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FIRST DIVISION

G.R. No. 142396             February 11, 2003

KHOSROW MINUCHER, petitioner,

vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.

DECISION

VITUG, J.:

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.

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.

"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.

"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.

"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.

"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife and the wife of
a countryman named Abbas Torabian. The defendant told him that he [could] help plaintiff for a fee of $2,000.00 per
visa. Their conversation, however, was more concentrated on politics, carpets and caviar. Thereafter, the defendant
promised to see plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's Restaurant at Makati.
He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but for the reason that the defendant was
not yet there, he requested the restaurant people to x x x place the same in the refrigerator. Defendant, however,
came and plaintiff gave him the caviar for which he was paid. Then their conversation was again focused on politics
and business.

"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo, Pasig. The
defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After some haggling, they agreed at
$24,000.00. For the reason that defendant did not yet have the money, they agreed that defendant would come
back the next day. The following day, at 1:00 p.m., he came back with his $24,000.00, which he gave to the plaintiff,
and the latter, in turn, gave him the pair of carpets.
1awphi1.nét

"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.

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

"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various newspapers,
particularly in Australia, America, Central Asia and in the Philippines. He was identified in the papers as an
international drug trafficker. x x x

In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but also in
America and in Germany. His friends in said places informed him that they saw him on TV with said news.

"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed together, where they
were detained for three days without food and water."1

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

Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023, assailing the denial.
In a decision, dated 06 October 1989, the appellate court denied the petition and affirmed the ruling of the trial court.
Scalzo then elevated the incident in a petition for review on certiorari, docketed G.R. No. 91173, to this Court. The
petition, however, was denied for its failure to comply with SC Circular No. 1-88; in any event, the Court added,
Scalzo had failed to show that the appellate court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in default for his
failure to file a responsive pleading (answer) and (b) setting the case for the reception of evidence. On 12 March
1990, Scalzo filed a motion to set aside the order of default and to admit his answer to the complaint. Granting the
motion, the trial court set the case for pre-trial. In his answer, Scalzo denied the material allegations of the complaint
and raised the affirmative defenses (a) of 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.

Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a motion to dismiss
the complaint on the ground that, being a special agent of the United States Drug Enforcement Administration, he
was entitled to diplomatic immunity. He attached to his motion Diplomatic Note No. 414 of the United States
Embassy, dated 29 May 1990, addressed to the Department of Foreign Affairs of the Philippines and a Certification,
dated 11 June 1990, of Vice Consul Donna Woodward, certifying that the note is a true and faithful copy of its
original. In an order of 25 June 1990, the trial court denied the motion to dismiss.

On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No. 94257 and
entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the complaint in Civil Case No. 88-
45691 be ordered dismissed. The case was referred to the Court of Appeals, there docketed CA-G.R. SP No.
22505, per this 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.

The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court reached a
decision; it adjudged:

"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the plaintiff, who
successfully established his claim by sufficient evidence, against the defendant in the manner following:

"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral damages in the
sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in the sum of P200,000.00 plus
costs.

`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this judgment to
answer for the unpaid docket fees considering that the plaintiff in this case instituted this action as a pauper
litigant.’"2

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

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

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

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

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

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and

5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.

6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign Affairs, dated
27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC Manila, Branch 19 (the trial
court);

7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and

8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign Affairs,
through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of this Court.5

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 counsel6 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.

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

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'
affairs12 accredited to the ministers of foreign affairs.13 Comprising the "staff of the (diplomatic) mission" are the
diplomatic staff, the administrative staff and the technical and service staff. Only the heads of missions, as well as
members of the diplomatic staff, excluding the members of the administrative, technical and service staff of the
mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations provides for
immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding that the same be
restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested with blanket diplomatic
immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the heads of missions or
members of the diplomatic staff, thus impliedly withholding the same privileges from all others. It might bear
stressing that even consuls, who represent their respective states in concerns of commerce and navigation and
perform certain administrative and notarial duties, such as the issuance of passports and visas, authentication of
documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges
accorded diplomats, mainly for the reason that they are not charged with the duty of representing their states in
political matters. Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the
determination of whether or not he performs duties of diplomatic nature.

Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant 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.

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

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

"x x x x x x x x x

"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.

"x x x x x x x x x

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

A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the Office of
Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant Secretary, certifying
that "the records of the Department (would) show that Mr. Arthur W. Scalzo, Jr., during his term of office in the
Philippines (from 14 October 1985 up to 10 August 1988) was listed as an Assistant 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.
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

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

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law then closely identified with the personal immunity of a foreign sovereign from suit20 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

In United States of America vs. Guinto,24 involving officers of the United States Air Force and special officers of the
Air Force Office of Special Investigators charged with the duty of preventing the distribution, possession and use of
prohibited drugs, this Court has ruled -

"While the doctrine (of state immunity) appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of
their duties. x x x. It cannot for a moment be imagined that they were acting in their private or unofficial capacity
when they apprehended and later testified against the complainant. It follows that for discharging their duties as
agents of the United States, they cannot be directly impleaded for acts imputable to their principal, which has not
given its consent to be sued. x x x As they have acted on behalf of the government, and within the scope of their
authority, it is that government, and not the petitioners personally, [who were] responsible for their acts."25

