CONFIDENTIAL
FM HONG KONG
TO ROUTINE FCO
TELNO 3496
CONFIDENTIAL
HKB 400 /
OF 260903Z NOVEMBER 90
INFO ROUTINE BANGKOK, JAKARTA
327
la
(CORRECTED VERSION MY TELNO 3513 REFERS)
326
133040
MDLIAN 0101
TOP COPY Q DIST?
INDONESIAN AND THAI CONSULATES GENERAL IN HONG KONG: PROSECUTION OF CONSULAR EMPLOYEES
W
990
1. THE INDEPENDENT COMMISSION AGAINST CORRUPTION HAS EVIDENCE THAT TWO LOCALLY EMPLOYED CLERKS, ONE IN THE THAI CONSULATE- GENERAL AND THE OTHER IN THE INDONESIAN CONSULATE-GENERAL, HAVE ACCEPTED IRREGULAR PAYMENTS TO PROCESS TRAVEL DOCUMENTS. SUCCESSFUL PROSECUTIONS, HOWEVER, WOULD DEPEND ON THE RESPECTIVE CONSULATES-GENERAL GIVING EVIDENCE THAT ACCEPTANCE OF SUCH PAYMENT WAS NOT SOMEHOW AUTHORISED.
2. ARTICLE 43(I) OF THE VIENNA CONVENTION ON CONSULAR RELATIONS, OF COURSE, PROVIDES THAT 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. THE ACCEPTANCE OF IRREGULAR PAYMENTS WAS OBVIOUSLY CONNECTED WITH THE PERFORMANCE OF THE CONSULAR FUNCTION, BUT THERE IS A QUESTION AS TO WHETHER SUCH ACTS WERE PERFORMED IN THE EXERCISE OF CONSULAR FUNCTIONS. AN ARGUMENT HAS BEEN MADE HERE IN THE PAST THAT CRIMINAL ACTS CAN ALWAYS BE REGARDED AS EXTRANEOUS TO THE EXERCISE OF CONSULAR FUNCTIONS. BUT, IF CORRECT, THAT ARGUMENT WOULD RENDER THE PROTECTION GIVEN BY ARTICLE 43(1) MEANINGLESS.
3. WE CONSIDER THAT WE SHOULD SEEK A WAIVER OF IMMUNITY IN THESE TWO CASES. WE SHALL, IN PRACTICE, NEED THE CO-OPERATION OF THE TWO CONSULATES-GENERAL IF A SUCCESSFUL PROSECUTION IS TO BE MOUNTED AND WE MAY NOT BE ABLE TO COMPEL MEMBERS OF THE CONSULATES TO GIVE EVIDENCE UNDER ARTICLE 44.
4. GRATEFUL FOR YOUR VIEWS.
WILSON