FIRST DIVISION

[G.R. No. 125865. January 28, 2000]

JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank (ADB).
Sometime in 1994, for allegedly uttering defamatory words against fellow ADB
worker Joyce Cabal, he was charged before the Metropolitan Trial Court (MeTC) of
Mandaluyong City with two counts of grave oral defamation docketed as Criminal
Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by
the MeTC. After fixing petitioners bail at P2,400.00 per criminal charge, the MeTC
released him to the custody of the Security Officer of ADB. The next day, the MeTC
judge received an "office of protocol" from the Department of Foreign Affairs (DFA)
stating that petitioner is covered by immunity from legal process under Section 45 of
the Agreement between the ADB and the Philippine Government regarding the
Headquarters of the ADB (hereinafter Agreement) in the country. Based on the said
protocol communication that petitioner is immune from suit, the MeTC judge without
notice to the prosecution dismissed the two criminal cases. The latter filed a motion
for reconsideration which was opposed by the DFA. When its motion was denied, the
prosecution filed a petition for certiorari and mandamus with the Regional Trial Court
(RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to
enforce the warrant of arrest it earlier issued. After the motion for reconsideration was
denied, petitioner elevated the case to this Court via a petition for review arguing that
he is covered by immunity under the Agreement and that no preliminary investigation
was held before the criminal cases were filed in court.
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from the
DFA that petitioner is covered by any immunity. The DFAs determination that a
certain person is covered by immunity is only preliminary which has no binding effect
in courts. In receiving ex-parte the DFAs advice and in motu proprio dismissing the
two criminal cases without notice to the prosecution, the latters right to due process
was violated. It should be noted that due process is a right of the accused as much as it
is of the prosecution. The needed inquiry in what capacity petitioner was acting at the
time of the alleged utterances requires for its resolution evidentiary basis that has yet

to be presented at the proper time. At any rate, it has been ruled that the mere
invocation of the immunity clause does not ipso facto result in the dropping of the
charges.
[1]

[2]

Second, under Section 45 of the Agreement which provides:

"Officers and staff of the Bank including for the purpose of this Article
experts and consultants performing missions for the Bank shall enjoy the
following privileges and immunities:
a.).......immunity from legal process with respect to acts performed
by them in their official capacity except when the Bank waives
the immunity."
the immunity mentioned therein is not absolute, but subject to the exception that the
act was done in "official capacity." It is therefore necessary to determine if petitioners
case falls within the ambit of Section 45(a). Thus, the prosecution should have been
given the chance to rebut the DFA protocol and it must be accorded the opportunity to
present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the immunity agreement
because our laws do not allow the commission of a crime, such as defamation, in the
name of official duty. The imputation of theft is ultra vires and cannot be part of
official functions. It is 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 or in bad faith or beyond the scope of his authority or
jurisdiction. It appears that even the governments chief legal counsel, the Solicitor
General, does not support the stand taken by petitioner and that of the DFA.
[3]

[4]

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent,

assuming petitioner is such, enjoys immunity from criminal jurisdiction of the
receiving state except in the case of an action relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving state outside
his official functions. As already mentioned above, the commission of a crime is not
part of official duty.
[5]

Finally, on the contention that there was no preliminary investigation conducted,

suffice it to say that preliminary investigation is not a matter of right in cases
cognizable by the MeTC such as the one at bar. Being purely a statutory right,
preliminary investigation may be invoked only when specifically granted by
law. The rule on criminal procedure is clear that no preliminary investigation is
required in cases falling within the jurisdiction of the MeTC. Besides, the absence of
[6]

[7]

[8]

preliminary investigation does not affect the courts jurisdiction nor does it impair the
validity of the information or otherwise render it defective.
[9]

WHEREFORE, the petition is DENIED.

SO ORDERED.