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Digest 10 2

Digest 10 2

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* bok * cj * tiff * gem * tin * public international lawUPLAW 2009 B“I am a submarine!”
3. Jurisdiction and Immunities
 
additional cases. Other cases to follow.
Jeffrey Liang (Huefeng),
petitioner 
v. People,
respondent
(March 26, 2001)
Ynares-Santiao, J.CRIMINAL INFORMATIONS FILED AGAINST PETITIONER. Liang, a Chinese nationalis an economist in the ADB was alleged to have uttered defamatory words to one JoyceCabal, a member of the ADB clerical staff.MTC DISMISSED INFORMATION. It acted pursuant to an advice from the DFA thatLiang enjoyed immunity from legal processes.RTC ANNULLED THE MTC ORDER. So Liang brought the case to the SC, whichdismissed the same (January 28, decision) and ruled that the immunity of officers andstaff of the ADB is not absolute but limited to acts done in official capacity. Also, the SCadded that this does not cover the commission of a crime.PETITIONER FILED MfR based on the following arguments:a)DFA's determination of immunity is a political question to be made by executivebranch and conclusive upon courtsb)Immunity of International Organizations is absolute.c)That immunity extends to all staff of the Asian Development Bank (ADB)d)Due process was fully afforded to complainant to rebut the DFA protocol.e)The January 28, 2000 decision erroneously made a finding of fact on the merits(that the slandering of a person) which prejudged petitioner's criminal casebefore the MTC.f)The Vienna Convention on Diplomatic relations is not applicable here.DFA MOVED TO INTERVENE.
Issue:
WON the statenebts allegedly made by Liang were uttered while in theperformance of his official functions as to fall under Sec. 45 (a) of the "AgreementBetween the ADB and the Government of the Republic of the Philippines Regarding theHeadquarters of the Asian Development Bank"?
Held:
NO.IMMUNITY NOT DENIED. The petitioner's MfR focused on the diplomatic immunity of officials and staff of ADB from legal and juridical processes in the Philippines and theconstitutional and political basis of that immunity. It should be made clear that nowhere inthe assailed Decision is diplomatic immunity denied, even remotely.THE AGREEMENT:Officers and staff of the Bank, including for the purpose of thisArticle experts and consultants performing missions for theBank, shall enjoy the following privileges and immunities:(a)Immunity from legal process with respect to actsperformed by them in their official capacity except when theBank waives the immunity.THE DECISION. The SC finds no cogent reason to disturb the former decision. It reiterated its statement therein that, the slander of aperson, by any stretch, cannot be considered as falling within thepurview of the immunity granted to ADB officers and personnel.DID THE SC DECISION PREJUDGE THE CRIMINAL CASE AGAINSTHIM? It did not. What was merely stated therein is that slander, ingeneral, cannot be considered as an act performed in an officialcapacity. The issue of whether or not petitioner's utterances constitutedoral defamation is still for the trial court to determine.
Separate Opion: Puno, J., concurring
JANUARY 28, DECISION:
the DFA protocol communication stating that Liang is covered by immunity isonly preliminary and has no binding effect in courts;
the immunity provided for under Sec. 45(a) of the Headquarters Agreement issubject to the condition that the act be done in an "official capacity";
slandering a person cannot be said to have been done in an "official capacity",hence, it is not covered by the immunity agreement;
Vienna Convention on Diplomatic Relations: a diplomatic agent (assumingpetitioner is such) enjoys immunity from criminal jurisdiction of the receivingstate except in the case of an action relating to any professional or commercialactivity exercised by the diplomatic agent in the receiving state outside hisofficial functions;
commission of a crime is not part of official duty; and that a preliminaryinvestigation is not a matter of right in cases cognizable by the MTC1.PETITIONER'S CONTENTIONS:AS TO PURPOSE OF IMMUNITY: It is designed to safeguard the autonomy andindependence of international organizations against interference from any authorityexternal to the organizations. It is necessary to allow such organizations to dischargetheir entrusted functions effectively. The only exception to this immunity is when there isan implied or express waiver or when the immunity is expressly limited by statute. Theexception allegedly has no application to the case at bar.DETERMINATION OF WHAT IS “OFFICIAL ACTS” UPON ADB ONLY. The same cannotbe subject to different interpretations by the member states. The HeadquartersAgreement provides for remedies to check abuses against the exercise of the immunity.Hence, Sec. 49 states:"Bank shall waive the immunity accorded to any person if, in itsopinion, such immunity would impede the course of justice and thewaiver would not prejudice the purposes for which the immunitiesare accorded." Section 51 allows for consultation between thegovernment and the Bank should the government consider that anabuse has occurred. The same section provides the mechanism for a dispute settlement regarding, among others, issues of interpretation or application of the agreement.
