The Raymond Davis killings have forced the increasingly uneasy Pakistan-US relations into another tight corner. The ruthless killing of three Pakistanis followed by the heart wrenching suicide of the 18-year-old Shumaila, the desperate widow of one of the victims, has transformed a macabre tragedy into a test of national resolve and the right of Pakistani’s to life. If mishandled, this crisis harbours the serious potential of proving a catalyst for major unsettling developments within Pakistan. That the majority of Pakistanis love to hate Americans is a proven sombre statistic and Shumaila’s needless death is bound to further inflame passions. In her last and widely televised statement before death, the young woman said that she was frustrated by the total absence of any meaningful action against the arrested American and all she wanted was justice for the wanton killing of her husband. Her death could easily transform this matter of the State Vs Raymond Davis into that of people Vs the State. According to available details, what really stands between Raymond Davis and his deserved conviction is any lateral diplomatic immunity extended by a browbeaten Pakistani government. The critical issue which arises now is: Can Raymond walk away with murder on the crutches of the much touted Vienna Convention?
The understandable emotional outburst of the people notwithstanding, the situation warrants a dispassionate view of the rights of the Pakistani citizens enshrined in the Article 9 of the Constitution of Pakistan. The Article states that, “No person shall be deprived of life or liberty save in accordance with law”. Bringing the solemn state guarantee to protect the life and liberty of all citizen of Pakistan, in a non-discriminatory fashion. This also means that it is the duty of the state to protect the ‘innocent’.
As the case, details of the State Versus Raymond Davis unfold, they beg the question as to what are the legal implications of the case? The case is about the murder of three innocent Pakistanis at the hand of the so-called diplomat, whose diplomatic credentials are still to be established and proved. The central questions are whether one ‘diplomat’ while in a country on a visit visa, can be considered a diplomat? and whether the Vienna Convention grants a carte blanch to do anything to anyone deemed to be a diplomat? These are the questions of law for the courts to decide. It may be pointed out however that given the fact that the Pakistani diplomatic and consular privileges Act 1972 is already in place, the legal outcome will be shaped by the statutes of the domestic law, which enshrines the convention and not vice versa.
According to the domestic law, the accused now stands liable for four murders, two by the extra-judicial and terrorist activity carried out by direct fire in a public place by the accused and the other two dying as an indirect consequence of the same event. The legal basis for this are rooted in Article 41 of the Act which states that the diplomatic agent shall enjoy immunity from criminal jurisdiction of the receiving state except ‘in the case of grave crime and pursuant to the decision of competent judicial authority’.
This article clearly establishes the writ of the Pakistani judicial process and courts on the matter at hand. Furthermore, Article 43 of same Act states that immunity from jurisdiction is exempted in a case of civil action, arising out of damage caused by a third party from ‘an accident in the receiving state caused by the vehicle, vessel or aircraft.’ In addition, Article 45 sub- article 4 clearly protects judicial process in the receiving state. This when seen with the much trumpeted Article 37 of the Act states that the privileges given to the diplomatic agent, in this case the administrative and technical staff, will not be exempt from the civil and administrative jurisdiction of the receiving state specified in Paragraph-1 of Article 31 shall not extend to acts performed outside the course of their duties or consular functions.
In short, the domestic law clearly places the criminal act carried out by Mr Raymond Davis as a crime, punishable under local law, making the case of diplomatic and non-diplomatic status, as irrelevant to the current ongoing judicial process.
The issue which is of great concern and surprise, is the illegal possession of a weapon carried out by the accused, punishable under the provisions of the Arms Ordinance of 1965, taking law into his own hand to punish others, an act punishable under section 7 of anti terrorism act 1997; intentional murder of two innocent persons, punishable under section 302 of Pakistan penal code and the murder of the third innocent person by the rash and negligent driving of Mr Davis’s co-accused, who is still an absconder, punishable under Section 279 and 320 of Pakistan Penal Code. This would further complicate the role of the consulate itself, which is harbouring an absconding accused, just to save his skin from punishment, which is also punishable under Section 216 of the Pakistan Penal Code.
Last but not least, the latest crime in the sting of the innocent murders, is the death of the victim’s wife Ms Shumaila through committing suicide; considering herself as helpless and in despair on the US insistent to release the accused, clearly constitutes an offence of committing Qatal Bis Sabab punishable under Section 322 of Pakistan Penal Code.
Therefore, the matter is not that of Davis being a diplomat or not but of committing a string of heinous crimes against innocent people, and violating the basic human rights of the people of Pakistan as protected under Article 8 to 28 of the Constitution of the Islamic Republic of Pakistan. The obedience to the constitution and law as under Article 5 sub article 2 of the Constitution is the inviolable obligation of every citizen where ever he may be, and of every other person for the time being within Pakistan.
The stance taken by the accused of self defence will hardly be helpful or beneficial to him having been exceeding the authority and it is yet to be proved as to whether, there was any attempt or any action by the deceased persons on the accused, requiring and justifying such extreme forceful action. The scene does not support the questioned action of the accused in any manner whatsoever nor the act of indiscriminate firing upon both the deceased persons could be defended easily. The entire burden is now upon the accused to establish his legal (diplomatic or non-diplomatic) status in the Country; the purpose and the nature of his activity and the presence at that very place; justification to keep an illegal weapon; self defence; taking photographs of deceased; escape from the venue; threatening and harassing the traffic wardens and inviting another vehicle to come rashly and cause death of another innocent person.
Of course, it is a very heavy burden upon his shoulders to answer such legal questions. It cannot be overlooked that the material recovered from his possession during the course of investigation has made him highly suspicious. It is not easy to answer why he was having such material and the information which ostensibly did not fit with his stated official duties. The public sentiments on the occurrence are natural and understandable. It is the duty of the Government to investigate the case deeply without getting pressurised or harassed from any side because now the nation is very vigilant and highly concerned.
The simple fact is that Raymond Davis is not a diplomat, period. And even if he were, under the Pakistani law which takes precedence over the Vienna Convention, he does not get to walk away without standing trial for the cold blooded murders. Any leniency towards the accused, for any reason whatsoever, shall surely sire a volatile public reaction. Foreign relations must be based upon equality and sovereignty, and not built on the deaths of innocent citizens.
