opinion
Political versus judicial fundamentalism
In a scenario where the PPP's politics of denial is countered by the lawyers' politics of delusion, what is the way out of the constitutional crisis
By Faisal Siddiqi
The lawyers and the PPP are heading for a tragic confrontation with each other. It is tragic because this is a confrontation between forces of democratic politics and constitutionalism in Pakistan. It is tragic because democratic politics without constitutionalism is blind and constitutionalism without democratic politics is empty and this is precisely the reason as to why this conflict is really a dispute within the Pakistani family of constitutional democracy. It is a family dispute in which the separation has already taken place and March 16, 2009, is the date fixed for the divorce proceedings.

Taal Matol
Time to make up our mind
By Shoaib Hashmi
It was bound to happen I suppose. We follow the Lunar calendar for most of our traditional festivals and occasions, but the normal solar calendar for everything else. Now the Lunar calendar is about ten days shorter than the other one, so in a period of thirty-five years it goes all across the Solar year. This year the Day of Data Gang Buksh, the patron saint of Lahore which is determined by the Lunar Calendar, fell on fourteenth February which happens to be Saint Valentine's Day.

issue
Secularism or peace
The Nizam-e-Adl Regulation, 2009, is being seen by the people of Swat as a harbinger of peace rather than of speedy justice
By Behroz Khan
The jubilation of people after the peace deal was indeed overshadowed by the brutal murder of Geo TV correspondent in Swat, Musa Khankhel. Apart from this latest violent incident, civil society groups of the country as well as the international community have expressed their scepticism, terming it a total surrender to the militants involved in the worst human rights violations.

Before the bliss
If the legislation is approved, pre-marital blood screening will be mandatory
By Alefia T. Hussain
The jubilation of people after the peace deal was indeed overshadowed by the brutal murder of Geo TV correspondent in Swat, Musa Khankhel. Apart from this latest violent incident, civil society groups of the country as well as the international community have expressed their scepticism, terming it a total surrender to the militants involved in the worst human rights violations.

RIPPLE EFFECT
Caving in to obscurantism yet again
By Omar R. Quraishi
The so-called peace deal reached between the ANP government and the leader of the Tehrik-e-Nifaz-e-Shariat-e-Mohammadi, Maulana Sufi Mohammad, in Swat is nothing more than an abject surrender to the forces of militancy and obscurantism in the country. As expected, it has ended up polarising society many people heaving a sigh of relief that now the violence would perhaps end, while others have been dismayed by what they see as the government's surrender to the rapidly increasing wave of Talibanisation. The most obvious question that comes to mind and it was encapsulated well by a reader of this newspaper Bilal Habib of Washington DC who sent in a letter where he asked the government of Pakistan that would be it agree to implement Sharia if, say, the people of Larkana or Karachi also demanded its imposition?

 

Political versus judicial

fundamentalism

In a scenario where the PPP's politics of denial is countered by the lawyers' politics of delusion, what is the way out of the constitutional crisis

By Faisal Siddiqi

The lawyers and the PPP are heading for a tragic confrontation with each other. It is tragic because this is a confrontation between forces of democratic politics and constitutionalism in Pakistan. It is tragic because democratic politics without constitutionalism is blind and constitutionalism without democratic politics is empty and this is precisely the reason as to why this conflict is really a dispute within the Pakistani family of constitutional democracy. It is a family dispute in which the separation has already taken place and March 16, 2009, is the date fixed for the divorce proceedings.

But, like all family disputes, the separation and divorce between the PPP and lawyers will have repercussions on their only legitimate child -- democratic constitutionalism, and each of the parent is under the illusion that he or she is the best thing for the child and that the other parent is, at best, irrelevant and, at worst, a dangerous influence.

How did we get to this tragic situation? Is it simply because the lawyers are MAD and the PPP is BAD? As Farah Zia rightly points out in one of her recent articles in TNS "The case of Iftikhar Chaudhry", this confrontation between the lawyers and the PPP has to be contextualised, and not simply understood in terms of moral or intellectual debates. The immediate structural and historical context of this confrontation is crystal clear. It is the political and legal contradictions created by the military-bureaucratic junta of Pervez Musharraf, with the chief architect being the jadugar of constitutional destruction, Syed Sharifuddin Pirzada alias S.S.P. [i.e. senior superintendent of the judicial police].

After any transition from military rule to democratic politics, any political government in this transitional phase of democracy has only three priorities i.e. political security, political security and political security. In other words, how to complete its tenure without either being overthrown or killed by the military-bureaucratic junta? This is the context of fear out of which the PPP is opposing the lawyers' movement.

