The legal thinkers in the West have never had a very high opinion about Islamic laws. The very thought of the Islamic law conjures up strange images in their minds that are often derogatory. Lord Justice Goddard of the English Court of Appeals said: The court is put very much in the position of a cadi [qadi] under the palm tree. There are no principles under which he is directed to act. He has to do the best he can under the circumstances, having no rules of law to guide him. Roscoe Pound, the great American jurist, who was Dean of Harvard Law School for 40 years, said: The oriental cadi administering justice at the city gate by the light of nature tempered by the state of his digestion. Justice Felix Frankfurter of the US Supreme Court, in his dissenting opinion in Terminiello v. Chicago (1949), said that the Supreme Court is not a tribunal unbounded by rules. We do not sit like a kadi [qadi] under a tree dispensing justice according to considerations of individual expediency. All these views simply imply that the Islamic law does not have proper rules, and the fate of a person coming under the palm tree depends upon the unbridled discretion of the qadi. It appears that the Americans are finally about to face the qadi not under the palm trees of Gulberg, but before the court in Lahore. The reference here is towards a recent incident in which an American spy shot two innocent Pakistanis to death. The main issue being raised is whether the Vienna Convention on Diplomatic Relations 1961 (ratified by Pakistan on March 29, 1962), and the Vienna Convention on Consular Relations 1963 (accession on April 14, 1969), apply to the present case since diplomatic immunity has been claimed by the US for the offender. In the US, in addition to Diplomatic Relations Act of 1978, the treaties have been formally adopted and are, therefore, pursuant to its Constitution - the supreme law of the land. But the question is: Whether the conventions are the supreme law of the land for Pakistan as well. Two issues come out of this question, and both pertain to the Islamic law. The first issue is that the killing of a person, intentionally or otherwise, is a matter that pertains to the law of qisas and diyat, now incorporated in the Pakistan Penal Code (PPC). This law is the shariah, and it gives the right to the legal heirs of the victim to claim qisas (retaliation) or forgive the offender, or settle the matter through payment (called sulh). Even the President does not have the right to commute the sentence of the offender, under the powers conferred on him by the Constitution. But all this is applicable only when the accused is tried and convicted of intentional murder that is subject to qisas. If it is not a case of qisas, but that of culpable homicide or manslaughter, diyat is payable. In case, it is established in court that the accused was acting in self-defence, the provisions of qisas and diyat will not be invoked. The accused, according to news reports, is in fact pleading self-defence. He will, therefore, have to prove that he was under apprehension of death or bodily harm (section 100), or even under the apprehension of robbery (section 103). In this case, he cannot be convicted. To reach this conclusion, however, he has to be tried in court under the provisions of Islamic law as contained in the PPC. The point is that the accused in the present case cannot be taken out of the jurisdiction of the courts, even if the Foreign Office certifies that he is a diplomat. The reason for this is that the right of the legal heirs of the victims cannot be waived even by the President. If it is asserted otherwise, a clash will occur between the rights of the heirs given by shariah and the claim of the state trying to abide by the international norms, which it has acknowledged and is under an obligation to obey. Needless to say, this sounds like a constitutional issue. The second issue has a more general and wider application: Pakistan ratifies multilateral agreements called conventions on the basis of the principle of reciprocity. In many countries, the conventions are placed before legislatures and are ratified by them. For example, the US Congress has still not ratified the Convention on the Rights of the Child when the rest of the world has done so without exception. The main issue that we face is whether such conventions ratified by our country on the basis of reciprocity, or on the basis of another principle, can overturn the shariah, in defiance of Article 2(A) of our Constitution? Can conventions be ratified even when they violate the basic laws of the shariah? It ultimately boils down to the issue that whether it is the shariah or the international law that is supreme. It seems that sooner or later the religious parties will raise this issue before the Supreme Court. The writer is former professor of Law and Shariah, International Islamic University. Email: