Remedial Law; Motion to Dismiss; Appeal; An order denying a motion to dismiss is recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the not reviewable by the appellate courts except when it is clear in the records that the Vatican City. It also recognized the right of the Holy See to receive foreign diplomats, trial court has no alternative but to dismiss the complaint.—A preliminary matter to to send its own diplomats to foreign countries, and to enter into treaties according to be threshed out is the procedural issue of whether the petition for certiorari under International Law (Garcia, Questions and Problems In International Law, Public and Rule 65 of the Revised Rules of Court can be availed of to question the order denying Private 81 [1948]). 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 Same; Same; Same; Same; The Lateran Treaty established the statehood of the file his answer and to proceed with the hearing before the trial court. But the general Vatican City.—The Lateran Treaty established the statehood of the Vatican City “for rule admits of exceptions, and one of these is when it is very clear in the records that the purpose of assuring to the Holy See absolute and visible independence and of the trial court has no alternative but to dismiss the complaint (Philippine National guaranteeing to it indisputable sovereignty also in the field of international relations” Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service Commission, 216 (O’Connell, I International Law 311 [1965]). 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. 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 Public International Law; Diplomatic Immunity; Non-suability; Courts and Practices; Catholic Church, as the Holy See or Head of State, in conformity with its traditions, A state or international agency requests the Foreign Office of the state where it is sued and the demands of its mission in the world.—The Vatican City fits into none of the to convey to the court that it is entitled to immunity.—In Public International Law, established categories of states, and the attribution to it of “sovereignty” must be when a state or international agency wishes to plead sovereign or diplomatic made in a sense different from that in which it is applied to other states (Fenwick, immunity in a foreign court, it requests the Foreign Office of the state where it is sued International Law 124-125 [1948]; Cruz, International Law 37 [1991]). In a to convey to the court that said defendant is entitled to immunity. 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 Same; Same; Same; In the Philippines, the practice is for the government sovereign or object, the Vatican City has an independent government of its own, with the Pope, the international organization to first secure an executive endorsement of its claim of who is also head of the Roman Catholic Church, as the Holy See or Head of State, in sovereign or diplomatic immunity.—In the Philippines, the practice is for the foreign conformity with its traditions, and the demands of its mission in the world. Indeed, government or the international organization to first secure an executive endorsement the world-wide interests and activities of the Vatican City are such as to make it in a of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign sense an “international state” (Fenwick, supra. 125; Kelsen, Principles of International Office conveys its endorsement to the courts varies. In International Catholic Law 160 [1956]). 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 Same; Same; Same; Same; Same; It is the Holy See that is the international person.— the latter that the respondent-employer could not be sued because it enjoyed Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), as the Holy See and not in the name of the Vatican City, one can conclude that in the the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Pope’s own view, it is the Holy See that is the international person. 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 Same; Same; Same; The Holy See, through its Ambassador, the Papal Nuncio, has had States Naval Base at Olongapo City, Zambales, a “suggestion” to respondent Judge. diplomatic representations with the Philippine government since 1957.—The Republic The Solicitor General embodied the “suggestion” in a Manifestation and of the Philippines has accorded the Holy See the status of a foreign sovereign. The Memorandum as amicus curiae. Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957 (Rollo, p. 87). This Same; Same; Same.—In the case at bench, the Department of Foreign Affairs, through appears to be the universal practice in international relations. 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 Same; Same; Same; The right of a foreign sovereign to acquire property, real or support of petitioner’s claim of sovereign immunity. personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic Same; Same; Same; Statehood; In 1929, through the Lateran Treaty, Italy recognized Relations.—Lot 5-A was acquired by petitioner as a donation from the Archdiocese of the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican Manila. The donation was made not for commercial purpose, but for the use of City.—In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy 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, a foreign sovereign can ask his own government to espouse his cause through necessary for the creation and maintenance of its diplomatic mission, is recognized in diplomatic channels. 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 Same; Same; Same; Private respondent can ask the Philippine government, through November 15, 1965. 