Remedial Law; Motion to Dismiss; Appeal; An order denying a motion to dismiss is

not reviewable by the appellate courts except when it is clear in the records that the

trial court has no alternative but to dismiss the complaint.—A preliminary matter to

be threshed out is the procedural issue of whether the petition for certiorari under

Rule 65 of the Revised Rules of Court can be availed of to question the order denying

petitioner’s motion to dismiss. The general rule is that an order denying a motion to

dismiss is not reviewable by the appellate courts, the remedy of the movant being to

file his answer and to proceed with the hearing before the trial court. But the general

rule admits of exceptions, and one of these is when it is very clear in the records that

the trial court has no alternative but to dismiss the complaint (Philippine National

Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service Commission, 216

SCRA 114 [1992]). In such a case, it would be a sheer waste of time and energy to

require the parties to undergo the rigors of a trial.

Public International Law; Diplomatic Immunity; Non-suability; Courts and Practices;

A state or international agency requests the Foreign Office of the state where it is sued

to convey to the court that it is entitled to immunity.—In Public International Law,

when a state or international agency wishes to plead sovereign or diplomatic

immunity in a foreign court, it requests the Foreign Office of the state where it is sued

to convey to the court that said defendant is entitled to immunity.

Same; Same; Same; In the Philippines, the practice is for the government sovereign or

the international organization to first secure an executive endorsement of its claim of

sovereign or diplomatic immunity.—In the Philippines, the practice is for the foreign

government or the international organization to first secure an executive endorsement

of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign

Office conveys its endorsement to the courts varies. In International Catholic

Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign

Affairs just sent a letter directly to the Secretary of Labor and Employment, informing

the latter that the respondent-employer could not be sued because it enjoyed

diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972),

the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v.

Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to

request the Solicitor General to make, in behalf of the Commander of the United

States Naval Base at Olongapo City, Zambales, a “suggestion” to respondent Judge.

The Solicitor General embodied the “suggestion” in a Manifestation and

Memorandum as amicus curiae.

Same; Same; Same.—In the case at bench, the Department of Foreign Affairs, through

the Office of Legal Affairs moved with this Court to be allowed to intervene on the side

of petitioner. The Court allowed the said Department to file its memorandum in

support of petitioner’s claim of sovereign immunity.

Same; Same; Same; Statehood; In 1929, through the Lateran Treaty, Italy recognized

the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican

City.—In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy

recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the

Vatican City. It also recognized the right of the Holy See to receive foreign diplomats,

to send its own diplomats to foreign countries, and to enter into treaties according to

International Law (Garcia, Questions and Problems In International Law, Public and

Private 81 [1948]).

Same; Same; Same; Same; The Lateran Treaty established the statehood of the

Vatican City.—The Lateran Treaty established the statehood of the Vatican City “for

the purpose of assuring to the Holy See absolute and visible independence and of

guaranteeing to it indisputable sovereignty also in the field of international relations”

(O’Connell, I International Law 311 [1965]).

Same; Same; Same; Same; Despite its size and object, the Vatican City has an

independent government of its own, with the Pope, who is also head of the Roman

Catholic Church, as the Holy See or Head of State, in conformity with its traditions,

and the demands of its mission in the world.—The Vatican City fits into none of the

established categories of states, and the attribution to it of “sovereignty” must be

made in a sense different from that in which it is applied to other states (Fenwick,

International Law 124-125 [1948]; Cruz, International Law 37 [1991]). In a

community of national states, the Vatican City represents an entity organized not for

political but for ecclesiastical purposes and international objects. Despite its size and

object, the Vatican City has an independent government of its own, with the Pope,

who is also head of the Roman Catholic Church, as the Holy See or Head of State, in

conformity with its traditions, and the demands of its mission in the world. Indeed,

the world-wide interests and activities of the Vatican City are such as to make it in a

sense an “international state” (Fenwick, supra. 125; Kelsen, Principles of International

Law 160 [1956]).

Same; Same; Same; Same; Same; It is the Holy See that is the international person.—

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions

as the Holy See and not in the name of the Vatican City, one can conclude that in the

Pope’s own view, it is the Holy See that is the international person.

Same; Same; Same; The Holy See, through its Ambassador, the Papal Nuncio, has had

diplomatic representations with the Philippine government since 1957.—The Republic

of the Philippines has accorded the Holy See the status of a foreign sovereign. The

Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic

representations with the Philippine government since 1957 (Rollo, p. 87). This

appears to be the universal practice in international relations.

Same; Same; Same; The right of a foreign sovereign to acquire property, real or

personal, in a receiving state, necessary for the creation and maintenance of its

diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic

Relations.—Lot 5-A was acquired by petitioner as a donation from the Archdiocese of

Manila. The donation was made not for commercial purpose, but for the use of

petitioner to construct thereon the official place of residence of the Papal Nuncio. The

right of a foreign sovereign to acquire property, real or personal, in a receiving state,

necessary for the creation and maintenance of its diplomatic mission, is recognized in

the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was

concurred in by the Philippine Senate and entered into force in the Philippines on

November 15, 1965.

