Three legal systems

THE recent debate on the Frontier Crimes Regulation (FCR) and the Nizam-i-Adal Regulations in the Malakand Area of the NWFP is a key example of the structural problems Pakistan faces.

While countries have had different personal laws for people from different communities, e.g. India and now in some cases the UK, criminal laws have always been uniform.

There is simple reasoning behind this: people, according to religion, culture or other factors might disagree on inheritance, marriage or divorce laws, i.e. civil issues, but on issues relating to criminal offences, the state has always laid down a uniform law. Pakistan, of course, exhibits a different trend.

When Pakistan was created in 1947 it inherited two kinds of laws. British common law was for the regions known as the ‘settled areas’ which corresponded to Sindh, Punjab, a few districts of the NWFP and Quetta, while the rest of the country was administered under the FCR (promulgated in 1901), as ‘unsettled’ or ‘tribal areas’. The tribal areas were mostly on the frontier with Afghanistan and Iran where the control of the central British Indian government was weak. It was thought that these tribes were so ferocious and independent-minded that they would never accept civilian rule.

So as long as the border was safe and these tribes refrained from attacking settled areas, the British were happy to leave them to their ways. However, even after numerous agreements and treaties with the tribes, problems arose in the maintenance of law and order. Since these regions did not have any civilian administration, police and the like, it was very hard to ensure law and order by extending British Indian laws to the areas.

Under the British Indian government these frontier areas were excluded areas where the Indian Penal Code did not apply and Indian courts had no jurisdiction. The Frontier Crimes Regulation was the only law for these regions and the political agent (resident or non-resident) was the ultimate adjudicator. Pakistan inherited this system of governance and whereas the FCR was made inapplicable in the ‘settled areas’, it still remained in force in the Federally Administered Tribal Areas and the tribal regions of Balochistan.

The Provincially Administered Tribal Areas (Pata) of the NWFP, which for the most part comprise the former princely states of Dir, Swat, Chitral and Amb (Malakand Agency), were for some time after their merger with West Pakistan in 1969 administered under the Pata Regulations of 1975. These regulations were of a peculiar sort in that they extended some Pakistani common law provisions to the region while retaining some aspects of the previous administration. So while the Code of Civil Procedures (1908) was extended to Pata, the tehsildar could also constitute a jirga of Khans to adjudicate any case.

This inherently confused system obviously did not work and was open to many abuses. Finally in 1994, the Supreme Court declared the Pata Regulations as ultra vires to the constitution, making them null and void. Since then, until the promulgation of the Nizam-i-Adal Regulations in 1999, the regions of Pata were administered under a strange mix of local customs and Pakistani common law.

The Nizam-i-Adal Regulations of 1999 were partly a result of the agitation of the Tehrik Nifaz-i-Shariat-i-Mohammadi (TNSM) which had been clamouring for the enforcement of Sharia in Pata since 1994 and partly due to the unwillingness of the government to fully integrate these areas with the rest of Pakistan. The 1999 Regulations were not a complete enforcement of the Sharia but created an image that at least in major issues the tenets of the Sharia were being enforced. The Peshawar High Court and the Supreme Court retained their jurisdiction and an attempt was made to give the impression that a separate legal system was not being established.

At the moment the Government of Pakistan is contemplating wholesale revisions to the FCR and the Nizam-i-Adal Regulations. Whatever system of justice these changes might lead to, the larger question of the existence of not two, but three, legal systems in Pakistan remains — common law, FCR and Nizam-i-Adal.

Currently Pakistan is going through one of the most crucial phases in its history: a number of districts are not under the control of the government, military action is being undertaken in parts of the NWFP and, until recently, in Balochistan, and sectarian violence and terrorism is rife in the country. In this environment when the country is falling apart the government should foster unity and coherence, rather than distinction and confusion. Having three different, and at times conflicting, legal systems in the country is no aid to national unity.

