CHAPTER 11: EFFECT & APPLICATION OF LAWS

PRINCIPLES AND CASES IN PRIVATE INTERNATIONAL LAW:

A PROCEDURAL APPROACH

 

-oOo-

 

MARK ANGELO S. DELA PEÑA


To cite this online book, please use the following:


Dela Peña. 2023. "Principles and Cases in Private International Law: A Procedural Approach." Published by Project Jurisprudence - Philippines. Published: September 17, 2023. Link: [Insert link] Last accessed: [Insert date of access].


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CHAPTER 11:

EFFECT & APPLICATION OF LAWS

 

Philippine persons law governs the effect and application of laws, capacity to act, legal capacity and personality of a person. It also covers the laws on funerals, citizenship, domicile, the use of surnames, absences and civil registry.

 

WHETHER OR NOT A LAW

IS EFFECTIVE OR VALID

 

“Article 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication.”[1]

 

Insofar as the Philippines is concerned, laws take effect only after publication. This is in compliance with the principle of reasonable and sufficient notice.

 

The forum court may refuse to apply a law that is not effective. However, it must be pointed out that the validity of a law is different from its effectivity. A valid law may still be declared ineffective if the publication requirement is not met but a valid law is not invalidated by such failure alone. The validity or invalidity of a statute is based on its compliance with the Constitution.[2]

 

If the opposing party in a conflicts case raises the defense that the foreign law is not valid or not effective, the forum court may be cornered into passing upon the issues of validity or effectivity. At this point, it must be pointed out that, under the act of state doctrine, Philippine courts cannot pass judgment upon the official acts, whether executive, legislative or judicial, of another state. According to the Supreme Court, the act of state doctrine is one of the methods by which States prevent their national courts from deciding disputes which relate to the internal affairs of another State, the other two being immunity and non-justiciability. It is an avoidance technique that is directly related to a State’s obligation to respect the independence and equality of other States by not requiring them to submit to adjudication in a national court or to settlement of their disputes without their consent. It requires the forum court to exercise restraint in the adjudication of disputes relating to legislative or other governmental acts which a foreign State has performed within its territorial limits.[3]

 

Every sovereign state is bound to respect the independence of every other state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.[4]

 

Hence, between validity and effectivity, it appears that only the issue on validity is placed beyond the powers of the forum in relation to the official acts of another state. Effectivity of law is a matter of municipal law; in fact, there exists a view that the rules surrounding the effectivity of law are properly categorized as procedural law or adjective law, rather than as substantive law. There is a contrary view, however, stating that questions on the effectivity of a foreign law would still be covered by the act of state doctrine because they pertain to the purely internal nature of legislative processes of a foreign state.

 

Substantive law is that part of the law which creates, defines, and regulates rights as opposed to adjective or procedural law which prescribes the method of enforcing rights. What constitutes practice and procedure in the law is the mode or proceeding by which a legal right is enforced, that which regulates the formal steps in an action or judicial proceedings; the course of procedure in courts; the form, manner and order in which proceedings have been, and are accustomed to be had; the form, manner and order of carrying on and conducting suits or prosecutions in the courts through their various sages according to the principles of law and the rules laid down by the respective courts.[5] 

 

The view that the rules surrounding the effectivity of law belong to procedural law emanates from an analysis that substantive law creates, defines and regulates rights. Here, the term “regulates” means to restrict, to widen, to balance, or to adjust. From this, whether or not a law is effective (such as, in the case of the Philippines, whether or not there was publication of the concerned law), cannot fall under the concept of substantive law because this issue does not go into the creation, definition or regulation of a right. While it is true that the statute whose publication and/or effectivity is in question may create, define or regulate rights, its effectivity or compliance with the rules on effectivity is a separate issue.

 

Also, considering that procedural law relattes to the method of enforcing rights, the effectivity of laws squarely fits in this category because whether or not a law is effective is a question of whether a right arising from such law can be enforced. In fact, a defendant who raises the issue of law of publication of a Philippine law, from which the plaintiff bases his/her cause of action, is basically questioning and attempting to defeat the enforcement by the plaintiff of his/her rights in court. While this argument on effectivity of law as a procedural matter is not a settled concern, what is clear is that effectivity of law is definitely not a substantive matter.

 

If effectivity of law is a procedural matter, whether or not a law is effective is a question that pertains to the forum. This is a problem. For example, if a conflicts case is filed with a South Korean court and the relevant South Korean law points to a statute in the Philippines, the defendant may raise the issue that the Philippine statute in question is not effective per Philippine law. Of course, the defendant cannot successfully raise the question of validity of a Philippine statute in a South Korean court because this is proscribed by the act of state doctrine. If the South Korean forum thinks that the question of effectivity of law is a procedural matter, the question is whether the forum law (South Korean law) should determine the effectivity of the statute (Philippine law) in question. Insofar as the South Korean court is concerned, of course, the starting point is the forum law – South Korean law which may or may not provide for rules on the effectivity of law in the same way and clarity that Philippine law does. However, it would also be improper for the South Korean court to determine the effectivity of a Philippine statute on the basis of a South Korean law, if any exists. Naturally, it would rely on evidence to be properly proved by the party claiming the non-effectivity of the law.

 

The reverse is easier to discuss. If a conflicts case is filed before a Philippine court and the relevant Philippine law points to the application of a South Korean statute, the defendant may be inclined to raise the issue of non-effectivity of the South Korean statute in question. If the Philippine court thinks that the matter of effectivity of laws is a procedural matter, the question is whether the forum law (Philippine law) should determine the effectivity of the statute (South Korean law) in question. Insofar as Philippine law is concerned, the starting point is Philippine law which provides that laws shall take effect only after publication. However, it would appear improper for a Philippine court to decide the question of the effectivity of a South Korean law on the basis Philippine law, especially if South Korean law provides for a different manner of determining the effectivity of its own country’s laws such as but not limited to the following examples: publication in a website, public reading of the law during a noontime radio show, etc.

 

It is humbly submitted that it is more prudent for the Philippine court to rely on the evidence on the claim of non-effectivity because, while it is true that foreign laws are never presumed, once they are properly pleaded and proved, however, the burden of evidence shifts to the other party to rebut the already established matter of fact.[6] Hence, it is the party invoking the non-effectivity of the foreign statute in question who has the duty now to present the applicable foreign law that would show the alleged non-effectivity. Both the foreign statute in question and the part of foreign law relating to the former’s effectivity are questions of fact which are never presumed.

