large, the representation of the interests of the sending state and

244 SUPREME COURT REPORTS ANNOTATED promoting friendly relations with the receiving state.
Same; Same; Same; Heads of diplomatic missions, classified.
Minucher vs. Court of Appeals —The Convention lists the classes of heads of diplomatic missions to
G.R. No. 142396. February 11, 2003. *
include (a) ambassadors or nuncios accredited to the heads of state,
KHOSROW MINUCHER, petitioner, vs. HON. COURT OF (b) envoys, ministers or internuncios accredited to the heads of
APPEALS and ARTHUR SCALZO, respondents. states; and (c) charges d’ affairs accredited to the ministers of
International Law; Vienna Convention on Diplomatic foreign affairs.Comprising the “staff of the (diplomatic) mission” are
Relations; Diplomatic Missions; Function; Conformably with the the diplomatic staff, the administrative staff and the technical and
Vienna Convention, the functions of the diplomatic mission involve, service staff. Only the heads of missions, as well as members of the
by and large, the representation of the interests of the sending state diplomatic staff, excluding the members of the administrative,
and promoting friendly relations with the receiving state.—The technical and service staff of the mission, are accorded diplomatic
Vienna Convention on Diplomatic Relations was a codification of rank.
centuries-old customary law and, by the time of its ratification on 18 Same; same; Same; Diplomatic Immunity; Only “diplomatic
April 1961, its rules of law had long become stable. Among the city agents”, under the terms of the Convention, are vested with blanket
states of ancient Greece, among the peoples of the Mediterranean diplomatic immunity from civil and criminal suits.—Only
before the establishment of the Roman Empire, and among the states “diplomatic agents,” under the terms of the Convention, are vested
of India, the person of the herald in time of war and the person of the with blanket diplomatic immunity from civil and criminal suits. The
diplomatic envoy in time of peace were universally held Convention defines “diplomatic agents” as the heads of missions or
sacrosanct.By the end of the 16th century, when the earliest treatises members of the diplomatic staff, thus impliedly withholding the
on diplomatic law were published, the inviolability of ambassadors same privileges from all others.
was firmly established as a rule of customary international law, Same; Same; Same; Same; Indeed, the main yardstick in
Traditionally, the exercise of diplomatic intercourse among states ascertaining whether a person is a diplomat entitled to immunity is
was undertaken by the head of state himself, as being the preeminent the determination of whether or not he performs duties of diplomatic
embodiment of the state he represented, and the foreign secretary, the nature.—It might bear stressing that even consuls, who represent
official usually entrusted with the external affairs of the state. Where their respective states in concerns of commerce and navigation and
a state would wish to have a more prominent diplomatic presence in perform certain administrative and notarial duties, such as the
the receiving state, it would then send to the latter 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
*
 FIRST DIVISION.
the reason that they are not charged with the duty of representing
245
their states in political matters. Indeed, the main yardstick in
VOL. 397, FEBRUARY 11, 2003 245 ascertaining whether a person is a diplomat entitled to immunity is
Minucher vs. Court of Appeals the determination of whether or not he performs duties of diplomatic
a diplomatic mission. Conformably with the Vienna nature.
Convention, the functions of the diplomatic mission involve, by and
 Same; Same; Same; Same; Suing a representative of a state is done with malice and in bad faith or beyond the scope of his
believed to be, in effect, suing the state itself—the proscription is not authority and jurisdiction.
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. PETITION for review on certiorari of a decision of the Court
—The precept that a State cannot be sued in the courts of a foreign of Appeals.
state is a long-standing rule of customary international law then
closely identified with the personal immunity of a foreign sovereign The facts are stated in the opinion of the Court.
from suit and, with the emergence of democratic states, made to      Vicente D. Millora for petitioner.
attach not just to the person of the head of state, or his representative,      Abello, Concepcion, Regala and Cruz for private
but also distinctly to the state itself in its respondent.
246
246 SUPREME COURT REPORTS ANNOTATED VITUG, J.:
Minucher vs. Court of Appeals
sovereign capacity. If the acts giving rise to a suit are those of a Sometime in May 1986, an Information for violation of Section
foreign government done by its foreign agent, although not 4 of Republic Act No. 6425, otherwise also known as the
necessarily a diplomatic personage, but acting in his official “Dangerous Drugs Act of 1972,” was filed against petitioner
capacity, the complaint could be barred by the immunity of the Khosrow Minucher and one Abbas Torabian with the Regional
foreign sovereign from suit without its consent. Suing a
Trial Court, Branch 151, of Pasig City. The criminal charge
representative of a state is believed to be, in effect, suing the state
itself. The proscription is not accorded for the benefit of an followed a “buy-bust operation” conducted by the Philippine
individual but for the State, in whose service he is, under the maxim police narcotic agents in the house of Minucher, an Iranian
—par in parem, non habet imperium—that all states are sovereign national, where a quantity of heroin, a prohibited drug, was
equals and cannot assert jurisdiction over one another. said to have been seized. The narcotic agents were
Same; Same; Same; Same; Exception; The doctrine of accompanied by private respondent Arthur Scalzo who would,
immunity from suit will not apply and may not be invoked where the in due time, become one of the principal witnesses for the
public official is being sued in his private and personal capacity as 247
an ordinary citizen.—(T)he doctrine of immunity from suit will not VOL. 397, FEBRUARY 11, 2003 247
apply and may not be invoked where the public official is being sued Minucher vs. Court of Appeals
in his private and personal capacity as an ordinary citizen. The cloak
of protection afforded the officers and agents of the government is
prosecution. On 08 January 1988, Presiding Judge Eutropio
removed the moment they are sued in their individual capacity. This Migrino rendered a decision acquitting the two accused.
situation usually arises where the public official acts without On 03 August 1988, Minucher filed Civil Case No. 88-
authority or in excess of the powers vested in him. It is a well-settled 45691 before the Regional Trial Court (RTC), Branch 19, of
principle of law that a public official may be liable in his personal Manila for damages on account of what he claimed to have
private capacity for whatever damage he may have caused by his act been trumped-up charges of drug trafficking made by Arthur
Scalzo. The Manila RTC detailed what it had found to be the 248
facts and circumstances surrounding the case. 248 SUPREME COURT REPORTS ANNOTATED
“The testimony of the plaintiff disclosed that he is an Iranian Minucher vs. Court of Appeals
