VOL.

397, FEBRUARY 11, 2003 245

Minucher vs. Court of Appeals

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
244 SUPREME COURT REPORTS ANNOTATED
friendly relations with the receiving state.
Minucher vs. Court of Appeals
Same; Same; Same; Heads of diplomatic missions, classified.
* ·The Convention lists the classes of heads of diplomatic missions
G.R. No. 142396. February 11, 2003. to include (a) ambassadors or nuncios accredited to the heads of
state, (b) envoys, ministers or internuncios accredited to the heads
KHOSROW MINUCHER, petitioner, vs. HON. COURT of states; and (c) charges dÊ affairs accredited to the ministers of
OF APPEALS and ARTHUR SCALZO, respondents. foreign affairs.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
International Law; Vienna Convention on Diplomatic
of the diplomatic staff, excluding the members of the
Relations; Diplomatic Missions; Function; Conformably with the
administrative, technical and service staff of the mission, are
Vienna Convention, the functions of the diplomatic mission
accorded diplomatic rank.
involve, by and large, the representation of the interests of the
sending state and promoting friendly relations with the receiving Same; same; Same; Diplomatic Immunity; Only „diplomatic
state.·The Vienna Convention on Diplomatic Relations was a agents‰, under the terms of the Convention, are vested with blanket
codification of centuries-old customary law and, by the time of its diplomatic immunity from civil and criminal suits.·Only
ratification on 18 April 1961, its rules of law had long become „diplomatic agents,‰ under the terms of the Convention, are
stable. Among the city states of ancient Greece, among the vested with blanket diplomatic immunity from civil and criminal
peoples of the Mediterranean before the establishment of the suits. The Convention defines „diplomatic agents‰ as the heads of
Roman Empire, and among the states of India, the person of the missions or members of the diplomatic staff, thus impliedly
herald in time of war and the person of the diplomatic envoy in withholding the same privileges from all others.
time of peace were universally held sacrosanct.By the end of the Same; Same; Same; Same; Indeed, the main yardstick in
16th century, when the earliest treatises on diplomatic law were ascertaining whether a person is a diplomat entitled to immunity
published, the inviolability of ambassadors was firmly established is the determination of whether or not he performs duties of
as a rule of customary international law, Traditionally, the diplomatic nature.·It might bear stressing that even consuls,
exercise of diplomatic intercourse among states was undertaken who represent their respective states in concerns of commerce and
by the head of state himself, as being the preeminent embodiment navigation and perform certain administrative and notarial
of the state he represented, and the foreign secretary, the official duties, such as the issuance of passports and visas, authentication
usually entrusted with the external affairs of the state. Where a of documents, and administration of oaths, do not ordinarily enjoy
state would wish to have a more prominent diplomatic presence in the traditional diplomatic immunities and privileges accorded
the receiving state, it would then send to the latter 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
* FIRST DIVISION. performs duties of diplomatic nature.
Same; Same; Same; Same; Suing a representative of a state is
believed to be, in effect, suing the state itself·the proscription is
245
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.·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 Sometime in May 1986, an Information for violation of
immunity of a foreign sovereign from suit and, with the Section 4 of Republic Act No. 6425, otherwise also known
emergence of democratic states, made to attach not just to the as the „Dangerous Drugs Act of 1972,‰ was filed against
person of the head of state, or his representative, but also petitioner Khosrow Minucher and one Abbas Torabian
distinctly to the state itself in its with the Regional Trial Court, Branch 151, of Pasig City.
The criminal charge followed a „buy-bust operation‰
246 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
246 SUPREME COURT REPORTS ANNOTATED
respondent Arthur Scalzo who would, in due time, become
Minucher vs. Court of Appeals one of the principal witnesses for the

