FIRST DIVISION
G.R. No. 125865
March 26, 2001
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
R E S O L U T I O N
YNARES-SANTIAGO, J.:
This resolves petitioner's 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 DFA'S 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.
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.
5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A
FINDING OF FACT ON THE MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH
PREJUDGED PETITIONER'S CASE BEFORE THE METROPOLITAN TRIAL COURT
(MTC)-MANDALUYONG.
6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT
APPLICABLE TO THIS CASE.
This case has its origin in two criminal Informations1 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 Intervention of the Department of
Foreign Affairs. Thereafter, the parties were directed to submit their
respective memorandum.
For the most part, petitioner's 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:
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.
After a careful deliberation of the arguments raised in
petitioner's and intervenor's 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 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 petitioner's 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.
Kapunan and Pardo, JJ ., concur.
Davide, Jr., C.J., I also join concurring opinion of Mr. Justice
Puno.
Puno, J., Please see concurring opinion.
Concurring Opinions
PUNO, J., concurring:
For resolution is the Motion for Reconsideration filed by
petitioner Jeffrey Liang of this Court's decision dated January 28, 2000 which
denied the petition for review. We there held that: the protocol communication
of the Department of Foreign Affairs to the effect that petitioner Liang is
covered by immunity is only preliminary and has no binding effect in courts;
the immunity provided for under Section 45(a) of the Headquarters Agreement is
subject to the condition that the act be done in an "official
capacity"; that slandering a person cannot be said to have been done in an
"official capacity" and, hence, it is not covered by the immunity
agreement; 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; the commission of a crime is
not part of official duty; and that a preliminary investigation is not a matter
of right in cases cognizable by the Metropolitan Trial Court.
Petitioner's motion for reconsideration is anchored on the
following arguments:
1. The DFA's 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;
3. The immunity extends to all staff of the Asian
Development Bank (ADB);
4. Due process was fully accorded the complainant to rebut
the DFA protocol;
5. The decision of January 28, 2000 erroneously made a
finding of fact on the merits, namely, the slandering of a person which
prejudged petitioner's case before the Metropolitan Trial Court (MTC)
Mandaluyong; and
6. The Vienna Convention on diplomatic relations is not
applicable to this case.
Petitioner contends that a determination of a person's
diplomatic immunity by the Department of Foreign Affairs is a political
question. It is solely within the prerogative of the executive department and
is conclusive upon the courts. In support of his submission, petitioner cites
the following cases: WHO vs. Aquino;1 International
Catholic Migration Commission vs. Calleja;2 The Holy See
vs. Rosario, Jr.;3 Lasco vs. United Nations;4 and DFA
vs. NLRC.5
It is further contended that the immunity conferred
under the ADB Charter and the Headquarters Agreement is absolute. It is
designed to safeguard the autonomy and independence of international
organizations against interference from any authority external to the
organizations. It is necessary to allow such organizations to discharge their
entrusted functions effectively. The only exception to this immunity is when
there is an implied or express waiver or when the immunity is expressly limited
by statute. The exception allegedly has no application to the case at bar.
Petitioner likewise urges that the international
organization's immunity from local jurisdiction empowers the ADB alone
to determine what constitutes "official acts" and the same cannot be
subject to different interpretations by the member states. It asserts that
the Headquarters Agreement provides for remedies to check abuses against the
exercise of the immunity. Thus, Section 49 states that the "Bank shall
waive the immunity accorded to any person if, in its opinion, such immunity
would impede the course of justice and the waiver would not prejudice the
purposes for which the immunities are accorded." Section 51 allows for
consultation between the government and the Bank should the government consider
that an abuse has occurred. The same section provides the mechanism for a
dispute settlement regarding, among others, issues of interpretation or
application of the agreement.
Petitioner's argument that a determination by the Department
of Foreign Affairs that he is entitled to diplomatic immunity is a political
question binding on the courts, is anchored on the ruling enunciated in the
case of WHO, et al. vs. Aquino, et al.,6 viz:
"It is a recognized principle of international law and
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 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 in this case, or other officer acting under
his direction. Hence, in adherence to the settled principle that courts may not
so exercise their jurisdiction by seizure and detention of property, as to
embarrass the executive arm of the government in conducting foreign relations,
it is accepted doctrine that in such cases the judicial department of the
government follows the action of the political branch and will not embarrass
the latter by assuming an antagonistic jurisdiction."
