G.R. No.

142396 February 11, 2003 matter of fact, he bought two kilos of caviar from
plaintiff and paid P10,000.00 for it. Selling caviar,
KHOSROW MINUCHER, petitioner, aside from that of Persian carpets, pistachio nuts and
vs. other Iranian products was his business after the
HON. COURT OF APPEALS and ARTHUR Khomeini government cut his pension of over $3,000.00
SCALZO, respondents. per month. During their introduction in that meeting,
the defendant gave the plaintiff his calling card, which
DECISION 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
VITUG, J.:
States, and gave his address as US Embassy, Manila.
At the back of the card appears a telephone number in
Sometime in May 1986, an Information for violation of defendant’s own handwriting, the number of which he
Section 4 of Republic Act No. 6425, otherwise also can also be contacted.
known as the "Dangerous Drugs Act of 1972," was filed
against petitioner Khosrow Minucher and one Abbas
"It was also during this first meeting that plaintiff
Torabian with the Regional Trial Court, Branch 151, of
expressed his desire to obtain a US Visa for his wife
Pasig City. The criminal charge followed a "buy-bust
and the wife of a countryman named Abbas Torabian.
operation" conducted by the Philippine police narcotic
The defendant told him that he [could] help plaintiff for
agents in the house of Minucher, an Iranian national,
a fee of $2,000.00 per visa. Their conversation,
where a quantity of heroin, a prohibited drug, was said
however, was more concentrated on politics, carpets
to have been seized. The narcotic agents were
and caviar. Thereafter, the defendant promised to see
accompanied by private respondent Arthur Scalzo who
plaintiff again.
would, in due time, become one of the principal
witnesses for the prosecution. On 08 January 1988,
Presiding Judge Eutropio Migrino rendered a decision "On May 19, 1986, the defendant called the plaintiff
acquitting the two accused. 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
On 03 August 1988, Minucher filed Civil Case No. 88-
that the defendant was not yet there, he requested the
45691 before the Regional Trial Court (RTC), Branch
restaurant people to x x x place the same in the
19, of Manila for damages on account of what he
refrigerator. Defendant, however, came and plaintiff
claimed to have been trumped-up charges of drug
gave him the caviar for which he was paid. Then their
trafficking made by Arthur Scalzo. The Manila RTC
conversation was again focused on politics and
detailed what it had found to be the facts and
business.
circumstances surrounding the case.

"On May 26, 1986, defendant visited plaintiff again at

"The testimony of the plaintiff disclosed that he is an
the latter's residence for 18 years at Kapitolyo, Pasig.
Iranian national. He came to the Philippines to study
The defendant wanted to buy a pair of carpets which
in the University of the Philippines in 1974. In 1976,
plaintiff valued at $27,900.00. After some haggling,
under the regime of the Shah of Iran, he was appointed
they agreed at $24,000.00. For the reason that
Labor Attaché for the Iranian Embassies in Tokyo,
defendant did not yet have the money, they agreed that
Japan and Manila, Philippines. When the Shah of Iran
defendant would come back the next day. The following
was deposed by Ayatollah Khomeini, plaintiff became
day, at 1:00 p.m., he came back with his $24,000.00,
a refugee of the United Nations and continued to stay
which he gave to the plaintiff, and the latter, in turn,
in the Philippines. He headed the Iranian National
gave him the pair of carpets.1awphi1.nét
Resistance Movement in the Philippines.

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

"He came to know the defendant on May 13, 1986,
defendant came back again to plaintiff's house and
when the latter was brought to his house and
directly proceeded to the latter's bedroom, where the
introduced to him by a certain Jose Iñigo, an informer
latter and his countryman, Abbas Torabian, were
of the Intelligence Unit of the military. Jose Iñigo, on
playing chess. Plaintiff opened his safe in the bedroom
the other hand, was met by plaintiff at the office of
and obtained $2,000.00 from it, gave it to the defendant
Atty. Crisanto Saruca, a lawyer for several Iranians
for the latter's fee in obtaining a visa for plaintiff's wife.
whom plaintiff assisted as head of the anti-Khomeini
The defendant told him that he would be leaving the
movement in the Philippines.