For example, it is ludicrous that the punishment for murder is different in Lahore as compared to Parachinar or Swat. Having multiple legal systems, especially criminal jurisdictions, creates a lot of confusion and allows people to play havoc with the system. I can still recall many incidents from my childhood of murderers fleeing to Fata so that the police could not arrest them.

Where in the 1980s murderers and other offenders were hiding from the government in Fata, now more dangerous terrorists are finding a safe haven there. The recent incidents in Swat also show how a different legal system can lead to some people thinking that they can pressure the government into enforcing whatever laws they like.

What Pakistan requires is a straightforward, non-contradictory system of law, which provides for different personal law but uniform procedural and criminal law. For this change to take place, of course, both Pata and Fata have to be abolished and integrated with the rest of the NWFP. It makes a mockery of independence and democracy that citizens of Pakistan still exist in three different legal states.

The regions of Fata and Pata will remain backward, poor, illiterate, and continue to be violence-prone until there are concerted efforts to integrate them into the rest of Pakistan. The stroke of the pen merging them with the NWFP may not bring about the desired effect immediately but it would be a major first step in the right direction. Rather than amending the FCR and Nizam-i-Adal Regulations, the government should repeal them and integrate these regions by extending the laws applicable in the rest of Pakistan to them without any discrimination.

Adjustment to this change will indeed be complicated but it is better for the government to sort out hiccups in one system rather than three different and contrasting legal frameworks. Pakistan is beleaguered with a plethora of problems and solving this legal confusion will go a long way in cultivating unity in the country.

The writer is a historian at Keble College, University of Oxford.

yaqoob.bangash@keble.ox.ac.uk

Cry of the hawks

THE carnage in Mumbai has yielded one benefit. It has unmasked the warmongers on both sides. The picture that has emerged is not pretty. Editorial pages overflow with poisoned words.

And the air waves are thick with bigotry. Unlike Abraham Lincoln at the close of the American Civil War, there is no one in either India or Pakistan who has found a transcendent meaning in the carnage.

On the Indian side, one hears talk of revenge and instant justice. Muslims, not just Pakistanis, are the eternal villains in this plot, pumped up with the passions that flow from consuming the sacred cow. The hawks have little interest in negotiating a solution to Kashmir. In their eyes, that means handing victory over to the enemy. They contend that it is vital for the Indian Union to have a Muslim-majority state.

On the Pakistani side, a hawk argues that the Indians cannot be trusted to abide by any peace agreement. Another claims that the fourth war between India and Pakistan has already begun, citing the IAF’s violation of Pakistani air space. He goes on to brag that Pakistan will prevail militarily over India in any conflict even though it has lost in all past encounters.

Unnamed military officials declare that if India attacks, the Pakistan Army would transfer troops from the tribal areas to the eastern front and the ‘patriotic Taliban’ would be enlisted to assist in the final encounter with India. A retired general officer is even less shy about invoking Armageddon. He says Pakistan would unleash a nuclear barrage on India in the event of an attack.

Such bluster by senior military officials would never be aired anywhere else. They simply confirm that Pakistan’s national security establishment does not have the maturity to be trusted with nuclear weapons. The hawks refuse to accept responsibility for harbouring terrorists on Pakistani soil and continue to blame the Mumbai attacks on agents of the CIA and the Mossad. One conspiracy theorist even accuses the Indian intelligence agency of self-engineering the attack.

In their eyes India has not reconciled itself to the partition of 1947. Ergo, it is an existential threat. Having created Bangladesh out of East Pakistan in 1971, it is now out to create a West Bangladesh and re-establish Akhand Bharat.

Sadly, schadenfreude about India abounds in Pakistan, even among the moderates. For many, the Mumbai tragedy simply highlights serious fissures in India’s polity. They took comfort in seeing 10 militants holding up countless hotel guests and hundreds of commandos at bay for 60 hours. To them, this was proof that Indians did not know how to fight, that India was nowhere close to being the rising power that the world media was saying it had become.