national. He came to the Philippines to study in the University of the “On May 19, 1986, the defendant called the plaintiff and invited the
Philippines in 1974. In 1976, under the regime of the Shah of Iran, he latter for dinner at Mario’s Restaurant at Makati. He wanted to buy
was appointed Labor Attaché for the Iranian Embassies in Tokyo, 200 grams of caviar. Plaintiff brought the merchandize but for the
Japan and Manila, Philippines. When the Shah of Iran was deposed reason that the defendant was not yet there, he requested the
by Ayatollah Khomeini, plaintiff became a refugee of the United restaurant people to x x x place the same in the refrigerator.
Nations and continued to stay in the Philippines. He headed the Defendant, however, came and plaintiff gave him the caviar for
Iranian National Resistance Movement in the Philippines. which he was paid. Then their conversation was again focused on
“He came to know the defendant on May 13, 1986, when the politics and business.
latter was brought to his house and introduced to him by a certain “On May 26, 1986, defendant visited plaintiff again at the latter’s
Jose Iñigo, an informer of the Intelligence Unit of the military. Jose residence for 18 years at Kapitolyo, Pasig. The defendant wanted to
Iñigo, on the other hand, was met by plaintiff at the office of Atty. buy a pair of carpets which plaintiff valued at $27,900.00. After
Crisanto Saruca, a lawyer for several Iranians whom plaintiff assisted some haggling, they agreed at $24,000.00. For the reason that
as head of the anti-Khomeini movement in the Philippines. defendant did not yet have the money, they agreed that defendant
“During his first meeting with the defendant on May 13, 1986, would come back the next day. The following day, at 1:00 p.m., he
upon the introduction of Jose Inigo, the defendant expressed his came back with his $24,000.00, which he gave to the plaintiff, and
interest in buying caviar. As a matter of fact, he bought two kilos of the latter, in turn, gave him the pair of carpets.
caviar from plaintiff and paid P10,000.00 for it. Selling caviar, aside “At about 3:00 in the afternoon of May 27, 1986, the defendant
from that of Persian carpets, pistachio nuts and other Iranian came back again to plaintiff’s house and directly proceeded to the
products was his business after the Khomeini government cut his latter’s bedroom, where the latter and his countryman, Abbas
pension of over $3,000.00 per month. During their introduction in Torabian, were playing chess. Plaintiff opened his safe in the
that meeting, the defendant gave the plaintiff his calling card, which bedroom and obtained $2,000.00 from it, gave it to the defendant for
showed that he is working at the US Embassy in the Philippines, as a the latter’s fee in obtaining a visa for plaintiff’s wife. The defendant
special agent of the Drug Enforcement Administration, Department told him that he would be leaving the Philippines very soon and
of Justice, of the United States, and gave his address as US Embassy, requested him to come out of the house for a while so that he can
Manila. At the back of the card appears a telephone number in introduce him to his cousin waiting in a cab. Without much ado, and
defendant’s own handwriting, the number of which he can also be without putting on his shirt as he was only in his pajama pants, he
contacted. followed the defendant where he saw a parked cab opposite the
“It was also during this first meeting that plaintiff expressed his street. To his complete surprise, an American jumped out of the cab
desire to obtain a US Visa for his wife and the wife of a countryman with a drawn high-powered gun. He was in the company of about 30
named Abbas Torabian. The defendant told him that he [could] help to 40 Filipino soldiers with 6 Americans, all armed. He was
plaintiff for a fee of $2,000.00 per visa, Their conversation, however, handcuffed and after about 20 minutes in the street, he was brought
was more concentrated on politics, carpets and caviar. Thereafter, the inside the house by the defendant. He was made to sit down while in
defendant promised to see plaintiff again. handcuffs while the defendant was inside his bedroom. The
defendant came out of the bedroom and out from defendant’s attaché During the trial, the law firm of Luna, Sison and Manas, filed a
case, he took something and placed it on the table in front of the special appearance for Scalzo and moved for extension of time
plaintiff. They also took plaintiff’s wife who was at that time at the to file an answer pending a supposed advice from the United
boutique near his house and likewise arrested Torabian, who was States Department of State and Department of Justice on the
playing chess with him in the bedroom and both were handcuffed defenses to be raised. The trial court granted the motion. On 27
together. Plaintiff was not told why he was being handcuffed and
October 1988, Scalzo filed another special appearance to quash
why the privacy of his house, especially his bedroom was invaded by
defendant. He was not allowed to use the telephone. In fact, his the summons on the ground that he, not being a resident of the
telephone was unplugged. He asked for any warrant, but the Philippines and the action being one in personam, was beyond
defendant told him to ‘shut up.’ He was nevertheless told that he the processes of the court. The motion was denied by the court,
would be able to call for his lawyer who can defend him. in its order of 13 December 1988, holding that the filing by
“The plaintiff took note of the fact that when the defendant Scalzo of a motion for extension of time to file an answer to the
invited him to come out to meet his cousin, his safe was opened complaint was a voluntary appearance equivalent to service of
where he kept the $24,000.00 the defendant paid for the carpets and summons which could likewise be construed a waiver of the
another $8,000.00 which he also placed in the safe together with a requirement of formal notice. Scalzo filed a motion for
bracelet worth $15,000.00 and a pair of earrings worth $10,000.00. reconsideration of the court order, contending that a motion for
He also discovered missing upon an extension of time to file an answer was not a voluntary
249
appearance equivalent to service of summons since it did not
VOL. 397, FEBRUARY 11, 2003 249
seek an affirmative relief. Scalzo argued that in cases involving
Minucher vs. Court of Appeals the United States government, as well as its agencies and
his release his 8 pieces hand-made Persian carpets, valued at officials, a motion for extension was peculiarly unavoidable
$65,000.00, a painting he bought for P30,000.00 together with his
due to the need (1) for both the Department of State and the
TV and betamax sets. He claimed that when he was handcuffed, the
defendant took his keys from his wallet. There was, therefore, Department of Justice to agree on the defenses to be raised and
nothing left in his house. (2) to refer the case to a Philippine lawyer who would be
“That his arrest as a heroin trafficker x x x had been well expected to first review the case. The court a quo denied the
publicized throughout the world, in various newspapers, particularly motion for reconsideration in its order of 15 October 1989.
in Australia, America, Central Asia and in the Philippines. He was _______________
identified in the papers as an international drug trafficker. x x x
 Rollo, pp. 39-42.
1

