No ‘residual immunity’ for former RP Ambassador to the UN

by Joseph G. Lariosa

CHICAGO (June 21) — “Employment of a domestic worker whose duties are limited to fulfilling the personal household needs of a diplomat and his family is a private act that is not ‘performed on behalf of or immutable to the sending State’ even when the provisions of those services for the diplomat happens to occur inside the premises that house the diplomatic mission.”

Citing a previous precedent, Judge Victor Marrero of the United States District Court of Southern New York denied Tuesday (June 16) the motion of former Philippine Ambassador to the United Nations Lauro Liboon Baja and his wife, Norma, to dismiss the complaint against them and quash the service of process for lack of subject matter jurisdiction.

Marrero set a conference with the court on July 10, 2009 at 2:45 p.m. to discuss case management of the action.

In a 35-page decision, Marrero said that while Mr. Baja served as a Permanent Representative of the Philippines to the United Nations from May 11, 2003 to Feb. 21, 2007, he and his wife were each served with a complaint by Marichu Suarez Baoanan in the Philippines on July 8, 2008, more than a year after Baja’s diplomatic duties in the United States has ceased.

Under this circumstances, Baja can still claim “residual immunity, not the broader immunity from civil jurisdiction,” if Baja can prove that “relevant acts alleged in the Complaint were ‘acts performed in the exercise of his functions as a member of the mission.”

But citing the case of Swarna v. Al-Awadi, Judge Marrero said the hiring by the Bajas of Baoanan  as their domestic helper is a private act that is not covered by “residual diplomatic immunity” that “ensures the efficient functioning of a diplomatic mission, not to benefit the private individual.”

Baoanan claims fall into two categories. The first was based on employment and labor laws, where Bajas allegedly violated “obligations and expectations” out of her employment. These include federal minimum wage violations, state minimum wage violations, unlawful deductions from wages, state overtime violations, spread of hours violations, fraud, negligent misrepresentation, conversion and conspiracy.

The second set of violation is Baja’s alleged actions undertaken to induce Baoanan to travel from the Philippines to the United States. These include “forced labor, trafficking with respect to peonage, slavery, involuntary servitude, or forced labor, violation of Racketeer Influenced and Corrupt Organization Act, and violation of ATCA.”

Baoanan was employed by Baja to perform private, domestic services such as a cooking, cleaning the house, laundering clothes, monitoring Mrs. Baja’s diabetes and blood pressure, child care of their adult daughter Maria Elizabeth Baja Facundo’s son among others. Judge Marrero said these “duties benefited the Baja family’s personal household needs, and are unrelated to Baja’s diplomatic functions as a member of the mission.”

“This is an exciting victory for Marichu Baoanan, and for other domestic workers who have been exploited and mistreated by diplomats.   Ms. Baoanan will finally have the opportunity to have her case against the Bajas heard in court,” said Ivy Suriyopas, Asian American Legal Defense and Education Fund staff attorney, Baoanan’s lawyer, in a statement.  She added: “At last, nannies, cooks, housekeepers, and other workers will be able to seek a remedy for their claims.”

On the other hand, Baja’s lawyer, Salvador E. Tuy, said, “We welcome the decision of the New York District Court, denying diplomatic immunity to former Ambassador Baja and his wife, Norma. This was not unexpected. This outcome does not affect our defense. The decision pushes the case to a trial on the merits.

“We look forward to a full jury trial, where we will show to the whole world that this lady Marichu Baoanan is a liar and a fraud and make her pay for these perjuries. A conviction of perjury will strip her and her family of the immigrant visa that she hoped to get by this lawsuit.”

Tuy added, “My clients can chose not to appear in court and because they are legally Filipino citizens and residents they cannot be compelled to appear in court except if the requesting party offers to pay for all expenses for their appearance.
“A judicial subpoena to appear is valid only if the party subpoenaed is within 15 miles of the court and the requesting party must also pay for the transportation.  Under Federal law, a U.S. subpoena is not enforceable in the Philippines unless a Philippine court orders it so.
“On the other hand, I can take all depositions of Filipino witnesses in the Philippines, all neighbors of Baoanan and it is up to their lawyers to appear in the Philippines for those depositions.
“Since Baoanan materially lied as to her “nursing degree” I can chose to ask for sanctions for all expenses of this litigation.  That way I can get paid for this pro bono job.”

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