Diplomatic or Consular Immunity for Criminal Offenses

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By
Dr. Tariq Hassan*

Abstract

(Raymond Davis, a United States national, killed two Pakistanis in Lahore on 27 January 2011—albeit allegedly in self-defense. This case had the potential of becoming a major foreign policy issue between Pakistan and the US.   Even though the matter has been resolved privately through a compensation scheme, the handling of the Raymond Davis case has generated a lot of controversy and the outcome is not generally accepted by the Pakistani public that still seeks answers to the host of issues—both factual and legal—about Raymond Davis’ official status and immunity, if any, arising there from. The issues lingering in everyone’s mind are:

  1. Whether Raymond Davis was simply a contractor assigned to the US Consulate in Lahore or Embassy in Islamabad?
  2. Whether Raymond Davis was a consular officer or an employee or member of the consular staff?
  3. Whether Raymond Davis was a diplomatic agent or a member of the administrative and technical staff?
  4. What was the applicable law under the circumstances?
  5. diplomatic or consular immunity in case of criminal offences?
  6. Who is empowered to grant immunity under Pakistani law—the executive or the courts?
  7. Does the US have any obligation or liability for the criminal offense committed by its diplomatic and consular officers and employees?
  8. Should the US have waived immunity in view of the seriousness of the offense? Alternatively, should Pakistan have requested such a waiver?
  9. Whether and to what extent is the U.S. Consulate or government responsible or liable for the additional death of the pedestrian who was also allegedly killed by a speeding car from the US consulate which came to help?

This article is intended to provide general comments on the issues raised above (except for the last issue which raises problems that have not been dealt with in this article and would need to be considered separately) in light of the information available in the public domain. Author)

1.  Prologue

Raymond Davis, a United States national, killed two Pakistanis in Lahore on 27 January 2011—albeit allegedly in self-defense. According to BBC news: “An American official in the Pakistani city of Lahore has shot and killed a Pakistani motorcycle rider and his pillion passenger, police say. They say that the consular employee fired his pistol in self defense. US embassy officials confirmed that an American was involved. The men were pursuing the American in his car when the incident happened. A pedestrian was also killed by a speeding car from the US consulate which came to help, police say.”1 The incident sparked anti-American sentiments in Pakistan and become an issue of public interest that was constantly discussed and debated in political circles and the media both in Pakistan and the United States. Raymond Davis was charged with murder by the Pakistani police and was incarcerated in a local jail. A criminal case was instituted against him in a trial court in Pakistan.

The Raymond Davis case had the potential of becoming a major foreign policy issue between Pakistan and the US. The resolution of the issue was compounded by subsequent reports in the media that Raymond Davis is a CIA agent who was on assignment at the time of the double murder.2 However, this would not, in the ultimate analysis, have mattered if he had diplomatic status since spying by a diplomatic agent is one of the criminal offenses covered by diplomatic immunity. According to established practice the diplomat may, when apprehended, be transferred by the sending State, or if not, he is likely to be declared persona non grata by the receiving State.3

The U.S. actively sought the release of Raymond Davis on the pretext that he had diplomatic immunity. Efforts were made at the highest levels of government in the U.S. for his immediate release. President Barack Obama calling Raymond Davis “our diplomat” urged his release on the ground of diplomatic immunity.4 Senator John Kerry, Chairman of the U.S. Senate Committee on Foreign Relations, also made a special trip to Pakistan to secure Raymond Davis’ release. In an effort to facilitate the resolution of the issue, Senator Kerry indicated that the U.S. Department of Justice would investigate the shooting if Raymond Davis was released. But while Senator Kerry made this conciliatory gesture, another member of the U.S. Congress introduced a provocative resolution in the U.S. House of Representatives calling on the Government of Pakistan to release Raymond Davis. This resolution, which was submitted to the Committee on Foreign Affairs, resolved: “That the House of Representatives calls on the Government of Pakistan to release Raymond Davis in accordance with international standards of diplomatic protocol and, until such time, all United States monetary assistance to Pakistan should be frozen.”5

While keeping tight-lipped about its position on the question of immunity, Pakistan sought to explore alternative dispute settlement explosive matter. Addressing the issue at the highest level, the Prime Minister of Pakistan, Yousaf Raza Gilani, left the matter to be decided by the court but suggested that it could be resolved under Islamic/Shariah law if compensation is offered to the families of the victims killed in the shooting by Raymond Davis.6

The case has accordingly been decided by the Pakistani trial court through the application of Islamic law principles whereby the heirs of the victims have been compensated and Raymond Davis has been released. Even though the matter has been resolved privately through this compensation scheme, the handling of the Raymond Davis case has generated a lot of controversy and the outcome is not generally accepted by the Pakistani public that still seeks answers to the host of issues—both factual and legal—about Raymond Davis’ official status and immunity, if any, arising there from. The issues lingering in everyone’s mind are:

  1. Whether Raymond Davis was simply a contractor assigned to the US Consulate in Lahore or Embassy in Islamabad?
  2. Whether Raymond Davis was a consular officer or an employee or member of the consular staff?
  3. Whether Raymond Davis was a diplomatic agent or a member of the administrative and technical staff?
  4. What was the applicable law under the circumstances?
  5. What is the necessary and proper legal process for dealing with diplomatic or consular immunity in case of criminal offences?
  6. Who is empowered to grant immunity under Pakistani law—the executive or the courts?
  7. Does the US have any obligation or liability for the criminal offense committed by its diplomatic and consular officers and employees?
  8. Should the US have waived immunity in view of the seriousness of the offense? Alternatively, should Pakistan have requested such a waiver?
  9. Whether and to what extent is the U.S. Consulate or government responsible or liable for the additional death of the pedestrian who was also allegedly killed by a speeding car from the US consulate which came to help?
  10. This article is intended to provide general comments on the issues raised above in light of the information available in the public domain. The first three issues deal with the factual determination of Raymond Davis’ status—necessary for the identification of the applicable legal regime. The next five issues deal with the elucidation of the applicable law and legal process necessary to give effect thereto. The last issue raises problems that have not been dealt with in this article and would need to be considered separately.

2. Factual Determination of Status

On the very day the incident occurred, Mr. Philip J. Crowley, the U.S. Assistant Secretary of State, in his Daily Press Briefing in Washington, D.C. confirmed that “an employee at the U.S. Consulate in Lahore was involved in an incident today. It is under investigation. We have not released the identity of our employee at this point. And reports of a particular identity that are circulating through the media are incorrect” (emphasis added).7 Mr. Crowley skirted the question as to whether Raymond Davis had diplomatic immunity.

