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 Minucher vs CA : 142396 :
February 11, 2003 : J. Vitug : First
Division
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FIRST DIVISION
Philippine Supreme

Court Decisions G.R. No. 142396. February 11, 2003

Significant Legal
KHOSROW MINUCHER, petitioner, vs. HON.
Resources
COURT OF APPEALS and ARTHUR SCALZO,
WorldWide Legal
respondents.
Recources

US Federal Laws,
DECISION
Statutes & Codes

VITUG, J.:
 US Supreme Court Sometime in May 1986, an Information for
Decisions violation of Section 4 of Republic Act No. 6425,
The Business Page otherwise also known as the Dangerous Drugs Act
ChanRobles Virtual of 1972, was filed against petitioner Khosrow
Law Library Minucher and one Abbas Torabian with the
Regional Trial Court, Branch 151, of Pasig City. The
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criminal charge followed a buy-bust operation
Review
conducted by the Philippine police narcotic agents
in the house of Minucher, an Iranian national,
where a quantity of heroin, a prohibited drug, was
said to have been seized. The narcotic agents were
accompanied by private respondent Arthur Scalzo
who would, in due time, become one of the
principal witnesses for the prosecution. On 08
January 1988, Presiding Judge Eutropio Migrino
rendered a decision acquitting the two accused.

On 03 August 1988, Minucher filed Civil Case No.

88-45691 before the Regional Trial Court (RTC),
Branch 19, of Manila for damages on account of
what he claimed to have been trumped-up charges

ChanRobles MCLE On-line

of drug trafficking made by Arthur Scalzo. The
Manila RTC detailed what it had found to be the
ChanRobles Lawnet Inc. -
facts and circumstances surrounding the case.
ChanRobles MCLE On-line :

www.chanroblesmcleonline.com "The testimony of the plaintiff disclosed that he is

an Iranian national. He came to the Philippines to
study in the University of the Philippines in 1974.
In 1976, under the regime of the Shah of Iran, he
was appointed Labor Attach for the Iranian
Embassies in Tokyo, Japan and Manila, Philippines.
When the Shah of Iran was deposed by Ayatollah
Khomeini, plaintiff became a refugee of the United
Nations and continued to stay in the Philippines.
He headed the Iranian National Resistance
Movement in the Philippines.

He came to know the defendant on May 13, 1986,

when the latter was brought to his house and
introduced to him by a certain Jose Iigo, an
informer of the Intelligence Unit of the military.
Jose Iigo, on the other hand, was met by plaintiff
at the office of Atty. Crisanto Saruca, a lawyer for
several Iranians whom plaintiff assisted as head of
the anti-Khomeini movement in the Philippines.

During his first meeting with the defendant on May

13, 1986, upon the introduction of Jose Iigo, the
defendant expressed his interest in buying caviar.
As a matter of fact, he bought two kilos of caviar
from plaintiff and paid P10,000.00 for it. Selling
caviar, aside from that of Persian carpets, pistachio
nuts and other Iranian products was his business
after the Khomeini government cut his pension of
over $3,000.00 per month. During their
introduction in that meeting, the defendant gave
the plaintiff his calling card, which showed that he
is working at the US Embassy in the Philippines, as
a special agent of the Drug Enforcement
Administration, Department of Justice, of the
United States, and gave his address as US
Embassy, Manila. At the back of the card appears
a telephone number in defendants own
handwriting, the number of which he can also be
contacted.

It was also during this first meeting that plaintiff

expressed his desire to obtain a US Visa for his
wife and the wife of a countryman named Abbas
Torabian. The defendant told him that he [could]
help plaintiff for a fee of $2,000.00 per visa. Their
conversation, however, was more concentrated on
politics, carpets and caviar. Thereafter, the
defendant promised to see plaintiff again.

On May 19, 1986, the defendant called the plaintiff

and invited the latter for dinner at Mario's
Restaurant at Makati. He wanted to buy 200 grams
of caviar. Plaintiff brought the merchandize but for
the reason that the defendant was not yet there,
he requested the restaurant people to x x x place
the same in the refrigerator. Defendant, however,
came and plaintiff gave him the caviar for which
he was paid. Then their conversation was again
focused on politics and business.

On May 26, 1986, defendant visited plaintiff again

at the latter's residence for 18 years at Kapitolyo,
Pasig. The defendant wanted to buy a pair of
carpets which plaintiff valued at $27,900.00. After
some haggling, they agreed at $24,000.00. For
the reason that defendant did not yet have the
money, they agreed that defendant would come
back the next day. The following day, at 1:00 p.m.,
he came back with his $24,000.00, which he gave
to the plaintiff, and the latter, in turn, gave him
the pair of carpets.

