I am writing this article as a rebuttal to Khuldune Shahid’s article “Jinnah’s Pakistan a mirror of his contradictions.” It is necessary because if you do not counter a falsehood in public domain over time it is taken to be the truth. It is sad that there are many OpEd writers who when writing on this topic do not check their facts or at least try and understand what the point of view is that they are challenging. Khuldune’s article is no exception. It draws on several strawman fallacies which have nothing to do the argument that Jinnah’s vision for Pakistan was a secular one.
When Raymond Davis burst onto the headlines in a flash of broken glass and gunfire, the nation became immediately transfixed. Here was the blonde, white American ex-Blackwater CIA operative that the conspiracy theorists of the Ghairat Brigade had been warning us about! The Americans immediately claimed diplomatic immunity, and the response was a predictable gasp from both the left and the right.
There were two popular responses to the question of diplomatic immunity and the fate of Raymond Davis. The jihadi solution was to set aside any pretense of reason, justice, and law and order and simply hang the man in the street as an act of vigilantism.
The second came from the more reasonable-sounding crowd who repeated ad nauseum that everyone should ‘let the courts decide’ and demanded that the Americans respect the ruling of Pakistani justice.
For example, here is the statement of JUI-F.
“The Islamic laws clearly provide that a person, after proving to be guilty, would have to undergo the punishment, Qasas, Diyat etc under Sharia,” said JUI-F’s Secretary General Maulana Abdul Ghafoor Haideri.
He explained that the judicial process is obviously of Pakistan as an accused would have to pass through the process in accordance with the law of the land where he commits a crime…”The only acceptable option is to let the courts decide about the fate of the arrested US national in accordance with the laws,” he responded to a question.
Letting the courts decide was also the stated opinion of COAS Gen Kayani – an opinion termed “total commitment to rule of law in the country” by The Nation.
Reaffirming total commitment to rule of law in the country, the top brass of Pakistan Army Wednesday supported decision of the government that case of US national Raymond Davis was a sub judice matter and let the court handle it.
In fact, The Nation was quite explicit in its own support for the courts to decide. On 6 February they even published an editorial with the headline, ‘Leave it to the courts’.
Is it intolerable for the bipartisan delegation for a Pakistani judge to decide the fate of an American? The need to leave the judiciary to decide is highlighted because the investigator in the case has determined that excessive force was used.
Even JI deputy chief Liaquat Baluch said that the Americans should allow the courts to decide.
“Why is America hell bent on trampling on Pakistani law and its judicial system? We will forcefully protest if he is released without a court order,” Jamaat-e-Islami deputy chief Liaquat Baluch told Reuters.
Now, of course, the court has decided. Justice has been carried out according to our own laws and customs, and not American or Western jurisprudence. Qisas & Diyat Laws were invoked, blood money has been paid, the families have issued a pardon, and the accused has been acquitted by the courts and released.
So, everyone who demanded to let the courts decide based on our own laws and customs is satisfied, right? Of course not. This is Pakistan.
No, instead you have everyone complaining that the court came to the wrong conclusion. If this is the case, why bother with courts at all? If courts are supposed to come to a pre-determined conclusion no matter what, then they are not courts at all but just a sham. Law and order is about process, not outcome. Justice is about means, not ends.
There were some groups that made very clear that they had no interest in real justice – that no matter what, their blood lust must be satisfied. These groups include TTP and JuD.
If Pakistani courts cannot punish Davis then they should hand him over to us,” said Azam Tariq, spokesman for the Tehrik-e-Taliban Pakistan (Taliban movement of Pakistan).
“We will give exemplary punishment to the killer Davis.”
The entire Raymond Davis affair was a disaster from start to finish. People are still talking about the effect on national dignity, but that was a no-win situation also. Recognizing his claim of diplomatic immunity would stoke a media firestorm that threatened riots and violence that would humiliate the nation on the world stage. Not honouring our commitments under the Vienna Conventions would make us appear untrustworthy to other world powers. In the end, the court managed to side-step both of these possible disasters in an artful and just decision under our own laws.
