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Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 142396 February 11, 2003

KHOSRO M!NUCHER, petitioner,vs.HON. COURT OF "PPE"#S a$% "RTHUR SC"#&O, respondents.

D ! I S I O N

'!TUG, J.:

So"eti"e in Ma# $%&', an Infor"ation for violation of Section ( of Republic )ct No.

'(*+, otherise also -non as the Dan/erous Dru/s )ct of $%0*, as filed a/ainstpetitioner 1hosro Minucher and one )bbas Torabian ith the Re/ional Trial !ourt,2ranch $+$, of Pasi/ !i t#. The cri"inal char/e folloed a bu#3bust operationconducted b# the Philippine police narcotic a/ents in the house of Minucher, an Iraniannational, here a 4uantit# of heroin, a prohibited dru/, as said to have been sei5ed.The narcotic a/ents ere acco"panied b# private respondent )rthur Scal5o hoould, in due ti"e, beco"e one of the principal itnesses for the prosecution. On 6&7anuar# $%&&, Presidin/ 7ud/e utropio Mi/rino rendered a decision ac4uittin/ the toaccused.

On 68 )u/ust $%&&, Minucher filed !ivil !ase No. &&3(+'%$ before the Re/ional Trial!ourt 9RT!:, 2ranch $%, of Manila for da"a/es on account of hat he clai"ed to havebeen tru"ped3up char/es of dru/ traffic-in/ "ade b# )rthur Scal5o. The Manila RT!

detailed hat it had found to be the facts and circu"stances surroundin/ the case.

The testi"on# of the plaintiff disclosed that he is an Iranian national. ;e ca"e to thePhilippines to stud# in the <niversit# of the Philippines in $%0(. In $%0', under there/i"e of the Shah of Iran, he as appointed =abor )ttach> for the Iranian "bassiesin To-#o, 7apan and Manila, Philippines. ?hen the Shah of Iran as deposed b# )#atollah 1ho"eini, plaintiff beca"e a refu/ee of the <nited Nations and continued tosta# in the Philippines. ;e headed the Iranian National Resistance Move"ent in thePhilippines.

;e ca"e to -no the defendant on Ma# $8, $%&', hen the latter as brou/ht to hishouse and introduced to hi" b# a certain 7ose I@i/o, an infor"er of the Intelli/ence <nit

of the "ilitar#. 7ose I@i/o, on the other hand, as "et b# plaintiff at the office of )tt#.!risanto Saruca, a la#er for several Iranians ho" plaintiff assisted as head of theanti31ho"eini "ove"ent in the Philippines.

Durin/ his first "eetin/ ith the defendant on Ma# $8, $%&', upon the introduction of7ose I@i/o, the defendant eApressed his interest in bu#in/ caviar. )s a "atter of fact, hebou/ht to -ilos of caviar fro" plaintiff and paid P$6,666.66 for it. Sellin/ caviar, asidefro" that of Persian carpets, pistachio nuts and other Iranian products as hisbusiness after the 1ho"eini /overn"ent cut his pension of over B8,666.66 per "onth.Durin/ their introduction in that "eetin/, the defendant /ave the plaintiff his callin/card, hich shoed that he is or-in/ at the <S "bass# in the Philippines, as aspecial a/ent of the Dru/ nforce"ent )d"inistration, Depart"ent of 7ustice, of the<nited States, and /ave his address as <S "bass#, Manila. )t the bac- of the cardappears a telephone nu"ber in defendantCs on handritin/, the nu"ber of hich hecan also be contacted.

It as also durin/ this first "eetin/ that plaintiff eApressed his desire to obtain a <SVisa for his ife and the ife of a countr#"an na"ed )bbas Torabian. The defendanttold hi" that he couldE help plaintiff for a fee of B*,666.66 per visa. Their conversation,hoever, as "ore concentrated on politics, carpets and caviar. Thereafter, thedefendant pro"ised to see plaintiff a/ain.

On Ma# $%, $%&', the defendant called the plaintiff and invited the latter for dinner atMarios Restaurant at Ma-ati. ;e anted to bu# *66 /ra"s of caviar. Plaintiff brou/htthe "erchandi5e but for the reason that the defendant as not #et there, he re4uestedthe restaurant people to A A A place the sa"e in the refri/erator. Defendant, hoever,ca"e and plaintiff /ave hi" the caviar for hich he as paid. Then their conversationas a/ain focused on politics and business.