Subsequently, however, the U.S. Government claimed diplomatic immunity for Raymond Davis. In a Press Release, dated 29 January 2011, the US Embassy in Islamabad, without naming Raymond Davis, indicated that: “The diplomat, assigned to the U.S. Embassy in Islamabad, has a U.S. diplomatic passport and Pakistani visa valid until June 2012” and called “for the immediate release of a U.S. diplomat unlawfully detained by authorities in Lahore.”8 It further asserted that: “When detained, the U.S. diplomat identified himself to police as a diplomat and repeatedly requested immunity under the Vienna Convention on Diplomatic Relations.”9

Since then the U.S. Government consistently maintained this position. In a subsequent Press Briefing, Mr. Philip J. Crowley, in contrast to his earlier statement quoted above, emphasized: “He [Raymond Davis]– I’ll just repeat to you what I’ve said all along. He is a U.S. diplomat. He was assigned to the Embassy in Islamabad. He has immunity. And we again call for his release” (emphasis added).10 Although unambiguous about Raymond Davis’s diplomatic immunity this time, Mr. Crowley was still evasive about answering questions regarding the nature of his job at the U.S. Embassy and Pakistan Government’s reluctance to accept his diplomatic status.11

In his third Press Briefing on 16 February 2011, Mr. Crowley was again unable to clarify whether Raymond Davis was a contractor or consular employee.12 To a question as to what exactly was his job, Mr Crowley responded: “He has technical – provides technical services to the – a member of the administrative and technical staff of the U.S. Embassy in Islamabad” (emphasis added).13

Mr. Crowley, while reiterating the U.S. Government’s position regarding diplomatic immunity, stated: “… we believe that diplomatic immunity is in fact – is a fact. It’s not – from our standpoint, it’s not a matter in dispute. It’s certainly not a matter that should be resolved by courts in Pakistan” (emphasis added).  While stressing this fact, however, Mr. Crowley clarified that the U.S. was prepared to investigate this matter—in line with the practice of the United States Government to conduct its own criminal investigation in case of such incidents.14

The Pakistan Government, in contrast to the U.S., had not taken any position or made any official comment publically in this matter. Several important queries regarding Raymond Davis in the question- answer session raised in the Pakistan Foreign Office press briefings remain unanswered.15 The Pakistan Foreign Office Spokesperson’s response has been rather brief and evasive: “Let me briefly say that on the Lahore incident, I am not in a position to comment on any of its aspect. Neither do I have any information to share with you at this stage when the matter, as you all know, is sub judice before the court. We issued a statement at the highest level. Yesterday, the Prime Minister on the floor of the House categorically stated that the law will take it [sic] course. We should therefore respect the legal process.”16  Further questions regarding the continued existence of “a parallel procedure in addition to the established practice, between Islamabad and Washington for posting their officials to each other’s countries as certain people were sent to Pakistan by the US under an agreement during the period of then President Pervez Musharraf” remained unanswered as well. “I am not aware of any such agreement between Islamabad and Washington” stated the Foreign Office Spokesperson.17

The Spokesperson of the Pakistan Foreign Ministry, while reluctant to answer queries about the status of Raymond Davis was quick to contradict reports appearing in the media about any pronouncement, public or official, made by the Foreign Ministry relating to the question of his immunity. According to him “Speculation in this regard is unfounded.”18

Apparently, the U.S. Government, without establishing factual basis, sought to invoke full diplomatic immunity for its national charged with double murder—considered a serious crime in both jurisdictions. It suggested that the Pakistani courts are not the proper forum for resolving this matter and sought executive action towards the fulfillment of Pakistan’s international obligation to grant diplomatic immunity.

It seems that the Pakistani Government, perhaps mindful of the uncertainty of Raymond Davis’s diplomatic status and the probability of a political backlash if he is granted diplomatic immunity, chose to remain silent on the issue and conveniently left the matter to be resolved by the court. The court was expected to examine the positions of Pakistan and the U.S. in light of applicable laws regarding diplomatic and consular immunities and established policies, practices and procedures of both countries in respect thereof.

3. Applicable Laws

Diplomatic and consular immunities are dealt with by the Vienna Convention on Diplomatic Relations, 1961 (Diplomatic Convention) and the Vienna Convention on Consular Relations, 1963 (Consular Convention) respectively. Pakistan has acceded to both these Conventions and has promulgated the Diplomatic and Consular Privileges Act, 1972 (the DCP Act) to give effect to the same. The immunities granted by the Diplomatic Convention and Consular Convention fall into four categories: personal inviolability (freedom from search and seizure), criminal immunity (exemption from detention and arrest or prosecution for criminal violations of host country law), civil immunity (exemption from being sued), and immunity from being required to testify in a criminal or civil proceeding.

The Consular Convention would have been applicable if it had been established that Raymond Davis was a consulate employee as contended by the U.S. initially. The Diplomatic Convention would have been applicable if it had been determined that Raymond Davis was instead a diplomat as contended by the U.S. later. However, if Raymond Davis had been found to be simply a contractor to the U.S. Embassy in Islamabad or Consulate in Lahore, he would not be entitled to any immunity under either the Consular Convention or the Diplomatic Convention. Under the circumstances, he would merely have been entitled to have access to a U.S. Consular Officer.19

  1. a. Consular Immunity under International Law

The Consular Convention provides for the personal inviolability of consular officers: “Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority” (emphasis added).20 It may be noted that it is only consular officers and not consular employees who enjoy this privilege. A consular officer means “any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions”21 and is distinct from a consular employee defined to mean “any person employed in the administrative or technical service of a consular post” (emphasis added).22  Consular employees are not amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions only.23  In any event, the sending State has the discretion to waive any of the privileges and immunities granted by the Consular Convention.24

If  criminal  proceedings  are  instituted  against  a  consular officer, he is required to appear before the competent authorities. Nevertheless, the proceedings are required to be conducted with the respect due to him by reason of his official position and in a manner which will hamper the exercise of consular functions as little as possible. When it has become necessary to detain a consular officer, the proceedings against him are required to be instituted with the minimum of delay.25 In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State is required to promptly notify the head of the consular post.26

Raymond Davis did not appear, from the publically available facts, to be a consular officer. He would, as a person reportedly employed in the administrative or technical service of the U.S. Consulate in Lahore, have been considered a consular employee. As such, he would have enjoyed immunity in respect of acts performed by him in the exercise of consular functions only.

  1. b. Diplomatic Immunity under International Law

The Diplomatic Convention deals with immunities from civil and criminal laws. It clearly provides: “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.”27 It may be noted that this provision only: (i) shields a diplomatic agent from criminal prosecution, and (ii) grants the diplomatic agent jurisdictional immunity in the receiving state. A “diplomatic agent” has been defined by the Diplomatic Convention as “the head of the mission or a member of the diplomatic staff of the mission”.28 The “head of the mission” has in turn been defined as “the person charged by the sending State with the duty of acting in that capacity”29   and “members of the diplomatic staff” have been defined as “the members of the staff of the mission having diplomatic rank”.30 From the publically available facts, it appeared that Raymond Davis was neither the head of the mission nor a member of the diplomatic staff.

