1 Introduction
Bangladesh is a constitutional democracy founded in 1971 by exercising people’s right to self-determination.1 Since its inception, the country has had a diplomatic immunity regime through the Laws Continuance Enforcement Order 1971, albeit on a limited scale. This paper aims at bringing to the forefront the state practice of diplomatic immunity in Bangladesh. In doing so, we will discuss the constitutional framework, succession of the Vienna Convention on Diplomatic Relations (VCDR) 1961, and the current domestic legal framework leading towards a conclusion preceded by some case studies. The novelty of this article lies in discovering the applicable law on diplomatic immunity and privileges in Bangladesh and the recommendations towards making a complete legal regime on diplomatic immunity and privileges in Bangladesh.
2 International Obligation of the State
Bangladesh is a dualist country, although there is an opinion that the judiciary of Bangladesh is demonstrating a creeping monist tendency in some cases.2 There is empirical evidence dating from the foundational days of the state to present days, the executive and the legislature have shown a dualist attitude in dealing with international law. For example, in 1973, Bangladesh enacted the Asian Development Bank Order 1973 for the implementation of the Agreement establishing the Asian Development Bank in 1965. An example of recent such practice is the enactment of the Carriage by Air (Montreal Convention) Act 2020. It is true that in several instances the parliament made implementing legislation for transformation of an international law instrument into the domestic laws of Bangladesh. However, it is interesting to note that in a few stray cases, the judiciary applied international law obligations directly without such transformation.
The Vienna Convention on Diplomatic Relations 1961 predates the birth of Bangladesh. Only in 1978, the state succeeded the convention. However, being a dualist country in practice, it is important to see whether there is any implementing legislation prescribing diplomatic immunity. But before that it is also important to see whether the supreme law of the land, the Constitution of Bangladesh, allows the parliament to make any such law that anticipatorily grants immunity to a non-citizen.
3 Constitutional Framework
The Proclamation of Independence, the first constitution of Bangladesh, undertook to observe and give effect to all duties and obligations that devolve upon us as a member of the family of nations and under the Charter of the United Nations.3 The monist pattern of wording, ‘undertake to observe the UN Charter,’ in the Proclamation of Independence was later toned down when the constituent assembly of Bangladesh adopted the Constitution of the People’s Republic of Bangladesh 1972.4 The current Constitution of Bangladesh, in its preamble, affirms that it is the responsibility of the people of Bangladesh to “… maintain its (the constitution) supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and cooperation in keeping with the progressive aspirations of mankind.”5 The preamble being very much an operative and enforceable part of the constitution has the supremacy of legal status in Bangladesh over any other laws including the international laws the state may subscribe from time to time.6 In case of legal regime of diplomatic immunity in Bangladesh, the situation becomes much more complex given the very nature of diplomatic immunity that it anticipatorily grants indemnity to a non-citizen.
As mentioned earlier, in the territory of Bangladesh, it is the constitution which is supreme. Even international legal documents it subscribes to must adhere to the constitutional provisions for them to be applicable in Bangladesh. The only constitutional provision that speaks about a possible immunity/indemnity legislation is Article 46. Notably, the provision is very narrow and does not cover ground for diplomatic immunity. The article is as follows:
Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law make provision for indemnifying any person in the service of the Republic or any other person in respect of any act done by him in connection with the national liberation struggle or the maintenance or restoration of order in any area in Bangladesh or validate any sentence passed, punishment inflicted, forfeiture ordered, or other act done in any such area.7
More importantly, indemnity and immunity-these two terms cannot be used interchangeably. The idea of indemnity in Article 46 is applicable only after an act has been committed. But the diplomatic immunity, as an idea, grants anticipatory indemnity only to the diplomats which is essential for fulfilling the requirement of ‘respect for international law’ under Article 25 of the Constitution. Because the concept of ‘diplomatic immunity’ on the basis of reciprocity has attained the status of customary international law. In addition, the purview of Article 46 is not exhaustive. Thus, it cannot be said that no immunity legislation can be made beyond Article 46. The only thing the legislators need to be careful about is that it is not inconsistent with any provision of the constitution.