The hawks on neither side see the deep-rooted problems in their own strategic culture. Introspection is not their forte. Nuance and texture are nowhere to be found in their diction. The hawks in India don’t realise that the secularity of India, a country with a billion citizens, cannot rest on the inclusion in its body politic of a state of 10 million. It is time that the authorities in New Delhi did something to improve the lot of the 150-million-plus Muslims that reside in India. Wrongdoers like Chief Minister Narendra Modi who presided over a pogrom in Gujarat should be brought to justice, not left free to roam the country, fanning the fires of communal hatred.And, most fundamentally, India has to accept its responsibility for creating the conditions that led Jinnah, the fierce champion of Hindu-Muslim unity, to seek a separate nation for the Muslims. The German word for coming to terms with the past, Vergangenheitsbewaltigung, is worth pondering.

As for the hawks in Pakistan, they have to realise that when their leaders have made a hash of managing their four provinces, why would they fare any better in a fifth? It is time to stop indulging in past glories. It does little to name ballistic missiles after Muslim rulers from Afghanistan who conquered India during the Middle Ages. Nor does it do much to name naval ships after the great Mughals.

In the 21st century, one has to look beyond territory and ideology and focus on human and social development. Against this backdrop, militants who kill innocents emerge as enemies of the human race, the ‘hostis humani generis’ of Cicero.

Despite the crying of the hawks, armed attacks in the Valley of Kashmir are at an all-time low since the insurgency of 1989. As Yaroslov Trofimov noted recently in the Wall Street Journal, India’s biggest foe in Kashmir is no longer a Pakistani-sponsored militancy. The new threat comes from a civil disobedience movement that is being carried out in the best Gandhian tradition. It is being led by Mirwaiz Umar Farooq who says, “India is not scared of the guns here in Kashmir … [but it is scared of] … people coming out in the streets, people seeing the power of non-violent struggle.”

Mufti Muhammad Sayeed, India’s home minister at the peak of the insurgency and the state’s chief minister during 2002-05, agrees. Sayeed notes that there is a big difference between killing a militant versus killing a demonstrator. The general public, which regards the former as justified, condemns the latter. The zeitgeist of the resistance in Kashmir is hewing toward protests, not bombs. Policymakers in New Delhi and Islamabad need to capitalise on this shift in tactics to solve the Kashmir problem.

This shift in tactics in Kashmir is a pointed rebuke to the terror-mongers in Pakistan. It is time for them to stop brainwashing the youth of the land and sending them abroad on missions of hatred. Acts of terror present the biggest threat to the arc of progress in Pakistan. History has shown over and over again that confrontation with India is pointless. It is time to extend the hand of friendship towards those who reside east of the border. Indians are more like Pakistanis than any other nation.

It is time to unite to fight the common enemy, which is terrorists in the near term, and poverty, hunger, illiteracy and disease in the long term. It is time to stop being prisoners of the past. It is time to focus on the future.

faruqui@pacbell.net

Time for a paradigm shift

A CRISIS is almost always at the same time an opportunity. Pakistan is currently undergoing what many describe as an existential crisis rooted in national policies that go back decades.

The world sees the country as one that harbours terrorists. Most Pakistanis are indignant over the incessant drone strikes which kill innocent people.

The government, apart from being cash-strapped and mired in political controversies, seems to be between a rock and a hard place. If it sides with the world demand to cleanse our territory of extremists, the local population sees it as an incursion into our imagined sovereignty and security agencies frown upon such suggestions. If the government sides with the people and our security apparatus the rest of the world threatens to take action on its own. How do we get out of this morass, the result of decades of a policy based on specific rather than general interests?

There is no easy recipe as we struggle nationally to find a way through the darkness. But desperate situations require desperate measures, out-of-box solutions and an imagination free from years of bigotry. We may need a complete paradigmatic shift in our thinking and national priorities. The current crisis may be an opportunity in disguise for us to re-imagine our state, our nation and our national aspirations.

