The fate of over a decade-old Shariah Nizam-e-Adl Regulation, 2009, in vogue in erstwhile Provincially Administered Tribal Areas (Pata), depends on the ongoing proceedings of the Supreme Court in cases related to two laws giving protection to the existing laws in former tribal areas.
While the focus of media and legal circles is on the fate of laws dealing with setting up of internment centres in Khyber Pakhtunkhwa, all the laws in practice in former tribal areas, which are not applicable to rest of the country, will cease to exist if the apex court upholds a judgment of the Peshawar High Court delivered on Oct 17.
These laws also include the Shariah Nizam-e-Adl Regulation (SNAR), 2009, which was promulgated by the Khyber Pakhtunkhwa governor in April 2009. The said regulation provided for appointment of Qazis (judicial officers) well-versed in Islamic Shariah and restoration of executive magistracy system in Malakand division and Kohistan.
This regulation had replaced the Shariah Nizam-e-Adl Regulation of 1999, which had been in practice in former Pata.
The regulation was introduced when militants were controlling several parts of Malakand division, including Swat, Shangla and Buner, and regular courts were non-functional as Tehreek-i-Nifaz-i-Shariat-i-Mohammadi’s chief Maulana Sufi Mohammad had ordered them to stop work.
The law was introduced as an outcome of a peace deal signed between then KP government and TNSM, which the government claimed was aimed at ending militancy and restoring peace in that region.
Soon after the merger of former Fata and Pata into Khyber Pakhtunkhwa through the Constitution (Twenty-Fifth Amendment) Act, 2018, the issue started surfacing regarding the legality of laws applied in those areas specially the two Action (in Aid of Civil Power) Regulation, 2011 for Fata and Pata and SNAR 2009.
As no saving clause was included in the Constitutional Amendment Act to give protection to existing laws, therefore, legal experts believed that with the passage of that Act the existing laws in Fata and Pata also ceased to be applicable.
Due to the same legal complication, the Khyber Pakhtunkhwa government first enacted the KP Continuation of Laws in Erstwhile Pata Act in Jan 2019, followed by introduction of KP Continuation of Laws in Erstwhile Fata Act in April 2019.
Both these Acts provided that the existing laws in former Fata and Pata shall continue to remain in force until altered, repealed or amended by the competent authority.
These Acts were challenged before Peshawar High Court by Advocate Shabir Hussain Gigyani. The high court allowed his petition and declared the two Acts unconstitutional on Oct 17, 2019. Along with these Acts the court also declared unconstitutional the KP Action (in Aid of Civil Power) Ordinance, 2009, which was promulgated on Aug 5 by the governor.
The high court’s judgment was challenged before the apex court by the federal and Khyber Pakhtunkhwa governments and a bench headed by Chief Justice of Pakistan Justice Asif Saeed Khan Khosa has now been conducting hearing in these appeals.
The SNAR was promulgated under Article 247 (now omitted) of the Constitution after then president Asif Ali Zardari gave approval to its summary.
The Regulation defines Shariah as the injunction of Islam as laid down in the Holy Quran, Sunnah-i-Nabvi, Ijma and Qias (analogy). A Qazi or executive magistrate is bound to seek guidance from the said four sources of interpretation of Shariah.
The conduct and character of judicial officer and executive magistrate shall also be in accordance with the Islamic principles. Moreover, all cases shall be decided by the concerned courts in accordance with Shariah.
Under the regulation, the appellate forum of the high court is called as “Darul Qaza” whereas that of the Supreme Court is called as “Darul Darul Qaza.”
The law provides that any person to be appointed as Ilaqa Qazi should be a duly appointed judicial officer in the province, but preference should be given to those judicial officers who have completed Sharia course from a recognised institution.
The SNAR also repealed the Code of Criminal Procedure (Amendment) Ordinance, 2001 – the law through which the executive magistracy was abolished across the country on Aug 14, 2001 – and the former system revived, including the offices of district magistrate, additional district magistrate, subdivisional magistrate and other executive magistrates.
The executive magistrates are empowered to deal with those cases under the Pakistan Penal Code which were punishable up to three years imprisonment; local and special laws; cases pertaining to breach of peace and public nuisance; and, cases pertaining to deviations of licences and permits under relevant laws.
The provisions related to executive magistracy were challenged before PHC, which on April 29, 2015, declared those unconstitutional. The appeals of the provincial government have also been pending before the Supreme Court. The court had given up to six months time to the government to make suitable amendments in the said Regulation so as to bring it in conformity with the Constitution.
The Regulation also focuses on speedy disposal of cases providing that a Qazi would be bound to decide a civil case within six months and a criminal case within four months. A Qazi who fails to comply with this schedule would be issued a letter of displeasure and adverse remarks would be added in his service record if he receives three letters in a year.
Legal experts believe that the provincial government should do its homework what steps it would take in case the apex court upholds the PHC’s judgment and the two Acts regarding continuation of laws in former Fata and Pata are declared unconstitutional.
Published in Dawn, November 18th, 2019