Any transitional phase of democracy has always led to violent political contradictions or infighting within the democratic forces e.g. between the PPP and the Awami league of Sheikh Mujib etc. Of course, this latest version of the S.S.P.'s military-bureaucratic illegal architecture has also led to legal contradictions resulting in a constitutional crisis, which basically has two parts. First, the conflict between the PCO and non-PCO judiciary; and second, the existence of two constitutions i.e. a PCO and a non-PCO constitution, and the confusion about what is the supreme law that is acceptable and applicable in Pakistan.

Pakistan is a land of fundamentalisms: Islamic fundamentalism [Zia and his off springs], liberal fundamentalism [Musharraf] and imperial fundamentalism [Americans] to give a few examples. At the heart of all these fundamentalisms is the core belief that my view is the only right view and, therefore, all must obey my commands, or else, violence will be used. Being born and bred in this country of fundamentalisms, how can the PPP and the lawyers not invent their own brand of fundamentalism?

For the military-bureaucratic establishment, constitutionalism is an obstacle which needs to be subverted and misused. For the PML-N, constitutionalism has been a useful means for party political ends. But for the PPP, constitutionalism is a necessary evil, which has to be tolerated. This view of 'constitutionalism as a necessary evil' is at the heart of the PPP's ideology of 'political fundamentalism'. This political fundamentalism is not the result of moral decay or intellectual decadence but, apart from other reasons, is also a consequence of the development of the PPP as a democratic political party without any political commitment to constitutionalism. The historical narrative is as follows. Zulfiqar Ali Bhutto was an Oxbridge trained constitutional lawyer who became a staunch supporter of Ayub's un-constitutional regime in order to gain one of the main existential aims of politics i.e. political power. After falling out with Ayub, he decided to engage in democratic politics because that was the anti-Ayub political game in town. Therefore, the original sin of democratic politics had been committed and constitutionalism was its un-avoidable sleeping partner. But apart from the executive and the legislature, constitutionalism also has a third sleeping partner -- an independent judiciary. The PPP could tolerate these sad realities of constitutionalism and its legitimate child -- an independent judiciary -- as long as politics had primacy and predominance.

In de-jure and de-facto terms, it meant that the party and its political power expressed through a monopolising executive, or through a controlled parliament in the hands of the party executive, must be absolutely supreme. Bollywood and the constitution are wrong because neither Singh nor Parliament is king but rather the party executive was the true king. This is an ideology of political fundamentalism of the PPP, in which the only existential commitment is to gain and sustain executive political power through electoral politics. There is no political commitment to constitutionalism or its sick (according to the PPP) child -- an independent judiciary. Constitutionalism and an independent judiciary will be subverted, and (if God and America gives it strength) made redundant, if it tries to question the right of the PPP's executive to dominate and monopolise power.

This, at least, is the ideology of the PPP but this ideology has not been fully implemented mainly because once you commit the original sin of adopting democratic politics, some form of constitutionalism and independent judiciary creeps in, whether you like it or not. Some form of constitutionalism and an independent judiciary is a genetic flaw of democratic politics.

What is the consequence of the abovementioned intellectual discourse on the confrontation between the lawyers and PPP? There are lessons. First, no amount of intellectual debate or moral shaming can convince the PPP to give up its first and only love i.e. monopolising power. Second, what threatens the PPP's Juliet, namely political power, is political insecurity. The lawyers have to come up with a solution, which confronts this fear of political insecurity. Thirdly, the PPP will not respect constitutionalism or restore an independent judiciary out of conviction and commitment but will solve this constitutional crisis out of political necessity.

Politics, like life, is also determined by necessity and not simply ideology. For example: (a) Regardless of the complications caused by the re-appointment of most of the deposed judges, 24 judges have been restored to their seniority of Nov 2, 2007. This is truly historic because no judge removed by a military regime has ever been reinstated to his previous seniority. (b) For the first time in Pakistan's legislative history, the majoritarian parties in parliament have refused to accept as legitimate the changes made by a military dictator in the constitution. These aforementioned actions are a result of political necessity, which required that some steps had to be taken to resolve the constitutional crisis of Nov 3, 2007, in order to stabilise the political system.

Why doesn't the PPP completely solve this constitutional crisis? The architects of PPP's judicial policy [Naek and his invisible jurists] have convinced themselves that there is no serious political crisis. There are only miscreants, namely the lawyers and their supporters, who can be controlled. At the heart of the judicial strategy of the PPP is the politics of denial. Remember Musharraf looking out of the window from the presidency and seeing only a few people protesting for the Chief Justice.

