PROPOSED NIZAM-E-ADL (SHARI'A) REGULATION 2009

C O N F I D E N T I A L SECTION 01 OF 02 PESHAWAR 000051

SIPDIS

E.O. 12958: DECL: 3/16/2019
TAGS: PTER MOPS PGOV PK
SUBJECT: PROPOSED NIZAM-E-ADL (SHARI'A) REGULATION 2009

REF: A) PESHAWAR 47 B) PESHAWAR 42 C) PESHAWAR 33 D) PESHAWAR 28 E) 08 PESHAWAR 410

CLASSIFIED BY: Lynne Tracy, Principal Officer, Peshawar,
Department of State.
REASON: 1.4 (a),(b),(d)
Summary
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1. (C) The proposed Nizam-e-Adl (literally, "system of justice"
but widely viewed as Shari'a) Regulation 2009 if signed by
President Zardari will replace two regulations in hopes of
providing speedy justice in accordance with Shari'a law. One of
the most visible changes will be the re-establishment of the
magistrate system for administrative and traffic law. A center
piece of the new system will be two appellate forums based in
the Malakand division, which will address the long standing
complaint from litigants that they must travel to Peshawar or
Islamabad to pursue their cases. Case adjudication have
shortened deadlines although Tehrik-i Nifaz-i Shariat-i
Mohammadi (TNSM) leader Sufi Mohammad has declared that cases
will be decided on the same day.


2. (C) While some of the amendments to the Shari'a Regulation,
such as expedited case adjudication sound good in theory, we are
skeptical of the ability of the Pakistani court system to meet
these new requirements in part because it presumes a level of
financial and personnel resources that are probably not
available. There is also a troubling lack of clear
understanding of the proposed new legal regime, particularly the
potential power to declare existing law as not in conformance
with Shari'a or even agreement on the meaning of Shari'a itself
at a moment when expectations have been raised. The deepest
damage with broader implications, however, is the appearance of
a weak government conceding to the demands of militants. End
Summary.

New Regulation Will Replace Two Existing Ordnances
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3. (C) The proposed Nizam-e-Adl (literally, "system of justice"
but widely viewed as Shari'a) Regulation 2009 if signed by
President Zadari will replace two regulations in hopes of
providing speedy justice in accordance with Shari'a law. (Note:
Post obtained a copy of the draft text forwarded to Zardari.)
It will repeal the Nizam-e-Adl regulation of 1999, the last
attempt at Shari'a law and the Code of Criminal Procedure
(Amendment) Ordinance 2001 (CCPO) which abolished the executive
magistrate of the judicicary.

Magistrates System Reinstated
--------------


4. (C) One of the most visible changes will be the
re-establishment of the magistrate system for administrative and
traffic law abolish by former President Musharraf in the CCPO
Amendment of 2001. The new regulation is designed to allow
faster action on most cases at a local level. Where the
additional magistrates or their support staff will come from has
not yet been determined.

New Appellate System Will Be Closer To Litigants
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5. (C) A center piece of the new system will be two appellate
forums; Dar-ul-Dar-ul Qaza, equivalent to the Supreme Court and
Dar-ul-Qaza, equivalent to the High Court. Both new courts will
be based in the Malakand division. This is designed to
eliminate the long standing complaint from litigants that they
must travel to Peshawar or Islamabad to pursue their cases.

Five categories of non-appellate courts are listed in the
regulation:

-- Court of Zilla Qazai (District Session Judge)

-- Court of Izafi Zilla Qazi (District additional Session Judge)

-- Court of Aa'al Illaq Qazi (Senior Civil Judge)

-- Court of Illaqa Qazi (Civil Judge)

-- Court of Executive Magistrate

PESHAWAR 00000051 002 OF 002



Speedy Justice?
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6. (C) The new system is designed to provide speedy justice
principally by limiting the number of cases and the length of
time that a court has to decide a case. Case will be limited to
150 for a district or session's judge and 200 for a civil judge.
Criminal courts will have a maximum of four months and civil
courts will be allowed six months to decide a case. Any judge
who fails to comply with the case limitations or meet the time
lines will be issued a "letter of displeasure" and three such
letters in one year would be reflected in the judge's annual
performance review. The previous system saw cases stretched out
for years, which was a point that local militants used to claim
they should be in power.

What Will Be The Practical Impact On Citizens?
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7. (C) According to a local lawyer familiar with the proposed
regulation five areas are of concern to members of the legal
profession and are based on potential new interpretations that
may differ from mainstream Pakistan legal practice.

-- Conservative interpretations based on Shari'a law might
weaken or eliminate some protections offered to women by
national family laws under Pakistan's constitution.

-- The "Hudood" ordinances which address crimes of adultery,
fornication, drugs, false accusations of immoral behavior and
property may be implemented differently based on the new
appellate court and Shari'a interpretation. Additionally, the
Women's Protection Act of 2006 not practiced in Swat since its
passage may be deemed to conflict with Shari'a and still not
implemented. This could result in harsher punishments.

-- Grandchildren will lose their right of inheritance in cases
where the father has preceded the grandfather in death.

-- As appeals will be with the newly created special benches
interpretations of laws could be different from the mainstream
of the Pakistan legal system.

-- As interest charged by banks will be considered un-Islamic,
banking and commercial law particularly of international
companies operating in the area may be affected.


8. (C) Concerns that the courts would be presided over by
clerics are groundless, say local officials, as the Qazis would
be dully appointed judicial officers currently practicing law
although with the addition of Quranic credentials. Local
lawyers, however, have noted that the draft has language that
calls for Qazis to have an "Islamic" appearance. Legal contacts
have asked who and how will that be determined, particularly in
the atmosphere of intimidation that has prevailed in Swat.

Comment
--------------


9. (C) While some of the amendments to the Shari'a Regulation,
such as expedited case adjudication sound good in theory, we are
skeptical of the ability of the Pakistani court system to meet
these new requirements. There is also a troubling lack of clear
understanding of the proposed new legal regime. Different
interpretations and punishments from mainstream Pakistani legal
practice as well as the lack of agreement on the meaning of
shari'a could create further gridlock in Swat's court system at
a moment when expectations have been raised. Some local lawyers
are also worried that language in the legislation could be
interpreted as giving Qazis (judges) the power to declare
constitutional-based laws as not in accordance with shari'a.
The deepest damage with broader implications, however, is the
appearance of a weak government conceding to the demands of
militants.
TRACY