Chief Justice (R) Kundi represents NWFP Government to defend Hisba Bill

The NWFP Government engages Chief Justice (R) Abdul Karim Khan Kundi as part of its defence team in the widely publicized constitutional case of Hisba Bill Reference heard by the Supreme Court of Pakistan.

Back

The Government of North-West Frontier Province of Pakistan (NWFP) engaged the services of Chief Justice (R) Abdul Karim Khan Kundi, Senior Advocate, KUNDI & KUNDI on behalf of the Provincial Assembly of NWFP, to defend the Hisba Bill in a reference filed by the President of Pakistan before the highest court of the country i.e. Supreme Court invoking the court’s advisory jurisdiction under Article 186 of the Constitution of Pakistan, 1973. Through the said reference, the President sought the opinion of the Supreme Court on the constitutionality and validity of the Hisba Bill, which was passed by the provincial legislature of NWFP on 14th July, 2005.

Besides Chief Justice (R) Abdul Karim Khan Kundi, Mr. Khalid Anwar, Advocate Supreme Court and Mr. Farooq Hassan, Barrister-at-Law, were also part of the legal team constituted by the NWFP Government. The Federal Government was represented by the Attorney General for Pakistan, Mr. Makhdoom Ali Khan.

The Provincial Assembly of NWFP passed a treasury bill by majority vote called the “Hisba Bill” – hisba or hasbah in Arabic is akin to the concept of “accountability” but in a more holistic sense. The bill was then, as a matter of formality, to be sent to the provincial Governor for assent and technically, upon his assent, the bill would become an Act enforceable as a valid law of the land. The Hisba Bill aimed at introducing an administrative mechanism in NWFP by which the encouragement and enforcement of religious norms and practices of Islam among the majority Muslim populace of NWFP was sought to be institutionalized. The bill specifically targeted some social evils like honour killing, child labour and denial of women’s right to inheritance, etc. A dedicated office of Zila’i Mohtasib (District Ombudsman) at each District was to be established for this purpose to enforce his directives with the aid of police force and the deterrence of criminal prosecution for defiance of the directives. Other powers of the Zila’i Mohtasib were much like those of Federal and Provincial Ombudsmen working at the federal level and other provinces of the federation of Pakistan.

A full bench of nine judges of the Supreme Court heard arguments from both sides, which turned out to be a long-drawn legal battle, revolving around important constitutional and jurisdictional issues as well as substantial legal aspects of the Hisba Bill.

The Attorney General for Pakistan described the Hisba Bill as clearly violative of the Constitutional guarantees extended to every citizen under the Constitution of Pakistan and argued that a parallel judicial system would be established if the Hisba Bill was allowed to be enacted. He said that the Hisba Bill was unconstitutionally vague since all penal statutes were required, under Articles 4, 9 and 14 of the Constitution, to explicitly define prohibited conduct so as to give citizens proper prior notice before incurring penal consequences of defiance of Zila’i Mohtasib. The Attorney General asked the Supreme Court to declare the Hisba Bill as unconstitutional and that the Governor, NWFP may not be required to assent to the Bill in its present form.

On the other hand, defending the Hisba bill, the NWFP Government’s team of legal counsel raised preliminary objections regarding jurisdiction of the Supreme Court and argued that the reference filed by the President was premature as the reference could not be filed against proposed legislation i.e. a bill which has yet to take the form of an Act, which is inimical to Article 186 of the Constitution. It was contended that the Supreme Court was being asked for its opinion on questions that were necessarily of an abstract or hypothetical nature. Speculative opinions on hypothetical questions were worthless and it was contrary to principle, inconvenient and inexpedient that opinions should be given upon such questions at all. Various Indian case law such as AIR 1979 SC 478, AIR 1944 Federal Court 73, AIR 1932 Privy Council 36 and AIR 1952 SC 252 was referred to in support of this contention. In further developing the argument, it was contended that an opinion by the Supreme Court on the constitutionality or otherwise of Hisba Bill shall amount to encroachment into the domain of the legislature preserved by the Constitution under the theory of separation of powers. This would also be tantamount to undermining the provincial autonomy of a federating unit enshrined in the federal Constitution of Pakistan.

On merits, the NWFP Government’s legal team contended that the concept of Hisba comes from the Qur’anic injunction which clearly states that “When Muslims are given power in the land, they establish prayer, zakat (mandatory alms-giving), and promote what is good and forbid what is evil” (Surah al-Haj 22:41). It was contended that the Provincial Assembly of NWFP was doing nothing more than legislating for its province what already existed in the rest of the country in the form of laws relating to Federal and Provincial Ombudsmen. It was stated that NWFP had materially improved upon the existing model of the rest of the country by inter alia widening the scope of activities of the ombudsman, extending it to the district level and giving the ombudsman a more operational role, although that role had to materialize through the authorities and agencies of the province and in pursuance of other laws in force in the province.

It was contended that the Hisba Bill did not give any unfettered discretion to the Zila’i Mohtasib over and above the law of the land. The Zila’i Mohtasib’s instructions were to be implemented through administrative machinery of the province i.e. the judiciary, police, etc. and it was denied that the bill was aimed at creating a parallel judicial system. It was stated that the institution of Hisba would, in fact, be an integral part of the provincial administrative machinery and would just serve as another wing of the system.

It was concluded on behalf of NWFP Government that the underlying purpose of the Bill was to ensure establishment of justice in society as a whole and that the Supreme Court was bound to save the law insofar as it could be interpreted in conformity with the Constitution. It was averred that the Hisba Bill was an effort to implement constitutional provisions and there was nothing in the Bill that contravened the Constitution.

After hearing lengthy arguments from both sides, the Supreme Court, in its short opinion (to be followed by a detailed opinion subsequently), held that the provisions of the Bill were unconstitutional and opined that the NWFP Governor may not give his assent to Hisba Bill in its present form.

The detailed opinion of the Supreme Court can be read here.