Article 9
What is
- This governs the situation when the situation is obscure or the
law is insufficient. There is actually absence of the law capable
in the given fats of the case, because human problem is so many
and varied that it cannot possibly be addressed by the existing
law. Because of the complexity of human society and human
relation, so are are human problems, we cannot expect that all
human problems can be addressed by present laws.
So what is the court supposed to do if in the gien problem the
facts of the case, there is really no law applies squarely to facts
of the case. Is the court supposed to refuse to render judgment
because there is no law applicable?
This may be addressed by Article 9 of the Civil Code. It
provides that no court or judges should decline to render in case
of absence or obscurity of insufficiency of laws. So the question
is, how is the court of the judges supposed to render judgment
and serve the ends of justice when there is no law applicable or
where the law is obscure or when the law is insufficient? When
this happens, when the facts of the case cannot squarely
addressed by the existing law, the court may resort to sources, so
decisions can be based not only on laws and jurisprudence but
on some other secondary sources. But this only applies in the
absence of law or in cases when there is obscurity and
insufficiency in the law.
What could be this other secondary sources:
1. The court may refer to opinions of writers and authors.
Their opinions carry weight, opinions of experts, the
opinion for certain matter, they will be resorted by the
court in rendering judgment.
2. The court may also refer to decision in other but similar
or related cases.
For example, the facts of the given case are not
exactly the same but similar to the facts to the other case
and the Supreme Court had already rendered a decision in
so far in that other but similar case is concerned. The court
may take effort in the decision in that other but similar
case. Maybe the court may say “okay the decision in the
other case will be applied in this case” --- that can be done.
3. Or the court may refer to decisions of foreign courts
especially in this jurisdiction in the Philippines.
“We are fan of the justice system of the justice system
of the US. We are fan of, especially on novel question, we
are fan of referring to jurisprudent, decisions decided by
the courts of the US. So I would not be surprised be
surprised if done day someone will question the
constitutionality of the Family Code, requiring marriage to
be solemnized between male and female. Someone would
be bold enough to question the constitutionality of it
provision. I would not be surprised if our courts will take
cue on the decision of the Supreme Court on the matter
because Supreme Court of the United States has already
spoken on the matter. Any law that limits marriage to male
and female is unconstitutional. However, on the other
hand, the culture of the Philippine society can also make
difference. You will understand that our society is not as
liberal and matured as the society in the US.
But my point is, our courts may always refer to
jurisprudence or decisions rendered by other courts on
SIMILAR CASE.
Article 9 - allows to take or make use of other sources.
important there is, THE COURT SHOULD NOT DECLINE
TO RENDER JUDGMENT. It is not an option for them to
decline on rendering judgment.
Article 10
- provides a rule where there is doubt as to the application and
interpretation of a law. Not all laws are perfectly crafted, in most
cases those are susceptible to various interpretation, these
various interpretations could lead to doubts, as to which is the
correct and proper interpretation of the law.
So what is the court supposed to do when there is doubt, it
entertains doubts as to the application of the certain law?
- By virtue of Article 10, the court, in the case of doubt
should presume right and justice to prevail. If the court has to
interpret a particular provision of a law, it should always bear in
mind that the purpose of a particular law is right and justice.
So its decision, its interpretation and its application of
particular law should be guided by sense of justice of what is
right and what is just.
Karen Salvacion vs Central Bank of the Philippines
Facts: This involves abduction and rape of a 12 year old by a
foreigner, a visiting foreigner, an Italian. During the pendency of
the trial for the criminal case, the accused (foreigner) jumped
bail and evaded prosecution. And so the family of the victim file
a separate civil action for damages arising from the same act or
omission resulting of the crime. After the due trial of the
proceeding, the court rendered judgment in favor of the victim
and awarded the victim certain amount as damage arising from
the crime.
When the decision sough to be enforced by the sheriff. The
sheriff went to the China bank because the accused had maintain
a bank account there, the sheriff attempted to serve a notice of
garnishment for the satisfaction of the monetary judgment
rendered by the court in favor of the victim.
The China Bank supported by the Central Bank refused to
release the deposit pursuant to the provision of RA 6425
otherwise known as “Foreign Currency Deposit Act” Both the
China Bank and the Central Bank were uniform in their position
that the bank cannot be or the bank account of the accused
cannot be touch because pursuant to the provision of RA 6425
that foreign denominated foreign bank deposit are completely
and absolutely confidential. It cannot be subject to garnishment,
attachment or execution by the express provision of the law.
A literal application of RA 6425 would certainly defeat the
judgment of the court to prejudice and victim because there is
no way by which the judgment can be enforced and there is no
way the victim and her family can collect the judgment of the
court.
So how did the Supreme Court resolved the issue:
Whether or not the provision of RA6425 can be or
applicable to the case as to defeat the execution of the
monetary judgment rendered in favor of the victim.
Ruling: The Supreme Court ruled on Article 10 of the Civil
Code, the Supreme Court said when there is doubt as to the
application and application of the law, the court should presume
that the law making body intended right and justice to prevail.
