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Clauses of Hasba Bill declared unconstitutional

21 February, 2007

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ISLAMABAD: A larger Bench of Supreme Court, while reviewing the presidential reference against Hasba Bill, has declared some clauses of the bill as unconstitutional, directing the NWFP Assembly to amend the said clauses.

The Full Court comprised of Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan, Mr. Justice Abdul Hameed Dogar, Mr. Justice Sardar Muhammad Raza Khan, Mr. Justice Khalil-ur-Rehman Ramday, Hon'ble Mr. Justice Muhammad Nawaz Abbasi, Mr. Justice Mian Shakirullah Jan, Hon'ble Mr. Justice Saiyed Saeed Ashhad and Mr. Justice Nasir-ul-Mulk.

The Court ruled that two Sections viz. 2(11) and 3(2) of Hisba Bill 2006 are not complied with the earlier opinion of the Supreme Court of Pakistan in previous reference. It appears to have escaped the notice of Provincial Legislature and may be given due consideration by them. The Court further opined that any violation of the provisions of Section 23 of the Hisba Bill, 2006 shall not be subject to Section 14 of Hisba Bill 2006.

Hon'ble Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry in his short order said that "Opinion expressed in reference No. 2 of 2005 (Hisba Bill, 2005) has been complied with except the provisions of the Section 2(11) and Section 3(2) of the Hisba Bill, which appears to have escaped the notice of the Provincial Legislature, which may now be given due consideration. We are further of the opinion that any violation of the provisions of Section 23 of the Hisba Bill, 2006 shall not be subject to Section 14 hereof."

The Court cites articles 2(11) which pertains to definition of an Alam (Scholar) and Provincial ombudsman, and article 3(2) which is in reference to contempt of court, are unconstitutional, hence have been declared null and void therefore Presidential Reference is approved.

The federal government was represented by the attorney General of Pakistan, while the NWFP government was represented by advocate Khalid Anwar, who while advocating his arguments expressed his vexation at the fact that government objects to any bill, which has an Islamic aura about it, since it is more focused on secular agenda.

He said that the objections raised now are similar to those raised when the Hasba bill was floated for the first time, despite the fact that every Province is entitled for its legislation, and such a situation calls for a review of the Bill rather than a reference against the bill, while also declaring the presidential reference as totally irrelevant and without any substance, and an assault on Provincial Autonomy.

While replying about a question in reference to the Bill, Khalid Anwar said that whenever expenditure would occur it would be a money Bill, and said that Supreme Court had no jurisdiction to review the reference in the first place, and any objection would have been filed in Peshawar High Court.

He termed the Governor as a representative of the federal government rather than a part of the Provincial government, and cannot interfere in this democratic institution.

Justice Khalil Ramday wanted a clarification about Money Bill, since that was important for the Apex Court to arrive at a legal conclusion of the case, and might affect the NA Speaker as well.

The Attorney General said that the Hasba Bill in reference to constitutional articles is not the Money Bill, upon which the Larger Bench of The Apex Court accepted the legality of presidential reference and ordered the NWFP government to amend some clauses, which were declared as unconstitutional.

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