Again, Article 25 of the Constitution provides that:
The State shall base its international relations on the principles of respect for national sovereignty and equality, non interference in the internal affairs of other countries, peaceful settlement of international disputes, and respect for international law and the principles enunciated in the United Nations Charter.8
Now, the Vienna Convention on Diplomatic Relations 1961 is considered as one of the most successful legal instruments after the establishment of the United Nations. Till date, 193 states are party to the conventions. In addition, scholars are of the view that the provisions for diplomatic immunity on the basis of reciprocity have attained the status of customary international law.9
The travaux préparatoires of the Vienna Convention on Diplomatic Relations 1961 reveals that the convention codified to a large extent the existing customary rules on bilateral diplomatic relations between states.10 Even if a provision of VCDR is considered as customary international law in the absence of an implementing legislation, the court can only enforce such a provision being certain that the provision has attained the status of international custom. It is argued that although the ‘textual interpretation of the Constitution has made it evident that the Bangladesh Constitution does not contain any provision directly articulating the status of customary principles of international law,’ ‘it could be fairly said that the content-specific recognition of relevant customary principles in rulemaking of the Constitution is a clear proof of Bangladesh’s position of accepting or respecting the generally recognised international law principle leading to the right-based and people-participated democratic republic.’11 To do so, the Supreme Court of Bangladesh will need to develop a methodology to ascertain the existence of any international custom.12 Notably, the identification of the existence of international custom is one of the most complex tasks before international courts and tribunals. It would be more complex for a domestic court that does not frequently deal with such customs. The Evidence Act 1872 may be of particular guidance at this point.13
Thus, although the constitution is silent about making legislation on diplomatic immunities, there is no barrier to do so. On the other hand, an implementing legislation is required to uphold the mandate of Article 25 of the Constitution. Because without an implementing legislation, the international law – VCDR 1961 does not automatically apply in Bangladesh. Now it is perhaps time to check the domestic legal framework to see whether any domestic law has been enacted for the same purpose.
4 Domestic Legal Framework
There is one domestic law namely, The Diplomatic Immunities (Commonwealth Countries Representatives) Act 1957 [DICCRA] that predates not only the establishment of Bangladesh but also the adoption of the Vienna Convention on Diplomatic Relations 1961. It is not essential for an implementing legislation to be enacted after the subscription to the international legal instrument. Rather pre-existing law can also be considered as an implementing legislation. Although the preamble of DICCRA gives the impression that the protection offered by the DICCRA may be extended, notably, the DICCRA is only applicable for commonwealth countries’ diplomats. Thus, the question is how is Bangladesh granting diplomatic immunity to diplomats of non-commonwealth countries?
The custom practiced by the Bangladesh foreign ministry is when a sending state decides that they want to send a particular person in Bangladesh as a diplomat, they initially send a letter to the Ministry of Foreign Affairs informing about such selection. If the foreign ministry has no objection, they inform the sending state about their decision. The sending state’s diplomat is then required to present his credentials before the President of Bangladesh. Under section 7 of the DICCRA, the Bangladesh government is supposed to provide the diplomat with a certificate regarding his immunity. This certificate will be conclusive evidence, in any legal proceeding, of the facts certified in the certificate as regards his immunity in Bangladesh. In addition, there has been a practice of providing the diplomatic agents a diplomatic identification card.14 However, whether the same process is followed for diplomats of non-commonwealth countries needs to be confirmed. And if yes, under what law?
This 1970 amendment to the Code of Civil Procedure 1908 provides diplomatic agents a general diplomatic immunity from civil proceedings. This is equally applicable for both commonwealth and non-commonwealth country diplomats. However, it prescribes three grounds for which a proceeding may be lodged against a diplomatic agent, i.e., provisions of diplomatic immunity shall not be applicable. These three specific types of proceedings are related to the followings:
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any private immovable property situated in Bangladesh held by him in his private capacity and not on behalf of the sending State for the purpose of the mission;
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a succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
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any professional or commercial activity exercised by the diplomatic agent in Bangladesh outside his official functions.