WHO, et al. vs. Aquino:
This case involved the search and seizure of personal effects of a WHO official whohappened to be certified to be entitled to diplomatic immunity pursuant to the HostAgreement between Philippines and WHO. The SC stated that diplomatic immnity isessentially a political question (based on international law principle and principle of 
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* bok * cj * tiff * gem * tin * 2
separation of powers). Where the plea of diplomatic immunity is recognized and affirmedby the executive branch of the government, it is the duty of the courts to accept the claimof immunity upon appropriate suggestion by the principal law officer of the government(in this WHO case, the Sol. Gen.). In adherence to the settled principle that courts maynot exercise their jurisdiction by seizure and detention of property, as to embarrass theexecutive arm of the government in conducting foreign relations, it is accepted doctrinethat in such cases the judicial department of the government follows the action of thepolitical branch and will not embarrass the latter by assuming an antagonistic jurisdiction.
ICMC vs. Calleja:
This was a petition for certification election filed against ICMC and IRRI—internationalorganizations enjoying immunity. The exercise of jurisdiction of the Department of Labor would defeat the very purpose of immunity, which is to shield the affairs of internationalorganizations from political pressure or control by the host country and to ensure theunhampered performance of their functions.
Holy See v. Rosario, Jr.
:This was an action for annulment of sale of land against the Holy See. The defense of sovereign immunity was upheld. Where a diplomatic envoy is granted immunity from thecivil and administrative jurisdiction of the receiving state over any real action relating toprivate immovable property situated in the territory of the receiving state, which theenvoy holds on behalf of the sending state for the purposes of the mission, with all themore reason should immunity be recognized as regards the sovereign itself, which inthat case is the Holy See.
Lasco vs. United Nations
:UN Revolving Fund for Natural Resources Exploration was sued before the NLRC for illegal dismissal; SC again upheld the doctrine of diplomatic immunity invoked by theFund.
DFA v. NLRC 
:This was an illegal dismissal case filed against the ADB. Pursuant to its Charter and theHeadquarters Agreement, the diplomatic immunity was recognized.
Petitioner asserts that he is entitled to the same diplomatic immunity and hecannot be prosecuted for acts allegedly done in the exercise of his official functions.
2.
DEFINITION OF TERMS :
International Organization - the term generally used to describe an organizationset up by agreement between two or more states. Under contemporaryinternational law, such organizations are endowed with some degree of international legal personality such that they are capable of exercising specificrights, duties and powers. They are organized mainly as a means for conducting general international business in which the member states have aninterest.
International public officials - persons who, on the basis of an internationaltreaty constituting a particular international community, are appointed by thisinternational community, or by an organ of it, and are under its control toexercise, in a continuous way, functions in the interest of this particular international community, and who are subject to a particular personal status."
Specialized agencies - international organizations having functions in particular fields, such as posts, telecommunications, railways, canals, rivers, seatransport, civil aviation, meteorology, atomic energy, finance, trade, educationand culture, health and refugees.
3.
NATURE AND DEGREE OF IMMUNITY VARY depending on who therecipient is as can be seen from a perusal of the immunitiesprovisions in various international conventions and agreements
1
4.
DIFFERENCES BETWEEN DIPLOMATIC AND INTERNATIONALIMMUNITIES :
a.
one of the recognized limitations of 
diplomatic immunity 
is that members of thediplomatic staff of a mission may be appointed from among the nationals of thereceiving State only with the express consent of that State; apart from
1
1.Charter of the United Nations
Article 105 (1):
The Organization shall enjoy in the territory of each of its Members suchprivileges and immunities as are necessary for the fulfillment of its purposes.
