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ISLAMABAD, Feb 20: The Supreme Court on Tuesday upheld most parts of the Hasba bill adopted by the NWFP Assembly, but said a few clauses needed to be modified as they were violative of the Constitution.
A Supreme Court bench, headed by Chief Justice Iftikhar Muhammad Chaudhry, sought modification in two clauses of the bill that gave definitions of `Mohtasib’ and `religious scholar’.
The court also observed that the clause pertaining to the `contempt of Mohtasib’ shall not be applicable to the clause that invests the Mohtasib with special powers to monitor adherence to Islam’s moral code at public places, discourage un-Islamic and inhumane customs, eliminate bribery from government offices, discourage employment of minor children and stop misuse of loudspeakers.
Originally, a nine-member bench had been constituted to hear the presidential reference, but one of the judges, Javed Buttar, was unable to sit on
the bench because of a heart attack.
The short order passed by the Supreme Court reads: "For reasons to be recorded later, in our unanimous view, opinion expressed in reference No 2 of 2005 (Hasba Bill 2005) has been complied with except the provisions of Section 2 (1) and Section 3 (2) of the Hasba Bill, which appears to have escaped the notice of the provincial legislature, which now may be given due consideration. We are further of the opinion that any violation of the provisions of Section 23 of the Hasba Bill, 2006, shall not be subject to Section 14 hereof.”
The order did not specify whether the governor was constitutionally bound to sign the Hasba bill by treating it as a money bill -- a claim made by the MMA. The Hasba bill provides that a Mohtasib shall be a qualified religious scholar who is eligible for appointment as judge of the Federal Shariat Court. The bill defines a religious scholar (Aalim) as a person having graduated from any institution run by the Wafaqul Madaris.
Khalid Anwer, a former federal law minister who represented the NWFP government, said the main reason for the centre’s disapproval of the bill was that the word `Islam’ occurs repeatedly in it. He termed vague the objections made in the presidential reference, arguing that if the Hasba bill were declared null and void, it would set a `wrong precedent’.
Khalid Anwer said the High Court, and not the Supreme Court, was competent to hear the presidential reference. “The reference is in negation of the principles of a federation.”
He contended that the legislation was to all intents and purposes a money bill as setting up of a new institution required funds. He accused the federal government of enacting a number of laws in the name of money bills that had nothing to do with finances.
The Supreme Court had, through a stay order in December on a presidential reference, restrained the NWFP government from enacting the bill.
Attorney General Makhdoom Ali Khan argued that the Hasba Bill was unconstitutional for the same reasons as those given by the Supreme Court in its verdict in 2005.
That verdict had declared the bill to be `vague, overboard, unreasonable, based on excessive delegation of jurisdiction, denying the right of access to justice to the citizens and attempting to set up a parallel judicial system’.
The Attorney General argued that the bill sought to create a parallel judicial system in violation of Article 175 of the Constitution.
He also noted that the legislation still contained provisions defined in `unacceptably vague terms’ in violation of the earlier opinion of the Supreme Court.
DETAILS OF REFERENCE: The president had referred the following questions of law to the Supreme Court:
1. Whether the Hasba Bill of 2006 and all of its provisions are in consonance with the Hasba judgment?
2. Whether the bill or any of its provisions, would be ultra vires the constitution, if enacted?
3. Whether the bill is ultra vires of the Constitution as it proposed to `de-legislate a provision of law’ having constitutional protection?
4. Whether the bill or any of its provisions, would, if enacted, be violative of fundamental rights.
5. Whether the proposed law would be violative of Articles 2A, 4 and 27 of the constitution?
6. Whether the enactment of the bill would encroach on any occupation, violate the constitution by creating a parallel judicial system, undermine judicial independence and deny citizen their right of access to justice?
7. Whether the enactment of the Hasba bill would violate the principle of separation of powers enshrined in the constitution?
8. Whether the Hasba Bill, and in particular Section 23 read with Sections 10, 12, and 14 therefore, is unconstitutionally overboard and vague and suffers from excessive delegation?
9. Whether the enactment of the bill would result in an unconstitutional abdication of legislative power?
10. Whether the provision restricting the appointment of Mohtasibs to `aalims’ are arbitrary and not justifiable in light of Article 25 of the Constitution?
11. If the answer to any one or all of the above questions is in the affirmative, whether the NWFP governor is bound to sign into law the Hasba Bill passed by the NWFP Assembly?
