Ch"apter SV

45

A BRIEF EISITORY OF CONTI,ICT OF LITWS

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

PHILIPPINECONFLICTOF LAWS
Chapter'l
PRELIMINARY
CONSIDERATION

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

fittingly poi"t"g out by kof. Robert A Lflar, a former

of
the supreme court ofArkansas, oanycasewhich involv""
{u*ice
facts occ''rring in more than one state or nation, so that iD
decidin;
the case, it is necessary to make s choice between tn"
u*tortn"
differernt states or countries, is a conllict of laws *"".;
fUft ri it*
Inut of Conflict of l-clws,p. I).

DEFINMON9r CONFUCTOF LAWS

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

PTIIIJPPINE CONTLICf OF IAWS

%ivate Inter:national Law is tlat department of national

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

PBEUMINARY CONSIDERATION

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

are in this definition four (4) important elements,

Qsnflict of laws is part of t}Lemunicipal l.aw of a state;

(2,

There is a directive tncourts al.d,adrninistrative agercics;

(3)

There is a legal problem involving a foretgn elcmett;

Law of a State

And precisely becausethe subject is bart of tbe municipal

Iow,o it is NOT international in character. It is however given
the appellation of II{IERS{ATIONAL LAW because of the
presence of a FOREIGN element in a given problem.

(4) Finally, tJrere is eitJrer an opplication or ennneppliution

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

of Lous Is Potrt of the Muniaipol

Since every state has its own municipal law, it follows

quite naturally that each state has also its own conflict of
laws. Hence,the confli61of laws of the Philippines is different
from its counterpart, say in France or Japan or Cuba or
England. gimilsrly, American conflict of laws differs in the
various states of the American Federal Union.

narngly:

(1)

Conflbt

In light of what has been said, We are now ready to

define PHILIPPINE CONT'LICT OF tA\trS as that part of the
nunicipal law of the philippines which directs its courts and
gdminisfrzf,iyg agencies,when confronted with a legal problem
invol-ving a foreign elemenl whether or not they should apply
a foreign law or foreign laws.
(2,

Thc Direction

to Courts and Administ vtiue

Agenci.et

It is the judicial tribunals of a count5y that ultimately

are cailed upon to decide or resolve '6enflisfs' problems.
Various administrative agencies of the state, such as the
Department of Foreign Afrairs, the Bureau of Immigratiou,
the Securities and Exchange Commission, and the like also
decide PRELIMINARILY a given controversy involving a
foreign factor.
(8) A l4ol

Prcblcm

Inooloing o Fotzign Elcment

In an existing situation premised on cer0ain facts, a

'forergu
element'ha^s to be preseut before the matter cau be

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

TIu Applicotian
or Non-Apptication
or Fotzign Laws

of a Forctga Lau

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

PREUMINARYCONSIDERATION

(a-swhen, for instance, the proper foreign law has

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

PHILIPPINE CONFIJqT OF I"A\['S

gtill to be manufactured in " ini"a state, and to.be delivered at a

given port of a fourth state. should legal so"'plications ensue, which
of the countries involved will have jurisdiction over the case, and
which state's laws will be applicable?
"Briefly stated, $'e may say
that the subject is importJnt in
order:
(a)
(b)

to adjust canflialiqg rights in international, mereantile

and corporate transactio.f; an4
to solve personal, famiiy, property, and successional,
contractual problems, possessedof facts or. elements
operating in two or mone states.

BASIC CAUSE FOR CO;FLrcTS PROBLEMS

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

?T1 .
-"v

In ,tbc 'Philippinoa, oral wilb 'arc.not tllorcd;.,1n

. P..sacLu$ttq.US-A.,
an oral wilt it ytdldonly tfcccntcd by
rctul
ecrvice
sdldicm lD
or by marinerr at rea and only with

PREIJMINARY CONSIDERATTON

reference to their wages and personal property. Upon the other

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

the Judiciarytaxable."