On Ma# *', $%&', defendant visited plaintiff a/ain at the latters residence for $& #earsat 1apitol#o, Pasi/. The defendant anted to bu# a pair of carpets hich plaintiff valued

at B*0,%66.66. )fter so"e ha//lin/, the# a/reed at B*(,666.66. For the reason thatdefendant did not #et have the "one#, the# a/reed that defendant ould co"e bac-the neAt da#. The folloin/ da#, at $G66 p."., he ca"e bac- ith his B*(,666.66, hichhe /ave to the plaintiff, and the latter, in turn, /ave hi" the pair of carpets.1awphi1.nét 

)t about 8G66 in the afternoon of Ma# *0, $%&', the defendant ca"e bac- a/ain toplaintiffs house and directl# proceeded to the latters bedroo", here the latter and hiscountr#"an, )bbas Torabian, ere pla#in/ chess. Plaintiff opened his safe in thebedroo" and obtained B*,666.66 fro" it, /ave it to the defendant for the latters fee inobtainin/ a visa for plaintiffs ife. The defendant told hi" that he ould be leavin/ thePhilippines ver# soon and re4uested hi" to co"e out of the house for a hile so thathe can introduce hi" to his cousin aitin/ in a cab. ?ithout "uch ado, and ithout

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puttin/ on his shirt as he as onl# in his paHa"a pants, he folloed the defendanthere he sa a par-ed cab opposite the street. To his co"plete surprise, an )"erican Hu"ped out of the cab ith a dran hi/h3poered /un. ;e as in the co"pan# of about86 to (6 Filipino soldiers ith ' )"ericans, all ar"ed. ;e as handcuffed and afterabout *6 "inutes in the street, he as brou/ht inside the house b# the defendant. ;eas "ade to sit don hile in handcuffs hile the defendant as inside his bedroo".

The defendant ca"e out of the bedroo" and out fro" defendants attach> case, hetoo- so"ethin/ and placed it on the table in front of the plaintiff. The# also too-plaintiffs ife ho as at that ti"e at the bouti4ue near his house and li-eise arrestedTorabian, ho as pla#in/ chess ith hi" in the bedroo" and both ere handcuffedto/ether. Plaintiff as not told h# he as bein/ handcuffed and h# the privac# of hishouse, especiall# his bedroo" as invaded b# defendant. ;e as not alloed to usethe telephone. In fact, his telephone as unplu//ed. ;e as-ed for an# arrant, but thedefendant told hi" to shut up.C ;e as nevertheless told that he ould be able to callfor his la#er ho can defend hi".

The plaintiff too- note of the fact that hen the defendant invited hi" to co"e out to"eet his cousin, his safe as opened here he -ept the B*(,666.66 the defendant paidfor the carpets and another B&,666.66 hich he also placed in the safe to/ether ith a

bracelet orth B$+,666.66 and a pair of earrin/s orth B$6,666.66. ;e also discovered"issin/ upon his release his & pieces hand3"ade Persian carpets, valued atB'+,666.66, a paintin/ he bou/ht for P86,666.66 to/ether ith his TV and beta"aAsets. ;e clai"ed that hen he as handcuffed, the defendant too- his -e#s fro" hisallet. There as, therefore, nothin/ left in his house.

That his arrest as a heroin traffic-er A A A had been ell publici5ed throu/hout theorld, in various nespapers, particularl# in )ustralia, )"erica, !entral )sia and in thePhilippines. ;e as identified in the papers as an international dru/ traffic-er. A A A

In fact, the arrest of defendant and Torabian as li-eise on television, not onl# in thePhilippines, but also in )"erica and in Jer"an#. ;is friends in said places infor"edhi" that the# sa hi" on TV ith said nes.

)fter the arrest "ade on plaintiff and Torabian, the# ere brou/ht to !a"p !ra"ehandcuffed to/ether, here the# ere detained for three da#s ithout food and ater.$

Durin/ the trial, the la fir" of =una, Sison and Manas, filed a special appearance forScal5o and "oved for eAtension of ti"e to file an anser pendin/ a supposed advicefro" the <nited States Depart"ent of State and Depart"ent of 7ustice on the defensesto be raised. The trial court /ranted the "otion. On *0 October $%&&, Scal5o filedanother special appearance to 4uash the su""ons on the /round that he, not bein/ aresident of the Philippines and the action bein/ one in persona", as be#ond theprocesses of the court. The "otion as denied b# the court, in its order of $8

Dece"ber $%&&, holdin/ that the filin/ b# Scal5o of a "otion for eAtension of ti"e to filean anser to the co"plaint as a voluntar# appearance e4uivalent to service ofsu""ons hich could li-eise be construed a aiver of the re4uire"ent of for"alnotice. Scal5o filed a "otion for reconsideration of the court order, contendin/ that a"otion for an eAtension of ti"e to file an anser as not a voluntar# appearancee4uivalent to service of su""ons since it did not see- an affir"ative relief. Scal5o

ar/ued that in cases involvin/ the <nited States /overn"ent, as ell as its a/enciesand officials, a "otion for eAtension as peculiarl# unavoidable due to the need 9$: forboth the Depart"ent of State and the Depart"ent of 7ustice to a/ree on the defensesto be raised and 9*: to refer the case to a Philippine la#er ho ould be eApected tofirst revie the case. The court a 4uo denied the "otion for reconsideration in its orderof $+ October $%&%.

