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Playing with fire: Plan for Qazi courts

January 23, 2008

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THE Frontier government’s draft regulation for a switchover to the system of quasi-religious courts in Swat, Dir and Chitral districts amounts to playing with fire. Planned apparently to appease militancy in the area it is likely to make the militants there stronger and facilitate their rise in other parts of the province and in the rest of Pakistan.

To a considerable extent the draft regulation, titled Shar’i Nizam-e-Adl Regulation, 2008, replicates the NWFP’s Shar’i Nizam-e-Adl Regulation of 1999, which was issued for Malakand Agency as the price of truce with Maulana Sufi Mohammad who had occupied the Malakand hills and blocked the passes.

It says all laws applicable to the area will apply subject to established principles of Sharia, and all cases shall be decided in accordance with the Sharia. The cases of non-Muslims in matters of adoption, divorce, dower, inheritance, marriage, religion, religious rites, usages and wills shall be decided in accordance with their personal laws.

In the regulation area a District and Sessions Judge will become Zilla Qazi, an Additional D&S Judge will be Izafi Zilla Qazi, a Senior Civil Judge-cum-Magistrate of Sec 30 will be Aa’la Illaqa Qazi and Civil-Judge-

Judicial Magistrate will be Illaqa Qazi.

A Qazi shall follow the established principles of Sharia and will seek guidance from the Quran and Sunnah. The government may, in consultation with the High Court and the Federal Shariat Court, lay down the procedure.

A Qazi will try his best to dispose of a civil case in six months and a criminal case in three months. Deviations will be liable to penalty by the Zilla Qazi on the Qazi. Subject to the Sharia and the laws in force, a Qazi shall follow the government measures, in conformity with the regulation, and abide by its instructions and directions.

The Qazis will be appointed from among the existing judicial officers in the province who hold the LLM (Sharia) degree or an equivalent degree or have completed Sharia course of at least three months duration from a recognised institution. At another place it is said that already serving judicial officers will be transferred to the new court hierarchy if they have had a three-month course in Sharia at a recognised institution.

Appeals and revisions against decisions by Qazi courts shall lie with the Federal Shariat Court which will enjoy the appellate and revisional jurisdiction of the High Court under the Civil and Criminal Procedure Codes.

A Qazi will be bound to refer matters requiring interpretation of Islamic injunctions to a Muavin-e-Qazi (helper to a Qazi). These Muavineen will be appointed by a committee headed by an FSC judge and comprising the High Court Registrar, two NWFP Secretaries, the DCO of and an aalim from the district concerned. In addition, there will be Aalim Wakeels, equivalent to state attorneys, who will also be registered and de-registered by the committee mentioned above.

Each case, at the initial stage, shall be referred to a mediator or mediators nominated by the parties for resolution. However, cases under Hudood laws and cases by or against the federal/provincial government will not be open to mediation.

The mediators will have two months to decide a matter. In case of failure or undue delay the court will recall the case for decision by itself.

A jirga feature incorporated in the regulation empowers a DCO to take action against a person, a group of people, a community or locality on the basis of collective responsibility to establish amn (peace).

The proposed measure can be assailed on several grounds. The design of court structure and procedure do not accord with the acknowledged principles of judicial appointments and procedure. The sole requirement, in effect, of a three-month course at a recognised institution is firstly meaningless as Islamic law cannot be mastered in three months and, secondly, the system of madressah certificates has been proved to be liable to abuse.

The Qazi will be subject to the advice of Muavineen who will wield real judicial authority and they will be recruited by a committee lacking the expertise and credibility of a public service commission or a judicial forum or even a Bar Council.

Above all, the regulation makes a regressive departure from the scheme introduced in Malakand Agency to secure peace with Maulana Sufi Mohammad’s lashkar in 1999. Under that experiment appeals from Qazi courts lay with the High Court.

Under the proposed regulation they will lie with the Federal Shariat Court. This radical shift will curtail the legal rights of the people in the area and foundations of a dangerous discrimination between them and the population in the rest of the province (and the country) will be laid. The system of collective fines, etc, violates the very basic concepts of justice.

It may be pertinent to recall that such discrimination was a major ground that determined the superior courts’ decisions to strike down the rule of Frontier Crimes Regulation (FCR) in Pata.

However, far weightier than the criticism of technical defects in the scheme are the objections to its flawed assumptions and disregard for the consequences.

First, nobody is going to believe that the regulation is the result of the regime’s legitimate religious zeal. Its sincerity and capacity to enforce Sharia both are questionable.

Quite obviously the regime is solely interested, as it was in Malakand a decade ago, in covering up under religious slogans what are its failures in the administrative, economic and political domains in areas infected with militant clerics.

Secondly, the problem of introducing just and effective laws in Frontier’s Pata (and also in Fata) has a fairly long history. The struggle against the retention of the FCR in Pata began decades ago. Finally in the 80s the Peshawar High Court struck down the colonial legacy and the Supreme Court upheld the ruling.

The political agents and their favourite landlords, who had thrived on the people’s suffering under the FCR, played on the religious sentiments of the population and raised the demand that the FCR should be replaced by a religious code and not by the body of laws in force across the country.

Space restrictions do not allow a full discussion on the subject at the moment, but it should be clear that such a complicated matter cannot be resolved through hasty legislation, and this in the absence of properly elected legislatures.

Finally, the accord with Maulana Sufi Mohammad failed. It alienated the lobby of secular (subcontinental) jurists and annoyed the religious radicals for propagating a spurious variety of religion. But while the former only grumbled the latter stepped up their armed activities.

The new regulation is likely to produce a similar result on a wider scale, over a larger territory. How will the government resist the demands of militants for extending the regulation to the districts in Peshawar and D.I. Khan (former) divisions and elsewhere in the country?

The issue is not whether Sharia should be or should not be introduced. The issue is, and has been since General Zia foisted his personal views as Islam, the exploitation of belief for political and military objectives.

And on that ground it is necessary to dissuade the Frontier government from offering militants a surrender that it will not be able to limit to Swat and Dir.