This ruling was reiterated in the subsequent cases of International
Catholic Migration Commission vs. Calleja;7The Holy See vs.
Rosario, Jr.;8 Lasco vs. UN;9 and DFA
vs. NLRC.10
The case of WHO vs. Aquino involved the
search and seizure of personal effects of petitioner Leonce Verstuyft, an
official of the WHO. Verstuyft was certified to be entitled to diplomatic
immunity pursuant to the Host Agreement executed between the Philippines and
the WHO.
ICMC vs. Calleja concerned a petition for
certification election filed against ICMC and IRRI. As international
organizations, ICMC and IRRI were declared to possess diplomatic immunity. It
was held that they are not subject to local jurisdictions. It was ruled that
the exercise of jurisdiction by the Department of Labor over the case would
defeat the very purpose of immunity, which is to shield the affairs of
international organizations from political pressure or control by the host
country and to ensure the unhampered performance of their functions.
Holy See v. Rosario, Jr. involved an action for
annulment of sale of land against the Holy See, as represented by the Papal
Nuncio. The Court upheld the petitioner's defense of sovereign immunity. It
ruled that where a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action
relating to private immovable property situated in the territory of the
receiving state, which the envoy holds on behalf of the sending state for the
purposes of the mission, with all the more reason should immunity be recognized
as regards the sovereign itself, which in that case is the Holy See.
In Lasco vs. United Nations, the United Nations
Revolving Fund for Natural Resources Exploration was sued before the NLRC for
illegal dismissal. The Court again upheld the doctrine of diplomatic immunity
invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal case
filed against the Asian Development Bank. Pursuant to its Charter and the
Headquarters Agreement, the diplomatic immunity of the Asian Development Bank
was recognized by the Court.
It bears to stress that all of these cases pertain to the
diplomatic immunity enjoyed by international organizations. Petitioner asserts
that he is entitled to the same diplomatic immunity and he cannot be prosecuted
for acts allegedly done in the exercise of his official functions.
The term "international organizations" —
"is generally used to describe an organization set up
by agreement between two or more states. Under contemporary international law,
such organizations are endowed with some degree of international legal
personality such that they are capable of exercising specific rights, duties
and powers. They are organized mainly as a means for conducting general
international business in which the member states have an interest."11
International public officials have been defined as:
". . . persons who, on the basis of an international
treaty constituting a particular international community, are appointed by this
international community, or by an organ of it, and are under its control to
exercise, in a continuous way, functions in the interest of this particular
international community, and who are subject to a particular personal
status."12
"Specialized agencies" are international
organizations having functions in particular fields, such as posts,
telecommunications, railways, canals, rivers, sea transport, civil aviation,
meteorology, atomic energy, finance, trade, education and culture, health and
refugees.13
Issues
1. Whether petitioner Liang, as an official of an
international organization, is entitled to diplomatic immunity;
2. Whether an international official is immune from criminal
jurisdiction for all acts, whether private or official;
3. Whether the authority to determine if an act is official
or private is lodged in the courts;
4. Whether the certification by the Department of Foreign
Affairs that petitioner is covered by immunity is a political question that is
binding and conclusive on the courts.
Discussion
I
A perusal of the immunities provisions in various
international conventions and agreements will show that the nature and degree of immunities
vary depending on who the recipient is. Thus:
1. Charter of the United Nations
"Article 105 (1): The Organization shall enjoy in the
territory of each of its Members such privileges 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 the Organization shall similarly enjoy such
privileges and immunities as are necessary for the independent 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.
xxx xxx xxx
Section 11 (a): Representatives of Members to the principal
and subsidiary organs of the United Nations . . shall . . . enjoy . . .
immunity from personal arrest or detention and from seizure of their personal
baggage, and, in respect of words spoken or written and all acts done by them
in their capacity as representatives, immunity from legal process of every
kind.
xxx xxx xxx
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 independent exercise of their
functions in connection with the United Nations. Consequently, a Member not
only has the right but is under a duty to waive the immunity of its
representative in any case where in the opinion of the Member the immunity
would impede the course of justice, and it can be waived without prejudice to
the purpose for which the immunity is accorded.
xxx xxx xxx
Section 18 (a): Officials of the United Nations shall be
immune from legal process in respect of words spoken or written and all acts
performed by them in their official capacity.
xxx xxx xxx
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 facilities
accorded to diplomatic envoys, in accordance with international law.