Same; Same; Same; Petitioner did not sell Lot 5-A for profit or gain. It merely wanted

to dispose off the same because the squatters living thereon made it almost impossible

for petitioner to use it for the purpose of the donation.—The decision to transfer the

property and the subsequent disposal thereof are likewise clothed with a

governmental character. Petitioner did not sell Lot 5-A for profit or gain. It merely

wanted to dispose off the same because the squatters living thereon made it almost

impossible for petitioner to use it for the purpose of the donation. The fact that

squatters have occupied and are still occupying the lot, and that they stubbornly

refuse to leave the premises, has been admitted by private respondent in its complaint

(Rollo, pp. 26, 27).

Same; Same; Same; The issue of Petitioner’s non-suability can be determined by the

trial court without going to trial in the light of the pleadings, particularly the

admission of the private respondent.—The issue of petitioner’s non-suability can be

determined by the trial court without going to trial in the light of the pleadings,

particularly the admission of private respondent. Besides, the privilege of sovereign

immunity in this case was sufficiently established by the Memorandum and

Certification of the Department of Foreign Affairs. As the department tasked with the

conduct of the Philippines’ foreign relations (Administrative Code of 1987, Book IV,

Title I, Sec. 3), the Department of Foreign Affairs has formally intervened in this case

and officially certified that the Embassy of the Holy See is a duly accredited

diplomatic mission to the Republic of the Philippines exempt from local jurisdiction

and entitled to all the rights, privileges and immunities of a diplomatic mission or

embassy in this country (Rollo, pp. 156-157). The determination of the executive arm

of government that a state or instrumentality is entitled to sovereign or diplomatic

immunity is a political question that is conclusive upon the courts (International

Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of

immunity is recognized and affirmed by the executive branch, it is the duty of the

courts to accept this claim so as not to embarrass the executive arm of the government

in conducting the country’s foreign relations (World Health Organization v. Aquino,

48 SCRA 242 [1972]). As in International Catholic Migration Commission and in

World Health Organization, we abide by the certification of the Department of

Foreign Affairs.

Same; Same; Same; Under both Public International Law and Transnational Law, a

person who feels aggrieved by the acts of a foreign sovereign can ask his own

government to espouse his cause through diplomatic channels.—Private respondent is

not left without any legal remedy for the redress of its grievances. Under both Public

International Law and Transnational Law, a person who feels aggrieved by the acts of

a foreign sovereign can ask his own government to espouse his cause through

diplomatic channels.

Same; Same; Same; Private respondent can ask the Philippine government, through

the Foreign Office, to espouse its claims against the Holy See.—Private respondent

can ask the Philippine government, through the Foreign Office, to espouse its claims

against the Holy See. Its first task is to persuade the Philippine government to take up

with the Holy See the validity of its claims. Of course, the Foreign Office shall first

make a determination of the impact of its espousal on the relations between the

Philippine government and the Holy See (Young, Remedies of Private Claimants

Against Foreign States, Selected Readings on Protection by Law of Private Foreign

Investments 905, 919 [1964]). Once the Philippine government decides to espouse the

claim, the latter ceases to be a private cause. [Holy See, The vs. Rosario, Jr., 238 SCRA

524(1994)]

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 101949 December 1, 1994

THE HOLY SEE, petitioner,

vs.

THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the

Regional Trial Court of Makati, Branch 61 and STARBRIGHT SALES

ENTERPRISES, INC., respondents.

Padilla Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse

and set aside the Orders dated June 20, 1991 and September 19, 1991 of the Regional

Trial Court, Branch 61, Makati, Metro Manila in Civil Case No. 90-183.

The Order dated June 20, 1991 denied the motion of petitioner to dismiss the

complaint in Civil Case No. 90-183, while the Order dated September 19, 1991 denied

the motion for reconsideration of the June 20,1991 Order.

Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome,

Italy, and is represented in the Philippines by the Papal Nuncio.

Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation

engaged in the real estate business.

This petition arose from a controversy over a parcel of land consisting of 6,000 square

meters (Lot 5-A, Transfer Certificate of Title No. 390440) located in the Municipality

of Parañaque, Metro Manila and registered in the name of petitioner.

Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer

Certificates of Title Nos. 271108 and 265388 respectively and registered in the name

of the Philippine Realty Corporation (PRC).

The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr.,

acting as agent to the sellers. Later, Licup assigned his rights to the sale to private

respondent.

In view of the refusal of the squatters to vacate the lots sold to private respondent, a

dispute arose as to who of the parties has the responsibility of evicting and clearing

the land of squatters. Complicating the relations of the parties was the sale by

petitioner of Lot 5-A to Tropicana Properties and Development Corporation

(Tropicana).

I

On January 23, 1990, private respondent filed a complaint with the Regional Trial

Court, Branch 61, Makati, Metro Manila for annulment of the sale of the three parcels

of land, and specific performance and damages against petitioner, represented by the

Papal Nuncio, and three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the

PRC and Tropicana (Civil Case No.

90-183).

The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of

petitioner and the PRC, agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the

price of P1,240.00 per square meters; (2) the agreement to sell was made on the

condition that earnest money of P100,000.00 be paid by Licup to the sellers, and that

the sellers clear the said lots of squatters who were then occupying the same; (3)

Licup paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup assigned

his rights over the property to private respondent and informed the sellers of the said

assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos that the

sellers fulfill their undertaking and clear the property of squatters; however, Msgr.