 So what was right and what was just under the given
circumstances. According to the Supreme Court, what is right
and just is for the child to be allowed to collect. That is the only
way she can be given justice and right can be served on the part
of the victim.
How did the Supreme Court justify or uphold the justice and
right in the decision of the case, Article 10 and so the Supreme
Court went beyond the literal language of the provision of the
RA 6425.
TAKE NOTE: that the language of RA 6425 is so categorical
that foreign currency dominated deposits are actually and
absolutely confidential and cannot be subject to garnishment and
attachment but the Supreme Court went beyond the the language
or the literal language in order to serve and achieve what is right
and justice.
But how did the Supreme Court justify that?
- the Supreme Court said, they had inquired to the purposed of
RA 6425 and the objective sought by the legislature in enacting
the RA6425. It comes out that purpose of RA 6425 is
ECONOMIC. The intention being to encourage foreign
depositors and investors to put in their money to the Philippines
so that it can held make Philippine economy boost. There will
be enough money flooding the Philippine market for the benefit
of the Philippine economy. So obviously, in order to serve as the
as a come-on to foreign depositors and lenders. The framers of
the law made that deposit absolutely confidential to serve
certain security to the prospective depositors.
The intention of the law is to protect the prospective foreign
lender and depositors, it is not intended to protect transient
visitors who merely stay in a period of time in the Philippines
because o that is the case, our country will have temporary
deposits and that will not serve that purpose o improving the
economy.
And so in the end, the Supreme Court said, the provision of RA
6425 cannot be applied in the case, as to protect the accused to
prejudice the victim.
In the end the Supreme Court said, justice and serve served only
by allowing the sheriff to collect and ordering the bank to
release the deposit to satisfy the monetary judgment.
Christensen vs. Aznar- Garcia
This case involves a petition of adoption filed by the
illegitimate father to adopt his illegitimate daughter. After due
proceeding, the trail court granted the petition for the adoption
but the problem was the name approved by the court is without
middle name, only the first name and the family name of the
adopting father.
But the father was not satisfied, the father wanted that the
adopted daughter should also bear the surname o the her
biological mother just as any legitimate daughter is allowed
under the law. So the father went all the way up to the Supreme
Court insisting that her adoptive daughter should be allowed to
use the surname of the mother as her middle name.
The problem here is, and it was the predicament which
confronted the trial court was that in our jurisdiction, there is
really absence of a law that governs that use of middle name.
What we have in our civil code is the law governing the use of
surname but not the middle name. While it is rue that we usually
use the middle name for our name, this is not a matter of law,
but a matter of custom - to use the middle name, the surname of
our mother as our middle name.
ISSUE: Whether or not the adopted child be allowed to
use the surname her biological mother as her own middle name
in the absence of law that governs the use of middle name.
How did the Supreme Court addressed this issue.
HELD: The Supreme Court take cue from Article 10 of
the Civil Code. The Supreme Court said that there is doubt in
the application or interpretation of the law. So based on Article
10, the court should now presume that the law making body
intended right and justice to prevail.
How did the Supreme Court arrive in that decision?
- Again, it inquired into the purpose of the adoption of the
law, it is said that the obvious purpose is that the adoptive law is
to elevated the status of the illegitimate children to the status of
the legitimate children, so as the equipt them to all the rights and
privileges that legitimate child is enjoying.
Under our custom, legitimate children use the surname of
their mother as their middle name, so the Supreme Court said, if
the purpose of the adoption law is to level the playing field
between the legitimate and illegitimate child, so that the
illegitimate child be granted the same rights and privileges being
enjoyed by the legitimate child. It would not serve its end of
justice if the illegitimate children, now the adopted children,
now considered to be legitimate should not be allowed to use the
surname of their mother as their middle name,
So the only way to achieve the justice and right is to allow
the adopted child to enjoy the same privileges enjoyed by the
legitimate and that is to use also the surname of their mother as
their middle name.
Even if there is no law or specific law that governs that
particular problem, the Supreme Court still able to render justice
pursuant to Article 9 or 10 of the Civil Code.
Article 14 (Conflict of Laws)
Article 14 in relation to Article 2 of the Revised Penal Code,
Article 15, 16, 17 of the Civil Code ---- these are all called the
conflict of laws rules in the Philippines.
This is actually a separate subject, private international law
and conflict of law, a separate subject in your third year! (edi
wow hahahah)
It is said that a state is a country of laws. Society exist because
of laws but every sate has its own set of laws. That is the
universal truth, that every country has its own set of laws and
every set of laws is consist of two parts:
1. The purely internal law
2. And the so called conflict of laws rule
The conflict of laws rule are laws or rule that governs cases
involving foreign element so there is, if in case is invested with
foreign element, resolution of which will entails the application
of various laws of various countries. ---- that case is deemed to
be a case involving foreign element and therefore the resolution
of the case falls for the application of conflict of laws rule.
But if on the other hand, the case is not invested with foreign
element but by parties of Filipinos, the contract is entered into in
the Philippines and the subject matter of the contract is located
in the Philippines, no foreign element is involved. This, is purely
government by the internal law of the Philippines.
