It is safe to assume that two schools of thought vis-à-vis resolution of Raymond Davis issue have emerged in Pakistan. For the first school, a certificate from our foreign office certifying Raymond Davis as a bona fide diplomat in Pakistan should suffice. The second school of thought however is of the opinion that the final arbitrator of Raymond’s true status is the court. However, a third nascent thought is being emerged as well. For the proponents of this thought, at the heart of the matter is the issue of interpretation of international law(s) regarding a diplomat’s immunity. Since the matter is so politicized, they say, only an international organization i.e., the International Court of Justice (ICJ) could independently interpret the law(s) in its advisory capacity. It is however easier said then done.
The way the Americans have conducted themselves from the outset clearly betrays one thing, they are in a rush. For this reason alone, they have exerted relentless pressure on our government to let Raymond go free under the pretext that he is a diplomat. Although the Americans too have recently started to say that they might be taking the matter to the ICJ, but given that it is a time consuming procedure, it is unlikely. This may be another pressure tactic on their behalf.
The notion that Pakistan as a sovereign state may approach the ICJ for an opinion is misplaced. The ICJ under Chapter IV of ICJ Statute and Article 96 of the UN Charter is competent to give an advisory opinion on any legal question at the request of any body duly authorized by the UN. Duly authorized bodies are the UN’s General Assembly, the Security Council, the International Atomic Energy Agency etc., but not any nation state. However, if anyone of the mentioned bodies takes up this matter with the ICJ then Pakistan certainly can become a party to the proceedings. But given the bilateral nature of the issue and the U.S., penchant for unilateral and at best bilateral approach for solving international disputes, it is unlikely that UN would take up this matter on behalf of Pakistan. An opinion of the ICJ moreover is just an opinion with no binding force. Although, the more recent opinions like Palestinian Wall Advisory Opinion read very much like judgments, nevertheless, a state cannot be punished per se if it does not follow the stipulations of the opinion.
An alternative course would be to approach the Court not for its advisory opinion but a binding decision. The Court under Article 36(1) of the ICJ Statute ‘all matters specifically provided for….. in treaties or conventions in force’, may adjudicate upon an issue brought before it involving signatory parties. Since both the U.S. and Pakistan are signatories to the optional protocol to the Vienna Convention on Diplomatic Relations (1961) the Court is empowered to take up Raymond Davis type issue. But the Court based in Peace Palace, Hague, works like any other court. The proceedings may not be speedy and economical. The outcome may not be of our liking.
It is pertinent to speculate what the other party i.e., the U.S., may make of the ICJ decision. The American judicial mindset could be gauged by the case of Medellin v Texas (2008), in which the United States Supreme Court in 6-3 decision overturned ICJ decision in Mexico v United States (Avena case—2004) as not binding federal law. This case, involved Vienna Convention on Consular Relations (1963). If a decision favours us then it would inadvertently affect rights and duties of the U.S. However, the changed circumstances would have no affect in the U.S., till new legislation is passed in the U.S. giving those changes a legal cover. By that time, precious time and money of Pakistani tax payers would have been wasted if not squandered, with our relationship vis-à-vis the U.S. standing on much shakier ground. All in all, no benefit to an average Pakistani.
If an international forum must be utilized, it should not be the ICJ but arbitration, where both the U.S. and Pakistan would have a greater control over the entire proceedings. Again, arbitration could both be costly and time consuming.
The best option is what the first school of thought proposes. It puts the proverbial ball in our foreign office’s court. It could be speedy and economical. But political will to take a decision, albeit admittedly difficult, is required. Does this government have what it takes? I hate to admit it, but it is not a million dollar question anymore.