Raymond Davis was described as a “member of the administrative and technical staff” of the U.S. Embassy in Islamabad. The “members of the administrative and technical staff” are the members of the staff of the mission employed in the administrative and technical service of the mission”.31 They are extended certain immunities by virtue of Article 37(2) of the Diplomatic Convention, which provides: “Members of  the  administrative and  technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from 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…”. Thus, while limiting the immunity from civil and administrative jurisdiction, the Diplomatic Convention extends full immunity from criminal jurisdiction to members of the administrative and technical staff. Accordingly, Raymond would have enjoyed full immunity from Pakistan’s criminal jurisdiction if his credentials as a member of the administrative and technical staff of the U.S. Embassy in Islamabad had been established by the U.S. Government or certified by the Pakistan Government and accepted by Pakistani courts.

The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.32 Furthermore, the immunity from jurisdiction of diplomatic agents and of other persons enjoying immunity under the Diplomatic Convention may be waived by the sending State.33

The Diplomatic Convention makes it clear that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States”.34 It further provides: “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State…”.35

Mindful of the purpose and spirit of the Diplomatic Convention and the grave nature of the offense committed by Raymond Davis, it would have been expedient for the U.S. to have either waived his immunity or offered to try him itself.

  1. c. Diplomatic and Consular Privileges under Pakistani Law

The provisions of the Consular Convention and the Diplomatic Convention have, subject to the provisions of the DCP Act, been given the force of law in Pakistan.36  While requiring the grant of privileges and immunities provided under the Consular Convention and the Diplomatic Convention, the DCP Act lays down the principle of reciprocity: “If it appears to the Federal Government that the privileges and immunities, accorded to the mission or a consular post of Pakistan in the territory of any State, or to persons connected with that mission or consular post, are less than those conferred by this Act on the mission or a consular post of that State or on persons connected with that mission or consular post, the Federal Government may, by notification in the official State or, as the case may be, from all or any of the consular posts of that State, or from such persons connected therewith as it may deem fit.”37

Regarding the determination of entitlement of any privilege or immunity, the DCP Act provides: “If any question arises whether or not any person is entitled to any privilege or immunity under this 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” (emphasis added).38  This is merely an enabling provision and not a requirement imposed on the government to issue the certificate of entitlement.

In cases where the Federal Government has chosen to issue a certificate regarding any person’s entitlement to any privilege or immunity, the Supreme Court of Pakistan has maintained the conclusive nature of the said certificate. In Ghulam Muhammad vs.  United  States  Agency  for  International  Development  (U.S. Aid) Mission, Islamabad and Another, the Supreme Court held that “the certificate issued by or under the authority of the Federal Government, in respect of diplomatic status of the agency for International  Development  is  conclusive  evidence  of  the  facts stated therein. The said certificate, in view of the provisions of section 4 of the Evidence Act, cannot, therefore, be allowed to be disproved” (emphasis added).39

The Pakistani government, perhaps because of political reasons, chose not to issue a certificate in the present case. The U.S. tried continually to pressurize the Pakistani government to issue the necessary certificate on the plea that it was obliged to fulfill its international obligations under the Vienna Conventions on Diplomatic and Consular Relations and consequently required to facilitate the resolution of any dispute by issuing the conclusive document. However, given the reluctance of the Pakistan Foreign Office to issue a diplomatic certificate in the present case, the court in Pakistan was left to determine Raymond Davis’ consular or diplomatic status based on evidence presented to it by the parties.

The Consular Convention and Diplomatic Convention require the sending State to give notification of all appointments, arrivals and departures of members of a consular post or the diplomatic mission to the receiving State.40  It may be noted that the sending State is free to appoint members of the consular and diplomatic staff subject to certain restrictions regarding size of the consular and diplomatic staff, nationality of consular and diplomatic officers, and persons declared “non grata”.41 A person appointed as a member of a consular post or diplomatic mission may be declared unacceptable before arriving in the territory of the receiving State or, if already in the receiving State, before entering on his duties with the consular post or diplomatic mission. In any such case, the sending State is required to withdraw his appointment.42

The Pakistani court was, therefore, expected to direct the U.S. and Pakistan governments to produce the required notification in this regard. The court was further expected to review the process of  Raymond  Davis’ appointment in  case  the  parties  were  not able to produce the said notification. Consequently, if it had been established that Raymond Davis’ appointment was made by the U.S. authorities and not objected to by the Pakistani Ministry of Foreign Affairs, then Raymond Davis would have been deemed to be a duly appointed member of the consular staff or diplomatic staff, as the case may be, and entitled to the privileges permitted under the Consular Convention or Diplomatic Convention respectively. As such, he would have enjoyed these privileges and immunities from the moment he entered Pakistan till his departure from the country.43

However, diplomatic or consular immunity, if any, would not have absolved Raymond Davis of the alleged offense of double murder and the proper course for the Pakistan Ministry of Foreign Affairs would have been to approach the U.S. Embassy in Islamabad or the State Department in Washington, D.C. with a request to waive of the applicable immunity in view of the gravity of the alleged offense committed by him. In making such a request, the Pakistan Government would have, in addition to relying on the spirit of the Vienna Conventions, invoked the principle of reciprocity laid down in section 3 of the DCP Act.

4. U.S. Policy, Practice and Procedure

To invoke the principle  of  reciprocity,  Pakistan  could  have relied on the policies, practices, and procedures established by the U.S. Government regarding diplomatic and consular immunities for criminal offenses. These have been very clearly enunciated by the U.S. Department of State. The way the U.S. deals with diplomatic agents, members of the administrative and technical staff, and consular officers involved in the commission of any crime and the waiver of immunity as a consequence thereof is specified in a Department of State Publication entitled “Diplomatic and Consular Immunity—Guidance for Law Enforcement and Judicial Authorities” which provides:

It is the policy of the U.S. Department of State with respect to alleged criminal violations by persons with immunity from criminal jurisdiction to encourage law enforcement authorities to pursue investigations vigorously, to prepare cases carefully and completely, and to document properly each incident so that charges may be pursued as far as possible in the U.S. judicial system. The U.S. Department of State will, in all incidents involving persons with immunity from criminal jurisdiction, request a waiver of that immunity from the sending country if the prosecutor advises that but for such immunity he or she would prosecute or otherwise pursue the criminal charge. If the charge is a felony or any crime of violence, and the sending country does not waive immunity, the U.S. Department of State will require that person to depart the United States and not return but to submit to the jurisdiction of the court with subject matter jurisdiction over the offense. Upon departure, the Department will request that law enforcement issue a warrant for the person’s arrest so that the name will be entered in NCIC (emphasis added).44

The U.S. Department of State has emphasized that even at its highest level, diplomatic immunity does not exempt diplomatic officers from the obligation of conforming with national and local laws and regulations:

Diplomatic immunity is not intended to serve as  a license for persons to flout the law and purposely avoid liability for their actions. The purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments. This is a crucial point for law enforcement officers to understand in their dealings with foreign diplomatic and consular personnel. While police officers are obliged, under international customary and treaty law, to recognize the immunity of the envoy, they must not ignore or condone the commission of crimes. As is explained in greater detail below,  adherence  to  police  procedures  in  such  cases  is often essential in order for the United States to formulate appropriate measures through diplomatic channels to deal with such offenders (emphasis added).45