Section 20: Privileges and immunities are granted to
officials in the interest of the United Nations and not for the personal
benefit of the individuals themselves. The Secretary-General shall have the
right and the duty to waive the immunity of any official in any case where, in
his opinion, the immunity would impede the course of justice and can be waived
without prejudice to the interests of the United Nations.
xxx xxx xxx
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) in respect 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 any form of arrest or detention. The
receiving State shall treat him with due respect and shall take all appropriate
steps to prevent any attack on his person, freedom, or dignity.
xxx xxx xxx
Article 31 (1): A diplomatic agent shall enjoy immunity from
the criminal jurisdiction of the receiving State. He shall also enjoy immunity
from its civil and administrative jurisdiction, except in certain cases.
xxx xxx xxx
Article 38 (1): Except in so far as additional privileges
and immunities may be granted by the receiving State, a diplomatic agent who is
a national of or permanently a resident in that State shall enjoy only immunity
from jurisdiction, and inviolability, in respect of official acts performed in
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, except in the case of a grave crime and
pursuant to a decision by the competent judicial authority.
xxx xxx xxx
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 acts performed in the exercise
of consular functions.
Article 43 (2): The provisions of paragraph 1 of this Article
shall not, however, apply in respect of a civil action either: (a) arising out
of a contract concluded by a consular officer or a consular employee in which
he did not contract expressly or impliedly as an agent of the sending State; or
(b) by a third party for damage arising from an accident in the receiving State
caused 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 by whomsoever held, shall enjoy immunity from
every form of legal process except in so far as in any particular case they
have expressly waived their immunity. It is, however, understood that no waiver
of immunity shall extend to any measure of execution.
Section 13 (a): Representatives of members at meetings
convened by a specialized agency shall, 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 personal baggage, and in
respect of words spoken or written and all acts done by them in their official
capacity, immunity from legal process of every kind.
xxx xxx xxx
Section 19 (a): Officials of the specialized agencies shall
be immune from legal process in respect of words spoken or written and all acts
performed by them in their official capacity.
xxx xxx xxx
Section 21: In addition to the immunities and privileges
specified in sections 19 and 20, the executive head of each specialized agency,
including a any official acting on his behalf during his 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, in accordance with international law."
6. Charter of the ADB
"Article 50 (1): The Bank shall enjoy immunity from
every form of legal process, except in cases arising out of or in connection
with the exercise of its powers to borrow money, to guarantee obligations, or
to buy and sell or underwrite the sale of securities, in which cases actions
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.
xxx xxx xxx
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 with respect to acts performed by
them in their official capacity, except when the Bank waives the
immunity."
7. ADB Headquarters Agreement
"Section 5: The Bank shall enjoy immunity from every
form of legal process, except in cases arising out of or in connection with the
exercise of its powers to borrow money, to guarantee obligations, or to buy and
sell or underwrite the sale of securities, in which cases actions may be
brought against the Bank in a court of competent jurisdiction in the Republic
of the Philippines.
xxx xxx xxx
Section 44: Governors, other representatives of Members,
Directors, the President, Vice-President and executive officers as may be
agreed upon between the Government and the Bank 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 words spoken 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 and facilities as are enjoyed by
members of diplomatic missions of comparable rank, subject to corresponding
conditions and obligations.
Section 45 (a): Officers and staff of the Bank, including
for the purposes of this Article experts and consultants performing missions
for the Bank, shall enjoy . . . immunity from legal process with respect to
acts performed by them in their official capacity, except when the Bank waives
the immunity."