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 Same; Same; Same; Petitioner did not sell Lot 5-A for profit or gain. It merely wanted against the Holy See. Its first task is to persuade the Philippine government to take up to dispose off the same because the squatters living thereon made it almost impossible with the Holy See the validity of its claims. Of course, the Foreign Office shall first for petitioner to use it for the purpose of the donation.—The decision to transfer the make a determination of the impact of its espousal on the relations between the property and the subsequent disposal thereof are likewise clothed with a Philippine government and the Holy See (Young, Remedies of Private Claimants governmental character. Petitioner did not sell Lot 5-A for profit or gain. It merely Against Foreign States, Selected Readings on Protection by Law of Private Foreign wanted to dispose off the same because the squatters living thereon made it almost Investments 905, 919 [1964]). Once the Philippine government decides to espouse the impossible for petitioner to use it for the purpose of the donation. The fact that claim, the latter ceases to be a private cause. [Holy See, The vs. Rosario, Jr., 238 SCRA squatters have occupied and are still occupying the lot, and that they stubbornly 524(1994)] refuse to leave the premises, has been admitted by private respondent in its complaint (Rollo, pp. 26, 27). Republic of the Philippines SUPREME COURT Same; Same; Same; The issue of Petitioner’s non-suability can be determined by the Manila 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 EN BANC 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 G.R. No. 101949 December 1, 1994 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 THE HOLY SEE, petitioner, diplomatic mission to the Republic of the Philippines exempt from local jurisdiction vs. and entitled to all the rights, privileges and immunities of a diplomatic mission or THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the embassy in this country (Rollo, pp. 156-157). The determination of the executive arm Regional Trial Court of Makati, Branch 61 and STARBRIGHT SALES of government that a state or instrumentality is entitled to sovereign or diplomatic ENTERPRISES, INC., respondents. 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 Padilla Law Office for petitioner. 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 Siguion Reyna, Montecillo & Ongsiako for private respondent. 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. QUIASON, J.: 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 This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse government to espouse his cause through diplomatic channels.—Private respondent is and set aside the Orders dated June 20, 1991 and September 19, 1991 of the Regional not left without any legal remedy for the redress of its grievances. Under both Public Trial Court, Branch 61, Makati, Metro Manila in Civil Case No. 90-183. International Law and Transnational Law, a person who feels aggrieved by the acts of The Order dated June 20, 1991 denied the motion of petitioner to dismiss the assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos that the complaint in Civil Case No. 90-183, while the Order dated September 19, 1991 denied sellers fulfill their undertaking and clear the property of squatters; however, Msgr. the motion for reconsideration of the June 20,1991 Order. Cirilos informed private respondent of the squatters' refusal to vacate the lots, proposing instead either that private respondent undertake the eviction or that the Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, earnest money be returned to the latter; (6) private respondent counterproposed that Italy, and is represented in the Philippines by the Papal Nuncio. 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 Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation seven days from receipt of the letter to pay the original purchase price in cash; (8) engaged in the real estate business. 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, This petition arose from a controversy over a parcel of land consisting of 6,000 square sold the lots to Tropicana, as evidenced by two separate Deeds of Sale, one over Lot 5- meters (Lot 5-A, Transfer Certificate of Title No. 390440) located in the Municipality A, and another over Lots 5-B and 5-D; and that the sellers' transfer certificate of title of Parañaque, Metro Manila and registered in the name of petitioner. 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 Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer at the expense of private respondent; (10) private respondent demanded the Certificates of Title Nos. 271108 and 265388 respectively and registered in the name rescission of the sale to Tropicana and the reconveyance of the lots, to no avail; and of the Philippine Realty Corporation (PRC). (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 The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., view of the sellers' breach, it lost profits of not less than P30,000.000.00. acting as agent to the sellers. Later, Licup assigned his rights to the sale to private respondent. 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 In view of the refusal of the squatters to vacate the lots sold to private respondent, a reconveyance of the lots in question; (3) specific performance of the agreement to sell dispute arose as to who of the parties has the responsibility of evicting and clearing between it and the owners of the lots; and (4) damages. 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 On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the (Tropicana). 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 I by private respondent.

