Clutching at straws
Caravans of shocked, miserable people, hopelessness writ large on their helpless faces will not ply their way through the meandering roads and mountains paths carrying little else but their threadbare clothes and heavy hearts. As news spread that a peace accord was in place, the electronic media beamed out images of tormented people heaving a sigh of relief. It was as if a ray of hope had appeared in an unexpected minute crevice in the darkness of their lives ... yes, yes, they shouted into the television cameras, we want peace, we want the Sharia, now there will be peace, our children will go to school, our markets will open and flourish and we will go back to our homes and lives.
Parallel to the footage of an apparently elated people began the endless coverage of the so-called peace caravan of Sufi Mohammad winding up his ‘protest camp’ in Timergara and setting off towards Swat to plead with his son-in-law to declare peace in the valley in return for a third attempt in 15 years at promulgating the Sharia in the region. Riding in state-of-the-art vehicles accompanied by heavy contingents of armed guards and supporters, Sufi Mohammad arrived in Mingora to a hero’s welcome.
Forgotten were the 10,000 young men who, under his command, had marched to their deaths in Afghanistan in 2001; lost too was the wrath of the families of these young men and from which this ‘hero’ had to seek ‘protective custody’ from the government. Forgotten was the reality that at this very moment, a nizam-i-adl regulation is on the statute books and has been for many years. Forgotten is the fact that the constitution of Pakistan declares that no law that is against the Quran and Sunnah shall be made or implemented in the Islamic Republic of Pakistan. Forgotten, too, is that constitutional body called the Council of Islamic Ideology tasked with vetting every law for its ‘Islamic-ness’ and that except for the riba-related laws that were declared un-Islamic some years ago, it did not find much in the existing legal texts of the Islamic Republic of Pakistan that conflicted with the Sharia.
But what does this third-time nizam-i-adl mean for the people of this besieged valley, the province and indeed Pakistan and beyond. To begin with, it has raised a number of critical questions. As a student of law I would ask: who are ‘the parties’ to this ceasefire; is it the Government of the Islamic Republic of Pakistan through the provincial government and Sufi Mohammad? If so, why are federal government functionaries adamant in describing this as a peace accord between the provincial government and Sufi Mohammad?
Words alone will not distance the federal government from a deal with non-state actors on Pakistani territory. At the end of the day, the buck stops with the federal government. Hoping that these Pakhtuns in the back of beyond can take all the ‘blame’ will simply not work. We cannot have our cake and eat it; we either have an honest peace accord and give it our best or we don’t. Delaying tactics in signing the Nizam-i-Adl
Regulation 2009 will not absolve the federal government. It will only make matters worse. And finally, invoking Article 247 of the constitution to promulgate an ordinance means that the federal government has taken over lawmaking in the Malakand region and henceforth stands responsible for legislation enacted via this particular article.
Conversely, the provincial government, too, is trying to play it safe by pretending to be as absent from the scene as possible. To begin with, I wonder if its legal advisers thought of going down the route of provincial lawmaking rather than invoking Article 247 of the constitution. Is the provincial assembly unable to legislate for Malakand since the striking down of the Pata Regulation by the Supreme Court as unconstitutional and the extension of regular administrative structures? If so, then the nizam-i-adl of 2009 could be adopted by the legislature in no time and receive the assent of the NWFP governor. Representatives of the assembly would debate it and its proponents speak of it thus bringing these non-state shadowy actors into mainstream public life for all to see.
One does sympathise with the discomfort of the ANP-led government at being seen in the company of Sufi Mohammad who has emerged as a powerful non-state actor in ascendancy over the state and its institutions. Yet, could there not have been ground gained, albeit minimal, by depicting some sort of symbolic governmental and political presence when Swat was overtaken by Sufi Mohammad and his supporters?
Acts of symbolism do matter and it seems that our university-educated, liberal, democratic, elected representatives have not been able to apply the lessons of their political science books into practice whereas the other side clearly has. Why else would they kidnap a senior representative of the state, the DCO Swat along with his symbols of authority i.e. his various bodyguards and vehicles, to make a point as to who holds the reins of power in the valley?
One wonders too why precious days were lost in the days that followed the fragile peace accord. Non-state actors have a lot to lose if the writ of the state of Pakistan is re-established. They have killed, maimed, abused and destroyed homes and fields especially of people who were landowners and higher up in the societal hierarchy. Why would they disarm and lay themselves open to revenge. They have tasted power, wealth and authority. The state and elected representatives have and are pandering to their whims in a bid to gain time and space to think. Time is running out because each day that the government spends in strategising the safest way out of this imbroglio, is a day gained by the other side to consolidate their position.
While the various sides muddle their way through this tragic scenario of lost hope and humanity, the people of Swat live on the fringes of hope and despair. We clutch at straws, victims of deceit of higher powers for whom a little power is better than nothing leaving us to think: a little peace is better than nothing.
The writer is professor of law, University of Warwick, UK and professor of law, University of Oslo, Norway.firstname.lastname@example.org