II
There are three major differences between diplomatic and
international immunities. Firstly, one of the recognized
limitations of diplomatic immunity is that members of the diplomatic staff of a
mission may be appointed from among the nationals of the receiving State only
with the express consent of that State; apart from inviolability and immunity
from jurisdiction in respect of official acts performed in the exercise of
their functions, nationals enjoy only such privileges and immunities as may be
granted by the receiving State. International immunities may be specially
important in relation to the State of which the official is a national.
Secondly, the immunity of a diplomatic agent from the jurisdiction of the
receiving State does 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. Thirdly, the effective sanctions which secure respect for diplomatic
immunity are the principle of reciprocity and the danger of retaliation by the
aggrieved State; international immunities enjoy no similar protection.14
The generally accepted principles which are now regarded
as the foundation of international immunities are contained in the ILO
Memorandum, which reduced them in three basic propositions, namely: (1)
that international institutions should have a status which protects them
against control or interference by any one government in the performance of
functions for the effective discharge of which they are responsible to
democratically constituted international bodies in which all the nations
concerned are represented; (2) that no country should derive any financial
advantage by levying fiscal charges on common international funds; and (3) that
the international organization should, as a collectivity of States Members, be
accorded the facilities for the conduct of its official business customarily
extended to each other by its individual member States. The thinking
underlying these propositions is essentially institutional in character. It is
not concerned with the status, dignity or privileges of individuals, but with
the elements of functional independence necessary to free international
institutions from national control and to enable them to discharge their
responsibilities impartially on behalf of all their members.15
III
Positive international law has devised three methods of
granting privileges and immunities to the personnel of international
organizations. The first is by simple conventional stipulation,
as was the case in the Hague Conventions of 1899 and 1907. The second is
by internal legislation whereby the government of a state, upon whose territory
the international organization is to carry out its functions, recognizes the
international 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
the state in question to grant concessions is lacking. Such was the case with
the Central Commission of the Rhine at Strasbourg and the International
Institute of Agriculture at Rome. The third is a combination
of the first two. In this third method, one finds a conventional obligation to
recognize a certain status of an international organization and its personnel,
but the status is described in broad and general terms. The specific definition
and application of those general terms are determined by an accord between the
organization itself and the state wherein it is located. This is the case with
the League of Nations, the Permanent Court of Justice, and the United Nations.16
The Asian Development Bank and its Personnel fall under
this third category.
There is a connection between diplomatic privileges and
immunities and those extended to international officials. The connection
consists in the granting, by contractual provisions, of the relatively
well-established body of diplomatic privileges and immunities to international
functionaries. This connection is purely historical. Both types of officials
find the basis of their special status in the necessity of retaining functional
independence and freedom from interference by the state of residence. However,
the legal relationship between an ambassador and the state to which he is
accredited is entirely different from the relationship between the
international official and those states upon whose territory he might carry out
his functions.17
The privileges and immunities of diplomats and those of
international officials rest upon different legal foundations. Whereas
those immunities awarded to diplomatic agents are a right of the sending state
based on customary international law, those granted to international officials
are based on treaty or conventional law. Customary international law places no
obligation on a state to recognize a special status of an international
official or to grant him jurisdictional immunities. Such an obligation can only
result from specific treaty provisions.18
The special status of the diplomatic envoy is regulated by
the principle of reciprocity by which a state is free to treat the envoy of
another state as its envoys are treated by that state. The juridical basis of
the diplomat's position is firmly established in customary international law.
The diplomatic envoy is appointed by the sending State but it has to make
certain that the agreement of the receiving State has been given for the person
it proposes to accredit as head of the mission to that State.19
The staff personnel of an international organization —
the international officials — assume a different position as regards their
special status. They are appointed or elected to their position by the
organization itself, or by a competent organ of it; they are responsible to the
organization and their official acts are imputed to it. The juridical
basis of their special position is found in conventional law,20 since
there is no established basis of usage or custom in the case of the
international official. Moreover, the relationship between an international
organization and a member-state does not admit of the principle of reciprocity,21 for
it is contradictory to the basic principle of equality of states. An
international organization carries out functions in the interest of every
member state equally. The international official does not carry out his
functions in the interest of any state, but in serving the organization he
serves, indirectly, each state equally. He cannot be, legally, the object of
the operation of the principle of reciprocity between states under such
circumstances. It is contrary to the principle of equality of states for one
state member of an international organization to assert a capacity to extract
special privileges for its nationals from other member states on the basis of a
status awarded by it to an international organization. It is upon this
principle of sovereign equality that international organizations are built.
