1

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 142396

February 11, 2003

KHOSROW MINUCHER, petitioner,

vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.
DECISION
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise also known
as the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow Minucher and one Abbas Torabian with
the Regional Trial Court, Branch 151, of Pasig City. The criminal charge followed a "buy-bust operation" conducted
by the Philippine police narcotic agents in the house of Minucher, an Iranian national, where a quantity of heroin, a
prohibited drug, was said to have been seized. The narcotic agents were accompanied by private respondent Arthur
Scalzo who would, in due time, become one of the principal witnesses for the prosecution. On 08 January 1988,
Presiding Judge Eutropio Migrino rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC), Branch 19, of
Manila for damages on account of what he claimed to have been trumped-up charges of drug trafficking made by
Arthur Scalzo. The Manila RTC detailed what it had found to be the facts and circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to study in the
University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was appointed Labor Attach
for the Iranian Embassies in Tokyo, Japan and Manila, Philippines. When the Shah of Iran was deposed by Ayatollah
Khomeini, plaintiff became a refugee of the United Nations and continued to stay in the Philippines. He headed the
Iranian National Resistance Movement in the Philippines.
"He came to know the defendant on May 13, 1986, when the latter was brought to his house and introduced to him
by a certain Jose Iigo, an informer of the Intelligence Unit of the military. Jose Iigo, on the other hand, was met by
plaintiff at the office of Atty. Crisanto Saruca, a lawyer for several Iranians whom plaintiff assisted as head of the
anti-Khomeini movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iigo, the defendant
expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar from plaintiff and paid
P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio nuts and other Iranian products was his
business after the Khomeini government cut his pension of over $3,000.00 per month. During their introduction in
that meeting, the defendant gave the plaintiff his calling card, which showed that he is working at the US Embassy
in the Philippines, as a special agent of the Drug Enforcement Administration, Department of Justice, of the United
States, and gave his address as US Embassy, Manila. At the back of the card appears a telephone number in
defendants own handwriting, the number of which he can also be contacted.
"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife and the wife
of a countryman named Abbas Torabian. The defendant told him that he [could] help plaintiff for a fee of $2,000.00

2
per visa. Their conversation, however, was more concentrated on politics, carpets and caviar. Thereafter, the
defendant promised to see plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's Restaurant at Makati.
He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but for the reason that the defendant was
not yet there, he requested the restaurant people to x x x place the same in the refrigerator. Defendant, however,
came and plaintiff gave him the caviar for which he was paid. Then their conversation was again focused on politics
and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo, Pasig. The
defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After some haggling, they agreed at
$24,000.00. For the reason that defendant did not yet have the money, they agreed that defendant would come back
the next day. The following day, at 1:00 p.m., he came back with his $24,000.00, which he gave to the plaintiff, and
the latter, in turn, gave him the pair of carpets.1awphi1.nt
"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house and directly
proceeded to the latter's bedroom, where the latter and his countryman, Abbas Torabian, were playing chess. Plaintiff
opened his safe in the bedroom and obtained $2,000.00 from it, gave it to the defendant for the latter's fee in
obtaining a visa for plaintiff's wife. The defendant told him that he would be leaving the Philippines very soon and
requested him to come out of the house for a while so that he can introduce him to his cousin waiting in a cab.
Without much ado, and without putting on his shirt as he was only in his pajama pants, he followed the defendant
where he saw a parked cab opposite the street. To his complete surprise, an American jumped out of the cab with a
drawn high-powered gun. He was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed.
He was handcuffed and after about 20 minutes in the street, he was brought inside the house by the defendant. He
was made to sit down while in handcuffs while the defendant was inside his bedroom. The defendant came out of
the bedroom and out from defendant's attach case, he took something and placed it on the table in front of the
plaintiff. They also took plaintiff's wife who was at that time at the boutique near his house and likewise arrested
Torabian, who was playing chess with him in the bedroom and both were handcuffed together. Plaintiff was not told
why he was being handcuffed and why the privacy of his house, especially his bedroom was invaded by defendant.
He was not allowed to use the telephone. In fact, his telephone was unplugged. He asked for any warrant, but the
defendant told him to `shut up. He was nevertheless told that he would be able to call for his lawyer who can defend
him.
"The plaintiff took note of the fact that when the defendant invited him to come out to meet his cousin, his safe was
opened where he kept the $24,000.00 the defendant paid for the carpets and another $8,000.00 which he also placed
in the safe together with a bracelet worth $15,000.00 and a pair of earrings worth $10,000.00. He also discovered
missing upon his release his 8 pieces hand-made Persian carpets, valued at $65,000.00, a painting he bought for
P30,000.00 together with his TV and betamax sets. He claimed that when he was handcuffed, the defendant took his
keys from his wallet. There was, therefore, nothing left in his house.
"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various newspapers,
particularly in Australia, America, Central Asia and in the Philippines. He was identified in the papers as an
international drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but also in
America and in Germany. His friends in said places informed him that they saw him on TV with said news.
"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed together, where they
were detained for three days without food and water."1