In fact, the arrest of defendant and Torabian was likewise on

250
television, not only in the Philippines, but also in America and in
Germany. His friends in said places informed him that they saw him 250 SUPREME COURT REPORTS ANNOTATED
on TV with said news. Minucher vs. Court of Appeals
“After the arrest made on plaintiff and Torabian, they were Scalzo filed a petition for review with the Court of Appeals,
brought to Camp Crame handcuffed together, where they were there docketed CA-G.R. No. 17023, assailing the denial. In a
detained for three days without food and water.”1
decision, dated 06 October 1989, the appellate court denied the
petition and affirmed the ruling of the trial court. Scalzo then On 27 July 1990, Scalzo filed a petition for certiorari with
elevated the incident in a petition for review injunction with this Court, docketed G.R. No. 94257 and
on certiorari, docketed G.R. No. 91173, to this Court. The entitled “Arthur W. Scalzo, Jr. vs. Hon. Wenceslao Polo, et
petition, however, was denied for its failure to comply with SC al.,” asking that the complaint in Civil Case No. 88-45691 be
Circular No. 1-88; in any event, the Court added, Scalzo had ordered dismissed. The case was referred to the Court of
failed to show that the appellate court was in error in its Appeals, there docketed CA-G.R. SP No. 22505, per this
questioned judgment. Court’s resolution of 07 August 1990. On 31 October 1990, the
Meanwhile, at the court a quo, an order, dated 09 February Court of Appeals promulgated its decision
1990, was issued (a) declaring Scalzo in default for his failure 251
to file a responsive pleading (answer) and (b) setting the case VOL. 397, FEBRUARY 11, 2003 251
for the reception of evidence. On 12 March 1990, Scalzo filed a Minucher vs. Court of Appeals
motion to set aside the order of default and to admit his answer sustaining the diplomatic immunity of Scalzo and ordering the
to the complaint. Granting the motion, the trial court set the dismissal of the complaint against him. Minucher filed a
case for pretrial. In his answer, Scalzo denied the material petition for review with this Court, docketed G.R. No.
allegations of the complaint and raised the affirmative defenses 97765 and entitled “Khosrow Minucher vs. the Honorable
(a) of Minucher’s failure to state a cause of action in his Court of Appeals, et al.” (cited in 214 SCRA 242), appealing
complaint and (b) that Scalzo had acted in the discharge of his the judgment of the Court of Appeals. In a decision, dated 24
official duties as being merely an agent of the Drug September 1992, penned by Justice (now Chief Justice) Hilario
Enforcement Administration of the United States Department Davide, Jr., this Court reversed the decision of the appellate
of Justice. Scalzo interposed a counter-claim of P100,000.00 to court and remanded the case to the lower court for trial. The
answer for attorneys’ fees and expenses of litigation. remand was ordered on the theses (a) that the Court of Appeals
Then, on 14 June 1990, after almost two years since the erred in granting the motion to dismiss of Scalzo for lack of
institution of the civil case, Scalzo filed a motion to dismiss the jurisdiction over his person without even considering the issue
complaint on the ground that, being a special agent of the of the authenticity of Diplomatic Note No. 414 and (b) that the
United States Drug Enforcement Administration, he was complaint contained sufficient allegations to the effect that
entitled to diplomatic immunity. He attached to his motion Scalzo committed the imputed acts in his personal capacity and
Diplomatic Note No. 414 of the United States Embassy, dated outside the scope of his official duties and, absent any evidence
29 May 1990, addressed to the Department of Foreign Affairs to the contrary, the issue on Scalzo’s diplomatic immunity
of the Philippines and a Certification, dated 11 June 1990, of could not be taken up.
Vice Consul Donna Woodward, certifying that the note is a The Manila RTC thus continued with its hearings on the
true and faithful copy of its original. In an order of 25 June case. On 17 November 1995, the trial court reached a decision;
1990, the trial court denied the motion to dismiss. it adjudged:
“WHEREFORE, and in view of all the foregoing considerations, different manner, and (2) whether or not Arthur Scalzo is
judgment is hereby rendered for the plaintiff, who successfully indeed entitled to diplomatic immunity.
established his claim by sufficient evidence, against the defendant in The doctrine of conclusiveness of judgment, or its kindred
the manner following: rule of res judicata, would require 1) the finality of the prior
“ ‘Adjudging defendant liable to plaintiff in actual and compensatory
damages of P520,000,00; moral damages in the sum of P10 million;
judgment, 2) a valid jurisdiction over the subject matter and the
exemplary damages in the sum of P100,000.00; attorney’s fees in the sum parties on the part of the court that renders it, 3) a judgment on
of P200,000.00 plus costs. the merits, and 4) an identity of the parties, subject matter and
‘The Clerk of the Regional Trial Court, Manila, is ordered to take note causes of action.  Even while one of the issues submitted
3

