THE NWFP governor on April 15 promulgated the Sharia Nizam-i-Adl Regulation (SNAR), 2009, with the approval of the President of Pakistan. Since the introduction of the law a bitter debate has been going on between the supporters and opponent of this law.

The Nifaz-i-Nizam-i-Sharia Regulation of 1994 and the Sharia Nizam-i-Adl Regulation of 1999 had also remained under discussion when these were promulgated by the then governments in the Provincially Administered Tribal Areas. However, this time the debate is more intense due to the prevalent wave of militancy in different parts of the Federally Administered Tribal Areas (Fata) and NWFP.

The critics of the law believe that the both the provincial and federal government have surrendered to the militants and the SNAR is introduced at gunpoint. They believe that this act of the government would encourage militancy in other areas and the spillover effect would be beyond the control of the government.

Contrary to that view the provincial government and other supporters claim that in the prevalent circumstances when the military option was heading towards a failure and the government was under intense pressure due to massive collateral damage in Swat, they were left with no other option but to enter into a deal with the proscribed organisation, Tanzim Nifaz Shariat-i-Muhammadi (TNSM).

They claim that they had not been establishing a parallel judicial system under the SNAR and in fact the law was a modification of the earlier two regulations of 1994 and 1999.

Whatever is the opinion of the two sides it remains a fact that there are certain grey areas in the regulation which need to be clarified. While the TNSM chief Maulana Sufi Mohammad, on whom the provincial government has been banking in its peace initiative, continues to give different statements regarding the future judicial set-up in Malakand region, the provisions of law speak otherwise.

Maulana Sufi Mohammad on different occasions stated that the functioning of regular courts in Malakand was against Islamic Sharia and against the agreement signed by the provincial government. Following the threats given by him the regular courts stopped functioning in Swat since March 17.

It is still not clear as to what extent the provincial government would accommodate Maulana Sufi Mohammad. The appointment of qazis is a thorny issue.

The regulation provides that duly appointed judicial officers shall be appointed as ilaqa qazi but preference shall be given to those who have completed shariah course. However, Maulana Sufi Mohammad`s definition is different as he has already barred the regular courts from functioning in Swat.

Apparently controversy would emerge over these appointments.

Since the promulgation of the Nizam-i-Sharia Regulation in 1994 the nomenclature of the judicial officers in Pata was changed. The district and sessions judge has been called as zila qazi; additional district and sessions judge as izafi zila qazi; senior civil judge as aa`la ilaqa qazi and civil judge as ilaqa qazi. Same is the nomenclature given in the present regulation.

The description about the two appellate forums -- Darul darul qaza and darul qaza -- given in the regulation is vague. The definition of darul darul qaza is given as “the final appellate or revisional court, in the said area, designated as such, under this regulation, in pursuance of clause (2) of Article 183 of the Constitution of Islamic Republic of Pakistan.”

Moreover, darul qaza is defined as “appellate or revisional court constituted by government in the said area, under clause (4) of the Article 198 of the Constitution of the Islamic Republic of Pakistan.”

The darul darul qaza is believed to be a bench of the Supreme Court which would be available in Malakand. Under Article 183 (2) of the Constitution the Supreme Court may from time to time sit in such other places as the Chief Justice of Pakistan, with the approval of the President, may appoint.

Similarly, the darul qaza will act as a bench of the high court stationed at Malakand. Under Article 198(4) of the Constitution each of the high courts may have benches at such other places as the Governor may determine on the advice of the cabinet and in consultation with the Chief Justice of the high court.

The government has already given approval for the establishment of a circuit bench of the Peshawar High Court in Malakand last year. That was a long standing demand of the inhabitants of those areas. The government has avoided using the terms Supreme Court and high court in the regulation as it did not want to annoy Maulana Sufi and the militants.

Appointment of judges to the said two appellate forums is also a focus of attention. The TNSM chief has earlier stated that Amir Gulab Khan and Maulana Shamsul Haq had been selected as qazis for darul qaza.

Amir Gulab is a controversial figure, who has served as district and sessions judge and provincial law secretary. Some of his judgments had created controversies as he claimed that those were decided in accordance with Sharia and were set aside by the Peshawar High Court.

The regulation authorises a qazi or executive magistrate to seek guidance from Holy Quran, Sunnah, Ijma and Qiyas for the purpose of procedure and proceedings for conduct of cases and shall decide the same in accordance with Sharia.