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G.R. No. 125865 January 28, 2000




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 viaa 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. 1âwphi1.nêt

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 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 propio 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 acts 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.

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 the 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

WHEREFORE, the petition is DENIED.

SO ORDERED. 1âwphi1.nêt

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


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

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

K.H. Wylie v. Rarang, 209 SCRA 357, 368 [1992].

Shauf v. CA, 191 SCRA 713 [1990]; Animos v. Phil. Veterans Affairs Office, 174 SCRA 214 [1989]; Dumlao v.

CA, 114 SCRA 247 [1982].

Sec. 31, 1 (c); See also Minucher v. CA, 214 SCRA 242 [1992].

See Del Rosario, Jr. v. Bartolome, 270 SCRA 645 [1997].

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

Sec. 1, Rule 112, Rules of Criminal Procedure.

People v. Gomez, 117 SCRA 72 [1982]; People v. Casiano, 1 SCRA 478 [1961].

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