Conflicts of Law
Personal Law and
Citizenship
Personal Law
Citizenship
• Personal Status
•
Definition
• Capacity
•
Importance of Citizenship
1. Juridical Capacity
•
Citizenship under the 1987
Constitution
2. Capacity
1.
Natural Born Citizens
•
Beginning and End of Personality  Jus Sanguinis v. Jus Soli
•
Absence
2. Naturalized Citizens
•
Name

•
Age of Majority
3. Dual or Multiple Citizenship v. Dual
Allegiance
Procedure for Naturalization
4. Statelessness
2
•
Status of Foundlings
•
Expatriation
Citizenship
•
Repatriation and Citizenship
Retention
1.
Distinction
2. Procedure
•
Citizenship and Conflict of Laws
1.
General Principles in Dealing with
Conflict of Nationality
•
Practice of Profession
1
3
Personal Law
Definition, personal law.
A person’s personal law may be defined as that which attaches
to him wherever he may go; the law that generally governs his
status, capacity, condition, family relations, and the
consequences of his actuations.
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Importance of Personal Law
The individual‘s nationality or domicile serves as permanent
connection between the individual & the state. Thus, what is
assigned him is a personal law allowing courts to exercise
jurisdiction or to determine the governing choice-of-law rule
on a specific situation or transaction involving him.
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Personal Status
Is the general term that includes both condition and capacity,
and more specifically embraces such matters as the beginning
and end of human personality, capacity to have rights in
general, capacity to engage in legal transactions, protection of
personal interests, family relations, particularly the relations
between husband and wife, parent and child, guardian and
ward, also transactions of family law, especially marriage,
divorce, separation, adoption, legitimation and emancipation,
and finally succession both testate and intestate.
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Personal Status
“Status” was taken from the Roman doctrine of status libertates
(freedom), status civitates (citizenship), and status familiae
(position as head of the house or as free person subject to the
pater familia). It has no exact meaning and its concept
considered nebulous since modem law does not recognize
absolute legal characteristics inherent in every person.
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Capacity
Is the fitness of a man to be the subject of legal relations, while
capacity to act is the power to do acts with juridical effects.
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Capacity
Judicial Capacity
Is the fitness to be the
subject of legal relations, is
inherent in every natural
person and is lost only
through death.
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Capacity to Act
Is the power to do acts
with legal effect, is
acquired and may be lost.
Beginning and End of
Personality
The determination of the exact moment personality begins is referred to the
individual’s personal law.
Articles 40 and 41 of our Civil Code give our internal rules on the beginning of
human personality:
“Art. 40. Birth determines personality; but the conceived child shall be considered
born for all purposes that are favorable to it, provided it be born later with the
conditions specified in the following article.
“Art. 41. For civil purpose the fetus is considered born if it is alive at the time it is
completely delivered from the mother’s womb. However, if the fetus had an intrauterine life of less than seven months, it is not deemed born if it dies within
twenty-four hours after its complete delivery from the maternal womb.”
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Beginning and End of
Personality
As civil personality is commenced at birth, it is extinguished by death.
Under the principle of personal law, a declaration of death issued by a competent
court is considered valid for all purposes. Upon the death of a person, some of his
rights and obligations are totally extinguished while others are passed on to his
successors.
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Absence
The domestic laws of different countries do not treat absentees alike and this has
given rise to difficult problems in conflict of laws.
There are three suggested ways of dealing with the problem: first, there is a
rebuttable presumption that a person is dead when he has been absent for a
number of years; second, a person’s unexplained absence is judicially investigated
and established which results in legal effects similar to those of death; and third, a
judicial decree shall have to be issued declaring the person dead before legal
effects of death take place.
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Philippine laws follow the rebuttable presumption of the common law. The legal
effects of absence and restrictions on the absentee’s capacity to act are
determined by his personal law.
Name
The determination of an individual’s name is not a problem of status since a
person is traditionally free to assume a name and change it at will. However,
today, the more prevalent view is that a person’s name is determined by law and
cannot be changed without judicial intervention.
The law expressly states that “no person can change his name or surname
without judicial authority.” Case law shows that courts have allowed petitions on
grounds that the name 1) is ridiculous or tainted with dishonor or extremely
difficult to pronounce; or 2) when the change is necessary to avoid confusion; 3)
when the right to a new name is a consequence of a change in status; or 4) a
sincere desire to adopt a Filipino name to erase signs of a former alien nationality
which unduly hamper social and business life.
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Age of Majority
The legal disability attached to minority and rights recognized upon attainment of
the age of majority are aspects of personal status.
It is the individual’s personal law which determines whether he has reached the
age of majority. Once emancipated, parental authority over the person and
property of the child is terminated and he is qualified and responsible for all acts
of civil life, save the exceptions established by existing laws in special cases, such
as the parent’s continued observance of their responsibilities under Article 46 of
Presidential Decree 603.
