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ADDL District Judge Casts Aside Diplomatic Immunity in Sri Lanka

ADDL District Judge Casts Aside Diplomatic Immunity in Sri Lanka

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Published by: Thavam on May 28, 2013
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05/28/2013

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May 28, 2013
In recent times, Sri Lanka has come under increased criticism internationally for its failure under theRajapaksa regime to uphold well established basic international norms such as the Rules of Natural Justice and respect for the necessary independence, jurisdiction and role of the judiciary.
The latest controversial order comes from a District Court, wherean Additional District Judge under the regime has cast aside thediplomatic immunity that under international law is available toforeign diplomats in a country of good standing among thecommunity of nations.Here is the text of the controversial order.IN THE DISTRICT COURT OF COLOMBO-COURT NO. 08In the presence of Mrs. Amali Ranaweera Addl.District JudgeCase No. 03438/2011 D.M.R.Date 30-04-2013Recorded by M.M.C. Renu Stenographer ORDERThe Plaintiff has prayed from his Plaint as the first cause of action t he recovery of a sum of Rs.57,169,452 jointlyand severally together with 12% annual interest until payment in full from 1st to 10th Defendant representing theNorwegian Foreign Ministry, as the second cause of action recovery of a sum of Rs.28,259,837.08 joint andseverally together with legal interest of 12% until payment in full from 1st to 10th Defendants representing theNorwegian Foreign Ministry as the third cause of action the recovery of a sum of Rs.2,542,198.15 jointly andseverally together with legal interest of 12% until payment in full from 1st to 10th Defendants representing theNorwegian Foreign Ministry, costs and other and further reliefs the Court shall seem meet. The Plaintiff has prayedfor the above reliefs on three causes of action. Accordingly the Agreement marked P2 attached to the Plaint which is the first cause of action had been in operationfrom 01-05-2009 to 14-11-2009 and as there is a right to recover the relevant funds through the officers of theNorwegian Foreign Ministry at least till 14-11-2009, it is required to recover a sum of Rs.57,169,452/together with12% annual interest till payment in full from 1st to 10th Defendants, a sum of Rs.28,259,837/08 together withinterest 12% annual legal interest from 1st to 10th Defendants representing the Norwegian Foreign Ministry beingthe amounts payable by the Plaintiff to the Staff and authorities employed by the Plaintiff due to the suddenmalicious and mala fide termination of the Agreement as their EPF and ETF bonus and other taxes and a sum of Rs.98,528,065.69 as the Plaintiff had to obtain a Bank draft of Rs.2,542,198.15 and 12% annual interest had to bepaid on it and the Agreement marked P2 had to be maintained till its last date and also due to the delay in paymentand some payments not settling at all by the Norwegian Foreign Ministry officers.Dr. Kumar Rupesinghe
Accordingly the above causes of action have been filed to recover damages from the 1st to 10th
Dr. Kumar Rupesinghe
 
Defendants representing the Norwegian Foreign Ministry. When drawing attention to the caption of the Plaint it appears that it has named Hilde Haraldstad Ambassador Norwegian Embassy as the 1stDefendant, Erik Solheim, Minister of Environment and Cooperation as 2nd Defendant, Jonas GahrStore Minister of Foreign Affairs as the 3rd Defendant, Ingrid Fiska, State Secretary, Secretary to theMinistry of Environment and International Development as the 4th Defendant, Espen Barth Eide StateSecretary, Ministry of Foreign Affairs as the 5th Defendant; Kjersti Anderson, Assistant DirectorGeneral, Ministry of Foreign Affairs as the 6th Defendant, Vigdis Wathne past Chief Secretary,Norwegian Embassy as the Defendant, “Edle Hamare Past Consular Officer Norwegian Embassy asthe 8th Defendant, 9th Erik Glenne Director Foreign Service Administration Unit as the Defendantand Tire Hattrem Past Ambassador Norwegian Embassy as the 10th Defendant.
British High Commission
In addition four representatives of the British High Commission have been named in the caption. They are H.E. Joh Rankin, High Commissioner, British High Commission as the 11th Defendant, TomOwen Edmunds, Head of Political and Development Division, British High Commission as the 12thDefendant, William Hague State Secretary Overseas and Commonwealth Office as 13th Defendantand Russel Crane, South Asian Group Overseas and Commonwealth Office as 14th Defendant.
Erik Solheim
According to paragraph 43 of the Plaint the right that the Plaintiff had to file action against the 11thto 14th Defendants is said to have been voluntarily withdrawn as a mark of appreciation of servicegiven to the Plaintiff by the British High Commission. According to Journal Entry NO.1 Summons hadbeen served to all the Defendants on 15-092011 by Registered Post and through Ministry of ForeignAffairs. On 25-05-2012 lawyers appeared representing all parties and argued that as Defendants areHigh ranking officers and Ambassadors of Foreign States they have immunity in this country. As norelief has been sought for 11th to 14th Defendants they have been released from the case.
 A panel of lawyers had appeared on behalf of 1st to 10th Defendants under Section 41 of the Judicial Service ActNo. 02 of 1978 to assist the Court. In terms of Sub Section 41(1) of the Judicial Procedure Act it is stated that everylawyer has the entitlement to tender replies and implement them in all Courts that have been established to assistand advise clients. Also in terms of Sub Section 41(2) any person exercising half Judicial Power has the entitlementto represent any party through an Attorney-at-Law. If it is so on behalf of 1st to 10th Defendants under Section 27 of the Civil Procedure Code Submissions had been made 1ston behalf of parties without filing a proxy to appoint alawyer on behalf of 1st to 11th Defendants appearance had been made in Court without filing a proxy to assistCourt (Amions Curaie).Judicial assistants
In Case Seneviratne Vs. Attorney General (71NRL 439) and Seetha Vs. Sharmananda and others(1989 105 Sri Lanka Law Report 94) the possibility of lawyers appearing as helpers to court had beentaken into consideration. As Defendants 1 to 10 have foreign sovereignty a request has been madeto provide judicial assistants on their behalf due to the fact that when proxies are filed making themDefendants they are regarded to have waived off immunity entitled to them till such time the judgment is given. Drawing attention to Superintendent Government Soap Factory, Bangalore VCommissioner of Income Tax (43 NRL 439) in Taylor V Best (14GB 487) it is mentioned “where theAmbassador had voluntarily appeared as one of several Defendants and defended the Section to Judgment he had waived his privilege”. As Defendants 1 to 10 are representatives of the NorwegianGovernment and Ambassadors and as they are claiming for immunity by way of filing proxy in thiscase, the said immunity is regarded to have been waived. Submissions had been made in thismanner representing as judicial assistants.
Hilde Haraldstad
 
