A case of contradictions

In an interesting recent judgment, the Lahore High Court held that it could not order an ambassador of a foreign country to issue visas and air tickets to citizens of Pakistan.

A citizen, Saghir Ahmed, had pleaded that he had applied for asylum in the USA by filing an application through the post, claiming that he is facing danger to his life. He asked the court to direct the ambassador of the United States of America to issue visas and provide air tickets for him and his family members to travel to the USA. He further stated that he is entitled to this relief under the fundamental rights enshrined in the constitution and the Geneva Convention.

The court demurred. “it is observed that the Ambassador of [the] USA or any other country and their embassies are the premises of foreign diplomatic missions of [the] USA and their respective countries and are to be treated/deemed to be part of [the] USA or of [their] respective countries under International Law, “read the judgment issued by Justice Muzammil Akhtar Shabbir.

He further held that the ambassadors being representatives of another sovereign country, enjoying diplomatic immunity and protection under the Vienna Convention on Diplomatic Relations 1961, are not working in connection with the affairs of the federation, province or local government in and for Pakistan to perform functions for the state of Pakistan.

While dismissing Saghir Ahmed’s petition, the court regretted that the petitioner had approached the LHC for the second time to issue directions to the USA ambassador to issue him and his family visas.

In his judgement, Justice Muzammil Akhtar Shabbir observed that the claim of infringement of fundamental rights can be made for seeking a remedy against the State of Pakistan in the courts working in the country, but a claim cannot be extended by the court to issue a binding directive to an ambassador/embassy of a foreign country to issue a Pakistani citizen a visa for his/her country. This, he said, is not even a fundamental right.

He maintained that ambassadors/embassies are representatives of foreign sovereign states (sending states) having different rights, privileges and immunities from the State of Pakistan (receiving state) and its subjects.

“For the exercise of their diplomatic duties, all conventions are based upon mutual respect of domestic laws of other sovereign states and it is even beyond imagination that conventions would abridge their domestic laws or impinge on their sovereignty. Even otherwise, a visa is, in most cases, issued as a courtesy to the citizens of the other country with a view to maintain and promote friendly relations, economic or cultural activities, etc [through] the exercise of discretionary power vested in an Ambassador/ Embassy and not as  a right. [The] exercise of discretion cannot be interfered with by the courts of another country, “ the judge held.

He added, “The Ambassador and the USA Embassy are neither working in connection with the affairs of the federation (i.e. Pakistan), nor are legally bound to provide visas and air tickets to the petitioner and his family members, therefore, the petitioner’s case does not fall within the jurisdiction of this court provided under Article 199 of the Constitution.”

Elaborating on the functions of diplomats, the judge said “with the increasing administrative amalgamation in most states of diplomatic and consular services, the rigid distinction between the two no longer applies. Art. 3(2) of the Vienna Convention on Diplomatic Relations also reflects this amalgamation by stating that a diplomatic mission may perform consular functions. These include, inter alia, the issuance of passports, registration of births, marriages and deaths, and various notarial functions, subject to the legislation and practice of the receiving state.  Accordingly, some states do not recognise marriages performed by diplomatic and consular agents.

The judge added, “None of these functions are being performed by the respondent (ambassador) on behalf of the State/Federation of Pakistan. Rather, these are for the benefit of his own country. And the said functions do not mention that the facility of a visa shall be provided to citizens of the other country, let alone [be issued] as a right.

“Hence, this court cannot issue a direction in the nature of a mandamus to the respondent. No law of Pakistan can compel the respondent to issue visas or air tickets to the petitioner and his family.

“ It is the discretion of every sovereign country or its diplomatic mission to issue or refuse a visa to the residents of other countries, keeping in view their own laws, rules, regulations and policy.”

Justice Shabir also observed that Section 86.A of the Code of Civil Procedure, 1908 relating to suits against diplomatic agents provides that apart from specific exceptions, no proceedings can be instituted in any court against a diplomatic agent.

This immunity, he disclosed, is also provided in Article 31 of the Vienna Convention on Diplomatic Relations, 1961 in the following terms: “ A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction.”

Justice Shabbir’s  judgement held that the diplomatic protection of a state’s nationals abroad and of their rights in the receiving State has customarily been considered as the function of consuls, and is mentioned as such in the Vienna Convention on Consular Relations 1963.

When asked to comment on the judgment, a senior lawyer Ahmed Qayyum expressed wonder and said he had never experienced such a case during his entire 35 year-long career. “I am amazed by the petitioner and by the pleading lawyer. They both knew the fate of their case before its filing. It is common understanding that any individual cannot claim the visa of a country as his/her right.” He added that the court should have imposed a heavy fine on the petitioner to shut the door on any future frivolous litigation.

Rana Asadullah Khan, an advocate of the Supreme Court, said he was also taken aback by the petition and couldn’t help laughing at the audacity of it. However, he contended, that while he appreciated the courage of the petitioner-citizen, it is a well-known fact that sometimes people file such cases to gain cheap publicity. He added that the court had rightly dismissed the petition, otherwise it would have opened a Pandora box of such petitions in the LHC. And he said he subscribes to the suggestion that the court should discourage such cases by imposing heavy fines on those who file them.