We may need to start rethinking some of the following shifts in our ideological paradigm: first, the shift from a national security state to an economic development focus; second, the shift from an exclusivist nationalism to an open one that accommodates diversity and difference; and third the shift from an over-centralised state to a viable federal structure involving greater provincial autonomy. This may seem like a tall order but there is no harm in at least beginning a debate on setting new priorities.

Pakistan may need to shift its policies from an overwhelming focus on security to an emphasis on economic development which should include social development and distributive justice. The inordinate emphasis on creating and imagining enemies on our borders, accompanied by excessive defence spending on borrowed money has led to the twin problems of a debt crisis and low development spending.

The greatest part of our national budget is consumed by these non-productive sectors leaving little for genuine economic development. As a result we failed to develop a strong productive base and focused on the services sector and consumption to develop our economy. Consumption without adequate production leads to trade deficits, high import bills and low national reserves. Low national reserves in turn produce their own problems in the form of the depreciation of national currency which in turn further raises import bills.

The vicious cycle never ends as we continue to live way beyond our means and end up in heavy debt, no savings and multiple economic crises. Economic crises in turn feed lawlessness, crime, terrorism, unemployment, general dismay and a diminishing faith in governance systems. People take refuge in arms, extremism, death, martyrdom and pleasure in the next world while renouncing the current one. We may need to reverse the policy of ensuring our imaginary security by creating non-state outfits to fight our low-intensity battles because such a policy has now blown up in our face for the chickens have come home to roost!

We need to realise that the transformed concept of security refers to people’s security rather than a state-centric view of ‘national security’. People’s security lies in economic wellbeing which can be ensured through fair trade policies and an emphasis on our agricultural and industrial sectors. When people begin to cherish economic and social securities there is less preoccupation with death, the hereafter, martyrdom and bloodshed.

Our nationalism seems also to have undergone a transformation. Prior to the 1965 war with India, Pakistan’s early nationalism was not so inward-looking, exclusivist and hate-oriented.

The Sharif Report on Education in 1959 envisioned an open and outward oriented nationalism when it said: “Narrow nationalism in the modern world is not enough; and if we gave the child only this, we would be doing him a disservice. Nations are a part of one another, and none stands alone. Pakistan is in a particular position of having cultural, historical and spiritual ties with the Middle East, Europe and North America. This rich heritage is itself a national asset and provides an ideal starting point for teaching international understanding and a realisation of our membership in a comity of nations.”

In 1961 Ayub Khan, despite being a military dictator, was able to perceive the dangers of irrationality that a thoughtless nationalism could engender when he said that “when nationalism, in its extreme form, takes charge, human reasoning gets second place”. However, after 1965 and especially after 1971, when Pakistan found itself torn asunder and shared religious belief was unable to defend its territorial integrity, a chauvinistic, exclusivist and jingoistic nationalism intensified. A rabidly anti-India and hate-filled nationalism subsequently became entrenched.

Pakistan may need to redefine, reformulate and re-imagine its nationhood by premising it on becoming economically powerful. Military power fetches temporary victories. It does not provide lasting solutions and rather exacerbates problems. Economic power, on the other hand, can be resilient, beneficial for the population and fetch more lasting rewards, China being a case in point. We need to refocus our attention on becoming a nation of producers, thinkers, intellectuals, artists, growers, scientists, engineers, builders, traders and industrialists instead of a nation of holy and unholy warriors, fighters, martyrs, killers, suicide bombers.

In the past our leaders tried to use insidious and jingoistic nationalism to unite diverse ethnic identities into the single identity of Pakistani. Our rulers tried to erase regionalism and parochialism as expressions of archaic formations. The attempted erasures incited the most ferocious backlash. Regional and ethnic nationalisms that arose to compete with the state’s version of nationalism assumed equally exclusive and pernicious forms and expressions. The state’s violence was matched with equal vehemence.

We may be able to emerge from this conundrum only by basing our nationalism on equal and fair development of all provinces, with each receiving a just share of resources. Maximum provincial autonomy, combined with the notion of just economic and social development, diminished centralisation allowing provinces to manage their own resources and receive fair royalties for water, gas, coal, etc. may serve to alleviate some of the genuine grievances of the smaller provinces.

