Diplomatic Immunity to Documents!

Flag of the British Indian Ocean Territory Fra...

Flag of the British Indian Ocean Territory (Photo credit: Wikipedia)

More than 2,000 islanders were evicted from the British colony of Diego Garcia known as the British Indian Ocean Territory (BIOT) in the 1960s and 70s. Their claim of repatriation or resettlement on the ground of Human rights violation has been rejected by European Union. It appears that in 2009 UK also imposed a marine protected area (MPA) declaration over the island to plan to set up the marine park on 55 islands but it is alleged that real motive was to prevent the islanders from returning there. An US cable, recently released on WikiLeaks supports the fact that MPA declaration was for oblique motives. This cable quotes Colin Roberts, Commissioner to BIOT, as expressing satisfaction that after MPA, notification there would be no ‘human footprint’ of ‘Man Friday’ over the island.
The UK law, as it stands, provide for Judicial Review of any executive decision on the ground of arbitrariness i.e., the real reason for taking the decision was not germane to the object. It is also called the test of Wednesbury’s arbitrariness. It appears that High Court of UK has denied use of these documents as evidence on the basis of diplomatic immunity.

Under UK Diplomatic Privileges Act 1964, certain articles of Vienna convention have force of law, in UK. Two of these articles are article 24 and 29. These are as under:

Vienna Convention‘s Article 24: The archives and documents of the mission shall be inviolable at any time and wherever they may be.
Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

Interesting historical fact is that similar documents have always been used by International Courts, in cases of human rights violations. The reasons for such double standards is not clear.
It is also not logical that a document which is freely available, without any intrusion into diplomatic sources and can be read by any member of pubic, can not be read by court.
A diplomat, once out of office loses his diplomatic immunity but a document even if loses the protection of diplomatic channel or confidentiality, remains, confidential. That seems too far-fetched for legal reasoning. The test for admissibility is

‘Examining justices could exclude the evidence from their consideration only if satisfied that its admission at the trial would be so obviously unfair to the proceedings that no judge properly directing himself could admit it. I have no doubt that even in such a case it would generally be far better to leave the decision to the trial judge who will, as I have said, be in a better position to assess the effect on the fairness of the proceedings and have had greater experience of deciding such questions.’ (See Reg. v. King’s Lynn Justices, Ex parte Holland [1993] 1 W.L.R. 324)
Inviolable means “Not to be violated; having a right to or a guaranty of immunity; that is to be kept free from violence or violation of any kind, as infraction, assault, arrest, invasion, profanation, etc.” (Source wordnik dot com) It may be seen that inviolable is not ‘inadmissible’. When  a document is denied into evidence, it must be ‘inadmissible’. Inviolable is not a synonym of ‘inviolable’ as being made out. Nor it means confidential or secret. Therefore this ruling is over stretched on reasons.
Further, such document even if impermissible in evidence, could be used to cross-examine the witness by confronting him with the contents. Fact is any document, even if the other party is not given any prior notice, can be used to cross-examine the witness. It appears that judges have denied this right as well.
It is time that the concept of Diplomatic Immunity and its scope may be redefined. A public debate must ensue over the role of Diplomats and their activities. Further, in this era of Information Age, where ‘Official Secrets Act’, a legacy of colonial rule, is gradually becoming irrelevant, it should be seen that diplomatic immunity must cease to be an engine of suppression of truth/facts from the public or court. Diplomatic Immunity must not be used by host State to suppress its own wrong doing. After all it is a protection given to guest State, not to Host State.
We must move forward.

Related Articles:

Diplomatic or Lying Immunity

UK Supreme Court: Reminiscent of Dark ages

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About Sandeep Bhalla

A lawyer, thinker, author, Linux/Ubuntu power user and sometime an economist or gardener or philosopher or cook or photographer depending upon the current thought and environment. View all posts by Sandeep Bhalla

2 responses to “Diplomatic Immunity to Documents!

  • David Bennett

    I think I see the reasoning.

    Article 24 states that the archives and documents of the mission shall be inviolable at any time and wherever they may be.

    Presumably the leaked cables contradicted the ‘archives and documents of the mission’ – but because the archives are inviolable, anything that contradicts them attacks their inviolability, and so is inadmissible.

    What do you think?

    Like

    • Sandeep Bhalla

      Actually you have caught the bull with its horns.
      Interpretation of a law is made with the object that the purpose of law is not defeated. Here the purpose of Vienna convention is to protect diplomatic documents from any intrusion, even if it is in transit or stored elsewhere (‘time and wherever’). Thus the court can not and will not summon it officially. But when intrusion has already taken place, how the clock shall be turned back by court.
      Second point is that the country enjoying diplomatic immunity should claim immunity, not the Host country.
      Third point is procedural. During cross examination of a witness, no fetters can be placed on the line of questioning unless it is vexatious or irrelevant. A witness can be led to give an answer with any paper or document, even if it is not already on record. Now, in this case that right appears to have been taken away.
      Now this is my interpretation. Of course Judges are interpreting is in their own way but that does not serve any public purpose except to serve the Foreign Office.

      Like

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