Evolution of the FCR: Frontier Crimes Regulation

 

It took something like a hundred years for the British to extend their power from Bengal in the East to Khyber Pass in the West. The eastern provinces of India which had been for a considerable time under British administration came to be known by the designation of regulation provinces. In course of time provinces were added towards the West which were designated as non-regulation provinces. In the regulation provinces, the head of each district was known as the collector thereby emphasizing that he derived his powers from revenue laws. The head of the district, in non-regulation provinces, was designated deputy commissioner. In, his capacity as local agent of the government, the deputy commissioner was given a high degree of freedom and initiate in the interest of firm and sound administration.  

 

                                                      TRIBAL AREAS

The Punjab and the NWFP were treated as non-regulation provinces. Beyond the NWFP were the tribal areas where the processes of government were distinctly loose and power was largely concentrated in the hands of tribal leaders. These areas were subject to supervision by the political agent.

 

                                                 TRADITIONAL MODE

The NWFP and Baluchistan were the particular areas where the trial of crimes under the Criminal Procedure Code came into contact with the earlier modes operated through Council-of-Elders. A reasonable basis for the application of a measure of elasticity in dealing with crime was provided by reason of their being populated largely by people whose emancipation from their traditional modes of administration of justice was as yet incomplete. The State v. Dosso (PLD 1958 SC (Pak) 533). A further justification for elasticity was the outcome of considerations that the areas in question were sparsely populated and the population was largely nomadic The State v. Dosso (PLD 1958 SC (Pak) 533 at p. 564). When the British annexed the districts of Peshawar, Kohat, Hazara, Bannu, Dera Ghazi Kahn and Dera Ismail Khan in 1948-Abdul Rauf v. NWFP Government (PLD 1958 Pesh 73), ——they found that the western judicial system was out of accord with the Pathan sentiment. No change was, however made in the legal system and the ordinary civil and criminal laws then in force in British India (sic) ware applied to them. They continued to be so applied till 1871 when the first Frontier Crimes Regulation was introduced-Abdul Rauf v. NWFP Government (PLD 1958 Pesh 73). Among the factors that led to the introduction of Frontier Crimes Regulation (henceforth known as FCR) was the crime situation in these districts. With the exception of one or two years, murders were on increase. Not less than one murder per day, on an average, was committed in Peshwar district———— (PLD 1958 Pesh 73 at p.100).

 

 

                                              FIRST REGULATION

The first regulation contained about a dozen simple rules authorizing deputy commissioner, subject to the approval of commissioner, to detain all or any member of the Frontier tribes acting in an unfriendly or hostile manner and to impose fine in certain circumstances. It empowered the government to direct the removal of any tribe residing on the immediate border to another site when expedient. It also authorized the government to delegate powers to the deputy commissioner for referring the case of person accused of murder or other offence to a Council-of-Elders convened according to the Pathan or Baluch usage———Abdul Rauf v. NWFP Government (PLD 1958 Pesh 73 at p.100).

 

                                             PURELY TRIBAL JIRGA   

According to this law, the character of the Council-of-Elders was to be purely tribal and whatever the offence the only sentence authorized was that of fine. Subsequently Regulation IV of 1887 was brought into operation which in character and spirit was the same as the previous Regulation with the difference that a sentence of seven years for certain offences was for the first time introduced along with the fine——–Hamesh Gul v.The Crown (PLD 1955 Pesh 1).

 

                                          

                                           REGULATION OF 1887

The Regulation of 1887 declared that certain sections of it were of general application while others could be enforced only against Pathans and Baluchs and such other classes as were declared by the notification in the official Gazette to be subject thereto. In the same year a notification had been issued declaring that Pathans and Baluchs and non-European subjects ordinary resident in the district to which the Regulation applied, their dependents, servants and others jointly concerned with them in the commission of offences were subject to the provisions of this Regulation Amir Shah v.Crown (PLD 1950 Lah 221).

 

                                                          1901

By the year 1900 it was realized that figures of violent crime in general and of murder in particular had maintained a steady upward tendency———Abdul Rauf v. NWFP Government (PLD 1958 Pesh 73). Another legislation to thwart this tendency was therefore proposed. The proposal resulted in the promulgation of the Regulation of 1901 which originally applied to the six districts to which the earlier regulations applied—Adam Kahn v. Emperor (A I R 1948 Lah 33). Therefore the Regulation was made applicable to the newly constituted district of Mianwali until its applicability was questioned in 1944-Amir Shah v. Crown (PLD 1950 Lah 221).