Scal5o filed a petition for revie ith the !ourt of )ppeals, there doc-eted !)3J.R. No.$06*8, assailin/ the denial. In a decision, dated 6' October $%&%, the appellate courtdenied the petition and affir"ed the rulin/ of the trial court. Scal5o then elevated theincident in a petition for revie on certiorari, doc-eted J.R. No. %$$08, to this !ourt.The petition, hoever, as denied for its failure to co"pl# ith S! !ircular No. $3&&K inan# event, the !ourt added, Scal5o had failed to sho that the appellate court as in

error in its 4uestioned Hud/"ent.

Meanhile, at the court a 4uo, an order, dated 6% Februar# $%%6, as issued 9a:declarin/ Scal5o in default for his failure to file a responsive pleadin/ 9anser: and 9b:settin/ the case for the reception of evidence. On $* March $%%6, Scal5o filed a "otionto set aside the order of default and to ad"it his anser to the co"plaint. Jrantin/ the"otion, the trial court set the case for pre3trial. In his anser, Scal5o denied the"aterial alle/ations of the co"plaint and raised the affir"ative defenses 9a: ofMinucherCs failure to state a cause of action in his co"plaint and 9b: that Scal5o hadacted in the dischar/e of his official duties as bein/ "erel# an a/ent of the Dru/nforce"ent )d"inistration of the <nited States Depart"ent of 7ustice. Scal5ointerposed a counterclai" of P$66,666.66 to anser for attorne#s fees and eApensesof liti/ation.

Then, on $( 7une $%%6, after al"ost to #ears since the institution of the civil case,Scal5o filed a "otion to dis"iss the co"plaint on the /round that, bein/ a special a/entof the <nited States Dru/ nforce"ent )d"inistration, he as entitled to diplo"atici""unit#. ;e attached to his "otion Diplo"atic Note No. ($( of the <nited States"bass#, dated *% Ma# $%%6, addressed to the Depart"ent of Forei/n )ffairs of thePhilippines and a !ertification, dated $$ 7une $%%6, of Vice !onsul Donna ?oodard,certif#in/ that the note is a true and faithful cop# of its ori/inal. In an order of *+ 7une$%%6, the trial court denied the "otion to dis"iss.

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On *0 7ul# $%%6, Scal5o filed a petition for certiorari ith inHunction ith this !ourt,doc-eted J.R. No. %(*+0 and entitled )rthur ?. Scal5o, 7r., vs. ;on. ?enceslao Polo,et al., as-in/ that the co"plaint in !ivil !ase No. &&3(+'%$ be ordered dis"issed. Thecase as referred to the !ourt of )ppeals, there doc-eted !)3J.R. SP No. **+6+, perthis !ourtCs resolution of 60 )u/ust $%%6. On 8$ October $%%6, the !ourt of )ppealspro"ul/ated its decision sustainin/ the diplo"atic i""unit# of Scal5o and orderin/ the

dis"issal of the co"plaint a/ainst hi". Minucher filed a petition for revie ith this!ourt, doc-eted J.R. No. %00'+ and entitled 1hosro Minucher vs. the ;onorable!ourt of )ppeals, et. al. 9cited in *$( S!R) *(*:, appealin/ the Hud/"ent of the !ourtof )ppeals. In a decision, dated *( Septe"ber $%%*, penned b# 7ustice 9no !hief7ustice: ;ilario Davide, 7r., this !ourt reversed the decision of the appellate court andre"anded the case to the loer court for trial. The re"and as ordered on the theses9a: that the !ourt of )ppeals erred in /rantin/ the "otion to dis"iss of Scal5o for lac-of Hurisdiction over his person ithout even considerin/ the issue of the authenticit# ofDiplo"atic Note No. ($( and 9b: that the co"plaint contained sufficient alle/ations tothe effect that Scal5o co""itted the i"puted acts in his personal capacit# and outsidethe scope of his official duties and, absent an# evidence to the contrar#, the issue onScal5oCs diplo"atic i""unit# could not be ta-en up.

The Manila RT! thus continued ith its hearin/s on the case. On $0 Nove"ber $%%+,the trial court reached a decisionK it adHud/edG

?;RFOR, and in vie of all the fore/oin/ considerations, Hud/"ent is hereb#rendered for the plaintiff, ho successfull# established his clai" b# sufficient evidence,a/ainst the defendant in the "anner folloin/G

)dHud/in/ defendant liable to plaintiff in actual and co"pensator# da"a/es ofP+*6,666.66K "oral da"a/es in the su" of P$6 "illionK eAe"plar# da"a/es in thesu" of P$66,666.66K attorne#s fees in the su" of P*66,666.66 plus costs.

