SANDERS v VERIDIANO

GR L-46930
10 June 1988

DOCTRINE: Mere allegation that a government functionary is being sued in his personal capacity
will not automatically remove him from the protection of the law of public officers and, if
appropriate, the doctrine of state immunity.

SUMMARY: Private Respondents had been advised that their employment had been converted
from permanent full-time to permanent part-time. They protested this conversion and instituted
grievance proceedings where the hearing officer recommended that private respondents be
reinstated. Petitioner Sanders disagreed with this and wrote Petitioner Moreau (commanding
general of the U.S. Naval Station in Subic Bay) a letter containing the statements that a) "Mr.
Rossi tends to alienate most co-workers and supervisors;" b) "Messrs. Rossi and Wyers have
proven, according to their immediate supervisors, to be difficult employees to supervise;" and c)
"even though the grievants were under oath not to discuss the case with anyone, (they) placed
the records in public places where others not involved in the case could hear." Private
Respondent filed in the CFI a case for damages against Petitioners. They claimed that the letters
contained libelous statements. Respondents made it clear that Petitioners were being sued in
their private/personal capacity. In the motion to dismiss, Petitioners argued that their acts which
were complained of were performed by them in the discharge of their official duties so the court
had no jurisdiction over them based on the doctrine of state immunity. The motion to dismiss was
denied on the ground that petitioners had not presented any evidence that their acts were
official in nature and not personal torts.

The issue in this case is whether Petitioners acted in their official capacity and the Court held that
yes, they did. The Court has held that where the character of the act complained of can be
determined from the pleadings exchanged between the parties before the trial, it is not
necessary for the court to require them to belabor the point at a trial still to be conducted since
doing so would be superfluous. It is clear in the present case that the acts for which the
petitioners are being called to account were performed by them in the discharge of their official
duties. Sanders, as director of the special services department of NAVSTA, undoubtedly had
supervision over its personnel. The letter he had written was in fact a reply to a request from his
superior, the other petitioner, for more information regarding the case of the private
respondents. Moreover, even in the absence of such request, he still was within his rights in
reacting to the hearing officer's criticism—in effect a direct attack against him—-that Special
Services was practicing "an autocratic form of supervision."

As they have acted on behalf of that government, and within the scope of their authority, it is
that government, and not the petitioners personally, that is responsible for their acts. Assuming
that the trial can proceed and it is proved that the claimants have a right to the payment of
damages, such award will have to be satisfied not by the petitioners in their personal capacities
but by the United States government as their principal. This will require that government to
perform an affirmative act to satisfy the judgment, viz, the appropriation of the necessary
amount to cover the damages awarded, thus making the action a suit against that government
without its consent.
FACTS:
Petitioner Sanders was the special services director of the US Naval Station (NAVSTA) in
Olongapo City. Petitioner Moreau was the commanding officer of the Subic Naval Base, which
includes the said station. Private respondent Rossi is an American citizen with permanent
residence in the Philippines and so was private respondent Wyer (died 2 yrs prior to the writing of
this case). The respondents were employed as gameroom attendants in the special services
department of NAVSTA in 1971 and 1969 respectively.

Private respondents had been advised that their employment had been converted from
permanent full-time to permanent part-time. They protested this conversion and instituted
grievance proceedings based on the US Dept of Defense’s rules and regulations. The hearing
officer recommended that the private respondents be reinstated. Petitioner Sanders disagreed
with this recommendation and asked for the rejection of such. Petitioner Sanders wrote
Petitioner Moreau a letter containing the statements that a) "Mr. Rossi tends to alienate most co-
workers and supervisors;" b) "Messrs. Rossi and Wyers have proven, according to their immediate
supervisors, to be difficult employees to supervise;" and c) "even though the grievants were
under oath not to discuss the case with anyone, (they) placed the records in public places
where others not involved in the case could hear." Before the start of the grievance hearings, a
letter purportedly corning from petitioner Moreau as the commanding general of the U.S. Naval
Station in Subic Bay was sent to the Chief of Naval Personnel explaining the change of the
private respondent's employment status and requesting concurrence therewith.

Private Respondent filed in the CFI a case for damages against Petitioners. They claimed that
the letters contained libelous statements that had exposed them to ridicule and caused them
mental anguish; that the prejudgment of the grievance proceedings was an invasion of their
personal and proprietary rights.