As for the Americans, whether or not Raymond Davis was entitled to diplomatic immunity, the incident was humiliating for them. And with this outcome, the Americans had to respect Pakistan’s sovereignty as well as our courts, laws, and customs. Raza Habib Raja makes this excellent observation on Pak Tea House.
Now if indeed the families of the victims have accepted the compensation and Mr. Raymond has been released after compensation has been paid, then frankly it is a win win situation. Although I know some may disagree because they desperately wanted to see Raymond publicly hanged but a thoughtful analysis would reveal that in fact USA has not been able to bully Pakistan and eventually had to resort to proper legal means and had to compensate the families. Of course this fact would not be acknowledged by the media but if the families have accepted the compensation then it is a moral victory of Pakistan while preserving its realpolitik concerns.
The only people who didn’t get their wish were the Taliban who weren’t ever interested in ‘justice’ but only wanted to quench a blood lust. These are the same Taliban who are mercilessly killing our own people, violating our own sovereignty, and trying to replace our own laws and customs with their own. Do we really want to find ourselves infected with their same blood lust?
After dragging on for far too long, the Raymond Davis case is finally closed. It’s time to focus our attention on more important matters. Like the urgent need to address the education emergency in our country. We can tell our children about how the Americans could not bully us, and how through our own laws we found justice. But we cannot, we must not dwell on this episode. Our children deserve a better future than one obsessed with ghairat and America. We need to stop looking backwards, and start looking to the future of our country. The Raymond Davis case is closed. It’s time to put that same energy that we spent in putting down America into building up Pakistan.
The following post by Feroz Khan was originally published at PakTeaHouse.net and provides an interesting perspective on the issue of diplomatic immunity and intelligence agents. Many people are saying that if Raymond Davis is not wearing a suit, or carries a gun, or has CIA ties then he cannot be a diplomat. But is this really the case? Could he be an intelligence agent and still have diplomatic immunity?
If Raymond Davis is an intelligence officer, he still will have diplomatic immunity. The intelligence community is a very small world and when a diplomat is accredited to a foreign country, the host country is notified about the posting and the person who who will be posted.
In this case Pakistan would have been duly informed by the United States that Raymond Davis will posted to Pakistan and in this case, Pakistan had the option to allow him into the country or not but the fact that Pakistan accepted his posting and issued an official visa to that affect means, legally under international law, that Pakistan accepted his credentials and that automatically conferred the status of a diplomat upon him.
Even if he is an intelligence officer, the protocol in this case would have suggested that Raymond Davis be considered as a “persona non grata” and asked to leave the country. When a diplomat is arrested for anything in a country in which they are posted, the local law enforcement authorities immediately notify their superiors up the chain of command.
In this case, once Raymond Davis was arrested, the police after ascertaining his identity should have notified the Interior Ministry and then the Foreign Office. Foreign Office is responsible for issuing visas to diplomats and once a diplomat is posted to Pakistan, they first go to the Foreign office and present their credentials as a sign of officially taking charge of their assignment and then, they are asked by the Foreign Office to formally present their credentials to the President of Pakistan as a sign of formally being accredited to the host country.
Thereafter, the Foreign Office informs the Interior Ministry that a diplomat, accredited to Pakistan, has assumed their duties. The Interior Ministry is responsible for all law and order issues in Pakistan and is the nominal head of all intelligence services working in Pakistan.
In the case of Raymond Davis, chances are that he would have not meet Asif Ali Zardari as he was more of a consular worker seconded to the United States Embassy than a principal diplomat, but it does mean that once his posting to Pakistan was suggested and his credentials provided to the Foreign Office; the Foreign Office would have consulted with the Interior Ministry on his posting and his personality and the Interior Ministry would have sought informational input from the various intelligence services and researched his background.
