Dr Afridi’s trial — why the FCR needs urgent reform

Anyone accused has right to be tried in a regular court, to file multiple appeals against conviction, not under FCR.

Details of the order of the Assistant Political Agent (APA) of Khyber Agency, who convicted Dr Shakil Afridi, are shocking. Contrary to what had been reported earlier, the order reveals that Afridi was tried and convicted not for his role in locating Osama bin Laden in Abbottabad but for having links with a banned militant organisation in Khyber Agency called Lashkar-e-Islam (LI), headed by the notorious Mangal Bagh. The order also recommended a fresh trial by a regular court for “acting with other foreign intelligence agencies”.

It appears that the establishment wanted to ensure that Afridi gets the maximum punishment under the draconian Frontier Crimes Regulations (FCR) for his alleged links with the LI and to preempt the possibility of his release by a regular court in case he is tried for his role in Abbottabad saga and found innocent. Whatever may have been reasons for his conviction under the FCR, Afridi’s trial and conviction serves to remind all of us of the unjust and cruel nature of the so-called justice system that prevails in Fata. The FCR is a legacy of the British and has survived any meaningful reform.

The order of the APA charges Afridi with having “close links” and a “deep affiliation” with the LI and providing financial and medical assistance to the outfit and its militants. He was accused of holding meetings with LI commanders in his hospital office for planning attacks on security forces and for preferring “to serve under Mangal Bagh rather than the Government of Pakistan”. According to the order, the APA and the Council of Elders (or local jirga) relied on “reports” and “complaints” of “various intelligence agencies” and “people in general” for reaching its findings about Dr Afridi. It also claims that he was given “ample opportunity to defend himself”.

Under the laws of Pakistan an accused has the right to be considered innocent till proven guilty; to not be tortured for purposes of extracting incriminating evidence or made a witness again himself; to be defended by the counsel of his choice; to not be kept in police custody beyond 24 hours without prior authorisation of a court and to be able to cross-examine witnesses or rebut other adverse evidence presented against him in a court. Most importantly, anyone accused of a charge has the right to be tried in a regular court and has the right to file multiple appeals against conviction, going all the way, if need be, to the Supreme Court. Clearly, Dr Afridi was not given ‘ample opportunity’, either to defend himself or to have a lawyer appear on his behalf and cross-examine those testifying against him.

That said, the reality is that the Dr Afridi and rest of the people of Fata do not have the above rights because the FCR does not recognise them. In fact, his trial is a good example of how the justice system operates in the tribal areas and precisely why the FCR needs to be amended. The judiciary and the executive were separated in the late 1990s but only in name. Even today the APAs and other appellate authorities under the FCR remain essentially executive authorities with judicial powers.

Furthermore, the Action in Aid of Civil Power Regulations promulgated in 2011 protected all military actions retrospectively from 2008. They allowed the military authorities to give evidence and also protected members of the armed forces from prosecution in the regular courts for any abuse or misuse of force — by ensuring that any investigation into any such act would be done within the forces.

The fact of the matter is that the military establishment has been the greatest obstacle in the way of reform in Fata for keeping the region as a strategic backyard for pursuing the notorious policy of ‘strategic depth’ in Afghanistan. One may recall President Asif Ali Zardari’s announcement on August 14, 2009, that fundamental reform would be in introduced in Fata but he was able to extract only some cosmetic and belated reforms from the military establishment.

Published In The Express Tribune, June 6^th, 2012.