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Arigo vs.

Swift (2014)

G.R. No. 206510 | 2014-09-15

Subject: Citizen suit in Environmental cases (Locus Standi of petitioners); State


immunity from suit (Doctrine of sovereign immunity); Doctrine of non-suability of the
State also applies to complaints filed against officials of the state for acts performed by
them in the discharge of their duties; Immunity of foreign states from the jurisdiction of
local courts; State immunity extends only to acts Jure imperii; Present petition is a suit
against the United States, and is barred under the principle of state immunity; Waiver of
State immunity under the VF A pertains only to criminal jurisdiction; Award of damages
not one of the reliefs granted in a Writ of Kalikasan suit; US expected to comply with
international obligations under the UNCLOS, despite being a non-party to the
international agreement; Court defers to the Executive Branch on the matter of
compensation and rehabilitation measures

Facts:

This is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a
Temporary Environmental Protection Order (TEPO) in relation to the grounding of the
US military ship USS Guardian over the Tubbataha Reefs.

In 1988, Tubbataha was declared a National Marine Park. In 1993, Tubbataha was
inscribed by the United Nations Educational Scientific and Cultural Organization
(UNESCO) as a World Heritage Site. Located in the middle of Central Sulu Sea,
southeast of Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the
global center of marine biodiversity.

In 2010, Congress passed Republic Act No. 10067, otherwise known as the "Tubbataha
Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and conservation of
the Tubbataha Reefs. Under the "no-take" policy, entry into the waters of TRNP is
strictly regulated and many human activities are prohibited and penalized or fined,
including fishing, gathering, destroying and disturbing the resources within the TRNP.
The law likewise created the Tubbataha Protected Area Management Board (TPAMB)
which shall be the sole policy-making and permit-granting body of the TRNP.

On January 13, 2013, the USS Guardian, with diplomatic clearance obtained by the US
Embassy, arrived at the port of Subic Bay “for the purpose of routine ship
replenishment, maintenance, and crew liberty." Two days later, the USS Guardian
departed Subic Bay for its next port of call in Makassar, Indonesia. On January 17, 2013
at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the northwest side of
South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan.

The US Ambassador assured Foreign Affairs Secretazy Albert F. del Rosario that the
United States will provide appropriate compensation for damage to the reef caused by
the ship.

By March 30, 2013, the US Navy-led salvage team had finished removing the last piece
of the grounded ship from the coral reef.

Petitioners on their behalf and in representation of their respective sectors, filed the
present petition for issuance of a Writ of Kalikasan or TEPO against respondents
composed of members of the US Navy, the President Aquino, Defense Secretary,
Philippine Coast Guard, etc. Petitioners claim that the grounding, salvaging and post-
salvaging operations of the USS Guardian cause and continue to cause environmental
damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan,
Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan,
Sulu, and Tawi-Tawi, which events violate their constitutional rights to a balanced and
healthful ecology. They also seek a directive from the Court for the institution of civil,
administrative and criminal suits for acts committed in violation of environmental laws
and regulations in connection with the grounding incident.

Held:

Citizen suit in Environmental cases (Locus Standi of petitioners)

1. Locus standi is "a right of appearance in a court of justice on a given question."


Specifically, it is "a party's personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result" of the act being challenged, and "calls
for more than just a generalized grievance."

2. However, the rule on standing is a procedural matter which this Court has relaxed for
non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public
interest so requires, such as when the subject matter of the controversy is of
transcendental importance, of overreaching significance to society, or of paramount
public interest.

3. In the landmark case of Oposa v. Factoran, Jr., we recognized the "public right" of
citizens to "a balanced and healthful ecology which, for the first time in our constitutional
history, is solemnly incorporated in the fundamental law." We declared that the right to a
balanced and healthful ecology need not be written in the Constitution for it is assumed,
like other civil and polittcal rights guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of transcendental importance with
intergenerational implications. Such right carries with it the correlative duty to refrain
from impairing the environment.

4. The Court ruled that not only do ordinary citizens have legal standing to sue for the
enforcement of environmental rights, they can do so in representation of their own and
future generations. Their personality to sue in behalf of the succeeding generations can
only be based on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Every generation has a responsibility to
the next to preserve that rhythm and harmony of nature for the full enjoyment of a
balanced and healthful ecology.

5. The liberalization of standing first enunciated in Oposa, insofar as it refers to minors


and generations yet unborn, is now enshrined in A.M. No. 09-6-8-SC, otherwise known
as the Rules of Procedure for Environmental Cases (Rules) which allows the filing of a
citizen suit in environmental cases. The provision on citizen suits in the Rules "collapses
the traditional rule on personal and direct interest, on the principle that humans are
stewards of nature.