3
During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and moved for
extension of time to file an answer pending a supposed advice from the United States Department of State and
Department of Justice on the defenses to be raised. The trial court granted the motion. On 27 October 1988, Scalzo
filed another special appearance to quash the summons on the ground that he, not being a resident of the Philippines
and the action being one in personam, was beyond the processes of the court. The motion was denied by the court, in
its order of 13 December 1988, holding that the filing by Scalzo of a motion for extension of time to file an answer
to the complaint was a voluntary appearance equivalent to service of summons which could likewise be construed a
waiver of the requirement of formal notice. Scalzo filed a motion for reconsideration of the court order, contending
that a motion for an extension of time to file an answer was not a voluntary appearance equivalent to service of
summons since it did not seek an affirmative relief. Scalzo argued that in cases involving the United States
government, as well as its agencies and officials, a motion for extension was peculiarly unavoidable due to the need
(1) for both the Department of State and the Department of Justice to agree on the defenses to be raised and (2) to
refer the case to a Philippine lawyer who would be expected to first review the case. The court a quo denied the
motion for reconsideration in its order of 15 October 1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023, assailing the
denial. In a decision, dated 06 October 1989, the appellate court denied the petition and affirmed the ruling of the
trial court. Scalzo then elevated the incident in a petition for review on certiorari, docketed G.R. No. 91173, to this
Court. The petition, however, was denied for its failure to comply with SC Circular No. 1-88; in any event, the Court
added, Scalzo had failed to show that the appellate court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in default for his
failure to file a responsive pleading (answer) and (b) setting the case for the reception of evidence. On 12 March
1990, Scalzo filed a motion to set aside the order of default and to admit his answer to the complaint. Granting the
motion, the trial court set the case for pre-trial. In his answer, Scalzo denied the material allegations of the complaint
and raised the affirmative defenses (a) of Minuchers failure to state a cause of action in his complaint and (b) that
Scalzo had acted in the discharge of his official duties as being merely an agent of the Drug Enforcement
Administration of the United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to
answer for attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a motion to dismiss
the complaint on the ground that, being a special agent of the United States Drug Enforcement Administration, he
was entitled to diplomatic immunity. He attached to his motion Diplomatic Note No. 414 of the United States
Embassy, dated 29 May 1990, addressed to the Department of Foreign Affairs of the Philippines and a Certification,
dated 11 June 1990, of Vice Consul Donna Woodward, certifying that the note is a true and faithful copy of its
original. In an order of 25 June 1990, the trial court denied the motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No. 94257 and
entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the complaint in Civil Case No. 8845691 be ordered dismissed. The case was referred to the Court of Appeals, there docketed CA-G.R. SP No. 22505,
per this Courts resolution of 07 August 1990. On 31 October 1990, the Court of Appeals promulgated its decision
sustaining the diplomatic immunity of Scalzo and ordering the dismissal of the complaint against him. Minucher
filed a petition for review with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the
Honorable Court of Appeals, et. al." (cited in 214 SCRA 242), appealing the judgment of the Court of Appeals. In a
decision, dated 24 September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed
the decision of the appellate court and remanded the case to the lower court for trial. The remand was ordered on the
theses (a) that the Court of Appeals erred in granting the motion to dismiss of Scalzo for lack of jurisdiction over his
person without even considering the issue of the authenticity of Diplomatic Note No. 414 and (b) that the complaint
contained sufficient allegations to the effect that Scalzo committed the imputed acts in his personal capacity and
outside the scope of his official duties and, absent any evidence to the contrary, the issue on Scalzos diplomatic
immunity could not be taken up.

4
The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court reached a
decision; it adjudged:
"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the plaintiff, who
successfully established his claim by sufficient evidence, against the defendant in the manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral damages in the
sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in the sum of P200,000.00 plus
costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this judgment to
answer for the unpaid docket fees considering that the plaintiff in this case instituted this action as a pauper
litigant."2
While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he was a
diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held accountable for the acts
complained of committed outside his official duties. On appeal, the Court of Appeals reversed the decision of the
trial court and sustained the defense of Scalzo that he was sufficiently clothed with diplomatic immunity during his
term of duty and thereby immune from the criminal and civil jurisdiction of the "Receiving State" pursuant to the
terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether or not the
doctrine of conclusiveness of judgment, following the decision rendered by this Court in G.R. No. 97765, should
have precluded the Court of Appeals from resolving the appeal to it in an entirely different manner, and (2) whether
or not Arthur Scalzo is indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the finality of the
prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part of the court that renders it,
3) a judgment on the merits, and 4) an identity of the parties, subject matter and causes of action. 3Even while one of
the issues submitted in G.R. No. 97765 - "whether or not public respondent Court of Appeals erred in ruling that
private respondent Scalzo is a diplomat immune from civil suit conformably with the Vienna Convention on
Diplomatic Relations" - is also a pivotal question raised in the instant petition, the ruling in G.R. No. 97765,
however, has not resolved that point with finality. Indeed, the Court there has made this observation "It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13 June 1990,
unequivocally states that he would present documentary evidence consisting of DEA records on his investigation
and surveillance of plaintiff and on his position and duties as DEA special agent in Manila. Having thus reserved his
right to present evidence in support of his position, which is the basis for the alleged diplomatic immunity, the
barren self-serving claim in the belated motion to dismiss cannot be relied upon for a reasonable, intelligent and fair
resolution of the issue of diplomatic immunity."4
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a signatory, grants
him absolute immunity from suit, describing his functions as an agent of the United States Drugs Enforcement
Agency as "conducting surveillance operations on suspected drug dealers in the Philippines believed to be the source
of prohibited drugs being shipped to the U.S., (and) having ascertained the target, (he then) would inform the
Philippine narcotic agents (to) make the actual arrest." Scalzo has submitted to the trial court a number of documents
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;