The !ler- of the Re/ional Trial !ourt, Manila, is ordered to ta-e note of the lien of the

!ourt on this Hud/"ent to anser for the unpaid doc-et fees considerin/ that theplaintiff in this case instituted this action as a pauper liti/ant.C *

?hile the trial court /ave credence to the clai" of Scal5o and the evidence presentedb# hi" that he as a diplo"atic a/ent entitled to i""unit# as such, it ruled that he,nevertheless, should be held accountable for the acts co"plained of co""itted outsidehis official duties. On appeal, the !ourt of )ppeals reversed the decision of the trialcourt and sustained the defense of Scal5o that he as sufficientl# clothed ithdiplo"atic i""unit# durin/ his ter" of dut# and thereb# i""une fro" the cri"inal andcivil Hurisdiction of the Receivin/ State pursuant to the ter"s of the Vienna!onvention.

;ence, this recourse b# Minucher. The instant petition for revie raises a to3foldissueG 9$: hether or not the doctrine of conclusiveness of Hud/"ent, folloin/ thedecision rendered b# this !ourt in J.R. No. %00'+, should have precluded the !ourt of )ppeals fro" resolvin/ the appeal to it in an entirel# different "anner, and 9*: hetheror not )rthur Scal5o is indeed entitled to diplo"atic i""unit#.

The doctrine of conclusiveness of Hud/"ent, or its -indred rule of res Hudicata, ouldre4uire $: the finalit# of the prior Hud/"ent, *: a valid Hurisdiction over the subHect "atter and the parties on the part of the court that renders it, 8: a Hud/"ent on the "erits, and(: an identit# of the parties, subHect "atter and causes of action.8 ven hile one of theissues sub"itted in J.R. No. %00'+ 3 hether or not public respondent !ourt of )ppeals erred in rulin/ that private respondent Scal5o is a diplo"at i""une fro" civilsuit confor"abl# ith the Vienna !onvention on Diplo"atic Relations 3 is also a pivotal4uestion raised in the instant petition, the rulin/ in J.R. No. %00'+, hoever, has notresolved that point ith finalit#. Indeed, the !ourt there has "ade this observation 3

It "a# be "entioned in this re/ard that private respondent hi"self, in his Pre3trial 2rieffiled on $8 7une $%%6, une4uivocall# states that he ould present docu"entar#evidence consistin/ of D) records on his investi/ation and surveillance of plaintiff and

on his position and duties as D) special a/ent in Manila. ;avin/ thus reserved hisri/ht to present evidence in support of his position, hich is the basis for the alle/eddiplo"atic i""unit#, the barren self3servin/ clai" in the belated "otion to dis"isscannot be relied upon for a reasonable, intelli/ent and fair resolution of the issue ofdiplo"atic i""unit#.(

Scal5o contends that the Vienna !onvention on Diplo"atic Relations, to hich thePhilippines is a si/nator#, /rants hi" absolute i""unit# f ro" suit, describin/ hisfunctions as an a/ent of the <nited States Dru/s nforce"ent )/enc# as conductin/surveillance operations on suspected dru/ dealers in the Philippines believed to be thesource of prohibited dru/s bein/ shipped to the <.S., 9and: havin/ ascertained thetar/et, 9he then: ould infor" the Philippine narcotic a/ents 9to: "a-e the actualarrest. Scal5o has sub"itted to the trial court a nu"ber of docu"ents 3

$. Ah. * 3 Diplo"atic Note No. ($( dated *% Ma# $%%6K

*. Ah. $ 3 !ertification of Vice !onsul Donna 1. ?oodard dated $$ 7une$%%6K

8. Ah. + 3 Diplo"atic Note No. 0+0 dated *+ October $%%$K

(. Ah. ' 3 Diplo"atic Note No. 0%$ dated $0 Nove"ber $%%*K and

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+. Ah. 0 3 Diplo"atic Note No. &88 dated *$ October $%&&.

'. Ah. 8 3 $st Indorse"ent of the ;on. 7or/e R. !o4uia, =e/al )dviser,Depart"ent of Forei/n )ffairs, dated *0 7une $%%6 forardin/ "bass# NoteNo. ($( to the !ler- of !ourt of RT! Manila, 2ranch $% 9the trial court:K

0. Ah. ( 3 Diplo"atic Note No. ($(, appended to the $st Indorse"ent 9Ah.8:K and

&. Ah. & 3 =etter dated $& Nove"ber $%%* fro" the Office of the Protocol,Depart"ent of Forei/n )ffairs, throu/h )sst. Sec. ""anuel Fernande5,addressed to the !hief 7ustice of this !ourt.+

