Enemy at the gates
Capturing Buner has been a cakewalk for the Taliban. What next? That's the million-dollar question the world is asking
By Mushtaq Yusufzai
Extending their writ to the neighbouring districts of the troubled Swat valley, the Maulana Fazlullah-led Swati Taliban has silently but firmly seized control of the strategically located Buner district and strictly enforced their version of the Sharia. Interestingly, the Taliban chose to extend their writ to the adjoining peaceful Buner district at a time when peace had returned to the violence-hit Swat valley as a result of the peace accord with the ANP-led NWFP government and the implementation of the Nizam-e-Adl Regulation.

A show of secular credentials
If the MQM had opposed the legislation during the session, the NAR would not have been passed unanimously. It possibly couldn't and didn't take this course
The Muttahida Qaumi Movement (MQM) has had no shortage of admirers and detractors. Forever controversial due to a host of factors, it seems to be winning genuine supporters for the first time among the liberal elements belonging to the society by loudly opposing the Swat peace deal and the Nizam-e-Adl Regulation.

More power to the executive
The NAR confers unlimited powers to the Executive Magistrate and negates the very concept of justice
By Ghulam Dastageer
The Nizam-e-Adl Regulation 2009 has established, for all practical purposes, a parallel judiciary in its area of jurisdiction, which includes seven districts of the Provincially Administered Tribal Areas (Pata) and Kohistan district of Mansehra Division.

"NAR is an executive order, not a statutory law"
--Aftab Alam, President, Swat Bar Association, and Chairman Malakand Lawyers' Action Committee
By Delawar Jan
The News on Sunday: Lawyers had opposed the Pata Regulation and Nizam e Adl Regulations in 1994 and 1999, but they are supporting the NAR 2009. Is it because they fear the militants?
Aftab Alam: When the Pata Regulation was introduced in 1975, Swat's native lawyers were few in numbers. Zulfikar Ali Bhutto promulgated it temporarily for a period of six months, but it was not repealed till 1990 when the Peshawar High Court declared it null and void on the petition of lawyers. The Supreme Court upheld the verdict of the PHC. It was a flawed regulation which was unconstitutional and against the Sharia. It had a uniform punishment of 12 years for all crimes, whether someone had committed pilfering or a series of murders. After it was annulled, the bureaucracy that had enjoyed unlimited powers under the Pata Regulation wanted to bring back such a system. This was the time when Sufi Muhammad, fully backed by the bureaucracy, made his entry and demanded Sharia. But he was not interested in getting the powers back to the bureaucracy. His struggle resulted in the enforcement of Regulations in 1994 and, later, in '99. But let me make this clear that the lawyers never opposed these.

"Presently, we hope NAR will bring enduring peace"
--Wajid Ali Khan, Minister for Forest, Environment and Wildlife, NWFP, and Awami National Party leader hailing from Mingora town of the troubled Swat valley
By Tauseef-ur-Rahman
The News on Sunday: Is there any difference between the Nizam-e-Adl Regulation (NAR) 2009 and TNSM Chief Maulana Sufi Mohammad's interpretation of Sharia?
Wajid Ali Khan: The NAR was implemented after thorough deliberations and taking all stakeholders on board. Sufi Muhammad's suggestions were also included and I hope he will have a positive view about the Regulation.

"…the legal mess the government is in"
--Khalid Mahmood, Advocate, Lahore High Court, and an activist in the lawyers' movement
By Saeed Ur Rehman
The News on Sunday: As a lawyer who believes in due process, what is your view of the Nizam e Adl Regulation 2009?
Khalid Mahmood: The first question that comes to my mind is the legal mess the government is in for signing this Regulation. TNSM (Tehreek-e-Nafaz-e-Shariat-e-Mohammadi) is a banned organisation and it is impossible to sign a binding legal deal with a banned outfit.

"We accept the Constitution. It is Islamic. But…"
--Ameer Izzat Khan, spokesperson, Tanzim Nifaz-e-Shariat-e-Muhammadi (TNSM)
By Delawar Jan
The News on Sunday: Is the TNSM satisfied with the NAR's enforcement?
Ameer Izzat Khan: We are satisfied but we've yet to see any visible progress on its implementation. We haven't even gone through the draft of the Regulation to be able to determine whether it is in line with the agreement the government has signed. The government should provide a copy for this purpose.

The outrage at the flogging video had barely subsided when the government, in a surprise move, tabled the Nizam-e-Adl Regulation draft bill before the parliament where it was unanimously approved, thus making it easier for the president to sign it.

A lot of things happened alongside. Some respectable journalists were now conclusively saying that the video was not fake as claimed; the flogging incident did take place and the girl and the boy did not admit to the act of flogging for fear of Taliban. Meanwhile the Swat Taliban extended their writ to the neighbouring Buner district, beginning with the usual killing spree and establishing total control.