Even if a possible action is grounded on any of the above three conditions, such action cannot be undertaken in which the inviolability of his person or of his residence does not remain protected. Notably, in the last 50 years, no civil case has been reported to be lodged against any diplomatic agent. On the other hand, the law of criminal procedure in Bangladesh, Code of Criminal Procedure 1898 is silent about any possible action against a diplomat. Since DICCRA gives immunity to the commonwealth countries’ diplomats, the door remains open for the state to prosecute non-commonwealth country diplomats for commission of a crime. In the absence of an implementing legislation of VCDR, this is totally contrary to the spirit of VCDR.
5 Seizing Diplomatic Immunity: Case Studies
5.1 Irfan Raza15
The government of Bangladesh on 16 December 2000 declared Pakistan’s Deputy High Commissioner Irfan Raja persona non grata for his indecorous remarks against the Liberation War and unfriendly activities against the host country. Earlier, his derogatory remarks against the liberation war, independence and sovereignty of Bangladesh at a seminar in Dhaka on November 27 triggered a wave of countrywide protest and a demand was made for his immediate expulsion from the country. In the face of mounting pressure, the Pakistan government on November 30 conveyed its decision to withdraw the errant diplomat but did not indicate when he would leave.
That decision was not translated into action even after two weeks leaving Bangladesh with no alternative but to take its own action. Incidentally, Irfan Raza became the first diplomat to be declared persona non grata by the government of Bangladesh. Although the legal instrument declaring him persona non grata is not publicly available, the only explanation that may be contemplated is that such was done under the authority of the section 8 of the DICCRA, Pakistan being a commonwealth country. However, it remains to be seen how the foreign ministry would have dealt with it if similar comments were made by someone from a non-commonwealth country since the DICCRA is only applicable for commonwealth countries’ diplomats.
5.2 Mohammad Mazhar Khan
Another Pakistani diplomat named Mohammad Mazhar Khan was withdrawn from Bangladesh after intelligence dug out his involvement in terror financing and currency forgery racket. He had set up a wide network of producing and distributing fake Indian currency. Allegedly, the intelligence report said Mazhar in collaboration with some colleagues at the high commission used to channel the money earned through his currency scam to Hizb ut-Tahir, Ansarullah Bangla Team and Jamaat-e-Islami. He was immediately withdrawn by the Pakistan government. Before leaving he surrendered the diplomatic identification card. However, questions were raised as to why a diplomat found involved in such grave crimes was let go without being expelled or declared persona non grata.
5.3 Searching the Bag of a North Korean Ambassador
A North Korean Diplomat named Son Young Nam refused to let the immigration authorities check the bag he was carrying as soon as he entered Bangladesh. He reasoned that he had a red passport and was entitled to diplomatic immunity and privileges that protect his bag. However, there were information that the diplomat was smuggling 27 kg of gold in his bag. If such happened, it would have violated the national law of Bangladesh that nobody can carry jewelry more than 2 kg. Notably, the idea of a ‘diplomatic bag’ is different from a ‘diplomat’s bag.’ Because in case of a diplomatic bag, there should be designated sticker placed on it, which will not be present in case of a diplomat’s bag. The attempt to use the protection afforded to ‘diplomatic bag’ to smuggle only made him an abuser of the diplomatic immunities and privileges he was entitled to. Since it was not a diplomatic bag in legal parlance, the search carried out was deemed to have been in accordance with the procedure and Son Young Nam was found guilty of abusing the diplomatic rights given to him for the smooth running of his diplomatic mission.16 The Bangladeshi law prescribes fine, life imprisonment or death penalty for such smuggling. However, given the fact that he was a diplomat of the North Korean Embassy, he could not be subject to these penalties. As a result, Bangladesh asked the North Korean authorities to sue him and report the charges brought against him. On the other hand, Bangladesh declared him persona non grata. North Korean authorities officially apologized for such an incident.
