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 representing 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 acted 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)

Immunity from enforcement means that even if a person succeeds in any way
against their sovereign or state, they and the judgment may find itself without
means of enforcement.