In the recently adjudicated case of Raymond Davis vs the State of Pakistan, labyrinthine themes of murder, espionage, widow-suicide , politics, international relations, legal discrimination and the political economy of religion all came together as a recipe for a Shakespearean drama.
In January this year, American citizen Raymond Davis, murdered two young men who were allegedly chasing him on a motorbike in a busy bazaar in Lahore city. After shooting the men, Davis alerted the local US consulate, which then attempted a rescue operation by sending an aide to the scene. But this had to be aborted after the car coming to aid Davis, knocked over and killed a pedestrian. Apprehended by local police, Davis was remanded, tried and subsequently, indicted by the Lahore High court for the double murder of Faheem and Faizan.
Initially, Davis claimed to be a technical consultant with the US consulate but later, the US Embassy retracted this ‘mistake’ and extended him full diplomatic immunity. In the opinion of Pakistanis generally, this move was commonly thought to be a fig leaf and a postfacto effort to circumvent the judicial trial by seeking refuge under the Vienna Convention. Pakistan’s then Foreign Minister made a public statement denying the existence of diplomatic immunity for Davis, which earned him exclusion from a newly formed cabinet. Ironically, at the same time, the Information Minister’s affirmation that Davis was entitled to diplomatic immunity also cost her the cabinet post, due to public outrage at the statement! So the beleaguered Zardari government played a cat and mouse game by not stating its position on the immunity issue and firing any official who did. Meanwhile, the mystery was broken by the Guardian newspaper which confirmed Davis’ identity as a CIA agent.
Things took a dramatic turn when the widow of Faheem, one of the murder victims, committed suicide just a few days after the incident. At her death-bed confession, widow Shumaila reported that the motivation behind her suicide was her despair over the predictable injustice that would result from the case, given the power imbalance that would make it unlikely that an American would be indicted and punished under what is commonly perceived as Pakistan’s weak and corrupt judicial system. What Shumaila didn’t calculate was just how lucrative this injustice would eventually prove to be.
For a month, the intelligence agencies of Pakistan (ISI) and US diplomats, both in the country and in Washington, tried to find a way out of this mess. Against a backdrop of public outrage over the high-handedness of a US spy, this was not an easy task. Statements and visits by US diplomats, a visit by the Chief of the Royal Saudi Army, General Saleh Al-Mahia, and a side-discussion between President of Pakistan Asif A Zardari and Saudi Prince Naif in Kuwait, fuelled media speculation over possible international intervention and pressure to release Davis without due process.
The concept of blood money or Diyat as a recourse came up for discussion early on in the case. This Islamic Law is based on the concept of retributive justice in cases of murder under the Qisas and Diyat law, and monetary compensation in return for bodily injury or a life taken. This refers to those sections of the Pakistan Penal Code relating to offences of murder and manslaughter inherited from British Common Law. The punishments for these crimes were redefined and replaced in 1990 by Islamic provisions known as Qisas and Diyat.
Since 1983 women’s rights and human rights activists and groups have been campaigning against the Hudood Ordinances and Islamic laws that are considered discriminatory against women in their intent and application. This has included a critique of the Qisas and Diyat laws, mainly because this law provides a site for patriarchal bargains to be struck between the offender and aggrieved party in criminal matters. Often, in the case of spousal murders, or where a husband, father-in-law or brother is the murderer, the provision for retribution is waived through the collusion of male relatives of the female victim. Therefore, in crimes committed in domestic disputes - especially in cases of ‘honour crimes’ - the male who has murdered the female relative may be absolved of his crime by her heir or guardian (also a male relative) by giving up the right to inflict equal punishment (Qisas) on the offender. Blood money or compensation can be negotiated between family members or waived. In legal terms, this is termed compoundability, where a law prescribes punishment for a crime (murder) but this can be legally ‘bought off’ through a pardon by the aggrieved party. This transaction threatens the individual’s right to judicial due process but in its application, it negates women’s legal and personal autonomies altogether. The prescribed blood money entitlement for a woman is the same as her inheritance right – roughly one-third that of a Muslim man.
After six weeks of one of the speediest murder trials in Pakistan’s legal history, Davis was pardoned by the legal heirs of the victims in a surreptitious court hearing, and in exchange for an astronomical amount of blood money. So secretive was the closing of this deal that the counsel representing the heirs was not allowed in court during the signing of the deal. When the media broke the news on 17th March of the acquittal and immediate flight of Davis out of the country on a private plane, the public response was one of infuriated moral indignation.
