Absolute deception or real justice?

There is no gainsaying the fact that the verdict given on March 16, 2011, in the Davis case by an Additional District Judge of Lahore, has given rise to more voluminous writings and talk shows on the electronic media than many famous legal decisions given even by the most exalted legal forums of the realm. To be rated amongst the most anticipated court decisions to be rendered in this region, is by itself remarkable keeping in view the relative lack of importance given to judicial pronouncements. Despite being a verdict of the lowest tier of trial courts for this nature of crimes, both in Pakistan and abroad, the world impatiently waited for any decisions from this judicial forum. Candidly, we must admit that the outcome that began to filter out piecemeal from this trial court from within the Central Jail in Lahore on the afternoon of March 16, utterly and unexpected was mind boggling; it shook the confidence of the nation in their government and even in the much heralded contemporary judiciary of Pakistan. The verdict for Davis was tantamount to the proverbial great escape Even notorious spymasters like Bond could not have achieved so much with such speed even in fiction, as the CIA agent got through this verdict. Except for creating a transient air of fake bonhomie that was put on show by Islamabad, some knowledgeable circles in the foreign affairs were highly perturbed over the deterioration of normalised relations between the two countries over this sordid affair. Davis was involved in a shootout in the middle of day on the streets of Lahore in one of the most dangerous countries in the world, got apprehended for double murder, and underwent hours of police investigation before being arraigned by the court. Yet, contemporaneously with him being charged for these heinous crimes his remarkable success came for which ostensibly even the US President was seen publicly seeking from Pakistan. Such a verdict did achieve what few expected; it kept intact the ostensibly good relations between the US and Pakistan. As a specialist scholar in this area, I cannot think of a single court decision that went so far as to be considered as the harbinger of such positive news at least for those in the governments of two countries But even more than the governments, it made the military of both nations really satisfied, as this verdict apparently checked the chaotic situation getting more complex by the hour. Davis release without question came only a day after it had been reported that the ISI and CIA were nearing a settlement confirmed the notion that the spy agencies had first resolved their own differences before the jailed spy was flown from Lahore to the Bagram air base in Afghanistan. What Pakistan got as a quid pro quid for this deal? Probably, it will not be known until the WikiLeaks exposes it. One can, however, fairly deduce from a letter written by a Pakistani dignatory of state to a US newspaper of what may have been discussed in the negotiations between the top military Pakistani and American generals that began at a secluded luxury beach resort in Oman. There was a long list of ISI complaints put to their American counterparts. These grievances essentially related to CIAs supposed arrogance and its disrespect for the ISI, besides building a secret spy network within Pakistan. My real purpose in analysing is to find out from the available evidence, what is the juridical nature of the verdict? Was it really a verdict that the Pakistani nation was clamouring for? Because of the newly established confidence in the present judiciary, it is certain that Pakistanis preferred an outcome from the judges other than the countrys corruption-ridden top bureaucracy or discredited bunch of politicians. A verdict is the process of adjudication on an adversary basis between the parties to the controversy represented by their lawyers before the public that includes the media. Was this that occurred on March 16? Much as I would like to say otherwise, I am afraid nothing can be said to substantiate this perspective. It put to rest the aspirations of the masses that they may get justice as a result of ordinary cases they pursue in courts every day. On that day, according to the information provided to the media by the Punjab government in Lahore after payment of blood money (Diyat) in accordance with the Sharia law, Punjab Law Minister Rana Sanaullah said that the court released Davis after the family members of the victims pardoned the US national after an agreement was reached between the two sides. He has been released from jail and now it is up to him to leave the country whenever he wants, said the Law Minister. The families of the murdered men, Fahim and Faizan, accepted the blood money of $2.34 million while, according to sources, four US visas were also part of the deal. Only IG Police, US Consul General Carmela Conroy and the newly selected lawyers were present during the hearing in Central Jail. The Counsel of the bereaved families, Manzoor Butt, alleged that he had been held on gunpoint for four hours adjacent to the jail court and that the families were forcibly brought from their homes to the court. The question is, why did the 18 people, who received the huge amount in cash, disappear immediately after the verdict? The judge also mysteriously could not be contacted by the press or the lawyers, as he had gone on abrupt leave from his official duties. Examining further contours of these court proceedings, it is thus not surprising that this miracle was the result of the ISI and prosecution branch of the Law Department of the province that did not raise a single point or objection which was raised by purported recourse Diyat payment. Indeed the order of the day, clearly to ward off possible critique of perverse exercise of its jurisdiction by the trial court, does rely on such mistakes by those who were to present the case of the people against blatant transgression of the rights of those killed. Who got to contact the 16 relatives in the Punjab? Clearly, no Americans were seen running across the province trying to locate them? Who found them suddenly the Islamabad Intelligence lawyer when they had the services of several lawyers from Lahore? Finally, when did the trial court start to function on that day? Was it the normal time at which the courts start in Lahore? Or was it at 4:45am in the early morning when the relatives and the Punjab Law Minister were all closeted together in the jail premises until the deal was done? Above all, with the entire media glare that this matter attracted how was it possible for all this to happen in Lahore without the knowledge or connivance of the Punjab government? Who called and arranged for the trial judge to come to the jail at the "relevant" time, since it is now openly reported it was hours earlier than its scheduled hours of commencement? Quite clearly, this is not the court process or the judicial verdict that millions were expecting to come out of this process. Little was thus realised that it is always possible for the wicked to put a weird construction of what is really a court or its decision? On February 27, Clinton admitted in an interview with the ABC programme, This Week, that payment of Diyat may have taken place in accordance with local law, but that it was not paid by Washington. Hillary noted the cooperation of the Pakistani government in securing the release of Raymond Davis: We were very appreciative of getting our diplomat out of Pakistan, and that took cooperation by the government of Pakistan. As such the thank you note from the US Secretary of State for the Zardari government is understandable; as for the Punjab government they too are totally involved in this show or process. No public or media were present or informed about this development until it was all over. Why? This makes a sad commentary on the state of the judicial process followed in this court. Also, this establishes the complicity of the Lahore authorities in this process beyond a shadow of doubt. n The writer is a Senior Advocate of the Supreme Court of Pakistan.

The writer is barrister at law (US and UK), senior advocate of the Supreme Court of Pakistan and professor at Harvard University.


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