Saturday, June 1, 2013

Hasba Bill Reference Case. The Most Important Judgment on Privacy in Pakistan.

IN THE SUPREME COURT OF PAKISTAN
(Advisory Jurisdiction)
Present
Mr.Justice Iftikhar Muhammad Chaudhry, CJ.
Mr.Justice Javed Iqbal
Mr.Justice Abdul Hameed Dogar
Mr.Justice Sardar Muhammad Raza Khan
Mr.Justice Muhammad Nawaz Abbasi
Mr.Justice Faqir Muhammad Khokhar
Mr.Justice Mian Shakirullah Jan
Mr.Justice M. Javed Buttar
Mr.Justice Saiyed Saeed Ashhad
REFERENCE NO. 2 OF 2005
Reference by the President of Pakistan
under Article 186 of the Constitution of
the Islamic Republic of Pakistan, 1973.
For the President : Mr. Makhdoom Ali Khan,
Attorney General for Pakistan.
Raja Muhammad Irshad, Dy. Att: Gen.
Mr. Nasir Saeed Sheikh, Dy. Att: Gen.
Ms. Nahida Mehboob Ellahi, Dy: Att: Gen.
Mr. Faisal H. Naqvi, Advocate.
Mr. Uzair Karamat Bhandari, Advocate.
Mr. Khurram M. Hashmi, Advocate.
Mr. M.S. Khattak, AOR.
For the Government of NWFP: Mr. Khalid Anwar, Sr. ASC.
Haji M.A. Qayyum Mazhar, AOR.
assisted by
Mr. Muneeb Akhtar, Advocate.
Mr. Bilal Shaukat, Advocate.
Mr. Younas Tanoli, AG NWFP.
Pir Liaqat Ali Shah, Addl: AG NWFP.
On Court notice : Mr. Aftab Iqbal Chaudhry,
Advocate General (Punjab).
Mrs. Afshan Ghazanfar Asstt: AG(Pb.)
Syed Sajjad Hussain Shah, Ass: AG (Pb).
Dr. Qazi Khalid Ali, Addl: AG Sindh.
Mr. Salah-ud-Din Mengal,
AG (Balochistan)
Dates of hearing : 1
st, 2nd, 3rd, and 4th August, 2005.
…………………………
Reference No.2/2005
2
OPINION
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. –
The President
of Pakistan has referred the following questions of law for opinion of
this Court under Article 186 of the Constitution of the Islamic
Republic of Pakistan, 1973 (hereinafter referred to as the
Constitution):-
i) Whether the Hisba Bill or any of its provisions
would be constitutionally invalid if enacted?
ii) Whether the Hisba Bill or any of its provisions,
would, if enacted; be violative of the
fundamental rights guaranteed in Part-II,
Chapter 1 of the constitution, including but not
limited to Articles, 9, 14, 16 to 20, 22 and 25
thereof?
iii) Whether the Hisba Bill or any of its provisions
would, if enacted, be violative of Articles 2A, 4,
203G, 212, 229 and 230 of the Constitution?
iv) Whether the enactment of the Hisba Bill would
encroach on an occupied field, violative of the
Constitution by creating a parallel judicial
system, undermine judicial independence and
deny citizens their right of access to justice?
v) Whether the enactment of the Hisba Bill would
violate the principle of separation of powers
enshrined in the Constitution?
vi) Whether the Hisba Bill, and in particular
Sections 10 and 23 thereof, is unconstitutionally
overbroad and vague and suffers from excessive
delegation?
vii) If the answer to any one or more of the above
questions is in the affirmative, whether the
Governor, NWFP is obliged to sign into law the
Hisba Bill passed by the NWFP Assembly?”
2. Precisely stated, the circumstances which necessitated the
seeking of opinion from this Court by the President of Pakistan, are
that on 19
th June, 2003, a draft Bill titled “HISBA BILL” was
submitted under the N.W.F.P Rules of Business, 1985, to the
Governor of NWFP for his approval prior to its presentation before
the N.W.F.P Assembly. The Governor returned the draft bill to the
Reference No.2/2005
3
N.W.F.P Government (hereinafter referred to as the Provincial
Government) on 26
th June, 2003, with the advice that before moving it
for leave to introduce, it may be appropriate, inter alia, to take the
following into consideration:-
(i) It is an established principle that
legislation should be precise, clear and
unambiguous so that the legitimate
rights of the citizens are protected from
the abuse or excess of powers vested in
an authority. The draft bill in its present
form is vague, more particularly the
powers envisaged to be vested in the
proposed Mohtasib. This lack of clarity
and precision could lead to unnecessary
and unlawful infringement of the rights
of the citizens besides intrusion in the
realm of such areas of private morality
which may neither be desirable nor just
and fair. Moreover, terms used in the
draft Bill need to be clearly defined,
such as, inter-alia, un-Islamic social
etiquettes, Islamic moral values, respect
and etiquettes for prayers etc.
(ii) Islam is indeed a complete code of life
and any legislation in the name of Islam
has to be exercised with caution and
utmost care because if the powers
thereunder are abused it inevitably
damages the image of a dynamic
religion. The draft Bill envisages to give
wide discretionary powers to the
proposed Mohtasib, particularly in
section 23 thereof, however the powers
have been vaguely worded. Such wide,
vague and loosely worded/drafted
legislation will inevitably cause
immense difficulties for the citizens
besides jeopardizing their civil liberties,
privacy and constitutional rights.
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(iii) The EXPLANATION to sub-section (iii)
of section 2 of the proposed Bill
categorically points out that this law
would be invoked, when no other legal,
judicial or administrative remedy is
available. Contrary to it, five cases
mentioned in sub-section (v) of Section 2
and various sub-sections of Section 9
are dealt by comprehensive Efficiency &
Disciplinary laws/rules, NAB Ordinance
and other punitive laws/rules.
(iv) There are valid and enforced laws
relating to most of the powers
mentioned in section 23 of the draft Bill.
All such laws, inter-alia, relating to
employment of children, Ehtaram-e-
Ramazan, hoarding and black
marketing, prohibition of wasteful
expenditure in marriages, weights and
measures, prevention of cruelty to
animals, gambling, regulation of
loudspeakers, vagrancy, price control
and prevention of profiteering and many
others are not only in existence and
enforced by various institutions and
authorities are provided there-under for
administering these laws and the
expenditure for which is paid by the
exchequer. There is a need to examine
all the laws, which are already in
existence, and to make the respective
executing authorities/ agencies more
effective and accountable rather than
creating parallel institutions and
authorities in haste and vesting them
with unbridled and vague powers. This
would neither be in the interest of good
governance or the citizens. Moreover, it
will be an unnecessary burden on the
already strained exchequer of the
province.
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(v) The draft bill proposes to touch upon
certain laws which fall under the
domain of Federal Legislation, interalia
the Police order. Section 2 subsection
(iii) read with Section 20 of this
proposed Bill refers to creation of Hisba
force which is contrary to the Police
Ordinance, 2002. Any change/
amendment in this Order would require
permission from the President of
Pakistan as it is included in Schedule-VI
of the 1973 Constitution of the Islamic
Republic of Pakistan.
(vi) Prior approval of the President would
be required for extension of the
proposed law to Provincially
Administered Tribal Areas (PATA). It is
therefore advisable to consult the
Federal Government through Law and
Justice Division and Interior Division
before taking further action on the
proposed bill.
(vii) Vide sub-section (16) of Section 2 of the
proposed Bill, the definition of
journalist is very vague. It accepts any
person as a journalist who is MA
(Journalism) or has attachment with
journalism for ten years irrespective of
the fact whether he holds journalism
degree or any other such equivalent
qualification.
(viii) The proposed appointment and removal
of the Mohtasib and the procedure for
conducting inquiries and investigations
also need to be reviewed so as to make
the respective procedures transparent
and more accountable.
(ix) The matter being of a sensitive and
important nature, instead of legislating
in a haste, as a first stage the treasury
benches may consider seeking the
opinion of the Council of Islamic
Ideology for the purposes of Article 230
Reference No.2/2005
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of the Constitution in respect of all the
existing laws relating to the proposed
powers enumerated in the draft Bill and
to seek recommendations as to the
measures of bringing such existing laws
in conformity with the injunctions of
Islam. In the second stage, clear precise
and unambiguous legislation may be
proposed in relation to areas/issues,
which are not covered in the existing
laws. It would also require taking into
consideration prudent and diligent
regard vis-à-vis the exchequer.”
3. The Provincial Government in compliance with the above
advice of the Governor, agreed to refer the matter to the Council of
Islamic Ideology (hereinafter referred to as CII). The CII rendered its
opinion and pointed out inherent defects in the proposed legislation
and specifically stated that the draft Hisba Bill violated a number of
constitutional provisions and was capable of being exploited for
political motives. The opinion of the Council was communicated to the
Provincial Government on 18
th September, 2004. The Provincial
Government, without taking into consideration the opinion of the CII,
tabled the draft Hisba Bill in the N.W.F.P Provincial Assembly on 11
th
July, 2005 and got it approved. The Governor of NWFP, on 11
th July,
2005, requested the Prime Minister to make a request to the President
of Pakistan for making a Reference to this Court for its opinion on the
constitutionality of the draft Hisba Bill under Article 186 of the
Constitution as serious questions of law of public importance are
involved in the matter.
Reference No.2/2005
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4. In the light of the request of the Governor and the attending
controversy, the Hisba Bill which generated serious and substantial
questions of constitutionality of fundamental human rights, the Prime
Minister of Pakistan was pleased to advise the President of Pakistan
to seek opinion of this Court and refer the above questions of law of
public importance for opinion on the constitutionality of the draft
Hisba Bill. As this Court is required to give its opinion about the
constitutionality of the draft Hisba Bill, therefore, it is deemed
appropriate to reproduce herein-below the following provisions from
the draft Hisba Bill:-
A BILL to provide for the establishment of the institution
of Hisba in the North-West Frontier Province.
WHEREAS sovereignty over the entire Universe belongs to
Almighty Allah alone and the authority to be exercised by the
people of Pakistan through their chosen representatives within the
limits prescribed by Him is a sacred trust;
AND WHEREAS implementation of Islamic way of life revolves
around Amer-bil-Maroof and Nahi-unal-Munkir and to achieve
this objective it is necessary apart from other steps to establish an
institution of accountability which could keep a watch on securing
legitimate rights of various classes of the society, including
females, minorities and children and to protect them from
emerging evils and injustices in the society;
AND WHERE it is further necessary to extend the jurisdiction of
Mohtasib to Government’s administration and offices in order to
have a check upon injustices, abuse of powers and other similar
excesses;
It is hereby enacted as follows :
“1. .Short title and commencement
(1) This Act may be called the North-West Frontier
Province Hisba Act, 2005.
(2) It shall extend to whole of the North-West Frontier
Province.
(3) It shall come into force at once.
2. Definitions.
--- In this Act, unless the context otherwise
requires,
(a) “Agency” means a Department, Commission or
any office of Provincial Government, a Corporation or
similar other institutions which the Provincial
Government may have established or which may be
working under its control, the Secretariat of the
Provincial Assembly of the North West Frontier
Province, but does not include the High Court and the
Courts working under its administrative control;
Reference No.2/2005
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(b) “Amer-bil-Maroof” means fulfilling the
obligations of enjoining the good as laid down in Holy
Quran and the Sunnah;
(c)……………………………………………………………….
(d)……………………………………………………………….
(e)……………………………………………………………….
(f)……………………………………………………………….
(g)……………………………………………………………….
(h)……………………………………………………………….
(i) “Mal-administration” includes all such
decision, processes, recommendations, acts and
deficiencies which –
(i) Is contrary to law, rules or regulations
or is a departure from established
practice or procedure, unless it is bona
fide and for valid reasons; or
(ii) Is perverse, arbitrary, unreasonable,
unjust, biased, oppressive or
discriminatory; or
(iii) Is based on irrelevant grounds; or
(iv) Involves the exercise of powers or the
failure or refusal to do so, for corrupt or
improper motives, such as bribery,
jobbery, favoritism, nepotism and
administrative excesses; or
(v) Amounts to negligence, inattention,
delay, incompetence, inefficiency and
inaptitude in the administration or
discharge of duties and responsibilities;
(j)……………………………………………………………….
(k) “Nahi-unal-Munkir” means fulfilling the
obligations of forbidding the evil as laid down in the
Holy Quran and the Sunnah;
(l)……………………………………………………………….
(m)………………………………………………………………
(n) “Provincial Advisory Council” means the Council
established under this Act;
(o) ………………………………………………...…………….
(p)……………………………………………………………….
(q)……………………………………………………………….
(r)……………………………………………………………….
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.
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10. Powers and duties of Mohtasib.
The Mohtasib shall, on a written complaint of any person, or on
reference from the High Court, the Supreme Court or the
Provincial Assembly, or suo motu, shall have the power to-
(a) Enquire into the allegations of maladministration
against any Agency or its employees:
Reference No.2/2005
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Provided that no Government servant, during his service, shall
be entitled, in relation to affairs of his employment, to lodge a
complaint with the Mohtasib;
(b) Protect/watch the Islamic values and etiquettes
at the provincial level;
(c) Watch the media established by Government or
working under the administrative control of Government
to ensure that its publications are useful to the purpose
of upholding Islamic values;
(d) Forbid persons, Agencies and authorities
working under the administrative control of Government
to act against shariah and to guide them to good
governance;
(e) Formulate such directives and principles, which
may help in making the conduct of authorities working
under this section to be effective and purposeful;
(f) Extend help to the provincial administration in
discharging its functions smoothly and effectively;
provided that the Mohtasib shall not interfere in any
mater which is sub-judice before a court of competent
jurisdiction or which relates to external affairs of
Pakistan or the relations or dealings of Pakistan with
any foreign State or Government or relates to or is
connected with the defence of Pakistan or any part
thereof, the Military, Naval and Air Forces of Pakistan
or the matters covered by laws relating to these forces;
(g) For the purposes of attaining the objectives of
this Act, with particular reference to doing away with
the mal-administration and to remove social injustices,
take steps for providing facilities of training, study and
research; and
(h) Mohtasib shall, in the discharge of his duties
and functions, be entitled to engage the services of
experts and Consultants with or without remuneration.
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12. Implementation of orders, etc.
(1) On completion of the action in relation to a
complaint, the Mohtasib shall have the power to issue
directive to the competent officer of the Department
concerned for its implementation and may, at the same
time, take up such steps as he considers expedient. The
concerned Agency within the time limit mentioned in the
directive, inform the Mohtasib about the action taken in
that behalf, failing which the concerned Agency or
competent officer, on the recommendation of the
Mohtasib, shall render itself or himself, as the case may
be, to the following actions:
(a) One or more actions under the law relating
to removal from Service;
(b) In case of non-cooperation with the
Mohtasib or his staff during investigation, legal
action for interference in smooth functioning of
Government.
Reference No.2/2005
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(c) Where the Mohtasib is satisfied in respect of
a complaint under consideration that any
functionary of Government has committed a
cognizable offence or rendered himself to civil
liability, he shall direct the concerned Agency to
initiate action as aforesaid in accordance with
law.
(2) In case of non-compliance of the directive of the
Mohtasib, he shall refer the matter to Government,
which shall ensure its compliance and inform the
Mohtasib of its compliance.
(3) A report of such non-compliance of the official
shall form part of his personal file.
(4) The official concerned shall have the right of
representation to the Chief Minister within a period of
30 days from the date of recommendation under subsection(
1).
14. Contempt of Mohtasib .
The Mohtasib shall mutatis mutandis have the same powers
which are available to the High Court to punish a person
who-
(a) Hinders or becomes a source of
hindrance in the smooth proceedings before the
Mohtasib or does any act causing difficulties in
the completion of such proceedings;
(b) Gives such statement which defames
Mohtasib, or any of his officials or
representatives;
(c) Acts in a manner which, in relation to
proceedings before the Mohtasib, influence the
mind of the Mohtasib to take a partial decision;
or
(d) Acts in a manner which, under any law
for the time being in force, falls within the
definition of contempt; provided that any
comments made in good faith and in the public
interest on any act or on report of the Mohtasib
or his employer or representative shall not be
treated as contempt.
(2)
The person aggrieved against any order of the
Mohtasib under sub-section (1) may, within thirty days
of such order, appeal in the High Court, which shall be
heard by a Division Bench of the said Court
.
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Reference No.2/2005
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23. Special powers of Mohtasib.
Without prejudices to the powers conferred by
section 10, the Mohtasib shall have the following
powers:-
(i) To monitor adherence of moral values of
Islam at pubic places;
(ii) To discourage Tabdhir or extravagance,
particularly at the time of marriages and other
family functions;
iii) To follow code of Islam in giving dowry;
(iv) To discourage beggary;
(v) To monitor adherence of Islamic values
and its respect and regard at the times of ‘Iftar”
and Taravih’;
(vi) To discourage entertainment shows and
business transactions at the times of Eideen and
Jumma’ah prayers around mosques where such
prayers are being held;
(vii) To remove causes of dereliction in
performance and proper arrangement of Eidain
and Jumu’ah prayers;
(viii) To discourage employment of under-age
children;
(ix) To remove unnecessary delay in
discharge of civil liability which is not disputed
between the parties;
(x) To prevent cruelty to animals;
(xi) To remove causes of negligence in the
maintenance of mosques;
(xii) To observe decorum of Islam at the
times of Azan and Fard prayers;
(xiii) To prevent misuse of loud-speakers and
sectarian speeches in mosques;
(xiv) To discourage un-Islamic and inhuman
customs;
(xv) To check the tendency of indecent
behaviour at public palaces including
harassment of female;
(xvi) To eradicate the deal as profession in
‘Taweez’, ‘Gunda’, palmistry, sorcerery, etc;
(xvii) To protect the rights of minorities,
particularly to regard the sanctity of their
religious places and places where they perform
their religious ceremonies;
Reference No.2/2005
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(xviii) To eliminate un-Islamic traditions which
effect the rights of women, particularly taking
measures against their murder in the name of
‘Ghairat’, to remove the tendency of depriving
them of their rights of inheritance, to eliminate
the tradition of ‘sura’, and to protect their rights
conferred by Shariah and law;
(xix) To monitor weights and measures and
eliminate impurity;
(xx) To eliminate artificial price-hike;
(xxi) To protect Government properties;
(xxii) To eliminate bribery from Government
Departments/offices;
(xxiii) To incite feelings of service to people at
large amongst Government functionaries;
(xxiv) To advise those who are found to be
disobedient to their parents;
(xxv) To perform any other function or
functions which the Provincial Mohtasib
determines from time to time in consultation
with the Advisory Council;
(xxvi) To mediate amongst parties and tribes
in matters pertaining to murders, attempts to
murder and similar other crimes threatening to
law and order situation.
(xxvii) To perform any other function/functions
which the Provincial Mohtasib determines from
time to time in consultation with the Advisory
Council.
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25. Restriction on the rights of hearing.
(1) No court or authority shall be competent to
question the legal status of the proceedings before a
Mohtasib.
(2) No court or authority shall have the power to
pass any injunction or any interim or a stay order with
regard to any matter under consideration of the
Mohtasib.
(3) No suit or legal proceeding shall lie against the
Mohtasib or his employees for anything in good faith
done or intended to be done.
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28. Offences to be non-cognizable.
(1) Defiance of the order of the concerned Mohtasib
in the performance of his duties under section 23 of this
Act shall be a non-cognizable offence punishable with
Reference No.2/2005
13
imprisonment for a term up to six months and a fine up
to two thousand rupees. No court shall take cognizance
of an offence under this section, except on a complaint in
writing of the Mohtasib or his authorized representative.
(2) The offence under sub-section (1) shall be tried
by the court in accordance with Code of Criminal
Procedure, 1898 (V of 1898) and the order shall be
appealable.
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5.
Notices were issued to the Provincial Government of NWFP
through Chief Secretary as well as Secretary Assembly, its Advocate
General as well as the Advocates Generals of all other Provinces.
6. “Hisba” is an Arabic word, which in the plain language means “to
count” or “accountability” or “to prohibit from evil things,” as per
available literary sources. The Institution of the office of “Hisba” did not
exist at the time of Holy Prophet (PBHU) and the Khulafa-e-Rashideen.
Initially the office of “Amil al-suk” was created by “Umayyads” to
regulate markets. However, later on it was expended into the office of the
“Mohtasib” by the “Abbasids.” Reference in this behalf may be made to
the following:---
1. An Introduction to Islamic Law ”
by Joseph Schacht
“…………The office of the ‘inspector of the market'
(ayopavouos, in Arabic amil al- suk or sahib al-suk, a literal
translation) who had a limited civil and criminal jurisdiction;
it was later, under the early 'Abbasids’ to develop into the
Islamic office of the muhtasib. Similarly, the Muslims took
over from Sassanian administration the office of the ‘clerk of
the court' who became an assistant of the kadi; this was well
known to the ancient authors.”