At about 3:00 in the afternoon of May 27, 1986,

the defendant came back again to plaintiff's house
and directly proceeded to the latter's bedroom,
where the latter and his countryman, Abbas
Torabian, were playing chess. Plaintiff opened his
safe in the bedroom and obtained $2,000.00 from
it, gave it to the defendant for the latter's fee in
obtaining a visa for plaintiff's wife. The defendant
told him that he would be leaving the Philippines
very soon and requested him to come out of the
house for a while so that he can introduce him to
his cousin waiting in a cab. Without much ado, and
without putting on his shirt as he was only in his
pajama pants, he followed the defendant where he
saw a parked cab opposite the street. To his
complete surprise, an American jumped out of the
cab with a drawn high-powered gun. He was in the
company of about 30 to 40 Filipino soldiers with 6
Americans, all armed. He was handcuffed and
after about 20 minutes in the street, he was
brought inside the house by the defendant. He was
made to sit down while in handcuffs while the
defendant was inside his bedroom. The defendant
came out of the bedroom and out from
defendant's attach case, he took something and
placed it on the table in front of the plaintiff. They
also took plaintiff's wife who was at that time at
the boutique near his house and likewise arrested
Torabian, who was playing chess with him in the
bedroom and both were handcuffed together.
Plaintiff was not told why he was being handcuffed
and why the privacy of his house, especially his
bedroom was invaded by defendant. He was not
allowed to use the telephone. In fact, his
telephone was unplugged. He asked for any
warrant, but the defendant told him to `shut up.
He was nevertheless told that he would be able to
call for his lawyer who can defend him.

The plaintiff took note of the fact that when the

defendant invited him to come out to meet his
cousin, his safe was opened where he kept the
$24,000.00 the defendant paid for the carpets and
another $8,000.00 which he also placed in the safe
together with a bracelet worth $15,000.00 and a
pair of earrings worth $10,000.00. He also
discovered missing upon his release his 8 pieces
hand-made Persian carpets, valued at $65,000.00,
a painting he bought for P30,000.00 together with
his TV and betamax sets. He claimed that when he
was handcuffed, the defendant took his keys from
his wallet. There was, therefore, nothing left in his
house.

That his arrest as a heroin trafficker x x x had

been well publicized throughout the world, in
various newspapers, particularly in Australia,
America, Central Asia and in the Philippines. He
was identified in the papers as an international
drug trafficker. x x x
In fact, the arrest of defendant and Torabian was
likewise on television, not only in the Philippines,
but also in America and in Germany. His friends in
said places informed him that they saw him on TV
with said news.

After the arrest made on plaintiff and Torabian,

they were brought to Camp Crame handcuffed
together, where they were detained for three days

without food and water." 1 cräläwvirtualibräry

During the trial, the law firm of Luna, Sison and

Manas, filed a special appearance for Scalzo and
moved for extension of time to file an answer
pending a supposed advice from the United States
Department of State and Department of Justice on
the defenses to be raised. The trial court granted
the motion. On 27 October 1988, Scalzo filed
another special appearance to quash the summons
on the ground that he, not being a resident of the
Philippines and the action being one in personam,
was beyond the processes of the court. The motion
was denied by the court, in its order of 13
December 1988, holding that the filing by Scalzo
of a motion for extension of time to file an answer
to the complaint was a voluntary appearance
equivalent to service of summons which could
likewise be construed a waiver of the requirement
of formal notice. Scalzo filed a motion for
reconsideration of the court order, contending that
a motion for an extension of time to file an answer
was not a voluntary appearance equivalent to
service of summons since it did not seek an
affirmative relief. Scalzo argued that in cases
involving the United States government, as well as
its agencies and officials, a motion for extension
was peculiarly unavoidable due to the need (1) for
both the Department of State and the Department
of Justice to agree on the defenses to be raised
and (2) to refer the case to a Philippine lawyer
who would be expected to first review the case.
The court a quo denied the motion for
reconsideration in its order of 15 October 1989.

Scalzo filed a petition for review with the Court of

Appeals, there docketed CA-G.R. No. 17023,
assailing the denial. In a decision, dated 06
October 1989, the appellate court denied the
petition and affirmed the ruling of the trial court.
Scalzo then elevated the incident in a petition for
review on certiorari, docketed G.R. No. 91173, to
this Court. The petition, however, was denied for
its failure to comply with SC Circular No. 1-88; in
any event, the Court added, Scalzo had failed to
show that the appellate court was in error in its
questioned judgment.

