G.R. No.

142396 February 11, 2003 "The testimony of the plaintiff disclosed that he is an Iranian
national. He came to the Philippines to study in the University
KHOSROW MINUCHER, petitioner, of the Philippines in 1974. In 1976, under the regime of the
vs. Shah of Iran, he was appointed Labor Attaché for the Iranian
HON. COURT OF APPEALS and ARTHUR Embassies in Tokyo, Japan and Manila, Philippines. When the
SCALZO, respondents. Shah of Iran was deposed by Ayatollah Khomeini, plaintiff
became a refugee of the United Nations and continued to stay
DECISION in the Philippines. He headed the Iranian National Resistance
Movement in the Philippines.
VITUG, J.:
"He came to know the defendant on May 13, 1986, when the
Sometime in May 1986, an Information for violation of Section latter was brought to his house and introduced to him by a
4 of Republic Act No. 6425, otherwise also known as the certain Jose Iñigo, an informer of the Intelligence Unit of the
"Dangerous Drugs Act of 1972," was filed against petitioner military. Jose Iñigo, on the other hand, was met by plaintiff at
Khosrow Minucher and one Abbas Torabian with the Regional the office of Atty. Crisanto Saruca, a lawyer for several
Trial Court, Branch 151, of Pasig City. The criminal charge Iranians whom plaintiff assisted as head of the anti-Khomeini
followed a "buy-bust operation" conducted by the Philippine movement in the Philippines.
police narcotic agents in the house of Minucher, an Iranian
national, where a quantity of heroin, a prohibited drug, was "During his first meeting with the defendant on May 13, 1986,
said to have been seized. The narcotic agents were upon the introduction of Jose Iñigo, the defendant expressed
accompanied by private respondent Arthur Scalzo who would, his interest in buying caviar. As a matter of fact, he bought two
in due time, become one of the principal witnesses for the kilos of caviar from plaintiff and paid P10,000.00 for it. Selling
prosecution. On 08 January 1988, Presiding Judge Eutropio caviar, aside from that of Persian carpets, pistachio nuts and
Migrino rendered a decision acquitting the two accused. other Iranian products was his business after the Khomeini
government cut his pension of over $3,000.00 per month.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 During their introduction in that meeting, the defendant gave
before the Regional Trial Court (RTC), Branch 19, of Manila for the plaintiff his calling card, which showed that he is working at
damages on account of what he claimed to have been the US Embassy in the Philippines, as a special agent of the
trumped-up charges of drug trafficking made by Arthur Scalzo. Drug Enforcement Administration, Department of Justice, of
The Manila RTC detailed what it had found to be the facts and the United States, and gave his address as US Embassy,
circumstances surrounding the case. Manila. At the back of the card appears a telephone number in
defendant’s own handwriting, the number of which he can also the latter's bedroom, where the latter and his countryman,
be contacted. Abbas Torabian, were playing chess. Plaintiff opened his safe
in the bedroom and obtained $2,000.00 from it, gave it to the
"It was also during this first meeting that plaintiff expressed his defendant for the latter's fee in obtaining a visa for plaintiff's
desire to obtain a US Visa for his wife and the wife of a wife. The defendant told him that he would be leaving the
countryman named Abbas Torabian. The defendant told him Philippines very soon and requested him to come out of the
that he [could] help plaintiff for a fee of $2,000.00 per visa. house for a while so that he can introduce him to his cousin
Their conversation, however, was more concentrated on waiting in a cab. Without much ado, and without putting on his
politics, carpets and caviar. Thereafter, the defendant shirt as he was only in his pajama pants, he followed the
promised to see plaintiff again. defendant where he saw a parked cab opposite the street. To
his complete surprise, an American jumped out of the cab with
"On May 19, 1986, the defendant called the plaintiff and invited a drawn high-powered gun. He was in the company of about
the latter for dinner at Mario's Restaurant at Makati. He wanted 30 to 40 Filipino soldiers with 6 Americans, all armed. He was
to buy 200 grams of caviar. Plaintiff brought the merchandize handcuffed and after about 20 minutes in the street, he was
but for the reason that the defendant was not yet there, he brought inside the house by the defendant. He was made to sit
requested the restaurant people to x x x place the same in the down while in handcuffs while the defendant was inside his
refrigerator. Defendant, however, came and plaintiff gave him bedroom. The defendant came out of the bedroom and out
the caviar for which he was paid. Then their conversation was from defendant's attaché case, he took something and placed
again focused on politics and business. it on the table in front of the plaintiff. They also took plaintiff's
wife who was at that time at the boutique near his house and
"On May 26, 1986, defendant visited plaintiff again at the likewise arrested Torabian, who was playing chess with him in
latter's residence for 18 years at Kapitolyo, Pasig. The the bedroom and both were handcuffed together. Plaintiff was
defendant wanted to buy a pair of carpets which plaintiff not told why he was being handcuffed and why the privacy of
valued at $27,900.00. After some haggling, they agreed at his house, especially his bedroom was invaded by defendant.