Saturday, February 26, 2011
Monday, February 14, 2011
Revolution: Pakistan Style
Romance seems to be the flavour of the past two months. No not the Cupidy February 14th type romance, but romancing the ‘revolution’ that is. The uprisings (sorry I wouldn’t classify them as ‘revolutions’ since the old order is still very much in place in Tunisia and Egypt) in the Middle East seems to be contagious. Our urban, educated, middle class, and employed (ok may be sometimes under and over-employed, but employed nevertheless) youth has been especially susceptible to this virus. If twitter and facebook is anything to go by then they are dying (metaphorically) to revolutionize Pakistan under the ‘heroic leadership’ of Imran Khan. Borrowing from the ‘Godless’ Karl Marx, this bourgeoisie class of ours carries blackberry phones (I-phone if you prefer), dines at modern and trendy cafes’, and may be not them but their parents owns private properties, house being of primary importance. In short, a class often classified as the future of Pakistan (and here I was thinking that it was Bilawal Bhutto, Hamza Shahbaz and Moonis Elahi, how dumb of me!). There definition of revolution; opposite of whatever that rules today. But have they ever wondered what this ‘revolution’ might mean to them!
Let’s imagine that we go Bolshevik! Remember Dr. Zhivago the movie! It may be a fine work of fiction as most movies are but it has very clear and poignant message for our bourgeoisie class; sacrificing self interest for the welfare of the whole society. Imagine your servant or driver and his/her family barges into your home and make it there own and there is nothing you can do about it. The concept of private property ownership simply disappears out of thin air. The state is not willing to do anything since it was in your servant’s name the revolution took place in the first. Then what would we do? Sharing isn’t exactly our national trait or is it? What was it, how many of us share our wealth with our less fortunate brethren in the form of taxes? And what would be the reaction of my blackberry carrying friend, whose dad owns, oops, used to own a factory! The factory is now owned by the labour union which used to toil there before.
Or better yet we go down Ayatollah style! And which Islam would you prefer please; Deobandi or Barelvi? With the former you have the potbellied Maulana Fazl-ur-Rehman and with later the socialist turned Godly Munawar Hasan. Or would you prefer a rainbow alliance of various factions of Al-Qaeda inspired and supported Pakistani Taliban! Well kiss goodbye to the cafes and fancy phones already because both are inventions of the ungodly West. Remember in Iran they are almost all Shias’, so it was rather easy for them to accept a fellow traveler as their messiah, not the case here though. Here the bourgeoisie would have to accept one maulvi or the other, whether they likes it or not. But you know Iran could have very well turned out to be the Socialist Republic of Iran had the communists of Tudeh Party not been outsmarted by the Ayatollah and his comrades. And would you be happy Mr. Punjabi and Mr. Pathan that the ‘revolutionary’ Islamic regime is out to get your father, or uncle or friend’s uncle who was a high up in pre-revolutionary Pakistani military! Scores of Shah’s trusted lieutenants were ‘sorted out’ by the Ayatollah’s regime, who either couldn’t or wouldn’t leave Iran, after the Shah fled. The Islamic revolution certainly stung them bad. And how many Iranians today, if they were to do it all over again, welcome the Ayatollahs? That I leave for you.
I would deliberately refrain from drawing parallels between our society and the possible impact of 1789s French revolution on it since in the words of the great Chinese revolutionary Zhou Enlai “It is too soon to say.”
Point is, when a revolution does occur, the social order which has been woven so carefully over centuries goes topsy turvy. The country is suddenly up for grabs and for a certain class the ‘revolution’ becomes a zero sum game. Revolutionizing Pakistan may very well be the empowerment of your servant over you or the other sect over yours. Would that be acceptable to you? To make Pakistan a better place is one thing, defining what is ‘better’ for us and knowing its fallout another and, most important. Instead of venturing into the unknown, it would be better if this class does something unprecedented; vote. Change the existing system from within by being part of it, rather than rocking the boat from outside.
Beware what you wish for this land of the Pure!
Let’s imagine that we go Bolshevik! Remember Dr. Zhivago the movie! It may be a fine work of fiction as most movies are but it has very clear and poignant message for our bourgeoisie class; sacrificing self interest for the welfare of the whole society. Imagine your servant or driver and his/her family barges into your home and make it there own and there is nothing you can do about it. The concept of private property ownership simply disappears out of thin air. The state is not willing to do anything since it was in your servant’s name the revolution took place in the first. Then what would we do? Sharing isn’t exactly our national trait or is it? What was it, how many of us share our wealth with our less fortunate brethren in the form of taxes? And what would be the reaction of my blackberry carrying friend, whose dad owns, oops, used to own a factory! The factory is now owned by the labour union which used to toil there before.