State immunity from suit (Doctrine of sovereign immunity)

6. The immunity of the State from suit, known also as the doctrine of sovereign
immunity or non-suability of the State, is expressly provided in Section 3, Article XVI of
the 1987 Constitution which states: : “The State may not be sued without its consent.”

7. The rule that a state may not be sued without its consent is one of the generally
accepted principles of international law that we have adopted as part of the law of our
land under Article II, Section 2. Even without such affirmation, we would still be bound
by the generally accepted principles of international law under the doctrine of
incorporation. Under this doctrine, as accepted by the majority of states, such principles
are deemed incorporated in the law of every civilized state as a condition and
consequence of its membership in the society of nations. Upon its admission to such
society, the state is automatically obligated to comply with these principles in its
relations with other states. (see U.S. vs. Guinto)

8. As applied to the local state, the doctrine of state immunity is based on the
justification given by Justice Holmes that "there can be no legal right against the
authority which makes the law on which the right depends." [Kawanakoa v. Polybank] In
the case of the foreign state sought to be impleaded in the local jurisdiction, the added
inhibition is expressed in the maxim par in parem, non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another. A contrary disposition
would, in the language of a celebrated case, "unduly vex the peace of nations." (see
U.S. vs. Guinto)

Doctrine of non-suability of the State also applies to complaints filed against


officials of the state for acts performed by them in the discharge of their duties

9. While the doctrine 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. The rule is that if the judgment
against such officials will require the state itself to perform an affirmative act to satisfy
the same, such as the appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as against the state itself although it
has not been formally impleaded. [Garcia vs. Chief of Staff] In such a situation, the state
may move to dismiss the complaint on the ground that it has been filed without its
consent.

Immunity of foreign states from the jurisdiction of local courts

10. 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 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. If the acts giving rise to a suit arc
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
soverr ign equals and cannot assert jurisdiction over one another. 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. (see Minucher vs.
Court of Appeals)

11. In the case of diplomatic immunity, 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.

State immunity extends only to acts Jure imperii

12. The traditional rule of State immunity which exempts a State from being sued in the
courts of another State without the former's consent or waiver has evolved into a
restrictive doctrine which distinguishes sovereign and governmental acts (Jure
imperii) from private, commercial and proprietary acts (Jure gestionis). Under the
restrictive rule of State immunity, State immunity extends only to acts Jure imperii. The
restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic
affairs.

13. The 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 or jurisdiction. The rationale for
this ruling is that the doctrine of state immunity cannot be used as an instrument for
perpetrating an injustice. (Shauf vs. Court of Appeals)

Present petition is a suit against the United States, and is barred under the
principle of state immunity

14. The US respondents in this case were sued in their official capacity as commanding
officers of the US Navy who had control and supervision over the USS Guardian and its
crew. The alleged act or omission resulting in the unfortunate grounding of the USS
Guardian on the TRNP was committed while they were performing official military
duties. Considering that the satisfaction of a judgment against said officials will require
remedial actions and appropriation of funds by the US government, the suit is deemed
to be one against the US itself. The principle of State immunity therefore bars the
exercise of jurisdiction by this Court over the persons of respondents Swift, Rice and
Robling.

Waiver of state immunity under the VF A pertains only to criminal jurisdiction

15. Petitioners argue that there is a waiver of immunity from suit found in the Visiting
Forces Ageement (VFA). Even under the common law tort claims, petitioners
asseverate that the US respondents are liable for negligence, trespass and nuisance.

16. The waiver of State immunity under the VFA pertains only to criminal jurisdiction
and not to special civil actions such as the present petition for issuance of a writ of
Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of the Rules that a criminal
case against a person charged with a violation of an environmental law is to be filed
separately.

17. The VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines to promote "common security interests" between the
US and the Philippines in the region. It defines the rights of the United States and the
Philippine government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies. The
invocation of US federal tort laws and even common law is thus improper considering
that it is the VFA which governs disputes involving US military ships and crew
navigating Philippine waters in pursuance of the objectives of the agreement.

18. In any case, it is our considered view that a ruling on the application or non-
application of criminal jurisdiction provisions of the VFA to US personnel who may be
found responsible for the grounding of the USS Guardian, would be premature and
beyond the province of a petition for a writ of Kalikasan. We also find it unnecessary at
this point to determine whether such waiver of State immunity is indeed absolute.

Award of damages not one of the reliefs granted in a Writ of Kalikasan suit

19. We cannot grant damages which have resulted from the violation of environmental
laws. The Rules allows the recovery of damages, including the collection of
administrative fines under R.A. No. 10067, in a separate civil suit or that deemed
instituted with the criminal action charging the same violation of an environmental Law.

20. Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for
issuance of a Writ of Kalikasan, to wit:

SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for
decision, the court shall render judgment granting or denying the privilege of the writ of
kalikasan.