The docu"ents, accordin/ to Scal5o, ould sho thatG 9$: the <nited States "bass#accordin/l# advised the Aecutive Depart"ent of the Philippine Jovern"ent thatScal5o as a "e"ber of the diplo"atic staff of the <nited States diplo"atic "issionfro" his arrival in the Philippines on $( October $%&+ until his departure on $6 )u/ust$%&&K 9*: that the <nited States Jovern"ent as fir" fro" the ver# be/innin/ in

assertin/ the diplo"atic i""unit# of Scal5o ith respect to the case pursuant to theprovisions of the Vienna !onvention on Diplo"atic RelationsK and 98: that the <nitedStates "bass# repeatedl# ur/ed the Depart"ent of Forei/n )ffairs to ta-e appropriateaction to infor" the trial court of Scal5oCs diplo"atic i""unit#. The other docu"entar#eAhibits ere presented to indicate thatG 9$: the Philippine /overn"ent itself, throu/h itsAecutive Depart"ent, reco/ni5in/ and respectin/ the diplo"atic status of Scal5o,for"all# advised the 7udicial Depart"ent of his diplo"atic status and his entitle"entto all diplo"atic privile/es and i""unities under the Vienna !onventionK and 9*: theDepart"ent of Forei/n )ffairs itself authenticated Diplo"atic Note No. ($(. Scal5oadditionall# presented Ahibits % to $8 consistin/ of his reports of investi/ation onthe surveillance and subse4uent arrest of Minucher, the certification of the Dru/nforce"ent )d"inistration of the <nited States Depart"ent of 7ustice that Scal5o asa special a/ent assi/ned to the Philippines at all ti"es relevant to the co"plaint, and

the special poer of attorne# eAecuted b# hi" in favor of his previous counsel

'

 to sho9a: that the <nited States "bass#, affir"ed b# its Vice !onsul, ac-noled/ed Scal5oto be a "e"ber of the diplo"atic staff of the <nited States diplo"atic "ission fro" hisarrival in the Philippines on $( October $%&+ until his departure on $6 )u/ust $%&&, 9b:that, on Ma# $%&', ith the cooperation of the Philippine la enforce"ent officials andin the eAercise of his functions as "e"ber of the "ission, he investi/ated Minucher foralle/ed traffic-in/ in a prohibited dru/, and 9c: that the Philippine Depart"ent ofForei/n )ffairs itself reco/ni5ed that Scal5o durin/ his tour of dut# in the Philippines 9$(October $%&+ up to $6 )u/ust $%&&: as listed as bein/ an )ssistant )ttach> of the<nited States diplo"atic "ission and accredited ith diplo"atic status b# theJovern"ent of the Philippines. In his Ahibit $*, Scal5o described the functions of theoverseas office of the <nited States Dru/s nforce"ent )/enc#, i.e., 9$: to provide

cri"inal investi/ative eApertise and assistance to forei/n la enforce"ent a/encies onnarcotic and dru/ control pro/ra"s upon the re4uest of the host countr#, *: to establishand "aintain liaison ith the host countr# and counterpart forei/n la enforce"entofficials, and 8: to conduct co"pleA cri"inal investi/ations involvin/ internationalcri"inal conspiracies hich affect the interests of the <nited States.

The Vienna !onvention on Diplo"atic Relations as a codification of centuries3oldcusto"ar# la and, b# the ti"e of its ratification on $& )pril $%'$, its rules of la hadlon/ beco"e stable. )"on/ the cit# states of ancient Jreece, a"on/ the peoples ofthe Mediterranean before the establish"ent of the Ro"an "pire, and a"on/ thestates of India, the person of the herald in ti"e of ar and the person of the diplo"aticenvo# in ti"e of peace ere universall# held sacrosanct.0 2# the end of the $'thcentur#, hen the earliest treatises on diplo"atic la ere published, the inviolabilit# of a"bassadors as fir"l# established as a rule of custo"ar# internationalla.&Traditionall#, the eAercise of diplo"atic intercourse a"on/ states as underta-enb# the head of state hi"self, as bein/ the pree"inent e"bodi"ent of the state herepresented, and the forei/n secretar#, the official usuall# entrusted ith the eAternalaffairs of the state. ?here a state ould ish to have a "ore pro"inent diplo"aticpresence in the receivin/ state, it ould then send to the latter a diplo"atic "ission.

!onfor"abl# ith the Vienna !onvention, the functions of the diplo"atic "issioninvolve, b# and lar/e, the representation of the interests of the sendin/ state andpro"otin/ friendl# relations ith the receivin/ state.%