Or better yet we go down Ayatollah style! And which Islam would you prefer please; Deobandi or Barelvi? With the former you have the potbellied Maulana Fazl-ur-Rehman and with later the socialist turned Godly Munawar Hasan. Or would you prefer a rainbow alliance of various factions of Al-Qaeda inspired and supported Pakistani Taliban! Well kiss goodbye to the cafes and fancy phones already because both are inventions of the ungodly West. Remember in Iran they are almost all Shias’, so it was rather easy for them to accept a fellow traveler as their messiah, not the case here though. Here the bourgeoisie would have to accept one maulvi or the other, whether they likes it or not. But you know Iran could have very well turned out to be the Socialist Republic of Iran had the communists of Tudeh Party not been outsmarted by the Ayatollah and his comrades. And would you be happy Mr. Punjabi and Mr. Pathan that the ‘revolutionary’ Islamic regime is out to get your father, or uncle or friend’s uncle who was a high up in pre-revolutionary Pakistani military! Scores of Shah’s trusted lieutenants were ‘sorted out’ by the Ayatollah’s regime, who either couldn’t or wouldn’t leave Iran, after the Shah fled. The Islamic revolution certainly stung them bad. And how many Iranians today, if they were to do it all over again, welcome the Ayatollahs? That I leave for you.
I would deliberately refrain from drawing parallels between our society and the possible impact of 1789s French revolution on it since in the words of the great Chinese revolutionary Zhou Enlai “It is too soon to say.”
Point is, when a revolution does occur, the social order which has been woven so carefully over centuries goes topsy turvy. The country is suddenly up for grabs and for a certain class the ‘revolution’ becomes a zero sum game. Revolutionizing Pakistan may very well be the empowerment of your servant over you or the other sect over yours. Would that be acceptable to you? To make Pakistan a better place is one thing, defining what is ‘better’ for us and knowing its fallout another and, most important. Instead of venturing into the unknown, it would be better if this class does something unprecedented; vote. Change the existing system from within by being part of it, rather than rocking the boat from outside.
Beware what you wish for this land of the Pure!
Sunday, February 6, 2011
Presidential Immunity
The Hon’ble Supreme Court’s verdict on the NRO case in December 2009 has started a debate whether the president of Pakistan enjoys immunity in cases involving foreign and Pakistani courts jurisdictions? The debate has been often confusing as leading legal eagles are equally divided on this issue, with eminent jurist Aitzaz Ahsan holding the view that the president enjoys blanket immunity for criminal proceedings under Article 248 of Pakistan constitution as well as under the principle of Head-of-State Immunity under the international law. Leading lawyer Mr. Akram Sheikh and others disagree arguing that the president’s immunity under the constitution is conditional at best and may be waived off both at home and abroad. Furthermore, the fact that no settled legal interpretation or precedence on Article 248 exists in Pakistan and other common wealth countries especially India, from whom we borrow so much in the legal field, further confuses the issue in the minds of concerned Pakistanis. In short, there is dearth of jurisprudence on the issue of Head-of-State immunity.
The scope of this article is to explore what is the principle of Head-of-State Immunity both under the Pakistani constitution and international law regimes. Most importantly, why such a principle or privilege exists both in Pakistan and abroad, and whether such a principle can be waived off or revoked. This article also discusses in brief the prevailing legal thought in Switzerland. However, what this article does not purport to do is to predict the fallout on our political system in case this immunity is surrendered by Parliament or struck down by the Supreme Court. Prediction is often a risky business.
What is the principle of Head-of-State Immunity?
The principle of Head-of-State Immunity stems from the idea of state sovereign immunity. Historically, international law recognized a principle of absolute immunity for foreign states, under which no state could be put on trial without its consent. This was based on the premise that all states are independent and equal under international law, and the idea that subjecting a state to a foreign court’s jurisdiction would negate this idea of sovereign equality. Since the head of the state was one of the guises of the state, therefore, he too, was immune. Or in other words, the state and its ruler were one and the same. Historically a monarch was absolute in exercising his powers over his realm. He could do no wrong and was the source of all the laws in his kingdom. All laws were posited in his name. The principle of Head-of-State Immunity flows from this accepted political and social norm as well.