247
sovereign capacity. If the acts giving rise to a suit are those of a
foreign government done by its foreign agent, although not
VOL. 397, FEBRUARY 11, 2003 247
necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the Minucher vs. Court of Appeals
foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the state prosecution. On 08 January 1988, Presiding Judge
itself. The proscription is not accorded for the benefit of an Eutropio Migrino rendered a decision acquitting the two
individual but for the State, in whose service he is, under the accused.
maxim·par in parem, non habet imperium·that all states are On 03 August 1988, Minucher filed Civil Case No. 88-
sovereign equals and cannot assert jurisdiction over one another. 45691 before the Regional Trial Court (RTC), Branch 19,
Same; Same; Same; Same; Exception; The doctrine of of Manila for damages on account of what he claimed to
immunity from suit will not apply and may not be invoked where have been trumped-up charges of drug trafficking made by
the public official is being sued in his private and personal Arthur Scalzo. The Manila RTC detailed what it had found
capacity as an ordinary citizen.·(T)he doctrine of immunity from to be the facts and circumstances surrounding the case.
suit will not apply and may not be invoked where the public
„The testimony of the plaintiff disclosed that he is an Iranian
official is being sued in his private and personal capacity as an
national. He came to the Philippines to study in the University of
ordinary citizen. The cloak of protection afforded the officers and
the Philippines in 1974. In 1976, under the regime of the Shah of
agents of the government is removed the moment they are sued in
Iran, he was appointed Labor Attaché for the Iranian Embassies
their individual capacity. This situation usually arises where the
in Tokyo, Japan and Manila, Philippines. When the Shah of Iran
public official acts without authority or in excess of the powers
was deposed by Ayatollah Khomeini, plaintiff became a refugee of
vested in him. It is a well-settled principle of law that a public
the United Nations and continued to stay in the Philippines. He
official may be liable in his personal private capacity for whatever
headed the Iranian National Resistance Movement in the
damage he may have caused by his act done with malice and in
Philippines.
bad faith or beyond the scope of his authority and jurisdiction.
„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
PETITION for review on certiorari of a decision of the
Jose Iñigo, an informer of the Intelligence Unit of the military.
Court of Appeals.
Jose Iñigo, on the other hand, was met by plaintiff at the office of
The facts are stated in the opinion of the Court. Atty. Crisanto Saruca, a lawyer for several Iranians whom
Vicente D. Millora for petitioner. plaintiff assisted as head of the anti-Khomeini movement in the
Abello, Concepcion, Regala and Cruz for private Philippines.
respondent. „During his first meeting with the defendant on May 13, 1986,
upon the introduction of Jose Inigo, the defendant expressed his
VITUG, J.: 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 much ado, and without putting on his shirt as he was only in his
Iranian products was his business after the Khomeini government pajama pants, he followed the defendant where he saw a parked
cut his pension of over $3,000.00 per month. During their cab opposite the street. To his complete surprise, an American
introduction in that meeting, the defendant gave the plaintiff his jumped out of the cab with a drawn high-powered gun. He was in
calling card, which showed that he is working at the US Embassy the company of about 30 to 40 Filipino soldiers with 6 Americans,
in the Philippines, as a special agent of the Drug Enforcement all armed. He was handcuffed and after about 20 minutes in the
Administration, Department of Justice, of the United States, and street, he was brought inside the house by the defendant. He was
gave his address as US Embassy, Manila. At the back of the card made to sit down while in handcuffs while the defendant was
appears a telephone number in defendantÊs own handwriting, the inside his bedroom. The defendant came out of the bedroom and
number of which he can also be contacted. out from defendantÊs attaché case, he took something and placed
„It was also during this first meeting that plaintiff expressed it on the table in front of the plaintiff. They also took plaintiff Ês
his desire to obtain a US Visa for his wife and the wife of a wife who was at that time at the boutique near his house and
countryman named Abbas Torabian. The defendant told him that likewise arrested Torabian, who was playing chess with him in
he [could] help plaintiff for a fee of $2,000.00 per visa, Their the bedroom and both were handcuffed together. Plaintiff was not
conversation, however, was more concentrated on politics, carpets told why he was being handcuffed and why the privacy of his
and caviar. Thereafter, the defendant promised to see plaintiff house, especially his bedroom was invaded by defendant. He was
again. not allowed to use the telephone. In fact, his telephone was
unplugged. He asked for any warrant, but the defendant told him
248 to Âshut up.Ê He was nevertheless told that he would be able to call
for his lawyer who can defend him.
248 SUPREME COURT REPORTS ANNOTATED „The plaintiff took note of the fact that when the defendant
invited him to come out to meet his cousin, his safe was opened
Minucher vs. Court of Appeals
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
„On May 19, 1986, the defendant called the plaintiff and invited with a bracelet worth $15,000.00 and a pair of earrings worth
the latter for dinner at MarioÊs Restaurant at Makati. He wanted $10,000.00. He also discovered missing upon
to buy 200 grams of caviar. Plaintiff brought the merchandize but