The reliefs that may be granted under the writ are the following:
xxx
( e) Such other reliefs which relate to the right of the people to a balanced and healthful
ecology or to the protection, preservation, rehabilitation or restoration of the
environment, except the award of damages to individual petitioners.

US expected to comply with international obligations under the UNCLOS, despite


being a non-party to the international agreement

21. Associate Justice Antonio T. Carpio took the position that the conduct of the US in
this case, when its warship entered a restricted area in violation of R.A. No. 10067 and
caused damage to the TRNP reef system, brings the matter within the ambit of Article
31 of the United Nations Convention on the Law of the Sea (UNCLOS). He explained
that while historically, warships enjoy sovereign immunity from suit as extensions of
their flag State, Art. 31 of the UNCLOS creates an exception to this rule in cases where
they fail to comply with the rules and regulations of the coastal State regarding passage
through the latter's internal waters and the territorial sea.

22. The international law of the sea is generally defined as "a body of treaty rules arid
customary norms governing the uses of the sea, the exploitation of its resources, and
the exercise of jurisdiction over maritime regimes. It is a branch of public international
law, regulating the relations of states with respect to the uses of the oceans." The
UNCLOS is a multilateral treaty which was opened for signature on December 10, 1982
at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force
on November 16, 1994 upon the submission of the 60th ratification.

23. The UNCLOS is a product of international negotiation that seeks to balance State
sovereignty (mare clausum) and the principle of freedom of the high seas (mare
liberum). The freedom to use the world's marine waters is one of the oldest customary
principles of international law. The UNCLOS gives to the coastal State sovereign rights
in varying degrees over the different zones of the sea which are: 1) internal waters, 2)
territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas. It
also gives coastal States more or less jurisdiction over foreign vessels depending on
where the vessel is located.

24. Insofar as the internal waters and territorial sea is concerned, the Coastal State
exercises sovereignty, subject to the UNCLOS and other rules of international law. Such
sovereignty extends to the air space over the territorial sea as well as to its bed and
subsoil.

25. In the case of warships, they continue to enjoy sovereign immunity subject to the
following exceptions: Article 30
(Non-compliance by warships with the laws and regulations of the coastal State); Article
31 (Responsibility of the flag State for damage caused by a warship or other
government ship operated for non-commercial purposes); Article 32 (Immunities of
warships and other government ships operated for non-commercial purposes) .

26. A foreign warship's unauthorized entry into our internal waters with resulting
damage to marine resources is one situation in which the above exception (removing
immunity) may apply. But what if the offending warship is a non-party to the UNCLOS,
as in this case, the US? While over 80% of nation states are now members of UNCLOS,
the US, the world's leading maritime power, has not ratified it.

27. According to Justice Carpio, although the US to date has not ratified the UNCLOS,
as a matter of long-standing policy the US considers itself bound by customary
international rules on the "traditional uses of the oceans" as codified in UNCLOS.

28. Non-membership in the UNCLOS does not mean that the US will disregard the
rights of the Philippines as a Coastal State over its internal waters and territorial sea.
We thus expect the US to bear "international responsibility" under Art. 31 in connection
with the USS Guardian grounding which adversely affected the Tubbataha reefs.

29. Although the said treaty upholds the immunity of warships from the jurisdiction of
Coastal States while navigating the latter's territorial sea, the flag States shall be
required to leave the territorial sea immediately if they flout the laws and regulations of
the Coastal State, and they will be liable for damages caused by their warships or any
other government vessel operated for non-commercial purposes under Article 31.

Court defers to the Executive Branch on the matter of compensation and


rehabilitation measures

30. This petition has become moot in the sense that the salvage operation sought to be
enjoined or restrained had already been accomplished when petitioners sought
recourse from this Court. But insofar as the directives to Philippine respondents to
protect and rehabilitate the coral reef structure and marine habitat adversely affected by
the grounding incident are concerned, petitioners are entitled to these reliefs
notwithstanding the completion of the removal of the USS Guardian from the coral reef.

31. The US and Philippine governments both expressed readiness to negotiate and
discuss the matter of compensation for the damage caused by the USS Guardian.
Exploring avenues for settlement of environmental cases is not proscribed by The
Rules. Mediation and settlement are available for the consideration of the parties, and
which dispute resolution methods are encouraged by the court.

