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Liang vs.

G.R. No. 125865 Jan. 28, 2000
Ponente: Ynares-Santiago, J.

Facts: Petitioner Jeffrey Liang 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. Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing petitioner's
bail, 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.

Issue: Whether or not the petitioner can invoke immunity from suit.

Held: NO.

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. 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.

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. 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.

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