Immunity to US diplomat to ‘erode people’s trust’

IHC reserves verdict in case where Col Emmanuel is accused of hitting motorcyclists

ISLAMABAD: The man whose son was killed as a US diplomat hit a motorcyclist in the capital has informed the Islamabad High Court that absolute immunity of diplomats may defeat citizens’ trust in the justice system.

Shahzad Akbar, the counsel for Muhammad Idrees —father of the deceased Ateeq Mir who was killed by the defence and air attaché at the US Embassy Colonel Joseph Emmanuel — argued on Monday before Justice Aamer Farooq that "absolute immunity of diplomats may defeat citizens’ trust in the justice system."

In his arguments, the counsel said that if rights of the citizens are not upheld and an innocent person is deprived of his/her life, a chaotic situation arises where the population has no trust in the criminal justice system of that country.



"Where there is no such trust in any given society," he said, "the criminal justice system becomes inadequate."

Following the arguments, Justice Farooq reserved verdict in the case. Colonel Emmanuel is accused of hitting the motorcyclists at a traffic signal at the intersection of Margalla Road and 7th Avenue at on April 7.

Akbar argued over the terms diplomatic ‘immunity’ not ‘impunity’ in light of the Vienna Convention on Diplomatic Relations, 1961. Under the VCDR, he said, diplomats and their families have immunity from the receiving state’s civil and administrative jurisdiction but the principle of ‘diplomatic immunity’ however, cannot signify impunity in the sense that diplomats may be placed above the law of the state.

In order for an accused diplomat to be tried effectively before the courts of their own/parent country, he said, evidence must initially be gathered by investigative agencies of the receiving country which the police authorities in the present case have failed to do.

Akbar said that treaty has to be interpreted in good faith and the principle of diplomatic immunity is not to be used for benefit of individuals. He said that the aim and object of the VCDR states that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing states.”

He explained that a diplomatic agent may not be arrested or detained in any circumstances whatsoever, he is not exempt from the obligation to obey local law and is subject to obeying the domestic laws of the receiving state as this will only enhance the efficient performance of diplomatic missions.

Furthermore, he expressed such a blatant disregard of the laws and lives of citizens of a receiving state by a diplomat cannot be accorded immunity if rule of law is to be maintained.

He maintained that bar from ‘criminal jurisdiction’ does not include investigation as there is no bar from investigation under the VCDR, 1961. He added that bar on prosecution only procedural under the Diplomatic Immunities and Consular Privileges Act, 1972.

Akbar argued that the immunity cannot be construed to be absolute as it not only violates several fundamental rights of the citizens of Pakistan but is also in violation of the true spirit of the VCDR, 1961.

Frequently, he said, immunity is understood to mean pardon, total exoneration, or total release from the responsibility to comply with the law.



In actuality, he added, immunity is simply a legal barrier which precludes Pakistani courts from exercising jurisdiction over cases against persons who enjoy it and in no way releases such persons from the duty, embodied in international law, to respect the laws and regulations of Pakistan.

The petitioner asserted that the privileges and immunities of diplomatic agents do not exempt these diplomatic agents from the duty to respect the laws and regulations of the receiving states except where these laws make a specific exception in their favour.

He also pointed out the failure of investigators to subject the accused person to a “breath test” or to collect his blood sample or urine sample which would provide conclusive evidence about whether he was driving while drunk — whenever the accused is tried, in Pakistan or the US Diplomats are exempted from prosecution and criminal jurisdiction, however, inserting a diplomat’s name on the ECL has not been prohibited.