The !onvention lists the classes of heads of diplo"atic "issions to include 9a:a"bassadors or nuncios accredited to the heads of state,$6 9b: envo#s,$$ "inistersor internuncios accredited to the heads of statesK and 9c: char/es d affairs$* accreditedto the "inisters of forei/n affairs.$8 !o"prisin/ the staff of the 9diplo"atic: "ission arethe diplo"atic staff, the ad"inistrative staff and the technical and service staff. Onl# theheads of "issions, as ell as "e"bers of the diplo"atic staff, eAcludin/ the "e"bersof the ad"inistrative, technical and service staff of the "ission, are accorded diplo"aticran-. ven hile the Vienna !onvention on Diplo"atic Relations provides for i""unit#to the "e"bers of diplo"atic "issions, it does so, nevertheless, ith an understandin/

that the sa"e be restrictivel# applied. Onl# diplo"atic a/ents, under the ter"s of the!onvention, are vested ith blan-et diplo"atic i""unit# fro" civil and cri"inal suits.The !onvention defines diplo"atic a/ents as the heads of "issions or "e"bers ofthe diplo"atic staff, thus i"pliedl# ithholdin/ the sa"e privile/es fro" all others. It"i/ht bear stressin/ that even consuls, ho represent their respective states inconcerns of co""erce and navi/ation and perfor" certain ad"inistrative and notarialduties, such as the issuance of passports and visas, authentication of docu"ents, andad"inistration of oaths, do not ordinaril# enHo# the traditional diplo"atic i""unities andprivile/es accorded diplo"ats, "ainl# for the reason that the# are not char/ed ith thedut# of representin/ their states in political "atters. Indeed, the "ain #ardstic- inascertainin/ hether a person is a diplo"at entitled to i""unit# is the deter"ination ofhether or not he perfor"s duties of diplo"atic nature.

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Scal5o asserted, particularl# in his Ahibits % to $8, that he as an )ssistant )ttach>of the <nited States diplo"atic "ission and as accredited as such b# the PhilippineJovern"ent. )n attach> belon/s to a cate/or# of officers in the diplo"aticestablish"ent ho "a# be in char/e of its cultural, press, ad"inistrative or financialaffairs. There could also be a class of attaches belon/in/ to certain "inistries ordepart"ents of the /overn"ent, other than the forei/n "inistr# or depart"ent, ho are

detailed b# their respective "inistries or depart"ents ith the e"bassies such as the"ilitar#, naval, air, co""ercial, a/ricultural, labor, science, and custo"s attaches, orthe li-e. )ttaches assist a chief of "ission in his duties and are ad"inistrativel# underhi", but their "ain function is to observe, anal#5e and interpret trends anddevelop"ents in their respective fields in the host countr# and sub"it reports to theiron "inistries or depart"ents in the ho"e /overn"ent.$( These officials are not/enerall# re/arded as "e"bers of the diplo"atic "ission, nor are the# nor"all#desi/nated as havin/ diplo"atic ran-.

In an atte"pt to prove his diplo"atic status, Scal5o presented Diplo"atic Notes Nos.($(, 0+0 and 0%$, all issued post lite" "ota", respectivel#, on *% Ma# $%%6, *+October $%%$ and $0 Nove"ber $%%*. The presentation did nothin/ "uch to alleviatethe !ourts initial reservations in J.R. No. %00'+, vi5G

?hile the trial court denied the "otion to dis"iss, the public respondent /ravel#abused its discretion in dis"issin/ !ivil !ase No. &&3(+'%$ on the basis of anerroneous assu"ption that si"pl# because of the diplo"atic note, the privaterespondent is clothed ith diplo"atic i""unit#, thereb# divestin/ the trial court of Hurisdiction over his person.

A A A A A A A A A

)nd no, to the core issue 3 the alle/ed diplo"atic i""unit# of the private respondent.Settin/ aside for the "o"ent the issue of authenticit# raised b# the petitioner and thedoubts that surround such clai", in vie of the fact that it too- private respondent one

9$: #ear, ei/ht 9&: "onths and seventeen 9$0: da#s fro" the ti"e his counsel filed on$* Septe"ber $%&& a Special )ppearance and Motion as-in/ for a first eAtension ofti"e to file the )nser because the Depart"ents of State and 7ustice of the <nitedStates of )"erica ere stud#in/ the case for the purpose of deter"inin/ his defenses,before he could secure the Diplo"atic Note fro" the <S "bass# in Manila, and even/rantin/ for the sa-e of ar/u"ent that such note is authentic, the co"plaint forda"a/es filed b# petitioner cannot be pere"ptoril# dis"issed.

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There is of course the clai" of private respondent that the acts i"puted to hi" eredone in his official capacit#. Nothin/ supports this self3servin/ clai" other than the so3

called Diplo"atic Note. A A A. The public respondent then should have sustained thetrial courts denial of the "otion to dis"iss. Veril#, it should have been the "ost properand appropriate recourse. It should not have been overhel"ed b# the self3servin/Diplo"atic Note hose belated issuance is even suspect and hose authenticit# hasnot #et been proved. The undue haste ith hich respondent !ourt #ielded to theprivate respondents clai" is arbitrar#.

 ) si/nificant docu"ent ould appear to be Ahibit No. 6&, dated 6& Nove"ber $%%*,issued b# the Office of Protocol of the Depart"ent of Forei/n )ffairs and si/ned b#""anuel !. Fernande5, )ssistant Secretar#, certif#in/ that the records of theDepart"ent 9ould: sho that Mr. )rthur ?. Scal5o, 7r., durin/ his ter" of office in thePhilippines 9fro" $( October $%&+ up to $6 )u/ust $%&&: as listed as an )ssistant )ttach> of the <nited States diplo"atic "ission and as, therefore, accrediteddiplo"atic status b# the Jovern"ent of the Philippines. No certified true cop# of suchrecords, the supposed bases for the belated issuance, as presented in evidence.