 

                                                 APPLICATION

The Regulation of 1901 had a provision similar to that of the original Regulation, namely that it applied to Pathans and Baluchs and to classes as were declared by notification in the gazette to be subject thereto. No fresh notification was, however, issued in accordance with previous notice, the entire Regulation continued to be applied not only to Pathans and Baluchs but also to other classes of persons ordinarily resident in those districts—-Amar Shah v. Crown (PLD 1950 221). Some of the other provisions of the F.C.R of 1901 were, however, materially different from the provisions of the repealed Regulation-Hari Singh v. Emperor (A I R 1945 Lah 65).

 

                                              JIRGA MEMBERS

The Regulation of 1901 did not bring about any change in the character and nature of the Council-of-Elders. It continued to be tribal both in fact and theory. The deputy commissioner were instructed to keep lists of jirga members arranged according to trible areas. When parties belonged to different tribes mixed jirgas continued to be constituted. In 1921, the deputy commissioners and the sub-divisional officers were directed to scrutinized closely the lists of persons suitable to sit on jirgas and to eliminate all those whose local influence, standing and private character were below the slandered. In selecting members the deputy commissioner were advised to consult the trible elders and to give weight to their advice-Hamesh Gul v. The Crown (PLD 1955 Pesh 1).

 

                                            VALIDATING ACT

The High Court of Lahore, held in 1944 that the notification issued under the Regulation of 1887 could not operate as a valid notification under the Regulation of 1901 which was consequently inapplicable to tribes other than Pathans and Baluchs—–Hari Singh v. Emperor (A IR 1945 Lah 65). This resulted in rendering—-illegal a large number of convictions—-Amir Shah v. Crown (PLD 1950 Lah 221). Another Regulation was therefore issued which declared that the Regulation of 1901 applied to all cases of persons to whom an earlier Regulation was applicable. This was followed on April 28, 1944 by the Frontier Crimes Regulation (Validation Acts, Orders and Proceedings) Ordinance 1944. It was replaced in December 1944 by an identical Act providing that all orders made, proceedings taken and acts done by the Provincial Government or by an authority subordinate to the Provincial Government in exercise of the powers derived from the provisions of the F.C.R 1901, deemed to have been validly made and done—-Amir Shah v. Crown (PLD 1950 Lah 221 at p. 223). The validity of these enactments was questioned in 1946 in the case of Alam Khan v. Emperor on the contention that the Act remedied the omission of a notification but did bring into existence a law on the lines of the Regulation which was applicable to district Mianwali—Alam Khan v. Emperor (PLD 1948 Lah 33). After this declaration the Governor of the Punjab promulgated on July 26, 1946 another Ordinance entitled ‘The Frontier Crimes (Validation of Orders, Proceedings, Sentences and Acts) Ordinance 1946. Before the Ordinance was replaced by the Act, its validity was again questioned but without success, in March 1947 in the case of Ahmad Khan v. Emperor. The High Court held that the Ordinance was within the powers of the Governor and that it could operate retrospectively. It was further held that the sentence to which the Ordinance referred had become valid—Ahmad Khan v. Emperor (A I R 1948 Lah 120).

 

                                        NOT WARRANTED BY LAW

The validity of the Council-of-Elders so constituted came up for review before the Judicial Commissioner’s Court of the former North-West Frontier Province in two cases. It was held therein that the appointment of magistrates holding powers under the Criminal Procedure Code to the Council-of-Elders was not warranted by law. See Ghulam Muhammad Khan v. Crown (PLD Pesh 45) and Hamesh Gul v. Crown (PLD 1955 Pesh 1).

 

                                             AMENDING ACT 1954

These decisions resulted in rendering illegal a large number of convictions. In order to legalize these convictions two Acts were enacted one is title ‘Fortier Crimes Regulation (N.W.F.P) Amendment Act XIII of 1954. By former Act all orders made proceedings untaken sentences passed and acts done were confined By the second Act the structure of the Council-of-Elders was revised and it was made a council of three more persons whether officials or otherwise convened by the Deputy Commissioner and presided over by a magistrate—-Abdul Rauf v. N.W.F.P Government (PLD 1958 Pes 73). The amending Acts were held intra vires of the Provincial Legislature and were declared good laws under Article 224 of the 1956 Constitution of Pakistan.

The F.C.R of 1901 remained in force until the country was partitioned in August 1947 into Pakistan and India by the Indian Independence Act of 1947. Both these countries joined the Commonwealth as the Dominions of British Empire. Under the Indian Independence Act the law of undivided India was allowed to continue until it was changed by the Legislature of respective countries or by authorities having power in that behalf. One of the pieces of legislation that the countries inherited at the time of independence was the F.C.R III of 1901—–Mutwali v. The Crown (PLD 1951 Pesh 45).