WHAT IS A CONFLICT OF LAWS RULES ON CRIME
Our conflict of rules on crime is that stipulated or
prescribed by Article 14 of the Civil Code and Article 2 of the
Revised Penal Code.
Article 14 enunciates the principle of Generality and
Article 2 of the Revised Penal Code enunciate the Principle of
Territoriality as a general rule and the rule of Protected Theory
as way of exception.
What is Generality, Territoriality and Protective Theory in
Criminal Law?
Article 14 of the Civil Code provides that the penal laws and
those of public safety shall be obligatory upon those who
sojourn in the Philippines subject to the principle of public
international law and treaty stipulation.
It is the principle of generality - this means to say that who ever
is in the Philippines whoever sojourns in the Philippines
regardless of nationality as a general rule is government the
criminal laws of the Philippines.
Example: If a German comes here in the Philippines and visit
here girlfriend and then the German raped the Filipina
girlfriend, the German cannot invoke as a defense that
he cannot be held liable because he is a German citizen.
Under Article 14 of the Civil Code, it provides that
whoever is sojourning regardless of his nationality shall
be governed by the criminal laws of the Philippines. It is
mandatory to all, hence his nationality cannot be a
defense. That is why it is called the principle of
generality because criminal law applies to all WHO
SOJOURN generally.
The only exception are cases which are govern by the Principle
of Public International Law and treaty stipulation.
Example: Obama comes here in the Philippines and committed a
crime - It is a crime but pursuant Public International
Law, head of the states are immune of criminal
arrest or prosecution in a country.
Example: Ordinary Filipino law committed the same crime as
committed by Obama - he can he arrested and prosecuted and
convicted in his country.
Another exception is person may be immune criminal
prosecution and arrest in a country pursuant to some provision
of treaty stipulation.
Example: US Bases Agreement (US - PH Agreement)
= immunity of criminal arrest and prosecution in
favor of military service men who commit crime within the
base.
The Principle of Generality does not apply if principles of
Public International Law or some Treaty Stipulations
specifically providing the exceptions.
So, Generality therefore refers to the subject of our Penal
Laws regardless of the nationality, so long as they are here in
our territory they are covered under our Criminal Law.
Distinguished this from Territoriality Principle. They are
not the same. While Generality focuses on the subject, the
people governed by Criminal Laws. Territoriality focuses on the
jurisdiction over crimes committed. Now, under
TERRITORIALITY PRINCIPLE, Philippine Courts has
Jurisdiction over crimes committed within the Philippine
territory. So our court’s authority to try, prosecute and convict
offenders is limited only within our territorial jurisdiction. If a
crime is committed abroad, as a general rule under this principle
our courts have no jurisdiction to try the offender.
That is why if a Filipino already married in the Philippines
goes to Hongkong and despite the existence of his first marriage
contracts a subsequent marriage in Hongkong. The crime of
bigamy was committed in Hongkong outside of the Teritorrial
jurisdiction of the Philippines, therefore when that Filipino
citizen who contracted second marriage in Hongkong comes
back, he cannot be arrested and prosecuted before the Philippine
court because of the Principle of Territoriality. Because
jurisdiction is coterminous with the territorial jurisdiction of the
court where it sits judgment of the case. So generally the
Principle of Territoriality, our courts can only exercise
jurisdiction over crimes committed within our territory. But
that’s only the general rule because Article 2 of the Revised
Penal Code provides for EXCEPTIONS. Article 2 (Revised
Penal Code) enumerates 5 instances where our courts exercise
jurisdiction over crimes even if committed outside of the
territory of the Philippines. It says in Article 2 that “The
provisions of this code “Revised Penal Code” shall NOT only
be enforceable within the territory of the Philippines but also
outside of its territory against those: “and then it is enumerated
there” (the exceptions here are consistent with the Protective
Theory under Criminal Law)
What’s PROTECTIVE THEORY?
Under this principle the State who’se interests is prejudice
by the crime has jurisdiction to try the offender and impose
penalty. While Territoriality Principle, the country within
who’se territory the crime is committed exercises jurisdiction.
So, among the theories on Criminal Laws on Conflict of Laws
what we have here in the Philippines is Territoriality as a
general law and Protective theory as an Exception.
What are these Exceptions pursuant to Protective Theory in
Criminal Law?
- Those who commit an offense while in Philippine Ship
or Airship. (Philippine Ship or Airship is considered to be an
extension of the Philippine territory)
- Those who shall counterfeit or forge Philippine
currency or coin or obligation and securities. (So if a Filipino
works in Thailand counterfeits Philippine money there. If he
returns to the Philippine, He can be prosecuted. It is no defense
to say that he did the counterfeiting outside the territory of the
Philippines because pursuant to the Protective Theory it is the
INTEREST of the Republic of the Philippines which was
prejudice by the act of counterfeiting its currency coin)
-Those who shall be guilty of any act in connection with
the introduction of counterfeit or forge of coin or obligations
or securities. (So one may not be the one responsible for the
forging and counterfeiting of Philippine obligations and
securities, but he is guilty of acts in connection with attempting
to bring in counterfeits and forge to the country. That is still
cognizable by Philippine court even if the act is committed
outside of the territory)
-While being an officer or employee should commit any
act in exercise of his/her function. (So if Mayor Mike Rama
goes to US and with one reason or another pundles a breast of a
beautiful sexy US citizen of a country. He cannot be prosecuted
here in the Philippines because it was not done in the
performance of his functions. If however he did commit a crime
while exercising his official function, that would be prosecutable
even if committed outside our territory if he comes back.
