After analysing the whole case of US Embassy’s Colonel Joseph Emanuel Hall, I am of the view that due to Colonel’s inconsiderate driving; a young innocent Pakistani has been brutally killed. I do not find any way out for Colonel except the powers defined in Article 45 of the Constitution of Islamic Republic of Pakistan, be exercised by our president to grant pardon after the court’s verdict. I have not taken into consideration, another way out for him due to the follow up of the case by the deceased’s father as he has the legal authority to sign an agreement to pardon Colonel, with or without terms and conditions.
I appreciate the current role of our judiciary and especially the trial court, who have taken up the case and the trial is being done fairly and justly despite local and foreign efforts to exert pressure to provide free departure to Colonel from our country and to set another example of injustice. I suggest to the fellow counsel of petitioner (father of the deceased) here that do make special efforts to ensure these three things besides other efforts including the name on ECL:
1) Submission of Colonel’s driving license to the court.
2) Submission of Colonel’s passport to the court.
3) Submission of a letter from US Embassy stating that Colonel will not leave the country without the court’s permission.
I do not know, how Colonel will claim the Diplomatic or Consular Immunity when he has done an act resulting in a brutal death of an innocent person beyond his official duties. For the counsel of the petitioner, I would like to say here that the Colonel is a defence and air attaché at the US Embassy in Islamabad and the spirit behind the diplomatic or consular immunity is very different as people do read or think, generally.
I do not consider the attaché in any diplomatic mission as a diplomatic agent or person as he or she does not belong to the diplomatic or Foreign Service of his or her country and the person is just attached to the diplomatic mission for the desired official objectives set by the sending state or country.
Due to this point, the attaché cannot have the benefits as diplomats or consular can have in the host state. Therefore, the diplomatic immunity cannot be much expanded for the attaché as compared to a diplomat or consular. However, the diplomatic immunity has boundaries for all and cannot be taken as liberty to kill any innocent person in any country including the host and sending countries.
Now, if we take up the case for the sake of general understanding then there is a need to consider the diplomatic and Consular Privileges Act (1972), which is to give effect in our country to the Vienna Conventions on Diplomatic Relations (1961) and Consular Relations (1963).
A question arises that if a person claims a diplomatic or consular immunity under the said act of 1972 then who will decide this? A simple answer to this very question is that our Ministry of Foreign Affairs under the authority of Federal Government will issue a certificate stating diplomatic or consular immunity to a particular person.
If this immunity does not exist then it will also be stated by the concerned ministry. However, the court will finally decide the issue of immunity before giving the verdict. The 1961 Vienna Convention is mainly concerned with Diplomatic relations and therefore related to Missions/High Commissions/Embassies functions, operations, and their respective staff whereas, 1963 Vienna Convention is mainly concerned with Consulates functions, operations, responsibilities and their respective staff.
The purpose of both conventions is not to benefit the individuals but to ensure efficient performance of functions by the positions on behalf of the respective states. It could be easily concluded from the 1961 Vienna Conventions articles 31, 37, and 41 that Administrative and Technical Staff will not have any immunity for acts performed outside the course of their duties and it is the duty of staff to respect the law and regulations of the host state.
If we consider now, the 1963 Vienna Convention then from its article 41, we can conclude that Consular Officers do not have immunity in case of a grave crime.
If one takes a glance at the 1963 Vienna Convention then from its article 41, it can be concluded that Consular Officers do not have immunity in case of a grave crime
I have always respected the Independent Judiciary irrespective of the region or country and have firm believe in the trial court in our country and that the court will be fair and just in its verdict.
This verdict will be binding on all of us and the USA must respect the verdict. It will be good information for the readers to know that the US is the country that had given us a valuable aid to improve our system of justice. I have a firm hope that the President of US will play a role in providing justice to the deceased family and will keep working for the rule of law and justice around the globe.
The writer is an Advocate. He can be contacted at [email protected]
Published in Daily Times, May 17th 2018.