Afridi was tried in a Khyber Agency tribal court, which follows the Frontier Crimes Regulation, a controversial set of laws different from those followed by the rest of Pakistan.
Under that system, cases are decided by a group of elders and a political agent vested by the government with almost absolute power to mete out punishments and interpret law. Defendants in the tribal court do not have the right to present material evidence, nor do they have the right to an attorney.
The “FCR is a draconian and inhuman law,” said Ijaz Mohmand, president of the FATA Lawyers Forum. “Under this law, if a member of a tribe commits some crime, the whole tribe is responsible for the acts committed by the other person. Their houses are demolished, they are arrested, fines are imposed on the whole tribe.”
The FCR was first enforced by the colonial British government in 1901 to maintain control over the ethnically Pashtun people who inhabited the areas of what was then northwestern India along the Afghan border. But after Pakistan was established, the law remained in force only in the FATA.
The FCR is actually more lenient than the traditional Pakistani penal code that applies to the rest of the country in one key aspect: It does not allow for the death penalty.
Many human rights advocates criticize the FCR because the political administrator acts as complainant, witness and judge.
Although based on Pashtun customs, the law is “violative of fundamental rights guaranteed by the constitution as well as international law,” Mohmand said.
The FCR was amended last year for the first time since 1901, allowing those convicted to appeal. Mohmand is one of a group of lawyers seeking an appeal on Afridi’s behalf.
Critics question not only the fairness of the code but also whether it should even have been applied in this case. Afridi carried out his activities in Abbottabad in Khyber Pakhtunkhwa province, miles from the Khyber Agency in the FATA, where his trial took place and where the FCR typically is enforced. Afridi was a resident of the Khyber Agency.
In a symbolic gesture, the U.S. Senate Appropriations Committee voted to withhold $33 million in aid to Pakistan — $1 million for each year to which Afridi was sentenced.
“We think his treatment is unjust and unwarranted,” Secretary of State Hillary Rodham Clinton said last week in response to the Afridi verdict. But in Pakistan, the government’s view was the opposite: “We need to respect each other’s judicial system and processes,” said a spokesman for the Pakistani Foreign Ministry.
Special correspondent Haq Nawaz Khan in Peshawar, Pakistan, contributed to this report.