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Summary, personal law.
1.
Personal Status;
2. Capacity;
3. Beginning and End of Personality;
4. Absence;
5. Name; and,
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6. Age of Majority.
2
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Citizenship
Definition, citizenship.
Citizenship
A person’s membership in
a particular state. It is a
legal status in a political
institution such as a city or
a state.
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Nationality
Is the membership in an
ethnic, social, racial and
cultural group, citizenship
is membership in a
political society.
Citizenship under the 1987
Constitution
Sec. 1, Art. IV, of the 1987 Constitution states that:
SECTION 1. The following are citizens of the Philippines:
(1)
Those who are citizens of the Philippines at the time of the adoption of
this Constitution;
(2)
Those whose fathers or mothers are citizens of the Philippines;
(3)
Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; and,
(4)
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Those who are naturalized in accordance with law.
Importance of Citizenship
1.
A source of right;
2. A source of benefit;
3. A source of duties and obligations;
4. Defines voting rights; and,
5. Defines right to hold public office.
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Natural-born Citizens
Sec. 2, Art. IV, of the 1987 Constitution states that:
SECTION 2. Natural-born citizens are those who are citizens of the Philippines
from birth without having to perform any act to acquire or perfect their
Philippine citizenship. Those who elect Philippine citizenship in accordance with
paragraph (3), Section 1 hereof shall be deemed natural-born citizens.
Native-born Filipino citizens are those born in the Philippines. Natural-born
citizens may not be native born if they were born abroad.
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Jus Sanguinis v. Jus Soli
Jus Sanguinis
Citizenship is acquired by
being born within the
territorial boundaries of a
state. It is the law of the
place of one’s birth
determine one’s
nationality.
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Jus Soli
One follows the
citizenship of his parents;
this is citizenship by
blood. Under this
principle, citizenship is
acquired thru blood
relationship.
Naturalized Citizens
Those who are not natural-born citizens; those who were formerly aliens but by
judicial, legislative, or administrative proceedings, have become Filipino citizens.
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Procedure for Naturalization
1.
Filing of declaration of intention, unless exempted;
2. Filing of petition for naturalization;
3. Publication in the OG or newspaper of general circulation, hearing;
4. If petition approved, rehearing two years after promulgation of judgment
awarding naturalization; and,
5. Oath-taking (allegiance to support and defend the Constitution and the laws).
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Dual or Multiple Citizenship
v. Dual Allegiance
Dual or Multiple Citizenship
Arises when, as a result of
the concurrent application of
the different laws of two or
more states, a person is
simultaneously considered a
national by the said states.
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Dual Allegiance
Refers to the situation in
which a person
simultaneously owes, by
some positive act, loyalty
to two or more states.
Definition, statelessness.
Refers to an individual who has been stripped of his nationality by his own former
government without having an opportunity to acquire another. Stateless persons
are generally subject to the law of their domicile or habitual residence, or in
default thereof, to the law of their temporary residence. Stateless persons can be
naturalized if they possess all the qualifications, save that of reciprocity.
De jure statelessness
▪
refers to an individual who has been stripped of his nationality by his own
former government without having an opportunity to acquire another.
De facto statelessness
▪
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refers to an individual possessed of a nationality but whose country does not
give him protection outside its own territory.
Statelessness
Statelessness arises due to:
1.
Deprivation of his citizenship for any cause such as commission of a crime;
2. Renunciation of one’s nationality by certain acts, express or implied;
3. Voluntary release from his original state; and,
4. He may have been born in a country which recognizes only the principle of
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jus sanguinis -- or citizenship by blood, of parents whose law recognizes only
the principle of jus soli -- citizenship by birth in a certain place. Thus he is
neither a citizen of the country of his parents.
Status of Foundlings
Those abandoned children with no known natural parents, are natural -born
citizens because they are not an excluded class under the Constitution.
In addition, domestic laws and International laws accord them that status.
So long as there is a HIGH PROBABILITY that the foundling’s parents are Filipinos,
that person will be considered natural-born.
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Definition, expatriation.
It is the commission of an act that results in the loss of citizenship. Is the
voluntary renunciation or abandonment of nationality and allegiance.
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Expatriation
Under Commonwealth Act No. 63, a citizen may lose his citizenship by the commission of any of the following acts:
(1)
By naturalization in a foreign country;
(2)
By express renunciation of citizenship;
(3)
By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining 21
years of age or more: provided, however, that a Filipino may not divest himself of Philippine citizenship in any manner while
the Republic of the Philippines is at war with any country;
(4)
Rendering service to, or accepting commission in, the armed forces of a foreign country: Provided, that the
rendering of service to, or the acceptance of such commission in, of allegiance incident thereto, with the consent of the
Republic of the PH, shall not divest a Filipino of his PH Citizenship if either of the following circumstances is present:
(a)
The republic of the Philippines has a defensive and/or offensive pact of alliance with the said foreign country; or
(b)
The said foreign country maintains armed forces on Philippine territory with the consent of the Philippines:
Provided, that the Filipino citizen concerned, at the time of rendering said service, or acceptance of said commission, and
taking the oath of allegiance incident thereto, states that he does so only in connection with his service to said foreign country:
And provided, finally, That any filipin citizen who is rendering service to, or is commissioned in, the armed forces of a foreign
country under any of the circumstances mentioned in par. (a) or (b), shall not be permitted to participate nor vote in any
election of the Rep. of the PH during the period of his service to, or commission in, the armed forces of said foreign country.