Philippines very soon and requested him to come out of
the house for a while so that he can introduce him to
"During his first meeting with the defendant on May his cousin waiting in a cab. Without much ado, and
13, 1986, upon the introduction of Jose Iñigo, the without putting on his shirt as he was only in his
defendant expressed his interest in buying caviar. As a pajama pants, he followed the defendant where he saw
a parked cab opposite the street. To his complete raised. The trial court granted the motion. On 27
surprise, an American jumped out of the cab with a October 1988, Scalzo filed another special appearance
drawn high-powered gun. He was in the company of to quash the summons on the ground that he, not being
about 30 to 40 Filipino soldiers with 6 Americans, all a resident of the Philippines and the action being one
armed. He was handcuffed and after about 20 minutes in personam, was beyond the processes of the court.
in the street, he was brought inside the house by the The motion was denied by the court, in its order of 13
defendant. He was made to sit down while in handcuffs December 1988, holding that the filing by Scalzo of a
while the defendant was inside his bedroom. The motion for extension of time to file an answer to the
defendant came out of the bedroom and out from complaint was a voluntary appearance equivalent to
defendant's attaché case, he took something and placed service of summons which could likewise be construed
it on the table in front of the plaintiff. They also took a waiver of the requirement of formal notice. Scalzo
plaintiff's wife who was at that time at the boutique filed a motion for reconsideration of the court order,
near his house and likewise arrested Torabian, who contending that a motion for an extension of time to file
was playing chess with him in the bedroom and both an answer was not a voluntary appearance equivalent
were handcuffed together. Plaintiff was not told why he to service of summons since it did not seek an
was being handcuffed and why the privacy of his house, affirmative relief. Scalzo argued that in cases involving
especially his bedroom was invaded by defendant. He the United States government, as well as its agencies
was not allowed to use the telephone. In fact, his and officials, a motion for extension was peculiarly
telephone was unplugged. He asked for any warrant, unavoidable due to the need (1) for both the
but the defendant told him to `shut up.’ He was Department of State and the Department of Justice to
nevertheless told that he would be able to call for his agree on the defenses to be raised and (2) to refer the
lawyer who can defend him. case to a Philippine lawyer who would be expected to
first review the case. The court a quo denied the motion
"The plaintiff took note of the fact that when the for reconsideration in its order of 15 October 1989.
defendant invited him to come out to meet his cousin,
his safe was opened where he kept the $24,000.00 the Scalzo filed a petition for review with the Court of
defendant paid for the carpets and another $8,000.00 Appeals, there docketed CA-G.R. No. 17023, assailing
which he also placed in the safe together with a the denial. In a decision, dated 06 October 1989, the
bracelet worth $15,000.00 and a pair of earrings worth appellate court denied the petition and affirmed the
$10,000.00. He also discovered missing upon his ruling of the trial court. Scalzo then elevated the
release his 8 pieces hand-made Persian carpets, valued incident in a petition for review on certiorari, docketed
at $65,000.00, a painting he bought for P30,000.00 G.R. No. 91173, to this Court. The petition, however,
together with his TV and betamax sets. He claimed was denied for its failure to comply with SC Circular
that when he was handcuffed, the defendant took his No. 1-88; in any event, the Court added, Scalzo had
keys from his wallet. There was, therefore, nothing left failed to show that the appellate court was in error in
in his house. its questioned judgment.

"That his arrest as a heroin trafficker x x x had been Meanwhile, at the court a quo, an order, dated 09
well publicized throughout the world, in various February 1990, was issued (a) declaring Scalzo in
newspapers, particularly in Australia, America, default for his failure to file a responsive pleading
Central Asia and in the Philippines. He was identified (answer) and (b) setting the case for the reception of
in the papers as an international drug trafficker. x x x evidence. On 12 March 1990, Scalzo filed a motion to
set aside the order of default and to admit his answer
In fact, the arrest of defendant and Torabian was to the complaint. Granting the motion, the trial court
likewise on television, not only in the Philippines, but set the case for pre-trial. In his answer, Scalzo denied
also in America and in Germany. His friends in said the material allegations of the complaint and raised the
places informed him that they saw him on TV with said affirmative defenses (a) of Minucher’s failure to state a
news. cause of action in his complaint and (b) that Scalzo had
acted in the discharge of his official duties as being
"After the arrest made on plaintiff and Torabian, they merely an agent of the Drug Enforcement
were brought to Camp Crame handcuffed together, Administration of the United States Department of
where they were detained for three days without food Justice. Scalzo interposed a counterclaim of
and water."1 P100,000.00 to answer for attorneys' fees and expenses
of litigation.