$24,000.00. For the reason that defendant did not yet have the He was not allowed to use the telephone. In fact, his telephone
money, they agreed that defendant would come back the next was unplugged. He asked for any warrant, but the defendant
day. The following day, at 1:00 p.m., he came back with his told him to `shut up.’ He was nevertheless told that he would
$24,000.00, which he gave to the plaintiff, and the latter, in be able to call for his lawyer who can defend him.
turn, gave him the pair of carpets.1awphi1.nét
"The plaintiff took note of the fact that when the defendant
"At about 3:00 in the afternoon of May 27, 1986, the defendant invited him to come out to meet his cousin, his safe was
came back again to plaintiff's house and directly proceeded to opened where he kept the $24,000.00 the defendant paid for
the carpets and another $8,000.00 which he also placed in the personam, was beyond the processes of the court. The motion
safe together with a bracelet worth $15,000.00 and a pair of was denied by the court, in its order of 13 December 1988,
earrings worth $10,000.00. He also discovered missing upon holding that the filing by Scalzo of a motion for extension of
his release his 8 pieces hand-made Persian carpets, valued at time to file an answer to the complaint was a voluntary
$65,000.00, a painting he bought for P30,000.00 together with appearance equivalent to service of summons which could
his TV and betamax sets. He claimed that when he was likewise be construed a waiver of the requirement of formal
handcuffed, the defendant took his keys from his wallet. There notice. Scalzo filed a motion for reconsideration of the court
was, therefore, nothing left in his house. order, contending that a motion for an extension of time to file
an answer was not a voluntary appearance equivalent to
"That his arrest as a heroin trafficker x x x had been well service of summons since it did not seek an affirmative relief.
publicized throughout the world, in various newspapers, Scalzo argued that in cases involving the United States
particularly in Australia, America, Central Asia and in the government, as well as its agencies and officials, a motion for
Philippines. He was identified in the papers as an international extension was peculiarly unavoidable due to the need (1) for
drug trafficker. x x x both the Department of State and the Department of Justice to
agree on the defenses to be raised and (2) to refer the case to
In fact, the arrest of defendant and Torabian was likewise on a Philippine lawyer who would be expected to first review the
television, not only in the Philippines, but also in America and case. The court a quo denied the motion for reconsideration in
in Germany. His friends in said places informed him that they its order of 15 October 1989.
saw him on TV with said news.
Scalzo filed a petition for review with the Court of Appeals,
"After the arrest made on plaintiff and Torabian, they were there docketed CA-G.R. No. 17023, assailing the denial. In a
brought to Camp Crame handcuffed together, where they were decision, dated 06 October 1989, the appellate court denied
detained for three days without food and water."1 the petition and affirmed the ruling of the trial court. Scalzo
then elevated the incident in a petition for review on certiorari,
During the trial, the law firm of Luna, Sison and Manas, filed a docketed G.R. No. 91173, to this Court. The petition, however,
special appearance for Scalzo and moved for extension of was denied for its failure to comply with SC Circular No. 1-88;
time to file an answer pending a supposed advice from the in any event, the Court added, Scalzo had failed to show that
United States Department of State and Department of Justice the appellate court was in error in its questioned judgment.
on the defenses to be raised. The trial court granted the
motion. On 27 October 1988, Scalzo filed another special Meanwhile, at the court a quo, an order, dated 09 February
appearance to quash the summons on the ground that he, not 1990, was issued (a) declaring Scalzo in default for his failure
being a resident of the Philippines and the action being one in to file a responsive pleading (answer) and (b) setting the case
for the reception of evidence. On 12 March 1990, Scalzo filed diplomatic immunity of Scalzo and ordering the dismissal of
a motion to set aside the order of default and to admit his the complaint against him. Minucher filed a petition for review
answer to the complaint. Granting the motion, the trial court with this Court, docketed G.R. No. 97765 and entitled
set the case for pre-trial. In his answer, Scalzo denied the "Khosrow Minucher vs. the Honorable Court of Appeals, et. al."