for the reason that the defendant was not yet there, he requested 249
the restaurant people to x x x place the same in the refrigerator.
Defendant, however, came and plaintiff gave him the caviar for VOL. 397, FEBRUARY 11, 2003 249
which he was paid. Then their conversation was again focused on
Minucher vs. Court of Appeals
politics and business.
„On May 26, 1986, defendant visited plaintiff again at the
latterÊs residence for 18 years at Kapitolyo, Pasig. The defendant his release his 8 pieces hand-made Persian carpets, valued at
wanted to buy a pair of carpets which plaintiff valued at $65,000.00, a painting he bought for P30,000.00 together with his
$27,900.00. After some haggling, they agreed at $24,000.00. For TV and betamax sets. He claimed that when he was handcuffed,
the reason that defendant did not yet have the money, they agreed the defendant took his keys from his wallet. There was, therefore,
that defendant would come back the next day. The following day, nothing left in his house.
at 1:00 p.m., he came back with his $24,000.00, which he gave to „That his arrest as a heroin trafficker x x x had been well
the plaintiff, and the latter, in turn, gave him the pair of carpets. publicized throughout the world, in various newspapers,
„At about 3:00 in the afternoon of May 27, 1986, the defendant particularly in Australia, America, Central Asia and in the
came back again to plaintiff Ês house and directly proceeded to the Philippines. He was identified in the papers as an international
latterÊs bedroom, where the latter and his countryman, Abbas drug trafficker. x x x
Torabian, were playing chess. Plaintiff opened his safe in the In fact, the arrest of defendant and Torabian was likewise on
bedroom and obtained $2,000.00 from it, gave it to the defendant television, not only in the Philippines, but also in America and in
for the latterÊs fee in obtaining a visa for plaintiff Ês wife. The Germany. His friends in said places informed him that they saw
defendant told him that he would be leaving the Philippines very him on TV with said news.
soon and requested him to come out of the house for a while so „After the arrest made on plaintiff and Torabian, they were
that he can introduce him to his cousin waiting in a cab. Without brought to Camp Crame handcuffed together, where they were
 1
detained for three days without food and water.‰ added, Scalzo had failed to show that the appellate court
was in error in its questioned judgment.
During the trial, the law firm of Luna, Sison and Manas, Meanwhile, at the court a quo, an order, dated 09
filed a special appearance for Scalzo and moved for February 1990, was issued (a) declaring Scalzo in default
extension of time to file an answer pending a supposed for his failure to file a responsive pleading (answer) and (b)
advice from the United States Department of State and setting the case for the reception of evidence. On 12 March
Department of Justice on the defenses to be raised. The 1990, Scalzo filed a motion to set aside the order of default
trial court granted the motion. On 27 October 1988, Scalzo and to admit his answer to the complaint. Granting the
filed another special appearance to quash the summons on motion, the trial court set the case for pretrial. In his
the ground that he, not being a resident of the Philippines answer, Scalzo denied the material allegations of the
and the action being one in personam, was beyond the complaint and raised the affirmative defenses (a) of
processes of the court. The motion was denied by the MinucherÊs failure to state a cause of action in his
court, in its order of 13 December 1988, holding that the complaint and (b) that Scalzo had acted in the discharge of
filing by Scalzo of a motion for extension of time to file an his official duties as being merely an agent of the Drug
answer to the complaint was a voluntary appearance Enforcement Administration of the United States
equivalent to service of summons which could likewise be Department of Justice. Scalzo interposed a counter-claim
construed a waiver of the requirement of formal notice. of P100,000.00 to answer for attorneysÊ fees and expenses
Scalzo filed a motion for reconsideration of the court of litigation.
order, contending that a motion for an extension of time to Then, on 14 June 1990, after almost two years since the
file an answer was not a voluntary appearance equivalent institution of the civil case, Scalzo filed a motion to dismiss
to service of summons since it did not seek an affirmative the complaint on the ground that, being a special agent of
relief. Scalzo argued that in cases involving the United the United States Drug Enforcement Administration, he
States government, as well as its agencies and officials, a was entitled to diplomatic immunity. He attached to his
motion for extension was peculiarly unavoidable due to the motion Diplomatic Note No. 414 of the United States
need (1) for both the Department of State and the Embassy, dated 29 May 1990, addressed to the Department
Department of Justice to agree on the defenses to be raised of Foreign Affairs of the Philippines and a Certification,
and (2) to refer the case to a Philippine lawyer who would dated 11 June 1990, of Vice Consul Donna Woodward,
be expected to first review the case. The court a quo certifying that the note is a true and faithful copy of its
denied the motion for reconsideration in its order of 15 original. In an order of 25 June 1990, the trial court
October 1989. 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
1 Rollo, pp. 39-42. Polo, et al.,‰ asking that the complaint in Civil Case No. 88-
45691 be ordered dismissed. The case was referred to the
250
Court of Appeals, there docketed CA-G.R. SP No. 22505,
per this CourtÊs resolution of 07 August 1990. On 31
250 SUPREME COURT REPORTS ANNOTATED October 1990, the Court of Appeals promulgated its
Minucher vs. Court of Appeals decision

251
Scalzo filed a petition for review with the Court of
Appeals, there docketed CA-G.R. No. 17023, assailing the
VOL. 397, FEBRUARY 11, 2003 251
denial. In a decision, dated 06 October 1989, the appellate
court denied the petition and affirmed the ruling of the Minucher vs. Court of Appeals
trial court. Scalzo then elevated the incident in a petition
for review on certiorari, docketed G.R. No. 91173, to this sustaining the diplomatic immunity of Scalzo and ordering
Court. The petition, however, was denied for its failure to the dismissal of the complaint against him. Minucher
comply with SC Circular No. 1-88; in any event, the Court 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 decision of the trial court and sustained the defense of
242), appealing the judgment of the Court of Appeals. In Scalzo that he was sufficiently clothed with diplomatic
a decision, dated 24 September 1992, penned by Justice immunity during his term of duty and thereby immune
(now Chief Justice) Hilario Davide, Jr., this Court reversed from the criminal and civil jurisdiction of the „Receiving
the decision of the appellate court and remanded the case State‰ pursuant to the terms of the Vienna Convention.
to the lower court for trial. The remand was ordered on Hence, this recourse by Minucher. The instant petition
the theses (a) that the Court of Appeals erred in granting for review raises a two-fold issue: (1) whether or not the
the motion to dismiss of Scalzo for lack of jurisdiction over doctrine of conclusiveness of judgment, following the
his person without even considering the issue of the decision rendered by this Court in G.R. No. 97765, should
authenticity of Diplomatic Note No. 414 and (b) that the have precluded the Court of Appeals from resolving the
complaint contained sufficient allegations to the effect that appeal to it in an entirely different manner, and (2)
Scalzo committed the imputed acts in his personal capacity whether or not Arthur Scalzo is indeed entitled to
and outside the scope of his official duties and, absent any diplomatic immunity.
evidence to the contrary, the issue on ScalzoÊs diplomatic The doctrine of conclusiveness of judgment, or its
immunity could not be taken up. kindred rule of res judicata, would require 1) the finality of
The Manila RTC thus continued with its hearings on the the prior judgment, 2) a valid jurisdiction over the subject
case. On 17 November 1995, the trial court reached a matter and the parties on the part of the court that
decision; it adjudged: renders it, 3) a judgment on the merits, and 4) an identity
3
of the parties, subject matter and causes of action. Even
„WHEREFORE, and in view of all the foregoing considerations, while one of the issues submitted in G.R. No. 97765·
judgment is hereby rendered for the plaintiff, who successfully „whether or not public respondent Court of Appeals erred
established his claim by sufficient evidence, against the defendant in ruling that private respondent Scalzo is a diplomat
in the manner following: immune from civil suit conformably with the Vienna
Convention on Diplomatic Relations‰·is also a pivotal
„ ÂAdjudging defendant liable to plaintiff in actual and compensatory
question raised in the instant petition, the ruling in G.R.
damages of P520,000,00; moral damages in the sum of P10 million;
No. 97765, however, has not resolved that point with
exemplary damages in the sum of P100,000.00; attorneyÊs fees in the sum
finality, indeed, the Court there has made this observation
of P200,000.00 plus costs.
·
ÂThe 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 „It may be mentioned in this regard that private respondent
docket fees considering that the plaintiff in this case instituted this himself, in his Pre-trial Brief filed on 13 June 1990, unequivocally
2
action as a pauper litigant.Ê ‰ states that he would present documentary evidence consisting of
DEA records on his investigation and surveillance of plaintiff and
While the trial court gave credence to the claim of Scalzo
on his position and duties as DEA special agent in Manila. Having
and the evidence presented by him that he was a
thus reserved his right to present evidence in support of his
diplomatic agent entitled to immunity as such, it ruled that
position, which is the basis for the alleged diplomatic immunity,
he, nevertheless, should be held accountable for the acts
the barren self-serving claim in the belated motion to dismiss
complained of committed outside his official duties. On
cannot be relied upon for a reasonable, intelligent and fair
appeal, the Court of Appeals reversed the 4
resolution of the issue of diplomatic immunity.‰