32. The Court defers to the Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels. Resolution of these issues
impinges on our relations with another State in the context of common security interests
under the VFA. It is settled that "[t]he conduct of the foreign relations of our government
is committed by the Constitution to the executive and legislative-"the political" --
departments of the government, and the propriety of what may be done in the exercise
of this political power is not subject to judicial inquiry or decision.
Ang Ladlad LGBT Party vs. Comelec (2010)

G.R. No. 190582 | 2010-04-08

Subject: Enumeration of marginalized and under-represented sectors in the


Constitution is not exclusive and not determinative of eligibility for registration in the
party-list system; Ang Ladlad has sufficiently demonstrated its compliance with the legal
requirements for accreditation; Denial of Ang Ladlad's Petition for Registration on
religious grounds violates the non-establishment clause and the constitutional policy on
government neutrality; Morality referred to in the law is public and necessarily secular,
not religious; Public morals as a ground to deny Ang Ladlad's petition for registration;
Mere allegation of violation of the Civil Code or Revised Penal Code is not sufficient to
justify denial of registration; LGBTs entitled to equal protection; Freedom of Expression
and Association; Principle of Non-Discrimination under International Law; Yogyakarta
Principles not recognized as obligatory norms

Facts:

Ang Ladlad LGBT Party is an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs).
Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in
2006. The application for accreditation was denied on the ground that the organization
had no substantial membership base.

In 2009, Ang Ladlad again filed a petition for registration with the COMELEC. However,
the COMELEC (Second Division) dismissed the petition on moral grounds, and held
that “the definition of the LGBT sector makes it crystal clear that petitioner tolerates
immorality which offends religious beliefs.'

When Ang Ladlad sought reconsideration, the COMELEC Chairman, breaking the tie
and speaking for the majority, upheld the denial of Ang Ladlad's petition for
accreditation as a sectoral party in the party-list system. The reasons given were that
(a) it cannot be said that Ladlad's expressed sexual orientations per se would benefit
the nation as a whole (b) the LGBT group do not present substantial differentiation, the
Ladlad constituencies are still males and females, and they will remain either male or
female protected by the same Bill of Rights that applies to all citizens alike. (c) it would
be against generally accepted public morals (d) the Penal Code (Art 201) makes it
punishable for anyone to “publicly expound or proclaim doctrines openly contrary to
public morals. Likewise, the Civil Code (Article 694) considers a nuisance “any act,
omission..or anything else...which shocks, defies or disregards decency or morality”

Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and
direct the COMELEC to grant Ang Ladlad's application for accreditation.

Ang Ladlad argues that the denial of accreditation, insofar as it justified the exclusion by
using religious dogma, violated the constitutional guarantees against the establishment
of religion. Moreover, the Assailed Resolutions contravened its constitutional rights to
privacy, freedom of speech and assembly, and equal protection of laws, as well as
constituted violations of the Philippines' international obligations against discrimination
based on sexual orientation.

The COMELEC argued for the first time that the LGBT sector is not among the sectors
enumerated by the Constitution and RA 7941 (Party-List System Act).

Held:

Enumeration of marginalized and under-represented sectors in the Constitution is


not exclusive and not determinative of eligibility for registration in the party-list
system

1. The COMELEC denied Ang Ladlad's application for registration on the ground that
the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it
associated with or related to any of the sectors in the enumeration. As we explicitly
ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, "the
enumeration of marginalized and under-represented sectors is not exclusive". The
crucial element is not whether a sector is specifically enumerated, but whether a
particular organization complies with the requirements of the Constitution and
RA 7941.

Ang Ladlad has sufficiently demonstrated its compliance with the legal
requirements for accreditation

2. Respondent argues that Ang Ladlad made untruthful statements in its petition when
it alleged that it had nationwide existence through its members and affiliate
organizations. The COMELEC claims that upon verification by its field personnel, it was
shown that "save for a few isolated places in the country, petitioner does not exist in
almost all provinces in the country." Ang Ladlad's petition shows that it never claimed to
exist in each province of the Philippines. Instead, it represented itself to be "a national
LGBT umbrella organization with affiliates around the Philippines.” Since the COMELEC
only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise
that they found that petitioner had no presence in any of these regions. In fact, if
COMELEC's findings are to be believed, petitioner does not even exist in Quezon City,
which is registered as Ang Ladlad's principal place of business.

3. Ang Ladlad has sufficiently demonstrated its compliance with the legal requirements
for accreditation. Indeed, aside from COMELEC's moral objection and the belated
allegation of non-existence, nowhere in the records has the respondent ever found/ruled
that Ang Ladlad is not qualified to register as a party-list organization under any of the
requisites under RA 7941 or the guidelines in Ang Bagong Bayani.

Denial of Ang Ladlad's Petition for Registration on religious grounds violates the
non-establishment clause and the constitutional policy on government neutrality

4. Our Constitution provides in Article III, Section 5 that "[n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof." At
bottom, what our non-establishment clause calls for is "government neutrality in
religious matters." Clearly, governmental reliance on religious justification is
inconsistent with this policy of neutrality. We thus find that it was grave violation of the
non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify
the exclusion of Ang Ladlad.

