Diyyat: your route to justice

Protests against the release of Raymond Davis are just the latest in the fiasco caused by the concept of Diyyat. Essentially an ancient pre-islamic practice, they were brought to Pakistan in a box of chocolates named Islamisation that General Zia gifted to us. These were later wrapped into the shiny foil of an Ordinance by Benazir Bhutto in 1990. Forest Gump a visionary no doubt states, that with such chocolates you never know what you get and we keep swallowing the dark ones.

Here’s the skinny on Diyyat, you commit a murder and you can go completely free from any punishment be from the state or a divine entity if you can pay the price, just like what Mastercard says. Countless cases show such desi Raymonds living a life of freedom and peace thanks to the money paid. For the more curious amongst the readers some cases references are PLD 1992 Pesh 187, 1993 PCrLJ 1795, PLJ 1997 CrC 1122, 2000 PCrLJ 116 and 1997 PCrLJ 247. The more advanced Islamic nations have even decided on Diyyat rates that should apply to a particular scenario. As a rule of the thumb a woman murdered is worth half the money as that of a man. Non muslims get lesser than muslims in with the Christians getting the most, followed by the Jews and Hindu’s the least. Yemen makes an exception by giving more to the Jews than even the muslims. Iran improvises by adjusting the rates according to the month in which the murder took place. A flourishing jurisprudence is being developed in the philosophy of Diyyat the world over by scholars and in the times to come we shall all experience the wonders of the justice brought on by the assignment of a monetary value on human life based on strict calculations of gender, age, race, religion, social status, location and even time.        

A justice system based on two parties and how they conduct their affairs in a particular contract independent of any interference by any regulatory authority is a utopian anarchist dream. But that would mean also the complete removal of a state and all state machinery. A state figuratively speaking comes into being when individuals get together and sign a social contract. They decide that they will make a group where they will bestow powers upon certain members of the state and to them they will surrender their freedoms and rights. That they will pay taxes and they will follow the rules and laws set by those power bestowed members. In return, however it the duty of the state to protect them, nourish them, provide them with facilities and amenities and treat them equally. When a crime is committed it is not committed against an individual, it is committed against a state. This is because it is the laws of the state that have been broken and every individual is a component of the state. Therefore the ideals of equality come in where in equal punishment needs to be meted out to every crime that we experience.

When diyyat is followed a state not only refuses to implement its own criminal justice system but goes as far as to absolve itself of any responsibility related to the individual who died. The murdered individual was a citizen of the state and the direct responsibility of the state itself. If the individual was a bread earner of a family then it is the duty of the state to support and nourish the family rather than allow them to receive money for the blood of their relative. Diyyat gives way to a new crime, one that is not a crime at all in fact in Pakistan, the crime of economic duress. If a murderer can murder a person and pay for it, then he will no doubt use all his money and resources to force the family of the deceased into accepting that blood stained money. The concept itself was introduced in a tribal war waging society where a state system to support individuals had not developed. Today in the 21st century such laws are obsolete and downright repugnant to the basic concepts of Islam and equality. If such crimes are to be justified by economics then it won’t be long before crimes of rape, kidnapping, defamation, slavery etc will have a price set on them. If life itself can be quantified then there is no reason why its subsidiaries such as honor, dignity and freedom can not have a price.

Raymond left us in a flash after paying 20 crore rupees in cash, that as per the law were supposedly counted and recounted in half an hour (they make 40,000 notes of 5000 rupees). We now have to decide what will happen in the future.

Raymond Davis the movie

We all love watching hollywood action movies in which our american heroes bravely drift cars too fast too furious whilst shooting expendable bullets in their mission impossibles. Little did we think then how these glorified heroes are actually violating many laws and more often then not have the biggest superpower in the world to support their crazy antics. Today we have such a trigger happy fellow amongst us and for many hollywood movie buffs abroad we are the villians.

