Not for the court to decide

Anxiety for justice cannot be allowed to supercede a mutually-agreed-upon international legal framework.

The latest news reports emerging from the Foreign Office lend credence to the stance adopted by the US officials that Raymond Davis was notified as a member of the technical and administrative staff of the US mission in Pakistan and is indeed entitled to immunity from criminal prosecution in Pakistan.

Under Article 37 of the 1961 Vienna Convention on Diplomatic Relations, members of technical and administrative staff of foreign missions are entitled to absolute immunity from criminal prosecution in host states. Meanwhile, some media pundits continue to take the position that the matter remains far from resolution and the situation remains as unfavourable for Raymond Davis as ever, and it is up to the court to decide his fate. However, such an assertion is based on a misreading of relevant law and facts of the case available in the public domain.

Former foreign minister Shah Mahmood Qureshi has told reporters that he is of the opinion that Raymond Davis was not entitled to immunity. His opinion, he claims, is based on a briefing rendered by our Foreign Office. Some media commentators and reporters are of the opinion that once the matter is taken up by the court, Shah Mahmood Qureshi may be called to testify. This is contrary to what the law prescribes.

The question of determining the status of members of staff of foreign missions and foreign consulate posts is governed by the Vienna Convention on Diplomatic Relations of 1961, and the Vienna Convention on Consular Relations, 1963 respectively, both of which are part of Pakistan’s Diplomatic and Consular Privileges Act, 1972. Both Vienna Conventions prescribe that it is the prerogative of the sending state to determine the status of its staff posted in the host state. The requirement is that the sending state has only to notify the host state.

The impression that Raymond Davis’s accreditation was a matter that was to be decided by the Foreign Office of Pakistan is entirely contrary to the law. The Vienna Convention of 1961 prescribes that the question of accreditation is something to be decided by the sending state. The receiving state can either simply refuse such a posting or accept it, that is, it cannot change the status and there is no room for ambiguity.

Further, based on the letter and spirit of the Vienna Conventions, Section 4 of Pakistan’s Diplomatic and Consular Privileges Act, 1972, prescribes that if any question arises regarding whether or not a person is entitled to any privilege or immunity, a certificate issued by, or under, the authority of the federal government shall be conclusive evidence. There is absolutely no room for, or discretion available to, the court to go beyond the evidence presented by the federal government.

The Vienna Conventions and Pakistani law are both based on simple common sense — that matters pertaining to diplomatic relations are for the states to decide. It is not the court’s business to go beyond the evidence submitted by the government in the form of a certification. However, the government can, in its own discretion, submit before the court the notification by the US authorities of Raymond Davis’s posting as a member of the technical and administrative staff of the US mission.

While anxiety for justice to be done is understandable, this cannot be allowed to supercede a mutually-agreed-upon international legal framework, adopted on the basis of collective wisdom of the comity of nations. The Raymond Davis affair is the last thing an already crisis-ridden Pakistan needed. The sooner the matter is resolved, the better it is for the people of Pakistan. A lot will depend on the court in determining the direction of the crisis, which has seriously compromised relations between the two states.

Published in The Express Tribune, February 18^th, 2011.