Cirilos informed private respondent of the squatters' refusal to vacate the lots,

proposing instead either that private respondent undertake the eviction or that the

earnest money be returned to the latter; (6) private respondent counterproposed that

if it would undertake the eviction of the squatters, the purchase price of the lots

should be reduced from P1,240.00 to P1,150.00 per square meter; (7) Msgr. Cirilos

returned the earnest money of P100,000.00 and wrote private respondent giving it

seven days from receipt of the letter to pay the original purchase price in cash; (8)

private respondent sent the earnest money back to the sellers, but later discovered

that on March 30, 1989, petitioner and the PRC, without notice to private respondent,

sold the lots to Tropicana, as evidenced by two separate Deeds of Sale, one over Lot 5-

A, and another over Lots 5-B and 5-D; and that the sellers' transfer certificate of title

over the lots were cancelled, transferred and registered in the name of Tropicana; (9)

Tropicana induced petitioner and the PRC to sell the lots to it and thus enriched itself

at the expense of private respondent; (10) private respondent demanded the

rescission of the sale to Tropicana and the reconveyance of the lots, to no avail; and

(11) private respondent is willing and able to comply with the terms of the contract to

sell and has actually made plans to develop the lots into a townhouse project, but in

view of the sellers' breach, it lost profits of not less than P30,000.000.00.

Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between

petitioner and the PRC on the one hand, and Tropicana on the other; (2) the

reconveyance of the lots in question; (3) specific performance of the agreement to sell

between it and the owners of the lots; and (4) damages.

On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the

complaint — petitioner for lack of jurisdiction based on sovereign immunity from suit,

and Msgr. Cirilos for being an improper party. An opposition to the motion was filed

by private respondent.

On June 20, 1991, the trial court issued an order denying, among others, petitioner's

motion to dismiss after finding that petitioner "shed off [its] sovereign immunity by

entering into the business contract in question" (Rollo, pp. 20-21).

On July 12, 1991, petitioner moved for reconsideration of the order. On August 30,

1991, petitioner filed a "Motion for a Hearing for the Sole Purpose of Establishing

Factual Allegation for claim of Immunity as a Jurisdictional Defense." So as to

facilitate the determination of its defense of sovereign immunity, petitioner prayed

that a hearing be conducted to allow it to establish certain facts upon which the said

defense is based. Private respondent opposed this motion as well as the motion for

reconsideration.

On October 1, 1991, the trial court issued an order deferring the resolution on the

motion for reconsideration until after trial on the merits and directing petitioner to

file its answer (Rollo, p. 22).

Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the

privilege of sovereign immunity only on its own behalf and on behalf of its official

representative, the Papal Nuncio.

On December 9, 1991, a Motion for Intervention was filed before us by the

Department of Foreign Affairs, claiming that it has a legal interest in the outcome of

the case as regards the diplomatic immunity of petitioner, and that it "adopts by

reference, the allegations contained in the petition of the Holy See insofar as they

refer to arguments relative to its claim of sovereign immunity from suit" (Rollo, p.

87).

Private respondent opposed the intervention of the Department of Foreign Affairs. In

compliance with the resolution of this Court, both parties and the Department of

Foreign Affairs submitted their respective memoranda.

II

A preliminary matter to be threshed out is the procedural issue of whether the

petition for certiorari under Rule 65 of the Revised Rules of Court can be availed of to

question the order denying petitioner's motion to dismiss. The general rule is that an

order denying a motion to dismiss is not reviewable by the appellate courts, the

remedy of the movant being to file his answer and to proceed with the hearing before

the trial court. But the general rule admits of exceptions, and one of these is when it is

very clear in the records that the trial court has no alternative but to dismiss the

complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v.

Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer

waste of time and energy to require the parties to undergo the rigors of a trial.

The other procedural question raised by private respondent is the personality or legal

interest of the Department of Foreign Affairs to intervene in the case in behalf of the

Holy See (Rollo, pp. 186-190).

In Public International Law, when a state or international agency wishes to plead

sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of

the state where it is sued to convey to the court that said defendant is entitled to

immunity.

In the United States, the procedure followed is the process of "suggestion," where the

foreign state or the international organization sued in an American court requests the

Secretary of State to make a determination as to whether it is entitled to immunity. If

the Secretary of State finds that the defendant is immune from suit, he, in turn, asks

the Attorney General to submit to the court a "suggestion" that the defendant is

entitled to immunity. In England, a similar procedure is followed, only the Foreign

Office issues a certification to that effect instead of submitting a "suggestion"

(O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of Foreign

Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).

In the Philippines, the practice is for the foreign government or the international

organization to first secure an executive endorsement of its claim of sovereign or

diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement

to the courts varies. In International Catholic Migration Commission v. Calleja, 190

SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the

Secretary of Labor and Employment, informing the latter that the respondent-

employer could not be sued because it enjoyed diplomatic immunity. In World Health

Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent

the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S.

Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to

make, in behalf of the Commander of the United States Naval Base at Olongapo City,

Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the

"suggestion" in a Manifestation and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal

Affairs moved with this Court to be allowed to intervene on the side of petitioner. The

Court allowed the said Department to file its memorandum in support of petitioner's

claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local

courts by the respondents through their private counsels (Raquiza v. Bradford, 75

Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1948];

United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In

cases where the foreign states bypass the Foreign Office, the courts can inquire into

the facts and make their own determination as to the nature of the acts and

transactions involved.

III

The burden of the petition is that respondent trial court has no jurisdiction over

petitioner, being a foreign state enjoying sovereign immunity. On the other hand,

private respondent insists that the doctrine of non-suability is not anymore absolute

and that petitioner has divested itself of such a cloak when, of its own free will, it

entered into a commercial transaction for the sale of a parcel of land located in the

Philippines.

A. The Holy See

Before we determine the issue of petitioner's non-suability, a brief look into its status

as a sovereign state is in order.

Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch

and he, as the Holy See, was considered a subject of International Law. With the loss

of the Papal States and the limitation of the territory under the Holy See to an area of

108.7 acres, the position of the Holy See in International Law became controversial

(Salonga and Yap, Public International Law 36-37 [1992]).

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy

recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the

Vatican City. It also recognized the right of the Holy See to receive foreign diplomats,

to send its own diplomats to foreign countries, and to enter into treaties according to

International Law (Garcia, Questions and Problems In International Law, Public and

Private 81 [1948]).

The Lateran Treaty established the statehood of the Vatican City "for the purpose of

assuring to the Holy See absolute and visible independence and of guaranteeing to it

indisputable sovereignty also in the field of international relations" (O'Connell, I

International Law 311 [1965]).

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the

statehood is vested in the Holy See or in the Vatican City. Some writers even

suggested that the treaty created two international persons — the Holy See and

Vatican City (Salonga and Yap, supra, 37).

The Vatican City fits into none of the established categories of states, and the

attribution to it of "sovereignty" must be made in a sense different from that in which

it is applied to other states (Fenwick, International Law 124-125 [1948]; Cruz,

International Law 37 [1991]). In a community of national states, the Vatican City

represents an entity organized not for political but for ecclesiastical purposes and

international objects. Despite its size and object, the Vatican City has an independent

government of its own, with the Pope, who is also head of the Roman Catholic

Church, as the Holy See or Head of State, in conformity with its traditions, and the

demands of its mission in the world. Indeed, the world-wide interests and activities of

the Vatican City are such as to make it in a sense an "international state" (Fenwick,

supra., 125; Kelsen, Principles of International Law 160 [1956]).

One authority wrote that the recognition of the Vatican City as a state has significant

implication — that it is possible for any entity pursuing objects essentially different

from those pursued by states to be invested with international personality (Kunz, The

Status of the Holy See in International Law, 46 The American Journal of International

Law 308 [1952]).

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions

as the Holy See and not in the name of the Vatican City, one can conclude that in the

Pope's own view, it is the Holy See that is the international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign

sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had

diplomatic representations with the Philippine government since 1957 (Rollo, p. 87).

This appears to be the universal practice in international relations.

B. Sovereign Immunity

As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the

generally accepted principles of International Law. Even without this affirmation,

such principles of International Law are deemed incorporated as part of the law of the

land as a condition and consequence of our admission in the society of nations

(United States of America v. Guinto, 182 SCRA 644 [1990]).

There are two conflicting concepts of sovereign immunity, each widely held and firmly

established. According to the classical or absolute theory, a sovereign cannot, without

its consent, be made a respondent in the courts of another sovereign. According to the

newer or restrictive theory, the immunity of the sovereign is recognized only with

regard to public acts or acts jure imperii of a state, but not with regard to private acts

or acts jure gestionis

(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-

Santiago, Public International Law 194 [1984]).

Some states passed legislation to serve as guidelines for the executive or judicial

determination when an act may be considered as jure gestionis. The United States

passed the Foreign Sovereign Immunities Act of 1976, which defines a commercial

activity as "either a regular course of commercial conduct or a particular commercial

transaction or act." Furthermore, the law declared that the "commercial character of

the activity shall be determined by reference to the nature of the course of conduct or

particular transaction or act, rather than by reference to its purpose." The Canadian

Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts.

The Act defines a "commercial activity" as any particular transaction, act or conduct

or any regular course of conduct that by reason of its nature, is of a "commercial

character."

The restrictive theory, which is intended to be a solution to the host of problems

involving the issue of sovereign immunity, has created problems of its own. Legal

treatises and the decisions in countries which follow the restrictive theory have

difficulty in characterizing whether a contract of a sovereign state with a private party

is an act jure gestionis or an act jure imperii.

The restrictive theory came about because of the entry of sovereign states into purely

commercial activities remotely connected with the discharge of governmental

functions. This is particularly true with respect to the Communist states which took

control of nationalized business activities and international trading.

This Court has considered the following transactions by a foreign state with private

parties as acts jure imperii: (1) the lease by a foreign government of apartment

buildings for use of its military officers (Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the

conduct of public bidding for the repair of a wharf at a United States Naval Station

(United States of America v. Ruiz, supra.); and (3) the change of employment status

of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).

