Envoys Shooting Fellow Envoys:
Immunity Is Not a
Magic Word
Last week, an unfortunate incident inside an upscale
restaurant in Cebu City took place that it even hit the headlines of
international media such as the CNN and BBC.
On October 21, 2015, two employees of Cebu’s Chinese
consulate were shot dead – a woman named Hui Li and a man named Shu Shen.
Consul General Song Ronghua was wounded. This incident happened inside an
upscale restaurant in Cebu while the Chinese consul together with his consular
staff were having lunch.[1]
Following the shooting incident, two suspects were
identified and arrested, namely, Li Qing Liang and his wife, Guo Jing.[2]
The Department of Foreign Affairs (DFA) issued a
statement that these two suspects enjoy diplomatic immunity; therefore, the
suspects could not be prosecuted and will not be held liable to the crimes
allegedly committed.[3] The DFA did
not specify the official title or position that these two suspects were
occupying in Chinese consular office in Cebu.
Various conflicting reports exist as whether the two
accused were diplomats or consuls.[4]
To any student of International Law, the difference
between the two classifications is very material and relevant to the case.
Under international laws, a diplomat enjoys absolute immunity from criminal
prosecution.[5]
A consul, on the other hand, does not have the
absolute immunity that a diplomat enjoys. Respecting criminal offenses, the
rule is that consuls are exempt from the local jurisdiction for crimes
committed by them in the discharge of their official functions. But with regard
to other offenses, they are fully subject to the local law and may be arrested,
prosecuted and punished in proper proceedings.[6]
Obviously, the shooting and killing of two people
inside a restaurant can never be considered as an exercise or discharge of
their consular functions.
What is important to note here is that the DFA,
instead of clarifying the matters to the media and disclose the official title
and position of the two accused, practically swept the criminal liability of
these two crime suspects under the rug. The DFA wants the media to believe, and
appears to be successful in doing so, that just because these two suspects work
under a consular post, the two suspects enjoy diplomatic immunity hook, line
and sinker.
In the next few hours, the PNP our local police, will
turn the two crime suspects over to a foreign government – China.[7]
The PNP’s move was apparently made upon orders from
the DFA. One may ask, by what authority does the DFA have over the PNP? By what
authority does the DFA has over the prosecution of suspects accused of
committing crimes within the Philippine territory?
As a student of Law, and following a line of
jurisprudence from the Supreme Court, the proper way is for the DFA to let the
PNP and other law enforcement agencies to perform its mandated task to conduct
criminal investigation, and if warranted, let the prosecution bring the case to
the proper court.
In Liang v.
People of the Philippines,[8]
where a foreign national and an executive of Asian Development Bank (ADB)
was accused of committing grave oral defamation against a Filipino ADB
employee, the Supreme Court held:
Courts
cannot blindly adhere and take on its face the communication from the DFA that
petitioner Liang 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 the present case, the DFA instead of upholding the
sovereignty of this country, and let our criminal justice system take its
course, like a FIBA referee, apparently succumbs to a much greater pressure –
China.
The DFA claimed that they have, through then
Secretary Alberto Romulo, concluded an agreement with the Chinese government
providing absolute criminal immunity to Chinese consular officers and staff.
With that official statement from DFA, we ask
ourselves if that said executive agreement is valid under our existing laws. In
the Vienna Convention on Diplomatic Relations – it is an international law of
which the Philippines was a signatory and ratification concurred by the Senate,
which forms part of the law of the land – Article 42 provides for Notification
of Arrest, Detention or Prosecution of a Consul, in this wise:
In the event
of the arrest or detention, pending trial of a member of the consular staff, or
of criminal proceedings being instituted against him, the receiving State shall
promptly notify the head of the consular post.
This provision, under Article 42 of the Vienna
Convention, clearly provides that unlike a diplomat, a consul can be arrested,
detained or even prosecuted.
In the subsequent Article 43 of the said law, it
provides for the limited immunity of a consul, which is stated as follows:
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.
(Emphasis ours)
The Vienna Convention on Diplomatic Relations, of
which the Philippines signed and ratified and duly concurred in by at least
two-thirds (2/3) vote of all the members of the Senate, is the governing law
pertaining to the extent of the limited immunity given to consuls of foreign
countries.
The so called executive agreement signed by the
Foreign Affairs Secretary with the Chinese government providing absolute
diplomatic immunity to Chinese consuls in the Philippines runs counter to our
country’s existing law and against public policy. Basic is the doctrine that
agreements which are contrary to law, public policy, morals, good custom is a
nullity. It is deemed legally nonexistent. It produces no effect and can never
be a source of legal obligation.
A diplomat is a political representative of a foreign
country. On the other hand, consuls are not concerned with political matters.
They attend rather to administrative and economic issues such as the issuance
of visas and passports.[9]
The principal duty of consuls is to promote the
commercial interest of their country in the receiving State and to observe
commercial trends and developments therein for report to their home country.[10]
The DFA wants us to believe that the two accused
enjoys diplomatic immunity from criminal prosecution without (the DFA) clearly
laying both the factual and legal basis for saying so. The DFA merely issues
official statements expecting us all to accept it, hook, line and sinker. To my
mind, such an action is a classic example of how a foreign service becomes a
great disservice to the country they represent. To borrow a dialogue from a
famous military general and a hero – Bayan o Negosyo? Kalayaan o Sarili? Mamili
Ka!
With this, I respectfully asked the same question to
our government officials involved.
[1]
http://edition.cnn.com/2015/10/21/asia/philippines-chinese-diplomats-killed.
[online].
[2] Ibid.
[5] Isagani
Cruz; International Law; Central Law Book Publishing Co., Inc. 2003 Edition.
[6] Ibid.
[8] Liang v.
People, G.R. No. 125865, Jan.28, 2000.
[9] Joaquin
Bernas; Public International Law, Rex Book Store, Inc. 2002 edition.
[10] Isagani
Cruz; supra.
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