On diplomatic immunity

In a Senate inquiry, “Solons scold DFA, DOJ for diplomat’s escape” (Inquirer, 5/18/12). Last May 11, Erick Bairnals Shcks, a “technical officer” of the Maritime Authority of Panama and attached as a diplomatic agent to the local embassy of Panama, was declared persona non grata by the Philippine government. He casually left the country escorted by his ambassador. Earlier, he was discharged from a case of rape of a Filipino woman, upon issuance of a certification by the Department of Foreign Affairs, in coordination with the Department of Justice, that he enjoyed diplomatic immunity.

Under international law, if immunity is invoked by an envoy, it is normally recognized by the foreign office. And the diplomat cannot be made to appear before any proceedings—administrative, civil or criminal. This is “status” or absolute immunity. However, Raul Pangalangan, a former dean of the UP College of Law, bewailed the conferment of “diplomatic impunity” on Shcks by the government, contending that it should have observed “functional” rather than “status” immunity.

Pangalangan cited cases wherein “functional” immunity was applied. In the United States, for instance, there were the cases of the head of the International Monetary Fund, who was charged with rape; and of a top-ranking official of the embassy of Georgia in Washington, DC, for reckless driving. Our own Supreme Court observed “functional” immunity in the case of a Chinese economist at the Asian Development Bank. There was of course the opinion of Chief Justice Claudio Teehankee against the claim to immunity of a US officer, under the Military Bases Agreement, for an offense done outside his official duties.

We concur with Pangalangan. Diplomatic  immunity should be invoked and recognized when appropriate. Under the Vienna Convention on Diplomatic Relations, it is specifically emphasized that the grant of diplomatic immunities, privileges and facilities are made only “in connection with the performance of official functions,” as pointed out correctly by Sen. Vicente Sotto. Diplomats have a special duty “to respect local laws.” Hence, if a diplomat gets involved in a crime while performing his official functions, he is  immune. Otherwise, only “functional” immunity would be recognized, especially if the act is a crime per se, like rape, smuggling or assassination.

As practiced by nations, if immunity is invoked and wrongly granted, as in the case of Shcks, the receiving state should request a waiver of immunity from the sending state. Normally the request is honored. If denied, the receiving state usually declares the diplomat persona non grata. Would the Philippines just charge the case of Shcks to inexperience?

Not all “diplomats” are genuine. Recently, there was the abusive US-Korean “diplomat-agent” ready to run over a pedestrian. Now we have a “maritime diplomat” accused of rape. Self-respecting governments would handcuff erring diplomats, or put them on the Interpol list and hound them around the globe.

—NELSON D. LAVIÑA,

retired ambassador,

nlavina3@fastmail.fm