of the lien of the Court on this judgment to answer for the unpaid docket in G.R. No. 97765—“whether or not public respondent Court
fees considering that the plaintiff in this case instituted this action as a
pauper litigant.’ ” 2
of Appeals erred in ruling that private respondent Scalzo is a
While the trial court gave credence to the claim of Scalzo and diplomat immune from civil suit conformably with the Vienna
the evidence presented by him that he was a diplomatic agent Convention on Diplomatic Relations”—is also a pivotal
entitled to immunity as such, it ruled that he, nevertheless, question raised in the instant petition, the ruling in G.R. No.
should be held accountable for the acts complained of 97765, however, has not resolved that point with finality,
committed outside his official duties. On appeal, the Court of indeed, the Court there has made this observation—
“It may be mentioned in this regard that private respondent himself,
Appeals reversed the
_______________
in his Pre-trial Brief filed on 13 June 1990, unequivocally states that
he would present documentary evidence consisting of DEA records
 Rollo, p. 51.
2 on his investigation and surveillance of plaintiff and on his position
252 and duties as DEA special agent in Manila. Having thus reserved his
252 SUPREME COURT REPORTS ANNOTATED right to present evidence in support of his position, which is the basis
for the alleged diplomatic immunity, the barren self-serving claim in
Minucher vs. Court of Appeals
the belated motion to dismiss cannot be relied upon for a reasonable,
decision of the trial court and sustained the defense of Scalzo intelligent and fair resolution of the issue of diplomatic immunity.”4

that he was sufficiently clothed with diplomatic immunity Scalzo contends that the Vienna Convention on Diplomatic
during his term of duty and thereby immune from the criminal Relations, to which the Philippines is a signatory, grants him
and civil jurisdiction of the “Receiving State” pursuant to the absolute immunity from suit, describing his functions as an
terms of the Vienna Convention. agent of the
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  Linzag vs. CA, 291 SCRA 304 (1998).
3

 Minucher vs. Court of Appeals, 214 SCRA 242 (1992).

4

by this Court in G.R. No. 97765, should have precluded the

253
Court of Appeals from resolving the appeal to it in an entirely
VOL. 397, FEBRUARY 11, 2003 253
Minucher vs. Court of Appeals
United States Drug Enforcement Agency as “conducting member of the diplomatic staff of the United States diplomatic
surveillance operations on suspected drug dealers in the mission from his arrival in the Philippines on 14 October 1985
Philippines believed to be the source of prohibited drugs being until his departure on 10 August 1988; (2) that the United
shipped to the U.S., (and) having ascertained the target, (he States Government was firm from the very beginning in
then) would inform the Philippine narcotic agents (to) make the asserting the diplomatic immunity of Scalzo with respect to the
actual arrest.” Scalzo has submitted to the trial court a number case pursuant to the provisions of the Vienna Convention on
of documents— Diplomatic Relations; and (3) that the United States Embassy
repeatedly urged the Department of Foreign Affairs to take
1. 1.Exh. ‘2’—Diplomatic Note No. 414 dated 29 May appropriate action to inform the trial court of Scalzo’s
1990; diplomatic immunity. The other documentary exhibits were
2. 2.Exh. ‘1’—Certification of Vice Consul Donna K. presented to indicate that: (1) the Philippine government itself,
Woodward dated 11 June 1990; through its Executive Department, recognizing and respecting
3. 3.Exh. ‘5’—Diplomatic Note No. 757 dated 25 October the diplomatic status of Scalzo, formally advised the
1991; _______________
4. 4.Exh. ‘6’—Diplomatic Note No. 791 dated 17
 For documentary Exhibits Nos. “1-8”, see Rollo, pp. 143-155.
5

