Nizam-e-Adl regulation-- an analysis
Wednesday, April 15, 2009
Nasim Zehra
The writer is an Islamabad-based security analyst
The speculations over the signing of the Adal Regulation have drawn to a close. The third version of an Nizam-e-Adl Regulation for the Malakand Division has been signed. Asif Ali Zardari has signed the Adal Regulation 2009. The first Adl Regulation was signed in 1994 during the first Benazir Bhutto government. The second was signed in 1999 immediately after the Bill amending the earlier Adl bills had been signed. The latest version will increase the number of Qazis and the number of law officers assigned to them, it will set up appellate courts within the Malakand Division, instead of the litigants having to travel to Peshawer. The Adl Regulation ostensibly will not be changing the essence of the existing laws that were promulgated over the years. Its objective, as the government insists, is merely to provide speedy justice to locals.
There are some differences between Sufi Mohammad and the government on who will hire and fire the Qazis and other officers to be appointed in the Qazi Courts. On record, Sufi Mohammad has claimed he will be the deciding authority. The government, of course insists that only the Peshawer High Court and other relevant government authorities will be involved in the hiring-firing for the Qazi Courts.
There is also government-TNSM potential divergence in the works over the substance of law. The government insists no law will contradict the rights of women as laid down in the Constitution of Pakistan. The government's interlocutor insists only Sharia will be the source of all law. With no universally acceptable version of Sharia law such an issue would open multiple conflict zones between the different religious interpreters plus between the constitutionalists and the non-constitutionalists.
In addition to these inherent issues with the Regulation there are issues of context. Hence the dread against the Adl Regulation expressed by certain quarters has perhaps more to do with the context in which it has been signed. What is the context? Essentially the state institutions are either missing or non-functional or appear partisan towards those who are challenging the writ of the state. The news stories that illustrate this problem are endless. Denial will not help. According to published reports from the Buner Valley the security and law-enforcement apparatus is completely paralysed. FC and the policemen are scared of the Taliban or are Taliban sympathisers.
The latest April 14 Wall Street Journal article written by Zahid Hussain and Mathew Rosenberg details the expanding Taliban influence and infrastructure in and around the Swat Valley. Against the backdrop of this expanding influence of the Taliban and a near-absent state structure in the region the critics of the Adl Regulation interpret it as the government providing succor to an anti-state and anti-Constitution Taliban movement.
The irony is that the people of Swat who support the Adl Regulation as a means of ending the insecurity and killings in the Swat district indeed share the read-out on the state that the critics of the deal underscore. They claim there are no state institutions or the government to protect us against those who have promoted insecurity and terror in the Swat Valley. After months and years of waiting for the state and government protection the people of Swat concluded that turning to the Taliban was wise; hence their support for the Adl Regulation.
Similarly on April 3 the ghastly case of a young girl being lashed in the Taliban controlled area was exposed through a video. However within hours of having being aired on television networks and having evoked outrage across the country the video of a screaming Chand Bibi's being lashed in Kabal Swat itself became a subject of immense controversy. An inquiry is now being conducted to ensure the authenticity of the video. Meanwhile, the list of allegations against the video was endless. They ranged from it is fake, it is doctored, it has been promoted by NGOs and media who are mostly on the American payroll, it is meant to destroy the Sufi Mohammad-government deal, etc. An initial report also suggested that Chand bibi herself denied that the lashing ever took place. Now a judicial inquiry is underway.
The Chand bibi video and the subsequent controversy too illustrates rather emphatically the absence of state control and state presence in the area.
The Adl Regulation within the context of a non-functioning or absent civilian, political and security state apparatus raises serious questions regarding the implications that this regulation can have. In a context controlled by militias , a context where ideological and sectarian-prompted killings are taking place, where the social practices are being forcibly inflicted on the local population, where the Constitutional protection is proving element, this Adl Regulation is seen as one that will further weaken the will of the state to reclaim its space. That may not be true. However those who oppose it, oppose it less for its content and more for how it will strengthen the hands of the violent non-state actors.
The broader yet fundamental issues that the Taliban, their worldview and their violent assertion in public space raises are numerous issues. Four are key. One, that there is a Constitution that determines the exercise of state and executive authority, from the Constitution flow the laws that lay down the parameters for running the affairs of the state and the exercise of state and Executive authority, and for the enforcement of these laws there are multiple-level state institutions. The ways and the dictates of the Taliban counter this fundamental assertion of the state within the nation state.