During the trial, the law firm of Luna, Sison and
Manas, filed a special appearance for Scalzo and moved Then, on 14 June 1990, after almost two years since the
for extension of time to file an answer pending a institution of the civil case, Scalzo filed a motion to
supposed advice from the United States Department of dismiss the complaint on the ground that, being a
State and Department of Justice on the defenses to be special agent of the United States Drug Enforcement
Administration, he was entitled to diplomatic considering that the plaintiff in this case instituted this
immunity. He attached to his motion Diplomatic Note action as a pauper litigant.’"2
No. 414 of the United States Embassy, dated 29 May
1990, addressed to the Department of Foreign Affairs While the trial court gave credence to the claim of
of the Philippines and a Certification, dated 11 June Scalzo and the evidence presented by him that he was
1990, of Vice Consul Donna Woodward, certifying that a diplomatic agent entitled to immunity as such, it
the note is a true and faithful copy of its original. In an ruled that he, nevertheless, should be held accountable
order of 25 June 1990, the trial court denied the motion for the acts complained of committed outside his official
to dismiss. duties. On appeal, the Court of Appeals reversed the
decision of the trial court and sustained the defense of
On 27 July 1990, Scalzo filed a petition for certiorari Scalzo that he was sufficiently clothed with diplomatic
with injunction with this Court, docketed G.R. No. immunity during his term of duty and thereby immune
94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. from the criminal and civil jurisdiction of the
Wenceslao Polo, et al.," asking that the complaint in "Receiving State" pursuant to the terms of the Vienna
Civil Case No. 88-45691 be ordered dismissed. The case Convention.
was referred to the Court of Appeals, there docketed
CA-G.R. SP No. 22505, per this Court’s resolution of 07 Hence, this recourse by Minucher. The instant petition
August 1990. On 31 October 1990, the Court of Appeals for review raises a two-fold issue: (1) whether or not the
promulgated its decision sustaining the diplomatic doctrine of conclusiveness of judgment, following the
immunity of Scalzo and ordering the dismissal of the decision rendered by this Court in G.R. No. 97765,
complaint against him. Minucher filed a petition for should have precluded the Court of Appeals from
review with this Court, docketed G.R. No. 97765 and resolving the appeal to it in an entirely different
entitled "Khosrow Minucher vs. the Honorable Court of manner, and (2) whether or not Arthur Scalzo is indeed
Appeals, et. al." (cited in 214 SCRA 242), appealing the entitled to diplomatic immunity.
judgment of the Court of Appeals. In a decision, dated
24 September 1992, penned by Justice (now Chief The doctrine of conclusiveness of judgment, or its
Justice) Hilario Davide, Jr., this Court reversed the kindred rule of res judicata, would require 1) the
decision of the appellate court and remanded the case finality of the prior judgment, 2) a valid jurisdiction
to the lower court for trial. The remand was ordered on over the subject matter and the parties on the part of
the theses (a) that the Court of Appeals erred in the court that renders it, 3) a judgment on the merits,
granting the motion to dismiss of Scalzo for lack of and 4) an identity of the parties, subject matter and
jurisdiction over his person without even considering causes of action.3 Even while one of the issues
the issue of the authenticity of Diplomatic Note No. 414 submitted in G.R. No. 97765 - "whether or not public
and (b) that the complaint contained sufficient respondent Court of Appeals erred in ruling that
allegations to the effect that Scalzo committed the private respondent Scalzo is a diplomat immune from
imputed acts in his personal capacity and outside the civil suit conformably with the Vienna Convention on
scope of his official duties and, absent any evidence to Diplomatic Relations" - is also a pivotal question raised
the contrary, the issue on Scalzo’s diplomatic immunity in the instant petition, the ruling in G.R. No. 97765,
could not be taken up. however, has not resolved that point with finality.