!oncededl#, vestin/ a person ith diplo"atic i""unit# is a prero/ative of the eAecutivebranch of the /overn"ent. In ?orld ;ealth Or/ani5ation vs. )4uino,$+ the !ourt hasreco/ni5ed that, in such "atters, the hands of the courts are virtuall# tied. )"idst

apprehensions of indiscri"inate and incautious /rant of i""unit#, desi/ned to /aineAe"ption fro" the Hurisdiction of courts, it should behoove the Philippine /overn"ent,specificall# its Depart"ent of Forei/n )ffairs, to be "ost circu"spect, that shouldparticularl# be no less than co"pellin/, in its post lite" "ota" issuances. It "i/ht berecalled that the privile/e is not an i""unit# fro" the observance of the la of theterritorial soverei/n or fro" ensuin/ le/al liabilit#K it is, rather, an i""unit# fro" theeAercise of territorial Hurisdiction.$' The /overn"ent of the <nited States itself, hichScal5o clai"s to be actin/ for, has for"ulated its standards for reco/nition of adiplo"atic a/ent. The State Depart"ent polic# is to onl# concede diplo"atic status to aperson ho possesses an ac-noled/ed diplo"atic title and perfor"s duties ofdiplo"atic nature.$0 Supple"entar# criteria for accreditation are the possession of avalid diplo"atic passport or, fro" States hich do not issue such passports, adiplo"atic note for"all# representin/ the intention to assi/n the person to diplo"atic

duties, the holdin/ of a non3i""i/rant visa, bein/ over tent#3one #ears of a/e, andperfor"in/ diplo"atic functions on an essentiall# full3ti"e basis.$& Diplo"atic "issionsare re4uested to provide the "ost accurate and descriptive Hob title to that hichcurrentl# applies to the duties perfor"ed. The Office of the Protocol ould then assi/neach individual to the appropriate functional cate/or#.$%

2ut hile the diplo"atic i""unit# of Scal5o "i/ht thus re"ain contentious, it assufficientl# established that, indeed, he or-ed for the <nited States Dru/ nforce"ent )/enc# and as tas-ed to conduct surveillance of suspected dru/ activities ithin thecountr# on the dates pertinent to this case. If it should be ascertained that )rthur Scal5oas actin/ ell ithin his assi/ned functions hen he co""itted the acts alle/ed in the

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co"plaint, the present controvers# could then be resolved under the related doctrine ofState I""unit# fro" Suit.

The (re)e(* *+a* a S*a*e )a$$o* be ue% -$ *+e )our* o a ore-/$ *a*eis a lon/3standin/ rule of custo"ar# international la then closel# identified ith the personali""unit# of a forei/n soverei/n fro" suit*6 and, ith the e"er/ence of de"ocraticstates, "ade to attach not Hust to the person of the head of state, or his representative,but also distinctl# to the state itself in its soverei/n capacit#.*$ If the acts /ivin/ rise to asuit are those of a forei/n /overn"ent done b# its forei/n a/ent, althou/h notnecessaril# a diplo"atic persona/e, but actin/ in his official capacit#, the co"plaintcould be barred b# the i""unit# of the forei/n soverei/n fro" suit ithout its consent.Suin/ a representative of a state is believed to be, in effect, suin/ the state i tself. Theproscription is not accorded for the benefit of an individual but for the State, in hoseservice he is, under the "aAi" 3 par in pare", non habet i"periu" 3 that all states aresoverei/n e4uals and cannot assert Hurisdiction over one another .** The i"plication, inbroad ter"s, is that if the Hud/"ent a/ainst an official ould re4uire the state i tself toperfor" an affir"ative act to satisf# the aard, such as the appropriation of the a"ountneeded to pa# the da"a/es decreed a/ainst hi", the suit "ust be re/arded as bein/a/ainst the state itself, althou/h it has not been for"all# i"pleaded.*8

In <nited States of )"erica vs. Juinto,*( involvin/ officers of the <nited States )irForce and special officers of the )ir Force Office of Special Investi/ators char/ed iththe dut# of preventin/ the distribution, possession and use of prohibited dru/s, this!ourt has ruled 3