PHILIPPINE CONH,IT

OF,IAWS

SCOPE OF FUNCTIONSOF CONFLICT

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

the applicability to a partianlar caseofeither the local or

the foreign law;

(3)

the determination of the force, validity anil eflbctivenege

of a foreign judgment.

lbus, three questions, present themselves:the question, firstly,

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

PRELIMINARY CONSIDERATION

Q) kivate individuals may in their own way abide by our

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

PHILIPPINE CONII,ICT OF IAWS

"conflict," whereas the principal

Firstly, it stresses the
objective of the subject is precisely to resolve or eliminate
said "conllict."

(1)

(2,

(3)

Secondly, there may be rc conflipl sl e.ll in the'laws

themselves: the "conflict may exist only in the mind of
the judge who, unsure of hirnself, and bereft of judicial
maturity, may hesitate and find himself con-firsed.
Thirdly, aside from the existence of a conllict of liaws,
there may also be a conflist ofjurisdiction, and a conllict
rnay arise between provisions in our Civil Code and in
our Revised Penal Code. Even in the Civil Code itself,
inconsistent provisions may be present.

Be that as it may, it'is clear that any further academic

discussion on the semantici involved can serr/e no useful pur?ffte.
The sigDificant thing to bear fu1rnind is the stress underlying each
pbrase.

I
I

CONFUCT

OF LAWS AND THE LAW OF NATIONS

(puBuc n{TERNAfiONALLAW)DTSnNGUISHED
CONFLICT OF
I.AW
(1) municipal in
character

,o
E

I
a
a
a
o
a

:l
'a
p,

{
,
c
I

:
t
I
a

(4) the remedy here Remediesor

is to resort to Sanctions
municipal tribunals

(4) the remedies may be

peacefulor forcible. Peaceful remedies include
diplomatic negotiation,
tender and exercise of
good oflices, nediation,
inquiry and conciliation,
arbitration,'' judicial settlement by the lnternational Court of Justice.
reference to regional
agencies such as the
Organization of American
States, reference to the
United Nations itself.
Forcible remedies include
the severance of diplomatic relations, retorsions, reprisals, embargo,
boycott, non-intercourse,
pacific blockades, collective measures under the
U.N. Charter, end finally
war.

I,AW OF NATIONS
Nature

(1) internatiennl ia character

(2) the parties involved ane

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

l1

interest only to sovereign

states

I'

lbe only reason we have used the name'Conflict of Laws" for

tbis book is the fact it is the official name giveu both by our
DeparAent of Education, Culhre and SportdComvnissioaon Higher
Education and our own Supreme Court (insofar as the Bar
Ilrnrnination is concemed).

PRELIMINARY CONSIDERATION

I
I

Persons
Involved

The Cistinctions hereinabove adverted to have been advanced

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

12

(1)

(2)
-

(3)

PHIIJPPINE CONFI.ICT OF IAWS

The question of citizenship and nationality is properly a

part of both subjects: part ofthe Law of Nations-in ine
sense that a state's observanceof it dependsprimarily
on the actuations of the citizenry; and part of ionnict of
Laws for oftentimes it is the law of the citizenship or the
Iaw of the nationality that should govern a
ierson,s
capacit5r and status.
While generally a state may resolvea .conflis1s'problem
freely, n"d even use its own intenal law exclusively in
deciding a given situation, still, should there be a treaty
a state to qpply foreign law to certain "*"J,
*[gtlrg
the state is of necessity compelled to abide by such
treaty. (SeeHans l{elsen, Prirciplcs of International law,
p. 257).

done in view of the principle of state immunity from suit.

Tlue, the Base Commander does not possessdiplomatic
immunity (and he may, therefore, be proceededagainst
in his personal capacity, or when the action trken by
him cannot be imputed to the govemment he represents).
But here, the suit is not actually against him, but against
the U.S. Government, which has merely acted on the
basis of its treaty stipulations with our Republic.
international Commissinnsand,Administltiue
Bodics Houe A Distinct Juridical Persorwlity
Indcpend.entof th.e Muniripal Law of tlu Ststc
Southeast Asian Fisheries
Development Center Aquaculture
Departnent v. National Labor
Relations gernrn iesiql
G.R No. 86773, Feb. 14 1992

doa"" both subjects, if State A should recognize the

government of State B, tle latter is automatically given
peraission to sue in the courts of the former. However,
it should be noted that a sovereign state, whether
recognized or not, cannot be made a delendant in a foreigu
country. For if the mle were othemrise, aside from the
fact that an insult ageinst a sovereign state has been
made, how can the judgment ever be effectively enforced?
(See Mas Wulfsohn, et aI. vs. Russian Soci.olistFedzrated
Sovbt Republic, United Stqtes of Appeok of Neut York,
1923). However, if a recognized etate is given permission
to sue in another, a counterclaim (whether compulsory
or perrrissive) may be filed against the former. A contrary
rule wiII be erninently unfair.

