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Raymond Davis and Norms of justice
Legal circles have noted with great anguish and expressed its concerns on the extra judicial killing of at least three Pakistani citizens by a foreigner Raymond Davis and his colleagues at Lahore(Pakistan) on Thursday 27 Jan 2011. Public has condemned in the strongest words the free movement of diplomatic staff without protocol and prior permission bringing public safety and state security to a questionable risk quite contrary to the spirit of Vienna Convention and Counsellor relations 1961 and 1963. Lawyers have sought Justice in the killings of 3 Pakistani citizens at Lahore involving USA mission staff demanding the Chief Justice of Pakistan and the Govt of Pakistan to ensure justice which is seen to be done to avoid miscarriage of justice, and inequality. This is the biggest test of the current civil administration since its election on February 2008, as if they are a little negligent, it will pave way for public outcry akin to Tunisia which have the potential to smite all who stand in between justice, fair play, equality and the free motion of the law of the land. All those involved in such crimes must be brought to books in accordance with the law of the land if they are not registered diplomats as required by the law. Any back dating will have a disastrous effects on the state relations and public confidence on Govt dealings with USA and will attract a backlash due to foreign interference in Pakistan.
It reminds us that no leniency was shown in the case of Dr Afia Siddiqui and law of the land prevailed in USA so must be the case in this murder probe and stern action must be ensued against perpetrators to avoid public outrage due to prevailing hatred present in the society due to ongoing war on terror. Critics observe that criminals must be treated as criminals not as ‘Pakistani’ criminals and or ‘USA’ criminals and same treatment must be bestowed what would have been meted out to any Pakistani citizen if involved in similar charges in USA. Only justice may provide temporary relief in this tragic episode. We observe that Vienna convention gives immunity to only listed top level diplomats and all at sundry at embassy is not automatically exempt or immune from criminal prosecution.
It is also noteworthy that Western laws are very clear in this regard as we saw in January 2011,that an Indian diplomat Anil Verma left UK due to fear of prosecution when his wife complained of a domestic violence and a debate ensued in UK inviting the Govt to probe the matter despite diplomatic immunity. On 20 October 2010 a Saudi prince Saud Abdulaziz bin Nasser al Saud has been jailed for life for murdering his servant Bandar Abdulaziz, 32, who was found beaten and strangled on 15 February 2010 at a hotel in central London. The prince was convicted and sentenced on the murder charge of his servant despite claiming immunity. Case of Georgian diplomat convicted in high speed crash killing a teen age U.S girl in 1997 and Libyan embassy debacle where constable Yvonne Fletcher was shot dead in 1984 which resulted in 15 years diplomatic relation between UK and Libya are examples which guide us to adopt the way of sanity than unrest, bloodshed.
Raymond’s case cannot go to ICJ until Pakistan agrees, local courts are to rule on this case if he is not a diplomat like Dr Afia Siddiqui’s case which never went to ICJ despite clear conflicts. The proposed appplication of a citizen of USA should be detested as submiting to the jurisdiction of that court will negate Pakistan’s right to try any criminal in their court.Compare it with Dr afia Siddiqui, if it proves that she was kidnapped, can Pakistani court take cognisance and recover her, even then ICJ will have to be invoked for which consent of both countries will be required.Any aggrived in Lahore killing may also invoke ICJ for relief in the matter of the alleged killing, conspiracy and compenation with the consent of contarcting states”.The ICJ is the principal judicial organ of the UN. It has a dual role, to settle in accordance with international law the legal disputes submitted to it by “states,” and to give advisory opinions on legal questions referred to it “duly authorised international organs and agencies.” The court is competent to entertain a dispute “only” if the states concerned have accepted its jurisdiction in one of three ways that are specified in the ICJ’s jurisdiction provisions. These need not be mentioned here in detail as they are not applicable in this case for reasons mentioned further. However, in brief, the competency of the court is activated in disputes between states where certain arbitration provisions between state agreements specifically refer disputed matters to the ICJ when states are embroiled in a dispute. In doubtful matters the court will decide for itself whether it has jurisdiction to hear and decide on the dispute. This is the pertinent issue in this case. The ICJ’s role is to decide in accordance with international law disputes of a legal nature that are submitted to it by states. Therefore, only States may be parties to cases before the ICJ, this is in accordance with its role as stipulated in the opening paragraph of Article 1 of the UN Charter. It is conceivable that such proceedings could be between a state on one hand and an international organisation, a collectivity or an individual on the other. Within their respective field of jurisdiction, institutions such as the Court of Justice of the European Communities or the Eurpoean Court of Human Rights in Strasbourg would be entitled to hear disputes as mentioned above. This is not the cas, however, with the ICJ, to which no case cann be submitted unless both applicant and respondent are States. Despite various proposals and even the existence of a treaty providing for the possibility of proceedings before the court between an internatiional agency and a state, neither the UN nor any of its specialised agencies can be a party in contentious proceedings before the ICJ. As for private interests, these can only form the subject of proceedings in the ICJ if a state, relying on international law, takes up the case of one of its nationals and invokes against another state the wrongs which its national claims to have suffered at the latters hands, the dispute thus becoming one between states. Like any other court, the ICJ can only operate within the constitutional limits that have been laid down for it. The registry receives written or oral applications from private persons daily. However, heart-rending, however well-founded such applications may be, the ICJ is unable to entertain them and a standard reply is always sent; “UnderArticle 34 of the Statute only States may be parties in cases before the court.”
Therefore issues of jurisdiction, exhaustion of appeal rights in the local jurisdiction, or merits of the case need not be further dwelled upon as any case brought by US involves allegedly Pakistani state and they may not be brought to the jurisdiction of the ICJ’sremit without consent of those parties. I strongly oppose to submit to the juridiction of ICJ and diasgree any officials attending that court hearing and all parties must respect and submit to the jurisdiction of Pakistani Superior Courts and if any dispute other options of prisoners exchnage, pardon and sharia compliance are available as a means to remove the deadock, if any. If submitted against the public opinion to ICJ now then the judgemnet will have to be accepted by both parties and Pakistani courts will never be able to try any foregner in their jurisdiction as despite willingness visiting states will protect their citizens whether accused or otherwise and will take the matter to ICJ for protection, delay and recovery of their citizens and compensation will be left as an only option with regret and repentance which will be a dangerous trend for a newly born free and independent judiciary of Pakistan. In this context murder whether intentional or unintentional is a serious crime against state and unless proper probe is conducted & completed and a judicial process takes place, the arrested US diplomat must not be allowed to leave the jurisdiction without judicial oversight as no one is above the law as per the Constitution of Pakistan 1973. It will be a survival test of the govt of Pakistan in the light of Dr Afia Siddiqui’s arrest, detention, trial, conviction and sentence post severe protest of Pakistani public and still United States law of the land prevailed and so must be the case in respect of the law of Pakistan. Having said that parity must be maintained ensuring Raymond Davis and his colleagues a counsellor access forthwith, and a fair trial, with access to their lawyer of choice with interpreter, food and medical aid. There are solutions emanating from conviction of Raymond whether he admits it, or State prosecution proves it beyond a reasonable doubt. Without conviction all solution promotes anarchy, dissatisfaction and
Barrister Amjad Malik, MA, LLM is a life Member SCBA (Pakistan) and a Chair Association of Pakistani lawyers (UK).
22 February 2011
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