 

IGNORANCE OF LAW

NOT AN EXCUSE

 

“Article 3. Ignorance of the law excuses no one from compliance therewith.”[7]

 

For both Filipinos and foreigners, the defense of ignorance of law cannot be used be successfully interposed. Hence, a Japanese national soujourning in the Philippines who violated a Philippine statute would fail in setting up the defense that, being a foreigner, s/he is unaware of the laws in this jurisdiction.

 

After the publication of a law and during its effectivity, all those who live, reside, and domicile, even those who merely pass by or sojourn, in the territorial limits of the Philippines are deemed bound by said law and cannot correctly interpose that they have not read the law or have not been made aware of it.

 

However, for the presumption of knowledge of law to apply, the law must have been made effective under and in accordance with the law of the forum. In the case of the Philippines, for example, without the required publication as required in the case of Tanada v. Tuvera,[8] there would neither be basis nor justification for the corollary rule of Article 3 of the New Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published) that ignorance of the law excuses no one from compliance therewith.[9]

 

LAW’S RETROACTIVITY

& PROSPECTIVITY

 

“Article 4. Laws shall have no retroactive effect, unless the contrary is provided.”[10]

 

It is said that, while the judge looks backward, the lawmaker looks forward.[11] Article 4 of the New Civil Code of the Philippines provides for the rule against retroactvity or the rule on non-retroactivity. This is expressed in the familiar legal maxim “lex prospicit, non respicit”; the law looks forward, not backward. The rationale against retroactivity is easy to perceive. The retroactive application of a law usually divests rights that have already become vested or impairs the obligations of contract; hence, is, as a rule, unconstitutional.[12] This is the general rule in this jurisdiction.

 

If a non-Filipino, for example resides in the Philippines, the same principle will apply to him/her. Criminal laws, for example, cannot apply to him if the law took effect after the act alleged to be criminal in nature was committed.

 

The effectivity or non-effectivity of a law, including its retroactivity or prospectivity, are principal features thereof and their application, whether toward one or the other, extends to both Filipinos and non-Filiipinos, at least insofar as Philippine laws are concerned.

 

The law of a foreign country may provide for a different rule on retroactivity or prospectivity. Thus, whether an act, occurrence, circumstance, situation or factual matter is covered by a law – whether via its retroactivity or prospectivity application – would be a question of fact if Philippine courts are involved. This is because the non-retroactivity or otherwise of a law is governed by its municipal legal system.

 

For instance, in the Philpipines, this jurisdiction’s own legal system determines whether a statute should be given prospective or retroactive, or both, application to a given set of facts. Hence, whether a foreign law applied prospectively or otherwise is a question of fact, it requiring proof of the foreign law or foreign jurisprudence that determination such application one way or another.

 

MANDATORY ACTS &

PROHIBITED ACTS

 

“Article 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.”[13]

 

It might be obvious to a law student that, if a law – whether prohibitory or mandatory – is violated, the act or acts done in so violation are void and have no legal effect. Hence, if a marriage is celebrated in the absence of a formal or essential requisite provided by law,[14] it is void. However, what the law should always recall is that the provision above-cited itself provides: “except when the law itself authorizes their validity.”

 

Again, hence, if a marriage is celebrated with a defect in any essential requisite, although it can be argued that the act of marriage violates what the law mandates, Philippine marriage law itself provides that a “defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.”[15]

 

Foreign law may also state – and most likely provide – the same rule for acts violative of its mandatory or prohibitory provides. However, the exception or exceptions to this would create complications in a conflicts case. For example, if the plaintiff invokes, pleads and proves a foreign law in relation to an act subject of the case, the defendant may be inclined to also plead and prove a contrary foreign law to show that the act is prohibited by a separate statute or code in the place where the act occurred. In such a situation, the forum is constrained then to settle the matter by interpreting the foreign laws and reconciling whatever different effects they may have over the act in question.

 

WAIVER OF RIGHTS

 

“Article 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.”[16]

 

A waiver of right may be treated differently by the laws of different states. In the Philippines, it is said that a waiver by the accused of the right to be informed of the nature of the accusations against him is void for being violative of constitutional policy while his/her waiver of the reading of the information may be considered valid.

 

The right to be properly served summons, however, may be waived by the voluntary appearance of the defendant in spite of any defect in the service or even if s/he was not served thereof.

 

Every jurisdiction is free to adopt guidelines in the determination of the validity of a waiver of rights. For example, in the United States, although waivers are not automatically invalid, the foreign Supreme Court has held that such provisions are strictly construed against the party seeking to rely upon it. In order to be considered valid under a public policy analysis, the United States forum considers: (a) whether the waiver is overly broad and all-inclusive as to the activity covered and the injury caused; (b) whether the waiver is conspicuous and provides the signer with adequate notification of the waiver's nature and significance; and (c) whether the signer was presented with an opportunity to bargain or negotiate the terms.[17]

 

REPEAL OF LAWS

 

Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary.[18]

 

In this jurisdiction’s legal system, laws are repealed by subsequent ones and only a statute can repeal a statute. As an example, in the case of AFTIL v. Bangko Sentral Monetary Board,[19] the Philippine Supreme Court held that Central Bank Circular No. 905 did not repeal nor in any way amend the Usury Law but simply suspended the latter’s effectivity. The illegality of usury is wholly the creature of legislation. A Central Bank Circular cannot repeal a law. Only a law can repeal another law.

 

In a conflicts case, however, this matter can assume a more complex form. A foreign jurisdiction may allow an official act lower than a statute to repeal a statute. Another situation is when the plaintiff pleads and proves a foreign law but the defendant counters that the foreign law cited has already been repealed by a subsequent official act – such as a legislative act – of that jurisdiction.

 

JURISPRUDENCE AS PART

OF THE LAW OF THE LAND

 

Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.[20]

 

Philippine Supreme Court decisions that rule on the meaning or proper application of a law are deemed part and parcel of the law itself. As mentioned in previous discussions, it may happen that a foreign law pleaded and proved has been interpreted by the high court of the foreign state in a way different from the interpretation of the party invoking the foreign law. The opposing party, then, has the burden to prove that a piece of jurisprudence in that foreign legal system contradicts the said interpretation; note, however, that foreign jurisprudence remains to be a question of fact.