 

                              MAGISTRATES AS JIRGA MEMBERS

In order to improve the procedure for the disposal of cases by the Council-of-Elders and to improve confidence among the people in matters of administration of justice a memorandum was issued to all deputy commissioners on February 29, 1952 directing that jirga cases under the F.C.R should be decided by tribunals of three competent magistrates to be selected by the deputy commissioner. The deputy commissioner had discretion if he found that the number of trial magistrates was inadequate to appoint tehsildars as jirga members—Abdul Rauf v. N.W.F.P Government (PLD 1958 Pes 73). Therefore the deputy commissioner nominated and appointed magistrates as members of the Council-of-Elders. Non-magistrates were also associated in a few cases-Abdul Rauf v. N.W.F.P Government (PLD 1958 Pes 73 at p. 77).

 

                                                    DOSSO’s CASE

The validity of the Frontier Crimes Regulations was called in question in Dosso’s case on the contention that the provisions of the F.C.R enabling the executive authorities to refer criminal cases to a Council-of-Elders were void under Article 4 of the Constitution being repugnant to Article 5 thereof The State v. Dosso (PLD 1958 SC 533). That contention was accepted and the convictions and sentences of the petitioners were set aside. The State appealed but before the case came up for hearing in the Supreme Court martial law was proclaimed and the 1956 Constitution was abrogated. The question consequently arose of the effect of abrogation on Article 5 which had embodied the provisions relating to the Fundamental Rights of citizens. The respondents argued that Article 2 (1) of the Laws (Continuance in Force) Order 1958 provided that the Republic to be known henceforth as Pakistan should be governed as nearly as might be in accordance with the late Constitution and that Article 5 was kept alive. Hence the point for determination in Dosso;s cases was whether those of the provisions of the Frontier Crimes Regulation which had become ineffective by reason of the fact that they would come in conflict with rights mentioned in the 1956 Constitution of the Islamic Republic of Pakistan had been revived on account of the abrogation of the Constitution. The Supreme Court held that the rights did not revive—-The State v. Dosso (PLD 1958 SC 533). The F.C.R was allowed to remain valid during martial law—Abdul Nabi v. Commissioner F.C.R (PLD 1962 Quetta 1).  

 

                                                          DIRCTIVE

A directive was issued by the Government of West Pakistan on May 7, 1960 to the Deputy Commissioners with the object of discouraging references to jirga—Muhammad Akber Kahn v. The State (PLD 1962 Pesh 57). The letter contained the instructions that no case should be referred to a jirga without the prior approval of the Government and that references under section 11should be confined to murder cases and offences of an exceptionally serious character. Should a reference become necessary the Deputy Commissioner were required to forward the cases with brief notes to the Additional Advocate-General who was in turn advised to transit it to the Commissioner. Having received the opinion of the Additional Advocate-General the Commissioner was expected to give or without his assent—Muhammad Akber Kahn v. The State (PLD 1962 Pesh 57 at p.59).   

 

                                               AMENDMENT OF 1962

An amendment to F.C.R was brought by means of an Ordinance which was promulgated on April 19, 1962. The amendment changed the definition of the Council-of-Elders. In relation to cases relating to areas other than Quetta and Kalat and districts of Las Bela the original concept of the Council-of-Elders was revised to mean a Council of three or more persons whether official or otherwise convened by the Deputy Commissioner and presided over by a Magistrate—–Masud Ahmad v. The State (PLD 1962 Lah 878). In April 1962 the application of the F.C.R was extended to the districts of Sukkur and Sargodha. Its application to Shahdadkot (in district Larkana) and Shikarpur and Garhi Yasin (in district Sukkur) was withdrawn—-Masud Ahmad v. The State (PLD 1962 Lah 878 at p.881). The F.C.R was made applicable to persons who committed crime within an area covered by F.C.R even though they might not be resident s of the area– Masud Ahmad v. The State (PLD 1962 Lah 878 at p. 881).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ISI’s Political Wing

On Nov 24, 2008, PM  Gilani confirmed that his government had scrapped the political wing of the military’s main spy agency. The disbandment of a section that had been responsible for spying on Pakistani politicians is the clearest signal yet by the eight-month old civilian government that it has begun asserting control over the powerful ISI Directorate. Gilani’s statement confirmed an announcement by his foreign minister, Shah Mehmood Qureshi, on Sunday that the ISI’s political wing dealing with domestic politics had been disbanded.

 

The ISI is feared by neighboring countries and accused by politicians of conspiring to destabilise previous civilian governments. In a botched attempt in July, Gilani’s government tried to bring the ISI under the Interior Ministry but later backtracked over fear of a backlash within the army.

“The political wing of ISI has been closed,” said a brief statement from Gilani’s media office. “The PM hoped that it would further improve the effectiveness of ISI as one of the premier institutions of the national security apparatus of the country.”

 

Often referred to by critics as a “state within a state”, the ISI had been accused of meddling in the political affairs of the country in the past. Pakistan’s former prime minister Benazir Bhutto, who was assassinated in a gun and bomb attack in December last year, had accused ISI officials of conspiring to destabilise her two governments in the 1990s.