Why does it exist? The principle of Head-of-State Immunity exists simply to preserve the prestige of the thrown in case of monarchies and presidency in case of a republic. Moreover, it is intended to provide a stable and smooth platform both for the king and the president, as the case may be, to exercise their executive powers, without any hindrance. Simply put, the immunity exists since it is important for the exercise of his executive powers, evident from the Arrest Warrants case at the International Court of Justice.
Why does it exist in Pakistan?
While the founding fathers of Pakistan intended the new born state to be a republic and not a monarchy, the intention in the minds of the framers of the 1973 Constitution while enacting Art. 248 was to preserve the prestige of the office of the president as well as smooth functioning of the executive powers of the president. It should be understood that the provisions contained in Art. 248 and its sub-clauses are not unique in the sense that every constitution to some degree protects its head of state from court proceedings at least while the head of state is still in power. For example, the president of India under Art. 361 of Indian constitution enjoys immunity in criminal proceedings. Even today, in constitutional monarchies like Britain, all the laws are posited in the name of Queen, the head of the state of United Kingdom of Great Britain and Northern Ireland. Although, she is legally obliged to work in tandem with her cabinet and does not enjoy unbridled powers over her kingdom, she nevertheless enjoys full immunity from both civil and criminal proceedings at home. The president is not the source of law in Pakistan but being the head of the state he stands up and above petty party politics and represents the federating units. He represents the state of Pakistan as one of the guises of the state, hence the immunity, albeit in criminal proceedings only.
Can this principle be waived off or revoked?
Such a question always arises because this principle stands directly opposite to the fundamental principle of “all citizens are equal before law and are entitled to equal protection of law” as enshrined in Article 25 of our Constitution. In theory, the Parliament can amend Article 248, stripping the president of immunity in criminal proceedings. But given the present political composition of Parliament, it is hardly likely. However, the Supreme Court can strike down this immunity as enshrined in Article 248, inter alia being repugnant to the spirit of the 1973 Constitution and/or in direct contrast with principles of Islam, equality before law being one, enshrined in various examples from the Islamic history, for example when Caliph Omer (R.A.) was called before the judge as a respondent. While the principle of immunity may stand on thin ice at home, it is a different story abroad.
Immunity is a powerful concept in international law. In the US, a district court in the state of New York in the Tachiona case (Tachiona v Mugabe) dealt with torture and civil action against the Mugabe regime for having tortured Tachiona’s family in Zimbabwe. The court held that a sitting head of state has immunity from criminal and civil proceedings abroad. Here it is only prudent to take cognizance of the prevailing legal environment in Switzerland regarding the issue of Head-of-State Immunity. The Swiss recognize that the immunity of a head of state is a principle embodied in customary international law. In a decision given by Swiss Federal Supreme Court, the highest court in Switzerland, in a case involving the former dictator of Philippines, Ferdinand Marcos, the Court was of the opinion that such principle of customary international law may be weakened when either the state itself expressly waives the immunity of its head of state, or when the head of state leaves office. In Pakistan, both of these conditions do not apply to President Asif Ali Zardari. It can be safely assumed that he will be immune from any prosecution, especially regarding criminal cases at the least till 8th September, 2013 (he took oath of office on 9th September 2008). However, the case of former Chilean dictator Gen. Augusto Pinochet is often cited as an exception to the universal principle of Head-of-State Immunity. But it must be remembered that facts of Pinochet case and of President Asif Ali Zardari are entirely different. The former was charged for crimes against humanity, war crimes, torture and genocide, etc. Such crimes are listed in Art. 7 of the Rome Statute of the International Criminal Court (ICC). Further Art. 27 of the Rome Statute holds that neither the immunity of a head of state nor the official position of a suspected international criminal will bar the ICC from exercising its jurisdiction. The statutes of the International Court of Justice and the International Criminal Tribunals for former Yugoslavia and Rwanda makes provisions for a head of state not to have immunity in the case of war crimes. The Rome Statute therefore stands opposite to customary international law. Meanwhile, the later is accused of money laundering, not a crime against humanity under the ICC Statute and other international law regimes. Comparing the two cases will be equivalent to comparing apples and oranges. Money laundering has lately been identified as an international offence, but it is not considered serious enough of an offence to prosecute a head of state in a foreign court, especially while he is still in power.