We cannot afford to remain in denial for long as our very existence is being challenged. One way out of the quagmire may be a shift in the national paradigm from a security state to an economic development state, from an exclusivist nationalism to one based on economic justice, and the renunciation of centralisation to a recognition of provincial rights granted in our constitution.

Good fences, good neighbours

PAKISTAN is feeling the crush of occupation. To the east lies the Indian occupation of Kashmir, where the largest democracy in the world is unable to facilitate a UN plebiscite letting Kashmiris decide their fate; and to the west lies the rugged terrain where Nato forces fight the elusive Taliban.

Our borders are porous, undefined and therefore difficult to patrol and control. These cracks in security run deep, and they are being exploited, making innocent citizens in our cities insecure. Pakistan is caught between two conflicts, and the long-term solution lies in defining and gaining control over our borders.

For any occupying power, facing an organised and united resistance movement is the biggest threat to its hold on power. This is the case with the Indian occupation of Kashmir. The option of obliterating the resistance militarily is not acceptable in the eyes of the international community anymore. The other option is to stall for time, imposing varying levels of restrictions on the daily freedoms of the occupied.

With the passage of time, cracks begin to appear in the unity of the resistance, and restrictions take their toll on public support. Occupying powers carefully construct an illusion of dialogue with the various factions, employ obscurant tactics and reach an accord with none. The occupation continues — there is no immediate end in sight.

Borders are more than just lines. They delineate jurisdiction, establishing the writ of government over which it exercises necessary functions such as establishing the rule of law, and regulating the flow of people and commodities. It is the prerequisite for a sovereign nation to establish citizenship, and provide an identity for those that live within its demarcated territory.

A great deal of our troubles emanate from the lack of this established fact. Pakistan has disputed borders with India over Kashmir, and an officially unrecognised border with Afghanistan. Whether it is wheat being smuggled, water rights, or militants crossing unchecked, addressing the root causes of the problems always gets complicated by the absence of agreed upon borders.

Like a magician who masterfully fools his audience, our government stridently announces a flurry of activity aimed at diverting our attention. Undertaking confidence-building measures, signing memorandums of understanding, and declaring that economic boundaries supersede physical ones, are all assertions masking the underlying failure. The truth of the matter is that we lack the political strength to deal with the issue. The approach has been a series of disjointed attempts leading nowhere.

The borders with Afghanistan have not fared much better either. The grand assembly, Afghanistan’s version of a parliament, declared the Durand Line illegal in 1949, and threw the border in doubt. This served the Afghan Mujahideen well when they resisted the Soviet occupation, but now, the Karzai government pins all its woes on this reality.

President Musharraf unilaterally decided to fence the border. But how can we fence a border when the neighbour does not agree on where to draw the line? We have unofficial agreements with tribal elders regarding the role of our troops from the lawless zone between Afghanistan and Pakistan. This guarantees that the tribal, lawless zone will remain tribal and lawless. We have strayed so far off course that governments are tempted to redefine the original intent; to declare our current beleaguered position as the final destination and declare victory.

A closer examination of countries which have formed free-trade blocs will show that it is never done at the expense of geographic national integrity. The very same Britain which advocates European integration sent the Royal Navy to defend its claim on a tiny island off the coast of Argentina. Bahrain and Qatar, members of the Gulf Cooperation Council, referred their dispute to international courts to settle their border over Hawar Islands. Canada and the US are signatories of Nafta, but Canada is clearly staking its claim in the thawing waters of the Arctic.

Pakistan is a sliver of land which runs north and south, and it has not firmly established and secured the borders on the east and west flanks. It is no surprise that we have been dealing with concerns stemming from these regions. We must press our government to muster its political will, and recognise and address the issue of territorial integrity. There is no time like the present to draw international attention to this matter. Good fences make good neighbours.

khakwani@ymail.com