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INDEPENDENCE and EQUALITY of STATES


Republic of Indonesia vs. James Vizon G.R. No. 54705, June
26, 2003
FACTS:
Petitioner, Republic of Indonesia entered into a Maintenance
Agreement in August 1995 with respondent James Vinzon, sole
proprietor of Vinzon Trade and Services. The Maintenance
Agreement stated that respondent shall, for a consideration,
maintain specified equipment at the Embassy Main Building,
Embassy Annex Building and the Wisma Duta, the official residence
of petitioner Ambassador Soeratmin. The equipments covered by
the Maintenance Agreement are air conditioning units, generator
sets, electrical facilities, water heaters, and water motor pumps. It
is likewise stated therein that the agreement shall be effective for a
period of four years and will renew itself automatically unless
cancelled by either party by giving thirty days prior written notice
from the date of expiry.
Petitioners claim that sometime prior to the date of expiration of
the said agreement, or before August 1999, they informed
respondent that the renewal of the agreement shall be at the
discretion of the incoming Chief of Administration, Minister
Counsellor Azhari Kasim, who was expected to arrive in February
2000. When Minister Counsellor Kasim assumed the position of
Chief of Administration in March 2000, he allegedly found
respondents work and services unsatisfactory and not in
compliance with the standards set in the Maintenance Agreement.
Hence, the Indonesian Embassy terminated the agreement in a
letter dated August 31, 2000. Petitioners claim, moreover, that they
had earlier verbally informed respondent of their decision to
terminate the agreement. On the other hand, respondent claims
that the aforesaid termination was arbitrary and unlawful.
Respondent filed a complaint against petitioners (RTC) of Makati,
petitioners filed a Motion to Dismiss, alleging that the Republic of
Indonesia, as a foreign sovereign State, has sovereign immunity
from suit and cannot be sued as a party-defendant in the
Philippines. The said motion further alleged that Ambassador
Soeratmin and Minister Counsellor Kasim are diplomatic agents as
defined under the Vienna Convention on Diplomatic Relations and

therefore enjoy diplomatic immunity. In turn, respondent filed on


March 20, 2001, an Opposition to the said motion alleging that the
Republic of Indonesia has expressly waived its immunity from suit.
He based this claim upon the following provision in the
Maintenance Agreement.
ISSUE:
Whether or not the Republic of Indonesia can be sued.
RULING:
The Supreme Court on the matter ruled that the republic of
Indonesia cannot be deemed to have waived its immunity to suit.
The existence alone of a paragraph in a contract stating that any
legal action arising out of the agreement shall be settled according
to the laws of the Philippines and by a specified court of the
Philippines is not necessarily a waiver of sovereign immunity from
suit. The aforesaid provision contains language not necessarily
inconsistent with sovereign immunity. On the other hand, such
provision may also be meant to apply where the sovereign party
elects to sue in the local courts, or otherwise waives its immunity
by any subsequent act. The applicability of Philippine laws must be
deemed to include Philippine laws in its totality, including the
principle recognizing sovereign immunity. Hence, the proper court
may have no proper action, by way of settling the case, except to
dismiss it.
The Court stated that the upkeep of its furnishings and equipment
is still part sovereign function of the State. A sovereign State does
not merely establish a diplomatic mission and leave it at that; the
establishment of a diplomatic mission encompasses its
maintenance and upkeep. Hence, the State may enter into
contracts with private entities to maintain the premises, furnishings
and equipment of the embassy and the living quarters of its agents
and officials. It is therefore clear that petitioner Republic of
Indonesia was acting in pursuit of a sovereign activity when it
entered into a contract with respondent for the upkeep or
maintenance of the air conditioning units, generator sets, electrical
facilities, water heaters, and water motor pumps of the Indonesian
Embassy and the official residence of the Indonesian ambassador.

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The Supreme Court grants the petition and reversed the decision of
the Court of Appeals.

Republic of Indonesia, as a foreign state, has sovereign immunity


from suit and cannot be sued as party-defendant in the Philippines.

A public official charged with some administrative or technical


office who can be held to the proper responsibility in the manner
laid down by the law of civil responsibility. Consequently, the trial
court in not so deciding and in sentencing the said entity to the
payment of damages, caused by an official of the second class
referred to, has by erroneous interpretation infringed the provisions
of Articles 1902 and 1903 of the Civil Code.

ISSUE: W/N the CA erred in sustaining the trial court's decision that
petitioners have waived their immunity from suit by using as its
basis the provision in the Maintenance Agreement.

It is, therefore, evidence that the State (GPI) is only liable,


according to the above quoted decisions of the Supreme Court of
Spain, for the acts of its agents, officers and employees when they
act as special agents within the meaning of paragraph 5 of Article
1903, supra, and that the chauffeur of the ambulance of the
General Hospital was not such an agent.
For the foregoing reasons, the judgment appealed from must be
reversed, without costs in this instance. Whether the Government
intends to make itself legally liable for the amount of damages
above set forth, which the plaintiff has sustained by reason of the
negligent acts of one of its employees, be legislative enactment
and by appropriating sufficient funds therefore, we are not called
upon to determine. This matter rests solely with the Legislature and
not with the courts.

FACTS: Petitioner Vinzon entered into a Maintenance Agreement


with respondent. The maintenance agreement includes the
following specific equipments: air conditioning units, generator
sets, electrical facilities, water heaters and water motor pumps.
The agreement shall be effective for 4 years.
The new Minister Counsellor allegedly found respondent's work and
services unsatisfactory and not in compliance with the standards
set in the Agreement. The respondent terminated the agreement
with the respondent. The latter claim that it was unlawful and
arbitrary. Respondent filed a Motion to Dismiss alleging that the

HELD: The mere entering into a contract by a foreign state with a


private party cannot be construed as the ultimate test of whether
or not it is an act juri imperii or juri gestionis. Such act is only the
start of the inquiry. There is no dispute that the establishment of a
diplomatic mission is an act juri imperii. The state may enter into
contracts with private entities to maintain the premises, furnishings
and equipment of the embassy. The Republic of Indonesia is acting
in pursuit of a sovereign activity when it entered into a contract
with the respondent. The maintenance agreement was entered into
by the Republic of Indonesia in the discharge of its governmental
functions. It cannot be deemed to have waived its immunity from
suit.
THE
REPUBLIC
OF
INDONESIA,
HIS
EXCELLENCY
AMBASSADOR SOERATMIN, and MINISTER COUNSELLOR
AZHARI KASIM,petitioners, vs. JAMES VINZON
FACTS:
Petitioner, Republic of Indonesia, represented by its Counsellor, Siti
Partinah, entered into a Maintenance Agreement in August 1995
with respondent James Vinzon, sole proprietor of Vinzon Trade and
Services. The equipment covered by the Maintenance Agreement
are air conditioning units and was to take effect in a period of four
years. When Indonesian Minister Counsellor Kasim assumed the
position of Chief of Administration in March 2000, he allegedly
found respondents work and services unsatisfactory and not in
compliance with the standards set in the Maintenance Agreement.
Hence, the Indonesian Embassy terminated the agreement in a
letter dated August 31, 2000. Respondent filed a complaint
claiming that the aforesaid termination was arbitrary and unlawful.
Petitioners filed a Motion to Dismiss assailing that Republic of
Indonesia, as a foreign sovereign State, has sovereign immunity

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from suit and cannot be sued as a party-defendant in the
Philippines.
ISSUE:
whether or not the Court of Appeals erred in sustaining the trial
courts decision that petitioners have waived their immunity from
suit by using as its basis the abovementioned provision in the
Maintenance Agreement.
RULING:
The SC GRANTED the petition.

In August 1988, Minucher filed Civil Case before the Regional Trial
Court (RTC) for damages on the trumped-up charges of drug
trafficking made by Arthur Scalzo.
ISSUE:

The rule that a State may not be sued without its consent is a
necessary consequence of the principles of independence and
equality of States. The mere entering into a contract by a foreign
State with a private party cannot be construed as the ultimate test
of whether or not it is an act jure imperii or jure gestionis. Such act
is only the start of the inquiry. A sovereign State does not merely
establish a diplomatic mission and leave it at that; the
establishment of a diplomatic mission encompasses its
maintenance and upkeep. Hence, the State may enter into
contracts with private entities to maintain the premises, furnishings
and equipment of the embassy and the living quarters of its agents
and officials. It is therefore clear that petitioner Republic of
Indonesia was acting in pursuit of a sovereign activity when it
entered into a contract with respondent for the upkeep or
maintenance of the air conditioning units, generator sets, electrical
facilities, water heaters, and water motor pumps of the Indonesian
Embassy and the official residence of the Indonesian ambassador.
KHOSROW MINUCHER, petitioner, vs. HON.
APPEALS and ARTHUR SCALZO, respondents

In May 1986, Minucher was charged with an Information for


violation of Republic Act No. 6425, Dangerous Drugs Act of 1972.
The criminal charge followed a buy-bust operation conducted by
the Philippine police narcotic agents in his house where a quantity
of heroin was said to have been seized. The narcotic agents were
accompanied by private respondent Arthur Scalzo who became one
of the principal witnesses for the prosecution.

COURT

OF

FACTS:
Khosrow Minucher, an Iranian national and a Labor Attach for the
Iranian Embassies in Tokyo, Japan and Manila came to the country
to study in 1974 and continued to stay as head of the Iranian
National Resistance Movement.

