Legal circles have noted with great anguish and expressed its concerns
on the extra judicial killing of at least three Pakistani citizens by
a foreigner Raymond Davis and his colleagues at Lahore(Pakistan) on
Thursday 27 Jan 2011. Public has condemned in the strongest words the
free movement of diplomatic staff without protocol and prior
permission bringing public safety and state security to a questionable
risk quite contrary to the spirit of Vienna Convention and Counsellor
relations 1961 and 1963. Lawyers have sought Justice in the killings
of 3 Pakistani citizens at Lahore involving USA mission staff
demanding the Chief Justice of Pakistan and the Govt of Pakistan to
ensure justice which is seen to be done to avoid miscarriage of
justice, and inequality. This is the biggest test of the current civil
administration since its election on February 2008, as if they are a
little negligent, it will pave way for public outcry akin to Tunisia
which have the potential to smite all who stand in between justice,
fair play, equality and the free motion of the law of the land. All
those involved in such crimes must be brought to books in accordance
with the law of the land if they are not registered diplomats as
required by the law. Any back dating will have a disastrous effects on
the state relations and public confidence on Govt dealings with USA
and will attract a backlash due to foreign interference in Pakistan.
It reminds us that no leniency was shown in the case of Dr Afia
Siddiqui and law of the land prevailed in USA so must be the case in
this murder probe and stern action must be ensued against perpetrators
to avoid public outrage due to prevailing hatred present in the
society due to ongoing war on terror. Critics observe that criminals
must be treated as criminals not as ‘Pakistani’ criminals and or ‘USA’
criminals and same treatment must be bestowed what would have been
meted out to any Pakistani citizen if involved in similar charges in
USA. Only justice may provide temporary relief in this tragic episode.
We observe that Vienna convention gives immunity to only listed top
level diplomats and all at sundry at embassy is not automatically
exempt or immune from criminal prosecution.
It is also noteworthy that Western laws are very clear in this regard
as we saw in January 2011,that an Indian diplomat Anil Verma left UK
due to fear of prosecution when his wife complained of a domestic
violence and a debate ensued in UK inviting the Govt to probe the
matter despite diplomatic immunity. On 20 October 2010 a Saudi prince
Saud Abdulaziz bin Nasser al Saud has been jailed for life for
murdering his servant Bandar Abdulaziz, 32, who was found beaten and
strangled on 15 February 2010 at a hotel in central London. The prince
was convicted and sentenced on the murder charge of his servant
despite claiming immunity. Case of Georgian diplomat convicted in high
speed crash killing a teen age U.S girl in 1997 and Libyan embassy
debacle where constable Yvonne Fletcher was shot dead in 1984 which
resulted in 15 years diplomatic relation between UK and Libya are
examples which guide us to adopt the way of sanity than unrest,
bloodshed.
Raymond’s case cannot go to ICJ until Pakistan agrees, local courts
are to rule on this case if he is not a diplomat like Dr Afia
Siddiqui’s case which never went to ICJ despite clear conflicts. The
proposed appplication of a citizen of USA should be detested as
submiting to the jurisdiction of that court will negate Pakistan’s
right to try any criminal in their court.Compare it with Dr afia
Siddiqui, if it proves that she was kidnapped, can Pakistani court
take cognisance and recover her, even then ICJ will have to be invoked
for which consent of both countries will be required.Any aggrived in
Lahore killing may also invoke ICJ for relief in the matter of the
alleged killing, conspiracy and compenation with the consent of
contarcting states”.The ICJ is the principal judicial organ of the UN.
It has a dual role, to settle in accordance with international law the
legal disputes submitted to it by “states,” and to give advisory
opinions on legal questions referred to it “duly authorised
international organs and agencies.” The court is competent to
entertain a dispute “only” if the states concerned have accepted its
jurisdiction in one of three ways that are specified in the ICJ’s
jurisdiction provisions. These need not be mentioned here in detail as
they are not applicable in this case for reasons mentioned further.
However, in brief, the competency of the court is activated in
disputes between states where certain arbitration provisions between
state agreements specifically refer disputed matters to the ICJ when
states are embroiled in a dispute. In doubtful matters the court will
decide for itself whether it has jurisdiction to hear and decide on
the dispute. This is the pertinent issue in this case. The ICJ’s role
is to decide in accordance with international law disputes of a legal
nature that are submitted to it by states. Therefore, only States may
be parties to cases before the ICJ, this is in accordance with its
role as stipulated in the opening paragraph of Article 1 of the UN
Charter. It is conceivable that such proceedings could be between a
state on one hand and an international organisation, a collectivity or
an individual on the other. Within their respective field of
jurisdiction, institutions such as the Court of Justice of the
European Communities or the Eurpoean Court of Human Rights in
Strasbourg would be entitled to hear disputes as mentioned above. This
is not the cas, however, with the ICJ, to which no case cann be
submitted unless both applicant and respondent are States. Despite
various proposals and even the existence of a treaty providing for the
possibility of proceedings before the court between an internatiional
agency and a state, neither the UN nor any of its specialised agencies
can be a party in contentious proceedings before the ICJ. As for
private interests, these can only form the subject of proceedings in
the ICJ if a state, relying on international law, takes up the case of
one of its nationals and invokes against another state the wrongs
which its national claims to have suffered at the latters hands, the
dispute thus becoming one between states. Like any other court, the
ICJ can only operate within the constitutional limits that have been
laid down for it. The registry receives written or oral applications
from private persons daily. However, heart-rending, however
well-founded such applications may be, the ICJ is unable to entertain
them and a standard reply is always sent; “UnderArticle 34 of the
Statute only States may be parties in cases before the court.”
Therefore issues of jurisdiction, exhaustion of appeal rights in the
local jurisdiction, or merits of the case need not be further dwelled
upon as any case brought by US involves allegedly Pakistani state and
they may not be brought to the jurisdiction of the ICJ’sremit without
consent of those parties. I strongly oppose to submit to the
juridiction of ICJ and diasgree any officials attending that court
hearing and all parties must respect and submit to the jurisdiction of
Pakistani Superior Courts and if any dispute other options of
prisoners exchnage, pardon and sharia compliance are available as a
means to remove the deadock, if any. If submitted against the public
opinion to ICJ now then the judgemnet will have to be accepted by both
parties and Pakistani courts will never be able to try any foregner in
their jurisdiction as despite willingness visiting states will protect
their citizens whether accused or otherwise and will take the matter
to ICJ for protection, delay and recovery of their citizens and
compensation will be left as an only option with regret and repentance
which will be a dangerous trend for a newly born free and independent
judiciary of Pakistan. In this context murder whether intentional or
unintentional is a serious crime against state and unless proper probe
is conducted & completed and a judicial process takes place, the
arrested US diplomat must not be allowed to leave the jurisdiction
without judicial oversight as no one is above the law as per the
Constitution of Pakistan 1973. It will be a survival test of the govt
of Pakistan in the light of Dr Afia Siddiqui’s arrest, detention,
trial, conviction and sentence post severe protest of Pakistani public
and still United States law of the land prevailed and so must be the
case in respect of the law of Pakistan. Having said that parity must
be maintained ensuring Raymond Davis and his colleagues a counsellor
access forthwith, and a fair trial, with access to their lawyer of
choice with interpreter, food and medical aid. There are solutions
emanating from conviction of Raymond whether he admits it, or State
prosecution proves it beyond a reasonable doubt. Without conviction
all solution promotes anarchy, dissatisfaction and
Barrister Amjad Malik, MA, LLM is a life Member SCBA (Pakistan) and a
Chair Association of Pakistani lawyers (UK).