Morality referred to in the law is public and necessarily secular, not religious

5. Rather than relying on religious belief, the legitimacy of the Assailed Resolutions
should depend, instead, on whether the COMELEC is able to advance some
justification for its rulings beyond mere conformity to religious doctrine. Otherwise
stated, government must act for secular purposes and in ways that have primarily
secular effects.

6. The morality referred to in the law is public and necessarily secular, not
religious. Religious teachings as expressed in public debate may influence the civil
public order but public moral disputes may be resolved only on grounds articulable in
secular terms. A law could be religious or Kantian or Aquinian or utilitarian in its deepest
roots, but it must have an articulable and discernible secular purpose and justification to
pass scrutiny of the religion clauses. (see Estrada v. Escritor)

7. Recognizing the religious nature of the Filipinos and the elevating influence of
religion in society, however, the Philippine constitution's religion clauses prescribe not a
strict but a benevolent neutrality. Benevolent neutrality recognizes that government
must pursue its secular goals and interests but at the same time strive to uphold
religious liberty to the greatest extent possible within flexible constitutional limits. Thus,
although the morality contemplated by laws is secular, benevolent neutrality could allow
for accommodation of morality based on religion, provided it does not offend compelling
state interests.

Public morals as a ground to deny Ang Ladlad's petition for registration

8. Comelec suggests that although the moral condemnation of homosexuality and


homosexual conduct may be religion-based, it has long been transplanted into generally
accepted public morals. The COMELEC posits that the majority of the Philippine
population considers homosexual conduct as immoral and unacceptable, and this
constitutes sufficient reason to disqualify the petitioner.

9. Notably, the Philippines has not seen fit to criminalize homosexual conduct.
Evidently, therefore, these "generally accepted public morals" have not been
convincingly transplanted into the realm of law. The Assailed Resolutions have not
identified any specific overt immoral act performed by Ang Ladlad. Even the OSG
agrees that "there should have been a finding by the COMELEC that the group's
members have committed or are committing immoral acts." Neither has the COMELEC
condescended to justify its position that petitioner's admission into the party-list system
would be so harmful as to irreparably damage the moral fabric of society.

10. Moral disapproval, without more, is not a sufficient governmental interest to


justify exclusion of homosexuals from participation in the party-list system. The
denial of Ang Ladlad's registration on purely moral grounds amounts more to a
statement of dislike and disapproval of homosexuals, rather than a tool to further any
substantial public interest.

Mere allegation of violation of the Civil Code or Revised Penal Code is not
sufficient to justify denial of registration

11. Article 694 of the Civil Code defines a nuisance as "any act, omission,
establishment, condition of property, or anything else which shocks, defies, or
disregards decency or morality," the remedies for which are a prosecution under the
Revised Penal Code or any local ordinance, a civil action, or abatement without judicial
proceedings. A violation of Article 201 of the Revised Penal Code, on the other hand,
requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs
to be emphasized that mere allegation of violation of laws is not proof, and a mere
blanket invocation of public morals cannot replace the institution of civil or criminal
proceedings and a judicial determination of liability or culpability.

LGBTs entitled to equal protection

12. Recent jurisprudence has affirmed that if a law neither burdens a fundamental right
nor targets a suspect class, we will uphold the classification as long as it bears a
rational relationship to some legitimate government end.

13. In our jurisdiction, the standard of analysis of equal protection challenges have
followed the 'rational basis' test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is a showing of a clear
and unequivocal breach of the Constitution. (see Central Bank Employees Association,
Inc. v. Banko Sentral ng Pilipinas)

14. The asserted state interest here - that is, moral disapproval of an unpopular
minority - is not a legitimate state interest that is sufficient to satisfy rational basis review
under the equal protection clause. The COMELEC's differentiation, and its
unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation
that would benefit the nation, furthers no legitimate state interest other than disapproval
of or dislike for a disfavored group.

15. From the standpoint of the political process, the lesbian, gay, bisexual, and
transgender have the same interest in participating in the party-list system on the same
basis as other political parties similarly situated. State intrusion in this case is equally
burdensome. Hence, laws of general application should apply with equal force to
LGBTs, and they deserve to participate in the party-list system on the same basis as
other marginalized and under-represented sectors.

16. We disagree with the OSG's position that homosexuals are a class in themselves
for the purposes of the equal protection clause. We are not prepared to single out
homosexuals as a separate class meriting special or differentiated treatment. We have
not received sufficient evidence to this effect, and it is simply unnecessary to make such
a ruling today. Petitioner itself has merely demanded that it be recognized under the
same basis as all other groups similarly situated, and that the COMELEC made "an
unwarranted and impermissible classification not justified by the circumstances of the
case."