On the other hand, this Court has considered the following transactions by a foreign

state with private parties as acts jure gestionis: (1) the hiring of a cook in the

recreation center, consisting of three restaurants, a cafeteria, a bakery, a store, and a

coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to

American servicemen and the general public (United States of America v. Rodrigo,

182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in Clark

Air Base in Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]).

The operation of the restaurants and other facilities open to the general public is

undoubtedly for profit as a commercial and not a governmental activity. By entering

into the employment contract with the cook in the discharge of its proprietary

function, the United States government impliedly divested itself of its sovereign

immunity from suit.

In the absence of legislation defining what activities and transactions shall be

considered "commercial" and as constituting acts jure gestionis, we have to come out

with our own guidelines, tentative they may be.

Certainly, the mere entering into a contract by a foreign state with a private party

cannot be the ultimate test. Such an act can only be the start of the inquiry. The

logical question is whether the foreign state is engaged in the activity in the regular

course of business. If the foreign state is not engaged regularly in a business or trade,

the particular act or transaction must then be tested by its nature. If the act is in

pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii,

especially when it is not undertaken for gain or profit.

As held in United States of America v. Guinto, (supra):

There is no question that the United States of America, like any

other state, will be deemed to have impliedly waived its non-

suability if it has entered into a contract in its proprietary or private

capacity. It is only when the contract involves its sovereign or

governmental capacity that no such waiver may be implied.

In the case at bench, if petitioner has bought and sold lands in the ordinary course of

a real estate business, surely the said transaction can be categorized as an act jure

gestionis. However, petitioner has denied that the acquisition and subsequent

disposal of Lot 5-A were made for profit but claimed that it acquired said property for

the site of its mission or the Apostolic Nunciature in the Philippines. Private

respondent failed to dispute said claim.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The

donation was made not for commercial purpose, but for the use of petitioner to

construct thereon the official place of residence of the Papal Nuncio. The right of a

foreign sovereign to acquire property, real or personal, in a receiving state, necessary

for the creation and maintenance of its diplomatic mission, is recognized in the 1961

Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred

in by the Philippine Senate and entered into force in the Philippines on November 15,

1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the

civil and administrative jurisdiction of the receiving state over any real action relating

to private immovable property situated in the territory of the receiving state which the

envoy holds on behalf of the sending state for the purposes of the mission. If this

immunity is provided for a diplomatic envoy, with all the more reason should

immunity be recognized as regards the sovereign itself, which in this case is the Holy

See.

The decision to transfer the property and the subsequent disposal thereof are likewise

clothed with a governmental character. Petitioner did not sell Lot

5-A for profit or gain. It merely wanted to dispose off the same because the squatters

living thereon made it almost impossible for petitioner to use it for the purpose of the

donation. The fact that squatters have occupied and are still occupying the lot, and

that they stubbornly refuse to leave the premises, has been admitted by private

respondent in its complaint (Rollo, pp. 26, 27).

The issue of petitioner's non-suability can be determined by the trial court without

going to trial in the light of the pleadings, particularly the admission of private

respondent. Besides, the privilege of sovereign immunity in this case was sufficiently

established by the Memorandum and Certification of the Department of Foreign

Affairs. As the department tasked with the conduct of the Philippines' foreign

relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of

Foreign Affairs has formally intervened in this case and officially certified that the

Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the

Philippines exempt from local jurisdiction and entitled to all the rights, privileges and

immunities of a diplomatic mission or embassy in this country (Rollo, pp. 156-157).

The determination of the executive arm of government that a state or instrumentality

is entitled to sovereign or diplomatic immunity is a political question that is

conclusive upon the courts (International Catholic Migration Commission v. Calleja,

190 SCRA 130 [1990]). Where the plea of immunity is recognized and affirmed by the

executive branch, it is the duty of the courts to accept this claim so as not to

embarrass the executive arm of the government in conducting the country's foreign

relations (World Health Organization v. Aquino, 48 SCRA 242 [1972]). As in

International Catholic Migration Commission and in World Health Organization, we

abide by the certification of the Department of Foreign Affairs.

Ordinarily, the procedure would be to remand the case and order the trial court to

conduct a hearing to establish the facts alleged by petitioner in its motion. In view of

said certification, such procedure would however be pointless and unduly circuitous

(Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No. 109645, July 25,

1994).

IV

Private respondent is not left without any legal remedy for the redress of its

grievances. Under both Public International Law and Transnational Law, a person

who feels aggrieved by the acts of a foreign sovereign can ask his own government to

espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to

espouse its claims against the Holy See. Its first task is to persuade the Philippine

government to take up with the Holy See the validity of its claims. Of course, the

Foreign Office shall first make a determination of the impact of its espousal on the

relations between the Philippine government and the Holy See (Young, Remedies of

Private Claimants Against Foreign States, Selected Readings on Protection by Law of

Private Foreign Investments 905, 919 [1964]). Once the Philippine government

decides to espouse the claim, the latter ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the

International Court of Justice:

By taking up the case of one of its subjects and by reporting to

diplomatic action or international judicial proceedings on his

behalf, a State is in reality asserting its own rights — its right to

ensure, in the person of its subjects, respect for the rules of

international law (The Mavrommatis Palestine Concessions, 1

Hudson, World Court Reports 293, 302 [1924]).

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil

Case No. 90-183 against petitioner is DISMISSED.