Take NOTE: Not all public officials or employees can be
prosecuted under this provision only those who are incumbent
and the crime was committed in the exercise of his official
function. Hence if the crime is committed in their personal
capacity this provision does not apply)
-Those who shall commit any of the crimes defined
under Book 2 Title 1 of the Revised Penal Code or the So-
called crimes against National Security or the Laws of
Nation. (Treason, Proposal and Conspiracy to commit
treason, Espionage, Correspondence with hostile country,
violation of neutrality, flight to an enemy country, Piracy)
Take Note: that the Principle of Territoriality contemplates
of two theories:
-SUBJECTIVE TERRITORIALITY
PRINCIPLE
-OBJECTIVE TERRITORIALITY
PPRINCIPLE
The ideal scenario which calls for the Territoriality
application in Criminal Law is when the crime; all the acts of
execution are committed within the territory of the Philippines
then it is a No-Brainer that the crime is cognizable by the
Philippine Court.
But a little complication may arise if “The acts of
executions took place in some other countries and some other
acts took place in the Philippines. Like the crime started abroad
and completed in the Phlippines or Vice-versa.”
How do you now apply the Principle of Territoriality?
So we have, SUBJECTIVE and OBJECTIVE
SUBJECTIVE TERRITORIALITY PRINCIPLE?
This espouses the Principle that crimes started in the
Philippine even if completed abroad will still be under the
criminal jurisdiction of our courts. This was the Principle
applied in the case of
(People Vs. Tulin)
In people Vs. Tulin, a Philippine Vessel was ceased by the
pirates of the waters of Mindoro within the territorial sea of the
Philippines. From Mindoro, the Pirates brought the vessel to
Singapore and while in Singapore the pirates with the assistance
of other offenders in Singapore transferred the Petroleum
product from the Phil Vessel to another Vessel. Subsequently the
pirates and other one involve in the crime where apprehended in
the Philippines and prosecuted and after trial got convicted. One
of those convicted was a foreigner. A singaporean citizen who
was convicted as accomplish. He was convicted but disatisfied
of the judgment he appealed to the Supreme Court and in trying
to get himself off the hook the Singaporean, He argued that the
judgment of the Philippine Trial Court againts him is VOID for
LACK OF JURISDICTION because his participation occured
only in Singapore which is beyond the Territorial Jurisdiction of
the Philippines invoking obviously the Principle of Territoriality.
How did the Supreme Court HELD:
One, while the participation of the accused (alien) occurred
only in the waters of Territory of Singapore. It cannot be denied
that the crime started in the Philippines and completed in
Singapore. The participation of that alien though admittedly
occurred only in Singapore is PART and PARCEL of the entire
Criminal Process. So he’s participation in Singapore cannot be
separated from the entire criminal act which started in the
Philippines. Therefore, pursuant to the subjective territoriality
principle of criminal law. Our court exercise jurisdiction over
him even if act was committed beyond the Territorial
jurisdiction of this court.
Other than that, there are actually two justifications cited
by the SC in upholding the jurisdiction to try the alien offender.
The accuse was prosecuted and accused for the charge of
the crime of PIRACY and it is one of the crime defined as part
the crime committed against National Security and the Laws of
Nation which is an exception to the Principle of Territoriality. So
even if his involvement took place in Singapore under this
principle he can still be tried and convicted by Philippine Court.
OBJECTIVE TERRITORIALITY PRINCIPLE
The Reverse. Under this theory crimes that started abroad
but continued and completed in the Philippines may be tried by
out courts. So it doesn’t matter where the crime started so long
as it continued and completed in the Philippines. Philippine
court exercise criminal jurisdiction over the offender and over
the crime. This was precisely the principle applied in the case of
(U.S vs. BULL)
This involve the prosecution for violation of a Special Law
that mandates human treatment of animals. This is a law that
requires individuals who transport carabaos and similar animals
to provide proper safety measures to ensure the safety of the
animals while in transit. The accused here Mr. Bull was the
Captain of the Vessel which transported the animals from
Formosa. But when they arrived Philippine waters, they got
arrested and prosecuted before Philippine court. One of the
arguments raised by the accused is the matter of Jurisdiction. He
said that, the alleged crime was committed when the animals
were made to board the vessel while still in Formosa (Taiwan).
So jurisdiction is lodged in the Taiwan Court and not in the
Philippine Court.