On January 23, 1990, private respondent filed a complaint with the Regional Trial On June 20, 1991, the trial court issued an order denying, among others, petitioner's Court, Branch 61, Makati, Metro Manila for annulment of the sale of the three parcels motion to dismiss after finding that petitioner "shed off [its] sovereign immunity by of land, and specific performance and damages against petitioner, represented by the entering into the business contract in question" (Rollo, pp. 20-21). Papal Nuncio, and three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil Case No. On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 90-183). 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 The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of facilitate the determination of its defense of sovereign immunity, petitioner prayed petitioner and the PRC, agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the that a hearing be conducted to allow it to establish certain facts upon which the said price of P1,240.00 per square meters; (2) the agreement to sell was made on the defense is based. Private respondent opposed this motion as well as the motion for condition that earnest money of P100,000.00 be paid by Licup to the sellers, and that reconsideration. 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 On October 1, 1991, the trial court issued an order deferring the resolution on the the Secretary of State finds that the defendant is immune from suit, he, in turn, asks motion for reconsideration until after trial on the merits and directing petitioner to the Attorney General to submit to the court a "suggestion" that the defendant is file its answer (Rollo, p. 22). 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" Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of Foreign privilege of sovereign immunity only on its own behalf and on behalf of its official Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]). representative, the Papal Nuncio. In the Philippines, the practice is for the foreign government or the international On December 9, 1991, a Motion for Intervention was filed before us by the organization to first secure an executive endorsement of its claim of sovereign or Department of Foreign Affairs, claiming that it has a legal interest in the outcome of diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement the case as regards the diplomatic immunity of petitioner, and that it "adopts by to the courts varies. In International Catholic Migration Commission v. Calleja, 190 reference, the allegations contained in the petition of the Holy See insofar as they SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the refer to arguments relative to its claim of sovereign immunity from suit" (Rollo, p. Secretary of Labor and Employment, informing the latter that the respondent- 87). 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 Private respondent opposed the intervention of the Department of Foreign Affairs. In the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. compliance with the resolution of this Court, both parties and the Department of Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to Foreign Affairs submitted their respective memoranda. 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. II

In the case at bench, the Department of Foreign Affairs, through the Office of Legal A preliminary matter to be threshed out is the procedural issue of whether the Affairs moved with this Court to be allowed to intervene on the side of petitioner. The petition for certiorari under Rule 65 of the Revised Rules of Court can be availed of to Court allowed the said Department to file its memorandum in support of petitioner's question the order denying petitioner's motion to dismiss. The general rule is that an claim of sovereign immunity. 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 In some cases, the defense of sovereign immunity was submitted directly to the local very clear in the records that the trial court has no alternative but to dismiss the courts by the respondents through their private counsels (Raquiza v. Bradford, 75 complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v. Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In waste of time and energy to require the parties to undergo the rigors of a trial. 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. 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). III

In Public International Law, when a state or international agency wishes to plead The burden of the petition is that respondent trial court has no jurisdiction over sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of petitioner, being a foreign state enjoying sovereign immunity. On the other hand, the state where it is sued to convey to the court that said defendant is entitled to private respondent insists that the doctrine of non-suability is not anymore absolute immunity. 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. 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 A. The Holy See Before we determine the issue of petitioner's non-suability, a brief look into its status Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as a sovereign state is in order. 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. 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 The Republic of the Philippines has accorded the Holy See the status of a foreign of the Papal States and the limitation of the territory under the Holy See to an area of sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had 108.7 acres, the position of the Holy See in International Law became controversial diplomatic representations with the Philippine government since 1957 (Rollo, p. 87). (Salonga and Yap, Public International Law 36-37 [1992]). This appears to be the universal practice in international relations.

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy B. Sovereign Immunity 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, As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the to send its own diplomats to foreign countries, and to enter into treaties according to generally accepted principles of International Law. Even without this affirmation, International Law (Garcia, Questions and Problems In International Law, Public and such principles of International Law are deemed incorporated as part of the law of the Private 81 [1948]). land as a condition and consequence of our admission in the society of nations (United States of America v. Guinto, 182 SCRA 644 [1990]). 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 There are two conflicting concepts of sovereign immunity, each widely held and firmly indisputable sovereignty also in the field of international relations" (O'Connell, I established. According to the classical or absolute theory, a sovereign cannot, without International Law 311 [1965]). 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 In view of the wordings of the Lateran Treaty, it is difficult to determine whether the regard to public acts or acts jure imperii of a state, but not with regard to private acts statehood is vested in the Holy See or in the Vatican City. Some writers even or acts jure gestionis suggested that the treaty created two international persons — the Holy See and (United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor- Vatican City (Salonga and Yap, supra, 37). Santiago, Public International Law 194 [1984]).