material allegations of the complaint and raised the affirmative (cited in 214 SCRA 242), appealing the judgment of the Court
defenses (a) of Minucher’s failure to state a cause of action in of Appeals. In a decision, dated 24 September 1992, penned
his complaint and (b) that Scalzo had acted in the discharge of by Justice (now Chief Justice) Hilario Davide, Jr., this Court
his official duties as being merely an agent of the Drug reversed the decision of the appellate court and remanded the
Enforcement Administration of the United States Department case to the lower court for trial. The remand was ordered on
of Justice. Scalzo interposed a counterclaim of P100,000.00 to the theses (a) that the Court of Appeals erred in granting the
answer for attorneys' fees and expenses of litigation. motion to dismiss of Scalzo for lack of jurisdiction over his
person without even considering the issue of the authenticity
Then, on 14 June 1990, after almost two years since the of Diplomatic Note No. 414 and (b) that the complaint
institution of the civil case, Scalzo filed a motion to dismiss the contained sufficient allegations to the effect that Scalzo
complaint on the ground that, being a special agent of the committed the imputed acts in his personal capacity and
United States Drug Enforcement Administration, he was outside the scope of his official duties and, absent any
entitled to diplomatic immunity. He attached to his motion evidence to the contrary, the issue on Scalzo’s diplomatic
Diplomatic Note No. 414 of the United States Embassy, dated immunity could not be taken up.
29 May 1990, addressed to the Department of Foreign Affairs
of the Philippines and a Certification, dated 11 June 1990, of The Manila RTC thus continued with its hearings on the case.
Vice Consul Donna Woodward, certifying that the note is a On 17 November 1995, the trial court reached a decision; it
true and faithful copy of its original. In an order of 25 June adjudged:
1990, the trial court denied the motion to dismiss.
"WHEREFORE, and in view of all the foregoing
On 27 July 1990, Scalzo filed a petition for certiorari with considerations, judgment is hereby rendered for the plaintiff,
injunction with this Court, docketed G.R. No. 94257 and who successfully established his claim by sufficient evidence,
entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et against the defendant in the manner following:
al.," asking that the complaint in Civil Case No. 88-45691 be
ordered dismissed. The case was referred to the Court of "`Adjudging defendant liable to plaintiff in actual and
Appeals, there docketed CA-G.R. SP No. 22505, per this compensatory damages of P520,000.00; moral damages in
Court’s resolution of 07 August 1990. On 31 October 1990, the the sum of P10 million; exemplary damages in the sum of
Court of Appeals promulgated its decision sustaining the
P100,000.00; attorney's fees in the sum of P200,000.00 plus the merits, and 4) an identity of the parties, subject matter and
costs. causes of action.3 Even while one of the issues submitted in
G.R. No. 97765 - "whether or not public respondent Court of
`The Clerk of the Regional Trial Court, Manila, is ordered to Appeals erred in ruling that private respondent Scalzo is a
take note of the lien of the Court on this judgment to answer diplomat immune from civil suit conformably with the Vienna
for the unpaid docket fees considering that the plaintiff in this Convention on Diplomatic Relations" - is also a pivotal
case instituted this action as a pauper litigant.’"2 question raised in the instant petition, the ruling in G.R. No.
97765, however, has not resolved that point with finality.