HELD: But the Supreme Court said, while it may be true
that the crime started in Fromosa. It cannot be denied the the
crime was a CONTINUING OFFENSE when the crime was in
Formosa and enter the Philippine territory. So even if it started
abroad it is still deemed committed within Philippine territory
and pursuant to the Objective Principle territory, our court can
therefore exercise jurisdiction over him and over the crime.
So it doesn’t matter where it started and where it ended. So
long as Philippine jurisdiction is a part of the crime our court
exercise Territorial jurisdiction.
QUESTION: What if the Foreign Court would like to
INTERVENE and take over the case?
ANSWER: We don’t care about Foreign Courts. If they would
like to prosecute the same offender in their own country that’s
not anymore our business. That’s not our concern. In sofar as we
are concern, the only question that we need to ask is Whether we
have jurisdiction.
As to wether they can Intervene, the answer is NO.
Because we are superior over our own territory. The general
rule is the Laws generate their authority from the State. Evry
nation’s Law or Laws is effective only within its Territory. Our
Laws do not take effect in another country in the same manner
that US laws, Russian Laws do not take effect in this country so
they could not intervene legally in any judicial proceeding that
we have here.
But ofcourse there are ways to Intervene. One of it is
POLITICAL INTERVENTION, they may do it through a
diplomatic process like what we did with respect to Mary Jane
Veloso that was convicted in Indonesia. We never intervened in
their Judicial Process there other than providing here maybe
with Legal Assistance but we never intervened in their process
until she got convicted. Presidnet Aquino not Interceded
requesting the President of Indonesia to spare the life of Ms.
Veloso. That’s the most that we could do in the same manner
that that’s the most the other country can do in so far as Judicial
process is concerned. So each county is superior in each own
border. So our concern is NOT whether they can intervene or
whether they can prosecute. Our only concern is whether in our
own laws we can or we cannot prosecute.
Article 15. Laws relating to family rights and duties or to
status, conditions, or legal capacity of persons shall be
binding upon citizens of the Philippines although living
abroad.
NATIONALITY THEORY - Article 15 enunciates the
nationality theory. It provides that insofar as the person’s family
rights and duties, his status, his conditions, his legal capacity; he
should be govern by his or her own National Law. Meaning the
Law of the country wherein he is a national. That’s the personal
law of the individual insofar as Philippine jurisdiction is
concern.
DOMICILIARY THEORY - other countries adheres to
another Principle. Others agree to domiciliary theory. For them
personal Laws are determined by the individuals domicile. So
for example in the U.S, the issue of status, capacity, conditions
pursuant to their domiciliary theory. These are issues that have
to be determined by the laws of the country to which their
citizens are domiciled. So pursuant to this rule even if the
individual is a US citizen but he is domiciled in Russsia, any
issue so as to his family rights and duties, status, condition and
legal capacity should be determined by the Laws of Russia. That
assuming US adheres to domiciliary theory. But that’s not our
concern. Our concern is what the theory we adhere to in our
country. As what I said, our country adhere to the theory of
Nationality theory - so if the issue is about status, condition,
family right and duties it should be determined by Philippine
Law insofar as Filipinos are concerned. So if you are a Filipino
you are married in the Philippines you go to Hongkong. You’re
status there is married in accordance with Philippine Law. If you
are a Filipino married here, you go to Hongkong, you cannot
then obtain a divorce in Hongkong against your Filipina wife
and even if you applied for divorce an such divorce was granted
in Hongkong. That divorce decree obtain by Filipino abroad
may not be validly recognized here in the Philippines because
that is a matter of status and status insofar as Filipinos are
concerned is always governed by the Philippine Law and in the
Philippines divorce is not recognized.
Take Note: Article 15 expressly mentioned FILIPINOS
ONLY. “shall be binding upon citizens of the Philippine” It
does not say Foreigners, so obviously the literal language or
Article 15 limits only to Filipinos. Insofar as Filipinos, we are
always governed by our Philippine Law wherever we may go on
matters concerning Family rights and duties, status, condition
and legal capacity.
So the question is does Article 15 extends to foreigners? So
that foreigners also insofar as our jurisdiction is concerned
issues concerning the family rights duties, status, conditions and
legal capacity should also be determine by their respective
national laws?
There is no Law in the Philippine sthat expressly provides
that Foreigner should also be governed by the nationality theory.
Obviously, we Filipinos, we adhere to the nationality theory by
virtue of Article 15. But Article 15 expressly and literally limits
only to Filipino citizens. So the question is does that apply to
foreigners? So that if a Foreigner comes here. Two Foreigners
same sex marriage.
Example: Ms. Gonzaga is married in Brazil to another woman.
They are married there legally because Brazil recognizes same
sex marriage. They are all Brazillian citizen and they come here.
Are we also bound by Law to recognize them as Lawful spouse
when we do not recognize same sex marriage?
If Nationality theory covers foreigners, then logically they
are legal spouse because by virtue of their own country in Brazil
they are legally married to each other. If we are to apply the
nationality theory in Article 15.