It follows from this same legal circumstance that a state
called upon to admit an official of an international organization does not have
a capacity to declare him persona non grata.
The functions of the diplomat and those of
the international official are quite different. Those of the diplomat are
functions in the national interest. The task of the ambassador is to represent
his state, and its specific interest, at the capital of another state. The
functions of the international official are carried out in the international
interest. He does not represent a state or the interest of any specific state.
He does not usually "represent" the organization in the true sense of
that term. His functions normally are administrative, although they may be
judicial or executive, but they are rarely political or functions of representation,
such as those of the diplomat.
There is a difference of degree as well as of kind. The
interruption of the activities of a diplomatic agent is likely to produce
serious harm to the purposes for which his immunities were granted. But the
interruption of the activities of the international official does not, usually,
cause serious dislocation of the functions of an international secretariat.22
On the other hand, they are similar in the sense that acts
performed in an official capacity by either a diplomatic envoy or an
international official are not attributable to him as an individual but are
imputed to the entity he represents, the state in the case of the diplomat, and
the organization in the case of the international official.23
IV
Looking back over 150 years of privileges and immunities
granted to the personnel of international organizations, it is clear that they
were accorded a wide scope of protection in the exercise of their functions —
The Rhine Treaty of 1804 between the German Empire and France which provided
"all the rights of neutrality" to persons employed in regulating
navigation in the international interest; The Treaty of Berlin of 1878 which
granted the European Commission of the Danube "complete independence of
territorial authorities" in the exercise of its functions; The Covenant of
the League which granted "diplomatic immunities and privileges."
Today, the age of the United Nations finds the scope of protection
narrowed. The current tendency is to reduce privileges and immunities
of personnel of international organizations to a minimum. The tendency
cannot be considered as a lowering of the standard but rather as a recognition
that the problem on the privileges and immunities of international officials is
new. The solution to the problem presented by the extension of diplomatic
prerogatives to international functionaries lies in the general reduction of
the special position of both types of agents in that the special status of each
agent is granted in the interest of function. The wide grant of diplomatic
prerogatives was curtailed because of practical necessity and because the
proper functioning of the organization did not require such extensive immunity
for its officials. While the current direction of the law seems to be to
narrow the prerogatives of the personnel of international organizations, the
reverse is true with respect to the prerogatives of the organizations
themselves, considered as legal entities. Historically, states have been
more generous in granting privileges and immunities to organizations than they
have to the personnel of these organizations.24
Thus, Section 2 of the General Convention on the Privileges
and Immunities of the United Nations states that the UN shall enjoy immunity
from every form of legal process except insofar as in any particular case it
has expressly waived its immunity. Section 4 of the Convention on the
Privileges and Immunities of the Specialized Agencies likewise provides that
the specialized agencies shall enjoy immunity from every form of legal process
subject to the same exception. Finally, Article 50(1) of the ADB Charter and
Section 5 of the Headquarters Agreement similarly provide that the bank shall
enjoy immunity from every form of legal process, except in cases arising out of
or in connection with the exercise of its powers to borrow money, to guarantee
obligations, or to buy and sell or underwrite the sale of securities.
The phrase "immunity from every form of legal
process" as used in the UN General Convention has been interpreted to mean
absolute immunity from a state's jurisdiction to adjudicate or enforce its law
by legal process, and it is said that states have not sought to restrict that
immunity of the United Nations by interpretation or amendment. Similar
provisions are contained in the Special Agencies Convention as well as in the
ADB Charter and Headquarters Agreement. These organizations were accorded
privileges and immunities in their charters by language similar to that
applicable to the United Nations. It is clear therefore that these
organizations were intended to have similar privileges and immunities.25 From
this, it can be easily deduced that international organizations enjoy absolute
immunity similar to the diplomatic prerogatives granted to diplomatic envoys.