?hile the doctrine 9of state i""unit#: appears to prohibit onl# suits a/ainst the stateithout its consent, it is also applicable to co"plaints filed a/ainst officials of the statefor acts alle/edl# perfor"ed b# the" in the dischar/e of their duties. A A A. It cannot fora "o"ent be i"a/ined that the# ere actin/ in their private or unofficial capacit# henthe# apprehended and later testified a/ainst the co"plainant. It follos that fordischar/in/ their duties as a/ents of the <nited States, the# cannot be directl#i"pleaded for acts i"putable to their principal, hich has not /iven its consent to be

sued. A A A )s the# have acted on behalf of the /overn"ent, and ithin the scope oftheir authorit#, it is that /overn"ent, and not the petitioners personall#, ho ereEresponsible for their acts.*+

This i""unit# principle, hoever, has its li"itations. Thus, Shauf vs. !ourt of )ppeals*' elaboratesG

It is a different "atter here the public official is "ade to account in his capacit# assuch for acts contrar# to la and inHurious to the ri/hts of the plaintiff. )s as clearl# setforth b# 7ustice Laldivar in Director of the 2ureau of Teleco""unications, et al., vs. )li/aen, et al. 988 S!R) 8'&:G Inas"uch as the State authori5es onl# le/al acts b# its

officers, unauthori5ed acts of /overn"ent officials or officers are not acts of the State,and an action a/ainst the officials or officers b# one hose ri/hts have been invaded or violated b# such acts, for the protection of his ri/hts, is not a suit a/ainst the Stateithin the rule of i""unit# of the State f ro" suit. In the sa"e tenor, it has been saidthat an action at la or suit in e4uit# a/ainst a State officer or the director of a Statedepart"ent on the /round that, hile clai"in/ to act for the State, he violates or

invades the personal and propert# ri/hts of the plaintiff, under an unconstitutional act or under an assu"ption of authorit# hich he does not have, is not a suit a/ainst theState ithin the constitutional provision that the State "a# not be sued ithout itsconsent. The rationale for this rulin/ is that the doctrine of state i""unit# cannot beused as an instru"ent for perpetratin/ an inHustice.

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9T:he doctrine of i""unit# fro" suit ill not appl# and "a# not be invo-ed here thepublic official is bein/ sued in his private and personal capacit# as an ordinar# citi5en.The cloa- of protection afforded the officers and a/ents of the /overn"ent is re"ovedthe "o"ent the# are sued in their individual capacit#. This situation usuall# ariseshere the public official acts ithout authorit# or in eAcess of the poers vested in hi".

It is a ell3settled principle of la that a public official "a# be liable in his personalprivate capacit# for hatever da"a/e he "a# have caused b# his act done ith "aliceand in bad faith or be#ond the scope of his authorit# and Hurisdiction.*0

 ) forei/n a/ent, operatin/ ithin a territor#, can be cloa-ed ith i""unit# fro" suit butonl# as lon/ as it can be established that he is actin/ ithin the directives of thesendin/ state. The consent of the host state is an indispensable re4uire"ent of basiccourtes# beteen the to soverei/ns. Juinto and Shauf both involve officers andpersonnel of the <nited States, stationed ithin Philippine territor#, under the RP3<SMilitar# 2ases )/ree"ent. ?hile evidence is antin/ to sho an# si"ilar a/ree"entbeteen the /overn"ents of the Philippines and of the <nited States 9for the latter tosend its a/ents and to conduct surveillance and related activities of suspected dru/dealers in the Philippines:, the consent or imprimatur of the Philippine /overn"ent to

the activities of the <nited States Dru/ nforce"ent )/enc#, hoever, can be /leanedfro" the facts heretofore elsehere "entioned. The official eAchan/es ofco""unication beteen a/encies of the /overn"ent of the to countries, certificationsfro" officials of both the Philippine Depart"ent of Forei/n )ffairs and the <nited States"bass#, as ell as the participation of "e"bers of the Philippine Narcotics !o""andin the bu#3bust operation conducted at the residence of Minucher at the behest ofScal5o, "a# be inade4uate to support the diplo"atic status of the latter but the# /iveenou/h indication that the Philippine /overn"ent has /iven its imprimatur , if notconsent, to the activities ithin Philippine territor# of a/ent Scal5o of the <nited StatesDru/ nforce"ent )/enc#. The Hob description of Scal5o has tas-ed hi" to conductsurveillance on suspected dru/ suppliers and, after havin/ ascertained the tar/et, toinfor" local la enforcers ho ould then be eApected to "a-e the arrest. In

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conductin/ surveillance activities on Minucher, later actin/ as the poseur3bu#er durin/the bu#3bust operation, and then beco"in/ a principal itness in the cri"inal casea/ainst Minucher, Scal5o hardl# can be said to have acted be#ond the scope of hisofficial function or duties.

 )ll told, this !ourt is constrained to rule that respondent )rthur Scal5o, an a/ent of the<nited States Dru/ nforce"ent )/enc# alloed b# the Philippine /overn"ent toconduct activities in the countr# to help contain the proble" on the dru/ traffic, isentitled to the defense of state i""unit# fro" suit.

HEREFORE, on the fore/oin/ pre"ises, the petition is DNID. No costs.

SO ORDRD.

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