sue, it not having previously obtained a license to transact business in the Philippines? State your reasons briefly. ANSWER: I would deny the motion to dismiss. The contract firstly was an isolated transaction. Secondly, the plaintiff was not “transacting business in the Philippines,” the contract having entered into in San Francisco and expressly agreed upon to be consummated there. So long, therefore, as the ju risd iction al requirements are complied with, the plaintiffs suit may properly be entertained by our tribunals of justice . (Pac. Vegetable Oill Corp. v. Singson, L-7917, April 29, 1955). BAR QUESTION A New York corporation takes part in a bidding for the construction of a building in Makati. The New York corporation won the bid, but the construction company which opened the bid refused to sign the contract with

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PHILIPPINE CONFLICT OF LAWS

the New York corporation for the construction of the building. The New York corporation then sued. As the New York corporation had not expressly obtained a license to engage in business in the Philippines, the construction company moved to dismiss the suit on the ground that the New York corporation has no right or personality to sue in Philippine courts. How should the motion to dismiss be resolved? Reasons for your answer. ANSWER: The motion to dismiss should be denied. ’To take part in a bidding does not constitute “transacting business” as the term is understood in Philippine law*— for this is an isolated act. (See Marshall Wells and Co. v. Elser Co., 46 Phil. 70; See also State v. American Book Co., 69 Kan. I). Wang Laboratories, Inc. v. Mendoza G.R. No. 72147, Dec. 1, 1987 (First Division) Justice Edgardo L. Paras: A foreign corporation although “doing business” in the Philippines, it, nonetheless, may be sued for acts done against persons in the Philippines. If a foreign corporation, not engaged in business in the Philippines, is not barred from seeking redress from courts in the Philippines, a fortiori, that same corporation cannot claim exemption from being sued in the Philippine courts for acts done against a persons in the Philippines. In the case at bar, Wang Laboratories, a corporation duly organized under the U.S. laws with principal address in Massachusetts, engaged in the business of manufacturing and selling computers worldwide. It installed at least 26 different products in several corporations in the Philippines since 1976. It registered its trade name with the Philippine Patents Office. Its controller in Asia has visited the office of its distributor at least 4 times where he conducted training programs in the Philippines. It allowed its registered logo and trademark to be used by EXX-BYTE and made it known that there exists a designated distributor in the Philippines as published in its advertisements.

JURIDICAL PERSONS

435

Under the circumstances, Wang cannot unilaterally declare that it is not doing business in the Philippines on the ground that no general rule or governing principle can be laid down as to what constitutes doing or “engaging” or “trading” in business. Each case must be judged in the light of its peculiar environmental circumstances, upon peculiar facts and upon the language of the statute applicable. Thus, where a single act or transaction of a foreign corporation is not merely incidental or casual but is of such character as distinctly to indicate a purpose to do other business in the State, such act constitutes doing' business within the meaning of statutes prescribing the conditions under which a foreign corporation may be served with summons. Reason for the License Requirement The license required before “transacting business” in the Philippines (Sec. 123, Corporation Code) is not to forbid the foreign corporation from performing single acts but to prevent it from acquiring a domicile for purposes of business without taking the steps necessary to render it amenable to a suit in the local courts. (Marshall Wells and Co. v. Elser Co., 46 Phil. 71). Application for the License The application for license to transact business in the Philippines must be filed with the Securities and Exchange Commission. (See Sec. 125, Corporation Code). For instance, the Commission can issue the license only upon the order of the Monetary Board of the Bangko Sentral in case of domestic banks and trust corporations. In the case of all other corporations, no application for license to transact business in the Philippines shall be accepted by the SEC without previous contracts from the appropriate government agency, whenever required by law. Thus, by special arrangement, the recom­ mendation of the Insurance Commissioner is first sought before a license is issued to an insurance corporation. After the approval of the General Banking Act on July 24, 1948, no bank which may be established and licensed to transact business in the Philippines shall receive deposits, unless said bank has been incorporated in the Philippines. (Sec. 11, Rep. Act No. 337). This practically prevents foreign