Even in the United States this theory seems to be the
prevailing rule. The Foreign Sovereign Immunities Act was passed adopting the
"restrictive theory" limiting the immunity of states under
international law essentially to activities of a kind not carried on by private
persons. Then the International Organizations Immunities Act came into effect
which gives to designated international organizations the same immunity from
suit and every form of judicial process as is enjoyed by foreign governments.
This gives the impression that the Foreign Sovereign Immunities Act has the
effect of applying the restrictive theory also to international organizations
generally. However, aside from the fact that there was no indication in its
legislative history that Congress contemplated that result, and considering
that the Convention on Privileges and Immunities of the United Nations exempts
the United Nations "from every form of legal process," conflict with
the United States obligations under the Convention was sought to be avoided by
interpreting the Foreign Sovereign Immunities Act, and the restrictive theory,
as not applying to suits against the United Nations.26
On the other hand, international officials are governed
by a different rule. Section 18(a) of the General Convention on Privileges
and Immunities of the United Nations states that officials of the United
Nations shall be immune from legal process in respect of words spoken or
written and all acts performed by them in their official capacity. The
Convention on Specialized Agencies carries exactly the same provision. The
Charter of the ADB provides under Article 55(i) that officers and employees of
the bank shall be immune from legal process with respect to acts performed by
them in their official capacity except when the Bank waives immunity. Section
45 (a) of the ADB Headquarters Agreement accords the same immunity to the
officers and staff of the bank. There can be no dispute that international
officials are entitled to immunity only with respect to acts performed in their
official capacity, unlike international organizations which enjoy absolute
immunity.
Clearly, the most important immunity to an international
official, in the discharge of his international functions, is immunity from
local jurisdiction. There is no argument in doctrine or practice with the
principle that an international official is independent of the jurisdiction of
the local authorities for his official acts. Those acts are not
his, but are imputed to the organization, and without waiver the local courts
cannot hold him liable for them. In strict law, it would seem that even
the organization itself could have no right to waive an official's immunity for
his official acts. This permits local authorities to assume jurisdiction over
an individual for an act which is not, in the wider sense of the term, his act
at all. It is the organization itself, as a juristic person, which should waive
its own immunity and appear in court, not the individual, except insofar as he
appears in the name of the organization. Provisions for immunity from
jurisdiction for official acts appear, aside from the aforementioned treatises,
in the constitution of most modern international organizations. The acceptance
of the principle is sufficiently widespread to be regarded as declaratory of
international law.27
V
What then is the status of the international official
with respect to his private acts?
Section 18 (a) of the General Convention has been
interpreted to mean that officials of the specified categories are denied
immunity from local jurisdiction for acts of their private
life and empowers local courts to assume jurisdiction in such cases
without the necessity of waiver.28 It has earlier been
mentioned that historically, international officials were granted diplomatic
privileges and immunities and were thus considered immune for both private and
official acts. In practice, this wide grant of diplomatic prerogatives was
curtailed because of practical necessity and because the proper functioning of
the organization did not require such extensive immunity for its
officials. Thus, the current status of the law does not maintain that
states grant jurisdictional immunity to international officials for acts of
their private lives.29 This much is explicit from the Charter
and Headquarters Agreement of the ADB which contain substantially similar
provisions to that of the General Convention.
VI
Who is competent to determine whether a given act is
private or official?
This is an entirely different question. In connection with
this question, the current tendency to narrow the scope of
privileges and immunities of international officials and representatives is
most apparent. Prior to the regime of the United Nations, the determination of
this question rested with the organization and its decision was final. By the
new formula, the state itself tends to assume this competence. If the
organization is dissatisfied with the decision, under the provisions of the
General Convention of the United States, or the Special Convention for
Specialized Agencies, the Swiss Arrangement, and other current dominant
instruments, it may appeal to an international tribunal by procedures outlined
in those instruments. Thus, the state assumes this competence in the first
instance. It means that, if a local court assumes jurisdiction over an act
without the necessity of waiver from the organization, the determination of the
nature of the act is made at the national level.30
It appears that the inclination is to place the
competence to determine the nature of an act as private or official in the
courts of the state concerned. That the prevalent notion seems to be to
leave to the local courts determination of whether or not a given act is
official or private does not necessarily mean that such determination is final.
