Supreme Court Blocks Hasba Bill

Posted on December 15, 2006
Filed Under >Adil Najam, Law & Justice, Politics, Religion
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Adil Najam

In an expected but important decision, the Supreme Court of Pakistan blocked the Hasba Bill that had earlier been passed by a majority in the MMA-led NWFP Provincial Assembly. This comes at the heels of the passage of the Women’s Rights Bill and is likely to further increase tensions within the MMA religious parties coalition (on what course of action to take) as well as between the Federal government and MMA.

The Hasba Bill which has been widely criticized by liberals in Pakistan and abroad as trying to introduce ‘Taliban style’ religious policing in NWFP. The Bill had earlier been rejected by the Supreme Court and was amended by the NWFP legislator and passed while most members of the opposition were not in the House. At the time opposition MPA Nighat Yasmeen Aurakzai of PML had called it the “Maulvi’s martial lawâ€Â?; the All Parties Minorities Alliance (APMA) had also described the bill similarly.

According to an early report in The News (Pakistan):

Supreme Court of Pakistan, while issuing stay orders on a presidential reference against the Hasba Bill, has prohibited NWFP Governor from signing this Bill. Chief Justice of Pakistan, Justice Iftikhar Muhammad Chaudhry heading a larger Bench comprising of Justice Javed Iqbal, Justice Abdul Hameed Dogar, Justice Mian Shakirullah Jan and Justice Syed Saeed Ashad in the initial hearing of a presidential reference filed under Article 186 of the Constitution stayed the Hisba Bill-2006 from being enacted or being deemed to be enacted into an Act in the province.

Attorney General of Pakistan, Makhdoom Ali Khan during the hearing took the stand that the Hasba Bill was in contravention of the constitution and in negation of the guiding principles earlier provided by the Apex Court on presidential reference. He, therefore, prayed to the learned Court to prohibit NWFP Governor from signing this Bill into Act. The Supreme Court, thereon, issuing a stay order against the Hasba Bill ordered serving notices to the NWFP Governor, provincial assembly Speaker, Chief Secretary and Advocate General, while the further hearing of the case will take place in the third week of January.

This decision has now set the stage for an escalation in friction between the Federal and NWFP governments. The NWFP Chief Minister Akram Khan Durrani is reported to have said:

“We do respect the judiciary and the bill was prepared in accordance with previous judgment of the Apex Court that is why we have decided to adapt the legal course to substantiate our stand on the bill… We will go to Supreme Court again and are discussing the stay orders with legal experts to fight the case with full fledged preparation.”

The stated goal of the Hasba bill was:

The implementation of Islamic way of life revolves around Amer-Bil-Maroof and Nahi-Anil-Munkir [forbidding that what is not proper and practicing that what is good] and to achieve this objective it is necessary, apart from other steps, to establish an institution of accountability, which could keep a watch on securing legitimate rights of various classes of the society, including females, minorities and children and to protect them from emerging evils and injustices in the society…

The Bill was criticized for creating a sweeping and unaccountable parallel legal system:

It gives sweeping powers to the Mohatisb (Ombudsman), who would be appointed to ensure Islamic way of life in the province of NWFP and to do so, the Mohatisb has the power to command a Hasba or morality police to enforce Islamic values. The values that the Mohatasib has the power to enforce the morality police are listed generally in section 10 of the Act and more specifically in section 23. However, none of these powers are exhaustive and the Mohatsib has an indiscriminating power in order to ensure Islamic way of life in the province. The major problem with this indiscriminating power is deciding the definition of Islamic way of life… more worrying is the indiscriminating power of the Hasba police, which has more powers than the police force of the province. This would create parallel law enforcement and judicial system in the country as Hasba police is not accountable to anyone for its action.

14 Comments on “Supreme Court Blocks Hasba Bill”

  1. Formerly Yahya says:
    December 15th, 2006 4:54 pm

    The heading is probably misleading at this stage. The SC has blocked the bill for now but not rejected which I think will only happen after a hearing on the bill.

  2. December 15th, 2006 5:12 pm

    You are right. I have changed the ‘rejects’ to ‘blocks’ which is more accurate.

  3. king_faisal says:
    December 15th, 2006 5:53 pm

    actually the headline is a bit misleading. supreme court has put a stay order which means that the bill can still be declared constitutional after consideration.

    also for me there are two interesting aspects of this case. first is that in rejecting hasba bill v.1, supreme court explicitly recognised that state cannot coerce citizens in the matter of mazhub i.e. individuals have a right to liberty independent of religion. 1973 constitution is contradictory on this issue because while it recognises individual’s right to liberty, the constitution also says that all laws should conform to quran and sunnah. supreme court in its hasba bill v.1. judgement seems to be saying individual liberty overrides all else.

    the other interesting aspect of this case is mma’s reaction. by accepting supreme court’s decision mma has shown that:

    1. it recognises that a non-religious state institution is the ultimate arbiter of laws in pak.

    2. it recognises that a federal institution i.e. supreme court has supremacy over provincial institution.

    mma’s highly commendable reaction to defeat at the hands of supreme court shows why religious parties continue to enjoy popularity in pak while nationalist parties are being consigned to the dustbin of pakistani history. pakistanis can differentiate bewteen groups who work for the interest of pakistan vs. those fighting for personal gains. in contrast to mma, nationalist parties have taken up arms instead of going to courts. pakistanis recognise that nationalist are committing bughawuth and bughawatis as we know deserve no mercy.

    the consequences from hasba bill will have a very lasting influence on pakistani society although not in ways that mma intended. i think we all owe mma a debt of gratitude.