Meanwhile, at the court a quo, an order, dated 09

February 1990, was issued (a) declaring Scalzo in
default for his failure to file a responsive pleading
(answer) and (b) setting the case for the reception
of evidence. On 12 March 1990, Scalzo filed a
motion to set aside the order of default and to
admit his answer to the complaint. Granting the
motion, the trial court set the case for pre-trial. In
his answer, Scalzo denied the material allegations
of the complaint and raised the affirmative
defenses (a) of Minuchers failure to state a cause
of action in his complaint and (b) that Scalzo had
acted in the discharge of his official duties as being
merely an agent of the Drug Enforcement
Administration of the United States Department of
Justice. Scalzo interposed a counterclaim of
P100,000.00 to answer for attorneys' fees and
expenses of litigation.

Then, on 14 June 1990, after almost two years

since the institution of the civil case, Scalzo filed a
motion to dismiss the complaint on the ground
that, being a special agent of the United States
Drug Enforcement Administration, he was entitled
to diplomatic immunity. He attached to his motion
Diplomatic Note No. 414 of the United States
Embassy, dated 29 May 1990, addressed to the
Department of Foreign Affairs of the Philippines
and a Certification, dated 11 June 1990, of Vice
Consul Donna Woodward, certifying that the note
is a true and faithful copy of its original. In an
order of 25 June 1990, the trial court denied the
motion to dismiss.

On 27 July 1990, Scalzo filed a petition for

certiorari with injunction with this Court, docketed
G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr.,
vs. Hon. Wenceslao Polo, et al.," asking that the
complaint in Civil Case No. 88-45691 be ordered
dismissed. The case was referred to the Court of
Appeals, there docketed CA-G.R. SP No. 22505,
per this Courts resolution of 07 August 1990. On
31 October 1990, the Court of Appeals
promulgated its decision sustaining the diplomatic
immunity of Scalzo and ordering the dismissal of
the complaint against him. Minucher filed a
petition for review with this Court, docketed G.R.
No. 97765 and entitled "Khosrow Minucher vs. the
Honorable Court of Appeals, et. al. (cited in 214
SCRA 242), appealing the judgment of the Court
of Appeals. In a decision, dated 24 September
1992, penned by Justice (now Chief Justice) Hilario
Davide, Jr., this Court reversed the decision of the
appellate court and remanded the case to the
lower court for trial. The remand was ordered on
the theses (a) that the Court of Appeals erred in
granting the motion to dismiss of Scalzo for lack of
jurisdiction over his person without even
considering the issue of the authenticity of
Diplomatic Note No. 414 and (b) that the
complaint contained sufficient allegations to the
effect that Scalzo committed the imputed acts in
his personal capacity and outside the scope of his
official duties and, absent any evidence to the
contrary, the issue on Scalzos diplomatic immunity
could not be taken up.

The Manila RTC thus continued with its hearings on

the case. On 17 November 1995, the trial court
reached a decision; it adjudged:

WHEREFORE, and in view of all the foregoing

considerations, judgment is hereby rendered for
the plaintiff, who successfully established his claim
by sufficient evidence, against the defendant in
the manner following:

"`Adjudging defendant liable to plaintiff in actual

and compensatory damages of P520,000.00;
moral damages in the sum of P10 million;
exemplary damages in the sum of P100,000.00;
attorney's fees in the sum of P200,000.00 plus
costs.

`The Clerk of the Regional Trial Court, Manila, is

ordered to take note of the lien of the Court on
this judgment to answer for the unpaid docket fees
considering that the plaintiff in this case instituted

this action as a pauper litigant." 2 cräläwvirtualibräry

While the trial court gave credence to the claim of

Scalzo and the evidence presented by him that he
was a diplomatic agent entitled to immunity as
such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed
outside his official duties. On appeal, the Court of
Appeals reversed the decision of the trial court and
sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity
during his term of duty and thereby immune from
the criminal and civil jurisdiction of the Receiving
State pursuant to the terms of the Vienna
Convention.

Hence, this recourse by Minucher. The instant

petition for review raises a two-fold issue: (1)
whether or not the doctrine of conclusiveness of
judgment, following the decision rendered by this
Court in G.R. No. 97765, should have precluded
the Court of Appeals from resolving the appeal to
it in an entirely different manner, and (2) whether
or not Arthur Scalzo is indeed entitled to
diplomatic immunity.

