Say no to Qazi courts

It appears the militants of Swat and adjoining mountainous region are likely to get on the table what they lost on the battlefield. Theirs' was an insurgency in support of Talibanisation, fuelled by an admixture of religious radicalism and aversion to corrupt local bureaucracy, as well as a tinge of folklore.
In 90's, local cleric Maulana Sufi Muhammad raised the banner of rebellion in the name of enforcing Sharia, much to the relish of local population that was fed up with corrupt administration and inefficient courts. Instead of addressing the people's grievances, the government of the day thought it expedient to cut a deal with the rebellious Sufi Muhammad and agreed to enforce a Sharae Nizam-e-Adl Regulation, 1999. But the new system did not work, as much for being out of tune with time as with Sufi's quixotic journey to Northern Afghanistan to join the Talibans' last battle in defence of their government.
The latest upsurge in militancy in the Swat region, however, is led by Sufi Muhammad's son-in-law, Maulana Fazlullah, who, in consonance with the rising tide of Talibanisation in the tribal areas close to Afghan border, challenged the writ of the state. His followers attacked military installations, occupied government offices and brutally eliminated his opponents. The state reacted with equal force and put down his rebellion within a few weeks.
But now as fighting has died down and peace seems to be returning to the troubled valley, the NWFP government is getting ready to reward the insurgents by agreeing to their demand for setting up Qazi courts. On the pattern of the failed law of 1999, a draft regulation has been prepared under the rubric of Sharae Nizam-e-Adl Regulation, 2008, that essentially replaces the existing legal system in Swat, Dir and Chitral districts with quasi-religious courts.
There are three basic problems with the move undertaken by the caretaker provincial set-up. Firstly, why reward the Fazlullah band now that the military has been able to dislodge him from his stronghold and established the writ of the government at such an enormous cost in terms of human lives and dislocation? If the provincial government was to let the Fazlullah demand for Sharia courts prevail in the end, why was this offer not made before troops were sent in? Also, acceding to the demand of the militants would encourage others, all over the country, to step up resistance against the writ of the government.
Secondly, what business Shamsul Mulk's outfit has to tinker with the legal system of the province? The caretakers have no mandate to act as agents of change, much less to undertake so formidable a task as giving a new legal system and that too as an appeasement? What the caretakers are planning is a parallel judiciary, which may or may not deliver quick justice but it would surely complicate things and create systemic difficulties for ordinary litigants.
Thirdly, and most importantly, the new system as envisaged militates against the ground reality and compromises the independence of judiciary in more than one way. Under the proposed law, the criterion for induction into the service threshold has been considerably lowered, which would negatively affect the quality of the judicial officers to be named Qazis.
Of course, the present incumbents would become part of the new system, but for newcomers only a three-month orientation in Sharia law would be too elementary a condition for a potential judge. Then there would be Muavin-e-Qazi (Helper to a Qazi), who would be appointed by a committee headed by a Federal Shariat Court judge and comprised of four others three of whom would be bureaucrats.
The same committee would also appoint Aalim Wakeels, equivalent to state attorneys. Add to this the power to be given to DCO to take action on the basis of 'collective responsibility', and one gets the feeling that the new system would have a strong 'Jirga' orientation. Such a course has been ruled out already by the apex court as it struck down retention of FCR in Pata areas in the 1980's.
There is also the problem of appellate jurisdiction. Under the proposed law appeals against the Qazi courts' decisions would lie with Federal Shariat Court, unlike in the rest of the country, thus creating two separate legal ambiences. The only aspect of the draft law that has merit is where it stresses quick disposal of cases and the provision for mediation in the early stage of a case.
In fact, it was the long, unjustified delays in adjudication that turned the people of this region against the prevalent system and common courts of law.
That would suggest that instead of turning the entire thing upside down, the caretaker set-up should focus on improving the efficiency of the existing legal system. What the people want is speedy and inexpensive justice, and not a maze of new legal problems.