Respondents made it clear that Petitioners were being sued in their private/personal capacity. In
the motion to dismiss, Petitioners argued that their acts which were complained of were
performed by them in the discharge of their official duties so the court had no jurisdiction over
them based on the doctrine of state immunity.

The motion to dismiss was denied on the ground that petitioners had not presented any
evidence that their acts were official in nature and not personal torts, moreover, the allegation
in the complaint was that the defendants (petitioners) had acted maliciously and in bad faith.

ISSUE: Whether petitioners were acting in an official capacity when they did the acts
complained of

HELD: YES.
Mere allegation that a government functionary is being sued in his personal capacity will not
automatically remove him from the protection of the law of public officers and, if appropriate,
the doctrine of state immunity. In the same sense, the mere invocation of official character will
not suffice to insuate him from the liability and suability of an act imputed to him as a personal
tort committed without or in excess of his authority.
The respondent judge, apparently finding that the complained acts were prima facie personal
and tortious, decided to proceed to trial to determine inter alia their precise character on the
strength of the evidence to be submitted by the parties. In past cases, the Court has held that
where the character of the act complained of can be determined from the pleadings
exchanged between the parties before the trial, it is not necessary for the court to require them
to belabor the point at a trial still to be conducted since doing so would be superfluous. al. In
several cases, the Court found it redundant to prolong the other case proceedings after it had
become clear that the suit could not prosper because the acts complained of were covered by
the doctrine of state immunity.

It is clear in the present case that the acts for which the petitioners are being called to account
were performed by them in the discharge of their official duties. Sanders, as director of the
special services department of NAVSTA, undoubtedly had supervision over its personnel,
including the private respondents, and had a hand in their employment, work assignments,
discipline, dismissal and other related matters. It is not disputed that the letter he had written was
in fact a reply to a request from his superior, the other petitioner, for more information regarding
the case of the private respondents. Moreover, even in the absence of such request, he still was
within his rights in reacting to the hearing officer's criticism—in effect a direct attack against
him—-that Special Services was practicing "an autocratic form of supervision."

The act of Moreau is clearly official in nature, performed by Moreau as the immediate superior of
Sanders and directly answerable to Naval Personnel in matters involving the special services
department of NAVSTA In fact, the letter dealt with the financial and budgetary problems of the
department and contained recommendations for their solution, including the re-designation of
the private respondents. There was nothing personal or private about it.

As they have acted on behalf of that government, and within the scope of their authority, it is
that government, and not the petitioners personally, that is responsible for their acts. Assuming
that the trial can proceed and it is proved that the claimants have a right to the payment of
damages, such award will have to be satisfied not by the petitioners in their personal capacities
but by the United States government as their principal. This will require that government to
perform an affirmative act to satisfy the judgment, viz, the appropriation of the necessary
amount to cover the damages awarded, thus making the action a suit against that government
without its consent. Such complaint cannot prosper unless the government sought to be held
ultimately liable has given its consent to be sued.

Even under the law of public officers, the acts of the petitioners are protected by the
presumption of good faith, which has not been overturned by the private respondents. Even
mistakes concededly committed by such public officers are not actionable as long as it is not
shown that they were motivated by malice or gross negligence amounting to bad faith.

Furthermore, applying our own penal laws, the letters come under the concept of privileged
communications and are not punishable, let alone the fact that the resented remarks are not
defamatory by our standards.
This is not to say that in no case may a public officer be sued as such without the previous
consent of the state. To be sure, there are a number of well-recognized exceptions.
1) It is clear that a public officer may be sued as such to compel him to do an act required
by law, as where, say, a register of deeds refuses to record a deed of sale; or
2) to restrain a Cabinet member, for example, from enforcing a law claimed to be
unconstitutional; or
3) to compel the national treasurer to pay damages from an already appropriated
assurance fund; or
4) the commissioner of internal revenue to refund tax over-payments from a fund already
available for the purpose; or,
5) in general, to secure a judgment that the officer impleaded may satisfy by himself
without the government itself having to do a positive act to assist him.
6) Where the government itself has violated its own laws, the aggrieved party may directly
implead the government even without first filing his claim with the Commission on Audit
as normally required, as the doctrine of state immunity "cannot be used as an instrument
for perpetrating an injustice."