While the trial court gave credence to the claim of Scalzo and Indeed, the Court there has made this observation -
the evidence presented by him that he was a diplomatic agent
entitled to immunity as such, it ruled that he, nevertheless, "It may be mentioned in this regard that private respondent
should be held accountable for the acts complained of himself, in his Pre-trial Brief filed on 13 June 1990,
committed outside his official duties. On appeal, the Court of unequivocally states that he would present documentary
Appeals reversed the decision of the trial court and sustained evidence consisting of DEA records on his investigation and
the defense of Scalzo that he was sufficiently clothed with surveillance of plaintiff and on his position and duties as DEA
diplomatic immunity during his term of duty and thereby special agent in Manila. Having thus reserved his right to
immune from the criminal and civil jurisdiction of the present evidence in support of his position, which is the basis
"Receiving State" pursuant to the terms of the Vienna for the alleged diplomatic immunity, the barren self-serving
Convention. claim in the belated motion to dismiss cannot be relied upon
for a reasonable, intelligent and fair resolution of the issue of
Hence, this recourse by Minucher. The instant petition for diplomatic immunity."4
review raises a two-fold issue: (1) whether or not the doctrine
of conclusiveness of judgment, following the decision rendered Scalzo contends that the Vienna Convention on Diplomatic
by this Court in G.R. No. 97765, should have precluded the Relations, to which the Philippines is a signatory, grants him
Court of Appeals from resolving the appeal to it in an entirely absolute immunity from suit, describing his functions as an
different manner, and (2) whether or not Arthur Scalzo is agent of the United States Drugs Enforcement Agency as
indeed entitled to diplomatic immunity. "conducting surveillance operations on suspected drug dealers
in the Philippines believed to be the source of prohibited drugs
The doctrine of conclusiveness of judgment, or its kindred rule being shipped to the U.S., (and) having ascertained the target,
of res judicata, would require 1) the finality of the prior (he then) would inform the Philippine narcotic agents (to) make
judgment, 2) a valid jurisdiction over the subject matter and the the actual arrest." Scalzo has submitted to the trial court a
parties on the part of the court that renders it, 3) a judgment on number of documents -
 1. Exh. '2' - Diplomatic Note No. 414 dated 29 May member of the diplomatic staff of the United States diplomatic
1990; mission from his arrival in the Philippines on 14 October 1985
until his departure on 10 August 1988; (2) that the United
2. Exh. '1' - Certification of Vice Consul Donna K. States Government was firm from the very beginning in
Woodward dated 11 June 1990; asserting the diplomatic immunity of Scalzo with respect to the
case pursuant to the provisions of the Vienna Convention on
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October Diplomatic Relations; and (3) that the United States Embassy
1991; repeatedly urged the Department of Foreign Affairs to take
appropriate action to inform the trial court of Scalzo’s
4. Exh. '6' - Diplomatic Note No. 791 dated 17 diplomatic immunity. The other documentary exhibits were
November 1992; and presented to indicate that: (1) the Philippine government itself,
through its Executive Department, recognizing and respecting
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October the diplomatic status of Scalzo, formally advised the "Judicial
1988. Department" of his diplomatic status and his entitlement to all
diplomatic privileges and immunities under the Vienna
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Convention; and (2) the Department of Foreign Affairs itself
Coquia, Legal Adviser, Department of Foreign Affairs, authenticated Diplomatic Note No. 414. Scalzo additionally
dated 27 June 1990 forwarding Embassy Note No. 414 presented Exhibits "9" to "13" consisting of his reports of
to the Clerk of Court of RTC Manila, Branch 19 (the investigation on the surveillance and subsequent arrest of
trial court); Minucher, the certification of the Drug Enforcement
Administration of the United States Department of Justice that
7. Exh. '4' - Diplomatic Note No. 414, appended to the Scalzo was a special agent assigned to the Philippines at all
1st Indorsement (Exh. '3'); and times relevant to the complaint, and the special power of
attorney executed by him in favor of his previous counsel6 to
8. Exh. '8' - Letter dated 18 November 1992 from the show (a) that the United States Embassy, affirmed by its Vice
Office of the Protocol, Department of Foreign Affairs, Consul, acknowledged Scalzo to be a member of the
through Asst. Sec. Emmanuel Fernandez, addressed diplomatic staff of the United States diplomatic mission from
to the Chief Justice of this Court.5 his arrival in the Philippines on 14 October 1985 until his
departure on 10 August 1988, (b) that, on May 1986, with the
The documents, according to Scalzo, would show that: (1) the cooperation of the Philippine law enforcement officials and in
United States Embassy accordingly advised the Executive the exercise of his functions as member of the mission, he
Department of the Philippine Government that Scalzo was a investigated Minucher for alleged trafficking in a prohibited
drug, and (c) that the Philippine Department of Foreign Affairs would wish to have a more prominent diplomatic presence in
itself recognized that Scalzo during his tour of duty in the the receiving state, it would then send to the latter a diplomatic
Philippines (14 October 1985 up to 10 August 1988) was listed mission. Conformably with the Vienna Convention, the