The flogging video may have faded from memories but was not totally forgotten. This along with dangerous declarations of expansion of Sharia laws by Muslim Khan, the local Tehrik-e-Taliban spokesperson, on television channels, the consensus displayed in the parliament has begun to show cracks.

This is because the provincial government led by the ANP appears to have a different interpretation of the Regulation than Sufi Mohammad, the other major signatory upon whose good will the entire peace deal rests. Sufi Mohammad has openly spoken against democracy and the country's judicial system as guaranteed by the constitution. This has caused a political uproar. Now, MQM is not the only party that openly opposes the Regulation. PML-N, Maulana Fazlur Rehman and even Jamaat-i-Islami's Ameer Munawwar Hasan have spoken against Sufi's declarations.

For the moment the government stands behind the ANP-led provincial government of the NWFP which stands behind the peace deal. The liberal and secular ANP claims to have used the path of negotiations with the perpetrators of terrorism for the sake of peace which remains elusive. The saner elements, who are looking at the situation from outside one must confess, have been predicting this deal as "destructive for the state of Pakistan". ANP's suggestion to them is to give them some workable alternatives considering the ground realities. If not this, then what?

Their sometimes divergent views

There is a coalition government of the PPP and the ANP in the NWFP but it often appears that only the latter is formulating and defending policies with regard to militancy in the province, particularly in Swat.

The two parties are secular and progressive and ought to be natural allies. However, their past alliances didn't last long. It was the ANP that pulled out of its coalition government with the PPP in the NWFP in the past. On one occasion, their coalition government in the province could last for about nine months only. This time the ANP-PPP coalition government has already ruled the Frontier for more than a year and their alliance is poised to stay intact as there evidently is no major divisive factor that could pull them away from each other. One major reason for the relative longevity of their coalition this time around seems to be the fact that the ANP now is dominating the government unlike the previous occasions when the party was the junior partner.

However, the spread of Taliban-inspired militancy and extremism in the province and the government's often wavering response to it could threaten the ANP-PPP alliance. Failure to tackle the Taliban may trigger a blame-game among the coalition partner and poison their relationship. There are certainly issues of power-sharing that serve as irritants in the relations between the two parties. The PPP ministers in the provincial cabinet sometimes complain that they lack power or face interference in the affairs of their departments from Chief Minister Ameer Haider Hoti, who belongs to the ANP. But the PPP and ANP leadership, particularly President Asif Ali Zardari and Asfandyar Wali Khan, have succeeded until now in overcoming differences and respecting each other's mandate. The battle against the Taliban militants, though, has become a matter of life and death for the ruling elite. Facing the brunt of the militants' wrath, the ANP leaders and cadres often complain that they aren't getting enough support from their PPP allies.

The first peace accord in Swat between the ANP-led NWFP government and the Taliban headed by Maulana Fazlullah on May 21, 2008, was negotiated and signed by leaders of both the ANP and the PPP. The ANP signatories to the accord, which lasted two months only and was followed by yet another military operation, were the party's NWFP president and peace envoy Afrasiab Khattak, senior provincial minister Bashir Bilour and two lawmakers from Swat, Wajid Ali Khan who also happens to be a minister, and Dr Shamsher Ali Khan. But there was only one signatory from the PPP and he was provincial minister Rahimdad Khan, who at the time was the party's NWFP president and was subsequently replaced by health minister Syed Zahir Ali Shah. This also explains the PPP's nominal and often low-key role in negotiating and finalizing the first Swat peace accord.

The second peace deal in Swat concluded on February 16, 2009, by the NWFP government and Maulana Sufi Mohammad's Tanzim Nifaz e Shariat-e-Mohammadi (TNSM) was again primarily negotiated by the ANP representatives. Afrasayab Khattak, Bashir Bilour and Wajid Ali Khan were again the principal negotiators along with the provincial information minister Mian Iftikhar Hussain. The PPP representation was once again nominal with provincial ministers Zahir Ali Shah and Rahimdad Khan taking part in the negotiations with Sufi Mohammad.

Subsequently, when the deal over enforcement of Nizam-e-Adl Regulation in Swat, rest of Malakand division and Kohistan district in Hazara appeared to be falling apart, the ANP leaders Afrasayab Khattak and Mian Iftikhar Hussain had to do all the running about to Swat and then to the TNSM headquarters in Amandarra in Malakand Agency where Sufi Mohammad had shifted from Swat's headquarters, Mingora, as a mark of protest over the delay by President Zardari in signing the Regulation into law. Their task was to amuse and convince the ageing TNSM founder not to give up his role as a mediator between the provincial government and the Swat Taliban and as guarantor of the peace deal. Used to issuing deadlines for his demands to be met, the ANP negotiators had a tough assignment while trying to keep the unpredictable Sufi Mohammad in good humour and prevailing upon him to give more time for implementation of Nizam-e-Adl Regulation and setting up of the Sharia-based Qazi courts. The PPP leaders were nowhere to be seen at the time of one after another crisis.