November 1992; and 254

5. 5.Exh. ‘7’—Diplomatic Note No. 833 dated 21 October 254 SUPREME COURT REPORTS ANNOTATED
1988.
Minucher vs. Court of Appeals
6. 6.Exh. ‘3’—1st Indorsement of the Hon. Jorge R.
“Judicial Department” of his diplomatic status and his
Coquia, Legal Adviser, Department of Foreign
entitlement to all diplomatic privileges and immunities under
Affairs, dated 27 June 1990 forwarding Embassy Note
the Vienna Convention; and (2) the Department of Foreign
No. 414 to the Clerk of Court of RTC Manila, Branch
Affairs itself authenticated Diplomatic Note No. 414. Scalzo
19 (the trial court);
additionally presented Exhibits “9” to “13” consisting of his
7. 7.Exh. ‘4’—Diplomatic Note No. 414, appended to the
reports of investigation on the surveillance and subsequent
1st Indorsement (Exh. ‘3’); and
arrest of Minucher, the certification of the Drug Enforcement
8. 8.Exh. ‘8’—Letter dated 18 November 1992 from the
Administration of the United States Department of Justice that
Office of the Protocol, Department of Foreign Affairs,
Scalzo was a special agent assigned to the Philippines at all
through Asst. Sec. Emmanuel Fernandez, addressed to
times relevant to the complaint, and the special power of
the Chief Justice of this Court.
5

attorney executed by him in favor of his previous counsel  to 6

show (a) that the United States Embassy, affirmed by its Vice
The documents, according to Scalzo, would show that: (1) the
Consul, acknowledged Scalzo to be a member of the
United States Embassy accordingly advised the Executive
diplomatic staff of the United States diplomatic mission from
Department of the Philippine Government that Scalzo was a
his arrival in the Philippines on 14 October 1985 until his
departure on 10 August 1988, (b) that, on May 1986, with the versally held sacrosanct. By the end of the 16th century, when
7

cooperation of the Philippine law enforcement officials and in the earliest treatises on diplomatic law were published, the
the exercise of his functions as member of the mission, he inviolability of ambassadors was firmly established as a rule of
investigated Minucher for alleged trafficking in a prohibited customary international law,  Traditionally, the exercise of
8

drug, and (c) that the Philippine Department of Foreign Affairs diplomatic intercourse among states was undertaken by the
itself recognized that Scalzo during his tour of duty in the head of state himself, as being the preeminent embodiment of
Philippines (14 October 1985 up to 10 August 1988) was listed the state he represented, and the foreign secretary, the official
as being an Assistant Attaché of the United States diplomatic usually entrusted with the external affairs of the state. Where a
mission and accredited with diplomatic status by the state would wish to have a more prominent diplomatic presence
Government of the Philippines. In his Exhibit 12, Scalzo in the receiving state, it would then send to the latter a
described the functions of the overseas office of the United diplomatic mission. Conformably with the Vienna Convention,
States Drug Enforcement Agency, i.e., (1) to provide criminal the functions of the diplomatic mission involve, by and large,
investigative expertise and assistance to foreign law the representation of the interests of the sending state and
enforcement agencies on narcotic and drug control programs promoting friendly relations with the receiving state. 9

upon the request of the host country, 2) to establish and The Convention lists the classes of heads of diplomatic
maintain liaison with the host country and counterpart foreign missions to include (a) ambassadors or nuncios accredited to
law enforcement officials, and 3) to conduct complex criminal the heads of state,  (b) 10
envoys,  ministers 11

investigations involving international criminal conspiracies or internuncios accredited to the