The Vatican City fits into none of the established categories of states, and the Some states passed legislation to serve as guidelines for the executive or judicial attribution to it of "sovereignty" must be made in a sense different from that in which determination when an act may be considered as jure gestionis. The United States it is applied to other states (Fenwick, International Law 124-125 [1948]; Cruz, passed the Foreign Sovereign Immunities Act of 1976, which defines a commercial International Law 37 [1991]). In a community of national states, the Vatican City activity as "either a regular course of commercial conduct or a particular commercial represents an entity organized not for political but for ecclesiastical purposes and transaction or act." Furthermore, the law declared that the "commercial character of international objects. Despite its size and object, the Vatican City has an independent the activity shall be determined by reference to the nature of the course of conduct or government of its own, with the Pope, who is also head of the Roman Catholic particular transaction or act, rather than by reference to its purpose." The Canadian Church, as the Holy See or Head of State, in conformity with its traditions, and the Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts. demands of its mission in the world. Indeed, the world-wide interests and activities of The Act defines a "commercial activity" as any particular transaction, act or conduct the Vatican City are such as to make it in a sense an "international state" (Fenwick, or any regular course of conduct that by reason of its nature, is of a "commercial supra., 125; Kelsen, Principles of International Law 160 [1956]). character."

One authority wrote that the recognition of the Vatican City as a state has significant The restrictive theory, which is intended to be a solution to the host of problems implication — that it is possible for any entity pursuing objects essentially different involving the issue of sovereign immunity, has created problems of its own. Legal from those pursued by states to be invested with international personality (Kunz, The treatises and the decisions in countries which follow the restrictive theory have Status of the Holy See in International Law, 46 The American Journal of International difficulty in characterizing whether a contract of a sovereign state with a private party Law 308 [1952]). is an act jure gestionis or an act jure imperii. The restrictive theory came about because of the entry of sovereign states into purely In the case at bench, if petitioner has bought and sold lands in the ordinary course of commercial activities remotely connected with the discharge of governmental a real estate business, surely the said transaction can be categorized as an act jure functions. This is particularly true with respect to the Communist states which took gestionis. However, petitioner has denied that the acquisition and subsequent control of nationalized business activities and international trading. 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 This Court has considered the following transactions by a foreign state with private respondent failed to dispute said claim. 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 Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The conduct of public bidding for the repair of a wharf at a United States Naval Station donation was made not for commercial purpose, but for the use of petitioner to (United States of America v. Ruiz, supra.); and (3) the change of employment status construct thereon the official place of residence of the Papal Nuncio. The right of a of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]). 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 On the other hand, this Court has considered the following transactions by a foreign Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred state with private parties as acts jure gestionis: (1) the hiring of a cook in the in by the Philippine Senate and entered into force in the Philippines on November 15, recreation center, consisting of three restaurants, a cafeteria, a bakery, a store, and a 1965. 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, In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the 182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in Clark civil and administrative jurisdiction of the receiving state over any real action relating Air Base in Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]). to private immovable property situated in the territory of the receiving state which the The operation of the restaurants and other facilities open to the general public is envoy holds on behalf of the sending state for the purposes of the mission. If this undoubtedly for profit as a commercial and not a governmental activity. By entering immunity is provided for a diplomatic envoy, with all the more reason should into the employment contract with the cook in the discharge of its proprietary immunity be recognized as regards the sovereign itself, which in this case is the Holy function, the United States government impliedly divested itself of its sovereign See. immunity from suit. The decision to transfer the property and the subsequent disposal thereof are likewise In the absence of legislation defining what activities and transactions shall be clothed with a governmental character. Petitioner did not sell Lot considered "commercial" and as constituting acts jure gestionis, we have to come out 5-A for profit or gain. It merely wanted to dispose off the same because the squatters with our own guidelines, tentative they may be. 