Spu­ri­ous! Ar­ti­fice! A Sham!

UK High Court Judge on Walid Juf­fali diplo­matic ap­point­ment

The Star (St. Lucia) - - FRONT PAGE - By Rick Wayne

Ex­ter­nal Affairs Min­is­ter alva bap­tiste: not a word, not a word, not a word on im­mu­nity con­tro­versy. Has the min­is­ter run out of “lu­bri­cants for diplo­matic in­ter­course?”

On Tues­day the le­gal editor of the Lon­don

Times, Frances Gibb, tongue seem­ingly firmly planted in cheek, wrote the fol­low­ing un­der the ban­ner No Im­mu­nity for Sheikh in Four Bil­lion Pounds Di­vorce for Model: “Sheikh Walid Ju­falli, a bil­lion­aire from Saudi Ara­bia, said he was proud to be a diplo­mat for the Caribbean is­land of St. Lu­cia. True, he may never have at­tended meet­ings of the In­ter­na­tional Mar­itime Or­ga­ni­za­tion as the is­land’s rep­re­sen­ta­tive but, m’lud, the post was most cer­tainly not ac­quired to se­cure diplo­matic im­mu­nity. Per­haps it was pure co­in­ci­dence, then, that such im­mu­nity could bol­ster at­tempts to keep a share of his four-bil­lion-pounds for­tune out of the clutches of the for­mer Pirelli cal­en­dar girl he had di­vorced.”

The Tele­graph’s chief for­eign correspondent David Blair re­ported the case this way: “Christina Estrada, the for­mer Pirelli cal­en­dar model, won a vic­tory over her Saudi bil­lion­aire ex-hus­band in the High Court on Mon­day, al­low­ing her to lay claim to a share of his prop­erty port­fo­lio in Bri­tain. A judge ruled that Walid Juf­fali, who di­vorced Ms Estrada in 2014, had sought to de­feat her ac­tion by as­sert­ing a ‘spu­ri­ous’ le­gal im­mu­nity based on his ap­point­ment as a Caribbean diplo­mat in Lon­don. The judge noted there was ‘no ev­i­dence’ that Mr. Juf­fali had

‘any knowl­edge or ex­pe­ri­ence of mar­itime mat­ters, seaborne trade, ship­ping or in­deed any of the spe­cial­ized ar­eas with which the IMO is con­cerned.’

“Mr. Jus­tice Hay­den ruled that Mr. Juf­fali’s ‘sole in­ten­tion’ for se­cur­ing this po­si­tion was to de­feat Ms Estrada’s ‘claims con­se­quent on the break­down of his mar­riage.’ The judge con­cluded that Mr. Juf­fali had not ‘in any real sense, taken up his ap­point­ment’ and the Saudi’s diplo­matic sta­tus amounted to an ‘en­tirely ar­ti­fi­cial con­struct.’ He said that avoid­ing the ‘ju­ris­dic­tion of this Court’ was the ‘driv­ing force’ be­hind Mr. Juf­fali’s be­com­ing Saint Lu­cia’s rep­re­sen­ta­tive at the IMO.”

The Guardian’s le­gal affairs correspondent Owen Bow­cott also cov­ered the case. On Tues­day he wrote: “A bil­lion­aire’s plea of diplo­matic im­mu­nity, ex­ploited to avoid his for­mer wife’s claim for main­te­nance, has been branded as “spu­ri­ous” and struck down by the high court . . . The busi­ness­man said he ac­quired diplo­matic sta­tus when he was ap­pointed a per­ma­nent rep­re­sen­ta­tive to the In­ter­na­tional Mar­itime Or­ga­ni­za­tion by the Caribbean is­land of Saint Lu­cia in April 2014. Estrada, 53, said her ex-hus­band’s diplo­matic po­si­tion was merely ‘a flag of con­ve­nience’ and the ty­coon had never at­tended a meet­ing of the IMO since his ap­point­ment. The for­mer su­per­model said he was se­verely ill with can­cer in a Swiss hos­pi­tal and un­able to carry out diplo­matic ac­tiv­ity and his diplo­matic sta­tus was a ‘con­trivance’ to de­feat her case.”

The case also fea­tured promi­nently in the Fi­nan­cial Times, the Mid­lands Star

Ex­press and sev­eral other main­stream and on­line me­dia out­lets, all ap­pear­ing to ridicule “the tiny na­tion Saint Lu­cia’s ap­point­ment of Walid Juf­fali . . .” At a time when the EU’s 28 mem­ber states, via their am­bas­sadors, and the U.S. State Depart­ment have strongly ex­pressed their con­cern over “gross vi­o­la­tions of hu­man rights” by lo­cal po­lice of­fi­cers and “a to­tal break­down of the jus­tice sys­tem” in our coun­try, way to go Saint Lu­cia, way to go!