If the United Nations questions the decision of the Court, it may invoke
proceedings for settlement of disputes between the organization and the member
states as provided in Section 30 of the General Convention. Thus, the decision
as to whether a given act is official or private is made by the national courts
in the first instance, but it may be subjected to review in the international
level if questioned by the United Nations.31
A similar view is taken by Kunz, who writes that the
"jurisdiction of local courts without waiver for acts of private life
empowers the local courts to determine whether a certain act is an official act
or an act of private life," on the rationale that since the determination
of such question, if left in the hands of the organization, would consist in
the execution, or non-execution, of waiver, and since waiver is not mentioned
in connection with the provision granting immunities to international
officials, then the decision must rest with local courts.32
Under the Third Restatement of the Law, it is suggested that
since an international official does not enjoy personal inviolability from
arrest or detention and has immunity only with respect to official acts, he is
subject to judicial or administrative process and must claim his immunity in
the proceedings by showing that the act in question was an official act.
Whether an act was performed in the individual's official capacity is a
question for the court in which a proceeding is brought, but if the
international organization disputes the court's finding, the dispute between
the organization and the state of the forum is to be resolved by negotiation,
by an agreed mode of settlement or by advisory opinion of the International
Court of Justice.33
Recognizing the difficulty that by reason of the right of a
national court to assume jurisdiction over private acts without a waiver of
immunity, the determination of the official or private character of a
particular act may pass from international to national control, Jenks proposes
three ways of avoiding difficulty in the matter. The first would
be for a municipal court before which a question of the official or private
character of a particular act arose to accept as conclusive in the matter any
claim by the international organization that the act was official in character,
such a claim being regarded as equivalent to a governmental claim that a
particular act is an act of State. Such a claim would be in effect a claim by
the organization that the proceedings against the official were a violation of
the jurisdictional immunity of the organization itself which is unqualified and
therefore not subject to delimitation in the discretion of the municipal court.
The second would be for a court to accept as conclusive in the
matter a statement by the executive government of the country where the matter
arises certifying the official character of the act. The third would
be to have recourse to the procedure of international arbitration. Jenks opines
that it is possible that none of these three solutions would be applicable in
all cases; the first might be readily acceptable only in the clearest cases and
the second is available only if the executive government of the country where
the matter arises concurs in the view of the international organization
concerning the official character of the act. However, he surmises that taken
in combination, these various possibilities may afford the elements of a
solution to the problem.34
One final point. The international official's immunity for
official acts may be likened to a consular official's immunity from arrest,
detention, and criminal or civil process which is not absolute but applies only
to acts or omissions in the performance of his official functions, in the
absence of special agreement. Since a consular officer is not immune from all
legal process, he must respond to any process and plead and prove immunity on
the ground that the act or omission underlying the process was in the
performance of his official functions. The issue has not been authoritatively
determined, but apparently the burden is on the consular officer to prove his
status as well as his exemption in the circumstances. In the United States, the
US Department of State generally has left it to the courts to determine whether
a particular act was within a consular officer's official duties.35
Submissions
On the bases of the foregoing disquisitions, I submit the
following conclusions:
First, petitioner Liang, a bank official of ADB, is
not entitled to diplomatic immunity and hence his immunity is not absolute.
Under
the Vienna Convention on Diplomatic Relations, a diplomatic envoy is immune
from criminal jurisdiction of the receiving State for all acts, whether private
or official, and hence he cannot be arrested, prosecuted and punished for any
offense he may commit, unless his diplomatic immunity is waived.36 On
the other hand, officials of international organizations enjoy
"functional" immunities, that is, only those necessary for the
exercise of the functions of the organization and the fulfillment of its purposes.37 This
is the reason why the ADB Charter and Headquarters Agreement explicitly
grant immunity from legal process to bank officers and employees only with
respect to acts performed by them in their official capacity, except when the
Bank waives immunity. In other words, officials and employees of the ADB are subject to the
jurisdiction of the local courts for their private acts, notwithstanding the
absence of a waiver of immunity.
