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

Open Letter to the Chief Justice of Pakistan

My Lord, 

I write to your Lordship as a lawyer who participated in a meagre capacity in the Lawyers’ Movement. We stood up then for the Supreme Court of Pakistan because in your Lordship we found a chief justice who was willing to say ‘no’ to the demands of a military dictator. When history is recorded, your Lordship will be credited as being responsible for initiating and executing the end game for Pakistan’s last military dictator and for laying the foundation of sustainable constitutional civilian rule in Pakistan. Therefore, your Lordship’s place in history is assured and unshakeable.

Privacy, Media and Pakistani Law

By Yasser Latif Hamdani

Two recent episodes have driven home that the people of Pakistan do not wish to live their lives in fear of misdirected religiosity and misguided zeal. The first one was the incident pertaining to Maya Khan and her ill-advised intrusion into the private lives of citizens. The second incident was where another such vigil-aunty from the Punjab Assembly moved a resolution to ban musical concerts at educational institutions in the province. Both these moves were heavily criticised and were widely denounced by the people.