436

PHILIPPINE CONFLICT OF LAWS

banks from establishing Philippine branches inasmuch as under said Act at least 60% of the capital stock of the banking institution established after its effectivity should be owned by Filipino citizens, and at least two-thirds of the directions must be Filipinos. (Sec. 13, id). Be it noted, however, that the prohibition to receive deposits does NOT apply to branches and agencies of foreign banks already receiving deposits at the time the ACT was approved, provided that said deposit should not be invested outside of the Philippines. (Sec. 11, id.). 'Recent developments have radically altered the once closeted Philippine banking system, namely: the advent of universal banking, offshore banking, and liberalization of the entry of foreign banks in the country. Foreign insurance corporations may engage in business in the Philippines only if possessed of the necessary paid-up unimpaired capital or assets and reserve (not less, of course, than that required of domestic insurance companies). Moreover they have to deposit with the Insurance Commissioner for the benefit and security of its policy holders and creditors in the Philippines, securities satisfactory to the Commissioner and consisting of bonds of the Philippines or its branches or political subdivisions authorized to issue bonds or of the State in which the corporation was organized or both worthwhile securities possessed of an actual market value of P250,000. The securities will be returned to the corporation when it ceases to do business in the Philippines, provided that it has no further liability under any of its policies in the Philippines. (See Secs. 178 and 179, Act 2427, as amended). QUERY: We already know that if a foreign corporation wants to transact business in the Philippines (as distinguished from isolated acts or suits), it must obtain the license previously discussed. Now then, suppose business was, thus, transacted without first obtaining the requisite license, would the contract be valid, rescindable, voidable, unenforceable, or void? ANSWER: It would seem that the contract is unenforceable, that is, the corporation cannot sue in our courts till after the necessary license has been obtained. The moment the license is obtained, suits may be instituted even on prelicense contracts, which shall then be considered VALID (See Marshall-Wells and Co. v. Elser Co., 46 Phil. 71 — where

JURIDICAL PERSONS

437

the Supreme Court held that “until it [the foreign corporation] complies with the law, it shall not be permitted to maintain any suits in the local courts”). This rule is apparently followed in 29 States of the United States. (See Rabel, Conflict o f Laws, Vol. II, p. 205). At least two (2) reasons justify the rule, namely: (1)

The object of the requirement is to protect the parties from vexing impositions; and to assure convenient jurisdictional processes — certainly not to invalidate the contracts. (Model Heating Co. v. Magarity, 81 Atl. 400).

(2)

The defendant (the person who contracted with the foreign corporation) should be regarded in estoppel, if he has received the benefits of the contract. (See Fletcher, op. cit., Sec. 8520).

QUERY: May a person sue a foreign corporation that transacted business with him without a license? ANSWER: Yes, for the corporation can not put up by way of defense its own failure to comply with the law. (See Gen. Corp. o f the Phil. v. Union Insurance Society of Canton, Ltd., 48 O.G. No. 1, Jan. 1952, p. 73). Service of Summons on a Foreign Corporation: Foreign corporations are required to give the name and address of an agent residing in the Philippines to accept service of summons and process in all legal proceedings against the corporation. (Sec. 128 Corporation Code). Service on said agent gives our courts jurisdiction over the corporation. Even if the foreign corporation transacting business in the Philippines has not obtained a license, and has not designated the necessary agent for court processes, our courts may still acquire jurisdiction over it (as a defendant) in view of Sec. 14, Rule 14 of the Rules of Court which says — “It the defendant is a foreign corporation, or a nonresident joint stock company or association, doing business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines.” (See General Corporation of the Philippines v. Union Insurance Co. of Canton, Ltd., 48 O.G. No. 1, Jan. 1952, p. 73). In fact,

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it has been held that service on the lawyer of the foreign corporation is sufficient, for he is supposed to communicate to his client the service made on him. (See Johnlo Trading Co. v. Flores, L-3987, May 18, 1951). Suits Against a Foreign Corporation After It Has Withdrawn from Business in the Philippines: After a foreign corporation has withdrawn from transacting business in the Philippines, it may still be sued on contracts entered into previously by service of summons on the foreign corporations’s designated agent, or in his default, the designated government officials. (8 Thompson, op. cit., pp. 1014-1015). After all, fairness demands that the citizens and residents of the Philippines should be afforded a chance to sue locally. (See Stevens on Corporation, p. 851). By the same token, the foreign corporation that has withdrawn should also be allowed to sue on validly existing transactions, entered into prior to the cessation of business. An identical rule applies in the case of contracts entered into prior to the revocation of the license. (See Banco-Agricola, et al. v. El Dorado Trading Co., et al., CA.-G.R. No. 16281-R, June 25, 1957).