There are obvious logical reasons to contradict this politics of denial. First, the continuing conflict between the PCO and non-PCO judiciary. Can we go on with the situation where the lawyers in general, and one of the main political parties, have no confidence in the PCO judiciary? Second, can we run a country under two constitutions i.e. a PCO and a non-PCO constitution?

But logic is not the strongest argument in politics. Therefore, let me give a political response. The lawyers' movement may not have the political power to challenge any government but they hold the key to the persistence of this judicial crisis. The key is the withholding of legitimacy on the part of the lawyers' movement. This judicial crisis will persist and be a constant bleeding wound for the PPP unless the lawyers' movement confers legitimacy on any solution proposed by the PPP government. The persistence of this constitutional crisis also has inherent dangers. The lawyers' relationship with the PPP has changed from distrust to hatred and on the day of the divorce proceedings i.e. March 16, 2009, this hatred may spill over into violence. Violence can be exploited by all shades of political opinion i.e. from the centre right to the extreme right, and of course, by the military-bureaucratic defacto junta [i.e. the permanent government in waiting]. Beware, PPP's Juliet is entering the dangerous waters of violence with unknown consequences in both the short and long run.

Moral righteousness and principled position is the motto of the lawyers' movement. We are ad-nauseam told that Nov 3, 2007, was unconstitutional and immoral. Open any newspaper or television channel and the lawyers or their supporters repeat the words. Let me tell the lawyers a secret which everyone knows about. Except for a very tiny minority, everyone, including the PPP, agrees with you that Nov 3, 2007, was unconstitutional and immoral. We don't need a hundred more articles and a two dozen more television programmes to convince us further.

The real challenge for the leadership of the lawyers' movement is not about principles but about strategy and this is precisely the weakest link in the movement. The precise question is: What are the actual logistics, method and mechanics of restoring these deposed judges and how do we convince the judicial and executive authorities in Pakistan to accept the non-PCO constitution, when the PCO Supreme Court has declared that emperor Musharraf's amendments to the constitution are valid and in force?

The leadership of the lawyers' movement refuses to recognise this central problem -- that the actual logistics, method and mechanics of restoring these deposed judges, or reversing the PCO Supreme Court's judgment, validating emperor Musharraf's PCO-infested constitution, is not in their hands as they do not control the levers of state and political power and only the government in power can restore these deposed judges and only the government in power can refuse to accept the PCO infested constitution. In short, the PPP regime may be mad or bad or both but it is the most important piece of the puzzle to reverse the unconstitutional and immoral actions of Nov 3, 2007.

What is the lawyers' answer to the above dilemma? Being right, legal and moral, is given as an excuse not to deal with hard issues of strategy. Judicial fundamentalism is invented as an ideological reason for not devising a realistic strategy for solving this constitutional crisis. This judicial fundamentalism is based on two fundamental foundations i.e. historical inevitability and revolutionary potential.

Like Marxists and Islamists, the lawyers hold the firm belief that history and truth [and some say God] is on their side. Righteousness has given rise to a specific type of strategy. The strategy is as follows: if at every press conference and rally, they keep repeating that the actions of Nov 3, 2007, were unconstitutional and immoral then it is only a matter of time before the PPP government surrenders to their righteous stand because history, truth and God are on their side. If only this was the Oxford Union or the Day of Judgment before God, the lawyers would have won this battle long ago. But sadly, this is the treacherous arena of politics in which the gladiators either fight each other to political death or negotiate a solution.

This righteous attitude and laziness about strategy leads to the dangerous path of judicial fundamentalism because it is thought that only a firm belief in the complete righteous of one's view and a complete rejection of the other's insecurities and opinion is the path to success ordained as historical inevitability. In other words, there could be no compromise or negotiated settlement unless and until you agree to our legal, principled and moral stand. What an oxymoronic concept of compromise!

In moments of fantasy, as history has always been our weakest subject, the lawyers' movement is described as "the greatest movement in history". More dangerously, the lawyers' movement is described as "a revolutionary movement". The most dangerous foundation of judicial fundamentalism is this myth of revolutionary potential. The revolutionary discourse is as follows: If this lawyers' movement has revolutionary potential, why compromise on one's fundamental judicial beliefs. Resultantly, judicial fundamentalism is seen as a logical strategy for a revolutionary movement.

