Published in The News 23-07-2004
Hisbah Act: An Analysis
Afzal A Shigri
Good governance, accountability of the government functionaries and Islamic values are the stated goals of all the governments, whether political or military. Same is the theme of the MMA government in NWFP and the governments in the other three provinces. The NWFP government in order to address these fundamental issues is enacting a law that will short circuit the formal system and presumably provide a quick fix. It is being stated that after this enactment, every thing will fall into place and result in good governance and effective accountability of every one. Even the general behaviour of the public will also conform to the Islamic values as interpreted by the Mohtasibs. To the credit of the provincial government they held a seminar to discuss this law and invited the opinion of the different segments of the society. It was hoped that the views expressed by various quarters will be given due consideration but it is understood that instead of making any meaningful change in the draft that has certain fundamental flaws, the MMA government has decided to take it to the assembly for enactment. Can the present day complexed problems be solved by creation of an institution outside the system through a law? How can a supra body beyond the control of any executive and judicial oversight function? What are the legal issues involved and their fallout? The succeeding paras are an attempt to find answers to these baffling questions.
Actions of the MMA government are apparently a prelude to the introduction of this law. It started with the destruction of advertisement billboards by party workers, beating of musicians, raid by a minister along with police on the houses in the name of morality and the directives to the government servants not to attend music parties. The law in addition to regulating the government department would also police the lives of the common citizens to ensure their conforming to certain norms to be defined by the Mohtasibs at all the administrative levels. The applicability of the proposed law is all embracing. It deals with the mal-administration by the government departments/agencies, personal behaviour of the common man and the civil matters. The law gives a free hand to the Mohtasib to include any other function that it deems fit. He only has to consult the Provincial Advisory Body. He is not bound by its advice. The wide and vague definitions create a grey area that will enable the Mohtasibs to initiate action against citizens on any matter, including personal and family disputes without due process of law and would in effect impinge on the fundamental rights as enshrined in Article 4 of the Constitution. This situation is made worse by the draconian provisions for implementation of orders, where the Mohtasib can issue directives to any officer of the provincial government that he is bound to execute without any question. (Sec 11 of the Draft Law)
The draft law combines the judicial and executive powers in one person. The Mohtasib has at his disposal Hisba Police for enforcement of its orders. He can enquire, investigate and then issue orders that are to be implemented within a specified time. In doing so, he has the "same powers as vested in a Civil Court under the Code of Civil Procedure 1908". In addition, the Mohtasib in respect of contempt of court "shall have the same powers as are vested in a High Court". These provisions give vast, unbridled and sweeping executive and judicial powers to the Mohtasib, who is not subjected to any check by any executive or judicial authority. This is not only against the fundamental management principles of check and balance but also strikes at article 172 of the Constitution that provides separation of judiciary from the executive.
The most disturbing and dangerous provision of the draft law is the exception that states: "No court or other institution shall interfere in passing of an order by a Mohtasib on the question of its propriety or otherwise, nor any court shall pass any stay order in respect thereto." The Mohtasibs will investigate, enquire, reach a conclusion issue orders to any functionary of the government on all aspects of governance, civil matters/disputes and even personal behaviour of the common citizens. The government functionary is bound to carry out these orders without questioning its validity or merit. Against the orders of this authority there is no mechanism for any appeal. It attains the finality once pronounced and the hapless victim of these orders has to accept it. This negates the accepted principles of natural justice of right of appeal by an aggrieved person. The people of NWFP deserve better than being placed at the mercy of an unaccountable institution, whose decisions will essentially be based on the whims of the functionaries exercising the powers of the Mohtasib. It will also marginalise the role of the judiciary, which will be debarred from calling in question the bona-fide of the orders passed on all kinds of cases that would include criminal, civil, administrative and even personal matters. Role of the judiciary that has the sole responsibility of protecting the fundamental rights of all the citizens will stand completely compromised. The proposed law, therefore, need to be examined in detail as judiciary cannot be excluded when the rights of the citizens are violated, as the judiciary is expected to protect the "dignity of man" and "privacy of home". If recent actions by the MMA government is any indication these are the areas that will be most affected by the proposed law. The law in essence in not only conceptually flawed but is also in conflict with the constitution.
It is also proposed in the draft to create posts of Mohtasibs at district with staff and Hisbah Police force. This elaborate department has no specific subject; its basic duty is to regulate the others including the general public. The Mohtasib has the authority to delegate all his powers to Mohtasibs at lower levels of administrative tier. There is no limitation in delegation of his powers or authority. With this delegation these Mohtasibs will also be empowered to exercise their authority as deemed fit by them as their actions fall outside the judicial system, as well as any administrative check. This will create small fiefdoms at local levels that will practically dismantle the formal system of government with serious repercussions for the people at large. The actions of Mohtasibs will be unassailable before any forum; therefore will tend to become whimsical and repressive. Once put in place, they will interfere with the normal working of the provincial government and take away all initiative from the government departments who will not be able to function normally. Interference by an institution that neither has any responsibility nor answerable to any one including the courts is a recipe for administrative disaster as it negates the principles of merit, good governance and judicial accountability. At the end of the day the people at large will suffer. The creation of a parallel structure outside the formal system is fraught with risks that are likely to cost dearly to the MMA government. It would, therefore, be in their interest to have a second look at this proposal that is essentially based on a medieval concept and needs to be brought in line with the modern day realities.
Creation of a separate police force has been also proposed. The provision for Hisba police force is a one-liner. It is vague and leaves the door open for creating a force that will be functioning outside the parameters of the legal system of the country. Their actions will not be subject to any checks except the whims of the Mohtasib. Since this force is the extension of the office of the Mohtasib with unlimited powers of search of all the government records, it is bound to interfere with the normal functioning of departments even on routine and minor complaints and would cause serious demoralisation amongst the government servants who continue to be at the receiving end with every new bright idea of elimination of corruption and inefficiency. Insulation of Hisbah Police from any external check is likely to turn this force into the infamous virtue and vice police of Afghanistan, where it took upon itself to discipline the women in veil by canning them publicly. The TV films of this aberration are still fresh in the memories of people all over the world. Pakistan cannot afford to accept such a situation, particularly in the present day environment because it is already blamed for violation of human rights as well as being insensitive to the gender issues.
MMA as political forum comprises of very learned and enlightened personalities. They must intervene in the public interest for a realistic and unbiased critical examination of the proposed law that seem to have been drafted in a hurry to either find quick solutions to complex problems or is being sponsored as a political ploy. The matter is too serious to be taken lightly, as any flawed enactment will have far reaching consequences for the province, as well as for the country.
The writer is a retired IG, Police