The doctrine of conclusiveness of judgment, or its

kindred rule of res judicata, would require 1) the
finality of the prior judgment, 2) a valid
jurisdiction over the subject matter and the parties
on the part of the court that renders it, 3) a
judgment on the merits, and 4) an identity of the
parties, subject matter and causes of action. [3
Even while one of the issues submitted in G.R. No.
97765 - "whether or not public respondent Court
of Appeals erred in ruling that private respondent
Scalzo is a diplomat immune from civil suit
conformably with the Vienna Convention on
Diplomatic Relations" - is also a pivotal question
raised in the instant petition, the ruling in G.R. No.
97765, however, has not resolved that point with
finality. Indeed, the Court there has made this
observation -

"It may be mentioned in this regard that private

respondent himself, in his Pre-trial Brief filed on 13
June 1990, unequivocally states that he would
present documentary evidence consisting of DEA
records on his investigation and surveillance of
plaintiff and on his position and duties as DEA
special agent in Manila. Having thus reserved his
right to present evidence in support of his position,
which is the basis for the alleged diplomatic
immunity, the barren self-serving claim in the
belated motion to dismiss cannot be relied upon
for a reasonable, intelligent and fair resolution of
the issue of diplomatic immunity." [4 cräläwvirtualibräry

Scalzo contends that the Vienna Convention on

Diplomatic Relations, to which the Philippines is a
signatory, grants him absolute immunity from suit,
describing his functions as an agent of the United
States Drugs Enforcement Agency as conducting
surveillance operations on suspected drug dealers
in the Philippines believed to be the source of
prohibited drugs being shipped to the U.S., (and)
having ascertained the target, (he then) would
inform the Philippine narcotic agents (to) make the
actual arrest." Scalzo has submitted to the trial
court a number of documents -

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May

1990;

2. Exh. '1' - Certification of Vice Consul Donna K.

Woodward dated 11 June 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25

October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17

November 1992; and

5. Exh. '7' - Diplomatic Note No. 833 dated 21

October 1988.

6. Exh. '3' - 1st Indorsement of the Hon. Jorge R.

Coquia, Legal Adviser, Department of Foreign
Affairs, dated 27 June 1990 forwarding Embassy
Note No. 414 to the Clerk of Court of RTC Manila,
Branch 19 (the trial court);

7. Exh. '4' - Diplomatic Note No. 414, appended to

the 1st Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from
the Office of the Protocol, Department of Foreign
Affairs, through Asst. Sec. Emmanuel Fernandez,

addressed to the Chief Justice of this Court. 5 cräläwvirtualibräry

The documents, according to Scalzo, would show

that: (1) the United States Embassy accordingly
advised the Executive Department of the Philippine
Government that Scalzo was a member of the
diplomatic staff of the United States diplomatic
mission from his arrival in the Philippines on 14
October 1985 until his departure on 10 August
1988; (2) that the United States Government was
firm from the very beginning in asserting the
diplomatic immunity of Scalzo with respect to the
case pursuant to the provisions of the Vienna
Convention on Diplomatic Relations; and (3) that
the United States Embassy repeatedly urged the
Department of Foreign Affairs to take appropriate
action to inform the trial court of Scalzos
diplomatic immunity. The other documentary
exhibits were presented to indicate that: (1) the
Philippine government itself, through its Executive
Department, recognizing and respecting the
diplomatic status of Scalzo, formally advised the
Judicial Department of his diplomatic status and
his entitlement to all diplomatic privileges and
immunities under the Vienna Convention; and (2)
the Department of Foreign Affairs itself
authenticated Diplomatic Note No. 414. Scalzo
additionally presented Exhibits "9" to "13"
consisting of his reports of investigation on the
surveillance and subsequent arrest of Minucher,
the certification of the Drug Enforcement
Administration of the United States Department of
Justice that Scalzo was a special agent assigned to
the Philippines at all times relevant to the
complaint, and the special power of attorney
executed by him in favor of his previous counsel [6
to show (a) that the United States Embassy,
affirmed by its Vice Consul, acknowledged Scalzo
to be a member of the diplomatic staff of the
United States diplomatic mission from his arrival in
the Philippines on 14 October 1985 until his
departure on 10 August 1988, (b) that, on May
1986, with the cooperation of the Philippine law
enforcement officials and in the exercise of his
functions as member of the mission, he
investigated Minucher for alleged trafficking in a
prohibited drug, and (c) that the Philippine
Department of Foreign Affairs itself recognized
that Scalzo during his tour of duty in the
Philippines (14 October 1985 up to 10 August
1988) was listed as being an Assistant Attach of
the United States diplomatic mission and
accredited with diplomatic status by the
Government of the Philippines. In his Exhibit 12,
Scalzo described the functions of the overseas
office of the United States Drugs Enforcement
Agency, i.e., (1) to provide criminal investigative
expertise and assistance to foreign law
enforcement agencies on narcotic and drug control
programs upon the request of the host country, 2)
to establish and maintain liaison with the host
country and counterpart foreign law enforcement
officials, and 3) to conduct complex criminal
investigations involving international criminal
conspiracies which affect the interests of the
United States.