6 Extension of Diplomatic Immunity by Court by a Certificate from an Embassy
In Kazi M. Delwar Hossain Baig v. The Chairman, 1st Labour Court, Dhaka and Ors.17 this case before the Labor Court, Dhaka, one Mr. Kazi M. Delwar Hossain Baig challenged a decision of the Labor court that declared such a certificate entitles the person to diplomatic immunity. This case from 1990 involves a question of law as to whether a document issued by an embassy in Bangladesh certifying that someone is part of the diplomatic mission entitles him to diplomatic immunity under the Vienna Convention on Diplomatic Relations 1961. It was submitted that the ‘Labour Court acted illegally in dismissing the case on an erroneous view that the employee respondents were entitled to diplomatic immunities.’18
A closer look at the facts of the case reveal that the petitioner was appointed as a driver in March 1975 by the Manager U.S. Commissary. The service of the driver was terminated vide letter in March 1987 with effect from December 1986 without paying him termination benefits. So, the petitioner filed a case in the Labour Court praying for re-instatement in service with back wages. Thereafter respondents entered appearance before the Labor Court and filed an application praying for rejecting the plaint. The employer respondent produced a certificate issued by the United States Embassy in Bangladesh in February 1990 stating that the United States Commissary is a part of the United States Diplomatic Mission. Relying upon the document, the Labor Court held that the employer respondents were enjoying Diplomatic Immunities from civil jurisdiction under the Vienna Convention. When a writ petition was filed against the judgment of the Labor Court, the court discharged the petition on a technical ground and avoided a discussion as to whether diplomatic immunity shall be extended to a commercial entity under the garb of an embassy. The Court said that the petition stated that the
U.S. Commissary is a Contractor and supplies food hard liquor, beer, cigarettes, cosmetics etc. to different diplomatic missions and used to show commercial films and runs three canteens. Thus it appears that respondents are engaged in business in this country under the name of U.S. Commissary and its office is located in Magh Bazar. It is not understood how an ordinary business organization carrying on business using the name of U.S. Commissary outside the Diplomatic premises can claim diplomatic immunity on the basis of a certificate issued by the counsellor for Administrative Affairs of the U.S. Embassy. But the petitioner did not raise this question before the Labour Court by filing any objection against the application dated 17.6.1987 filed by the respondent Nos. 2–7 stating that U.S. Commissary is not a commercial or business establishment. Petitioner having not raised this question before the Labour Court there is no scope for deciding the same in this petition. Since the Labour Court relied upon the certificate issued by the counsellor of the U.S. Embassy on 5.2.90 stating that U.S. Commissary is a part of the U.S. Diplomatic Mission, we find no ground to interfere with the impugned judgment when clause (g) of Article 1 read with sub-article 3 of Article 37 of the Vienna Convention granted Diplomatic Immunities to the Service Staff of the Mission.19
Notably, this decision of the Labor Court does not have precedential status because subordinate courts are not given the authority to create precedents in Bangladesh legal system, and the High Court Division did not decide on the substantive position of law.
There are a number of problems with such a decision in the given fact. Firstly, the Vienna Convention on Diplomatic Relations does not automatically apply in Bangladesh. Then being a dualist country, a subordinate court could not directly apply an international law provision without implementing legislation. Secondly, the DICCRA applies only to commonwealth countries. There is no scope in the law that such a facility could be also extended to a non-commonwealth country. The author is of the view that if the court engaged in substantive discussion of law, the judgment could be perhaps different from the one that came out. Thirdly, the government of Bangladesh gives a diplomatic id card to diplomats coming to Bangladesh as soon as they arrive. In addition, the government provides them a certificate under the DICCRA in case of diplomats of commonwealth countries. These id card holders can only be considered to have diplomatic immunities, not anyone the embassy certifies to have diplomatic status.