Article 105 (2):
Representatives of the Members of the United Nations and officials of theOrganization shall similarly enjoy such privileges and immunities as are necessary for theindependent exercise of their functions in connection with the Organization.2.Convention on the Privileges and Immunities of the United Nations
Section 2:
The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.
Section 11 (a):
Representatives of Members to the principal and subsidiary organs of theUnited Nations . . shall . . . enjoy . . . immunity from personal arrest or detention and fromseizure of their personal baggage, and, in respect of words spoken or written and all acts doneby them in their capacity as representatives, immunity from legal process of every kind.
Section 14:
Privileges and immunities are accorded to the representatives of Members not for the personal benefit of the individuals themselves, but in order to safeguard the independentexercise of their functions in connection with the United Nations. Consequently, a Member notonly has the right but is under a duty to waive the immunity of its representative in any casewhere in the opinion of the Member the immunity would impede the course of justice, and itcan be waived without prejudice to the purpose for which the immunity is accorded.
Section 18 (a):
Officials of the United Nations shall be immune from legal process in respectof words spoken or written and all acts performed by them in their official capacity.
Section 19:
In addition to the immunities and privileges specified in Section 18, the Secretary-General and all Assistant Secretaries-General shall be accorded in respect of themselves,their spouses and minor children, the privileges and immunities, exemptions and facilitiesaccorded to diplomatic envoys, in accordance with international law.Section 20: Privileges and immunities are granted to officials in the interest of the UnitedNations and not for the personal benefit of the individuals themselves. The Secretary-Generalshall have the right and the duty to waive the immunity of any official in any case where, in hisopinion, the immunity would impede the course of justice and can be waived without prejudiceto the interests of the United Nations.
Section 22:
Experts . . . performing missions for the United Nations . . . shall be accorded: (a)immunity from personal arrest or detention and from seizure of their personal baggage; (b) inrespect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind.3.Vienna Convention on Diplomatic Relations
Article 29:
The person of a diplomatic agent shall be inviolable. He shall not be liable to anyform of arrest or detention. The receiving State shall treat him with due respect and shall takeall appropriate steps to prevent any attack on his person, freedom, or dignity.
Article 31 (1):
A diplomatic agent shall enjoy immunity from the criminal jurisdiction of thereceiving State. He shall also enjoy immunity from its civil and administrative jurisdiction,
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* bok * cj * tiff * gem * tin * 3
inviolability and immunity from jurisdiction in respect of official acts performedin the exercise of their functions, nationals enjoy only such privileges andimmunities as may be granted by the receiving State.
International immunities
may be especially important in relation to the State of which the official is anational.
 b.
the immunity of a diplomatic agent from the jurisdiction of the receiving Statedoes not exempt him from the jurisdiction of the sending State; in the case of 
international 
immunities there is no sending State and an equivalent for the jurisdiction of the Sending State therefore has to be found either in waiver of immunity or in some international disciplinary or judicial procedure.
except in certain cases.
Article 38 (1):
Except in so far as additional privileges and immunities may be granted by thereceiving State, a diplomatic agent who is a national of or permanently a resident in that Stateshall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performedin the exercise of his functions.4.Vienna Convention on Consular Relations
Article 41 (1):
Consular officials shall not be liable to arrest or detention pending trial, exceptin the case of a grave crime and pursuant to a decision by the competent judicial authority.
Article 43 (1):
Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of actsperformed in the exercise of consular functions.
Article 43 (2):
The provisions of paragraph 1 of this Article shall not, however, apply in respectof a civil action either: (a) arising out of a contract concluded by a consular officer or aconsular employee in which he did not contract expressly or impliedly as an agent of thesending State; or (b) by a third party for damage arising from an accident in the receiving Statecaused by a vehicle, vessel or aircraft."5.Convention on the Privileges and Immunities of the Specialized Agencies
Section 4:
The specialized agencies, their property and assets, wherever located and bywhomsoever held, shall enjoy immunity from every form of legal process except in so far as inany particular case they have expressly waived their immunity. It is, however, understood thatno waiver of immunity shall extend to any measure of execution.