On the rare oc­ca­sions he has ad­dressed his unan­nounced ap­point­ment of the re­port­edly mori­bund multi-bil­lion­aire as our per­ma­nent rep­re­sen­ta­tive at the IMO, the na­tion’s prime min­is­ter has some­what con­ve­niently in­sisted that “the ap­pli­ca­tion by Ms Christina Estrada for per­mis­sion to ap­ply for fi­nan­cial re­lief from Dr. Walid Juf­fali af­ter their di­vorce is a pri­vate mat­ter . . . and has no bear­ing on his du­ties as per­ma­nent rep­re­sen­ta­tive to the IMO.”

Iron­i­cally, Jus­tice Hay­den’s rul­ing is based wholly on the fact that the Estrada-Juf­fali case is in­deed “a pri­vate fam­ily mat­ter.” One of the core prin­ci­ples of the Vi­enna Con­ven­tion that the judge cited dur­ing the hear­ing was this: “Be­liev­ing that an in­ter­na­tional con­ven­tion on diplo­matic in­ter­course, priv­i­leges and im­mu­ni­ties would con­trib­ute to the de­vel­op­ment of friendly re­la­tions among na­tions, ir­re­spec­tive of their dif­fer­ing con­sti­tu­tional and so­cial sys­tems; re­al­iz­ing that the pur­pose of such priv­i­leges and im­mu­ni­ties is not to ben­e­fit in­di­vid­u­als but to en­sure the ef­fi­cient per­for­mance of the func­tions of diplo­matic mis­sions of rep­re­sent­ing States.”

Jus­tice Hay­den: “It is un­doubt­edly true that a right of ac­cess to court is rec­og­nized as a fun­da­men­tal prin­ci­ple of law, out­side the twin prin­ci­ple in in­ter­na­tional law for­bid­ding ‘a de­nial of jus­tice.’ ’’

The judge cited yet again the Vi­enna Con­ven­tion: “The prin­ci­ple whereby a civil claim must be ca­pa­ble of be­ing sub­mit­ted to a judge ranks as one of the uni­ver­sally rec­og­nized fun­da­men­tal prin­ci­ples of law; the same is true of the prin­ci­ple of in­ter­na­tional law which for­bids the de­nial of jus­tice.”

As for the case at hand: “I should record here that while the govern­ment of Saint Lu­cia has been in­vited by Ms Estrada’s solic­i­tors and the For­eign and Com­mon­wealth Of­fice to con­sider waiv­ing im­mu­nity in this case, they have de­clined to do so. Ar­ti­cle 31 lays down no pro­ce­dural pro­vi­sion as to when or how diplo­matic im­mu­nity should be pleaded or es­tab­lished in in­ter­na­tional courts. Th­ese mat­ters are left to the law of each state party. The cu­mu­la­tive im­pact of this case law is, in my judg­ment, to iden­tify a bal­ance that has evolved, de­signed to pro­tect the func­tion­al­ity or ef­fec­tive­ness of a mis­sion and to rec­og­nize the need to min­i­mize abuse of diplo­matic im­mu­nity.”

We come now to the meat of the mat­ter, at any rate as it re­lates to Saint Lu­cia. Ob­served Jus­tice Hay­den: “On the 3 De­cem­ber 2015 the Saint Lu­cia govern­ment, in a press re­lease, an­nounced that Walid Juf­fali had pledged sig­nif­i­cant re­sources to­ward the ex­pan­sion of the lo­cal health sec­tor which will im­pact pos­i­tively on the health needs of Saint Lu­cians, par­tic­u­larly in the area of di­a­betic re­search. While this may es­tab­lish a ba­sis for Juf­fali as a trade or in­vest­ment en­voy it does not es­tab­lish a ba­sis for an

am­bas­sado­rial ap­point­ment.

“As a spe­cial­ized agency of the United Na­tions, the IMO is the global stan­dard-set­ting au­thor­ity for the safety, se­cu­rity and en­vi­ron­men­tal per­for­mance of in­ter­na­tional ship­ping. Its main role is to cre­ate a reg­u­la­tory frame­work for the ship­ping in­dus­try that is fair and ef­fec­tive, uni­ver­sally adopted and uni­ver­sally im­ple­mented. There is no ev­i­dence that Juf­fali has any knowl­edge or ex­pe­ri­ence of mar­itime mat­ters, seaborne trade, ship­ping or in­deed of any of the spe­cial­ized ar­eas with which the IMO is con­cerned.