How will it achieve its goals? What is basis of this revolutionary potential and what is the revolutionary strategy? No precise answer is given but only counter-factuals are posed -- if only all parties had boycotted the elections, or if only the dharna had taken place. But nobody tells us as to what would have been the logistics or mechanics for the restoration of the deposed judges if the elections had been boycotted. Will the revolutionary brigade of lawyers and the people have physically restored the deposed judges even though they could not even physically free the Chief Justice, Iftikhar Chaudhry, before the elections. The myth about the dharna is another revolutionary fairy tale. Why would the PPP regime agree to the restoration of the deposed judges simply because around a hundred thousand or less people sat in Islamabad for a day or two? Pressure? Please remember that the restoration issue led to the breakup of the coalition between the PPP and PML-N and the latter withdrew from the federal government. Still the PPP withstood the tremendous pressure of this breakup and did not restore all the deposed judges.

Revolutionary is not even close, the lawyers' movement is not even a militant movement. Let me give you one statistic: most of the people martyred during the lawyers' movement were political workers.

Sadly, the PPP's politics of denial is countered by the lawyers' politics of delusion. On a more humble note, the lawyers' movement is certainly one of the most important reformist movements in world's judicial history. But it should not confuse its tremendous and remarkable achievements with its limitations in terms of its dependence on the PPP government to achieve the goal of restoring the deposed judges.

If I am wrong about judicial fundamentalism being a problem then there is nothing to fear and the lawyers' movement can burn me at the stakes on the victory day of their glorious judicial revolution. But if I am right about judicial fundamentalism then the leaders of the lawyers' movement should realise what is at stake if the restoration of the deposed judges does not take place and if there is no negotiated settlement with the PPP regime. Out of political insecurity and a false sense of success, this PPP regime may adopt the following legal strategy to create an oxymoron superior judiciary i.e. a subordinate superior judiciary. Firstly, appoint a Dogar-act-alike as the next chief justice. Secondly, retain and pamper the Musharraf-installed PCO judiciary. Thirdly, pack the superior judiciary with incompetent and corrupt but loyal PPP jiyalas. Fourthly, pass the judicial amendments in the constitutional package to constitutionally amputate the superior judiciary. I hope that the leadership of the lawyers' movement realises that it is not only the future of the twelve deposed judges and young lawyers that is in its hands but the future of the entire judicial system. The stakes have never been so high.

What is the solution? This judicial crisis or constitutional crisis or judicial revolt or judicial trade unionism (whatever you want to call it) has to be resolved in a constitutional way. The only criterion for a successful constitutional solution is that the major stakeholders -- PPP, PML-N, lawyers, deposed judges -- agree on a compromise constitutional solution. The primary logistics of this constitutional solution are simple negotiate, negotiate, negotiate. But the PPP has to take the initiative in this negotiation. For any negotiations to succeed, it is important that they should at least begin and be taken seriously by all parties. Therefore, the following confidence building measures can be taken by both sides:

(a) Justice Dogar should go on long leave till his retirement at the end of March, 2009.

(b) Justice Sardar Muhammad Raza Khan, the next senior most judge, should take over as Acting Chief Justice.

(c) Until this judicial crisis is resolved, no fresh appointments of judges should be made either in the High Courts or the Supreme Court.

(d) Until this judicial crisis is resolved, High Court judges appointed under the P.C.O., 2007, should not be confirmed but should rather be given extensions in their tenure.

(e) The PPP government should setup a high level legal negotiating team and formally invite the leaders of the lawyers' movement for resolving this judicial crisis.

(f) If the above steps [(a) to (e)] take place then the lawyers should postpone their long march and set up their own negotiating team to negotiate with the PPP government.

Frankly, the above suggestions are merely illusions of a drawing room intellectual. Realistically, I don't think that the politics of denial or the politics of delusion will be abandoned by either party and maybe all we can do, in the great Pakistani tradition, is to pray for the better. But I refuse to follow this tradition of prayer as a solution to the judicial crisis and will say to the PPP and lawyers, what Mercutio said in 'Romeo and Juliet' at the time of his death: "A plaque o' both your houses".

Faisal Siddiqi is a Karachi-based advocate of the High Court.

Email [email protected]

Taal Matol

Time to make up our mind

 

By Shoaib Hashmi

It was bound to happen I suppose. We follow the Lunar calendar for most of our traditional festivals and occasions, but the normal solar calendar for everything else. Now the Lunar calendar is about ten days shorter than the other one, so in a period of thirty-five years it goes all across the Solar year. This year the Day of Data Gang Buksh, the patron saint of Lahore which is determined by the Lunar Calendar, fell on fourteenth February which happens to be Saint Valentine's Day.

We have celebrated the Data's day for a thousand years, and we discovered Valentine's Day just about a decade ago, I don't remember even knowing about it in my youth, but we have taken to it like a ton of bricks. The whole town is full of hearts and flowers and chocolates, and young people all over the town go around dreamy eyed sending and receiving cards and bouquets, and the flower sellers make a killing.

