ISLAMABAD, Aug 1: Attorney-General Makhdoom Ali Khan on Monday told the Supreme Court that the Hasba bill recently passed by the NWFP Assembly was unconstitutional that sought to vest open-ended and vague powers in an executive authority and infringe upon fundamental rights of citizens.

“The real question to ask is whether the provincial assembly can pass a law which gives wide powers to an executive authority (mohtasib) to interfere in the private lives of citizens,” Makhdoom Ali Khan argued before a nine-member SC bench which commenced hearing on the reference filed by President Pervez Musharraf against the Hasba bill.

Earlier in Karachi, the Supreme Court had served notices on the NWFP government and Advocates General of all the four provinces to appear before the court on Monday. Eminent lawyers Khalid Anwar and Dr Farooq Hassan are representing the NWFP government and the provincial assembly, respectively.

Cabinet ministers of the NWFP government were present to witness the proceedings in the packed-to-capacity courtroom. Elaborate security arrangements had been made to avoid any untoward incident.

Chief Justice of Pakistan Justice Iftikhar Mohammad Chaudhry, who is leading the bench, observed during the hearing that the concept of the Hasba has come from Islamic history and not from the Holy Quran.

Justice Javed Iqbal, a member on the bench, observed that the framers of the Hasba bill could have avoided ambiguities in the law had they thoroughly studied the real meaning and concept of Amer-Bil-Maroof and Nahi-Anil-Munkir (fulfilling obligations for good deeds as laid down in the Holy Quran and Sunnah). It seems the bill overlaps with many existing laws and has coercive tendencies towards its implementation, the judge said.

Amer-Bil-Maroof has been emphasized in the Holy Quran 160 times, to encourage, inspire and educate people towards good deeds but there is no concept of the institution of Hasba in the Holy Quran and Sunnah as it was first introduced during the period of Caliph Haroon Rashid who had formed a committee to check measurements, Justice Javed Iqbal said.

A distinction has to be made between Islamic laws and the Islamic history and whatever Umvis, Abbasis and Moghals practised during their period “does not bind us to follow”, the AG argued.

Lawmakers all over the world make laws to promote good deeds by forbidding bad or evil things, the AG said, adding that the only distinction Islam made was that it binds individuals to endeavour for improvement in society but avoid ‘Fitna’ (chaos) or ‘Fassad’ (disorder), without disturbing privacy of the people.

The AG also asked whether a bill with a tag of Arabic language could escape constitutional scrutiny when every legislation must conform to the constitutional norms. “Ours is a constitution of an Islamic state which lays down parameters keeping in view all Islamic norms,” he contended.

“When a vague law is created with penal consequences, it is bound to be abused as it gives extraordinary powers to executive authority to interfere in the lives of citizens and thus infringe upon their fundamental rights,” he argued, adding that the basic principle of criminal jurisprudence required that a citizen must not be made liable to an offence unless it was clearly spelt out as to what conduct would make him culpable.

He also cited the example of a force created by the former Taliban government in Afghanistan, which even shaved heads of the Pakistani football team merely because they were wearing shorts.

The Hasba law also impedes the right of access to justice, as under the bill, mohtasib, who does not enjoy security of tenure, exercises powers of judicial nature, which binds the executing agency to implement its orders when the ombudsman also gives recommendations.

He also cited the opinion of the Council of Islamic Ideology (CII) where the bill was referred for its opinion. In its present shape, the CII had suggested, the law would create more ambiguity about Islamic injunctions than solving problems. Besides, it also militates against the concept of independence of judiciary and Article 2A (Objectives Resolution) of the Constitution. The CII had also suggested strengthening the existing institutions instead of creating new ones. Besides, the Local Government Ordinance already contains the provisions of creating office of the mohtasib in the province.

The AG will conclude his arguments on Tuesday after which Advocate Khalid Anwar will defend the provincial government.