Judging the Swat Deal - Problems, Limitations and Prospects

In the Shadow of Shariah
PART I - Swat: the Past, Present and Future
By Dr. Mohammad Taqi

The rout of the secular forces in Swat is now complete. Pashtun nationalist leader, Khan Abdul Wali had once described the infamous Shariat Bill, presented in the Pakistani parliament, as Shararat Bill (mischief bill).Unfortunately, a much more perverse version of the Shariat or Islamic jurisprudence is being implemented in Swat, on the watch of Wali Khan’s son, Asfandyar Wali Khan.

Asfandyar Khan has joined the ilk of Jama’t e Islami and Imran Khan in dismissing the condemnation heaped on his Awami National Party (ANP), for imposing Shariat, as criticism by the nam nihad (so-called) liberals. Apparently the younger Khan has forgotten that most of these so-called liberals have remained associated with his father and his illustrious grandfather for the better part of Pakistan’s checkered history.

The right-wing political forces in Pakistan have gone blue in the face highlighting how fair, swift and in sync with Islam, the pre-1974 judicial system in Swat was. They however, are not the only ones responsible for selling this figment of their imagination as a bonafide judicial thesis to their fellow Pakistanis and the West.

The leaders of the pro-judiciary movement in Pakistan have chosen to conveniently ignore addressing this issue even in passing, and by their omission are aiding and abetting the mutilation of the legal system being attempted in Swat. The deposed Chief Justice of Pakistan, Iftikhar Chaudhry and his lawyer lieutenants have been shirking their duty to explain and critique this fantastic story about the history and mechanizations of the judicial system of the princely State of Swat.

We find it relevant to the future of Swat, the North West Frontier Province of Pakistan (NWFP) and indeed the whole of Pakistan, to survey the history of Swat and its administrative and judicial system.

The story of the Swat State begins with a young Talib – a student of an Islamic seminary – named Abdul Ghafoor, who had immigrated to the plains of Peshawar, from Jabrai in Swat. Abdul Ghafoor was born into the Safi branch of the Mohmand tribe. He later returned to Saidu in Swat and became known as the Akhund (the holy man) of Swat and was appointed as Sheikh ul Islam or the chief religious leader by the Loya Jirgah – grand assembly – of the local Swatis, who predominantly belonged to the Yousafzai tribe.

Akhund of Swat also led military campaigns against the British but never took a political office. His two sons Abdul Hannan and Abdul Khalique succeeded the Akhund upon his demise circa 1877. The sons carried the honorific Miangul, with connotations being an admixture of a term of endearment and some religious appeal. Abdul Hannan did pursue the temporal power and was involved in local politics of the time, without landing a major success. Abdul Khalique carried on with the religious mantel of the Akhund. The two brothers were survived by two sons each, upon their death. Said Badshah, a son of Hannan, was killed by his brother Mir Badshah and his cousins. Mir Badshah was subsequently shot dead by his cousin and son of Khalique, Gulshahzada Abdul Wadud.

Gulshahzada and his brother Abdul Mannan aka Shirin Jan, after finishing off the rival branch of the family set out against each other. However, around 1915 were forced to forge unity in the face of other rivals, most notably Abdul Jabar Shah of Amb. Jabar Shah had previously been designated a king by the Swatis and had led a campaign against the British alongside the Akhund.

The Miangul brothers swiftly switched sides to enter into an alliance with another rival, the Nawab of the neighboring Dir State. However, Jabar Shah was shunned by the Swatis for being an Ahmedi and because of a lack of tangible gains under his leadership and the Mianguls were invited back in. Miangul Gulshahzada then dislodged the Nawab of Dir from the territories which later constituted the State of Swat, reined in the local chieftains and consolidated his power as far south as Buner and up north till Kalam. He however, was unable to annex Kalam and settled for a British brokered peace with the ruler of Chitral declaring Kalam as a buffer zone of sorts.

The British finally recognized Miangul Gulshahzada Sir Abdul Wadud as the Wa’li or ‘hereditary’ ruler of Swat in 1926. The capital of Swat State became Saidu Sharif – Saidu the exalted - and there being no major city, Mingora was its largest population center.

The illiterate Wa’li ruled Swat autocratically and had divided the State in four administrative provinces, which were then sub-divided in eleven districts or Tehsils. His eldest son Miangul Jehanzeb, a graduate of Islamia College, Peshawar, was designated the heir-apparent or Vali Ehd in 1926. The heir-apparent dealt with the financial matters and along with the Vizier, assisted the ruler in administrative and judicial matters.

The judicial system implemented in the Swat of was a combination of Rivaj – the tribal custom, nominal Islam and the pleasure of the Wa’li. As the Wa’li captured new territories he would ask the tribal elders to put their Rivaj on record and the cases of petty crimes and offences of local nature were decided according to this custom. Major offences, acts against public welfare and crimes against the State were decided by the Wa’li himself at his discretion and the case merits.

In this quasi-feudal system of justice, no guarantees existed regarding fundamental human rights, inheritance, role of evidence and the due process. Shariat, as is understood in the context of Islamic law, has its own set of rules regarding all these matters but was never adopted to be the system for dispensing justice in the princely State of Swat.

The Swat State acceded to Pakistan on July 28, 1969 and along with the States of Dir and Chitral was incorporated into the Malakand Division of the NWFP, but its traditional legal system remained in place till 1974 , when finally the courts were established there, in accordance with the 1973 constitution of Pakistan. Also, the 1973 constitution recognized, under its article 246(b) the former princely states of Dir, Swat, Chitral and Amb as the Provincially Administered Tribal Areas (PATA) and distinct from the FATA.

The article 247(4) of the constitution states : “Notwithstanding anything contained in the Constitution, the President may, with respect to any matter within the legislative competence of the Parliament and the Governor of a Province, with the prior approval of the President, may, with respect to any matter within the legislative competence of the Provincial Assembly make regulations for the peace and good government of a Provincially Administered Tribal Area or any part thereof, situated in the Province ”. In simple words the president – for the sake of peace and prosperity – can sign as a regulation something, which otherwise would have required an act of parliament. The Shariah being imposed in Swat is apparently going to be implemented under these constitutional powers vested in the President. However, a gross generalization has been made in interpreting the legislative competence of the parliament and the powers that be have pushed the envelope.

The article 8 of the constitution of Pakistan – which deals with the fundamental rights of the citizenry - voids any “laws inconsistent with or in derogation of fundamental rights”. The section 2 of article 8 further clarifies that “The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void “. In other words, the president, parliament, Governor or the provincial assembly cannot give away in compromise, what is constitutionally not theirs to begin with.

Amazingly, all those supporting the implementation of Shariat in Swat have also been calling for extending the writ of the Pakistani State into its Federally Administered Tribal Areas (FATA), including full implementation of the 1973 constitution along with the Political Parties Act. Full-throated sloganeering is going on for establishing the rule of law – British Law that is, in preparation of the long march to restore the deposed CJP. No one has bothered to explain to the common man as to why the 1973 constitution and the courts resulting from it are great for rest of the Pakistan and even for FATA but horrible for Swat.

To its credit the English press in Pakistan has devoted its op-ed pages to raising awareness about the rising specter of the Taliban Shariah but the vernacular print and electronic media has come out in strongly in support of the obscurantist forces. The spin-masters of the federal and provincial government are hard at work presenting the breakdown in their authority as the great breakthrough.

- To be concluded - (author practices and teaches medicine at the University of Florida and can be reached at taqimd@gmail.com)

Also See:
COMMENT: The Swat deal is wrong — Shaukat Qadir, Daily Times
Taking on the Taliban - Zafar Hilaly, The News