Raymond Davis and the Vienna Conventions

Written by Anees Jillani  •  Region  •  March 2011 PDF Print E-mail

The fact that President Obama himself has asked Pakistan to release Raymond Davis is leaving the Government of Pakistan with not much choice. If the Gilani government chooses to ignore the President’s request, the latter will appear like a lame-duck ruler and would be criticized by his opponents and the media. If the Government in Pakistan accedes to his demand, it would then be ridiculed locally for acting like a satellite state of the United States.

The issue is not as complicated as it has unfortunately been made out to be by the incompetent handling and this is not the first time that such a thing has happened during the current government’s tenure.

In 1972, the Parliament passed the Diplomatic and Consular Privileges Act which literally consisted of not more than 500 words; despite this, our policy-makers have failed to properly interpret it.

The Act was introduced by the Bhutto regime to give effect in Pakistan to the Vienna Convention on Diplomatic Relations 1961, and the Vienna Convention on Consular Relations 1963. The Act says that the provisions of the Vienna Conventions shall have the force of law in Pakistan. The relevant excerpts of the Conventions are attached to the Act as schedules.

Section 4 of the Act says that if any question arises as to whether any person is entitled to any privilege or immunity under the Act, a certificate issued by, or under, the authority of the Federal Government stating any fact relating to that question shall be conclusive evidence of that fact.

The present legal imbroglio could simply have been avoided by the Federal Government issuing such a certificate. The Foreign Office failed to issue such a certificate and the delay resulted in creating confusion amongst the media and the general public. A quick action on the Government’s part could also have prevented American pressure.

It appears that the Government literally was seeking a green signal from the U.S. Embassy in this regard and could not muster the courage itself to issue such a proclamation on its own. It cannot be difficult for the Foreign Office to decide as to whether a particular person is a diplomat or not; if it is difficult, then we surely have a problem on our hands.

Article 29 of the 1961 Vienna Convention which has been given the force of law through the 1972 Act says that “the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.” This immunity incidentally extends to members of the administrative and technical staff of the mission, together with members of their families, and even members of the service staff of the mission who are not nationals of or permanently resident in the receiving State.

The term “the person of a diplomatic agent” is defined to mean a member of the diplomatic mission. It means that a member of a diplomatic mission cannot be arrested or detained. And if a question arises as to whether a person is such a member, then it has to be determined on the basis of the certificate issued by the federal government.

A diplomatic agent also enjoys immunity from the criminal jurisdiction of the receiving State, unless an action is involved which relates to any professional or commercial activity which falls outside his official function; even in the latter eventuality, the diplomat cannot be arrested or his residence raided. Immunity under the Vienna Convention, however, does not exempt the diplomat from the jurisdiction of the sending State which means that he can be prosecuted for the crime in question in his own state.

Another thing that the Pakistan government apparently did not think about was that it could have asked the United States to waive the immunity in view of the nature of the crime. This would have moved the ball into the American court and the pressure would have been on them, instead of us.

 The diplomatic immunity comes into force from the moment the diplomat enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs.

 The Vienna Convention on Consular Relations 1963, which has also been given effect of law by the 1972 Pakistani Act, basically gives the same kind of immunity to consular officers as the 1961 Convention, except that it permits arrest or detention pending trial, in the case of a grave crime, but only pursuant to a decision by the competent judicial authority.

The Government keeps saying that the matter is to be decided by the courts and it will adhere to whatever is directed by them. As can be seen from the above provisions of the Vienna Convention, the local courts lack the jurisdiction in this matter and it should actually be the Government of Pakistan and not the courts that must decide this issue.

It can start by determining as to whether Raymond Davis is a diplomat or not. Either way, it should issue the certificate under section 4 of the Diplomatic and Consular Privileges Act 1972 (No IX). If he is a diplomat, then he will have to be released and Pakistan has violated the provisions of the Vienna Convention as he should not have been arrested in the first place. As opposed to this, if Raymond Davis is certified to be not a diplomat, then Pakistan is within its right to proceed in accordance with law.

Either way, this is not a matter that can be decided in the media. It is something that basically has to be determined by our Foreign Office, and the sooner it decides, the better it is for the nation, and for the Pakistan-U.S. Relations.

Anees Jillani is an advocate of the Supreme Court of Pakistan and a member of the Washington, DC Bar. He has been writing for various publications for more than 20 years and has authored several books.

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