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Proving foreign law in Philippine courts

By Ramon Vaughn Dy III on September 1,2022

PHILIPPINE courts adhere to the doctrine of processual presumption, which generally means that where a foreign law is not pleaded or not proved even if pleaded, the presumption is that it is the same as Philippine law (EDI-Staffbuilders International Inc. v NLRC, GR 145587, 2007).

To have evidentiary weight in a judicial proceeding, the foreign law should be alleged and proved like any other material fact (Simundac-Keppel v Keppel, GR 202039, 2019).

In a handful of cases, the Supreme Court reversed and/or overturned decisions raised on appeal solely on the ground that foreign law was not sufficiently established as a fact pursuant to the Rules on Evidence by the party pleading it. Most recently, in the case of Republic of the Philippines v Jocelyn Kikuchi (GR 243646, 2022), the Supreme Court reversed and set aside a Court of Appeals decision recognizing a foreign divorce procured in Japan and ruling that foreign law was sufficiently proven as fact.

In this case, the respondent had presented a photocopy of the Civil Code of Japan in English in order to prove that Japanese law was complied with by the respondents in procuring the divorce. The Supreme Court ruled that the document was insufficient to prove the law of Japan on divorce and was devoid of any probative value. The case was then remanded to the court of origin for further proceedings and reception of evidence on the Japanese law on divorce.

In another case, the Supreme Court disallowed the deposition of a maritime law practitioner in the Republic of Panama before the Philippine consulate as proof of Panamanian law. Such deposition is not the certificate contemplated by law. At best, it can be considered the opinion of an expert witness who possesses the required special knowledge on Panamanian laws. It cannot be recognized as proof of a foreign law, the deponent not being the custodian of the statute who can guarantee the genuineness of the document from a foreign country (Nedlloyn Lijnen B.V. Rotterdam v Glow Laks Enterprises Ltd., GR 156330, 2014).

Even though the substance of copies of the foreign law are essentially the same with that of the source document/originals, the Supreme Court has consistently ruled that compliance with the provisions of the Rules of Court is strictly required. To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules on Evidence, as amended.

Section 24 of the Revised Rules on Evidence provides that foreign law may be proven as a public or official record of a foreign country by either an official publication or a copy thereof attested by the officer having legal custody of the document. If the office in which the record is kept is in a foreign country that is a contracting party to a treaty or convention to which the Philippines is also a party or considered a public document under such treaty or convention, the certificate or its equivalent should be in the form prescribed by such treaty or convention subject to reciprocity granted to public documents originating from the Philippines.

For documents originating from a foreign country that is not a contracting party to a treaty or convention, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept and authenticated by the seal of his or her office.

A document that is accompanied by a certificate or its equivalent may be presented in evidence without further proof since the certificate or its equivalent is the prima facie evidence of the due execution and genuineness of the document involved. The certificate will not be required when a treaty or convention between a foreign country and the Philippines has abolished the requirement or has exempted the document itself from this formality.

In addition, Section 25 of the Revised Rules on Evidence provides that the attestation must also state that the copy is a correct copy of the original or a specific part thereof that must be under the official seal of the attesting officer. If the foreign law was not proven pursuant to Sections 24 and 25 of Rule 132 of the Revised Rules on Evidence then the doctrine of processual presumption will be applied.

Time and time again, the Supreme Court has made it clear that save for the most persuasive of reasons, strict compliance with procedural requirements must be observed to facilitate the orderly administration of justice. Strict compliance with the requirements under the Revised Rules on Evidence is mandatory in order to admit and recognize foreign law in our jurisdiction.

#doctrineofprocessualpresumption #processualpresumption #foreignlaw #foreignlawproofphilippines #foreignlawphilippinecourts 

Ramon Vaughn F. Dy III is a graduate of the Ateneo de Manila University School of Law and an associate of Mata-Perez, Tamayo & Francisco (MTF Counsel).

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