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 Certainly, the mere entering into a contract by a foreign state with a private party that they stubbornly refuse to leave the premises, has been admitted by private cannot be the ultimate test. Such an act can only be the start of the inquiry. The respondent in its complaint (Rollo, pp. 26, 27). 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 issue of petitioner's non-suability can be determined by the trial court without the particular act or transaction must then be tested by its nature. If the act is in going to trial in the light of the pleadings, particularly the admission of private pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, respondent. Besides, the privilege of sovereign immunity in this case was sufficiently especially when it is not undertaken for gain or profit. established by the Memorandum and Certification of the Department of Foreign Affairs. As the department tasked with the conduct of the Philippines' foreign As held in United States of America v. Guinto, (supra): 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 There is no question that the United States of America, like any Philippines exempt from local jurisdiction and entitled to all the rights, privileges and other state, will be deemed to have impliedly waived its non- immunities of a diplomatic mission or embassy in this country (Rollo, pp. 156-157). suability if it has entered into a contract in its proprietary or private The determination of the executive arm of government that a state or instrumentality capacity. It is only when the contract involves its sovereign or is entitled to sovereign or diplomatic immunity is a political question that is governmental capacity that no such waiver may be implied. 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 Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, executive branch, it is the duty of the courts to accept this claim so as not to Kapunan and Mendoza, JJ., concur. 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 Padilla, J., took no part. International Catholic Migration Commission and in World Health Organization, we abide by the certification of the Department of Foreign Affairs. 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 Ordinarily, the procedure would be to remand the case and order the trial court to the exercise of discretion on the part of the immigration authorities.—There was a conduct a hearing to establish the facts alleged by petitioner in its motion. In view of blatant abuse of our immigration laws in effecting petitioner’s entry into “the country said certification, such procedure would however be pointless and unduly circuitous and the change of her immigration status from temporary visitor to pe rmanent (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No. 109645, July 25, resident. All such privileges were obtained through misrepresentation. Never was the 1994). 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 IV 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 Private respondent is not left without any legal remedy for the redress of its immigration authorities would be less inclined to allow the entry of a woman who grievances. Under both Public International Law and Transnational Law, a person claims to have entered into a marriage with a Filipino citizen, who is married to who feels aggrieved by the acts of a foreign sovereign can ask his own government to another woman (Cf. Shiu Shun Man v. Galang, 3 SCRA 871 [1961]). espouse his cause through diplomatic channels. 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 Private respondent can ask the Philippine government, through the Foreign Office, to unqualified as the right to prohibit and prevent their entry into the country.— espouse its claims against the Holy See. Its first task is to persuade the Philippine Generally, the right of the President to expel or deport aliens whose presence is government to take up with the Holy See the validity of its claims. Of course, the deemed inimical to the public interest is as absolute and unqualified as the right to Foreign Office shall first make a determination of the impact of its espousal on the prohibit and prevent their entry into the country (Annotations, 8 ALR 1286). This relations between the Philippine government and the Holy See (Young, Remedies of right is based on the fact that since the aliens are not part of the nation, their Private Claimants Against Foreign States, Selected Readings on Protection by Law of admission into the territory is a matter of pure permission and simple tolerance which Private Foreign Investments 905, 919 [1964]). Once the Philippine government creates no obligation on the part of the government to permit them to stay (3 Am. Jur. decides to espouse the claim, the latter ceases to be a private cause. 2d. 72).

According to the Permanent Court of International Justice, the forerunner of the Same; Same; Same; Same; Same; There is no law guaranteeing aliens married to International Court of Justice: 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 By taking up the case of one of its subjects and by reporting to to continue to reside in the country, is protected only so far as Congress may choose to diplomatic action or international judicial proceedings on his protect it (United States ex rel. Kaloudis v. Shaughnessy, 180 F. 2d. 489). There is no behalf, a State is in reality asserting its own rights — its right to law guaranteeing aliens married to Filipino citizens the right to be admitted, much ensure, in the person of its subjects, respect for the rules of less to be given permanent residency, in the Philippines. international law (The Mavrommatis Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]). 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 WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil stay here as an alien.—The fact of marriage by an alien to a citizen does not withdraw Case No. 90-183 against petitioner is DISMISSED. 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. SO ORDERED. 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 out an order for deportation and not the arrest prior to proceedings to determine the her failure to depart from the country upon the expiration of her extended stay here as right of the alien to stay in the country.—In their Comment, public respondents urged an alien (Joaquin v. Galang, 33 SCRA 362 [1970]). 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 Same; Same; Same; Same; Same; The entry of aliens into the country and their Section 13(a) which refers to the visa previously granted her (Rollo, p. 102), The admission as immigrants is not a matter of right, even if they are legally married to “arrest” contemplated by Section 37(b) refers to the arrest for the purpose of carrying Filipino citizens.—Under Section 9 of the Immigration Act of 1940, it is not out an order for deportation and not the arrest prior to proceedings to determine the mandatory for the CID to admit any alien who applies for a visitor’s visa. Once right of the alien to stay in the country. When public respondents revoked the admitted into the country, the alien has no right to an indefinite stay. Under Section permanent residence visa issued to petitioner, they, in effect, ordered her arrest and 13 of the law, an alien allowed to stay temporarily may apply for a change of status deportation as an overstaying alien. [Djumantan vs. Domingo, 240 SCRA 746(1995)] 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 Republic of the Philippines (Immigration Act of 1940, Sec. 13[a]). The entry of aliens into the country and their SUPREME COURT admission as immigrants is not a matter of right, even if they are legally married to Manila Filipino citizens. EN BANC 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 G.R. No. 99358 January 30, 1995 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 DJUMANTAN, petitioner, or at any place other than at a designated port of entry” is subject to deportation. The vs. deportation of an alien under said clause of Section 37(a) has a prescriptive period HON. ANDREA D. DOMINGO, COMMISSIONER OF THE BOARD OF and “shall not be effected x x x unless the arrest in the deportation proceedings is IMMIGRATION, HON. REGINO R. SANTIAGO and HON. JORGE V. made within five years after the cause for deportation arises” (Immigration Act of SARMIENTO, COMMISSIONERS BUREAU OF IMMIGRATION AND 1940, Sec. 37[b]). Congress may impose a limitation of time for the deportation of DEPORTATION, respondents. 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. QUIASON, J.: —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 This is a petition for certiorari under Rule 65 of the Revised Rules of Court with false and misleading statements in her application and in the other supporting preliminary injunction, to reverse and set aside the Decision dated September 27, documents submitted to the immigration authorities. Leonardo C. Banez first 1990 of the Commission on Immigration and Deportation (CID), ordering the complained with the CID on November 19, 1980 about the manner petitioner was deportation of petitioner and its Resolution dated January 29, 1991, denying the admitted into the country and asked for her deportation (Rollo, pp. 77–78). After the motion for reconsideration. 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 I 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. Bernard Banez, the husband of Marina Cabael, went to Indonesia as a contract worker. 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 On April 3, 1974, he embraced and was converted to Islam. On May 17, 1974, he On March 25, 1982, the immigration status of petitioner was changed from temporary married petitioner in accordance with Islamic rites. He returned to the Philippines in visitor to that of permanent resident under Section 13(a) of the same law. On April 14, January 1979. 1982, petitioner was issued an alien certificate of registration.

On January 13, 1979, petitioner and her two children with Banez, (two-year old Not accepting the set-back, Banez' eldest son, Leonardo, filed a letter complaint with Marina and nine-month old Nikulas) arrived in Manila as the "guests" of Banez. The the Ombudsman, who subsequently referred the letter to the CID. On the basis of the latter made it appear that he was just a friend of the family of petitioner and was said letter, petitioner was detained at the CID detention cell. She later released merely repaying the hospitability extended to him during his stay in Indonesia. 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 When petitioner and her two children arrived at the Ninoy Aquino International depart voluntarily from the Philippines and asked for time to purchase her airline Airport on January 13, 1979, Banez, together with Marina Cabael, met them. 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 Banez executed an "Affidavit of Guaranty and Support," for his "guests," stating inter (Rollo, pp. 11-12). alia, that: In the Decision dated September 27, 1990, the CID, through public respondents, That I am the guarantor for the entry into the Philippines of Mrs. disposed as follows: Djumantan, 42 years old, and her two minor children, MARINA, 2 years old, and NIKULAS, 9 months old, all Indonesian citizens, who WHEREFORE, IN VIEW OF THE FOREGOING, the Board of are coming as temporary visitors. Commissioners finds the second marriage of Bernardo Banes to respondent Djumantan irregular and not in accordance with the That I am willing to guaranty them out of gratitude to their family laws of the Philippines. We revoke the Section 13(a) visa previously for the hospitality they have accorded me during the few years that I granted to her (Rollo, p. 23). have stayed in Indonesia in connection with my employment thereat. Public respondents denied petitioner's motion for reconsideration in their Resolution dated January 29, 1991 (Rollo, pp. 31-33). That I guaranty they are law abiding citizens and I guaranty their behavior while they are in the Philippines; I also guaranty their Hence, this petition. support and that they will not become a public charge. We issued a temporary restraining order, directing public respondents to cease and That I guaranty their voluntary departure upon the termination of desist from executing or implementing the Decision dated September 27, 1990 and the authorized stay granted them by the Government (Rollo, p. 41). the Resolution dated January 29, 1991 (Rollo, pp. 34-36).