 

The army has ruled Pakistan for more than half its history since the formation of the Muslim state out of the partition of India in 1947. The latest chapter of military rule ended with the defeat of parties loyal to former army chief Musharraf in an election last February, and Musharraf’s resignation as president in August.

 

Senior officials say former ISI chief General Ashfaq Kayani, who succeeded Musharraf as army chief, has been supportive of Pakistan’s return to civilian-led democracy. Since becoming army chief in November last year, Kayani has taken several steps to take the army out of politics, including ordering all army officers out of civilian posts and barring them from meeting politicians.

 

Pakistan’s support and cooperation of its ISI is regarded as vital to the West in fighting the threat of al Qaeda globally, and defeating the Taliban insurgency in neighbouring Afghanistan. But the United States is believed to have called on the civilian government to rein in the ISI.

 

After Pakistan joined US anti-terrorism efforts following the Sept. 11 attacks in 2001, the ISI has helped the United States to eliminate and capturing hundreds of al Qaeda operatives fleeing Afghanistan. However, some members of Pakistan’s security apparatus have been suspected of treating the Afghan Taliban and some jihadi groups as tools to gain leverage in Afghanistan and insurgency-hit Indian-controlled Kashmir.

It has now been confirmed by the foreign minister that the ISI’s notorious political wing has been officially disbanded. The move, it is said, came after approval for this major policy rethink was granted by the president and the prime minister — and, it goes without saying, the chief of army staff who also happens to be a former ISI boss. Taken at face value, this is a commendable step in the right direction. The Inter Services Intelligence clearly has no business meddling in politics and the democratic process. But that is precisely what the ISI has done, with varying degrees of success, since the creation of Pakistan. It is said that Gen Ayub used the agency for purposes other than keeping tabs on external foes while Gen Yahya relied on it to monitor opposition forces in the former East Pakistan. But it wasn’t until the iron rule of Zulfikar Ali Bhutto and his Pakistan People’s Party that the ISI’s ‘political wing’ became an official entity. Under Mr Bhutto, the ISI and the dreaded Federal Security Force were used to target political opponents in clear contravention of the government’s democratic mandate.

The ISI’s external jurisdiction is not under discussion here, though that too has been questionable over the years. It is widely believed that the 1990 elections were rigged by the ISI to favour the anti-PPP Islami Jamhoori Ittehad led by Nawaz Sharif, a man who rose to political power on the shoulders of the army. Gen Aslam Beg, who was COAS at the time, has since confirmed the rumours of massive manipulation. In 2002, the ISI in league with local administrations is said to have played a key role in ensuring victory for Musharraf loyalists operating under the banner of the PML-Q. In the nine years or so that Gen Musharraf called the shots, the ISI was implicated in the ‘disappearance’ of hundreds of citizens of nationalist or Islamist bent, and political opponents too were reportedly kept under surveillance.

In this changed geopolitical world it is imperative that almost all the manpower and other resources available to the ISI be redirected towards the fight against militancy and terrorism. It has been said by our leaders over the last few years that Pakistan has no external enemies now. Yet, the intelligence deficit in terms of keeping tabs on militants within the country has been obvious to all. It can only be hoped that results on this count will improve once the ISI is not distracted by its political duties. Needless to say, the army’s divorce from politics must be genuine, complete and sustainable. Pulling army officers out of government jobs and officially dismantling the ISI’s political wing will be meaningless if meddling continues through unofficial channels. An entire mindset has to change.

Pak PM, Interior Advisor, Law Minister Addresses

Mr Syed Yousaf Raza Gillani
Prime minister
Prime Minister House, Islamabad,
PAKISTAN
Fax: +92 51 922 1596
Tel: +92 51 920 6111
E-mail: webmaster@infopak.gov.pk

 

Mr Rehman Malik
Advisor for Ministry of Interior
Room No. 404, 4th Floor, R Block,
Pak Secretariat
Islamabad
PAKISTAN
Fax: +92 51 920 2624
Tel: +92 51 921 2026
E-mail: minister@interior.gov.pk

 

Mr Farooq Naik
Minister of Law, Justice and Human Rights
S Block Pakistan Secretariat
Islamabad
PAKISTAN
Fax: +92 51 920 2628
Email: minister@molaw.gov.pk or naelaw786@hotmail.com

Indian Addresses: PM, Home, Gujrat CM

Dr Manmohan Singh
Prime Minister of India
PMO, Room number 152, South Block
New Delhi
INDIA
Fax: +91 11 23019545
Email: pmosb@pmo.nic.in

 