Once the Interior Ministry would have confirmed the bona fides of Raymond Davis, the Foreign Office would have issued him the visa, which is only a document that gives a foreign national permission to enter a country. In this case, the visa would have been an official one and once that issue was issued in conjunction with his work as “aide” to United States’ diplomatic staff in Pakistan, Raymond Davis would have meet the most basic conditionalities of Vienna Convention’s classification of a diplomat.
A diplomatic immunity is conferred by the host country and it can be rescinded at any time, when a diplomat accredited to a country breaks or violates his/her terms of diplomatic status. In the case of Pakistan and Raymond Davis, the most preferred course of action would have been for the Foreign Office to rescind his diplomatic immunity and declare him as “persona non-grata” and ask him to leave the country.
Furthermore, the police can only arrest a person accredited as a diplomat if and only when his/her credentials are rescinded and that too only after consultations between the host and the guest country agreeing to the fact that a diplomatic immunity is to be denied.
It cannot be unilaterally removed by the host country and this is due to the principle of “sovereign immunity” in international law (basically this caveat means that a foreign nation cannot be sued without its permission and this idea historically comes from the divine rights of the kings, where the European monarchs sought protection from acts of parliament – specially after Charles I of England was executed by Oliver Cromwell; a parliamentarian) under which a guest country’s diplomat cannot be arrested or charged with a crime WITHOUT the permission of the guest country itself!
Parentically speaking, all heads of state are entitled to sovereign immunity and it is intended to prevent them from being legally charged in the due process of their official duties and in the case of Pakistan, it implies, technically and theoretically, that General Zia-ul-Haq could not have charged Z. A. Bhutto with murder without Bhutto’s permission! It is the same idea that prevents George Bush, Jr. and his administration from being charged with any crime they might have committed, under international law, while in office.
As I said elsewhere, international law is observed more in the breech than in the observation of its intent.
In this case, when Raymond Davis was arrested, his diplomatic immunity was valid and even after the arrest, the Foreign Office did not cancel his official status in the country and when, under such stipulations, consular access to Raymond Davis was denied; Pakistan stood in violation of the Vienna Conventions.
Raymond Davis is alleged to be quilty of killing two people directly and a third person indirectly; and therefore he is alleged to be quilty of a double murder and man-slaughter. There is no denying this fact, but this fact is obscured by the formal procedural requirements of international law, based on its conventions and treaties, and the fact that these formalities were not observed and this event, which could and should have been handled on a diplomatic-official level was allowed to be victimized by political considerations fanned to the extreme by an overly agitated and hyper-nationalistic press-media of Pakistan.
As to the jurisdiction of the courts in this matter, Pakistani courts have no jurisdiction in this matter because to the best of information available, Pakistani Foreign Office has still not officially invalidated Raymond Davis’ official status, but seems to have confirmed it.
As long as Raymond Davis remains officially credited as a diplomat by the Pakistani Foreign Office, he cannot be detained and his detention in the present circumstances can be easily classified as ‘unlawful arrest” and this issue in a legal, and more importantly in a procedural sense, still falls under the purview of the Pakistani Foreign Office and it is for the Foreign Office; not the courts to decide whether Raymond Davis can be tried in a Pakistani court.
If and when the Foreign Office withdraws Raymond Davis’ official status in Pakistan, after discussing the matter with the United States and the United States agrees to the condition, only then Raymond Davis can be charged and tried in a Pakistani court for the crimes in he committed in Pakistan while on official status.
Pakistan cannot refer this case to the International Court of Justice because in order for the International Court of Justice to hear this case, it needs the concurrence of both parties to the dispute, Pakistan and the United States, that the case shall be referred to the International Court of Justice.
The correct procedure in this case would be, and this also strongly confirms and reinforces the purpose of John Kerry’s visit to Pakistan, that Pakistan declares Raymond Davis as a persona non-grata and expels him from Pakistan without charging him. The next step would be for the Foreign Office to instruct its embassy in Washington D.C. to file a case against Raymond Davis in the Supreme Court of the United States, which has the constitutional jurisdiction to hear cases involving the United States’ government and foreign governments. Pakistan has a solid case in this regard and if it follows the due process of the law and the right procedural mechanisms, there is a very good possibility that “justice for all” can be achieved without underming Pakistan-United States bi-lateral relations.
On a point of addendum, it should be noted and clarified that this case has no similarities with the case of Dr. Affia Siddique and should not be compared with that case, as the legal circumstances are entirely different.
Dr. Affia Siddique was arrested at the United States’ military base at Bagram, Afghanistan. According to international law and its intentions on the matter, a country’s military base on a foreign soil is to be considered in much the same sense as a country’s embassy on a foreign soil.
In other words, Bagram base was technically speaking “United States’ sovereign soil” and Dr. Affia Siddique was arrested for crimes committed on “United States’ soil” and therefore could be arrested, tried and charged in a United States Court and sentenced to jail term in a United States prison.
The United States’ embassy in Islamabad is considered as “United States’ soil” and Pakistan’s embassy in Washington D.C is considered as “Pakistani soil”. In a similar sense, the Indian High Commission in Islamabad is considered as “Indian soil” and Pakistani High Commission is considered as “Pakistani soil”, where the laws of the guest country apply and not those of the host nation!
To further illustrate this point, there was an incident in the 198os, when Germany was still divided into East and West Germany and the Cold War was still raging, when an East German airliner was hijacked and forced to land at the United States military base in West Berlin.
An airliner, under international law, is considered as the “soil” of the country, where it is registered and in this case, it was an East German airliner. Therefore, the act and the crime of hijacking was committed on the “soil” of East Germany, but the aircraft landed in a West Berlin military base belonging to the United States and therefore, on American “soil”.
Once aircraft had landed, the persons who had hijacked the aircraft, to seek asylum in the west, were arrested by the officials of the American military police and housed under arrest on a United States’ military base. East Germany asked for their return claiming that the act took place on its soil and they should be judged by its laws and the United States’ State Department agreed with this view and decided to charge the persons with violating the international law of hijacking and once found guilty, to send them back and the trial to this effect was to be held on the premise of the United States’ military base in West Berlin. The defense lawyers argued that international law did not apply in this case, as the arrest was affected on American soil and therefore, the laws of the United States would take precedence over international laws in this matter because though the crime was committed in East Germany, the persons were arrested in United States and thus, they had right to the full due process of the law as guaranteed under the United States’ constitution.
In the end, they were judged according to American laws, because the presiding judge in his verdict noted that though the crime was committed in East Germany, they were arrested by members of the United States’ military police, which operated under the United States’ legal jurisdiction and were performing their duties on a United States’ military base, which was considered as an American “soil” under international law and therefore, the laws of the United States, and not East Germany or international laws, were applicable to this case. According to the judge, the laws of East Germany or international legal jurisdiction could be considered over United States’ legal jurisdiction in the matter only if the United States’ government had given its sovereign consent to this idea and since it had not; the United States laws would be considered as supreme in this matter!
I remember perfectly well, when my late father was posted as a diplomat to Ottawa, Canada in the early 1980s, there was a fire in the Pakistani embassy there in the middle of the night. The Ottawa Fire Department first contacted the Pakistani embassy and once it officially got the permission, it entered the premises to put out the fire because technically speaking; had it entered the Pakistani embassy without permission and gone in as the Canadian law gave it every right, the Ottawa Fire Department would be invading “Pakistani soil!” (lol)
Therefore, in this case international law prevailed over domestic law and in the case of Pakistan and Raymond Davis, international law will prevail over Pakistani laws until and unless, there is an agreement between United States and Pakistan over this issue and international conventions are put aside in the favor of Pakistani laws.