7 Use of Unsecured and Unencrypted Web-Based Software and Possible Violation of the Vienna Convention on Diplomatic Relations, 1961
The petitioners in Eastern Diplomatic Services Limited and others v. National Board of Revenue and others20 challenged the legality of the order which compelled the petitioners to use unsecured and unencrypted web-based software developed by the respondents and argued, inter alia, the violation of the Vienna Convention on Diplomatic Relations, 1961. The facts of the case, ‘in brief, are that petitioners are the respective companies incorporated under the Companies Act, 1994 and are engaged in the business of importing duty free goods upon obtaining required permission from the respective government offices. They supply those duty-free goods to the diplomats and privileged person living in Bangladesh, who enjoy benefits for purchase of duty-free goods under different international convention, protocol and treaties. The petitioners companies conduct their respective businesses in compliance with the terms and conditions as set out in the relevant license and the General Order.’21
The Court issued the rule
calling upon the respondents to show cause as to why the action of the respondents in developing an unsecured and unencrypted web based software, by issuing the impugned order bearing Ref. No. 021/2021/Customs/228 dated 14-9-2021 (published in Bangladesh Gazette on 20-9-2021) and thereby compelling use of the said unencrypted software by the respective petitioners from 1-10-2021 without any legal basis under the Customs Act, 1969, without any consultation, vetting and security check by the proforma respondent Nos. 7–9, 9–11 respectively in violation of the Rules of Business 1996, in complete disregard of the petitioners, representations dated 18-7-2021, 5-9-2021 and 6-9-2021 respectively without ensuring impenetrability/invulnerability of the unencrypted software thus, has caused significant threat of violation of Vienna Convention on Diplomatic Relations, 1961, Information and Communication Technology Act, 2006 and Digital Security Act, 2018 and without having any jurisdiction under the Customs Act, 1969, should not be declared to have been done without lawful authority and hence, of no legal effect.22
The petitioners argued, inter alia, that the ‘development and subsequent use of the software in question with the disclosure of the information of the diplomats and privileged persons is a violation of Article 30(2) of the Vienna Convention on Diplomatic Relations, 1961.’23 They also argued that this violated the Customs Act, 1969, and the Rules of Business, 1996, the Communication Technology Act, 2006, and Digital Security Act, 2018.
The court explored ‘the National Board of Revenue could introduce the software – Diplomatic Bond Automation System – to regulate the procedural framework of diplomatic bonded warehouses for maintaining transparency and accountability of the services rendered by the government and to provide speedy service to the concerned persons under the Customs Act.’ The court held that sections 13, 119A, and 219B of the Customs Act do not empower the National Board of Revenue ‘to introduce software for regulating frameworks of the diplomatic bonded warehouses, thereby compelling the respective licensees to use the same.’ The court referred to newly amended provisions of the Customs Act, the Income Tax Ordinance, 1984 (via the Finance Act), and the VAT and Supplementary Duty Act, 2012 and finally held the impugned order illegal.
8 Some More Incidents
Owing to diplomatic protocol, Son Young-nam, the first secretary of North Korea’s embassy in Dhaka, was released without being charged despite being caught attempting to smuggle high-value contraband into Bangladesh as he made his way into the country via its capital’s airport.24 However, his diplomatic status did not shield him from being expelled from the North Korean embassy, tag lined with the Bangladeshi government asking for him to be prosecuted in North Korea and furthermore pledging serious action if any of their embassy officials were to be found to have been involved in such or other crimes in the future. The value of the gold bars and ornaments which made up most of the contraband was estimated to amount to a colossal 1.6 million USD, amassing 27 kilograms of gold which is about 27 kilograms more than the mandated amount by Bangladesh Customs. Domestic laws coupled with strict international sanctions on North Korea in the facet of financial movement made it paramount for there to be strict, stern and stringent actions in this regard.
Another North Korean Diplomat, first secretary of the North Korean Embassy in Dhaka, named Han Son Ik was asked to leave Bangladesh in 2015 when it was found that he tried to smuggle one million cigarettes as well as electronics in a shipping container.25 He declared that his cargo contained food and soft drinks. But as the custom officials checked the cargo, it was found that he was carrying 1.6 million stalks of expensive cigarettes and electronics.
9 Conclusion
Diplomats are held in high regard around the world for the role they play in maintaining bilateral and multilateral relationship with other states. However, they have also been found in unwanted situations breaking national laws of respective host states. In the absence of a comprehensive diplomatic immunity implementation legislation, that too in a dualist country, the legal regime in Bangladesh is incomplete. Due to the absence of a legal regime, diplomatic immunities and privileges are being operated based on intra ministry customs which are not codified even under any manual unlike its neighboring countries like Nepal, Sri Lanka or even India. It is also problematic to note that a diplomatic immunity legislation is available only for commonwealth countries but so many important development partners of Bangladesh comprise of non-commonwealth countries. How Bangladesh is granting those diplomatic agents immunity remains a question of law. It is recommended that Bangladesh government considers enactment of a comprehensive legislation for implementing the VCDR.
