Lecture Notes on Constituional Law

8/7/2019 Lecture Notes on Constituional Law

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Indirect sources: Natural moral law rule of human conduct

implanted by God in our nature and in our

conscience, urging us to do right and avoid evil. Works of writers works of legal scholars on

Conflict of Laws wherein their writings haveinfluenced judicial decisions on the subject.

Some of the famous writers are: H.G. Goodrich;R.C. Minor; Graveson; E. Rabel; J.H. Beale; etc.


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D

irect sources: Constitution the fundamental law to which all

laws must conform and all authorities, including

the highest officials of the land, must bow. Itcontains some conflicts rules when itenumerates who are Filipino citizens.

Codification Civil Code, Code of Commerce,

and Family Code. Special Laws Insurance Act, Patent Law,

Foreign Investment Act, etc.,


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Judicial Decisions Art. 8 of the Civil Code, judicialdecisions applying or interpreting the laws or theConstitution shall form part of the legal system of the

Philippines. Treaties and Conventions Warsaw Convention of 1929

on airline liability; Extradition treaties withHK;China;Indonesia;Spain;SouthKorea;Australia;Canada; Switzerland;Micronesia and

United States. International customs lex situs, lex loci celebrationis,

lex nationalii or lex domicilii, principle of territoriality, andprinciple of generality.


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Principle of Territoriality Felony is punishable only in the territorial

jurisdiction where it is committed.

Exception is the well established rule ofinternational law that diplomaticrepresentatives, such as ambassadors or

public ministers and their official r


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Principle of Generality States that the criminal laws of a country bind

both the citizens and the aliens who are in the

said country or territory. This principle isenunciated in Art. 14 of our Civil Code: Penallaws and those of public security and safetyshall be obligatory upon all who live or sojourn in

Philippine territory, subject to the principle ofpublic international law and to treatystipulations.


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Ways in Disposing Conflicts

Cases Dismiss the case, either because of lack of

jurisdiction or refusal to assume jurisdiction over

the case; Assume jurisdiction over the case and apply the

internal law of the forum (lex fori); or

Assume jurisdiction over the case and take intoaccount or apply the law of some other State orStates.


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Jurisdiction under International

Law The right of a State to exercise authority

over persons and things within its

boundaries, subject to certain exceptions.

Thus, a State does not assume jurisdictionover traveling sovereigns, ambassadors,

and diplomatic representatives of otherStates.


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Judicial Jurisdiction The legal authority of a State to exercise

authority, through its courts or agencies, to

hear and adjudicate cases.

It is the power of a court or agency to hearand determine an issue upon which its

decision is sought.


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Factors required in order for State

to hear and decide cases The presence, submission, or appearance of the

parties or one of them;

The doing of certain acts within the State; The fact that the property involved in the

litigation is in the forum;

The fact that the parties are either citizens or

residents of the State.In the absence of such minimum contacts, a

judgment rendered by the courts of one Statemay be refused recognition by other States.


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Types of Judicial Jurisdiction Jurisdiction over the subject matter;

Jurisdiction over the person;

Jurisdiction over the res;

Proceeding in rem e.g., land registration, orannulment of marriage.

Quasi in rem directed against the interests ofparticular persons in a thing such as action forforeclosure of mortgage.


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Refusal to Assume Jurisdiction

due toForum non conveniens

The evidence and the witnesses may not bereadily available;

The court dockets of the forum may already beclogged which may hamper the speedyadministration of justice;

The evils forum-shopping

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

Other courts are open and the case may bebetter tried in said courts.


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Assumption of JurisdictionApply the internal or domestic law (lex

fori);

Apply the proper foreign law (lex causae).


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Application of the Internal orDomestic Law

When the law of the forum expressly soprovides in its conflicts rules;

When the proper foreign law has not beenproperly pleaded and proved;

When the case involves any of the

exception to the application of the properforeign law.


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When the law expressly providesfor the application of Internal Law

Art. 80 FC In the absence of a contrarystipulation in a marriage settlement, the property

relations of the spouses shall be governed byPhilippines laws, regardless of the place of thecelebration of the marriage and their residence.

Art. 1039 CC Capacity to succeed is governed

by the law of the nation of the decedent.


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When the proper foreign law has notbeen properly pleaded and proved

No judicial notice of any foreign law. If notproperly pleaded and proved, the presumption is

that foreign law is the same as the local orinternal law.

Proof of written foreign law:a. official publication thereof; or

b. by a copy attested by the officer having the legal custody of the

record, or by his deputy, and accompanied with a certificate thatsuch officer has custody and the law is in force at that time.