5
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign Affairs,
dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC Manila, Branch 19
(the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign Affairs,
through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of this Court.5
The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly advised the
Executive Department of the Philippine Government that Scalzo was a member of the diplomatic staff of the United
States diplomatic mission from his arrival in the Philippines on 14 October 1985 until his departure on 10 August
1988; (2) that the United States Government was firm from the very beginning in asserting the diplomatic immunity
of Scalzo with respect to the case pursuant to the provisions of the Vienna Convention on Diplomatic Relations; and
(3) that the United States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate action to
inform the trial court of Scalzos diplomatic immunity. The other documentary exhibits were presented to indicate
that: (1) the Philippine government itself, through its Executive Department, recognizing and respecting the
diplomatic status of Scalzo, formally advised the "Judicial Department" of his diplomatic status and his entitlement
to all diplomatic privileges and immunities under the Vienna Convention; and (2) the Department of Foreign Affairs
itself authenticated Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13" consisting of his
reports of investigation on the surveillance and subsequent arrest of Minucher, the certification of the Drug
Enforcement Administration of the United States Department of Justice that Scalzo was a special agent assigned to
the Philippines at all times relevant to the complaint, and the special power of attorney executed by him in favor of
his previous counsel6 to show (a) that the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo
to be a member of the diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on
14 October 1985 until his departure on 10 August 1988, (b) that, on May 1986, with the cooperation of the
Philippine law enforcement officials and in the exercise of his functions as member of the mission, he investigated
Minucher for alleged trafficking in a prohibited drug, and (c) that the Philippine Department of Foreign Affairs itself
recognized that Scalzo during his tour of duty in the Philippines (14 October 1985 up to 10 August 1988) was listed
as being an Assistant Attach of the United States diplomatic mission and accredited with diplomatic status by the
Government of the Philippines. In his Exhibit 12, Scalzo described the functions of the overseas office of the United
States Drugs Enforcement Agency, i.e., (1) to provide criminal investigative expertise and assistance to foreign law
enforcement agencies on narcotic and drug control programs upon the request of the host country, 2) to establish and
maintain liaison with the host country and counterpart foreign law enforcement officials, and 3) to conduct complex
criminal investigations involving international criminal conspiracies which affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and, by the time
of its ratification on 18 April 1961, its rules of law had long become stable. Among the city states of ancient Greece,
among the peoples of the Mediterranean before the establishment of the Roman Empire, and among the states of
India, the person of the herald in time of war and the person of the diplomatic envoy in time of peace were
universally held sacrosanct.7 By the end of the 16th century, when the earliest treatises on diplomatic law were
published, the inviolability of ambassadors was firmly established as a rule of customary international
law.8 Traditionally, the exercise of diplomatic intercourse among states was undertaken by the head of state himself,
as being the preeminent embodiment of the state he represented, and the foreign secretary, the official usually
entrusted with the external affairs of the state. Where a state would wish to have a more prominent diplomatic

6
presence in the receiving state, it would then send to the latter a diplomatic mission. Conformably with the Vienna
Convention, the functions of the diplomatic mission involve, by and large, the representation of the interests of the
sending state and promoting friendly relations with the receiving state. 9
The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios accredited to
the heads of state,10 (b) envoys,11 ministers or internuncios accredited to the heads of states; and (c) charges d'
affairs12 accredited to the ministers of foreign affairs.13 Comprising the "staff of the (diplomatic) mission" are the
diplomatic staff, the administrative staff and the technical and service staff. Only the heads of missions, as well as
members of the diplomatic staff, excluding the members of the administrative, technical and service staff of the
mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations provides for
immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding that the same be
restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested with blanket
diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the heads of
missions or members of the diplomatic staff, thus impliedly withholding the same privileges from all others. It might
bear stressing that even consuls, who represent their respective states in concerns of commerce and navigation and
perform certain administrative and notarial duties, such as the issuance of passports and visas, authentication of
documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges
accorded diplomats, mainly for the reason that they are not charged with the duty of representing their states in
political matters. Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to immunity is
the determination of whether or not he performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attach of the United States
diplomatic mission and was accredited as such by the Philippine Government. An attach belongs to a category of
officers in the diplomatic establishment who may be in charge of its cultural, press, administrative or financial
affairs. There could also be a class of attaches belonging to certain ministries or departments of the government,
other than the foreign ministry or department, who are detailed by their respective ministries or departments with the
embassies such as the military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the like.
Attaches assist a chief of mission in his duties and are administratively under him, but their main function is to
observe, analyze and interpret trends and developments in their respective fields in the host country and submit
reports to their own ministries or departments in the home government.14 These officials are not generally regarded
as members of the diplomatic mission, nor are they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and 791, all issued
post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November 1992. The presentation did
nothing much to alleviate the Court's initial reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public respondent gravely abused its discretion in dismissing
Civil Case No. 88-45691 on the basis of an erroneous assumption that simply because of the diplomatic note, the
private respondent is clothed with diplomatic immunity, thereby divesting the trial court of jurisdiction over his
person.
"x x x x x x x x x
"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting aside for the
moment the issue of authenticity raised by the petitioner and the doubts that surround such claim, in view of the fact
that it took private respondent one (1) year, eight (8) months and seventeen (17) days from the time his counsel filed
on 12 September 1988 a Special Appearance and Motion asking for a first extension of time to file the Answer
because the Departments of State and Justice of the United States of America were studying the case for the purpose
of determining his defenses, before he could secure the Diplomatic Note from the US Embassy in Manila, and even
granting for the sake of argument that such note is authentic, the complaint for damages filed by petitioner cannot be
peremptorily dismissed.

