FIRST DIVISION

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

JEFFREY LIANG (HUEFENG) , petitioner, vs . PEOPLE OF THE

PHILIPPINES , respondent.

Romulo Mabanta Buenaventura Sayoc & De los Angeles for petitioner.

The Solicitor General for respondent.

SYNOPSIS

For allegedly uttering defamatory words against a fellow Asian Development Bank (ADB)
worker, petitioner, an economist at ADB, was charged before the Metropolitan Trial Court
(MeTC) with two counts of grave oral defamation. The MeTC judge received an "office
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 in the country. Based on
the said communication, the MeTC judge, without notice to the prosecution, dismissed the
two criminal cases. The motion for reconsideration filed by the respondent was denied by
the MeTC, hence, a petition for certiorari was filed before the Regional Trial Court (RTC).
The RTC set aside the MeTC ruling and ordered the enforcement of the warrant of arrest
earlier issued. Thus, petitioner elevated the case to the Supreme Court after his motion for
reconsideration was denied. He argued that he is covered by immunity and that no
preliminary investigation was held.
The Supreme Court denied the petition. According to the Supreme Court, 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; the mere invocation of the immunity
clause does not ipso facto result in the dropping of the charges; and that preliminary
investigation is not a matter of right in cases cognizable by the MeTC such as the one at
bar.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; MOTU PROPRIO

DISMISSAL OF CRIMINAL CASES, WHEN DEEMED VIOLATION OF PROSECUTION'S RIGHT
TO DUE PROCESS; CASE AT BAR. — Courts cannot blindly adhere and take on its face the
communication from the DFA that petitioner is covered by any immunity. The DFA's
determination that a certain person is covered by immunity is only preliminary which has
no binding effect in courts. In receiving ex parte the DFA's advice and in motu proprio
dismissing the two criminal cases without notice to the prosecution, the latter's 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. The immunity mentioned under Section 45 of the Agreement between the ADB
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 and the Philippine Government regarding the Headquarters of the ADB is not absolute, but
subject to the exception that the act was done in "official capacity." It is therefore
necessary to determine if petitioner's 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.
2. POLITICAL LAW; IMMUNITY FROM SUIT; NOT APPLICABLE WHEN DAMAGE WAS
CAUSED BY PUBLIC OFFICIAL FOR HIS ACT DONE WITH MALICE OR IN BAD FAITH OR
BEYOND THE SCOPE OF HIS AUTHORITY OR JURISDICTION; CASE AT BAR. — 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 government's
chief legal counsel, the Solicitor General, does not support the stand taken by petitioner
and that of the DFA. 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. TaCDcE

DECISION

YNARES-SANTIAGO , J : p

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 petitioner's
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. cda

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA
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 that petitioner is covered by any immunity. The DFA's determination that a certain person
is covered by immunity is only preliminary which has no binding effect in courts. In
receiving ex-parte the DFA's advice and in motu proprio dismissing the two criminal cases
without notice to the prosecution, the latter's 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.
1 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. 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 "of cial capacity." It is therefore necessary to determine if petitioner's
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. 3 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. 4 It appears that
even the government's chief legal counsel, the Solicitor General, does not support the
stand taken by petitioner and that of the DFA.
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. 5 As already
mentioned above, the commission of a crime is not part of official duty.
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. 6 Being purely a statutory right, preliminary investigation may
be invoked only when specifically granted by law. 7 The rule on criminal procedure is clear
that no preliminary investigation is required in cases falling within the jurisdiction of the
MeTC. 8 Besides, the absence of preliminary investigation does not affect the court's
jurisdiction nor does it impair the validity of the information or otherwise render it
defective. 9
WHEREFORE, the petition is DENIED. cdll

SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan, and Pardo, JJ., concur.
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 Footnotes

1. See United States v. Guinto, 182 SCRA 644 [1990].

2. Chavez v. Sandiganbayan, 193 SCRA 282 [1991].

3. M .H . Wylie v. Rarang, 209 SCRA 357, 368 [1992].
4. Shauf v. CA, 191 SCRA 713 [1990]; Animos v. Phil. Veterans Affairs Of ce , 174 SCRA
214 [1989]; Dumlao v. CA, 114 SCRA 247 [1982].

5. Section 31, 1 (c); See also Minucher v. CA, 214 SCRA 242 [1992].
6. See Del Rosario, Jr. v. Bartolome, 270 SCRA 645 [1997].

7. People v. Abejuela, 38 SCRA 324 [1971].

8. Section 1, Rule 112, Rules of Criminal Procedure.
9. People v. Gomez, 117 SCRA 72 [1982]; People v. Casiano, 1 SCRA 478 [1961].

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