Page last updated at 06:08 GMT, Tuesday, 24 March 2009

Swat Taleban find Sharia a challenge

Courtroom in Mingora
Petitioners have been flooding the court of Maulana Ehsan-ur-Rahman (far left)

By Syed Shoaib Hasan
BBC News, Mingora, Swat

"I am not going to change the decision as it is valid according to Sharia," says Maulana Ehsan-ur-Rahman softly but adamantly.

Maulana Rahman is a qazi, or judge, in one of the newly appointed Islamic Sharia courts in Pakistan's troubled district of Swat.

He is addressing about a dozen people standing in front of the bench in the circuit courthouse of Mingora, Swat's main town.

They are led by a tall, fierce-looking man who adamantly demands an explanation for the court's decision.

He is a commander in the Swat Taleban who fought Pakistan's army to a recent standstill.

The Taleban had demanded the implementation of Islamic Sharia law here.

The government acceded and these courts are the first step in that direction.

The members of the Taleban present refused to accept the verdict and said they would take up the matter with senior Taleban commanders
Court eyewitness

The move led to an outcry across Pakistan and in the international community.

Human rights activists are horrified at the possibility of punishments such as the amputation of limbs, whipping and stoning to death being implemented.

Moreover, legal experts are worried over the challenges posed by setting up a parallel legal system.

But the common people in Swat have welcomed the establishment of the courts and have thronged to them.

"We believe we will get quick and impartial justice from the Sharia courts," says Umar Hayat, a local man waiting to file his petition.

"In the past, cases used to drag on for years, but now they are settled in days. More importantly, everybody is equal in front of the law."

Farmer's win

The "Taleban case" before the court vividly illustrates this.

It pertains to the creation of a dirt track through the fields of a local farmer at the behest of the Taleban.

Maulana Ehsan-ur-Rahman
Maulana Rahman says he has heard 100 cases since 18 February

The farmer filed a case in the Sharia courts and the matter was adjudicated by Maulana Rahman.

The ruling was in the farmer's favour.

"But the members of the Taleban present refused to accept the verdict and said they would take up the matter with senior Taleban commanders," an eyewitness says.

"They also twisted the judge's words and brought in the commander after telling him that Maulana Rahman had said that he did not care if Maulana Fazlullah himself had demanded a repeal."

Maulana Fazlullah is head of the Taleban in the Swat region. His power is said to be absolute.

The clearly incensed Taleban commander demanded an explanation from Maulana Rahman.

The qazi made it clear he had not made any such comments.

But he also reiterated the fact that the ruling was final.

The Nizam-e-Adl (Order of Justice) ordinance implements Sharia in Swat retrospectively from 15 March
Cases are decided according to the sect of the person(s) filing
There are two major sects: Sunni (80%) and Shia (20%) but they divide into many subsects
The Taleban follow the Wahhabist/Deoband Sunni subsects and want their own form of Sharia
Most Pakistanis follow the Barelvi Sunni subsect
For several minutes, the Taleban commander and his henchmen continued to argue.

But Maulana Rahman refused to budge, and fellow qazis waded into the argument in his support.

Finally, they managed to convince the Taleban after quoting examples supporting the decision from the Koran.

They also said they would personally come and investigate the matter if the ruling was not followed.

At this, the Taleban agreed to the decision and beat a hasty retreat.

"This a system that works for us," says Qari Fazal Maula, a petitioner at the court.

He had just received a ruling in his favour over a dispute involving the ownership of his rickshaw taxi.

"I couldn't get a decision despite having filed two years ago in a local court," he says.

"It was a waste of money with all the lawyers' fees and other costs. Here I had to spend 20 rupees (25 US cents) on a piece of official stamp paper."

Tribal areas map
Most of the other petitioners at the crowded court voiced similar sentiments.

But there are dissenting voices.

"The courts are not admitting our cases," says Farooq Ahmed.

He is waiting to file a petition regarding a property dispute dating back 40 years.

"Cases that were filed before the implementation of the original Sharia draft in 1999 will not be accepted," a judge explains.

"This had to be done otherwise there would be a huge backlog of cases and this would again start the delay in justice."

According to Maulana Rahman, he has so far heard 100 cases since the courts were started on 18 February.

"I have given a decision in 20 of the cases," he says. "The decisions are on the basis of Sharia and consensus."

There is already a minor backlog because of the available number of judges - just seven for the entire district.


The newly implemented Sharia system for the Malakand division is three-tiered.

There is the Ilaqa (local area) court, which comes under the zila (district) court, all of which are presided over by the Darul Darul qaza court for the entire division. This acts as the supreme court.

The region needs at least 20 judges to make the system workable and efficient.

 Farooq Ahmed
Not everyone is happy. Farooq Ahmed's case is too old
But that is just a problem of resources which can be addressed quite quickly if need be.

The real issue remains the validity of the implementation of Sharia law itself.

A declaration was made for it to take effect from 15 March but the actual ordinance has still to be signed.

"When the ordinance is signed by the president, the relevant code will have retrospective effect," insists a local TNSM leader.

The TNSM organisation, led by former militant leader Sufi Mohammad, brokered the peace agreement between the Taleban and the government.

But that peace may not hold.

Under previous Sharia regulations, courts came to their decisions by taking both the law and consensus into account.

Most analysts believe this is unlikely to change and that it may lead to trouble from the Taleban.

"The Taleban have always said they want the implementation of their version of Sharia law here," explains a local legal expert.

But the Nizam-e-Adl, or Order of Justice, for Swat talks of interpreting Sharia according to the demands of the relevant sects involved.

"This is a sure recipe for disaster," the legal expert says.

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