MANNER AND EFFECT OF DISSOLUTION The manner and effect of dissolution of a private corporation is governed by its personal law, that is, the law of the place of incorporation, provided that the public policy of the forum is not militated against. If a foreign corporation organized under the laws of State X should be arbitrarily dissolved and its assets confiscated in accordance with its personal law, the dissolution would not be regarded as effective in a forum if under the laws of said forum the dissolution is “contrary to our public policy and shocking to our sense of justice and equity.” (Vladikavkzaki Railway Co. v. New York Trust Co., 189 N.E. 456 [1934]). Should a foreign corporation doing business in the Philippines be dissolved on account of insolvency, its local assets will become a trust fund for the benefit of its creditors. This rule is stated in what is popularly referred to as the Trust Fund Doctrine. (See 17 Fletcher, pp. 703-706). Thus, preferential treatment is accorded to resident creditors and policy holders of foreign insurance corporation as well as to local creditors of agencies or branches of foreign banking corporations.

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DOMICILE OF A CORPORATION Under the Civil Code, the domicile of a private corporation is the place where its legal representation is established or where it exercises its principal functions — when the law creating or recognizing it, or any other provision does not fix it. (Art. 51). Even a defectively organized corporation which the law recognize as de facto insofar as innocent third persons are concerned can possess a domicile for its de facto existence. (MacDonald v. F.N.C.B.N.Y., L-7991, May 21, 1956).

RECEIVERSHIP OF A CORPORATION The Philippine courts may appoint a receiver whose principal task would be to preserve the property of a private corporation or to sequester it for the benefit of the creditors. (See Beale, Conflict o f Laws, Vol. Ill, p. 1568). This rule is adhered to if the corporation was incorporated under Philippines laws. If incorporated elsewhere, the principal receiver is appointed by the courts of the state of incorporation; ancillary receivers, by the courts of any state where the corporation has assets. The authority of the receivers is COEXTENSIVE with the authority of the appointing court. (See Beale, op. cit., pp. 1568-1576). (To “sequester” means to separate or isolate. A sequestered account thus is an account which has been ordered separated and impounded by order of the court. This means that no disbursements may be made from this account without order of the court. (Black’s Law Dictionary, abridged fifth ed., p. 711.)

PARTNERSHIPS A partnership is a contract whereby two or more persons bind themselves to contribute money, property, or industiy to a common fund, with the intention of dividing the profits among themselves, or in order to exercise a profession. (See Art. 1767, Civi Code).

CONFLICT RULES ON PARTNERSHIPS The existence or non-existence of the legal or juridical personality of the partnership (as distinct from the separate personalities of the partners); the capacity of the firm to contract; and the liability of the firm and the partners to third persons — are all governed by the personal law of the partnership — this is

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— the law of the place where it was created. (See Art. 15, Code of Commerce). The rule is, of course, subject to the same exceptions (constitutional purposes, natural resources, public utilities, wartime purposes) indicated hereinabove for private corporations. Thus, while Philippine partnership have a juridical personality, those formed in America do not have any (except for the purpose of insolvency proceedings). (See Campos Rueda and Co. v. Pac. Com. Co., 44 Phil. 916). If, therefore, three Filipinos organize a partnership in the United States, the firm will, in general not possess any juridical personality. The term “juridical” here means something done in conformity to the laws of the country and the practice which is there observed. (Black’s Law Dictionary, abridged fifth ed., p. 443). The creation of branches in the Philippines; the validity and effect of the branches’ commercial transactions; and the jurisdiction of courts — are all governed by Philippine law (law of the place where the branches were created). (See Art. 15, Code o f Commerce). These are some limitations in Philippine law on alien partnerships: ‘ (1)

If at least 60% of the capital of a partnership is not owned by Filipinos, the firm cannot acquire by purchase or otherwise agricultural Philippine lands. Of course if the land was purchased during the Japanese occupation, at a time when the 1935 Constitution being political in nature, was suspended (up to Sept. 3, 1942) (insofar as prohibition on acquisition of lands by aliens were concerned), the prohibition would not apply. (See Cabuatan v. Uy Hoo, L-2207, Jan. 23, 1951). Neither would the prohibition apply to lands purchased before the effective date of the 1935 Constitution, or to those acquired by the exercise of the right of conventional redemption — even if the redemption took place after the 1935 Constitution took effect — as long as the sale a retro had been effected prior to the 1935 Constitution. To hold otherwise would be to impair a vested right.

(2)

Foreign partnerships may lease lands provided the period does not exceed 99 years. (See Obiter in Smith, Bell and Company v. Reg. o f Deeds o f Davao, L-7084, Oct. 27, 1954), there being no legal or constitutional prohibition regarding said leases. (Krivenko v. Reg. of Deeds, L-630, Nov. 12, 1946; 79 Phil. 461). However, in the subsequent

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case of Philippine Banking Corporation vs. Lui She, (L17587, Sept. 12, 1967), the Court, through Mr. Chief Justice Fred Ruiz Castro held that the period of 99 years stated in the Smith Bell and Company case was only an obiter dictum, since in that Smith Bell case, the period involved was only 25 years (subject to another 25 years in the case the lease was renewed). In the Philippine Banking case, the Court ruled that it would seem that a very long period of lease in favor of an alien would virtually negate the constitutional prohibition against alien ownership of land. (3)

Foreign partnerships may be the mortgages of land, the mortgage to last for 5 years, renewable for another 5 years. However they cannot purchase the land involved at the foreclosure proceedings. (See Rep. Act No. 133).

The dissolution, winding up, and termination of branches of the foreign partnership in the Philippines are likewise governed by Philippine law (See Art. 15, Code of Commerce). Dissolution is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on the business. (Art. 1828, Civil Code). Winding-up is the process of settling business affairs after dissolution. Termination is the point of time after all the partnership affairs shall have been all wounded up. (See Com. Note, ULA, Sec. 29, p. 43). Just because a partnership is dissolved, this does not mean that a partner can evade previous obligations entered into by the partnership. Of course, dissolution, generally saves the former partners from new obligations to which they have not expressly or implicitly consented, unless the same be essential for winding-up. (See Art. 1834, Civil Code; See also Testate Estate ofMota v. Serra, 47 Phil. 464).

RECEIVERSHIP OF A PARTNERSHIP If a Philippine court appoints a receiver for a foreign partnership in the Philippines which is possessed of local property assets, Philippine law is generally determinative. The authority of the Receiver may be exercised as such only within the territorial boundaries of the Philippines. It has been held that in a suit for dissolution, the court may appoint a receiver at its discretion. (Salonga v. Lipka, 224 Mich. 278)\ but a receiver is usually not needed when practically all the firm assets are in the hands of a sheriff under a writ of replevin. (Gianuso v. Weiss, 191 NYS 118).

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DOMICILE OF A PARTNERSHIP What has been said about the domicile of a corporation whether de jure or de facto applies also to the domicile of a partnership. (See Art. 51, Civil Code).