In this movie major figures in the politics of Pakistan like Shah Mahmood Qureshi lost their status in the government and caused a massive rift in the foriegn policy due to just one character.When it comes to figures like Raymond Davis little can be said because what we know is scant. Let's see what we do know in the first place about this 36 year old gunslinger. We know that he was driving through the streets of Lahore and unloaded a fully loaded Glock through the windshield on two Pakistani men riding on a motorbike. He ran from the incident and was arrested. To make matters worse a Batmobile (read american consulate SUV) sped to rescue this vigilanti and knocked to death another Pakistani man and disappeared. 

We also know that he gets quite disturbed by the azan during the fajr hours and enjoys food from a well known chinese eatery in jail. What we dont know yet however is this man's real name, perhaps even his age, his job, his diplomatic status, any possible superhuman ability and well just about everything else is shourded in a blanket of mystery. The assialants too were for some unknown reasons perhaps carrying guns, stolen mobile phones and as rumours have it even a wad of US dollars.

The settings are classic for the average action movie director but this dies make a lawyers job difficult doesn't it?

So our mystery man claims that he acted in self defense and from sniper aims, it appears that he had experience in self defense. The Pakistan Penal Code allows the plea of self defense under sections 96, 97 and 100 but ofcourse one has to prove that they had a real threat to their lives first.

Given that the evidence of threat to life is not sufficient there starts a whole charade of the Vienna Convention on Diplomatic Relations 1971 which applies applies to diplomats. But the problem here is that we dont know anything about Davis so does the Convention apply? The US embassy quickly granted him backdated documents makes him a member of the embassy's technical and administrative staff so that he qualifies for section 37(2) of the same Convention. The matter is now to be decided by the ministry of foriegn affairs of Pakistan which is carefully monitoring the pulse and tempratures of public and the american embassy. The tempratures abroad have risen considerably with the surprise visit from Kerry and a call from Obama.The interior minister of Pakistan with its vast resources is already fully in co-operation with the US and is willing to help out when and where needed. For some unknown reasons the Ministry of Information is also issuing statements even though the relevent ministry involved has not made a decision yet.

 So here we have a man who is possibly a member of a dark and fluid private security firm very much like the Justice League in comics. We know that such firms have been recipients of massive contracts and have stretched their operations through out the region. We know from the experiences of Iraq that they can be quite lethal and we know that International Law does not apply to private firms or their members and domestic laws will be used to deal with them. So to protect him there is a need to agree that he was infact a technical and administrative officer and therefore falls into the ambit of the Vienna Convention.

 Would there then be a legal recourse? Apart from the far fetched idea that the US could if they wanted waive the immunity under article 32 of the Convention there are three legal cards Pakistan still has left.

Firstly as per law it is for Pakistan to decide if Davis does indeed enjoy such diplomatic immunity. The incorporation of these international treaties into the pakistani legislations was done with slight amendments affording Pakistan the decision making power.

Secondly there is Article 41 of the same Convention that states that it is a duty of a diplomat to respect the laws and regulations of the recieving state. That they have a duty not to interfere with the functioning of the host state. Perhaps the time has come for Pakistan to ask "Come on Davis, tell us what you were really doing here?"

Thirdly and most importantly Pakistan is also a signatory to the Vienna Convention on Consular Relations 1963 which came two years after the above mentioned Convention and supercedes it. Article 41 of which states that "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".

One can presume safely that the crime committed was indeed grave and the present courts are indeed competent judicial authorities. But the 1963 convention is dependent on Davis claiming to be a Consular officer. If he claims to be a diplomat under the 1961 Convention he is in violation of the article 41 again by carrying arms specifically when the interior ministry has issued clear regulations disallowing any diplomat from carrying arms.

One can only state here that the law is not supportive of Raymond but I believe that movie fans abroad are at the edge of their seats and biting their nails as they see a couple of rambo-esque figures mount a Chinook helicopter to rescue their brother Raymond. They say the movie will be a blockbuster.

