AFTER having declared, somewhat irrelevantly, that he would not “allow” the militants to set up a parallel judiciary in the country, President Zardari has finally agreed to enforce Sharia in Swat — provided of course that the militants restore peace to the region.

While there is a perception that in accepting the demands of the militants, the government has failed its people, the presidential announcement only legitimises a situation that has already come into existence there are more than 70 Sharia courts in Swat, which, according to reports, are not only functioning but thriving.

Does this not suggest that the people of Swat want Sharia courts? If there is even a remote possibility that the answer to this question is in the affirmative then it is important to understand the reasons behind it as well as its implications for Pakistan.

Until it shot to notoriety for its militancy, Swat was perceived as a picturesque and serene valley with the Swatis merely forming the backdrop. The average Pakistani remained oblivious of the legal status of the Swatis, their living conditions and even their unique legal history. It is, however, this very history that holds the key to understanding the Swatis` possible preference for Sharia courts.

At the time of partition, Swat was an independent state, governed by the wali of Swat. The wali acceded to Pakistan in 1969, relinquishing control of his territory to the erstwhile province of West Pakistan. The office of the qazi, that had until then granted justice — swiftly and in accordance with Islamic principles and tribal customs — was disbanded and the region was brought within the jurisdiction of the courts of Pakistan.

Within a year, the procedural and evidential laws in force in Pakistan were also introduced in the region. This legal system was maintained for the next four years — apparently without objection from the Swatis — until the coming into force of the 1973 Constitution.

In terms of Article 246 of the constitution, Swat among other areas, was designated as one of the provincially administered tribal areas or Pata. Under Article 247(1) it came under the direct control of the president who was empowered to administer it through the governor of the NWFP. Under Article 247(3) acts of parliament or the provincial assembly would apply to the region only if the president in his discretion so directed and under Article 247(4) the NWFP governor was given the power to make regulations, with the approval of the president, for “peace and good government” of the region. Most significantly, under Article 247(7) the jurisdiction of the Supreme Court and the high court was ousted, unless parliament legislated otherwise.

When parliament enacted the Supreme Court and High Court (Extension of Jurisdiction to Certain Tribal Areas) Act the same year, it appeared that despite the constitutional provisions, legal matters in Pata might proceed as before. In 1975, however, the NWFP governor, with the approval of the president made the Pata Criminal Law Regulations and the Pata Civil Procedure Regulations ostensibly for “peace and good government” of the area. Pata now had two legal systems one led by the courts and the other by the deputy commissioner. Which matter was tried where was ultimately the decision of the executive and matters pertaining to the government were kept outside the ambit of the regulations.

Both the criminal and civil regulations combined the executive and judicial function in the deputy commissioner, made all fact-finding the domain of the jirga, dispensed with procedural and evidentiary rules and decreed that appeals from a decision of the deputy commissioner could lie only to the commissioner. The regulations were, therefore, not only contrary to the constitution`s avowed commitment to the separation of powers but also to the customs of the region, where even before accession, the jirga had not exercised any formal judicial authority. Most significantly, the regulations at best reflected only the will of the jirga elders and not of the people of Pata.

In 1990, the Peshawar High Court, sitting in judgment over a number of petitions filed on behalf of citizens of Pata, held that the regulations were discriminatory and unconstitutional. The NWFP government, dissatisfied with the decision, appealed to the Supreme Court. In its judgment in the case of Government of NWFP v. Muhammad IrshadPLD 1995 SC 281 a five-member bench of the Supreme Court ruled against the NWFP government, and held that the “...regulations [could not be regarded] as measures conducive to `peace and good government` of the areas for they have not only replaced the ordinary judicial system which is in force in other parts of Pakistan without any apparent justification but have introduced a set-up which is condemned by the residents of the area.”

This relief, however, came too late. The people of the region, worn out by the excesses of the deputy commissioner and the jirga and kept legally and politically isolated from the mainstream, had by then found a voice in Maulana Sufi Mohammad and his Tehrik Nifaz-i-Shariat Muhammadi (TNSM). It was in 1994 that the maulana first called for the establishment of Sharia courts. He claimed that these courts would enforce only such laws as were in consonance with Islam, under the supervision of qazis who would be assisted by the muaveneen-i-qazi. Furthermore, anyone dissatisfied by a decision of these courts would have the right to file an appeal before the Federal Shariat Court.

Maulana Sufi Mohammad`s proposal achieved several objectives. It separated the executive from the judiciary, respected the will of the people to be governed by Islamic laws, and unified Pata`s parallel legal systems under a single umbrella. The proposal was also in accordance with the Objectives Resolution, which forms an integral part of the constitution and envisages a state based on Islamic principles. It was perhaps for all these reasons that from 1994 until 1999, successive governments sought to implement these proposals by making laws for the `Nifaz-i-Nizam-i-Sharia` for the Malakand Division and the Kohistan District — without attracting either attention or censure.

The present cry for Sharia courts is merely another link in this chain of events — with the difference that Sharia has now become synonymous with militancy and regression. Although the apprehensions regarding the enforcement of the Sharia are not unfounded, the government`s present move itself does not present the greatest danger to Pakistan. The real danger arises if the government fails to realise that the situation in Swat today is not only a result of militancy but rather the culmination of a long process of state-sponsored discrimination and further if it is unable to accept that unless discriminatory policies are consciously curbed and people provided recourse to efficient and genuine justice, the situation in Swat will be replicated elsewhere in the country perhaps with even more dire consequences.n

The writer is a barrister based in Islamabad.

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