Opening his case on the Presidential Reference on Hasba Bill enacted by the NWFP legislature, Attorney General Makhdooom Ali Khan told a special bench of the Supreme Court that the proposed law clashed with various provisions of the Constitution was also vague and would cause sectarian problems.
He said that the proposed bill that still awaited the assent of the Governor to become a law overrode similar provisions that already existed in various acts and was also not reflective of the Shariat edicts and instructions.
The Attorney General was still arguing his case when the nine-member Bench headed by Chief Justice Iftikhar Muhammad Chaudhary rose for the day with the latter expressing the hope that the Attorney General would complete his formulations on Tuesday.
The other members of the Bench are: Justice Javed Iqbal, Justice Abdul Hameed Dogar, Justice Sardar Muhammad Raza Khan, Justice Muhammad Nawaz Abbasi, Justice Faqir Muhammad Khokhar, Justice Shakirullah Jan, Justice M Javed Buttar and Justice Saiyed Saeed Ashhed.
Present in the Court under notice were Khalid Anwer, Counsel for the NWFP Government, Dr Farooq Hassan and Rai Muhammad Nawaz Kharal for the NWFP Assembly and four Advocates-General or their juniors from the Provinces: Salahuddin Mengal (Balochistan), Qazi Khalid Ali (Sindh), Younus Tanoli (NWFP) and Aftab Iqbal (Punjab).
Before the Court rose for the day, Khalid Anwer approached the Bench to say that he had wanted to intervene during Attorney General's address to submit that the Reference was irrelevant and not maintainable but preferred to wait for his turn at the rostrum. However, he just wanted to explain briefly that the Attorney General had no further arguments in support of the Presidential Reference than those that he had already exhausted.
But before the Counsel could proceed further, Justice Sardar Muhammad Raza Khan interrupted him saying that Khalid Anwer should save his formulations when he comes to defend the Bill.
Earlier in the day, Engineer Jameel Ahmad Malik, Central Spokesman of the Communist Party of Pakistan filed a request for permission to join the issue against the Bill. His main thrust behind the desire was that the law would affect the lives of the citizens residing in the NWFP and also those who supported his party.
During his submissions, almost all the judges on the bench evinced a keen interest in the issue asking questions from the Attorney General.
Observing that the Hasba Bill provided a penal code for certain obligations of the Muslims that had not existed during the life of the Holy Prophet (PBUH) or the four Caliphs that followed him. This was for the first time, during the reign of Abbaside Caliph, Haroon-ur-Rasheed that punishments were enforced for those who did not mould their lives according to the Shariah.
He wanted to know from the Attorney General how far the Hasba law conformed to that Code and also if the NWFP legislature was competent under the Constitution to enact such a law.
Justice Sardar Muhammad Raza Khan also asked the Attorney General to point out if the law was in violation of any Articles of the Constitution as had been stated in the Presidential Reference.
The Attorney General said that the Bill provided for appointment of Mohtasibs and his assistants at District and Tehsil levels and thus "overrode the job of the Federal and Provincial Ombudsmen. The bill was an encroachment on their powers.'
In addition, the Bill also provided for appointment of a separate Police body to enforce the task of enforcing the Shariah for which there were already a number of legislative measures available to the government machinery.
For example, Makhdooom Ali Khan said, that Bill provided a check on the misuse of loudspeakers and control of dowry and entertainment expenses on the marriages for which separate Acts of the previous legislatures were available for action.
"The Bill provided powers to the NWFP government to restrict the freedom of media and regulate it in the name of Shariah. This was in contravention of the freedoms enshrined in the Constitution and struck at the fundamental rights."
There were provisions that excluded appeals against the decisions of the Mohtasibs or even grant a stay order against a "matter under his consideration" and also provided immunity to such officials or persons working under him, he said.
Such provisions, the Attorney General argued, gave unrestrained authority to the officials that will be installed under the Bill and thus infringe on the freedom of citizens and their rights.
As for as the scope of operation of the Mohtasibs was concerned, Makhdoom Ali Khan said that Section 23 of the Bill provided some special powers to Mohtasibs that were not specific, thus vague and could be bent to suit the users.
For example, Makhdooom Ali Khan said, the first sub-section of Section 23 required the Mohtasibs to "monitor adherence of moral values of Islam at public places" but did not elaborate those values. It spoke of "dereliction in performance and proper arrangement of Eid festivals or Friday prayers."
The Mohtasibs will also enjoy powers to monitor adherence of Islamic values in respect of timings for Iftar and Taraveeh as different sects practiced those according to their own beliefs. This would create internal tensions and sectarian conflicts.
Chief Justice Iftikhar Muhammad Chaudhary said that unless all the sects agreed upon an issue, it would be difficult to determine as to who was against it or for it.
Continuing, the Attorney General said the Mohtasibs were also required to protect mosques and government property; monitor prices, weights and measures and eliminate impurity and also "bribery from the government departments." These functions, he said, were already covered by different laws.
Makhdoom Ali Khan will continue his arguments on Tuesday.
Besides leaders of various Muslim sects, the hearing was attended by representatives from human rights organisations, NGOs working for the emancipation of women and some foreign missions.
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