The Vienna Convention on Diplomatic Relations

was a codification of centuries-old customary law
and, by the time of its ratification on 18 April
1961, its rules of law had long become stable.
Among the city states of ancient Greece, among
the peoples of the Mediterranean before the
establishment of the Roman Empire, and among
the states of India, the person of the herald in
time of war and the person of the diplomatic envoy
in time of peace were universally held sacrosanct.
[7 By the end of the 16th century, when the
earliest treatises on diplomatic law were published,
the inviolability of ambassadors was firmly
established as a rule of customary international
law. [8 Traditionally, the exercise of diplomatic
intercourse among states was undertaken by the
head of state himself, as being the preeminent
embodiment of the state he represented, and the
foreign secretary, the official usually entrusted
with the external affairs of the state. Where a
state would wish to have a more prominent
diplomatic presence in the receiving state, it would
then send to the latter a diplomatic mission.
Conformably with the Vienna Convention, the
functions of the diplomatic mission involve, by and
large, the representation of the interests of the
sending state and promoting friendly relations with

the receiving state. 9 cräläwvirtualibräry

The Convention lists the classes of heads of

diplomatic missions to include (a) ambassadors or

nuncios accredited to the heads of state, 10 (b)

envoys, [11 ministers or internuncios accredited to
the heads of states; and (c) charges d' affairs [12

accredited to the ministers of foreign affairs. 13

Comprising the "staff of the (diplomatic) mission"
are the diplomatic staff, the administrative staff
and the technical and service staff. Only the heads
of missions, as well as members of the diplomatic
staff, excluding the members of the administrative,
technical and service staff of the mission, are
accorded diplomatic rank. Even while the Vienna
Convention on Diplomatic Relations provides for
immunity to the members of diplomatic missions,
it does so, nevertheless, with an understanding
that the same be restrictively applied. Only
"diplomatic agents," under the terms of the
Convention, are vested with blanket diplomatic
immunity from civil and criminal suits. The
Convention defines "diplomatic agents" as the
heads of missions or members of the diplomatic
staff, thus impliedly withholding the same
privileges from all others. It might bear stressing
that even consuls, who represent their respective
states in concerns of commerce and navigation
and perform certain administrative and notarial
duties, such as the issuance of passports and
visas, authentication of documents, and
administration of oaths, do not ordinarily enjoy the
traditional diplomatic immunities and privileges
accorded diplomats, mainly for the reason that
they are not charged with the duty of representing
their states in political matters. Indeed, the main
yardstick in ascertaining whether a person is
a diplomat entitled to immunity is the
determination of whether or not he performs
duties of diplomatic nature.

Scalzo asserted, particularly in his Exhibits 9 to

13, that he was an Assistant Attach of the United
States diplomatic mission and was accredited as
such by the Philippine Government. An attach
belongs to a category of officers in the diplomatic
establishment who may be in charge of its cultural,
press, administrative or financial affairs. There
could also be a class of attaches belonging to
certain ministries or departments of the
government, other than the foreign ministry or
department, who are detailed by their respective
ministries or departments with the embassies such
as the military, naval, air, commercial, agricultural,
labor, science, and customs attaches, or the like.
Attaches assist a chief of mission in his duties and
are administratively under him, but their main
function is to observe, analyze and interpret
trends and developments in their respective fields
in the host country and submit reports to their
own ministries or departments in the home
government. [14 These officials are not generally
regarded as members of the diplomatic mission,
nor are they normally designated as having
diplomatic rank.

