Immunity not impunity

To protect the common people from abuse, the exercise of power must be accompanied by checks and balances. Yet in order to be effective, these checks and balances themselves must be invested with a form of power or privilege, which in turn can be subject to misuse. It is a delicate balance, no pun intended, and requires a willingness to look into changing contexts and the needs of the most vulnerable.

One of these privileges that emerged to check the abuse of power is diplomatic immunity. In the ancient world, where relations between neighbors were more often than not bloody and characterized by violence, lasting peace only became possible when communication between nations was institutionalized – and this only happened when it became accepted practice to protect the heralds or emissaries of other nations. Before then, with foreigners seldom having any rights in a nation other than their own, it was relatively common to execute any messengers, particularly the bearers of bad news.

Over time, nations developed the practice of sending religious figures as emissaries, and later the idea of the inviolability of the persons of official envoys or ambassadors (religious or not) became ingrained and codified practice, even during times of war between nations. In this way, avenues of communication were to be guaranteed even between nations at war, all the better to secure an eventual peace.

It is for these laudable reasons – as a check on the absolute power of the host country over a foreign envoy – that the rules behind diplomatic privileges were developed. This includes the rules on diplomatic immunity, in which foreign diplomats are deemed immune from suit in their host countries. Yet such a blanket protection leaves itself open to abuse, and there have been many instances around the world where such immunities have allegedly been abused.

In many of these cases, the accuser leaves unsatisfied, but I’d like to call notice to a recent case decided in the United Kingdom – granting justice to an abused Filipina domestic worker – which hopefully shows how such immunities cannot and should not be used as a shield to injustice, such as the practice of modern day slavery.

The case (Basfar (Respondent) v Wong (Appellant) [2022] UKSC 20) involved a domestic worker who had been employed by the household of a Saudi Arabian diplomat, who brought her with them upon assignment to the United Kingdom. After escaping from the household, she filed a civil claim against an employment tribunal where she alleged that she was confined almost completely to the house, held virtually incommunicado, made to work from 7 a.m. to around 11.30 p.m. each day, with no days off or rest breaks, and that she was subjected to other degrading and offensive treatment. She further claimed that after arriving in the UK, she was paid nothing for seven months, then paid a fraction of her contractual entitlement, then not paid again until she escaped in May 2018. In his defense, the employer claimed his diplomatic immunity from suit. The employment tribunal dismissed the case, which was then appealed to the UK Supreme Court.

The UK SC ruled that if the facts alleged by the Filipina are proven, then there was no diplomatic immunity in this case, as this would fall under an exception, namely that the diplomatic agent “shall not in the receiving state practise for personal profit any professional or commercial activity.” Such work can be the subject of civil claims.

The UK SC stated that while the ordinary employment of a domestic worker by a diplomat does not constitute a “commercial activity” within the meaning of the exception, the trafficking and exploitation of a domestic worker by compelling her to work in conditions of modern slavery is different. In such a case the employer gained a substantial financial benefit by deliberately and systematically exploiting the trafficked person’s labor and by severely underpaying her or not paying her at all, and the UK SC stated that such benefit constitutes commercial activity practised for personal profit. As such, should the Filipina prove her claims, she will be entitled to compensation.

The ruling has been hailed as the first of its kind in the world, and it is hard to overstate its importance. By linking the economic exploitation inherent to human trafficking to a codified exception to diplomatic immunity (Article 42 of the Vienna Convention on Diplomatic Relations), the decision creates a foundation to claim that there can be no claims of diplomatic immunity in a case that alleges human trafficking or exploitation under conditions of modern day slavery.

Considering how so many of our countrymen are victims of human trafficking and exploitation, this decision is an important one for Filipinos, and a mindset that our government must spread and promote. It has already been praised by our Department of Migrant Workers, which hopes that it will open the floodgates for “workers, abused by their employers who are members of the diplomatic community, to seek recompense and refuge under the law.”

Around the world, there have been reports of diplomats violating local labor laws on minimum wages and maximum work hours, denying the workers of the mandated vacation leaves, not paying them their earned wages, depriving them of food, denying them communication, invading their privacy, imprisoning the workers inside the diplomats’ homes and even verbally and physically abusing the workers. Most of these cases do not progress due to diplomatic immunity; however, with this decision, justice should now be given to workers who are victims of abuse and exploitation, and diplomats should no longer be able to hide behind diplomatic immunity.

Ideally, the decision should also pave the way for the removal of diplomatic immunity from the prosecution of other gross injustices that have no relation to diplomatic duties, such as statutory rape.

Diplomatic immunity remains crucial to the proper conduct of diplomatic relations between countries, which in turn is essential to the preservation of peace and avenues of non-violent resolution. However, this important check to power must in itself be subject to checks, and must never be available as a means to frustrate the needs of justice. Peace between nations must not, and should not, come on the backs of the exploitation of the most vulnerable – whether they be laborers, women or children.