7
"x x x x x x x x x
"There is of course the claim of private respondent that the acts imputed to him were done in his official capacity.
Nothing supports this self-serving claim other than the so-called Diplomatic Note. x x x. The public respondent then
should have sustained the trial court's denial of the motion to dismiss. Verily, it should have been the most proper
and appropriate recourse. It should not have been overwhelmed by the self-serving Diplomatic Note whose belated
issuance is even suspect and whose authenticity has not yet been proved. The undue haste with which respondent
Court yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the Office of
Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant Secretary,
certifying that "the records of the Department (would) show that Mr. Arthur W. Scalzo, Jr., during his term of office
in the Philippines (from 14 October 1985 up to 10 August 1988) was listed as an Assistant Attach of the United
States diplomatic mission and was, therefore, accredited diplomatic status by the Government of the Philippines."
No certified true copy of such "records," the supposed bases for the belated issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the government.
In World Health Organization vs. Aquino,15 the Court has recognized that, in such matters, the hands of the courts
are virtually tied. Amidst apprehensions of indiscriminate and incautious grant of immunity, designed to gain
exemption from the jurisdiction of courts, it should behoove the Philippine government, specifically its Department
of Foreign Affairs, to be most circumspect, that should particularly be no less than compelling, in its post litem
motam issuances. It might be recalled that the privilege is not an immunity from the observance of the law of the
territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial
jurisdiction.16 The government of the United States itself, which Scalzo claims to be acting for, has formulated its
standards for recognition of a diplomatic agent. The State Department policy is to only concede diplomatic status to
a person who possesses an acknowledged diplomatic title and "performs duties of diplomatic
nature."17 Supplementary criteria for accreditation are the possession of a valid diplomatic passport or, from States
which do not issue such passports, a diplomatic note formally representing the intention to assign the person to
diplomatic duties, the holding of a non-immigrant visa, being over twenty-one years of age, and performing
diplomatic functions on an essentially full-time basis.18 Diplomatic missions are requested to provide the most
accurate and descriptive job title to that which currently applies to the duties performed. The Office of the Protocol
would then assign each individual to the appropriate functional category.19
But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently established that,
indeed, he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of
suspected drug activities within the country on the dates pertinent to this case. If it should be ascertained that Arthur
Scalzo was acting well within his assigned functions when he committed the acts alleged in the complaint, the
present controversy could then be resolved under the related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law then closely identified with the personal immunity of a foreign sovereign from suit 20 and, with the
emergence of democratic states, made to attach not just to the person of the head of state, or his representative, but
also distinctly to the state itself in its sovereign capacity.21 If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent.
Suing a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for
the benefit of an individual but for the State, in whose service he is, under the maxim - par in parem, non habet
imperium - that all states are sovereign equals and cannot assert jurisdiction over one another.22 The implication, in
broad terms, is that if the judgment against an official would require the state itself to perform an affirmative act to
satisfy the award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit
must be regarded as being against the state itself, although it has not been formally impleaded. 23

8
In United States of America vs. Guinto,24 involving officers of the United States Air Force and special officers of the
Air Force Office of Special Investigators charged with the duty of preventing the distribution, possession and use of
prohibited drugs, this Court has ruled "While the doctrine (of state immunity) appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of
their duties. x x x. It cannot for a moment be imagined that they were acting in their private or unofficial capacity
when they apprehended and later testified against the complainant. It follows that for discharging their duties as
agents of the United States, they cannot be directly impleaded for acts imputable to their principal, which has not
given its consent to be sued. x x x As they have acted on behalf of the government, and within the scope of their
authority, it is that government, and not the petitioners personally, [who were] responsible for their acts."25
This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26 elaborates:
"It is a different matter where the public official is made to account in his capacity as such for acts contrary to law
and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of
Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as the State authorizes only legal acts by
its officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the
officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights,
is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said
that an action at law or suit in equity against a State officer or the director of a State department on the ground that,
while claiming to act for the State, he violates or invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within
the constitutional provision that the State may not be sued without its consent. The rationale for this ruling is that the
doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.
"x x x x x x x x x
"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued
in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of
the government is removed the moment they are sued in their individual capacity. This situation usually arises where
the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law
that a public official may be liable in his personal private capacity for whatever damage he may have caused by his
act done with malice and in bad faith or beyond the scope of his authority and jurisdiction."27
A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be
established that he is acting within the directives of the sending state. The consent of the host state is an
indispensable requirement of basic courtesy between the two sovereigns. Guinto and Shauf both involve officers and
personnel of the United States, stationed within Philippine territory, under the RP-US Military Bases Agreement.
While evidence is wanting to show any similar agreement between the governments of the Philippines and of the
United States (for the latter to send its agents and to conduct surveillance and related activities of suspected drug
dealers in the Philippines), the consent or imprimatur of the Philippine government to the activities of the United
States Drug Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere mentioned. The
official exchanges of communication between agencies of the government of the two countries, certifications from
officials of both the Philippine Department of Foreign Affairs and the United States Embassy, as well as the
participation of members of the Philippine Narcotics Command in the "buy-bust operation" conducted at the
residence of Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status" of the latter but
they give enough indication that the Philippine government has given its imprimatur, if not consent, to the activities
within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The job description of
Scalzo has tasked him to conduct surveillance on suspected drug suppliers and, after having ascertained the target, to
inform local law enforcers who would then be expected to make the arrest. In conducting surveillance activities on