Two, the way the Taliban or any other group seeks to change law.
Significantly in acknowledging that law cannot remain static, Pakistan like all other states, also provides mechanisms to bring about changes in existing laws. Only in Pakistan have we to gather pieces of what was a lawmaking system with adequate checks and balances that was laid down in the 1973 Constitution. According to the Constitution the parliament would be the law making authority with the Council of Islamic Ideology vetting the laws for their appropriateness vis- a-vis the Quran and the Supreme Court with the Constitutional authority to vet them for their upholding of the Spirit of the Constitution.
However, subsequent dictatorial regimes rendered it dysfunctional. General Zia-ul-Haq who opted to eliminate his political opponent by the act of a judicial murder began the ruination of this system by essentially bypassing it. The most high-impact additions to the Constitution including the 1979 Hudood Ordinance were made through the military dictator's ordinances. He left the system in tatters. But some glimpses of how the system ensured that the spirit of the Constitution is not violated was evident in what checks the Hasba Bill had to go through which was passed by the NWFP Assembly in November 2006. But today the Taliban are striking in many cities seeking to enforce their version of what they consider is Islamic.
Three, whatever the convictions and the compulsions of any group to seek change in political and legal frameworks no extra-constitutional route can be condoned or encouraged. Yet, in recent years the state and the government has largely ignored if not allied with many of the groups that are undermining the writ of the state.
Four, only state institutions are constitutionally-mandated to enforce the writ of the state through rule of law. Under no circumstances can the state allow private citizens to appropriate for themselves the role of law-enforcers. Should the state arrive at a point of ineffectiveness that it is incapable of performing its law enforcement role, the fundamentals of statehood begin to get to get compromised. Given the trajectory of rising militia groups in some parts of Pakistan the question remains if the state is genuinely interested in establishing its own writ in these conflict-zone areas or not.
Finally, it is in this broader context that there has concern over and criticism of the Adl Regulation. The issue is not the Adl Regulation, instead, if the promise of it will be fulfilled-the promise that extends beyond the legal aspects. The promise will not be easily fulfilled. In fact, the expectations from it are highly unrealistic.
Sufi Mohammad's alliance is not an inherent cure to the serious peace and security situation in Swat and beyond. For that the business of state and politics needs to be conducted with greater seriousness.
Wednesday, April 15, 2009
Nasim Zehra
The writer is an Islamabad-based security analyst
The speculations over the signing of the Adal Regulation have drawn to a close. The third version of an Nizam-e-Adl Regulation for the Malakand Division has been signed. Asif Ali Zardari has signed the Adal Regulation 2009. The first Adl Regulation was signed in 1994 during the first Benazir Bhutto government. The second was signed in 1999 immediately after the Bill amending the earlier Adl bills had been signed. The latest version will increase the number of Qazis and the number of law officers assigned to them, it will set up appellate courts within the Malakand Division, instead of the litigants having to travel to Peshawer. The Adl Regulation ostensibly will not be changing the essence of the existing laws that were promulgated over the years. Its objective, as the government insists, is merely to provide speedy justice to locals.
There are some differences between Sufi Mohammad and the government on who will hire and fire the Qazis and other officers to be appointed in the Qazi Courts. On record, Sufi Mohammad has claimed he will be the deciding authority. The government, of course insists that only the Peshawer High Court and other relevant government authorities will be involved in the hiring-firing for the Qazi Courts.
There is also government-TNSM potential divergence in the works over the substance of law. The government insists no law will contradict the rights of women as laid down in the Constitution of Pakistan. The government's interlocutor insists only Sharia will be the source of all law. With no universally acceptable version of Sharia law such an issue would open multiple conflict zones between the different religious interpreters plus between the constitutionalists and the non-constitutionalists.
In addition to these inherent issues with the Regulation there are issues of context. Hence the dread against the Adl Regulation expressed by certain quarters has perhaps more to do with the context in which it has been signed. What is the context? Essentially the state institutions are either missing or non-functional or appear partisan towards those who are challenging the writ of the state. The news stories that illustrate this problem are endless. Denial will not help. According to published reports from the Buner Valley the security and law-enforcement apparatus is completely paralysed. FC and the policemen are scared of the Taliban or are Taliban sympathisers.
The latest April 14 Wall Street Journal article written by Zahid Hussain and Mathew Rosenberg details the expanding Taliban influence and infrastructure in and around the Swat Valley. Against the backdrop of this expanding influence of the Taliban and a near-absent state structure in the region the critics of the Adl Regulation interpret it as the government providing succor to an anti-state and anti-Constitution Taliban movement.
