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

Existence of FinFisher Command and Control in Pakistan

Bytes For All, Pakistan, a Pakistan based NPO, has confirmed that FinFisher Software Command and Control Center exists in Pakistan and is being operated by PTCL.

Needless to say this violates Article 14 of the Constitution of Pakistan as it infringes on the privacy and security of Pakistani citizens.

Read Media Report on the issue here.

Maria Zulfiqar Khan's Illegal and unconstitutional raid

By Yasser Latif Hamdani

It is a tragedy that seemingly reasonable young women in the media have taken to acting like vigilantes. I do not wish to comment on what compulsions there exist for these women to resort to such behavior, but I will comment on the patent illegality of TV Vigilantes.

First of all these actions of TV Vigilantes violate Article 14 of the Constitution of the Islamic Republic of Pakistan. Privacy of a private premises is inviolable under the constitution as well as under Islam.  The Supreme Court of Pakistan had struck down on the Hasba Bill on the grounds that it violated human dignity, liberty and privacy. In what is a landmark judgment on privacy rights,  the Supreme Court ruled that an Islamic state has no mandate in infringing personal space, liberty and privacy. Maria Zulfiqar Khan not only violated the privacy of what was a private premises but enlisted the help of the state i.e. police officials in doing so.