VIP: Very Inconsiderate Politicians

Sitting in a plane waiting for a delayed flight is possibly one of the most uncomfortable experiences in the world. Let’s be honest, unless you’re quite wealthy, the days of a relaxing travel experience are long gone. Even for those with the means to fly First Class, the discomfort of sitting on a parked airplane is only moderated by the frills. Nobody would choose to sit on a parked plane, even in the best of seats. So when passengers on a PIA flight came to believe that they had been forced to endure their cramped accommodations because some VIPs were running late, their response was only natural.

For its part, PIA has explained that the flight was delayed due to technical issue and not due to any VIP protocol. Whether or not this was the case in this particular instance, however, is beside the point. Everyone can quickly recall instances in which they were horribly inconvenienced in order to appeal to the egos of a VIP. What VIPs do not seem to realise, however, is that every time they do this, they actually make themselves less secure.

Some inconveniences to protect political leaders are unfortunately necessary. Blast walls and redirected traffic around certain locations are sadly required due to the reality of the deteriorating security situation and the threats that some politicians face from militant groups and other threats. The same people who blame Benazir Bhutto for taking risks with her safety, however, are the same people who say that other political figures should not be allowed to live behind walls and travel in security caravans. Which is it?

The problem is not providing security for political leaders, but that some politicians take advantage of their legitimate security status simply to make themselves more comfortable. For example, if the PIA flight was delayed due to technical issue, why was Rehman Malik not sitting on board suffering like everyone else? Was he given special consideration to wait in a lounge until the technical issue was solved?

Certain allowances must be made for the security of political leaders. This is recognised not only in Pakistan but in every country of the world. The difference is in how some of our politicians treat those allowances as a God Given Right instead of a privilege granted by the people.

The next time a political leader finds himself on a flight that is delayed for ‘technical issues’, he would be smart to insist that he sit on the plane with the other passengers and suffer the same sweat and cramp that they do. Then, when he is driven away in his security caravan after landing, the people will wave their hands to him, not their fists.

Dual Citizenship Cases Raise Questions of Due Process

It seems the first wave of petitions alleging parliamentarians holding dual citizenship was just a testing of the waters, and having found a friendly Court, the floodgates are beginning to open. Media reports that more than 14 more lawmakers have been targeted in a new petition to the Supreme Court, with even more expected soon. I have written about substantive questions that are raised by the substance of the petitions as well as the political questions that arise from using a law added under a brutal military dictatorship to disqualify democratically-elected officials. Today, however, I want to explore some procedural questions raised by these petitions.

The first question is, what is required to bring such a case? When petitioners approach the Court claiming that a member of parliament is ineligible due to holding dual citizenship, what do they have to show for the Court to take their claim seriously? Is the mere suggestion by a barrister using flowery legal language sufficient to attract the Court’s attention? In the words of Newsweek editor David Frum, “Can you really stand up in front of a Pakistani tribunal and spout whatever fool nonsense pops into your head?”

In the case of MNA Farahnaz Ispahani, the petitioner may have presented as evidence media reports that a US State Department list included an asterisk next to her name, suggesting she was a US national. But is one punctuation mark sufficient to bring a case, or was the petitioner required to show more evidence backing his claim?

The case of Interior Minister Rehman Malik is even more interesting. What evidence was presented that the Minister was a British national? Bloggers at Cafe Pyala say that Malik was seen using a red passport recently, but later updated the post noting that cabinet members actually carry red – not green – Pakistani passports. Was a case brought on a mistake? The real question, though, is whether some proof is required beyond what someone claims to have seen. If someone tells the Court that they saw Chief Minister Sindh change his form into a cat, is the CM obliged to prove he is not a jinn?

That the Interior Minister did have British nationality at one point is irrelevant to the procedural question raised above, but it actually raises another more troubling question. In the case of Farahnaz Ispahani, media reports alleging her dual nationality are well known. But in the case of Rehman Malik, I don’t remember any media reports claiming to have found public documents suggesting his British citizenship. In that case, how did the petitioner come to know about it? If the petitioner has documentary evidence that some or all of the accused parliamentarians are dual citizens, where did he get these documents? Is it possible for private citizens to check the nationality of other private citizens in foreign countries? Could someone, for example, ask the UK to confirm or deny if Imran Khan is now or ever has been a UK national?

On Monday, The News published an image of a document from the petition that appears to include foreign passport numbers for certain lawmakers.

Image from The News - Alleged dual nationality holders

How did the petitioner get these alleged passport numbers? Has the Court asked this question?