Regarding Diplomatic Agents, the U.S. Department of State provides: “Diplomatic agents enjoy the highest degree of privileges and immunities. They enjoy complete personal inviolability, which means that they may not be handcuffed (except in extraordinary circumstances), arrested, or detained; and neither their property (including vehicles) nor residences may be entered or searched. Diplomatic agents also enjoy complete immunity from the criminal jurisdiction of the host country’s courts and thus cannot be prosecuted no matter how serious the offense unless their immunity is waived by the sending state …” (emphasis added).46  Regarding waiver, the U.S. Department of State suggests:

Always keep in mind that privileges and immunities are extended from one country to another in order to permit their respective representatives to perform their duties effectively; in a sense, it may be said the sending countries “own” these privileges and immunities. Therefore, while the individual enjoying such immunities may not waive them, the sending states can, and do. Police authorities should never address the alleged commission of a crime by a person enjoying full criminal immunity with the belief that there is no possibility that a prosecution could result. The U.S. Department of State requests waivers of immunity in every case where the prosecutor advises that, but for the immunity, charges would be pursued. In serious cases, if a waiver is refused, the offender will be expelled from the United States and the U.S. Department of State will request that a warrant be issued and appropriate entries to the National Crime Information Center (NCIC) database be made by the responsible jurisdiction. The seeking of waiver of immunity is handled entirely via diplomatic channels, but effective and informed police work becomes the basis of the prosecutor’s decision and the foundation for the U.S. Department of State’s waiver requests and any subsequent prosecutions or expulsions (emphasis added).47

The U.S. Department of State, as a matter of policy, requires the departure from the United States of those persons who have committed a serious crime and with respect to whom the sending State has not acceded to the U.S. Department of State’s request for a waiver of immunity.48

The U.S. Department of State provides that members of the administrative and technical staff of a diplomatic mission also enjoy privileges and immunities identical to those of diplomatic agents in respect of personal inviolability and immunity from criminal jurisdiction.49

Regarding Consular Officers, the U.S. State Department provides: They have only official acts or functional immunity in respect of both criminal and civil matters and their personal inviolability is quite limited. Consular officers may be arrested or detained pending trial only if the offense is a felony and that the arrest is made pursuant to a decision by a competent judicial authority (e.g., a warrant issued by an appropriate court) … No law enforcement officer, State Department officer, diplomatic mission, or consulate is authorized to determine whether a given set of circumstances constitutes an official act. This is an issue that may only be resolved by the court with subject matter jurisdiction over the alleged crime. Thus, a person enjoying official acts immunity from criminal jurisdiction may be charged with a crime and may, in this connection, always be required to appear in court (in person or through counsel).50

The U.S. Department of State has explained that “official acts immunity is not a prima facie bar to the exercise of jurisdiction by U.S. courts. Rather, it is an affirmative defense to be raised before the U.S. court with subject matter jurisdiction over the alleged crime. Only such court, in the full light of all the relevant facts, determines whether the action complained of was an official act. Should the court determine that official acts immunity applies in a certain case, international law precludes the further exercise of jurisdiction by the United States. Judicial determination in a case of this type is very much dependent on the facts surrounding the incident; therefore, a full and complete police report may be critical in permitting the court to make a just decision.”51

The U.S. Department of State issues identification cards for the identification of persons entitled to privileges and immunities in the U.S. A brief statement of the bearer’s criminal immunity is printed on the reverse side of this card.52  It has laid down the following general procedure for law enforcement officers called to the scene of a criminal incident involving a person who claims diplomatic or consular immunity: “… the first step should be to verify the status of the suspect. Should the person be unable to produce satisfactory identification and the situation be one that would normally warrant arrest or detention, the officer should inform the individual that he or she will be detained until his or her identity can be confirmed. In all cases, including those in which the suspect provides a U.S. Department of State-issued identification card, the law enforcement officer should verify the status with the U.S. Department of State.53

The U.S. Department of State suggests that appropriate caution in handling the diplomatic and consular immunities should not become a total “hands off” attitude in connection with criminal law enforcement actions and allegations of serious crimes should be fully investigated, promptly reported to the U.S. Department of State, and procedurally developed to the maximum permissible extent.54  It indicates that immunity from court jurisdiction is not a perpetual benefit: “With the exception of immunity for official acts (which exists indefinitely), criminal immunity expires upon the termination of the diplomatic or consular tour of the individual enjoying immunity. Therefore, obtaining an indictment, information, or arrest warrant could lay the basis for a prosecution at a later date, e.g., if the diplomat returns to the United States at a later date in a private capacity. Moreover, the existence of an outstanding arrest warrant may be entered into the records of the National Crime Information Center (NCIC) and thus serve to bar the subsequent issuance of a U.S. visa permitting such person to enter the United States (emphasis added).55

Given the elaborate policies and procedures laid down by the U.S. authorities for the determination and grant of diplomatic and consular immunity, it was totally unjustifiable for the U.S. to expect the Pakistan Government to hand over Raymond Davis in a summary fashion without going through the proper legal and judicial process.

5. Legal Process and Role of Judiciary in Pakistan

Several agencies of the Pakistan Government are involved in the process of determining diplomatic or consular immunities. It is not a matter for the Ministry of Foreign Affairs to deal with on its own as the U.S. Government appears to think. The Foreign Affairs Division is certainly in charge of foreign relations and dealings with other countries56  and is the channel of communication with governments of foreign countries.57  However, under the Pakistan Government Rules of Business, the Law Ministry is required to be consulted on all legal questions arising out of any case and on the interpretation of any law, particularly where criminal or civil proceedings are instituted in a court of law.58  Furthermore, the surrender of criminals and accused persons to any government outside Pakistan is within the domain of the Interior Division.59

Above all, the courts of Pakistan have the constitutional mandate to adjudicate on matters brought before them by way of civil or criminal proceedings.60  While the lower courts have the power to adjudicate upon civil and criminal matters in the first instance, the superior judiciary, comprising the High Courts and the Supreme Court, have not only appellate but original jurisdiction as well to take action in cases involving cases of public importance: “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article.”61

The courts in Pakistan are the guardian of fundamental rights guaranteed by the Pakistan Constitution. Raymond Davis should have been comforted by the fact that the Pakistan Constitution guarantees the right to a fair trial: “For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”62 On its part, the U.S. authorities should not have expected a summary trial or speedy executive relief under the prevalent circumstances. A popular issue involving wide spread public sentiments like the Raymond Davis murder case would have attracted the attention of the proactive Supreme Court of Pakistan, which could have taken suo motu notice of any undue external pressure being applied on the trial court.