FOUNDATIONS Foundations are combinations of capital, independent of individuals, and organized principally for charitable, medical, or educational purposes (non-profit purposes). Thus, we have as typical examples the Carnegie and the Rockefeller Foundations of the United States: and the Claro M. Recto Foundation, the Jose P. Laurel Foundation, and the Ramon Magsaysay Foundation in the Philippines. Perhaps the very first educational foundation in the Philippines is the College of Medicine of the University of the East. The College is otherwise known as the University of the East Ramon Magsaysay Memorial Center (UERM). While in the course of its routine operation the Center may earn some profit, still said gains cannot be distributed in the form of dividends to the founders or to the Board of Directors or members thereof; instead said profits are supposed to be put back into the enterprise for the improvement, let us say, of the medical facilities therein. (Incidentally, recent media reports have it that the UERM is in danger of closure due to insolvency and/or mismanagement). From the viewpoint of Conflict of Laws, the organization, capacity, powers, liabilities; and dissolution of a foundation is governed according to Dr. Rabel by the personal law of the foundation — and this, in turn, is supposed to be the law of the very place from which it is administered. (Rabel, Conflict o f Laws, Vol. II, pp. 113-114). The rule for the domicile of a private corporation or a partnership equally applies to a foundation.{Art. 51, Civil Code). (A “foundation” is a permanent fund established and maintained by contributions for charitable, educational, religious or other benevolent purpose. It is an institution or association given to rendering financial and to colleges, schools, and charities and generally supported by gifts for such purposes. [Black’s Law Dictionary, abridged fifth ed., p. 335].)

TAXATION OF JURIDICAL PERSONS While foundations are subject to minimal taxes, corporations generally have a big tax accountability. The question has been

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asked — does our taxation law apply to both the domestic corporations and the licensed foreign corporations? A distinction ought to be made. While both kinds o f corporations have virtually the same rate of income tax, a substantial difference exists in the determination of the taxable income: (1)

Domestic corporations as well as resident foreign corporations are taxed on net income received from all sources; while

(2)

Licensed non-resident foreign corporations are taxed on net income derived from all sources within the Philippines.

Query: If a foreign corporation does business in the Philippines and obtains a license therefore, does it become a domestic corporation or does it remain a foreign corporation? Answer: (1)

If aside from doing business here and obtaining a license therefor, it is incorporated (or reincorporated) under our laws, it becomes a domestic corporation. It becomes indeed a new juristic entity, and its foreign personality and foreign charter are automatically disregarded. (When we speak of “juristic,” it is an act designed to have a legal effect, and capable thereof. (Black’s Law Dictionary, abridged fifth ed., p. 444].) Therefore, insofar as income tax is concerned, it is taxable on net income received from all sources.

(2)

If, upon the other hand, it becomes not a domestic corporation but a domesticated one (here there would be no incorporation or reincorporation under Philippine law), it would be considered a Philippine corporation in some aspects, and a foreign corporation in other matters. Parenthetically, domestication is simply the process whereby a state effects a change in the status of a foreign corporation, at least in legal effect, i.e., for certain local purposes, as a condition precedent to its being permitted to transact business within the State. (See 17 Fletcher, op. cit., Sec. 8302). Domestication in the strict sense (that is, without the necessity of Philippine incorporation or reincorporation) is not expressly provided for under our laws; understandably our laws do NOT provide for the

*

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procedure therefore. Were domestication part really of our law and jurisprudence, a domesticated corporation, would be sim ultaneously a domestic and foreign corporation, since its foreign personality and foreign charter would still remain in force.

Chapter XXV A BRIEF HISTORY OF CONFLICT OF LAWS

ANCIENT ROME Conflict of Laws could have begun in Ancient Rome; but it did not. For one, Ancient Rome presented a fertile place for the development of “conflicts rules” because two legal systems were in vogue: Roman citizens were governed by the civil law of Rome; all others (inhabitants of the provinces of the Roman Empire) were under the jurisdiction of their own provincial legislation — how easily, therefore, “conflicts” theories could have arisen. But the theories did not come — for invariably only one law prevailed whenever a Roman citizen was involved, namely, Roman civil law. However, there were two incidental developments — the concept of domicile and the concept of lex situs — (where immovables were concerned). (Graveson, Conflict of Laws, p. 20).

THE EDICT OF CARACALLA (212 A.D.) In 212 A.D., the Edict of Caracalla conferred Roman citizenship on all the people living within the Roman Empire: consequently only one law remained — the civil law of Rome — for any and all acts, events, and transactions within the Empire. Law was, thus, placed on a territorial without personal or racial discrimination. (See Graveson, loc. cit.).

THE COMING OF BARBARIANS In the 5th century, the Roman Empire was overthrown by the so-cafied “barbarian tribes”: personal law replaced territorial law. This simply means that every person, regardless of residence, was considered subject to the law of his original nation or tribe. If the 445

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parties to a contract came from different nations, the law of the debtor prevailed — for it was then believed that his interest were paramount. (See Graveson, loc. cit.).