which affect the interests of the United States. _______________
The Vienna Convention on Diplomatic Relations was a 7
 Eileen Denza, “Diplomatic Law, A Commentary on the Vienna
codification of centuries-old customary law and, by the time of Convention on Diplomatic Relations,” 2nd Edition, Claredon Press, Oxford,
its ratification on 18 April 1961, its rules of law had long 1998, at 210.
become stable. Among the city states of ancient Greece, among 8
 Ibid.
the peoples of the Mediterranean before the establishment of
9
 Article 3 of the Vienna Convention enumerates the functions of the
diplomatic mission as
the Roman Empire, and among the states of India, the person of
the herald in time of war and the person of the diplomatic 1. (a)representing the sending State in the receiving State;
envoy in time of peace were uni- 2. (b)protecting in the receiving State the interests of the sending State
_______________ and of its nationals, within the limits permitted by international law;
3. (c)negotiating with the Government of the receiving State;
 For Documentary Exhibits Nos. “9-13”, See Rollo, pp. 156-168.
6 4. (d)ascertaining by all lawful means conditions and developments in
255 the receiving State, and reporting thereon to the Government of the
VOL. 397, FEBRUARY 11, 2003 255 sending State;
5. (e)promoting friendly relations between the sending State and the
Minucher vs. Court of Appeals receiving State, and developing their economic, cultural and
scientific relations.
 10
 Ambassadors are diplomatic agents of the first class, who deal, as a rule and envoys extraordinary, and ministers resident. He is the head of the legation
with the Minister of Foreign Affairs or the Secretary of State, as the case may in his own right and is not accredited to the head of State but to the foreign
be. (Melquiades J. Gamboa, “Elements of Diplomatic and Consular Practice, A office. According to Radloric, charges d’ affairs are sometimes used to describe
Glossary,” Central Lawbook Publishing, Co., 1966, p. 19.) a person who has been placed in custody of the archives and other property of a
11
Envoys are diplomatic agents of the second class. This is the title of the mission in a country with which formal diplomatic relations are not
head of legation as distinguished from an embassy, the head of which maintained. Charges d’ affairs ad interim, in contrast are usually those second
256 in command of the diplomatic mission—minister, counselor or first secretary,
256 SUPREME COURT REPORTS ANNOTATED who are only temporarily in charge of the mission during the absence of the
head of the mission. He is not accredited either to the Head of State or the
Minucher vs. Court of Appeals Foreign Office. (Gamboa, Ibid., pp. 51-52.)
heads of states; and (c) charges d’ affairs  accredited to the
12
13
 The classification of diplomatic representatives was considered significant
ministers of foreign affairs.  Comprising the “staff of the
13
before because direct communication with the head of state depended on the
rank of the diplomat and, moreover, only powerful states were regarded as
(diplomatic) mission” are the diplomatic staff, the entitled to send envoys of the highest rank. At present however, diplomatic
administrative staff and the technical and service staff. Only matters are usually discussed not with the head of state but with the foreign
the heads of missions, as well as members of the diplomatic secretary regardless of the diplomat’s rank. Moreover, it has become the
practice now for even the smallest and the weakest states to send diplomatic
staff, excluding the members of the administrative, technical
representatives of the highest rank, even to the major powers.
and service staff of the mission, are accorded diplomatic rank. (Cruz, International Law, 1985 Edition, p. 145.)
Even while the Vienna Convention on Diplomatic Relations 257
provides for immunity to the members of diplomatic missions, VOL. 397, FEBRUARY 11, 2003 257
it does so, nevertheless, with an understanding that the same be Minucher vs. Court of Appeals
restrictively applied. Only “diplomatic agents,” under the terms notarial duties, such as the issuance of passports and visas,
of the Convention, are vested with blanket diplomatic authentication of documents, and administration of oaths, do
immunity from civil and criminal suits. The Convention not ordinarily enjoy the traditional diplomatic immunities and
defines “diplomatic agents” as the heads of missions or privileges accorded diplomats, mainly for the reason that they
members of the diplomatic staff, thus impliedly withholding are not charged with the duty of representing their states in
the same privileges from all others. It might bear stressing that political matters. Indeed, the main yardstick in ascertaining
even consuls, who represent their respective states in concerns whether a person is a diplomat entitled to immunity is the
of commerce and navigation and perform certain administrative determination of whether or not he performs duties of
and diplomatic nature.
_______________
Scalzo asserted, particularly in his Exhibits “9” to “13”, that
is called Ambassador Extraordinary and Plenipotentiary. Like the he was an Assistant Attaché of the United States diplomatic
Ambassador, the envoy is also accredited to the Head of State. (Gamboa, p. mission and was accredited as such by the Philippine
190.) Government. An attaché belongs to a category of officers in the
12
 Charges d’ Affairs are either en titre or ad interim. Charges d’ Affairs en
titre are appointed on a permanent basis and belong to the fourth class of
diplomatic establishment who may be in charge of its cultural,
diplomatic envoys, the other three being ambassadors, ministers plenipotentiary press, administrative or financial affairs. There could also be a
class of attaches belonging to certain ministries or departments such claim, in view of the fact that it took private respondent one (1)
of the government, other than the foreign ministry or year, eight (8) months and seventeen (17) days from the time his
department, who are detailed by their respective ministries or counsel filed on 12 September 1988 a Special Appearance and
departments with the embassies such as the military, naval, air, 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
commercial, agricultural, labor, science, and customs attaches,
were studying the case for the purpose of determining his defenses,
or the like. Attaches assist a chief of mission in his duties and before he could secure the Diplomatic Note from the US Embassy in
are administratively under him, but their main function is to Manila, and even granting for the sake of argument that such note is
observe, analyze and interpret trends and developments in their authentic, the complaint for damages filed by petitioner cannot be
respective fields in the host country and submit reports to their peremptorily dismissed.
own ministries or departments in the home gov- “x x x     x x x     x x x
ernment.  These officials are not generally regarded as
14
“There is of course the claim of private respondent that the acts
members of the diplomatic mission, nor are they normally imputed to him were done in his official capacity. Nothing supports
designated as having diplomatic rank. this self-serving claim other than the so-called Diplomatic Note. x x
In an attempt to prove his diplomatic status, Scalzo x. The public respondent then should have sustained the trial court’s
presented Diplomatic Notes Nos. 414, 757 and 791, all denial of the motion to dismiss. Verily, it should have been the most
proper and appropriate recourse. It should not have been
issued post litem motam, respectively, on 29 May 1990, 25
overwhelmed by the self-serving Diplomatic Note whose belated
October 1991 and 17 November 1992. The presentation did issuance is even suspect and whose authenticity has not yet been
nothing much to alleviate the Court’s initial reservations proved. The undue haste with which respondent Court yielded to the
in G.R. No. 97765, viz.: private respondent’s claim is arbitrary.”
“While the trial court denied the motion to dismiss, the public A significant document would appear to be Exhibit No. 08,
respondent gravely abused its discretion in dismissing Civil Case No.
dated 08 November 1992, issued by the Office of Protocol of
8845691 on the basis of an erroneous assumption that simply
because of the diplomatic note, the private respondent is clothed with
the Department of Foreign Affairs and signed by Emmanuel C.
diplomatic immunity, thereby divesting the trial court of jurisdiction Fernandez, Assistant Secretary, certifying that “the records of
over his person. the Department (would) show that Mr. Arthur W. Scalzo, Jr.,
“x x x     x x x     x x x during his term of office in the Philippines (from 14 October
_______________ 1985 up to 10 August 1988) was listed as an Assistant Attaché
of the United States diplomatic mission and was, therefore,
 Gamboa, supra, pp. 32-33.
14

