U.S. Court Asked To Rule if Baja Enjoys “Residual Immunity”

by Joseph G. Lariosa

CHICAGO (Apr. 30) – When domestic helper Marichu Suarez Baoanan sued her employer, former Philippine Ambassador to the United Nations Lauro Liboon Baja and his wife, Norma, with human trafficking and forced labor and 14 other causes of action, Ambassador Baja “had left the United States and was no longer the Permanent Representative of the Government of the Philippines to the United Nations.”

Acting United States Attorney Lev L. Dassin of the Southern District of New York wants Judge Victor Marrero of the Southern District of New York to “consider whether the acts alleged by plaintiff were official acts conducted by Ambassador and Mrs. Baja ‘in the exercise of their functions as a member of the mission’” and whether they were still covered by “any residual immunity” under Vienna Convention on Diplomatic Relations (VCDR).

The diplomats are accorded privileges and “near absolute immunity from civil jurisdiction” during period of their accreditation “to ensure the efficient performance of the functions of diplomatic missions as representing States.”

When the functions of a person, enjoying privileges and immunities, have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict.

However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. These acts give the person “continuing or residual immunity,” which means he “cannot be sued in respect of such acts since this would indirectly implead the sending State.”

If Judge Marrero rules that Baja is covered by residual immunity, the case will be dismissed against him. If not, it will proceed.

Mr. Dassin and Emily E. Daughtry, Assistant U.S. Attorney, however, observed in a 16-page statement of interest of the United States of America filed in court Tuesday (April 28) that “because Mrs. Baja, as the spouse of a former diplomat, was never a member of the Philippine Mission to the United Nations, the Government takes the position that she does not enjoy residual diplomatic immunity.

“The Government does not take a position, however, on the applicability of such immunity to Ambassador Baja in this case.”

In their “statement,” Dassin and Daughtry cited a “recent opinion in the Swarna case (where), the court correctly approached this question” that “residual immunity pertains to acts taken in the regular course of implementing an official program or policy of the mission, as well as the hiring and employment of an individual to work at a diplomatic mission.”

But they also cited another case, the Sabbithi case, where the court held that that “residual immunity was premised on the belief that if the hiring of domestic employes is not a commercial activity under Art. 31 (1) (c), it follows that it must be an official act and therefore merits the residual immunity provided under Art. 39 (2). The United States, respectfully, disagrees with this analysis.”

Judge Marrero earlier asked the U.S. government whether Mr. Baja and his family are exempted from “civil immunity for an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state (the United States) outside his official functions” as provided for under the Vienna Convention on Diplomatic Relations (V.C.D.R.).

Baja, his wife, Norma Castro Baja, their adult daughter, Maria Elizabeth Baja Facundo and Labaire International were named defendants by Marichu Suarez Baoanan in 15 causes of action, including claims of human trafficking, involuntary servitude, and forced labor.

Baoanan is seeking civil remedies based on the Victims of Trafficking and Violence Protection Act of 2000.

The Bajas, represented by Filipino American lawyer Salvador E. Tuy, Jr., argue that hiring a domestic worker by a diplomat does not fall within the “commercial activity” exception of the law “because such services are incidental to daily life.”

The Bajas added that even “if fraud had been used to induce Baoanan into the United States with promise of employment as a nurse, such events transpired in the Philippines and not in the United States.”

The Bajas contend “the only alleged activity to take place in the receiving state (U.S.) is the allegation that they sought to collect a debt from Baoanan in the United States.”

For Ms. Baoanan, her lawyers Aaron Mendelsohn of Troutman Sanders and Ivy O. Suriyopas of the Asian American Legal Defense and Education Fund, argue that the “Court has jurisdiction over the Bajas because they (Bajas) engaged in commercial activity in violation of the  V.C.D.R.”

Baoanan claimed the Bajas engaged in activity “beyond merely entering ‘contractual relations for goods and services incidental to the daily life of the diplomat and family in the receiving state.’”

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