If two Filipinos, lets say Ms. Gonzaga a Filipina and she
has a Filipina girlfriend and they go to Brazil and obtained same
sex marriage there and valid in Brazil. They come back here.
Are we to recognize them as Lawful Spouse? DEFINITELY
NOT. Because article 15 syas, they are governed by Philippine
Lawin matters of status, conditions, legal capacity and family
rights and duties. And beung Filipinos, Philippine Law apply
and under Philippine Law - we do ot recognize same sex
marriage.
Again, does Article 15 apply to foreigners as well? The
answer is YES. This was already settled in the old case of;
 Recto vs Harden
Facts: Claro Recto was engaged by Mrs. Harden as her lawyer
in connection with her intention to file a divorce against his
husband in the US. The purpose was to protect the interest of
Mrs. Harden in the conjugal partnership. In the contract, Mrs.
Harden undertook Atty. Recto certain stipulated amount of
Attorney’s fees. But despite Atty. Recto’s services Mrs. Harden
refused to pay and so Atty. Recto was constrained to go into
court in order to collect the attorney’s fees. One of the defenses
interposed by the Hardens was that the contract which stipulates
the attorney’s fees is void because it was entered into in
connection with the divorce. And so since the contract has
something to do with the divorce and since divorce is not valid
in the Philippines,it follows that the contract is void and cannot
be enforced.
Issue: WON the contract that stipulated the attorney’s fees is
valid?
Held: (1) Contrary to the allegations of the Hardens, the
contract entered into by Atty. Recto and Mrs. Hardens is not for
the purposes of divorce. The contract was entered into to protect
the rights Mrs. Harden in their conjugal properties while the
divorce proceedings is pending in the US.
(2) [important part of the decision in so far as we are concerned]
A part from the fact that the contract was not really for divorce,
it is established that Mrs. Esperanza and her husband are both
America citizens. Their personal law is governed by the law of
the (their) state. Under the US law, divorce is valid, therefore,
assuming that the contract enter into was that of divorce, it is
still valid upon them because of their citizenship. They are
govern by American laws which recognizes divorce.
TAKE NOTE: In this case, SC made a reference to Art. 15 of the
Civil Code. In holding that in so far as the matter of divorce is
concern, Mrs. Harden and her husband is govern by their
national law. It is thus obvious, that in our jurisdiction, the
principle of nationality does not only govern Filipinos but also
foreigners. And so when a foreigner comes here and there is
issue as to their status, capacity, condition, family rights or
duties, this should be resolved not by Philippine laws even if
the case is filed in our courts but on their respective national
laws.
Another example (1):
If a Spaniard comes here enters into a contract with a
Filipino and there is issue whether a Spaniard is capacitated to
enter into a contract, she being 15 years old and in Spain 15
years old are capacitated, then her capacity to enter into a
contract is govern by her national law. Even if under our law,
she is still a minor. So the Filipino cannot argue that the
contract cannot be inforced because it is not valid due to the
minority of the other party, under the Philippine law. So long as
he is of age according to her own law, that should be respected
in so far as our courts are concerned.
NATIONALITY THEORY: Governs the ‘Legal Capacity’ of a
person in ordinary contracts.
Example (2)
In the same manner that when a Filipino enters into a
contract abroad, in Russia wherein 15 is the age of majority.
And here is a Filipino enters into a contract in Russia, she is 16
years old. The contract cannot be recognized as valid in the
Philippines. Although it may considered valid in Russia. The
Filipino is governed by the Philippine law on his legal capacity
and being 16 years old, he is minor even if he is of age under
Russian laws.
Interesting Issues in recent years;
(1) validity of same sex marriage
Ms. A, entered into a same-sex marriage comes to the
Philippines. She applied an insurance policy that in case of
death, her lawful spouse is the benificiary - $1M insurance
policy. In case she dies, there might be issues as to the capacity
of her spouse to get the benefits because it says there ‘lawful’
spouse. And to consider a lawful spouse, our courts will have to
consider the validity of same sex marriage. How do we solve
this?
(2) Change of gender pursuant to some surgical or other
scientific operations.
- in some countries it is allowed
- in the Phil, sex is determined by birth and can never be
changed regardless of physical and surgical transformation.
Case: A person born male but he grow up he realized that
he is a female. He went to court and ask his gender and name be
changed from male to female. The SC disagreed saying - gender
is determined by birth. By examination of the physical
characteristics [particularly the penis and the xxxxxx] Once it is
determined, that’s it! Immutability of sex. So, surgical operation
does not work in the Philippines but in other countries it is a fact
of life.
For us who study law, how are we suppose to solve issues
regarding same-sex marriage and sex change?
If Filipinos are involved, it is governed by Philippine laws,
hence, resort to Art. 15. So if a Filipino undergoes a surgery in
Korea can never be recognized in the Philippines. And this is
with regards with the present laws. There is no law in the
Philippines that authorizes the change of gender by that
procedure.
But what happens if a foreigner comes here, born female
changed into male recognized as valid in their country. What
happens if he comes here and enters into a contract, are we to
say that he is not a ‘he’ because he is a ‘she’?