 

COURT’S DUTY TO DECIDE

DESPITE SILENCE OF LAW

 

No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.[21]

 

If the municipal law points to a foreign law, it may happen that the latter has no legal provision on the subject matter of the case. For example, if Philippine law points to the law of a South Africa regarding the treatment of goods lost in transitu, the forum court is justified in applying its own forum law, in line with the view as espoused by von Bar and Westlake.

 

Obscurity of the foreign law cannot and should not prevent the forum from applying it, especially if the forum law, properly applied, points to that forum law. The forum must exhaust all possible interpretations in order to interpret the foreign law, no matter how obscure. Philippine courts, however, are guided by the principle under Article 10 of the New Civil Code of the Philippine sthat, in case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.

 

PUBLIC ORDER &

PUBLIC POLICY

 

“Article 11. Customs which are contrary to law, public order or public policy shall not be countenanced. Article 12. A custom must be proved as a fact, according to the rules of evidence.”

 

Customs, of course, are not treated with the same respect as that given to laws. They are, in fact, a question of law insofar as Philippine laws are concerned. Even if a custom is properly pleaded and proved, if it is contrary to law, public order or public policy, it cannot be given effect.

 

A foreign custom is a factual question. The party invoking a foreign custom has the burden of showing its existence. Despite this, proof of a foreign custom is not restricted by the method of proof of a foreign written law as outline in the Philippine rule on evidence. Because of this, it is safe to state that the old Section 45 of Rule 130 of the Rules of Court, which provided that “[t]he oral testimony of witnesses, skilled therein, is admissible as evidence of the unwritten law of a foreign country, as are also printed and published books of reports of decisions of the courts of the foreign country, if proved to be commonly admitted in such courts” may be applied. Hence, published books, printed materials, jurisprudence of a foreign country and the testimony of witnesses may be allowed to establish the existence of a foreign custom.

 

In one case, Anaban v. Anaban-Alfiler,[22] Pedrito Anaban claimed that his marriage with Virginia Erasmo was decreed dissolved – actually, the term used in the case was “divorced” – in accordance with the Ibaloi customs. Hence, the question before the Supreme Court of the Philippines was whether this custom-decreed divorce should be recognized in the legal system. The argument was basically that Pedrito and Virginia were married in accordance with the Ibaloi Tribe customs and their marriage was also dissolved in accordance with Ibaloi tribe customs and traditions and, since the celebration of marriage was pursuant to a tribe's customs was recognized under the Old Civil Code of the Philippines, then its dissolution in accordance with that tribe's customs must also be recognized. Thus, both the marriage and the subsequent divorce between Pedrito and Virginia were argued to be valid. Not surprisingly, the Supreme Court held in the negative. 

 

In the Anaban case,[23] the Court said that, actually, Pedrito and Virginia’s marriage and even their supposed divorce was not under the aegis of the old Civil Code, which was not yet in effect at that time. The old Civil Code took effect on June 18, 1949, or two (2) years after the divorce decree was purportedly handed down by the Ibaloi council of elders. The law in effect prior thereto was still the Spanish Civil Code of 1889, Article 5 of which is almost entirely the same as the present Article 11 of the New Civil Code of thej Philippines, thus: “Article 5. Laws are abrogated only by other subsequent laws, and the disuse or any custom or practice to the contrary shall not prevail against their observance.”

 

For purposes of determining whether divorce was contrary to law, public order or public policy at the time Pedrito and Virginia allegedly obtained their own divorce, the High Court traced back the history of divorce or dissolution of marriage starting from the Spanish regime. Finding in the history of laws that in 1947, only two (2) grounds were accepted for divorce, i.e., adultery and concubinage, and neither was the reason for Pedrito and Virginia's divorce, the supposed divorce, therefore, was contrary to law; hence, cannot be recognized. Note that, in thai case, the Ibaloi council of elders granted the divorce on ground of Virginia's alleged insanity.

 

While it is true that that Muslim customs, rites, and practices are the only non-Christian customary law recognized by the Philippines through the enactment of Presidential Decree No. 1083 otherwise known as the Code of Muslim Personal Laws of the Philippines, at present, there is no similar law explicitly recognizing the matrimonial customs, rites, and practices of the Ibaloi Tribe Presidential Decree No. 1083 in fact bears an entire chapter exclusively dedicated to divorce. Notably, its applicability clause states: “Article 13. Application. (1) The provisions of this Title shall apply to marriage and divorce wherein both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines.”

 

In the Anaban case, even assuming the constitutional and statutory right to cultural integrity includes recognition of indigenous divorce or any other form of indigenous dissolution of marriages, the Supreme Court held that the following four-fold guideline must still be proved in evidence: (a) the culture of the Ibaloi recognizes divorce or any other form of dissolution of marriage; (b) this recognition is a central aspect of their cultural integrity and not merely peripheral to it; (c) this recognition has been a central cultural practice since time immemorial and lasted to this day in its modern forms; and (d) the contents of and procedures for this central cultural practice, if any.

 

The question now is whether, in the analysis of a foreign divorce custom, the Philippine forum should apply the Anaban four-fold guideline.

 

GENERALITY FEATURE

OF PHILIPPINE LAWS

 

Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations.[24]

 

Article 14 as cited is known as the principle of generality. More particularly, the generality principle of criminal law states that any person, whether Filipino or not and whether residing, domiciling or merely sojourning within the territorial limits of the Philipines, are subject to its penal laws, public security laws and public safety laws. A Canadian located in the Philippines cannot invoke that, in his/her national law, marijuana is a licit substance.

 

An exception to this would be the principles of public international law and the provisions of valid treaties such as but not limited to the Vienna Convention on Consular Relations and the Vienna Convention on Diplomatic Relations. These will be discussed in separate chapters.

 

THE NATIONALITY PRINCIPLE

 

Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.[25]

 

Insofar as the Filipinos are concerned, their national law governs their family rights and duties, their status, condition and legal capacity. Hence, whenever they may be, such matters are followed by what is provided by Philippine laws.

 

The question then is whether Article 15 as cited above applies to non-Filipinos. The answer is yes. Although the provision only speaks of “citizens of the Philippines,” the Philippine State adheres to principles related to comity and cooperation with all nations, including the doctrine of reciprocity. The doctrine of reciprocity in international law is a principle that states that one country will extend to another country the same rights and privileges that the other country extends to it. This doctrine is based on the idea that countries should treat each other fairly and equally. In terms of their citizens, the rights and privileges granted by one state to its own citizens will be accorded as well to the citizens of another country as long as the latter does the same for the citizens of the former.

