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A mockery of the law?

June 13, 2012

IF those devoted to the supremacy of law and justice could break out of the spell cast by the Arsalan Iftikhar-Malik Riaz affair they would do well to ponder the damage to their cause by the case of Dr Shakeel Afridi.

It is not impossible to meet the condition of putting the Arsalan Iftikhar-Malik Riaz case aside for a short while. The proceedings in court may be a bit spicy but for today’s Pakistanis this is routine fare. What is happening outside the court is purely an indigenous vaudeville.

Many of the points being raised, for instance whether Aitzaz Ahsan’s eyes were dry or wet when he saw some documents, are neither here nor there. A great deal of media space is being devoted to paeans to the integrity of the chief justice and his crusade against the wrongdoers. This is quite uncalled for as his performance is not in question and these praises will be appropriate only at his post-retirement reference. A few media czars are only slightly embarrassed at being found in Malik Riaz’s menagerie and the washing of dirty linen in newspaper columns is no better fare than low comic relief.

One should have absolutely no doubt about the judiciary’s ability to protect its interest even in this case. While the Arsalan case is likely to blow over sooner or later, the Shakeel Afridi case might keep causing Pakistan loss of face for a long time to come.

When Afridi was arrested last year, people were led to believe the cause to be his services to the US (not an enemy country by any definition) leading to the killing of Osama bin Laden in Abbottabad. Throughout the following 12 months or so nothing appeared in the media to suggest that Afridi was wanted for any other crime. On May 23, he was sentenced to 33 years’ rigorous imprisonment and everybody assumed that he had been punished for the Bin Laden affair. The Americans moved heaven and earth in protest. Then all of a sudden there was a spate of reports in which Afridi was assailed for a variety of crimes.

It took Pakistan about a fortnight to tell the Americans that Dr Afridi had not been punished for helping them, he had been sentenced by a Fata official for acts in support of a local terrorist organisation, which amounted to treason. It is difficult to dismiss the impression that the matter has been given a new turn to achieve two objectives: first, to blunt the US offensive in Afridi’s support and, secondly, to keep the case out of the jurisdiction of Pakistan’s superior judiciary.

Even a cursory reading of the judgment delivered by an assistant political agent raises many questions about whether the accused received a fair trial.

The assistant political agent says in his judgment that Dr Afridi was arrested on May 23, 2011 and handed over to a field investigation unit for five days. The judgment does not explicitly state that the post-arrest formalities were met. At the end of the five-day remand, the accused “was handed over to an intelligence agency under proper receipt [note the emphasis on respect for form] for further probe”. On the direction of ministry of interior dated May 8, 2012 the accused “was handed back to this court for further trial on 11.5.2012”.

In view of the numerous references to Dr Afridi’s crimes being an open secret and the availability of many complainants/witnesses against him, it is necessary to find out whether his being kept in the custody of an intelligence agency for almost a whole year can be legally justified.

According to the judgment, the assistant political agent received the case on May 11, 2012 and referred it to a council of elders (jirga) on May 12, 2012, under Section 11 of the Frontier Crimes Regulation. There is no reference to the formality of referring the names of jirga members to the parties, and their response, if any. The jirga is said to have concluded its ‘inquiry’ by May 23, 2012 when the matter finally came up before the assistant political agent and he announced his five-page verdict the same day.

The judgment refers to evidence of Dr Afridi’s links with Mangal Bagh and his Lashkar-i-Islami, that he contributed Rs2m to them, and that he provided medical aid to militants while posted at a government hospital. One charge is that militant commanders used to assemble in the hospital and “most often these meetings were followed by attacks by the militants on the security forces’ check posts and other places”.

The assistant political agent held Dr Afridi guilty under the PPC sections 121-A (conspiracy to wage war against Pakistan), 123 (concealing a plan to wage war against Pakistan), 123-A (condemnation of the creation of the state and advocacy of abolition of its sovereignty) and 124-A (sedition). Under the FCR, he is required to take note of the jirga’s findings. It is only while finding the accused guilty under Section 121-A that the judgment refers to “jirga members award” and no such reference is made in respect of the other three charges. Whether the grounds of conviction match the evidence against Dr Afridi is a crucial question.

Our legal minds should seriously examine this case and try to make sure that Pakistan’s image is not further tarnished in international law circles. Apart from the fact that the FCR cannot be defended, no civilised country would like to be caught while making a mockery of its laws. The issue is not whether Dr Afridi is guilty or not — he may well have committed many serious offences — the issue is whether his fundamental right to a fair trial has been respected.

Notice may also be taken of the present environment in which persons publicly condemned as unpatriotic have little chance of receiving justice. An example is furnished by the dissolution of the Fata Lawyers Forum because the members of its executive denounced the decision of their president and general secretary to appear for Dr Afridi before the appellate authority — another instance of brutalisation of the lawyers’ community to the extent that they deny the right of an accused to defence.

Tailpiece: Two stories in the mail: one highlighting a foreigner’s sense of duty and the other Pakistani people’s lack of it: Mr James Nayagam, a commissioner with the Malaysian Human Rights Commission, found three Pakistanis in an internal security detention centre and believes they are wrongly held under the Internal Security Act. He is asking the Pakistan and Malaysian governments to help the wretched Pakistanis.

A medical man has protested that an operation on a child at a Hyderabad hospital was interrupted to force the surgeons to give priority to a well-connected man who had received a bullet in a leg. The child died. You cannot get away by calling that an accident. Does it mean that in the world to which Pakistan belongs humanism and compassion have no meaning?