as being an Assistant Attaché of the United States diplomatic functions of the diplomatic mission involve, by and large, the
mission and accredited with diplomatic status by the representation of the interests of the sending state and
Government of the Philippines. In his Exhibit 12, Scalzo promoting friendly relations with the receiving state.9
described the functions of the overseas office of the United
States Drugs Enforcement Agency, i.e., (1) to provide criminal The Convention lists the classes of heads of diplomatic
investigative expertise and assistance to foreign law missions to include (a) ambassadors or nuncios accredited to
enforcement agencies on narcotic and drug control programs the heads of state,10 (b) envoys,11 ministers
upon the request of the host country, 2) to establish and or internuncios accredited to the heads of states; and (c)
maintain liaison with the host country and counterpart foreign charges d' affairs12 accredited to the ministers of foreign
law enforcement officials, and 3) to conduct complex criminal affairs.13 Comprising the "staff of the (diplomatic) mission" are
investigations involving international criminal conspiracies the diplomatic staff, the administrative staff and the technical
which affect the interests of the United States. and service staff. Only the heads of missions, as well as
members of the diplomatic staff, excluding the members of the
The Vienna Convention on Diplomatic Relations was a administrative, technical and service staff of the mission, are
codification of centuries-old customary law and, by the time of accorded diplomatic rank. Even while the Vienna Convention
its ratification on 18 April 1961, its rules of law had long on Diplomatic Relations provides for immunity to the members
become stable. Among the city states of ancient Greece, of diplomatic missions, it does so, nevertheless, with an
among the peoples of the Mediterranean before the understanding that the same be restrictively applied. Only
establishment of the Roman Empire, and among the states of "diplomatic agents," under the terms of the Convention, are
India, the person of the herald in time of war and the person of vested with blanket diplomatic immunity from civil and criminal
the diplomatic envoy in time of peace were universally held suits. The Convention defines "diplomatic agents" as the
sacrosanct.7 By the end of the 16th century, when the earliest heads of missions or members of the diplomatic staff, thus
treatises on diplomatic law were published, the inviolability of impliedly withholding the same privileges from all others. It
ambassadors was firmly established as a rule of customary might bear stressing that even consuls, who represent their
international law.8 Traditionally, the exercise of diplomatic respective states in concerns of commerce and navigation and
intercourse among states was undertaken by the head of state perform certain administrative and notarial duties, such as the
himself, as being the preeminent embodiment of the state he issuance of passports and visas, authentication of documents,
represented, and the foreign secretary, the official usually and administration of oaths, do not ordinarily enjoy the
entrusted with the external affairs of the state. Where a state traditional diplomatic immunities and privileges accorded
diplomats, mainly for the reason that they are not charged with "While the trial court denied the motion to dismiss, the public
the duty of representing their states in political matters. respondent gravely abused its discretion in dismissing Civil
Indeed, the main yardstick in ascertaining whether a person is Case No. 88-45691 on the basis of an erroneous assumption
a diplomat entitled to immunity is the determination of whether that simply because of the diplomatic note, the private
or not he performs duties of diplomatic nature. respondent is clothed with diplomatic immunity, thereby
divesting the trial court of jurisdiction over his person.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he
was an Assistant Attaché of the United States diplomatic "x x x x x x x x x
mission and was accredited as such by the Philippine
Government. An attaché belongs to a category of officers in "And now, to the core issue - the alleged diplomatic immunity
the diplomatic establishment who may be in charge of its of the private respondent. Setting aside for the moment the
cultural, press, administrative or financial affairs. There could issue of authenticity raised by the petitioner and the doubts
also be a class of attaches belonging to certain ministries or that surround such claim, in view of the fact that it took private
departments of the government, other than the foreign ministry respondent one (1) year, eight (8) months and seventeen (17)
or department, who are detailed by their respective ministries days from the time his counsel filed on 12 September 1988 a
or departments with the embassies such as the military, naval, Special Appearance and Motion asking for a first extension of
air, commercial, agricultural, labor, science, and customs time to file the Answer because the Departments of State and
attaches, or the like. Attaches assist a chief of mission in his Justice of the United States of America were studying the case
duties and are administratively under him, but their main for the purpose of determining his defenses, before he could
function is to observe, analyze and interpret trends and secure the Diplomatic Note from the US Embassy in Manila,
developments in their respective fields in the host country and and even granting for the sake of argument that such note is
submit reports to their own ministries or departments in the authentic, the complaint for damages filed by petitioner cannot
home government.14 These officials are not generally regarded be peremptorily dismissed.