It was also the ANP leadership that forced President Zardari to sign the Nizam-e-Adl Regulation. After having exposed itself to harsh criticism from all sides for talking and making peace deals with militants who committed excesses against their rivals and felt no hesitation in using force to force acceptance of their demands, the ANP didn't want to fail the second time following the collapse of its peace agreement with the Taliban last May. The ANP threat that it would reconsider its alliance with the PPP in case the President failed to sign the Nizam-e-Adl Regulation worked in the end and Mr Zardari complied once the law was endorsed by the parliament. Despite the violation of peace deal by Taliban militants and their decision to enter Buner district in strength, the ANP hasn't given up on saving the accord. The PPP, on the other hand, appears oblivious to the situation.

A grievance that the ANP leaders frequently voice is the sacrifices their party workers offered in the battle against militancy in Swat and elsewhere in the NWFP. Unlike the ANP which lost dozens of party activists who were killed by suspected Taliban militants in suicide bombings and targetted attack, the PPP workers who laid down their lives could be counted on fingertips. Such was intensity of the attacks against ANP members that many among them had to quit the party and do so publicly to avoid harm. Others had to abandon their homes in Swat and other Taliban-infested areas and migrate to Peshawar and other relatively safer places. The Taliban in Swat vented their anger on the ANP people after accusing its leadership of failing to honour the terms of their peace accord. The ANP president Asfandyar Wali survived a suicide bombing in his village in Charsadda and so did Afrasayab Khattak, Bashir Bilour and others in separate incidents. One ANP MPA, Alamzeb Khan, was killed in a terrorist attack in Peshawar. The fear of Taliban seems to be prompting the PPP leaders from the NWFP to refrain from condemning their actions.

The ANP has also shouldered the task of defending the Swat peace deals and the Nizam-e-Adl Regulation. In the process, it had to enter a shouting match with the MQM, which termed the peace deal as a 'fasad' and castigated the ANP for forgetting the teaching of its founder, Khan Abdul Ghaffar Khan or Bacha Khan as he was reverentially called by his Red Shirts followers. The ANP leaders in reaction taunted Altaf Hussain for refusing to return to Karachi out of fear and accused the MQM of using unsavoury and strong-arm tactics while pursuing its brand of politics. The PPP leadership, on its part, cannot afford to annoy the MQM as it is an ally and coalition partner.

If the ANP-PPP alliance were to fall apart in future, the reason most likely to contribute to their parting of ways would be their sometimes divergent views on combating militancy.

Extending their writ to the neighbouring districts of the troubled Swat valley, the Maulana Fazlullah-led Swati Taliban has silently but firmly seized control of the strategically located Buner district and strictly enforced their version of the Sharia. Interestingly, the Taliban chose to extend their writ to the adjoining peaceful Buner district at a time when peace had returned to the violence-hit Swat valley as a result of the peace accord with the ANP-led NWFP government and the implementation of the Nizam-e-Adl Regulation.

It seems the Taliban had already decided that Buner should be their next target and they made it without having to face any resistance either from the law-enforcement agencies or the armed tribal lashkars raised by the local villagers earlier.

After a walkover, they captured the shrine of Pir Baba, an adjacent mosque, a police post and several other government installations. In a brazen way, they patrol in vehicles and go to mosques to 'earn' support for the enforcement of the Sharia in the region. The leadership of the militants, based in Swat valley, had made it clear that the fighters would not leave. This caused concern for the government which has been avoiding use of force to save the tentative peace deal in Swat from a complete demise.

The people of Buner are well aware of the terror tactics the Taliban could employ and fear their presence could be a prelude to the eruption of violence as government forces step in to save the day. The people, who previously defended their district's borders, are now avoiding opposing the militants in a bid to stave off the latter's wrath.

In the April-5 clash between the Taliban and a tribal Lashkar, five people, including three policemen and two volunteers, were killed at Gokand village.

Led by Taliban's fearless commander, Fateh, the militants have established their headquarters at a majestically built three-storey bungalow of a local businessman, Fateh Khan. Commander Fateh is now the most powerful figure in Buner and the entire government machinery has disappeared due to reasons best known to them.

To prove their claim that the people of Buner had welcomed the Taliban, Fateh took this scribe around town in his latest model Toyota pickup truck, where the visibly terrified villagers received him and his fighters with a unique applause -- by raising their hands.

Commander Fateh, who hails from Taliban's stronghold Peochar village in Swat's troubled Matta tehsil and had proved his military prowess in the bloody clashes against the security forces, argued that the prime purpose behind their advance in Buner was to help implement Sharia in its true form.

"There is no other option except following the Taliban regime in the region," a clean-shaven Arif Khan, who recently returned from UAE, told TNS.