WON private respondent Arthur Scalzo can be sued provided his


alleged diplomatic immunity conformably with the Vienna
Convention on Diplomatic Relations
RULING:
The SC DENIED the petition.
Conformably with the Vienna Convention, the functions of the
diplomatic mission involve, the representation of the interests of
the sending state and promoting friendly relations with the
receiving state. Only diplomatic agents, are vested with blanket
diplomatic immunity from civil and criminal suits. 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. Being an Attache, Scalzos 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. He is not
generally regarded as a member of the diplomatic mission. On the
basis of an erroneous assumption that simply because of the
diplomatic note, divesting the trial court of jurisdiction over his
person, his diplomatic immunity is contentious.
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. If the acts giving
rise to a suit are those of a foreign government done by its foreign

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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.
The implication 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
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.
The buy-bust operation and other such acts are 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. 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.
Minucher v CA

Accdg. to Inigo, Scalzo was interested in buying Iranian products


like caviar and carpets. Minucher complained to Scalzo about his
problems with the American Embassy regarding the expired visas
of his wife, Abbas Torabian. Offering help, Scalzo gave Minucher a
calling card showing that the former is an agent of the Drug
Enforcement Administration (DEA) assigned to the American
Embassy in Manila. As a result, Scalzo expressed his intent to buy
caviar and further promised to arrange the renewal of the visas.
Scalzo went to Minucher's residence and asked to be entrusted with
Persian silk carpets, for which he had a buyer. The next day, Scalzo
returned and claimed that he had already made arrangements with
his contacts concerning the visas and asked for $2,000.
It turned out that Scalzo prepared a plan to frame-up a Minucher
and wife for alleged heroin trafficking. Both were falsely arrested
and charged with violations of the Dangerous Drugs Act.
Minucher prays for actual and compensatory damages. However,
counsel for Scalzo filed a motion to quash summons alleging that
the defendant is beyond the processes of the Philippine court for
the action for damages is a personal action and that Scalzo is
outside the Philippines.
TC denied the motion. CA dismissed the motion for lack of merit on
the basis of the erroneous assumption that because of the
Diplomatic Note (advising the DFA that Scalzo is a member of the
US diplomatic mission investigating Minucher for drug trafficking),
Scalzo is clothed with diplomatic immunity.

Doctrine:
Filing a motion to quash, which, in effect already waives any defect
in the service of summons by earlier asking an extension to file
time to file an Answer and filing an Answer with Counterclaim.

Issue:
Whether or not a complaint for damages be dismissed in the sole
basis of a statement complained in a Diplomatic Note.

Facts:
Khosrow Minucher is the Labor Attach of the Embassy of Iran in
the Phil. Arthur Scalzo, then connected with the American Embassy
in Manila, was introduced to him by Jose Inigo (an informer
belonging to the military intelligence community).

Held:
No. Jurisdiction over the person of the defendant is acquired by
either voluntary appearance or by the service of summons. In the
case, Scalzo's counsel filed a motion to quash, which, in effect
already waived any defect in the service of summons by earlier

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asking an extension to file time to file an Answer and filing an
Answer with Counterclaim.
The complaint for damages cannot be dismissed. Said complaint
contains sufficient allegations which indicate that Scalzo committed
imputed acts in his personal capacity and outside the scope of his
official duties and functions. The TC gave credit to Minucher's
theory that he was a victim of frame-up hence, there is a prima
facie showing that Scalzo could be held personally liable for his
acts. Further, Scalzo did not come forward with evidence to, prove
that he acted in his official capacity.
MINUCHER v. CA (September 24, 1992)
Petitioner: KHOSROW MINUCHER
Respondents: CA & ARTHUR W. CALZO, JR.
Nature: PETITION for review of the decision of the Court of Appeals
Ponente: DAVIDE, JR., J.
1. CALZO FRAMES UP MINUCHER FOR POSSESSION OF HEROIN.
Calzo, an agent of the Drug Enforcement Administration of
Department of Justice of the USA ordered from Minucher, a labor
attach of the Iran Embassy in Manila Iranian were introduced by a
common associate, Inigo. Calzo offered to help Minucher with his
problem with his familys US visas for a fee of $2,000. Calzo also
found buyers of certain Iranian goods which Calzo was selling such
as silk and carpets. So, Calzo came to the residence of Minucher
and asked to be entrusted with a pair of Persian silk carpets with a
floor price of $24,000 each, for which he had a buyer. The following
day, Calzo returned to Minuchers residence, took the carpets and
gave the latter $24,000; after about an hour, Calzo returned,
claimed that he had already made arrangements with his contacts
at the American Embassy concerning the visas and asked for
$2,000. He was given this amount. It turned out, however, that
Calzo had prepared an elaborate plan to frame-up Minucher for
alleged trafficking; both were falsely arrested by Calzo and some
American and Filipino police officers, and were taken to Camp
Crame in their underwear. Calzo and his companions took
petitioners 3 suitcases containing various documents, his wallet
containing money and the keys to his house and car, as well as the
$24,000 which Calzo had earlier delivered to him. Minucher and his

companion, Torabian were handcuffed together for 3 days and were


not given food and water; they were asked to confess to the
possession of heroin or else they would be jailed or even executed
by Iranian terrorists. Consequently, the two were charged for the
violation of Section 4 of RA. No. 6425 (Dangerous Drugs Act of
1972) before the Pasig RTC. They were, however, acquitted by the
said court. Calzo testified for the prosecution in the said case.
2. COMPLAINT FOR DAMAGES. Minucher files a complaint for
damages against Calzo and alleges that Calzo falsely testified
against him in the criminal case. Minucher also avers that charges
of unlawful arrest, robbery and estafa or swindling have already
been filed against the Calzo. He therefore prays for actual and
compensatory damages of not less than P480,000 ($24,000)
representing the fair market value of the Persian silk carpet and
$2,000 representing the refund of the amount he had given for the
visas; moral damages in the amount of P5 million; exemplary
damages in the sum of P100,000 and attorneys fees of at least
P200,000 to answer for litigation expenses incurred for his defense
in the criminal case and for the prosecution of the civil case,
3. SPECIAL APPEARANCE TO QUASH SUMMONS. Calzos counsel, the
law firm LUNA, SISON AND MANAS, filed a Special Appearance and
Motion alleging therein that since Calzo is an agent of the Drug
Enforcement Administration of the USA, and the acts and omissions
complained of were performed by him in the performance of official
functions, the case is now under study by the Departments of State
and Justice in Washington, D.C. for the purpose of determining what
defenses would be appropriate; said counsel also prayed that the
period to answer be extended. Then, counsel filed a Special
Appearance to Quash Summons alleging therein that: The action
being it personal action for damages arising from an alleged tort,
the defendant being outside the Philippines and not being a
resident of the Philippines, Defendant is beyond the processes of
this court, and praying that the summons issued be quashed. The
trial court denied the motion in its Order. Unsatisfied with the said
order, Calzo filed a petition for certiorari with the CA. In its
Decision, the CA dismissed the petition for lack of merit. Calzo
elevated the case to the SC but was dismissed due to non-

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compliance with par 2 of Circular No. 1-88 and its failure to show
that the CA had committed any reversible error.

The trial court issued an order denying the motion for being
devoid
of
merit.

4. CALZO FILED HIS ANSWER. Thereafter, Calzo filed with the trial
court his Answer in the civil case wherein he denies the material
allegations in the complaint, sets forth the following Affirmative
Defenses: The Complaint fails to state a cause of action: in having
Minucher and Torabian arrested and detained at Camp Crame; a
quantity of heroin, seized from plaintiff by Philippine police
authorities and in seizing the money used in the drug transaction,
defendant acted in the discharge of his official duties or otherwise
in the performance of his official functions as agent of the Drug
Enforcement Administration, U.S. Department of Justice and
interposes a counterclaim for P100,000 to answer for attorneys
fees
and
the
expenses
of
litigation.

6. CA DISMISSED CASE. Calzo then filed with the CA a petition for


certiorari. CA promulgated a Decision dismissing the case due to
the trial courts lack of jurisdiction over the person of the defendant
because the latter possessed diplomatic immunity. MR denied
because: When therefore Mr. Scalzo testified in the Criminal Case
against Khosrow Minucher it was in connection with his official
functions as an agent of the Drug Enforcement Administration of
the United States and member (sic) of the American Mission
charged with cooperating with the Philippine law enforcement
agency. He therefore, enjoys immunity from criminal and civil
jurisdiction of the receiving State under Article 31 of the Vienna
Convention on Diplomatic Relations. Hence, this petition for review
under Rule 45 of the Rules of Court.

5. CALZOS MTD BASED ON A DIPLOMATIC NOTE. Calzo filed a


Motion to Dismiss the case on the ground that as per the copy of
Diplomatic Note No. 414 issued by the Embassy of the United
States of America,13 dated 29 May 1990 and certified to be a true
and faithful copy of the original by one Donald K. Woodward, Vice
Consul of the United States of America on 11 June 1990, the
Embassy advised the Department of Foreign Affairs of the Republic
of
the
Philippines
that:
x x x Arthur W. Scalzo, was a member of the diplomatic staff of the
United States diplomatic mission from his arrival in the Philippines
on October 14, 1985 until his departure on August 10, 1988. x x x
x x x in May 1986, with the cooperation of Philippine law
enforcement officials and in the exercise of his functions as a
member of the mission, Mr. Scalzo investigated Mr. Khosrow
Minucher, the plaintiff in the aforementioned case for allegedly
trafficking in a prohibited drug. It is this investigation which has
given rise to the plaintiffs complaint. The Embassy takes note of
the provisions of Article 39(2) of the Vienna Convention on
Diplomatic Relations, which provides that Mr. Scalzo retains
immunity from civil suit for sets performed in the exercise of his
functions, as is the caw here, even though he has departed (sic) the
country.

