ON the evening of Thursday July 14, one month ago today, the provincial government in Peshawar passed what it termed the Hasba Bill with a majority of 68 to 34. The president, General Pervez Musharraf, and his team, being fully conversant with the contents of the bill, much of which was deemed to be manifestly unconstitutional, were ready.

The president had before him five options of dealing with this contentious and highly dangerous bill. In the case of four of these options, it would mean allowing the governor to sign the bill, allow it to become an act, and allow the gentlemen of the Frontier to immediately apply its provisions, and only then strike. The fifth option, a presidential reference to the Supreme Court to be heard before the bill could be signed into an act, was the most correct, the safest, and by far the most efficacious.

The president took it unhesitatingly. Had any other option been chosen allowing the bill to become an act, the gentlemen of the MMA and their mohtasib would have sprung into action, and, further an incalculable harm would have been done to Pakistan’s already tarnished international image — and, importantly, the constitutionally guaranteed fundamental rights of the citizens of the Frontier Province would have been affected.

By the morning of Friday, July 15, his attorney-general, my good friend Makhdoom Ali Khan (who has shed a good deal of weight in the service of his client!), was before the Chief Justice of the Supreme Court, Iftikhar Muhammad Chaudhry, then in Karachi, with the presidential reference consisting of seven questions seeking the Supreme Court’s advice as to the constitutionality of the bill and whether the governor of the NWFP was obliged to sign it into law.

The chief justice, immediately constituted a bench of five, heard the preliminary arguments of the attorney-general, and within an hour issued notices to the NWFP government and the advocates-general of the four provinces asking them to be ready on July 25, before the Supreme Court in Islamabad, where the reference would be heard.

Within twelve hours, the president and the chief justice had firmly put their feet down, there was no pussyfooting, no hesitation, no qualms as to a ‘reaction’. For both, there could be no question of a clash with the Constitution. Islam could not be allowed to be used and manipulated by these men of obscurantist beliefs seeking shelter under a religious name-tag for their expedient purposes.

On the 25th, the chief justice had constituted bench of nine honourable judges of the Supreme Court to hear the reference - a most unusual move as a bench of five was the norm in such cases. Counsel for the Muttahida Majlis-i-Amal, Khalid Anwer, another old friend and family lawyer, asked the court for an adjournment of two weeks. He was given one week and the provincial government was asked to give an undertaking that during the pendency of he hearing the governor would not be asked to sign the bill.

So, the court met again on August 1 and on August 4 handed down its short order declaring one section of the bill to be totally ultra vires of the Constitution and five other sections to be partially ultra vires (there are 31 sections in the bill).

In its entirety the bill is certainly ambitious in its efforts to enforce what the gentlemen of the MMA take to be Islamic values and tenets. They have tired to outdo the Taliban in the vice and virtue department, and apparently many of the sections have purposefully been vaguely drafted so as to avoid spelling out how exactly they will be enforced and in what manner.

The mohtasib, the guardian of the religious and moral values of the people, was given unfettered powers which he could use at his will, arbitrarily and indiscriminately. He was empowered to demarcate his own boundaries, to draw or not to draw lines according to his whims - no colours were nailed to the mast, nothing was fully spelt out. Any citizen of the NWFP whom the mohtasib did not fancy could be sentenced to six months in jail and fined Rs. 2,000 for merely failing to turn up for prayers one morning because he had a runny tummy.

One incident that took place during the debate on the bill in the assembly is illustrative. A woman MPA raised objections as to the powers of the mohtasib to decide what she should or should not wear. She was shouted down - and told by one honourable member not to further waste her breath as they, the government, would see to it that she was firmly swathed in a burqa.

What the MMA and such others now intend to do is not clear (but not difficult to anticipate), as they have made conflicting statements. Nor will we be clear in our minds as to the thinking of the Supreme Court until the detailed judgment in handed down - hopefully before the end of this month.

However, one thing is clear - that the president would have been failing in his duties to the nation had he not done, under the circumstances, exactly as he did. No retreat was sounded in the face of advancing obscurantism.

This is the first time in six years that Musharraf has acted with immediate intent and genuinely in the national interest (no facetiousness this time). He did what had to be done without being swayed against his naturally will by the sycophantic ‘advisers’ by whom he allows himself to the surrounded day and night. He boldly called obscurantism into question on constitutional grounds.

In this a new Musharraf? Do we now have a president who will put his foot firmly down when it comes to matters such as madressah registration, the expulsion of foreign students who come here to be tutored in the art of jihad, the iniquitous blasphemy laws which blacken the statute books, the Zia inflicted Hudood Laws, and all such issues which go directly against his call for enlightenment and moderation?

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry has opened up on a perfect note. He is to be congratulated on his leadership, as to carry unanimously a bench of nine, when dealing with a matter of such a nature, is no mean feat. We must be grateful also that we now, apparently and so far, have a tough chief justice who knows his spades and shovels. This nation’s judiciary has for too long been deprived of judges of the apex court truly worthy of their style and office.

E-mail: arfc@cyber.net.pk