as members of the diplomatic mission, nor are they normally
designated as having diplomatic rank. "x x x x x x x x x

In an attempt to prove his diplomatic status, Scalzo presented "There is of course the claim of private respondent that the
Diplomatic Notes Nos. 414, 757 and 791, all issued post litem acts imputed to him were done in his official capacity. Nothing
motam, respectively, on 29 May 1990, 25 October 1991 and supports this self-serving claim other than the so-called
17 November 1992. The presentation did nothing much to Diplomatic Note. x x x. The public respondent then should
alleviate the Court's initial reservations in G.R. No. 97765, viz: have sustained the trial court's denial of the motion to dismiss.
Verily, it should have been the most proper and appropriate
recourse. It should not have been overwhelmed by the self- exercise of territorial jurisdiction.16 The government of the
serving Diplomatic Note whose belated issuance is even United States itself, which Scalzo claims to be acting for, has
suspect and whose authenticity has not yet been proved. The formulated its standards for recognition of a diplomatic agent.
undue haste with which respondent Court yielded to the The State Department policy is to only concede diplomatic
private respondent's claim is arbitrary." status to a person who possesses an acknowledged
diplomatic title and "performs duties of diplomatic
A significant document would appear to be Exhibit No. 08, nature."17 Supplementary criteria for accreditation are the
dated 08 November 1992, issued by the Office of Protocol of possession of a valid diplomatic passport or, from States
the Department of Foreign Affairs and signed by Emmanuel C. which do not issue such passports, a diplomatic note formally
Fernandez, Assistant Secretary, certifying that "the records of representing the intention to assign the person to diplomatic
the Department (would) show that Mr. Arthur W. Scalzo, Jr., duties, the holding of a non-immigrant visa, being over twenty-
during his term of office in the Philippines (from 14 October one years of age, and performing diplomatic functions on an
1985 up to 10 August 1988) was listed as an Assistant Attaché essentially full-time basis.18 Diplomatic missions are requested
of the United States diplomatic mission and was, therefore, to provide the most accurate and descriptive job title to that
accredited diplomatic status by the Government of the which currently applies to the duties performed. The Office of
Philippines." No certified true copy of such "records," the the Protocol would then assign each individual to the
supposed bases for the belated issuance, was presented in appropriate functional category.19
evidence.
But while the diplomatic immunity of Scalzo might thus remain
Concededly, vesting a person with diplomatic immunity is a contentious, it was sufficiently established that, indeed, he
prerogative of the executive branch of the government. In worked for the United States Drug Enforcement Agency and
World Health Organization vs. Aquino,15 the Court has was tasked to conduct surveillance of suspected drug activities
recognized that, in such matters, the hands of the courts are within the country on the dates pertinent to this case. If it
virtually tied. Amidst apprehensions of indiscriminate and should be ascertained that Arthur Scalzo was acting well
incautious grant of immunity, designed to gain exemption from within his assigned functions when he committed the acts
the jurisdiction of courts, it should behoove the Philippine alleged in the complaint, the present controversy could then be
government, specifically its Department of Foreign Affairs, to resolved under the related doctrine of State Immunity from
be most circumspect, that should particularly be no less than Suit.