Interestingly, there was no a single government official or law-enforcer to be found in the district. Except Daggar, Buner's district headquarters, where three traffic police personnel were regulating traffic flow, the entire district was under the control of the Taliban. They said they had arrested criminals and anti-social elements and put them in their private jails.

The real show, they warned, would begin after the deadline Sufi Mohammad has given to the government expires.

If the MQM had opposed the legislation during the session, the NAR would not have been passed unanimously. It possibly couldn't and didn't take this course

The Muttahida Qaumi Movement (MQM) has had no shortage of admirers and detractors. Forever controversial due to a host of factors, it seems to be winning genuine supporters for the first time among the liberal elements belonging to the society by loudly opposing the Swat peace deal and the Nizam-e-Adl Regulation.

Though the MQM lawmakers boycotted the session of Parliament in which the controversial Nizam-e-Adl Regulation was unanimously adopted without even a faint protest by any political party, it subsequently took a firm stand outside the House against the new law for Swat and rest of Malakand division and for Kohistan district in Hazara. If it had opposed the legislation during the session the Nizam-e-Adl Regulation would not have been passed unanimously. It possibly couldn't and didn't take this course as this would have strained its ties with the PPP, which happens to be its political ally and coalition partner. This in a way explains the compromises that the political parties in Pakistan make to sustain alliances and stay in power.

There are certain things that make the MQM different than the other political parties. Unlike the rest, it was probably the first new party that emerged on the political landscape of Pakistan after a long period and immediately made its presence felt. The last time a new party had taken roots soon after its founding was Zulfikar Ali Bhutto's PPP in the 1960s. Another unique MQM characteristic is its middle class composition and leadership. This enables it to look at events and issues differently than the mainstream political parties that are dominated by wealthy landowners and industrialists and mostly led by known families. It was also the first political party to change its name in an attempt to shed its ethnic image as a party of Urdu-speaking Mohajirs concentrated in urban Sindh and do politics at the national level. However, its efforts to widen its appeal and seek support from non-Mohajir ethnic groups have thus far failed to make any real headway despite calling itself Muttahida Qaumi Movement instead of Mohajir Qaumi Movement.

Apart from other reasons, the clear stand that the MQM has taken with regard to the Swat peace deal and Nizam-e-Adl Regulation also appears to be an attempt to seek wider supp ort beyond its solid Mohajir votebank. Virtually non-existent in the Pashtun-majority NWFP despite making a major effort during the 2008 general elections in which it put up candidates in a number of assembly constituencies, the MQM can afford to take a non-compromising stance on issues affecting the people in Swat, Malakand division and rest of the province. It won't lose any voters or supporters even if it took a stand that most people in the NWFP don't like. It could also be argued that the MQM stance is principled and in keeping with its secular credentials without bothering that it could deprive it of its votebank or worrying about its fallout in its own traditional, Mohajir-populated strongholds. Its own votebank remains solid and enough to win assembly seats despite a falling graph in successive elections.

It is often said that the MQM needs to remain in power to retain its effectiveness and influence the outcome of elections. Critics and political opponents argue it won't be easy for the MQM to achieve the kind of electoral victories it routinely manages without using strong-arm methods and controlling levers of power. Though it has the right to claim a share in power in Sindh and at the Centre on the strength of its electoral performance, the MQM doesn't mind becoming part of coalition governments with strange bedfellows. Its leaders also have become adept at exploiting state resources, inducting its members in government departments and obliging supporters in the law-enforcement agencies and among influential sections of the society with an eye on winning future polls. Like most other parties, MQM also stands accused of practising patronage-based politics by looking after the needs of its own and neglecting those who may have voted against it or belong to rival political forces.

Still firmly in control of the party despite staying away from Pakistan for years, the London-based Altaf Hussain has also been warning the people of Karachi about the creeping Talibanisation in the city. This fits in with the MQM's criticism of the Swat deal and the Nizam-e-Adl Regulation as the party considers it the government's capitulation to the militants and appeasement of the Taliban. However, the MQM doesn't seem to have any intention to quit the coalition government in protest. Instead, it wants to enjoy authority as part of the ruling coalition and also perform the role of an opposition. Maulana Fazlur Rahman's JUI-F, too, is behaving in the same manner.

As Taliban are overwhelmingly Pashtun and the May 12, 2008, Karachi violence allegedly sponsored by the MQM mostly targeted them, the more than two million Pashtuns living there and their relations and well-wishers in the NWFP and Balochistan are concerned that the MQM's drive against Talibanisation is aimed at marginalising and eventually expelling them from Pakistan's biggest and richest city. This is one major reason for the MQM's inability to find supporters among the Pashtuns even though some of them with liberal, secular and nationalist leanings felt that Altaf Hussain's party did better than their favourite party, ANP, by standing up to the Taliban.

The Nizam-e-Adl Regulation 2009 has established, for all practical purposes, a parallel judiciary in its area of jurisdiction, which includes seven districts of the Provincially Administered Tribal Areas (Pata) and Kohistan district of Mansehra Division.