“It is clear that since his ap­point­ment Juf­fali has not un­der­taken any du­ties of any kind in the pur­suit of func­tions of of­fice. Ms Estrada has pro­vided per­sua­sive ev­i­dence that Mr. Juf­fali’s health is such that he is not in a po­si­tion at present to ful­fill any of his am­bas­sado­rial du­ties; it may well be that this point is not con­tentious. The ap­point­ment co­in­cided with the emer­gent re­la­tion­ship be­tween Juf­fali and his third wife.

“I am sat­is­fied that what has tran­spired here is that Mr. Juf­fali has sought and ob­tained a diplo­matic ap­point­ment with the sole in­ten­tion of de­feat­ing Ms Estrada’s claims con­se­quent on the break­down of their mar­riage. Mr. Juf­fali has not in any real sense taken up his ap­point­ment, nor has he dis­charged ay re­spon­si­bil­i­ties in con­nec­tion with it. It is an en­tirely ar­ti­fi­cial con­struct. I draw back from de­scrib­ing it as a sham, mind­ful of the foren­sic pre­ci­sion re­quired to sup­port such a con­clu­sion.

“Re­spect for the prin­ci­ples of in­ter­na­tional comity, recog­ni­tion that diplo­matic im­mu­nity fos­ters good­will amongst na­tions and fa­cil­i­tates ef­fi­cient func­tion­ing of diplo­matic mis­sions is plainly im­por­tant. But all this is pred­i­cated on the priv­i­leges af­forded to the post it­self—and not to the in­di­vid­ual . . . I am not pre­pared to ac­cede to Mr. Juf­fali’s re­quest to strike out Ms Estrada’s claim on his spu­ri­ous as­ser­tion of diplo­matic im­mu­nity, as I find it to be.”

The judge also threw out Juf­fali’s claim that he was be­yond the arm of the court in this mat­ter be­cause he was not res­i­dent in the UK. For sev­eral undis­puted rea­sons Jus­tice Kee­han dis­agreed.

On Wed­nes­day the prime min­is­ter reg­is­tered his dis­ap­point­ment with the judge’s ver­dict. In a press re­lease, he re­peated his ear­lier po­si­tion that what con­fronted his govern­ment was “a pri­vate fam­ily mat­ter be­tween Dr. Juf­fali and his for­mer wife and had no bear­ing with his du­ties as Per­ma­nent Rep­re­sen­ta­tive to the In­ter­na­tional Mar­itime Or­ga­ni­za­tion.” Which seemed to be the point un­der­scored by Jus­tice Hay­den.

The prime min­is­ter re­mained of the view “that to have waived Dr. Juf­fali’s diplo­matic im­mu­nity for the pur­poses of re­solv­ing dis­putes aris­ing out of di­vorce pro­ceed­ings would have cre­ated a prece­dent that could com­pro­mise cur­rent and fu­ture Saint Lu­cian di­plo­mats in the United King­dom and else­where.” He promised to “com­ment in more de­tail” fol­low­ing the out­come of an ap­pli­ca­tion to ap­peal by Juf­fali’s lawyers next week. On Thurs­day the Lon­don

Times opined: “The courts should not be the prin­ci­pal check and bal­ance on the scope of diplo­matic im­mu­nity; that is up to the For­eign & Com­mon­wealth Of­fice. The Vi­enna Con­ven­tion on Diplo­matic Im­mu­nity Re­la­tions of 1961 en­shrined the prin­ci­ple of en­sur­ing that di­plo­mats are given safe pas­sage and not be sus­cep­ti­ble to le­gal pro­ceed­ings in their host coun­try. How­ever, no one would have fore­seen the abuse of the con­cept in re­cent times, with some di­plo­mats be­hav­ing as though it ren­dered them above the law.”

This week a UK High Court judge de­cided that Dr. Walid Juf­fali’s for­mer wife Christina Estrada had ev­ery right to seek a share of her bil­lion­aire’s hus­band’s for­tune. Juf­fali had re­lied for pro­tec­tion

on his ap­point­ment as Saint Lu­cia’s UK am­bas­sador to the IMO.

Prime Min­is­ter Kenny An­thony has ex­pressed dis­ap­point­ment with Jus­tice Hay­den’s de­ci­sion in the

Juf­fali mat­ter. The Saudi’s lawyers will next week ap­ply for leave to ap­peal.

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