"…the legal mess the government is in"

--Khalid Mahmood, Advocate, Lahore High Court, and an activist in the lawyers' movement

By Saeed Ur Rehman

The News on Sunday: As a lawyer who believes in due process, what is your view of the Nizam e Adl Regulation 2009?

Khalid Mahmood: The first question that comes to my mind is the legal mess the government is in for signing this Regulation. TNSM (Tehreek-e-Nafaz-e-Shariat-e-Mohammadi) is a banned organisation and it is impossible to sign a binding legal deal with a banned outfit.

TNS: What are the implications of the Taliban declaring the Common Law un-Islamic?

KM: There are many Islamic practices which are recognised in Common Law which has its origin in the British legal system. For example, the Muslim Family Law Ordinance of 1961, which was promulgated by Ayub Khan, allowed for the nikah nama to become a bona fide civil document. There are many other instances where Islamic practices are now part of the Common Law as it is practiced in Pakistan. If the Taliban declare the Common Law un-Islamic, they will have to come up with Islamic alternatives of nikah nama and marriage registration.

TNS: So, what is the appeal of this Regulation? People are saying it will provide speedy justice. Do you think this is a valid argument?

KM: Speed in itself is not such a positive thing. You may have heard of the proverb 'Justice delayed is justice denied'; but there is another side to this: justice hurried is justice buried. In the NAR, speed is the core issue. All civil cases have to be dealt with in 6 months' time and criminal cases within 4 months. What if a defendant is in another city or country? What will they do in the messy situations? Dismiss the cases which cannot be decided in 6 months?

TNS: What about the issue of not having any higher courts to turn to?

KM: Lower courts get guidance from higher courts and preceding decisions or precedents. This Regulation does not provide any guidance about where to seek guidance from? Maybe they will have to turn to the courts of Saudi Arabia for precedents but it is not written in the Regulation.

TNS: What do you think about the Qazis who have to be of good character and conduct? Don't you think this requirement will become a burden on the system itself?

KM: The Regulation uses vague language and does not define "good character" or "conduct". So they will have to arbitrarily decide in every situation whether a Qazi is suitable or not.

TNS: You have been involved in the lawyers' movement for the restoration of the Chief Justice. Do you think the lengthy court procedures of Common courts and lawyers may be making the 'Talibanised' system of justice more attractive for the people of the region?

KM: Lawyers symbolise debate and representation. There has to be someone who can represent the defendant and who knows the language of the judicial system. The absence of lawyers is often a sign of totalitarian regimes. Look at Saudi Arabia, for example. The police can decide the case after looking at the evidence and that's the end of discussion. That is not justice. And how can you have justice without an appellate forum? There has to be a system of redress when the law injures.

TNS: So what should the government do?

KM: The government should try to make the present system more appealing to the masses. Let's suppose someone from Swat goes to Mardan and finds the legal system there more humane and prompt; he is more likely to turn to the system where both parties get a chance to argue their point of view.

Another option can be that the government should let the Nizam e Adl go ahead and watch and see if it makes the people of Swat are happy. If people are disgruntled, the Taliban will have to come up with something more acceptable to the people.

Published on April 26, 2009

Source: http://jang.com.pk/thenews/apr2009-weekly/nos-26-04-2009/spr.htm