It's a young people's affair, and occasionally, like this year as it clashed with a day which is observed officially, there are cries that it is not part of our culture -- actually no one even knows if there ever was a Saint Valentine -- and the young simply ignore it and keep cutting out their red hearts and pinning them on ach other.

The custom of following the Lunar calendar does not bother anyone much as the chief occasions to be determined are the two Eids. The first is preceded by the month of Ramzan, it is in all the papers. Everyone knows about it and follows it. The relatively minor festivals like Shab-e-Baraat are simply ignored. As for the various saints, the keepers of the tombs keep track and let everyone know.

As a matter of fact we have a third calendar which is the 'Vikrami' which is a folk calendar used by the local people for thousands of years, it is a seasonal calendar and determines the time of sowing and reaping, and being unknown in the cities is still used in the countryside. It is still widely used among our neighbours and we follow them in observing 'Divalee' and 'Dussehra' but we make up our own minds over 'Basant.'

That is officially the end of winter. It is the season of the yellow flowers and most important kite flying. Part of the authorities have gone and banned it, and another part is all for it, so there is a cute little war going on about it. The rum thing is this is the time of the end of winter too, and for all we know someone is going to discover the Feb 14 is also 'Basant.' So while they are trying to subdue the red roses, we will all take to yellow flowers and kite flying!


issue

Secularism or peace

The Nizam-e-Adl Regulation, 2009, is being seen by the people of Swat as a harbinger of peace rather than of speedy justice

By Behroz Khan

The jubilation of people after the peace deal was indeed overshadowed by the brutal murder of Geo TV correspondent in Swat, Musa Khankhel. Apart from this latest violent incident, civil society groups of the country as well as the international community have expressed their scepticism, terming it a total surrender to the militants involved in the worst human rights violations.

NWFP chief minister, Amir Haider Khan Hoti and his coalition partner PPP consider the announcement of yet another Nizam-e-Adl Regulation 2009 a historic step towards peace in Swat. The provincial government with the approval of President Asif Ali Zardari and the federal government signed the peace agreement with Maulana Sufi Muhammad, father-in-law of Maulana Fazlullah, who has unleashed a reign of terror in the valley for more than one and a half years now.

The new Nizam-e-Adl Regulation announced in Peshawar is, in fact, a continuation of a similar package given to Malakand Division during the second tenure of late Mohtarma Benazir Bhutto in 1994. The regulation was amended in 1999 during Nawaz Sharif's era but its implementation remained a hurdle in the smooth functioning of the judicial system, or an excuse for the militants to challenge the writ of the government, and wage an armed struggle to impose a self-styled Islamic Shariah by setting up unauthorised courts to deliver justice.

The new regulation is being seen by people as a harbinger of peace rather the establishment of a system through which speedy justice would be guaranteed. Inaction of the previous governments, particularly the five-year term of the MMA, is held responsible for the deteriorating law and order situation and the present-day insurgency in the province.

Copies of the agreement signed by representatives of the provincial government and Maulana Sufi Muhammad were provided to media which read that from now onwards no law in clash with Islamic Shariah would be enforced in Malakand Division comprising of Swat, Dir Lower, Dir Upper, Chitral, Malakand Agency, Buner, and Shangla along with Kohistan district of Hazara Division.

The chief minister, during a press conference at Frontier House Peshawar on Feb 16, insisted it was not a peace deal with militants but declaration of a new judicial system for the region plagued by legal vacuum for decades since the merger of the three princely states of Chitral, Dir and Swat with Pakistan in 1969. These states were ruled through Islamic Shariah and Riwaj, a system of tribal justice through jirgas. The implementation of the judicial system is conditional to the restoration of peace in the valley. The aging Sufi Muhammad has embarked on his mission to convince his son-in-law to lay down arms and shun violence.

The second phase of the agreement -- the surrender of militants to the state -- is crucial. Already questions are being raised about amnesty for those who need to be brought to justice for human rights abuses, especially by the international community and those falling prey to the religious frenzy.

The latest amendments in the Nizam-e-Adl Regulation is that time frame has been given to the courts to decide criminal cases nature in four months, while the disposal of civil cases should not take more than six months. A bench of the Federal Shariah Court will be established in Malakand to serve as the appellate court (known as Shariah Appellate Bench) and the decision of the appellate court shall be final and could not be challenged in any other court of the country.

Hoti said the decision has been taken in light of the constitutional provision whereby no law repugnant to Islam shall be enacted. A representative jirga comprising of all the political and religious parties, ulema and other sections of the society endorsed the decision except Jamaat-e-Islami owing to its boycott from the jirga. However, later on, the Jamaat also endorsed the agreement. A joint task force comprising representatives of the government and Sufi Muhammad's once banned Tehreek-e-Nifaz-e-Shariat Mohammadi (TNSM) has been set up to monitor implementation of the process. The role of the security forces in Swat has been redefined to serve as a reactive force than pro-active, as both sides hold their fires. The federal government has granted funds to the provincial government to compensate the victims by paying Rs300,000 to the heirs of the deceased and Rs100,000 to the injured. Reconstruction of the demolished houses, schools, bridges etc along with rehabilitation of the hundreds and thousands of displaced families will be carried out later, subject to the smooth implementation of agreement.

Sufi Muhammad, the forerunner of demanding Nizam-e-Adle in Malakand, started his violent struggle in 1994 when his supporters occupied courts and police stations in Matta tehsil of Swat. They took control of Saidu Sharif Airport and took judges, lawyers and police personnel as hostage. Many people, personnel of the security forces and MPA Badiuzaman Khan were killed. Sufi was imprisoned in 2001 on his return from Afghanistan where he had joined the Taliban to fight against the invading US-led allied forces. Sufi was released by the ANP-PPP coalition government in 2008 as part of a deal to work for restoration of peace in Swat. Now Sufi Muhammad is in the upper Swat valley to hold talks with Maulana Fazlullah in order to persuade him to surrender.

The announcement of Shariah courts in Malakand has generated a heated debate among those who argue that bowing down to militants would have a snowball effect and similar demands would be made from other parts of the country. However, Central Information Secretary ANP, Zahid Khan, has a different take believes that ground realities in Malakand Division, which remain part of the Provincially Administered Tribal Areas (PATA) was different from the rest of the province. "Shariah used to be the judicial system in Malakand division and this is the right of the people to demand provision of a system which can satisfy them," Zahid Khan told TNS.

Another immediate concern is the situation in FATA where an outdated set of laws known as Frontier Crimes Regulations (FCR) are exercised. The infamous FCR law is under constant criticism from all segments of the society, but the issue continues to linger on. Demands for implementing Islamic Shariah in FATA are making headlines, which according to Zahid Khan, was the responsibility of the federal government and his party was ready to assist if sincere efforts were made to bring peace in the region. "I don't understand why NATO and others are concerned about a system of justice given to the people of Malakand when the entire judicial system of Afghanistan is run through Islamic Shariah in their presence," questioned Zahid.

 

Before the bliss

If the legislation is approved, pre-marital blood screening will be mandatory

By Alefia T. Hussain

The jubilation of people after the peace deal was indeed overshadowed by the brutal murder of Geo TV correspondent in Swat, Musa Khankhel. Apart from this latest violent incident, civil society groups of the country as well as the international community have expressed their scepticism, terming it a total surrender to the militants involved in the worst human rights violations.

NWFP chief minister, Amir Haider Khan Hoti and his coalition partner PPP consider the announcement of yet another Nizam-e-Adl Regulation 2009 a historic step towards peace in Swat. The provincial government with the approval of President Asif Ali Zardari and the federal government signed the peace agreement with Maulana Sufi Muhammad, father-in-law of Maulana Fazlullah, who has unleashed a reign of terror in the valley for more than one and a half years now.

The new Nizam-e-Adl Regulation announced in Peshawar is, in fact, a continuation of a similar package given to Malakand Division during the second tenure of late Mohtarma Benazir Bhutto in 1994. The regulation was amended in 1999 during Nawaz Sharif's era but its implementation remained a hurdle in the smooth functioning of the judicial system, or an excuse for the militants to challenge the writ of the government, and wage an armed struggle to impose a self-styled Islamic Shariah by setting up unauthorised courts to deliver justice.

The new regulation is being seen by people as a harbinger of peace rather the establishment of a system through which speedy justice would be guaranteed. Inaction of the previous governments, particularly the five-year term of the MMA, is held responsible for the deteriorating law and order situation and the present-day insurgency in the province.

Copies of the agreement signed by representatives of the provincial government and Maulana Sufi Muhammad were provided to media which read that from now onwards no law in clash with Islamic Shariah would be enforced in Malakand Division comprising of Swat, Dir Lower, Dir Upper, Chitral, Malakand Agency, Buner, and Shangla along with Kohistan district of Hazara Division.