 

Article 15 of the Civil Code provides that “[l]aws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.” This is the rule of lex nationalii in private international law. Thus, the Philippine State may require, for effectivity in the Philippines, recognition by Philippine courts of a foreign judgment affecting its citizen, over whom it exercises personal jurisdiction relating to the status, condition and legal capacity of such citizen.[26]

 

PERSON’S STATUS

UNDER THE LAW

 

From the viewpoint of Philippine laws, a married Alaskan male is married wherever he goes and even if he is outside the territorial limits of Alaska. Even if he travels to California, or to China or to the Philippines, he carries the status of marriage and this follows him regardless of where because this is his status under his national law.

 

Under the nationality principle, Philippine laws continue to apply to Filipino citizens when it comes to their “family rights and duties... status, condition and legal capacity” even if they do not reside in the Philippines. In the same manner, the Philippines respects the national personal laws of aliens and defers to them when it comes to succession issues and “the intrinsic validity of testamentary provisions.”[27]

 

The status of a person in civil law includes personal qualities and relations, more or less permanent in nature, and not ordinarily terminable at one's own will, such as his being married or not, or his being legitimate or illegitimate.[28] Note that the terms “marital” and “nonmarital” have recently been used by the Supreme Court to replace the terms “legitimate” and “illegitimate” when referring to the children, as the latter terms are pejorative terms when used to describe children based on their parents’ marital status.[29]

 

Bouvier’s Law Dictionary defines status as the sum total of a person’s rights, duties, and capacities.[30] “In law, status is generally a characteristic of an individual that has some legal consequences. Examples are being a servant, a woman, or a minor. Sometimes legal status refers to a characteristic wholly created by law, such as being a Social Security recipient. Thus, legal status is a feature of individuals and their relationships to the law.”[31] Also, “legal status refers to a set of characteristics that define an individual's membership in an official class, as a consequence of which rights, duties, capacities and/or incapacities are acquired.[32] Sanchez Roman considers civil status the distinct consideration of a person before the civil law.[33] 

 

Whether a person is a male, a female, married, unmarried, single, widowed, widower, a child, an adult, a marital child (the new acceptable term for a legitimate child), a nonmarital child, dead, alive and other characteristics that attach to him/her as a person in consequence of his/her relationship with the law is governed by his national law as provided under Article 15 of the New Civil Code of the Philippines. However, the status of a person as a detained person or a person deprived of liberty, being statuses that pertain to criminal laws or criminal processes, is governed by the law of the forum of the state concerned.

 

A person deprived of liberty in China, who happens to manage to escape and flee into the Philippine islands, is not automatically a person deprived of liberty in the Philippines. Certain criminal law-related processes have to be commenced in order to consider him/her so under Philippine laws. For example, the Philippine may have an extradition treaty with China; in such a case, extradition proceedings[34] may be instituted against the Chinese person who cannot be arrested, convicted or detained solely on the basis of the alleged crime s/he committed in China on account of the territoriality principle in criminal law. While extradition itself is not a criminal process, it is an availment of the machinery of criminal law of the state requested to extradite an individual.[35] A fuller discussion on extradition will be made in a separate chapter of this book.

 

FAMILY RIGHTS & DUTIES

 

The term “family rights and duties” under Article 15 of the New Civil Code refers to those rights, obligations and privileges arising from marriage in view of family laws and constitutional provisions on marriage and family. Family relations in the Philippines, for example, mandate that husband and wife live together, observe mutual love, respect and fidelity, and render mutual help and support.[36] The husband and wife shall fix the family domicile[37] and they are jointly responsible for the support of the family.[38] The management of the household shall be the right and the duty of both spouses.[39] Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other.[40] In fact, when one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief.[41]

 

A Filipino migrant worker in Saudi Arabia cannot, for example, refuse to send money to his/her family in the Philippines on the ground that Saudi Arabian law does not mandate the obligation to support. In fact, under Philippine law, it is mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labor.[42]

 

PUBLIC POLICY VIS-A-VIS

FOREIGN LAWS, JUDGMENTS

 

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.[43]

 

If a Philippine law prohibits certain acts and omissions regarding persons, their acts and their property, especially if the law declares the same as against public order, public policy or good customs, the rule is that they are so prohibited. Even if a foreign court decree, or even a treaty, declares them to be valid or enforceable, Philippine courts are justified in denying their recognition and enforcement. Hence, a declaration of public policy cannot be rendered ineffectual by a judgment promulgated in a foreign jurisdiction.[44]

 

In the very old case of Tenchavez v. Escaño,[45] the Supreme Court used Article 17 of the New Civil Code as justification to deny the recognition of a foreign divorce decree invoked in that case. Interpreting said provision, the Court ruled: “The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly prescribes that the marriage bonds shall not be severed (Art. 106, subpar. 1).”

 

The Court went on to say that the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those members of our polity whose means do not permit them to sojourn abroad and obtain absolute divorces outside the Philippines. Note, however, that this ruling was made before the effectivity of the Family Code of the Philippines[46] and the prevailing piece of jurisprudence now is Republic v. Manalo[47] and other related case laws.[48] Nonetheless, Article 17 remains to be interpreted to include in its meaning the policy of non-recognition of divorce in the Philippines as the general rule while the application of Article 26 of the Family Code of the Pilippines as an exception.[49]

 

Without the second paragraph of Article 26 of the Family Code, it is said that the judicial recognition of the foreign decree of divorce, whether in a proceeding instituted precisely for that purpose or as a related issue in another proceeding, would be of no significance to the Filipino spouse since Philippine laws do not recognize divorce as a mode of severing the marital bond. Article 17 of the Civil Code provides that the policy against absolute divorces cannot be subverted by judgments promulgated in a foreign country.   The inclusion of the second paragraph in Article 26 of the Family Code provides the direct exception to this rule and serves as basis for recognizing the dissolution of the marriage between the Filipino spouse and his or her alien spouse.[50]

 

Under the current state of the law, a foreign judgment relating to the status of a marriage affects the civil status, condition and legal capacity of its parties, as long as the factual factors involve that of a Filpino. However, the effect of a foreign judgment is not automatic. To extend the effect of a foreign judgment in the Philippines, Philippine courts must determine if the foreign judgment is consistent with domestic public policy and other mandatory laws.[51]

 

