Case 1

Law of Preferential Application

Persons exempts from operation of our criminal laws by virtue of the principles of public
international law (Vienna Convention on Diplomatic Relations)
Sovereign Immunity from Suit
G.R. No. 142396 February 11, 2003
KHOSROW MINUCHER, petitioner, vs. HON. COURT OF APPEALS and ARTHUR
SCALZO, respondents.
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,
aprohibited 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 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.
Manila RTC
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. 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. 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. 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.
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.
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.
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.
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."
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.
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.
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.
The 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.
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