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26 elaborates:

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

"x x x x x x x x x

"(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

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

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

WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur

Footnotes
1
Rollo, pp. 39-42.
2
Rollo. p. 51.
3
Linzag vs. CA, 291 SCRA 304.
4
Minucher vs. Court of Appeals, 214 SCRA 242.
5
For documentary Exhibits Nos. 1-8, see Rollo, pp. 143-155.
6
For Documentary Exhibits Nos. 9-13, See Rollo, pp. 156-168.
7
Eileen Denza, "Diplomatic Law, A Commentary on the Vienna Convention on Diplomatic Relations," 2nd
Edition, Claredon Press, Oxford, 1998, at 210.
8
Ibid.
9
Article 3 of the Vienna Convention enumerates the functions of the diplomatic mission as

(a) representing the sending State in the receiving State;

(b) protecting in the receiving State the interests of the sending State and of its nationals, within the
limits permitted by international law;

(c) negotiating with the Government of the receiving State;

(d) ascertaining by all lawful means conditions and developments in the receiving State, and reporting
thereon to the Government of the sending State;
 (e) promoting friendly relations between the sending State and the receiving State, and developing their
economic, cultural and scientific relations.
10
Ambassadors are diplomatic agents of the first class, who deal, as a rule with the Minister of Foreign Affairs
or the Secretary of State, as the case may be. (Melquiades J. Gamboa, "Elements of Diplomatic and
Consular Practice, A Glossary," Central Lawbook Publishing, Co., 1966, p. 19.)
11
Envoys are diplomatic agents of the second class. This is the title of the head of legation as distinguished
from an embassy, the head of which is called Ambassador Extraordinary and Plenipotentiary. Like the
Ambassador, the envoy is also accredited to the Head of State. (Gamboa, p. 190.)
12
Charges d' Affairs are either en titre or ad interim. Charges d' Affairs en titre are appointed on a permanent
basis and belong to the fourth class of diplomatic envoys, the other three being ambassadors, ministers
plenipotentiary and envoys extraordinary, and ministers resident. He is the head of the legation in his own
right and is not accredited to the head of State but to the foreign office. According to Radloric, charges d'
affairs are sometimes used to described a person who has been placed in custody of the archives and other
property of a mission in a country with which formal diplomatic relations are not maintained. Charges d' affairs
ad interim, in contrast are usually those second in command of the diplomatic mission – minister, counselor or
first secretary, who are only temporarily in charge of the mission during the absence of the head of the
mission. He is not accredited either to the Head of State or the Foreign Office. (Gamboa, Ibid., pp. 51-52.)
13
The classification of diplomatic representatives was considered significant before because direct
communication with the head of state depended on the rank of the diplomat and, moreover, only powerful
states were regarded as entitled to send envoys of the highest rank. At present however, diplomatic matters
are usually discussed not with the head of state but with the foreign secretary regardless of the diplomat's
rank. Moreover, it has become the practice now for even the smallest and the weakest states to send
diplomatic representatives of the highest rank, even to the major powers. (Cruz, International Law, 1985
Edition, p. 145.)
14
Gamboa, supra., pp. 32-33.
15
48 SCRA 242.
16
J.L. Brierly, "The Law of Nations," Oxford University Press, 6th Edition, 1963, p. 244.
17
Denza, supra., at 16.
18
Ibid.
19
Ibid., at 55.
20
Charles G. Fenwick, "International Law," Appleton-Century-Crofts, Inc., New York, 1948, p. 307-308.
21
The international law on sovereign immunity of states from suit in the courts of another state has evolved
from national court decisions with good deal of variance in perspectives. Even though national cases have
been the major source of pronouncements on sovereign immunity, it should be noted that these constitute
evidence of customary international law now widely recognized. In the latter half of the 20th century, a great
deal of consensus on what is covered by sovereign immunity appears to be emerging, i.e., that state
immunity covers only acts which deal with the government functions of a state, and excludes, any of its
commercial activities, or activities not related to "sovereign acts." The consensus involves a more defined
differentiation between public acts (juri imperii) and private acts (jure gestionis). (Gary L. Maris, "International
Law, An Introduction," University Press of America, 1984, p. 119; D.W. Grieg, "International Law," London
Butterworths, 1970, p. 221.)

The United States for example, does not claim immunity for its publicly owned or operated merchant
vessels. The Italian courts have rejected claims of immunity from the US Shipping Board, although a
state body, as it could not be identified with the American government on the ground that undertaking
maritime navigation and business as a commercial enterprise do not constitute a sovereign act. (D.W.
Grieg, "International Law," London Butterworths, 1970, p. 221.)
22
See Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812), cited in Charles G. Fenwick, "International
Law," New York, 3rd Edition (1948), p. 307.
23
United States of America, et al. vs. Guinto, etc., et al., G.R. No. 76607, 26 February 1990.
24
182 SCRA 644.
25
At pp. 653-659.
 26
191 SCRA 713
27
At pp. 727-728.

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