The chief minister, during a press conference at Frontier House Peshawar on Feb 16, insisted it was not a peace deal with militants but declaration of a new judicial system for the region plagued by legal vacuum for decades since the merger of the three princely states of Chitral, Dir and Swat with Pakistan in 1969. These states were ruled through Islamic Shariah and Riwaj, a system of tribal justice through jirgas. The implementation of the judicial system is conditional to the restoration of peace in the valley. The aging Sufi Muhammad has embarked on his mission to convince his son-in-law to lay down arms and shun violence.

The second phase of the agreement -- the surrender of militants to the state -- is crucial. Already questions are being raised about amnesty for those who need to be brought to justice for human rights abuses, especially by the international community and those falling prey to the religious frenzy.

The latest amendments in the Nizam-e-Adl Regulation is that time frame has been given to the courts to decide criminal cases nature in four months, while the disposal of civil cases should not take more than six months. A bench of the Federal Shariah Court will be established in Malakand to serve as the appellate court (known as Shariah Appellate Bench) and the decision of the appellate court shall be final and could not be challenged in any other court of the country.

Hoti said the decision has been taken in light of the constitutional provision whereby no law repugnant to Islam shall be enacted. A representative jirga comprising of all the political and religious parties, ulema and other sections of the society endorsed the decision except Jamaat-e-Islami owing to its boycott from the jirga. However, later on, the Jamaat also endorsed the agreement. A joint task force comprising representatives of the government and Sufi Muhammad's once banned Tehreek-e-Nifaz-e-Shariat Mohammadi (TNSM) has been set up to monitor implementation of the process. The role of the security forces in Swat has been redefined to serve as a reactive force than pro-active, as both sides hold their fires. The federal government has granted funds to the provincial government to compensate the victims by paying Rs300,000 to the heirs of the deceased and Rs100,000 to the injured. Reconstruction of the demolished houses, schools, bridges etc along with rehabilitation of the hundreds and thousands of displaced families will be carried out later, subject to the smooth implementation of agreement.

Sufi Muhammad, the forerunner of demanding Nizam-e-Adle in Malakand, started his violent struggle in 1994 when his supporters occupied courts and police stations in Matta tehsil of Swat. They took control of Saidu Sharif Airport and took judges, lawyers and police personnel as hostage. Many people, personnel of the security forces and MPA Badiuzaman Khan were killed. Sufi was imprisoned in 2001 on his return from Afghanistan where he had joined the Taliban to fight against the invading US-led allied forces. Sufi was released by the ANP-PPP coalition government in 2008 as part of a deal to work for restoration of peace in Swat. Now Sufi Muhammad is in the upper Swat valley to hold talks with Maulana Fazlullah in order to persuade him to surrender.

The announcement of Shariah courts in Malakand has generated a heated debate among those who argue that bowing down to militants would have a snowball effect and similar demands would be made from other parts of the country. However, Central Information Secretary ANP, Zahid Khan, has a different take believes that ground realities in Malakand Division, which remain part of the Provincially Administered Tribal Areas (PATA) was different from the rest of the province. "Shariah used to be the judicial system in Malakand division and this is the right of the people to demand provision of a system which can satisfy them," Zahid Khan told TNS.

Another immediate concern is the situation in FATA where an outdated set of laws known as Frontier Crimes Regulations (FCR) are exercised. The infamous FCR law is under constant criticism from all segments of the society, but the issue continues to linger on. Demands for implementing Islamic Shariah in FATA are making headlines, which according to Zahid Khan, was the responsibility of the federal government and his party was ready to assist if sincere efforts were made to bring peace in the region. "I don't understand why NATO and others are concerned about a system of justice given to the people of Malakand when the entire judicial system of Afghanistan is run through Islamic Shariah in their presence," questioned Zahid.


 

RIPPLE EFFECT

Caving in to obscurantism yet again

 

By Omar R. Quraishi

The so-called peace deal reached between the ANP government and the leader of the Tehrik-e-Nifaz-e-Shariat-e-Mohammadi, Maulana Sufi Mohammad, in Swat is nothing more than an abject surrender to the forces of militancy and obscurantism in the country. As expected, it has ended up polarising society many people heaving a sigh of relief that now the violence would perhaps end, while others have been dismayed by what they see as the government's surrender to the rapidly increasing wave of Talibanisation. The most obvious question that comes to mind and it was encapsulated well by a reader of this newspaper Bilal Habib of Washington DC who sent in a letter where he asked the government of Pakistan that would be it agree to implement Sharia if, say, the people of Larkana or Karachi also demanded its imposition?

In addition to this I have several other questions but is there anyone to address them?