Paragraph 7(4) of the Regulation provides legislative powers to the Executive Magistrates: "The cases included in Schedule-III to this Regulation shall be exclusively tried by Executive Magistrates."

The Schedule-III says, "(a)all offences under Pakistan Penal Code (PPC) punishable with imprisonment up to three years with or without fine; (b)all offences punishable under Local and Special Laws punishable up to three years with or without fine; (c)cases for prevention of breach of peace and public nuisances under the PPC and the Code of Criminal Procedure, 1898; and (d)cases pertaining to deviations of licenses and permits under relevant laws applicable to the said area."

Clause V of Paragraph 5 of the Regulation provides the Courts of Executive Magistrates which neither exist in any other law of the land, nor the presiding officer of the proposed Court of Executive Magistrate comes under the ambit of Qazi as defined in clause (g) of Paragraph 2 which states: "Qazi means a duly appointed judicial officer as specified and designated in column 3 of Schedule-II (of the Regulation)."

The said column of the Schedule-II clarifies that a Zilla Qazi would be a district and sessions judge, Izafi Zilla Qazi, an additional district and sessions judge, Aa'la Illaqa Qazi a senior civil judge/judicial magistrate (under Section 30 of the Criminal Procedure Code, 1898) and Illaqa Qazi would be a civil judge/judicial magistrate.

In short, one can conclude that the Qazis would be judicial officers who would be under the administrative control of the Peshawar High Court. However, the Regulation through its Paragraph 7(4), has empowered the executive magistrates to perform judicial functions putting them under the administrative control of District Magistrate, which is against the judgments of the Supreme Court and the Constitution.

Article 175(3) of the Constitution of 1973 states: "The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day." Likewise, the Supreme Court of Pakistan in Mehram Ali Vs Federation of Pakistan case observes: "The judiciary is independent of the Executive and Legislature and has jurisdiction, directly or by way of review, over all issues of a judicial nature... Articles 175, 202 and 203 of the Constitution provide a framework of judiciary i.e. the Supreme Court, a High Court for each Province and such other Courts as may be established by law."

The same verdict further states that "such other courts as may be established by law" are related to the subordinate courts. The judgment adds that under Article 203 of the Constitution read with Article 175 the supervision and control over the subordinate judiciary vests in High Courts, which is exclusive in nature, comprehensive in extent and effective in operation.

"The hallmark of our Constitution is that it envisages separation of the judiciary from the executive (which is founded on the Islamic judicial system) in order to ensure independence of judiciary and, therefore, any court or tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution."

A close analysis of the provisions of the NAR shows that it confers unlimited powers to the executive to administer criminal justice.

The constitution is based on the principle of the 'trichotomy' of power in which the executive, the legislature and the judiciary have their own functions independent of each other. None of these three organs is dependent upon the other nor can it claim superiority over the other.

Given this context, to impose executive officers to carry out the judicial work by ignoring the courts established in that area by itself creates discrimination and negates the very concept of justice and violates fundamental rights.

Another aspect of the Regulation is that by its certain provisions the right of access to regular courts and justice has been denied. This is an infringement of fundamental rights which provide that every citizen shall be entitled to equal protection of law and will not be deprived of life or liberty.

Even in such cases where special tribunals are constituted, arbitrary powers cannot be conferred on executive for appointing persons of the tribunal, providing the procedure or imposing any sentence or conviction. Such special tribunal and courts must follow the ordinary rules of justice, equality and good conscience.

Furthermore, the Regulation holds executive magistrates as subordinate to the district magistrates whereas Section 14(1) of the CrPC states: "The provincial government may, on the recommendation of the High Court, confer upon any person, including a former Executive Magistrate, all or any of the power conferred or conferrable by or under this code, on a judicial magistrate."

However, in the NAR, no such concurrence from the High Court has been sought.

Similarly, Section 17 of the CrPC says, "All magistrates appointed under Section 12 and 14 ... shall be subordinate to the sessions judge." But, under the NAR, the executive magistrates come under the control of District Magistrate.

To give legal cover to the establishment of the parallel judiciary, the Regulation has repealed the Code of Criminal Procedure (Amendment) Ordinance, 2001 through which judiciary was separated from the executive.

The Preamble (of the NAR) which states that "whereas it is expedient to provide for Nifaz-e-Nizam-e-Sharia through Courts…" indicates that the provincial lawmakers intend to legislate upon courts' jurisdiction. But, according to law, matters regarding "Jurisdiction and powers of all courts" is a federal subject (enumerated at serial number 55 of Federal Legislative List of the Constitution). As such, like matters fall within the legislative competence of the Parliament and not the Provincial Assembly.