THE RETURN TO TERRITORIAL LAW Soon, the theory of personal law gave way to the return of territorial law: (1)

In the North, feudalism, a social order inherently premised on territoriality, gave cognizance to only one principle in deciding conflict cases — the lex fori.

(2)

In the South, the growth of Italian City-States (Milan, Bologna, Venice, etc.), each with preconceived notions of independence, insisted on the territorial principle in deciding conflicts cases brought about by inter-city-state commercial ventures.

(3)

In England, as a matter of fact, courts DECLINED to decide cases having a foreign element. (See Goodrich, Conflict o f Laws, p. 3, citing Anonymous, Y.B. 2 Edw. II, SS Year Book Series, 110, 1308).

However, there arose an agitation for “conflict rules.” Three (3) outstanding jurists came to the fore: (1)

Accursius — came forth with a disquisition on the subject based on the laws of Justinian.

(2)

Aldricus (of the University of Padua) came out openly with the question: “What law must a judge apply if the litigants before him come from different places with conflicting rules of law?” He gave his answer: “That which is more useful asd which seems best to him.”

(3)

Bartolus de Saxoferranto (13141357) evolved the “Theory o f Statutes.” This man, on account of his monumental contribution to the subject, has been referred to as the “father of Private International Law.” According to Bartolus, the statute theory method involved two (2) steps: (1)

the consideration of the applicable legal system that must govern the legal situation brought up for judicial determination;

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the application of one of the following: a)

personal statutes — which regulated men in their personal and domestic affairs (as distinguished) from their proprietary and commercial ventures;

b)

real statutes — which regulated things, particularly, immovabels;

c)

mixed statutes — which governed all other matters including contracts. (See Cheshire, Private International Law, p. 31; Graveson, Conflict o f Laws, pp. 21-22).

It should be noted that while the “personal statutes” stressed the personal law, the “real statutes” emphasized the territorial principle. Indeed, Dean Graveson referring to “real statutes” says that they “were primarily concerned with things; and were applied only within the territorial limits of the legal system of which they formed part. They however, affected every person transacting business within those limits.” He concludes by stating that the Theory of Statutes was an “immeasurable step in progress.” (Graveson, Conflict o f Laws, p. 22). As will perhaps be evident, the statutes sometimes overlapped in their actual application. Something was needed to bring system and order to the confusion caused.

TWO JURISTS FROM FRANCE To bring a semblance of order to the confusion apparently caused by the Theory of Statutes, two (2) French jurists improved on it with the following contributions: (1)

Charles Damoulin (1500-1566) — accentuated the “personal statutes” by stressing the principle that the parties to a transaction could choose the proper law to apply, (lex loci voluntatis or lex loci intentionis).

^(2)

Bertrand D’Argentre (1519-1590) — leaned towards the territorial theory by resolving all doubts in favor of the “statute real.” Furthermore, he opined that the “lex rei sitae” applies to successional rights in immovables. (See Graveson, Conflict o f Laws, pp. 21-22).

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THE DUTCH THEORY OF TERRITORIALITY AND COMITY At the conclusion of the Thirty Years War (1612-1648), Holland (now called the Netherlands) among other countries, gained independence (by virtue of the Peace of Westphalia of 1648), Conscious of their country’s new found sovereignty, some Dutch jurists (notably Ulrich Huber, 1636-1694) formulated two (2) fundamental maxims: (1)

The laws of a state can only have force and effect within the confines of its territorial jurisdiction; hence as a gdheral principle, the forum can choose to exclude all other laws in the adjudication of conflict cases.

(2)

By way of exception, the forum may once in a while, as a gesture of “comity” (“comitas gentium”) allow the operation of a foreign law within the forum, so long as the public policy of the forum is not outraged. Comity was thus allowed: (a)

to avoid unfairness — which would sometimes result in case the principle of territoriality was rigidly enforced;

(b)

to cope with the increasing demands of worldwide commerce — which in many cases would be seriously hampered if foreign legislation would at all times be unceremoniously brushed aside; and finally;

(c)

to stress the fact that precisely because o f its sovereignty, a state may, at its discretion, permit or allow the application of foreign law within its borders. (See Graveson, Conflict of Laws, p. 22; See also Beale, Conflict of Laws, Vol. Ill, p. 1864).

