Dr Afridi’s trial — why the FCR needs urgent reform
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 6th, 2012.
COMMENTS (14)
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One can find the miracle of 60 million US$ allocated for Pakistani media by US Congress. What about millions of tribal people who suffered from the same draconian law since 1941? Where were all these pseudo intellectuals for that last 65 years? Sleeping? Waiting for dictation from certain quarters? Is not that pity that the whole World is writing against Drone attacks, however, certain elements in Pakistan are advocating drone attacks against their own country men?
FCR should be repealed thos demanding reform in FCR are in fact supporting unjust legal system
FCR should be repeal those who demand reforms in FCR fact support an unjust judicial system
@Hafeez: It is my understanding that Dr.Siddiqui was imprisoned and tortured for several years before being sentenced in a New York court to 86 years in prison. Although I think Dr. Afridi deserves a fair trial it would appear that he has got off lightly. Another court may not be so lenient.
Great Op Ed, thanks for that. The writer shows his International education and training in this legal analysis. A great read. My first detailed comments were not printed. Still thanks ET for providing the legal opinion of great scholars.
The Author is requested to get the Frontier Crime Regulations (FCR) which is still in vogue in FATA be published in print/ electronic media to be analysed by public in general and legal authorities for the required reforms. Whether FCR has all the ingredients of Natural justice ? Transparency/ awareness of the law can create pressure for required reform in the regulation at the earliest.
Natural justice provides the opportunity to defend oneself and if the same is absent in any law then there is no justice.
agree totally.
@Muhammad Zubair: Is this the first decision taken by the FCR? Have you written against this system before? Makes me think your objection is more towards the Afridi decision than the FCR itself.
@Sexton Blake: You missed the point. First thing is we are talking about a Pakistani tried in Pakistan. Americans would never treat an american this way. Besides that, what the author says is that let Dr Shakil have the right to a fair trial, and thats it. I hope you wont disagree with that.
Sexton....Are you a pakistani under a psuedonym???
@Sexton Blake: Does it mnatter what other countries may or may not do? Are you saying that if US does not provide justice to its citizens, that Pakistan should deny justice to its own citizens?
I see similar logic where oppression of Pakistani citizens is compared to oppression elsewhere in the world and justified. Strange logic.
@Sexton Blake: You're good at selective wording. The "American System" does no such thing. There are few reports of abuse in that system. Inserting the words you left out, out of convenience: The offshore military prisons.
I totally agree with Mohammad Zubair. The trial of Dr Afridi appears to be a travesty of justice. However, when one compares it to the American system, where they torture prisoners for up to ten years or so, and then set up special courts designed to find them guilty, the trial of Dr. Afridi starts to look reasonable. I am surprised that Mohammad Zubair did not make the comparison. In spite of Mohammad Zubairs comments ii would appear that although Pakistan has serious problems in the area of justice, it compares quite well with Western countries.
Dr. Saab! Great Article. We hope and request more from you about the plight of Pakhtuns. You have obligation.