Paragraph 4 of the Regulation deals with the effect of un-Islamic laws in PATA. If there appears an un-Islamic provision in any law, the Federal Shariat Court under Article 203(D) of the Constitution, has the power to examine and decide whether any law or its provision is repugnant to the injunctions of Islam or not. So the said paragraph is directly in conflict with Article 203(D) of the Constitution.

The News on Sunday: Lawyers had opposed the Pata Regulation and Nizam e Adl Regulations in 1994 and 1999, but they are supporting the NAR 2009. Is it because they fear the militants?

Aftab Alam: When the Pata Regulation was introduced in 1975, Swat's native lawyers were few in numbers. Zulfikar Ali Bhutto promulgated it temporarily for a period of six months, but it was not repealed till 1990 when the Peshawar High Court declared it null and void on the petition of lawyers. The Supreme Court upheld the verdict of the PHC. It was a flawed regulation which was unconstitutional and against the Sharia. It had a uniform punishment of 12 years for all crimes, whether someone had committed pilfering or a series of murders. After it was annulled, the bureaucracy that had enjoyed unlimited powers under the Pata Regulation wanted to bring back such a system. This was the time when Sufi Muhammad, fully backed by the bureaucracy, made his entry and demanded Sharia. But he was not interested in getting the powers back to the bureaucracy. His struggle resulted in the enforcement of Regulations in 1994 and, later, in '99. But let me make this clear that the lawyers never opposed these.

TNS: But there are documented proofs that the lawyers did oppose both the regulations.

AA: There might have been certain individuals who had objections but they did not represent the lawyers as a community.

TNS: Do the lawyers support the present NAR?

AA: We do, because it does not hamper us or disturb the judicial system. The NAR is an executive order, not a statutory law or something freshly inducted in the Constitution. Thus, an executive order cannot disturb any provision of the Constitution.

Secondly, we believe the NAR will improve the performance of judiciary as far as quick disposition of cases is concerned. Besides, we will have PHC and SC benches here which will help facilitate the people.

TNS: Sufi Muhammad has asked the lawyers to stop appearing in courts and the judges to pack up. Do you think your profession is under threat?

AA: Like I said, the NAR does not hamper us or put an end to our professional careers. Back in 1994 and 1999 also, the people were of the opinion that the lawyers would be stopped from appearing in courts, but that did not happen. Our role is safeguarded by the Constitution, the statutory laws and the Sharia. If one appears before a Sharia court, he does not commit a sin, and I think all courts in Pakistan are Sharia courts in that they also award Sharia punishments to culprits.

TNS: What action will the lawyers take if they are asked to quit?

AA: We will use all constitutional and legal means to safeguard our rights. We believe in Allah's ruling, not the one interpreted by a certain individual.

TNS: Does the NAR affect the basic rights of the minorities or pose a threat to them?

AA: It does not affect the basic rights of the people as they have constitutional protection. In fact, the Regulation has bound the Qazi courts to decide cases in accordance with the beliefs of all sects, including the minorities.

TNS: Does the NAR place any bar on the Peshawar High Court and the Supreme Court from taking up cases from the Malakand region or from taking suo moto notices?

AA: The NAR does not affect the powers or the role of the PHC and the SC. The benches at the divisional level to be called as Darul Qaza and Darul Darul Qaza will represent the PHC and the SC respectively. There are PHC and SC benches in other areas, too. Supreme Court's Chief Justice will also be our chief justice.

As far as the suo moto notices are concerned, the superior courts can take notice of any incident they deem fit and then refer it to the Malakand benches.

TNS: Don't you think the TNSM has miscalculated the NAR by making such demands that go against the Regulation? AA: To be honest, NAR's implementation is not the militants' issue. As for Sufi, he and his organisation were taken on board when the NAR was being drafted and the TNSM had also been given an Urdu version of NAR. I don't know why they are making such demands about Qazis. There is a provision for executive magistrates but not for Sufi-styled Qazis.

The News on Sunday: Is there any difference between the Nizam-e-Adl Regulation (NAR) 2009 and TNSM Chief Maulana Sufi Mohammad's interpretation of Sharia?

Wajid Ali Khan: The NAR was implemented after thorough deliberations and taking all stakeholders on board. Sufi Muhammad's suggestions were also included and I hope he will have a positive view about the Regulation.

TNS: How do you see Sufi Mohammad's recent statements about superior courts being "un-Islamic"?

WAK: Well, he (Sufi Muhammad) has said before that he accepts the Constitution of Pakistan; as such he must honour all its provisions without any ifs and buts. He recognises Darul Qaza and Darul Darul Qaza, which are only Islamic names for High Court and Supreme Court respectively.

TNS: Who will be the appointing authority for the Qazis?

WAK: In the NAR there is a set prequalification for the Qazi. It is beyond doubt that the appointing authority is the government of NWFP.

TNS: What will happen if TNSM interferes in the appointment of the Qazis?

WAK: Why should they interfere? If they accept the Constitution, I see no reason for their interference.