Section 13 (a):
Representatives of members at meetings convened by a specialized agencyshall, while exercising their functions and during their journeys to and from the place of meeting, enjoy immunity from personal arrest or detention and from seizure of their personalbaggage, and in respect of words spoken or written and all acts done by them in their officialcapacity, immunity from legal process of every kind.
Section 19 (a):
Officials of the specialized agencies shall be immune from legal process inrespect of words spoken or written and all acts performed by them in their official capacity.
Section 21:
In addition to the immunities and privileges specified in sections 19 and 20, theexecutive head of each specialized agency, including a any official acting on his behalf duringhis absence from duty, shall be accorded in respect of himself, his spouse and minor children,the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, inaccordance with international law."6.Charter of the ADB
Article 50 (1):
The Bank shall enjoy immunity from every form of legal process, except incases arising out of or in connection with the exercise of its powers to borrow money, toguarantee obligations, or to buy and sell or underwrite the sale of securities, in which casesactions may be brought against the Bank in a court of competent jurisdiction in the territory of a country in which the Bank has its principal or a branch office, or has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities.
Article 55 (i):
All Governors, Directors, alternates, officers and employees of the Bank,including experts performing missions for the Bank shall be immune from legal process withrespect to acts performed by them in their official capacity, except when the Bank waives the
c.
the effective sanctions which secure respect for 
diplomatic immunity 
are theprinciple of reciprocity and the danger of retaliation by the aggrieved State;
international immunities
enjoy no similar protection.
5.
BASIC PRINCIPLES OF INTERNATIONAL IMMUNITIES (ILOMemorandum): (1) international institutions should have a statuswhich protects them against control or interference by any onegovernment in the performance of functions for the effectivedischarge of which they are responsible to democratically constitutedinternational bodies in which all the nations concerned arerepresented; (2) no country should derive any financial advantage bylevying fiscal charges on common international funds; and (3) theinternational organization should, as a collectivity of States Members,be accorded the facilities for the conduct of its official businesscustomarily extended to each other by its individual member States.The thinking underlying these propositions is essentially institutional incharacter. It is not concerned with the status, dignity or privileges of individuals, but withthe elements of functional independence necessary to free international institutions fromnational control and to enable them to discharge their responsibilities impartially onbehalf of all their members.6.3 METHODS OF GRANTING IMMUNITIES TO INTERNATIONALORGANIZATIONS’ PERSONNEL (Positive international law):a.simple conventional stipulation—the Hague Conventions of 1899 and 1907.b.internal legislation—the government of a state, upon whose territory theinternational organization is to carry out its functions, recognizes theinternational character of the organization and grants, by unilateral measures,certain privileges and immunities to better assure the successful functioning of the organization and its personnel. In this situation, treaty obligation for thestate in question to grant concessions is lacking. (Central Commission of theRhine at Strasbourg and the International Institute of Agriculture at Rome.)
immunity.7.ADB Headquarters Agreement 
Section 5:
The Bank shall enjoy immunity from every form of legal process, except in casesarising out of or in connection with the exercise of its powers to borrow money, to guaranteeobligations, or to buy and sell or underwrite the sale of securities, in which cases actions maybe brought against the Bank in a court of competent jurisdiction in the Republic of thePhilippines.
Section 44:
Governors, other representatives of Members, Directors, the President, Vice-President and executive officers as may be agreed upon between the Government and theBank shall enjoy, during their stay in the Republic of the Philippines in connection with their official duties with the Bank: (a) immunity from personal arrest or detention and from seizure of their personal baggage; (b) immunity from legal process of every kind in respect of wordsspoken or written and all acts done by them in their official capacity; and (c) in respect of other matters not covered in (a) and (b) above, such other immunities, exemptions, privileges andfacilities as are enjoyed by members of diplomatic missions of comparable rank, subject tocorresponding conditions and obligations.
Section 45 (a):
Officers and staff of the Bank, including for the purposes of this Article expertsand consultants performing missions for the Bank, shall enjoy . . . immunity from legal processwith respect to acts performed by them in their official capacity, except when the Bank waivesthe immunity."
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