Mr Shivraj V. Patil
Minister of Home Affairs
Through the office of Mr. K.C. Jain
Joint Secretary (Coordination and Public Grievances)
Room No. 9, North Block, Ministry of Home Affairs
New Delhi – 110 001
INDIA
Fax: + 91 11 23093750 or 23092763
Email: svpatil@sansad.nic.in

 

Mr. Narendrabhai Damodardas Modi
Chief Minister
NewSachivalay
Gandhinagar – 382 010
Gujarat
INDIA
Fax: + 91 177 23222101
E-mail: cm@gujratindia.com

Indian Army Officer linked to Samjhauta Explosions

Nov 15, 2008: The Indian army officer arrested in connection with a terrorist attack in Malegaon has been linked to the Samjhauta Express blasts. Prosecutor for the Anti-Terror Squad, submitted in a local court in Nashik on Nov 15 that Lt-Col S.P. Purohit was suspected to have procured 60kg of RDX from occupied Kashmir in 2006, a part of which was used in the Malegaon blast and the other in the Samjhauta Express bombing which killed 68 people, mostly Pakistanis, in early 2006.

The submission in the court has given a new dimension to the probe being conducted against Purohit for his involvement in Malegaon town explosion in which eight people died.

Purohit was remanded in police custody till Nov 18 for detailed questioning when he was produced before a court in Nashik. The serving army officer was also subjected to brain-mapping and narco-analysis tests, media reports said.

During investigations it had been revealed that in 2006 Purohit had claimed that he had obtained 60kg of RDX from occupied Jammu and Kashmir.
Purohit is said to have given a portion of the RDX to one Bhagwan who was suspected of using it in the Samjhauta Express twin blasts.

Pakistani Minister Babar Awan has a fake Doctorate Degree

This is in regard to the investigative report titled “Babar Awan declares his American doctorate degree valid” by Ansar Abbasi (Nov 12). I happen to be a great admirer of Senator Babar Awan’s argumentative skills, which also makes him one of the most successful Pakistani lawyers. The gentleman can literally make one believe day to be night and vice versa. Nevertheless, I find myself at great pains to swallow his defence of his questionable doctorate degree.

There are people like me who had to work multiple jobs, seven days a week, to receive degrees from the outrageously expensive American universities. I earned my degree in 1994. In those days, it used to cost approximately $3,000-$5,000 (depending on the load) per semester. It takes (an average of) eight semesters or four years to receive a bachelor’s degree at a total minimum cost of $32,000. It takes, at least, another four semesters or two years to receive a master’s degree. Add another three to six years (depending on the subject) of classes, research, and writing dissertation to be fortunate enough to earn a doctorate degree. Add about six to eight per cent per year increase of cost till 1997-98, when Senator Awan got his doctorate, and you get the idea. All in all, it is an extremely expensive endeavour to get a doctorate degree from an accredited American university.

It is hard to imagine, how a smart person like him, who brilliantly fended off multiple corruption cases against Benazir Bhutto, was swindled by a fraudulent institution into getting a fake degree, especially when he was charged only $3,000 for a doctorate degree?

However, we could give him the benefit of doubt by allowing him to immediately make his research and dissertation public. In addition, give him a once in a lifetime exception to submit his research and dissertation to a reputable university like the Quaid-e-Azam University, to authenticate his research and confer their degree on him.

Adnan Gill

Los Angeles

Obama Planning US Trials for Guantanamo Prisoners

President-elect Obama’s advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice.

 

During his campaign, Obama described Guantanamo as a “sad chapter in American history” and has said generally that the U.S. legal system is equipped to handle the detainees. But he has offered few details on what he planned to do once the facility is closed.

 

Under plans being put together in Obama’s camp, some detainees would be released and many others would be prosecuted in U.S. criminal courts.

A third group of detainees – the ones whose cases are most entangled in highly classified information – might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks. Advisers participating directly in the planning spoke on condition of anonymity because the plans aren’t final.

 

The move would be a sharp deviation from the Bush administration, which established military tribunals to prosecute detainees at the Navy base in Cuba and strongly opposes bringing prisoners to the United States. Obama’s Republican challenger, John McCain, had also pledged to close Guantanamo. But McCain opposed criminal trials, saying the Bush administration’s tribunals should continue on U.S. soil. The plan being developed by Obama’s team has been championed by legal scholars from both political parties. But it is almost certain to face opposition from Republicans who oppose bringing terrorism suspects to the U.S. and from Democrats who oppose creating a new court system with fewer rights for detainees.

