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2 | Pampats
The Supreme Court grants the petition and reversed the decision of
the Court of Appeals.
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.
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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
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.
4 | Pampats
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
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
5 | Pampats
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
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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.
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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
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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.
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
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.
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There are two conflicting concepts of sovereign immunity,
according to the Supreme Court: (a) Classical or absolute theory
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.
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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
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.
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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
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
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. * * *
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.
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
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
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.
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
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.
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
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