VIEW: Politics, not law, is driving the Davis case —Yasser Latif Hamdani - Monday, February 21, 2011

Source : http://www.dailytimes.com.pk/default.asp?page=2011\02\21\story_21-2-2011_pg3_4

The broader point, more relevant to our social and political trends, is that by pitting a legal issue as one of national sovereignty, some politicians are opening a Pandora’s box which might throw up a clown in a military uniform

Shah Mahmood Qureshi, once the defender-in-chief of the Kerry Lugar Bill, has suddenly found his ‘conscience’. It is one thing to have an opinion as to whether Raymond Davis qualifies for full diplomatic immunity or only partial immunity available to consular staff. It is quite another matter when one member of the ruling party utilises an emotional issue such as this to further his own ambitions. Consider for example the statement that he made to the press where he called the nation to rise up instead of bowing down. He even threatened to reveal ‘secrets’ at the right time. All these are very disturbing developments.

One is reminded of a young foreign minister from the 1960s, who had, till 1965, played a key role in preserving the status quo by using all the tricks in the book to get Field Marshal President Ayub Khan elected in farcical presidential elections and later was a key figure in provoking war with India. After the 1965 war, he developed a conscience overnight and sought mileage from the Tashkent treaty to launch his own party. So, is Shah Mahmood Qureshi planning on going the Bhutto way? More importantly, can Pakistan afford such political adventurism at this stage? Unlike 1965, Pakistan today is governed by a democratically elected coalition government, which is presiding over a fragile democracy. Not that he can become the next Bhutto but, nevertheless, Shah Mahmood Qureshi should also bear in mind that Bhutto’s own end, at the hands of a military dictator, was brought about by a ‘popular movement’ financed by big business and led by political opportunists. This should be a lesson not just for the ex-foreign minister but all political forces in the country. The born again ghairatmand (honourable) Shah is not alone in exploiting the tight position that the elected constitutional government of Pakistan finds itself in. Mian Muhammad Nawaz Sharif — tipped to be Pakistan’s prime minister in waiting — is also not above using the right wing hysteria clouding common sense and judgment to his own advantage. He too has declared vociferously that the government has mishandled the Raymond Davis issue and that the blood of Pakistanis should be avenged.

Needless to say, the issue of Raymond Davis requires a levelheaded and unemotional response. In so far as I can see, the issue turns on whether Mr Davis is an employee — to use the word loosely — of the embassy or an employee of the consulate. An employee of the embassy would have complete diplomatic immunity under the Vienna Convention because administrative and technical staff are covered in the definition of a diplomat. A consulate employee, however, does not have immunity against prosecution in grave offences. Similarly, temporary association with the consulate would not, in my view, clinch the issue because it is clear that any member of a diplomatic staff of an embassy may be assigned to a consulate in accordance with the Vienna Convention, which implies that such a member will not lose his or her diplomatic immunity. Quite obviously, the correct way forward was for the Foreign Office to issue a certificate to Davis in line with the Vienna Convention, which would be evidence enough for diplomatic immunity, but this is where Shah Mahmood Qureshi decided to play politics, presumably because such a certificate, while legally justified, would put the foreign minister in a tight spot politically. So he did what any politician would do and withheld such a certificate. On their part, the Americans can also play a role by waiving diplomatic immunity and salvaging their much-diminished reputation in Pakistan. Indeed, that would be the ultimate coup de grace against the prevalent anti-Americanism in Pakistani society but, unfortunately, Americans are also incapable of backing down from an extreme position. Still this matter is sub judice and one can only hope that the courts will decide whether he has diplomatic immunity or not, impartially, fairly and without influence.

Therefore, the decision on the Davis case one way or the other, which should logically be a non-issue in Pakistani politics, has become our number one issue. The growing monsters of religious extremism and economic inequities in our society have been put on the backburner. Unfortunately, all sides of this debate have blown it out of proportion. Already, commentators have begun to sound the alarm that the government is about to fall and that Davis is the last straw. Through invocations, national pride and ghairat [honour], the door to derailing Pakistan’s democracy has been flung open for the time being and the ever-present hidden hand is now pulling all the strings.

The broader point, more relevant to our social and political trends, however, is that by pitting a legal issue as one of national sovereignty, some politicians are opening a Pandora’s box which might throw up a clown in a military uniform. By the same token, the act of liberals jumping publicly to Davis’ defence is also dangerous which would only serve to discredit them further. Both sides should agree to abide by the court’s determination of this matter and cease and desist from attempting to create such emotive trends in society when the wave internationally is increasingly one of popular uprising under one pretext or another. Liberals should take note.

There is no dearth in Pakistan today of romantics and self-styled revolutionaries looking to recreate the Arab revolt in Pakistan but the unfortunate fact is that popular revolutions — if you can call them that — in Islamic societies are likely to be hijacked by the religious right. It is a moot point and an unfortunate fact of life that at this juncture, Islamic societies do not offer a fertile ground for left-leaning mass movements but are invariably linked to and guided by the rabble-rouser in the mosque. The way forward for any Muslim majority country, be it Bahrain or even the United Arab Emirates, is a reformist democracy that seeks to bring about social justice and equality through constitutional legal means. This is not to say that Pakistan has no need for popular mass movements. Pakistan needs a civil rights movement with clear objectives, i.e. religious freedom, economic democracy and equality of citizenship regardless of religion, ethnicity or gender. That, however, requires a degree of statesmanship amongst our politicians and media pundits that is in short supply.

The writer is a lawyer. He also blogs at http://pakteahouse.net and can be reached at yasser.hamdani@gmail.com