UNITED STATES OF AMERICA V. GUINTO

182 SCRA 644
26 February 1990

DOCTRINE:
 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.
 JURE GESTIONIS – by right of economic or business relations, may be sued. (US vs Guinto)
 JURE IMPERII – by right of sovereign power, in the exercise of sovereign functions. No
implied consent. (US v. Ruiz)

NATURE OF THE CASE:

 These cases have been consolidated because they all involve the doctrine of state
immunity.
 The United States of America was not impleaded in the complaints below but has moved
to dismiss on the ground that they are in effect suits against it to which it has not
consented. It is now contesting the denial of its motions by the respondent judges.

FACTS:
 US v. GUINTO (GR No. 76607)
o The private respondents are suing several officers of the US Air Force in Clark Air
Base in connection with the bidding conducted by them for contracts for barber
services in the said base which was won by a certain Dizon.
o The respondents wanted to cancel the award to the bid winner because they
claimed that Dizon had included in his bid an area not included in the invitation
to bid, and subsequently, to conduct a rebidding.

 USA vs RODRIGO (GR No. 79470)

o Fabian Genove filed a complaint for damages against petitioners Lamachia,
Belsa, Cartalla and Orascion for his dismissal as cook in the US Air Force
Recreation Center at Camp John Hay Air Station in BaguioCity. It had been
 ascertained after investigation, from the testimony of Belsa, Cartalla and
Orascion, that Genove had poured urine into the soup stock used in cooking the
vegetables served to the club customers.
o Lamachia, as club manager, suspended him and thereafter referred the case to
a board of arbitrators conformably to the collective bargaining agreement
between the center and its employees.
o The board unanimously found him guilty and recommended his dismissal.
o Genove’s reaction was to file his complaint against the individual petitioners.

 USA vs CEBALLOS (GR No. 80018)

o Luis Bautista, who was employed as a barracks boy in Cano O’ Donnell, an
extension of Clark Air Bas, was arrested following a buy-bust operation
conducted by the individual petitioners who are officers of the US Air Force and
special agents of the Air Force Office of Special Investigators.
o On the basis of the sworn statements made by them, an information for violation
of R.A. 6425, otherwise known as the Dangerous Drugs Act, was filed against
Bautista in the RTC of Tarlac.
o Said officers testified against him at his trial. Bautista was dismissed from his
employment. He then filed a complaint against the individual petitioners claiming
that it was because of their acts that he was removed.

 USA VS VERGARA (GR NO. 80258)

o a complaint for damages was filed by the private respondents against the herein
petitioners (except the US), for injuries sustained by the plaintiffs as a result of the
acts of the defendants.
o There is a conflict of factual allegations here. According to the plaintiffs, the
defendants beat them up, handcuffed them and unleashed dogs on them
which bit them in several parts of their bodies and caused extensive injuries to
them. The defendants deny this and claim that plaintiffs were arrested for theft
and were bitten by the dogs because they were struggling and resisting arrest.
o In a motion to dismiss the complaint, the US and the individually named
defendants argued that the suit was in effect a suit against the US, which had not
given its consent to be sued.

WHETHER THE DEFENDANTS WERE ALSO IMMUNE FROM SUIT UNDER THE RP-US BASES TREATY FOR
ACTS DONE BY THEM IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES.
1. The rule that a State may not be sued without its consent is one of the generally
accepted principles of international law that were have adopted as part of the law of
our land. Even without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of incorporation. Under this
doctrine, as accepted by the majority of the states, such principles are deemed
incorporated in the law of every civilized state as a condition and consequence of its
membership in the society of nations. All states are sovereign equals and cannot assert
jurisdiction over one another.
2. While the doctrine appears to prohibit only suits against the state without its consent, it is
also applicable to complaints filed against officials of the states for acts allegedly
performed by them in the discharge of their duties.
3. The rule is that if the judgment against such officials will require the state itself to perform
an affirmative act to satisfy the same, the suit must be regarded as against the state
although it has not been formally impleaded.
4. When the government enters into a contract, it is deemed to have descended to the
level of the other contracting party and divested of its sovereign immunity from suit with
 its implied consent. In the case of US, the customary law of international law on state
immunity is expressed with more specificity in the RP-US Bases Treaty. There is no question
that the US, like any other state, will be deemed to have impliedly waived its non-suability
if it has entered into a contract in its proprietory or private capacity. It is only when the
contract involves its sovereign or governmental capacity that no such waiver may be
implied.
5. It is clear from a study of the records of GR No. 80018 that the petitioners therein were
acting in the exercise of their official functions when they conducted the buy-bust
operations against the complainant and thereafter testified against him at his trial. It
follows that for discharging their duties as agents of the US, they cannot be directly
impleaded for acts imputable to their principal, which has not given its consent to be
sued.
6. As for GR No. 80018, the record is too meager to indicate what really happened. The
needed inquiry first be made by the lower court so it may assess and resolve the
conflicting claims of the parties on the basis of evidence that has yet to be presented at
the trial.

