ISLAMABAD, Aug 4: The Supreme Court on Thursday ruled several clauses of the Hasba bill relating to the powers of an ombudsman, who is to be appointed under the controversial law, contrary to the Constitution. The court advised the NWFP governor not to assent to the law recently passed by the provincial assembly.

“For Reasons to be recorded later, we are of the considered view that Section 10 (b-c-d), 12 (1) (a-b-c), 23 (1-2-3-5-6-7-12-14-27, 25 (1-2) and 28 of the Hasba bill passed by NWFP assembly are ultra vires of the constitution, therefore governor of the province may not assent the bill in its present form,” Chief Justice Iftikhar Mohammad Chaudhry said in a unanimous order after four days of hearing of the reference filed by President General Pervez Musharraf against the bill under the advisory jurisdiction of the court.

A five-member bench of the apex court had earlier served notices on the NWFP government and the four advocates-general to appear before the court. On Thursday, advocates-general of three provinces supported the arguments of Attorney-General Makhdoom Ali Khan while NWFP’s law officer endorsed the arguments of advocate Khalid Anwar who represented the Frontier government.

“The provincial government will present the amended bill before the NWFP assembly in the light of the detailed order of the Supreme Court,” NWFP Law Minister Malik Zafar Azam said soon after the court had announced its short order.

Malik Azam described the SC order as ‘partial victory’ and announced a one-month remission to prisoners in the NWFP jails. He said the NWFP government had shown other provinces how to move forward to attain autonomy.

In his arguments, Mr Anwar urged the court to decline to answer the seven questions raised in the reference, saying that its advisory opinion would create a constitutional impasse and in future people would compare this decision with the judgment in the Maulvi Tamizuddin case in which challenge to the dismissal of the constituent assembly had been rejected.

After the court’s decision, he said, the governor would decline to sign the bill although under the constitution he could withhold his assent only on the advice of the chief minister.

He said the arguments of the federal government were based on hypothetical as they were opposing a bill which had not yet become an act. Besides, he pointed out, neither the mohtasib nor the person who would be prosecuted by the mohtasib was before the court.

Referring to the attorney-general’s arguments that the Hasba bill was poorly drafted and vague, Mr Anwar stated that the seven questions raised in the reference were also vague and overlapped each other.

He denied that the mohtasib to be appointed under the law would create new offences or penalize in accordance to his own understanding of the religion.

Justice Javed Iqbal observed that apparently the enforcement of the bill would not bring about any ‘positive change’ in the lives of ordinary citizens. Rather, he said, Section 23 of the proposed law would shake people’s belief in Islamic values and encourage confrontation.

Justice Javed Iqbal said that the Holy Quran, on 227 occasions, had dealt with different legal obligations but not on one occasion it gave any hint about the creation of the institution of Hasba. Had it been so important it must have been mentioned in the Quran, he added.

The sections declared ultra vires by the court relate to powers and duties of the mohtasib under which he has to protect and watch the Islamic values and etiquettes and can monitor adherence to moral values of Islam at public places, discourage extravagance, particularly at the time of marriages and other family functions, follow the code of Islam in giving dowry, monitor adherence of Islamic values, its respect and regard at the times of iftar and taraveeh, discourage entertainment shows and business transactions at the times of Eid and Friday prayers around mosques, etc.