FIRST DIVISION

[G.R. No. 125865. January 28, 2000]

JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

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 petitioners 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.

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 DFAs determination that a certain person is covered
by immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the
DFAs advice and in motu proprio dismissing the two criminal cases without notice to the
prosecution, the latters 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
[1]

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 act was
done in "official capacity." It is therefore necessary to determine if petitioners 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
[3]

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 governments chief legal counsel, the
[4]

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
[5]

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.  Being purely a statutory right, preliminary investigation may be invoked only
[6]

when specifically granted by law.  The rule on criminal procedure is clear that no preliminary
[7]

investigation is required in cases falling within the jurisdiction of the MeTC.  Besides, the
[8]

absence of preliminary investigation does not affect the courts jurisdiction nor does it impair the
validity of the information or otherwise render it defective. [9]

WHEREFORE, the petition is DENIED.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.2/22/00 9:47 AM