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Shari'a Deal Could Give Pakistani Judges Unprecedented Power

The leader of an Islamic political party in Swat, Qari Abdul Waheed, addresses residents after the deal was struck on Shari'a law.
The leader of an Islamic political party in Swat, Qari Abdul Waheed, addresses residents after the deal was struck on Shari'a law.
Lawyers in Pakistan say a deal on introducing Islamic law near the Afghan border could give local judges unprecedented power to overturn parliamentary legislation.

The agreement to introduce Islamic law in Pakistan's Swat Valley and the surrounding Malakand region was reached this week between the provincial officials in Pakistan's Northwest Frontier Province and pro-Taliban militants who control parts of the Swat Valley.

It still needs to be approved by President Asif Ali Zardari before it is implemented. But Zardari has said he will support the deal as long as militants honor their part of the bargain -- to refrain from attacks on Pakistani Army and security forces.

Pakistan's Constitution requires that all laws in the country comply with the principles of Islam. But that has not prevented Pakistan from retaining much of the penal code inherited from the era of British colonial rule.

Imtiaz Gul, a Pakistani journalist, tells RFE/RL there is popular support in parts of the Northwest Frontier Province (NWFP) for Islamic justice -- largely because of frustrations over the existing justice system.

"In Pakistan, generally, the Anglo-Saxon penal code is in existence as practiced. And here, what we are talking about is the legal justice system as envisaged in the Islamic Shari'a," Gul said. "That is what people have been demanding because they are not happy with the Pakistan penal code -- the existing law -- which takes a very long time for cases to be settled."

"In the Islamic sense of justice, the courts -- which would be called Qasi courts -- have been stipulated to settle matters, to give their ruling, within four to six months," he said.

Gul explains that Islamic law implemented under this week's agreement would keep career judges from the existing legal system, rather than replacing them with religious clerics.

"It is something going beyond the constitution.... I would say that the government of NWFP has traded sovereignty for, at best, a cease-fire with the militants." -- Kamran Arif
"Professional judges would head the courts and their title simply would be different -- like the Qasi," Gul said. "However, they would have the assistance of religious scholars from the local area for consultation. And that would mean they are taking a decision in consultation with the community, the local religious leaders."

Those Qasi judges would most likely not be able to overrule Pakistan's Constitution, because there would be an appeals process through higher courts, he said.

"We have four provincial courts. One of them is the Peshawar High Court. And any matter adjudicated by the Shari'a court or the Qasi court would be appealable in the High Court -- and probably the Supreme Court of Pakistan," Gul explained.

Power To The Judges

But legal experts in Pakistan are expressing concern about any deal that allows local judges to rule on the validity of laws created by the parliament in Islamabad.

Kamran Arif, a Peshawar-based lawyer and a member of the executive council of Pakistan's Human Rights Commission, says that even though Pakistan's Constitution states that Islam is the supreme law, no local judge has had the authority to rule on what Islamic law dictates.

"There are institutions that advise...on what is Islamic and what is not Islamic," Arif said. "Then there is the Superior Court and the Federal Shari'a Court, which can review a law [on whether it complies with] Islamic law. And most of the laws have been reformed or amended in that manner."

Arif tells RFE/RL he fears that Pakistan's Constitution would be violated if local judges in the Malakand region were given the power to throw out federal legislation on the grounds that it is un-Islamic.

"Now, for the first time, we are crossing that barrier," he said. "We are empowering the junior judges -- the bottom-most court judge -- to decide what Islamic law is.... And if he feels that it is, in his interpretation, not in countenance with the injunctions of Islam, he can throw it out."

Arif continued: "At least for me, it is something going beyond the constitution. So in that respect, I would say that the government of NWFP has traded sovereignty for, at best, a cease-fire with the militants."

Arif also says he is not convinced that the appeals process would safeguard Pakistan's Constitution from local judges, who might come under pressure from conservative religious clerics.

Against Education

Some human rights advocates also are concerned that the implementation of Shari'a law could lead to local court decisions that ban girls from going to school.

Pro-Taliban militants want to impose their austere interpretation of Islamic law in the area, and they oppose education for girls, saying it is un-Islamic. During the past year, militants have destroyed more than 150 schools in and around the Swat Valley.

Arif says he doesn't think the implementation of Shari'a law would make it illegal for girls to get an education. But he concludes that there would probably be local pressure for the implementation of rules similar to those in Afghanistan during the reign of the Taliban regime.

"Women will eventually go to school. I have no doubt about that. But some restrictions are going to stay. I think they will be forced to wear a burqa," Arif said.

"If these laws come and this system is allowed to prevail, women will not be allowed to travel alone without a male relative accompanying them," he continued. "I think it will be something very, very close to the situation in Taliban-controlled Afghanistan."

Other critics of the deal in Pakistan say the provincial government of NWFP has caved in to militants by offering to appease extremists rather than eliminating them.

NATO officials have expressed concerns about the deal, saying that previous cease-fire agreements have been maintained by militants only long enough to resupply their fighters. They say imposing Islamic law in and around the Swat Valley could lead to new safe havens for Islamist extremists there.

U.S. Secretary of State Hillary Clinton says Washington is still studying the implications of the deal. But U.S. State Department spokesman Gordon Duguid has suggested that the imposition of Shari'a law is an issue for Pakistan to decide upon for itself, as it falls within Pakistan's constitutional framework.

Security experts note that there are pro-Taliban militants in the area who have not yet agreed to a cease-fire in exchange for the implementation of Islamic law. If those militants continue to battle Pakistani security forces, the agreement on Shari'a law could come to an end before it is implemented.

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