ISSUE: WON a complaint for damages should be dismissed on the


sole basis of a statement contained in a Diplomatic Note, belatedly
issued after an answer to the said complaint had already been filed,
that the defendant was a member of the diplomatic staff of the
United States Diplomatic Mission in the Philippines at the time the
cause
of
action
accrued?
HELD:
NO.
7. CORRECT GROUND TO DISMISS: FAILURE TO STATE A COA. While
the trial court correctly denied the motion to dismiss, the CA
gravely abused its discretion in dismissing the civil case 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. It may at once be stated that even if the Calzo enjoys
diplomatic immunity, a dismissal of the case cannot be ordered on
the ground of lack of jurisdiction over his person, but rather for lack
of a cause of action because even if he committed the imputed act
and could have been otherwise made liable therefor, his immunity
would bar any suit against him in connection therewith and would
prevent
recovery
of
damages
arising
therefrom.
8. COURT ACQUIRED JURISDICTION OVER CALZO. Jurisdiction over

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the person of the defendant is acquired either by his voluntary
appearance or by the service of summons upon him. While in the
instant case, private respondents counsel filed, on 26 October
1988, a motion to quash summons because being outside the
Philippines and being a non-resident alien, he is beyond the
processes of the court, which was properly denied by the trial court,
he had in effect already waived any defect in the service of the
summons by earlier asking, on 2 occasions, for an extension of time
to file an answer, and by ultimately filing an Answer with
Counterclaim. There is no question that the trial court acquired
jurisdiction over the person of the private respondent.
9. THE CASE SHOULD NOT HAVE BEEN DISMISSED. The complaint
for damages filed by the Minucher still cannot be peremptorily
dismissed. Said complaint contains sufficient allegations which
indicate that the private respondent committed the imputed acts in
his personal capacity and outside the scope of his official duties
and functions. As described in the complaint, he committed
criminal acts for which he is also civilly liable. In the Special
Appearance to Quash Summons earlier alluded to, an the other
hand, private respondent maintains that the claim for damages
arose from an alleged tort. Whether such claim arises from
criminal acts or from tort, there can be no question that private
respondent was sued in his personal capacity for acts committed
outside his official functions duties. In the decision acquitting
petitioner in the criminal case involving the violation of the
Dangerous Drugs Act, copy of which is attached to his complaint for
damages and which must be deemed as an integral part thereof,
the trial court gave full credit to petitioners theory that he was a
victim of a frame-up instigated by the private respondent. Thus,
there is a prima facie showing in the complaint that indeed private
respondent could be held personally liable for the acts committed
beyond
his
official
functions
or
duties.
10. REITERATED DOCTRINE IN SHAUF. In Shauf vs. Court of Appeals,
after citing pertinent authorities, this Court ruled: The aforecited
authorities are clear on the matter. They state that 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 haw mused by his act done with malice and in bad
faith, or beyond the scope of his authority or jurisdiction (Dumlao
vs. Court of Appeals, et al., 114 SCRA 247 [1982]).
11. ARTICLE 31 OF THE VIENNA CONVENTION ON DIPLOMATIC
RELATIONS
admits
of
exceptions.
It
reads:
I. A diplomatic agent shall enjoy immunity from the criminal
jurisdiction of the receiving State. He shall also enjoy immunity
from its civil and administrative jurisdiction except in the case of an
action relating to any professional or commercial activity exercised
by the diplomatic agent in the receiving State, outside his official
functions.
(Emphasis
supplied).
12. NO EVIDENCE TO PROVE HE ACTED IN HIS OFFICIAL CAPACITY.
There is of course the claim of private respondent that the act
imputed to him were done in his official capacity. Nothing supports
this self-serving claim other than the so-called Diplomatic Note. In
short, insofar as the records are concerned, Calzo did not come
forward with evidence to prove that indeed, he had acted in his
official capacity. It does not appear that an actual hearing on the
motion to dismiss was conducted and that Calzo offered evidence
in support thereof. Thus, it is apropos to quote what this Court
stated
in
United
States
of
America
vs.
Guinto:
But even as we are, certain that the individual petitioners in G.R.
No. 80018 were acting in the discharge of their official functions,
we hesitate to make the same conclusion in G.R. No. 80258. The
contradictory factual allegations in this case deserve in our view a
closer study of what actually happened to the plaintiffs. The record
is too meager to indicate if the defendants were really discharging
their official duties or had actually exceeded their authority when
the incident in question occurred. Lacking this information, this
Court cannot directly decide this case. The needed inquiry must
first be made by the lower court so it may assess and resolve the
conflicting claims of the parties on the basis of the evidence that

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has yet to be presented at the trial. Only after it shall have
determined in what capacity the petitioners were acting at the time
of the incident in question will this Court determine, if still
necessary, if the doctrine of state immunity is applicable.

the Philippine police narcotic agents in his house where a quantity


of heroin was said to have been seized. The narcotic agents were
accompanied by private respondent Arthur Scalzo who became one
of the principal witnesses for the prosecution.

It may be mentioned in this regard that Calzo himself, in his Pretrial Brief, 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.

In August 1988, Minucher filed Civil Case before the Regional Trial
Court (RTC) for damages on the trumped-up charges of drug
trafficking made by Arthur Scalzo.
ISSUE:
WON private respondent Arthur Scalzo can be sued provided his
alleged diplomatic immunity conformably with the Vienna
Convention on Diplomatic Relations
RULING:

The public respondent then should have sustained the trial courts
denial of the motion to dismiss. Verily, such 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 the CA yielded to the private
respondents
claim
is
arbitrary.
DISPOSITION. WHEREFORE, the challenged decision of the CA is
SET ASIDE and the Order of the Regional Trial Court of Manila
denying private respondents Motion to Dismiss is hereby
REINSTATED.
KHOSROW MINUCHER, petitioner, vs. HON.
APPEALS and ARTHUR SCALZO, respondents

COURT

OF

FACTS:
Khosrow Minucher, an Iranian national and a Labor Attach for the
Iranian Embassies in Tokyo, Japan and Manila came to the country
to study in 1974 and continued to stay as head of the Iranian
National Resistance Movement.
In May 1986, Minucher was charged with an Information for
violation of Republic Act No. 6425, Dangerous Drugs Act of 1972.
The criminal charge followed a buy-bust operation conducted by

The SC DENIED the petition.


Conformably with the Vienna Convention, the functions of the
diplomatic mission involve, the representation of the interests of
the sending state and promoting friendly relations with the
receiving state. Only diplomatic agents, are vested with blanket
diplomatic immunity from civil and criminal suits. 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. Being an Attache, Scalzos 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. He is not
generally regarded as a member of the diplomatic mission. On the
basis of an erroneous assumption that simply because of the
diplomatic note, divesting the trial court of jurisdiction over his
person, his diplomatic immunity is contentious.

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. 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

9 | Pampats
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.
The implication 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
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.
The buy-bust operation and other such acts are 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. 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.
II. ABSOLUTE IMMUNITY and RESTRICTIVE IMMUNITY
THE HOLY SEE vs. THE HON. ERIBERTO U. ROSARIO, JR., as
Presiding Judge of the Regional Trial Court of Makati,Branch
61 and STARBRIGHT SALESENTERPRISES, INC.
FACTS:
This petition arose from a controversy over a parcel of land, Lot 5A, located in the Municipality of Paraaque, Metro Manila and
registered in the name of petitioner. Said Lot5-A is contiguous to
Lots5-B and 5-Dregistered in the name of the Philippine Realty
Corporation (PRC). The three lots were sold to Ramon Licup,
through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers.

Later, Licup assigned his rights to the sale to private respondent,


Starbright Enterprises. The squatters refused to vacate the lots sold
to private respondent so a dispute arose as to who of the parties
has the responsibility of evicting and clearing the land of squatters
occurred. Complicating the relations of the parties was the sale by
petitioner of Lot 5-A to Tropicana Properties and Development
Corporation (Tropicana).Private respondent filed a complaint for
annulment of the sale of the three parcels of land, and specific
performance and damages against petitioner, represented by the
Papal Nuncio, and three other defendants: namely, Msgr. Domingo
A. Cirilos, Jr., the PRC and Tropicana.
ISSUE:
WON (whether or not) the petitioner Holy See is immune from suit.
HELD:
YES. The logical question is whether the foreign state is engaged in
the activity in the regular course of business. If the foreign state is
not engaged regularly in a business or trade, the particular act or
transaction must then be tested by its nature. If the act is in pursuit
of a sovereign activity, or an incident thereof, then it is an act jure
imperii especially when it is not undertaken for gain or profit.Lot5-A
was acquired by petitioner as a donation from the Archdiocese of
Manila. The donation was made not for commercial purpose, but for
the use of petitioner to construct thereon the official place of
residence of the Papal Nuncio. The right of a foreign sovereign to
acquire property, real or personal, in a receiving state, necessary
for the creation and maintenance of its diplomatic mission, is
recognized in the 1961 Vienna Convention on Diplomatic Relations.
In Article 31(a) of the Convention, a diplomatic envoy is granted
immunity from the civil and administrative jurisdiction of the
receiving state over any real action relating to private immovable
property situated in the territory of the receiving state which the
envo yholds on behalf of the sending state for the purposes of the
mission. If this immunity is provided for a diplomatic envoy, with all
the more reason should immunity be recognized as regards the
sovereign itself, which in this case is the Holy See.
SALIENT POINTS:

10 | P a m p a t s
There are two conflicting concepts of sovereign immunity,
according to the Supreme Court: (a) Classical or absolute theory

a sovereign cannot, without its consent, be made a respondent in


the courts of another sovereign; and (b) Restrictive theory

the immunity of the sovereign is recognized only with regard to


public acts or acts jure imperii (public acof a state, but not with
regard to private acts or acts jure gestionis. JURE IMPERII AND JURE
GESTIONIS. - "There are two conflicting concepts of sovereign
immunity, each widely held and firmly established. According to the
classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the Courts of another sovereign.
According to the newer or restrictive theory, the immunity of the
sovereign is recognized only with regard to public acts or acts jure
imperii of a state, but not with regard to private act or acts jure
gestionis. x x x Certainly, the mere entering into a contract by a
foreign state with a private party cannot be the ultimate test. Such
an act can only be the start of the inquiry. The logical question is
whether the foreign state is engaged in the activity in the regular
course of business. If the foreign state is not engaged regularly in a
business or trade, the particular act or transaction must then be
tested by its nature. If the act is in pursuit of a sovereign activity, or
an incident thereof, then it is an act jure imperii, especially when it
is not undertaken for gain or profit." The service contracts referred
to by private respondent have not been intended by the ADB for
profit or gain but are official acts over which a waiver of immunity
would not attach. How does the Philippine government treat the
Holy See or Vatican?
The Philippines has accorded the Holy See the status of a foreign
sovereign. The Holy See, through its Ambassador, the Papal Nuncio,
has had diplomatic representations with the Philippine government
since 1957. This appears to be the universal practice in
international relations. What is the treaty that governs
the sovereign immunity of diplomats and other state agents?