In US vs GUINTO, the court finds the barbershops subject to the concessions granted by the US
government to be commercial enterprises operated by private persons. The Court would have
directly resolved the claims against the defendants as in USA vs RODRIGO, except for the
paucity of the record as the evidence of the alleged irregularity in the grant of the barbershop
concessions were not available. Accordingly, this case was remanded to the court below for
further proceedings.

In US vs RODRIGO, the restaurant services offered at the John Hay Air Station partake of the
nature of a business enterprise undertaken by the US government in its proprietary capacity, as
they were operated for profit, as a commercial and not a governmental activity. Not even the
US government can claim such immunity because by entering into the employment contract
with Genove in the discharge of its proprietary functions, it impliedly divested itself of its
sovereign immunity from suit. But, the court still dismissed the complaint against petitioners on the
ground that there was nothing arbitrary about the proceedings in the dismissal of Genove, as
the petitioners acted quite properly in terminating Genove’s employment for his unbelievably
nauseating act.

In US vs CEBALLOS, it was clear that the petitioners were acting in the exercise of their official
functions when they conducted the buy-bust operation and thereafter testified against the
complainant. For discharging their duties as agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which has not given its consent to be sued.

In US vs VERGARA, the contradictory factual allegations in this case need a closer study of what
actually happened. The record was too meager to indicate if the defendants were really
discharging their official duties or had actually exceeded their authority when the incident
occurred. The needed inquiry must first be made by the lower court so it may assess and resolve
the conflicting claims of the parties.
Republic of Indonesia v. Vinzon
G.R. No. 154705 | June 26, 2003

FACTS:
• Petitioner Republic of Indonesia entered into a Maintenance Agreement with respondent
Vinzon Trade and Services. Under the Agreement, respondent shall maintain specified
equipment at the Embassy Main Building, the official residence of the Ambassador. The
agreement was effective for a period of four years, automatically renewed unless cancelled
by either party by giving thirty days prior written notice from the date of expiry.

• Prior to the date of expiry, petitioners informed respondent that the renewal of the agreement
shall be at the discretion of the incoming Chief of Administration who allegedly found
respondents work and services unsatisfactory and not in compliance with the standards set in
the Agreement. Hence, the Indonesian Embassy terminated the agreement. Petitioners claim
that they had earlier verbally informed respondent of such decision. Respondent claims that
the termination was arbitrary and unlawful. Respondent cites various circumstances which
purportedly negated petitioners alleged dissatisfaction over respondents services.1

• Hence, respondent filed a complaint against petitioners in the RTC. Petitioners allege that the
Republic of Indonesia, as a foreign sovereign State, has sovereign immunity from suit and
cannot be sued in the Philippines. Said motion further alleged that Ambassador and Minister
Counsellor are diplomatic agents as defined under the Vienna Convention on Diplomatic
Relations and therefore enjoy diplomatic immunity. Respondent alleges that the Republic of
Indonesia has expressly waived its immunity from suit based on a provision2 in the Maintenance
Agreement. RTC denied Motion to Dismiss and the Motion for Reconsideration subsequently
filed.

• The RTC’s denial was brought up to the CA by petitioners in a petition for certiorari and
prohibition. Said petition alleged that the trial court gravely abused its discretion in ruling that
the Republic of Indonesia gave its consent to be sued and voluntarily submitted itself to the
laws and jurisdiction of Philippine courts and that Ambassador and Minister Counsellor waived
their immunity from suit. The CA rendered its assailed decision denying the petition for lack of
merit.

ISSUES:

WHETHER OR NOT PETITIONERS WAIVED THEIR IMMUNITY FROM SUIT BASED ON THE PROVISION IN
THE MAINTENANCE AGREEMENT - NO.