Professor at the Department of Law, University of Dhaka, Bangladesh.
Lecturer at the Department of Law, University of Dhaka, Bangladesh.
Muhammad Ekramul Haque, Formation of The Constitution and the Legal System in Bangladesh: From 1971 to 1972: A Critical Legal Analysis, 27 Dhaka University Law Journal, 41, 41, 43 (2016).
Hussain Muhammad Ershad v. Bangladesh, (2001) 21 BLD (AD) 69 (Bangl.); see Ekramul Haque, Application of International Law in the Supreme Court of Bangladesh, in 3 Encyclopedia of Public International Law in Asia: Bangladesh (Seokwoo Lee ed., 2021), for a discussion on a series of cases on the issue.
Muhammad Ekramul Haque, The Proclamation of Independence, 1971: Unilateral Declaration of Independence of Bangladesh, 3 Encyclopedia of Public International Law in Asia: Bangladesh (Seokwoo Lee ed., 2021).
Muhammad Ekramul Haque, ‘Status of International law in the Legal System of Bangladesh: Dualism vs. Monsim,’ 3 Encyclopedia of Public International Law in Asia: Bangladesh (Seokwoo Lee ed., 2021).
Bangladesher Sambidhāna [Constitution] Nov. 4, 1972, Preamble (Bangl.).
Muhammad Ekramul Haque, The Preamble of the Constitution of the People’s Republic of Bangladesh: An Analysis from Legal Perspective, 15(2) Dhaka University Law Journal 107, 110 (2004).
Supra note 5, art. 46.
Supra note 5, art. 25.
Maurice H. Mendelson, Collected Courses of the Hague Academy of International Law, 272 The Formation of Customary International Law (1998), http://dx.doi.org/10.1163/1875-8096_pplrdc_A9789041112378_02.
Jan Wouters et al., The Vienna Conventions on Diplomatic and Consular Relations, in The Oxford Handbook of Modern. Diplomacy. 1 (Andrew F. Cooper et al. eds., 2013).
Nakib M. Nasrullah, The Constitutional Law of Bangladesh: Progression and Transformation at Its 50th Anniversary (M. Rafiqul Islam & Muhammad Ekramul Haque eds., 2023).
Kawser Ahmed, A History of the Constitution of Bangladesh: The Founding, Development, and Way Ahead (Ridwanul Hoque & Rokeya Chowdhury eds., 2023).
The Evidence Act, §§ 13, 32, 48 (1872) (Bangl.).
Pakistani Diplomat Withdrawn, The Daily Star, (Feb. 3, 2015)https://www.thedailystar.net/pakistani-diplomat-withdrawn-63000.
Pak Diplomat Declared Persona Non Grata, Leaves Bangladesh, Zeenews (Dec. 17, 2000) https://zeenews.india.com/news/south-asia/pak-diplomat-declared-persona-non-grata-leaves-bangladesh_5917.html.
Zeffa Alifah Pangestu, Analysis of Diplomatic Immunities and Privileges: Case Study of Abuse of Diplomatic Rights by Representatives of North Korean Diplomats, 3 Journal of ASEAN Dynamics & Beyond 42, 44 (2022).
Kazi M. Delwar Hossain Baig v. The Chairman, (1996) 1 MLR (HCD) (Bangl.).
Id. ¶ 2.
Id. ¶ 5.
Eastern Diplomatic Services Limited and others v. National Board of Revenue and others, (2022) 74 DLR 336 (HCD) (Bangl.).
Id. ¶ 5.
Id. ¶ 1.
Id. ¶ 16.
Bangladesh Expels North Korea Envoy Over Gold Smuggling, BBC News (Mar. 10, 2015), https://www.bbc.com/news/world-asia-31810712.
Bangladesh Expels North Korean Diplomat for Smuggling, Al-Jazeera (Aug. 6, 2016), https://www.aljazeera.com/news/2016/8/8/bangladesh-expels-north-korean-diplomat-for-smuggling.