9
Minucher, later acting as the poseur-buyer during the buy-bust operation, and then becoming a principal witness in
the criminal case against Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function
or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug
Enforcement Agency allowed by the Philippine government to conduct activities in the country to help contain the
problem on the drug traffic, is entitled to the defense of state immunity from suit.
WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur
G.R. No. 108813 December 15, 1994
JUSMAG PHILIPPINES, petitioner,
vs.
THE NATIONAL LABOR RELATIONS COMMISSION (Second Division) and FLORENCIO
SACRAMENTO, Union President, JPFCEA, respondents.
Juan, Luces, Luna and Associates for petitioner.
Galutera & Aguilar Law Offices for private respondent.

PUNO, J.:
The immunity from suit of the Joint United States Military Assistance Group to the Republic of the
Philippines (JUSMAG-Philippines) is the pivotal issue in the case at bench.
JUSMAG assails the January 29, 1993 Resolution of the NATIONAL LABOR RELATIONS
COMMISSION (public respondent), in NLRC NCR CASE NO. 00-03-02092-92, reversing the July 30,
1991 Order of the Labor Arbiter, and ordering the latter to assume jurisdiction over the complaint for
illegal dismissal filed by FLORENCIO SACRAMENTO (private respondent) against petitioner.
First, the undisputed facts.
Private respondent was one of the seventy-four (74) security assistance support personnel (SASP)
working at JUSMAG-Philippines. 1 He had been with JUSMAG from December 18, 1969, until his
dismissal on April 27, 1992. When dismissed, he held the position of Illustrator 2 and was the incumbent
President of JUSMAG PHILIPPINES-FILIPINO CIVILIAN EMPLOYEES ASSOCIATION (JPFCEA), a
labor organization duly registered with the Department of Labor and Employment. His services were
terminated allegedly due to the abolition of his position. 2 He was also advised that he was under
administrative leave until April 27, 1992, although the same was not charged against his leave.
On March 31, 1992, private respondent filed a complaint with the Department of Labor and Employment
on the ground that he was illegally suspended and dismissed from service by JUSMAG. 3 He asked for
his reinstatement.

10
JUSMAG then filed a Motion to Dismiss invoking its immunity from suit as an agency of the United States.
It further alleged lack of employer-employee relationship and that it has no juridical personality to sue and
be sued. 4
In an Order dated July 30, 1991, Labor Arbiter Daniel C. Cueto dismissed the subject complaint " for want
of jurisdiction." 5Private respondent appealed 6 to the National Labor Relations Commission (public
respondent), assailing the ruling that petitioner is immune from suit for alleged violation of our labor laws.
JUSMAG filed its Opposition, 7 reiterating its immunity from suit for its non-contractual, governmental
and/or public acts.
In a Resolution, dated January 29, 1993, the NLRC 8 reversed the ruling of the Labor Arbiter as it held that
petitioner had lost its right not to be sued. The resolution was predicated on two grounds: (1) the principle
of estoppel that JUSMAG failed to refute the existence of employer-employee relationship under the
"control test"; and (2) JUSMAG has waived its right to immunity from suit when it hired the services of
private respondent on December 18, 1969.
The NLRC relied on the case of Harry Lyons vs. United States of America, 9 where the "United States
Government (was considered to have) waived its immunity from suit by entering into (a) contract of
stevedoring services, and thus, it submitted itself to the jurisdiction of the local courts."
Accordingly, the case was remanded to the labor arbiter for reception of evidence as to the issue on
illegal dismissal.
Hence, this petition, JUSMAG contends:
I
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION
A. IN REVERSING THE DECISION OF THE LABOR ARBITER AND IN
NOT AFFIRMING THE DISMISSAL OF THE COMPLAINT IT BEING A
SUIT AGAINST THE UNITED STATES OF AMERICA WHICH HAD NOT
GIVEN ITS CONSENT TO BE SUED; AND
B. IN FINDING WAIVER BY JUSMAG OF IMMUNITY FROM SUIT;
II
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION
A. WHEN IT FOUND AN EMPLOYER-EMPLOYEE RELATIONSHIP
BETWEEN JUSMAG AND PRIVATE RESPONDENT; AND
B. WHEN IT CONSIDERED JUSMAG ESTOPPED FROM DENYING
THAT PRIVATE RESPONDENT IS ITS EMPLOYEE FOR FAILURE TO
PRESENT PROOF TO THE CONTRARY.
We find the petition impressed with merit.