Freedom of Expression and Association

17. Under our system of laws, every group has the right to promote its agenda and
attempt to persuade society of the validity of its position through normal democratic
means. Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are favorably
received but also to those that offend, shock, or disturb. Any restriction imposed in this
sphere must be proportionate to the legitimate aim pursued. Absent any compelling
state interest, it is not for the COMELEC or this Court to impose its views on the
populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech
for no better reason than promoting an approved message or discouraging a disfavored
one.

18. This position gains even more force if one considers that homosexual conduct is
not illegal in this country. It follows that both expressions concerning one's
homosexuality and the activity of forming a political association that supports LGBT
individuals are protected as well.

19. In the area of freedom of expression, United States courts have ruled that existing
free speech doctrines protect gay and lesbian rights to expressive conduct. In order to
justify the prohibition of a particular expression of opinion, public institutions must show
that their actions were caused by "something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular viewpoint."

20. The OSG argues that since there has been neither prior restraint nor subsequent
punishment imposed on Ang Ladlad, and its members have not been deprived of their
right to voluntarily associate, then there has been no restriction on their freedom of
expression or association. The OSG fails to recall that petitioner has established its
qualifications to participate in the party-list system, and the moral objection offered by
the COMELEC was not a limitation imposed by law. To the extent, therefore, that Ang
Ladlad has been precluded, because of COMELEC's action, from publicly expressing its
views as a political party and participating on an equal basis in the political process with
other equally-qualified party-list candidates, we find that there has, indeed, been a
transgression of Ang Ladlad's fundamental rights.

Principle of Non-Discrimination under International Law

21. Our Decision today is fully in accord with our international obligations to protect and
promote human rights. In particular, we explicitly recognize the principle of non-
discrimination as it relates to the right to electoral participation, enunciated in the UDHR
and the ICCPR.

22. The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.

23. In this context, the principle of non-discrimination requires that laws of general
application relating to elections be applied equally to all persons, regardless of sexual
orientation. Although sexual orientation is not specifically enumerated as a status or
ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee
has opined that the reference to "sex" in Article 26 should be construed to include
"sexual orientation." Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under various
international agreements.

Yogyakarta Principles not recognized as obligatory norms

24. Petitioners invoke the Yogyakarta Principles (the Application of International


Human Rights Law In Relation to Sexual Orientation and Gender Identity) which it
declares to reflect binding principles of international law.

25. We are not prepared to declare that these Yogyakarta Principles contain norms that
are obligatory on the Philippines. There are declarations and obligations outlined in said
Principles which are not reflective of the current state of international law, and do not
find basis in any of the sources of international law enumerated under Article 38(1) of
the Statute of the International Court of Justice.
EN BANC

[G.R. No. 101949. December 1, 1994.]

THE HOLY SEE, petitioner, vs. THE HON. ERIBERTO U. ROSARIO,


JR., as Presiding Judge of the Regional Trial Court of Makati,
Branch 61 and STARBRIGHT SALES ENTERPRISES, INC.,
respondents.

DECISION

QUIASON, J p:

