Not Taliban-enough?

Pakistan's fiercely independent Pakhtun tribals become sacrificial lambs for Shariat.

Malakand's Islam is no different from the one being practised by the Taliban in Afghanistan," boasted the jubilant governor of Pakistan's North-Western Frontier Province (NWFP). He was referring to the promulgation of the Nizam-e-Adl Regulation 1999 (System of Islamic Justice Regulation) on 16 January, coinciding with the 27th of Ramzan, the most sacred day in the Islamic lunar calendar. This was the second promulgation of the Shariat in four years in Malakand, and came at a time when the central government of Nawaz Sharif was facing stiff opposition to its move of introducing the Shariat elsewhere across the country.

Since colonial times, Malakand, a mountainous region comprising seven districts of NWFP, has been ruled by special laws called Provincially Administered Tribal Areas Regulations (PATA). The British introduced this special arrangement for Malakand primarily because of the difficulty in governing this land of deeply religious and fiercely independent Pakhtun tribais. The arrangement was continued by independent Pakistan. Under PATA, the judicial process is controlled by a hierarchy of executive officers who rule with the help of local notables. This perhaps explains the region's high degree of crime and lawlessness.

An attempt was made to change this structure in January 1994, when the Supreme Court of Pakistan ruled that PATA contradicted the basic human rights laws as enshrined in the country's constitution. Islamabad began preparations to include Malakand within the purview of Pakistan's Penal Code. And that is what might have happened had it not been for the vehement opposition from a local religious group.

Tahrik-e-Nifaz-e-Shariat-e-Moham madi (tnsm, or Movement for Enforcement of Shariah of Mohammad), adhering to the wahabi revivalist movement, was a silent group under PATA. But, with the federal government's attempt to introduce standard Pakistani law, they became vocal and launched a movement to get the Shariat enforced in the area. If some reports are to be believed, the tnsm had the backing of the local bureaucracy which wanted the old arrangement to continue in some form. Clashes between the heavily armed activists of tnsm and the paramilitary forces resulted in the death of 40 people. The government relented, and agreed to enforce the Shariat in Malakand, but not strictly of the kind TNSM was demanding. In November 1994, a Nifaz-e-Nizam-e-Shariat Regulation (Enforcement of the System of Shariat Regulation) was enforced in Malakand.

The 1994 regulations were similar to the Pakistani law as it applied to the rest of the country, but came with some amendments. One of them was in giving litigants the right to mediate their disputes in accordance with the Shariat if they so chose. The decision made by a mediator was binding though a judge could overturn it if he felt that it was not in accordance with the Shariat. The amendments were welcomed by the lawyers of Malakand for they felt that while the Regulations did not go against the spirit of the law of the country, it was also in accordance with local tribal traditions.

However, tnsm was not to be satisfied with the new dispensation and went on strike once again. Among other things, it demanded immunity for all crimes that were not prohibited by Islam, which were basically a euphemism for non-payment of all taxes except the religious tax of zakat, permission to engage in smuggling, and unhindered extraction of the area's rich natural resources. In June 1995, clashes once again broke out between the police and the tnsm, leaving 11 dead. Further unrest did not follow as the TNSM over time began to lose much of its support base, and nothing much was heard of or from the organisation, except for some stray statements and wild rumours (which included a 'TNSM announcement' that promised 50,000 rupees for bringing in the head of a white man). Malakand's crime rate, too, dropped drastically, and it appeared that the people had reconciled to the 1994 Regulations.

But, with the announcement by the NWFP government of the enforcement of Shariat in the form of Nizam-e-Adl Regulation 1999, the situation has once again changed for the Malakand people. It is obvious here that the government is using Malakand as a test case to generate some pro-Shariat momentum to help push the 15th Constitutional Amendment (the controversial move that seeks to make the Shariat the paramount law in Pakistan) through the Senate.

The new laws give considerable importance to the clergy by allowing mullahs inside the court in the capacity of muavin qazis (assistant judges) and alim wakils (religious scholars cum-lawyers). If that seems out of place in standard legal practice, more alarming is the new law's concept of territorial and tribal responsibility. It empowers executive magistrates to proceed against "a person, a section of persons or a community of a locality, in accordance with the concept of collective responsibility, subject to the established principles of Shariat".

The move, seen as yet another concession by the government to the small but powerful religious lobby of Pakistan, has angered many. The legal community is opposing the Regulation saying that bringing in mullahs as muavin qazis and alim wakils is against the Bar Councils Act and the subordinate rules. Human rights activists contend that the new regulation is against Article 25 of the Con stitution which guarantees equality of citizens before the law, the same clause under which the Supreme Court had declared PATA laws ultra vires of the Constitution.)

The new arrangement has not only woken up the TNSM, but it has rejected it as well—for the TNSM, the arrangement is not Taliban-enough. It remains to be seen whether this will spur the group on to another round of violence. Either way, it's bad news for the Malakand 'guinea pig'.