The Vienna Convention on Diplomatic Relations, which was ratified


on 18 April 1961, is a codification of centuries-old customary law
affording protection to foreign diplomats. The Convention lists the
classes of heads of diplomatic missions to include(a) ambassadors
or nuncios accredited to the heads of state,(b) envoys, ministers or
internuncios accredited to the heads of states; and (c) charges d
affairs accredited to the ministers of foreign affairs. Comprising the
staff of the (diplomatic) mission are the diplomatic staff, the
administrative staff and the technical and service staff.
Par in parem imperium non habet
. An equal has no power over an equal. Jenk. Cent. 174.Example:
One of two judges of the same court cannot commit the other
for contempt.
Holy See vs Rosario
FACTS: Petition arose from a controversy over a parcel of land. Lot
5-A, registered under the name Holy See, was contiguous to Lot 5-B
and 5-D under the name of Philippine Realty Corporation (PRC).
The land was donated by the Archdiocese of Manila to the Papal
Nuncio, which represents the Holy See, who exercises sovereignty
over the Vatican City, Rome, Italy, for his residence.

Said lots were sold through an agent to Ramon Licup who assigned
his rights to respondents Starbright Sales Enterprises, Inc.
When the squatters refuse to vacate the lots, a dispute arose
between the two parties because both were unsure whose
responsibility was it to evict the squatters from said lots.
Respondent Starbright Sales Enterprises Inc. insists that Holy See
should clear the property while Holy See says that respondent
corporation should do it or the earnest money will be returned. With
this, Msgr. Cirilios, the agent, subsequently returned the P100,000
earnest money.
The same lots were then sold to Tropicana Properties and
Development Corporation.

11 | P a m p a t s
Starbright Sales Enterprises, Inc. filed a suit for annulment of the
sale, specific performance and damages against Msgr. Cirilios, PRC
as well as Tropicana Properties and Development Corporation. The
Holy See and Msgr. Cirilos moved to dismiss the petition for lack of
jurisdiction based on sovereign immunity from suit. RTC denied the
motion on ground that petitioner already "shed off" its sovereign
immunity by entering into a business contract. The subsequent
Motion for Reconsideration was also denied hence this special civil
action for certiorari was forwarded to the Supreme Court.
ISSUE: Whether or not Holy See can invoke sovereign immunity.
HELD: The Court held that Holy See may properly invoke sovereign
immunity for its non-suability. As expressed in Sec. 2 Art II of the
1987 Constitution, generally accepted principles of International
Law are adopted by our Courts and thus shall form part of the laws
of the land as a condition and consequence of our admission in the
society of nations.
It was noted in Article 31(A) of the 1961 Vienna Convention on
Diplomatic Relations that diplomatic envoy shall be granted
immunity from civil and administrative jurisdiction of the receiving
state over any real action relating to private immovable property.
The Department of Foreign Affairs (DFA) certified that the Embassy
of the Holy See is a duly accredited diplomatic missionary to the
Republic of the Philippines and is thus exempted from local
jurisdiction and is entitled to the immunity rights of a diplomatic
mission or embassy in this Court.
Furthermore, it shall be understood that in the case at bar, the
petitioner has bought and sold lands in the ordinary course of real
estate business, surely, the said transaction can be categorized as
an act jure gestionis. However, petitioner has denied that the
acquisition and subsequent disposal of the lot were made for profit
but claimed that it acquired said property for the site of its mission
or the Apostolic Nunciature in the Philippines.
The Holy See is immune from suit because the act of selling the lot
of concern is non-propriety in nature. The lot was acquired through
a donation from the Archdiocese of Manila, not for a commercial
purpose, but for the use of petitioner to construct the official place

of residence of the Papal Nuncio thereof. The transfer of the


property and its subsequent disposal are likewise clothed with a
governmental (non-proprietal) character as petitioner sold the lot
not for profit or gain rather because it merely cannot evict the
squatters living in said property.
In view of the foregoing, the petition is hereby GRANTED and the
complaints were dismissed accordingly.
FACTS:
This petition arose from a controversy over a parcel of land
consisting of 6,000 square meters located in the Municipality of
Paranaque. Said lot was contiguous with two other lots. These lots
were sold to Ramon Licup. In view of the refusal of the squatters to
vacate the lots sold, a dispute arose as to who of the parties has
the responsibility of evicting and clearing the land of squatters.
Complicating the relations of the parties was the sale by petitioner
of
the
lot
of
concern
to
Tropicana.

ISSUE:
Whether the Holy See is immune from suit insofar as its business
relations regarding selling a lot to a private entity
RULING:
As expressed in Section 2 of Article II of the 1987 Constitution, we
have adopted the generally accepted principles of International
Law. Even without this affirmation, such principles of International
Law are deemed incorporated as part of the law of the land as a
condition and consequence of our admission in the society of
nations. In the present case, if petitioner has bought and sold
lands in the ordinary course of real estate business, surely the said
transaction can be categorized as an act jure gestionis. However,
petitioner has denied that the acquisition and subsequent disposal
of the lot were made for profit but claimed that it acquired said
property for the site of its mission or the Apostolic Nunciature in the
Philippines.

12 | P a m p a t s
The Holy See is immune from suit for the act of selling the lot of
concern is non-proprietary in nature. The lot was acquired by
petitioner as a donation from the Archdiocese of Manila. The
donation was made not for commercial purpose, but for the use of
petitioner to construct thereon the official place of residence of the
Papal Nuncio. The decision to transfer the property and the
subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell the lot for profit or
gain. It merely wanted to dispose of the same because the
squatters living thereon made it almost impossible for petitioner to
use it for the purpose of the donation.
USA v. RUIZ
GR No. L-35645; May 22, 1985
FACTS:
Sometime in May 1972, the United States invited the submission of
bids for certain naval projects. Eligio de Guzman & Co. Inc.
responded to the invitation and submitted bids. Subsequently, the
company received two telegrams requesting it to confirm its price.
In June 1972, the copany received a letter which said that the
company did not qualify to receive an award for the projects. The
company then sued the United States of America and individual
petitioners demanding that the company perform the work on the
projects, or for the petitioners to pay damages and to issue a writ
of preliminary injunction to restrain the petitioners from entering
into contracts with third parties concerning the project.
ISSUE:
1) Do the petitioners exercise governmental or proprietary
functions?
2) Does the Court have jurisdiction over the case?
HELD:
The rule of State immunity exempts a State from being sued in the
courts of another state without its consent or waiver. This is a
necessary consequence of the principles of independence and
equality of states. However, state immunity now extends only to
governmental acts of the state. The restrictive application of State
immunity is proper only when the proceedings arise out of

commercial transactions of the foreign sovereign. In this case, the


projects are integral part of the naval base which is devoted to the
defense of the USA and Philippines which is, indisputably, a
function of the government. As such, by virtue of state immunity,
the courts of the Philippines have no jurisdiction over the case for
the US government has not given consent to the filing of this suit.
UNITED STATES OF AMERICA, CAPT. JAMES E. GALLOWAY,
WILLIAM I. COLLINS and ROBERT GOHIER, petitioners, vs.
HON. V. M. RUIZ, Presiding Judge of Branch XV, Court of
First Instance of Rizal and ELIGIO DE GUZMAN & CO., INC.,
respondents.
Facts
At times material to this case, the United States of America had a
naval base in Subic, Zambales. The base was one of those provided
in the Military Bases Agreement between the Philippines and the
United States.
US invited the submission of bids for Repair offender system and
Repair typhoon damages. Eligio de Guzman & Co., Inc. responded
to the invitation, submitted bids and complied with the requests
based on the letters received from the US.
In June 1972, a letter was received by the Eligio De Guzman & Co
indicating that the company did not qualify to receive an award for
the projects because of its previous unsatisfactory performance
rating on a repair contract for the sea wall at the boat landings of
the U.S. Naval Station in Subic Bay.
The company sued the United States of America and Messrs. James
E. Galloway, William I. Collins and Robert Gohier all members of the
Engineering Command of the U.S. Navy. The complaint is to order
the defendants to allow the plaintiff to perform the work on the
projects and, in the event that specific performance was no longer
possible, to order the defendants to pay damages. The company
also asked for the issuance of a writ of preliminary injunction to
restrain the defendants from entering into contracts with third
parties for work on the projects.

13 | P a m p a t s
The defendants entered their special appearance for the purpose
only of questioning the jurisdiction of this court over the subject
matter of the complaint and the persons of defendants, the subject
matter of the complaint being acts and omissions of the individual
defendants as agents of defendant United States of America, a
foreign sovereign which has not given her consent to this suit or
any other suit for the causes of action asserted in the complaint."
(Rollo, p. 50.)
Subsequently the defendants filed a motion to dismiss the
complaint which included an opposition to the issuance of the writ
of preliminary injunction. The company opposed the motion.
The trial court denied the motion and issued the writ. The
defendants moved twice to reconsider but to no avail.
Hence the instant petition which seeks to restrain perpetually the
proceedings in Civil Case No. 779-M for lack of jurisdiction on the
part of the trial court.
Issue/s:
WON the US naval base in bidding for said contracts exercise
governmental functions to be able to invoke state immunity
Held:
WHEREFORE, the petition is granted; the questioned orders of the
respondent judge are set aside and Civil Case No. is dismissed.
Costs against the private respondent.

