Evading the issue - I.A Rehman - Thursday 24th March 2011

Source : http://www.dawn.com/2011/03/24/evading-the-issue.html

BY their frantic efforts to give the Raymond Davis affair a particular ending, and this largely through bluff and bluster, Pakistan and the US have created a situation that could harm their relations and oblige both of them to re-examine their security strategies.
From the moment Davis was caught after gunning down two young men in a display of panic, anger and arrogance that professionals in his line of business are strictly advised to eschew, the US authorities should have known their best option was discreet intervention by some invisible hands. During the time they took to realise this, quite a few things aggravated the situation.
The plea of diplomatic immunity was advanced before a people who were already in the grip of a wave of anti-American sentiment and who also had genuine difficulty in believing that diplomatic immunity included a licence to kill. The louder the clamour for Davis’s immediate release grew the more difficult it became for Islamabad to comply. More so in view of the opposition groups’ resolve to use any issue to attack the government for incompetence and subservience to foreign masters and lack of national pride. And a greater part of the media deemed it proper to turn an open-and-shut case into a whodunit thriller. The trend continues even after the whole plot has been played out.
When the principal parties found a solution which they believed could be sold as legitimate, the punters felt cheated out of their reward. Most of the opposition groups know that had they been in power they too could not have said ‘no’ to the managers of their life-support system. The state and its ordinary citizens may be able to discard the crutches the country has got used to but the ruling elite is incapable of giving up its profligacy.
The government under pressure could not take a credible stand on diplomatic immunity. Whether a person has diplomatic status is a matter of fact, not of opinion, and this should have been resolved by the two parties across the table. This did not happen and the government chose to evade the issue by saying that the court seized with the case alone could decide the matter. Now the Diyat deal is being advanced as proof that the US plea for immunity was wrong while it was only one of the tactics available to the US to gain its objective. The failure of that tactic and the compulsion to resort to another manoeuvre does not matter.
Still, the US authorities are unlikely to forget and forgive what they may view as an unpardonable act of defiance by a client that they generously describe as a partner. Nothing may happen immediately but such matters rankle for long and can surface when least expected. Also, it is now apparent that the Davis affair touched upon a serious game that all states try to play like thieves herded together in a tent for safety, unable to resist the temptation to pick each other’s pockets. The rules of this game will have to be re-negotiated.
What should now be of concern to the people of Pakistan is the fact that barren controversies on incidental matters are diverting attention from issues of substantial importance.
For instance, much effort is being wasted on trying to identify the characters involved in the final act of the drama. Everybody knows about the role played by the federal and Punjab governments and the midwives that were in attendance behind a transparent curtain. The issue is not what they did, the issue is why they could not do otherwise. A discussion on this question should be more rewarding than grading the brokers for their cupidity.
Another issue in debate is the possible deviations from the Diyat law. The points raised about the time chosen for the grant of pardon by the victims’ heirs, the suspicious comings and goings of political personalities, the haste shown by the judge in finishing the matter and his lack of interest in reflecting on the statements of receivers of blood money et al. are valid. But they are valid not merely because Raymond Davis’s handlers were able to benefit from them, they are valid because they focus on the flaws in the way the Diyat law has been applied throughout the two decades of its operation.
First, this law was wrongly applied in the Davis case when he was acquitted before being found guilty of murder liable to Qisas. The idea of forgiving somebody of a crime before his guilt is established is manifestly preposterous, to say the least. But this is the general practice despite its being contrary to the law. Those charged with deliberate murder liable to Qisas are routinely acquitted and released before they are convicted, even before their trial begins. This is something that has been awaiting the attention of the judiciary, the law commission and the lawmakers for a long time.
Secondly, it is necessary to make sure that while agreeing to the compounding of the offence of murder the victim’s heirs/wali do so of their free will, without coercion or duress or unlawful temptation. There have been some instances when judicial authorities have made acceptance of blood money deals subject to inquiries into their legitimacy but, by and large, matters are disposed of with as much indecent haste as witnessed in the Davis case.
It is possible that everybody was afraid of allowing agitators to exploit any time-lag between the filing of compromise papers and Davis’s release. Otherwise, in the present climate of the judiciary’s independence it should not have been impossible for the judge concerned to assert his right to proceed by the book.
However, the problem is much bigger than the case of Davis. Everybody knows that murderers are able to profit from the abuse of the Diyat law because they can either buy out the victim’s heirs or force them to compromise with threats to kill them too. Nobody should ever forget the woman who prayed the court to free the killer of her husband because she did not want to lose her little children.
Finally, the grave injustice implicit in the usual interpretation of Qisas and Diyat concepts. The way Pakistan’s law has been drafted and implemented murder has ceased to be a crime against society. The heirs of a victim may have the right to forgive the hurt caused to them — this right was exercised even before the Diyat law came in 1990 by those who did not approach the thana and kutcheri in murder cases — but they have no right to waive the punishment for a crime against society. There have been court rulings that even when a case is compounded the accused can be punished under tazir but generally the benefit goes to the accused, especially the resourceful among them.
The problems created by the Pakistani version of the Qisas and Diyat law and the wider implications of an unreasonably enlarged death penalty regime are issues that we need to address instead of wailing over the loss of face that we have been suffering every now and then.

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