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Pakistan: How Shari'a Law Helped Set a CIA Contractor Free - TIME
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âBlood moneyâ explained – The Express Tribune
One of the biggest crises in the history of U.S.-Pakistan relations has been resolved with the release of a CIA contractor charged with double murder. Raymond Davis was set free by a court in the eastern Pakistani city of Lahore after family members of the victims submitted affidavits saying that they were prepared to forgive Davis in return for blood money. The release marks the end of tensions that plunged relations between the top intelligence agencies of the two countries, already fractious allies, to a low point.
While Davis' release may improve ties between Washington and Islamabad, it will further inflame the Pakistani public. The case had generated a fierce wave of anti-American sentiment in Pakistan. Much of the local media is ready take a hostile position, denouncing the outcome of the Davis controversy and reporting that the victims' families were pressured into accepting the blood money. Some members had originally refused. Some commentators said that the court's verdict was further evidence of Pakistani weakness. Already, an angry backlash has begun. Street protests have already taken place.
See pictures of Pakistan beneath the surface.
Under Pakistani law, "blood money" is a legal means of securing forgiveness from the victims. Under the qasas and diyat laws, derived from Islamic jurisprudence, a court can release an accused person if the victim's family agrees to a satisfactory cash settlement. The Shari'a-based laws are invoked in the majority of murder cases, Pakistani legal experts say. According to government officials in Punjab, Davis was charged with murder on Wednesday but then acquitted after the families of the two victims said in court that they forgave the CIA contractor and submitted documents attesting to that. Senior Pakistani officials told TIME that each victim's family received $700,000 in compensation — for a total of $1.4 million.
The "blood money" formula to secure Davis' release was devised by Husain Haqqani, Pakistan's Ambassador to the United States. Haqqani, who is well versed in Islamic law, first discussed the proposal with Sen. John Kerry, the Chairman of the Senate Foreign Relations Committee and the co-author of a major aid package for Pakistan, Pakistani officials told TIME. By invoking the Shari'a-based provision, the two countries could work together towards a settlement that did not have to rely on Davis' disputed status a diplomat protected under the Vienna Convention and immune from prosecution. While Washington has always maintained that Davis was protected under diplomatic immunity, Shah Mahmood Qureshi, the Foreign Minister at the time, said that he wasn't. A Lahore court ruled that Davis didn't enjoy diplomatic immunity last week.
(Read "The Raymond Davis Affair: Are CIA and ISI Ties Doomed?")
Senator Kerry took the proposal to Pakistan in late February and discussed it with senior Pakistani leaders from all sides. As TIME reported on Feb. 26, the blood money proposal was then taken up as part of direct negotiations between the CIA and its Pakistani equivalent, the ISI. By not accepting Washington's claims of immunity, and leaving the issue unresolved, Pakistan was allowed to "save face," a senior Pakistan official says. The Pakistan government insisted that the matter be resolved through the country's court system.
But the two sides did not reach an immediate agreement. The negotiations were drawn out and, in the process, pressure was discreetly applied on the civilian government by the ISI to secure an unprecedented two-year extension for its chief, Lieut. General Ahmed Shuja Pasha. The message was that it would not be prudent to replace him amid a major crisis involving the CIA. Pasha, who was already on a one-year extension, was due to retire on March 18, his 59th birthday.
Some observers believe Saudi Arabia may have played a mediating role, but officials denied it. The hope was that Riyadh would be able to tamp down tensions between the CIA and the ISI, with Saudi intelligence chief, Prince Muqrin bin Abdul-Aziz Al Saud playing a role. The Saudis might also have been able to cool tempers among Pakistan's religious right, who had been taking to the streets in the tens of thousands to demand Davis be hanged. Riyadh also wields some influence over the Punjab government, which is headed by the younger brother of former Prime Minsiter Nawaz Sharif, a prominent Saudi ally.
In the end, the Saudi role was not needed because the Punjab government chose not to interfere with the settlement or seek to undermine it. The ISI approached the families of the victims and asked them to accept compensation, Pakistani officials told TIME. Eventually, 18 members of the victims' families signed affidavits saying that they were prepared to forgive Davis. On Wednesday, the Lahore court also acquitted Davis on the charge of possessing illegal weapons, after fining him $235 and saying that time already spent in prison was punishment enough. Davis has now left Pakistan for Kabul and is expected to travel back to the United States soon.
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âBlood moneyâ explained – The Express Tribune
“Diyat basically relates to a ‘compromise’ between the accused and the heirs of the victim,” explained a lawyer who asked not to be named.
Based on the Quran and Sunnah, and the financial position of the accused and that of the victim’s heirs, the minimum Diyat payment is the value of 30.6 kilogrammes of silver. According to the current market prices of silver, the Diyat payment for the heirs of each victim would be a minimum of nearly Rs2.7 million.
The process of paying compensation starts with an application that the victim’s legal heirs have to give in court. Lawyers said the application usually states that they have waived their right to Qisas (punishment) and have ‘forgiven the accused in the name of Allah’ or have ‘exonerated the accused in view of the provisions of Shariah’.
Following this, the judge asks the legal heirs to be present and asks the accused as well as the legal heirs whether the process can go ahead. The court does not need to be told about the exact amount paid.
Criminal lawyer Zulfiqar Abbas Naqvi said the court’s job is to check that the application is in order and all the legal heirs are listed properly.
Naqvi also pointed to Section 311 of the PPC, which states that if the court considers that the principle of Fasad-Fil-Arz applies, or if all the heirs do not waive the right to Qisas, the court can sentence a person to 14 years of imprisonment.
However, Fasad-Fil-Arz takes into account “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].”
Naqvi explained that this applies in cases where the crime has spread a sense of fear and terror in the community. He said that even if a Diyat application has been submitted, the court can say Fasad-Fil-Arz applies and sentence the accused.
Raymond Davis was indicted on Wednesday morning and by the evening, reports emerged that the compensation payment had been made. A criminal lawyer with 15 years of experience, who spoke on condition of anonymity, expressed amazement at the speed at which the Diyat application and payment was made in Davis’ case.
According to the lawyer, the process takes a considerable amount of time and does not happen within a day, as has happened in Davis’ case, after he was indicted.
Published in The Express Tribune, March 17th, 2011.