Indeed, the Court there has made this observation -
The Manila RTC thus continued with its hearings on
the case. On 17 November 1995, the trial court reached "It may be mentioned in this regard that private
a decision; it adjudged: respondent himself, in his Pre-trial Brief filed on 13
June 1990, unequivocally states that he would present
"WHEREFORE, and in view of all the foregoing documentary evidence consisting of DEA records on his
considerations, judgment is hereby rendered for the investigation and surveillance of plaintiff and on his
plaintiff, who successfully established his claim by position and duties as DEA special agent in Manila.
sufficient evidence, against the defendant in the Having thus reserved his right to present evidence in
manner following: support of his position, which is the basis for the
alleged diplomatic immunity, the barren self-serving
"`Adjudging defendant liable to plaintiff in actual and claim in the belated motion to dismiss cannot be relied
compensatory damages of P520,000.00; moral damages upon for a reasonable, intelligent and fair resolution of
in the sum of P10 million; exemplary damages in the the issue of diplomatic immunity."4
sum of P100,000.00; attorney's fees in the sum of
P200,000.00 plus costs. Scalzo contends that the Vienna Convention on
Diplomatic Relations, to which the Philippines is a
`The Clerk of the Regional Trial Court, Manila, is signatory, grants him absolute immunity from suit,
ordered to take note of the lien of the Court on this describing his functions as an agent of the United
judgment to answer for the unpaid docket fees States Drugs Enforcement Agency as "conducting
surveillance operations on suspected drug dealers in diplomatic privileges and immunities under the Vienna
the Philippines believed to be the source of prohibited Convention; and (2) the Department of Foreign Affairs
drugs being shipped to the U.S., (and) having itself authenticated Diplomatic Note No. 414. Scalzo
ascertained the target, (he then) would inform the additionally presented Exhibits "9" to "13" consisting of
Philippine narcotic agents (to) make the actual arrest." his reports of investigation on the surveillance and
Scalzo has submitted to the trial court a number of subsequent arrest of Minucher, the certification of the
documents - Drug Enforcement Administration of the United States
Department of Justice that Scalzo was a special agent
1. Exh. '2' - Diplomatic Note No. 414 dated 29 assigned to the Philippines at all times relevant to the
May 1990; complaint, and the special power of attorney executed
by him in favor of his previous counsel6 to show (a) that
2. Exh. '1' - Certification of Vice Consul Donna the United States Embassy, affirmed by its Vice
K. Woodward dated 11 June 1990; 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
3. Exh. '5' - Diplomatic Note No. 757 dated 25
October 1985 until his departure on 10 August 1988,
October 1991;
(b) that, on May 1986, with the cooperation of the
Philippine law enforcement officials and in the exercise
4. Exh. '6' - Diplomatic Note No. 791 dated 17 of his functions as member of the mission, he
November 1992; and investigated Minucher for alleged trafficking in a
prohibited drug, and (c) that the Philippine
5. Exh. '7' - Diplomatic Note No. 833 dated 21 Department of Foreign Affairs itself recognized that
October 1988. Scalzo during his tour of duty in the Philippines (14
October 1985 up to 10 August 1988) was listed as being
6. Exh. '3' - 1st Indorsement of the Hon. Jorge an Assistant Attaché of the United States diplomatic
R. Coquia, Legal Adviser, Department of mission and accredited with diplomatic status by the
Foreign Affairs, dated 27 June 1990 forwarding Government of the Philippines. In his Exhibit 12,
Embassy Note No. 414 to the Clerk of Court of Scalzo described the functions of the overseas office of
RTC Manila, Branch 19 (the trial court); the United States Drugs Enforcement Agency, i.e., (1)
to provide criminal investigative expertise and
7. Exh. '4' - Diplomatic Note No. 414, appended assistance to foreign law enforcement agencies on
to the 1st Indorsement (Exh. '3'); and narcotic and drug control programs upon the request of
the host country, 2) to establish and maintain liaison
8. Exh. '8' - Letter dated 18 November 1992 with the host country and counterpart foreign law
from the Office of the Protocol, Department of enforcement officials, and 3) to conduct complex
Foreign Affairs, through Asst. Sec. Emmanuel criminal investigations involving international
Fernandez, addressed to the Chief Justice of criminal conspiracies which affect the interests of the
this Court.5 United States.

The documents, according to Scalzo, would show that: The Vienna Convention on Diplomatic Relations was a
(1) the United States Embassy accordingly advised the codification of centuries-old customary law and, by the
Executive Department of the Philippine Government time of its ratification on 18 April 1961, its rules of law
that Scalzo was a member of the diplomatic staff of the had long become stable. Among the city states of
United States diplomatic mission from his arrival in ancient Greece, among the peoples of the
the Philippines on 14 October 1985 until his departure Mediterranean before the establishment of the Roman
on 10 August 1988; (2) that the United States Empire, and among the states of India, the person of
Government was firm from the very beginning in the herald in time of war and the person of the
asserting the diplomatic immunity of Scalzo with diplomatic envoy in time of peace were universally held
respect to the case pursuant to the provisions of the sacrosanct.7 By the end of the 16th century, when the
Vienna Convention on Diplomatic Relations; and (3) earliest treatises on diplomatic law were published, the
that the United States Embassy repeatedly urged the inviolability of ambassadors was firmly established as
Department of Foreign Affairs to take appropriate a rule of customary international law.8Traditionally,
action to inform the trial court of Scalzo’s diplomatic the exercise of diplomatic intercourse among states
immunity. The other documentary exhibits were was undertaken by the head of state himself, as being
presented to indicate that: (1) the Philippine the preeminent embodiment of the state he
government itself, through its Executive Department, represented, and the foreign secretary, the official
recognizing and respecting the diplomatic status of usually entrusted with the external affairs of the state.
Scalzo, formally advised the "Judicial Department" of Where a state would wish to have a more prominent
his diplomatic status and his entitlement to all diplomatic presence in the receiving state, it would
then send to the latter a diplomatic mission. developments in their respective fields in the host
Conformably with the Vienna Convention, the country and submit reports to their own ministries or
functions of the diplomatic mission involve, by and departments in the home government.14 These officials
large, the representation of the interests of the sending are not generally regarded as members of the
state and promoting friendly relations with the diplomatic mission, nor are they normally designated
receiving state.9 as having diplomatic rank.

The Convention lists the classes of heads of diplomatic In an attempt to prove his diplomatic status, Scalzo
missions to include (a) ambassadors or nuncios presented Diplomatic Notes Nos. 414, 757 and 791, all
accredited to the heads of state, 10 (b) issued post litem motam, respectively, on 29 May 1990,
envoys, ministers or internuncios accredited to the
11 25 October 1991 and 17 November 1992. The
heads of states; and (c) charges d' affairs12 accredited to presentation did nothing much to alleviate the Court's
the ministers of foreign affairs.13 Comprising the "staff initial reservations in G.R. No. 97765, viz:
of the (diplomatic) mission" are the diplomatic staff, the
administrative staff and the technical and service staff. "While the trial court denied the motion to dismiss, the
Only the heads of missions, as well as members of the public respondent gravely abused its discretion in
diplomatic staff, excluding the members of the dismissing Civil Case No. 88-45691 on the basis of an
administrative, technical and service staff of the erroneous assumption that simply because of the
mission, are accorded diplomatic rank. Even while the diplomatic note, the private respondent is clothed with
Vienna Convention on Diplomatic Relations provides diplomatic immunity, thereby divesting the trial court
for immunity to the members of diplomatic missions, it of jurisdiction over his person.
does so, nevertheless, with an understanding that the
same be restrictively applied. Only "diplomatic agents," "x x x x x x x x x
under the terms of the Convention, are vested with
blanket diplomatic immunity from civil and criminal
"And now, to the core issue - the alleged diplomatic
suits. The Convention defines "diplomatic agents" as
immunity of the private respondent. Setting aside for
the heads of missions or members of the diplomatic
the moment the issue of authenticity raised by the
staff, thus impliedly withholding the same privileges
petitioner and the doubts that surround such claim, in
from all others. It might bear stressing that even
view of the fact that it took private respondent one (1)
consuls, who represent their respective states in
year, eight (8) months and seventeen (17) days from the
concerns of commerce and navigation and perform
time his counsel filed on 12 September 1988 a Special
certain administrative and notarial duties, such as the
Appearance and Motion asking for a first extension of
issuance of passports and visas, authentication of
time to file the Answer because the Departments of
documents, and administration of oaths, do not
State and Justice of the United States of America were
ordinarily enjoy the traditional diplomatic immunities
studying the case for the purpose of determining his
and privileges accorded diplomats, mainly for the
defenses, before he could secure the Diplomatic Note
reason that they are not charged with the duty of
from the US Embassy in Manila, and even granting for
representing their states in political matters. Indeed,
the sake of argument that such note is authentic, the
the main yardstick in ascertaining whether a person is
complaint for damages filed by petitioner cannot be
a diplomat entitled to immunity is the determination
peremptorily dismissed.
of whether or not he performs duties of diplomatic
nature.
"x x x x x x x x x
Scalzo asserted, particularly in his Exhibits "9" to "13,"
that he was an Assistant Attaché of the United States "There is of course the claim of private respondent that
diplomatic mission and was accredited as such by the the acts imputed to him were done in his official
Philippine Government. An attaché belongs to a capacity. Nothing supports this self-serving claim
category of officers in the diplomatic establishment other than the so-called Diplomatic Note. x x x. The
who may be in charge of its cultural, press, public respondent then should have sustained the trial
administrative or financial affairs. There could also be court's denial of the motion to dismiss. Verily, it should
a class of attaches belonging to certain ministries or have been the most proper and appropriate recourse. It
departments of the government, other than the foreign should not have been overwhelmed by the self-serving
ministry or department, who are detailed by their Diplomatic Note whose belated issuance is even
respective ministries or departments with the suspect and whose authenticity has not yet been
embassies such as the military, naval, air, commercial, proved. The undue haste with which respondent Court
agricultural, labor, science, and customs attaches, or yielded to the private respondent's claim is arbitrary."
the like. Attaches assist a chief of mission in his duties
and are administratively under him, but their main A significant document would appear to be Exhibit No.
function is to observe, analyze and interpret trends and 08, dated 08 November 1992, issued by the Office of
Protocol of the Department of Foreign Affairs and The precept that a State cannot be sued in the
signed by Emmanuel C. Fernandez, Assistant courts of a foreign state is a long-standing rule of
Secretary, certifying that "the records of the customary international law then closely identified
Department (would) show that Mr. Arthur W. Scalzo, with the personal immunity of a foreign sovereign from
Jr., during his term of office in the Philippines (from 14 suit20 and, with the emergence of democratic states,
October 1985 up to 10 August 1988) was listed as an made to attach not just to the person of the head of
Assistant Attaché of the United States diplomatic state, or his representative, but also distinctly to the
mission and was, therefore, accredited diplomatic state itself in its sovereign capacity.21 If the acts giving
status by the Government of the Philippines." No rise to a suit are those of a foreign government done by
certified true copy of such "records," the supposed bases its foreign agent, although not necessarily a diplomatic
for the belated issuance, was presented in evidence. personage, but acting in his official capacity, the
complaint could be barred by the immunity of the
Concededly, vesting a person with diplomatic foreign sovereign from suit without its consent. Suing
immunity is a prerogative of the executive branch of a representative of a state is believed to be, in effect,
the government. In World Health Organization vs. suing the state itself. The proscription is not accorded
Aquino,15 the Court has recognized that, in such for the benefit of an individual but for the State, in
matters, the hands of the courts are virtually tied. whose service he is, under the maxim - par in parem,
Amidst apprehensions of indiscriminate and non habet imperium - that all states are sovereign
incautious grant of immunity, designed to gain equals and cannot assert jurisdiction over one
exemption from the jurisdiction of courts, it should another.22 The implication, in broad terms, is that if the
behoove the Philippine government, specifically its judgment against an official would require the state
Department of Foreign Affairs, to be most circumspect, itself to perform an affirmative act to satisfy the award,
that should particularly be no less than compelling, in such as the appropriation of the amount needed to pay
its post litem motam issuances. It might be recalled the damages decreed against him, the suit must be
that the privilege is not an immunity from the regarded as being against the state itself, although it
observance of the law of the territorial sovereign or has not been formally impleaded.23
from ensuing legal liability; it is, rather, an immunity
from the exercise of territorial jurisdiction.16 The In United States of America vs. Guinto,24 involving
government of the United States itself, which Scalzo officers of the United States Air Force and special
claims to be acting for, has formulated its standards for officers of the Air Force Office of Special Investigators
recognition of a diplomatic agent. The State charged with the duty of preventing the distribution,
Department policy is to only concede diplomatic status possession and use of prohibited drugs, this Court has
to a person who possesses an acknowledged diplomatic ruled -
title and "performs duties of diplomatic