When the law says prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country, it also means that when the foreign law, judgment or contract is contrary to a sound and established public policy of the forum, the said foreign law, judgment or order shall not be applied. Moreover, foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum. To give justice is the most important function of law; hence, a law, or judgment or contract that is obviously unjust negates the fundamental principles of conflict of laws.[52] 

 

Having these in mind, the Supreme Court held in the Del Socorro[53] case that, even if the laws of the Netherlands neither enforce a parent’s obligation to support his/her child nor penalize the non-compliance therewith, such obligation is still duly enforceable in the Philippines because it would be of great injustice to the child to be denied of financial support when the latter is entitled thereto and because it is a state policy to promote and protect their physical, moral, spiritual, intellectual, and social well-being[54] and also to provide special protection to children from all firms of abuse, neglect, cruelty exploitation and discrimination and other conditions, prejudicial their development.[55]

 

If in a proceeding before a Canadian court between a Canadian citizen and a Philippine citizen, it was adjudged by said court that the Canadian citizen who was the buyer is entitled to the delivery of 1,000 kilograms of marijuana (use and possession of which, for example, are valid in Canada) sold to the former by the Philippine citizen who was the seller, a petition for recognition and enforcement of judgment filed by former against the latter before a Philippine court may encounter several conflict of laws problems. Assume for this discussion that the contract was perfected in Canada and the delivery of the goods was intended by the parties to be performed in Canada.

 

First, if the foreign decision sought to be enforced is for specific performance, i.e., delivery of the marijuana, the Philippine forum may consider the fact that use, use or possession thereof is illegal in the Philippines. An order by the court for the Philippine citizen to delivery marijuana to the Canadian citizen would obviously run counter to the public policy and laws of the forum. If the order by the court is for delivery of the goods in Canada, its validity can be safely argued but, considering that the performance of the contract would be in Canada anyway, the recognition and enforcement sought in the Philippines would be an exercise in futility. 

 

In the above example, another consideration is the validity of the contract. In Canada, obviously, the contract can be said to be valid under the principle of lex rei sitae, i.e., property is governed by the law of the place where it is situated or located. Considering that marijuana is (for this example) assumed legal in Canada, the contract is not with an illicit object. Consistent with this, under the principle of lex solutionis (the law of the place where a contract is to be performed), the contract is also valid because the intended place of performance – Canada – considers in its laws marijuana as a thing within the commerce of men. From the viewpoint of Philippine law, on the other hand, there is no minimum contact in the Philippines to even consider the application of Philippine laws in the determination of the validity of the contract. The citizenship of the buyer as a Filipino cannot be considered as a significant factor because this only governs his/her status, condition and legal capacity while his obligation arising from contract is said to follow him/her wherever s/he goes and attaches to his/her person.

 

Another school of thought is that the municipal law of the country in which the contract was made or in which the parties thereto intend to perform their contractual obligations form part of the contract and follows them whenever they go.[56] The 1820 foreign case of Ogden[57] recognized the significant room given to states to continue creating debtor protections that would not be seen as a violation of the non-impairment of contracts. In Ogden, the Supreme Court of the United States held that prospective laws, i.e., laws applying to debts contracted after the passage of a bankruptcy law were constitutional. Only retrospective laws, those applying to debts contracted before the passage of the law, violated the non-impairment clause. The reasoning given by the ponencia in the Ogden case is that the bankruptcy laws passed before the creation of a contract are effectively incorporated into that contract, and cannot therefore impair its obligations even if these laws were passed by states different from where the contract was made.[58]

 

Explaining more, the writer of the decision in Ogden said: “It is, then, the municipal law of the state, whether that be written or unwritten, which is emphatically the law of the contract made within the state, and must govern it throughout wherever its performance is sought to be enforced. It forms, in my humble opinion, a part of the contract and travels with it wherever the parties to it may be found.”[59] Hence, if in the Philippines a debtor who entered into a contract of loan with a creditor and the debtor flees to a foreign country with more debtor protection laws than the Philippines, as long as these debtor protection laws were passed before the perfection of the loan contract, under this view, the debtor may continue to avail of the better debtor protection laws in the forum of that foreign country.

 

HOW TO DETERMINE WHETHER

NORM AGAINST PUBLIC POLICY

 

To determine whether the forum law has a declared policy on a certain topic, the law student ought to look into the Constitution or the statutes which declare such policies. For example, the 1987 Constitution of the Philippines declares certain state principles such as the following:

 

Section 1 [of Article II]. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.

 

Section 2 [of Article II]. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

 

Section 3 [of Article II]. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.

 

Section 4 [of Article II]. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service.

 

Section 5 [of Article II]. The maintenance of peace and order, the protection of life, liberty, and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.

 

Section 6 [of Article II]. The separation of Church and State shall be inviolable.

 

Section 7 [of Article II]. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.

 

Section 8 [of Article II]. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.

 

Section 9 [of Article II]. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.

 

Section 10 [of Article II]. The State shall promote social justice in all phases of national development.

 

Section 11 [of Article II]. The State values the dignity of every human person and guarantees full respect for human rights.

 

Section 12 [of Article II]. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

 

Section 13 [of Article II]. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.

 

Section 14 [of Article II]. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

 

Section 15 [of Article II]. The State shall protect and promote the right to health of the people and instill health consciousness among them.

 

Section 16 [of Article II]. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

 

Section 17 [of Article II]. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

 

Section 18 [of Article II]. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

 

Section 19 [of Article II]. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.

 

Section 20 [of Article II]. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.

 

Section 21 [of Article II]. The State shall promote comprehensive rural development and agrarian reform.

 

Section 22 [of Article II]. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

 

Section 23 [of Article II]. The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation.

 

Section 24 [of Article II]. The State recognizes the vital role of communication and information in nation-building.

 

Section 25. The State shall ensure the autonomy of local governments.

 

Section 26 [of Article II]. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.

 

Section 27 [of Article II]. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.

 

Section 28 [of Article II]. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

 

The following are also policies stated under the 1987 Constitution:

 

Section 1 [of Article XII]. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full of efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

 

Section 2 [of Article XII]. The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The State shall promote the development and use of local scientific and technical resources.

 

Section 10 [of Article XII]. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.

 

Section 11 [of Article XII]. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.

 

Section 12 [of Article XII]. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.

 

Section 13 [of Article XII]. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.

 

Section 14 [of Article XII]. The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit. The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.

 

Section 19 [of Article XII]. The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.

 

Other constitutional policies are stated under Article XII such as:

 

Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

 

Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.

