ISLAMABAD: The Islamabad High Court (IHC) declined to order the federal government to place a US diplomat involved in a fatal traffic accident on the exit control list (ECL).

Disposing of a petition filed by the father of a youth killed in the accident on April 7, Justice Aamer Farooq observed that since the matter related to placing the US air defence attaché on the ECL was already pending with the interior ministry it (ministry) should make a decision in a couple of weeks in the light of observations passed in the judgment.

In the judgment, Justice Farooq discussed in detail the concept of immunity available to diplomatic agents under the Vienna Convention on Diplomatic Relations (VCDR) 1961.

Since matter is already pending with interior ministry, govt should make a decision on it in a couple of weeks, says IHC

The 20-page verdict stated: “Courts generally refrain from entering the domain of executive and take decisions on its behalf…since the matter is already pending before the competent authority i.e. the federal government, hence it [is] just and appropriate that the issue of placement of name of respondent No1 [Col Joseph Emanuel Hall] be decide by it.”

The court directed the federal government to “decide the application for placement of the name of respondent No1 on the ECL in accordance with the law, especially in light of observations made above expeditiously preferably within two weeks.”

The court added that “a diplomatic agent can be interviewed by an investigating agency in the receiving state; however, the immunity exists from arrest and detention. Moreover, a diplomatic agent is to be treated with dignity and these aspects have to be kept in view while conducting the investigation.”

The court observed that “naturally, the trial cannot commence because of the immunity enjoyed by respondent No 1. In this backdrop, the federal government can take up the issue with the government of United States of America for waiver of immunity in case it wishes that respondent No 1 should be tried for the alleged offence in Pakistan. Otherwise, a request can be forwarded to the government of US for trial…in the United States.” It added that “in case the US government refuses to try respondent No 1 or proceed further, the matter can be agitated before the competent forum for enforcing the terms of the VCDR and seeking remedies provided under the law.”

The court cited contents of the First Information Report (FIR) registered on the complaint of Mohammad Idrees, father of Atique Baig who died in the accident.

According to the FIR, respondent No 1 hit the petitioner’s son while driving a land cruiser on Margalla Road on April 7, 2018…the entire accident has been recorded in Safe City Project cameras and apparently video footage of the accident is also available.”

The court noted: “Articles of VCDR mentioned in Schedule-1 to the Act have the force of law in Pakistan. Under Section 3 of the Act, the privileges and immunities can be modified and even withdrawn by the federal government. A diplomatic agent is not to be arrested or detained… He shall enjoy the immunity from the criminal jurisdiction of the receiving state as well as civil and administration jurisdiction thereof with three exceptions: the diplomatic agent is not obliged to give evidence however the immunity of a diplomatic agent is in respect of jurisdiction of the receiving state, and does not exempt him from the jurisdiction of sending state.”

The court explained that Col Hall may be tried in the US for the offence committed in Pakistan.

The court noted that “neither formal statement of respondent No 1 was recorded in writing no a ‘breath test was conducted or blood or urine sample was obtained to determine whether he was driving while drunk.”

According to the court, this was the negligence of the investigating officer that he did not conduct proper medical tests of the accused.

Justice Farooq declared that the request for issuance of direction to the federal government to amend the law that provides immunity to diplomats is turned down since “no specific provision of the Act was pointed out which violates other laws of Pakistan or provision of the Constitution.”

Published in Dawn, May 12th, 2018