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692 SUPREME COURT REPORTS ANNOTATED

Liang vs. People
*
G.R. No. 125865. January 28, 2000.

JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE

OF THE PHILIPPINES, respondent.

International Law; Foreign Affairs; Diplomatic Immunity;

Courts; Due Process; Courts cannot blindly adhere and take on its
face a communication from the Department of Foreign Affairs that a

________________

* FIRST DIVISION.

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particular person is covered by any immunity; Due process is a right

of the accused as much as it is of the prosecution.·Courts cannot
blindly adhere and take on its face the communication from the
DFA that petitioner is covered by any immunity. The DFAÊs
determination that a certain person is covered by immunity is only
preliminary which has no binding effect in courts. In receiving ex-
parte the DFAÊs advice and in motu proprio dismissing the two
criminal cases without notice to the prosecution, the latterÊs 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

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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.
Same; Same; Same; Criminal Law; Slander; Slandering a
person could not possibly be covered by the immunity agreement
between the Asian Development Bank and the Republic of the
Philippines because our laws do not allow the ccmmission of a
crime, such as defamation, in the name of official duty.·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 governmentÊs
chief legal counsel, the Solicitor General, does not support the stand
taken by petitioner and that of the DFA.
Courts; Criminal Procedure; Preliminary Investigation;
Preliminary investigation is not a matter of right in cases cognizable
by the MeTC·being purely a statutory right, it may be invoked only
when specifically granted by law.·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
when specifically granted by law. The rule on criminal procedure is
clear that no preliminary investigation is required in cases falling
within the 7

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Liang vs. People

jurisdiction of the MeTC. Besides, the absence of preliminary

investigation does not affect the courtÊs jurisdiction nor does it

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impair the validity of the information or otherwise render it

defective.

PETITION for review on certiorari of a decision of the

Regional Trial Court of Pasig City, Br. 160.

The facts are stated in the opinion of the Court.

Romulo, Mabanta, Buenaventura, Sayoc & De los
Angeles for petitioner.
The Solicitor General for 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 petitionerÊs 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

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Liang vs. People

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 DFAÊs determination that a certain
person is covered by immunity is only preliminary which
has no binding effect in courts. In receiving ex-parte the
DFAÊs advice and in motu proprio dismissing the two
criminal cases without notice to the prosecution, the
latterÊs 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 2
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 act was done in „official
capacity.‰ It is therefore necessary to determine if
petitionerÊs case falls within the ambit of Section 45(a).
Thus, the prosecution should have been given the chance to
rebut the DFA protocol

________________

1 See United States v. Guinto, 182 SCRA 644 (1990).

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2 Chavez v. Sandiganbayan, 193 SCRA 282 (1991).

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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 commission3 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 4
faith or
beyond the scope of his authority or jurisdiction. It appears
that even the governmentÊs 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
diplomatic5 agent in the receiving state outside his official
functions. 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
6
in cases cognizable by
the MeTC such as the one at bar. Being purely a statutory
right, preliminary investigation
7
may be invoked only when
specifically granted by law. The rule on criminal procedure
is clear that no preliminary investigation is required in
cases

_______________

3 M.H. Wylie v. Rarang, 209 SCRA 357, 368 (1992).

4 Shauf v. CA, 191 SCRA 713 (1990); Ammos v. Phil. Veterans Affairs

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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).

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8
falling within the jurisdiction of the MeTC. Besides, the
absence of preliminary investigation does not affect the
courtÊs jurisdiction nor does it impair the 9validity of the
information or otherwise render it defective.
WHEREFORE, the petition is DENIED.
SO ORDERED.

Davide, Jr. (C.J.), Puno, Kapunan and Pardo, JJ.,

concur.

Petition denied.

Notes.·In Public International Law, when a state or

international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the
Foreign Office of the state where it is sued to convey to the
court that said defendant is entitled to immunity. In the
United States, the procedure followed is the process of
„suggestion,‰ where the foreign state or the international
organization sued in an American court requests the
Secretary of State to make a determination as to whether it
is entitled to immunity. If the Secretary of State finds that
the defendant is immune from suit, he, in turn, asks the
Attorney General to submit to the court a „suggestion‰ that
the defendant is entitled to immunity. In the Philippines,
the practice is for the foreign government or the
international organization to first secure an executive
endorsement of its claim of sovereign or diplomatic
immunity. But how the Philippine Foreign Office conveys
its endorsement to the courts varies. (Holy See, The vs.
Rosario, Jr., 238 SCRA 524 [1994])
It is a recognized principle of international law and

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under our system of separation of powers that diplomatic

immunity is essentially a political question and courts
should refuse to look beyond a determination by the
executive branch of the

________________

8 Section 1, Rule 112, Rules of Criminal Procedure.

9 People v. Gomez, 117 SCRA 72 (1982); People v. Casiano, 1 SCRA 478
(1961).

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government, and where the plea of diplomatic immunity is

recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the
courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government,
the Solicitor General or other officer acting under his
direction. (Lasco vs. United Nations Revolving Fund for
Natural Resources Exploration, 241 SCRA 681 [1995])

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