Wednesday, January 23, 2008

Playing with fire: Plan for Qazi courts

By I.A. Rehman

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.
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