Ratio:
The traditional rule of State immunity exempts a State from being
sued in the courts of another State without its consent or waiver.
This rule is a necessary consequence of the principles of
independence and equality of States. However, the rules of
International Law are not petrified; they are constantly developing
and evolving. And because the activities of states have multiplied,
it has been necessary to distinguish them-between sovereign and
governmental acts (jure imperii) and private, commercial and

proprietary acts (jure gestionis). The result is that State immunity


now extends only to acts jure imperil (sovereign & governmental
acts)
The restrictive application of State immunity is proper only when
the proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of
an individual and can thus be deemed to have tacitly given its
consent to be sued only when it enters into business contracts. It
does not apply where the contract relates to the exercise of its
sovereign functions. In this case the projects are an integral part of
the naval base which is devoted to the defense of both the United
States and the Philippines, indisputably a function of the
government of the highest order; they are not utilized for nor
dedicated to commercial or business purposes.
Correct test for the application of State immunity is not the
conclusion of a contract by a State but the legal nature of the act
US v RUIZ
Brief Fact Summary. When Ruizs sentence was vacated because
she refused to waive her rights to impeachment evidence, the
government brought appeal on the grounds that its plea bargaining
process
was
not
unconstitutional.
Synopsis of Rule of Law. While the Fifth and Sixth Amendments
require that a defendant receive exculpatory evidence at trial, a
defendant may waive their right to this information in a plea
agreement.
Facts. Federal prosecutors offered respondent, Angela Ruiz, a fast
track plea bargain, after 30kg of marijuana was found in her
luggage by immigration agents. Per the terms of the bargain, the
respondent
would
have
gotten
a
reduced
sentence
recommendation, in exchange for waiving the right to receive
impeachment information relating to any informants or other
witnesses, as well as to information supporting any affirmative
defense she may raise if she were to go to trial. Ruiz rejected the
waiver of her rights, the offer was withdrawn and she was indicted

14 | P a m p a t s
for unlawful drug possession. At sentencing, Ruiz asked the judge
to grant her the sentence she would have gotten, had she taken
the plea bargain, on the grounds that it was in violation of her Fifth
and Sixth Amendment rights to a fair trial. The Court of Appeals
ruled for the respondent, and vacated the sentence, and the
government
brought
appeal.
Issue. Whether, before entering into a plea agreement, the Fifth
and Sixth Amendments require federal prosecutors to disclose
impeachment information relating to informants or other witnesses.
Held. Justice Breyer, for the Court, held that although the Fifth and
Sixth Amendments do provide that a defendant be given
exculpatory impeachment evidence from prosecutors, a guilty plea
under a plea agreement, with a waiver of rights, can be accepted
as
knowing
and
voluntary.
Concurrence. Justice Thomas concurs, noting that the purpose of
requiring exculpatory evidence is so there be no unfair trial to the
accused, which does not apply at the plea bargaining stage.
Discussion. While the Fifth and Sixth Amendments are designed to
protect the right to a fair trial, a defendant can knowingly and
voluntarily waive those rights in a valid plea agreement.
Facts
After immigration agents found marijuana in luggage belonging to
Ruiz (defendant), federal prosecutors offered her a fast track plea
bargain, whereby a defendant will waive indictment, trial and an
appeal in return for a lesser sentence. The agreement stated that
any information establishing the defendants innocence would be
turned over to the defendant. Moreover, the defendant must waive
the right to receive impeachment information relating to any
informants or other witnesses and the right to receive information
supporting possible affirmative defenses if the case goes to trial.
Ruiz refused the last condition, the government indicted her, but
Ruiz ultimately pleaded guilty to the drug change. At sentencing,
Ruiz asked for the same sentence that prosecutors would have
given her had she signed the fast track plea bargain agreement,
but the government opposed the request and the district court
denied it, giving her instead the typical longer sentence. Ruiz

appealed to the United States Court of Appeals for the Ninth Circuit,
and that court vacated the lower courts judgment, pointing out
that the Constitution requires that prosecutors make certain
impeachment information available to defendants before trial. The
Ninth Circuit said that this obligation requires that a defendant
receive the same information before a plea bargain. The same
court said the Constitution prohibits defendants from waiving their
right to that information and invalidated the fast track plea
bargain because it included the waiver

WAIVER
FROILAN VS PAN ORIENTAL SHIPPING
Facts:
Plaintiff, Fernando Froilan filed a complaint against the defendantappellant, Pan Oriental Shipping Co., alleging that he purchased
from the Shipping Commission the vessel for P200,000, paying
P50,000 down and agreeing to pay the balance in instalments. To
secure the payment of the balance of the purchase price, he
executed a chattel mortgage of said vessel in favor of the Shipping
Commission. For various reasons, among them the non-payment of
the installments, the Shipping Commission tool possession of said
vessel and considered the contract of sale cancelled. The Shipping
Commission chartered and delivered said vessel to the defendantappellant Pan Oriental Shipping Co. subject to the approval of the
President of the Philippines. Plaintiff appealed the action of the
Shipping Commission to the President of the Philippines and, in its
meeting the Cabinet restored him to all his rights under his original
contract with the Shipping Commission. Plaintiff had repeatedly
demanded from the Pan Oriental Shipping Co. the possession of the
vessel in question but the latter refused to do so.
Plaintiff, prayed that, upon the approval of the bond accompanying
his complaint, a writ of replevin be issued for the seizure of said

15 | P a m p a t s
vessel with all its equipment and appurtenances, and that after
hearing, he be adjudged to have the rightful possession thereof .
The lower court issued the writ of replevin prayed for by Froilan and
by virtue thereof the Pan Oriental Shipping Co. was divested of its
possession of said vessel.
Pan Oriental protested to this restoration of Plaintiff s rights under
the contract of sale, for the reason that when the vessel was
delivered to it, the Shipping Administration had authority to dispose
of said authority to the property, Plaintiff having already
relinquished whatever rights he may have thereon. Plaintiff paid
the required cash of P10,000.00 and as Pan Oriental refused to
surrender possession of the vessel, he filed an action to recover
possession thereof and have him declared the rightful owner of said
property. The Republic of the Philippines was allowed to intervene
in said civil case praying for the possession of the in order that the
chattel mortgage constituted thereon may be foreclosed.
Issues:
Whether or not the Court has jurisdiction over the intervenor with
regard to the counterclaim.
Discussions:
When the government enters into a contract, for the State is then
deem to have divested itself of the mantle of sovereign immunity
and descended to the level of the ordinary individual. Having done
so, it becomes subject to judicial action and processes.
EXECUTION
43 F.2d 705 (1930)
DEXTER & CARPENTER, Inc.,
v.
KUNGLIG JARNVAGSSTYRELSEN et al.
No. 356.
Circuit Court of Appeals, Second Circuit.
July 14, 1930.

*706 Haight, Smith Griffin & Deming, of New York City (Charles S.
Haight, Wharton Poor, and Laszlo Kormendi, all of New York City, of
counsel), for appellant.
Covington, Burling & Rublee, of Washington, D. C., and Davis, Polk,
Wardwell, Gardiner & Reed, of New York City (Edward B. Burling, of
Washington, D. C., William C. Cannon, of New York City, and Porter
R. Chandler, of Buffalo, N. Y., of counsel), for W. Bostrom, Envoy
Extraordinary, etc.
Shearman & Sterling, of New York City (Carl A. Mead and Otey
McClellan, both of New York City, of counsel), for appellees. the
National City Bank of N. Y. and A/B Svenska Amerika Linien.
Before MANTON, SWAN, and CHASE, Circuit Judges.
MANTON, Circuit Judge.
Kunglig Jarnvagsstyrelsen, also known as the Royal Administration
of the Swedish State Railways, filed a complaint in the District
Court for the Southern District of New York, in 1922, describing
itself as a corporation under the laws of Sweden, and sought
recovery of $125,000, claiming breach of contract by appellant for
the sale of coal. The National City Bank of New York was made a
party defendant because funds were on deposit in that institution
to cover the payment of the coal purchased. An answer was filed to
this complaint, also a counterclaim in which the appellant sought
affirmative relief by way of money damages for breach of the
contract for the purchase of the coal. All parties now agree that the
Swedish State Railways was not in fact a corporation, as alleged in
the complaint, and in no way a distinct entity from the Swedish
government; that the Railways were part of the Swedish
government and were owned solely by Sweden. In Sweden it was
not subject to the laws specially applicable to corporations and
economic societies of the kingdom of Sweden. All its officials are
appointed by the Swedish government and operate the railways
under its direction. The net revenues are paid to the Exchequer,
which is the same office to which taxes and other such revenues of
the Swedish government must be and are delivered. In reply to the
counterclaim, a replication was filed, and a motion was made to
dismiss the counterclaim because the railways were an agency of

16 | P a m p a t s
the government and the counterclaim was not maintainable against
it without its consent. This motion was overruled and the replication
stricken out. Kunglig Jarnvagsstyrelsen, etc., v. Dexter & Carpenter,
Inc. (D. C.) 300 F. 891. The mere allegation of agency, unsupported
by any claim of immunity proceeding directly from the sovereign
and unvouched for by our own government, was held to be
insufficient.
The trial of the action resulted in a judgment dismissing the
complaint, and a verdict was rendered by the jury for the plaintiff
on the counterclaim. On appeal, the judgment in favor of the
plaintiff on the counterclaim was reversed and the dismissal of the
complaint was affirmed (C. C. A.) 20 F.(2d) 307; certiorari was
denied, 275 U.S. 497, *707 48 S. Ct. 121, 72 L. Ed. 392. On the
second trial, a judgment was rendered for the appellant for
$411,203.72, which this court affirmed. 32 F.(2d) 195. An
application for reargument was made, and a certificate, executed
by the Swedish minister, stating the railways were not a
corporation but an organic part of the Swedish government, and
advancing the claim of immunity, was filed. Reargument was
denied. When certiorari was again applied for, a suggestion through
the Solicitor General, as to the petitioner's legal status and claim of
immunity was presented to the Supreme Court by the Swedish
minister, Ex parte Muir, 254 U.S. 522, 532, 41 S. Ct. 185, 65 L. Ed.
383, and the petition was denied, 280 U.S. 579, 50 S. Ct. 32, 74 L.
Ed. 629.
When the case was here last, 32 F.(2d) 195, 199, this court,
referring to the claim that "`the plaintiff is an agency of the friendly
foreign sovereign government of Sweden'; that the counterclaim is
in effect a suit against such government, and `as such is not
maintainable in this court without the consent of the plaintiff'; and
that the plaintiff does not consent to the determination of the
counterclaim," said, at page 200 of 32 F.(2d):
"This is not an appearance by the kingdom of Sweden as a party to
the suit, nor the assertion of immunity by that kingdom. It is an
assertion by plaintiff corporation of a claim of sovereign immunity.
But the assertion of the sovereign's immunity cannot be made by a
private party litigant. In Ex parte Muir, 254 U.S. 522, 41 S. Ct. 185,
65 L. Ed. 383. * * *

