DIPLOMATS DON'T ALWAYS ENJOY IMMUNITY
Damos Agusman and Yanuar Pribadhie, Surabaya | Opinion | Thu, February 06 2014, 10:13 AM
Jakarta Post, Thu, February 06, 2014
Indonesian courts have started to deal with diplomatic and consular immunity issues. In 2013, there were two cases related to termination of employment of two local staff at the Brazilian Embassy in Jakarta and the US Consulate in Medan.
Being Indonesian nationals, the two embassy employees filed a lawsuit with the Industrial Relations Court (PHI) against the embassies, demanding severance payments and both eventually won. The issue of diplomatic and consular immunity has, therefore, come to the fore.
Given that the cases involved diplomatic missions and consular posts that essentially are governed by international law, the question usually raised in the first place is whether the employment contract given by these missions may be subjected to the domestic Labor Law.
In developed countries, judicial decisions on this matter have been developing rapidly. As the result of the increasing international concern on labor issues, European countries have deviated from an absolute immunity approach in determining the case and turn to a more restrictive approach. A number of Indonesia’s embassies in Europe have encountered legal problems arising from such diplomatic restrictions.
Restrictive immunity requires states to differentiate the treatment toward an embassy or consulate on one hand and that of diplomats or consuls on the other. European countries treat embassies or consulates as ordinary business entities.
Therefore, there are certain conditions that mean both embassies and consulates are public institutions not entitled to immunity. Those conditions depend on each legal system, but only to the extent permitted by international law.
For example, on July 19, 2012, in the case concerning the Algerian Embassy’s driver in Berlin, the European court once declared that the Embassy as the employer has to be treated as an establishment when employing a person, provided that the job carried out is not an exercise of public authority.
In Austria, the domestic labor law will not prevail when the employment contract entered into is between a diplomat and an individual who is not a national of Austria, or otherwise not holding a permanent resident permit. These conditions are recognized by international law.
It proves that European countries have established clear rules in terms of what conditions the foreign representatives may not invoke diplomatic immunity before the domestic court. More importantly, those conditions are in line with the norms provided by international law.
The above-mentioned cases concerning the Brazilian Embassy in Jakarta and the US Consulate in Medan, are Indonesia’s landmark cases in terms of the legal status of a diplomatic mission/consular post as an employer.
In the Brazilian Embassy case, the Court upheld the embassy’s diplomatic immunity. However, the Court also referred to a clause in the employment contract entered into between the parties, which in principle expressed the agreement to be governed by Indonesian law. On the basis of that clause, the Court declared that it has jurisdiction to determine the merits.
By following this logic, the Court has somewhat been erroneous. The outcome is right, but the reason that led to the outcome is an anomaly. The Court should not uphold diplomatic immunity while it declares that it has jurisdiction over the matter. This is a contradiction in terms.
It would be more logical for the Court to argue that the employment contract has overruled the diplomatic immunity; though this also leads to the further question as to whether engaging in private activities will automatically discharge the diplomatic immunity.
In the US Consulate case, the US submitted that the employer, a consular functional officer, shall not be amenable to jurisdiction of the Indonesia’s judicial or administrative authorities. The US Consulate also submitted that it has no separate legal personality from the US and therefore could not be sued in an Indonesian domestic court.
In response, the Supreme Court stated that since the matter brought is essentially the termination of employment which took place in the territory of Indonesia, therefore, Law No. 13 of 2003 on labor should be applied.
The decision to ignore the immunity of the US Consulate under this case is not controversial since other countries’ courts would issue a similar decision. However, the Supreme Court avoided addressing international law on this matter.
In contrast, the Vienna Convention 1961/1963 on Diplomatic/Consular Relations shows not all employment contracts signed in the territory of the receiving state should be subjected to the law of that state. Article 43 of the Vienna Convention on Consular Relations 1963 clearly provides that a contract concluded by a consular officer as an agent of the sending state shall be immune from the jurisdiction of receiving states.
Article 11 of UN Convention on Jurisdictional Immunities of States and Their Property 2004 also provides that if the relation has a public nature or if the employer is entitled to diplomatic immunity, national law cannot be applied.
The Supreme Court should have argued that the employment contract between the US Consulate and its employee in a given case was purely carried out by the consulate as a legal entity (instead of a consular officer) and not having public character, so that under international law the immunity could not be invoked.
Notwithstanding the flaws, the position to apply restrictive immunity toward diplomatic missions and consular posts is worth appreciating. This means that Indonesia has been in line with the development in international law in terms of immunity.
However, the legal reasoning constructed in those decisions should have also taken into account the norms available in international law; thus dissemination toward Indonesia’s legal practitioners regarding international law on diplomatic immunity including its exceptions is crucial.
Damos Agusman is the Indonesian consul general in Frankfurt and researching for his PhD at the University of Frankfurt. Yanuar Pribadhie is a School of Law graduate at Airlangga University, Surabaya. The views expressed are personal.