nature."17 Supplementary criteria for accreditation are "While the doctrine (of state immunity) appears to
the possession of a valid diplomatic passport or, from prohibit only suits against the state without its
States which do not issue such passports, a diplomatic consent, it is also applicable to complaints filed against
note formally representing the intention to assign the officials of the state for acts allegedly performed by
person to diplomatic duties, the holding of a non- them in the discharge of their duties. x x x. It cannot
immigrant visa, being over twenty-one years of age, for a moment be imagined that they were acting in
and performing diplomatic functions on an essentially their private or unofficial capacity when they
full-time basis.18 Diplomatic missions are requested to apprehended and later testified against the
provide the most accurate and descriptive job title to complainant. It follows that for discharging their
that which currently applies to the duties performed. duties as agents of the United States, they cannot be
The Office of the Protocol would then assign each directly impleaded for acts imputable to their principal,
individual to the appropriate functional category.19 which has not given its consent to be sued. x x x As they
have acted on behalf of the government, and within the
But while the diplomatic immunity of Scalzo might scope of their authority, it is that government, and not
thus remain contentious, it was sufficiently established the petitioners personally, [who were] responsible for
that, indeed, he worked for the United States Drug their acts."25
Enforcement Agency and was tasked to conduct
surveillance of suspected drug activities within the This immunity principle, however, has its limitations.
country on the dates pertinent to this case. If it should Thus, Shauf vs. Court of Appeals26 elaborates:
be ascertained that Arthur Scalzo was acting well
within his assigned functions when he committed the "It is a different matter where the public official is
acts alleged in the complaint, the present controversy made to account in his capacity as such for acts
could then be resolved under the related doctrine of contrary to law and injurious to the rights of the
State Immunity from Suit. 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 "buy-bust operation" conducted at the residence of
State authorizes only legal acts by its officers, Minucher at the behest of Scalzo, may be inadequate to
unauthorized acts of government officials or officers are support the "diplomatic status" of the latter but they
not acts of the State, and an action against the officials give enough indication that the Philippine government
or officers by one whose rights have been invaded or has given its imprimatur, if not consent, to the
violated by such acts, for the protection of his rights, is activities within Philippine territory of agent Scalzo of
not a suit against the State within the rule of immunity the United States Drug Enforcement Agency. The job
of the State from suit. In the same tenor, it has been description of Scalzo has tasked him to conduct
said that an action at law or suit in equity against a surveillance on suspected drug suppliers and, after
State officer or the director of a State department on having ascertained the target, to inform local law
the ground that, while claiming to act for the State, he enforcers who would then be expected to make the
violates or invades the personal and property rights of arrest. In conducting surveillance activities on
the plaintiff, under an unconstitutional act or under an Minucher, later acting as the poseur-buyer during the
assumption of authority which he does not have, is not buy-bust operation, and then becoming a principal
a suit against the State within the constitutional witness in the criminal case against Minucher, Scalzo
provision that the State may not be sued without its hardly can be said to have acted beyond the scope of his
consent. The rationale for this ruling is that the official function or duties.
doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice. All told, this Court is constrained to rule that
respondent Arthur Scalzo, an agent of the United
"x x x x x x x x x States Drug Enforcement Agency allowed by the
Philippine government to conduct activities in the
"(T)he doctrine of immunity from suit will not apply country to help contain the problem on the drug traffic,
and may not be invoked where the public official is is entitled to the defense of state immunity from suit.
being sued in his private and personal capacity as an
ordinary citizen. The cloak of protection afforded the WHEREFORE, on the foregoing premises, the
officers and agents of the government is removed the petition is DENIED. No costs.
moment they are sued in their individual capacity. This
situation usually arises where the public official acts SO ORDERED.
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

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