Hisba Bill Challenged in Pakistani Apex Court

By Umer Farooq, IOL Correspondent

ISLAMABAD, August 1, 2005 (IslamOnline.net) - The Supreme Court of Pakistan Monday, August 1, resumed its hearing sessions to deliberate on a presidential reference against Hisba bill recently passed by the provincial legislature of the North-West Frontier Province (NWFP).

The Presidential reference asked the nine-member-bench apex court to rule on the mandate of provincial assemblies to pass such a law which the federal government says impinges on the "fundamental rights of the people as provided in the Constitution".

The NWFP Provincial Assembly, dominated by the religious-political alliance -- Mutahida Majilsa Alam (MMA) -- passed the controversial law last month with 68 votes in favor and 34 against.

Under the proposed bill, a watchdog-like-institution will monitor the observance of Islamic values in public places in NWFP.

But the Pakistani federal government charges the bill – if passed into law -- will impinge on the fundamental rights of the people of the province and will project bad image of the country worldwide.

The federal government was joined by political opposition parties in attempts to block the legislation from being implemented.

Parallel Judiciary

Under the proposed bill, the principal duty of the institution of Mohtasib will be to ensure that people respect the call to prayers, pray on time and don’t engage in commerce during Friday prayers times.

The Mobtasib will also have power to stop unrelated men and women from appearing in public places together and to discourage singing and dancing. He will also have the power to monitor the media.

Attorney General of the federal government, Makhdoom Ali Khan argued before the court that the Hisba Bill was an attempt to create a parallel judicial system. He further charged the bill would lead to gross violations of human rights.

“(The) Supreme Court in number of its judgments have maintained that no law could be enacted which impinges in human rights and which wants to create a parallel judicial system in the country” Khan said.

The counsel representing NWFP government, Khalid Anwar, on the other hand argued that the Hisba bill is not yet a law as the governor’s signature is required before it could be made into a law.

“It is still on the stage of a bill, how somebody can challenge a bill?” Khalid Anwar raised the technical point.

Unconstitutional

The presidential reference seeking the opinion of Supreme Court on the legality of the bill was submitted before the court last week.

The presidential reference raises the question as to whether the Hasba Bill or any of its provisions would be constitutionally invalid if enacted and whether they will violate the fundamental rights guaranteed in part II of chapter 1 of the Pakistani Constitution.

Supreme Court’s advisory jurisdiction under Article 186 of the Constitution gives the power to the apex court to give legal opinion on a question of legal and constitutional validity.

However, under this jurisdiction the opinion of the court is not binding on any of the party to the legal conflict.

Suspension

The government has, meanwhile, filed an application for staying the proceedings of the provincial assemblies with regard to Hisba Bill.

The court observed that the application regarding stay order filed by the Attorney-General Monday morning would be considered pending before the court and be taken up during the hearing of the reference if required.

Emphasizing the urgency of the matter, the Attorney-General requested the court to hear the case on day-to-day basis from Monday.

The Supreme Court hearing has started at a time when (Pakistani President Pervez) Musharraf's government has launched renewed efforts to curb extremism in the society.

Musharraf in his last speech set December as deadline to end all types of extremism in the society.

The government is also planning a crackdown on Madrasahs responsible for spreading extremism and imparting military training to their students.

The court will continue the hearing of the presidential reference throughout the week and may deliver a judgment by the weekend.