While the president of Pakistan may stand on thin ice vis-à-vis immunity in criminal proceedings at home since it has been challenged in the Supreme Court, nevertheless he enjoys protection due to customary international law under the principle of Head-of-State immunity abroad at least while he occupies the presidency.
The scope of this article is to explore what is the principle of Head-of-State Immunity both under the Pakistani constitution and international law regimes. Most importantly, why such a principle or privilege exists both in Pakistan and abroad, and whether such a principle can be waived off or revoked. This article also discusses in brief the prevailing legal thought in Switzerland. However, what this article does not purport to do is to predict the fallout on our political system in case this immunity is surrendered by Parliament or struck down by the Supreme Court. Prediction is often a risky business.
What is the principle of Head-of-State Immunity?
The principle of Head-of-State Immunity stems from the idea of state sovereign immunity. Historically, international law recognized a principle of absolute immunity for foreign states, under which no state could be put on trial without its consent. This was based on the premise that all states are independent and equal under international law, and the idea that subjecting a state to a foreign court’s jurisdiction would negate this idea of sovereign equality. Since the head of the state was one of the guises of the state, therefore, he too, was immune. Or in other words, the state and its ruler were one and the same. Historically a monarch was absolute in exercising his powers over his realm. He could do no wrong and was the source of all the laws in his kingdom. All laws were posited in his name. The principle of Head-of-State Immunity flows from this accepted political and social norm as well.
Why does it exist? The principle of Head-of-State Immunity exists simply to preserve the prestige of the thrown in case of monarchies and presidency in case of a republic. Moreover, it is intended to provide a stable and smooth platform both for the king and the president, as the case may be, to exercise their executive powers, without any hindrance. Simply put, the immunity exists since it is important for the exercise of his executive powers, evident from the Arrest Warrants case at the International Court of Justice.
Why does it exist in Pakistan?
While the founding fathers of Pakistan intended the new born state to be a republic and not a monarchy, the intention in the minds of the framers of the 1973 Constitution while enacting Art. 248 was to preserve the prestige of the office of the president as well as smooth functioning of the executive powers of the president. It should be understood that the provisions contained in Art. 248 and its sub-clauses are not unique in the sense that every constitution to some degree protects its head of state from court proceedings at least while the head of state is still in power. For example, the president of India under Art. 361 of Indian constitution enjoys immunity in criminal proceedings. Even today, in constitutional monarchies like Britain, all the laws are posited in the name of Queen, the head of the state of United Kingdom of Great Britain and Northern Ireland. Although, she is legally obliged to work in tandem with her cabinet and does not enjoy unbridled powers over her kingdom, she nevertheless enjoys full immunity from both civil and criminal proceedings at home. The president is not the source of law in Pakistan but being the head of the state he stands up and above petty party politics and represents the federating units. He represents the state of Pakistan as one of the guises of the state, hence the immunity, albeit in criminal proceedings only.
Can this principle be waived off or revoked?
Such a question always arises because this principle stands directly opposite to the fundamental principle of “all citizens are equal before law and are entitled to equal protection of law” as enshrined in Article 25 of our Constitution. In theory, the Parliament can amend Article 248, stripping the president of immunity in criminal proceedings. But given the present political composition of Parliament, it is hardly likely. However, the Supreme Court can strike down this immunity as enshrined in Article 248, inter alia being repugnant to the spirit of the 1973 Constitution and/or in direct contrast with principles of Islam, equality before law being one, enshrined in various examples from the Islamic history, for example when Caliph Omer (R.A.) was called before the judge as a respondent. While the principle of immunity may stand on thin ice at home, it is a different story abroad.