Petitioner cannot also seek relief under the mantle of
"immunity from every form of legal process" accorded to ADB as an
international organization. The immunity of ADB is absolute whereas the
immunity of its officials and employees is restricted only to official acts.
This is in consonance with the current trend in international law which seeks
to narrow the scope of protection and reduce the privileges and immunities
granted to personnel of international organizations, while at the same time
aims to increase the prerogatives of international organizations.
Second, considering that bank officials and employees
are covered by immunity only for their official acts, the necessary inference
is that the authority of the Department of Affairs, or even of the ADB for that
matter, to certify that they are entitled to immunity is limited only to acts
done in their official capacity. Stated otherwise, it is not within the power
of the DFA, as the agency in charge of the executive department's foreign
relations, nor the ADB, as the international organization vested with the right
to waive immunity, to invoke immunity for private acts of bank officials and
employees, since no such prerogative exists in the first place. If the immunity does not exist,
there is nothing to certify.
As an aside, ADB cannot even claim to have the right to
waive immunity for private acts of its officials and employees. The Charter and
the Headquarters Agreement are clear that the immunity can be waived only with
respect to official acts because this is only the extent to which the privilege
has been granted. One cannot waive the right to a privilege which has never
been granted or acquired.
Third, I choose to adopt the view that it is the
local courts which have jurisdiction to determine whether or not a given act is
official or private. While there is a dearth of cases on the matter under
Philippine jurisprudence, the issue is not entirely novel.
The case of M.H. Wylie, et al. vs. Rarang, et al.38 concerns
the extent of immunity from suit of the officials of a United States Naval Base
inside the Philippine territory. Although a motion to dismiss was filed by the
defendants therein invoking their immunity from suit pursuant to the RP-US
Military Bases Agreement, the trial court denied the same and, after trial,
rendered a decision declaring that the defendants are not entitled to immunity
because the latter acted beyond the scope of their official duties. The Court
likewise applied the ruling enunciated in the case of Chavez vs.
Sandiganbayan39 to the effect that a mere invocation of the
immunity clause does not ipso facto result in the charges being automatically
dropped. While it is true that the Chavez case involved a public official, the
Court did not find any substantial reason why the same rule cannot be made to
apply to a US official assigned at the US Naval Station located in the
Philippines. In this case, it was the local courts which ascertained whether
the acts complained of were done in an official or personal capacity.
In the case of The Holy See vs. Rosario, Jr.,40 a
complaint for annulment of contract of sale, reconveyance, specific performance
and damages was filed against petitioner. Petitioner moved to dismiss on the
ground of, among others, lack of jurisdiction based on sovereign immunity from
suit, which was denied by the trial court. A motion for reconsideration, and
subsequently, a "Motion for a Hearing for the Sole Purpose of Establishing
Factual Allegation for Claim of Immunity as a Jurisdictional Defense" were
filed by petitioner. The trial court deferred resolution of said motions until
after trial on the merits. On certiorari, the Court there ruled on the issue of
petitioner's non-suability on the basis of the allegations made in the
pleadings filed by the parties. This is an implicit recognition of the court's
jurisdiction to ascertain the suability or non-suability of the sovereign by
assessing the facts of the case. The Court hastened to add that when a state or
international agency wishes to plead sovereign or diplomatic immunity in a
foreign court, in some cases, the defense of sovereign immunity was submitted
directly to the local courts by the respondents through their private counsels,
or where the foreign states bypass the Foreign Office, the courts can inquire
into the facts and make their own determination as to the nature of the acts and
transactions involved.
Finally, it appears from the records of this case that
petitioner is a senior economist at ADB and as such he makes country project
profiles which will help the bank in deciding whether to lend money or support
a particular project to a particular country.41 Petitioner
stands charged of grave slander for allegedly uttering defamatory remarks
against his secretary, the private complainant herein. Considering that the
immunity accorded to petitioner is limited only to acts performed in his
official capacity, it becomes necessary to make a factual determination of
whether or not the defamatory utterances were made pursuant and in relation to
his official functions as a senior economist.
I vote to deny the motion for reconsideration.
Davide, Jr., C.J., concurs.