These are very interesting questions because this is a world
where multi-racial transactions are emerging, how are we
suppose to treat them?
Two Schools of thought regarding the issues above;
(1) Consistent with Art. 15, this issue should be solved in favor
of Nationality Theory.
- So same sex marriage, so long as they are both foreigners
and it is recognized in their country, we are not to judge them.
That is a personal affair between them and their country. We
cannot judge them on the basis of our laws.
- There are so many cases involving this issue. This is the
reason that divorce is recognized in the Philippines in so far as
foreigners are concerned. It is against our laws and public policy
but the SC recognized the validity if divorce in so far as
foreigners are concerned.
Van Dorn vs. Romillo
Facts: A Filipina and an American contracted marriage. After
some time, they got divorced in the US but somehow, after the
divorce was obtained, the husband came back to the Philippines
and discovered her wife’s flourishing business he filed a case in
court asking for an order allowing him to take management of
the business. Claiming that the business is conjugal and as a
husband, Upton (the American) is entitled to the management of
that said business. In trying to convince the court to rule in his
favor, he argued that while a divorce decree was already
obtained in the US, that decree in so far as the Philippine courts
are concerned is not valid. Because it is against public policy of
the Philippines, hence, in the eyes of the this country he is still
the husband of Alice (the Filipina). Therefore, being a husband,
h should be allowed to manage a conjugal property.
Held: While it is true that divorce is not allowed in the
Philippines the prohibition against Filipino citizens. Since Upton
is an America, he is governed by his national law which is US
law. In US divorce is valid. And so the divorce decree is valid in
so far as Mr. Upton is concerned. Take note that the SC refuses
to decide as to the validity of the divorce in so far as the Filipina
is concerned. It only made the ruling that he (Upton) is bound
by the divorce decree obtained in the US. Hence, the Philippine
court recognizes divorce in so far as the foreigner is concerned
and the justification is the nationality theory.
Imelda Pilapil vs. Judge Ibay-Somera
Facts: A marriage took place between a Filipina and a German
national. After some time, the German obtained a divorce in
Germany. But after the divorce decree was final, the German
filed a criminal case of adultery against the Filipina wife when
he realized that even during their marriage, the wife cheated on
him. He argued that the divorce decree has no legal effect in the
Philippines because divorce is against public policy.
Issue: WON the German husband have the legal capacity to
initiate the complaint because in Philippine laws only an
offended spouse can initiate a case for adultery or concubinage.
Held: By virtue of the nationality theory, the German husband is
governed by his own national law. Under German laws divorce
is valid. And so, in so far as the German husband is concerned,
the divorce is valid consistent with nationality theory.
CONCLUSION: Consistent with Nationality Principle which
regards to same sex marriage and sex change, it is valid for
anyway they are foreigners.
If we can recognize divorce as valid in so far as the foreigner is
concerned, why can’t we recognize same sex marriage or sex
change?
THESE ARE ALL ISSUESABOUT POLICIES personal to the
individual concern.
Questions;
A. What if (in a reverse situation) the Filipina filed a case
of concubinage? (Pilapil vs. Ibay-Somera)
Answer: The divorce decree is only valid so far as the
foreigner is concerned and not the Filipina. It is unfair. If it were
Imelda filed the complaint, she will have the legal capacity.
B. What happens if the persons has two-gender?
In the case of Republic vs.Cagandahan
A child born with both organs. The rule that gender is
determined by birth cannot be applied since there is two gender.
This is a matter personal to the individual concern. He should
be allowed to make a choice when he is already capable or of
age. And so Jennifer chose to be a male.
As oppose to Republic vs. Silverio
The child was born with one gender, cannot be changed because
it is immutable.
(2) Secondary school of thought
The 3rd paragraph of article 17 of CC which provides:
“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 aws or judgments promulgated, or
by determinations or conventions agreed upon in a foreign
country.”
This paragraph 3 of article 17 of CC Initiate the principle
that in our country our laws is superior on matters of laws
concerning public policy, public order, morals and customs our
policy, our morality is suppose to be superior than foreign laws,
foreign judgment and determination or foreign conventions. In
other words, when there is a conflict between our policy and
policy of other country, our policy is suppose to be the one to
prevail. This the ruling of the case of Bank of America v.
American Realty Corp.
Bank of America v. American Realty Corp
Facts:
 This case involve a international bank which is doing
business in the Philippines. It extended loans in 3
corporations base in Panama but when the borrowers failed
to pay the loan they entered into structuring agreements
and the third party mortgagor came into the picture the
American realty corporation (not one of the borrowers)
agreed to constitute a real estate mortgage over which
parcels of land in the located in the Philippines to
guarantee the payments of the loans granted to the 3
borrowers. But then again the borrowers failed to pay the
loan so the American Bank Instituted a suit against the
borrowers two cases in Hongkong and two cases in
England against the borrowers collection of the loan.
 But during the pendency of this four cases, the same bank
initiated a foreclosure proceedings over the real estate
mortgage constituted by American realty corp. The the
property was foreclose.