2. “A history of Islamic Law ”
by N.J Coulson
“One particular administrative office taken over by the
Umayyad regime was that of the Byzantine market inspector,
or agronomos. This official, bearing the equivalent Arabic
title of ‘amil as-suq, possessed limited powers of jurisdiction
Reference No.2/2005
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concerning such things as weights and measures used in the
market and petty offences committed there. At a later stage he
was entrusted with the peculiarly Islamic function of hisba, or
the duty of safeguarding the proper standards of religious
morality. Accordingly he now took the title of muhtasib, but
still retained the market-place jurisdiction as a legacy of his
historical origin.”
3. “A History of the Arab People”
by Albert Hourani
“…………In the market there was a special official, the
muhtasib, who supervised prices, weights and measures, the
quality of goods and the conduct of business; his authority
was derived from, a verse of the Qur’an which enjoined upon
Muslims the duty of 'bidding unto good and rejecting what is
disapproved', and in some circumstances he was appointed
from among the religious class, but in others from the
military………”
4.
“Islami Riasat Main Mohtasib Ka Kirdar ”
by Dr. M.S. Naz.
8. To substantiate the above definitions, a good number of books can
be quoted including “
the Concept of Administrative Accountability in
Islam
” by Dr. Riaz Mehmood, Urdu Daira Ma’arif-e-Islamia (Urdu
Encyclopedia of Islam) Vol. VIII, published under the auspices of
University of Punjab Lahore, “
Ehkamul Sultania” by Imam-Abul-Hassan
Bin Muhammad Bin Habib-e-Baseeri (translated by Maulvi Syed
Muhammad Ibrahim), “
Adbul Qazi” by Dr. Mehmood Ahmed Ghazi,
Edarai-e-Tehkekqat-e-Islami, “
Badae-ul-Sana’ay” by Alama Allauddin
Abubakar Bin Sulemani (translated by Prof. Khan Muhammad Chawla)
and “
The Concise Encyclopedia of Islam” by Cyril Glasse. Relevant
portion from the last mentioned book is reproduced below:-
Reference No.2/2005
15
Muhtasib. A public functionary whose task, as it has
existed since 'Abbasid times, has been that of
supervising the merchants' quality and prices. The
muhtasib checks and verifies weights and measures and
the use of materials in crafts. He gives expert appraisal
of the value of cloth, rugs, woven articles brass and
copper utensil. These estimates are not binding as a
price between buyer and seller, but are indicative of the
fair market price. The muhtasib is still found in some
traditional markets.”
9. A study of the definitions of “Hisba” from the above books indicates
that although it was a very old institution but its inception is not well
known. Some of the authors, as is evident from the above definitions, say
that in the beginning, the terms “Hisba” and “Mohtasib” were not used
but the terms “Sahib al-Suk” or “Amil ul-rusul ” [incharge of Trade or
Trade administrator/administrator of streets] were used. The word “Sahib
ul-Suk” is said to be a translation of Greek term. However, history reveals
that the term “Mohtasib” was started to be used instead of “Sahib ul-Suk”
during the Khilafat of “Qazi Mamoon-ur-Rashid” and the “Mohtasib”
used to look-after the market business in addition to his religious duties,
such as to bring reformation in social life. A careful perusal of the
documents on the subject, clearly depicts the fact that duties of the
“Mohtasib” were to inspect instruments of the scales of weights and
measures. These scales were so complicated and different that the peoples
could easily deceive each other. In addition to it he had also to keep a
vigilant eye over each kind of shortcoming and dishonesty that could be
committed during the preparation and sale of commodities. It is also
evident from the history books that keeping in view economic conditions of
Muslims, the “Mohtasib” used to check prices of the goods but he had no
power to determine them. He had also to ensure that construction and
repairing of houses and the shops would not endanger the peace of the
Reference No.2/2005
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public or cause hurdles in the way of pedestrian and traffic. Streets
cleanliness, repair of shelters for commuters and supply and drainage of
water were amongst his duties and due to such functions “Mohtasib” in
Islamic period used to be considered a City Officer. Unfortunately, at the
end of middle ages, with the economic downturn and social crises, the
office of “Mohtasib” started loosing its respect. During the era of
“Mamlik” sometime the posts of Mohtasib, like other institutions, were
grabbed by giving bribes. The buyer of this office reimbursed this money by
imposing illegal levies. Eventually, fighting started to occur among the
contenders of this post. Sometime this post was given to an Army Officer in
reward to his performance or from strategic point of view. This office
remained established in Muslim countries till the inception of 20
th Century.
It is most important to note that the office of “Mohtasib” effectively
functioned, even when there was no codified law and there were no regular
Governments to control the State affairs, to spread virtues and battle
against evils as per the comprehensive meanings of the word “Hisba.” In
this behalf every Muslim can act as “Mohtasib” for himself as well as for
others, in view of the Injunction of Holy Quran, (Surah Al-Imran verse
104), translation of which is “
And there must be a section among you to
call towards good, to order the right and prevent the bad
.” Similarly,
Holy Quran in Surah Al-Nisa verse 59 ordained “
O Muslims, obey Allah,
His Prophet (PBUH) and those in authority from amongst you.
” Dr. Riaz
Mehmood in his book “
the Concept of Administrative Accountability in
Islam,
” while taking into consideration both these Injunctions of Holy
Quran and dealing with the subject of “Hisba” and “Legislature” (Chapter
IX page 173), has opined as follows:-
“………...In the third verse it is emphatically proposed
that there must be a body to call to good, to beneficial
Reference No.2/2005
17
state of affairs, to order good and to check bad. Lastly the
men in authority or the men who have been assigned
some work, who have been deputed or are engaged in the
task of some peremptory nature must be obeyed. So a
representative or consultative body has been provided. In
Ul-Al-AMR the legislature, the executive and judiciary all
are encompassed.
Dr. Sabhi Mehmasani has concluded by referring
to many Quranic verses and traditions that Ijma is an
admitted and proved source of Islamic law.
So the entity of Shura is established. Hadrat
Umer formed a Shura.
It has also been discussed in the preceding
chapters that the Holy Prophet (P.B.U.H.) and the rightly
guided Caliphs conducted Ihtisab themselves. lhtisab of
the public and officials had all along been there.
However the nomenclature Muhtasib, appeared in the
time of Caliph Mehdi.
The muhtasib and the shura are therefore to
consult each other. Hisba and shura may coincide in a
single body notwithstanding whatever qualification of
piety or fiqh be laid down for them. Muhtasib is a
successors wing of the ruler and the legislature i.e.
parliament is the successor of shura.
Shura's link as mentioned in the encyclopaedia be
reproduced below.
"Linked with these tasks was another
which has caused modern scholars to
stress the view that the traditions of
antiquity concerning the councillors of
the town were perpetuated in the duties
of the Muhtasib.”
The councillor is the representative of the urban
electorate at the local councils level. He too is often
elected on party basis. The members of the parliament
have comparatively larger constituencies. The functions
are almost the same. They attend to the small disputes of
the voters, redress their complaints and are the overall
overseers of public officials. The councillors are also
invested with some judicial matters.
The legislators move the bills in parliament
keeping in view the problems of their respective areas.
The parliament of Pakistan is officially called MAJLIS-ISHURA.
Reference No.2/2005
18
Thus the members of the parliament (Legislature)
themselves act as Muhtasibs in their areas and also
advise the rulers.
In all countries where there is parliamentary
form of government, the parliament (Legislature) almost
acts as the Muhtasib of the executive. The same is the
position in Pakistan. The relevant articles of the
constitution of Islamic republic of Pakistan be referred in
this respect.
"Article 9: THE CABINET
1. There shall be a cabinet of ministers
with the Prime Minister at its head, to
aid and advise the president in the
exercise of his functions."
4. The cabinet, together with the
Minister of State, shall be collectively
responsible to the National Assembly.”
There is a bit of difference between the
Ombudsman and Hisba, which would be discussed in
chapter xi. However their relationship with the
Legislature is almost the same. An excerpt from the
annual report of Wafaqi Muhtasib of Pakistan, 1992 may
be adverted to in this connection.
WAFAQI MOHTASIB VIS-A-VIS THE PARLIAMENT:
The institution of Wafaqi Mohtasib was
established through a presidential order
in 1983 (p.o. of 1983), during the days
when the country was under Martial
Law. The Ombudsman law thus does not
stipulate linkage between this institution
and the parliament which has created a
contradiction in the context of the
world-wide practice in similar
institutions. In all the countries of the
world, where this institution exists, the
Ombudsman is considered to be a
Parliamentary watchdog operating in
administrative domain on behalf of the
Parliament, to which alone he is
responsible.
After the restoration of democracy in Pakistan in 1985,
this office has continuously been demanding creation of
formal linkage between this institution and the parliament
either through a constitutional amendment or by setting
up of a Public Administration Committee of the
Parliament, on the pattern of Public Accounts Committee
but to no effect. All efforts seem to have been wasted.
Reference No.2/2005
19
Committee of this nature, would not only act as a liaison
between the Mohtasib and the Parliament but would also
provide necessary guidance and support to this institution
in the performance of its functions in various fields.
Matters relating to the Ombudsman institutions like its
Annual report, budget proposal and amendments in the
law, prudence demands, are required to be scrutinized
first by that committee for the purposes of evolving
bipartisan consensus before these are placed before the
Parliament for consideration.
10. NWFP Assembly, despite having all functional democratic
institutions under the Constitution, intended to establish the institution of
“Hisba,” as per draft Hisba Bill. Its preamble identifies the following two
objects :---
i) Whereas implementation of Islamic way of life revolves
around Amar-bil-Maroof and Nahi-unal-Munkir and to
achieve this object, it is necessary apart from other steps
to establish an institution of accountability, which could
keep a watch on securing legitimate rights of various
classes of the society, including females, minorities and
children and to protect them from emerging evils and
injustices in the society;
ii)
And whereas it is further necessary to extend the
jurisdiction of Mohtasib to Government’s
administrations and Offices in order to have a check
upon injustices, abuse of powers and other similar
excesses.
A careful perusal of above preamble demonstrates that the “Hisba Bill”
was drafted to achieve two-fold objectives; one to establish an institution of
accountability to fulfil the command of “Amar-bil-Maroof and Nahi-unal-
Munkir,” as far as personal lives of the different segments of the society are
concerned; and second to extend the jurisdiction of “Mohtasib” to official
affairs of the Provincial Government. So far as the second part is
concerned, its object seems to be inline with the legislation already
available on the subject i.e. the Establishment of Office of the Wafaqi
Reference No.2/2005
20
Mohtasib Order 1983, which has been mandated by the Constitution under
Item 13 of the Federal Legislative List; Establishment of the Office of
Ombudsman for the Province of Balochistan Ordinance, 2001; Punjab
Office of the Ombudsman Act, 1997; Establishment of the Office of
Ombudsman for the Province of Sindh Act, 1991, respectively. Definition
clauses in the “Hisba Bill” and the other laws on the subject, relating to
mal-administration in Government offices, are identical in substance.
11. The concept of Ombudsman has been discussed in a “
Commentary
on Ombudsman
” by Mubeen Ahmed Khan, substance whereof is that it is
an institution which takes care of a large segment of population or the
large number of the residents against the mal-administration of the
Government functionaries. Dr. Riaz Mehmood in “
The Concept of
Administrative Accountability in Islam”
in chapter Ombudsman: concept
and growth: has described that Ombudsman is a person or an office which
on complaint or reference or even suo motu can look into administrative
actions, omissions and commissions of Government or Semi-Governmental
agencies, affecting their subjects in case they in their own place term them
a partial, improper, arbitrary, oppressive, harsh, discriminatory, biased,
victimizing, or the result of neglect, lethargy or incompetence, and after
necessary investigation, offer possible redressal, within statutory spheres.
Three renowned scholars on the subject i.e. Geraled E. Caiden, Nail
Macdermot and Ake Sandler have detailed the concept of Ombudsman in
lucid manner: “ a new and to many people, a foreign word is being heard
more frequently, it is “Ombudsman.” A term that refers to special office or
officer to whom people can go with their grievances about the way their
business with large anonymous bureaucracies has been handled. The
Ombudsman records public complaints, investigates them, and reports the
Reference No.2/2005
21
findings to the complainants and the organizations investigated. Should any
wrong be discovered, it is expected that it will be put right, if not to the
complete satisfaction of aggrieved party, then at least better than it would
have been without the Ombudsman’s intervention. For the public, the
Ombudsman is a welcome device for assuring that justice is done and that
bureaucracies treat their clients fairly, promptly and respectfully. For
bureaucracy, it is an additional failsafe check on their operations, thus it
provides additional protection for both public and bureaucracy, something
that seems required as the transactions between them multiply.”
12. It may be noted that in Pakistan, besides the offices of Ombudsman
referred to herein before, at the Federal level, there is yet another office of
Tax Ombudsman, established under Ordinance No.XXXV of 2000 titled as
Establishment of Office of Federal Tax Ombudsman Ordinance 2000. The
objects and the functions of the Tax Ombudsman are to diagnose,
investigate, redress and rectify any injustice done to a person through maladministration
by functionaries, administering tax law. Thus, establishment
of Federal and Provincial Ombudsman Offices including the Tax
Ombudsman, are successfully serving the object of checking maladministration
in Government offices on the complaints of aggrieved
persons.
13. The Government of NWFP is legally bound to establish the offices of
the Zilla Mohtasibs, under Section 134 read with Third Schedule of the
NWFP Local Government Ordinance, 2001. The functions and purposes of
the Zilla Mohtasib are enumerated as follows :--
134. Zilla Mohtasib.
(1) Without prejudice to the provisions as contained
in the North-West Frontier Province end enactment
regarding Provincial Mohtasib, in every district there
may be a Zilla Mohtasib.
Reference No.2/2005
22
(2) The Zilla Mohtasib shall redress citizen’s
complaints against mal-administration of the holders of
public offices in the local governments within the
district.
Explanation
. For the purpose of this section, the
expression ‘holders of public office’ includes all
functionaries of the District Government, Tehsil
Municipal Administration, Union Administration,
Nazimeen, Naib Nazimeen, District Police Officers and
officials, members of the Councils and all officials of the
Council.
(3) All holders of public offices shall aid and assist
the Zilla Mohtasib in exercise of his functions.
(4) The Zilla Mohtasib shall hold office for a term
of four years and shall be eligible for reappointment for
a similar term.
(5) The Zilla Mohtasib may resign his office by
writing under his hand addressed to the Zilla Council
through Naib Zilla Nazim.
(6) The manner of selection, appointment, removal,
terms and conditions of service, functions, and powers of
the Zilla Mohtasib and procedures relating thereto shall
be as given in the Third Schedule.
14. The NWFP Local Government Ordinance, 2001 has constitutional
protection as its alteration, repeal or amendment, without the previous
sanction of the President, has been prohibited under Article 268 (2) read
with Sixth Schedule of the Constitution of the Islamic Republic of Pakistan.
15. A comparative study of the duties and the powers of Zilla Mohtasib
appointed under Section 134 of the NWFP Local Government Ordinance,
2001 reveals that the duties assigned to District Mohtasib appointed under
Section 17 of Hisba Bill, relating to redress the grievances of the citizens
against mal-administration by the holders of the public offices, are
identical. Therefore, Provincial Government by creating Offices of “ Zilla
Mohtasib” under the Hisba Bill is not authorized to delegislate a provision
of law having constitutional protection.
Reference No.2/2005
23
16. A cursory perusal of the laws on the establishment of the federal and
provincial offices of the Ombudsman, makes it clear that under Section
12(1) of the Hisba Bill enormous powers have been given to “Mohtasib” to
check the cases of mal-administration and implementation of its orders.
Regarding disobeying the order of “Mohtasib” in terms of Section 10(b),(c)
& (d) for non-performance of personal religious obligations by a citizen,
the “Mohtasib” is competent to punish him for contempt. He can also lodge
a complaint before a Magistrate, if there is ‘Khilaf-warzi’ of his orders,
issued by him under Section 23(1), (2), (3), (5), (6), (7), (12), (14) and (27)
of the Hisba Bill, which can entail imprisonment up to a period of six
months and fine up to Rs.2000/-. Thus, the “Mohtasib” enjoys dual powers
i.e. as an authority, exercising powers of a judicial officer, competent to
punish a person for noncompliance of his orders and at the same time, as
an investigator and prosecutor; authorized to submit complaint against a
citizen, who in his arbitrary wisdom, failed to oblige him by accepting his
orders, refraining him from or ordering him to perform certain actions,
which in Mohtasib’s view are in accordance with Islamic thoughts,
etiquettes and faith as believed by him.
17. Plurality of powers at the command of “Mohtasib,” as noted above,
distinguish him from the “Ombudsman” functioning under other laws,
which give Ombudsman an authority only to make recommendatory
directions, having no binding effect, as held in
National Bank of Pakistan
v.Wafaqi Mohtasib
(NLR 1993 CLJ 171), Tariq Majeed Chaudhry v.
Lahore Stock Exchange
(PLD 1995 Lahore 572), Pakistan International
Airlines Corporation v. Wafaqi Mohtasib
(1998 SCMR 841), East West
Insurance Company Ltd. V. Wafaqi Mohtasib
(1999 MLD 3050),
Punjab Agricultural Development and Supplies Corporation v.
Reference No.2/2005
24
Muhammad Rafiq Khan
(2002 PLC (CS) 1133), Muslim Commercial
Bank Ltd. v. Momin Khan
(2002 SCMR 958) and Nazir Ahmed Khan
v. Pakistan International Airlines Corporation
(2004 PLC (CS) 119).
18. Article 175 (3) of the Constitution mandates that judicial powers of
binding nature are not to be conferred upon the Authority exercising
Executive powers of an investigator, prosecutor, etc. Section 10 of Hisba
Bill, defines powers and duties of “Mohtasib” AND Section 12 prescribes
the mode of implementation of orders of “Mohtasib.” Section 14 gives him
powers of contempt, as are vested under Contempt of Court Act, 1976, etc.
19. It is significant to note that Section 25 had placed a restriction on
the rights of hearing. Analysis of this Section suggests that the powers of
judicial review against the orders of “Mohtasib” have been excluded
against all cannon of justice with an object to enforce broad, uncontrolled,
open and oppressive authority of “Mohtasib,” knowing well that the Courts
functioning under Civil Procedure Code and Constitution had always
exercised statutory and inherent jurisdiction to control sweeping powers of
an Authority, particularly in penal acts, when considering them vague,
arbitrary, unreasonable, etc.
20. Mr.Makhdoom Ali Khan, learned Attorney General contended that
the judicial powers are to be exercised by Courts and not by Executives like
“Mohtasib” under Hisba Bill. Such exercise of powers deny the right of
access to justice to a citizen.
[See Mehram Ali v. Federation of Pakistan (PLD
1998 SC 1445),
Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504),
Khan Asfandyar Wali v. Federation of Pakistan
(PLD 2001 SC 607)].
21. Learned counsel for Government of NWFP stressed that no judicial
powers have been conferred upon the “Mohtasib” by Hisba Bill. The
Reference No.2/2005
25
powers exercisable by “Mohtasib” are corresponding to powers of
“Wafaqi Mohtasib” and by the Mohtasibs of Provinces.
22. Section 12 of the Hisba Bill prescribes implementation powers of
“Mohtasib,” and Article 11 of the President’s Order No. 1 of 1983
Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983
[herein after referred to as “Wafaqi Mohtasib Order”] deals with the same
subject. Same is the position in Provincial laws dealing with the Offices of
Ombudsman. The Federal and Provincial “Mohtasibs” after having
considered a matter communicate their findings; (a) to consider the matter
further; (b) to modify or cancel the decision, process, recommendations,
act or omission; (c) to explain more fully the act or decision in question;
(d) to take disciplinary action against any public servant of any agency,
under the relevant laws applicable to him; (e) to dispose of the matter or
case within a specified time; (f) to take action on its findings and
recommendations to improve the working and efficiency of the agency
within a specified time; (g) to take any other step specified by the
“Mohtasib.” Whereas, under Section 12 of the Hisba Bill, “Mohtasib” has
been given power
to issue Hukam-nama [order] to the competent officer of
the department concerned for implementation and at the same time he is
authorized to take such steps as he considers necessary. On receipt of
“Hukam-nama” [order], concerned agency is bound to implement the
same, failing which the action against concerned agency or delinquent
officer under the law relating to removal from service or any other action,
including criminal and civil proceedings, shall be directed by him.
Difference between recommendation i.e. advice, proposal, suggestion,
counsel, etc. and “Hukam-nama” [order] i.e. command, direction,
instruction, etc. is well understood as per their plain dictionary meanings.
Reference No.2/2005
26
Interpretation of both these expression by following golden rules of
construction of statutes, to adhere to the ordinary meanings of the words
used, and to the grammatical construction, unless that is at variance with
the intention of the legislature, to be collected from the statute itself, or
leads to any manifest absurdity or repugnancy, in which case the language
may be varied or modified, so as to avoid such inconvenience, but no
further.”
23. Learned Attorney General explained that under the Wafaqi
Mohtasib Order, an agency has either to comply with recommendations on
receipt of communication from “Mohtasib” or to inform him the reasons
for not complying with the recommendations. But under Hisba Bill, an
agency is bound to obey the “Hukam-nama” [order] of Mohtasib,
otherwise it is to be implemented in the manner as liked by him as he has
an authority under Section 12(1) to take up such steps as he considers
expedient. He apprehended that “Mohtasib” would not be precluded to
exercise such powers, under the garb of this authority, arbitrarily and
callously for want of any check on him. He argued that it can also give rise
to corruption and corrupt practices as historically and in the recent past,
the office of Hisba had earned a bad name. In this behalf he invited
attention to the references given herein before.
24. Learned Attorney General also contended that the “Hukam-nama”
[order] of “Mohtasib” under Section 12(2) of the Hisba Bill is not confined
to the extent of an agency in respect of official mal-administration but also
is applicable to personal/individual religious rights of the citizens qua
powers of “Mohtasib” under Section 10(b), (c) and (d). Whereas, in the
Federal Mohtasib law and the laws prevailing on the subject in other
Provinces, no such “Hukam-nama” [order] of binding nature can be
Reference No.2/2005
27
issued by the “Mohtasib.” In case of non-compliance of “Hukam-nama”
[order] of “Mohtasib,” within stipulated time, the Officer of agency will
expose himself for one or more actions, on recommendations of
“Mohtasib” under the law relating to removal from service including
facing criminal proceedings, if “Mohtasib” is satisfied that he has
committed a cognizable offence and even a civil suit can also be registered
against him under Section 12(1)(c) of the Hisba Bill. Surprisingly, against
such a binding order of the Mohtasib, a right of appeal has been given to
an aggrieved person before the Executive Head of the Province i.e. Chief
Minister under Section 12(4) of the Hisba Bill. The official of the agency as
an individual, to whom binding “Hukam-nama” [order] has been given,
relating to his personal rights, could also face contempt proceedings, under
Section 14 of the Hisba Bill. It may be visualized that a binding “Hukamnama”
[order] issued by the Mohtasib, under Section 12(1) has to be
obeyed even if it is an unlawful “Hukam-nama” [order], though against
illegal orders/unlawful orders, this Court in the case of
Zahid Akhtar v.
Government of Punjab
(PLD 1995 SC 530) and Ramesh M. Udeshi v.
The State
(2005 SCMR 648), has forbidden the Government Officials to
implement such orders. Likewise, an individual having different religious
standards/values of understanding the Sharia, as per his sect, is not bound
to obey “Hukam-nama” [order] of “Mohtasib” but due to unbridled/
unfettered/arbitrary powers of “Mohtasib” he would have no option but to
obey it. Thus, such conduct of “Mohtasib” is bound to create ‘Fasad’
among different sects of Islam, particularly between Sunnis and Ahl-e-
Tashees. For exercising powers under Section 10( b) ( c) & (d) and for
implementation of “Hukam-nama” [order] under Section 12(1) of Hisba
Bill, the citizens and “Mohtasib” both are required a lot of preparation,
Reference No.2/2005
28
otherwise, it would be enough for fueling enormous sectarianism not only
in NWFP but also in other parts of the country, including a serious threat
to law and order and breaking down of constitutional apparatuses,
prevailing in the country as well. The prominent jurists had always
emphasized for adherence to rule of law acceptable to all the citizens and
no sooner a distinction is created between man to man, in exercise of wide
ranged unbalanced and un-Constitutional powers, by a particular
individual like “Mohtasib,” it will give rise to intolerance in the society as
a whole and cause to increase against each other which may endanger
peace and tranquility.
18. We are in quite agreement with the contention of learned Attorney
General that
private life, personal thoughts and the individual beliefs of
citizens cannot be allowed to be interfered with.
The above discussion
persuades us to hold that powers of passing order of judicial nature have
been conferred upon “Mohtasib,” being an Executive Officer, basically
appointed under the Hisba Bill, to inquire/investigate into the cases of maladministration
of Government Agencies as well as in respect of the
religious/personal affairs of the individuals and at the same time blocking
the powers of judicial review by the Civil/Criminal Courts, which are under
the protection of the Constitutional law. A right of appeal against a binding
“Hukam-nama” [order] of “Mohtasib” has been made available to an
Officer of agency before the Chief Minister, who being a political Head and
Chief Executive of the Province, ordinarily is not expected to give
independent decision. Strangely, against a binding “Hukam-nama” [order]
of “Mohtasib” issued by him under Section 10 ( b ) ( c ) and ( d ) a citizen
has no remedy and if he fails to obey such “Hukam-nama” [order] of
“Mohtasib,” he is liable to face contempt proceedings. The Hisba Bill to
Reference No.2/2005
29
facilitate the citizens could have defined exhaustively number of terms used
in Section 10 i.e. Islamic values etiquettes and Sharia, exhaustively, which
should have been acceptable to the Muslims of all sects, including Sunnis,
Ahl-e-Tashees, Brailvees, etc. but by using ambiguous terms of these
expressions, citizens belonging to different sects have been led into
absurdity. Admittedly, the Wafaqi Mohtasib has no authority to issue orders
of binding nature, while implementing its findings. Under Article 11(2) of
Presidential Order 1983, the agency can inform “Mohtasib” about the
action taken on his recommendations or the reasons for not complying with
the same and in any one of these situations, no action can be contemplated
against the officer of the agency.
25. It is important to note that the Federal Mohtasib can only take
action of defiance against an agency, if his recommendations are not
complied with or no reason has been given to his satisfaction for noncompliance;
otherwise he has no power to punish the officer/official of the
agency. Moreover, against the recommendations of the Mohtasib, the
aggrieved person including the complainant as well as the agency is
competent to file a representation before the President, and not before the
Prime Minister qua the Hisba Bill, whereas under Section 12 (4) of Hisba
Bill, representation is maintainable before the Chief Minister. It is not
understandable as to why powers of implementation of orders of Mohtasib,
revolve around the Executive functionaries, instead of conferring such
powers upon the Head of the Province i.e. the Governor. In the case of
Shafaatullah Qureshi v. Federation of Pakistan
(PLD 2001 SC 142) it is
held that the Office of Mohtasib has been created to redress the
grievances of the citizens; findings of the “Mohtasib” are of
recommendatory nature and not a judgment or decision; performance of
Reference No.2/2005
30
quasi judicial functions by itself does not confer an authority onto a Court;
whether an action is quasi judicial or purely executive, it depends upon the
interpretation of the rules and the law, which the authority exercises.
Similarly, in
Mehram Ali’s case (ibid), it is held that “the Courts/Tribunals
which are manned and run by Executive Authorities, without being under
the control and supervision of the High Court, in terms of Article 203 of the
Constitution, can hardly meet the mandatory requirement of the
Constitution.” Relevant portion therefrom, is reproduced herein below:--
(iii) That our Constitution recognizes only such specific
Tribunal to share judicial powers with the above Courts,
which have been specifically provided by the Constitution
itself Federal Shariat Court (Chapter 3-A of the
Constitution), Tribunals under Article 212, Election
Tribunals (Article 225). It must follow as a corollary that
any Court or Tribunal which is not founded on any of the
Articles of the Constitution cannot lawfully share judicial
power with the Courts referred to in Articles 175 and 203
of the Constitution.
(iv) That in view of Article 203 of the Constitution read with
Article 175 thereof the supervision and control over the
subordinate judiciary vests in High Courts, which is
exclusive in nature, comprehensive in extent and effective
in operation.
(v) That the hallmark of our Constitution is that it envisages
separation of the Judiciary from the Executive (which is
founded on the Islamic Judicial System) in order to
ensure independence of Judiciary and, therefore, any
Court or Tribunal which is not subject to judicial review
and administrative control of the High Court and/or the
Supreme Court does not fit in with the judicial framework
of the Constitution.
(vi) That the right of “access to justice to all” is a
fundamental right, which right cannot be exercised in the
absence of an independent judiciary providing impartial,
fair and just adjudicatory framework i.e. judicial
hierarchy. The Courts/Tribunals which are manned and
run by executive authorities without being under the
Reference No.2/2005
31
control and supervision of the High Court in terms of
Article 203 of the Constitution can hardly meet the
mandatory requirement of the Constitution.
(vii) That the independence of judiciary is inextricably linked
and connected with the process of appointment of Judges
and the security of their tenure and other terms and
conditions.
26. Above principles of law have been reiterated in
Liaqat Hussain and
Khan Asfand Yar Wali
(ibid). Relevant para from the latter judgment is
reproduced herein below :-
“192. Section 9(c) read with Section 24(d) of the NAB
Ordinance vests the power to release any person,
accused of an offence under the NAB Ordinance, in the
Chairman NAB, and that too on the basis of any
conditions as he may think fit are unwarranted. The
powers to set conditions for the release of an accused
from custody or detention is a judicial power which
ought not to be exercised except by a Court which is
established under Article 175 of the Constitution and is
subject to the supervisory jurisdiction of the High Court
in terms of Articles 202 and 203.”
27. Mr. Khalid Anwar, learned Sr. ASC for Government of NWFP
contended that under Section 14 of the Hisba Bill same powers of contempt
of Court are available to “Mohtasib” which are being exercised by the
Federal Mohtasib under Section 16 of Wafaqi Mohtasib Order, therefore,
the authority to punish for contempt of the “Mohtasib” cannot be
questioned.
28. In this behalf it may be noted that according to Section 14 of the
Hisba Bill, “Mohtasib” enjoys powers to punish for contempt, a person
who acts in a manner which under any law for the time being in force falls
within the definition of the contempt; provided that any comments, made in
good faith and in the public interest, on any act or on report of the
“Mohtasib” or his employee or representative, shall not be treated as
Reference No.2/2005
32
contempt. Whereas under Article 16(d) of the Wafaqi Mohtasib Order, the
“Mohtasib” has the same powers to punish a person for contempt as the
Supreme Court enjoys for its contempt. Under the Contempt of Court Act,
1976, inter alia, a person is said to be guilty of contempt of Court, who
disobeys or disregards any order, direction or process of a Court, which he
is legally bound to obey. Admittedly, recommendation made by the Wafaqi
Mohtasib does not enjoy the status of an order or direction, as discussed
herein-above, whereas under Section 12 (1) of the Hisba Bill, the
“Mohtasib” seeks the implementation of a “Hukam-nama” [order] of a
binding nature, therefore, its disobedience would call for action of
contempt of Court. Likewise, under Chapter X of PPC, non-compliance
with the recommendations, has not been made punishable as contempt of
Court, but disobedience to the order duly promulgated by public servant
under Section 188 PPC is punishable. In Section 12 of the Hisba Bill,
“Mohtasib” is authorized to issue directives to the competent officer of the
department concerned, to implement his “Hukam-nama” [order] and he
may take up at the same time, such steps, as he considers appropriate for
implementation of “Hukam-nama” [order] as it is of binding nature by its
implication, therefore, in exercise of these powers he can also direct to
proceed against such persons (both officers of the agency and private
citizens) under Section 188 PPC, whereas the Wafaqi Mohtasib in view of
the recommendations made by him cannot issue such type of directions.
Therefore, on account of the distinction between “Hukam-nama” [order]
of a binding nature
and recommendations of directory nature, issued by
the “Mohtasib” under the Hisba Bill and Federal Ombudsman, under
Wafaqi Mohtasib Order, respectively, the action initiated for contempt of
Court by the former would be more oppressive. Thus for these reasons, the
Reference No.2/2005
33
power of contempt of Court conferred upon the “Mohtasib” under the
Hisba Bill cannot be equated with that of the Federal Ombudsman.
29. There is yet another interesting aspect of the Hisba Bill namely as
per Section 24, the “Mohtasib” with all his staff including Hisba Force
shall be deemed to be a Public Servant within the meaning of Section 21 of
the Pakistan Penal Code, therefore, in such capacity, after having passed a
binding order in exercise of the powers, conferred upon him, under Section
10 with the aid and assistance of Hisba Police, which is provided to him
according to Section 26 of the Act to conduct his affairs, he himself would
be the strongest functionary to ensure the implementation of his orders,
otherwise, any one either being the officer of the agency or an individual
would face the extreme consequences, as discussed herein before.
30. By making available Hisba Police to the Mohtasib, another
distinction has been created in between the Hisba Bill and the Wafaqi
Mohtasib Order. The object of strengthening the arms of the “Mohtasib,”
under the Hisba Bill, is nothing but to implement his “Hukam-nama”
[order] per force, if need be.
31. Learned counsel for the Government of NWFP contended that under
Section 2 (h) of the Hisba Bill, definition of Hisba Police has been
provided, according to which a police force will be deputed to work for the
purposes of this Act. According to him the “Mohtasib” would be exercising
the supervisory role and that “Mohtasib” will not go on roaming missions,
catching hold of an axe, prosecuting and sending people to jail. He stated
that according to his instructions, the Provincial Assembly believes not to
arm any one with a general warrant to go and arrest to whom he pleased. It
was pointed out to learned counsel that such assurances do not seem to be
in consonance with the language as used in the Hisba Bill itself. Besides,
Reference No.2/2005
34
the questions posed by the President in this reference cannot be answered
in view of instructions and assurances, whatsoever that may have been
received by him from the NWFP Government.
32. On the other hand, learned Attorney General contended that as per
Section 10 in general and Section 23 in particular of Hisba Bill, there is
great assortment of activity and due to which the “Mohtasib” is authorized
to pickup any one and then apply the provisions or put the investigator to
work to pin such provision. According to him “Mohtasib” can virtually
pickup a person to whom he may not like or select a group of unpopular
persons and then look for their offence and that if such powers are allowed
to continue to be exercised by an Executive Authority, there would be a
great apprehension and danger of abuse of his powers.
33. It may be recalled that before the separation of Judiciary from the
Executive, such powers were used by the Police as well as Executive
Magistrates and in this conduct this Court had observed in the case of
Government of Balochistan v. Azizullah Memon
(PLD 1993 SC 341)
that “one of the modes for blocking the road of free access to justice is to
appoint or handover the adjudication of rights and trial of offence in the
hands of the Executive Officers.” Ultimately, it held that “such provision
incorporated in such like legislation shall be declared to be void being in
conflict with Articles 9, 25, 175 and 203 of the Constitution.” Thus,
following the dictum laid down therein, we are of the opinion that the
“Mohtasib” under Hisba Bill has been authorized to issue binding
“Hukam-nama” [order] to implement the result of his investigation to the
officer of the agency, relating to the Government affairs as well as to
individuals in respect of their personal religious rights and due to noncompliance
of the same, they would have to face penal consequences,
Reference No.2/2005
35
details of which have been mentioned herein before. Thus, an Executive
Authority, by issuing judicial orders of binding nature violates the
fundamental right of the citizens enshrined in Articles 9, 25 read with
Article 175 and 203 of the Constitution. The “Mohtasib” had not been
appointed in accordance with the provision of Article 175 (1) and (2) of the
Constitution, therefore, any order of penal nature passed by him against an
agency or individual, would be in violation of the right of access to justice
and would also tantamount to setting up a parallel judicial system,
recognition whereof is not possible within the present constitutional
judicial system prevailing in the country.
34. Learned Attorney General contended that the duty of Amar-bil-
Maroof and Nahi-unal-Munkir, however, must be performed by the State in
accordance with the Constitutional norms and the fundamental rights of the
citizens, thus there is no room for the creation of an office of Hisba with
penal powers of “Mohtasib” to implement his
“Hukam-nama” [order].
The “Mohtasib” cannot be vested with the authority to decide in his
discretion, whether an act is inconsistent with Islamic morals and etiquettes
or not. To substantiate his arguments he referred to :---
1.
“A brief on the Hisba Bill” by Javed Ahmed Ghamedi.
2.
“Commanding Right and forbidding wrong" by Michael Cook.
(relevant at pages 186, 187, 474, 490, 491, 509, 510, 522-524)
3.
“Islami Riyasat Main Mohtasib Ka Kirdar” by Dr. M.S. Naz.
(relevant at pages 212, 279).
4.
“Three Year Report” of Council of Islamic Ideology (1974-1977)
(relevant pages 220, 222, 224, 225, 230, 231, 233, 236, 238, 242).
35. On the other hand learned counsel for the NWFP Government
contended that the Hisba Bill had focused mainly on mal-administration in
government department/agency, and incidentally in the field of personal
conduct on the basis of what is contained in the preamble of the
Reference No.2/2005
36
Constitution of Pakistan. He further stated that Islam is a religion, both for
the individual and the society as a whole, being a complete “Deen” and a
complete code of life. Therefore, every law promulgated for an individual
or for Government Agencies must be in accordance with Islam. He read
the definition of “Amar-bil-Maroof-wa-Nahi-unal-Munkir,” under Section
2(b) and 2 (k) of the Hisba Bill and stated that as per this definition no
powers are being conferred upon the “Mohtasib” except that as per the
Quranic obligation, he has to fulfil the obligation of enjoining telling
people to do the good and forbid wrong, and to achieve the object, Hisba
Police has been deputed with the “Mohtasib” under the law to go and
enquire, therefore, the role of “Mohtasib” is “supervisory enquiry role to
ask question.” He read out different parts of the Hisba Bill to substantiate
that the Provincial Assembly has not promulgated it to violate the
fundamental rights of the individuals and stated that in view of the simple
provisions of the Bill this Court is not bound to answer the reference in
affirmative.
36. Islamic jurists are unanimous on the point that except “Sallat” and
“Zakat” no other religious obligation stipulated by Islam can be enforced
by the State. There is also unanimity that the “Zakat” obligation was
seriously enforced through State coercion by Hazrat Abu Bakar and for
“Sallat” the only way is through ‘Taleem, Tableegh, Talkeen and
Targheeb.’ Article 2 of the Constitution provides that Islam shall be the
State religion of Pakistan. Article 227 of the Constitution stipulates that all
existing laws shall be brought in conformity with the Injunctions of Islam as
laid down in Holly Quran and Sunnah and no law shall be enacted, which
is repugnant to such injunctions. Explanation attached thereto, being very
important lays down that in the application of this clause to the personal
Reference No.2/2005
37
law of any Muslim sect, the expression ‘Quran and Sunnah’ shall mean, the
‘Quran and Sunnah’ as interpreted by that sect. Its sub-Article (2) says that
the effect shall be given to the provisions of clause (1) only in the manner
provided in that part and according to sub-Article (3) nothing in that part
shall affect the personal laws of non-Muslim citizens or their status as
citizens.
