Law and immunity - Khwaja Ahmad Hosain - Saturday, February 05, 2011

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For a moment, let us forget about Raymond Davis. And Aafia Siddiqui. And Drone Attacks. And US hegemony. Let us focus instead on the Diplomatic and Consular Privileges Act 1972 (the “Act”). This is a Pakistani law passed by a Pakistani legislature. Whether we like it or not, we are bound by its terms.

The Act incorporates into Pakistani law certain provisions of the Vienna Convention on Diplomatic Relations of 1961 and of the Vienna Convention on Consular Relations of 1963. Two of the provisions of the Vienna Convention on Diplomatic Relations that have been incorporated into Pakistani law are Article 29 and Article 31.

Article 29 provides that a diplomatic agent shall not be liable to any form of arrest or detention. Article 31 provides that a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. There is no qualification or conditionality stipulated for this immunity. It is wrong to state that immunity from criminal prosecution will not extend to a situation where a diplomatic agent is performing acts outside his official functions. This conditionality only applies to civil actions. In the case of civil litigation, the immunity enjoyed by diplomatic agents is qualified. For example, immunity from civil legal proceedings will not apply to an action relating to professional activity undertaken by a diplomatic agent in the receiving state outside his official functions.

Who qualifies as a diplomatic agent? This is defined in Article 1 of the Vienna Convention which has also been incorporated into Pakistani law. The head of the mission or member of the diplomatic staff of the mission qualify as diplomatic agents. A member of the diplomatic staff is a member of staff of the mission having diplomatic rank. The immunity from criminal prosecution also extends to members of the administrative and technical staff of the mission employed in the administrative and technical service of the mission (Article 37(2) of the Vienna Convention).

The immunity for consular officers is more limited than the immunity for diplomatic agents. Article 4 of the Vienna Convention on Consular Relations, which has been incorporated into Pakistani law, states that consular officers shall not be liable for arrest or detention, except in the case of a grave crime. Although, the phrase “grave crime” is not defined in the Act, it seems clear that it includes murder.

So, if you are a diplomatic agent, you enjoy absolute immunity from criminal prosecution in the receiving state. If you are a consular officer, you enjoy immunity as long as the offence is not a grave crime. This is the position under Pakistani law. Who decides if an individual qualifies for immunity? The answer is provided in Section 4 of the Act. This section provides that if a question arises as to whether a person is entitled to immunity under the Act, a certificate issued by the federal government stating any fact relating to that question shall be conclusive evidence of that fact.

Now, let us turn to the case of Raymond Davis. The US Embassy has issued a formal statement that claims Davis is a diplomat and demands his release. The ball is now squarely in the court of the federal government. It must determine the facts. Who exactly is this individual (since there appears to be some dispute about his identity) and what was his job? Is he a diplomatic agent, and if so, what was his diplomatic rank? If he is a member of the technical and administrative staff, was he formally ‘employed’ by the mission and is there any evidence of such employment? What was he employed to do? You would not normally expect an individual engaged in administrative or technical duties to be armed. These are questions that the federal government must formally put to the US Embassy. After obtaining all material information and evidence, the federal government must make a factual determination regarding Mr Davis’ status. This is not a straightforward case where an officer who is clearly a diplomat and has diplomatic rank is involved in an alleged crime. Until a determination is made with regard to his status, it is appropriate for him to be held in custody by Pakistani authorities.

In light of the provisions of Section 4 of the Act, the determination of the federal government will be conclusive. However, if the federal government’s determination is made in bad faith or is manifestly unreasonable, it will still be susceptible to challenge in the courts of Pakistan. It is therefore important for the federal government to carefully consider this question and reach a cogently reasoned decision based on relevant records and available evidence. Both the ministry of foreign affairs and the law ministry should be involved in this exercise.

The position currently being taken by the federal government is that this matter is sub judice and we must let the law take its course. However, the diplomatic status being claimed by Mr Davis is not, in fact, sub judice. It is only the possible criminal case against him which is pending before the local court and is therefore sub judice. Diplomatic status is not a matter determined by the local criminal court. It is a preliminary matter which the federal government should determine. Failing to take a position in this regard is an abdication of responsibility.

If the federal government continues to sit on the fence, the local criminal prosecution will continue without a determination concerning Mr Davis’ status. This would be unfortunate and against all recognised conventions. During the course of these proceedings, Mr Davis would presumably raise no plea save that he is entitled to diplomatic immunity. The local criminal court will then need to determine whether this plea is sound. Who will it ask? The provincial government and prosecutor will not be in a position to provide an answer. The local criminal court will need to summon the federal government and ask it to respond to Mr Davis’ claim.

The Author is a Barrister practicing

in Lahore.

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