The Supreme Court of Pakistan has on a number of occasions dealt with the issue of immunity claimed by various States from time to time. In one leading case dealing with the issue of immunity claimed by the then USSR, the Supreme Court rejected the concept of absolute immunity and held that diplomatic missions engaged in commercial transactions were not entitled to immunity insofar as their commercial activities did not fall within the scope of their diplomatic functions:

We have gone through the various Articles of the Vienna Convention and we note that to diplomatic agents and envoys they do not grant any jurisdictional privileges and immunity in respect of their commercial transactions which really are not part of their official functions as diplomats etc. The provisions of these conventions have been incorporated and statutorily recognized and enforced in Pakistan by Diplomatic and Consular Privileges Ordinance XV of 1972 (gazetted on 4-5-1972) later re-enacted in form and repealed by Diplomatic and Consular Privileges Act IX of 1972, on 12-9-1972.63

This case led to the promulgation of the State Immunity Ordinance, 1981 that provided for certain exceptions while granting States immunity from the jurisdiction of courts in Pakistan. This Ordinance indicates that it does not apply to criminal proceedings but specifies that it does affect any immunity or privilege conferred by the Diplomatic and Consular Privileges Act, 1972.64

It would be interesting to see if the courts in Pakistan would apply the functional test laid down by the Supreme Court in respect of commercial matters to criminal actions as well. They may accordingly be inclined to hold that even if Raymond Davis is proved to be part of the diplomat staff of the U.S. Embassy in Islamabad, with or without the help of the diplomatic certificate, he would not be entitled to diplomatic immunity since his criminal action was not commensurate with his diplomatic functions under Article 3 of the Diplomatic Convention.65

While the facts of all the above-noted Supreme Court cases are distinguishable in that they dealt with civil matters, there is one judicial precedent in respect of a criminal matter that had a direct bearing on the Raymond Davis case. In Sher Zaman vs. The State,66  the Lahore High Court accepted a revision petition filed by an accused against whom the police had filed a case under sections 304-A, 279 and 338 of the Pakistan Penal Code. The accused claimed immunity on the ground that he was a member of the German Embassy in Pakistan. The magistrate, however, found that this immunity could not be claimed by the accused as the list of the Embassy’s staff holding immunity supplied to the Pakistan Foreign Office by the German Embassy did not include his name. Being aggrieved by the magistrate’s decision, the accused filed a revision petition in the Lahore High Court, which admitted his petition and held:

… The record of the case reveals that there is a certificate to show that Sher Zaman was an employee of the German Embassy for the last nine years since the issue of the certificate. In view of the above clause 577—privilege of family and household— would be attracted in case of the petitioner and he would be in his rights to claim immunity against his trial by the Courts in Pakistan. This, however, would not absolve him of the offence and the proper course for the State would be to approach the Embassy and ask them to waive this privilege in view of the gravity of the alleged offence so committed by the petitioner. This matter could have been resolved soon after the case was admitted but unfortunately the case was put up for the first time after a lapse of ten years. However, the negligence of the office cannot retard the course of justice. However, I accept the revision petition on this point of law and direct the State to seek the remedy [sic] under the law available to it (emphasis added).

This judicial precedent clearly lays down the procedural policy for grant of diplomatic immunity in case of criminal offenses and is consistent with international norms and U.S. practice in this regard.

6. Legal Analysis

The legal outcome of the Raymond Davis case depended on the factual determination of his status. The Pakistani government had the option to give the requisite diplomatic certificate but chose not to do so. The Pakistani court had to, therefore, determine Raymond Davis’ diplomatic, consular or contractual status and grant or not grant immunity accordingly. Both the concerned Pakistan and U.S. authorities would have had to submit evidence about Raymond Davis’ appointment and notification under the applicable Vienna Convention on Diplomatic or Consular Relations and the issuance of necessary identification papers, if any, pursuant to national procedure or practice.

The legal principles regarding diplomatic and consular immunities and privileges are legally well established. Under the Consular Convention,  consular  officers are  not  accorded  absolute  immunity from a host country’s criminal jurisdiction and are immune from local jurisdiction only in cases directly relating to consular functions. They may be tried for certain local crimes upon action by a local court.

The Diplomatic Convention provides the terms under which a diplomat may be subject to criminal or civil penalty. Article 31 of the Convention exempts diplomatic agents from the civil and criminal jurisdictions of host states, except for cases in which a diplomatic agent (1) is involved in a dispute over personal real property, (2) has an action involving private estate matters, or (3) is in a dispute arising from commercial or professional business outside the scope of official functions. This article clearly states that while diplomatic immunity privileges may exist in a host state, these privileges do not exempt the diplomatic agent from the jurisdiction of local laws and courts. These privileges are not absolute either. For example, Article 32 provides that the sending state may waive all diplomatic immunity privileges enjoyed by the diplomatic agent.

While giving effect to the applicable treaties on diplomatic and consular immunities, the Pakistani law in respect thereof, clearly lays down the principle of reciprocal treatment of diplomatic and consular officers and employees in Pakistan. Pakistan would consequently be well within its rights to rely on U.S. policy and legal practice and procedure regarding the treatment of Pakistani diplomats and consular officers and employees in the U.S. in case of criminal offenses committed by them. The U.S. has elaborate policies and procedures in place in regarding the grant of diplomatic or consular immunity for criminal offenses. These policies and procedures establish a formal legal and judicial process that can be emulated and applied by Pakistan on the basis of the principle of reciprocity laid down in its domestic law.

The U.S. should have shown the requisite patience and respect for Pakistan’s legal and judicial process in determining Raymond Davis’ diplomatic or consular status on the basis of its established legal practice and procedure of granting immunity for criminal offenses. Contrary to the assertion made by the U.S. that this was not a matter for the Pakistani courts to resolve, the courts in Pakistan, like the courts in the U.S., have a constitutional mandate to interpret and apply the law. The filing of the Raymond Davis case in court by the Pakistani authorities was, therefore, not only valid but also in line with the policy of the U.S. Government in dealing with diplomatic immunity cases involving criminal offenses. The U.S. would have established its moral authority by accepting the jurisdiction of Pakistani courts voluntarily and demonstrating to the world that it applies uniform and consistent standards to its diplomats involved in criminal offenses.

Even though the law is quite clear on the subject of diplomatic and consular immunity, the publically known facts regarding Raymond Davis’ alleged diplomatic status remained ambiguous. Mere assertion by the U.S. Government without verification by the Pakistani Government was not enough for the Pakistani courts to accept the plea of diplomatic immunity, particularly in view of the initial conduct of the U.S. spokesperson regarding Raymond Davis’ identity and status.

Left on its own—in the absence of a diplomatic certificate issued by the Pakistan Ministry of Foreign Affairs—the Pakistani court would have been inclined to look skeptically at the contention of the U.S. authorities that Raymond Davis had diplomatic status mindful of the ambiguity raised about his identity and status by the initial statement of Mr. Crowley, the U.S. Assistant Secretary of State, in his Daily Press Briefing in Washington, D.C. on the day of the incident. Mr. Crowley’s continued evasiveness about answering questions regarding the nature of Raymond Davis’ job at the U.S. Embassy and failure to clarify whether he was a contractor or consular employee would have given the court further cause to undertake the factual determination of his status before accepting the U.S. Government’s plea regarding diplomatic immunity.

