SC stops NWFP governor from signing Hasba Bill
ISLAMABAD: The Supreme Court (SC) on Friday issued a stay on a presidential reference filed by President General Pervez Musharraf against the Hasba Bill adopted by the NWFP Assembly on November 13, and directed the NWFP governor not to sign the bill. A SC bench consisting of Chief Justice Iftikhar Muhammad Chaudhry and justices Javed Iqbal, Abdul Hameed Dogar, Mian Shakirullah Jan and Saiyed Saeed Ashhad sent notices to the provincial governor, the speaker, the advocate general and the chief secretary to appear in court in the third week of January for a regular hearing of the presidential reference challenging the bill.
Presenting preliminary arguments before the SC bench, Attorney General of Pakistan Makhdoom Ali Khan said that the Hasba Bill violated certain provisions of the Constitution and was in conflict with an earlier SC decision. He said that the SC had declared several sections of the Hasba Bill contrary to the Constitution when the bill was first challenged by a presidential reference in 2005. He added that the fresh Hasba Bill contained the same sections that had been opposed by the SC.
NWFP Information Minister Asif Iqbal Daudzai said the provincial government would defend the Hasba Bill after it receives the SC’s judgment. He said that the NWFP government respected the SC’s decision, but it would discuss the judgment with legal experts to prepare its case in support of the bill. “The provincial government has amended some sections and clauses of the Hasba Bill after the SC declared them ultra vires to the 1973 Constitution,” he said, adding that the government would examine the reasons why the SC had asked the governor not to approve the bill. Agencies add: Daudzai, however, said the SC decision showed that the government was undemocratic.
“The federal government’s decision to go to the court exposes their claims that they believe in democracy,” Daudzai said. “Now we can go to the people and expose those who are blocking implementation of Islamic laws. We’ll ask the people to decide who wants an Islamic system and who doesn’t,” he added. The NWFP Assembly first passed the Hasba Bill on July 14, 2005. The bill envisaged a strict Islamic code and an office of the mohtasib with special powers to implement Islamic laws in the province with the help of a special implementation force. But on a presidential reference, a nine-member SC bench stopped the governor from signing the bill and declared its certain sections in violation of the Constitution.
Consequently, the NWFP Assembly passed a new Hasba bill on November 13, 2006. President Musharraf again invoked the advisory jurisdiction of the SC and filed a reference on which an interim order was issued on Friday. 11 queries in presidential reference against Hasba ISLAMABAD: The president of Pakistan has raised 11 questions of the law in a presidential reference moved in the Supreme Court under Article 186 of the Constitution against the Hasba Bill 2006 passed by the NWFP Assembly on November 13. The questions are:
(1) Whether the Hasba Bill 2006 and all of its provisions are in consonance with the Hasba judgement?
(II) Whether the Hasba Bill 2006 or any of its provisions would be ultra vires to the Constitution if enacted?
(III) Whether the Hasba Bill 2006 is ultra vires to the Constitution as it purports to de-legislate a provision of law having constitutional protection?
(IV) Whether the Hasba Bill 2006 or any of its provisions, would, if enacted, violate the fundamental rights guaranteed in Part II, Chapter I of the Constitution, including but not limited to Articles 9, 14, 16 to 20, 22 and 25 thereof?
(V) Whether the Hasba Bill 2006 or any of its provisions would, if enacted, violate Articles 2A, 4, 27, 203G, 212, of the Constitution?
(VI) Whether the enactment of the Hasba Bill 2006 would encroach on any occupied field, violate the Constitution by creating a parallel judicial system, undermine judicial independence and deny citizens their right of access to justice?
(VII) Whether the enactment of the Hasba Bill 2006 would violate the principle of separation of powers enshrined in the Constitution?
(VIII) Whether the Hasba Bill, and in particular Section 23 read with sections 10, 12, and 14 thereof, is unconstitutionally overbroad and vague and suffers from excessive delegation?
(IX) Whether the enactment of the Hasba Bill 2006 would result in an unconstitutional abdication of legislative power?
(X) Whether the provisions restricting the appointment of mohtasibs to “aalims” as defined in the Hasba Bill 2006 are arbitrary and not justifiable in light of Article 25 of the Constitution?
(XI) If the answer to any one or more of the above questions is in the affirmative, whether the NWFP governor is obliged to sign into law the Hasba Bill 2006 passed by the NWFP Assembly?.
Source: Daily Times