Raymond Davis
The government has so far been reluctant to come up with a clear position on Davis’s status because of fears of political backlash and hurting ties with the US. - Photo by Reuters

ISLAMABAD: After having maintained an ambiguous position for a week on the status of the American citizen involved in killing two youths in Lahore, the government’s legal experts have started examining the issue, in an indication that at last the country’s leadership is moving closer to taking a definitive position on the matter.

“The Foreign Office’s legal division and the government’s law and justice division have started consultations on the matter,” a senior official disclosed to Dawn a day after the US embassy through a diplomatic note urged the Pakistan government to issue a certificate on the status of Raymond Davis.

According to Pakistan’s Diplomatic and Consular Privileges Act of 1972, the government, in case of a dispute over privileges and immunities of someone working for a foreign mission, has to issue a certification which will be deemed as “conclusive evidence of that fact”.

The government has so far been reluctant to come up with a clear position on Davis’s status because of fears of political backlash and hurting ties with the US. “Nobody wants to take responsibility whatsoever,” a source said.

This situation led to wild speculation and added to nervousness of Washington which started exerting more pressure on the government for accepting Davis’s immunity and getting him released.

An official at a background briefing clarified the apparent dichotomy between the Vienna Convention that accepts ‘technical and administrative staff’ of foreign missions as diplomatic agents and the FO protocol manual that requires all such staffers to be designated as ‘non-diplomatic staff’, saying that local regulations pertained to the exceptions given in the Vienna Convention’s Article 37.

He said that diplomatic staff, including ambassadors and counsellors, had full immunity, while non-diplomatic staff enjoyed limited immunity.

The US embassy had filed Davis’s request for registration with the Foreign Office indicating him as ‘non-diplomatic staff’. But in the diplomatic note given to the FO on Thursday, the embassy insisted that his designation as non-diplomatic staff, in the request for registration, was only for compliance with the FO regulations and in no way compromised his immunity under the Vienna Convention of 1961. Besides the difference of opinion over the interpretation of immunities under the convention for ‘administrative and technical staff’, there are several other contentious matters in the Davis’s case which the government’s legal wizards would have to sort out.

A few slip-ups by Pakistani officials while dealing with Davis’ notification and subsequent registration request are quite obvious. His posting in Pakistan was notified in January last year. However, the FO did not issue a disagreement note, rather there was apparently no reply. The US embassy is now claiming Davis’s immunity on the basis of that notification.

However, when the embassy submitted his registration request queries cropped up and these were communicated to it, which remained unresolved to date. Resultantly, Davis hasn’t been registered as yet.

But the US embassy maintained that the FO registration was irrelevant for the immunities guaranteed under the Vienna Convention. Moreover, the Pakistani officials agreed that they took too long to decide on Davis’ registration case.

There are also problems on the American side. The US had filed two applications for Davis’s registration -- one for the Lahore Consulate and the other for the Islamabad Embassy.

Which one of these requests ultimately holds would determine which Vienna Convention -- the one on diplomatic relations (1961) or that on consular relations (1963) -- would apply to Davis if he were to be ultimately granted immunity.

But the decisive factor in the case, even if the Pakistan government agrees to give limited immunity, would be a determination of the fact whether the act of fatally shooting the two alleged muggers occurred during the course of his duties.

At least for now no one is ready to speak on what Davis was doing in Mozang, Lahore, which has no diplomatic activity whatsoever.

The Vienna Convention’s Article 37 states: “…. 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.”

An official privy to some initial legal consultations said Davis by no stretch of imagination qualified for full immunity.

The US embassy is, however, adamant that Davis is entitled to full criminal immunity and cannot be lawfully arrested or detained.