_______________ Scalzo contends that the Vienna Convention on Diplomatic

Relations, to which the Philippines is a signatory, grants
2 Rollo, p. 51.
him absolute immunity from suit, describing his functions
252
as an agent of the

_______________
252 SUPREME COURT REPORTS ANNOTATED
3 Linzag vs. CA, 291 SCRA 304 (1998).
Minucher vs. Court of Appeals
 4 Minucher vs. Court of Appeals, 214 SCRA 242 (1992). the provisions of the Vienna Convention on Diplomatic
Relations; and (3) that the United States Embassy
253
repeatedly urged the Department of Foreign Affairs to take
appropriate action to inform the trial court of ScalzoÊs
VOL. 397, FEBRUARY 11, 2003 253 diplomatic immunity. The other documentary exhibits were
presented to indicate that: (1) the Philippine government
Minucher vs. Court of Appeals
itself, through its Executive Department, recognizing and
respecting the diplomatic status of Scalzo, formally advised
United States Drug Enforcement Agency as „conducting the
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 5 For documentary Exhibits Nos. „1-8‰, see Rollo, pp. 143-155.
agents (to) make the actual arrest.‰ Scalzo has submitted to
the trial court a number of documents· 254

1. Exh. Â2Ê·Diplomatic Note No. 414 dated 29 May

254 SUPREME COURT REPORTS ANNOTATED
1990;
2. Exh. Â1Ê·Certification of Vice Consul Donna K. Minucher vs. Court of Appeals
Woodward dated 11 June 1990;
3. Exh. Â5Ê·Diplomatic Note No. 757 dated 25 October „Judicial Department‰ of his diplomatic status and his
1991; entitlement to all diplomatic privileges and immunities
under the Vienna Convention; and (2) the Department of
4. Exh. Â6Ê·Diplomatic Note No. 791 dated 17
Foreign Affairs itself authenticated Diplomatic Note No.
November 1992; and
414. Scalzo additionally presented Exhibits „9‰ to „13‰
5. Exh. Â7Ê·Diplomatic Note No. 833 dated 21 October consisting of his reports of investigation on the
1988. surveillance and subsequent arrest of Minucher, the
6. Exh. Â3Ê·1st Indorsement of the Hon. Jorge R. certification of the Drug Enforcement Administration of
Coquia, Legal Adviser, Department of Foreign the United States Department of Justice that Scalzo was a
Affairs, dated 27 June 1990 forwarding Embassy special agent assigned to the Philippines at all times
Note No. 414 to the Clerk of Court of RTC Manila, relevant to the complaint, and the special power of6
Branch 19 (the trial court); attorney executed by him in favor of his previous counsel
7. Exh. Â4Ê·Diplomatic Note No. 414, appended to the to show (a) that the United States Embassy, affirmed by its
1st Indorsement (Exh. Â3Ê); and Vice Consul, acknowledged Scalzo to be a member of the
8. Exh. Â8Ê·Letter dated 18 November 1992 from the diplomatic staff of the United States diplomatic mission
Office of the Protocol, Department of Foreign from his arrival in the Philippines on 14 October 1985 until
Affairs, through Asst. Sec. Emmanuel Fernandez, his departure on 10 August 1988, (b) that, on May 1986,
5
addressed to the Chief Justice of this Court. with the cooperation of the Philippine law enforcement
officials and in the exercise of his functions as member of
The documents, according to Scalzo, would show that: (1) the mission, he investigated Minucher for alleged
the United States Embassy accordingly advised the trafficking in a prohibited drug, and (c) that the Philippine
Executive Department of the Philippine Government that Department of Foreign Affairs itself recognized that Scalzo
Scalzo was a member of the diplomatic staff of the United during his tour of duty in the Philippines (14 October 1985
States diplomatic mission from his arrival in the up to 10 August 1988) was listed as being an Assistant
Philippines on 14 October 1985 until his departure on 10 Attaché of the United States diplomatic mission and
August 1988; (2) that the United States Government was accredited with diplomatic status by the Government of
firm from the very beginning in asserting the diplomatic the Philippines. In his Exhibit 12, Scalzo described the
immunity of Scalzo with respect to the case pursuant to functions of the overseas office of the United States Drug
Enforcement Agency, i.e., (1) to provide criminal
investigative expertise and assistance to foreign law _______________
enforcement agencies on narcotic and drug control
7 Eileen Denza, „Diplomatic Law, A Commentary on the Vienna
programs upon the request of the host country, 2) to
Convention on Diplomatic Relations,‰ 2nd Edition, Claredon Press,
establish and maintain liaison with the host country and
Oxford, 1998, at 210.
counterpart foreign law enforcement officials, and 3) to
8 Ibid.
conduct complex criminal investigations involving
9 Article 3 of the Vienna Convention enumerates the functions of the
international criminal conspiracies which affect the
diplomatic mission as
interests of the United States.
The Vienna Convention on Diplomatic Relations was a (a) representing the sending State in the receiving State;
codification of centuries-old customary law and, by the
(b) protecting in the receiving State the interests of the sending State
time of its ratification on 18 April 1961, its rules of law
and of its nationals, within the limits permitted by international
had long become stable. Among the city states of ancient
law;
Greece, among the peoples of the Mediterranean before the
(c) negotiating with the Government of the receiving State;
establishment of the Roman Empire, and among the states
of India, the person of the herald in time of war and the (d) ascertaining by all lawful means conditions and developments in

person of the diplomatic envoy in time of peace were uni- 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
6 For Documentary Exhibits Nos. „9-13‰, See Rollo, pp. 156-168. scientific relations.

255 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
VOL. 397, FEBRUARY 11, 2003 255
Consular Practice, A Glossary,‰ Central Lawbook Publishing, Co., 1966, p.
Minucher vs. Court of Appeals 19.)
11Envoys are diplomatic agents of the second class. This is the title of
versally held sacrosanct.7By the end of the 16th century, the head of legation as distinguished from an embassy, the head of which
when the earliest treatises on diplomatic law were
published, the inviolability of ambassadors was firmly8 256