SO ORDERED.

Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,

Kapunan and Mendoza, JJ., concur.

Padilla, J., took no part.

Citizenship; Aliens; Immigration Law; Marriage; International Law; The civil status of

an alien applicant for admission as a temporary visitor is a matter that could influence

the exercise of discretion on the part of the immigration authorities.—There was a

blatant abuse of our immigration laws in effecting petitioner’s entry into “the country

and the change of her immigration status from temporary visitor to pe rmanent

resident. All such privileges were obtained through misrepresentation. Never was the

marriage of petitioner to Banez disclosed to the immigration authorities in her

applications for temporary visitor’s visa and for permanent residency. The civil status

of an alien applicant for admission as a temporary visitor is a matter that could

influence the exercise of discretion on the part of the immigration authorities. The

immigration authorities would be less inclined to allow the entry of a woman who

claims to have entered into a marriage with a Filipino citizen, who is married to

another woman (Cf. Shiu Shun Man v. Galang, 3 SCRA 871 [1961]).

Same; Same; Same; Same; Same; The right of the President to expel or deport aliens

whose presence is deemed inimical to the public interest is generally as absolute and

unqualified as the right to prohibit and prevent their entry into the country.—

Generally, the right of the President to expel or deport aliens whose presence is

deemed inimical to the public interest is as absolute and unqualified as the right to

prohibit and prevent their entry into the country (Annotations, 8 ALR 1286). This

right is based on the fact that since the aliens are not part of the nation, their

admission into the territory is a matter of pure permission and simple tolerance which

creates no obligation on the part of the government to permit them to stay (3 Am. Jur.

2d. 72).

Same; Same; Same; Same; Same; There is no law guaranteeing aliens married to

Filipino citizens the right to be admitted, much less to be given permanent residency,

in the Philippines.—The interest, which an alien has in being admitted into or allowed

to continue to reside in the country, is protected only so far as Congress may choose to

protect it (United States ex rel. Kaloudis v. Shaughnessy, 180 F. 2d. 489). There is no

law guaranteeing aliens married to Filipino citizens the right to be admitted, much

less to be given permanent residency, in the Philippines.

Same; Same; Same; Same; Same; Conflict of Laws; Marriage of an alien woman to a

Filipino husband does not ipso facto make her a Filipino citizen and does not excuse

her from her failure to depart from the country upon the expiration of her extended

stay here as an alien.—The fact of marriage by an alien to a citizen does not withdraw

her from the operation of the immigration laws governing the admission and

exclusion of aliens (United States ex rel. Knauff v. Shaughnessy, 338 US 537 94 L. Ed.

317, 70 S. Ct. 309 [1950]; Low Wah Suey v. Backus, 225 US 460 56 L. Ed. 1165, 32 S.

Ct. 734 [1912]; Annotations, 71 ALR 1213). Marriage of an alien woman to a Filipino

husband does not ipso facto make her a Filipino citizen and does not excuse her from

her failure to depart from the country upon the expiration of her extended stay here as

an alien (Joaquin v. Galang, 33 SCRA 362 [1970]).

Same; Same; Same; Same; Same; The entry of aliens into the country and their

admission as immigrants is not a matter of right, even if they are legally married to

Filipino citizens.—Under Section 9 of the Immigration Act of 1940, it is not

mandatory for the CID to admit any alien who applies for a visitor’s visa. Once

admitted into the country, the alien has no right to an indefinite stay. Under Section

13 of the law, an alien allowed to stay temporarily may apply for a change of status

and “may be admitted” as a permanent resident. Among those considered qualified to

apply for permanent residency is the wife or husband of a Philippine citizen

(Immigration Act of 1940, Sec. 13[a]). The entry of aliens into the country and their

admission as immigrants is not a matter of right, even if they are legally married to

Filipino citizens.

Same; Same; Same; Prescription; The right to deport an alien who enters the

Philippines by means of false and misleading statements (Sec. 37[a], Immigration Act

of 1940) prescribes after five (5) years from the time the cause for deportation arises.

—Under clause 1 of Section 37(a), an “alien who enters the Philippines after the

effective date of this Act by means of false and misleading statements or without

inspection and admission by the immigration authorities at a designated port of entry

or at any place other than at a designated port of entry” is subject to deportation. The

deportation of an alien under said clause of Section 37(a) has a prescriptive period

and “shall not be effected x x x unless the arrest in the deportation proceedings is

made within five years after the cause for deportation arises” (Immigration Act of

1940, Sec. 37[b]). Congress may impose a limitation of time for the deportation of

alien from the country (Costanzo v. Tillinghast, 287 US 341 77 L. Ed. 350, 53 S. Ct. 152

[1932]; Guiney v. Bonham [CA 9] 261 F. 582, 8 ALR 1282).

Same; Same; Same; Same; The prescriptive period for deportation is counted from the

time the fact of illegal entry is brought to the attention of the immigration authorities.