In an attempt to prove his diplomatic status,

Scalzo presented Diplomatic Notes Nos. 414, 757
and 791, all issued post litem motam, respectively,
on 29 May 1990, 25 October 1991 and 17
November 1992. The presentation did nothing
much to alleviate the Court's initial reservations in
G.R. No. 97765, viz:

"While the trial court denied the motion to dismiss,

the public respondent gravely abused its discretion
in dismissing Civil Case No. 88-45691 on the basis
of an erroneous assumption that simply because of
the diplomatic note, the private respondent is
clothed with diplomatic immunity, thereby
divesting the trial court of jurisdiction over his
person.

xxx

And now, to the core issue - the alleged diplomatic

immunity of the private respondent. Setting aside
for the moment the issue of authenticity raised by
the petitioner and the doubts that surround such
claim, in view of the fact that it took private
respondent one (1) year, eight (8) months and
seventeen (17) days from the time his counsel
filed on 12 September 1988 a Special Appearance
and Motion asking for a first extension of time to
file the Answer because the Departments of State
and Justice of the United States of America were
studying the case for the purpose of determining
his defenses, before he could secure the
Diplomatic Note from the US Embassy in Manila,
and even granting for the sake of argument that
such note is authentic, the complaint for damages
filed by petitioner cannot be peremptorily
dismissed.

xxx

"There is of course the claim of private respondent

that the acts imputed to him were done in his
official capacity. Nothing supports this self-serving
claim other than the so-called Diplomatic Note. x x
x. The public respondent then should have
sustained the trial court's denial of the motion to
dismiss. Verily, it should have been the most
proper and appropriate recourse. It should not
have been overwhelmed by the self-serving
Diplomatic Note whose belated issuance is even
suspect and whose authenticity has not yet been
proved. The undue haste with which respondent
Court yielded to the private respondent's claim is
arbitrary."

A significant document would appear to be Exhibit

No. 08, dated 08 November 1992, issued by the
Office of Protocol of the Department of Foreign
Affairs and signed by Emmanuel C. Fernandez,
Assistant Secretary, certifying that "the records of
the Department (would) show that Mr. Arthur W.
Scalzo, Jr., during his term of office in the
Philippines (from 14 October 1985 up to 10 August
1988) was listed as an Assistant Attach of the
United States diplomatic mission and was,
therefore, accredited diplomatic status by the
Government of the Philippines." No certified true
copy of such "records," the supposed bases for the
belated issuance, was presented in evidence.

Concededly, vesting a person with diplomatic

immunity is a prerogative of the executive branch
of the government. In World Health Organization

vs. Aquino, 15 the Court has recognized that, in

such matters, the hands of the courts are virtually
tied. Amidst apprehensions of indiscriminate and
incautious grant of immunity, designed to gain
exemption from the jurisdiction of courts, it should
behoove the Philippine government, specifically its
Department of Foreign Affairs, to be most
circumspect, that should particularly be no less
than compelling, in its post litem motam
issuances. It might be recalled that the privilege is
not an immunity from the observance of the law of
the territorial sovereign or from ensuing legal
liability; it is, rather, an immunity from the
exercise of territorial jurisdiction. [16 The
government of the United States itself, which
Scalzo claims to be acting for, has formulated its
standards for recognition of a diplomatic agent.
The State Department policy is to only concede
diplomatic status to a person who possesses
an acknowledged diplomatic title and
performs duties of diplomatic nature. [17
Supplementary criteria for accreditation are the
possession of a valid diplomatic passport or, from
States which do not issue such passports, a
diplomatic note formally representing the intention
to assign the person to diplomatic duties, the
holding of a non-immigrant visa, being over
twenty-one years of age, and performing
diplomatic functions on an essentially full-time

basis. 18 Diplomatic missions are requested to

provide the most accurate and descriptive job title
to that which currently applies to the duties
performed. The Office of the Protocol would then
assign each individual to the appropriate functional

category. 19 cräläwvirtualibräry
But while the diplomatic immunity of Scalzo might
thus remain contentious, it was sufficiently
established that, indeed, he worked for the United
States Drug Enforcement Agency and was tasked
to conduct surveillance of suspected drug activities
within the country on the dates pertinent to this
case. If it should be ascertained that Arthur Scalzo
was acting well within his assigned functions when
he committed the acts alleged in the complaint,
the present controversy could then be resolved
under the related doctrine of State Immunity
from Suit.

The precept that a State cannot be sued in

the courts of a foreign state is a long-standing
rule of customary international law then closely
identified with the personal immunity of a foreign
sovereign from suit [20 and, with the emergence of
democratic states, made to attach not just to the
person of the head of state, or his representative,
but also distinctly to the state itself in its sovereign

capacity. 21 If the acts giving rise to a suit are

those of a foreign government done by its foreign
agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the
complaint could be barred by the immunity of the
foreign sovereign from suit without its consent.
Suing a representative of a state is believed to be,
in effect, suing the state itself. The proscription is
not accorded for the benefit of an individual but for
the State, in whose service he is, under the maxim
- par in parem, non habet imperium - that all
states are sovereign equals and cannot assert
jurisdiction over one another. [22 The implication, in
broad terms, is that if the judgment against an
official would require the state itself to perform an
affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the
damages decreed against him, the suit must be
regarded as being against the state itself, although
it has not been formally impleaded. [23 cräläwvirtualibräry

