When does diplomatic immunity end? | Inquirer News

When does diplomatic immunity end?

By: - Reporter / @TarraINQ
/ 02:05 AM October 23, 2015

DOES diplomatic immunity grant bearers a blanket license to commit criminal acts free from liability and penalty?

No, according to a 2000 ruling by the Supreme Court.

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In ruling on a slander case against Chinese national Jeffrey Liang, at the time an economist at the Asian Development Bank (ADB), the Supreme Court said the Department of Foreign Affairs’ (DFA) grant of diplomatic immunity had “no binding effect in courts.”

The Jan. 28, 2000, ruling of the high court’s First Division  denied Liang’s appeal of a Pasig Regional Trial Court’s order for his arrest over defamatory statements against his secretary six years earlier, drawing the line between immunity covering acts performed in a diplomat’s official capacity and those outside of duty.

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“[C]ourts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by immunity. The DFA’s determination that a certain person is covered by immunity is only preliminary, which has no binding effect in courts,” the Supreme Court said.

 

Not limitless

The court said the immunity privilege granted to ADB officials in Manila under an agreement between the bank and the Philippine government was not limitless.

At the time, the DFA maintained that the economist was protected from criminal prosecution under his immunity privilege.

The DFA maintained  the same stand in 2012 when it invoked full diplomatic immunity for Panamanian diplomat Erick Bairnals Shcks, who was accused of sexually assaulting a 19-year-old girl.

Shcks was able to leave the Philippines. Spared from prosecution here, he was later declared persona non grata by the DFA.

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“The immunity mentioned therein is not absolute, but subject to the exception that the act was done in ‘official capacity,’” the Supreme Court said in a ruling written by then Associate Justice Consuelo Ynares-Santiago.

In a March 26, 2001, resolution that junked Liang’s plea with finality, the court maintained its original ruling, saying slander “cannot be considered  an act performed in his official capacity.”

“[T]he slander of a person, by any stretch, cannot be considered falling within the purview of the immunity granted to ADB officers and personnel,” the court said.

“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 an act performed in an official capacity,” it said.

The ruling echoed the application of “functional immunity,” or protection from suit that applies only in the performance of a diplomat’s official functions.

No full immunity

International law expert Harry Roque said the principle applied to the Cebu shooting, where a Chinese consul and her husband were held for the deaths of two colleagues and for wounding Consul General Song Rong Hua.

The couple has invoked diplomatic immunity.

Roque, who teaches international law at the University of the Philippines, said he believes the husband and wife should be prosecuted in the Philippines.

He said consular officials, under the 1963 Vienna Convention on Consular Relations, had no full immunity.

“Consuls only have functional and not full immunity. They can and should be prosecuted,” Roque said in a text message Thursday.

“Murder has no relation to consular functions. The Philippines should exercise jurisdiction. This is pursuant to the Vienna Convention on Diplomatic Relations,” he said.

Article 31 of the Vienna Convention spells out the bounds of immunity from criminal, civil and administrative jurisdiction of a host state, Roque said, adding this applies only to “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”

“The shooting incident in Cebu was a breach of Philippine penal laws and should be investigated and prosecuted as an ordinary crime,” he said.

Strauss-Kahn case

Perhaps the most popular illustration of the limits to diplomatic immunity was the denial of diplomatic immunity to Dominique Strauss-Kahn, a French economist and former presidential hopeful who faced sexual assault charges in New York in 2012, when he was head of the International Monetary Fund (IMF).

Strauss-Kahn was arrested at a US airport on May 14, 2011, for allegedly attempting to rape hotel housekeeper Nafissatou Diallo.

He was denied full immunity by a New York state court despite claims that the IMF’s ties with the United Nations extended protection from suit to “acts done in the executive’s personal capacity.”

New York prosecutors dropped the criminal charges against him, citing “substantial credibility issues,” and he later agreed to a settlement of Diallo’s civil case for a confidential amount. With a report from Jerome Aning

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TAGS: Cebu shooting, China, diplomatic immunity, Global Nation, News, Supreme Court
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