In Defense Of

SWAT Accord and Nizam-e-Adl Regulation

2009
By Ibrahim M Khalil

Recently the government of Pakistan has been receiving a lot of flak for
signing the Swat Peace Accord and later the Nizam-e-Adl Regulation.
The media is in a frenzy with no one taking the middle ground. Most of
the English media and so called secular and liberals are against the
signing whereas the Urdu media as well as conservatives are in favor
of it.
All sorts of scenarios have been created to sway the opinion one way
or the other with one side predicting floggings and amputations all
over the country and the other painting a picture of peace and
harmony.
What is conspicuously absent from all these discussions is actual
critique of the agreement or regulations. The purpose of this article is
to have discussion on the letter of the agreement. For the purpose of
this article, I will ignore that Sufi Muhammad or Tehrik-e-Nifaz-e-
Shariat-e-Muhammadi (TNSM) is backing the regulation. By going
through the agreement, I hope to understand why such secular parties
as ANP which governs NWFP and PPP which rules at the federal level
support the agreement.
Please do not for a moment believe that I am trying to act as an
apologist for Taliban or trying to forward their agenda. Just to make it
clear, I was disgusted by the flogging incident and believe that the way
it was decided and carried out was criminal even under Shariah.
Swat Peace Accord
I have gone through the text of Swat Accord and have reproduced it
below. By reading it, I fail to understand what all the brouhaha was
about. We were told that the government negotiated from a position of
weakness but when I read through the accord, most of the conditions
are imposed on Taliban. Even women are allowed to work under this
agreement, which is incredible as all of us would have believed a
condition contrary to this to be a part of the agreement.
Whether Taliban would have complied with Peace Accord had it run its
course is a different matter. However, that does not take away the fact
that the Accord in itself seems fairly balanced to the government of
Pakistan. I believe it would have done a lot of good had this agreement
been made public at the time of signing. Moreover, if Taliban had not
stuck to their part of Accord, it would have easily swayed the public
opinion against Taliban in the country, something which the media, the
government and secular liberals are trying desperately and in vain to
do.
Text of Swat Peace Accord
1- The Sharia law will be imposed in Swat, including the whole Malakand
division;
2- The Army will gradually withdraw security forces from the region;
3- The government and the Taliban will exchange prisoners;
4- The Taliban will recognise the writ of the government and they will
cooperate with the local police;
5- The Taliban will halt attacks on barber and music shops;
6- The Taliban will not display weapons in public;
7- The Taliban will turn in heavy weapons like rocket launchers and mortars
to the government;
8- The Taliban will not operate any training camps;
9- The Taliban will denounce suicide attacks;
10- A ban would be placed on raising private militias;
11- The Taliban will cooperate with the government to vaccinate children
against diseases like polio;
12- The Madrassa of Maulana Fazlullah in Imam Dherai would be turned into
an Islamic University;
13- Only licensed FM radio stations would be allowed to operate in the region
14- The Taliban will allow women to work without any fear.

Nizam-e-Adl Regulation 2009

If one reads the Constitution of Islamic Republic of Pakistan 1973 ("The
Constitution") , a lot of objections raised against NAR lose their footing. Swat
and its adjoining areas under the constitution form part of the Provincially
Administered Tribal Area (PATA) and are defined and regulated under Part XII,
Chapter 3, Clause 246 & 247 of the constitution. Below I reproduce a few
subsections from the constitution that should put a lot of people at ease with
their conscience
Clause 246 subsection (b)
"Provincially Administered Tribal Areas" means (i) The districts of Chitral, Dir
and Swat (which includes Kalam), [the Tribal Area in Kohistan district,]
Malakand Protected Area, the Tribal Area adjoining [Mansehra] district and
the former State of Amb;
Clause 247 subsection (3)
....no Act of [Majlis-e-Shoora (Parliament)] or a Provincial Assembly shall
apply to a Provincially Administered Tribal Area, or to any part thereof, ....

Clause 247 subsection (7)