Certain primary objections have been made on behalf of 1st to 10th Defendants. That is according toSection 6 in Diplomatic Privileges Act No.9 of 1966, a certificate has been issued by the Ministry of Foreign Affairs of this country where it is stated that Defendants 1 to 6 have immunity and it is saidto be conclusive evidence. It is stated that 3rd Defendant is the present Minister of the Ministry of Foreign Affairs and previously he had been the Minister of Health of the Norwegian Government. Alsoit is stated that the 5th Defendant is presently working as the Ministry of Defence in the said Stateand previously he had functioned as the Minister of Foreign Affairs. Second Defendant at the time of filing the case had been working as the Minister of International Development and 6th to 9thDefendants are Senior Officer of the Foreign Ministry of the Norwegian Government.
International Law
Accordingly it is argued that Defendants 6 to 9 have immunity under the Conventional InternationalLaw. It is shown that the said Defendants 1 to 10 have been included to the case not on personallevel but for an act done on their duty level. Also these Defendants have no connection whatsoeverto the Agreement P2 and is representatives of the Ministry of Foreign Affairs of NorwegianGovernment and they are entitled for immunity for performing an official duty under the conventionalInternational Law. It has also been argued that Agreement P2 is not an Agreement concerningcommercial transactions and even parties not connected to the Agreement have been added asDefendants to this case.
In that connection the primary objection of the Defendants had been based on the fact that Defendants are entitledfor immunity in accordance with the Conventional International Law or Diplomatic Immunity and also on the fact thatpersons not parties to Agreement P2 have been included to the case. In reply to the above primary objection thePlaintiff has argued that the Ministry of Foreign Affairs of this country has issued a number of certificates of variouskinds but as by way of condition 10.4 of the Agreement P2 filed in action immunity has been expressly waivedDefendants 1 to 10 have no entitlement for immunity. At the Oral Submissions both parties had given attention tovarious local and foreign judgments and books on international law and Agreement law. Accordingly in the first instances the attention of this Court is drawn as what kind of immunity is entitled to theDefendants. Defendants 1, 7 and 10 mentioned in the Caption of 1stJohn Rankin
the Plaint are officers representing Norwegian Embassy. Defendant is the present Ambassador of theNorwegian Embassy in this country and the 7th Defendant is the past Chief Secretary of theNorwegian Embassy. International Law governing diplomatic relations between States is enumeratedin Vienna Convention on Diplomatic Relations 1961 Law 31 of the Convention states that Embassyofficials are waived from Criminal Law procedure and entitled for immunity subject to certainlimitations.
Law 32 of the Convention also states of certain instances where Embassy officials are not entitled for privileges. Also in a case where an Embassy official is involved in a case outside his official duties and for private or commercial purpose he will not get the diplomatic immunity.Further Embassy officials or if there is any specified period of time and after such time will not be entitled for immunity. According to Law 39(2) it is stated that there is an entitlement for immunity for official duties performedduring the period of service. By enforcing the terms of Vienna Convention Diplomatic Immunity Act No. 9 of 1996was approved. It is evident when drawing attention to the preface of the Act. It is said “It is an Act that providedprovisions for immunity and privileges to certain officers and representatives of International organizations and their properties. As Vienna Convention relating to Diplomatic relationship was passed in Vienna on 19-04-1961, and as Sri Lanka isa party to that Convention and as it is necessary to make legal provision to fulfill the responsibility on the part of Sri

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