Asking the right questions - Babar Sattar - Saturday, February 05, 2011

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The writer is a lawyer based in Islamabad.

When one member of the US mission goes berserk, executing Pakistani citizens on the street, and a second tramples and kills another innocent citizen in a failed bid to rescue and recover the murderer, the outrage felt across the country is only natural. But we cannot allow such anger and the street consensus against the US foreign policy to prevent us from appreciating what really is at stake in the Raymond Davis saga. The primary issue of concern for Pakistanis at the moment is not whether Raymond Davis is a good man or a stooge, whether or not he acted in self-defence, or if his actions were proportionate to any threat he might have perceived. The issue at stake is due process, and the Raymond Davis case is a litmus test for rule of law and how it is upheld by Pakistan against the powerful and the mighty.

But in order to gauge our state’s fidelity to rule of law, we need to ask the right questions. First of all, the Raymond Davis case shares no similarities with the Aafia Siddiqui case. The questions raised by the manner in which Aafia Siddiqui was apprehended, tried and sentenced by the US are legitimate and disconcerting, but not relevant to Raymond Davis. Aafia Siddiqui was not a member of Pakistan’s diplomatic mission and thus comparing apples with peaches serves no purpose. Secondly, the history of treatment meted out to a diplomat of any country other than Pakistan, for any crime committed by him/her in the US, again has no bearing on the Raymond Davis matter. In international relations diplomatic ties between states are based on reciprocity.

Unless the US has denied the benefit of the Vienna Convention on Diplomatic Relations to Pakistani diplomats, ill treatment of diplomats from other countries should be of no consequence. And, thirdly, it is not the prosecution of Raymond Davis before Pakistani courts and the award of rigorous punishment thereafter that will determine whether rule of law has been upheld.

What will determine the sanctity and strength of our legal system is fair and neutral administration of Pakistani laws by our judicial system, including legal obligations under the Vienna Convention, without regard to the pressure being brought to bear upon the courts indirectly by the US on the one hand and segments of Pakistani media and political groups on the other.

In this regard there are at least four sets of legal questions that need to be raised. One, in what legal capacity was Raymond Davis serving the US mission in Pakistan? Two, what privileges and immunities are attracted by such capacity? Three, who determines the legal capacity of Raymond Davis and whether he is eligible for any privileges and immunities? And, four, what remedial measures can Pakistan take to ensure that something of this sort doesn’t happen in future?

The United States claims that Raymond Davis is a member of the “administrative and technical staff” of the US mission to Pakistan. Pursuant to Article 1 of the Vienna Convention, members of the mission include members of the administrative and technical staff. Article 10 of the Vienna Convention obliges the sending state to notify the ministry of foreign affairs of the receiving state of “the appointment of members of the mission, their arrival and final departure, or the termination of their functions with the mission.” Thus, to the extent that Pakistan’s Foreign Office was notified by the US embassy that Raymond Davis had been appointed as member of the US mission in Pakistan, and such appointment had not been objected to by the Foreign Office, his status as member of the US administrative and technical staff and member of the US mission would be secure.

The second question, then, is whether a member of a foreign mission, who is not a diplomat but a member of the administrative and technical staff, can be arrested and prosecuted for a criminal offence. The simple answer is no. Article 29 of the Vienna Convention clearly states that, “the person of the diplomatic agent shall be inviolable” and “he shall not be liable to any form of arrest or detention.” Article 31 affords a diplomat absolute immunity from the criminal jurisdiction of a receiving state and qualified immunity from its civil and administrative jurisdiction. And then, sub-clause (2) of Article 37 extends the absolute immunity available to diplomats from the criminal jurisdiction of the receiving state to members of the administrative and technical staff as well.

While immunity from civil and administrative jurisdiction afforded to such staff members does not extend to “acts performed outside the scope of their duties,” immunity from criminal jurisdiction remains unlimited. Thus, in order to be immune from criminal prosecution before Pakistani courts for the murder of the two Pakistanis citizens, Raymond Davis doesn’t have to be a diplomat. The only prerequisite for claiming such immunity is that the US embassy should have informed the Foreign Office that Davis would be serving the US mission in Pakistan in such capacity. If such notification had been issued, the only legal option for Pakistan is to formally ask the United States to waive immunity and allow Davis to be prosecuted. And in the event that the US refuses, Davis can be declared persona non grata and thrown out of the country.

Section 4 of Pakistan’s Diplomatic and Counsellor Privileges Act, 1972, states that, “if any question arises whether or not any person is entitled to any privilege or immunity under this Act, a certificate issued by, or under the authority of, the federal government stating any fact related to the question shall be conclusive evidence of that fact.” Under Pakistan’s constitutional scheme of separation of powers, it is the courts that interpret and enforce laws. Consequently once the federal government takes a position on whether or not Raymond Davis is immune from Pakistan’s criminal jurisdiction, it will be for the courts to confirm that the federal government’s position is not marred by any legal error.

Most of us want to see Raymond Davis prosecuted and punished for the murder of Pakistani citizens. But let us not forget that it is not the award of harsh punishment but fair administration and enforcement of laws that remains a gauge of how just a legal system is. We must not allow anger, resentment, bravado or street opinion to affect the quality of justice produced by our courts. An adverse ruling creatively interpreting the law to deny Davis the benefit of Pakistan’s Diplomatic and Counsellor Privileges Act might bring instant gratification for many but will put in jeopardy the neutrality and credibility of our justice system. And that will do us more harm than good.

Let us also remember that the Raymond Davis killings did not take place in a vacuum. Successive regimes in Pakistan have bent over backwards to appease the US. Our military and civilian leadership has allowed the US to control air bases in Pakistan, carry out drone attacks within our territory, import deadly weapons for the security of embassy staff, and conduct itself without regard to local laws. It is this continuing practice of treating members of the US mission as above the law that explains the Raymond Davis killings. The US has a history and tendency of disregarding municipal and international laws other than its own. So long as we willingly flout Pakistani laws to humour the Americans, why should the US pay our laws any heed?

Instead of being consumed by Davis’ prosecution within Pakistan, let us ensure that we afford the US mission only such treatment as is afforded to the Pakistani mission in the US. And let us start by summoning the US ambassador to the Foreign Office and reminding him that under the Vienna Convention the US is under binding legal obligation to respect the laws and regulations of Pakistan.


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