258
accredited diplomatic status by the Government of the
Philippines.” No certified true copy of such “records,” the
258 SUPREME COURT REPORTS ANNOTATED
supposed bases for the belated issuance, was presented in
Minucher vs. Court of Appeals evidence.
“And now, to the core issue—the alleged diplomatic immunity of
Concededly, vesting a person with diplomatic immunity is a
the private respondent. Setting aside for the moment the issue of
authenticity raised by the petitioner and the doubts that surround
prerogative of the executive branch of the government.
In World Health Organization vs. Aquino  the Court has
15
But while the diplomatic immunity of Scalzo might thus
recognized that, in such matters, the hands of the courts are remain contentious, it was sufficiently established that, indeed,
virtually tied. Amidst apprehensions of indiscriminate and he worked for the United States Drug Enforcement Agency and
incautious grant of immunity, designed to gain exemption from was tasked to conduct surveillance of suspected drug activities
the jurisdiction of courts, it 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
15
 48 SCRA 242 (1972).
259 the complaint, the present controversy could then be resolved
VOL. 397, FEBRUARY 11, 2003 259 under the related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a
Minucher vs. Court of Appeals
foreign state is a long-standing rule of customary international
should behoove the Philippine government, specifically its law then closely identified with the personal immunity of a
Department of Foreign Affairs, to be most circumspect, that foreign sovereign
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  J.L. Brierly, “The Law of Nations,” Oxford University Press, 6th Edition,
16

sovereign or from ensuing legal liability; it is, rather, an 1963, p. 244.

 Denza, supra, at p. 16.
17

immunity from the exercise of territorial jurisdiction.  The 16

 Ibid.18

government of the United States itself, which Scalzo claims to  Ibid., at p. 55.
19

be acting for, has formulated its standards for recognition of a 260

diplomatic agent. The State Department policy is to only 260 SUPREME COURT REPORTS ANNOTATED
concede diplomatic status to a person who possesses an Minucher vs. Court of Appeals
acknowledged diplomatic title and “performs duties of from suit  and, with the emergence of democratic states, made
20

diplomatic nature.” Supplementary criteria for accreditation

17
to attach not just to the person of the head of state, or his
are the possession of a valid diplomatic passport or, from States representative, but also distinctly to the state itself in its
which do not issue such passports, a diplomatic note formally sovereign capacity.  If the acts giving rise to a suit are those of
21

representing the intention to assign the person to diplomatic a foreign government done by its foreign agent, although not
duties, the holding of a non-immigrant visa, being over twenty- necessarily a diplomatic personage, but acting in his official
one years of age, and performing diplomatic functions on an capacity, the complaint could be barred by the immunity of the
essentially full-time basis.  Diplomatic missions are requested
18
foreign sovereign from suit without its consent. Suing a
to provide the most accurate and descriptive job title to that representative of a state is believed to be, in effect, suing the
which currently applies to the duties performed. The Office of state itself. The proscription is not accorded for the benefit of
the Protocol would then assign each individual to the an individual but for the State, in whose service he is, under the
appropriate functional cate-gory. 19
maxim—par in parem, non habet imperium—that all states are
sovereign equals and cannot assert jurisdiction over one In United States of America vs. Guinto,  involving officers
24

another.  The implication, in broad terms, is that if the

22
of the United States Air Force and special officers of the Air
judgment against an official would require the state itself to Force Office of Special Investigators charged with the duty of
perform an affirmative act to satisfy the award, such as the preventing the distribution, possession and use of prohibited
appropriation of the amount needed to pay the damages drugs, this Court has ruled—
decreed against him, the suit “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
20
 Charles G. Fenwick, “International Law,” Appleton-Century-Crofts, Inc., performed by them in the discharge of their duties. x x x. It cannot
New York, 1948, pp. 307-308. for a moment be imagined that they were acting in their private or
21
 The international law on sovereign immunity of states from suit in the
courts of another state has evolved from national court decisions with good deal
unofficial capacity when they apprehended and later testified against
of variance in perspectives. Even though national cases have been the major the complainant. It follows that for discharging their duties as agents
source of pronouncements on sovereign immunity, it should be noted that these of the United States, they cannot be directly impleaded for acts
constitute evidence of customary international law now widely recognized. In imputable to their principal, which has not given its consent to be
the latter half of the 20th century, a great deal of consensus on what is covered sued. x x x As they have acted on behalf of the government, and
by sovereign immunity appears to be emerging, i.e., that state immunity covers within the scope of their authority, it is that government, and not the
only acts which deal with the government functions of a state, and excludes, any
petitioners personally, [who were] responsible for their acts.”
25

of its commercial activities, or activities not related to “sovereign acts.” The

consensus involves a more defined differentiation between public acts (juri This immunity principle, however, has its limitations.
imperil) and private acts (jure gestionis). (Gary L. Maris, “International Law, Thus, Shauf vs. Court of Appeals  elaborates:
26