The recent attack on Abdullah Shah Ghazi’s shrine is another reminder of the plain truth that the Pakistani state needs to focus on its domestic crises rather than remain obsessive about external threats. The unholy conglomerate comprising al Qaeda, sectarian outfits and elements within the state has targeted Karachi’s best-known public and cultural space. This is a continuation of Islamist battles against Pakistan.
Yet, apologists remain adamant. Butchering of civilians and annihilation of a plural Sufi culture is a reaction, we are told. First, it was the US occupation of Afghanistan, then the invasion of Iraq and now drone attacks in Pakistan. True, Muslims and Pakistanis are enraged at US policies and its sheer arrogance in dealing with the region. But using anti-Americanism as an excuse to overlook the growing cancer of bigotry at home is disingenuous and dangerous for our future.
Denial is etched in our memory and cultural ethos. Even today we are not willing to admit that the majority of Indian Muslims did not migrate to the Land of the Pure. And that we mistreated the Bengalis. We are also in denial about the ever-growing crop of suicide bombers and how sectarianism has penetrated our society over the last three years.
The truth is that we are a fractured and crumbling society in denial. Even the glorification of our nuclear weapons is an act of denial: such prowess does not provide social services, internal security and economic prosperity. We are paranoid about our nuclear weapons — the common view is that everyone in the world is out to forcibly remove them.
Despite the common perception that it wants to denuclearise us, our military is dependent on the West. American culture is now the standard culture, our students yearn to be in US universities and migration to the Newfoundland remains a desirable ambition. Such schizophrenic realities are also denied and swept under the carpet. Until we confront ourselves and admit some home truths we are not likely to get far.
The reach of Islamism is also palpable. Watch a standard TV show, read the Urdu press (a leading newspaper quotes Taliban links and websites as references and prints their adverts), or participate in a regular drawing room conversation — myths have become real and the penetration of political Islam is capturing the discourse amid confusing globalisation.
Worse, the de-legitimisation project of secular, moderate political parties is ongoing. The wise know that if anything prevents political Islam taking over the state, it is parties such as the PPP, the ANP and the PML-N. Even the JUI is no longer Islamic enough — hence the recent attacks. These forces are a bulwark against the tide of Islamism and its agenda. But the historically naive and complicit middle class of Pakistan refuses to smell the coffee. It beats its proverbial chest over fake degrees, why the ‘corrupt’ are in high places and why the Taliban sympathisers, such as a sportsman-turned-politician, are not in power. It fails to see why reactionary movements are effectively ‘anti-change’. The recent gibberish about revolution and clean politics is familiar but comes at a make or break juncture.
The PPP government, despite its uncertain shelf life, owes it to the people of Pakistan to forge consensus on a new education policy, madrassa reform and developing a national counter-terrorism plan. This is an area where initiative is lacking. Detoxing Pakistan is not a short-term process. It will be a five to 10 year unavoidable battle if Pakistan wishes to remain a viable state and relatively functional society. Reform should start with revisions to curricula and focus on a grassroot campaign against sectarianism. The prerequisites for such reforms are political stability, policy continuity and a growing economy.
Unelected institutions of the state no longer have the luxury of orchestrating games of musical chairs amongst politicos, technocrats and opportunists. ‘Denialistan’ and its masters must wake up.
The following post was originally published at PakTeaHouse blog.
If the intent of the unregulated media and a recalcitrant establishment is to dismiss the government to achieve better governance then this is at best a delusional goal.
Recent weeks have witnessed a supercilious debate on how the current government’s misgovernance is a potent reason to boot it out. Governance is about decisions, resources and management of public affairs. The sad reality is that Pakistan’s media now controls and spins the public discourse on these issues. The popular media never wanted this government to begin with. Since 2007, it sided with the ‘clean’ and morally correct lawyers’ movement that presented an alternative to the corrupt politicians and shunned the 2008 election. First, it vilified Benazir Bhutto for making a deal with the Generals on initiating a transition towards a power-sharing arrangement. This was a classic worldview of the urban middle class, which has never been a keen participant of the messy electoral politics that brings rural politicians with fake degrees at the helm of affairs.