Why should there be such outrage at what is a regular, routine, legal barter instituted in Pakistan’s penal system? In fact, so pervasive is this aspect of formal retributive justice that it has bolstered the privatised practice of customary laws that dispense retribution. These latter ‘judgments’ are made through informal (non-legal) arbitration systems such as jirgas (tribunal of male elders). But the reason the Davis case is different, apart from the involvement of a foreigner, is that the beneficiary of this deal was not the Muslim male subject.
I argue that that the ‘Davis Diyat Deal’ has threatened the core of masculinist benefits of Islamic law. It has inverted male privilege and even emasculated Pakistan as the dishonoured victim, while masculinising the US as the virile party that bought its way out of the murder. This has offended the collective masculine honour of the Pakistani nation and has even actually been termed as the metaphoric murder of the ultimate patriarch – the nation
Thus, this bargain symbolizes the vulnerability of Pakistan, which is commonly thought to be a client state dependent on handouts from the US, and freeing Davis has therefore sullied the patriarchal honour of the nation. Pakistani male nationalist pride feels affronted at the notion that its sovereignty has been “sold”. But that is exactly the rationale behind the Qisas and Diyat law – a barter, a trade off, compensation for a life taken.
Some of the proclaimed offence was taken because Davis did not have diplomatic immunity and/or that he posed an inherent disruptive subversive threat to state and society - fisaadfilarz – a grave crime against humanity and society that would nullify Diyat conditions. Therefore, his case did not qualify for the blood money option. The more interesting objection to this deal has been coming from conservative quarters, including several clergymen who objected to what they termed, the ‘forcible acceptance’ or ‘coercion’ of the legal heirs to accept the blood money and pardon the murderer. Initially, the families had said to the media that they would not accept Diyat, and demanded indictment and the death penalty for Davis instead. At one point, the Jamaat e Islami, Pakistan’s largest religious political party, had even laid siege around the victims’ family homes in order to persuade them not to accept Diyat and offered them compensation money to continue prosecution.
The clergymen deliberately underestimated the price of justice. The US$2.34 million reported to have been paid by either the Pakistani or Saudi government, but categorically not by the US government, to the legal heirs of the two murdered men, is an unprecedented and unimaginably high amount in a country where the minimum wage is $ 69, GDP per capita is $2,261 and some 40% of the country lives below the poverty line.
For the women’s movement, this case poses an interesting turn of the debate. Women activists have objected to the discriminatory nature of the Qisas and Diyat law, which allows men to get away literally, with murder. For years they have campaigned against this discriminatory law that allows men to engage in a patriarchal bargain with the female victim’s male relatives, and negotiate and buy their way out of killing the woman. In cases of honour crimes, by confessing and invoking a defence for their act as ‘grave and sudden provocation’, a majority of male offenders then take refuge under the provisions of the Qisas and Diyat law. The law recognises the right of men on both the offending and aggrieved sides to commute the retributive punishment and make a deal at the cost of a woman’s life.
On the one hand, the secular women’s groups have maintained that it is like wading into a quagmire to argue for women’s equal rights by invoking religious references and exercising Islamic jurisprudential exegesis. However, the legal reality is that the Qisas and Diyat are part of the Pakistan Penal Code and apply to all murder cases, if they make it to the courts at all. The Davis case comes on the heels of a heightened religious political backlash that has seen the recent successive murders of a governor and the minorities minister, both of whom supported the cause of amending lacunae in the Blasphemy Law. Many leading women’s rights activists have subsequently been reserved in their statements over the amendment of the Blasphemy Laws. To expect a review of the Qisas and Diyat laws under these circumstances seems beyond the scope of possibility.
What is probable is that a less passionate negotiation may be initiated with respect to possible amendments to the procedural loopholes to discourage wilful accusations of blasphemy. This review will only take place after the government pursues a policy of appeasement of religious political party leadership and gains their acquiescence. As far as the Qisas and Diyat is concerned, there needs to be a discussion within the women’s movement regarding future strategy, since it had already adjusted its demands regarding the repeal of the law and proposed instead, that the compoundability clause be reviewed.
There is also the issue of unequal amounts of blood money prescribed for men versus women. Thus Davis’ victims’ sisters were awarded one-third the amount that the brothers were accorded. Should the women’s movement engage with the practical business of re-evaluating the economy of retribution so that they can demand equal payment of Diyat for women? This would mean waging a full-fledged juridical challenge and bringing in sympathetic Islamic scholars who in many cases, have been threatened and driven out of the country for their more moderate views. Or does the movement avoid framing all demands in relation to the possibilities of religion and continue arguing for universal, gender neutral, equal rights? Since the issue of women’s equal legal status is one that is constantly contested in Pakistan, in an increasingly violent and bigoted society, secular feminists for now, find the temptation of making theocratic bargains with patriarchy too costly for women in the long run.