In United States of America vs. Guinto, 24 involving

officers of the United States Air Force and special
officers of the Air Force Office of Special
Investigators charged with the duty of preventing
the distribution, possession and use of prohibited
drugs, this Court has ruled -

"While the doctrine (of state immunity) appears to

prohibit only suits against the state without its
consent, it is also applicable to complaints filed
against officials of the state for acts allegedly
performed by them in the discharge of their
duties. x x x. It cannot for a moment be imagined
that they were acting in their private or unofficial
capacity when they apprehended and later
testified against the complainant. It follows that
for discharging their duties as agents of the United
States, they cannot be directly impleaded for acts
imputable to their principal, which has not given
its consent to be sued. x x x As they have acted
on behalf of the government, and within the scope
of their authority, it is that government, and not
the petitioners personally, [who were] responsible

for their acts." 25 cräläwvirtualibräry

This immunity principle, however, has its

limitations. Thus, Shauf vs. Court of Appeals [26
elaborates:

It is a different matter where the public official is

made to account in his capacity as such for acts
contrary to law and injurious to the rights of the
plaintiff. As was clearly set forth by Justice
Zaldivar in Director of the Bureau of
Telecommunications, et al., vs. Aligaen, et al. (33
SCRA 368): `Inasmuch as the State authorizes
only legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the
State, and an action against the officials or officers
by one whose rights have been invaded or violated
by such acts, for the protection of his rights, is not
a suit against the State within the rule of immunity
of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity
against a State officer or the director of a State
department on the ground that, while claiming to
act for the State, he violates or invades the
personal and property rights of the plaintiff, under
an unconstitutional act or under an assumption of
authority which he does not have, is not a suit
against the State within the constitutional
provision that the State may not be sued without
its consent. The rationale for this ruling is that the
doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice.

xxx

(T)he doctrine of immunity from suit will not apply

and may not be invoked where the public official is
being sued in his private and personal capacity as
an ordinary citizen. The cloak of protection
afforded the officers and agents of the government
is removed the moment they are sued in their
individual capacity. This situation usually arises
where the public official acts without authority or
in excess of the powers vested in him. It is a well-
settled principle of law that a public official may be
liable in his personal private capacity for whatever
damage he may have caused by his act done with
malice and in bad faith or beyond the scope of his

authority and jurisdiction. 27 cräläwvirtualibräry

A foreign agent, operating within a territory, can

be cloaked with immunity from suit but only as
long as it can be established that he is acting
within the directives of the sending state. The
consent of the host state is an indispensable
requirement of basic courtesy between the two
sovereigns. Guinto and Shauf both involve officers
and personnel of the United States, stationed
within Philippine territory, under the RP-US Military
Bases Agreement. While evidence is wanting to
show any similar agreement between the
governments of the Philippines and of the United
States (for the latter to send its agents and to
conduct surveillance and related activities of
suspected drug dealers in the Philippines), the
consent or imprimatur of the Philippine
government to the activities of the United States
Drug Enforcement Agency, however, can be
gleaned from the facts heretofore elsewhere
mentioned. The official exchanges of
communication between agencies of the
government of the two countries, certifications
from officials of both the Philippine Department of
Foreign Affairs and the United States Embassy, as
well as the participation of members of the
Philippine Narcotics Command in the buy-bust
operation conducted at the residence of Minucher
at the behest of Scalzo, may be inadequate to
support the "diplomatic status" of the latter but
they give enough indication that the Philippine
government has given its imprimatur, if not
consent, to the activities within Philippine territory
of agent Scalzo of the United States Drug
Enforcement Agency. The job description of Scalzo
has tasked him to conduct surveillance on
suspected drug suppliers and, after having
ascertained the target, to inform local law
enforcers who would then be expected to make
the arrest. In conducting surveillance activities on
Minucher, later acting as the poseur-buyer during
the buy-bust operation, and then becoming a
principal witness in the criminal case against
Minucher, Scalzo hardly can be said to have acted
beyond the scope of his official function or duties.

All told, this Court is constrained to rule that

respondent Arthur Scalzo, an agent of the United
States Drug Enforcement Agency allowed by the
Philippine government to conduct activities in the
country to help contain the problem on the drug
traffic, is entitled to the defense of state immunity
from suit.