TNS: What is your take on Taliban's recent activities, particularly the kidnappings of security officials?

WAK: After the peace deal, the situation is gradually improving in the region. Taliban have welcomed the NAR and, in my view, when they have accepted the Regulation they will also accept all rules and regulations that follow. Katwai chee da woor na koza hum ke, nu lag saat la para garma ve (the pot boils for sometime even after it's removed from fire). There may be some criminal elements that are still carrying out such activities.

TNS: Don't you think the peace deal will provide further leeway to the militants who have already made inroads into Buner and Dir?

WAK: I think we should concentrate on the positive aspects right now. Let the NAR be implemented. Only after analysing its performance would one be in a position to comment.

TNS: Is there any plan by the government to take action against those who committed atrocities in the Swat valley?

WAK: All this is premature. Our focus is on restoring peace in the Valley. First, we have to restore peace in the real sense along with the establishment of the government writ. Other issues will be addressed later, accordingly.

TNS: How you will respond to the objections raised by the MQM leadership and the liberal forces on the NAR?

WAK: I think none of them knows what the ground reality is. They should visit the valley and talk to the locals to be able to judge the real situation. They also need to read the NAR before they express their views. The NAR was passed by the National Assembly and supported by all parties except one. We had two options: either to fight or to negotiate. Those who have a third option for resolving the issue are welcome to offer their suggestion.

The government is also facing a dilemma. If it uses force, it faces criticism and if it negotiates, it still faces flak. These intellectuals are supposed to offer us solutions not unreasonable criticism. We had to save the life and property of the people of Swat and the peace deal brought a considerable relief to the people. The human rights organisations should concentrate on the humanitarian aspect instead of criticising the NAR. People have suffered a lot because of the militancy. Society in the Valley was completely disturbed, schools destroyed and people rendered homeless. The people in the region have the right to education, health and justice. The NGOs should take up issues which are the result of the war.

Some problems will be solved through the evolutionary process.

TNS: What in your opinion is the political future of the ANP, particularly the democratic electoral process in Swat, in the light of what Sufi Muhammad has termed as a system of infidels?

WAK: Sufi Muhammad has issues with the justice system in democracy; he is not challenging other social aspects. He negotiated with the people who came to power through a democratic process.

TNS: What could be the impact of such deals with the militants in the long run?

WAK: I hope the peace deal and the NAR will have a positive impact. The NAR was the longstanding demand of the people of Malakand. Now, if certain elements are on another trip, time will expose them. Presently, we hope the NAR will bring enduring peace in the region.

The News on Sunday: As a lawyer who believes in due process, what is your view of the Nizam e Adl Regulation 2009?

Khalid Mahmood: The first question that comes to my mind is the legal mess the government is in for signing this Regulation. TNSM (Tehreek-e-Nafaz-e-Shariat-e-Mohammadi) is a banned organisation and it is impossible to sign a binding legal deal with a banned outfit.

TNS: What are the implications of the Taliban declaring the Common Law un-Islamic?

KM: There are many Islamic practices which are recognised in Common Law which has its origin in the British legal system. For example, the Muslim Family Law Ordinance of 1961, which was promulgated by Ayub Khan, allowed for the nikah nama to become a bona fide civil document. There are many other instances where Islamic practices are now part of the Common Law as it is practiced in Pakistan. If the Taliban declare the Common Law un-Islamic, they will have to come up with Islamic alternatives of nikah nama and marriage registration.

TNS: So, what is the appeal of this Regulation? People are saying it will provide speedy justice. Do you think this is a valid argument?

KM: Speed in itself is not such a positive thing. You may have heard of the proverb 'Justice delayed is justice denied'; but there is another side to this: justice hurried is justice buried. In the NAR, speed is the core issue. All civil cases have to be dealt with in 6 months' time and criminal cases within 4 months. What if a defendant is in another city or country? What will they do in the messy situations? Dismiss the cases which cannot be decided in 6 months?

TNS: What about the issue of not having any higher courts to turn to?

KM: Lower courts get guidance from higher courts and preceding decisions or precedents. This Regulation does not provide any guidance about where to seek guidance from? Maybe they will have to turn to the courts of Saudi Arabia for precedents but it is not written in the Regulation.

TNS: What do you think about the Qazis who have to be of good character and conduct? Don't you think this requirement will become a burden on the system itself?

KM: The Regulation uses vague language and does not define "good character" or "conduct". So they will have to arbitrarily decide in every situation whether a Qazi is suitable or not.

TNS: You have been involved in the lawyers' movement for the restoration of the Chief Justice. Do you think the lengthy court procedures of Common courts and lawyers may be making the 'Talibanised' system of justice more attractive for the people of the region?