• 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 practical justification for the doctrine
of sovereign immunity is that there can be no legal right against the authority that makes the
law on which the right depends. In the case of foreign States, the rule is derived from the
principle of the sovereign equality of States, as expressed in the maxim par in parem non
habet imperium. All states are sovereign equals and cannot assert jurisdiction over one
another. A contrary attitude would unduly vex the peace of nations.

1
(a) Minister Counsellor still requested respondent to assign to the embassy an additional full-time worker to assist one of his other workers
(b) Minister Counsellor asked respondent to donate a prize on the occasion of the Indonesian Independence Day golf tournament
(c) Ambassador thanked respondent for sponsoring a prize and expressed his hope that the cordial relations happily existing between them will continue to prosper and
be strengthened in the coming years.
2
Any legal action arising out of this Maintenance Agreement shall be settled according to the laws of the Philippines and by the proper court of Makati City,
Philippines. Respondent likewise alleged that Ambassador and Minister Counsellor can be sued and held liable in their private capacities for tortious acts done with
malice and bad faith.
 • The increasing need of sovereign States to enter into purely commercial activities remotely
connected with the discharge of their governmental functions brought about a new
concept of sovereign immunity. This concept, the restrictive theory, holds that the immunity
of the sovereign is recognized only with regard to public acts or acts jure imperii, but not with
regard to private acts or acts jure gestionis.

• In US v. Ruiz, the Court held that the conduct of public bidding for the repair of a wharf at a
United States Naval Station is an act jure imperii. On the other hand, the Court considered as
an act jure gestionis the hiring of a cook in the recreation center catering to American
servicemen and the general public at the John Hay Air Station in Baguio, as well as the
bidding for the operation of barber shops in Clark Air Base.

• 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. Such is only the start of the inquiry.

• If the foreign State is not engaged regularly in a business or commercial activity, 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.

• Hence, 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. Submission by a foreign state to local jurisdiction must be clear and
unequivocal. It must be given explicitly or by necessary implication. There is no such waiver in
this case.

• The establishment of a diplomatic mission is an act jure imperii. 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.

• 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 ac units, generator
sets, etc. of the Indonesian Embassy and the official residence of the Indonesian
ambassador.

WHETHER OR NOT PETITIONER’S AMBASSADOR AND MINISTER COUNSELLOR MAY BE SUED HEREIN IN
THEIR PRIVATE CAPACITIES - NO.

Article 31 of the Vienna Convention on Diplomatic Relations provides:

1. A diplomatic agent shall enjoy immunity from the criminal jurisidiction of the receiving
State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in
the case of:
(a) a real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of the
mission;
 (b) an action relating to succession in which the diplomatic agent is involved as
executor, administrator, heir or legatee as a private person and not on behalf of the
sending State;
(c) an action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions.

• The act of petitioners Ambassador and Minister Counsellor in terminating the Maintenance
Agreement is not covered by the exceptions provided in the abovementioned provision.
Said act may fall under subparagraph (c) thereof, but said provision clearly applies only to a
situation where the diplomatic agent engages in any professional or commercial activity
outside official functions, which is not the case herein.

Minucher v CA
G.R. No. 97765 | September 24, 1992
Doctrine/s:
The doctrine of immunity from suit will not apply and may not be involved 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.
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 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.
Recit-Ready:
Petitioner, who was at that time the Labor Attache of the Embassy of Iran in the Philippines, filed
with the Regional Trial Court (RTC) of Manila a complaint for damages against private
respondent Arthur Scalzo, Jr. Private respondent, then connected with the American Embassy in
Manila and a DEA agent, was purportedly interested in buying Iranian products, namely caviar
and carpets. It turned out, however, that private respondent had prepared an elaborate plan
to frame-up the petitioner and Abbas Torabian for alleged heroin trafficking. Private respondent
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 stating that he was performing his official
functions as a DEA agent and hence enjoys immunity from suit. The issue in this case is whether
Scalzo can be tried here in the Philippines. The SC held YES. The complaint for damages filed by
the petitioner 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. The doctrine of
immunity from suit will not apply and may not be involved 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. 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 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.

