It has been a triumphant week for Islamists in Pakistan. On Monday, the National Assembly passed a resolution asking the president to sign into law the Nizam-e Adl Regulation 2009, a key instrument in the peace deal reached between the ANP government in the NWFP and the TNSM in Malakand. Later that day, President Asif Ali Zardari signed it into law.
According to the text of the Bill, the Nizam-e Adl Regulation would provide for the “Nifaz-e-Nizam-e-Sharia through Courts in the Provincially Administered Tribal Areas for the North-West Frontier Province”.
Mere days later, the Supreme Court of Pakistan handed another victory to the Islamists. On April 15, the Court granted bail to Maulana Abdul Aziz, leader of the Lal Masjid congregation who had tried to flee the scene of the siege two years ago. Maulana Abdul Aziz had been under house arrest and faced charges in no less than twenty-seven cases. According to the Court, the government had been unable to present enough evidence in any one of these cases to justify the continued incarceration if Maulana Abdul Aziz. He was released on April 16.
The week’s dénouement provides several clues to the Zardari government’s latest strategy to deal with Pakistan’s growing Islamist cadre. In the words of Prime Minister Yousaf Raza Gilani: “Pakistanis are united in supporting the new law…[which] was brought before the house to build a broad national consensus and establish the supremacy of the Parliament.”
The government’s spin on the story, then, is this: the people of Pakistan represented by the national legislature wanted such a deal to be orchestrated between the ANP and the TNSM, and in orchestrating it, the administration is merely giving voice to the people’s demands.
The government’s position is noteworthy for several reasons. First, by dragging a peace deal made with a militant group that did not participate in the electoral process (much less believe in it as a means of governance), the government seeks to bring them into the ambit of democratic governance. The government’s gamble conjectures that once institutional strictures are imposed on a group like the TNSM, they too will feel the sting of political constraints imposed by the demands of governance as opposed to the relative ease of carrying out subversive activity.
The text of the Bill itself is evidence of the government’s strategy; written in English and replete with sections, subsections and schedules, it forces the reader to consider whether the leaders of the TNSM are able to read, let alone understand, it.
Indeed, if they could read the Bill, and compare it to Constitution of Pakistan, they would find that many of the provisions in it are redundant. Take, for example, section 4 of the Bill, which states: “If, immediately before the commencement of this Regulation, there was in force in the said area any law, instrument, custom or usage having the force of law not corresponding to the Injunctions of Quran Majeed and Sunnah or provisions of any of the laws applied to the said area by this Regulation, such law, instruments, custom or usage, as the case may be, shall upon such commencement, cease to have effect in the said area.”
The meaninglessness of Section 4 is exposed when compared to the fact that Article 227 of the 1973 Constitution already states that: (1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah and no law shall be enacted which is repugnant to such injunctions.
In other words, at least Section 4 of the Bill does nothing that has not already been asserted in the Constitution of Pakistan, which already necessitates that every existing law be in accordance with the Quran and sharia.
There would be reason to celebrate the government’s sleight of hand in orchestrating the peace deal were it true that the TNSM were indeed bound by the text of the document. While the government may have calculated that such a move may bring the TNSM into the realm of political constraints and legal wrangling, the group itself has shown no interest in such procedural shenanigans.
On April 16, mere days after the passage of Nizam-e Adl, Sufi Muhammad issued a statement saying that the decisions made by qazis under the Nizam-e- Adl regulation could not be challenged in Pakistan’s superior courts. His statement is in direct contravention to the text of the Bill which clearly gives appellate rights to litigants in both the Darul-Darul Qaza and the Darul Qaza, both of which are defined as appellate of revisional courts established under Section 183 and 198 of the Constitution of Pakistan (1973). These sections refer specifically to the High Courts of individual provinces and to the Supreme Court of Pakistan, which are clearly articulated as venues of appeal available to all Pakistanis.
The release of Maulana Abdul Aziz is another prong in the government’s effort to put the Islamists in its metaphorical pocket. As is well known, the Lal Masjid debacle garnered immense public outrage against the government and the army two years ago. The Zardari government’s failure to come up with requisite evidence in even one of twenty-seven cases relating to an event that was broadcast live can thus safely be described as a deliberate and calculated move to deliver political dividends. It suggests that this government believes that the best way to de-fang the Islamists is to befriend them.
Ultimately, despite all its cleverness and strategic acuity, the overture made by the Zardari government rests on a risky assumption. Packaging deals with groups like the TNSM, which clearly oppose all forms of democratic governance, in the trimmings of parliamentary legitimacy does not consequently transform the ideological agendas espoused by such groups. Tragically, what the Nizam-e Adl does is ignore the reality that the people of Pakistan did not elect an Islamist majority to represent them in parliament.
Rafia Zakaria is an attorney living in the United States where she teaches courses on Constitutional Law and Political Philosophy. She can be contacted at firstname.lastname@example.org
Reproduced by permission of the author and DT