Permanent international commissions and

adrninish.ative bodieshave been createdby the agreement
of a considerable number of States for a variety of
international purposes, economic or social and rrainlv
non political.
Among the notable iastances are the International
Labor Organization, the International Institute of
furiculture, and the International Danube Qeinrnis5iea.
Insofar as they are autonomous and beyond the control
ofany one State, they have a distinctjuridical personatity
independent of the rnunicipol l.o.w of the State where
they are situatcd. As such, they must be deemed to
possessa speciesof internati.onal personali$t.

Donsld Baer Cornr"ander U.S-NavaI Baee,

Subic Bay ve. Eon Tito V. Tizon
:.
I-':24294, JuIy 15, l9Z4
FACTS: If a Filipino is granted a timber lieense
mayhe conduct a loggingoperationwithin a U.S. Military
Base when the U.S. Base Commander refuses to grant
him perrrission to do so?

'

PRELIMINARY CONSIDERATION

HELD: (thrr Mr. Justice, later to become ChiefJustice Enrique M. Femando): No, he cannot conduct'
such a logging operation. To sue the Base Co"'-ander
(to compel the allowance of the operation) would amount
to a suit againat the U.S. Goverament. This cannot be

SOURCES OF CONFLICT OF LAWS

There are indirect and direct sources of Conflict of Laws.
fhere are two indirect sources: the natural moral law, and
the works 6f writers.
Ihere are six direct sources:constitutions, codifications, special

Iaws,treatiesandconventions,
judicialdecisions,
andinternaiional
customs.

t1

PHILIPPINE CONIT.ICT OF LAWS

THE INDIRECT
SOURCES
(f)

The Neturo.l Moral Lou

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

(2,

Works of Writen
- -41aory the famo-us writers on the subject may be cited
the following:

(h)
(i)

Westlake - frivate Interaational Law"

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

0)
(k)

o
Laws"
E.G. LorenzeD. - "Cases en Qenfligt of Laws'
Graveson - "Conflict of Laws"

(a)
(b)
(c)
(d)
(e)
(f)

G)

Itre above-mcntioned legal scholars are considered sourcea

(indirect) of Conflict of Laws insofar as their writings have
inflqgnssd judicial decisions on the subject.

THE DIRECT SOURCES

(f)

'

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

PRELIMINAR,Y CONSIDERATION

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

those who were formerly Filipino citizens;

permanentresidentsof the
2) thosewho have become
Philippines; and

16

PHILIPPINE CONFLICT OF I.AWS

3)

those who have resided in the ph;lippines conti.uously

for at least twentyt20) years.

Then President Ferdinand E. Marcos pointed out that

these properties had been acquired in GOOb FAIftI, in the
honest beliefthat such properties could be held even after the
expiration of parity. under the rgzS' constihrtion,-titles of
Anerican citizens to the private randg are voirl as against the
Government but valid as against privaic perso*. \Mith thi"
new decree, according to Mr. Marcos, thise thee t1pes of
Anerican citizens nre granted {specid consideration and
compassion" jo tr" interest of justice.
Meanwhile, with the advent of the l9g? Constitution,
l,ands of the piiblic domrin are clo"sified into agricultural,
forest or timber, nineral lands,'and national parks.
Agricultural
lands of the publib domain may be further
classified by law according to thq uses to which they may be
devoted. Alienable lands of the public domain shall be limitd
to agricultural lauds. kivate corporations or associatioru may
not hold such alienable lands of the public domain except by
lease, for a period not exceedingtweuty-five yF, and not to
exceed one thousand hectares in area. Citizene of the
Pbilippines may lease not more than five hundred hectares,
or acquire not more than twelve hectares thereof by purchase,
homestead, or grant Taking into acrount the reguirements of
conservation, ecolory, and developmenf and subject to the
requirements _ofagrarian reform, the C,ongr,ess
shall determine,
by law, the siie of lpnds of the publis flemain qhich may be
acquired, developed, held, or leased and the conditions
tberefor.' (Afi. nI, Sec.3, Tlu 1987 Phil. Const.).
" (2)

