Consular Agreement between the Republic of the Philippines and the People’s Republic of China

March 6, 2012

Mr. President, Distinguished Colleagues:
I have the honor to seek approval of Senate Resolution No. 733 under Committee Report No. 131, entitled “Resolution Concurring in the Ratification of the Consular Agreement between the Republic of the Philippines and the People’s Republic of China.”
Protecting Filipinos Overseas
Mr. President,
The protection of the rights and promotion of the welfare and interest of Filipinos overseas is one of the three pillars of our foreign policy.
One of the eight foreign policy realities of our country is the presence of more than eight million Filipinos in more than 125 countries – a reality inextricably linked to the future of our country’s economic and social stability. Remittances from overseas Filipinos reached $18.7 billion in 2010 alone.
Reports from the Department of Foreign Affairs indicate that, as of December 2010, 7,209 Filipinos were either subjected to imprisonment or charged with offenses in court, in six continents. Worse, 77 of such number currently face capital punishment. Their offenses range from violation of immigration policies to capital offenses.
These 7,000 plus cases represent what we know of. There are probably many more Filipinos in distress unknown to us.
It is often said that our government must spare no effort to ensure that the rights of its constituents are protected. But how can our government intervene to ensure that due process, a paramount constitutional right, is observed if the most fundamental requisite – that of knowing that a Filipino has been arrested – is absent?
This underscores the importance of the Consular Agreement that I am submitting for this chamber’s consideration.
With roughly 10 percent of our population living or working overseas, we need to pursue migrant worker-related agreements, at the multilateral, regional, and bilateral front.
Why Consular Agreement?
The Consular Agreement between the Republic of the Philippines and the People’s Republic of China is the first agreement of its kind signed by the Philippines after its ratification of the Vienna Convention on Consular Relations1 (VCCR) in 1965.
The Vienna Convention is a multilateral treaty that regulates the rights, privileges, immunities and duties of consulates and consular staff worldwide. It is said to be the cornerstone of international consular relations. It bestows the time-honored right of consulates to communicate with and assist their detained nationals. It also confers specific rights on detained or imprisoned foreign nationals.
With these guarantees, you may ask, “What do we need a consular agreement for?”
Article 36 of the Vienna Convention requires that local authorities must inform detained foreigners “without delay” of their right to communicate with their consulate and to have the consulate notified of their detention. Consulates also have the right to communicate with and visit their detained nationals, to arrange for their legal representation and to provide other appropriate assistance with the detainee’s consent.
This Consular Agreement with China will eliminate the ambiguities that the words “without delay”, as stated in the Vienna Convention, tend to create.
This Consular Agreement was proposed by China in 2003 and was subsequently signed in 2009. China ratified said Agreement in 2011.
It expands the scope of both the privileges and immunities granted under the Vienna Convention on Consular Relations to our consular offices and personnel. These include the scope of personal inviolability, exemption from taxation and inclusion of service and administrative staff and their family members in the list of personnel granted such privileges and immunities.
More importantly for the Philippines, the Agreement clarifies procedures and defines time frames to better protect and provide assistance to Filipino nationals in China.
Philippine Consulates: First Line of Defense for Filipinos Overseas
Mr. President,
We now have 273,975 Filipinos in China2. They are there as managerial, administrative and technical staff of multinational companies, entertainers in hotels and restaurants, dependents, teachers or students. Thousands more visit China every year.
To date, 271 Filipinos are in detention or serving sentences in China for various offenses including drug smuggling, larceny, fraud, overstaying, robbery, theft, illegal business operations, pornography, counterfeiting, rape, forging of documents and identification, gambling and manslaughter. It is reported that some 73 Filipinos have been meted the death penalty with two-year reprieve in China.
When a foreign national is detained or arrested by law enforcement authorities in a country outside of his own, it is critical that he be made aware of the charges against him. It is crucial that he is informed of his rights and his legal options.