  4. falcon says:
    December 15th, 2006 6:56 pm

    The liberals and the foreigners may oppose it, but what does the average Pakistani think? We seem to have some social scientists on this site, do you have any information? Crazy laws are every where, the scary part is that much (?) of the country wants to go along.

  5. Kabir says:
    December 15th, 2006 11:17 pm

    @ King_faisal your comments are contradictory within & also reflect lack of understanding of the Pakistan masses and the core beliefs.

    Pakistan has only one founder, Jinnah. And his vision was a modern and moderate state with freedom of speech, religion and tolerance. The religion is in our hearts and a ‘state within a state’ type ideologies are evil and will never be allowed to challenge our founding father’s vision.

    It is concerning however the increase in the number of Islamic organizations Lashker-e-somthing or Jamat-e-something… who dont think twice before turning to violence, street protests and so on, while the educated segment keep sitting at home or office and watch with distress losing the country to them.

    The people of Pakistan dont want outside western involvement and we also dont want the inner extreme elements. We want a clean and moderate society that is the “True Pakistan” but we will have to fight for it. Fight not like US (who use military might to rape nations) or not like Islamic extremist who beat women for not wearing burka but fight with innovative solutions, education, strategic & rational influence on the grassroots levels. So get busy do your part… fight the false jihad with true jihad…

  6. Arsalan Ali says:
    December 16th, 2006 12:20 pm

    morality police !?! to hell with it !

  7. December 17th, 2006 5:53 am

    In 2002, i travelled accross North west Pakistan to work on a documentary film about the MMA. The Hasba bill was the talk of the town then…From tea shops to truck stands everyone had an opinion and quite surprisingly almost everyone i spoke to was against the bill…These were ordinary Pakistanis struggling to make ends meet, though they had voted for the MMA, they were dissapointed by their rule.
    At a tea stand outside of Peshawar, a group of young men told me that they had no desire to become a mini Afghanistan. They believed that the Taliban gave Islam a bad name…One young man went as far as to say, “we are all muslims here and we know how to follow islam. We are conservative Pushtoons but we dont have to become fundamentalists. We enjoy our music and our cinema and we dont want them to take that away from us.”

  8. MQ says:
    December 17th, 2006 6:57 am

    I agree with Sharmeen. I have similar observations. A couple of years ago, when the MMA in NWFP had gone on a rampage burning billboards, threatening to shut down cinema houses and banning cable TV, I happened to be visiting Mansehra, a very conservative part of NWFP. Every person that I talked to was against the MMA’s campaign. I distinctly remember one woman who said angrily: “we had voted for MMA thinking that they would provide us justice, not for them to take away our TVs”

  9. December 18th, 2006 12:38 am

    MPA Nighat Yasmeen Aurakzai of PML had called it the “Maulvi’s martial lawâ€

  10. Greywolf says:
    December 19th, 2006 1:04 am

    It would be better if people did not use the terms “left wing” and “right wing” lightly.

    The grand old Maulana Bhashani was an extremely religious man but totally left in his political orientation. Ayub Khan and Musharraf were/are more or less non-reigious leaders who cannot be called left wing. The ruling party, PML, is a centre right party and PPP is a centre left party.

    Not all secularists are leftists and not all leftists are secularists… if we must use terms emanating from European history, we should use them properly instead of ignorantly defaecating at will.

  11. Greywolf says:
    December 19th, 2006 1:07 am

    The History of “religious groups” is very well known. Hardly anyone will accuse them of harboring any patriotism or concern for Pakistan’s national interest, given their historical antipathy to the very idea of the nation state.

  12. TURAB says:
    December 19th, 2006 1:48 am

    Hasba bill’s being labelled in this article as a political gimmick and nothing else

  13. Ahsan says:
    December 19th, 2006 10:47 am

    The first version of Hasba Bill was already passed last year (July 14, 2005), by the law making authority (NWFP Provincial Assemply)with 68 votes in favour and 34 against. Many objections were raised against this Bill such as:

    (1) It is repugnant to the basic human rights

    (2) With the exception of a couple of the clauses of Hasba Bill, all other clauses are already covered by the existing laws.

    (3) It is unislamic and unconstitutional.

    It will be worthwhile to read this Bill.

    In spite of some trust-worthy observations of some writers that the public opinion is against this bill, there had never been any mass protest of Pathans or Pakistanis against this Bill. There had been some timid protests in Karachi and Sindh by some leaders of Muttahida Qaumi Movement (MQM) last year.

    The validity or invalidity of any law depends whether it is constitutional or not. On the basis of the 1973 Pakistani Constitution the 2005 Hasba Bill was challenged before the Supreme Court (SC). The SC judges have done exactly what they had to do. They have sanctioned only those clauses which were out of the Constitution without declaring the Hasba Bill (in its totality) unconstitutional.

    Now the situation is, that the obstacles and vires found in the Hasba Bill by the SC have been removed and the reformed Bill has been revoted by the Provincial Assembly (NWFP). The SC judges may find some further fault with it but they can not declare it unconstitutional which they refrained to do last year.

    The 1973 constitution starts with the preamble :

    Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;

    Under this constitution any law has to be in the limit as defined in the Holy Book. It is implicit that all Pakistani Laws will be Islamic. Any law declared unconstitutional will become automatically unislamic as well!


  14. November 7th, 2007 10:05 am

    [...] The Supreme Court ruled against him from time to time but on major issues

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