Nuclear Recommendations

The Current US foreign policy views the Pakistani Nuclear arsenal as a direct threat to their national security. An insight into this thought can be seen in the book ‘Seven Deadly Scenarios’ by Andrew Krepinevich who is the president of the Center for Strategic and Budgetary Assesments. The book states that the most likely and eminent deadly scenario is the collapse of Pakistan wherein radical Islamists will take over the Pakistani nuclear weapons. The second ‘deadly scenario’ mentioned in the book is that the nuclear weapons will be smuggled onto US soil and will be against its citizens. This book is clear suggestion of how seriously Pakistani nuclear weapons are taken by the worlds biggest superpower. Their pressure on the governments of Pakistan is expected to increase with time. It is likely to culminate in economic and political sanctions over time. Signing a treaty such as FMCT can prevent such damage and instead use this as an opportunity to receive development related aid.

The treaty is supported and signed by over 61 countries with notables like Australia, Canada and Germany. It has the backing of several UN general assembly resolutions and is a widely popular. This treaty has also gained prominence after President Obama’s speech in Prague over cutting nuclear weapons. Signing this at this moment will illuminate Pakistan as a responsible participant of the international community. Signing the treaty can be used to leverage more aid and co-operation from the international community for development of civilian nuclear power plants with in the country.

It is estimated that Pakistan has almost as many nuclear weapons as India if not more. The stock pile can be estimated to be approx 100 nuclear weapons and slightly more than Indian stockpiles. These stocks are enough to last several war possibilities with India and other states therefore further production is not required. Increasing stocks result in increased security threats from terrorist elements. India also has more than necessary number of nuclear warheads to wage a war against Pakistan. An increase in their nuclear stockpile will not cause any further destruction than is already possible. Both countries posses enough nuclear weapons to completely wipe out the living population from the sub-continent. The treaty should be signed and Pakistan should try to secure a missile defense system for itself in return.

Pakistan has previously been importing uranium for its nuclear weapons. Mining was started in Baghalchur for uranium where 10 metric tons of ‘yellow cake’ uranium was extracted and mining was closed down in 1998. Tumman Leghari mines were opened in Southern Punjab but not much uranium was extracted. Further exploration is being conducted in Dera Ghazi Khan to look for uranium reserves. Pakistan has no plutonium mines and uranium is the only element being enriched for nuclear power and weapons. The Khushab reactor and the KANUPP reactor both require 10 and 17 metric tons of uranium respectively anually for continued production of weapon grade uranium. It is therefore clear that the country has no uranium reserves to continue the production of nuclear weapons. In this light signing a cut-off treaty will make little practical difference.

The plutonium reactors gifted to Pakistan from China will start producing nuclear grade plutonium after several decades and will involve heavy economic burdens. The country currently needs to spend its budget on development and growth as apposed to research on nuclear weapons. Becoming a signatory to this treaty will re-enforce the Pakistani image of a peaceful nation committed to its development and growth.

In 1998 Pakistan willingly cut back on its nuclear production. It is now a member of CTBT. The CTBT already places more restrictions than the FMCT. Pakistan is under immense international pressure to sign the FMCT and the same can be signed by negotiating deals for buying nuclear material for civilian use from the international community.

What matters in modern warfare is not only the nuclear warhead but also the carrying vehicles. Pakistan has produced missiles considerably better than their Indian counterpart but the use of jets and ships is lacking. Pakistan should use this treaty to negotiate deals for its air force and navy and secure China’s assistance in improving its missile technology.  

Whats up with foreign degrees?

Whilst doing the Bar at Law from Lincoln’s Inn it always struck me and other fellow Pakistanis as peculiar to see that the Pakistani’s enrolled in the course were above 30 in number and there was only one Indian student. I rationalized this fact by assuming that Pakistan as yet does not offer any degree equal to the Bar at Law and perhaps India has developed such courses indigenously. However this assumption couldn’t hold true for long when a similar pattern was noticed in the undergraduate degrees in law. Pakistan does indeed offer undergraduate law degrees and I daresay some are extremely competitive.

