view: Parallel justice —Rafia Zakaria

The most problematic dimension of “qazi” courts is that it would provide the imprimatur of “Islamic” to any rendering of justice issued by a poorly trained qazi or judge

According to a Daily Times report published April 25, 2008, the NWFP government has agreed to review a draft of the “Shari Nizam-e Adl Regulation 2008”. If the proposed legislation is passed, the districts of Swat and Malakand will be removed from the jurisdiction of the Supreme Court and the Peshawar High Court to “speed up the system of justice delivery” there.

This means if the Act is passed, the Provincially Administered Tribal Areas (PATA) would no longer be under the jurisdiction of the Superior Courts. They would instead utilise a system of “qazi” courts whose decisions could only be appealed to the Federal Shariat Court.

When the legislation was first proposed by the NWFP caretaker government in early January 2008, the Pakistan People’s Party, which is currently part of the ruling coalition in the province, sharply criticised the move. In her comments on reports related to the introduction of the legislation, Sherry Rehman, the current minister for information, stressed that the country had already paid dearly for creating parallel institutions and that “having two separate judicial systems in the country is akin to dividing the nation. This is completely unacceptable”.

In a detailed explication of her opposition to the proposed draft, Rehman emphasised how the draft acknowledged no recognised rules of judicial appointment or procedure and any person taking a three-month course at a madrassa could become a “qazi” and start making legal pronouncements. She also emphasised the crucial need of bringing PATA within the ambit of the Constitution and its laws rather than continuing to carve out a separate system for the problem-ridden area.

The question of whether qazi courts should or should not be implemented in PATA is a crucial one for Pakistan and it pivots inevitably on the question of whether our institutions must reflect the realities of legal demands or the ideals of legal principles.

In terms of realities, the situation is grim. A most cursory perusal of news reports reveal the undeniable power of local tribal jirgas over justice provision on a wide variety of issues.

In the past week, a tribal jirga in Mohmand Agency has been negotiating the release of seven security personnel in exchange for restoration of the privileges of the Kandahari tribe and payment of salaries of Class IV employees from the tribe.

Another jirga, in Khyber Agency, headed by the Kukki Khel tribe recently gave drug lords operating in the area a seven-day deadline to “mend their ways”. On April 17, 2008, a tribal jirga of the Zakhakhel and Qambarkhel elders negotiated a prisoner exchange with the Taliban in lieu of the return of 50,000 gallons of petrol and two abducted drivers.

In essence, whether it is crime deterrence, security provision or even restitution from government authorities, tribal jirgas seem to have trumped local courts in their enforcement capacity and utility to the local population.

The question then is: would the implementation of qazi courts be the institutionalisation of an already existing system to bring it under the ambit of “some” regulation as opposed to the unregulated status that they currently operate under?

A realist perspective would recommend that since these quasi-traditional legal bodies already enjoy local relevance as well as enforcement capacity, would their recognition by the government and the elevation of their status to “qazi courts” simply represent the acknowledgement of a truth that has existed for several centuries? Would the implementation of “qazi” courts where tribal elders with some religious training could render decisions that would be recognised as legally legitimate simply use existing norms of community justice to enable better justice provision in an area long marred by lawlessness?

While the readily available response would indeed suggest a resounding yes to all of the above inquiries, its facility disguises a deeper sacrifice involved in legitimising communal practices. How can a sovereign government cede sovereignty to tribal communities in an effort to build mutual trust while also retaining some control?

The question is important particularly in the case of situations where tribal jirgas or their institutionalised counterparts, the new “qazi” courts, could issue decisions regarding honour killings, abduction of women, pardoning of murderers and protection of minorities that are contrary to both Islamic and Constitutional principles.

These are precisely the concerns that have led human rights groups and local NGOs to issue resounding protests against the implementation of the Shari Nizam-e Adl Regulation 2008. The most problematic dimension of “qazi” courts is that it would provide the imprimatur of “Islamic” to any rendering of justice issued by a poorly trained qazi or judge. In a country, where the term “Islamic” is used to legitimise and justify a vast variety of political and personal interests, such legitimisation would allow sharia to be defined not by scholars and academicians trained in jurisprudence but tribal elders adept at justifying cultural practices as religion.

One possible course that would allow some semblance of communal autonomy while also avoiding the problem of giving Islamic and Constitutional legitimacy to the legal edicts issued by tribal jirgas would be to simply restrict their status to “jirgas” or “communal courts” rather than giving them the imprimatur of either religion or law. Decisions issued could be appealed to any court in the region, including superior courts and the status would be hierarchically below the court system and subject to appeal both under Civil and Sharia law of Pakistan.

Such a solution would allow some minimal legitimacy to the already operating tribal jirgas and achieve the purpose of speedy justice provision, yet also protect the interests of the women, children, minorities and other oppressed groups within these tribes who would undoubtedly suffer if powerful tribal elders were suddenly anointed as “qazi” judges qualified to pass sharia edicts and define Islam for the local population.

Rafia Zakaria is an attorney living in the United States where she teaches courses on Constitutional Law and Political Philosophy. She can be contacted at rafia.zakaria@gmail.com

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