These questions have nothing to do with whether or not dual citizens should be allowed to hold office. These are questions related to fundamental rights of due process and justice. Surely bringing a petition against anyone – regardless of whether they are a member of parliament or a chai wallah – should require more than just “standing up in front of a Pakistani tribunal and spouting whatever fool nonsense pops into your head”, and if documentary evidence is provided, surely the Court should ask where the documents came from. While the media is buzzing about whether or not this or that MNA has dual citizenship, the real question that should be asked is where this story came from in the first place.

The Trial of the Military

The Pakistani military establishment has had to contend with its fair share of strategic blunders in the past. The ones that immediately come to mind are 1965, 1971 and Kargil. The fact that the general public is not aware of the military blunders (or refuses to believe them) shows testament to the strength or rather the “myth” of the military. This myth has haunted Pakistan in the past, and it has come back to haunt us again with Osama Bin Laden. Several Pakistani military operations of the past have led to criticism and strategic failure, yet the Pakistan military has always been able to deflect blame towards civilian governments. This time, however, it may not be so easy for them.

General Pervaiz Musharraf shrewdly explained the strategic blunder of the Kargil Operation in 1999 by alleging Nawaz Sharif (then Prime Minister) as the major culprit of the debacle. Sharif, however, in 1999 was actively engaged in reopening diplomatic channels with India through then Indian Prime Minister Atul Vajpayee. General Musharraf, who was then Chief of Army Staff, refused to greet Vajpayee at the border ceremony. When the Pakistani army got caught infiltrating in Kargil territory, Nawaz Sharif went to Washington to seek clemency for an action that the military was responsible for. A few months later, Sharif was ousted and Musharraf gained power. Till this day, the Pakistani public refused to digest the fact that the Pakistani military’s Kargil strategy failed due to the military’s lack of prudence.

Fast forward to 2011, and you have a fragile political structure in which the PPP is trying desperately to hang on to its power. Coming into power after 8 years of unpopular military rule, it is remarkable to note that the public as has once again dismissed the civilian government as incompetent. The civilian government, simply put, has no control or say over Pakistan’s military policy. In 2008, President Zardari tried to put the ISI under the control of the interior ministry. However, ISI chief General Athar Abbas rejected the notion within 24 hours, and the matter was never discussed again. Wikileaks also have shown this apparent sensitivity and mistrust between these two entities. In November 2009, Interior Minister Rehman Malik conveyed his paranoia of an ISI takeover of the civilian government to then US Ambassador Anne Patterson. Similarly, Wikileaks have also shown mistrust between General Kiyani and President Zardari, with reports alleging that Kiyani in March 2009 was contemplating removing Zardari with ANP leader Asfandyar Wali Khan for the Presidency. This paranoia, if true, would not have existed in the first place if the institutional political structure were strong enough to resist army pressure. The threat of army intervention in the political sphere is real, and with Bin Laden’s death, it has become even more possible.

Knowing that the PPP is fragile, the military (and the ISI) have collectively been silent over the Osama Bin Laden issue, which can only be described as deeply embarrassing for the Pakistani military establishment. As the United States media has put it, the military has either been complicit or incompetent in this whole fiasco. The military’s silence is eerie, and there is every reason to believe that they will never discuss this issue in public. They might be contemplating ways in which they could eventually deflect the blame upon the civilian government. However, this civilian government is not that of Zulfiqar/Benazir Bhutto or Nawaz Sharif. This civilian government has rarely interfered with the institutional structure of the military. Zulfiqar Bhutto appointed notorious Tikka Khan as chief of army staff and then Zia-ul-Haq as well. Nawaz Sharif sacked a Chief of Army Staff, and Benazir Bhutto actively tried to change ISI’s structure in 1990. This civilian government has no serious charges in terms of manipulating the military structure, which is why the military for the first time may be caught in a predicament.

From the perspective of the military though, the silence is the best policy they can advocate towards. Already, the opposition parties and the public are deflecting most of the blame on the civilian government for being “corrupt” and for selling its sovereignty. Few in Pakistan have asked the military to provide answers, and even those questions are mostly deflected by the public assertion (including Najam Sethi) that the military was in the know-how of the U.S. raid in Abbotabad. Even worse is the public answer that asserts that the military knew where Bin Laden was hiding, which shows that the public is willing to incriminate the military at the cost of them appearing incompetent. The myth of the military has scarred the public mindset to the extent that we the people refuse to protest or seek active questions against the strategy of the military. The “myth” ensures that the public never thinks of military as an entity that can be incompetent entity that can harm Pakistan’s interests (speaking strictly from a strategic sense). The military is in a tough predicament, yet the “myth” will ensure that the civilian government once again takes its share for most of the blame in Pakistan.

 

Diplomatic Immunity

Raymond Davis Diplomatic Passport

Many are requesting that the courts decide the fate of Mr Raymond Davis. Others seem to be using the issue as a way to blacken the eye of the world power just to bring them down a notch or two. The second reaction is unconstructive and actually hurts our own image in the world more than the Americans. The first, however, missing the important point of diplomatic immunity.

The Interior Ministry has already determined that Raymond Davis was carrying a diplomatic passport and a visa that was issued following a security clearance. The US has invoked Article 38 of the Vienna Convention and requested that Raymond Davis be released to their custody. So regardless of what the police investigators or the LHC thinks, this is a case that hinges on the question of diplomatic immunity.

Ambassador Zafar Hilaly describes the question of diplomatic immunity as the responsibility of the Foreign Office, not the courts.

The fact of the matter is that Raymond Davis is, by the reckoning of most neutral observers, a ‘diplomat’ for the purposes of Article 38 of the Vienna Convention and hence entitled to diplomatic immunity. No court needs to decide that, only the Foreign Office does, because his status is a question, not of law, but of fact, and by refusing to do so the FO has landed the government in a far greater mess than it would have been in had it alluded to international law and said that, given the circumstances, it was helpless. Our politicos, too, would have had to lump it. Because what is likely to happen is that either the US shuts shop and stops dealing with Pakistan or, alternatively, informs Pakistan that the immunity of its diplomats in the US will be withdrawn. Of course, for good measure, it can stop issuing visas for the 1,800 or so diplomatic and official Pakistani passport holders who travel to the US annually.

At this time, it would be wise to revisit what exactly diplomatic immunity means. Let’s first dismiss misunderstandings by explaining what it is not. Diplomatic immunity is not a ‘blank check’ to commit crimes in another country. Rather it is an agreement between countries that they will not prosecute each others diplomatic officials for crimes, choosing instead to either overlook the act in minor cases such as traffic violations or expel the official in more serious cases.

Najam Sethi has been doing a great job of explaining the intricacies of diplomatic immunity on his new show Aapas Ki Baat. Blogger XYZ of Cafe Pyala covered the basic points a few days ago.

1) Irrespective of a non-diplomatic visa (which seems to have become the main issue for some channels), a diplomatic passport – as the US claims the killer has – may still grant the man known as Raymond Allen Davis* diplomatic immunity under the Vienna Convention. [*This is assumed to be a fake name.]

2) The Vienna Convention actually grants immunity to diplomats (and their technical staff) from ALL criminal prosecution. No diplomat or foreign mission operative may be arrested by a host country, no matter what their crime (except in cases of property). (You may verify this from Clause 29-31 of the Convention.)

3) Since the American government has claimed diplomatic immunity for Davis, the Pakistan government must either accept their claim or the Pakistan Foreign Office – as the constitutional authority to decide such matters – must dispute this status. The courts are not the arbiters of the Vienna Convention under Pakistan’s own constitution.

4) By claiming to leave the matter in the hands of the courts or the Punjab government, the Pakistan Foreign Office – and by extension the Federal government – is in violation of Pakistan’s own constitution which details how issues of diplomatic immunity are to be handled. The Punjab police and Punjab government were wrong only to the extent that they should have referred the matter immediately to the US Consulate or the Pakistan Foreign Office before arresting Davis.

5) There are some 50-60 such contractors working for the US Embassy in Pakistan, who are all Blackwater-type operatives and whose job involves spying and ferreting out leads to trace Al Qaeda and Taliban leadership. Under a secret treaty signed by the military government of General Pervez Musharraf, a Joint Special Operations Command (JSOC) allows such operatives to work in Pakistan as well as Afghanistan. The important thing to remember here is that the military and the intelligence agencies are fully on board about this and know full well the mandate of these operatives. (This claim by Sethi, if true, of course flies in the face of those who have recently been painting Pakistan ambassador to the US Husain Haqqani as the principal villain in granting visas to these operatives, as if such visas are not overseen and approved by the ISI. It also means that those who point out that the Vienna Convention applies only to the discharge of official duties by diplomats and that Davis could obviously not be on any official mission at Mozang Chowk in Lahore, could be countered by the simple assertion by the US Embassy that he was.)

6) In case the Pakistan Foreign Office does decide to dispute diplomatic immunity to Davis, it will probably have to bear the brunt of reciprocal action from the US for reneging on a bilateral / international treaty.

7) Even if diplomatic immunity is denied to Davis, he will most probably be acquitted by the courts since his plea of self-defence will be very strong. As evidence for this contention, Sethi cited his own information that the two men killed by Davis were indeed brandishing weapons, that they were actually shot in the chest or on the side (contrary to news reports of their being shot in the back) and the context of previous attacks on foreigners in Pakistan and the atmosphere of fear that they have created.