 

Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.

 

Section 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary land-sharing.

 

Section 5. The State shall recognize the right of farmers, farmworkers, and landowners, as well as cooperatives, and other independent farmers' organizations to participate in the planning, organization, and management of the program, and shall provide support to agriculture through appropriate technology and research, and adequate financial, production, marketing, and other support services.

 

Section 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law.

 

Section 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.

 

Section 8. The State shall provide incentives to landowners to invest the proceeds of the agrarian reform program to promote industrialization, employment creation, and privatization of public sector enterprises. Financial instruments used as payment for their lands shall be honored as equity in enterprises of their choice.

 

Section 9. The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to under-privileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners.

 

Section 10. Urban or rural poor dwellers shall not be evicted nor their dwelling demolished, except in accordance with law and in a just and humane manner. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated.

 

Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the under-privileged, sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

 

Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health, manpower development, and research, responsive to the country's health needs and problems.

 

Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-development, and self-reliance, and their integration into the mainstream of society.

 

Section 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.

 

Section 15. The State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means.

 

People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership, and structure.

 

Section 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms.

 

On the other hand, Article XIV of the 1987 Constitution of the Philippines also declares the following policies:

 

Section 1. The State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all.

 

Section 2. The State shall: Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society; Establish and maintain, a system of free public education in the elementary and high school levels. Without limiting the natural rights of parents to rear their children, elementary education is compulsory for all children of school age; Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the under-privileged; Encourage non-formal, informal, and indigenous learning systems, as well as self-learning, independent, and out-of-school study programs particularly those that respond to community needs; and Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency, and other skills.

 

Section 5. The State shall take into account regional and sectoral needs and conditions and shall encourage local planning in the development of educational policies and programs. Academic freedom shall be enjoyed in all institutions of higher learning. Every citizen has a right to select a profession or course of study, subject to fair, reasonable, and equitable admission and academic requirements. The State shall enhance the right of teachers to professional advancement. Non-teaching academic and non-academic personnel shall enjoy the protection of the State. The State shall assign the highest budgetary priority to education and ensure that teaching will attract and retain its rightful share of the best available talents through adequate remuneration and other means of job satisfaction and fulfillment.

 

Section 10. Science and technology are essential for national development and progress. The State shall give priority to research and development, invention, innovation, and their utilization; and to science and technology education, training, and services. It shall support indigenous, appropriate, and self-reliant scientific and technological capabilities, and their application to the country's productive systems and national life.

 

Section 11. The Congress may provide for incentives, including tax deductions, to encourage private participation in programs of basic and applied scientific research. Scholarships, grants-in-aid, or other forms of incentives shall be provided to deserving science students, researchers, scientists, inventors, technologists, and specially gifted citizens.

 

Section 12. The State shall regulate the transfer and promote the adaptation of technology from all sources for the national benefit. It shall encourage the widest participation of private groups, local governments, and community-based organizations in the generation and utilization of science and technology.

 

Section 13. The State shall protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law.

 

Section 14. The State shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression.

 

Section 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation's historical and cultural heritage and resources, as well as artistic creations.

 

Section 16. All the country's artistic and historic wealth constitutes the cultural treasure of the nation and shall be under the protection of the State which may regulate its disposition.

 

Section 17. The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies.

 

Section 18. The State shall ensure equal access to cultural opportunities through the educational system, public or private cultural entities, scholarships, grants and other incentives, and community cultural centers, and other public venues. The State shall encourage and support researches and studies on the arts and culture.

 

Section 19. The State shall promote physical education and encourage sports programs, league competitions, and amateur sports, including training for international competitions, to foster self-discipline, teamwork, and excellence for the development of a healthy and alert citizenry. All educational institutions shall undertake regular sports activities throughout the country in cooperation with athletic clubs and other sectors.

 

Article XV of the 1987 Constitution of the Philippines also declares the following policies:

 

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.

 

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

 

Section 3. The State shall defend: The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood; The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development; The right of the family to a family living wage and income; and The right of families or family associations to participate in the planning and implementation of policies and programs that affect them.

 

Section 4. The family has the duty to care for its elderly members but the State may also do so through just programs of social security.

 

Finally, Article XVI of the 1987 Constitution of the Philippines states the following policies:

 

Section 5. All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution. The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty.

 

Section 6. The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.

 

Section 7. The State shall provide immediate and adequate care, benefits, and other forms of assistance to war veterans and veterans of military campaigns, their surviving spouses and orphans. Funds shall be provided therefor and due consideration shall be given them in the disposition of agricultural lands of the public domain and, in appropriate cases, in the utilization of natural resources.

 

Section 8. The State shall, from time to time, review to increase the pensions and other benefits due to retirees of both the government and the private sectors.

 

Section 9. The State shall protect consumers from trade malpractices and from substandard or hazardous products.

 

Section 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.

 

Congress through its law-making power has declared certain policies that are incorporated in statutes. For example, Republic Act No. 9165[60] declares it as a policy of the State to safeguard the integrity of its territory and the well-being of its citizenry particularly the youth, from the harmful effects of dangerous drugs on their physical and mental well-being, and to defend the same against acts or omissions detrimental to their development and preservation. In view of the foregoing, the State needs to enhance further the efficacy of the law against dangerous drugs, it being one of today's more serious social ills.[61]

PUBLIC POLICY BASED

ON STATUTE, LAW

 

Public policies are not supposed to be norms that are subject to the whim or caprices of a person or a branch of government. Hence, simply because an act is the least desirable or is annoying cannot be used as a reason to declare the same as against public policy; after all, the Philippines is a society of laws and not of men.[62]

 

Public policy has been defined as that principle under which freedom of contract or private dealing is restricted for the good of the community.[63] Under the principles relating to the doctrine of public policy, as applied to the law of contracts, courts of justice will not recognize or uphold a transaction when its object, operation, or tendency is calculated to be prejudicial to the public welfare, to sound morality or to civic honesty.[64]

 

In determining a public policy of the state, courts are limited to a consideration of the Constitution, the judicial decisions, the statutes, and the practice of government officers.[65] It might take more than a government bureau or office to lay down or establish a public policy, as alleged in your communication, but courts consider the practices of government officials as one of the four factors in determining a public policy of the state. It has been consistently held in America that under the principles relating to the doctrine of public policy, as applied to the law of contracts, courts of justice will not recognize or uphold a transaction which its object, operation, or tendency is calculated to be prejudicial to the public welfare, to sound morality or to civic honesty.[66]

 

PUBLIC POLICY VS.

