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.