 

The plan drew criticism from some detainee lawyers shortly after it surfaced Nov 10, 2008. “I think that creating a new alternative court system in response to the abject failure of Guantanamo would be a profound mistake,” said Jonathan Hafetz, an American Civil Liberties Union attorney who represents detainees. “We do not need a new court system. The last eight years are a testament to the problems of trying to create new systems.” Laurence Tribe, a Harvard law professor and Obama legal adviser, said discussions about plans for Guantanamo had been “theoretical” before the election but would quickly become very focused because closing the prison is a top priority. Bringing the detainees to the United States will be controversial, he said, but could be accomplished. “I think the answer is going to be, they can be as securely guarded on U.S. soil as anywhere else,” Tribe said. “We can’t put people in a dungeon forever without processing whether they deserve to be there.”

The tougher challenge will be allaying fears by Democrats who believe the Bush administration’s military commissions were a farce and dislike the idea of giving detainees anything less than the full constitutional rights normally enjoyed by everyone on U.S. soil. “There would be concern about establishing a completely new system,” said Rep. Adam Schiff, D-Calif., a member of the House Judiciary Committee and former federal prosecutor who is aware of the discussions in the Obama camp. “And in the sense that establishing a regimen of detention that includes American citizens and foreign nationals that takes place on U.S. soil and departs from the criminal justice system – trying to establish that would be very difficult.”

 

Obama has said the civilian and military court-martial systems provide “a framework for dealing with the terrorists,” and Tribe said the administration would look to those venues before creating a new legal system. But discussions of what a new system would look like have already started. “It would have to be some sort of hybrid that involves military commissions that actually administer justice rather than just serve as kangaroo courts,” Tribe said. “It will have to both be and appear to be fundamentally fair in light of the circumstances. I think people are going to give an Obama administration the benefit of the doubt in that regard.” Though a hybrid court may be unpopular, other advisers and Democrats involved in the Guantanamo Bay discussions say Obama has few other options.

Prosecuting all detainees in federal courts raises a host of problems. Evidence gathered through military interrogation or from intelligence sources might be thrown out. Defendants would have the right to confront witnesses, meaning undercover CIA officers or terrorist turncoats might have to take the stand, jeopardizing their cover and revealing classified intelligence tactics.

 

In theory, Obama could try to transplant the Bush administration’s military commission system from Guantanamo Bay to a U.S. prison. But Tribe said, and other advisers agreed, that was “a nonstarter.” With lax evidence rules and intense secrecy, the military commissions have been criticized by human rights groups, defense attorneys and even some military prosecutors who quit the process in protest. “I don’t think we need to completely reinvent the wheel, but we need a better tribunal process that is more transparent,” Schiff said.

That means something different would need to be done if detainees couldn’t be released or prosecuted in traditional courts. Exactly what that something would look like remains unclear.

 

According to three advisers participating in the process, Obama is expected to propose a new court system, appointing a committee to decide how such a court would operate. Some detainees likely would be returned to the countries where they were first captured for further detention or rehabilitation. The rest could probably be prosecuted in U.S. criminal courts, one adviser said. All spoke on condition of anonymity to discuss the ongoing talks, which have been private.

Whatever form it takes, Tribe said he expects Obama to move quickly.

“In reality and symbolically, the idea that we have people in legal black holes is an extremely serious black mark,” Tribe said. “It has to be dealt

US Secret Operations in Pakistan

The U.S. military has conducted nearly a dozen secret operations against al-Qaida and other terrorist groups in Syria, Pakistan and other countries since 2004, The New York Times reported on Nov 11, 2008. Citing anonymous US officials, the Times story said the operations were authorized by a broad classified order that then-Defense Secretary Donald H. Rumsfeld signed and President Bush approved in spring 2004. The order gave the military authority to attack al-Qaida anywhere in the world and to conduct operations in countries that were not at war with the U.S.

One such operation was the Oct. 26 raid inside Syria, the Times reported. Washington hasn’t formally acknowledged the raid, but US officials have said the target was a top al-Qaida in Iraq figure. Syria has asked for proof and said eight civilians were killed in the attack.

In another mission, in 2006, Navy SEALs raided a suspected terrorist compound in Pakistan’s tribal areas. The raids have typically been conducted by U.S. Special Forces, often in conjunction with the Central Intelligence Agency, the newspaper said. Even though the process has been streamlined, specific missions have to be approved by the defense secretary or, in the cases of Syria and Pakistan, by the president.

A Defense Department spokesman had no comment Sunday night on the Times report.

Ayesha Jalal: Pakistan was an Accident

At first glance, Ayesha Jalal seems like an unlikely agitator. She is a tiny, angular woman whose small frame is accentuated by her flowing beige shalwar kameez, a traditional Pakistani outfit consisting of a loose tunic and baggy trousers. Her scholarly credentials — Wellesley, Oxford, Harvard — are purebred establishment.  But in recent years, Ms. Jalal has taken on the academic and political mainstream in her native Pakistan as well as the administration of Columbia University, where she taught history for seven years.