 When American bank realty corp learn the foreclosure it
file a complaint against the damages against the bank.
According to American realty corp contentions, it was
wrong for the bank to foreclose the real estate mortgage
because it already instituted collections suits against the
borrowers in foreign countries in Hongkong and England
which invoking a policy in our country prohibiting the
splitting single cause of action.
 We have a rule in the philippines when the rights is
violated that gives cause of action to the aggrieved party
but the remedies available
1. Simple collection suit.
2. Foreclose the mortgage
constitute to guarantee the payments
of the loans.
 Either remedies is intended to collect the obligations but
under our policy prohibiting the splitting single cause of
action the creditor is not suppose to avail this two
remedies. He can only choose either of the two remedies
mentioned. If the borrowers chooses the collection he is
deemed to waived the foreclosure. If the creditor or lender
 chooses the foreclosure he is deemed to abandoned the
collection (this is the policy of philippine laws).
 On the other hand the bank argue on the basis that,
base on the contracts between the parties the loan
agreements between the bank and the borrowers the law
applicable is the law on England ( which in the law of
England it is not prohibitive to a creditor pursue both
remedies at the same time) thus, the bank says that the
philippine law prohibiting the splitting single cause of
action does not apply in this case but rather the England
law.
 Conflict of law issue
Issue: W/N philippine law will apply or english law on that
part?
Held:
The SC ruled that, it maybe true that the law applicable is
the laws of England on the basis as it was stipulated in the
contracts. Which under the said contract it should be the
english law will govern.But then again the SC argue that even
though english law will apply in so far as the contract stipulated
but this will not apply in this case because this is against the
policy of the Philippines . The policy of the Philippines is
prohibiting the splitting of single cause of action.
In short this ruling is pertain to:
1. When there is conflict between a foreign law and philippine
law on matters of policy, morality, public order and etc. Our law
should not be render nugatory rather our law shall prevail over
other laws or other foreign judgment/policy.
The same principle is upheld in the case of;
Cadalin v. POEA.
Common law conflict
Fact.
 Cadalin involves multiple labor complaints file by
Filipino contract workers who landed jobs in some country of
middle east and one of this country is Bahrain.which there
benefits are not given to them. So when laborers return to the
Philippines, they filed a multiple suits against the employers
and the agency.
Issue: whether or not it is the Bahrain law on prescription of
action based on Amiri decree or the Philippine law on
prescription that shall be the governing law.
Held.
SC Ruled that, it maybe true that the contract of the parties the
law applicable is the laws of Bahrain where it performed. The
one year Prescriptive period provided in Amiri decree cannot
applied in this case because it is contrary to our protection of
labor. The SC ruled that it must be the the 3 year prescriptive
period shall applied in this case as provided under the labor
code. If its about public policy, our laws, policy should prevail.
Note: Going back to case of the validity of same sex
marriage or sex change cannot be valid in our country precisely
because it is against our public policy and morality . Just
because same sex marriage is validly recognize in other country
it doest mean it recognize in the Philippines simple because its
against public policy , and morality and therefore hold up in
courts in Philippines.
But this case is never been settle. Practical advice by Atty T.
is..... It depends on which sides you are own. Take the positions
where you are ask to do.
Additional case to have a deeper understanding of the
nationality theory is under the case of Paula Llorente v. Alicia
Llorente Gr. No. 124371 November 23, 2000
The undisputed facts:
 A filipino is listed as member of philippine navy, prior to
the outbreak of the war, he is ask to take station in the
United States and left his wife Paula which latter he
obtained American citizenship. After the war, he is allowed
to take vacation to his family in the Philippines.
Unfortunately , he was devastated to learn that his wife
Paula(the bitch) is pregnant and was living together with
his own brother.
 Then lorenzo returned to the US and bound to never
reconcile to paula. Then again he returned to the
Philippines and found new love to Alicia and they get
married. During the existence of the marriage of his second
wife, Lorenzo executed the will bequeath all his estate to
his second wife but before the proceedings could be
terminated, Lorenzo died. :(
 It was after the death of lorenzo, Paula resurfaced and
insist that the properties of Lorenzo should be adjudicated
to her as she being the lawful wife. Paula argue, that the
divorce decree obtained by Lorenzo abroad cannot be
recognize as valid in the Philippines.
Ruling of SC:
The Sc ruled with the establish evidence that at the time
when Lorenzo obtained the divorce decree against Paula,
Lorenzo was already a naturalized American citizen. Being
governed by his national law (laws in the United States) which
divorce is valid, then the divorce decree obtained by Lorenzo is
valid. Therefore, his marriage between Alicia the second is also
valid.
Be noted that the issue of dual citizenship can only be
relevant only by the view point of the third party/third state. It
is enough that individual is Filipino , if it establish then there is
no question about that.. I.e child born Filipina mother, American
father born in the US. In the Philippines`we adhered by blood
but in the US they adhered jus soli. It is not a question whether
he is a Filipino or American in our country however dual
citizen is relevant for example when for he goes to the country
of china the third state question his citizenship called effective
national.