The grand capitulation

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

It is hard to conceive an edict more shameful and frightening than Nizam-e-Adl Regulation 2009. In reviling its detractors and labeling them conspirators, the NWFP government and the federal government are now insolently marketing this deal with the devil as a sustainable basis for peace in Swat. The underlying argument in support of this deal being propounded by its advocates is that the state of Pakistan and the provincial and federal government were at the mercy of Sufi Mohammad, Fazalullah and their fellow Swati Taliban to establish order in the area. Given that surrender before these agents of violence was the only available option to save the lives of the citizens of Swat, this vile deal was unavoidable.

If it is true that the unequivocal resolve of the heads of all state institutions and the use of all state instruments and resources available to the government and the armed forces could not enforce the writ of the state in Taliban-held territory, there was probably no other option. Liberty, after all, would mean little to the dead. But in analysing the Swat deal, why must we make this binary choice between life and other fundamental rights? How come our ruling elites threw in the towel so expeditiously and in such pusillanimous manner? Why is the fundamental premise regarding lack of options in Swat not being challenged? What happened to the seventh-largest army in the world that, as we are repeatedly reminded, is capable of thwarting all external and internal security challenges confronting the nation?

Where is civil law-enforcement infrastructure that is meant to enforce rule of law and protect citizens from criminals who try to appropriate their lives, liberty and property? What happened to the ANP and PPP's ideology of tolerance, liberal political philosophy, and commitment to constitutional democracy and rule of law? And what about the rest of the parties in the Parliament – especially the PML-N – that joined hands with the ANP and the PPP to barter a part of the territory of Pakistan to avoid being branded "murtid" by Muslim Khan and his ilk, or because they neither have the inclination nor the ability to address the internal serious challenges confronting our nation?

Should we simply accept the replacement of anarchy in Swat by tyranny because the Swat deal has been inked by products of our democratic process or because the deal has been struck in the name of Sharia and criticising it would attract accusations of blasphemy from obscurantists who mistake themselves for divinely-ordained vanguards of our religion? Once you concede, as the ANP government has repeatedly done, that the deal that has produced the Adl Regulation is a product of necessity not choice, as there was no other way to curb the violence being perpetrated by the Taliban in Swat, a formal legalistic review of the merits of the law itself becomes immaterial.

Any analysis of the text of the Adl Regulation in isolation of the political context of its genesis and the prevalent power structures in Swat is not merely simplistic and inadequate, but also intellectually dishonest. True, there are good and bad laws. But laws are essentially tools. Most of the injustice that we witness around us is a consequence of the manner in which laws are enforced and the flaws that afflict the institutional arrangements contrived to enforce them. In this wider context the Adl Regulation is fundamentally flawed at multiple levels.

From an institutional perspective, the basic mandate of the judiciary (be it Sharia-denominated Qazis or good old judges) is to function as neutral arbiters of the law to uphold fundamental rights of citizens and act as a check on the rulers in their exercise of executive authority. If the Pakistani Army, the NWFP government and the federal government have failed at exercising control over Fazalullah and his men and subjecting them to the writ of the law, how will the qazis accomplish the impossible, even assuming that they would wish to? After all, when a subject of the state, be it a dictator or a militant, becomes a law unto himself (in the country as a whole or a part), the incidence of monopoly over power itself denudes the court of its ability to exercise control over such citizen.

From a constitutional perspective, at least three sets of objections can be raised against this law. One, the Adl Regulation is the result of a compromise between the government and the Taliban who have conflicting interpretations of the law being introduced. While its text states that appeals against qazi verdicts in Swat will be to Dar-ul-Qaza (High Court, pursuant to Article 198 of the Constitution) and then to Dar-ul-Dar-ul-Qaza (Supreme Court, pursuant to Article 183 of the Constitution), Sufi Mohammad has publicly announced that the decisions of qazi courts will be final. Notwithstanding Sufi Mohammad's lack of understanding of the text of the Adl Regulation, who will ensure that the law is actually implemented in letter and spirit in an area where the state is relying on the influence of Sufi Mohammed and his facility with Fazalullah to enforce the law?

Two, Sufi Mohammed and his followers have not been vying for introduction of procedural law that introduces courthouses will Islamic nomenclature. They have explicit views and expectations regarding the outcomes that their desired justice system will produce. Thus, they conceive Sharia courts as vehicle for introducing and implementing a new social contract between the citizens of Swat and the state, which must result in a primitive society and culture that they desire and justify in the name of Islam.

Their expectation from Sharia courts set up under the Adl Regulation will therefore not afford citizens the guarantees of due process that any civilised justice system must provide. And even if harsh and ill-considered decisions of local Sharia courts in Swat are overturned by Dal-ul-Qaza or Dar-ul-Dar-ul-Qaza, who will enforce the rulings of the High Court and Supreme Court in Swat?

And, three, Article 256 of the Constitution holds that "no private organisation, capable of functioning as a military organisation shall be formed, and any such organisation shall be illegal." Yet, our elected federal and provincial governments, our representatives in the Parliament and our armed forces have supported the Adl Regulation as the outcome of negotiations with one such illegal militant organisation that has annexed to itself a part of Pakistan's territory and appropriated fundamental rights of Pakistani citizens living there, including right to life, liberty and security of person, safeguard against arbitrary arrest and detention, right to dignity and privacy of home, freedom of movement, assembly, association, trade and speech, freedom to profess, practice and propagate one's religion, right to private property, right to education and protection from discrimination on the basis of gender.

The discourse around the Adl Regulation is equally malevolent in terms of the fallacies it propounds. Supporters of the Adl Regulation suggest that there is overwhelming support for the law amongst the people of Swat, which leads to the argument that the army of a country cannot fight its own people.

But is it not the primary function of the armed forces and the law-enforcement agencies across the world to fight criminals and insurgents? And there is no evidence to suggest that the Taliban and their worldview resonates with a majority of locals in Swat. How else would one explain the flight of 400,000 Swatis from their homes, whose lands and properties have been appropriated by the Taliban? There is tremendous demand for securing peace in Swat. But once state security agencies and the government make it obvious that the only way to secure lives is it to place them in the clutches of the oppressor, what options do locals have? The end of violence in Swat is surely welcome. But the quiet of Swatis is a consequence of coercion, not consent.

To qualify as a peace deal that could have been sustainable, the Swat compromise should have clearly addressed the following: the role of the militants, or lack thereof, in the future system of local governance; their disarmament or induction in state security apparatus; the return of displaced Swatis to their homes and repossession of their properties; a shared view on provision of education and health to the local population so that no schools are blown up in future and no anti-polio campaign are sabotaged; and the creation of sustainable institutional arrangements that would continue to enforce the peace.

No matter how we couch it, the Swat deal is a shameful surrender. This is surrender on the part of our army that is either unwilling or incapable of fighting insurgency. It is surrender on the part of the ANP that has traded-in the fundamental rights of the people of Swat to secure a lease of life for its government and its leaders. It is surrender on the part of the PPP, which has knowingly acceded to an invidious law to save its coalition government and for want of resolve and ideas on how to save Swat. And this is surrender on the part of our wider political "leadership" that has perfected the art of following the herd rather than leading it, and our elected representatives in Parliament who neither have the courage to speak their minds nor the vision to get this country out of the woods. The citizens of this country have once again been left to their own devices. And we must refuse to be coerced into submission.



Email: sattar@post.harvard.edu