KARACHI, Dec 16: The NWFP government on Saturday braced itself for a long-drawn legal battle with the centre over the controversial Hasba bill as human rights activists said a prompt grant of injunctions by the apex court in its advisory jurisdiction set an unwelcome precedent.
The Supreme Court on Friday issued a stay following a petition from President Pervez Musharraf under Article 186 of the 1973 Constitution against the bill adopted by the NWFP assembly on Nov 13, 2006.
Under Article 186 of the Constitution, the president may obtain the opinion of the apex court on “any question of law” in its advisory jurisdiction.
NWFP Information Minister Asif Iqbal Daudzai told Dawn that the apex court’s interim order had been received. He added that the provincial government would initiate its legal preparations as soon as it received the full notification.
“Contrary to what Attorney-General Makhdoom Ali Khan said in the Supreme Court, the Hasba bill was named as a money bill because it envisages the establishment of a separate department under an ombudsman and allocation of funds for its operation. It was not done with a mala fide intention. In fact, it was treated as a money bill when the NWFP assembly passed it for the first time in July 2005,” he explained.
Legal experts point out that under Article 116 of the constitution, a provincial government can circumvent the need for obtaining the gubernatorial assent to a bill by treating it as a money bill.
Mr Daudzai conceded that the NWFP government had already earmarked funds for the ombudsman department and had been stopped in its tracks by the apex court’s surprise stay order.
Former Supreme Court judge Nasir Aslam Zahid said the federal government should have
allowed the NWFP governor to sign the Hasba bill into law. “The federal government could have then challenged the Hasba law in the Supreme Court invoking its original jurisdiction. “It could have actually challenged the competence of the NWFP assembly to do the kind of legislation it did. When a question of law is referred to the apex court in its advisory jurisdiction, the Supreme Court should just offer advice to the president.”
Mr Zahid stopped short of saying that the Supreme Court should have refrained from issuing an injunction when a matter was referred to it in its advisory jurisdiction.
I.A. Rehman of the Human Rights Commission of Pakistan said a prompt grant of an injunction by the Supreme Court against a provincial bill – even a bad one – set a precedent for provincial autonomy cases. He said human rights organisations would see red if the president referred to the Supreme Court a piece of legislation by the provincial assembly believed to be hostile to the federal government.
“But I also want to point out that Hasba bill – even the watered-down version – has been passed by the NWFP assembly with a mala fide intent. It establishes a parallel judicial system. In fact, it sets up an absolutely unnecessary department which will be run by appointing a large number of people. The entire piece of legislation has been conceived in mischief,” he said.
