THE plaintiff – Donisyah – had filed a suit against a Palestinian ambassador’s son, Mohammed W.A. Abu Ali, who was named as the first defendant. And the Palestinian embassy was named as the second defendant in the same suit.
It was not disputed that at the material time, the first defendant was driving a car bearing a diplomatic registration plate.
Today, the media reports that in dismissing the plaintiff’s claim against both defendants, the court held that the first defendant was not liable to be sued as he was duly protected by diplomatic immunity. Hence, the second defendant was not vicariously liable too.
In coming to the said decision, the learned judicial commissioner (JC) ruled that both defendants had successfully proved their protection under the Diplomatic Privileges (Vienna Convention) Act 1966 (Act 636) and the Consular Relations (Vienna Convention) Act 1999 (Act 595).
She also ruled that since there was no waiver under Article 32 of the schedule, the diplomatic immunity of the first defendant remained intact. Under international law, a waiver may invalidate any diplomatic immunity provided that such a waiver has to be explicitly expressed.
I am of the view that the learned JC was right in holding that the Diplomatic Privileges (Vienna Convention) Act 1966 (Act 636) and the Consular Relations (Vienna Convention) Act 1999 (Act 595) duly apply in this case.
The learned JC also decided that the embassy’s car involved was insured thus – according to the learned JC – the plaintiff had the right to claim from the insurance company of the registered vehicle.
With the greatest respect, I disagree with the learned JC on this point. In my view the learned JC erred in law (I stand corrected) when she decided that the plaintiff had the right to claim from the insurance company of the registered vehicle.
Since the learned JC already held that both defendants were not liable, I am of the view that there is no issue at all for the plaintiff to claim from the insurance company of the registered vehicle which was driven by the first defendant at the material time.
In a tort claim involving a road accident, the real defendant in such a case, in actual fact, is the insurance company. Nevertheless, in reality, the insurance company has never been made a defendant.
In court only the insured is being made as a defendant. Therefore, if the claim by the plaintiff against the insured is dismissed by the court the plaintiff’s claim against the insurance would not be sustainable too.
Be that as it may, I am of the view that the plaintiff in this case cannot claim from the insurance company of the registered vehicle – which was driven by the first defendant – as suggested by the learned JC. After all, she had already dismissed the plaintiff’s claim against the defendants. Assuming the defendants in this case were held to be liable it was the insurance company which was actually responsible to pay the plaintiff. – June 12, 2024
Mohamed Hanipa Maidin is a former deputy law minister and has a master’s degree in international law