11
It is meet to discuss the historical background of the JUSMAG to determine its immunity from suit.
JUSMAG was created pursuant to the Military Assistance Agreement 10 dated March 21, 1947, between
the Government of the Republic of the Philippines and the Government of the United States of America.
As agreed upon, JUSMAG shall consist of Air, Naval and Army group, and its primary task was to advise
and assist the Philippines, on air force, army and naval matters. 11
Article 14 of the 1947 Agreement provides, inter alia, that "the cost of all services required by the Group,
including compensation of locally employed interpreters, clerks, laborers, and other personnel, except
personal servants, shall be borne by the Republic of the Philippines."
This set-up was to change in 1991. In Note No 22, addressed to the Department of Foreign Affairs (DFA)
of the Philippines, dated January 23, 1991, the United States Government, thru its Embassy, manifested
its preparedness "to provide funds to cover the salaries of security assistance support personnel" and
security guards, the rent of JUSMAG occupied buildings and housing, and the cost of utilities. 12 This offer
was accepted by our Government, thru the DFA, in Note No. 911725, dated April 18, 1991. 13
Consequently, a Memorandum of Agreement 14 was forged between the Armed Forces of the Philippines
and JUSMAG-Philippines, thru General Lisandro C. Abadia and U.S. Brigadier General Robert G.
Sausser. The Agreement delineated the terms of the assistance-in-kind of JUSMAG for 1991, the relevant
parts of which read:
a. The term salaries as used in this agreement include those for the security guards
currently contracted between JUSMAG and A' Prime Security Services Inc., and
the Security Assistance Support Personnel(SASP). . . . .
b. The term Security Assistance Support Personnel (SASP) does not include active duty
uniformed members of the Armed Forces of the Philippines performing duty at JUSMAG.
c. It is understood that SASP are employees of the Armed Forces of the
Philippines (AFP). Therefore, the AFP agrees to appoint, for service with JUSMAG, no
more than 74 personnel to designated positions with JUSMAG.
d. SASP are under the total operational control of the Chief, JUSMAG-Philippines. The
term "Operational Control" includes, but is not limited to, all personnel administrative
actions, such as: hiring recommendations; firing recommendations; position classification;
discipline; nomination and approval of incentive awards; and payroll computation.
Personnel administration will be guided by Annex E of JUSMAG-Philippines Memo 102.For the period of time that there is an exceptional funding agreement between the
government of the Philippines and the United States Government (USG), JUSMAG will
pay the total payroll costs for the SASP employees. Payroll costs include only regular
salary; approved overtime, costs of living allowance; medical insurance; regular
contributions to the Philippine Social Security System, PAG-IBIG Fund and Personnel
Economic Relief Allowance (PERA); and the thirteenth-month bonus. Payroll costs do not
include gifts or other bonus payments in addition to those previously defined above.
Entitlements not considered payroll costs under this agreement will be funded and paid
by the AFP.
e. All SASP employed as of July 1, 1990 will continue their service with JUSMAG at their
current rate of pay and benefits up to 30 June 1991, with an annual renewal of
employment thereafter subject to renewal of their appointment with the AFP (employees

12
and rates of pay are indicated at Enclosure 3). No promotion or transfer internal to
JUSMAG of the listed personnel will result in the reduction of their pay and benefits.
f. All SASP will, after proper classification, be paid salaries and benefits at established
AFP civilian rates. Rules for computation of pay and allowances will be made available to
the Comptroller, JUSMAG, by the Comptroller, GHQ, AFP. Additionally, any legally
mandated changes in salary levels or methods of computation shall be transmitted within
48 hours of receipt by Comptroller, GHQ to Comptroller, JUSMAG.
g. The AFP agrees not to terminate SASP without 60 days prior written notice to Chief,
JUSMAG-Philippines. Any termination of these personnel thought to be necessary
because of budgetary restrictions or manpower ceiling will be subject to consultations
between AFP and JUSMAG to ensure that JUSMAG's mission of dedicated support to
the AFP will not be degraded or harmed in any way.
h. The AFP agrees to assume the severance pay/retirement pay liability for all appointed
SASP. (Enclosure 3 lists the severance pay liability date for current SASP). Any
termination of services, other than voluntary resignations or termination for cause, will
result in immediate payments of AFP of all termination pay to the entitled employee.
Vouchers for severance/retirement pay and accrued bonuses and annual leave will be
presented to the Comptroller, GHQ, AFP, not later than 14 calendar days prior to required
date of payment.
i. All SASP listed in Enclosure 3 will continue to participate in the Philippine Social
Security System.
A year later, or in 1992, the United States Embassy sent another note of similar import to the Department
of Foreign Affairs (No. 227, dated April 8, 1992), extending the funding agreement for the salaries of
SASP and security guards until December 31, 1992.
From the foregoing, it is apparent that when JUSMAG took the services of private respondent, it was
performing a governmental function on behalf of the United States pursuant to the Military Assistance
Agreement dated March 21, 1947. Hence, we agree with petitioner that the suit is, in effect, one against
the United States Government, albeit it was not impleaded in the complaint. Considering that the United
States has not waived or consented to the suit, the complaint against JUSMAG cannot not prosper.
In this jurisdiction, we recognize and adopt the generally accepted principles of international law as part of
the law of the land. 15 Immunity of State from suit is one of these universally recognized principles. In
international law, "immunity" is commonly understood as an exemption of the state and its organs from
the judicial jurisdiction of another state. 16 This is anchored on the principle of the sovereign equality of
states under which one state cannot assert jurisdiction over another in violation of the maxim par in
parem non habet imperium (an equal has no power over an equal). 17
Under the traditional rule of State immunity, a state cannot be sued in the courts of another State, without
its consent or waiver. However, in Santos, et al., vs. Santos, et al., 18 we recognized an exception to the
doctrine of immunity from suit by a state, thus:
. . . . Nevertheless, if, where and when the state or its government enters into a contract,
through its officers or agents, in furtherance of a legitimate aim and purpose and
pursuant to constitutional legislative authority, whereby mutual or reciprocal benefits
accrue and rights and obligations arise therefrom, and if the law granting the authority to