"The reasons for requiring an accredited representative of a foreign


government to present its claim of immunity are as potent when
the claim is founded upon an assertion that a corporation
defendant is an agency of the sovereign as when it is founded upon
the assertion that an arrested vessel is the government's property.
In either case the court presumptively has jurisdiction and may
proceed unless the sovereign objects. Consequently, when a
private corporation is sued at law, we do not think it is enough for
an attorney to appear for it and say it is a governmental agency,
and in his opinion immune from suit."
Therefore, there is a valid unsatisfied judgment against the Swedish
State Railways as a corporation. But, as said by the judge below,
"The outstanding feature of the case * * * is the fact that the
Swedish Government has been in this suit from the beginning."
The government of Sweden represented its Railway Administration
to be a corporation and voluntarily entered its suit in the
jurisdiction of the District Court, and failed to file a proper plea of
immunity from suit, answered the counterclaim, and litigated until
eventually defeated, and now protests, in its present plea of
immunity, against the effort of the judgment creditor to realize the
fruits of its litigation by the medium of a writ of execution. It never
amended or corrected the plaintiff's name.
The question presented is whether it may now intervene, appearing
specially, and seek immunity. In the absence of consent expressed
or implied, the court will not take jurisdiction of a suit against a
sovereign or permit its property to be attached. Berizzi Bros. Co. v.
S. S. Pesaro, 271 U.S. 562, 46 S. Ct. 611, 70 L. Ed. 1088; Oliver
American Trading Co. v. Mexico, 5 F.(2d) 659 (C. C. A. 2); The Maipo,
259 F. 367 (D. C. N. Y.). But, where a sovereign invokes the
jurisdiction of the court, appears voluntarily, and pleads to a
counterclaim interposed, contesting the merits of the respective
claims until judgment is rendered against it, the court has
jurisdiction, and there is both a waiver of immunity and a consent
to the exercise of the jurisdiction. Richardson v. Fajardo Sugar
Co., 241 U.S. 44, 36 S. Ct. 476, 60 L. Ed. 879; Porto Rico v.
Ramos, 232 U.S. 627, 34 S. Ct. 461, 58 L. Ed. 763; The Sao Vicente,
295 F. 829 (C. C. A. 3); The Sao Vicente, 281 F. 111 (C. C. A. 2). If
the jurisdiction of the court continues in effect until the judgment is

17 | P a m p a t s
satisfied, the parties who have thus voluntarily appeared and
submitted to the jurisdiction are normally subject to its mandates,
and the successful litigant is entitled to the fruits of the litigation. In
Riggs v. Johnson County, 6 Wall. 166, 187, 18 L. Ed. 768, the court
said:
"Jurisdiction is defined to be the power to hear and determine the
subject-matter in controversy in the suit before the court, and the
rule is universal, that if the power is conferred to render the
judgment or enter the decree, it also includes the power to issue
proper process to enforce such judgment or decree. * * *
"Express determination of this court is, that the jurisdiction of a
court is not exhausted by the rendition of the judgment, but
continues until that judgment shall be satisfied. Consequently, a
writ of error will lie when a party is aggrieved in the foundation,
proceedings, judgment or execution of a suit in a court of record. *
**
*708 "Process subsequent to judgment is as essential to jurisdiction
as process antecedent to judgment, else the judicial power would
be incomplete and entirely inadequate to the purposes for which it
was conferred by the Constitution." Central Nat. Bank v.
Stevens,169 U.S. 432, 18 S. Ct. 403, 42 L. Ed. 807; Bank of United
States v. Halstead, 10 Wheat. 51, 6 L. Ed. 264.
In Pam-to-pee v. United States, 187 U.S. 371, 383, 23 S. Ct. 142,
147, 47 L. Ed. 221, the court approved the language of Taney, C. J.,
in Gordon v. United States, 117 U.S. 697, 702, saying:
"The award of execution is a part, and an essential part, of every
judgment passed by a court exercising judicial power. It is no
judgment, in the legal sense of the term, without it. Without such
an award the judgment would be inoperative and nugatory, leaving
the aggrieved party without a remedy. It would be merely an
opinion, which would remain a dead letter, and without any
operation upon the rights of the parties. * * *"
This execution is directed against the moneys held in the National
City Bank of New York, also against debts owing to the government
of Sweden by the Swedish American Line, and the testimony is that
the debts represent advances made by the Swedish government.

But the question presented is whether execution may issue on this


judgment against this sovereign power's property because the
court acquired jurisdiction by expressed or implied consent. And
does the jurisdiction of the court continue in effect until its
judgment is satisfied even against this sovereign power, though a
plea of immunity is interposed against such execution?
The judgment is entered against Sweden, as a litigant under a
name of its own selection, representing it to be a corporation. A
judgment should be enforced against a debtor upon proof of the
litigant's true identity. All concede that Kunglig Jarnvagsstyrelsen
and the government of Sweden are one and the same. The Swedish
government is in fact a governmental corporation. If a defendant
appears in a suit by incorrect name and does not plead in
abatement, and judgment is rendered against him, the judgment is
fully binding upon him, and he may be connected with the
judgment. Grannis v. Ordean, 234 U.S. 385, 34 S. Ct. 779, 58 L. Ed.
1363; B. & P. R. Co. v. Fifth Baptist Church, 137 U.S. 568, 11 S. Ct.
185, 34 L. Ed. 784; Lafayette Ins. Co. v. French, 18 How. 404, 15 L.
Ed. 451.
But consenting to be sued does not give consent to a seizure or
attachment of the property of a sovereign government. The clear
weight of authority in this country, as well as that of England and
Continental Europe, is against all seizures, even though a valid
judgment has been entered. To so hold is not depriving our own
courts of any attribute of jurisdiction. It is but recognizing the
general international understanding, recognized by civilized
nations, that a sovereign's person and property ought to be held
free from seizure or molestation at all peaceful times and under all
circumstances. Nor is this in derogation of the dignity owed to our
courts.
When a sovereignty voluntarily appears in our court, it assumes the
character of a private suitor. The Thekla, 266 U.S. 328, 45 S. Ct.
112, 69 L. Ed. 313. This role as a litigant has been, however, limited
to litigating the controversy. An interesting article discussing this
subject is found at page 566 of the American Journal of
International Law, vol. 22. The courts have been reluctant to seize
property of a foreign government even where the government has
consented to the jurisdiction for the purpose of litigating a claim.

18 | P a m p a t s
The basis of this is that giving such consent to litigation does not
thereby give consent to an indiscriminate seizure of the property to
satisfy the judgment. A report of the committee of jurists of the
League of Nations (1927), found at page 743 of the American
Journal of International Law, vol. 21, considers the question of the
competence of the courts in regard to foreign states. The French
doctrine, established by the decision of the Court of Cassation in
the case of Lambege & Ponget v. Spanish government, which was a
suit for breach of contract for the sale of merchandise, decides that
one who enters into a civil contract with a foreign state or
sovereignty, implicitly agrees to abide by the civil competence and
jurisdiction of the foreign courts, but the later French decisions
draw a distinction between the public and private acts of a state,
not, however, to the extent of permitting a seizure of state property
in causes of action arising out of the acts regarded as private.
[1] The German *709 court, in Von Hellfeld v. Imperial Russian
Government,[2] refused to issue an execution to enforce a judicial
decree and pointed out that, even though Russia consented to the
jurisdiction and a counterclaim was interposed, it must be limited to
the judicial determination of the question of law and stopped short
of execution of the judgment. Italy limits the scope of sovereign
immunity and permits seizure of property of a foreign government.
This, however, rests upon a theory of reciprocity. The basis of a
decree in the cited case appears to be that immunity may be
granted only where the foreign sovereign will extend similar
immunity to Italy.[3] In Switzerland, an attachment is considered
proper, and it seems to be controlled by a statute permitting the
enforcement of judgments of the Swiss Tribunal against foreign
states.[4] In Re Suarez, [1917] 2 Ch. 131, the Bolivian minister in
England was appointed administrator of an intestate estate in
England. He was sued by one of the beneficiaries, waived his
diplomatic immunity and submitted to jurisdiction. Judgment went
against him; he refused to pay it, and, when an application was
made for a writ of execution, he asserted his immunity. It was held,
by Mr. Justice Eve that he was still entitled to claim his immunity at
execution. A similar ruling is to be found in Re Republic of Bolivia
Exploration Syndicate, Limited, [1914] 1 Ch. 139, where an action
for damages was brought against directors of a defunct corporation
for misfeasance in office. One of the directors claimed his privilege
as secretary to the Peruvian Legation. The court said that no

judgment or execution could be enforced or levied against him.