In the ultimate analysis, even if the Pakistani government had recognized the diplomatic status of Raymond Davis and submitted a certificate to this effect in court and the court had granted him diplomatic immunity, Raymond Davis would not have been absolved of the offence of double murder. Under the circumstances, the proper course for Pakistan would have been to approach the U.S. Embassy in Islamabad and the U.S. State Department and ask them to waive this privilege in view of the gravity of the alleged offence committed by him. The offer by the U.S. to “investigate” this matter in line with its own practice had been too little too late. The U.S. should have exhibited a deeper commitment to the rule of law by either, waiving immunity and allowing Pakistani courts to try Raymond Davis, or agreeing to prosecute him in the U.S. for the alleged criminal offense even if he was entitled to diplomatic immunity. Not doing so tantamounts to giving him a diplomatic license to kill.67 As aptly put by U.S. ex-Defense Secretary Caspar W. Weinberger “diplomatic title must not confer a license to murder.”68

7. Epilogue

The trial court in Pakistan did not get an opportunity to make a factual determination of Raymond Davis’ employment status or interpret and apply the Vienna Conventions on Consular or Diplomatic Immunities in relation to the criminal offense committed by him. The court commenced the trial against Raymond Davis without first deciding the issue of immunity. 69 Raymond Davis was charged under section 302 of the Pakistan Penal Code (PPC),70  for having committed qatl-i-amd [intentional murder].71

Accordingly, whoever commits qatl-i-amd is, subject to certain exceptions, liable to be punished with death as qisas or punished with death or imprisonment for life as ta’zir having regard to the facts and circumstances of the case. “Qisas” means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of the victim or a Wali.72 “Wali” means a person entitled to claim qisas.73 Ta’zir means punishment other than qisas etc.74

One exception under which qisas for qatl-i-amd is not required to be enforced is when any wali voluntarily and without duress, to the satisfaction of the court, waives75 or compounds the right of qisas.76 The compounding of qisas in qatl-i-amd can be done under section 310(1) of the PPC: “In the case of qatl-i-amd, an adult sane wali may, at any time on accepting badl-i-sulh, compound his right of qisas.” Badl-i-sulh means “the mutually agreed compensation according to Shari’ah to be paid or given by the offender to a wali in cash or in kind or in the form of movable or immovable property.”77 The procedure for compounding is provided in Section 345 of the Code of Criminal Procedure, 1898 (Cr.P.C). Ta’zir is generally applied by courts after waiver or compounding of right of qisas in qatl-i-amd where all the wali do not waive or compound the right of qisas.78

Mindful of the fact that qatl-i-amd is a compoundable offense under both Islamic and secular laws prevailing in Pakistan, the court acquitted Raymond Davis from the charge of qatl-i-amd against him pursuant to section 345 Cr.P.C read with section 310 PPC, subject to the payment of diyat to the deceased widow of one of the victims.79 The court observed that the legal heirs of both the victims appeared before it and recorded their separate statements, in which they unequivocally confirmed that they had received the amount of badl-e-sulh as per their shares. The legal heirs waived their right of qisas and compounded the offence; they stated that they would have no objection if the accused was acquitted of the charge. The court noted its satisfaction that the legal heirs had made their statements voluntarily and without coercion. It did not apply ta’zir on the principle of fasad-fil-arz since it did not find any evidence on file or the police report regarding the past conduct and previous conviction of Raymond Davis that indicated that he was a potential danger to the community. Consequently, Raymond Davis was set free and left Pakistan instantaneously.

The matter has thus been settled judicially through the application of Islamic law principles without having to deal with politically sensitive and legally contentious issues involved in the determination of diplomatic status and immunity. A diplomatic confrontation has been averted and the delicate relationship between Pakistan and the US has certainly been preserved. Both countries would do well to learn a lesson from this incident and streamline their future diplomatic relationship on the basis of uniform and consistent principles based on the principle of reciprocity—which, inter alia, recognizes the fact that diplomatic status does not give envoys a license to commit criminal offenses.

References

1 BBC  News,  27  January  2011,  http://www.bbc.co.uk/news/world-south-asia-12298546 (accessed 19 February 2011).

2  See, e.g., Declan Walsh and Ewen MacAskill, “American who sparked diplomatic crisis over Lahore shooting was CIA spy”, guardian.co.uk, Sunday 20 February

2011 19.38  GMT  (http://www.guardian.co.uk/world/2011/feb/20/us-raymond- davis-lahore-cia) (accessed 27 February 2011).

3 Grant V. McClanahan,                DIPLOMATIC      IMMUNITY—PRINCIPLES, PRACTICES, PROBLEMS, 61 (1989). This book deals extensively with current trends and problems with diplomatic immunity, including increasing abuses of immunity such as espionage.

4              According to ABC News on 15 February 2011, President Obama is reported to have stated: “We’ve got a very simple principle here that every country in the world that is party to the Vienna Convention on diplomatic relations has upheld in the past and should uphold in the future, and that is, if our diplomats are in another country, then they are not subject to that country’s local prosecution,” Obama said in a press conference today. “We expect Pakistan, that’s a signatory and recognizes Mr. Davis as a diplomat, to abide by the same convention… I’m not going to discuss the specific exchanges that we’ve had [with the Pakistani government], but we’ve been very firm about this being a priority.”   http:// abcnews.go.com/Blotter/raymond-davis-case-president-barack-obama-urges- pakistan/story?id=12922282 (accessed 24 March 2011).

5              H. RES. 145 (112th Congress, 1st Session) March 3, 2011.

6              See, e.g., Express Tribune 16 February 2011, http://tribune.com.pk/story/119713/ court-to-decide-raymond-davis-immunity-gilani (accessed 24 March 2011). This appeared to some commentators to be the only amicable way out of the situation. See generally, “Raymond Davis case: Three possible outcomes,” by Reuters, The Express Tribune, February 19, 2011, http://tribune.com.pk/story/120866/ raymond-davis-case-three-possible-outcomes (accessed 19 February 2011); See also, M. K. Hassan, “Davis case confusion” Dawn, February 23, 2011 (editorial page).

7              U.S. Department of State, Daily Press Briefing, January 27, 2011, http://www. state.gov/r/pa/prs/dpb/2011/01/155402.html (accessed 19 February 2011); reproduced in U.S. Department of State, Middle East Digest, January 27, 2011, http://www.state.gov/r/pa/ei/index.html (accessed 19 February 2011).

8              Embassy of the United States, Press Releases 2011 (January 29, 2011), http://

islamabad.usembassy.gov/pr-11012901.html. (accessed on 19 February 2011).

9              Id.10  U.S. Department of State, Daily Press Briefing, February 9, 2011, http://www. state.gov/r/pa/prs/index.html (accessed on 19 February 2011); reproduced in U.S. Department of State, Middle East Digest, February 9, 2011, http://www. state.gov/r/pa/ei/index.html (accessed 19 February 2011).

