Testing sovereignty


The Raymond Davis case continues to hang fire. Pakistanis want to know what happened, who the guy is, what he was up to, the deal that brought him here and allowed him to roam the way he did and so on. There are two broad levels of queries, one dealing with what happened on that fateful day in Qurtaba Chowk, the other with the broader issue of this mans ID and the nature of his work.

Answers are not forthcoming on these questions from either the Government of Pakistan (GoP) or the United States Government (USG).

Result: Pakistanis want this man put through the wringer, which makes it difficult for the GoP to just let him walk away; meanwhile, the US has threatened to sever all high-level contacts and to cut off aid.

We now have a standoff, one which will be very difficult to resolve, notwithstanding reassuring statements by GoP functionaries that Pakistan and the US are strategic partners and will work this out. Working this out will require outing much in the public domain which would lead to the proverbial hitting the fan.

There is still much confusion but from what is known, the man is not a diplomat. In footage of the initial investigations secretly taken by Davis himself, he told the policemen he is a consultant at the US consulate in Lahore. In a previous article in this space (Who-is-Davis case, February 4, 2011), I had detailed the relevant conventions and shant go into those details again. Suffice to say that, even as a diplomat, it remains to be seen which of the two conventions apply to him. The convention on consular relations does not give blanket immunity and even the 1961 convention on diplomatic relations involves fine-print about whether a diplomat was on official duty or not.

If it is proved that Davis is a diplomat, the diplomatic conventions will, of course, apply. So far, the evidence suggests that the US is trying to get Davis off the hook by describing him ex post facto as a diplomat.

If Davis is not a diplomat then too he can still plead self-defence and if it is proved that his life was in grave danger, he would be set free. Since the weapon he used was illegal, he would still be liable under the Surrender of Illicit Arms Act (but THAT is separate from the issue of whether he murdered two people).

In the meantime, the completely unconnected death of a third boy has been pushed into the background. He was run over by a back-up vehicle and was not a threat to anyone. The US consulate in Lahore has refused to surrender that vehicle and its driver to the authorities. This is extremely unhelpful and only stokes the average Pakistanis perception that the US wants to remain above the law.

Theres deep irony here. While Washington is bleating about respect for law and repeatedly invoking international law and treaties in a case where its nationals entitlement to be protected by those treaties is dubious, the US consulate is showing utter contempt and disregard for Pakistani laws by refusing to surrender the vehicle and its driver. Such short-sightedness does not bode well for the US because regardless of whether Davis is a diplomat or not, his future status will be decided by the Pakistani court(s).

At the political level, however, the issue needs to be resolved in a way that satisfies both the sending and the receiving state. Jurist Feisal Naqvi thinks that the GoP should offer to have the issue of Davis’ immunity determined by an international tribunal. For maximum legitimacy, the matter could be referred to the International Court of Justice under its advisory jurisdiction. The parties could even ask the ICJ to set up a special three-member tribunal and hear the matter on a summary basis.

Of course this would have to be agreed to by the USG. Given the degree of impatience with which the USG wants to spring Davis, it doesnt seem like it would agree to this procedure. Other questions, nonetheless, will remain to be determined.

What happens if the USG cuts off aid? The answer is, nothing; except we will be short of cash and wont have money to invest in long-term development. As an economist friend said to me, Not having resources to invest is a huge handicap, but then again, what we do have, we dont invest very well. Without US aid, we will chug along at low growth rates.

What is more of an issue is if the USG turns the screws on IFIs or if the IFIs pull out. That would be a bigger problem. But then, as another economist has constantly written, if we lose our rent-seeking habits, we could save about Rs300-350 billion from our own resources. Can we do that? It is one thing to thump the chest but quite another to ready ourselves for the reforms that would bring short-term punishment but long-term gains.

Can we fix the energy crisis by doing whatever it takes: restructuring the companies, throwing out people, privatising? From what has happened at KESC, it doesnt seem so. If anything, the incident has dampened investors interest to pick up any state-owned enterprises that the government might want to offload.

Can we enforce business law; contract enforcement is particularly important and this is true for small companies and businesses particularly. And this also deals with land titles that Feisal Naqvi has been advocating for such a long time. Can we do something about qabza groups taking over commercial properties and suppliers not honouring agreements etcetera?

Can we privatise state-owned enterprises like PIA and Pakistan Railways? PRs privatisation could have a huge impact on freight cost. Currently PR carries only 4 percent of the freight in the country and the rest goes by trucks, which is expensive and inefficient, but is done because NLC has monopolised it and NLC goes straight to GHQ.

Can we do a serious review of non-salary current expenditure in all budgets, federal as well as provincial? Theres much that can be trimmed in all the sectors, including, for sure, defence. Can we impose agri-income tax and capital gains tax, including one on real estate transactions?

This list by no means is exhaustive. Much more needs to be done if we want to stand up on our two feet. So, if we are prepared to exercise sovereignty, we will be testing it against the power of the US. A test of sovereignty is not a function of moral outrage but of realpolitik. Doing so is absolutely possible; but can we handle the consequences?

The writer is Contributing Editor, The Friday Times.