IMMUNITY FROM SUIT

A Law Each Day (Keeps Trouble Away)

Who are covered by diplomatic immunity? If the member of the diplomatic
establishment cannot be considered as a "diplomatic agent" entitled to
immunity, can he still be cloaked with immunity from suit? These are the
questions answered in this case of Art.

Art was a special agent of the US Department of Justice Drug Enforcement
Agency (DEA) assigned to the Philippines (1) to provide criminal
investigative experience and assistance on narcotic and drug control upon
the request of our government, (2) to establish and maintain liaison with
our country and our counterpart law enforcement officials, and (3) to
conduct complex criminal investigations involving international criminal
conspiracies affecting the US interests. The consent or imprimatur of the
Philippine government to his activities here as US DEA agent is contained in
official exchanges of communication between agencies of the two governments
and certifications of the Philippine Department of Foreign Affairs (DOF) and
the US embassy. The DOF listed him as an Assistant Attache of the US
diplomatic mission and accredited with diplomatic status by the Philippine
government.

In the exercise of his functions during his tour of duty, he conducted a
raid and investigation of M. Khalid an Iranian who first came to the
Philippines to study at UP but later on became a refugee under the UN
auspices. The raid and investigation was done with the participation of and
in coordination with the Philippine Narcotics Command on the information
that Khalid was trafficking in prohibited drugs. Corresponding charges were
then filed against Khalid. But during the trial, Kahlid proved that the
charges were trumped up; that his rights were violated and that cash and
valuables totaling $57,000 were taken from his house by the raiding team.
Charges against Khalid were thus dismissed by the RTC, but not after his
reputation had been destroyed by the worldwide publicity given to the raid
where Khalid was identified as an international drug trafficker.

So it was now the turn of Khalid to file a suit before the RTC against Art
for damages caused by the raid and the trumped up charges. A lawyer firm
entered its appearance and asked that the summons be quashed on the ground
that Art, not being a resident here and the action being in personam, was
beyond the processes of the court. But his motion was denied by the RTC and
which denial was subsequently affirmed on appeal. After almost two years
since the institution of the case during which he was already declared in
default but later on still allowed to file an answer, Art filed a motion to
dismiss on the ground that he being a special agent of the US DEA, was
entitled to diplomatic immunity under the Vienna convention, presenting
documentary exhibits to prove it. Was Art correct?

Art is not entitled to diplomatic immunity but he is still entitled to the
defense of state immunity from suit.

Only the "diplomatic agents" or heads of missions (ambassadors or nuncios,
envoys, ministers or internuncios accredited to the heads of States and
Charges d' affairs accredited to the ministers of Foreign Affairs), as well
as members of the diplomatic staff, excluding the members of the
administrative, technical and service staff of the mission, are accorded
diplomatic rank and vested with blanket diplomatic immunity from civil and
criminal suits. All others including consuls who represent their State's
concerns of commerce and navigation or perform administrative and notarial
duties such as the issuance of passports and visas, and attaches who assist
the Chief of Mission in its cultural, press, administrative or financial
affairs or belonging to their government departments as the military, naval,
air, commercial, agricultural, labor, science and customs attaches, do not
necessarily enjoy diplomatic immunities mainly for the reason that they are
not charged with the duty of repre senting their states in political
matters. The main yardstick in ascertaining whether a person is a diplomat
entitled to immunity is a determination of whether or not he performs duties
of diplomatic nature. Since Art was an Assistant Attache, he apparently does
not enjoy diplomatic immunity.

But while Art's diplomatic immunity thus remains contentious, he can be
immune from suit under the related doctrine of State Immunity from suit as
long as it can be established that he is acting within the directives of the
sending state (USA) and the host state (Philippines) consented to his
activities here. The official exchanges of communications between the
agencies of the two countries, the certifications from of both countries as
well as the participation of the Philippine Narcom in the buy bust operation
are enough indication that the Philippine government has given its consent
to the activities of Art. On the other hand, the job description of Art has
tasked him to conduct surveillance on suspected drug suppliers and, after
having ascertained the target, to inform local law enforcers who would then
make the arrest. In conducting surveillance activities on Khalid, later
acting as poseur buyer and then becoming a principal witness in the criminal
case against him, Art a cted within the scope of his official functions or
duties.So Art is entitled to the defense of state immunity from suit. (
Minucher vs. Court of Appeals, 397 SCRA 244; G.R. 142396 February 11, 2003).