See, also, In re The Tervaete (1922) Provate, 197, 203. It was held
in The Parlement Belge, L. R. 5 P. D. 197, 207-214, that the courts
of England had no jurisdiction under the laws of England to
interfere with the property of a foreign sovereign, the court saying:
"The principle to be deduced from all these cases is that, as a
consequence of the absolute independence of every sovereign
authority, and of the international comity which induces every
sovereign state to respect the independence and dignity of every
other sovereign state, each and every one declines to exercise by
means of its Courts any of its territorial jurisdiction over the person
of any sovereign or ambassador of any other state or over the
public property of any state which is destined to public use, or over
the property of any ambassador. * * *"
In Duff Development Co., Limited, v. Government of Kelantan and
the Crown Agents for the Colonies, Garnishees, [1923] 1 Ch. 385,
House of Lords, [1924] A. C. 797, it was held that an execution
could not be taken out on the arbitrator's award although by
statute that award had the effect of judgment. One Law Lord
dissented.
The Supreme Court, in Beers v. Arkansas, 20 How. 529, 15 L. Ed.
991, pointed out that permission to be sued may be voluntary on
the part of the sovereignty, and it may prescribe the terms and
conditions on which it consents to be sued and the manner in which
the suit may be conducted and may withdraw its consent whenever
it may suppose that justice to the public requires it. Our courts
have recognized that jurisdiction may be conferred for the purpose
of the rendition of a verdict and entry of judgment only. Memphis &
C. Railroad Co. v. Tennessee, 101 U.S. 337, 25 L. Ed. 960; Carter v.
State, 42 La. Ann. 927, 8 So. 836, 21 Am. St. Rep. 404;
Westinghouse Electric Co. v. Chambers (1915) 169 Cal. 131, 145 P.
1025. In such cases, when judgment has been rendered and the
liability judicially ascertained, the power of the courts ends and the
sovereign is at liberty to determine for itself whether or not to pay
the judgment. In Oliver American Trading Co. v. Mexico, 5 F.(2d)
659, 667, this court, in vacating an attachment issued against the
government of Mexico, said:

19 | P a m p a t s
"The property sought to be reached in this country is the public
property of Mexico, and is movable property, which that
government holds for public purposes, and, being such, it is entitled
to the same immunity as a sovereign, or an ambassador, or a ship
of war, and for the same reason. The exercise of such jurisdiction
by the courts of this country is inconsistent with the independence
and sovereignty of Mexico."
*710 See, also, French Republic v. Inland Navigation Co. (D. C.) 263
F. 410.
In Virginia v. West Virginia, 246 U.S. 565, 38 S. Ct. 400, 62 L. Ed.
883, the Supreme Court had original jurisdiction, pursuant to article
3, 2, cl. 2, of the Constitution, and the question was presented as
to the means of enforcing a decree of that court. It was a case
between two states. By ratifying the Constitution, these states
forever waived their sovereign immunity and yielded to the
jurisdiction of the Supreme Court so far as it concerns actions
brought against them by other sovereign states. The court had full
jurisdiction, and the state retained no right to object to being sued.
Rhode Island v. Massachusetts, 12 Pet. 657, 9 L. Ed. 1233. The
Supreme Court held that such a judgment could be followed by
execution against a state, and this, for the reason that it possessed
none of the attributes of sovereignty so far as the suit by a sister
state is concerned. But this is not a precedent for holding that an
execution may issue against property of a foreign state. The
national courts have always respected the immunity of a foreign
state from coercive jurisdiction, and the Constitution, art. 3, 2,
and U. S. Code, title 28, 41 (28 USCA 41), which gives the
District Court jurisdiction of actions between the citizens of a state
and foreign states, is necessarily limited by the right of the
sovereign state to plead immunity. The Pesaro, 255 U.S. 216, 41 S.
Ct. 308, 65 L. Ed. 592.
The Swedish minister has made the declaration, in the plea of
immunity, that these properties "are public funds of the kingdom of
Sweden owned by it in its capacity as a sovereign and employed by
it for public governmental functions." Appellant's counsel refers to
these funds as "apparently deposited there for the purpose of
meeting payments on the Swedish national debt," and the
testimony is that the moneys owed by the Swedish American Line

represent advances made by the Swedish government for the


purpose of building up its merchant marine. The declaration of the
minister to Sweden is sufficient to characterize the funds as for
governmental use. Oliver American Trading Co. v. Mexico, supra;
The Pesaro, supra. It is not essential to the jurisdiction of the court
to determine a controversy that it possessed the power of
execution or be able to carry into effect the relief granted in the
determination of the litigation. Old Colony Trust Co. v. Com'r of Int.
Rev., 279 U.S. 716, 49 S. Ct. 499, 73 L. Ed. 918; Fidelity Nat. Bank v.
Swope, 274 U.S. 123, 47 S. Ct. 511, 71 L. Ed. 959.
As indicative of the policy of Sweden toward the doctrine of
sovereign immunity, a letter is referred to, written by an officer of
Sweden, answering an inquiry of the League of Nations. The
position of Sweden, there set forth, recognizes that the whole
subject of immunity is one that should be made the subject of an
international convention. In referring to the case law of Sweden, it
is stated that the Swedish courts have displayed a tendency not to
recognize such immunity in a case where the lawsuit arises out of
the commercial activity of the foreign state, but nothing is said as
to a policy which would permit forcible execution against public
property of the state. The railroads are a part of the public
property, and their operation is a governmental enterprise. Oliver
American Trading Co. v. Mexico, supra.
Whether a sovereign government permits itself to be sued in its
own courts has no bearing on whether it should be subject to suits
in the courts of another jurisdiction. Murray v. Wilson Distilling
Co., 213 U.S. 151, 29 S. Ct. 458, 53 L. Ed. 742.
Such weight of international authority should be respected as
establishing the common consent of civilized nations in the
formation of the international rule of law. The Paquete Habana, 175
U.S. 677, 20 S. Ct. 290, 44 L. Ed. 320; West Rand Co. v. Rex, L. R.
[1905] 2 K. B. 391.
It is regrettable that Sweden may thus escape payment of a valid
judgment against it. Appellant has been misled in the belief that
this plaintiff was a separate entity apart from the government and
now, when a sufficient number of years has passed making possible
a plea of limitation or laches against suing in Sweden (see letter to

20 | P a m p a t s
the League of Nations), appellee appears and pleads its sovereign
immunity. Whatever may be appellant's remedy to collect its valid
judgment, it should not be necessary to resort to further litigation.
It is hoped that the judgment of our courts will be respected and
payment made by the Swedish government. But we are required to
affirm the order appealed from.
Order affirmed.
DIPLOMATIC IMMUNITY
REPUBLIC ACT No. 75
AN ACT TO PENALIZE ACTS WHICH WOULD IMPAIR THE PROPER
OBSERVANCE BY THE REPUBLIC AND INHABITANTS OF THE
PHILIPPINES OF THE IMMUNITIES, RIGHT, AND PRIVILEGES OF DULY
ACCREDITED FOREIGN DIPLOMATIC AND CONSULAR AGENTS IN THE
PHILIPPINES
Section 4. Any writ or process sued out or prosecuted by any
person in any court of the Republic of the Philippines, or by any
judge or justice, whereby the person of any ambassador or public
minister of any foreign State, authorized and received as such by
the President, or any domestic or domestic servant of any such
ambassador or minister is arrested or imprisoned, or his goods or
chattels are distrained, seized, or attached, shall be deemed void,
and every person by whom the same is obtained or prosecuted,
whether as party or as attorney, and every officer concerned in
executing it, shall upon conviction, be punished by imprisonment
for not more than three years and a fine of not exceeding two
hundred pesos in the discretion of the court.
KHOSROW MINUCHER, petitioner, vs. HON. COURT OF APPEALS and
ARTHUR SCALZO, respondents
FACTS:
Khosrow Minucher, an Iranian national and a Labor Attach for the
Iranian Embassies in Tokyo, Japan and Manila came to the country
to study in 1974 and continued to stay as head of the Iranian
National Resistance Movement.

In May 1986, Minucher was charged with an Information for


violation of Republic Act No. 6425, Dangerous Drugs Act of 1972.
The criminal charge followed a buy-bust operation conducted by
the Philippine police narcotic agents in his house where a quantity
of heroin was said to have been seized. The narcotic agents were
accompanied by private respondent Arthur Scalzo who became one
of the principal witnesses for the prosecution.
In August 1988, Minucher filed Civil Case before the Regional Trial
Court (RTC) for damages on the trumped-up charges of drug
trafficking made by Arthur Scalzo.

ISSUE:
WON private respondent Arthur Scalzo can be sued provided his
alleged diplomatic immunity conformably with the Vienna
Convention on Diplomatic Relations
RULING:
The SC DENIED the petition.
Conformably with the Vienna Convention, the functions of the
diplomatic mission involve, the representation of the interests of
the sending state and promoting friendly relations with the
receiving state. Only diplomatic agents, are vested with blanket
diplomatic immunity from civil and criminal suits. 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. Being an Attache, Scalzos 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. He is not
generally regarded as a member of the diplomatic mission. On the
basis of an erroneous assumption that simply because of the
diplomatic note, divesting the trial court of jurisdiction over his
person, his diplomatic immunity is contentious.
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

21 | P a m p a t s
long-standing rule of customary international law. 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.
The implication 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
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.
The buy-bust operation and other such acts are 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. 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.
WHO v AQUINO
Facts:
Dr. Leonce Verstuyft was assigned by WHO to its regional office in
Manila as Acting Assistant Director of Health Services. His personal
effects, contained in twelve (12) crates, were allowed free entry
from duties and taxes. Constabulary Offshore Action Center
(COSAC) suspected that the crates contain large quantities of
highly dutiable goods beyond the official needs of Verstuyft. Upon

application of the COSAC officers, Judge Aquino issued a search


warrant for the search and seizure of the personal effects
of Verstuyft.
Secretary of Foreign Affairs Carlos P. Romulo advised Judge Aquino
that Dr. Verstuyft is entitled to immunity from search in respect for
his personal baggage as accorded to members of diplomatic
missions pursuant to the Host Agreement and requested that the
search warrant be suspended. The Solicitor General accordingly
joined Verstuyft for the quashal of the search warrant but
respondent judge
nevertheless
summarily
denied
the
quashal. Verstuyft, thus, filed a petition for certiorari and
prohibition with the SC. WHO joined Verstuyft in asserting
diplomatic immunity.
Issue:
Whether or not personal effect of Verstuyft can be exempted from
search and seizure under the diplomatic immunity.
Held:
Yes. The executive branch of the Phils has expressly recognized
that Verstuyft is entitled to diplomatic immunity, pursuant to the
provisions of the Host Agreement. The DFA formally advised
respondent judge of the Philippine Government's official position.
The Solicitor General, as principal law officer of the gorvernment,
likewise expressly affirmed said petitioner's right to diplomatic
immunity and asked for the quashal of the search warrant.
It is a recognized principle of international law and under our
system of separation of powers that diplomatic immunity is
essentially a political question and courts should refuse to look
beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is
recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the courts to
accept the claim of immunity upon appropriate suggestion by the
principal law officer of the government, the Solicitor General in this
case, or other officer acting under his discretion. Courts may not so
exercise their jurisdiction by seizure and detention of property, as