Proof of Unwritten foreign law:a. Oral testimony of expert witnesses; or

b. By printed and published books of reports of decision of the

country involved, if proved to be commonly admitted in such courts.


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Exception to the application of theproper Foreign Law

When the enforcement of the foreign law wouldrun counter to an important public policy of the

forum; e.g. Two Filipinos made joint wills whilethey were in Germany. In said country joint willsare valid. May the joint wills be successfullyprobated in the Philippines?

No, because they are contrary to Philippinepublic policy. Art 818 CC. Two or more personscannot make a will jointly, or in the sameinstrument, either for their reciprocal benefit orfor the benefit of a third person.


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Where the application of foreign law wouldinfringe good morality as understood in the

forum; e.g. prostitution; agreements to rewardcrime; transactions that ultimately lead to humanslavery or involuntary servitude.

All these even if valid in the place where agreed

upon will not be countenanced in the Philippines


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When the foreign law is penal in nature;(principle of territoriality)

When the foreign law is procedural innature;(no vested rights in the rules ofprocedure)

e.g. An American, used to trials by jury in the

United States, cannot insist on a jury trial in thePhilippines in case he is accused of a crime hehas committed in our country.


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When the question involves real or personal property situated in theforum (lex situs);

When the foreign law is fiscal (revenue-producing; e.g. collection of

taxes) or administrative in nature; When the application of foreign law would involve injustice to the

citizens or residents of the forum; e.g. In State Y, a person 15 yearsof age can validly contract. A Filipino boy, 15 years old, contractswith another in said state.

If we assume the contract to be binding on the boy, we shall be

violence to our sense of justice.Upon the other hand, if a just liability is incurred, we ought not tohesitate on its enforcement. Prevailing circumstances shouldnaturally determine the justness of the claim.


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Where the application of foreign law wouldendanger the vital interests of the State.

The national interests of the forum should not bejeopardized; thus, any foreign law, judgment, orcontract that may result in the undermining ofour government processes will obviously berefused enforcement in our forum;

e.g. A contract entered into between a Filipinoemployee and an alien government by virtue ofwhich the former is supposed to furnish the latterwith secret or classified military maps involving

the defense of the Philippines.


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Theories on why the Foreign Lawmay in some cases be given effect

Theory on Comity It makes for harmonyin the relations between states.

Application of the proper foreign law isneither obligatory nor just a matter ofcourtesy; it is more of convenience and

the desire to give protection to our owncitizens and residents. (Hilton v. Guyot,159 U.S.113)


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Comity based on reciprocity if local law isrecognized in a foreign country, the forum

should also recognize the laws of that foreigncountry.

Comity based on the persuasiveness of aforeign judgment whether or not foreign

country recognizes our laws is of no moment;what is important is that the foreign judgment ismeritorious and rendered with jurisdiction.


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Theory of Vested Rights

It is not the foreign law that is beingenforced but simply the vested rights that

have been vested under such foreign lawor judgment.

In King v. Sarria, 69 N.Y. 24, the court

held that a right having been created bythe appropriate law, the recognition of itsexistence follows everywhere.


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Theory of Local Law

The adherents of this school of thought believe that weapply foreign law not because it is foreign, but becauseour own rules by applying similar rules require us to do

so: hence, it is as if the foreign law has become part andparcel of our own local law.

e.g. A Chinese national dies, leaving properties locatedin the Philippines, the succession to his estate shall begoverned by the law of his nationality,Chinese law. (2nd

par., Art. 16, Civil Code).Under the Local Law Theory, we do not apply Chineselaw itself. What we do apply is our own law, the 2nd par.Art. 16 Civil Code which, for purposes of litigation,incorporates unto itself the Chinese law on succession.


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Theory of Harmony of Laws

To apply the proper foreign law so that,respective of the forum, the solution will be thesame, or approximately the same.

e.g. An ordinary contract is entered into inLondon, the extrinsic validity of the contractshould be governed by British Law. Even if thequestion is raised elsewhere, say in Philippines,the extrinsic validity should still be tested byBritish Law, the lexloci celebrationes. (1st par.,

Art.17, Civil Code) And so, as long as thecontract is valid under British Law, it should be

valid everywhere.


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The Right Theory

The truth may be found in the combination of thetheories:

a. that sometimes we have to apply the proper foreign

law because courtesy, convenience, and internationalduty so demand;

b. that there are vested rights we cannot conceivablyignore;

c. that all too often the foreign law has apparentlybecome part and parcel of our law;

d. that identical situations should be resolved by identicalremedies, irrespective of the forum; and finally

f. that to do otherwise may ultimately result in the

negation of justice.

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Lecture Notes on Constituional Law