Can local authorities prosecute diplomats?

THE shooting inside a restaurant in Cebu City involving Chinese diplomats last Wednesday led to this question: Can local authorities prosecute the suspect?
Police identified the gunman as Li Qingliang, the husband of Gou Jing, the first secretary consul of the Chinese Consular Office in Cebu.

The security camera footage showed Li shooting the head of Consulate finance officer Hui Li, the neck of Deputy Consul General Sun Shuan and the hand of Consul General Song Ronghua inside the Lighthouse Restaurant.

Hui and Sun later died in a private hospital while Song survived the incident.

Chief Supt. Prudencio Tom Bañas, director of the Police Regional Office (PRO) 7, said they did not arrest the couple.

Li and Gou then invoked their immunity from being prosecuted in the Philippines, said Bañas.

The police official further said the immunity of the diplomats who hold diplomatic passports was reportedly included in an earlier bilateral agreement between the Republic of the Philippines and the People’s Republic of China.

Police will turn over Li and Gou to the Department of Foreign Affairs.

Some lawyers, however, want the couple to face trial in a local court.

Depensa na nila nga immune sila (That’s their defense that they are immune) from prosecution,” said Atty. Rameses Villagonzalo. “They disturbed the peace of our republic.”

Villagonzalo said the police should charge the couple because consuls are not protected from being charged with criminal cases.

For Atty. Vincent Isles, consular officers are not exempted from the Philippines’ criminal jurisdiction.

These consular officers, however, cannot be held “liable to arrest or detention pending the trial, except for a grave crime and pursuant to a decision by competent judicial authority,” according to Article 41 of the 1963 Vienna Convention on Consular Relations.

Privileges

The Vienna Convention consists of 79 articles, most of which provide for the operation of consulates; outline the functions of consular agents; and address the privileges and immunities granted to consular officials when posted to a foreign country, according to United Nations website.

“Of particular interest for the right of individuals is article 36, providing for certain obligations for competent authorities in the case of an arrest or detention of a foreign national, in order to guarantee the inalienable right to counsel and due process through consular notification and effective access to consular protection,” the article in www.legal.un.org read.

For Isles, local authorities must check how those persons are accredited by the Department of Foreign Affairs.

The first paragraph of Article 31 of the 1961 Vienna Convention on Diplomatic Relations states that diplomatic agents are exempt from the criminal jurisdiction of the receiving state.

Jurisdiction

“We have to check if those two people are accredited as diplomatic agents. If they are, then we have no jurisdiction to try them,” he said. “If consular officers ra gyod na sila, wa na sila’y immunity.”

Isles said a diplomat can extend his/her immunity to his/her spouse.

“Generally, if diplomatic agent ang spouse, the other spouse is already considered a diplomatic agent, kay pwede man lisod-lisoron ang diplomatic agent through his/her spouse,” he said.

The lawyer said the local authorities cannot do so much if there is a bilateral treaty between the governments of the Philippines and China.

“We have to follow that,” he said.
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