1. The announcement by the NWFP chief minister that all 'un-Islamic laws' stood abolished forthwith was confusing to say the least because given that the 1973 Constitution carries with it the Objective Resolution, it is understood that no law can be legislated or promulgated in the country if against Islam so what in the world was the NWFP chief minister talking about? What laws existed prior to this deal which were anti-Islamic? Could the chief minister or his press secretary kindly give details of all such laws which were against Islam and which have now been struck off the statute book?

2. What is going to happen to Mullah Fazlullah and his accomplices such as Muslim Khan and Mullah Shah Dowran. The last one was known to be particularly good at beheading people, which the Swat Taliban did in ample numbers? Will the NWFP government try all those who took part in the beheadings and orchestrated them in a court of law or does it plan to announce a general amnesty? The chief minister was asked this question at the press conference on Feb 16 in Peshawar when he made the deal public and he conveniently side-stepped it by saying that it was "too early" to say what would happen to Fazlullah and his men. This could well mean that the NWFP government is not particularly averse to the idea of pardoning these men.

3. What does the government intend on doing about punishing the murderers of Shabana and several other women who were allegedly first raped and then murdered by the militants after being labelled as prostitutes? What does it intend doing with regard to the murders of several of the ANP's own activists and relatives of ANP office-bearers who laid their lives fighting the Taliban?

4. Does the NWFP government plan to do anything about the many beheading that were carried out in some of Swat's main towns and villages? Many were members of the FC or the police and some were innocent civilians what message is the so-called peace deal going to send to the relatives and families of those who died such ghastly deaths if the perpetrators of these atrocities are going to be pardoned?

5. What is the point in having elected representatives for any region in the country when one finds a group of armed militants going around killing people and burning schools and forcing their version of religion down the rest of the populace and instead of clamping down on them and taking them head-on, the government agrees to their demands?

6. By the same logic, if a group holding similar views was to hold a city hostage, would the government then agree to its demands as well? What is to prevent armed militants and obscurantist from doing the same thing in other parts of the country? (And who knows, they may well be planning to do this, at least in other parts of NWFP especially other settled districts borders FATA such as Tank, Hangu, Dera Ismail Khan and Kohat.)

7. Why has Kohistan, which is part of Hazara, been included in this arrangement? Should we in the not-so-distant future see sharia being imposed in places like Mansehra, Abbotabad and Haripur all are part of Hazara and the latter less than an hour's drive from Islamabad.

8. There have been some in the media who have used history as an argument for justifying the deal. They have said that in the past, prior to Swat's merger with Pakistan, the princely state used to have a similar system and that the arrangement now would be similar to that. Well, if that is the case, why not hold a referendum? Or have the NWFP assembly pass legislation to give legal cover to the deal? Isn't that far better than doing it because one has been pushed into a corner by rabid extremists?

9. What impression/message/signal is the NWFP government sending to the rest of the country and indeed to the militants? Will they not be emboldened by this and use similar tactics to spread their tentacles to the rest of the country?

In the end, I would like to quote a couple of people on this issue from a mailing list. One is a well-known researcher and academic who writes in English newspapers while the other is a well-known actress/activist, who has also written in the media on and off.

First the researcher/academic: "The message being sent is that if you challenge the writ of the state, develop a private militia, engage in beheading, murder and rape, sooner or later the government will capitulate to your demands in order to procure peace. What message is going out to other groups in Punjab, Balochistan or Sindh that all they have to do is to take up arms and the state will cave in to their demands to set up a state within a state? One wonders why a large and highly-equipped army could not control a bunch of criminals. I think that the faulty 'strategic depth' and 'bleed India with a thousand cuts' theories still guide the decisions of our establishment."

And the activist/actress wrote: "How is it possible to engage in a completely undemocratic process engendered by a 'jirga' which excludes half the population? The minister for social welfare, a woman, was not allowed to attend the proceedings of the jirga simply because she was a woman. How can we as a nation accept a process and ultimately a result which is prejudicial and poised to further exclude women from decision-making processes which not only affect their lives but also the manner in which many of them are killed for supposed transgressions of the moral order? Is it not clear that this accord is opening the door to willingly allowing, indeed, inviting militant fundamentalism to become the dominant ideology of the state? Will it amount to legitimisation of a medieval mindset which has endorsed and committed savage acts against the populace it supposedly aims to bring into the fold of Sharia? And whose Sharia is to be imposed? What about the right of a woman to receive an education, to marry of her own accord, to divorce? Will these Sharia rights be respected under the patriarchal misogynist order of things to come?"

The writer is Editorial Pages Editor of The News. Email: [email protected]

 


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