Facts:
Petitioner filed with the Regional Trial Court (RTC) of Manila a complaint for damages against
private respondent Arthur Scalzo, Jr. Petitioner alleges therein that he was the Labor Attache of
the Embassy of Iran in the Philippines. Private respondent, then connected with the American
Embassy in Manila, was introduced to him by a certain Jose Iñigo, an informer belonging to the
military intelligence community, with whom petitioner had several business transactions involving
Iranian products like carpets, caviar and According to Iñigo, private respondent was
purportedly interested in buying Iranian products, namely caviar and carpets. On this same
occasion, petitioner complained to the private respondent about the problems the former was
then encountering with the American Embassy regarding the expired visas of his wife and fellow
Iranian, Abbas Torabian. Offering his help, private respondent gave the petitioner a calling card
showing that the former is an agent of the Drug Enforcement Administration (DEA), Department
of Justice, of the United States of America assigned to the American Embassy in Manila.

Private respondent also expressed his intent to purchase two (2) kilos of caviar worth P10,000.00
and informed the petitioner that he might have prospective buyers for these goods; he further
promised to arrange for the renewal of the aforesaid visas for a $2,000.00 fee. Private
respondent came to petitioner's residence and asked to be entrusted with a pair of Persian silk
carpets with a floor price of $24,000.00 each, for which he had a buyer. The following day,
private respondent returned to petitioner's residence, took the carpets and gave the latter
$24,000.00; after about an hour, private respondent returned, claimed that he had already
made arrangements with his contacts at the American Embassy concerning the visas and asked
for $2,000.00. It turned out, however, that private respondent had prepared an elaborate plan
to frame-up the petitioner and Abbas Torabian for alleged heroin trafficking; both were falsely
arrested by private respondent and some American and Filipino police officers, and were taken
to Camp Crame in their underwear. Consequently, the two were charged for the violation of
Section 4 of R.A. No. 6425 (Dangerous Drugs Act of 1972) before the Regional Trial Court of Pasig.
They were, however, acquitted by the said court

Private respondent's counsel, the law firm LUNA, SISON AND MANAS, filed a Special Appearance
and Motion alleging therein that since the private respondent is an agent of the Drug
Enforcement Administration of the United States of America, and the acts and omissions
complained of were performed by him in the performance of official functions private
respondent 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, 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:

". . . Arthur W. Scalzo, was a member of the diplomatic staff of the United States diplomatic
mission from his arrival in the Philippines. 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 plaintiff's 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 acts performed in the
exercise of his functions, as is the case here, even though he has departed (sic) the country."

W/N THE DIPLOMATIC NOTE ISSUED BY THE UNITED STATES CAN REMOVE THE JURSIDICTION OF THE
COURTS TO HEAR THE CASE - NO

The complaint for damages filed by the petitioner 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, on 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
and duties.

In the decision acquitting the 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 petitioner's 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.

Shauf v CA
“The doctrine of immunity from suit will not apply and may not be involved where the public
official is being sued in his private and personal capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of the government is removed the moment they are
sued in their individual capacity. This situation usually arises where the public official acts without
authority or in excess of the powers vested in him. It is a well-settled principle of law that a public
official may be liable in his personal private capacity for whatever damage he may have
caused by his act done with malice and in bad faith, or beyond the scope of his authority or
jurisdiction.”

Even Article 31 of the Vienna Convention on Diplomatic Relations admits of exceptions. It reads:
"1. 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:
xxx xxx xxx

(c) an action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions
There is of course the claim of private respondent that the acts imputed to him were done in his
official capacity. Nothing supports this self-serving claim other than the so-called Diplomatic
Note. In short, insofar as the records are concerned, private respondent 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 private respondent
offered evidence in support thereof.

USA v Guinto
“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 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.”

NICOLAS v. ROMULO
G.R. No. 175888
February 11, 2009

DOCTRINE: The rule in international law is that a foreign armed forces allowed to enter one’s
territory is immune from local jurisdiction, except to the extent agreed upon. The Status of Forces
Agreements involving foreign military units around the world vary in terms and conditions,
according to the situation of the parties involved, and reflect their bargaining power. But the
principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending
State only to the extent agreed upon by the parties.

FACTS:
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed
Forces. On December 4, 2006, the trial court found Smith guilty of raping a Filipina in 2005.
Pursuant to the Visiting Forces Agreement (VFA) entered into by the Philippines and the United
States, Smith shall serve his sentence in the facilities that shall, thereafter, be agreed upon by
appropriate Philippine and United States authorities. Pending agreement on such facilities, Smith
was temporarily committed to the Makati City Jail.