 

And while her historical work on South Asia has elicited anonymous threats, it also earned her a MacArthur Fellowship  (commonly called the genius grant) this year, worth $265,000, no strings attached, and a reputation as one of the most innovative scholars in the history of the region.

 

What has angered so many Muslims here and in her homeland is Ms. Jalal’s assertion that the revered founding father of Pakistan, the slender, eloquent Mohammed Ali Jinnah, had feet of clay. She argues that the 1947 partition of India — the event that opened the door for the creation of Pakistan — was an accident, a colossal miscalculation.

 

What’s more, she says that Jinnah never wanted a separate Muslim state; he was only using the threat of independence as a political bargaining chip to strengthen the voice of the Muslim minority in the soon-to-be sovereign India.

 

For proof, she maintains, look no further than Jinnah’s reaction to the partition. “The state-sponsored nationalist attitude seems to suggest that what Jinnah had dismissed as a mutilated, moth-eaten Pakistan is what they were actually fighting for,” the 42-year-old scholar explained in a recent interview, adding that Jinnah twice rejected what turned out to be the final model for Pakistan.

 

This is heresy to most Pakistanis, for whom the partition is a point of pride, a landmark historical event comparable to the declaration of the state of Israel for Zionists. And to many Pakistanis, the individual most responsible for the partition is nothing less than a Muslim paladin.

 

“It’s as though you’re telling Americans that George Washington wasn’t a starry-eyed nationalist but a coldblooded, opportunistic militarist,” remarked David Ludden, an associate professor of South Asian history at the University of Pennsylvania.

 

India scholars around the world have found Ms. Jalal’s work no less provocative. “In Pakistani terms, she takes a very pro-Indian perspective, but in Indian terms, she’s still a Pakistani,” observed David Washbrook, a professor of modern South Asian history at Oxford University in Britain.

 

What may be most unusual about Ms. Jalal is that she studies Pakistan at all. There are only a handful of scholars of Pakistan in the United States; most South Asian specialists here focus on the country’s considerably larger neighbor, India.

 

And to hear Ms. Jalal tell it, the state of Pakistani history in Pakistan is no better. The country didn’t even have a free press until the late 1980s and four decades of military rule have left a legacy of media self-censorship. The country’s liberal arts colleges, for their part, are controlled by the national government.

 

Ms. Jalal uses the word “tragic”to describe the fate of historical scholarship in her homeland. “There just aren’t many Pakistanis who are historians,” she said. “They’re not interested in history, they’re interested in projecting an ideological position.”

 

Her three books, starting with “The Sole Spokesman: Jinnah, the Muslim League and the Demand for Pakistan” in 1985, have been credited by scholars of South Asia with breaking new ground. “She is the foremost historian of modern Pakistan,” Washbrook said.

 

Still, her view of Jinnah and the partition is hardly conventional. In his biography of Jinnah, Stanley Wolpert, a professor of South Asian history at the University of California at Los Angeles, painted a different picture of the partition, ascribing Jinnah’s zealous quest for Pakistani independence partly to a religious metamorphosis toward the end of his life. Wolpert’s perspective conforms much more closely to that of the traditional Pakistani narrative.

 

Indeed, when “The Sole Spokesman” was published, several Pakistani newspapers assailed Ms. Jalal for understating the role of religion in Jinnah’s push for partition and accused her of being under the sway of an Indian academic adviser.

 

Ms. Jalal is teaching at Harvard University this year after a bitter fight with Columbia. At Columbia, she says, enrollment in her South Asian history courses doubled from 1991 to 1995, but she was denied tenure in June 1995.

 

Convinced that a cadre of Indian and India-centric faculty members who objected to a Pakistani woman teaching Indian history had put the kibosh on her tenure application, she sued the university the next year, alleging religious and ethnic discrimination. Columbia refuted her contentions, and this spring, a federal judge in New York’s Southern District dismissed the case, labeling the evidence of bias “thin,” though “suggestive.”

 

While she was pursuing her claim against Columbia, Ms. Jalal was selected for a new chair in modern South Asian history at Brown University. But after winning the approval of the history department and a tenure review committee, she said she was rejected by Brown’s administration.

 

So come June, Ms. Jalal may find herself unemployed. She plans to stay in the United States, where she first arrived in 1970, when her father, a lifelong civil servant, was posted to the United Nations in Manhattan. When the family returned to Pakistan two years later, Ms. Jalal, then 16, finished her studies at the American high school in Islamabad, the capital city. She spent much of her senior year in Pakistan trying to persuade her mother to allow her to return to the United States for college.

 

“At that time, it was very unusual for Pakistani women to come to America to study,” she said. “The vast majority of women in Pakistan don’t take to reading.” But when Wellesley College offered her a full scholarship, she finally persuaded her mother to let her go.

