FIRST DIVISION

5)

[G.R. No. 125865. March 26, 2001]

THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT ON THE MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH PREJUDGED PETITIONERS CASE BEFORE THE METROPOLITAN TRIAL COURT (MTC)-MANDALUYONG.

6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO THIS CASE.

JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. RESOLUTION
YNARES-SANTIAGO, J.:

This resolves petitioners Motion for Reconsideration of our Decision dated January 28, 2000, denying the petition for review. The Motion is anchored on the following arguments:
1) THE DFAS DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE MADE BY THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE UPON THE COURTS. 2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.

This case has its origin in two criminal Informations[1] for grave oral defamation filed against petitioner, a Chinese national who was employed as an Economist by the Asian Development Bank (ADB), alleging that on separate occasions on January 28 and January 31, 1994, petitioner allegedly uttered defamatory words to Joyce V. Cabal, a member of the clerical staff of ADB. On April 13, 1994, the Metropolitan Trial Court of Mandaluyong City, acting pursuant to an advice from the Department of Foreign Affairs that petitioner enjoyed immunity from legal processes, dismissed the criminal Informations against him. On a petition for certiorari and mandamus filed by the People, the Regional Trial Court of Pasig City, Branch 160, annulled and set aside the order of the Metropolitan Trial Court dismissing the criminal cases.[2] Petitioner, thus, brought a petition for review with this Court. On January 28, 2000, we rendered the assailed Decision denying the petition for review. We ruled, in essence, that the immunity granted to officers and staff of the ADB is not absolute; it is limited to acts performed in an official capacity. Furthermore, we held that the immunity cannot cover the commission of a crime such as slander or oral defamation in the name of official duty. On October 18, 2000, the oral arguments of the parties were heard. This Court also granted the Motion for

3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK (ADB). 4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA PROTOCOL.

Intervention of the Department of Foreign Affairs. Thereafter, the parties were directed to submit their respective memorandum. For the most part, petitioners Motion for Reconsideration deals with the diplomatic immunity of the ADB, its officials and staff, from legal and judicial processes in the Philippines, as well as the constitutional and political bases thereof. It should be made clear that nowhere in the assailed Decision is diplomatic immunity denied, even remotely. The issue in this case, rather, boils down to whether or not the statements allegedly made by petitioner were uttered while in the performance of his official functions, in order for this case to fall squarely under the provisions of Section 45 (a) of the Agreement Between the Asian Development Bank and the Government of the Republic of the Philippines Regarding the Headquarters of the Asian Development Bank, to wit:

personnel. Petitioner argues that the Decision had the effect of prejudging the criminal case for oral defamation against him. We wish to stress that it did not. What we merely stated therein is that slander, in general, cannot be considered as an act performed in an official capacity. The issue of whether or not petitioners utterances constituted oral defamation is still for the trial court to determine. WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by petitioner and intervenor Department of Foreign Affairs are DENIED with FINALITY. SO ORDERED. Davide, Jr., C.J., (Chairman), join the concurring opinion of Mr. Justice Puno. Kapunan, and Pardo, JJ., concur. Puno, J., Pls. See concurring opinion.

Officers ands 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.
After a careful deliberation of the arguments raised in petitioners and intervenors Motions for Reconsideration, we find no cogent reason to disturb our Decision of January 28, 2000. As we have stated therein, the slander of a person, by any stretch, cannot be considered as falling within the purview of the immunity granted to ADB officers and

[1]

Criminal Cases Nos. 53170 & 53171 of the Metropolitan Trial Court of Mandaluyong City, Branch 60, presided by Hon. Ma. Luisa QuijanoPadilla.
[2]

SCA Case No. 743 of the Regional Trial Court of Pasig City, Branch 160, presided by Hon. Mariano M. Umali.

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.[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 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.[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 governments 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 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 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

[1] [2]

See United States v. Guinto, 182 SCRA 644 (1990) Chavez v. Sandiganbayan, 193 SCRA 282 (1991) [3] M.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] Section 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] Section 1, Rule 112, Rules of Criminal Procedure. [9] People v. Gomez, 117 SCRA 72 (1982); People v. Casiano, 1 SCRA 478 (1961)