The irony is that the people of Swat who support the Adl Regulation as a means of ending the insecurity and killings in the Swat district indeed share the read-out on the state that the critics of the deal underscore. They claim there are no state institutions or the government to protect us against those who have promoted insecurity and terror in the Swat Valley. After months and years of waiting for the state and government protection the people of Swat concluded that turning to the Taliban was wise; hence their support for the Adl Regulation.
Similarly on April 3 the ghastly case of a young girl being lashed in the Taliban controlled area was exposed through a video. However within hours of having being aired on television networks and having evoked outrage across the country the video of a screaming Chand Bibi's being lashed in Kabal Swat itself became a subject of immense controversy. An inquiry is now being conducted to ensure the authenticity of the video. Meanwhile, the list of allegations against the video was endless. They ranged from it is fake, it is doctored, it has been promoted by NGOs and media who are mostly on the American payroll, it is meant to destroy the Sufi Mohammad-government deal, etc. An initial report also suggested that Chand bibi herself denied that the lashing ever took place. Now a judicial inquiry is underway.
The Chand bibi video and the subsequent controversy too illustrates rather emphatically the absence of state control and state presence in the area.
The Adl Regulation within the context of a non-functioning or absent civilian, political and security state apparatus raises serious questions regarding the implications that this regulation can have. In a context controlled by militias , a context where ideological and sectarian-prompted killings are taking place, where the social practices are being forcibly inflicted on the local population, where the Constitutional protection is proving element, this Adl Regulation is seen as one that will further weaken the will of the state to reclaim its space. That may not be true. However those who oppose it, oppose it less for its content and more for how it will strengthen the hands of the violent non-state actors.
The broader yet fundamental issues that the Taliban, their worldview and their violent assertion in public space raises are numerous issues. Four are key. One, that there is a Constitution that determines the exercise of state and executive authority, from the Constitution flow the laws that lay down the parameters for running the affairs of the state and the exercise of state and Executive authority, and for the enforcement of these laws there are multiple-level state institutions. The ways and the dictates of the Taliban counter this fundamental assertion of the state within the nation state.
Two, the way the Taliban or any other group seeks to change law.
Significantly in acknowledging that law cannot remain static, Pakistan like all other states, also provides mechanisms to bring about changes in existing laws. Only in Pakistan have we to gather pieces of what was a lawmaking system with adequate checks and balances that was laid down in the 1973 Constitution. According to the Constitution the parliament would be the law making authority with the Council of Islamic Ideology vetting the laws for their appropriateness vis- a-vis the Quran and the Supreme Court with the Constitutional authority to vet them for their upholding of the Spirit of the Constitution.
However, subsequent dictatorial regimes rendered it dysfunctional. General Zia-ul-Haq who opted to eliminate his political opponent by the act of a judicial murder began the ruination of this system by essentially bypassing it. The most high-impact additions to the Constitution including the 1979 Hudood Ordinance were made through the military dictator's ordinances. He left the system in tatters. But some glimpses of how the system ensured that the spirit of the Constitution is not violated was evident in what checks the Hasba Bill had to go through which was passed by the NWFP Assembly in November 2006. But today the Taliban are striking in many cities seeking to enforce their version of what they consider is Islamic.
Three, whatever the convictions and the compulsions of any group to seek change in political and legal frameworks no extra-constitutional route can be condoned or encouraged. Yet, in recent years the state and the government has largely ignored if not allied with many of the groups that are undermining the writ of the state.
Four, only state institutions are constitutionally-mandated to enforce the writ of the state through rule of law. Under no circumstances can the state allow private citizens to appropriate for themselves the role of law-enforcers. Should the state arrive at a point of ineffectiveness that it is incapable of performing its law enforcement role, the fundamentals of statehood begin to get to get compromised. Given the trajectory of rising militia groups in some parts of Pakistan the question remains if the state is genuinely interested in establishing its own writ in these conflict-zone areas or not.
Finally, it is in this broader context that there has concern over and criticism of the Adl Regulation. The issue is not the Adl Regulation, instead, if the promise of it will be fulfilled-the promise that extends beyond the legal aspects. The promise will not be easily fulfilled. In fact, the expectations from it are highly unrealistic.
Sufi Mohammad's alliance is not an inherent cure to the serious peace and security situation in Swat and beyond. For that the business of state and politics needs to be conducted with greater seriousness.