Another point which should be considered is that diplomatic immunity works because it covers both countries involved. That means that our officials in America will be given the same treatment as we give. And as Ambassador Zafar Hilaly admits, we are doing the exact same thing, as are all countries. This is the cat-and-mouse game of diplomatic relations.

Of course, it is lamentable that nations lie and dissemble, and want gunmen and sleuths to be treated on par with diplomats in order to enable them to claim immunity from prosecution. But then, welcome to the real world. Lest we think we are any better, we have several Raymond Davis types in our missions abroad, trying to collect the same kind of information that he was. And, now and then, they too get caught and end up being repatriated, albeit without anyone being any the wiser.

Do you really believe that we don’t have our own Raymond Davis’s roaming in Washington, London, and Berlin? If that was the case, we should be taking the intelligence agencies to task for a failure to protect the national interests.

And while I know that it is quite the fashion to pretend that only angels come from the land of the pure, let us face the fact that we have cashed in some diplomatic immunity ourselves from time to time.

Coming to Pakistani diplomats invoking diplomatic immunity, let us recall the case of our Ambassador to Spain, Mr. Haroon-ur-Rashid Abbasi, who Pakistan withdrew from his post in 1975 without allowing prosecution when heroin was discovered in his suitcase.

Let us also recall the case of our longtime permanent rep at the UN, Ambassador Munir Akram in 2003 who was accused of assault by his then girlfriend. The US also asked Pakistan to waive immunity in that case, which Pakistan did not oblige. (The case was eventually settled when Mr Akram persuaded his girlfriend to withdraw the charges against him).

The Americans requested Pakistan to waive diplomatic immunity in the case of Ambassador Munir Akram, and we did not oblige their request. This was the right thing to do. Today, we are requesting that the Americans waive diplomatic immunity. Why would they?

Should Raymond Davis, or anyone, be allowed to come to our country and shoot us? Absolutely not. The government would be right to expel him from the country and issue a stern warning to the American embassy to ensure that their officials, advisors, and contractors are obeying the law.

Diplomatic immunity always sounds outrageous when the other guy invokes it. But it is important nonetheless. The fact is that we don’t know what will come in the future for our officials serving overseas, and we want to ensure that they are protected in any event. What happened on the street in Lahore is a tragedy. But let’s not take this tragedy of individuals and amplify it into a tragedy of nations.

Musharraf: Swiss Cases Are False

In a stunning admission today, Pervez Musharraf admits in an interview with Daily Express that the Swiss cases and other cases against Benazir Bhutto and Asif Zardari were false cases that could be proven in neither Swiss nor Pakistani courts.

Former military ruler Pervez Musharraf has said that graft cases against slain PPP chairperson Benazir Bhutto and her spouse Asif Zardari in Switzerland’s courts were not proven.

In an exclusive interview with Daily Express, Musharraf revealed that a letter was also written to Swiss authorities during his regime showing displeasure at the lengthy trial.

He said the rounds of negotiations he held with Benazir Bhutto were always one-on-one.

He said people on TV talk shows make noises about NRO and talk incessantly about the deal even though they know nothing about the facts.

Replying to a question, he said his meetings with Benazir Bhutto in Abu Dhabi used to span three to four hours, and they were always one-on-one. Rehman Malik accompanied the PPP leader but did not participate in the negotiations.

He recalled that when in the first round of talks Benazir asked for abolition of 58-2 (b) “I refused point blank”. He said when talking about the cases instituted against her during Nawaz Sharif government, Benazir used to become misty-eyed.

The ex-president said that the cases against Benazir Bhutto and Asif Zardari were neither proved in Swiss courts nor in Pakistan’s, while both were acquitted in many cases.

He said he had written to the Swiss courts that their performance was even worse than Pakistani courts as they failed to decide the cases, “but the fact of the matter is that there was nothing in those cases”.

Precisely for this reason, Musharraf continued, he presented details of his talks with Benazir before his political friends, including Chaudhry Shujaat and Pervaiz Elahi. Among the points he presented included ending of cases against Benazir Bhutto and her spouse and setting aside the bar on becoming prime minister a third time.

The Chaudhry brothers, he said, reacted by saying that the cases be dropped but the bar on third-time premiership should stay or the Q league would lose elections.

Meanwhile, Interior Minister Rehman Malik has said there used be a concluding session on both sides after the meetings between Benazir and Musharraf and follow-ups by the nominees of General Musharf “and me in Dubai and London based on the minutes of the meetings drafted by Benazir and myself”.