Immunity is a powerful concept in international law. In the US, a district court in the state of New York in the Tachiona case (Tachiona v Mugabe) dealt with torture and civil action against the Mugabe regime for having tortured Tachiona’s family in Zimbabwe. The court held that a sitting head of state has immunity from criminal and civil proceedings abroad. Here it is only prudent to take cognizance of the prevailing legal environment in Switzerland regarding the issue of Head-of-State Immunity. The Swiss recognize that the immunity of a head of state is a principle embodied in customary international law. In a decision given by Swiss Federal Supreme Court, the highest court in Switzerland, in a case involving the former dictator of Philippines, Ferdinand Marcos, the Court was of the opinion that such principle of customary international law may be weakened when either the state itself expressly waives the immunity of its head of state, or when the head of state leaves office. In Pakistan, both of these conditions do not apply to President Asif Ali Zardari. It can be safely assumed that he will be immune from any prosecution, especially regarding criminal cases at the least till 8th September, 2013 (he took oath of office on 9th September 2008). However, the case of former Chilean dictator Gen. Augusto Pinochet is often cited as an exception to the universal principle of Head-of-State Immunity. But it must be remembered that facts of Pinochet case and of President Asif Ali Zardari are entirely different. The former was charged for crimes against humanity, war crimes, torture and genocide, etc. Such crimes are listed in Art. 7 of the Rome Statute of the International Criminal Court (ICC). Further Art. 27 of the Rome Statute holds that neither the immunity of a head of state nor the official position of a suspected international criminal will bar the ICC from exercising its jurisdiction. The statutes of the International Court of Justice and the International Criminal Tribunals for former Yugoslavia and Rwanda makes provisions for a head of state not to have immunity in the case of war crimes. The Rome Statute therefore stands opposite to customary international law. Meanwhile, the later is accused of money laundering, not a crime against humanity under the ICC Statute and other international law regimes. Comparing the two cases will be equivalent to comparing apples and oranges. Money laundering has lately been identified as an international offence, but it is not considered serious enough of an offence to prosecute a head of state in a foreign court, especially while he is still in power.
While the president of Pakistan may stand on thin ice vis-à-vis immunity in criminal proceedings at home since it has been challenged in the Supreme Court, nevertheless he enjoys protection due to customary international law under the principle of Head-of-State immunity abroad at least while he occupies the presidency.
Saturday, February 5, 2011
Raymond 'the diplomat' Davis
Just when we thought we’d hit the rock bottom and it couldn’t get any worse with double-digit inflation, increasing unemployment, rising incidents of terrorism in urban areas once again, being forced to watch the not so pretty but buffoonish politicians with an IQ of an ant on tele daily, with an unsavoury topping of pot bellied maulivis’, (I have an endless list), along came Hon’ble Raymond ‘the diplomat’ Davis (hereinafter referred to as good old ‘Ray’; Americans have a knack for short names ya know). Whether this is his real name or not (Christians usually have three names; first, middle and last) is immaterial. Even if his name was John Paul Sartre he would still be hated in Pakistan for what he has done! Deep down we all know, despite the hullabaloo on Mall Road and what not, that he’ll be set free by those under oath to protect us from internal and external enemies. The concept of diplomatic immunity unsettles us. In a perverse way, it seems anti Pakistan (for our tree-hugging liberals) or anti Islam (for our fire-breathing mullahs). It is simply mind boggling to us as to why a person who shot two of our own could get away without a scratch on his body. Whether those two had a previous criminal history is immaterial as well. Would we have accepted Ray’s plea of self-defense if the two were making their debut in the world of crime? No, off course not. Antecedents matter in determining the propensity to commit crime and at the sentencing stage, not in broad day light on the intersection of Ferozepur Road and Jail Road!
