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⠢‚¬â„¢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 responses to “Supreme Court Blocks Hasba Bill”

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

  2. Ahsan says:

    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!


  3. TURAB says:

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

  4. Greywolf says:

    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.

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