Korteä

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.

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 proprio 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 [See United States v. Guinto, 182 SCRA 644 (1990)] 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 [Chavez v. Sandiganbayan, 193 SCRA 282 (1991)]

Second, under Section 45 of the Agreement which provides: Jksm

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 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 [M.H. Wylie v. Rarang, 209 SCRA 357, 368 (1992)] 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 [Shauf v. CA, 191 SCRA 713 (1990); Animos v. Phil. Veterans Affairs Office, 174 SCRA 214 (1989); Dumlao v. CA, 114 SCRA 247 (1982)] 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 [Section 31, 1 (c); See also Minucher v. CA, 214 SCRA 242 (1992)] 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 [See Del Rosario, Jr. v. Bartolome, 270 SCRA 645 (1997)] Being purely a statutory right, preliminary investigation may be invoked only when specifically granted by law.7 [People v. Abejuela, 38 SCRA 324 (1971)] The rule on criminal procedure is clear that no preliminary investigation is required in cases falling within the jurisdiction of the MeTC.8 [Section 1, Rule 112, Rules of Criminal Procedure.] 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 [People v. Gomez, 117 SCRA 72 (1982); People v. Casiano, 1 SCRA 478 (1961)]

WHEREFORE, the petition is DENIED.