Diplomatic impunity for rape

Our own government has offered the mantle of diplomatic immunity to protect a Panamanian “diplomat” who stands accused of having raped a Filipino woman. Now that the Senate will launch its own investigation, we must show our outrage and aim at any or all of the following.

One, Panama waives its man’s immunity. Or two, our Department of Foreign Affairs withdraws its certification of immunity. And either way, three, the executive branch modernizes its reading of the law and strictly construes the rationale of “functional necessity” underlying the doctrine of immunity.

We must be careful about two competing concerns here. On one hand, Filipinos tend to think that immunity is written in stone. Yet what we have here is a debatable case where the claim of immunity is, to use the lawyer’s double negative, not insurmountable. On the other hand, we must not forget that we also have embassies and consulates abroad, and that we shouldn’t adopt such low standards of diplomatic protection that would reciprocally render our own diplomats vulnerable.

Compare this to an even more famous claim of diplomatic immunity. Dominique Strauss-Kahn was the International Monetary Fund managing director, the highest executive officer in that international organization. He was accused of sexually assaulting a chambermaid in a ritzy hotel in New York. Had it not been for this appalling episode, he might be president of France today, given that his party just won the election the other day and he was, until the hotel incident, one of their “presidentiables.”

Despite Strauss-Kahn’s protestations of immunity, he was arrested, handcuffed and detained, forcibly off-loaded from a plane and made to do the notorious “perp walk” as he was put behind bars. That was because he enjoyed only “functional immunity” (for “acts performed [in his] official capacity,” in the words of the IMF Charter), not “status immunity” (which offers absolute protection from all civil and criminal liability). Even after the criminal charges were dropped because the maid showed credibility problems, when she filed a civil case for damages, the judge still rejected the IMF hotshot’s plea of immunity. Yet initially some experts said he could make a case that he was in the performance of duty since he was in New York on official mission, and indeed the IMF was paying for his $3,000-a-night suite.

Our DFA had similar qualms in this case except that it ended up giving immunity. The accused, 35-year-old Erick Bairnals Shcks, is a “technical officer of the Panama Marine Authority” who works in his country’s Manila embassy. Firstly, the fact that he holds a diplomatic passport does not automatically vest him with diplomatic immunity. The passport is issued by his government, but his status while he is in our country is a matter only our government can decide. Second, if indeed he is a “diplomatic agent,” he will in fact enjoy “status immunity,” which means that his immunity will not be limited to “official acts” like in the case of Strauss-Kahn. Third, however it is doubtful that he is in fact a diplomatic agent since he works for what appears to be a mere domestic agency of the Panamanian government.

The rationale for diplomatic immunity is that foreign representatives can perform their duties effectively only if they are insulated from local law enforcement practices. Its aim, our Supreme Court says, is “not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.” Yet it is so prone to abuse that even the Supreme Court has taken steps to reconcile diplomatic immunity with the requirements of justice.

For instance, it is well-entrenched that once the executive branch certifies that a certain person enjoys diplomatic immunity, that is “binding and conclusive” upon the courts. That is because the executive branch is supreme in our foreign relations, and the courts are not supposed to stand in its way. Yet the Supreme Court has now narrowed that rule and, in a case involving a Chinese economist at the Asian Development Bank, held that even after the DFA certifies immunity, the courts will still determine whether or not a questioned act had been committed “in connection with [his] official duties.”

It can still be argued that the ADB case involved merely “functional immunity” similar to Strauss-Kahn’s at the IMF, and not the more encompassing “status immunity” that the Panamanian official claims for himself. But it already shows the handwriting on the wall, so to speak, which disfavors impunity. In this case, the diplomatic status of the Panamanian official remains in question and leaves enough room for our executive branch to exercise judgment on where our national interest lies.

Finally, even assuming that Shcks is a genuine diplomat with full immunity, elsewhere other governments have been more protective of their citizens: they have asked the culprit’s state to waive immunity. For instance, a drunken Gueorgui Makharadze, second in command at the Republic of Georgia’s embassy in Washington, drove his car at 80 miles per hour through city streets and killed a 16-year-old girl. The US government asked the Georgian government to waive Makharadze’s immunity. It agreed, and the Georgian was tried and convicted. But not before righteous outrage swept across America.

That is what our government needs right now to strengthen its resolve and enable it to say that using diplomatic immunity to stop a rape investigation is an injustice not only to the rape victim but likewise to all diplomats acting bona fide and for whom the immunity was created. Stated plainly, it is politically shortsighted to legally shortchange victims of injustice.

* * *

Comments to passionforreason@gmail.com