SAME-SEX MARRIAGE

 

Often, students in Philippine law schools say that same-sex marriage is against public policy. When asked why this is so they cite Article 1 of the Family Code of the Philippines which states: “Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.” However, there is actually no clear policy in the Philippines against same-sex marriage.

 

While it is true that marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State[67] and that the State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution,[68] it must be noted that the Philippine Constitution and the anals of Philippine legislation are presently bereft of any policy squarely and positively declaring against same-sex marriage. While it is likewise true, as will be discussed in a separate chapter, that the crime of Marriage Contracted against Provisions of Laws is provided by Article 350[69] of the Revised Penal Code of the Philippines vis-à-vis the provisions of the Family Code of the Philippines requiring that the contracting parties to a marriage be of legal capacity who must be a male and a female, there appears to be no clear and categorical policy against same-sex marriage, especially in the matter of a marriage between non-Filipinos who are of the same sex.

 

In fact, in the case of Ang Ladlad v. Commission on Elections,[70] the Supreme Court ruled that immorality cannot be judged based on personal bias, specifically those colored by particular mores. Nor should it be grounded on “cultural” values not convincingly demonstrated to have been recognized in the realm of public policy expressed in the Constitution and the laws. At the same time, the constitutionally guaranteed rights (such as the right to privacy) should be observed to the extent that they protect behavior that may be frowned upon by the majority.

 

In Estrada v. Escritor,[71] it was held that the morality referred to in the law is public and necessarily secular, not religious. Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms. Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a “compelled religion,” anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens.

 

Hence, if the question is whether two New Yorkers who are both males and who are married under New York law are married in the eyes of Philippine laws, the answer is yes because their family rights and duties, status, condition and legal capacity are governed by their national law.[72] The answer is different if the question involves two Filipinos who are both males who entered into a same-sex marriage because of the same reason – nationality principle. The question will, however, spawn complications if one of the contracting parties in a same-sex marriage celebrated abroad is a Filipino and the other, a foreigner under whose national law such marriage is allowed.

 

In Knights of Rizal v. DMCI Homes,[73] the Supreme Court said that what is not expressly or impliedly prohibited by law may be done, except when the act is contrary to morals, customs and I public order. This principle is fundamental in a democratic society, to protect the weak against the strong, the minority against the majority, and the individual citizen against the government. In essence, this principle, which is the foundation of a civilized society under the rule of law, prescribes that the freedom to act can be curtailed only through law. Without this principle, the rights, freedoms, and civil liberties of citizens can be arbitrarily and whimsically trampled upon by the shifting passions of those who can spout the loudest, or those who can gather the biggest crowd or the most number of Internet trolls. In fact, in other instances,[74] the High Court has allowed or upheld actions that were not expressly prohibited by statutes when it determined that these acts were not contrary to morals, customs, and public order, or that upholding the same would lead to a more equitable solution to the controversy. Hence, acts not contrary to morals, good customs, public order, or public policy are allowed if also not contrary to law.

 

In the field of contracts law, it is a fundamental rule that contracts, once perfected, bind both contracting parties and a contract freely entered into should be respected since a contract is the law between the parties.[75] However, it must be understood that contracts are not the only source of law that govern the rights and obligations between parties. More specifically, no contractual stipulation may contradict law, morals, good customs, public order or public policy.[76] The principle of party autonomy in contracts is not an absolute principle.

 

The rule in Article 1306 of our Civil Code is that the contracting parties may establish such stipulations as they may deem convenient provided they are not contrary to law, morals, good customs, public order or public policy. Thus, counter-balancing the principle of autonomy of contracting parties is the equally general rule that provisions of applicable laws, especially provisions relating to matters affected with public policy, are deemed written into the contract. Put a little differently, the governing principle is that parties may not contract away applicable provisions of law, especially peremptory provisions dealing with matters heavily impressed with public interest.[77] In PSALM v. Pozzolanic Philippines,[78] for example, it was declared that public bidding is the established procedure in the grant of government contracts; hence, the award of public contracts through public bidding is a matter of public policy.

 

x---------------------------------------------x

[1] New Civil Code of the Philippines.

[2] Municipality of San Mateo, Isabela v. Smart Communications, Inc., G.R. No. 219506, June 23, 2021, citing Smart Communications, Inc. v. Municipality of Malvar, Batangas, 727 Phil. 430-447 (2014), G.R. No. 204429, 18 February 2014 [Per J. Carpio], thus: “The presumption of validity is a corollary of the presumption of constitutionality, a legal theory of common-law origin developed by courts to deal with cases challenging the constitutionality of statutes. The presumption of constitutionality, in its most basic sense, only means that courts, in passing upon the validity of a law, will afford some deference to the statute and charge the party assailing it with the burden of showing that the act is incompatible with the constitution. The doctrine comes into operation when a party comes to court praying that a law be set aside for being unconstitutional. In effect, it places a heavy burden on the act's assailant to prove invalidity beyond reasonable doubt; it commands the clearest showing of a constitutional infraction. Accordingly, before a law may be struck down as unconstitutional courts must be certain that there exists a clear and unequivocal breach of the constitution, and not one that is speculative or argumentative. To doubt, it has been said, is to sustain.”

[3] PCGG v. Sandiganbayan, G.R. No. 124772, August 14, 2007, citing Evans, M.d. (Ed.), International Law (First Edition), Oxford University Press, p. 357.

[4] Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923 (1964), citing Underhill v. Hernandes, 168 U.S. 250, 252; 18 S.Ct. 83, 84 (1897).

[5] Bustos v. Lucero, G.R. No. L-2068, October 20, 1948, citing Rapalje & Lawrence's Law Dictionary; Anderson Law Dictionary; Bouvier's Law Dictionary.

[6] Frabelle Properties v. AC Enterprises, G.R. No. 245438, November 03, 2020: “Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his or her claim or defense by the amount of evidence required by law. Burden of proof never shifts. Burden of evidence is the duty of a party to present evidence sufficient to establish or rebut a fact in issue to establish a prima facie case. Burden of evidence may shift from one party to the other in the course of the proceedings, depending on the exigencies of the case.”

[7] New Civil Code of the Philippines.

[8] Tañada v. Tuvera, G.R. No. L-63915, April 24, 1985.