Because Holland (now called the Netherlands) stressed the definitive role of a sovereign state in drafting conflicts rules, other states enacted express rules in their code. For example: (1)

The Bavarian Code (1756) — applied the theory of lex rei sitae not only to real but also to personal property.

(2)

The General Code o f Prussia (1794) — stressed the principle of “efficacy” in contracts; namely, that if according to one applicable law, the contract is valid, but according to another equally logical law, the contract is void, that which sustains the efficacy of the contract should be upheld (res magis valet quan pereat).

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The Code Napoleon o f France (1804) — emphasized the nationality theory in matters concerning status and capacity. (See Cheshire, Private International Law, pp. 201 -202).

WRITERS OF THE 19TH AND 20TH CENTURIES In general, there are three (3) kinds of writers in Conflict of Laws: (1)

the deductive (a priori or theoretical) writers — from a set of general principles, these writers draw forth certain corollaries and conclusions, generally applicable to all conflicts problems:

(2)

the inductive (a posteriori or positive) writers — after a thorough/going study of all actual cases and decisions on the subject, they try to formulate principles which would seem to be adhered to, sometimes with great consistency by not a few tribunals; and

(3)

the writers who combine both approaches.

Some famous writers with their respective contributions to the subject are enumerated hereunder: (1)

Joseph Story (American) — Chiefly an inductive writer, he wrote his “Commentaries on the Conflict of Laws” (1934), relying chiefly on European decisions and the opinions of European jurists (not on American and English decisions, for by that time, not many conflicts problems had arisen for judicial determination). (See Goodrich, Conflict o f Laws, p. 3). Story firmly believed in the territorial theory in view of the equality of sovereign states; as well as in the occasional application of comity. (Story, Conflict of Laws, Secs. 18, 20, and 21).

(2)

Friedrich Carl von Savigny (German) — He wrote “Modem Roman Law,” Vol. Ill (1839) of which dealt with Conflict of Laws. He believed in the application of the proper foreign law, not because of comity, but because of the resultant benefits for everybody concerned. He espoused the theory of “situs,” or the principle that every element of a transaction must be governed by the law of the place with which said element has the most substantial connection. Savigny was an “internationalist”

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in the sense that he regarded conflicts rules as having been imposed not by individual states but by an “international common law of nations having intercourse with one another.” (3)

Pasquale Stanislao Manicini (Italian) — Manicini was the principal exponent of the nationality theory (first in Public, then also, Private International Law) in matters dealing with status, capacity, and in general private interest of the individual. (See I Castan 97). It was Mancini’s claim that if at all law is territorial, it is only by way of EXCEPTION (that is, only in matters affecting public order and public policy). Mancini’s influence, together with the promulgation of the Code Napoleon, was chiefly responsible for replacing the “domiciliary theory” with the “nationality theory.”

(4)

Joseph Beale (American) — He was the principal author of the American Restatement on the Conflict of Laws. The American Restatement “consists of an orderly and logical setting down of what are considered the more authoritative rules of law throughout the United States. The Restatement is not a code or codification of American Law; it has no binding force in American Courts, but in effect, has persuasive value, varying, as might be expected from state to state.” (Graveson, Conflict o f Laws, p. 19). Together with Dicey of England, Prof. Beale has been credited with the theory o f vested rights.

(5)

Walter Wheeler Cook (American) — the author of “Legal and Logical Bases of the Conflict of Laws” (A Critique of the American Restatement) (1942) is responsible for the theory of local law. The idea, however, originated from Anzilotti, eui Italian. Anzilotti later repudiated his own theory. (See Rabel, Conflict o f Laws, Vol. I, p. 62).

^

>

Regarding characterization, four important names ought to be mentioned: Franz Kahn who first discussed it in 1891; Bartin, who referred to it as the doctrine of qualification; Falconbridge, who suggested various steps in classification; and Rabel, for his socalled “totality approach.”