The case of Dr.Shakeel Afridi and Pakistan Tribal Law: An interview with Mr. Khalid Aziz, an expert

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The case of Dr.Shakeel Afridi and Pakistan Tribal Law: An interview with Mr. Khalid Aziz, an expert

Ravi Rikhye, May 30-31, 2012

Dr. Shakeel Afridi is the person recruited by the US CIA to help pinpoint Osama Bin Laden's location. He was sentenced to 30-years jail plus a fine, in lieu of which he must serve another three years. The Pakistan government initially said he was being tried for treason. Now the government says it was for aiding a terrorist militia.

Q. Dr. Afridi was tried under tribal law and not allowed to present evidence on his behalf or hire a lawyer. Is this not a violation of human rights?

KA The tribal areas of Pakistan called FATA (Federally Administered Tribal Areas) are an Imperialist construction created by Britain to keep a people as a free militia,fully armed and controlled by special law called the Frontier Crimes Regulation(FCR). They were to be the first line of defense against any Russian outbreakinto India. Britain created a juridical fiction that said that although the tribal areas are a part of India but they are not a part of British India. By excluding the FATA from British India the British absolved themselves of either educating the tribes or initiating political development. Pakistan has even today continued with the same policies.


Thus tribesmen remain out of the jurisdiction of superior judiciary and human rights are not applicable here. Even more Draconian laws have been brought to apply in the region under the inhuman "Aid to Civil Authorities," regulation that gives the power to a military official topropose the indefinite detention of a person suspected of being/or assisting any militant.

Under the FCR the accused does not have the right to a lawyer as they are not permitted to work in FATA; Shakeel's lawyer has alleged that Shakeel was charged with different charges other than what was seen byhim, http://paktribune.com/news/Dr-Shakeel-Afridi-jailed-for-helping-LI-not-CIA-250247.htm.Under the FCR lawyers are not permitted in proceedings as it is the member ofthe Jirga appointed by the Political Agent are the final arbiters of the fate of a person.

Q. But under thissystem anyone can be accused and condemned for any offense under tribal lawwithout any right to argue their innocence.



KA  According to S. 11 (2) an accused has the right to convey his objections to the Political Agent who can accept or reject the application.To that extent the balance is greatly in favor of the state and anyone is thus easy to convict. Remember the aim is not to provide justice but to ensure the prevalence of what the State desires. It is very much akin to the conduct of trial by military commissions. However, under S. 11, FCR the accused has a right to a hearing (S. 11 [1]) and he can raise objections and the Political agent has to give reasons before disposing the petitions. Whether the accused presented applications raising objections is not known - but is unlikely.


Q. Do tribes even run a jail systemwhere they can lock up someone for 33 years?

KA The maximum sentence that a Political agent can impose onhis own is 7 years (S. 12 (2) FCR). With the the approval of the Commissioner who is the supervisory officer of the Political Agent, the sentence can be doubled. But cannot be for 33 years. This is wrong reporting. Since Shakeel has been sentenced on 4 counts the award of the sentences add up to 33 years, but he cannot be imprisoned for more than 14 years.

Convicted tribesmen serve their sentences in prisons that are in the districts - in this case in Peshawar.

Q. Media says he is not a resident of the tribal area under whose law hewas tried. Is this right? And if it is, how to they have jurisdiction over him?

KA Shakeel is an Afridi and a Malikdin tribesman and thus he is under the jurisdiction of Political Agent Khyber; the FCR has jurisdiction over him.

Q. How can a tribe try anyone for treason? Treason is against a nation state.

KA FCR recognizes offences against the State and thus aiding and abetting terrorists can be anoffence under the FCR and is thus cognizable.

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 Mr. Aziz welcomes correspondence on this issue at azizkhalid@gmail.com

• Editor's note We want to clearly state this case is an internal matter of Pakistan. At the same time, there are so many inconsistencies in the matter that we have to wonder what the Government of Pakistan thinks it is doing. First the world was told this is a treason trial. Then after the US cut aid to Pakistan and began to apply pressure, it was said the trial was about the accused's links with a terror group: he had treated group members and given it money. This seemed a poorly concieved effort to deflect US criticism: after all, how can the US object to to Pakistan sentencing someone for terror links?  But now the terror group says it considers the doctor as an enemy and will kill him on sight. It says yes, he did give the group money. But only as a $21,000 fine levied for fleecing tribal patients.

• In our opinion, the Government of Pakistan could simply have said that no foreign agency has a right to recruit its citizens for any purpose without its permission; the matter is no closed. This would have been a truthful and honest answer. Instead we see the Government as usual trying to be too clever by half. This brings it no credit, creates ridicule,  and raises questions about how competent are its public relations officials.