13
enter into such contract does not provide for or name the officer against whom action
may be brought in the event of a breach thereof, the state itself may be sued, even
without its consent, because by entering into a contract, the sovereign state has
descended to the level of the citizen and its consent to be sued is implied from the very
act of entering into such contract. . . . . (emphasis ours)
It was in this light that the state immunity issue in Harry Lyons, Inc., vs. United States of America
decided.

19

was

In the case of Harry Lyons, Inc., the petitioner entered into a contract with the United States Government
for stevedoring services at the U.S. Naval Base, Subic Bay, Philippines. It then sought to collect from the
US government sums of money arising from the contract. One of the issues posed in the case was
whether or not the defunct Court of First Instance had jurisdiction over the defendant United States, a
sovereign state which cannot be sued without its consent. This Court upheld the contention of Harry
Lyons, Inc., that "when a sovereign state enters into a contract with a private person, the state can be
sued upon the theory that it has descended to the level of an individual from which it can be implied that it
has given its consent to be sued under the contract."
The doctrine of state immunity from suit has undergone further metamorphosis. The view evolved that the
existence of a contract does not, per se, mean that sovereign states may, at all times, be sued in local
courts. The complexity of relationships between sovereign states, brought about by their increasing
commercial activities, mothered a more restrictiveapplication of the doctrine. 20 Thus, in United States of
America vs. Ruiz, 21 we clarified that our pronouncement in Harry Lyons, supra, with respect to the waiver
of State immunity, was obiter and "has no value as an imperative authority."
As it stands now, the application of the doctrine of immunity from suit has
been restricted to sovereign or governmental activities ( jure imperii). 22 The mantle of state
immunity cannot be extended to commercial, private and proprietary acts (jure gestionis). As aptly stated
by this Court (En banc) in US vs. Ruiz, supra:
The restrictive application of State immunity is proper when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic
affairs. Stated differently, a State may be said to have descended to the level of an
individual and thus can be deemed to have tacitly given its consent to be used only when
it enters into business contracts. It does not apply where the contract relates to the
exercise of its sovereign functions. (emphasis ours)
We held further, that the application of the doctrine of state immunity depends on the legal nature of the
act. Ergo, since agovernmental function was involved the transaction dealt with the improvement of the
wharves in the naval installation at Subic Bay it was held that the United States was not deemed to
have waived its immunity from suit.
Then came the case of United States vs. Hon. Rodrigo, et al. 23 In said case, Genove was employed as a
cook in the Main Club located at U.S. Air Force Recreation Center, John Hay Air Station. He was
dismissed from service after he was found to have polluted the stock of soup with urine. Genove
countered with a complaint for damages. Apparently, the restaurant services offered at the John Hay Air
Station partake of the nature of a business enterprise undertaken by the United States government in
its proprietary capacity. The Court then noted that the restaurant is well known and available to the
general public, thus, the services are operated for profit, as a commercial and not a governmental activity.
Speaking through Associate Justice Isagani Cruz, the Court (En Banc) said:

14
The consequence of this finding is that the petitioners cannot invoke the doctrine of state
immunity to justify the dismissal of the damage suit against them by Genove. Such
defense will not prosper even if it be established that they were acting as agents of the
United States when they investigated and later dismissed Genove. For the matter, not
even the United States government itself can claim such immunity. The reason is that by
entering into the employment contract with Genove in the discharge of its proprietary
functions, it impliedly divested itself of its sovereign immunity from suit. (emphasis ours)
Conversely, if the contract was entered into in the discharge of its governmental functions, the sovereign
state cannot be deemed to have waived its immunity from suit. 24 Such is the case at bench. Prescinding
from this premise, we need not determine whether JUSMAG controls the employment conditions of the
private respondent.
We also hold that there appears to be no basis for public respondent to rule that JUSMAG is stopped
from denying the existence of employer-employee relationship with private respondent. On the contrary,
in its Opposition before the public respondent, JUSMAG consistently contended that the (74) SASP,
including private respondent, working in JUSMAG, are employees of the Armed Forces of the Philippines.
This can be gleaned from: (1) the Military Assistance Agreement, supra, (2) the exchange of notes
between our Government, thru Department of Foreign Affairs, and the United States, thru the US
Embassy to the Philippines, and (3) the Agreement on May 21, 1991, supra between the Armed Forces of
the Philippines and JUSMAG.
We symphatize with the plight of private respondent who had served JUSMAG for more than twenty (20)
years. Considering his length of service with JUSMAG, he deserves a more compassionate treatment.
Unfortunately, JUSMAG is beyond the jurisdiction of this Court. Nonetheless, the Executive branch,
through the Department of Foreign Affairs and the Armed Forces of the Philippines, can take the cudgel
for private respondent and the other SASP working for JUSMAG, pursuant to the aforestated Military
Assistance Agreement.
IN VIEW OF THE FOREGOING, the petition for certiorari is GRANTED. Accordingly, the impugned
Resolution dated January 29, 1993 of the National Labor Relations Commission is REVERSED and SET
ASIDE. No costs.
SO ORDERED.
Narvasa, C.J., Regalado and Mendoza, JJ., concur.
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.