Upon his discharge from the service of the said foreign country, he shall be automatically entitled to the full enjoyment of his
civil and political rights as a Filipino citizen;
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Expatriation
(5)
By Cancellation of the Certificate of Naturalization;
(6)
By having been declared by competent authority, a deserter of the Philippine armed
forces in time of war, unless subsequently, a plenary pardon of amnesty has been granted and;
(7)
In the case of a woman, upon her marriage to a foreigner, if by virtue of the laws in
force of her husband’s country, she acquires his nationality
However, under Sec. 4, Art. IV of the 1987 Constitution, the marriage of a woman to a foreigner
is no longer expatriating unless they categorically renounce their PH citizenship.
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Repatriation and
Citizenship Retention and
Re-acquisition
Under RA 9255, Congress has now allowed dual allegiance for Filipinos as the law
allows former Filipinos to reclaim their old citizenship without renouncing their
present citizenship. Hence, there is a double standard in the sense that while
naturalized citizens are not allowed to have dual allegiance, the same does not
apply to natural—born citizens.
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Repatriation and
Citizenship Retention and
Re-acquisition
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Repatriation
Retention
Is the process of
returning a person
to his place of
origin
or
citizenship. It may
be voluntary or
involuntary.
Citizens
that
deemed
have
retained to their
Philippine
citizenship
upon
taking the oath of
allegiance.
Re-acqusition
Citizens that deemed
have acquired their
citizenship upon taking
the same oath of
allegiance.
Procedure, retention and reacquisition.
1.
Secure the Checklist of required documents from either at the Public
Information and Assistance Unit (PIAU) at BI G/F Main Office or from the
official BI Website.
2. Submit the documents for pre-screening to the Central Receiving Unit (CRU)
to process this transaction.
3. Take Oath of Allegiance.
4. Get the Order of Payment Slip (OPS).
5. Pay the required fees.
6. Verify status of application whether approved or not.
7. If approved, claim the Certificate of Retention/Reacquisition of Philippine
Citizenship, Order of Approval and Oath of Allegiance.
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Citizenship and Conflict of
Laws
Below are some guiding principles enunciated in the Hague Convention on Certain
Questions Relating to the Conflict of Nationality Laws:
Article 1. It is for each State to determine under its own law who are its nationals.
This law shall be recognized by other States in so far as it is consistent with
international conventions, international custom, and the principles of law
generally recognized with regard to nationality.
Article 2. Any question as to whether a person possesses the nationality of a
particular State shall be determined in accordance with the law of the State.
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Citizenship and Conflict of
Laws
Article 3. Subject to the provisions of the present Convention, person having two or more
nationalities may be regarded as its national by each of the States whose nationality he
possesses.
Article 4. A State may not afford diplomatic protection to one of its national against a State
whose nationality such person also possesses.
Article 5. Within a third State, a person having more than one nationality shall be treated as if
he had only one. Without prejudice to the application of its law in matters of personal status
and of any conventions in force, a third State shall, of the nationalities which any such person
possesses, recognize exclusively in its territory either the nationality of the country in which he
is habitually and principally resident, or the nationality of the country with which in the
circumstances he appears to be in fact most closely connected.
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Citizenship and Conflict of
Laws
Article 6. Without prejudice to the liberty of a State to accord wider rights to
renounce its nationality, a person possessing two nationalities acquired without
any voluntary act on his part may renounce one of them with the authorization of
the State whose nationality he desires to surrender.
This authorization may not be refused in the case of a person who has his
habitual and principal resident abroad, if the conditions laid down in the law of the
State whose nationality he desires to surrender are satisfied.
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Republic Act No. 9225 and
the US Citizenship
Filipinos who have since naturalized as Americans who want to reacquire their
Philippine citizenship under RA No. 9225 can do so without worrying that they
might be stripped of their US citizenships.
US citizen need only to answer no to the question for a consular officer if he
intended to relinquish his US citizenship and with such, the person is deemed to
retain his US citizenship.
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Practice of Profession
Is a privilege and is therefore restricted to Philippine citizens.
However, foreigners are allowed to practice profession in the Philippine but must
first seek a license or permit from the appropriate government authority. This is
because Filipinos are preferred in the practice of profession in our country such
that foreigners should not displace them if there is a sufficient number of
Filipinos who can fill the vacancy.
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