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. LLphil
This petition arose from a controversy over a parcel of land consisting of
6,000 square meters (Lot 5-A, Transfer Certificate of Title No. 390440) located in the
Municipality of Parañaque, Metro Manila and registered in the name of petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by
Transfer Certificates of Title Nos. 271108 and 265388 respectively and registered in
the name of the Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos,
Jr., acting as agent to the sellers. Later, Licup assigned his rights to the sale to
private respondent.
In view of the refusal of the squatters to vacate the lots sold to private
respondent, a dispute arose as who of the parties has the responsibility of evicting
and clearing the land of squatters. Complicating the relations of the parties was the
sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation
(Tropicana).
I
On January 23, 1990, private respondent filed a complaint with the Regional
Trial Court, Branch 61, Makati, Metro Manila for annulment of the sale of the three
parcels of land, and specific performance and damages against petitioner,
represented by the Papal Nuncio, and three other defendants: namely, Msgr.
Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil Case No. 90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf
of petitioner and the PRC, agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at
the price of P1,240.00 per square meters; (2) the agreement to sell was made on the
condition that earnest money of P100,000.00 be paid by Licup to the sellers, and
that the sellers clear the said lots of squatters who were then occupying the same;
(3) Licup paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup
assigned his rights over the property to private respondent and informed the sellers
of the said assignment; (5) thereafter, private respondent demanded from Msgr.
Cirilos that the sellers fulfill their undertaking and clear the property of squatters;
however, Msgr. Cirilos informed private respondent of the squatters' refusal to
vacate the lots, proposing instead either that private respondent undertake the
eviction or that the earnest money be returned to the latter; (6) private respondent
counterproposed that if it would undertake the eviction of the squatters, the purchase
price of the lots should be reduced from P1,240.00 to P1,150.00 per square meter;
(7) Msgr. Cirilos returned the earnest money of P100,000.00 and wrote private
respondent giving it seven days from receipt of the letter to pay the original purchase
price in cash; (8) private respondent sent the earnest money back to the sellers, but
later discovered that on March 30, 1989, petitioner and the PRC, without notice to
private respondent, sold the lots to Tropicana, as evidenced by two separate Deeds
of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that the sellers'
transfer certificate of title over the lots were cancelled, transferred and registered in
the name of Tropicana; (9) Tropicana induced petitioner and the PRC to sell the lots
to it and thus enriched itself at the expense of private respondent; (10) private
respondent demanded the rescission of the sale to Tropicana and the reconveyance
of the lots, to no avail; and (11) private respondent is willing and able to comply with
the terms of the contract to sell and has actually made plans to develop the lots into
a townhouse project, but in view of the sellers' breach, it lost profits of not less than
P30,000.000.00. LLjur
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale
between petitioner and the PRC on the one hand, and Tropicana on the other; (2)
the reconveyance of the lots in question; (3) specific performance of the agreement
to sell between it and the owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss
the complaint — petitioner for lack of jurisdiction based on sovereign immunity from
suit, and Msgr. Cirilos for being an improper party. An opposition to the motion was
filed by private respondent.
On June 20, 1991, the trial court issued an order denying, among others,
petitioner's motion to dismiss after finding that petitioner "shed off [its] sovereign
immunity by entering into the business contract in question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the order. On
August 30, 1991, petitioner filed a "Motion for a Hearing for the Sole Purpose of
Establishing Factual Allegation for claim of Immunity as a Jurisdictional Defense." So
as to facilitate the determination of its defense of sovereign immunity, petitioner
prayed that a hearing be conducted to allow it to establish certain facts upon which
the said defense is based. Private respondent opposed this motion as well as the
motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring the resolution
on the motion for reconsideration until after trial on the merits and directing petitioner
to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes
the privilege of sovereign immunity only on its own behalf and on behalf of its official
representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by the
Department of Foreign Affairs, claiming that it has a legal interest in the outcome of
the case as regards the diplomatic immunity of petitioner, and that it "adopts by
reference, the allegations contained in the petition of the Holy See insofar as they
refer to arguments relative to its claim of sovereign immunity from suit" (Rollo, p. 87).
Private respondent opposed the intervention of the Department of Foreign
Affairs. In compliance with the resolution of this Court, both parties and the
Department of Foreign Affairs submitted their respective memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether
the petition for certiorari under Rule 65 of the Revised Rules of Court can be availed
of to question the order denying petitioner's motion to dismiss. The general rule is
that an order denying a motion to dismiss is not reviewable by the appellate courts,
the remedy of the movant being to file his answer and to proceed with the hearing
before the trial court. But the general rule admits of exceptions, and one of these is
when it is very clear in the records that the trial court has no alternative but to
dismiss the complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992];
Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it would
be a sheer waste of time and energy to require the parties to undergo the rigors of a
trial.
The other procedural question raised by private respondent is the personality
or legal interest of the Department of Foreign Affairs to intervene in the case in
behalf of the Holy See (Rollo, pp. 186-190). prLL
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. LLphil
In the case at bench, the Department of Foreign Affairs, through the Office of
Legal Affairs moved with this Court to be allowed to intervene on the side of
petitioner. The Court allowed the said Department to file its memorandum in support
of petitioner's claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to
the local courts by the respondents through their private counsels (Raquiza v.
Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil.
262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and
companion cases). In cases where the foreign states bypass the Foreign Office, the
courts can inquire into the facts and make their own determination as to the nature
of the acts and transactions involved.
III
The burden of the petition is that respondent trial court has no jurisdiction
over petitioner, being a foreign state enjoying sovereign immunity. On the other
hand, private respondent insists that the doctrine of non-suability is not anymore
absolute and that petitioner has divested itself of such a cloak when, of its own free
will, it entered into a commercial transaction for the sale of a parcel of land located in
the Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability, a brief look into