compelling, in its post litem motam issuances. It might be
recalled that the privilege is not an immunity from the The precept that a State cannot be sued in the courts of a
observance of the law of the territorial sovereign or from foreign state is a long-standing rule of customary international
ensuing legal liability; it is, rather, an immunity from the law then closely identified with the personal immunity of a
foreign sovereign from suit20 and, with the emergence of in their private or unofficial capacity when they apprehended
democratic states, made to attach not just to the person of the and later testified against the complainant. It follows that for
head of state, or his representative, but also distinctly to the discharging their duties as agents of the United States, they
state itself in its sovereign capacity.21 If the acts giving rise to a cannot be directly impleaded for acts imputable to their
suit are those of a foreign government done by its foreign principal, which has not given its consent to be sued. x x x As
agent, although not necessarily a diplomatic personage, but they have acted on behalf of the government, and within the
acting in his official capacity, the complaint could be barred by scope of their authority, it is that government, and not the
the immunity of the foreign sovereign from suit without its petitioners personally, [who were] responsible for their acts."25
consent. Suing a representative of a state is believed to be, in
effect, suing the state itself. The proscription is not accorded This immunity principle, however, has its limitations. Thus,
for the benefit of an individual but for the State, in whose Shauf vs. Court of Appeals26 elaborates:
service he is, under the maxim - par in parem, non habet
imperium - that all states are sovereign equals and cannot "It is a different matter where the public official is made to
assert jurisdiction over one another.22 The implication, in broad account in his capacity as such for acts contrary to law and
terms, is that if the judgment against an official would require injurious to the rights of the plaintiff. As was clearly set forth by
the state itself to perform an affirmative act to satisfy the Justice Zaldivar in Director of the Bureau of
award, such as the appropriation of the amount needed to pay Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368):
the damages decreed against him, the suit must be regarded `Inasmuch as the State authorizes only legal acts by its
as being against the state itself, although it has not been officers, unauthorized acts of government officials or officers
formally impleaded.23 are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by
In United States of America vs. Guinto,24 involving officers of such acts, for the protection of his rights, is not a suit against
the United States Air Force and special officers of the Air the State within the rule of immunity of the State from suit. In
Force Office of Special Investigators charged with the duty of the same tenor, it has been said that an action at law or suit in
preventing the distribution, possession and use of prohibited equity against a State officer or the director of a State
drugs, this Court has ruled - department on the ground that, while claiming to act for the
State, he violates or invades the personal and property rights
"While the doctrine (of state immunity) appears to prohibit only of the plaintiff, under an unconstitutional act or under an
suits against the state without its consent, it is also applicable assumption of authority which he does not have, is not a suit
to complaints filed against officials of the state for acts against the State within the constitutional provision that the
allegedly performed by them in the discharge of their duties. x State may not be sued without its consent. The rationale for
x x. It cannot for a moment be imagined that they were acting
this ruling is that the doctrine of state immunity cannot be used Enforcement Agency, however, can be gleaned from the facts
as an instrument for perpetrating an injustice. heretofore elsewhere mentioned. The official exchanges of
communication between agencies of the government of the
"x x x x x x x x x two countries, certifications from officials of both the Philippine
Department of Foreign Affairs and the United States Embassy,
"(T)he doctrine of immunity from suit will not apply and may as well as the participation of members of the Philippine
not be invoked where the public official is being sued in his Narcotics Command in the "buy-bust operation" conducted at
private and personal capacity as an ordinary citizen. The cloak the residence of Minucher at the behest of Scalzo, may be
of protection afforded the officers and agents of the inadequate to support the "diplomatic status" of the latter but
government is removed the moment they are sued in their they give enough indication that the Philippine government has
individual capacity. This situation usually arises where the given its imprimatur, if not consent, to the activities within
public official acts without authority or in excess of the powers Philippine territory of agent Scalzo of the United States Drug
vested in him. It is a well-settled principle of law that a public Enforcement Agency. The job description of Scalzo has tasked
official may be liable in his personal private capacity for him to conduct surveillance on suspected drug suppliers and,
whatever damage he may have caused by his act done with after having ascertained the target, to inform local law
malice and in bad faith or beyond the scope of his authority enforcers who would then be expected to make the arrest. In
and jurisdiction."27 conducting surveillance activities on Minucher, later acting as
the poseur-buyer during the buy-bust operation, and then
A foreign agent, operating within a territory, can be cloaked becoming a principal witness in the criminal case against
with immunity from suit but only as long as it can be Minucher, Scalzo hardly can be said to have acted beyond the
established that he is acting within the directives of the scope of his official function or duties.
sending state. The consent of the host state is an
indispensable requirement of basic courtesy between the two All told, this Court is constrained to rule that respondent Arthur
sovereigns. Guinto and Shauf both involve officers and Scalzo, an agent of the United States Drug Enforcement
personnel of the United States, stationed within Philippine Agency allowed by the Philippine government to conduct
territory, under the RP-US Military Bases Agreement. While activities in the country to help contain the problem on the drug
evidence is wanting to show any similar agreement between traffic, is entitled to the defense of state immunity from suit.
the governments of the Philippines and of the United States
(for the latter to send its agents and to conduct surveillance WHEREFORE, on the foregoing premises, the petition is
and related activities of suspected drug dealers in the DENIED. No costs.
Philippines), the consent or imprimatur of the Philippine
government to the activities of the United States Drug SO ORDERED.