Thursday, April 16, 2009 
By Ansar Abbasi
ISLAMABAD: The Nizam-e-Adl Regulation (NAR) 2009 envisages no role whatsoever for the Taliban or the Tehrik-e-Nifaz-e-Shariat-e-Mohammadi (TNSM) in the running of the new justice system introduced there.
Contrary to the general perception that Swat has been surrendered to the Taliban and different sects of the religion and minorities would be at the receiving end under the new dispensation, the NAR 2009 clearly protects all Muslim sects and minorities from being tried under laws that do not match their respective faith.
These regulations also undoubtedly declare that Qazis of all the courts would be appointed by the NWFP government and that these judges are required to be “duly appointed judicial officers”. There is an impression amongst many that the Taliban would appoint their choice men as Qazis in Swat and the Malakand division.
The whole justice system revolves around the government-appointed Qazis and Qazi courts or the appellate bodies; the police; civil magistracy; and the complainant/defendant or accused/prosecutor. For out-of-court settlement, the NAR 2009 provides for “musleheen”, who would decide minor cases like a Jirga system but only with the agreement of both the parties.
What, however, the NAR 2009 emphasises is to ensure quick justice and a system where for delays in the disposal of cases not only the Qazis would be questioned but those parties trying to unnecessarily drag the case would be made to pay the cost of the case to the other party as it happens in the western capitals.
The NAR 2009, which is the replica of the regulations agreed in 1994 and 1998 for Swat by Benazir Bhutto and Nawaz Sharif governments, respectively, is not an attempt at imposing one particular Muslim sect’s interpretation of Shariah laws on all.
In the “Definitions” part, the NAR explains: “In the application to the personal law of any Muslim sect, the expression ‘the holy Qura’an and Sunnah’ shall mean the Qura’an and Sunnah-e-Nabvi (PBUH) as interpreted by that sect.
With regard to minorities, the NAR also clarifies that cases of non-Muslims in matters of adoption, divorce, dowry, inheritance, marriage, usage and wills shall be conducted and decided in accordance with their respective personal laws.
About the Qazi, it says, “Qazi” means a duly appointed judicial officer. The new judicial system in Swat would have court of executive magistrates, court of Illaqa Qazi; court of Asía Illaqa Qazi; court of Izafi Zila Qazi and court of Zila Qazi, precisely in the same pattern as we have different tiers of district courts in settled areas. Above these courts, Dar-ul-Qaza, which would be equivalent to high court, and Dar-ul-Dar-ul-Qaza, the apex judicial authority equivalent to the Supreme Court, would be created in the same region.
These Qazis would have same powers as their contemporaries enjoy in regular courts in settled areas but they would be bound to proceed within the limits set by the principles of Shariah. Just like what happens in other parts of Pakistan, the police would submit challan in each criminal case before the relevant Qazi court within 14 days of the lodging of an FIR. In addition, the copy of the FIR would also be provided to the Qazi court within 24 hours of its registration. Police in Swat are also bound to keep the judiciary posted about the progress of its investigations.
The Qazis and magistrates are bound by the NAR to follow established principles of Qura’an and Sunnah and recognised opinions of Fuqaha of Islam. There is no room for the Taliban’s interpretation of Islam or Shariah in these regulations.
To ensure quick justice, the NAR bounds the courts to decide the cases, whether of criminal or civil nature, within a stipulated time period and clearly warned: “No adjournment shall be granted to either party in any civil or criminal proceedings, except where the court is satisfied that adjournment is unavoidable. In such case the requesting party shall deposit the costs in court, which shall not be less than two thousand rupees.”
A period of not more than six month for disposal of civil case, and a period of not more than four months for disposal of criminal case, shall be standard time schedule for both the Qazi and executive magistracy courts. In case of any delay, the Qazi is bound to report the cause and reasons of such delays to Zila Qazi or to the presiding officer of Dar-ul-Qaza as the case may be. Upon examination of causes of delay if the Zila Qazi or presiding officer of Dar-ul-Qaza feels that the delay has been caused due to delaying tactics of a party, it shall impose a cost to be recovered from the defaulter party and direct the court concerned to dispose of the case within an extended period of not more than one month.
If a Qazi or executive magistrate is found responsible for delays, letter of displeasure would be issued to him by his superior authority. And if a Qazi is served with three letters of displeasure in a year, then after providing him the opportunity of being heard may make an entry in his service record. An appeal against the decision of Qazi or magistrate court would be disposed of within 30 days whereas any degree shall be executed within two months.
In case the pending cases in any Qazi or executive magistrate court exceeds more than 200 days, the government would establish a new court to ensure dispensation of justice within prescribed time schedule.
For out-of-court settlement, any civil or criminal case, subject to the mutual consent of the parties, may be referred by a court to Musleh or Musleheen before recording of evidence either on the agreement of the parties regarding the names of such Musleh or Musleheen or in case of their disagreement, to such Musleh or Musleheen whose names appear on the list maintained by the court for such purpose.
The government authorities are presently preparing rules under these regulations, under which each union council/village would constitute a body of elders, Ulema, etc., to be called Musleheen for out-of-court settlement of minor cases or those to be referred by the Qazi court with the consent of all the parties concerned.
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