22 | P a m p a t s
to embarass the executive arm of the government in conducting
foreign
relations.
The Court, therefore, holds the respondent judge acted without
jurisdiction and with grave abuse of discretion in not ordering the
quashal of the search warrant issued by him in disregard of the
diplomatic immunity of petitioner Verstuyft. (World Health
Organization vs. Aquino, G.R. No. L-35131, November 29, 1972, 48
SCRA 243)
G.R. No. L-35131 November 29, 1972
THE WORLD HEALTH ORGANIZATION and DR. LEONCE
VERSTUYFT vs. HON. BENJAMIN H. AQUINO, as Presiding
Judge of Branch VIII, Court of First Instance of Rizal
Facts: The present petition is an original action for certiorari and
prohibition to set aside respondent judge's refusal to quash a
search warrant issued by him at the instance of respondents
Constabulary Offshore Action Center (COSAC) officers for the
search and seizure of the personal effects of Verstuyft of the WHO
(World Health Organization) notwithstanding his being entitled to
diplomatic immunity, as duly recognized by the Executive branch of
the government and to prohibit respondent judge from further
proceedings
in
the
matter.
The Secretary of Foreign Affairs Carlos P. Romulo pleaded to Hon.
Aquino that Dr. Verstuyft is entitled to immunity from search in
respect for his personal baggage as accorded to members of
diplomatic missions pursuant to the Host Agreement and further
requested for the suspension of the search warrant. The Solicitor
General accordingly joined the petitioner for the quashal of the
search warrant but respondent judge nevertheless summarily
denied
the
quash
hence,
the
petition
at
bar.

Issue: Whether or not personal effect of WHO Officer Dr. Verstuyft


can be exempted from search and seizure under the diplomatic
immunity.

Ruling: The executive branch of the Phils has expressly recognized


that Verstuyft is entitled to diplomatic immunity, pursuant to the
provisions of the Host Agreement. The DFA formally advised
respondent judge of the Philippine Government's official position.
The Solicitor General, as principal law officer of the gorvernment,
likewise expressly affirmed said petitioner's right to diplomatic
immunity and asked for the quashal of the search warrant.
The unfortunate fact remains that respondent judge chose to rely
on the suspicion of respondents COSAC officers "that the other
remaining crates unopened contain contraband items"
The provisions of Republic Act 75 declares as null and void writs or
processes sued out or prosecuted whereby inter alia the person of
an ambassador or public minister is arrested or imprisoned or his
goods or chattels are seized or attached and makes it a penal
offense for "every person by whom the same is obtained or
prosecuted, whether as party or as attorney, and every officer
concerned in executing it" to obtain or enforce such writ or process.
The Court, therefore, holds the respondent judge acted without
jurisdiction and with grave abuse of discretion in not ordering the
quashal of the search warrant issued by him in disregard of the
diplomatic immunity of petitioner Verstuyft. The writs of certiorari
and prohibition from the petitioners were granted.
G.R. No. L-44896

July 31, 1936

RODOLFO A. SCHNECKENBURGER vs. MANUEL V. MORAN,


Judge of First Instance of Manila
Facts: This petition is for a writ of prohibition overruled with a view
to preventing the Court of First Instance of Manila from taking
cognizance of the criminal action filed against him. The petitioner
was an accredited honorary consul of Uruguay at Manila. He was
charged in the Court of First Instance of Manila of falsification of a
private document. He objected to the jurisdiction of the court on
the ground that both under the Constitution of the United States
and the Constitution of the Philippines the court below had no
jurisdiction to try him. His objection was overruled hence this
present petition.

23 | P a m p a t s
Issue: Whether or not the Court of First Instance of Manila has
jurisdiction to try the petitioner.
Ruling: The counsel for the petitioner contend that the CIF of Manila
has no jurisdiction according to Aticle III Sec. 2 of the United States
Constitution which stipulated that the Supreme Court of the United
States has original jurisdiction in all cases affecting ambassadors,
public ministers, and consuls, and such jurisdiction which excludes
the courts of the Philippines and that that such jurisdiction is
conferred exclusively upon the Supreme Court of the Philippines.
Although section 17 of Act No. 136 vests in the Supreme Court the
original jurisdiction to issue writs of mandamus, certiorari,
prohibition, habeas corpus, and quo warranto, such jurisdictiona
was also conferred on the Courts of First Instance by the Code of
Civil Procedure. (Act No. 190, secs. 197, 217, 222, 226, and 525.) It
results that the original jurisdiction possessed and exercised by the
Supreme Court of the Philippine Islands was not exclusive of, but
concurrent with, that of the Courts of First Instance. Hence, the
Court of Instance has jurisdiction over the petitioner.
Scheneckerburger vs. Moran, 63 Phil. 249 (1943)
FACTS: Schneckenburger, who is an honorary consul of Uruguay at
Manila was subsequently charged in CFI-Manila with the crime of
falsification of a private document. He objected to this
saying that under the US and Philippine Constitution, the CFI has no
jurisdiction to try him. After his objection was overruled, he filed a
petition for a writ of prohibition to prevent the CFI from taking
cognizance of the criminal action filed against him. Aside from this,
he contended that original jurisdiction over cases affecting
ambassadors and consuls is conferred exclusively
upon the Supreme Court of the Philippines.
ISSUES:
1. Whether or not the US Supreme Court has Original Jurisdiction
over cases affecting ambassadors, consuls, et. al and such
jurisdiction excludes courts of the Phils.
No. First of all, a consul is not entitled to the privilege of diplomatic
immunity. A consul is not exempt from criminal prosecution for
violations of the laws of the country where he resides. The

inauguration of the Philippine Commonwealth on Nov. 15, 1935


caused the Philippine Constitution to go into full force and effect.
This Constitution is the supreme law of the land. This Constitution
provides that the original jurisdiction of this court shall include all
cases affecting ambassadors, consuls et.al.
2. Whether or not original jurisdiction over cases affecting
ambassadors, consuls, et. al. is conferred exclusively upon the
Supreme Court of the Philippines
The Supreme Court shall have original and appellate jurisdiction as
may be possessed and exercised by themSupreme Court of the
Philippines at the time of the adoption of this constitution.
According to Sec. 17. of Act No. 136 and by virtue of it, jurisdiction
to issue writs of quo warranto, certiorari, mandamus, prohibition
and habeas corpus was also conferred on the CFIs. As a result, the
original jurisdiction possessed and exercised by the Supreme Court
of the Philippines at the time the Constitution was adopted was not
exclusive of, but concurrent with, that of the CFIs. The original
jurisdiction conferred to Supreme Court by the Constitution was not
an exclusive jurisdiction.
Judgment: CFI has jurisdiction to try the petitioner, and the petition
for a writ of prohibition must be denied.
Schneckenburger v Moran (Civil Procedure)
SCHNECKENBURGER v MORAN
G.R. No. L-44896
July 31, 1936
ABAD SANTOS, J.:
FACTS:
The petitioner was duly accredited honorary consul of Uruguay at
Manila, Philippine Islands on June 11, 1934. He was subsequently
charged in the Court of First Instance of Manila with the crime of
falsification of a private document. He objected to the jurisdiction
of the court on the ground that both under the Constitution of the
United States and the Constitution of the Philippines the court

24 | P a m p a t s
below had no jurisdiction to try him.
In support of this petition counsel for the petitioner contend
(1) That the Court of First Instance of Manila is without jurisdiction
to try the case filed against the petitioner for the reason that under
Article III, section 2, of the Constitution of the United States, the
Supreme Court of the United States has original jurisdiction in all
cases affecting ambassadors, other public ministers, and consuls,
and such jurisdiction excludes the courts of the Philippines; and
(2) that even under the Constitution of the Philippines original
jurisdiction over cases affecting ambassadors, other public
ministers, and consuls, is conferred exclusively

upon the Supreme Court of the Philippines.


DECISION OF LOWER COURTS:
*CFI: overruled his motion.
Hence, he filed this PETITION FOR A WRIT OF PROHIBITION with a
view to preventing the Court of First Instance of Manila from taking
cognizance of the criminal action filed against him.
ISSUE:
WON that the Court of First Instance of Manila has jurisdiction to try
the petitioner and not the SC as provided in the constitution
HELD:
YES.
the original jurisdiction possessed and exercised by the Supreme
Court of the Philippine Islands at the time of the adoption of the

Constitution was NOT exclusive.


The Constitution of the United States provides that the Supreme
Court shall have "original jurisdiction" in all cases affecting
ambassadors, other public ministers, and consuls. In construing this
constitutional provision, the Supreme Court of the United States
held that the "original jurisdiction thus conferred upon the Supreme
Court by the Constitution was not exclusive jurisdiction, and that
such grant of original
The laws in force in the Philippines prior to the inauguration of the
Commonwealth conferred upon the Courts of the First Instance
original jurisdiction in all criminal cases to which a penalty of more
than six months' imprisonment or a fine exceeding one hundred
dollars might be imposed. (Act No. 136, sec. 56.) Such jurisdiction
included the trial of criminal actions brought against consuls for, as
we have already indicated, consuls, not being entitled to the
privileges and immunities of ambassadors or ministers, are subject
to the laws and regulations of the country where they reside
jurisdiction did not prevent Congress from conferring original
jurisdiction in cases affecting consuls on the subordinate courts of
the Union.
OTHER NOTES:
1. This case involves no question of diplomatic immunity. It is well
settled that a consul is not entitled to the privileges and immunities
of an ambassador or minister, but is subject to the laws and
regulations of the country to which he is accredited. A consul is not
exempt from criminal prosecution for violations of the laws of the
country where he resides.