An Introduction,” University Press of America, 1984, p. 119; D.W. Grieg,

“It is a different matter where the public official is made to account
“International Law,” London Butterworths, 1970, p. 221.) in his capacity as such for acts contrary to law and injurious to the
The United States for example, does not claim immunity for its publicly
rights of the plaintiff. As was clearly set forth by Justice Zaldivar
owned or operated merchant vessels. The Italian courts have rejected claims of
in Director of the Bureau of Telecommunications, et al. vs. Aligaen,
immunity from the US Shipping Board, although a state body, as it could not be
et al. (33 SCRA 368): ‘Inasmuch as the State authorizes only legal
identified with the American government on the ground that undertaking
acts by its officers, unauthorized acts of government officials or
maritime navigation and business as a commercial enterprise do not constitute a
officers are not acts of the State, and an action against the officials or
sovereign act. (D.W. Grieg, “International Law,” London Butterworths, 1970,
p. 221.) officers by one whose rights have been invaded or violated by such
22
 See Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812), cited in
acts, for the protection of his rights, is not a suit against the State
Charles G. Fenwick, “International Law,” New York, 3rd Edition (1948), p.
307.
within the rule of immunity of the State from suit. In the same tenor,
261 it has been said that an action at law or suit in equity against a State
VOL. 397, FEBRUARY 11, 2003 261 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
Minucher vs. Court of Appeals property rights of the plaintiff, under an unconstitutional act or under
must be regarded as being against the state itself, although it an assumption of authority which he does not have, is not a suit
has not been formally impleaded. 23 _______________
 23
 United States of America, et al. vs. Guinto, etc., et al., G.R. No. 76607, 26 the consent or imprimatur of the Philippine government to the
February 1990, 182 SCRA 644.
24
 182 SCRA 644 (1982). activities of the United States Drug Enforcement Agency,
25
 At pp. 653-659. however, can be gleaned from the facts heretofore elsewhere
26
 191 SCRA 713 (1990). mentioned. The official exchanges of communication between
262
agencies of the government of the two countries, certifications
262 SUPREME COURT REPORTS ANNOTATED from officials of both the Philippine Department of Foreign
Minucher vs. Court of Appeals Affairs and the United States Embassy, as well as the
against the State within the constitutional provision that the State participation of members of the Philippine Narcotics Command
may not be sued without its consent. The rationale for this ruling is in the “buy-bust operation” conducted at the residence of
that the doctrine of state immunity cannot be used as an instrument Minucher at the behest of Scalzo, may be inadequate to support
for perpetrating an injustice.
the “diplomatic status” of the latter but they give enough
“x x x     x x x     x x x
“(T)he doctrine of immunity from suit will not apply and may not indication that the Philippine government has given
be invoked where the public official is being sued in his private and its imprimatur, if not consent, to the activities within Philippine
personal capacity as an ordinary citizen. The cloak of protection territory of agent Scalzo of the United States Drug
afforded the officers and agents of the government is removed the Enforcement
moment they are sued in their individual capacity. This situation _______________
usually arises where the public official acts without authority or in
 At pp. 727-728.
27

excess of the powers vested in him. It is a well-settled principle of

263
law that a public official may be liable in his personal private
capacity for whatever damage he may have caused by his act done VOL. 397, FEBRUARY 11, 2003 263
with malice and in bad faith or beyond the scope of his authority and Minucher vs. Court of Appeals
jurisdiction.” 27
Agency. The job description of Scalzo has tasked him to
A foreign agent, operating within a territory, can be cloaked conduct surveillance on suspected drug suppliers and, after
with immunity from suit but only as long as it can be having ascertained the target, to inform local law enforcers
established that he is acting within the directives of the sending who would then be expected to make the arrest. In conducting
state. The consent of the host state is an indispensable surveillance activities on Minucher, later acting as the poseur-
requirement of basic courtesy between the two buyer during the buy-bust operation, and then becoming a
sovereigns. Guinto and Shauf both involve officers and principal witness in the criminal case against Minucher, Scalzo
personnel of the United States, stationed within Philippine hardly can be said to have acted beyond the scope of his
territory, under the RP-US Military Bases Agreement. While official function or duties.
evidence is wanting to show any similar agreement between the All told, this Court is constrained to rule that respondent
governments of the Philippines and of the United States (for Arthur Scalzo, an agent of the United States Drug Enforcement
the latter to send its agents and to conduct surveillance and Agency allowed by the Philippine government to conduct
related activities of suspected drug dealers in the Philippines),
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.
Petition denied.
Note.—While sovereignty has traditionally been deemed
absolute and all-encompassing on the domestic level, it is
however subject to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or impliedly, as a
member of the family of nations. (Tañada vs. Angara, 272
SCRA 18 [1997])

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264
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