We got the answer to the question when the process of looking for jobs in Pakistan started. Every job opening circled red on a newspaper stated requirements to the effect of ‘foreign degrees will be preferred’. This reprehensible trend can be found even in job openings of the public sector and is a classic example of the continuing colonial impact on our society. Why if two students having studied the same degree would a foreign qualified be given preference? The Pakistani student who would have greater knowledge and experience of local language, society and culture is instead penalized publicly.

It is the function of law to afford equal protection to the citizens of a country. The constitution of Pakistan under Article 25 guarantees equality to all its citizens and entitles all its citizens equal protection before the law. It was decided in the case of Sherwani vs Pakistan by the Supreme Court under this article, that reasonable classifications of people may be made but only when there is a reasonable basis and a reasonable distinction. It was further added that such classification must be supported by the objective that can be achieved by enacting such classifications.

All policies made in Pakistan must conform to the basic principles enshrined in the constitution under the Principles of Policy. Article 37(f) of the Principles of Policy affirms that it is the duty of the state “to enable people of different areas through education, training…..to participate fully in all forms of national activity including employment in the service of Pakistan”. When this article is read with Article 25 it becomes obvious that the state allowing preference of foreign graduates is not only unreasonable but even unconstitutional and a flagrant violation of the law which is promoting social injustice. If anything the law states that the Pakistani qualified must be given preference.

We have many examples of laws within the country that promote the resources of the country. For instance the Public Procurement Rules state that where ever available the items in a tender should be brought from within Pakistan. Similarly in the much hyped Mcdonald’s case in the capital it was decided by the courts that during the bidding of the land in F-9 park foreign food chains were given preference and local companies were excluded which was held to be illegal. Such laws and decisions reflect the mindset of the judiciary and the executive.

The Indian constitution guarantees its citizens equality and equal protection before the law under articles 14, 15 and 16 of their constitution. It is pertinent to mention that even though the Indian constitution unlike the Pakistani constitution omits to give its citizens the right to be dealt according to the law, the efficacy of the Indian laws is far more than the Pakistani laws and the courts have given bold judgments to enable greater social justice.

By allowing such unreasonable classifications Pakistan has suffered two indirect losses apart from the direct effect of injustice within society. The first loss has been the brain drain as many of our bright minds leave the country in the quest of ‘foreign qualifications’ and many end up staying abroad after getting better job offers. The second and more subtle loss has been to the education sector of Pakistan. Since those who can afford or otherwise gain access to foreign qualifications leave the country the demand for quality education, the supply of quality educators and pressure on the government to cater to the educational needs of the people is reduced. Presently the education budget is fringing upon barely 2% of the GDP. UK, a favorite for Pakistanis to acquire a ‘foreign qualification’ slashed its education budget by 40% due to the recent recession and yet its education budget is more than 11% of the GDP. By forcing our students to go abroad we are losing not only on our foreign exchange but also on our will to improve our socio-economic conditions.      

The Section 10 of the Higher Education Commission Ordinance 2002 envisages that the government is to formulate policies, guiding principles and priorities for higher education institutions for promoting the socio-economic development of the country.

It is imperative for the government to start giving preference to its Pakistani qualified students to reverse this vicious cycle and to free ourselves from the shackles of mental enslavement of nations abroad. It is not only patriotic but also national duty to promote Pakistani institutions and stand up for national rights. The law is in place but effectiveness is dependent on the mutual will of the people and their determination to implement it.

Election Reforms. Article was originally published in the Islamabad Dateline

The Election Laws (Amendment) Bill 2011 approved by the cabinet in their meeting last week was a giant step forward in ensuring the implementation of fair, free and transparent elections along with increasing the secrecy, security and integrity of the databases on the election rolls. The bill with its 8 constitutional amendments links the voter on election rolls to NADRA and commences the slashing of duplicate and untraceable votes that are in the range of 30-40% according to an Islamabad Dateline report.