—The right of public respondents to deport petitioner has prescribed. Petitioner was

admitted and allowed entry into the Philippines on January 13, 1979 on the basis of

false and misleading statements in her application and in the other supporting

documents submitted to the immigration authorities. Leonardo C. Banez first

complained with the CID on November 19, 1980 about the manner petitioner was

admitted into the country and asked for her deportation (Rollo, pp. 77–78). After the

EDSA Revolution, he sent a follow-up letter to the CID requesting action on his 1980

letter-complaint (Rollo, p. 78). Tolling the prescriptive period from November

19,1980, when Leonardo C. Banez informed the CID of the illegal entry of petitioner

into the country, more than five years had elapsed before the issuance of the order of

her deportation on September 27, 1990.

Same; Same; Same; Same; Arrests and Seizures; The “arrest” contemplated by Sec.

37(b) of the Immigration Act of 1940 refers to the arrest for the purpose of carrying

out an order for deportation and not the arrest prior to proceedings to determine the

right of the alien to stay in the country.—In their Comment, public respondents urged

that what is barred under Section 37(b) is the deportation of an alien and claimed that

what they ordered was not the deportation of petitioner but merely the revocation of

Section 13(a) which refers to the visa previously granted her (Rollo, p. 102), The

“arrest” contemplated by Section 37(b) refers to the arrest for the purpose of carrying

out an order for deportation and not the arrest prior to proceedings to determine the

right of the alien to stay in the country. When public respondents revoked the

permanent residence visa issued to petitioner, they, in effect, ordered her arrest and

deportation as an overstaying alien. [Djumantan vs. Domingo, 240 SCRA 746(1995)]

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 99358 January 30, 1995

DJUMANTAN, petitioner,

vs.

HON. ANDREA D. DOMINGO, COMMISSIONER OF THE BOARD OF

IMMIGRATION, HON. REGINO R. SANTIAGO and HON. JORGE V.

SARMIENTO, COMMISSIONERS BUREAU OF IMMIGRATION AND

DEPORTATION, respondents.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court with

preliminary injunction, to reverse and set aside the Decision dated September 27,

1990 of the Commission on Immigration and Deportation (CID), ordering the

deportation of petitioner and its Resolution dated January 29, 1991, denying the

motion for reconsideration.

I

Bernard Banez, the husband of Marina Cabael, went to Indonesia as a contract

worker.

On April 3, 1974, he embraced and was converted to Islam. On May 17, 1974, he

married petitioner in accordance with Islamic rites. He returned to the Philippines in

January 1979.

On January 13, 1979, petitioner and her two children with Banez, (two-year old

Marina and nine-month old Nikulas) arrived in Manila as the "guests" of Banez. The

latter made it appear that he was just a friend of the family of petitioner and was

merely repaying the hospitability extended to him during his stay in Indonesia.

When petitioner and her two children arrived at the Ninoy Aquino International

Airport on January 13, 1979, Banez, together with Marina Cabael, met them.

Banez executed an "Affidavit of Guaranty and Support," for his "guests," stating inter

alia, that:

That I am the guarantor for the entry into the Philippines of Mrs.

Djumantan, 42 years old, and her two minor children, MARINA, 2

years old, and NIKULAS, 9 months old, all Indonesian citizens, who

are coming as temporary visitors.

That I am willing to guaranty them out of gratitude to their family

for the hospitality they have accorded me during the few years that I

have stayed in Indonesia in connection with my employment

thereat.

That I guaranty they are law abiding citizens and I guaranty their

behavior while they are in the Philippines; I also guaranty their

support and that they will not become a public charge.

That I guaranty their voluntary departure upon the termination of

the authorized stay granted them by the Government (Rollo, p. 41).

As "guests," petitioner and her two children lived in the house of Banez.

Petitioner and her children were admitted to the Philippines as temporary visitors

under Section 9(a) of the Immigration Act of 1940.

In 1981, Marina Cabael discovered the true relationship of her husband and

petitioner. She filed a complaint for "concubinage" with the Municipal Trial Court of

Urdaneta, Pangasinan against the two. This case was, however, dismissed for lack of

merit.

On March 25, 1982, the immigration status of petitioner was changed from temporary

visitor to that of permanent resident under Section 13(a) of the same law. On April 14,

1982, petitioner was issued an alien certificate of registration.

Not accepting the set-back, Banez' eldest son, Leonardo, filed a letter complaint with

the Ombudsman, who subsequently referred the letter to the CID. On the basis of the

said letter, petitioner was detained at the CID detention cell. She later released

pending the deportation proceedings (DEP Case No. 90-400) after posting a cash

bond (Rollo, pp. 15-16). Thereafter, she manifested to the CID that she be allowed to

depart voluntarily from the Philippines and asked for time to purchase her airline

ticket (Rollo, p. 10). However, she a change of heart and moved for the dismissal of

the deportation case on the ground that she was validly married to a Filipino citizen

(Rollo, pp. 11-12).

In the Decision dated September 27, 1990, the CID, through public respondents,

disposed as follows:

WHEREFORE, IN VIEW OF THE FOREGOING, the Board of

Commissioners finds the second marriage of Bernardo Banes to

respondent Djumantan irregular and not in accordance with the

laws of the Philippines. We revoke the Section 13(a) visa previously

granted to her (Rollo, p. 23).

Public respondents denied petitioner's motion for reconsideration in their Resolution

dated January 29, 1991 (Rollo, pp. 31-33).

Hence, this petition.

