The government is contemplating to establish
shariat (Qazi) courts in the Provincially
Administered Tribal Area (PATA), which consists
of districts of former Malakand Division,
including Swat, Upper and Lower Dir, Buner,
Malakand Protected Area, Shangla, Chitral and
Kala Dhaka of Mansehra District. Under the
programme, the nomenclature of the lower judicial
structure will be changed and members of lower
judiciary from judicial magistrate to district
and sessions judges will be given the name of
Qazi. Before being appointed to these positions,
these judges will be given a three- month crash
course on Islamic Sharia. In reaching to their
decision, Qazis will be assisted by a committee
of local clerics. The jurisdiction of the
Peshawar High Court and the Supreme Court will be
withdrawn from these areas and appeals against
decisions of the Qazi Courts could only be made
with the Federal Shariat Court (FSC).

It is also being reported that the government is
negotiating release of Maulana Sufi Muhammad with
Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM)
leaders. Maulana Sufi Muhammad is father-in-law
of Maulana Fazlullah, who is leader of the
present movement in Swat. The TNSM leadership,
however, has been expressing its disassociation
with Maulana Fazlullah.

The decision is being seen as an attempt on the
part of the government to appease the Taliban and
their supporters in Swat. It is to be seen
whether this decision will help cool down the
Taliban movement in the region or give it further
impetus. The Taliban influence in most of the
Pashto-speaking settled districts of the NWFP has
been expanding and appeasement like imposition of
such law will definitely encourage them.

Besides the Malakand Division, southern part of
the province, including Kohat, Hango, Tank,
Bannu, Lakki Marwat and D I Khan have been badly
affected. The Taliban have been attempting to
impose their social and religious code in most of
these areas. There is no reason that after
getting the Sharia courts in Malakand, where
cleric committees represented by them will make
all decisions, they will not try to get the same
for the southern districts. If the government
today accept their demands in the Malakand
Division, other districts of Peshawar, Mardan,
Charsadda, Swabi and Nowshera will fall in their
lap.

Governments, media, religo-political parties and
other influential groups have been presenting the
imposition of Islamic law as a panacea for all
social, political and economic ills. Inherent
connotation of the argument is that the present
legal, political and economic structure in the
country is un-Islamic, which has to be replaced
by an Islamic structure. The argument has been
the most potent ammunition of religious parties
which helped them to expand their base. The
perception has helped them reach the position
they are enjoying today where they are dictating
their terms with the power of gun.

It is not time to appease militants and
extremists but defend Pakistan as it was
envisaged by Allama Iqbal and Quaid-e-Azam
Muhammad Ali Jinnah. Pakistan is a Muslim country
where over 97 percent population follow the
Islamic faith. Their enthusiasm for the religion
has been exemplary. The religion is part of our
social norms, ethos, traditions, language and
culture. Most sections have seldom any conflict
with Islamic teachings. The Holy Quran and Sunnah
are supreme law of the land and courts are free
to decide whether a particular law is repugnant
to Islamic teachings or not.

The framers of Constitution also explicitly
prescribed that no law will be enacted in the
country against the teachings of the Holy Quran
and Sunnah and existing laws will be scrutinised
whether they confirm to the injunction of Islam
or not. For this purpose, the Council of Islamic
Ideology (CII) has been established. The Council
has been functioning for the last 31 years. If
anyone has any objection over any law, then he or
she must go to the CII and let it decide. The
parliament as embodiment of the sovereignty of
the people has right to amend existing laws in
accordance with the recommendations of the
Council.

The Qazi courts will deprive the Peshawar High
Court as well as the Supreme Court of their
jurisdiction over the PATA region. The FATA area
is already out of the jurisdiction of any court
and protection of basic human rights are not
available to the people of these areas. The
ouster of jurisdiction of High Court as well as
the Supreme Court will also deprive the people of
PATA of their human rights. At the same time, the
proposed law will create another parallel court
system in the country.

To keep the country united, efforts should be
made to establish universal legal system. To the
contrary, apologists and embodiments of
appeasement are devising strategies and policies
which result in shrinking reach of existing
institutions and putting large section of society
at the mercy of extremists.

The establishment of FSC was part of the
sycophant, hypocritical dishonest policies of
General Ziaul Haq under which he used the name of
Islam to expand his whimsical powers and crush
any resistance. The establishment of the court
enabled him to dump the ’erring’ judges of High
Courts without their consent which otherwise he
could not normally do. The independence of judges
of the FSC is not ensured as is the case with
judges of High Courts and Supreme Court. They are
appointed for a three-year term by the president,
who can also give them extension, change their
terms of appointment or assign them any other
duty. Such powers are not available to the
executive vis-a-vis judges of any High Court or
Supreme Court.

Under Article 203-C (5) of the Constitution if a
judge of a High Court deems to have retired from
his office if does not accept appointment as
judge of the FSC. The clause allows a route to
the federal government to get rid of independent
minded judges of High Courts.

Under the relevant articles of the Constitution,
which were forced into the document by General
Ziaul Haq, the FSC has two functions to decide
whether a particular piece of legislation
confirms to injunction of the Holy Quran and
Sunnah or not. As already stated, the framers of
the Constitution had given this responsibility to
the CII and there is no need to have another
institution to do the same. Besides all courts
can make decision in this regard as the Holy
Quran and Sunnah is supreme law of the land.

Other function entrusted to the FSC is to hear
appeals against decisions of lower courts with
regard to cases pertaining to the Hadood
Ordinance. As already said this function is
better performed by high courts. It is time that
the FSC is abolished altogether and a uniform
court system is restored. Any attempt to expand
the jurisdiction of the FSC and at the expense of
higher judiciary, is a retrogressive act to
appease militants. It will further encourage them
to strike further deep in the country.