Later on, Smith was taken out of the Makati jail by a contingent of Philippine law enforcement
agents, purportedly acting under orders of the DILG, and brought to a facility for detention
under the control of the US government, provided for under new agreements between the
Philippines and the United States, referred to as the Romulo-Kenney Agreement of December
19, 2006.

(Note: Petitioners contend that the Philippines should have custody of defendant L/CPL Smith
because, first of all, the VFA is void and unconstitutional. This issue had been raised before, and
this Court resolved in favor of the constitutionality of the VFA.)

WHETHER THE TRANSFER OF CUSTODY OF AN ACCUSED TO A FOREIGN POWER (WHICH IS

CONSIDERED AS PROVIDING FOR A DIFFERENT RULE OF PROCEDURE FOR THAT ACCUSED) VIOLATED
THE CONSITUTUTION (i.e. THE EXCLUSIVE POWER OF THE COURT TO ADOPT RULES OF PROCEDURE
FOR ALL COURTS IN THE PHILIPPINES AND EQUAL PROTECTION CLAUSE)- NO
HELD: NO.
The VFA being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.

The VFA provides that in cases of offenses committed by the members of the US Armed Forces in
the Philippines, the following rules apply:

Article V
6. The custody of any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United States military authorities, if
they so request, from the commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon formal notification by the
Philippine authorities and without delay, make such personnel available to those
authorities in time for any investigative or judicial proceedings relating to the offense
with which the person has been charged. In extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding
custody, which the United States Government shall take into full account. In the
event Philippine judicial proceedings are not completed within one year, the United
States shall be relieved of any obligations under this paragraph. The one year period
will not include the time necessary to appeal. Also, the one year period will not
include any time during which scheduled trial procedures are delayed because
United States authorities, after timely notification by Philippine authorities to arrange
for the presence of the accused, fail to do so.

Petitioners contend that these undertakings violate another provision of the Constitution,
namely, that providing for the exclusive power of this Court to adopt rules of procedure for all
courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody of an
accused to a foreign power is to provide for a different rule of procedure for that accused,
which also violates the equal protection clause of the Constitution (Art. III, Sec. 1.).

Again, this Court finds no violation of the Constitution.
 The equal protection clause is not
violated, because there is a substantial basis for a different treatment of a member of a foreign
military armed forces allowed to enter our territory and all other accused.

The rule in international law is that a foreign armed forces allowed to enter one’s territory is
immune from local jurisdiction, except to the extent agreed upon. The Status of Forces
Agreements involving foreign military units around the world vary in terms and conditions,
according to the situation of the parties involved, and reflect their bargaining power. But the
principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending
State only to the extent agreed upon by the parties.

As a result, the situation involved is not one in which the power of this Court to adopt rules of
procedure is curtailed or violated, but rather one in which, as is normally encountered around
the world, the laws (including rules of procedure) of one State do not extend or apply – except
to the extent agreed upon – to subjects of another State due to the recognition of extraterritorial
immunity given to such bodies as visiting foreign armed forces.

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or
some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed forces contingents of a
foreign State allowed to enter another State’s territory. On the contrary, the Constitution states
that the Philippines adopts the generally accepted principles of international law as part of the
law of the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a different treatment when
it comes to detention as against custody. The moment the accused has to be detained, e.g.,
after conviction, the rule that governs is the following provision of the VFA:

Article V Criminal Jurisdiction x xx

Sec. 10. The confinement or detention by Philippine authorities of United States
personnel shall be carried out in facilities agreed on by appropriate Philippines and
United States authorities. United States personnel serving sentences in the Philippines
shall have the right to visits and material assistance.

It is clear that the parties to the VFA recognized the difference between custody during the trial
and detention after conviction, because they provided for a specific arrangement to cover
detention. And this specific arrangement clearly states not only that the detention shall be
carried out in facilities agreed on by authorities of both parties, but also that the detention shall
be "by Philippine authorities." Therefore, the Romulo-Kenney Agreements of December 19 and
22, 2006, which are agreements on the detention of the accused in the United States Embassy,
are not in accord with the VFA itself because such detention is not "by Philippine authorities."

Respondents should therefore comply with the VFA and negotiate with representatives of the
United States towards an agreement on detention facilities under Philippine authorities as
mandated by Art. V, Sec. 10 of the VFA.

The Court of Appeals is hereby directed to resolve without delay the related matters pending
therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith from the
judgment of conviction.