Not guilty as charged

Two basic questions arise out of Dr Shakil Afridi’s conviction for “waging war” on Pakistan. Is it legal? And, is it sensible? In both cases, the answer is “No.”

Let’s start with the legalities. Afridi was convicted in a secret trial held by the Assistant Political Agent of the Khyber Tribal Agency. The trial was secret and, so far as I know, no lawyer appeared on behalf of Dr Afridi.

As a citizen of Pakistan, Shakil Afridi has a right to due process, a right that is now expressly stated in the Constitution. It is settled law that access to counsel and trial open to the public are fundamental to the concept of a fair trial. Dr Afridi was also tried by an executive official, as opposed to an independent court, and thereby deprived of his fundamental right of access to justice. His conviction is consequently illegal.

One answer to the due process argument is that fundamental rights are not applicable to the Tribal Areas. Technically, that is incorrect. All citizens of Pakistan have the same rights. What the Constitution explicitly states is that the superior courts may not exercise jurisdiction in relation to the tribal areas, a fact that prevents laws like the Frontier Crimes Regulation from being struck down.

In any event, given that the Osama bin Laden incident occurred in Abbottabad, the real question is why Afridi was being tried in the Tribal Areas. So far as I know, the judicial authorities of the Tribal Areas only have jurisdiction to punish offences committed in Fata, not outside. In a nutshell then, Afridi was illegally convicted by an executive official acting in a manner repugnant to centuries of jurisprudence.

Let us move on to the merits. It is not in dispute that Shakil Afridi committed an entirely despicable act by faking a vaccination programme and thereby betrayed his oath as a doctor. However, he was neither charged with that crime nor punished for it: he was charged with “waging war” on Pakistan. As such, the fact that he acted despicably and in conscious breach of the Hippocratic Oath is irrelevant.

What then of the actual charge? Did Shakil Afridi wage war on Pakistan? Not in my opinion.

There has been much critical analysis of Dr Afridi’s actions by a number of people whom I greatly respect. These include my learned friend, Ejaz Haider, the American columnist Glenn Greenwald, and the anonymous geniuses posting at cafepyala.com. In each case, the emphasis has been placed on the fact that Dr Afridi knowingly worked for a “foreign” intelligence agency. Greenwald, for example, asked his American readers to consider what would their reaction have been if the US had caught a Cuban-American doctor faking a vaccination campaign in order to assist the Castro regime.

The problem is that there is a world of a difference between a “foreign” intelligence agency and a “hostile” agency. Had Dr Afridi knowingly worked for RAW or Mossad, he would have no defence. But, in this case, Dr Afridi was not working for an enemy country: he was working for the United States, our ally. Indeed, not only does Pakistan proudly proclaim its status as a “major non-Nato ally” but it also openly and publicly collaborates with the US in military matters. Do we really want to say that helping the US fight the al Qaeda is the equivalent of waging war on Pakistan? Seriously?

Obviously, the fact that the US and Pakistan are allies is not an omnibus defence against treason charges. However, what the prosecution needed to show was that Afridi’s particular instance of collaboration was tantamount to waging war on Pakistan. However, Afridi helped US agencies kill Osama bin Laden. Does anybody seriously want to argue that killing Bin Laden was the equivalent of waging war against Pakistan? Leaving aside all other arguments, our country had openly and repeatedly identified Osama bin Laden as an enemy. How is helping our avowed ally kill our avowed enemy the equivalent of waging war against Pakistan?

I come now to the sensibility of punishing Dr Afridi. Pakistan is already viewed with grave suspicion in the West as a treacherous ally. Pakistan’s long suffering friends know that this narrative is false; indeed, President Asif Ali Zardari has penned so many op-eds recounting our sacrifices that the “Pakistan itself is a victim of terrorism” line has become a cliché. But countries which are themselves victims of terrorism do not respond to the death of their tormenters by punishing the killers; at least, not if they want to retain any credibility in the eyes of an increasingly sceptical world.

I also don’t think Afridi’s case can be analogised to either Jonathan Pollard or Mordechai Vanunu. In each case, they had sold official secrets in violation of an express law. Each of them was punished because the relevant law said that selling secrets to a friend is as bad as selling secrets to an ally. But the law regarding treason is different: there, the distinction between friend and foe is critical.

Let me end by conceding that Shakil Afridi is indeed an unsympathetic character. But laws are not made for sympathetic characters. A person whom the military hates has been picked up without charge, held without trial for months, tried in secret by an executive official, and punished on charges which wouldn’t survive five minutes before an independent judge. It is not idle fancy to wonder when these developments will be used against the rest of us. These are all old tricks that have been used before.

Mian Nawaz Sharif should remember. When he was being tried in Attock Fort, he had challenged the proceedings on precisely the basis that he deserved an open and fair trial. The Lahore High Court (LHC) in a travesty of a judgment rejected that argument. I remember that judgment: I was one of Mian Sahib’s lawyers.

The tribal areas scam is also old. In 1975, Manzoor Elahi was spirited away by the police from Lahore to tribal areas in Balochistan to ensure he could not be released. The LHC, however, forced the security forces to return Manzoor Elahi back to Lahore and then granted him bail. Till today, the legal community is proud of that judgment. Shakil Afridi may not deserve our respect, but the laws of Pakistan certainly do.

Published in The Express Tribune, May 29^th, 2012.