11  Id. The relevant part of the interview is noteworthy: QUESTION: So if he has diplomatic immunity that would mean he’s not a contractor, right? Because contractors are not eligible for diplomatic immunity, correct? MR. CROWLEY: I don’t know that that statement is correct. QUESTION: I’m just – the only reason I base that on is Blackwater back in Iraq, they were subject to prosecution — MR. CROWLEY: I understand that. QUESTION: So is that the case — MR. CROWLEY: But again, we notified the Pakistani Government when he arrived in Islamabad, and he has diplomatic immunity. …. QUESTION: P.J., can you just check – the Pakistanis apparently do not accept the fact that he has diplomatic immunity. Are they telling you specifically why? MR. CROWLEY: I’m not sure that that is a correct statement. I know there are lots of things that are put out by an unnamed official. The fact is that we did notify Pakistan of this diplomat’s arrival and his status. And we do not believe that there’s any ambiguity about that. QUESTION: P.J., just brief, on that point, is there – can – is that all it takes, you just notify them? Do they not have to affirmatively accept that this person does have diplomatic immunity? Say a diplomat is posted here and Country X tells you, “Okay, this is our guy and he – we want him to have immunity,” does he automatically then get it? Or do you have to say – or does the host country have to say, “Okay, we accept that,” and there’s — MR. CROWLEY: You’re wading into areas that I’m not — QUESTION: All right. Well, is it possible to find that out? MR. CROWLEY: Yes, I’ll see if we can get an explanation on that.

12  U.S. Department of State, Daily Press Briefing, February 16, 2011, http://www. state.gov/r/pa/prs/index.html (accessed 19 February 2011): QUESTION: Yes, I know. He is a U.S. diplomat. But in other paragraphs, we have to say other things. What – how exactly do you describe him? I mean, is he a contractor? Is he a consular employee? What is he? MR. CROWLEY: Well, he is a U.S. diplomat currently incarcerated in Pakistan who has diplomatic immunity and should be released. …. QUESTION: But, no, no, just as a more basic – we talked about it last week as a more basic idea of whether contractors – going back to Blackwater in Iraq, State Department contractors – whether they’re eligible for diplomatic immunity in a case of murder. MR. CROWLEY: Contractors – if you’re talking about a global issue, contractors can be given diplomatic status.

13  Id.

14  Id. QUESTION: Have you received any new communications from Pakistani officials regarding his immunity, the status of immunity? There seems to be some question about who can decide that. What’s your – what are you hearing from the government? MR. CROWLEY: Well, we believe that diplomatic immunity is in fact – is a fact. It’s not – from our standpoint, it’s not a matter in dispute. It’s certainly not a matter that should be resolved by courts in Pakistan. That said, there will be a hearing tomorrow and we will present a petition to the court that he, in fact, has diplomatic immunity. QUESTION: And is it your understanding the Pakistan Government is absolutely on the same side as you are in this – on this question? MR. CROWLEY: Well, I think the Pakistani Government will have the opportunity to present its view tomorrow as well. QUESTION: So could the Pakistani Government request to repeal his diplomatic immunity and this

— MR. CROWLEY: I don’t speak for the Pakistani Government. Our view is he should be released. QUESTION: What – in your view, what would be the process to how to deal with this? MR. CROWLEY: Hmm? QUESTION: How would the State Department deal with such a request? MR. CROWLEY: Again, we believe he should be released and we continue to press that point with the Pakistani Government. Now, I think during the course of Senator Kerry’s stay there, we made clear that in – with such incidents, it is the practice of the United States

Government to conduct its own criminal investigation, and we intend to follow that practice here. But it is – remains our view he has diplomatic immunity and should be released. …. MR. CROWLEY: Let me – but let – that’s an important point. We continue to stress that he has diplomatic immunity, the issue should not be a matter for the courts, and he should be released. But because we are in the situation that we’re in, we are clarifying that we are prepared to investigate this matter as well. QUESTION: Yeah, but had you said that at the beginning – had you said that you were prepared to investigate this on your own at the beginning, instead of just slamming the Pakistanis over the head with the idea that he has

– the demand that he has to be released, that he has immunity – you’re wrong, we’re right, let our guy go – don’t you think that you could have avoided some of this, or at least tamped down –

15  See,   Ministry   of   Foreign  Affairs,   Pakistan,   Record   of   Press   Briefing held on 03 February 2011, http://www.mofa.gov.pk/Spokesperson/2011/ Spokes_03_02_2011.html (accessed 19 February 2011): Q-How many people like Raymond Davis are present in Pakistan? Is there any record of such people with the Foreign Office? Supplementary questions-1) Can the Foreign Office provide names and number of the US employees working in their Consulate in Lahore?

2) Can the Foreign Office educate us by clearly explaining the immunities and the privileges of officials and diplomats working under relevant international conventions? The US Embassy has informed that Raymond was Consular official. Isn’t it that two different sets of rules on consular and diplomatic matters determine the status of a foreign employee in a diplomatic mission? 3) Why the Foreign Office is adding to the confusion by not clarifying its position on the status of Raymond Davis and the category of visa held by him? Isn’t it strange that while the US State Department has issued three statements on this issue, we as the host country have chosen to remain silent on this issue? 4) Has the driver who killed the third person left Pakistan and what has been the response of the Federal Government to the request by the Punjab Government to hand over the vehicle and the driver in question? Has there been contact between the US Embassy and the Foreign Office regarding the whereabouts of the driver? 5) What measures does Foreign Office take while issuing visas to officials like Raymond Davis? 6) Whether Raymond Davis was a diplomat? Is Raymond Davis his real name? If not, were two separate kind of visas namely official and diplomatic issued to the same person? 7) Is it true that other than the known officials in US Consulates in Pakistan, the rest are working under fake identities? Who allowed the two former US Consuls General in Peshawar to work under fake identities? Was Raymond Davis also working under a fake identity? 8) Did Raymond Davis initially inform the Foreign Office about the nature of his status and assignment in Pakistan as under article 41 of Vienna Convention of 1961, every diplomat and non-diplomat has to convey this information to the Foreign Ministry in the host country? 9) Don’t you think that in such cases, it is the responsibility of the Foreign Office to decide and the verdict in such cases should come from the Government officials instead of the court? Don’t you think that it is the prerogative of the Foreign Office to decide in such matters? If affirmative, then why Ministry of Interior is issuing statements on this issue?

16  Id.

17  Id.

18  Media Comments on Question of Immunity, PR. NO.046/2011, Date: 16/02/2011 (Islamabad, 16 February 2011), http://www.mofa.gov.pk/Press_Releases/2011/ Feb/PR_046.html (accessed 19 February 2011).

19  See Art. 36(b)&(c), Consular Convention: “… (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.”

20  Art. 41(1), Consular Convention.

21  Art. 1(d), Consular Convention.

22  Art. 1(e), Consular Convention.

23  Art. 43(1), Consular Convention.

24  Art. 45(1), Consular Convention.

25 Art. 41(3), Consular Convention. Similar provisions regarding criminal proceedings against honorary consular officers and nationals or permanent residents of the receiving State are provided in Art. 63, and Art. 71, Consular Convention, respectively,

26  Art. 42, Consular Convention.

27  Art. 31(1), Diplomatic Convention, which further provides: “He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; (c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. This provision has been incorporated into Pakistani law. See, Section 86-A of the Civil Procedure Code, 1908 relating to suits against diplomatic agents, which provides (1) No proceeding in any Court shall lie against a diplomatic agent except in a case relating to – (a) any private immovable property situated in Pakistan held by him in his private capacity and not on behalf of the sending State for the purpose of the mission; (b) a succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; (c) any professional or commercial activity exercised by the diplomatic agent to Pakistan outside his official functions.

28  Art. 1(e), Diplomatic Convention.

29  Art. 1(a), Diplomatic Convention.

30  Art. 1(d), Diplomatic Convention.

31  Art. 1(f), Diplomatic Convention. They fall within the general category of the “members of the staff of the mission” comprising members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission. See Art. 1(c), id.

32  Art. 31(4), Diplomatic Convention.

33  Art. 32, Diplomatic Convention.

34  Preamble, Diplomatic Convention. See also, Preamble, Consular Convention.

35  Art. 41(1), Diplomatic Convention.

36  Sec. 2(1), DCP Act. See generally, Mrs. Z. A. Qadir vs. Union of Soviet Socialist

Republic and Another, PLD 1981 Karachi 715.

37  Sec. 3, DCP Act.

38  Sec. 4, DCP Act.

39  986 SCMR 907. This judicial precedent was relied on by the Lahore High Court in British High Commission vs. Syed Sajjad Anwar, 2000 YLR 1833 [Lahore].

40  Art. 24, Consular Convention and Art. 10, Diplomatic Convention respectively.

41  Art. 19, Consular Convention and Art. 7, Diplomatic Convention respectively.

42  Art.   23(3),   Consular   Convention   and   Art.   9,   Diplomatic   Convention respectively.

43  See generally, Art. 39, Diplomatic Convention.

44  U.S.  Department  of  State,  Diplomatic  and  Consular  Immunity—Guidance for Law Enforcement and Judicial Authorities, at p.13 (Department of State Publication10524, Revised August 2010).

45  Id. at p.2.

46  Id. at. p.3.

47  Id. at pp.4-5.

48  See, Expulsion Procedure, id. at p.12.

49  Id. at p.4.

50  Id. at p.5.

51  Id. at p.12.

52  Id. at p.8.

53  Id. at p. 13.

54  Id. at p.15.

55  Id. at p.12.

56  See, R. 13, Rules of Business, 1973 (Cabinet Division, 2005) (Rules of Business): “Consultation with the Foreign Affairs Division.– The Foreign Affairs Division shall, subject to orders in pursuance of any general or special delegation made by that Division, be consulted on all matters which affect the foreign policy of Pakistan, or the conduct of its foreign relations.” See also, Item 13(1), Schedule II, id.: “Relations and dealings with other countries.”

57  See, R. 56, Rules of Business: “Channels of Communications.–(1) Except as provided in sub-rule (2), all correspondence with the Government of a foreign country or a Pakistan diplomatic mission abroad or a foreign mission in Pakistan or an international organization shall normally be conducted through the Foreign Affairs Division: Provided that by means of general or special orders to be issued by the Foreign Affairs Division, direct correspondence may be allowed under such conditions and circumstances as may be specified.” See also, R. 49(4), id.

58  See, Item 14(1), Schedule II, Rules of Business.

59  See, Item 18(27), Schedule II, Rules of Business.

60  See generally, Part VII of the Constitution of the Islamic Republic of Pakistan,

1973 (as amended up to 2010) (Pakistan Constitution).

61  Art. 184(3), Pakistan Constitution. Art. 199, Pakistan Constitution deals with the writ jurisdiction of High Courts.

62  Art. 10A, Pakistan Constitution.

63  A. M. Qureshi vs. Union of Soviet Socialist Republics and Another, PLD 1981

Supreme Court 377.

64  Sec. 17(1), State Immunity Ordinance, 1981.

65  According to Article 3(1), Diplomatic Convention: “The functions of a diplomatic mission consist, inter alia, in: (a) Representing the sending State in the receiving State; (b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law; (c) Negotiating with the Government of the receiving State; (d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State; (e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.

66  1977 P. Cr. L. J. 686.

67  See generally, Asif Ezdi, “Licensed to Kill?”, The News, 2 February 2011, http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=28893&Cat=6 (accessed 24 March 2011).

68  Quoted in James Gerstenzang, “Diplomatic Immunity Mustn’t Be License to Kill,” Los Angeles Times, 6 June 1986, http://articles.latimes.com/1986-06-06/ news/mn-8921_1_diplomatic-immunity (accessed 24 March 2011).

69  An unofficial copy of the court judgment is reproduced in the news report entitled: “Court releases detailed judgment in Davis case”, Dawn.com, 20 March 2011, http://www.dawn.com/2011/03/20/court-releases-detailed-judgment-in-davis-case.html (accessed 24 March 2011).

70  Punishment of qatl-i-amd: Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be: (a) punished with death as qisas; (b) punished with death or imprisonment for life as ta’zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section

304 is not available; or (c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of qisas is not applicable: Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name or on the pretext of honor and the same shall fall within the ambit of (a) and (b), as the case may be. Sec. 302, PPC.

71  Qatl-i-amd. Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-i-amd. Sec. 300, PPC.

72  Sec. 299(k), PPC.

73  Sec. 299(m), PPC.

74  Sec. 299(l), PPC.

75  See, sec. 309, PPC.

76  Sec. 307(1)(b), PPC.

77  See, Explanation in sec. 310, PPC.

78  Sec.  311,  PPC:  “Notwithstanding  anything  contained  in  Section  309  or Section 310, where all the wali do not waive or compound the right of qisas, or if the principle of fasad-fil-arz the Court may, having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with death or imprisonment for life or imprisonment of either description for a term of which may extend to fourteen years as ta’zir …. Explanation: For the purpose of this section, the expression fasad-fil-arz shall include the past conduct of the offender, or whether he has any previous convictions, or the brutal or shocking manner in which the offence has been committed which is outrageous to the public conscience, or if the offender is considered a potential danger to the community, or if the offence has been committed in the name or on the pretext of honour.”

79  “Diyat” means “the compensation specified in Section 323 payable to the heirs of the victim.” Sec. 299(e), PPC. Sec. 323(1), PPC fixes the value of diyat: “The Court shall, subject to the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah and keeping in view the financial position of the convict and the heirs of the victim, fix the value of diyat which shall not be less than the value of thirty thousand six hundred and thirty grams of silver.”