[9] TEEHANKEE, J., concurring in Tañada v. Tuvera, G.R. No. L-63915, April 24, 1985.

[10] New Civil Code of the Philippines.

[11] Source cannot be found.

[12] Development Bank of the Philippines v. Court of Appeals, G.R. No 97998, January 27, 1992.

[13] New Civil Code of the Philippines.

[14] Article 4 of the Family Code of the Philippines.

[15] Paragraph 2 of Article 4 of the Family Code of the Philippines.

[16] New Civil Code of the Philippines.

[17] See Atkins v. Swimwest Family Fitness Center, 2005 WI 4, ¶12, 277 Wis.2d 303, 691 N.W.2d 334.

[18] Article 7 of the New Civil Code of the Philippines.

[19] G.R. No. 192986, January 15, 2013.

[20] Article 8 of the New Civil Code of the Philippines.

[21] Article 9 of the New Civil Code of the Philippines.

[22] G.R. No. 249011, March 15, 2021.

[23] G.R. No. 249011, March 15, 2021.

[24] Article 14 of the New Civil Code of the Philippines.

[25] Article 15 of the New Civil Code of the Philippines.

[26] Fujiki v. Marinay, G.R. No. 196049, June 26, 2013.

[27] In Re Will of Lipson, G.R. No. 229010, November 23, 2020.

[28] Paras, 2008 citing 119 Restatement.

[29] Aquino v. Aquino, G.R. Nos. 208912 and 209018, December 7, 2021.

[30] Vol. 3, p. 3229.

[31] Balkin, Jack (1997). “The Constitution of Status”. Yale Law Journal. 106: 2313.

[32] Graham, Tiffany (2009). “Exploring the Impact of the Marriage Amendments: Can Public Employers Offer Domestic Partner Benefits to Their Gay and Lesbian Employees?”. Virginia Journal of Social Policy and the Law. 17: 83.

[33] Vol. 2, p. 110.

[34] See Secretary of Justice v. Lantion, G.R. No. 139465, January 18, 2000.m

[35] Government of Hong Kong v. Olalia, G.R. No. 153675, April 19, 2007.

[36] Article 68 of the Family Code of the Philippines.

[37] Article 69 of the Family Code of the Philippines.

[38] Article 70 of the Family Code of the Philippines.

[39] Article 71 of the Family Code of the Philippines.

[40] Article 73 of the Family Code of the Philippines.

[41] Article 72 of the Family Code of the Philippines.

[42] Article 22 of the Labor Code of the Philippines.

[43] Article 17 of the New Civil Code of the Philippines.

[44] Cacho v. People, G.R. No. 145226, February 06, 2004.

[45] G.R. No. L-19671, November 29, 1965

[46] The Family Code of the Philippines took effect on August 3, 1988 per Memorandum Circular No. 85 - Clarifying The Effectivity Date Of The Family Code Of The Philippines, November 7, 1988.

[47] G.R. No. 221029, April 24, 2018.

[48] See also Republic v. Orbecido III, G.R. No. 154380, October 5, 2005.

[49] Nullada v. Civil Registrar of Manila, G.R. No. 224548, January 23, 2019.

[50] Corpuz v. Sto. Tomas, G.R. No. 186571, August 11, 2010.

[51] Fujiki v. Marinay, G.R. No. 196049, June 26, 2013.

[52] Del Socorro v. Van Wilsem, G.R. No. 193707, December 10, 2014.

[53] G.R. No. 193707, December 10, 2014.

[54] Section 13 of Article II of the 1987 Constitution of the Philippines

[55] Section 2 of Republic Act No. 7610, June 17, 1992, otherwise known as the “Special Protection of Children Against Abuse, Exploitation and Discrimination Act.”

[56] Ogden v. Saunders, 25 U.S. 213 (1827).

[57] 25 U.S. 213 (1827).

[58] Zackin, E. (2013). Seeing Past Emergencies: The Institutionalization of State-Level Debtor Protections.

[59] 25 U.S. 213 (1827).

[60] Comprehensive Dangerous Drugs Act of 2002.

[61] Section 1 of Republic Act No. 9165.

[62] People v. Mozar, G.R. No. L-33544, July 25, 1984.

[63] Ollendorff v. Abrahamson, 38 Phil. 585, 590-591 (1918) citing People’s Bank v. Dalton, 2 Okla. 476.

[64] Cui v. Arellano University, No. L-15127, 30 May 1961, as cited in PSALM v. Pozzolanic, G.R. No. 183789, August 24, 2011.

[65] Zeigel v. Illinois Trust and Savings Bank, 245 Ill. 180, 19 Ann. Case 127.

[66] Ritter vs. Mutual Life Ins. Co., 169 U.S. 139; Heding vs. Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359.

[67] Section 2 of Article XV of the 1987 Constitution of the Philippines. 

[68] Section 12 of Article II of the 1987 Constitution of the Philippines.

[69] Article 350. Marriage contracted against provisions of laws.—The penalty of prision correccional in its medium and maximum periods shall be imposed upon any person who, without being included in the provisions of the next preceding article, shall contract marriage knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment. If either of the contracting parties shall obtain the consent of the other by means of violence, intimidation or fraud, he shall be punished by the maximum period of the penalty provided in the next preceding paragraph.

[70] G.R. No. 190582, April 8, 2010, citing In Anonymous v. Radam, A.M. No. P-07-2333, December 19, 2007, 541 SCRA 12, citing Concerned Employee v. Mayor, A.M. No. P-02-1564, 23 November 2004, 443 SCRA 448.

[71] 455 Phil. 411 (2003).

[72] Article 15 of the Civil Code of the Philippines.

[73] G.R. No. 213948, April 18, 2017, citing Manila Electric Company v. Public Service Commission, Phil. 658, 661 (1934).

[74] See in the Matter of the Adoption of Stephanie Nathy Astroga Garcia, 494 Phil. 515 (2005); Summerville General Merchandising Co. v. Court of Appeals, 552 Phil. 668 (2007).

[75] Halagueña v. Philippine Airlines, Incorporated, G.R. No. 172013, 2 October 2009, 602 SCRA 297, 313.

[76] National Housing Authority v. Grace Baptist Church, G.R. No. 156437, 1 March 2004, 424 SCRA 147, 152, citing Article 1306 of the Civil Code.

[77] Halagueña v. Philippine Airlines, Incorporated, G.R. No. 172013, 2 October 2009.

[78]  G.R. No. 183789, August 24, 2011.