Codifications
The Civil Code of the Philippines, which took effect on
August 30, 1950 (Laro u. Del Rosaria, Gn. L. 6339. 50 O.G7957), contains several imFortant artides on Philippine Conflict
of Laws, the most fuudamental of which are Articles 18, 16,
t'|,66,71, 99, L24,8L5,816,817,and 819.the other provisions
will be enumerated in detbil in the subaeguent pages.
The Philippine Code of Co"""erce which is really the
Code of Co'""'erce of Spain (extended to the philippinee by
Roy"I Decree of Auguat 6, 1888, and effective here begiDning

PRELIMINARY CONSIDERATION

t7

December 1, 1888) also coutains some provisions on "conflicts"

problems. One such provision is Art. lb.

In other countries mention may be made of:

(a)

The French NapoleonicCode of 1804 which stressedthe

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

(b) the Civil Code of Greece of 1940 which among other

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

(a) The EuropeanHagueConventions

of lg96, 1902,and
1905.Among the rules chosenwere those concerningthe

l8

PHILIPPINE CONT'LIT

OF IAWS

validity of marriage and marriage contracts,

their effects
on property and status, divorce and judicial separation,
guardianship of minors and peioons
under civil
interdiction, testamentary and intestate succession,qnd
parts of judicial procedure.
(b)

(6)

Ttre Geneva Conventions of1823, 1926, 1930, and 1931.

They dealt with arbihation and foreign arbihal awards;
and matters coucning negotiable instnrments.

(c)

Ihe Treaties of Montevideo of 1899 (revieed in 1940).

Ilere, the eountries of South America adhering to the
domiciliary theory (as distlnguished from the nationality
theory) agreed on nrles concerning donicile, properby,
juridical
acts, marriage settlement, gu"cessioo,
prescription, jurisdiction, commercial law, m.aritine l,aw,
bills of uxs[eng, and the like.

(d)

The Codigo Bustanante of 1898 - which was enterd

into by Arnerican states following the nationality theory,
and which gave rules on practically all aspects of Conllict
of Laws.

Judicial

Deci.sions

In the Philippines, as well as in many other countries,

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

PRELIMINARY CONSIDERATION

l9

alter it has been subjected to test in the crucible of analysis

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

Customs

Almost all states, in their respective municipal laws,

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

ofpublicsecurityandsafetyshallbeobligatoryuponall

who live or sojoun in Philippine territory, "obj""ito the

20

PHILTPPINE CONFT,ICT OF TAWS

principles of public international

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

(P**Pt:".3'"
- .
th" *el+tieg,gq3lea,to,d.iplomatic
9.ffi?"t" ang visiqgc headsof fori;d-itats iiroviled that
the latter do not travel turcdgnita.ItUCv.t*1r"f';;;;;;
but with the knowredgeor our go"urin-L-;t'offiJJ;;il;
of states are entiiled_L irr-Gty. ff t}reinagnitotravel
ie without the knowledgeof o*-"oLtry, the diplomatic
immunity cannotbeinsiltea upon;andtn" frura" of "t
A"
'thus

travelling may be arrested ior the ssmrnisgisp

sf a
crime. However, once they reveal,and prove their
identity,
immunity is given.)

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

G)

PRELIMINARY CONSIDERATION

(effective Aug. 10, 1965 - Mendez_Blair Exchange

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

"TheRP.-U.S.
Military BasesAgreement
is merelv
an executiveagreemententeredinto betwe"r,tll
Presidentof the Philippinesand the hesidentof the

22

PHILIPPINE CONFLICT OF I..AWS

United States. Suci, .l agreemeut does not require

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

b-yholdingup the ultimatiiquesUon

of whethert'allow

the American continued ...!""

to Ae ffrifippine bases.

PRELIMINARY CONSIDERATION

But, if w-eanticipate such an issue to arise, how is it

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