The print and electronic media too has colored our mood gray. It is being shoved down our throats by media pundits that synonym of diplomatic immunity is blanket immunity. This is simply not true. Even if his Excellency Ambassador Cameron Munter had gone commando on the two, a case could have been made against him under the Vienna Convention (1961) to try him if only in the US. In the alternative he could have been granted persona non grata and asked to leave the country (well may be this remedy is available to only self respecting nations!). The point being that a loud and clear message would have been sent to him. Now why is that? By now, those amongst us who are glued to the tele have become kind of an expert on diplomatic immunity and have accepted the mantra of blanket diplomatic immunity and hence reconciled with the fact that nothing legally could be done against Ray, right? Wrong. I bet your favorite talk show host didn’t quote you the Preamble to the Vienna Convention on Diplomatic Relations 1961 which expressly states, ‘the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions in representing states’. I’m actually gonna cut Ray some slack by assuming that he worked in Islamabad and not Lahore. Yes it matters. If he was working for the consulate he enjoyed less of immunity then his colleague working for the embassy. But even then under our favorite Convention’s Article 31(1)(c), Ray would enjoy immunity from the criminal jurisdiction of Pakistan EXCEPT when he acts outside of his official functions (I think it is safe to assume that killing Rambo style was outside Ray’s official functions!). Further, Article 31(4) further provides justice to the people of Pakistan and especially to the families of the deceased by stating that if Ray could not be prosecuted or tried in Pakistan it does not mean that he could not be prosecuted or tried for the same crime in the US. Although Article 41 of the Convention is without prejudice to the privileges and immunities enjoyed by Ray, it makes it incumbent on him to obey and respect the laws of our nation (carrying a firearm illegally, not much respect for our laws, was it?). In addition, Article 32 of the Convention empowers us to ask the US to waive Ray’s immunity so that he could be tried here (probability of that happening, snowball in hell, but still…). So all in all, the concept of diplomatic immunity enshrined in the Vienna Convention is not all that bad of a deal for us Pakistanis’ if only it was to be followed in letter and spirit!
Unfortunately nation states practice the concept of blanket diplomatic immunity not as a dictate of international law, but due to political expediency. We too will let go of Ray not because we are dying to follow international law but because by scratching the American (or American’s) back today, we expect to be scratched by them tomorrow in case one of our diplomatic corps guy goes ‘naughty’ in the US. Remember Munir Akram and his Eastern European ladylove! Oh yes and one more reason folks, we like the almighty $. Very very much.
The print and electronic media too has colored our mood gray. It is being shoved down our throats by media pundits that synonym of diplomatic immunity is blanket immunity. This is simply not true. Even if his Excellency Ambassador Cameron Munter had gone commando on the two, a case could have been made against him under the Vienna Convention (1961) to try him if only in the US. In the alternative he could have been granted persona non grata and asked to leave the country (well may be this remedy is available to only self respecting nations!). The point being that a loud and clear message would have been sent to him. Now why is that? By now, those amongst us who are glued to the tele have become kind of an expert on diplomatic immunity and have accepted the mantra of blanket diplomatic immunity and hence reconciled with the fact that nothing legally could be done against Ray, right? Wrong. I bet your favorite talk show host didn’t quote you the Preamble to the Vienna Convention on Diplomatic Relations 1961 which expressly states, ‘the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions in representing states’. I’m actually gonna cut Ray some slack by assuming that he worked in Islamabad and not Lahore. Yes it matters. If he was working for the consulate he enjoyed less of immunity then his colleague working for the embassy. But even then under our favorite Convention’s Article 31(1)(c), Ray would enjoy immunity from the criminal jurisdiction of Pakistan EXCEPT when he acts outside of his official functions (I think it is safe to assume that killing Rambo style was outside Ray’s official functions!). Further, Article 31(4) further provides justice to the people of Pakistan and especially to the families of the deceased by stating that if Ray could not be prosecuted or tried in Pakistan it does not mean that he could not be prosecuted or tried for the same crime in the US. Although Article 41 of the Convention is without prejudice to the privileges and immunities enjoyed by Ray, it makes it incumbent on him to obey and respect the laws of our nation (carrying a firearm illegally, not much respect for our laws, was it?). In addition, Article 32 of the Convention empowers us to ask the US to waive Ray’s immunity so that he could be tried here (probability of that happening, snowball in hell, but still…). So all in all, the concept of diplomatic immunity enshrined in the Vienna Convention is not all that bad of a deal for us Pakistanis’ if only it was to be followed in letter and spirit!
Unfortunately nation states practice the concept of blanket diplomatic immunity not as a dictate of international law, but due to political expediency. We too will let go of Ray not because we are dying to follow international law but because by scratching the American (or American’s) back today, we expect to be scratched by them tomorrow in case one of our diplomatic corps guy goes ‘naughty’ in the US. Remember Munir Akram and his Eastern European ladylove! Oh yes and one more reason folks, we like the almighty $. Very very much.
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