Neither the Supreme Court nor a High Court shall exercise any jurisdiction
under the Constitution in relation to a Tribal Area, ...
Disregarding what Sufi Muhammad keeps reiterating about the courts and
the parliament, as per the Constitution of Islamic Republic of Pakistan 1973,
the courts and the parliament do not have jurisdiction over tribal areas.
Ever wonder why those people who don't get tired of quoting the 11th
August 1948 speech of Quaid-e-Azam at every chance they get do not come
up with a single quote from the law book in their speeches, columns and
blogs against NAR. This should also cool down the intellectuals who have
been crying their voices hoarse about where is the lawyer movement or why
is CJP Iftikhar Chaudry not taking suo moto action against NAR. The answer is
that they know that unless the constitution is amended, NAR is perfectly in
line with the Constitution of Pakistan.
All of us including myself prefer experts to educate us through their
speeches, columns and TV appearances rather than make the effort
ourselves to research and find out what the facts are. Ignorantia juris non
excusat i.e., ignorance of law is no excuse. This is why we have allowed
Mullahs to hijack the religion as we don't want to apply ourselves to read the
dry and copious Islamic jurisprudence books. I am sure that most of us
rallying against NAR have not read its text. Below I reproduce a few clauses
which for me make it a very reasonable document. Obviously, not being a
lawyer, I cannot read between the lines or find the loopholes but prima facie
I believe its a very just document.
Whose Shariah?
Clause 1 subsection (i):
“Shariah” means the injunctions of Islam as laid down in Quran Majeed,
Sunnah-e-Nabwi (Sallallaho Alaihe Wasallam), Ijma and Qiyas;
Explanation.-In the application of this clause to the personal law of any
Muslim sect, the expression Quran Majeed and Sunnah-e-Nabvi (Sallallaho
alaihe wasallam) shall mean the Quran Majeed and Sunnah-e-Nabvi
(Sallallaho alaihe wasallam) as interpreted by that sect.
A major complaint against NAR has so far been whose Shariah? Sunni or Shia
or their various sub-sects. Provided that those sects have a shariah system,
the decision will be according to that. The rights of non-muslims are also
protected under their own laws:
Clause 14 subsection (2)
....provided that cases of non-Muslims in matters of adoption, divorce, dower,
inheritance, marriage, usages and wills shall be conducted and decided in
accordance with their respective personal laws
Role of NWFP Government
Before going through the NAR, I had been under the impression that Talibans
will be appointing the judges (Qazis). However, as per NAR, the NWFP
provincial government will be appointing the judges and constituting the
courts. And the judge should be a qualified person from a International
Islamic University or a similar institution provided it is recognized by NWFP
government. So the impression that we are given in media that mullahs and
clergy will be dispensing justice in their adhoc manner is absolutely rubbish.
Judges (by just calling them Qazis one can easily conjure up an image of so
called illiterate mullah) appointed by NWFP will be presiding over these
courts.
Clause 2 (subsections as mentioned):
(a) “Dar-ul-Dar-ul-Qaza” means the final appeallate/revisional court, in the
said area, designated as such, under this Regulation, in pursuance of clause
(2) of Article 183 of the Constitution of the Islamic Republic of Pakistan;
(b) “Dar-ul-Qaza” means appellate/revisional Court constituted by
Government in the said area, under clause (4) of the Article 198 of the
Constitution of the Islamic Republic of Pakistan;
(c) “Government” means the Government of the North-West Frontier
Province;
(f) “Qazi” means a duly appointed Judicial Officer as specified and
designated in column 3 of Schedule-II;
(g) “recognized institution” means the Shariah Academy established under
International Islamic University Ordinance, 1985 (Act XXX of 1985) or any
institution imparting Sharia’h training and recognized as such by
Government;
Writ of Government
In addition, we have been given an impression that NWFP government will
recede from the area under NAR leaving the law and order to Talibans. The
following clauses of NAR reproduced below prove quite the opposite holds
true. Again these magistrates will be appointed by NWFP government and
not the Talibans.
Clause 7 subsection (1):
In each district or protected area, there shall be a District Magistrate,
Additional District Magistrates, Sub-Divisional Magistrates and other
Executive Magistrates, as the Government deems necessary.
Clause 7 subsection (4)
Keeping peace, maintaining order, enforcing the executive authority of the
Government and “Sadd-e-Zara-e-Jinayat” shall be the duty, responsibility
and power of the Executive Magistrate
Explanation.-The phrase “Sadd-e-Zarr-e-Jinayat”( ) means and includes all
actions and steps taken under the Sharia’h laws and any other law enforced
for the time being for the control of crimes.
Speedy Justice
NAR through various clauses tries to give the subjects speedy justice unlike
the courts in rest of Pakistan where a case can drag on for years. To use a
cliched term "Justice delayed is justice denied".CJP Iftikhar Chaudry is also
trying to improve the image of courts by providing speedy justice to people
by disposing of cases as quickly as possible.
Clause 10 subsection (4)
If the Zilla Qazi or, as the case may be, the presiding officer of the principal
seat of the Dar-ul-Qaza, in relation to proceedings in the Court of Qazi, upon
examination of causes of delay, is of the opinion that the delay has been
caused due to the delaying tactics of a party, it shall fix a penalty or cost to
be recovered from the defaulting party and direct the court concerned to
dispose of the case within an extended period of not more than one month.
Clause 10 subsection (9)
Any decree shall be executed, either by the court which passed it, or by the
court to which it is sent for execution, within two months
Clause 11 subsection (2)
Where the number of pending cases at a time exceeds more than one
hundred and fifty in a court of Zilla Qazi, District Magistrate, or, as the case
may be, Izafi Zilla Qazi, or exceeds more than two hundred cases in a court
of Aa’la Ilaqa Qazi, Executive Magistrate, or, as the case may be, Ilaqa Qazi,
it shall be necessary for Government to establish a new court and provide it
all related facilities to ensure dispensation of justice within prescribed time
schedule.
Conclusion
Above I have reproduced only a few clauses. In times of information overload
when each media outlet is sensationalizing news to grab your attention, it
becomes hard to differentiate fact from hypothetical scenario. I know given
what we read and hear about Sufi Muhammad, it is hard for us to accept
NAR. Forget what Sufi Muhammad's and his coterie's rhetorical outbursts. To
understand NAR , you need to be unbiased when you are reading it. I would
encourage you to take the time to read the complete NAR and then decide
on it. Just to clarify, this article is a critique of Swat Peace Accord and NAR. It
should not be read as condoning Taliban's brand of justice and their
methodologies.