37. The explanation to Article 227 of the Constitution defining the
expression ‘Quran and Sunnah’ was added by Constitution (Third
Amendment) Order, 1980 (P.O. 14 of 1980). Addition of this explanation
was considered necessary as there are more than one sect in Islam like
Sunnis and Ahl-e-Tashee, etc. It is important to note that there had been
remarkable differences between various schools of thought even on
common interpretation, like what is the definition of Muslim. Learned
Attorney General had referred to report of the Court of Enquiry,
constituted under Punjab Act (II) 1954, to inquire into the Punjab
Disturbances of 1953 and stated that Ulemas’ had no unanimity before the
Court of inquiry on the definition of ‘Muslim,’ because, everyone being a
Muslim has his own interpretation of Quran and Sunnah. Therefore,
Mohtasib, under the Hisba Bill cannot be empowered to determine in his
discretion whether any act is consistent with Islamic moral values and
etiquettes or not. A perusal of Section 10 clauses (Bey )(Jeem) and (Dal),
shows that the “Mohtasib” has been authorized to protect/watch the
Islamic values and etiquettes at the provincial level; watch the media
established by Government or working under the administrative control of
the Government to ensure that its publications are useful to the purpose of
Islamic values; forbid persons, agencies and authorities working under the
administrative control of Government to act against Sharia and to guide
Reference No.2/2005
38
them to good governance. Similarly, his powers and duties have been
extended by conferring upon him special powers, under Section 23 of the
Hisba Bill, which includes
(1) to monitor adherence of moral values of
Islam at public places,
(2) to discourage ‘Tabdhir’ or extravagance,
particularly, at the time of marriages and other family functions;
(3) to
follow code of Islam in giving dowry;
(5) to monitor adherence of Islamic
values and its respect and regard at the times of ‘Iftar’ and ‘Traveeh’;
(6)
to discourage entertainment shows and business transactions at the
times of ‘Eidain’ and ‘Jumma'hs’ prayers around mosque, where such
prayers are being held;
(7) to remove causes of dereliction in performance
and proper arrangement of ‘Eidain’ and ‘Jumm’ah’ prayers;
(12) to
observe decorum of Islam at the time of ‘Azan’ and ‘Fard’ prayer;
(14) to
discourage un-Islamic and inhuman customs; and
(27) to perform any
other function or functions, which the Provincial Mohtasib determines from
time to time in consultation with the Advisory Council. Defiance (Khilafwarzi)
of the order of the Mohtasib, in the performance of his duties under
Section 23 of the Bill has been made a non-cognizable offence punishable
with an imprisonment, for a term up to six months and a fine up to
Rs.2000/- as per Section 28 of the Hisba Bill and cognizance will be taken
on the complaint of “Mohtasib” or his authorized representative. No Court
shall take cognizance of an offence under this Section except on a
complaint in writing to “Mohtasib” or its authorized representative and as
per sub-Section (2), the offence under Section (1) shall be tried by the
Court in accordance with Code of Criminal Procedure, 1898 and the order
shall be appealable. It is quite interesting to note that in respect of most of
the personal rights of the individual Muslims, an offence has been created,
if he/they had done “Khilaf-warzi” of the order passed by him.
Reference No.2/2005
39
38. Learned Attorney General contended that the provisions of Sections
10, 12, 23 and 28 of the Hisba Bill are vague in nature and particularly,
being penal, are liable to be declared un-constitutional. He further stated
that such penal provisions must explicitly define the conduct of a criminal
and unless it clearly and categorically defines its boundaries, it would be
treated as an arbitrary enactment, because the citizens against whom a
penal action is proposed, has no notice that on account of what type of
conduct he is being charged and has been held responsible for penal
consequences. Reference is made to
Mehram Ali (ibid), Jamat-i-Islami
Pakistan v. Federation of Pakistan
(PLD 2000 SC 111), Kartar Singh v.
State of Punjab
([1994] 3 SCC 569) Dick Gragory v. City of Chicago [22
L. Ed. 2d 134],
Margarete Papachristou v. City of Jacksonville [31 L.
Ed. 2d 110].
39. He further contended that the State can control the fundamental
rights by imposing reasonable restriction, in order to survive the test of
Constitutional scrutiny, as it has been held in the case of
Saiyyid Abul A’la
Maudoodi v. Government of West Pakistan
(PLD 1964 SC 673),
Universal Tobacco Co. v. Pakistan Tobacco Board
(1998 CLC 1666),
Arshad Mehmood v. Government of Punjab
(PLD 2005 SC 193), R.
v. Chaulk
[1990] 3 SCR 1303 (Canada)], Article 26 and the Employment
Equality Bill 1996
[1997] 2 IR 321], Article 26 and the Planning and
Development Bill 1999
[2000 (2) IR 321], Treatise on Constitutional Law
by Rotunda [3
rd Edition Vol. IV 263-264], Coates v. Cincinnati [29 L.Ed.
2d 214],
Kunz v. New York [95 L. Ed. 280].
40. Mr. Khalid Anwar, learned counsel for Government of NWFP
contended:-
a)
That the “Mohtasib” under the ‘Hisba Bill’ is
being appointed keeping in view the concept of
Reference No.2/2005
40
accountability, therefore, office of the
“Mohtasib” is indeed integral to Islam.
He stated that the first “Mohtasib” was the Holy
Prophet (PBUH) himself. He quoted that “the
Holy Prophet (PBUH) checked the market and
found that in a heap of corn, the wet corn had
been placed under the dry corn; he said “he who
deceives is not from me i.e. my class.”
b)
That this reference has been mainly filed, as per
its contents, because in ‘Hisba Bill’ NWFP
Assembly has not taken into consideration the
recommendations of the CII. According to him a
perusal of the report indicates that no
recommendations were made in accordance with
‘Sharia.’
c)
That the Hisba Bill is strictly as per the final
report of CII, published in 1996 and this report
has not been brought before the Court by the
Federation intentionally.
d)
That the Hisba Bill is not unconstitutional,
vague and is not a penal law. According to him,
it does not suggest any criminal action and the
powers have only been given to “Mohtasib” to
educate the general public to spend their lives
according to injunction of Islam and he has not
been authorized to send a person into jail.
However, he admitted that only those citizens,
who commit defiance of the “Mohtasib” order
will be liable to prosecution under Section 28 of
the Hisba Bill. He stressed that simple
disobedience would not make a citizen liable to
be punished.
e)
That the framers of Hisba Bill have not acted
unconstitutionally by leaving a number of key
Reference No.2/2005
41
concepts undefined, particularly as these terms
are incapable of precise definition. According
to him some degree of vagueness if inevitable,
particularly with respect to Islamic issues, as
Islam is like a vast ocean; those standing on its
shore cannot even guess its depth and due to this
reason, the framers of the Constitution
deliberately did not even define Muslim
exhaustively.
f)
That in the modern countries, like United
Kingdom, general laws are being framed for
anti-social behaviour. He referred to Anti-Social
Behviour Order Law.
g)
That the Hisba Bill is not an unreasonable
restriction on fundamental rights. Legislature
can make laws, which can place restriction upon
personal matters. He quoted example of Muslim
Family Laws Ordinance 1961, which controls
the right of second marriage of a Muslim.
h)
That the Hisba Bill is not discriminatory because
“Mohtasib” will only decide issues according to
the belief of that particular sect. He quoted an
example that if “Mohtasib” goes and inquires
from a particular individual as to why he is not
saying his Zohar prayer; that person may then
respond by saying that he belongs to Fiqa Jafria
and he will say his “Zoharain” prayer.
i)
That the “Mohtasib” will not be exercising
judicial powers as he will only seek to enforce
laws already on the books. For example if an
FIR is not being registered, a citizen can
approach to the “Mohtasib” who will then direct
the SHO to register the FIR. “Mohtasib” can
Reference No.2/2005
42
only ask Police to act expeditiously and to fulfil
its duties; it cannot order them to arrest people.
j)
That the “Mohtasib” has no power with regard
to private media organizations.
41. First of all it may be noted that the recommendations of CII, dated
6
th September 2004, were compiled/prepared by one of the members, i.e.
Justice (R) Haziq-ul-Khairi. This report was considered by the Council in
its 154
th meeting, held on 12th/13th August 2004, and finalized after
thorough consideration, wherein CII strongly advised against the
enactment of the proposed legislation. In the report, it was also notified
that the draft Hisba Bill has violated a number of constitutional provisions
and was capable of being exploited for political ends. Reference in
particular is required to be made to the following para of the above
report:----
The reference of above para is sufficient to counter the arguments of
learned counsel about non-expressing of opinion by the CII in accordance
with Article 230 of the Constitution.
42. It is surprising to note that learned counsel for Government of
NWFP read some portion from previous report including the final report of
1996 of CII, wherein general recommendations on proposed draft of
legislation were made and finally in para- 30, the following five measures
were suggested.
Reference No.2/2005
43
i) The institution of Hisba will be established on the pattern
of Ombudsman by an Act of Parliament or by the order of
the President.
ii) The laws relating to the matters and functions under the
jurisdiction of the Hisba will be properly amended to
facilitate the working of this Institution.
iii) For the education and guidance of the officials,
appointed for the purpose of Hisba, a comprehensive
guide book must be compiled and published, preferably
by the Islamic Research Institution.
iv) For training courses for the officials to be appointed for
this purpose, must be planned and conducted preferably
by the Sharia Academy International Islamic University.
v) Courses on the subject of Hasab must be included in
Islamic Studies, Law Colleges, Political Science and
Civics syllabi and curricula.
43. It is important to note that in 2001, the Ministry of Religious Affairs
referred to CII a proposed “Draft Law for the Performance of ‘Sallat’,
Amar-bil-Maroof-wa-Nahi-unal-Munkir, (Establishment of Hisba),
Ordinance 2000. This draft was examined by CII in its Annual Report
2000-2001 and submitted its opinion as follows:--
i) The Council recommended that the difference of
doctrine among the various Muslim Schools of thoughts
must be recognized and the views of one school must not
be imposed on others.
ii) Hisba Officials must work on voluntary basis.
iii) Before appointment the Hisba Officials must be properly
trained. Necessary training courses must be initiated for
this purpose.
iv) The number of Ulemas’ in the Hisba Board must be
increased in order to ensure representations of the
various schools of thoughts.
v) Balance of power and authority among the various
officials must be clearly maintained.
vi) The law should be clear about the offences and
punishments.
vii) The Ordinance is not clear about Hisba Officials; in
some clauses they are defined as volunteers, not
receiving any salaries and in others they are designated
as public officers.
The above opinion clearly suggests that emphases of the CII was to make
the law non-sectarian, free from ambiguities and conflict with other laws.
Similarly, in the report dated 6
th September 2004, the CII again stressed,
Reference No.2/2005
44
impliedly and expressly on the clarity, non-sectarian and non-conflictual
nature of law on Hisba. The NWFP Government instead of showing haste
might have studied in depth, all the reports of CII before moving the Bill in
Assembly. However, the arguments raised by learned counsel for
Government of NWFP that CII in its report dated 6
th September 2004 had
not made recommendations in terms of Article 230 of the Constitution,
seems to be unfounded in view of the above discussion.
44. A perusal of clauses of Section 23, reproduced herein above, of the
Hisba Bill, clearly suggest that the Bill is a penal statute. Language
employed therein indicates that if citizens disobey the order of the
Mohtasib, particularly passed with reference to the clauses of Section 23,
noted herein-above, he/they will make him/themselves liable for
prosecution.
45. It is important to note that in English translation, word ‘defiance’
has been used in Section 28 of Hisba Bill, whereas in its Urdu text, the
word ‘Khilaf-warzi” i.e. disobedience has been used. As per “
Feroze Sons
Urdu-English Dictionary”
(page 333) “Khilaf-warzi karna” means ‘to
oppose,’ ‘to disobey’ and ‘to misbehave.’ Thus, reading the provisions of
Section 10 clauses (b),(c) and (d) and Section 23 clauses (1), (2), (3), (5),
(6), (7), (12), (14), particularly (27), disobedience (Khilaf-warzi) of the
order of “Mohtasib” by a citizen entails penal consequences. Admittedly, in
Section 10 (b), (c) and (d), expressions ‘Islamic values and etiquettes’, and
‘Sharia’ have been used, but without any definition. Similarly, ‘Khilafwarzi’
of the order of Mohtasib, regarding clauses incorporated in Section
23, no definition has been provided. Likewise, any other issue, which would
fall within the realm of ‘Amar-bil-Maroof-wa-Nahi-unal-Munkir’ would be
Reference No.2/2005
45
dealt with under their open ended definitions as per Section 2(b) and 2(k)
of Hisba Bill.
46. Essentially, discretionary powers have been conferred upon
“Mohtasib” to create a new offence with the consultation of Provincial
Advisory Council or whatever the case may be, in exercise of powers under
Section 23(27) of the Hisba Bill. The “Mohtasib” being an Executive
Officer under Hisba Bill has been authorized to lodge a report before the
Court, either himself or through his authorized representative against the
citizen, who is guilty of “Khilaf-warzi” (disobedience) of his orders, passed
under any of the clauses of Section 23 of the Hisba Bill, referred to herein
before. In respect of some of the items noted in Section 23 of the Hisba Bill,
substantive laws already exist which have been framed either by the
Federation of Pakistan or by Provincial Governments, detail of which is
mentioned herein below:--
Laws already in field: Grounds of challenge
Section 23. Special
Powers of Mohtasib.—
Without prejudice to the
powers conferred by
section 10, and along
with the duties of amar
bil maroof and nahi unal
munkir the Mohtasib
shall have the following
powers:
- -
(i)
To monitor adherence
of moral values of Islam
at public places;
Pakistan Penal Code,
1860 (Sections 295-B,
295-C, 296, 298, 298-A
& 298-B).
Prevention of Gambling
Act, 1977.
NWFP Prevention of
Gambling Ordinance,
1978.
West Pakistan
Prohibition of Opium
Smoking Ordinance,
1960.
Freedom of Assembly
Vague
Overbroad
No definite legislative
guidelines
Reference No.2/2005
46
Ehteram-e-Ramazan
Ordinance, 1981.
(ii)
To discourage
exhibition of
extravagance,
particularly at the time of
marriages and other
family functions;
NWFP (Prohibition of
Firing and use of
Explosive Substance at
Marriages and other
Ceremonies) Act, 1988.
Marriage Functions
(Prohibition of
Ostentatious Display
and Wasteful Expenses)
Ordinance 2000.
Privacy
Freedom of Assembly
Vague
(iii)
To follow code of
Islam in giving dowry;
Dowry and Bridal Gifts
(Restriction) Act, 1976.
Privacy
Vague
Over broad
Suffers from excessive
delegation
(v)
To monitor adherence
of Islamic values and its
respect and regard at the
times of iftar and taravih;
Ehteram-e-Ramazan
Ordinance, 1981.
Freedom of religion
Excessive
(vi)
To discourage
entertainment shows and
business transactions at
the time of Eidain and
Jummah prayers around
mosques where such
prayers are being held;
-
Freedom of trade and
business
Vague
Suffers from excessive
delegation
(vii)
To remove causes of
dereliction in
performance and proper
arrangement of Eidain
and Jummah prayers;
-
Freedom of religion
Lacks specificity
Lacks proportion
(xii)
To observe decorum
of Islam at the time of
Azan and Fard prayers;
-
Freedom of Assembly
Freedom of religion
Vague
Excessive
Suffers from excessive
delegation
(xiv)
To discourage un-
Islamic and inhuman
customs;
Code of Criminal
Procedure, 1898
(Sections 156A, 156B,
401)
Pakistan Penal Code
1860 (Sections 310,
310A)
Denial of due process
Violative of right to life,
privacy, trade, business
and profession, free
speech, religion and
equality.
Vague
Overbroad
Suffers from excessive
delegation
Disproportionate
(xxvii)
To perform any
other functions which the
Provincial Mohtasib
determines from time to
-
Vague
Overbroad
Suffers from excessive
delegation
Reference No.2/2005
47
time in consultation with
the Advisory Council;
47. The perusal of above comparative table suggests that a citizen shall
not be prosecuted because of non-violation of the codified penal offences
but on account of ‘Khilaf-warzi’ of the order of “Mohtasib,” although with
reference to their respective schools of thoughts, they are rightly following
the Islamic values and Sharia. Besides, in respect of some of the provisions
of the Constitution, they have their own personal laws, according to
Muslim Sharia but the “Mohtasib” by curtailing their such rights, shall
interfere in their personal liberties as well like under Section 23 clause (1),
every Muslim according to his own school of thoughts, has his own moral
values.
48. Likewise, the “Mohtasib” would have direct interference/access in
the family functions in the garb of discouraging ‘Tabdhir’ or extravagance
at the time of marriages and other family functions. Such exercise of the
powers would not only interfere in their personal life, freedom of assembly,
liberty, dignity and privacy, which is strictly prohibited in Islam. In this
behalf reference may be made to the following passage from
“Commanding Right and Forbidding Wrong in the Islamic Thought”
by
Michael Cook :---
“Less directly related to the spectrum of views set out
above is concern, with what we would call respect for
privacy. There is no single category that corresponds to
this in Islamic terms; rather, there are three basic,
mutually supporting principles at work here. The first is
the prohibition of spying and prying; this is enshrined in
Q49:12 The second is the duty not to divulge what would
dishonour a Muslim; this is laid down in a Prophetic
tradition. The third is the sanctity of a home, which rests
on Koranic stipulations regarding the way one should
enter the homes of others (Q2:189, Q24:27). All these
Reference No.2/2005
48
values are strongly reflected in the materials, we are
concerned in this chapter.
The prohibition of spying comes into play when
Ibn Masud is asked about a man whose beard drips with
wine, and responds that God has forbidden spying
(Tajassus); we can take action, he says, only if the offence
is out in the open (in yazhar lana shay), which is perhaps
to say that we must actually see the man drinking.
The duty not to divulge finds expression in an
anecdote about the companion, Uqba ibn Amir al-Juhani
(d 58/677f), who settled in Egypt and was Muawiya ‘s
Governor there in 44-7/665-7. His Secretary, Dukhayn
al-Hajri, explained to him that he had neighbours who
drank wine and proposed to summon the police (shurat)
to arrest them. Uqba told him not to do this, but rather to
counsel and threaten them (verbally). He did so, but to no
effect; so he again proposed to call in the Police. Uqba
once more told him not to, and quoted a tradition he had
heard from the Prophet (PBUH): who ever keeps hidden
what would disgrace a believer (man stara mu’minan), it
is as though he had restored a buried baby girl (Mawuda)
to life from her tomb. The sanctity of the home is at the
center of an exchange which takes place in Basra
between a certain Abu l-Rabi al Sufi and Sufyan al-
Thawri regarding the activities of what I take to be the
officially appointed censors (Mohtasiba): ABU L-RABI:
Abu Abdallah! when I’ m with these censors, we go into
the homes of these vile people, (Khabithin) clambering
over the walls. SUFYAN: Don’t they have door? ABU LRABI:
Well yes, but we rush in so they don’t escape.
SUFYAN condemns this misconduct in no uncertain
terms, and one of those present unkindly asks: Who let
him in here. …………”
49. For discouraging exhibition of extravagance at the time of marriage
and other family functions, there are already two laws, as it has been
pointed out in the above comparative chart. Out of them, one is Federal
and the other is Provincial. This Court, in the case of
Muhammad
Siddique v. Government of Pakistan
(PLD 2005 SC 1), had maintained
Marriage Functions (Prohibition of Ostentatious Displays and Wasteful
Reference No.2/2005
49
Expenses) Ordinance 2000 (II of 2000). As per this Ordinance, lawgivers
had defined criminality for violation of the relevant provisions of the
Ordinance and no one can be prosecuted unless the case of such individual
falls within the defined boundaries of the law. It being explicit, elaborate
and well defined, is in force throughout the country including the NWFP.
Thus, it is held that any action taken in this behalf by the Mohtasib, would
violate the provisions of Articles 9, 14 and 16 of the Constitution.
50. For ‘Khilaf-warzi’ (disobedience) of the order of Mohtasib in not
following the code of Islam in giving dowry under Section 23 (3) of the
Hisba Bill, a citizen can be prosecuted, though, already there are defined
provisions of law on this subject, details of which have been given in the
above chart. The access of “Mohtasib” in such private affairs of an
individual, without giving him notice or defining the boundaries of the
violation of such penal provisions, would tantamount to denying liberty,
dignity and privacy of fundamental rights enshrined under Articles 9 and
14 of the Constitution by means of a vague, overbroad and excessive
legislation because a citizen will not be liable for violating the laws
already on the subject but for doing “Khilaf-warzi” (defiance) of
Mohtasib’s order.
51. A citizen can be held liable for “Khilaf-warzi” (defiance) of the
orders of “Mohtasib” purportedly passed by him during watching Islamic
values in his own perspective at the time of ‘Iftar’ and ‘Traveeh’ within
mischief of Section 23(5) of Hisba Bill. A perusal of above table would
show that two laws are already available on the subject which lay down
parameters for taking action against a citizen, who violates the law out of
any of them but the Mohtasib by passing any “Hukam-nana” [order] can
hold any citizen for ‘Khilaf-warzi” i.e. disobedience of the same. Said
Reference No.2/2005
50
provision of law is not only vague but also violates right of freedom of
religion of citizen under Article 20. It is a fact that different sects of
Muslims have got separate values and etiquettes for the “Ehteram-e-
Ramzan,” inasmuch as, timing of ‘Iftar’ among ‘Sunnis’ and ‘Ahl-e-
Tashee’ are different from each other. Similarly, there is no unanimity that
what would be the number of ‘Rakats’ of ‘Traveehs’ and the interference by
the “Mohtasib” would deny right guaranteed to the citizen under Article 20
of the Constitution on the basis of excessive delegation of powers
52. Under Section 23 (6) of the Hisba Bill, “Mohtasib” has been
allowed to discourage entertainment shows and business transactions at
the time of Eid prayer and Jumma prayer around Eidgah and Jamaa
Mosques. In NWFP there are provisions of law on this subject incorporated
in NWFP Local Government Ordinance 2001. The business of a person
cannot be controlled/curtailed except by imposing reasonable restrictions
in accordance with law, because it is a matter of common observance that
on the occasion of prayers of Eidain and Jumma, people do small
businesses like selling balloons, sweets etc, to earn their livelihood,
particularly they carry on their business when such congregations are over
and people start returning home and this practice is going on since
centuries. Curtailment of rights of citizens in such manner would negate
right of freedom of trade and business according to Article 18 of the
Constitution, by means of a vague legislation which suffers from excessive
delegation.
53. Under Section 23 (7) “Mohtasib” is authorized to remove causes of
dereliction in performance and proper arrangements of Eidain and Jumma
prayers. Offering of prayer or “Sallat,” again is a personal obligation on
an individual being the Haqook Allah. Religiously the “Mohtasib” is not
Reference No.2/2005
51
authorized to check negligence/disregard of a person who has abandoned
“Sallat” for one or the other reason. Allowing such interference by
Mohtasib would deny the right of freedom to profess religion to an
individual. The CII in 1978-79 had extensively considered this issue and
opinioned that as far as “Fard Namaz” is concerned, if it is not offered,
there should not be any penal consequences. The following eminent Islamic
jurists have expressed their thoughts in the above report of CII:-
Mr. Justice Muhammad Gul:-
There can be no gain
saying the fact that ( ) [Sallat] is the foremost among
the injunctions of Islam and yet the fact remains that the
Holy Quran has not prescribed any punishment for its nonobservance
although it is replete with the stern warnings
about the chastisement both here and herein after,
resulting from its non-observance. This is in sharp contrast
with the punishment prescribed for crimes, directly
affecting the orderly existence of society e.g. murder,
causing hurt, adultery, fornication, perjury, etc.
Historically too, it is not controverted that the Holy
Prophet (PBUH) the first Four Caliphs of Islam, while they
exhorted the faithfuls to be steadfast in the observance of
( ) [Sallat] its non-observance was not made a penal
offence. Even after the Islamic State was firmly established
and its boundaries had spread far and wide: any laxity or
failure in observance of ( ) [Sallat] was not made a
penal offence; although it was never doubted that it was
quintessence of Islam.
Mr.Justice (Rtd.) Kadir Nawaz Awan:-
It is true that
Namaz is one of the five pillars: It is also true that many
Ayats in Qur’an Pak refer to its strict observance and
finally that we Muslims do not offer Namaz regularly.
Quran Sharif does not lay down any punishment for its
non-performance. Accordingly, no authority can lay down
any kind of punishment for its non-performance as it
amounts to sin and not an offence.
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52
Mr. Justice Muhammad Afzal Cheema:-
I have not
been able to endorse the proposed legislation of the NWFP
Government for converting into an offence an act of
omission to offer five time prayers. The object, namely to
ensure regular offering of prayers is no doubt very salutary
but the proposed means of achievement are wholly
unwarranted and impracticable. There can be hardly any
doubt as to the physical and spiritual benefit of Namaz on
which great emphasise has been laid in the Holy Qur’an,
the offering of prayers is a personal affair between man
and his creator. If offered conscientiously it changes the
whole outlook of a man and is perhaps the best kind of
worship aimed at self reform and purification which is a
life long process.
The best mode of inculcation of Namaz is by
training, persuasion and practical demonstration which
should start from childhood and should be followed up into
schools and colleges.
Dr. Moinuddin Baqai:-
As other members of the Council
of Islamic Ideology have opined, Quran and Sunnah and
Islamic jurisprudence do not specify non-observance of
prayer as an offence, for which an Islamic State should
specify worldly punishment. Punishment is provided for
offence which violates Haquk-ul-Ibad ( ) or which
results in the disruption of social order
.
Dr. Miss. Kaniz Yousuf:--
I am in agreement with the
opinion expressed by Mr. Justice Muhammad Gul on the
subject. Islam enjoins two types of obligations upon
Muslims. Haquk Allah and Haquq al-Ibad. Offering of
prayers is Haquk Allah and only Allah can punish in this
case. No punishment is imposed on Muslim for laxity or
failure in the observance of ‘Salat’ in terms of
Fiqhah………………………………..
.
Dr. Prof. Shamim Akhtar
:--- Neither in the Qur’an nor
in the hadith has any punishment been sanctioned against
non-observance of prayers as in case of penal offences
such as theft, murder, adultery, fornication, etc. To my
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53
knowledge there is no evidence in the early history of Islam
to the effect that the same has been penalized by law or fait
either by the Prophet (PBUH) or by the pious Caliphs or
their successors. This is not to say however, that no odium
was attached to the one who failed to observe prayers……
……………………………………………………………………
………There developed in Islamic State the institution of
Mohtasib, who was entrusted with the enforcement of
“Maruf” (law) and prevention of “Munkir” (illegality). He
took administrative action to facilitate public welfare and
to curb the vices and social evils. The official duties of
Mohtasib were varied, ranging from the checking of
weights and measures, regulation of traffic on the ferries,
demolition of dilapidated buildings, to prevention of
cruelty to animals and of undue chastisement of students by
teachers etc. He could also order the holding of
congregational prayer and admonish those who habitually
abstained from prayers but was not permitted to interfere
with the beliefs and rituals of Muslims belonging to
denomination other than his own.
It may be pointed out that these matters fell outside
the jurisdiction of judicial officers, Qazis and was the
responsibility of Muhtasib, who treated them as
administrative problems. As for the purposed legislation,
while it is laudable to make sustained and practical efforts
to induce the Muslims to observe prayers one fails to
understand why would non-observance be declared a penal
offence when the Quran and Sunnah and precedents of
pious Caliphate have not done so.
………….In my opinion, as by force making people to pray
would not serve such of its purpose, it is not advisable to
make this a cognizable offence and to prescribe any
punishment by legislation for this purpose. All that we can
do is to adopt measures of persuasion and exhortation for
those who were not regular in their prayers. We may
exercise moral pressure, arrange public lectures and
publish light literature to preach and propagate the
significance and role of prayer and its importance in the
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54
life of an individual and in Muslim Society. We may utilize
the mass media for this purpose.
Maulana Ehtesham-ul-Haq Thanvi:---
54. In view of above consensus, the arguments of learned counsel for
Government of NWFP, become redundant that Hisba Bill is in accordance
with Islam. If the proposed legislation is accepted and is made into law,
then a citizen who is held responsible for causing dereliction shall be liable
to punishment for six months on the “Hukam-nama” [order] of
“Mohtasib” by a Magistrate under Section 28 of the Hisba Bill. Besides,
there is no provision of the Sharia, which mandates for the imposition of
penalties for vague offences. However, if any provision of Sharia has
defined relevant offence, like Hadood laws, penalties can be imposed.
Reference No.2/2005
55
55. The scheme of various sub-Sections of Section 23 indicates that the
“Mohtasib” is empowered to straightaway lodge complaints either himself
or through his representative to the Magistrate for ‘Khilaf-warzi’ of his
order, without providing opportunity of hearing, against a citizen, despite
that this Court has held in a number of cases that “the principles of the
natural justice are in accordance with Islam and cannot be avoided.”
[see
Pakistan Vs. Public at Large
(PLD 1987 SC 304) The Province of Punjab v. National
Industrial Cooperative Credit Corporation
(2000 SCMR 567)].
56. Learned counsel for NWFP contended that legislature can make
laws which intrude upon personal matters of citizens as under Muslim
Family Laws Ordinance, 1961, right to a second marriage has been
controlled.
57. Argument raised by him seems to be unfounded. First of all it may be
seen that learned Attorney General had not stated that no law can be made
which impinges upon a private domain but his argument was that no
unreasonable and vague law can be made. Besides, if in any specific law,
private rights of the individual have been curtailed, such law has not been
upheld by the Court if it violates any Constitutional provision. It means that
any law dealing in any manner with fundamental rights must be upheld,
irrespective of the fact that it is vague and overbroad and suffers from
excessive delegation.
58. “Mohtasib” under Section 23(12) of the Hisba Bill, in exercise of
additional powers conferred upon him has been empowered to observe
decorum of Islam at the time of “Azan” and “Fard” prayer. A Muslim,
having different school of thought from that of “Mohtasib” cannot be
compelled to observe such decorum of Islam at the time of “Azan” and
“Fard” prayer, which are not recognized by his faith, therefore,
interference by the Mohtasib in such personal religious affairs of an
Reference No.2/2005
56
individual would tantamount to denying a fundamental right of freedom of
Assembly and freedom to profess religion and to manage religious
institution. The Hisba Bill has no detail of the manner, in which
“Mohtasib” would observe decorum of Islam of the Muslim, belonging to
different school of thought, therefore, this provision is not only vague but
had conferred excess jurisdiction upon the “Mohtasib” and “Khilaf-warzi”
(defiance) of any of his such instructions would call for prosecution of the
individual. As majority of the provisions of Hisba Bill, particularly under
discussion, suffer from vagueness, therefore, such like provision have
always been termed unconstitutional being violative of the due process.
Learned counsel for Government of NWFP stated that “Mohtasib” will
only decide the issue according to the belief of that particular sect. It means
that for deciding any issue, “Mohtasib” must possess accurate,
comprehensive knowledge in respect of all the sects. A perusal of Section 3
of Hisba Bill indicates that for his appointment no condition of having
knowledge of all sects of Islam has been made as his qualification. It may
be noted that as it has been discussed above, saying of “prayers and
observing decorum of Islam at the time of “Azan” and “Fard Namaz”
cannot be regulated by means of a legislation because if non-offering of the
prayers [Sallat] by a Muslim cannot be made a penal offence, then how it is
possible that due to non-observing decorum of Islam at the time of Azan
and Fard prayer, recommendation can be made for the prosecution of such
citizen, who had made “Khilaf-warzi” (disobedience) of the order of
“Mohtasib” in not observing decorum of Islam at the time of Azan and
Fard prayer. Therefore, for such reason, clause 23 (12) of Hisba Bill
cannot impose unreasonable restriction on the right of freedom of assembly
and religion. It may not be out of context to note at this stage that the State
Reference No.2/2005
57
does not regulate the private belief of individuals, but if the exercise of such
private beliefs, in terms of the rights guaranteed under the constitution,
causes the breach of the public order, only then the State comes forward to
regulate such personal beliefs. In
Jibendra Kishore Achharyya
Chowdhury v. The Province of East Pakistan
(PLD 1957 SC 9), it is
observed as follows:---
“………… In the light of these rules of
construction of constitutional instruments it
seems to me that what Article 18 means is that
every citizen has the right to profess, practice
and propagate his religion and every sect of a
religious denomination has the right to
establish, maintain and manage its religious
institutions, though the law may regulate the
manner in which religion is to be professed,
practiced and propagated and religious
institutions are to be established, maintained
and managed. The words “the right to establish,
subject to law, religious institutions” cannot and
do not mean that such institutions may be
abolished altogether by the law. Speaking of the
right of political franchise, Chief Justice Shaw
of the Supreme Judicial Court of Massachusetts
remarked in Copen v. Foster (12 Pick 485-
488).
“That in all cases where the
Constitution has conferred a
political right or privilege, and
where the Constitution has not
particularly designated the
manner in which that right is to
be exercised, it is clearly within
the just and constitutional limits
of the legislative power, to
adopt any reasonable and
uniform regulations, in regard
to the time and mode of
exercising that rights which are
designed to secure and facilitate
the exercise of such right, in a
prompt, orderly and convenient
manner ….. Nevertheless such a
construction would afford no
warrant for such an exercise of
legislative power, as under the
pretence and colour of
regulating, should subvert or
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58
injuriously restrain the right
itself.”
This principle is, in my opinion, fully applicable
to the interpretation of the extent of religious
freedom recognized by Article 18 of our
Constitution. That Article inter alia guarantees
the right to establish, maintain and manage
religious institutions, but concedes to the
legislature the power to regulate the manner in
which such institutions may be established,
maintained and managed. It does not, however,
empower the legislature to make a law that
hereafter no institutions of a religious character
shall be established, maintained or managed or
that an existing religious institution shall be
abolished. The Article appears to me to proceed
on the well-known principle that while
legislature may not interfere with mere
profession or belief, law may step in when
professions break out in open practices inviting
breaches of peace or when belief, whether in
publicly practicing a religion or running a
religious institution, leads to overt acts against
public order. In the present case no question of
law and order being involved, I am constrained
to differ from the view taken of this fundamental
right by the High Court.”
In
Miss Benazir Bhutto v. Federation of Pakistan and others (PLD
1988 SC 416) it has been observed that :---
“………………..In regard to the violation of
Article 18 of the Constitution, the view
expressed in Copen v. Foster, 12 Pick 485-488,
in relation to right of political franchise was
held to be applicable to its interpretation to the
extent of religious freedom recognized by Article
18 of the Constitution. And it was observed:
“ The Article appears to me to
proceed on the well-known
principle that while legislature
may not interfere with mere
profession or belief, law may
step in when professions break
out in open practices inviting
Reference No.2/2005
59
breaches of peace or when
belief whether in publicly
practicing a religion or running
a religious institution, leads to
overt acts against public
order.”
and as no question of law and order was
involved, the Court differed from the view taken
of this Fundamental Right by the High Court.
Messrs East and West Steamship Company v.
Pakistan, PLD 1958 SC 41 follows the same
principle as laid down in Jibendra Kishore
Achharyya Chowdhury and others v. The
Province of East Pakistan PLD 1957 SC 9.”
In
Zaheeruddin vs. The State (1993 SCMR 1718), in this context, it was
held: -
“The above views as they are prevalent, in the
above jurisdiction, do go to show that freedom of
religion would not be allowed to interfere with the
law and order or public peace and tranquility. It is
based on the principle that the State will not
permit anyone to violate or takeaway the
fundamental rights of others, in the enjoyment of
his own rights and that no one can be allowed to
insult, damage or defile the religion of any other
class or outrage their religious feelings, so as to
give rise to law and order situation. So whenever
or wherever the state has reasons to believe, that
the peace and order will be disturbed or the
religious feelings of others may be injured, so as
to create law and order situation, it may take such
minimum preventive measures as will ensure law
and order.”
From perusal of above judgments, following principles are highlighted.
1. While legislature may not interfere with
mere profession or belief, law may step
in when professions breakout in open
practices inviting breaches of peace or
when belief, whether in publicly
practising a religion or running a
religious institution, lead to overt act
against public order.
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2. Whenever or wherever the State has
reasons to believe that the peace and
order will be disturbed or the religious
feeling of others may be injured, so as to
create law and order situation, it may
take such minimum preventive
measures, as will ensure law and order.
59. Admittedly in view of the above judgments, this Court while
following the above principles in celebrated judgment of
Zaheeruddin
(ibid), and examining constitutionality of the action taken under Section
144 Cr.P.C. and Anti-Islamic Activities of the Quadiani Group, Lahori
Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984 (XX of
1984), declared the above Ordinance a valid law, holding that freedom of
religion is based on the principle that the State will not permit any one to
violate or takeaway the fundamental rights of others in the enjoyment of his
own rights and that no one can be allowed to insult, damage or defy the
religion of any other class or outrage their religious feeling, so as to give
rise to law and order situation. Thus, we are of the considered opinion that
under Section 23 (12) of the Hisba Bill no restriction on freedom of
assembly or freedom of religion, the fundamental rights guaranteed under
the Constitution be imposed.
60. Section 23 (14) confers power upon the “Mohtasib” to discourage
un-Islamic and in-human customs. The Provincial Assembly had failed to
define expression “un-Islamic.” If the possibility of unanimity amongst
different sects, on a preliminary or basic concept, is not possible, as
observed herein-above, with reference to enquiry report of former Chief
Justice of Pakistan Mr. Justice Muhammad Munir, that religious jurists,
who appeared before the Enquiry Court could not develop consensus on
definition of “Muslim,” then how is it possible that there would be
consistency between them on the definition of “un-Islamic” and “inhuman”
Customs. In this country, as far as another segment of society i.e.
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61
non-Muslims (minorities) is concerned, it is not clear whether they are also
bound to follow Islamic and human customs? In this judgment at a number
of places, we have observed that indefinite, un-certain and not susceptible
of being understood provision of law on account of its vagueness cannot be
enforced for the purpose of prosecution of a person, if he is found guilty of
disobeying any such provision, in respect whereof, he has no information/
notice to know that what is prohibited i.e. Islamic or un-Islamic, such law is
treated as un-constitutional. Essentially, such a wide ranged powers
conferred upon “Mohtasib” by Section 23(14), allowing him to create in
his own discretion an offence for the purpose of prosecution, under Section
28 would deny due process of law, security of a person, dignity of a man,
freedom of speech and freedom to profess religion. This provision of law
would also violate the freedom of trade, business or profession because if a
citizen is indulging in such a business which according to “Mohtasib” is
un-Islamic, he would be lodging a complaint for its prosecution, without
determining that no restriction can be imposed, except subject to the
provision of law. The affected persons would also be discriminated by the
“Mohtasib” in exercising wide ranged undefined powers. Thus, the
provisions failing to satisfy constitutional scrutiny, with reference to the
fundamental rights discussed herein-above, are unconstitutional.
61. It was vehemently contended by the learned counsel for Government
of NWFP that Islamic State is a welfare State. The lawmakers had an
obligation to frame laws in conformity with the Injunctions of Islam, as laid
down in the Holy Quran and Sunnah, and to achieve the object that general
public may live with peace and calm without transgressing on the rights of
each other, the Government of NWFP had promulgated the Hisba Bill. To
emphasize his arguments, he contended that the European community
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62
borrowed concept of a welfare State from the Religion of Islam and in the
modern countries like the United Kingdom general laws are being framed
for curbing Anti Social Behaviour. He read out the whitepaper on Anti
Social Behaviour (ABSO).
62. Learned Attorney General contended that there is no cavil with
framing laws in accordance with the Injunctions of Holy Quran and
Sunnah and according to beliefs of different sects as per mandate of
Constitution but provisions of Hisba Bill cannot be tested on the ground
that in European countries, identical anti-social laws are being framed. He
explained that ASBO law 2004 is not a vague law as it contains all
characteristics of a valid law.
63. There is no doubt that Article 227 of the Constitution mandates for
promulgating laws in conformity with the Injunctions of Islam as laid down
in Holy Quran and Sunnah. Explanation to Article 227 provides that the
expression Quran and Sunnah shall mean the Quran and Sunnah as
interpreted by any Muslim sect as far as it relates to the personal laws.
Applying this very test on some of the provisions of Section 23 of Hisba
Bill, we have already observed that as Hisba Bill does not provide
definition of Islamic value and Sharia with reference to the belief of various
Muslim sects, therefore, due to such vagueness, it is not sustainable. We are
in quite agreement with the learned Attorney General that ASBO Law 2004
is not a vague law as it contains intelligible, comprehensible,
understandable and tangible provisions, therefore, Hisba Bill 2004 cannot
be equated with the ASBO Law 2004.
64. Section 23(27) of Hisba Bill confers powers upon “Mohtasib” to
perform any other function/functions which the Provincial Mohtasib
determines from time to time in consultation with the Advisory Council. In
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63
Urdu text of the Hisba Bill ‘word’ (Amar) or (Amoor) i.e. order or orders
has been mentioned, essentially ‘order’ mean ‘command’ as per its
ordinary meaning. Viewing this provision with some of the other provisions
of Section 23, which have been discussed herein-above and have been
found vague, suffering from excessive delegation and without definite
legislative guidelines , it is also suffering from excessive delegation. One
feels no hesitation in holding that by conferring sweeping powers on
“Mohtasib” lawgivers had conferred the authority of making laws to him
and then to lodge prosecution against the citizens, who have made “Khilafwarzi”
(disobedience) of his “Hukam-nama” [order], clearly places
embargo upon exercising the fundamental rights conferred upon them
under Article 9, 14, 20 and 25 of the Constitution. In other words, any
thing, uttered by the “Mohtasib” in respect of ‘Amar’ or ‘Amoors’
(function) would become the law. Would it not be highly discriminatory.
Legislation can delegate its powers in a number of statutes but after having
its own control and safeguard in place which is only possible when definite
guidelines are given, otherwise blatant conferment of powers would make
such a statute unconstitutional. In
Haji Ghulam Zameer v. A.B. Khundkar
(PLD 1965 Dacca 156), it is observed as under:---
“It was next argued that the penal provision of
the Ordinance, as embodied in sections 4, 5 and
6 thereof, is also invalid on the ground that it is
too vague, too wide, too undetermined and too
volatile for anybody to understand and
anticipate what acts are being prohibited by the
Legislature. The argument is founded on the
proposition that the expression ‘law,’ as
embodied in Article 2 and all other Articles of
the Constitution, connotes intelligible
comprehensive, understandable and tangible
laws. To make penal provisions in advance and
to leave them to be applied to a maze of an
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undefined mass of individual orders which may
be made without even a “public notification” is
to leave the liberty of citizens to the mercy of the
gambling freaks of unforeseeable dooms. Each
order served on an individual would be a code
by itself. There can be thousands of such orders.
This principle is specially important because
under the Ordinance there is no requirement
that orders made there under should be under a
“notified order” as is the case in respect of the
Essential Supplies (Temporary Powers) Act or
similar enactments. An unanticipated order can,
under the Ordinance, be made in any individual
case and a breach thereof would attract the
penal provisions of the Ordinance. In the
following cases it has been held that the Act is
too indefinite and uncertain as a penal statute,
as it does not classify or define, with any degree
of certainty those who are subject to the
operation of the Act.”
In the case of
Asfand Yar Wali (ibid) it has been observed that:---
“269. The above provisions of section 25A (e) and (g)
in their present form suffer from excessive delegation of
power, in that, these provisions confer unfettered
discretion on the Chairman NAB to reject the
recommendations of a duly appointed committee and to
refuse to recognize a settlement arrived at between a
creditor and a debtor. We, therefore, direct that the
recommendations made by the Governor State Bank of
Pakistan shall be binding on the Chairman NAB except
for valid reasons to be assigned in writing subject to
approval of the Accountability Court to be accorded
within a period not exceeding seven days. Suitable
amendment be made in Section 25A (e) and (g).”
In
Director Food NWFP v. Madina Flour and General Mills (PLD
2001 SC 1), this Court observed as followed:---
“8. It is true that Provincial Legislature is
competent to promulgate appropriate legislation
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65
for abolishing wheat quota or to regulate the
supply of the same provided the above
threshold-requirements are met and the
Fundamental Rights contained in the
Constitution are not violated. Here, the
N.W.F.P. Government has the power to
determine the supply of wheat in its absolute
discretion. The law does not lay down the
methodology or guidelines for allocation of
wheat quota. The High Court was, therefore,
right in holding that Article 18 and Article 25 of
the Constitution were violated by the impugned
legislation. We may also add that clause (a) of
section 2 of the Act was saved by holding that
the same is not violative of the Constitution.”
In
Pakistan Tobacco Co. Ltd. vs. Government of NWFP
(PLD 2002 SC 460) it was held “there is consensus of the judicial opinion
that delegation of powers should not be uncontrolled, unbridled and to
check the arbitrary attitude of the Executive in exercise of powers the
legislature must provide some guidelines basing on the policy of the
government to exercise such powers.”
In
Dick Gregory v. City of Chicago (22 L. Ed. 2d 134), United
State Supreme Court observed that :--
“It is because of this truth, and a desire both to
promote order and to safeguard First
Amendment freedoms, that this Court has
repeatedly warned States and governmental
units that they cannot regulate conduct
connected with these freedoms through use of
sweeping dragnet statutes that may, because of
vagueness, jeopardize these freedoms. In those
cases, however, we have been careful to point
out that the Constitution does not bar enactment
of laws regulating conduct, even though
connected with speech, press, assembly, and
petition, if such laws specifically bar only the
conduct deemed obnoxious and are carefully
Reference No.2/2005
66
and narrowly aimed at that forbidden
conduct
.……… ………… ………
The disorderly conduct ordinance under
which these petitioners were charged and
convicted is not, however, a narrowly drawn
law, particularly designed to regulate certain
kinds of conduct such as marching or picketing
or demonstrating along the streets or highways.
Nor does it regulate the times or places or
manner of carrying on such activities. To the
contrary, it might better be described as a
meat-ax ordinance, gathering in one
comprehensive definition of an offense a number
of words which have a multiplicity of meanings,
some of which would cover activity specifically
protected by the First Amendment. The average
person charged with its violation is necessarily
left uncertain as to what conduct and attitudes of
mind would be enough to convict under it. Who,
for example could possibly foresee what kind of
noise or protected speech would be held to be
“improper”? That, of course, would depend on
sensibilities, nerves, tensions and on countless
other things…………..…………………………….
Their guilt of “disorderly conduct”
therefore turns out to be their refusal to obey
instanter an individual policeman’s command to
leave the area of the Mayor’s home. Since
neither the city council nor the state legislature
had enacted a narrowly drawn statute
forbidding disruptive picketing or demonstrating
in a residential neighborhood, the conduct
involved here could become “disorderly” only if
the policeman’s command was a law which the
petitioners were bound to obey at their peril. But
under our democratic system of government,
lawmaking is not entrusted to the moment-tomoment
judgment of the policeman on his beat.
Laws, that is valid laws, are to be made by
representatives chosen to make laws for the
future, not by police officers whose duty is to
enforce law already enacted and to make arrests
Reference No.2/2005
67
only for conduct already made
criminal……………………………”
65. Admittedly, different parts of Section 23 discussed herein-above
including sub-Section (27) confer unfettered/unbridled/unchanalized
powers on “Mohtasib” under Hisba Bill being an Executive functionary for
the purpose of this provision, therefore, these powers are liable to be
declared ultra vires the Constitution in view of the following principles:---
I.
Waris Meah v. State
(PLD 1975 SC (Pak)157)
“Here, not only is there discretion in the specified
authorities whether they will proceed at all against
any member of the class concerned, viz. offenders
against the Act, but there is also an unfettered choice
to pursue the offence in any one of three different
modes which vary greatly in relation to the
opportunity allowed to the alleged offender to clear
himself, as well as to the quantum and nature of the
penalty which he may incur. The scope of the unguided
discretion so allowed is too great to permit of
application of the principle that equality is not
infringed by the mere conferment of unguided power,
but only by its arbitrary exercise. For in the absence of
any discernible principle guiding the choice of forum,
among the three provided by the law, the choice must
always be, in the judicial view point, arbitrary to a
greater or less degree. The Act, as it is framed, makes
provision for discrimination between persons falling,
qua its terms, in the same class, and it does so in such
manner as to render it impossible for the Courts to
determine, in a particular case, whether it is being
applied with strict regard to the requirements of
Article 5 (1) of the Constitution.”
II.
F.B. Ali v. State
(PLD 1975 SC 506)
“It is first sought to be contended that the Ordinances
were not law at all because they purported to
unreasonably deprive a citizen of even the norms of a
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68
judicial trial. But this generalization cannot be
accepted. Law has not been defined in the Constitution
of 1962 and, therefore, in its generally accepted
connotation, it means positive law, that is to say, a
formal pronouncement of the will of a competent lawgiver.
There is no such condition that a law must in
order to qualify as a law also be based on reason or
morality. The Courts cannot strike down a law on any
such higher ethical notions nor can Courts act on the
basis of philosophical concepts of law as pointed by
me in the case of Asma Jilani (PLD 1972 SC 139).
This claim was abandoned even in England as long
ago as 1871 when Willes, J., in the case of Lee Vs.
Bude & Torrington Junction Railway Co. (2) said:-
“ We sit here as servants of the
Queen and the Legislature. Are
we to act as regents over what is
done by parliament with the
consent of the Queen, Lords, and
Commons? I deny that any such
authority exists ……… the
proceedings here are judicial, not
autocratic, which they would be if
we could make laws instead of
administering them.”
………………………………………
………………………………………
Where, however, the law
itself makes no classification but
leaves the selection to an outside
agency or an administrative body
without laying down any
guidelines, thus enabling the
body or authority to pick and
choose, a legitimate complaint
may be made on the ground that
the law itself permits
discriminatory application. Such
was the position which came
under consideration by this Court
in the case of Waris Meah Vs.
The State [PLD 1957 SC (Pak)
157] where this Court struck
down the law on the ground that
it was violative of this particular
right………………………………”
3.
Province of Punjab v. Manzoor Ahmed
Wattoo
(1998 CLC 1585)
“……………………..It is clear that no guidelines or
parameters have been provided for Government in
making the nomination of the Sarpanch of the
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69
Panchayat. The Government is free to pick and choose
any person of its choice without any qualifications.
The discretion of the Government has not been
structured which is absolute and arbitrary. The
impugned Ordinance is ex facie discriminatory. It is
also capable of being administered in a discriminatory
and arbitrary manner in violation of Article 25 of the
constitution of Pakistan which guarantees the equality
before law and equal protection of law.”
4.
Pak. Tobacco Co. Ltd. v. Government
of NWFP
(PLD 2002 SC 460)
In Vasanthlal Manganbhai Sajanwal v. The State of
Bombay, 1961 SCR 341: (AIR 1961 SC 4) the above
proposition was summarized in following words :-
“A statute challenged on the
ground of excessive delegation
must therefore, be subject to two
tests, (1) whether it delegates
essential legislative function or
power, and (2) whether the
Legislature has enunciated its
policy and principle for the
guidance of the delegate.”
Likewise a learned Division Bench of Lahore High
Court, Lahore in case of Muhammad Aslam and others
v., Punjab Government and others (1996 MLD 685)
following the judgments from our own jurisdiction in
the cases reported in PLD 1958 SC 41, PLD 1965.
Dacca 156, PLD 1966 SC 854 PLD 1988 SC 416 has
held that naked, unbridled and unguided powers
cannot be conferred upon the outside agency like
executive.
66. The observations noted herein-above are based on the following two
tests, (1) whether it delegates essential legislative functions or powers (2)
whether the legislature has enunciated its policy or principle for the
guidance of the delegatee
Vasanlal Maganbhai vs. State of Bombay [AIR
1961 SC 4]. Applying above test to the provisions of Section 23, discussed
herein-above in detail, suggest to hold that none of these tests have been
Reference No.2/2005
70
fulfilled, therefore, for violation of the provisions of Articles 4, 9, 14, 16,
18, 20, 25 of the Constitution, these provisions are not sustainable being
ultra vires the constitution.
67. The legislature is under the bounden duty to define the crime
explicitly, putting the citizens on notice and when the statute is vague and
the notice is denied to the citizens, it creates arbitrariness. In this behalf
reference be made to the case of
Mehram Ali (ibid). In this case Section
5(2)(i) of the Anti-Terrorism Act was struck down because no checks or
guidelines were provided for exercise of powers. Relevant para therefrom
is reproduced herein below:-
“The conferment of power on the officers referred to in
clause (i) of subsection (2) of section 5 without being
fired upon by the accused is not justifiable. An officer of
any of the above forces under the present provision can
kill any person, if he considers that in all probability the
former is likely to commit a terrorist act or scheduled
offence. The formation of opinion as to the probability
or likelihood of commission of offence will vary from
person to person as it depends on subjective satisfaction.
There is no check or guideline provided for the exercise
of the above power conferred by the above provision.
We are, therefore, of the view that the aforesaid
provision in its present form is not sustainable. The
same may be amended and it may be provided that the
officer can fire upon an accused person if he has been
himself fired upon by him.
68. It may be noted that some vague expressions i.e. “internal
disturbances,” “illegal strikes,” “go slows and lock outs” in terms of
Section 7-A of the Anti-Terrorism Act, 1997 came up for consideration
before this Court in the case of
Jamat-i-Islami Pakistan (ibid), and while
taking into consideration meaning of the word ‘vague,’ it was held as
follows:-
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71
“12. It is well-settled that Statutes must be intelligibly
expressed and reasonably definite and certain. An act of
the Legislature to have the force and effect of law must be
intelligibly express and statutes which are too vague to be
intelligible are a nullity. Certainty being one of the prime
requirements of a statute, a statute in order to be valid
must be definite and certain. Anticipated difficulty in
application of its provisions affords no reason for
declaring a statute invalid where it is not uncertain.
Reasonable definiteness and certainty is required in
statues and reasonable certainty is sufficient. Reasonable
precision, and not absolute precision or meticulous or
mathematical exactitude, is required in the drafting of
statutes, particularly as regards those dealing with social
and economic problems.
Clearly, the language of the statute and, in
particular, statute creating an offence must be precise,
definite and sufficiently objective so as to guard against
an arbitrary and capricious action on the part of the State
functionaries who are called upon to enforce the statute.
It is well settled that penal statutes contemplate notice to
ordinary person of what is prohibited and what is not.
Mr. M. Akram Sheikh, learned A.S.C. for the petitioners,
was right in contending that Article 4 of the Constitution
relating to the rights of individual to be dealt with in
accordance with law, is in the nature of “due process”
clause. To enjoy protection of law and to be treated in
accordance with law is the inalienable right of every
citizen and no action detrimental to the life, liberty, body,
reputation or property of any person shall be taken
except in accordance with law. No person shall be
prevented from or be hindered in doing that which is not
prohibited by law and no person shall be compelled to do
that which the law does not require him to do. Every
citizen has the inalienable right under the Constitution to
know what is prohibited by law and what the law does not
require him to do. It is, therefore, incumbent upon the
State to express in clear terms susceptible of being
understood by an ordinary citizen of what is prohibited
and to provide definite standards to guide discretionary
actions of Police Officers so as to prevent arbitrary and
discriminatory operation of section 7-A of the Act. In
other words, it must be spelt out from a bare reading of
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72
section 7-A as to what constitutes “internal disturbance,”
“illegal strikes,” “ go-slows” and “lock-outs” in terms
of section 7-A of the Act.
Likewise, in the case of
Kartar Sindh v. State of Punjab [1994] 3 SCC
569], Indian Supreme Court held as follows:-
“130.
It is the basic principle of legal jurisprudence that
an enactment is void for vagueness if its prohibitions are
not clearly defined. Vague laws offend several important
values. It is insisted or emphasized that laws should give
the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may
act accordingly. Vague laws may trap the innocent by
not providing fair warning. Such a law impermissibly
delegates basic policy matters to policemen and also
judges for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and
discriminatory application. More so uncertain and
undefined words deployed inevitably lead citizen to
“steer far wider of the unlawful zone, than if the
boundaries of the forbidden areas were clearly
marked.”
The above principle has been reiterated by United States Supreme Court in
the case of
Margarete Papachristou v. City of Jacksonville (31 L. Ed.
2d 110). Relevant para therefrom reads as under :--
“This ordinance is void for vagueness, both in the sense
that it “ fails to give a person of ordinary intelligence
fair notice that his contemplated conduct is forbidden by
the statute,” United States v Harriss. And because it
encourages arbitrary and erratic arrests and
convictions. Thornbill v Alabma. Living under a rule of
law entails various suppositions, one of which is that
“[all persons] are entitled to be informed as to what the
State commands or forbids.” Lanzetta v New Jersey……
…………………………………………………………………
…………………………………………………………………..
This aspect of the vagrancy ordinance before us is
suggested by what this Court said in 1876 about a broad
criminal statute enacted by Congress: “It would
certainly be dangerous if the legislature could set a net
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73
large enough to catch all possible offenders, and leave it
to the courts to step inside and say who could be
rightfully detained, and who should be set.”
69. Section 25 of Hisba Bill has placed complete restriction on the right
of hearing by the Courts against the proceedings before a Mohtasib. The
right of hearing being essentially a principle of natural justice has got wellentrenched
rules in our system of administration of justice. The mere denial
of the right of hearing to a citizen against whom Mohtasib has passed an
order, is by itself sufficient to declare the provisions of section 25 of Hisba
Bill to be ultra vires the constitution. Besides, no absolute ouster of
jurisdiction of Courts is possible as the Constitution itself confers powers of
judicial scrutiny upon the superior Courts, therefore, a subordinate
legislature cannot take away such rights. In the Hisba Bill the word
“Court” has not been defined but in its ordinary meaning it would include
the subordinate Courts as well as Superior Courts exercising constitutional
jurisdiction. In
Abbasia Cooperative Bank (now Punjab Provincial
Cooperative Bank Ltd) Vs. Hakeem Hafiz Muhammad Ghaus
(PLD 1997
SC 3) it was observed, as under :--
“5. The next question which arises for
consideration in the case is, whether the Civil
Court was competent to examine the validity of the
auction conducted by the authorities? The Civil
Court under section 9 of the Code of Civil
Procedure are competent to try all suits of civil
nature except those of which their jurisdiction is
barred either expressly or by necessary
implication. It is a well-settled principle of
interpretation that the provision contained in a
statute ousting the jurisdiction of Courts of general
jurisdiction is to be construed very strictly and
unless the case falls within the letter and spirit of
the barring provision, it should not be given effect
to. It is also well-settled law that where the
jurisdiction of the Civil Court to examine the
Reference No.2/2005
74
validity of an action or an order of executive
authority or a special tribunal is challenged on the
ground of ouster of jurisdiction of the Civil Court,
it must be shown (a) that the authority or the
tribunal was validly constituted under the Act; (b)
that the order passed or the action taken by the
authority or tribunal was not mala fide; (c) that the
order passed or action taken was such which could
be passed or taken under the law which conferred
exclusive jurisdiction on the authority or tribunal;
and (d) that in passing the order or taking the
action, the principles of natural justice were not
violated. Unless all the conditions mentioned
above are satisfied, the order or action of the
authority or the tribunal would not be immune
from being challenged before a Civil Court. As a
necessary corollary, it follows that where the
authority or the tribunal acts in violation of the
provisions of the statutes which conferred
jurisdiction on it or the action or order is in excess
or lack of jurisdiction or mala fide or passed in
violation of the principles of natural justice, such
an order could be challenged before the Civil
Court in spite of a provision in the statute barring
the jurisdiction of Civil Court. In the case before
us, the action of the Cooperative Authorities in
auctioning the suit property for recovery of the
loan against respondent No.1 was challenged in
the suit as contrary to the provision of the
Ordinance and M.L.O. 241.
In
Khan Asfandyar Wali Vs. Federation of Pakistan (PLD 2001 SC
607), and it was held, as follows :
“It was held in the case of Zafar Ali Shah (supra)
that the powers of the superior Courts under
Article 199 of the Constitution “remain available
to their full extent…notwithstanding anything
contained in any legislative instrument enacted by
the Chief Executive” Whereas, section 9(b) of the
NAB Ordinance purports to deny to all Courts,
including the High Courts, the jurisdiction under
sections 426, 491, 497, 498 and 561A or any other
Reference No.2/2005
75
provision of the Code of Criminal Procedure or
any other Law for the time being in force, to grant
bail to any person accused of an offence under the
Nab Ordinance. It is well settled that the superior
Courts have the power to grant bail under Article
199 of the Constitution, independent of any
statutory source of jurisdiction such as section 497
of the Criminal Procedure Code, section 9(b) of the
NAB Ordinance to that extent is ultra vires the
Constitution. Accordingly, the same be amended
suitably.”
The above principle was also highlighted in the case of
Zafar Ali
Shah Vs. Pervez Musharraf, Chief Executive of Pakistan
(PLD 2000 SC
869), the relevant para therefrom is reproduced below: -
“Stability in the system, success of the
Government, democracy, good governance,
economic stability, prosperity of the people,
tranquility, peace and maintenance of law and
order depend to a considerable degree on the
interpretation of constitution and legislative
instruments by the superior Court. It is, therefore,
of utmost importance that the Judiciary is
independent and no restraints are placed on its
performance and operation. It claims and has
always claimed that it has the right to interpret the
Constitution or any legislative instrument and to
say as to what a particular provision of the
Constitution or a legislative instrument means or
does not mean, even if that particular provision is
a provision seeking to oust the jurisdiction of this
Court. Under the mandate of the constitution, the
Court exercise their jurisdiction as conferred upon
them by the constitution or the law. Therefore, so
long as the Superior Courts exist, they shall
continue to exercise powers and functions within
the domain of their jurisdiction and shall also
continue to exercise power of judicial review in
respect of any law or provision of law, which
comes for examination before the superior Courts
to ensure that all persons are able to live securely
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76
under the rule of law; to promote, within the
proper limits of judicial functions, the observance
and the attainment of human and fundamental
Rights; and to administer justice impartially
among persons and between the persons and the
State, which is a sine qua non for the maintenance
of independence of Judiciary and encouragement
of public confidence in the Judicial system.”
70. Section 25 of the Hisba Bill can also not survive the constitutional
scrutiny for violation of Article 2A of the Constitution which guarantees
fundamental rights of equality before law, freedom of thought, expression,
belief, faith, worship and association subject to law and morality as well as
the independence of judiciary. The language of Section 25(1) (2) of Hisba
Bill makes it abundantly clear that by ousting the jurisdiction of the Courts
the rights of the citizens have been curtailed and the right of access to
justice has also been denied as discussed herein-above.
