(a) Colonel Smith is the military attaché of the Mauritanian Embassy in Putra Jaya.

He
lives in Centre Point Condominium in Kuala Lumpur, with his wife Cynthia and their only
daughter Linda, 19 years, a first year Information Technology student at Sunway University.
Being a psychiatrist, Cynthia rents an apartment in Kuala Lumpur for her practice, but she
misuses it by opening a nightclub. Now her landlord is preparing to bring a legal action
against her for breach of tenancy agreement. On her way back from a supermarket, Linda’s
car knocks down an old woman, who dies on the spot. The police want to arrest Linda and
initiate legal proceedings against her.

Advise Cynthia’s landlord and the police.

Material Fact of the case:

1. Colonel Smith is the military attaché of the Mauritanian Embassy in Putra Jaya.

2. Being a psychiatrist, Cynthia rents an apartment in Kuala Lumpur for her practice, but
she misuses it by opening a nightclub.

3. Now her landlord is preparing to bring a legal action against her for breach of tenancy
agreement.

4. On her way back from a supermarket, Linda’s car knocks down an old woman, who
dies on the spot.

Issue that may arise from this question:

1. Main issue
a. Whether Linda can be arrested and can initiate legal proceedings against her.
2. Sub Issue
a. Whether Colonel Smith is a Diplomatic Agent
b. Whether Cynthia is immune from the arrest and legal proceedings against her

Relevant law that may be used

Land law n criminal
1. Diplomatic Agent who?
2. Immunity of his affairs (family members)

Analysis
1. Had immunity

Conclusion
1.0 INTRODUCTION

Immunity and jurisdiction are two primary issues that are intertwined, and the
doctrine of immunity can be seen as an exception to the doctrine of jurisdiction. Although
states have jurisdiction over persons, things, and happenings inside their borders,
international law protects some categories of people and entities from being subjected to the
jurisdiction of national courts. Foreign States (sovereign or State immunity), their diplomatic
agents (diplomatic immunity), and international organisations are the three main types
(immunity of international organisations). This assignment question will be more focused on
diplomatic immunity.

2.0 FIRST ISSUE

The first issue here is whether Colonel Smith, a military attaché of the Mauritanian
Embassy in Putra Jaya entitled to diplomatic immunity.

To begin with, ‘diplomacy’ is any means by which states establish mutual relations,
communicate with each other, or carry out political or legal transactions, in each case through
their authorised agents. Normally diplomacy involves the exchange of permanent diplomatic
missions. Nevertheless, diplomacy in a wider sense may also include the categories of
special missions or ad hoc diplomacy, and the representatives of states at international
conferences. The rules of international law governing diplomatic relations were the product
of long-established State practice. The law has now been codified to a considerable extent in
the Vienna Convention on Diplomatic Relations, 1961.1 As of 07 December 2019, it has been
ratified by 192 States and almost universal acceptance of the Convention indicates the
importance States attach to the law governing diplomatic relations.

Diplomatic agents are immune from the jurisdiction of local courts. This principle can
be seen for immunity from criminal jurisdiction in Article 31(1) provides that "A diplomatic
agent shall be immune from the criminal jurisdiction of the receiving State".2 This exemption
from criminal jurisdiction is absolute, and a diplomatic agent cannot be tried or punished by
the local criminal courts of the State to which he is accredited under any circumstances
(except waiver). This does not imply that he has the right to do whatever he wants. In fact, he
is obligated to follow the laws of the receiving State.3 Furthermore, while a diplomat is
immune from the jurisdiction of the receiving State, he is nevertheless subject to the
jurisdiction of his own. It was held in Dickinson v Del Solar4 that diplomatic immunity does
not imply immunity from legal liability, but only from local jurisdiction. A diplomatic agent's
immunity from the jurisdiction of the receiving State does not free him from the jurisdiction
of the sending State, according to the Vienna Convention.5

1
The Vienna Convention on Diplomatic Relations, 1961, entered into force on April 24, 1964: 500 UNTS 95
2
Vienna Convention on Diplomatic Relations, 1961, Art 31(1).
3
Vienna Convention on Diplomatic Relations, 1961, Art 41.
4
Dickinson v Del Solar [1930] 1 KB 376
5
Vienna Convention on Diplomatic Relations, 1961, Art 31(4).
 In respect of civil and administrative jurisdiction, diplomatic agents cannot enjoy
absolute immunity. Their immunity is subject to three limitations mentioned in Article 31(1)
of the Vienna Convention provided that a diplomatic agent shall also enjoy immunity from its
civil and administrative jurisdiction, except in the case of firstly, a real action relating to
private immovable property situated in the territory of the receiving state, unless he holds it
on behalf of the sending state for the purposes of the mission. Secondly, an action relating to
succession in which the diplomatic agent is involved as executor, administrator, heir or legat
as a private person and not on behalf of the sending state. Thirdly, an action relating to any or
commercial activity exercised by the diplomatic agent in the receiving state outside his
official functions.

In regards to the persons who are entitled to diplomatic immunity,are provided in

Articles 29 to 36 of the Vienna Convention. The beneficiary of the immunities is mentioned
as :a diplomatic agent” in all of these articles. This means that diplomatic agents are entitled
to all these immunities. Therefore, in answering the issue, does a military attache is included
as one of the diplomatic agents.

A military attache is included as one of the diplomatic agents. Therefore, Colonel

Smith, a military attaché of the Mauritanian Embassy in Putra Jaya entitled to diplomatic
immunity.

In answering both issues i.e whether Linda can be arrested and can initiate legal
proceedings against her and whether Cynthia is immune from the arrest and legal proceedings
against her.

Meaning of ‘‘family’’can be seen in the case of Engelke v Musmann [1928] AC 433

as per Lord Phillimore, obiter dicta, defined an ambassador’s family for the purposes of
immunity as “his wife and his children if living with him”. In a case of Re C (An Infant)
[1959] 1 Ch. 363 where Harman J, considering whether the son of a person entitled to
immunity was himself entitled to it, ruled that the test was whether “he is ordinarily resident
with, or is under his father’s control”. British Foreign Office practice is to treat a diplomat’s
“family” as “including the spouse and minor children [under 18] and certain other persons in
exceptional circumstances. In practice, the exceptional cases include the child of a diplomat
living with him who has attained majority but is not engaged in paid employment on a
permanent basis. Students are included in this category provided that they reside with the
diplomat at least during vacations.

Linda is 19 years old, a first year Information Technology student at Sunway

University. Being a psychiatrist, Cynthia rents an apartment in Kuala Lumpur for her
practice, but she misuses it by opening a nightclub.
 Linda and Cynthia are defined as family as in the case of Engelke v Musmann [1928]
AC 433 as they reside together with him. Therefore, Linda and Cynthia are entitled to
immunity as same as the military attache, their family member.

However, Linda has a criminal jurisdiction over her thus has its immunity however
for Cynthia might be otherwise as she involved in civil jurisdiction.