Saad Anis August 13, 2005

Tags: sharia , MMA , Pakistan , hisba

href="/tag/political parties">political parties of the province. The federal government openly opposed the bill in line with its liberalist policies. Several sections of the bill have already been declared unconstitutional by the Supreme Court.


This article will undertake a scrutiny of the Hasba Bill, focusing on areas which have aroused criticism from numerous quarters. In light of the conclusions resulting from this inquiry, it will try to discern the impetus behind this bill and the relevant aspirations of the MMA.


The bill envisages the appointment of a provincial mohtasib (Ombudsman) by the governor of the province, and subsequent institution of similar offices by the provincial mohtasib at the district and tehsil levels. Section 26 provides the mohtasib with a “Hisba Police”, which essentially is the regular police force deputed to work under the mohtasib whenever required. The powers and responsibilities of the mohtasib as defined in Sections 10 and 23 are largely of a didactic nature, including inquiries into corruption and maladministration by provincial government departments, protection of property, rights of minorities and women, and mediation in affairs concerning law and order. The bill empowers the mohtasib to carry out moral and religious policing as well, on which we will dwell later. The abovementioned vision is problematic on two counts. First, entities within the government – such as the police and numerous anti-corruption cells– already exist to carry out the aforementioned tasks. If the said functions are not being performed in spite of institutions dedicated to this end, the solution is to improve upon the existent structure by taking the concerned officials to task, in the stead of going about reinventing the wheel by raising a parallel institution from scratch. Moreover, the creation of the office of the mohtasib will create innumerable clashes of authority and jurisdiction with authorities already functional in the province with the same purported raison d’etre.


Second, the mohtasib would presumably be borrowing personnel from the police force quite often for the implementation of his directives. This would likely create divisive loyalties within the force, owing to confusion among the lower ranks regarding the source of authority. Moreover, by creating two centres of power, it would destabilise the hierarchical structure of the police which is imperative to its efficient operation. Such uncertainty in an organisation such as the police charged with the vital task of ensuring adherence to the letter of the law can be crippling to its efficacy.


Section 12 grants the right of arbitrary investigation to the mohtasib into any departmental matter of the provincial government, vesting in him the powers of a Civil Court in summoning of the concerned parties, production of documents and receipt of affidavits. Section 13 authorises the mohtasib or a representative to enter into any government office and procure documents for evidentiary purposes at will. In addition, Section 25 (3) forbids legal action against any act of the mohtasib carried out “in good faith”. These powers raise problems of a dual nature. On the one hand, the arbitrary licence in search and procurement granted to the mohtasib violates the legal requirement of a warrant for the search and collection of evidence on the premises of any public office under investigation. Furthermore, the bestowal of the powers of the Civil Court on the mohtasib highlights another effort at the construction of a novel judicial structure in the presence of an existing one. One need not dwell long on the matter to realise the countless jurisdictional issues arising as a consequence. Moreover, the “good faith” clause of the bill assures virtual impunity to the mohtasib, all the while providing him carte blanche to indulge in torturous, probing investigations at his caprice. Considering that the bill does not specifically define any monitoring officer or committee for the appraisal of the mohtasib’s performance, the system becomes perilously unstable by virtue of the dual, sweeping powers of lawman and judge resting in the unmonitored person of the mohtasib.


The mohtasib has also been charged with the task of ensuring that Islamic values are protected, guaranteeing that the media and other government publications uphold Islamic values, prohibiting actions against the Shariah, monitoring adherence to Islamic values at public places and advising those found disobedient to their parents. To aver that this is in apparent violation of several articles of the constitution relating to individual freedom and privacy would be redundant. In order to find the flaw inherent in these powers of maintaining social conformity provided to the mohtasib, a brief analysis of the Pakistani society is required.


While it is true that the population of the State is predominantly Muslim, it would be incorrect to hold that the populace is more or less singular in the entirety of its religious beliefs and practices. Although the Muslims of Pakistan, as well as those of NWFP, do share common fundamental beliefs such as the unity of god, they display a remarkable plurality of ideology and practice in the form of numerous sects within religion. The population comprises communities belonging to the Deobandi, Barelvi, Ahl-i-Hadith, Ahlus-Sunnah and Wahhabi sects among Sunnis, and Twelvers, Ismailis (Seveners) and Zaidis (Fivers) among the Shiites, to name a few. Naturally, each of these sects has a different interpretation of divine decree, and has accordingly moulded varying versions of Shariah, or Islamic Law. Even if one disregards the inevitable variation in moral values on a personal level, it must be conceded that at least each sect has its own mores and standards differing in some measure from others. In the presence of such a diversity of religious opinions in society within the fold of Islam, it becomes virtually impossible for the mohtasib to ensure adherence to Islamic values in public or compliance with the Sharia, for the obvious reason that such actions presuppose the existence of a uniform code of laws unanimously agreed upon by citizens of the province despite belonging to various sects. In the absence of such a consensus and in the presence of multifarious views regarding religion, the mohtasib would invariably have to revert to his own view of religion if only for the sake of fulfillment of his professional obligation and would unwittingly end up imposing his beliefs on a public which does not share them. Ergo, the impracticability of laws encouraging religious conformity.


It is interesting to note that the MMA, the primary proponent of the Hasba Bill, is itself a coalition of religious parties belonging to different sects, such as JUI-F (Deobandi), Jama’at-e-Islami (Ahl-i-Hadith / Ahlus-Sunnah), JUP (Barelvi) and Tehrik-e-Islami (Shiite). Their alliance in November 2002 was for political expediency, and they continue to hold widely conflicting religious beliefs. It thus seems strange that the MMA should itself propose and vehemently support a bill which uses obfuscating terms such as “Shariah” and “Islamic values” without providing precise definitions, despite being well aware of dissimilar beliefs on the same throughout society and even within their own ranks.


Of course, reason alone has never been the foiling of an irrational law in Pakistan. In this case, the current military junta has minced no words in condemning the Hasba Bill, as it comes in direct conflict with the Musharraf regime’s policy of enlightened moderation. Considering that the bill, for evaluation of its constitutional validity, was referred to an apex court which has a bleak history of playing to the tune of the military regime time and again, the verdict of the Supreme Court is not surprising. Presumably, the MMA would have been well aware of this, which leads us to infer that it raised the issue of the Hisba Bill only to cause a controversy to serve its own purposes, and never meant for it to be realised. Indeed, the MMA has a history of playing the religion card in order to muster support among the sentimental masses. The aborted Shariah Bill of 2003 was a similar effort, and the Hisba fiasco has conveniently transpired just before the local government elections. The MMA has doubtless stage-managed another opportunity for self-aggrandisement before the public, cashing in on the popular notion of Islam under attack. The Musharraf regime, for its part, has allowed the situation to progress thus far in order to provide a paranoid international community terrified of Islamists, with a substantive reason to continue supporting the military dictatorship in Pakistan.


It is a masterful political manoeuvre. Whether or not it bears fruit remains to be seen.