PETALING JAYA: Although the Vienna Convention on Diplomatic Relations 1961 generally grants foreign diplomats immunity from local laws, it is not all-encompassing.

Examples, said Assoc Prof Dr Saidatul Nadia Abd Aziz, would be actions related to private non-movable assets not belonging to the country which sent the diplomat (sending state).

“The process whereby the diplomat acts in a private capacity, professional or commercial pursuits which are not part of his or her official duties, can also be subjected to local laws,” she said in response to the commencement of the Jurisdictional Immunities of Foreign States Act 2024 (Act 853) on Aug 30.

She said the objective of the Act is to guarantee Malaysia is treated fairly by other nations through regulation of the immunity granted to foreign states, their assets and their leaders from a foreign relations perspective.

“This can improve diplomatic relations by setting a clear legal framework for interactions with foreign states, thus reducing the possibility of diplomatic disputes.

“The Act also addresses concerns about potential misuse of immunity, as seen in the past with the murder of Kim Jong-nam at Kuala Lumpur International Airport in 2017 that highlighted vulnerabilities in Malaysia’s legal system.

“By restricting immunity in specific cases such as commercial transactions, employment contracts and personal injury claims, the Act promotes accountability while maintaining diplomatic protocols,” said Saidatul from Taylor’s University School of Law and Governance.

Following the assassination, Malaysia cancelled the visa-free entry for North Koreans, while the then North Korean ambassador Kang Chol was declared persona non-grata and asked to leave the country.

Asked if Act 853 would be good for the country, Saidatul said it has the potential to improve diplomatic relations by cultivating mutual respect for laws and minimising the likelihood of conflicts.

However, she added that it may also present obstacles, in particular Clauses 30, 32, and 33, which empower the Prime Minister to revoke immunities in the event that reciprocal treatment is not provided by foreign states.

Universiti Kebangsaan Malaysia international law expert Prof Dr Salawati Mat Basir also said that although the Vienna Convention is there, foreign states’ diplomats can still be prosecuted even after they are expelled.

“(This applies) if they are found to have committed serious crimes such murder or spying like in the case of the former Romanian diplomat Silviu Ionescu, who was convicted over a deadly 2009 hit-and-run accident in Singapore and went back to his country.

“He no longer had immunity because the officials in the home country can waive the immunity. Without the immunity, he can be sent back and prosecuted according to local laws,” she said.

However, Prof Salawati pointed out that such a situation can be tricky as many countries will not waive their diplomats’ immunity.

The Straits Times reported that Ionescu, Romania’s charge d’affaires in Singapore at the time, was sentenced to six years’ jail (reduced to three) by a Bucharest appeals court. He was found guilty of manslaughter for hitting three pedestrians in December 2009 while driving a car belonging to the Romanian mission.

Malaysians Tong Kok Wai died after succumbing to his injuries while Bong Hwee Haw sustained serious injuries. Singaporean Muhammad Haris Abu Talib was seriously injured in the incident.

Prof Salawati also said Act 853 was good for the country, especially with the case of self-claimed Sulu sultanate heirs suing Malaysia in a foreign court.

“There is no problem with Act 853, it is about protecting our sovereignty abroad. Many countries in Europe already have similar laws. This is because they don’t want to be sued, they want to go through diplomatic means.

“The main point of this Act is that if the Sulu or another country sues the Malaysian government in a foreign court, and the foreign country gives us immunity, the suit cannot be filed,” she said. > SEE NEXT PAGE

https://www.thestar.com.my/news/nation/2024/09/11/exceptions-to-the-concept-of-diplomatic-immunity