established as a rule of customary international law,

Traditionally, the exercise of diplomatic intercourse among 256 SUPREME COURT REPORTS ANNOTATED
states was undertaken by the head of state himself, as
Minucher vs. Court of Appeals
being the preeminent embodiment of the state he
represented, and the foreign secretary, the official usually 12
entrusted with the external affairs of the state. Where a heads of states; and (c) charges dÊ affairs accredited to the
state would wish to have a more prominent diplomatic ministers of foreign affairs.13 Comprising the „staff of the
presence in the receiving state, it would then send to the (diplomatic) mission‰ are the diplomatic staff, the
latter a diplomatic mission. Conformably with the Vienna administrative staff and the technical and service staff.
Convention, the functions of the diplomatic mission Only the heads of missions, as well as members of the
involve, by and large, the representation of the interests of diplomatic staff, excluding the members of the
the sending state and promoting friendly relations with the administrative, technical and service staff of the mission,
9
receiving state. are accorded diplomatic rank. Even while the Vienna
The Convention lists the classes of heads of diplomatic Convention on Diplomatic Relations provides for immunity
missions to include (a) ambassadors or nuncios accredited to the members of diplomatic missions, it does so,
10 11
to the heads of state, (b) envoys, ministers or nevertheless, with an understanding that the same be
internuncios accredited to the 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 diplomat entitled to immunity is the determination of
missions or members of the diplomatic staff, thus impliedly whether or not he performs duties of diplomatic nature.
withholding the same privileges from all others. It might Scalzo asserted, particularly in his Exhibits „9‰ to „13‰,
bear stressing that even consuls, who represent their that he was an Assistant Attaché of the United States
respective states in concerns of commerce and navigation diplomatic mission and was accredited as such by the
and perform certain administrative and Philippine Government. An attaché 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
is called Ambassador Extraordinary and Plenipotentiary. Like the certain ministries or departments of the government, other
Ambassador, the envoy is also accredited to the Head of State. (Gamboa, than the foreign ministry or department, who are detailed
p. 190.) by their respective ministries or departments with the
12 Charges dÊ Affairs are either en titre or ad interim. Charges dÊ Affairs embassies such as the military, naval, air, commercial,
en titre are appointed on a permanent basis and belong to the fourth class agricultural, labor, science, and customs attaches, or the
of diplomatic envoys, the other three being ambassadors, ministers like. Attaches assist a chief of mission in his duties and are
plenipotentiary and envoys extraordinary, and ministers resident. He is administratively under him, but their main function is to
the head of the legation in his own right and is not accredited to the head observe, analyze and interpret trends and developments in
of State but to the foreign office. According to Radloric, charges dÊ affairs their respective fields in the host country and submit
are sometimes used to describe a person who has been placed in custody reports to their
14
own ministries or departments in the home
of the archives and other property of a mission in a country with which gov-ernment. These officials are not generally regarded as
formal diplomatic relations are not maintained. Charges dÊ affairs ad members of the diplomatic mission, nor are they normally
interim, in contrast are usually those second in command of the designated as having diplomatic rank.
diplomatic mission·minister, counselor or first secretary, who are only In an attempt to prove his diplomatic status, Scalzo
temporarily in charge of the mission during the absence of the head of presented Diplomatic Notes Nos. 414, 757 and 791, all
the mission. He is not accredited either to the Head of State or the issued post litem motam, respectively, on 29 May 1990, 25
Foreign Office. (Gamboa, Ibid., pp. 51-52.) October 1991 and 17 November 1992. The presentation did
13 The classification of diplomatic representatives was considered nothing much to alleviate the CourtÊs initial reservations
significant before because direct communication with the head of state in G.R. No. 97765, viz.:
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 „While the trial court denied the motion to dismiss, the public
however, diplomatic matters are usually discussed not with the head of respondent gravely abused its discretion in dismissing Civil Case
state but with the foreign secretary regardless of the diplomatÊs rank. No. 8845691 on the basis of an erroneous assumption that simply
Moreover, it has become the practice now for even the smallest and the because of the diplomatic note, the private respondent is clothed
weakest states to send diplomatic representatives of the highest rank, with diplomatic immunity, thereby divesting the trial court of
even to the major powers. (Cruz, International Law, 1985 Edition, p. 145.) jurisdiction over his person.
„x x x x x x x x x
257
_______________

VOL. 397, FEBRUARY 11, 2003 257 14 Gamboa, supra, pp. 32-33.
Minucher vs. Court of Appeals
258