WHEREFORE, on the foregoing premises, the

petition is DENIED. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-

Santiago, Carpio and Azcuna, JJ., concur

Endnotes:

1
Rollo, pp. 39-42.

2 Rollo. p. 51.

3
Linzag vs. CA , 291 SCRA 304.

4
Minucher vs. Court of Appeals, 214 SCRA 242.

5 For documentary Exhibits Nos. 1-8, see Rollo, pp.

143-155.

6
For Documentary Exhibits Nos. 9-13, See Rollo, pp.

156-168.

7
Eileen Denza, "Diplomatic Law, A Commentary on the

Vienna Convention on Diplomatic Relations," 2nd

Edition, Claredon Press, Oxford, 1998, at 210.

8 Ibid.

9
Article 3 of the Vienna Convention enumerates the

functions of the diplomatic mission as

(a) representing the sending State in the receiving

State;

(b) protecting in the receiving State the interests of the

sending State and of its nationals, within the limits

permitted by international law;

(c) negotiating with the Government of the receiving

State;

(d) ascertaining by all lawful means conditions and

developments in the receiving State, and reporting

thereon to the Government of the sending State;

(e) promoting friendly relations between the sending

State and the receiving State, and developing their

economic, cultural and scientific relations.

10
Ambassadors are diplomatic agents of the first

class, who deal, as a rule with the Minister of Foreign

Affairs or the Secretary of State, as the case may be.

(Melquiades J. Gamboa, "Elements of Diplomatic and

Consular Practice, A Glossary," Central Lawbook

Publishing, Co., 1966, p. 19.)

11 Envoys are diplomatic agents of the second class.

This is the title of the head of legation as distinguished

from an embassy, the head of which is called

Ambassador Extraordinary and Plenipotentiary. Like the

Ambassador, the envoy is also accredited to the Head

of State. (Gamboa, p. 190.)

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 envoys, the other three being ambassadors,

ministers plenipotentiary and envoys extraordinary,

and ministers resident. He is the head of the legation in

his own right and is not accredited to the head of State

but to the foreign office. According to Radloric, charges

d' affairs are sometimes used to described a person

who has been placed in custody of the archives and

other property of a mission in a country with which

formal diplomatic relations are not maintained. Charges

d' affairs ad interim, in contrast are usually those

second in command of the diplomatic mission minister,

counselor or first secretary, 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 Foreign Office. (Gamboa, Ibid., pp. 51-

52.)

13
The classification of diplomatic representatives was

considered significant before because direct

communication with the head of state depended on the

rank of the diplomat and, moreover, only powerful

states were regarded as entitled to send envoys of the

highest rank. At present however, diplomatic matters

are usually discussed not with the head of state but

with the foreign 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 representatives of the highest rank, even to

the major powers. (Cruz, International Law, 1985

Edition, p. 145.)

14 Gamboa, supra., pp. 32-33.

15
48 SCRA 242.

16
J.L. Brierly, "The Law of Nations," Oxford University

Press, 6th Edition, 1963, p. 244.

17 Denza, supra., at 16.

18
Ibid.

19
Ibid., at 55.

20 Charles G. Fenwick, "International Law," Appleton-

Century-Crofts, Inc., New York, 1948, p. 307-308.

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 of

variance in perspectives. Even though national cases

have been the major source of pronouncements on

sovereign immunity, it should be noted that these

constitute evidence of customary international law now

widely recognized. In the latter half of the 20th

century, a great deal of consensus on what is covered

by sovereign immunity appears to be emerging, i.e.,

that state immunity covers only acts which deal with

the government functions of a state, and excludes, any

of its commercial activities, or activities not related to

"sovereign acts." The consensus involves a more

defined differentiation between public acts (juri imperii)

and private acts (jure gestionis). (Gary L. Maris,

International Law, An Introduction, University Press of

America, 1984, p. 119; D.W. Grieg, "International

Law," London Butterworths, 1970, p. 221.)

The United States for example, does not claim

immunity for its publicly owned or operated merchant

vessels. The Italian courts have rejected claims of

immunity from the US Shipping Board, although a state

body, as it could not be identified with the American

government on the ground that undertaking maritime

navigation and business as a commercial enterprise do

not constitute a sovereign act. (D.W. Grieg,

International Law, London Butterworths, 1970, p. 221.)

22
See Schooner Exchange vs. McFaddon, 7 Cranch

116 (1812), cited in Charles G. Fenwick, "International

Law," New York, 3rd Edition (1948), p. 307.

23 United States of America, et al. vs. Guinto, etc., et

al., G.R. No. 76607, 26 February 1990.

24
182 SCRA 644.

25
At pp. 653-659.

26 191 SCRA 713

27
At pp. 727-728.
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