FIRST DIVISION

G.R. No. 125865 January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

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
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.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 defective.9

WHEREFORE, the petition is DENIED.

SO ORDERED.1âwphi1.nêt

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

Footnotes

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

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

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

4 Shauf v. CA, 191 SCRA 713 [1990]; Animos v. Phil. Veterans Affairs Office, 174 SCRA 214 [1989];
Dumlao v. CA, 114 SCRA 247 [1982].

5 Sec. 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 Sec. 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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