71. In the present set up of administration of justice the Judicial forums
are empowered to take cognizance of the offences which are capable to
stand the test of constitutional scrutiny. Under Section 23 of the Hisba Bill
the ‘Mohtasib’ has been empowered to lodge a complaint before a
Magistrate under Section 28 for the purpose of trial of a citizen who has
allegedly done Khilaf –warzi (defiance) of his Hukam-nama [Order]. Most
of the provisions of Section 23 as discussed herein-above have been found
ultra vires the Constitution. Therefore, investing powers in a Court to take
cognizance under Section 28 on the complaint of the Mohtasib in respect of
such offences is not warranted. Consequently, such forums created for trial
of the citizens shall also be acting contrary to the provisions of Article 4 of
the Constitution which guarantees that every individual should be dealt
with in accordance with law. Therefore, being contrary to this provision of
the Constitution, Section 28 is declared to be ultra vires the Constitution.
Reference No.2/2005
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72. Learned counsel for NWFP Government contended:--
a)
That opinion rendered by Supreme Court has no
binding effect because it is not a decision between
parties.
b)
That “Mohtasib” and the person who allegedly is
going to be affected by this opinion is not before the
Court as such it has no legal value
c)
That the decision of the Court in terms of Article
189 is binding on the Executive and Judicial
Authorities if rendered on a lis and Legislature is
not bound with such decision as Court could not
regulate the process of legislation. Thus, opinion of
the Court would have no effect upon legislation.
d)
The Constitutionality of Hisba Bill could adequately
be dealt with after its becoming an Act of Assembly,
in appropriate proceedings. In the following
judgments parameters have been laid down for
assuming jurisdiction by the Courts despite absolute
ouster clause.
See :
In re: Kerala Education Bill 1957
(AIR 1958 SC 956),
In re: U/s 213 Government of India Act, 1935
(AIR 1944 FC 73),
Umayal Achi v. Lakshmi Achi
(AIR 1945 FC 25),
Attorney General for Ontario v. Attorney General of
Canada
[1912] AC 571 and
Attorney General for the Province of British Columbia
v. Attorney General for Dominion of Canada
[1914] AC 153.]
73. We have considered the judgments relied upon by the learned
counsel. The opinions expressed therein had been overruled by subsequent
judgments by the Indian Supreme Court itself. In
re: Special Courts Bill,
1978
(AIR 1979 SC 478), it was held as under:--
101. There was some discussion before us on the
question as to whether the opinion rendered by this
Court in the exercise of its advisory jurisdiction under
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78
Art. 143 (1) of the Constitution is binding as law
declared by this court within the meaning of Art. 141 of
the Constitution. The question may have to be
considered more fully on a future occasion but we do
hope that the time which has been spent in determining
the questions arising in this reference shall not have
been spent in vain. In the cases of Estate Duty Bill, 1944
FCR 317 at pp. 320, 332, 341: (AIR 1944 FC 73 at pp.
74, 75, 79, 82); U. P. Legislative Assembly, (1965) 1
SCR 413 at pp. 446, 447: (AIR 1965 SC 745 at pp. 762,
763) and St. Xavier’s College, (1975) 1 SCR 173 at pp.
201, 202 (AIR 1974 SC 1389 at pp, 1401, 1402) the view
was expressed that advisory opinions do not have the
binding force of law, In Attorney General for Ontario v,
Attorney General for Canada (1912) AC 571 at p. 589 it
was even said by the Privy Council that the opinions
expressed by the Court in its advisory jurisdiction “will
have no more effect than the opinions of the law
officers.” On the other hand, the High Court of Calcutta
in Ram Kishore Sen v. Union of India, AIR 1965 Cal 282
and the High Court of Gujarat in Chhabildas Mehta v.
Legislative Assembly, Gujarat State, (1970) 2 Guj LR,
729 have taken the view that the opinion rendered by the
Supreme Court under Art. 143 is law declared by it
within the meaning of Art. 141. In The province of
Madras v. Boddu Paidanna & Sons, 1942 FCR 90: (AIR
1942 FC 33) the Federal Court discussed the opinion
rendered by it in the Central Provinces case, 1939 FCR
18: (AIR 1949 FC 1) in the same manner as one
discussed a binding judgment. We are inclined to the
view that though it is always open to this Court to reexamine
the question already decided by it and to
overrule, if necessary, the view earlier taken by it, in so
far as all other courts in the territory of India are
concerned they ought to be bound by the view expressed
by this Court even in exercise of its advisory jurisdiction
under Art. 143 (1) of the Constitution. We would also
like to draw attention to the observations made by Ray
C.J., in St. Xaviers College (AIR 1974 SC 1389) that
even if the opinion given in the exercise of advisory
jurisdiction may not be binding, it is entitled to great
weight. It would be strange that a decision given by this
Court on a question of law in a dispute between two
Reference No.2/2005
79
private parties should be binding on all courts in this
country but the advisory opinion should bind no one at
all, even if, as in the instant case, it is given after issuing
notice to all interested parties, after hearing everyone
concerned who desired to be heard, and after a full
consideration of the questions raised in the reference.
Almost everything that could possibly be urged in favour
of and against the Bill was urged before us and to think
that our opinion is an exercise in futility is deeply
frustrating. While saying this, we are not unmindful of
the view expressed by an eminent writer that although
the advisory opinion given by the Supreme Court has
high persuasive authority, it is not law declared by it
within the meaning of Art. 141. (See Constitutional Law
of India by H. M. Seerval, 2
nd Edition, Vol II, Page 1415,
para 25.68)
In
re: Presidential Reference No.1 of 1998 (AIR 1999 SC 1) the Court
recorded following statement of Attorney General:---
“9. We record at the outset the statements of the
Attorney General that .-----(1) the Union of India is not
seeking a review or re-consideration of the judgment in
the second Judges case, and (2) that the Union o India
shall accept and treat as binding the answers of this
Court to the questions set out in the Reference.”
As per the material available on the official web-site of the Department of
Justice Canada, there have been 76 references by the Federal Government
alone to the Supreme Court since 1867 to 1981 and it states:---
“the Court issues an advisory opinion in the form of
judgment as a legal pronouncement from the highest
Court in the land. It has always been treated as
binding.”
Similarly
Peter W. Hogg in Constitutional Law of Canada (4th Ed. Page
227) states as under :---
“But there do not seem to be any recorded instances
where a reference opinion was disregarded by the
parties, or where it was not followed by a subsequent
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80
court on the ground of its advisory character. In
practice, reference opinions are treated in the same way
as other judicial opinions. (
emphases provided)
Likewise, Mohamed Sameh M. Amer in
The Role of the International
Court of Justice as the Principal Judicial Organ of the United Nations
(page 116) states as under:-
“Thus far the ICJ has delivered advisory opinions in
twenty-four cases, and in no case has the requesting
organ rejected the Court’s opinion or acted contrary to
its substance; on the contrary, the Court’s opinions have
been received and respected by the organs.”
74. National Assembly of Pakistan, after obtaining opinion from the
Supreme Court in re:
Special Reference under Article 187 of the Interim
Constitution
, on 8th July 1973 passed a resolution, expressing its opinion
that the Government of Pakistan may accord a formal recognition to
Bangladesh and initiate such constitutional measures as may be necessary,
therefore, at a time when, in the judgment of the Government, such
recognition is in the best national interest of Pakistan and will promote a
fraternal relationship between the two communities. A writ petition was
filed seeking declaration that the resolution passed by the National
Assembly in its Session held on 8
th July 1973 be declared to be without
lawful authority and the respondent be restrained from announcing any
‘recognition of Bangladesh.’ A learned Division Bench of the Lahore High
Court while disposing of the petition in the case of
Hakim Muhammad
Anwar Babri v. Federation of Pakistan
(PLD 1974 Lahore 33), held as
under :---
5. From what has been written above, it will be
evident that the resolution in question was passed after
obtaining the advice and opinion of the Supreme Court.
The Supreme Court held that such a resolution could be
passed, and after that to ask this Court to declare that
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81
such a resolution could not have been passed or that it
was without lawful authority is an attempt to ask us to sit
in judgment over the views of the Supreme Court.
Obviously, such an attempt cannot succeed because in
Article 189 of the Constitution of the Islamic Republic of
Pakistan, it is written that: -
“Decisions of Supreme Court binding
on other Courts-Any decision of the
Supreme Court shall, to the extent that
if decides a question of law or is based
upon or enunciates a principle of law,
be binding on all other Courts in
Pakistan.”
75. It is true that opinion by the Court on the reference by the President
is not a decision between the parties but the Court undertakes an extensive
judicial exercise during which the arguments advanced by the Advocates
appearing on behalf of the parties summoned by the Court are evaluated
and appreciated and then an opinion is formed, therefore, it has binding
effect as held in above quoted judgments as well as by eminent jurists on
the Constitution.
76. From the language of Articles 189 and 190 of the Constitution, it is
concluded that opinion expressed by the Supreme Court in a reference
under Article 186 is required to be esteemed utmost by all the organs of the
State, therefore, it would not be fair to say that the opinion expressed by the
Supreme Court on Presidential Reference under Article 186 of the
Constitution has no binding effect.
77. Under Article 116 of the Constitution, the Governor of the Province
is required to assent to a bill which has been passed by the Assembly in
accordance with the Constitution. Arguments raised by learned counsel,
firstly, are premature as at this stage it is not possible to ascertain whether
the Governor will assent to the Bill or not. Secondly, two positions could
be visualized in respect of a Bill, namely, if in judicial scrutiny by this
Court for the purpose of forming its opinion, it is held that it is intra vires
Reference No.2/2005
82
the Constitution then Article 116 of the Constitution would lay an
obligation on the Governor to assent to it. If the opinion is formed that
either the Bill as a whole or some of its parts are ultra vires the
Constitution then the Governor being Constitutional Head of a Province
would not assent to the Bill particularly on noticing violation. In present
case, the provisions of the Hisba Bill namely Sections 10(b), (c), (d),
12(1)(a), (b) and (c), Section 23(1), (2), (3), (5), (6), (7), (12), (14) and
(27), Section 25(1) & (2) and Section 28 , have been declared ultra vires
the Constitution of Islamic Republic of Pakistan, therefore, in its present
form, the Governor is not bound to assent to the same. To strengthen this
argument, reference may be made to
Attorney General for New South
Wales v. Trethowan
(47 CLR 97). In this case, two bills were passed but
without the majority of the electors, therefore, the Governor was restrained
from assenting to the same unless and until the majority of the voters had
approved them.
78. In addition to above judgment,, this Court in a number of cases has
held that a Government functionary is bound to obey and carry out only
lawful orders and acts and is not bound to become a party to the acts,
which are not in accordance with law. Reference in this behalf may be
made to
Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530),
Yaqoob Shah v XEN PESCO
(PLD 2002 SC 667), Secretary
Education NWFP v. Mustamir Khan
(2005 SCMR 17) and The State
v. Udeshi M. Ramesh
(2005 SCMR 648).
79. It is equally important to note that once some of the Sections of a
Bill have been declared unconstitutional, it would not mean that leftover
Sections of the Bill have been declared in accordance with the Constitution.
Their Constitutionality remains open to be questioned, which can be upheld
Reference No.2/2005
83
or struck down as or when challenged before a competent forum, as held by
Irish Supreme Court in
re: In the matter of Article 26 of the Constitution
and in the matter of The Housing (Private Rented Dwellings) Bill, 1981
([1983] I.R. 181). Relevant para therefrom reads as under:---
“It is to be noted that the Court’s function under Article
26 is to ascertain and declare repugnancy (if such there
be) to the Constitution in a referred bill or in the
specified provision or provisions thereof. It is not the
function of the Court to impress any part of a referred
bill with a stamp of constitutionality. If the Court finds
that any provision of a referred bill or of the referred
provisions is repugnant, then the whole bill fails for the
President is then debarred from signing it- thus
preventing it from becoming an Act. There thus may be
areas of a referred bill or of referred provisions of a bill
which may be left untouched by the Court’s decision.
The authors of a bill may therefore find the Court
decision less illuminating than they would wish it to be.”
I
n the matter of Article 26 of the Constitution and in the matter of the
Matrimonial Home Bill, 1993
[1994] 1 IR 305, the above principle of
declaring some parts of a Bill unconstitutional was upheld.
80. Learned counsel for Government of NWFP contended that the
Courts on the basis of legislative controversial matters between the Federal
and Provincial Government may not invalidate the Provincial legislation.
In support of his contention he relied upon
Duport Steels Ltd. v. Sirs
and others
([1980] 1 All ER 529) and Union of India v. Elphinstone
Spinning and Weaving Co. Ltd.
[2001] 4 SCC 139.
81. We have examined both these judgments in light of the arguments of
the learned counsel. The judgment in
Duport Steels Ltd. (ibid) is from
English jurisdiction, where the Courts at the relevant time, were not
empowered to invalidate legislation for want of such Constitutional
Reference No.2/2005
84
mandate. Second judgment, in the case of
Union of India (ibid), pertains to
a fiscal matter. Admittedly, sufficient privilege is always given to the fiscal
matters then to the law laid down by the Legislature, as it has been
pronounced in
Elahi Cotton Mills Ltd. v. Federation of Pakistan
(PLD 1997 SC 582), wherein it has been held that “ Courts, while
interpreting laws relating to economic activities, view the same with
greater latitude then the laws relating to civil rights such as freedom of
speech, religion etc., keeping in view the complexity of economic problems,
which do not admit of solution through any doctrinaire of strait jacket
formula. Whereas penal statutes are to be interpreted strictly against the
State and liberally in favour of accused [
Understanding Statutes 2d Ed. by
S.M.Zafar page 243]. Therefore, following this principle, the penal statute
calls for strict constitutional scrutiny, as such the second judgment cited by
the learned counsel in support of his arguments is of no help to him. Thus,
it is held that the Court seized with a Reference wherein constitutionality of
a law/bill is required to be examined to form an opinion , it would not be
transgressing its jurisdiction and is bound to inform the President about the
constitutional status of the bill which is likely to become an Act of
Parliament or Assembly.
82. The learned counsel for NWFP Government questioned the
maintainability of the Reference on following grounds:-
i) The bill has not been enacted into law as yet,
therefore, Reference being premature, deserves
to be dismissed.
ii) The request made by the Governor to the Prime
Minister requesting him for filing of Reference
without advice of the Chief Minster is illegal.
iii) On the advice of the Prime Minister, the
President is only competent to refer the question
of law which relates to federal law and not with
respect to a provincial law.
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85
iv) Under Article 186 of the Constitution, this Court
can only express its opinion on question of law
whereas in instant Reference, a mixed question
of law and fact has been raised, therefore, this
Court is not bound to answer the same.
83. Before addressing the arguments of learned counsel, it would
be appropriate to reproduce herein-below different Articles from
Government of India Act, 1935, Constitution of Pakistan, 1956,
Constitution of Pakistan, 1962, Interim Constitution of Islamic Republic of
Pakistan, 1972 and Constitution of Pakistan, 1973, conferring the advisory
jurisdiction on the Supreme Court:-
Government
of India Act
1935
Article 213:
(1) If at any time it appears to the Governor
General that a question of law has arisen, or
is likely to arise, which is of such a nature and
of such public importance that it is expedient
to obtain the opinion of the Federal court
upon it, he may in his discretion refer the
question to that court for consideration, and
the court may, after such a hearing as they
think fit, report to the Governor General
thereon.
(2) No report shall be made under this
section save in accordance with an opinion
delivered in open court with concurrence of a
majority of the judges present at the hearing
of the case, but noting in this subsection shall
be deemed to prevent a judge who does not
concur from delivering a dissenting opinion.
Constitution of
Pakistan 1956
Article 162:
If at any time it appears to the President that
a question of law has arisen, or is likely to
arise, which is of such a nature and of such
public important that it is expedient to obtain
the opinion of the Supreme Court upon it, he
may refer the question to that court for
consideration, and the court may, after such
hearing as it thinks fit, report its opinion
thereon to the President.
Constitution of
Pakistan 1962
Article 59:
(1) If, at any time, the President considers that
it is desirable to obtain an opinion of the
Supreme Court on any question of law which
he considers of public importance, he may
refer the question to the Supreme Court for
consideration.
(2) The Supreme Court shall consider a
question so referred and report its opinion on
the question to the President.
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86
Interim
Constitution of
the Islamic
Republic of
Pakistan 1972
Article 187:
(1) If any time, the President considers that it
is desirable to obtain the opinion of the
Supreme Court on any question of law which
he considers of public importance, he may
refer the question to the Supreme Court for
consideration.
(2) The Supreme Court shall consider a
question so referred and report its opinion on
the question to the President.
Constitution of
Pakistan 1973
Article 186:
(1) If, at any time, the President considers that
it is desirable to obtain the opinion of the
Supreme Court on any question of law which
he considers of public importance, he may
refer the question to the Supreme Court for
consideration.
(2) The Supreme Court shall consider a
question so referred and report its opinion on
the question to the President.
84. Under Article 106 of the Constitution of Peoples Republic of
Bangladesh; Article 177 of Constitution of Republic of Sri Lanka; Article
130 of Constitution of Malaysia; Section 19 of Constitution of Independent
State of Papua New Guinea; Article 123 of the Constitution of Republic of
Fiji Islands; Section 53 of the Canadian Supreme Court Act, 1985, Section
4 of the Judicial Committee Act, 1833, “United Kingdom;” Article 26 of
Constitution of Ireland; Article 14 of the Covenant of League of Nations
(including amendments adopted on December, 1924), Article 65 of the
Statute of Permanent Court of International Justice (Amendments by the
Protocol of September 14, 1929), Article 96 of Charter of United Nations;
Article 165 of the Statute of International Court of Justice and Article 143
of the Indian Constitution; confer same jurisdiction upon their Supreme
Courts as is being enjoyed by this Court.
85. Article 143 from the Indian Constitution; Section 53 of the
Canadian Supreme Court Act, 1985 and Article 26 of the Constitution of
Ireland, are reproduced herein-below having identical features/
characteristics to Article 186 of the Constitution.
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87
Constitution
of India
Article 143:
(1) If at any time it appears to the
President that a question of law or fact
has arisen, or is likely to arise, which is
of such a nature and of such public
importance that it is expedient to obtain
the opinion of the Supreme Court upon
it, he may refer the question to that
Court for consideration and the Court
may, after such hearing as it thinks fit,
report to the President its opinion
thereon.
(2) The President may, notwithstanding
anything in… the proviso in article 131
refer a dispute of the kind mentioned in
the said proviso to the Supreme Court
for opinion and Supreme Court shall,
after such hearing as it thinks fit, report
to the President its opinion thereon.
Canadian
Supreme
Court
Act 1985
Section 53:
(1) The Governor in Council may refer
to the Court for hearing and
consideration important questions of
law or fact concerning.
(a) The interpretation of the
Constitution Acts;
(b) The constitutionality or
interpretation of any federal or
provincial legislation;
(c) The appellate jurisdiction
respecting educational matters, by the
Constitution Act, 1867, or by any other
Act or law vested in the Governor in
Council; or
(d) The powers of the Parliament of
Canada, or of the legislatures of the
provinces, or of the respective
governments thereof, whether or not
the particular power in question has
been or is proposed to be exercised.
(2) The Governor in Council may refer
to the Court for hearing and
consideration important questions of
law or fact concerning any matter,
whether or not in the opinion of the
Court ejusdem generis with
enumerations contained in subsection.
(1), With reference to which the
Governor in Council sees fit to submit
any such question.
(3) Any question concerning any of the
matters mentioned in subsections (1)
And (2), and referred to Court by the
Governor in Council, shall be
conclusively deemed to be an important
question.
(4) Where a reference is made to the
Court under subsection (1) or (2), it is
the duty of the Court to hear and
consider it and to answer each question
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88
so referred, and the Court shall certify
to the Governor in Council, for his
information, its opinion on each
question, with the reasons for each
answer, and the opinion shall be
pronounced in like manner as in the
case of a judgment on an appeal to the
Court, and any judges who differ from
the opinion of the majority shall in like
manner certify their opinions and their
reasons.
(5) Where the question relates to the
constitutional validity of any Act
passed by the legislature of any
province, or of any provision in any
such Act, or in case, for any question,
the attorney general of the province
shall be notified of the hearing in order
that the attorney general may be heard
if he thinks fit.
(6) The Court has power to direct that
any person interested or, where there is
a class of persons interested, any one
or more persons as representatives of
that class shall be notified of the
hearing on any reference under this
section, and those persons are entitled
to be hard thereon.
(7) The Court may, in its discretion,
request any counsel to argue the case
with respect to any interest that is
affected and with respect to which
counsel does not appear, and the
reasonable expenses thereby
occasioned may be paid by the Minister
of Finance out of any moneys
appropriated by Parliament for
expenses of litigation.