its status as a sovereign state is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the
monarch and he, as the Holy See, was considered a subject of International Law.
With the loss of the Papal States and the limitation of the territory under the Holy
See to an area of 108.7 acres, the position of the Holy See in International Law
became controversial (Salonga and Yap, Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy
recognized the exclusive dominion and sovereign jurisdiction of the Holy See over
the Vatican City. It also recognized the right of the Holy See to receive foreign
diplomats, to send its own diplomats to foreign countries, and to enter into treaties
according to International Law (Garcia, Questions and Problems In International
Law, Public and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the
purpose of assuring to the Holy See absolute and visible independence and of
guaranteeing to it indisputable sovereignty also in the field of international relations"
(O'Connell, I International Law 311 [1965]). llcd
In view of the wordings of the Lateran Treaty, it is difficult to determine
whether the statehood is vested in the Holy See or in the Vatican City. Some writers
even suggested that the treaty created two international persons — the Holy See
and Vatican City (Salonga and Yap, supra., 37).
The Vatican City fits into none of the established categories of states, and
the attribution to it of "sovereignty" must be made in a sense different from that in
which it is applied to other states (Fenwick, International Law 124-125 [1948]; Cruz,
International Law 37 [1991]). In a community of national states, the Vatican City
represents an entity organized not for political but for ecclesiastical purposes and
international objects. Despite its size and object, the Vatican City has an
independent government of its own, with the Pope, who is also head of the Roman
Catholic Church, as the Holy See or Head of State, in conformity with its traditions,
and the demands of its mission in the world. Indeed, the world-wide interests and
activities of the Vatican City are such as to make it in a sense an "international state"
(Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).
One authority wrote that the recognition of the Vatican City as a state has
significant implication — that it is possible for any entity pursuing objects essentially
different from those pursued by states to be invested with international personality
(Kunz, The Status of the Holy See in International Law, 46 The American Journal of
International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into
transactions as the Holy See and not in the name of the Vatican City, one can
conclude that in the Pope's own view, it is the Holy See that is the international
person.
The Republic of the Philippines has accorded the Holy See the status of a
foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has
had diplomatic representations with the Philippine government since 1957 (Rollo, p.
87). This appears to be the universal practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have
adopted the generally accepted principles of International Law. Even without this
affirmation, such principles of International Law are deemed incorporated as part of
the law of the land as a condition and consequence of our admission in the society
of nations (United States of America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held
and firmly established. According to the classical or absolute theory, a sovereign
cannot, without its consent, be made a respondent in the courts of another
sovereign. According to the newer or restrictive theory, the immunity of the
sovereign is recognized only with regard to public acts or acts jure imperii of a state,
but not with regard to private acts or acts jure gestionis (United States of America v.
Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International
Law 194 [1984]). prLL
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]).
LLpr
On the other hand, this Court has considered the following transactions by a
foreign state with private parties as acts jure gestionis: (1) the hiring of a cook in the
recreation center, consisting of three restaurants, a cafeteria, a bakery, a store, and
a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to
American servicemen and the general public (United States of America v. Rodrigo,
182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in Clark
Air Base in Angeles City (United States of America v. Guinto, 182 SCRA 644
[1990]). The operation of the restaurants and other facilities open to the general
public is undoubtedly for profit as a commercial and not a governmental activity. By
entering into the employment contract with the cook in the discharge of its
proprietary function, the United States government impliedly divested itself of its
sovereign immunity from suit.
In the absence of legislation defining what activities and transactions shall be
considered "commercial" and as constituting acts jure gestionis, we have to come
out with our own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a private
party cannot be the ultimate test. Such an act can only be the start of the inquiry.
The logical question is whether the foreign state is engaged in the activity in the
regular course of business. If the foreign state is not engaged regularly in a business
or trade, the particular act or transaction must then be tested by its nature. If the act
is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure
imperii, especially when it is not undertaken for gain or profit. LLjur
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. LLphil
The decision to transfer the property and the subsequent disposal thereof
are likewise clothed with a governmental character. Petitioner did not sell Lot 5-A for
profit or gain. It merely wanted to dispose off the same because the squatters living
thereon made it almost impossible for petitioner to use it for the purpose of the
donation. The fact that squatters have occupied and are still occupying the lot, and
that they stubbornly refuse to leave the premises, has been admitted by private
respondent in its complaint (Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be determined by the trial court
without going to trial in the light of the pleadings, particularly the admission of private
respondent. Besides, the privilege of sovereign immunity in this case was sufficiently
established by the Memorandum and Certification of the Department of Foreign
Affairs. As the department tasked with the conduct of the Philippines' foreign
relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of
Foreign Affairs has formally intervened in this case and officially certified that the
Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of
the Philippines exempt from local jurisdiction and entitled to all the rights, privileges
and immunities of a diplomatic mission or embassy in this country (Rollo, pp. 156-
157). The determination of the executive arm of government that a state or
instrumentality is entitled to sovereign or diplomatic immunity is a political question
that is conclusive upon the courts (International Catholic Migration Commission v.
Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the courts to accept this claim so
as not to embarrass the executive arm of the government in conducting the country's
foreign relations (World Health Organization v. Aquino, 48 SCRA 242 [1972]). As in
International Catholic Migration Commission and in World Health Organization, we
abide by the certification of the Department of Foreign Affairs. cdll
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. cdphil
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, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan and Mendoza, JJ., concur.

Padilla, J., took no part.

Feliciano, J., is on leave.

||| (The Holy See v. Rosario, Jr., G.R. No. 101949, [December 1, 1994], 308 PHIL 547-
561)