FIRST DIVISION
KHOSROW MINUCHER,
Petitioner,
G.R.
No.
142396
February 11, 2003
-versus-
HON. COURT OF
APPEALS
AND ARTHUR SCALZO,
Respondents.
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D E C I S I O N
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VITUG,
J.: chanrobles virtuallaw libraryred
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Sometime in May 1986,
an Information for violation of Section 4 of Republic Act No. 6425,
otherwise
also known as the "Dangerous Drugs Act of 1972," was filed against
petitioner
Khosrow Minucher and one Abbas Torabian with the Regional Trial Court,
Branch 151, of Pasig City. The criminal charge followed a "buy-bust
operation"
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.chanrobles virtuallaw libraryred
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 of drug trafficking made by Arthur Scalzo. The Manila RTC
detailed
what it had found to be the facts and circumstances surrounding the
case.chanrobles virtuallaw libraryred
"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 Attaché 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.chanrobles virtuallaw libraryred
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 Iñigo, an informer of the
Intelligence
Unit of the military. Jose Iñigo, 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.chanrobles virtuallaw libraryred
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During his first
meeting
with the defendant on May 13, 1986, upon the introduction of Jose
Iñigo,
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 defendant’s own handwriting, the
number
of which he can also be contacted.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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 attaché 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.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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 xchanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
"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]chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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 Minucher’s 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.chanrobles virtuallaw libraryred
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.cralaw:red
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 Court’s 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 Scalzo’s
diplomatic immunity could not be taken up.chanrobles virtuallaw libraryred
The Manila RTC thus
continued with its hearings on the case. On 17 November 1995, the trial
court reached a decision; it adjudged:chanrobles virtuallaw libraryred
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:chanrobles virtuallaw libraryred
"`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.chanrobles virtuallaw libraryred
`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]chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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 -chanrobles virtuallaw libraryred
"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]chanrobles virtuallaw libraryred
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 -chanrobles virtuallaw libraryred
1. Exh.
'2' - Diplomatic Note No. 414 dated 29 May 1990;chanrobles virtuallaw libraryred
2. Exh.
'1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;chanrobles virtuallaw libraryred
3. Exh.
'5' - Diplomatic Note No. 757 dated 25 October 1991;chanrobles virtuallaw libraryred
4. Exh.
'6' - Diplomatic Note No. 791 dated 17 November 1992; andchanrobles virtuallaw libraryred
5. Exh.
'7' - Diplomatic Note No. 833 dated 21 October 1988.chanrobles virtuallaw libraryred
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);chanrobles virtuallaw libraryred
7. Exh.
'4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh.
'3');
andchanrobles virtuallaw libraryred
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]chanrobles virtuallaw libraryred
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 Scalzo’s 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 Attaché 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.chanrobles virtuallaw libraryred
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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]chanrobles virtuallaw libraryred
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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.
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Scalzo asserted,
particularly
in his Exhibits (9) to (13), that he was an Assistant Attaché of
the United States diplomatic mission and was accredited as such by the
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 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.
chanrobles virtuallaw libraryred
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:chanrobles virtuallaw libraryred
"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.chanrobles virtuallaw libraryred
x x x x x x x x xchanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
x x x x x x x x xchanrobles virtuallaw libraryred
"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."chanrobles virtuallaw libraryred
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 Attaché 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.chanrobles virtuallaw libraryred
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]chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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]chanrobles virtuallaw libraryred
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 -chanrobles virtuallaw libraryred
"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]chanrobles virtuallaw libraryred
This immunity principle,
however, has its limitations. Thus, Shauf vs. Court of Appeals[26]
elaborates:chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
x x x x x x x x xchanrobles virtuallaw libraryred
"(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]chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
WHEREFORE, on the foregoing
premises, the petition is DENIED. No costs. chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Davide, Jr., C.J.,
(Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concurchan
robles virtual law library
____________________________
Endnotes:
[1]
Rollo, pp. 39-42.chanrobles virtuallaw libraryred
[2]
Rollo. p. 51.chanrobles virtuallaw libraryred
[3]
Linzag vs. CA, 291 SCRA 304.chanrobles virtuallaw libraryred
[4]
Minucher vs. Court of Appeals, 214 SCRA 242.chanrobles virtuallaw libraryred
[5]
For documentary Exhibits Nos. 1-8, see Rollo, pp. 143-155.chanrobles virtuallaw libraryred
[6]
For Documentary Exhibits Nos. 9-13, See Rollo, pp. 156-168.chanrobles virtuallaw libraryred
[7]
Eileen Denza, "Diplomatic Law, A Commentary on the Vienna Convention on
Diplomatic Relations," 2nd Edition, Claredon Press, Oxford, 1998, at
210.chanrobles virtuallaw libraryred
[8]
Ibid.chanrobles virtuallaw libraryred
[9]
Article 3 of the Vienna Convention enumerates the functions of the
diplomatic
mission aschanrobles virtuallaw libraryred
(a)
representing the sending State in the receiving State;chanrobles virtuallaw libraryred
(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;chanrobles virtuallaw libraryred
(d)
ascertaining by all lawful means conditions and developments in the
receiving
State, and reporting thereon to the Government of the sending State;chanrobles virtuallaw libraryred
(e)
promoting friendly relations between the sending State and the
receiving
State, and developing their economic, cultural and scientific
relations.chanrobles virtuallaw libraryred
[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.)chanrobles virtuallaw libraryred
[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.)chanrobles virtuallaw libraryred
[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.)chanrobles virtuallaw libraryred
[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.)chanrobles virtuallaw libraryred
[14]
Gamboa, supra., pp. 32-33.chanrobles virtuallaw libraryred
[15]
48 SCRA 242.chanrobles virtuallaw libraryred
[16]
J.L. Brierly, "The Law of Nations," Oxford University Press, 6th
Edition,
1963, p. 244.chanrobles virtuallaw libraryred
[17]
Denza, supra., at 16.chanrobles virtuallaw libraryred
[18]
Ibid.chanrobles virtuallaw libraryred
[19]
Ibid., at 55.chanrobles virtuallaw libraryred
[20]
Charles G. Fenwick, "International Law," Appleton-Century-Crofts, Inc.,
New York, 1948, p. 307-308.chanrobles virtuallaw libraryred
[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.)chanrobles virtuallaw libraryred
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.)chanrobles virtuallaw libraryred
[22]
See Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812), cited in
Charles
G. Fenwick, "International Law," New York, 3rd Edition (1948), p. 307.chanrobles virtuallaw libraryred
[23]
United States of America, et al. vs. Guinto, etc., et al., G.R. No.
76607,
26 February 1990.chanrobles virtuallaw libraryred
[24]
182 SCRA 644.chanrobles virtuallaw libraryred
[25]
At pp. 653-659.chanrobles virtuallaw libraryred
[26]
191 SCRA 713chanrobles virtuallaw libraryred
[27]
At pp. 727-728.chanrobles virtuallaw libraryred |