ISLAMABAD: US Defence and Air Attaché Colonel Emanual Joseph does not have absolute immunity, the Islamabad High Court (IHC) ruled on Friday. The court also granted two weeks to the Ministry of Interior to decide over placing his name on the Exit Control List (ECL).
The decision was announced as the IHC read out its earlier reserved verdict over the killing of an Islamabad resident, Ateeq Baig, after he was hit by a vehicle driven by Joseph last month.
During a hearing on the petition filed by the deceased’s father, the court ruled that Joseph does not enjoy absolute immunity. Justice Aamer Farooq of the IHC heard the case. During the hearing, a deputy attorney general (DAG) had submitted before the court that since Col Hall is a ‘diplomatic agent’ therefore due caution is to be exercised to verify the immunity he enjoys from arrest/investigation and placement of his name on the ECL.
Counsel for the petitioner, Mirza Shehzad Akbar, had been contending that since the ‘immunity’ is enjoyed by a diplomatic agent from criminal jurisdiction, it does not include investigation of the criminal offence. The IHC in its order said that applying VCDR and international judgments to the present facts and circumstances, Colonel Joseph Emmanuel is a ‘Diplomatic Agent’ and enjoys immunity from being arrested or detained. It said the agent also enjoys immunity from appearing as a witness or tried for the criminal charges. The referred immunity only protects him to be tried in the receiving state i.e. Pakistan, however, he can still be tried for the said offence, with which he has been imputed in the sending state i.e. United States of America. In order to be tried in Pakistan, the government of United States of America or the head of US Mission in Pakistan has to expressly waive off the exemption.
IHC bench said that since the immunity from trial and punishment is not absolute and is only with respect to the courts of receiving state and a diplomatic agent can still be tried for the offence in his country, therefore, one would conclude that there is no bar or immunity qua the investigation of a criminal offence, meaning thereby that an agent can be interviewed by the investigating agency in the receiving state, however, immunity exists from arrest and detention.
About status of the case, the IHC said police has reported that investigation stands concluded and report under Section 173 CrPC has been filed before the competent authority. It is felt that police, in the instant matter, acted with undue haste and performed its functions negligently. Naturally, the trial cannot commence because of the immunity enjoyed by Col Hall. 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 Hall should be tried for the alleged offence committed in Pakistan. Otherwise, a request can be forwarded to the US government for trial of Hall in US. In case, US government refuses to try Hall, the matter can be agitated before the competent forum for enforcing the VCDR terms.
The IHC bench said that the provisions of Exit from Pakistan Control Ordinance as well as the VCDR are silent over the issue of placement of name of a diplomatic agent on ECL or with regard to restriction on his movement.
The bench criticised the attitude of Islamabad police while observing that admittedly, neither formal statement of Col Hall was reduced in writing nor a ‘breath test’ was conducted or blood or urine sample was obtained to determine whether he was driving while drunk.