SC declares key Hasba sections unconstitutional

* Objects to sections related to powers and duties of mohtasib
* Advises NWFP governor not to assent to Hasba Bill

By Mohammad Kamran

ISLAMABAD: The Supreme Court on Thursday advised the NWFP governor not to agree to the Hasba Bill in its present form, as its sections relating to the powers and duties of the mohtasib were unconstitutional.

“For reasons to be recorded later, in our considered opinion Section 10 (sub-sections b, c and d); Section 12(1) (sub-sections a, b and c); Section 23 (sub-sections 1, 2, 3, 5, 6, 7, 12, 14 and 27); Section 25(1 and 2) and Section 28 of the Hasba Bill 2005 passed by the NWFP Assembly are ultra vires of the constitution. Therefore, the NWFP governor may not assent the bill in its present form,” states the short order pronounced by the court after four hours of in-camera consultation in a presidential reference against the bill.

The NWFP Assembly passed the Hasba Bill on July 14 with 68 votes in favour and 34 votes in opposition. The bill envisages an office of the mohtasib with special powers to implement Islamic laws in the province, but President Pervez Musharraf filed a reference against the Hasba Bill the next day seeking the Supreme Court’s opinion under its advisory jurisdiction. The president raised many legal questions challenging the bill’s constitutionality. The president also questioned whether the Hasba Bill or any of its provisions would be constitutionally invalid if enacted and would be against the fundamental rights of the people, create a parallel judicial system, undermine judicial independence and deny citizens their right of access to justice.

The Supreme Court heard the case for four days and then pronounced its short judgement.

The sections that have been declared unconstitutional by the court relate to powers and duties of the mohtasib, the implementation of his orders, his special powers to implement the Islamic code, restriction on other courts to proceed against the orders of the mohtasib and the punishment prescribed for violating the mohtasib’s orders.

Advocate Khalid Anwar defended the bill on behalf of the NWFP government while Attorney General of Pakistan Makhdoom Ali Khan pleaded the presidential reference.

The Supreme Court bench consisted of Chief Justice Iftikhar Muhammad Chaudhry and Justices Javed Iqbal, Abdul Hameed Dogar, Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, Mian Shakirullah Jan, M Javed Buttar and Saiyed Saeed Ashhad.

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