The second critical moment was the election of the President, which sparked an unprecedented media trial with stories (mostly unsubstantiated) of Zardari’s corruption. There was a strong alliance between the local and the global media churning out a thousand stories highlighting his insanity, fallibility and venality. This happened despite the full confidence expressed by Zardari’s party and its allies. A rare federal consensus over the election of a President was undermined and the media perception intensified how all the crooks stand together to rob the country once again.
Now the third moment in the aftermath of the floods has arrived; and the high-pitched voices against the politicians have reached their peak. The charge-sheet is long but, in a nutshell, states that the feudal politicians were inept in handling the July-August 2010 disaster and harmed the poor to save their lands. This is a simplistic conclusion that has emerged without proper inquiry and mainly through anecdotes from the urban anchors visiting rural victims and interpreting their anguish as a condemnation of the politicos.
Discussions around regime change have strongly articulated the displeasure of the unelected institutions of the state on ‘governance’. The media has faithfully reported that the Army is unhappy about the corrupt ministers still in office and the looming economic crisis. The Judiciary is perturbed, as its judgement on NRO remains partially unimplemented and key appointments reek of illegality. The perennial power-seeker class of politicians has started to reconfigure the political landscape while fringe parties like Imran Khan’s Tehreek-e-Insaf and the right wing Jamaat-e-Islami want to seize this opportunity for short term gains. The ever-ready crop of technocrats is also getting anxious due to the anonymous contacts being made by the invisible elements of the state.
This display of crass opportunism by Pakistan’s traditional elites is nothing new. Since 1947 (including that fateful year), they have cared little for the ordinary citizens. But the alarming aspect of our present dilemma is the way Pakistan’s much-touted free media has become an instrument in spurring political instability. The endemic problem with Pakistan’s governance is that regardless of the government in power, the state (if we were to include all the dominant classes in the wider definition) remains disconnected and disengaged with the citizens. What is more worrying is that the state no longer is a monolith as it has delegated the state’s monopoly powers to faith-based militant groups which are ready to exploit its increasing inability to ‘govern’.
With 20 million people still struggling to reclaim their livelihoods, entitlements (such as land), shelter and security, Pakistan’s establishment and its politicians are all but willing to do anything about it. It is therefore problematic to see a legitimately elected government preparing a summary on NRO cases for 34 out of 8,000 beneficiaries and the Supreme Court chiding it like an accused party. Or, to read about the panicky meetings of the PPP while the latter should be strategising about re-enacting the NDMA legislation or preparing a resource mobilisation strategy to rehabilitate the flood victims and reconstruct the damaged infrastructure.
Equally disturbing is to witness the saga of Courts in effect suspending new Constitutional provisions while they are expressly not mandated to do that; and placing abstract notions of people’s will above the Constitution. In a similar vein, the Army has a separate fund for flood relief and the elected Public Accounts Committee cannot be given the details of how and why a Rs 5 billion supplementary grant was given to the country’s premier intelligence agency.
The argument on misgovernance by a coalition government is bogus when unelected institutions of the state are unaccountable, non-transparent and unwilling to accept the oversight of public representatives. Until the Army budgets can be audited, and judges are appointed through parliamentary commissions and the bureaucracy is answerable to legislature, we will continue to swirl in a vicious cycle of political instability.
If the intent of the unregulated media and a recalcitrant establishment is to dismiss the government to achieve better governance, then this is at best a delusional goal. Pakistan cannot afford another upheaval and the recent signals by the Army that it wants stability are welcome. But then Pakistan is an unpredictable polity with a growing constituency for suicide missions. Strange times, indeed.
Raza Rumi is a writer and policy expert based in Lahore. He blogs at http://razarumi.com.