On August 19, Judge Boasberg of the DC District Court ruled that former Indian Prime Minister Manmohan Singh enjoys immunity from suit for alleged human rights abuses of Sikhs in India while he was Prime Minister from 2004 to 2014, based on a Suggestion of Immunity submitted by the Executive branch. But the court held that Singh’s immunity as a former head of state extended only to his acts while he served as Prime Minister and not to acts committed while he previously served as Finance Minister from 1991-1996; the court thus allowed the suit to proceed with respect to actions Singh may have taken during the prior period. Surprisingly, the court did not refer to the longstanding position of the Executive branch (perhaps because the Executive failed to mention it in its briefs), and decisions of other courts, that former foreign government officials generally also enjoy immunity for their official acts while serving in any capacity, not just as heads of state.
In 2013, a group of Sikhs filed suit against Singh under the Alien Tort Statute and Torture Victim Protection Act while Singh was still Prime Minister. In May 2014, the Justice Department filed a Suggestion of Immunity on behalf of Singh as a sitting head of state, based on a determination by Principal Deputy Legal Adviser Mary McLeod. Later in May, however, Singh was voted out of office in India. The Justice Department then filed a further brief arguing that, even though Singh was no longer a sitting head of state, nonetheless he still enjoyed immunity from suit because the Executive branch “has not withdrawn [its previous] assertion of immunity” and the previous assertion “remains binding in this litigation.”
Based on the Executive branch’s Suggestion of Immunity, Judge Boasberg accepted as “dispositive” that Singh was absolutely immune from suit during the period he was Prime Minister. He held further that “As a now-former head of state, [Singh] retains ‘residual immunity’ for official acts taken while he served in that capacity.” The court then went on quote from the Suggestion of Immunity the Executive Branch had submitted in 2011 in on behalf of President Paul Kagame of Rwanda in another ATS/TVPA case, where the Justice Department had said that “after a head of state leaves office[,] that individual generally retains residual immunity only for acts taken in [an official capacity as head of state] and not for alleged acts predating the individual’s tenure in office.’” Judge Boasberg concluded: “While Singh’s alleged acts as Finance Minister are not “private” per se, they did not occur in the course of his official duties as head of state; accordingly they are not encompassed within the purview of head-of-state immunity.” And he added that, while Singh might still be “protected by other immunities not yet asserted by the Government”, there are “…no grounds for a suggestion of immunity as to acts Singh took as Finance Minister….”
The court seems to have read too much into the Executive branch’s SoI in the Kagame case. In that case, the Justice Department was saying that after a head of state leaves office, he enjoys residual immunity only for his official acts, and not for prior acts in a private capacity; the SoI did not address the situation where a former head of state also held a prior official position. And while it is true that Singh’s acts as Finance Minister might not be encompassed under the immunity he enjoyed as a head of state, they would be encompassed in the immunities he still enjoys as a former Finance Minister. In cases involving suits against former foreign government officials who were not heads of state, the Executive branch has said that such officials have immunity from suit based upon acts taken in an official capacity, and courts have deferred to these Suggestions. See, eg, Rosenberg v. Lashkar-e-Taiba. The Executive branch, and the Supreme Court in Samantar, have said that principles of foreign official immunity are principles of general application, and that in the absence of an SoI submitted by the Executive branch, a court may apply the principles by itself.
In the Singh case, it is somewhat puzzling why, after Singh left office, the Executive branch continued to insist that its prior Suggestion of Immunity asserting head-of-state immunity on his behalf remained binding on the court, rather than simply changing gears and asserting official acts immunity on Singh’s behalf. Although the Executive branch has argued that its Suggestions of Immunity actually oust courts of jurisdiction and that courts are not free to second-guess the Executive, it would seem unnecessary to have made that constitutional argument here and tempted the court to disagree, when the Executive had a perfectly strong argument for official acts immunity (which, at minimum, it could have included as an alternative argument in a footnote). Perhaps in this case the State Department had not received a request for immunity on Singh’s behalf from the Indian government, or was concerned that the new Modi government might not request immunity for Singh.
The bottom line is that this decision seems very likely to be appealed to the DC Circuit. If so, I would assume that the Executive branch will file a new Suggestion of Immunity on Singh’s behalf, asserting that he enjoys immunity for his official acts both as Prime Minister and as Finance Minister.