 

From Wellesley, she went on to pursue a Ph.D. in South Asian history at Cambridge University, where she wrote the dissertation that would provide the foundation for “The Sole Spokesman.” That the individual who had set out to puncture the iconic grandeur of Jinnah was a woman played no small role in the book’s chilly reception in Pakistan.

 

“There is still a great deal of resentment there about that,” she said.

Ms. Jalal credits her father with inspiring her to rethink the partition. As a child, she would listen raptly as he reminisced about Muslim friends who had been left behind in India, which is home to some 120 million Muslims, roughly as many as in Pakistan. If the division of British India and the resulting creation of the Muslim state of Pakistan were really events for Pakistanis to celebrate, he wondered, why were so many Muslims, including many of his dearest friends, still stuck in the predominantly Hindu India?

 

Jinnah’s “Pakistan had to remain part of a larger all-India whole in order to raise some safeguards for Muslims in the minority areas or those who would invariably be left in India,” said Ms. Jalal, who studied the Koran in Arabic as a child and characterizes herself as a secular Muslim with a religiously informed identity.

 

Jinnah died of tuberculosis and lung cancer only a few days after the first anniversary of independence, leaving a leadership vacuum in Pakistan that is often blamed for many of the country’s subsequent political and financial woes. To Ms. Jalal, though, most of those problems can be traced right back to 1947.

 

The proximity to India, she argues, has put Pakistan in the untenable position of trying to square its considerable security costs with its limited economic resources, an imbalance that has in turn taken a toll on the democratic process in Pakistan. Years ago, Zulfikar Ali Bhutto, father of the country’s former prime minister, Benazir Bhutto, predicted that if India got the bomb, Pakistan would too, “even if we have to eat grass.”

 

As it turns out, he wasn’t far off. With the sanctions slapped on Pakistan after the recent nuclear blasts, the flow of international capital into the country has slowed markedly. The country now stands on the brink of bankruptcy, unable to pay the reservicing costs on some $26 billion in external debt incurred largely for military purposes.

 

“The country has paid a hefty price to fend off India,” Ms. Jalal said, “and the price has been Pakistan’s democracy.”

 

Her 1995 book, “Democracy and Authoritarianism in South Asia,” also irked partisans of India and Bangladesh, the Muslim nation that splintered off from Pakistan in a bloody civil war in 1971. In the book, she argued that military nationalism has undermined democracy not just in the two Muslim states but in India, which is generally considered the world’s most populous democracy. And indeed, many Indians are now concerned that the Hindu nationalist government, run by the Bharatiya Janata party, represents a threat to traditional democratic rights.

 

Nonetheless, scholars of India have criticized Ms. Jalal for underestimating the country’s representative government. “The comparison makes me uncomfortable,” said Francine Frankel, director of the Center for the Advanced Study of India at the University of Pennsylvania. “I do feel that India has accomplished what Pakistan could not accomplish through an authoritarian system: It has brought politics to the majority of impoverished humanity.”

 

Ms. Jalal remains unmoved: “Either you’re giving a Pakistani line or you’re giving an Indian line, which I think is very problematic in an academic environment.”

 

The World’s Billionaires

 

[Page 1 \/] Rank Name Citizenship Age Net Worth ($bil) Residence 1 Warren Buffett United States 77 62.0 United States 2 Carlos Slim Helu & family Mexico 68 60.0 Mexico 3 William Gates III United States 52 58.0 United States 4 Lakshmi Mittal India 57 45.0 United Kingdom 5 Mukesh Ambani India 50 43.0 India 6 Anil Ambani India 48 42.0 India 7 Ingvar Kamprad & family Sweden 81 31.0 Switzerland 8 KP Singh India 76 30.0 India 9 Oleg Deripaska Russia 40 28.0 Russia 10 Karl Albrecht Germany 88 27.0 Germany 11 Li Ka-shing Hong Kong 79 26.5 Hong Kong 12 Sheldon Adelson United States 74 26.0 United States 13 Bernard Arnault France 59 25.5 France 14 Lawrence Ellison United States 63 25.0 United States 15 Roman Abramovich Russia 41 23.5 Russia 16 Theo Albrecht Germany 85 23.0 Germany 17 Liliane Bettencourt France 85 22.9 France 18 Alexei Mordashov Russia 42 21.2 Russia 19 Prince Alwaleed Bin Talal Alsaud Saudi Arabia 51 21.0 Saudi Arabia 20 Mikhail Fridman Russia 43 20.8 Russia 21 Vladimir Lisin Russia 51 20.3 Russia 22 Amancio Ortega Spain 72 20.2 Spain 23 Raymond, Thomas & Walter Kwok Hong Kong NA 19.9 Hong Kong 24 Mikhail Prokhorov Russia 42 19.5 Russia 25 Vladimir Potanin Russia 47 19.3 Russia