We issued a temporary restraining order, directing public respondents to cease and

desist from executing or implementing the Decision dated September 27, 1990 and

the Resolution dated January 29, 1991 (Rollo, pp. 34-36).

On September 20, 1994, Leonardo C. Banez manifested that his father died on August

14, 1994 and that he and his mother were withdrawing their objection to the granting

of a permanent resident visa to petitioner (Rollo, pp. 173-175).

II

Petitioner claims that her marriage to Banez was valid under Article 27 of P.D. No.

1085, the Muslim Code, which recognizes the practice of polyandry by Muslim males.

From that premise, she argues that under Articles 109 of the Civil Code of the

Philippines, Article 68 of the Family Code and Article 34 of the Muslim Code, the

husband and wife are obliged to live together and under Article 110 of the Civil Code

of the Philippines, the husband is given the right to fix the conjugal residence. She

claims that public respondents have no right to order the couple to live separately

(Rollo, pp. 5-7).

When asked to comment on the petition, the Solicitor General took the position that

the CID could not order petitioner's deportation because its power to do so had

prescribed under Section 37 (b) of the Immigration Act of 1940 (Rollo, pp. 57-74).

III

We need not resolve the validity of petitioner's marriage to Banez, if under the law the

CID can validly deport petitioner as an "undesirable alien" regardless of her marriage

to a Filipino citizen. Therefore, to be first resolved is the question on petitioner's

immigration status, particularly the legality of her admission into the country and the

change of her status from temporary visitor to permanent resident. Upon a finding

that she was not lawfully admitted into the country and she did not lawfully acquire

permanent residency, the next question is whether the power to deport her has

prescribed.

There was a blatant abuse of our immigration laws in effecting petitioner's entry into

the country and the change of her immigration status from temporary visitor to

permanent resident. All such privileges were obtained through misinterpretation.

Never was the marriage of petitioner to Banez disclosed to the immigration

authorities in her applications for temporary visitor's visa and for permanent

residency.

The civil status of an alien applicant for admission as a temporary visitor is a matter

that could influence the exercise of discretion on the part of the immigration

authorities. The immigration authorities would be less inclined to allow the entry of a

woman who claims to have entered into a marriage with a Filipino citizen, who is

married to another woman (Cf. Shiu Shin Man v. Galang, 3 SCRA 871 [1961]).

Generally, the right of the President to expel or deport aliens whose presence is

deemed inimical to the public interest is as absolute and unqualified as the right to

prohibit and prevent their entry into the country (Annotations, 8 ALR 1286). this

right is based on the fact that since the aliens are not part of the nation, their

admission into the territory is a matter of pure permission and simple tolerance which

creates no obligation on the part of the government to permit them to stay (3 Am. Jur.

2d. 72).

The interest, which an alien has in being admitted into or allowed to continue to

reside in the country, is protected only so far as Congress may choose to protect it

(United States ex rel. Kaloudis v. Shauhnessy 180 F. 2d. 489).

There is no law guaranteeing aliens married to Filipino citizens the right to be

admitted, much less to be given permanent residency, in the Philippines.

The fact of marriage by an alien to a citizen does not withdraw her from the operation

of the immigration laws governing the admission and exclusion of aliens (United

States ex rel. Knauff v. Shauhnessy, 338 US 537 94 L. Ed. 317, 70 S. Ct. 309 [1950];

Low Wah Suey v. Backus, 225 US 460 56 L. Ed. 1165, 32 S. Ct. 734 [1912];

Annotations, 71 ALR 1213). Marriage of an alien woman to a Filipino husband does

not ipso facto make her a Filipino citizen and does not excuse her from her failure to

depart from the country upon the expiration of her extended stay here as an alien

(Joaquin v. Galang, 33 SCRA 362 [1970]).

Under Section 9 of the Immigration Act of 1940, it is not mandatory for the CID to

admit any alien who applies for a visitor's visa. Once admitted into the country, the

alien has no right to an indefinite stay. Under Section 13 of the law, an alien allowed

to stay temporarily may apply for a change of status and "may be admitted" as a

permanent resident. Among those considered qualified to apply for permanent

residency if the wife or husband of a Philippine citizen (Immigration Act of 1940, Sec.

13[a]). The entry of aliens into the country and their admission as immigrants is not a

matter of right, even if they are legally married to Filipino citizens.

IV

We now address the issue raised by the Solicitor General that the right of public

respondents to deport petitioner has prescribed, citing Section 37(b) of the

Immigration Act of 1940.

Said Section 37(b) provides:

Deportation may be effected under clauses 2, 7, 8, 11 and 12 of

paragraph (a) of this section at any time after entry, but shall not be

effected under any clause unless the arrest in the deportation

proceedings is made within five years after the cause for

deportation arises. Deportation under clauses 3 and 4 shall not be

effected if the court, or judge thereof, when sentencing the alien,

shall recommend to the Commissioner of Immigration that the

alien be not deported (As amended by Rep. Act No. 503).

Section 37(a) of the said law mentioned in Section 37(b) thereof provides:

The following aliens shall be arrested upon the warrant of the

Commissioner of Immigration or of any other officer designated by

him for the purpose and deported upon the warrant of the

Commissioner of Immigration after a determination by the Board of