Judicial
Committee
Act 1833
(United
Kingdom)
Section 4 His Majesty may refer any
other matter to the committee
….. It shall be lawful for his Majesty to
refer to the said judicial committee for
hearing or consideration any such
other matter whatsoever as his Majesty
shall think fit: and such committee shall
thereupon hear to consider the same,
and shall advise his Majesty thereon
manner aforesaid.
Constitution
of Ireland
Article 26
(1) This article applies to any Bill
passed or deemed to have been passed
by both Houses of Parliament other
than a Money Bill, or a Bill expressed
to be a Bill containing a proposal to
amend the Constitution, or a Bill the
time for the consideration of which by
the Senate shall have been abridged
under Article 24.
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89
(1.1) The President may, after
consultation with Council of State,
refer any Bill to which this article
applies to the Supreme Court for a
decision on the question as to whether
such Bill or any specified provision or
provisions of such Bill is or are
repugnant to this Constitution or to any
provision thereof.
(1.2) Every such reference shall be
made not later than the seventh day
after the date on which such Bill have
been presented by the Prime Minister
to the President for his signature.
(1.3) The President shall not sign any
Bill the subject of a reference to the
Supreme Court under this article
pending the pronouncement of the
decision of the Court.
(2.1) The Supreme Court consisting of
not less than five judges shall consider
every question referred to it by the
President under this article for a
decision, and, having heard arguments
by or on behalf of the Attorney General
and by counsel assigned by the Court,
shall pronounce its decision on such
question in open court as soon as may
be, and in any case not later than sixty
days after the date of such reference.
(2.2) The decision of the majority of the
judges of the Supreme Court shall, for
the purpose of this article, be the
decision of the Court and shall
pronounced by such one of those judges
as the Court shall direct, and no other
opinion, whether assenting or
dissenting, shall be pronounced nor
shall the existence of any such other
opinion be disclosed.
(3.1) In every case in which the
Supreme Court decides that any
provision of a Bill the subjection of a
reference to the Supreme Court under
this article is repugnant to the
Constitution or to any provision
thereof, the President shall decline to
sign such Bill.
(3.2) If, in the case of a Bill to which
Article 27 applies, a petition has been
addressed to the President under that
article, that article shall be complied
with.
(3.3) In every other case the President
shall sign the Bill as soon as may be
after the date on which the decision of
the Supreme Court shall have been
pronounced.
86. A comparison of above Articles with Article 186 of the Constitution,
conferring advisory jurisdiction upon this Court, reveals that in Article
Reference No.2/2005
90
213 of the Government of India Act 1935 and Article 162 of the
Constitution of Pakistan, 1956, the phrase a question of law has risen or is
likely to arise, identical to Article 143 of the Constitution of India, has been
used. In Article 59 and Article 187 of the Constitution, 1962 and 1972, as
well as in Article 186 of the Constitution, 1873, words “any question of
law” have been used. By pre-fixing word “any” scope of Article 186 of the
Constitution has been widened. Mr. Justice (R) Muhammad Munir, former
Chief Justice of Pakistan in his book “
The Commentary on the
Constitution of Pakistan, 1973,
has observed that “present Article has
replaced these words “any question of law” which are more comprehensive
in their scope and cover both question of law that has arisen and question
of law that is likely to arise.” Words “any” has always been interpreted by
the Courts broadly. Reference may be made to the case of
Bank of
Bahawalpur versus Chief Settlement and Rehabilitation Commissioner
(PLD 1977 SC 164). In this case, a full bench of this Court, on the basis of
Queen vs. Rowlands and others
(1880) Q.B.D 5308 and Duek versus
Bates
(1884) 12 Q.B.D 79, has held that “the word “any” is an expression
of utmost generality removing all limitations or qualifications. In
Ch.Zahoor Elahi vs. The State
(PLD 1977 SC 273), it was held that
the word “any” is used at no less than 7 places in Section 13(1) (b). It is a
word of very wide amplitude and defined in
Stroud’s Judicial Dictionary
as “a word which excludes limitations or qualifications.” Acceptably,
Constitutional document is interpreted broadly so as to cover all
exigencies. A narrow construction has no room in the context of
constitutional dispensation (Understanding of Statutes – Canons –
Construction –Second Edition 850) by S.M. Zafar. In
Benazir Bhutto v.
President of Pakistan
(PLD 1998 SC 388), it was held that “Constitution is
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91
the supreme law of the land to which all laws are subordinate. Constitution
is an instrument by which government can be controlled. The provisions in
the Constitution are to be considered in such a way which promotes
harmony between the different provisions and should not render any
particular provision to be redundant as the intention is that the
Constitution should be workable to ensure survival of the system which is
enunciated therein for the governance of the country.” In
Special Re. No.1
of 1957
(PLD 1957 SC 219) it was held that “effect should be given to
every part and every word of the Constitution. Hence as a general rule, the
Courts should avoid a construction which renders any provision
meaningless or inoperative and must lean in favour of a construction which
will render every word operative rather than one which may make some
words idle and nugatory.” In this context, reference can also be made to
the cases of
The State v. Zia-ur-Rehman (PLD 1973 SC 49) and
Federation of Pakistan v. Saeed Ahmed Khan
(PLD 1974 SC 151). In
Mian Muhammad Nawaz Sharif v. Federation of Pakistan
(PLD 1993
SC 473) it was also held that “while interpreting fundamental rights, the
approach of the Court should be dynamic, progressive and liberal keeping
in view ideals of the people, socio-economic and politico cultural values
which in Pakistan are enshrined in the Objectives Resolution so as to
extend the benefit of the same to the maximum people.” In the case of
Al-
Jehad Trust versus Federation of Pakistan
(PLD 1996 SC 324), it was
held that “approach of the Court while interpreting a constitutional
provisions has to be dynamic, progressive and oriented with the desire to
meet the situation which has arisen effectively because efforts should be
made to construe the provision broadly so that it may be able to meet the
requirement of ever changing society. General words cannot be considered
Reference No.2/2005
92
in isolation but the same are to be considered in the context in which they
are employed.” These observations have been reiterated in
Bahadar Khan
v. Atta Ullah Mengal
(1999 SCMR 1921) and Pakistan Tobacco
Company
(ibid), we feel no hesitation in holding that Constitution makers
by using the expression ‘any question of law’ in Article 186 of the
Constitution had widened its scope and had also covered disputes which
are likely to arise. We may observe that if such construction is not placed
on the expression ‘any question of law’ there is apprehension that the
provision of advisory jurisdiction will become redundant.
87. The President, when desires to obtain opinion of the Supreme Court
on any question of law which he considers of public importance, he bears
in his mind the significance of public importance, persuading him to seek
opinion of Supreme Court, therefore, he being the custodian of
Constitution, in capacity as a symbol of head of Federating units under the
Constitution seeks guidance of the Court with no object except to avoid
controversies and to ensure that Constitutional provisions are fully
enforced in the good governance of Federal as well as Provincial
Government as it may be, as such no embargo can be placed on the
authority of the President of Pakistan to seek the advice on the question of
law, which is likely to arise. Likewise, the Court is bound to express
opinion in respect of those events which are likely to occur in future. At this
juncture reference to the events that took place in Pakistan in December
1971, would not be out of context, on account of which Bangladesh
emerged. When confronted with such situation, a chaos was prevailing and
the Government was not decisive either to recognize Bangladesh or not and
to resolve the situation, it felt it necessary to move a resolution in the
National Assembly which would express that holding of trials in Dacca or
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outside Pakistan or among the prisoners of war or civilian internees on
alleged criminal charges would seriously jeopardize efforts towards
reconciliation of peace in the sub-continent and would also be contrary to
the International Law of Justice, therefore, considering the issue to be of
public importance a Reference on the question “can a resolution of the
purport described in paragraph 6 above and envisaging such constitutional
measures as may be necessary before according of formal recognition, be
validly adopted by the National Assembly, was made by the President of
Pakistan. Admittedly, it was purely a question which was likely to arise
because till then National Assembly had not passed a resolution, therefore,
in view of such a concrete example, the arguments raised by learned
counsel for the Government of NWFP loses its value.
88. In
Re. Reference under section 213 of the Government of India
Act, 1935
(AIR 1944 FC 73) it was held “the fact that the question referred
related to future legislation cannot by itself be regarded as valid
objection.” Section 213 of the Government of India Act, 1935, empowers
the Governor General of India to make a Reference when questions of law
“are likely to arise.” It is most important that in similar situation with
which we are presently confronted i.e. whether the Hisba Bill has been
passed by the NWFP Assembly, in accordance with the Constitution. The
Indian Supreme Court examined the same proposition in
re. Kerala
Education Bill 1957
(AIR 1958 SC 956) and observed “The principles
established by judicial decisions clearly indicate that the complaint that the
questions referred to us relate to the validity, not of a Statute brought into
force but of a bill which has yet to be passed into law by being accorded the
assent of the President is not a good ground for not entertaining the
reference.” Inasmuch as there are cases in which references have been
Reference No.2/2005
94
made even to consider proposed amendments by way of putting a bill
before the law makers. [
In re. Sea Customs Act, 1878 Section 20(2) (AIR
1963 SC 1760)]. In this Reference it was proposed to amend sub-section (2)
of Section 20 of the said Act (Sea Customs Act) so as to amend the
provisions of sub-section (1) of that section in respect of goods belonging to
the Government of a State irrespective whether goods are used or not for
the purposes set out in the said sub-section (2) as at present in force. One
of the terms of Reference was “whereas governments of certain States have
expressed the view that the amendments as proposed in the said draft of the
Bill (emphasis provided) may not be constitutionally valid as the
provisions of Article 289 read with the definitions of ‘taxation’ and tax in
clause 28 of Article 366 of the Constitution of India precluded the Union
from imposing or authorizing the imposition of any tax, including customs
duties and excise duties, on or in relation to any property of a State except
to the extent permitted by clause-2 read with clause-3 of the said Article
289.” There is yet another category of References in which the president
filed a Reference even before Bill was tabled in the Parliament and it was
held that it makes no difference that bill is pending, since President was
competent to make a Reference at any stage .[
In re: Special Courts Bill
1978
(AIR 1979 SC 478)].
89. It may not be out of context to note that in a country like
Canada, the advisory jurisdiction of Supreme Court is invariably invoked
and the Court had been examining legislative proposal before making the
same as law. The jurisdiction invariably has been invoked not only in
respect of Constitutionality of a Federal law but the constitutionality of a
provincial law as well. Reference may be made to
the Constitutional Law
of Canada
by Peter W. Hogg (244, 228 and 229), wherein the commentator
Reference No.2/2005
95
has observed “the reference procedure has been used mainly for
constitutional questions. It has rarely been used to seek answers to nonconstitutional
questions, although it is available for that purpose as well.
The questions referred are usually about the constitutionality of a federal
law (or a proposed federal law), but the constitutionality of a provincial
law can also be referred, and this has been done from time to time.”
90. The importance of seeking opinion of the Supreme Court has been
well explained by the same author in following words:-
“A balanced assessment of the reference procedure must
acknowledge its utility as a means of securing an answer
to a constitutional question. As noted earlier, the
reference procedure has been used mainly in
constitutional cases. This is because it enables a
government to obtain an early and (for practical purpose)
authoritative ruling on the constitutionality of a
legislative programme. Sometimes questions of law are
referred in advance of the drafting of legislation;
sometimes draft legislation is referred before it is
enacted; sometimes a statute is referred shortly after its
enactment; often a statue is referred after several private
proceedings challenging its constitutionality promise a
prolonged period of uncertainty as the litigation slowly
works its way up the provincial or federal court system.
The reference procedure enables and early resolution of
the constitutional doubt.”
91. One another commentator P. Macklem, in
Canadian Constitutional
Law
, Volume-I 1994, has opined that “one of the most distinctive features
of the Canadian Judicial Review is its frequent resort to the constitutional
reference. This frequency can be demonstrated by a survey of the leading
cases: those reaching the Privy Council up to 1949, the Supreme Court of
Canada thereafter, decided from 1867 to 1981. Of 282 cases involving
constitutional issues, 77 had their origins in a constitutional reference
while 205 involved concrete cases. Nor does the fact that over a quarter, of
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96
the leading decisions were given in such proceedings reveal the full
significance of constitutional references. In terms of impact on the political,
social and economic affairs of the country the decisions in these cases have
had an effect far beyond their numerical proportion.”
92. The Supreme Court of Ireland has on various occasions examined
the vires of pending bills under its advisory jurisdiction details whereof are
available in Constitutional Law in Ireland by James Casey which reads as
under:-
“Article 26 has so far been used seven times, viz:
(a) The Offences against the State (Amendment) Bill
1940[1940] I.R.470.
(b) The School Attendance Bill 1942[1943] I.R.334.
(c) The Electoral Amendment Bill 1961[1961] I.R. 169
(d) The Criminal Law (Jurisdiction) Bill 1975 [1977]
I.R. 129.
(e) The Emergency Powers Bill 1976 [1977] I.R. 159.
(f) The Housing (Private Rented Dwellings) Bill 1981
[1983] I.R. 181.
(g)
The Electoral (Amendment) Bill 1983 [1984]
I.L.R.M. 539.”
93. Thus, above discussion leads us to conclude that President in
exercise of powers under Article 186 of the Constitution is empowered to
seek opinion of this Court in its advisory jurisdiction in respect of any
question of law which has arisen or is likely to arise including the Bills
passed by Provincial Assemblies.
94. Learned counsel for NWFP relying upon the decision in
Attorney
General for Ontario versus Hamilton Street Railways
Privy Council
(1903) A.C 524, has emphasized that the courts will not decide the
speculative question, the Supreme Court can only give decision on a
concrete case. The argument has no substance in view of the discussion
made herein-above. So far as, the law relied upon by him is concerned, it
pertains to the year 1903 whereas, in the meanwhile, number of
constitutional changes in different countries have taken place wherein the
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97
advisory jurisdiction of the Courts have been extended and invoked to
determine the constitutional questions of public importance.
95. The learned counsel also relied upon
ref: under Section 213 Govt.
of India Act 1935
(AIR 1944 FC 73) and read minority opinion of Sir
Zafarullah Khan, J. who declined to answer the question whereas the
majority of the Hon’ble Judges had answered the reference, while holding
“the fact that the question referred relates to future legislation cannot by
itself be regarded as an objection.” In this very context, it was further
observed that some instances were brought to our notice in which
Reference had been made under the corresponding provision in the
Canadian Supreme Court Act when the matter was at the stage of Bill. It
may be pointed out that the comments made by Sir Zafarullah Khan in his
judgment, were the views made by
Justice Frank Furter in an article
published by Harvard Law Review
but not in a judicial decision. Reference
may be made to footnote 13 at page 80 of the judgment. In
re: Special
Courts Bill 1978
(AIR 1979 SC 478), the Supreme Court of India ruled
that it was not for the Court to refuse to answer the Reference. This Court
in
ref: No.1 of 1988 (PLD 1989 SC 75), reference of which has already
been made herein-above, has expressed the same view.
96. The objection of the learned counsel for NWFP that President is
only competent to refer a question of law which relates to a federal law and
not with respect to a provincial law is also not sustainable in view of the
comprehensive and broad language employed in Article 186 of the
Constitution. As per history special reference No. 1 of 1957 (PLD 1957 SC
219), reference was made by the President asking the Supreme Court
whether under the circumstances Governor can dissolve the Government of
a province. Similarly, in Reference No.1 of 1988, the President of
Reference No.2/2005
98
Pakistan through Secretary Ministry of Law, Justice and Parliamentary
Affairs, asked the Supreme Court whether a Chief Minister could
authenticate expenditure from the Provincial Consolidated Fund when the
Provincial Assembly stood dissolved. As it has been pointed out hereinabove
that Indian Supreme Court also entertained a Reference dealing with
the Provincial subject i.e
Kerala Education Bill 1957 (AIR 1958 SC 956).
Likewise, in
ref: under Article 143 of the Constitution of India (AIR 1965
SC 745), the Indian Supreme Court held as under:----
At the hearing of this reference, Mr. Varina has raised
a preliminary objection on behalf of the Advocate
General of Bihar. He contends that the present reference
is invalid under Art. 143(1) because the questions
referred to this Court are not related to any of the
entries in Lists I and III and as such, they cannot be said
to be concerned with any of the powers, duties or
functions conferred on the President by the relevant
articles of the Constitution. The argument appears to be
that it is only in respect of matters falling within the
powers, functions and duties of the President that it
would be competent to him to frame questions for the
advisory opinion of this Court under Art. 143(1). In our
opinion, this contention is wholly misconceived. The
words of Art. 143 (1) are wide enough to empower the
President to forward to this Court for its advisory
opinion any question of law or fact which has arisen or
which is likely to arise, provided it appears to the
President that such a question is of such a nature or of
such public importance that it is expedient to obtain the
opinion of this Court upon it ………”
97. Identical observations have been made by this Court in
ref: No.1 of
1988
(PLD 1989 SC 75) reference of which has already been made hereinabove.
In this very context under the Constitutional Law of Canada by
Peter Hogg, reference of which has already been made, it has been
Reference No.2/2005
99
observed that the constitutionality of a provincial law can also be referred
and this has been done from time to time.
98. Learned counsel vehemently stressed about the competency of the
Governor to approach the Prime Minister for filing a Reference by the
President without seeking advice of the Chief Minister. Under Article 105
of the Constitution, the Governor is supposed to act on the advice of the
Chief Minister but there are certain areas where he can act in his
discretion under the Constitution. The Constitution is silent as to how the
Governor will communicate with the Prime Minister and if the argument of
the learned counsel prevails, it would lead to an anomalous position that
the Governor cannot communicate with the Prime Minster except on the
specific advice of the Chief Minister. In the instant case, the Governor was
involved at pre-legislative stage by the Chief Minister as he was asked to
express his opinion about the Hisba Bill and in view of his observation the
bill was referred to the CII but the objection raised by the Governor as well
as by the CII in its report dated 6
th September 2004, were not removed,
therefore, the Governor who had already come into picture had no
Constitutional restraints to communicate with the Prime Minister. The
argument of the learned counsel in this behalf loses its value for the reason
that it is not the Governor who had made the Reference but the President of
Pakistan on the basis of the advice from the Prime Minister
notwithstanding the fact as to why the Governor had communicated with
the Prime Minster, but in any case, it cannot be considered unconstitutional.
It has been rightly held in
ref: No.1 of 1988 (PLD 1989 SC
75) that the President is the sole judge of the public importance to question
the desirability of referring it to the Supreme Court. Therefore, the
objection being without substance is kept out of consideration.
Reference No.2/2005
100
99. It is also objected to by the learned counsel that reference is not
competent because it is not inter se the parties. This Court in exercise of
advisory jurisdiction under Article 186 of the Constitution, has to express
its opinion on constitutionality of the Hisba Bill, therefore, presence of the
parties is not called for. Advisory jurisdiction of this Court is definitely
different and distinct from the jurisdiction under Article 184 and 185 of the
Constitution. Reference may be made to
In re: Special Reference under
Article 187 of the Interim Constitution of the Islamic Republic of
Pakistan
(PLD 1973 SC 563) wherein question with regard to adopting a
resolution by the National Assembly for formal recognition of Bangladesh
was examined by this Court in absence of the parties. Thus, this objection
being without substance is turned down.
OPINION OF THE COURT
On having dilated upon the questions referred to by the
President of Pakistan, the Court is of the unanimous opinion that
Section 10 (Bey), (Jeem), (Dal); Section 12(1) (Alif), (Bey), (Jeem);
Section 23(1), (2), (3), (5), (6), (7), (12), (14), (27); Section 25(1), (2)
and Section 28 of the ‘Hisba Bill’ 2005, passed by the Provincial
Assembly of NWFP, are ultra vires the Constitution of the Islamic
Republic of Pakistan, 1973. The above referred Sections of the Hisba
Bill are violative of Articles 2A, 4, 9, 14, 16, 17, 18, 19, 20 and 25 as
well as 175 of the Constitution being vague, overbroad, unreasonable,
based on excessive delegation of jurisdiction, denying the right of
access to justice to the citizens and attempting to set up a parallel
judicial system.
Reference No.2/2005
101
The Governor of the North-West Frontier Province may not
assent to Hisba Bill in its present form as its various Sections noted
herein-above have been declared ultra vires the Constitution of the
Islamic Republic of Pakistan, 1973.
Herein-above are the reasons for our opinion (short order) dated
4
th August, 2005.
REFERENCE ANSWERED ACCORDINGLY
C.J .
J.
J.
J.
J.
J.
J.
J.
J.
Islamabad,
August, 2005.
Irshad /*
APPROVED FOR REPORTING

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