With the present population growth in the country at least 400,000 new citizens become eligible to vote every year but do not necessarily gain the right to vote because the electoral rolls were based on the 1998 census. In most cases political parties registered their members and followers by adding names to electoral rolls individually and very rarely did names of deceased voters get deleted to ensure larger vote banks. The requirement to use NIC cards (even the expired ones) along with plans to introduce biometric machines will streamline the electoral process and go a long way in gaining public confidence in democracy. In addition the bill proposes speedy trails of election petitions so that cases do not linger on well after the governments have been selected.

However several more changes would be required to guarantee absolute transparency and fairness of elections. Implementing the following suggestions could have far reaching effects in stabilization of the country and the prosperity of democracy.

Firstly voting needs to be mandatory and laws need to be passed to ensure that citizens perform this national duty. According to the International Institute of Democracy and Electoral Assistance the voting turn out in Pakistan is only 38.77%. As apposed to this India stands at 60.57%, Iran at 54 % and even Afghanistan at 47.83%. Making voting compulsory will ensure that elections produce the true results of the wills of the people.

 

Just an extra word can change our future

Secondly the Election Commission of Pakistan needs to be a completely independent and autonomous constitutional body. The 18^th amendment of the constitution considerably depoliticized the selection of the Chief Election Commissioner by making it a joint consultative process of the cabinet and opposition but room for improvement still remains. In the political environment of our country it is best that the selection be made not by the legislature but rather by the independent judiciary. Anyone who is selected through the political parties themselves should not be in charge of their elections as a basic legal and moral principle. A selection by the judiciary and subsequent approval by the president should suffice.

Third, a ban needs to be placed on all transport and catering services one week before the general elections. All too often we hear of dissenting or even consenting lazy voters being filled into buses and trucks and carried away to polling stations and made to cast their votes by the rich politician or the transport mafia. The car rental business performing making bumper profits during election season is therefore no surprise. Many politicians who don’t even give zakat or income tax turn into ‘Hatim Tai’ right before elections and throw feasts that make Shiraz look stingy. The ordinary voter swept away but such last moment displays of generosity casts an emotional vote and subjects himself to 5 more years of living without roads and water. The purpose of implementing such ban is safe guard the welfare orientated bars that have been placed on election campaign spending which almost always get rudely trampled over.

The fourth suggestion is make more and closer polling stations all over the country and in my views should be no more than 3 miles in radius from population. This compensates for the lack of transport due to a possible transport ban and is helpful in keeping a public eye on polling officers.

Fifthly televised and print media debates ought to be implemented, a method often used in the western world. This exposes the representatives to the court of public and forces the truth out through heated debates. It also reduces the expenses on state and the contesting individual that are caused by the traditional rallies.

Sixth, the constitution should be amended to construct a proportional representation system in the national and provincial assemblies. Instead of voting for individuals that leads to personality worship, the people should be voting directly for the parties involved. After elections the parties can then nominate their members on the basis of the votes received for the national and provincial assemblies. It is suggested that Sainte-Laguë method devised by a French mathematician of the same name, be used for allocation of seats that are approximately proportional to the number of votes received by each party. The method is used throughout Scandinavia and other economically stable countries like Germany and New Zealand. The unmodified version of this method favors the selection of minority parties.

Finally and perhaps most importantly there is a dire need for creation of smaller provinces to ensure better administrating units on federal and provincial levels. Smaller provinces translate into less expensive and more transparent elections because of lesser influences and a greater check by the public itself. It is a pity how many politicians go and compete in regions for provincial seats where they cannot even communicate in local languages and yet win because of influence and money. Smaller provinces will lead to greater and genuine representation from the backward areas of Pakistan.

 If implemented, these reforms can have far reaching impacts on strengthening democracy and giving power to the people. They have been tried and tested in many parts of the world and the coming elections in 2013 will give us a chance to truly amend our decaying systems and introducing a culture of fairness where so far might has been right.