Being in a foreign territory and confronted with a foreign language places any such national in a state of distress, unable to navigate the local legal system, unable to judiciously defend himself, thereby placing him completely at the mercy of local authorities.
The consulate has an inviolable duty to seek fair and equal treatment for our nationals overseas. Its duty is to ensure that our arrested or detained nationals fully understand the nature of the charges against them, as well as their legal rights and options.
The consulate is effectively the first line of defense for our detained nationals overseas. It serves as the detainees’ crucial link to the criminal justice system of the host government, providing legal assistance and facilitating their full awareness of and participation in the legal process.
The Vienna Convention on Consular Relations3 , to which both the Philippines and China are parties, requires a state arresting or detaining a foreign national to inform the latter of his or her right to consular access and, if he or she so requests, to inform his or her consulate.
Article 36 of the Vienna Convention, however, fails to set a specific procedure on how this is to be done. Consequently, such provision has not been uniformly applied or adhered to by state parties.
Consular Agreement Key to Protecting Filipinos in China
The Consular Agreement with China precisely addresses this gap by clearly defining the obligation and procedure for notifying consular officials when a national is detained, arrested or otherwise deprived of freedom.
Some of the key features of the Consular Agreement with China are as follows:
– Under the Consular Agreement, the right to consular notification is absolute, and must be given within four (4) days of the arrest or detention, regardless of whether the detained national requests it or not. This is important because under the Vienna Convention, notification is given only upon request of the national, and there is no specified period for such notice. Experience has shown, however, that most of the time, notification is not undertaken because the detainee is not even aware that he has the right to request that the Consulate be notified of his arrest.
– The Agreement also requires the arresting authorities to “make arrangements for the visit” of a consular officer to the detained national “as soon as possible and, within three (3) days of notification of his detention, arrest or deprivation of freedom.” The Vienna Convention only gives the right to visit, but does not obligate the receiving State to make arrangements for the visit and does not fix a period within which such visit should be arranged.
-It also expressly specifies that the consular officer can visit the detainee and converse with him “in any language or dialect.” This is not the case in the Vienna Convention.
– Most importantly, it also expressly gives family members the right to visit the detained national. This is also not the case in the Vienna Convention.
Another significant improvement of the Agreement vis-a-vis the Vienna Convention is the provision that entitles consular officials of the sending state to obtain a copy of death certificates of its nationals, aside from the customary notification of such fact. This facilitates the investigation into the death, allows early repatriation of the remains and facilitates any claims by the next-of-kin for benefits.
In addition, the Agreement will reinforce our consular missions’ efforts to extend appropriate protection, service and assistance to OFWs and the growing number of Filipinos who travel to China for tourism or business purposes.
I have to emphasize that this Consular Agreement is not about keeping our nationals immune from prosecution. What we seek, through this Consular Agreement, is a heightened level of cooperation that will allow timely intervention by our Consular Posts. For our accused nationals overseas, this could literally mean the difference between life imprisonment and a death sentence, or even an acquittal.
The Vienna Convention on Consular Relations establishes the “baseline” for most obligations with respect to the treatment of our nationals in other countries and for the treatment of foreign nationals in our country. It establishes legal safeguards to protect the rights of the accused, but it does not guarantee timely consular intervention.
The Consular Agreement with China takes these obligations a step further through mandatory and absolute notification, timely visitation arrangements by our consular officers, visitation rights by family members of the accused, among others.
Mr. President and Distinguished Colleagues,
It is in this light that the Committee on Foreign Relations endorses Senate concurrence in the ratification of the Consular Agreement with China.
Thank you.
[1]The Vienna Convention for Consular Relations (VCCR) is referred to as Vienna Convention in this speech.
[2]As of January 2012, based on OUMWA data.
[3]The VCCR was concluded on 24 April 1963 and it entered into force on 19 March 1967. PH is an original signatory and it became a party on 15 November 1965 while China became a party on 2 July 1979.