As "guests," petitioner and her two children lived in the house of Banez. 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). Petitioner and her children were admitted to the Philippines as temporary visitors under Section 9(a) of the Immigration Act of 1940. II 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 Petitioner claims that her marriage to Banez was valid under Article 27 of P.D. No. Urdaneta, Pangasinan against the two. This case was, however, dismissed for lack of 1085, the Muslim Code, which recognizes the practice of polyandry by Muslim males. merit. 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 There is no law guaranteeing aliens married to Filipino citizens the right to be (Rollo, pp. 5-7). admitted, much less to be given permanent residency, in the Philippines.

When asked to comment on the petition, the Solicitor General took the position that The fact of marriage by an alien to a citizen does not withdraw her from the operation the CID could not order petitioner's deportation because its power to do so had of the immigration laws governing the admission and exclusion of aliens (United prescribed under Section 37 (b) of the Immigration Act of 1940 (Rollo, pp. 57-74). 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]; III 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 We need not resolve the validity of petitioner's marriage to Banez, if under the law the (Joaquin v. Galang, 33 SCRA 362 [1970]). 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 Under Section 9 of the Immigration Act of 1940, it is not mandatory for the CID to change of her status from temporary visitor to permanent resident. Upon a finding admit any alien who applies for a visitor's visa. Once admitted into the country, the that she was not lawfully admitted into the country and she did not lawfully acquire alien has no right to an indefinite stay. Under Section 13 of the law, an alien allowed permanent residency, the next question is whether the power to deport her has to stay temporarily may apply for a change of status and "may be admitted" as a prescribed. 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 There was a blatant abuse of our immigration laws in effecting petitioner's entry into matter of right, even if they are legally married to Filipino citizens. the country and the change of her immigration status from temporary visitor to permanent resident. All such privileges were obtained through misinterpretation. IV Never was the marriage of petitioner to Banez disclosed to the immigration authorities in her applications for temporary visitor's visa and for permanent We now address the issue raised by the Solicitor General that the right of public residency. respondents to deport petitioner has prescribed, citing Section 37(b) of the Immigration Act of 1940. 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 Said Section 37(b) provides: 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 Deportation may be effected under clauses 2, 7, 8, 11 and 12 of married to another woman (Cf. Shiu Shin Man v. Galang, 3 SCRA 871 [1961]). paragraph (a) of this section at any time after entry, but shall not be effected under any clause unless the arrest in the deportation Generally, the right of the President to expel or deport aliens whose presence is proceedings is made within five years after the cause for deemed inimical to the public interest is as absolute and unqualified as the right to deportation arises. Deportation under clauses 3 and 4 shall not be prohibit and prevent their entry into the country (Annotations, 8 ALR 1286). this effected if the court, or judge thereof, when sentencing the alien, right is based on the fact that since the aliens are not part of the nation, their shall recommend to the Commissioner of Immigration that the admission into the territory is a matter of pure permission and simple tolerance which alien be not deported (As amended by Rep. Act No. 503). creates no obligation on the part of the government to permit them to stay (3 Am. Jur. 2d. 72). Section 37(a) of the said law mentioned in Section 37(b) thereof provides:

The interest, which an alien has in being admitted into or allowed to continue to The following aliens shall be arrested upon the warrant of the reside in the country, is protected only so far as Congress may choose to protect it Commissioner of Immigration or of any other officer designated by (United States ex rel. Kaloudis v. Shauhnessy 180 F. 2d. 489). him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of