KM: Lawyers symbolise debate and representation. There has to be someone who can represent the defendant and who knows the language of the judicial system. The absence of lawyers is often a sign of totalitarian regimes. Look at Saudi Arabia, for example. The police can decide the case after looking at the evidence and that's the end of discussion. That is not justice. And how can you have justice without an appellate forum? There has to be a system of redress when the law injures.

TNS: So what should the government do?

KM: The government should try to make the present system more appealing to the masses. Let's suppose someone from Swat goes to Mardan and finds the legal system there more humane and prompt; he is more likely to turn to the system where both parties get a chance to argue their point of view.

Another option can be that the government should let the Nizam e Adl go ahead and watch and see if it makes the people of Swat are happy. If people are disgruntled, the Taliban will have to come up with something more acceptable to the people.

The News on Sunday: Is the TNSM satisfied with the NAR's enforcement?

Ameer Izzat Khan: We are satisfied but we've yet to see any visible progress on its implementation. We haven't even gone through the draft of the Regulation to be able to determine whether it is in line with the agreement the government has signed. The government should provide a copy for this purpose.

TNS: Government sources say they not only consulted the TNSM in drafting the law but also provided an Urdu version of the document after it was finalised. Is it true?

AIK: They did consult us but did not provide the draft's copy. We gave the government a document that had TNSM's recommendations. It was duly signed by Sufi sahib. We would like to know whether those recommendations were incorporated or not.

TNS: What were the major points of that document?

AIK: Eligibility issues of a Qazi, how he would operate his court, and so on.

TNS: Do you think the TNSM and the government could develop differences on such details?

AIK: I will be in a better position to comment once I have read the copy that is provided to us.

TNS: The Regulation has no place for the Qazis the way the TNSM demands. The Qazis, according to the NAR, will be duly appointed judicial officers. Would that be acceptable to you?

AIK: We'd have no objection if they were fulfilling the criteria for becoming an Islamic Qazi who knows well about the Sharia.

TNS: Who will determine the Sharia knowledge of a Qazi and who will appoint or transfer him?

AIK: Before his appointment to the post of the Qazi, each and every candidate will be personally interviewed by Sufi Muhammad who will determine his knowledge about the Sharia. If Sufi sahib does not deem him fit for the post, the candidate will be rejected.

As far as transfers are concerned, no Qazi could be transferred from the Malakand division once he is appointed. Also, no judge from other parts of the country could be transferred to Malakand.

TNS: Will Sufi or the TNSM continue with this process for long?

AIK: No. Once Darul Qaza comes into existence, it will make appointments and transfers of Qazis on its own.

TNS: Will you accept the judicial set-up given in the NAR, such as the session judge as Zilla Qazi, additional district and session judge as Izafi Zilla Qazi and so on, even if the Qazis were adequately fulfilling your criteria?

AIK: No. We have clearly told the government that it will be a three-tier judicial system comprising a tehsil Qazi, district Qazi and Darul Qaza. Once a case is decided by Darul Qaza, it will not be processed any further or challenged in any court.

TNS: There is also a provision for Darul Darul Qaza in the NAR, but you did not mention it?

AIK: We have agreed with the government only on the establishment of Darul Qaza which will have administrative control over Malakand judiciary.

TNS: Who will the Qazis in Darul Qaza comprise -- High Court and Supreme Court judges or the ulema?

AIK: These judges are not acceptable to us at any cost. The ulema will run Darul Qaza.

TNS: Have you recommended any names for the Aalim of Darul Qaza's Qazi?

AIK: Yes, we've recommended three names: Amir Gulab, a retired session judge, Maulana Shamsul Haq Hanif, and Mufti Habibullah.

TNS: Sufi Muhammad accepts the Constitution and the government but would not respect judiciary and democracy both of which are guaranteed in the Constitution. He recently made some very controversial statements. Don't you think Sufi's policy is self-contradictory?

AIK: We accept the Constitution. It is Islamic. But the Constitution is not being implemented in letter and spirit. The Constitution says there could be no law repugnant to the Quran and the Sunnah in the country, but the Supreme Court allows interest-based banking system which is strictly forbidden.

TNS: Do you think the NAR's target of restoration of peace has been achieved?

AIK: No. The NAR has been formally enforced but not implemented yet. Its implementation is what will serve the real purpose.

TNS: It is said that Sufi Muhammad and the TNSM have not put a stop to the militants' activities in Swat and their march towards other districts despite unprecedented flexibility shown by the government and the enforcement of the NAR? Comment.

AIK: It's because of the delay in the implementation of the NAR. Taliban are doing so as a reaction. They fear the government will cheat them.

TNS: Why don't they leave the other captured areas or lay down arms as promised?

AIK: Talibans are locals in every area. Even if Sharia is implemented, they will not leave their native lands. Also, they will not lay down arms as it is against Pakhtun traditions.

TNS: What about rocket launchers and other heavy weaponry?

AIK: (Avoiding the question) Sharia guarantees peace; all problems will automatically be solved once it is implemented.