15
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 Paraaque, 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

16
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

17
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 nonsuability 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.

18
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

19
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.

20
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

21
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.
Feliciano, J., is on leave

22
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.

23
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).

24
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

25
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
Commissioners of the existence of the ground for deportation as charged against the
alien:
1) Any 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 designating port of entry or at any place other than at a designated port of
entry.
2) Any alien who enters the Philippines after the effective date of this Act, who was not
lawfully admissible at the time of entry;
3) Any alien who, after the effective date of this Act, is convicted in the Philippines and
sentenced for a term of one year or more for a crime involving moral turpitude committed
within five years after his entry, is so convicted and sentenced more than once;
4) Any alien who is convicted and sentenced for a violation of the law governing
prohibited drugs;
5) Any alien who practices prostitution or is an inmate of a house of prostitution or is
connected with the management of a house of prostitution, or is a procurer;
6) Any alien who becomes a public charge within five years after entry from causes not
affirmatively shown to have arisen subsequent to entry;
7) Any alien who remains in the Philippines in violation of any limitation or condition under
which he was admitted a non-immigrant;

26
8) Any alien who believes in, advises, advocates or teaches the overthrow by force and
violence of the Government of the Philippines, or of constituted law and authority, or who
disbelieves in or is opposed to organized government, or who advises, advocates, or
teaches the assault or assassination of public officials because of their office, or who
advises, advocates, or teaches the unlawful destruction of property, or who is a member
of or affiliated with any organization entertaining, advocating or teaching such doctrines,
or who on any manner whatsoever lends assistance, financial or otherwise, to the
dissemination of such doctrines;
9) Any alien who commits any of the acts described in Sections forty-five and forty-six of
this Act, independent of criminal action which may be brought against him: Provided, That
in the case of an alien who, for any reason, is convicted and sentenced to suffer both
imprisonment and deportation, said alien shall first serve the entire period of his
imprisonment before he is actually deported: Provided, however, That the imprisonment
may be waived by the Commissioner of Immigration with the consent of the Department
Head, and upon payment by the alien concerned of such amount as the Commissioner
may fix and approved by the Department Head, and upon payment by the alien
concerned of such amount as the Commissioner may fix and approved by the
Department Head (as amended by R.A. No. 144);
10) Any alien who, at any time within five years after entry, shall have been convicted of
violating the provisions of the Philippine Commonwealth Act Numbered Six hundred and
fifty-three, otherwise known as the Philippine Alien Registration Act of 1941 (now
Republic Act No. 562), or who, at any time after entry, shall have been convicted more
than once of violating the provisions of the same Act;
11) Any alien who engages in profiteering, hoarding, or black-marketing, independent of
any criminal action which may be brought against him;
12) Any alien who is convicted of any offense penalized under Commonwealth Act
Numbered Four hundred and seventy-three, otherwise known as the Revised
Naturalization Laws of the Philippines, or any law relating to acquisition of Philippine
citizenship;
13) Any alien who defrauds his creditor by absconding or alienating properties, to prevent
them from being attached or executed.
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 ... 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).

27
In Board of Commissioners (CID) v. Dela Rosa, 197 SCRA 853 (1991), we held that under Section 37(b)
of the Immigration Act of 1940, the deportation of an alien may be barred after the lapse of five years after
the cause of deportation arises. Justice Feliciano, in his dissenting opinion, qualified the broad statement
of the law as follows:
Examination of the above quoted Section 37 (b) shows that the five (5) year limitation is
applicable only where deportation is sought to be effected under clauses of Section 37 (a)
other than clauses 2, 7, 8, 11 and 12; that where deportation or exclusion is sought to be
effected under clauses of Section 37(a), no period of limitation is applicable; and that to
the contrary, deportation or exclusion may be effected "at any time after entry."
Justice Davide, in his dissenting opinion, clarified:
Note that the five-year period applies only to clauses other than 2, 7, 8, 11 and 12 of
paragraph (a) of the Section. In respect to clauses 2, 7, 8, 11, and 12, the limitation does
not apply.
In Lam Shee v. Bengzon, 93 Phil. 1065 (1953), the alien admitted that she had gained entrance into the
Philippines fraudulently by making use of the name of a Chinese resident-merchant other than that of her
lawful husband. The Court, however, held that she could no longer be deported "for the simple reason
that more than 5 years had elapsed from the date of her admission."
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.
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.
WHEREFORE, the petition is GRANTED and the temporary restraining order issued on June 4, 1991 is
MADE PERMANENT.
The Decision of the Board of Commissioners dated September 27, 1990 revoking the issuance of the
permanent resident visa to petitioner and the Resolution dated January 29, 1991 are REVERSED.

28
SO ORDERED.