RFE/RL, May 25, 2012
With Farhad Shinwari
On the surface, the lengthy prison sentence meted out against a Pakistani doctor who is credited with helping bring down the world's most-wanted terrorist appears to be an example of perverted justice.
The U.S. government has made it clear that this is how it views the case of Dr. Shakeel Afridi, who was sentenced in Pakistan to 33 years in prison this week for helping the CIA track down Osama bin Laden.
His conviction under an antiquated tribal law, however, could prove to be his ticket to freedom.
The Frontier Crimes Regulations, formulated by British colonial officials in the 19th century, are still enforced in Pakistan's tribal regions. But many aspects of the regulations are not in keeping with Pakistan's constitution, according to legal experts.
Sher Muhammad Khan, a senior lawyer and human rights activist based in Peshawar, maintains that Afridi's trial and sentence violates basic Pakistani law. "I think his conviction is illegal and unconstitutional," he says. "It contradicts Article 10A of the constitution, which guarantees the fair trial of citizens. He was entitled to a fair trial but he was denied one."
Days after bin Laden met his demise in the northern Pakistani town of Abbottabad on May 2, 2011, Afridi was arrested. His alleged crime was setting up a fake vaccination campaign that provided DNA evidence of the terrorist mastermind's presence in the garrison town.
No Legal Counsel
Under Pakistani law, such cases would fall under the jurisdiction of the authorities where the crime took place -- meaning Afridi should have been tried in Abbottabad, located in Khyber Pakhtunkhwa Province.
Afridi, however, was tried in secret far away in Khyber Agency, part of Pakistan's Federally Administered Tribal Areas in the country's restive northwest.
This tied his fate to the Frontier Crimes Regulations, under which rulings are made by government officials and then rubber-stamped by a council of handpicked tribal elders.
The accused have no legal counsel and have little recourse to challenge evidence presented against them or to crossexamine witnesses.
After two months of hearings, Afridi's 33-year sentence was announced on May 23.
He was convicted of a variety of treasonous crimes, including conspiracy to commit an offense against the state, concealing with intent to facilitate plans to wage war against the state, and condemnation of the creation of the state and supporting the abolition of its sovereignty.
The sentence immediately stirred debate and prompted an outcry in Washington.
On May 24, U.S. Secretary of State Hillary Clinton said there was no basis for holding Afridi and expressed regret over his conviction and for the severity of his sentence. Clinton also vowed to continue raising Afridi's case with Islamabad.
The same day, a U.S. Senate committee preparing next year's aid budget to Pakistan recommended an annual reduction of $33 million -- $1 million for every year of Afridi's sentence.
Islamabad, meanwhile, rejected the criticism, with Pakistani Foreign Office spokesman Muazzam Khan urging Washington on May 24 to respect his country's judicial system and processes.
Some observers predict that Pakistan will have a tough time with that line of argument, however.
In The Government's Hands
One is retired Brigadier General Mohammad Saad, a Peshawar-based security analyst who has been following Afridi's case closely due to its connections to intelligence issues.
Saad says that flaws in the legal process that led to Afridi's sentencing are obvious and should ultimately make it easy for the Pakistani government to overturn Afridi's sentence.
This is because, should Afridi appeal, under the Frontier Crimes Regulations the judicial decision-making process will pass to a senior government bureaucrat, and then to a panel of more senior administrative officers.
Consequently, the government effectively retains control of Afridi's destiny.
Even if he were to appeal to a regular Pakistani appeals court, Afridi holds certain advantages, according to Sher Muhammad Khan.
First, he would stand a good chance of getting his conviction thrown out on the basis that the case should never have been tried outside of Abbottabad.
Khan maintains that, because the Pakistani judiciary has already passed judgments against Frontier Crimes Regulations rulings in the past, this could work to Afridi's advantage, as could the fact that the physician's conviction is so controversial in the sphere of international politics.
Brigadier General Saad goes so far as to suggest that the whole process might have been carried out by design. This, he says, is because the secret trial in Afridi's native Khyber Agency kept the lightning-rod case away from the gaze of the Pakistani media and away from the court of public opinion.
Ultimately, Saad concludes, the sentence was really aimed at setting Afridi free. "I think he has been sentenced because there is a lot of American pressure on Pakistan to set this man free," he says.
"As a result, he has been sentenced under the kind of laws that mean his appeal to the Peshawar High Court against the verdict will be accepted. This will set aside his conviction and he will be free to leave the country."
Written and reported by RFE/RL correspondent Abubakar Siddique, with additional reporting by RFE/RL Radio Mashaal correspondents Farhad Shinwari and Abdul Hai Kakar.