notarial duties, such as the issuance of passports and

visas, authentication of documents, and administration of 258 SUPREME COURT REPORTS ANNOTATED
oaths, do not ordinarily enjoy the traditional diplomatic Minucher vs. Court of Appeals
immunities and privileges accorded diplomats, mainly for
the reason that they are not charged with the duty of „And now, to the core issue·the alleged diplomatic immunity
representing their states in political matters. Indeed, the of the private respondent. Setting aside for the moment the issue
main yardstick in ascertaining whether a person is a of authenticity raised by the petitioner and the doubts that
surround such claim, in view of the fact that it took private VOL. 397, FEBRUARY 11, 2003 259
respondent one (1) year, eight (8) months and seventeen (17) days
Minucher vs. Court of Appeals
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 should behoove the Philippine government, specifically its
United States of America were studying the case for the purpose Department of Foreign Affairs, to be most circumspect,
of determining his defenses, before he could secure the that should particularly be no less than compelling, in its
Diplomatic Note from the US Embassy in Manila, and even post litem motam issuances. It might be recalled that the
granting for the sake of argument that such note is authentic, the privilege is not an immunity from the observance of the
complaint for damages filed by petitioner cannot be peremptorily law of the territorial sovereign or from ensuing legal
dismissed. liability; it is, rather, an immunity from the exercise of
„x x x x x x x x x territorial jurisdiction.16 The government of the United
„There is of course the claim of private respondent that the States itself, which Scalzo claims to be acting for, has
acts imputed to him were done in his official capacity. Nothing formulated its standards for recognition of a diplomatic
supports this self-serving claim other than the so-called agent. The State Department policy is to only concede
Diplomatic Note. x x x. The public respondent then should have diplomatic status to a person who possesses an
sustained the trial courtÊs denial of the motion to dismiss. Verily, acknowledged diplomatic 17
title and „performs duties of
it should have been the most proper and appropriate recourse. It diplomatic nature.‰ Supplementary criteria for
should not have been overwhelmed by the self-serving Diplomatic accreditation are the possession of a valid diplomatic
Note whose belated issuance is even suspect and whose passport or, from States which do not issue such passports,
authenticity has not yet been proved. The undue haste with which a diplomatic note formally representing the intention to
respondent Court yielded to the private respondentÊs claim is assign the person to diplomatic duties, the holding of a
arbitrary.‰ non-immigrant visa, being over twenty-one years of age,
and performing
18
diplomatic functions on an essentially full-
A significant document would appear to be Exhibit No. 08, time basis. Diplomatic missions are requested to provide
dated 08 November 1992, issued by the Office of Protocol the most accurate and descriptive job title to that which
of the Department of Foreign Affairs and signed by currently applies to the duties performed. The Office of the
Emmanuel C. Fernandez, Assistant Secretary, certifying Protocol would then assign 19each individual to the
that „the records of the Department (would) show that Mr. appropriate functional cate-gory.
Arthur W. Scalzo, Jr., during his term of office in the But while the diplomatic immunity of Scalzo might thus
Philippines (from 14 October 1985 up to 10 August 1988) remain contentious, it was sufficiently established that,
was listed as an Assistant Attaché of the United States indeed, he worked for the United States Drug Enforcement
diplomatic mission and was, therefore, accredited Agency and was tasked to conduct surveillance of
diplomatic status by the Government of the Philippines.‰ suspected drug activities within the country on the dates
No certified true copy of such „records,‰ the supposed bases pertinent to this case. If it should be ascertained that
for the belated issuance, was presented in evidence. Arthur Scalzo was acting well within his assigned
Concededly, vesting a person with diplomatic immunity functions when he committed the acts alleged in the
is a prerogative of the executive branch of the government. complaint, the present controversy could then be resolved
In World Health Organization vs. Aquino15 the Court has under the related doctrine of State Immunity from Suit.
recognized that, in such matters, the hands of the courts The precept that a State cannot be sued in the courts of a
are virtually tied. Amidst apprehensions of indiscriminate foreign state is a long-standing rule of customary
and incautious grant of immunity, designed to gain international law then closely identified with the personal
exemption from the jurisdiction of courts, it immunity of a foreign sovereign

_______________ _______________

15 48 SCRA 242 (1972). 16 J.L. Brierly, „The Law of Nations,‰ Oxford University Press, 6th
Edition, 1963, p. 244.
259 17 Denza, supra, at p. 16.
 18 Ibid. claims of immunity from the US Shipping Board, although a state body,
19 Ibid., at p. 55. as it could not be identified with the American government on the ground
that undertaking maritime navigation and business as a commercial
260 enterprise do not constitute a sovereign act. (D.W. Grieg, „International
Law,‰ London Butterworths, 1970, p. 221.)
260 SUPREME COURT REPORTS ANNOTATED 22 See Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812), cited in
Charles G. Fenwick, „International Law,‰ New York, 3rd Edition (1948), p.
Minucher vs. Court of Appeals
307.

from suit20 and, with the emergence of democratic states, 261

made to attach not just to the person of the head of state,
or his representative, but21 also distinctly to the state itself VOL. 397, FEBRUARY 11, 2003 261
in its sovereign capacity. If the acts giving rise to a suit
are those of a foreign government done by its foreign agent, Minucher vs. Court of Appeals
although not necessarily a diplomatic personage, but acting
in his official capacity, the complaint could be barred by the must be regarded as being against the
23
state itself, although
immunity of the foreign sovereign from suit without its it has not been formally impleaded. 24
consent. Suing a representative of a state is believed to be, In United States of America vs. Guinto, involving
in effect, suing the state itself. The proscription is not officers of the United States Air Force and special officers
accorded for the benefit of an individual but for the State, of the Air Force Office of Special Investigators charged
in whose service he is, under the maxim·par in parem, with the duty of preventing the distribution, possession
non habet imperium·that all states are sovereign 22 equals and use of prohibited drugs, this Court has ruled·
and cannot assert jurisdiction over one another. The
implication, in broad terms, is that if the judgment against „While the doctrine (of state immunity) appears to prohibit only
an official would require the state itself to perform an suits against the state without its consent, it is also applicable to
affirmative act to satisfy the award, such as the complaints filed against officials of the state for acts allegedly
appropriation of the amount needed to pay the damages performed by them in the discharge of their duties. x x x. It
decreed against him, the suit 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
20 Charles G. Fenwick, „International Law,‰ Appleton-Century-Crofts, directly impleaded for acts imputable to their principal, which has
Inc., New York, 1948, pp. 307-308. not given its consent to be sued. x x x As they have acted on
21 The international law on sovereign immunity of states from suit in behalf of the government, and within the scope of their authority,
the courts of another state has evolved from national court decisions with it is that government, and not the petitioners personally, [who
25
good deal of variance in perspectives. Even though national cases have were] responsible for their acts.‰
been the major source of pronouncements on sovereign immunity, it
This immunity principle, however, has its limitations.
should be noted that these constitute evidence of customary international 26
Thus, Shauf vs. Court of Appeals elaborates:
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 „It is a different matter where the public official is made to
emerging, i.e., that state immunity covers only acts which deal with the account in his capacity as such for acts contrary to law and
government functions of a state, and excludes, any of its commercial injurious to the rights of the plaintiff. As was clearly set forth by
activities, or activities not related to „sovereign acts.‰ The consensus Justice Zaldivar in Director of the Bureau of Telecommunications,
involves a more defined differentiation between public acts (juri imperil) et al. vs. Aligaen, et al. (33 SCRA 368): ÂInasmuch as the State
and private acts (jure gestionis). (Gary L. Maris, „International Law, An authorizes only legal acts by its officers, unauthorized acts of
Introduction,‰ University Press of America, 1984, p. 119; D.W. Grieg, government officials or officers are not acts of the State, and an
„International Law,‰ London Butterworths, 1970, p. 221.) action against the officials or officers by one whose rights have
The United States for example, does not claim immunity for its publicly been invaded or violated by such acts, for the protection of his
owned or operated merchant vessels. The Italian courts have rejected 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 conduct surveillance and related activities of suspected
action at law or suit in equity against a State officer or the drug dealers in the Philippines), the consent or imprimatur
director of a State department on the ground that, while claiming of the Philippine government to the activities of the
to act for the State, he violates or invades the personal and United States Drug Enforcement Agency, however, can be
property rights of the plaintiff, under an unconstitutional act or gleaned from the facts heretofore elsewhere mentioned.
under an assumption of authority which he does not have, is not a The official exchanges of communication between agencies
suit 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
23 United States of America, et al. vs. Guinto, etc., et al., G.R. No. 76607, 26
Command in the „buy-bust operation‰ conducted at the
February 1990, 182 SCRA 644.
residence of Minucher at the behest of Scalzo, may be
24 182 SCRA 644 (1982).
inadequate to support the „diplomatic status‰ of the latter
25 At pp. 653-659.
but they give enough indication that the Philippine
26 191 SCRA 713 (1990).
government has given its imprimatur, if not consent, to the
activities within Philippine territory of agent Scalzo of the
262
United States Drug Enforcement

262 SUPREME COURT REPORTS ANNOTATED

_______________
Minucher vs. Court of Appeals
27 At pp. 727-728.
against the State within the constitutional provision that the
263
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. VOL. 397, FEBRUARY 11, 2003 263
„x x x x x x x x x Minucher vs. Court of Appeals
„(T)he doctrine of immunity from suit will not apply and may
not be invoked where the public official is being sued in his
Agency. The job description of Scalzo has tasked him to
private and personal capacity as an ordinary citizen. The cloak of
conduct surveillance on suspected drug suppliers and, after
protection afforded the officers and agents of the government is
having ascertained the target, to inform local law enforcers
removed the moment they are sued in their individual capacity.
who would then be expected to make the arrest. In
This situation usually arises where the public official acts without
conducting surveillance activities on Minucher, later
authority or in excess of the powers vested in him. It is a well-
acting as the poseur-buyer during the buy-bust operation,
settled principle of law that a public official may be liable in his
and then becoming a principal witness in the criminal case
personal private capacity for whatever damage he may have
against Minucher, Scalzo hardly can be said to have acted
caused by his act done with malice and in bad faith or beyond the
27 beyond the scope of his official function or duties.
scope of his authority and jurisdiction.‰
All told, this Court is constrained to rule that
A foreign agent, operating within a territory, can be cloaked respondent Arthur Scalzo, an agent of the United States
with immunity from suit but only as long as it can be Drug Enforcement Agency allowed by the Philippine
established that he is acting within the directives of the government to conduct activities in the country to help
sending state. The consent of the host state is an contain the problem on the drug traffic, is entitled to the
indispensable requirement of basic courtesy between the defense of state immunity from suit.
two sovereigns. Guinto and Shauf both involve officers and WHEREFORE, on the foregoing premises, the petition is
personnel of the United States, stationed within Philippine DENIED. No costs.
territory, under the RP-US Military Bases Agreement. SO ORDERED.
While evidence is wanting to show any similar agreement
Davide, Jr. (C.J., Chairman), Ynares-Santiago,
between the governments of the Philippines and of the
Carpio and Azcuna, JJ., concur.
United States (for the latter to send its agents and to
 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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