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PAKISTAN: HASBA ACT – A TOOL FOR INCITEMENT

July 26, 2005

Subj: Pakistan: Hasba Act - a tool for incitement.
To: World Evangelical Alliance Religious Liberty News & Analysis
From: WEA RLC Principal Researcher and Writer, Elizabeth Kendal.

The Muttahida Majlis-e-Amal (MMA), an alliance of six hard-line,
pro-Sharia, pro-Taliban Islamic parties, rules Pakistan\'s western
provinces (Baluchistan and North West Frontier Province (NWFP)) with an
absolute majority. It also holds the balance of power in Pakistan\'s
federal parliament.

On 14 July, the MMA passed the North-West Frontier Province Hasba Act
2005, in the NWFP Assembly, 68 votes to 43. If enacted, this draconian
Act would complete the "Talibanisation" of NWFP.

The bill is pending with the NWFP governor, who has until 17 August to
approve the Act or return it to the NWFP Assembly. President Musharraf
however, immediately invoked the Supreme Court\'s advisory jurisdiction
and directed the attorney-general of Pakistan to file a reference against
the Hasba Act under Article 186 of the 1973 Constitution.

The NWFP Governor Khalilur Rehman has promised to take "every
constitutional step to prevent the province being \'Talibanised\' by the
Muttahida Majlis-e-Amal (MMA) government."

The Act went before the Supreme Court in Islamabad on Monday 25 July, but
the court adjourned the hearing after the NWFP government requested more
time to mount a defence. The reference against the Act will now be heard
on 1 August 2005.

NWFP Law Minister Malik Zafar Azam, has charged that the constitutional
right of democratically elected provincial assemblies to legislate will
also be on trial. The Constitution does, however, clearly state that
Provincial Assemblies may legislate "Subject to the Constitution" and
"subject to, and limited by, the executive authority expressly conferred
by the Constitution or by law made by [Majlis-e-Shoora (Parliament)] upon
the Federal Government or authorities thereof." (Articles 137 and 142.)
So the constitutionality of the Hasba Act is the issue.

While the MMA has vowed to defend the Hasba Act in the Supreme Court, it
has also promised to respect the Court\'s decision. The fact is, while the
MMA is determined to "Talibanise" NWFP, it is also playing a political
game. Whether they win or lose in the Supreme Court, the MMA will use the
Hasba Act to gain political mileage before the August/September
provincial elections.

---------------------------
NWFP HASBA ACT
---------------------------

The full text of the North-West Frontier Province Hasba Act 2005 can be
found at < http://www.dawn.com/2005/07/16/nat18.htm >.

The Hasba Act opens by establishing that the "implementation of Islamic
way of life revolves around Amer-Bil-Maroof and Nahi-Anil-Munkir
[forbidding that what is not proper and practicing that what is good] and
to achieve this objective it is necessary, apart from other steps, to
establish an institution of accountability, which could keep a watch on
securing legitimate rights of various classes of the society, including
females, minorities and children and to protect them from emerging evils
and injustices in the society..."

Kanchan Lakshman, a Research Fellow with the Institute for Conflict
Management explains, "The Hisba (Accountability) Act, which will come
into force only after the Governor signs it, will establish a new
department to \'discourage vice and encourage virtue,\' and will set up a
new office akin to that of an ombudsman which is to be headed by a cleric
called Mohtasib (one who holds others accountable) whose main function
would be to \'protect/watch the Islamic values and etiquettes at the
provincial level\'." (Link 1)

Lakshman comments, "While it is clear that the Act sets out to legitimize
the MMA\'s agenda of radical Islam, what has astounded the critics is the
extent of powers that may accrue to the Mohtasib, something that prompted
the poet Kishwar Naheed to say, \'This is more than the Taliban.\'"

Lakshman continues: "A Mohtasib is to be provided with the \'requisite
police force\' called Hisba Police for enforcement. The Hisba Act, akin to
the Taliban\'s moral policing, is also an attempt to form a parallel
judicial system. Ironically, the Hisba force, in acting as the
Inquisition-like \'chief prosecutor\', is itself not accountable to anyone,
since \'no court or authority shall be competent to question the legal
status of the proceedings before a Mohtasib.\'

"According to the Act, \'No court or authority shall have the power to
pass any injunction or any interim or a stay order with regard to any
matter under consideration of the Mohtasib\' and only the Chief Minister
can hear an appeal against his recommendations. The Mohtasib\'s office,
which would only duplicate administration, is estimated to cost Pakistan
Rupees (PKR) 10 billion annually, while the total provincial development
fund is PKR 40 billion.

"The MMA intends, through this institution, to influence in its favor the
local level elections scheduled for August-September 2005. The alliance
has moreover, time and again, declared that it would stop at nothing to
bring \'real Islam\' to the Province."

Daily Times (26 July) reports, "Pakistan People\'s Party Parliamentarians
(PPPP) Senator Farhatullah Babar criticised the Act for lacking a right
to appeal, pointing out that a political appointee [Mohtasib] would be
given an unchallengeable right to interfere in people\'s lives.

"Khurshid Nadeem, head of the Organisation for Research and Education,
said it was a common mistake in Pakistan to assume that the laws could
effect the necessary Islamisation. He contended that the concepts of \'Amr
Bil Maroof\' and \'Nahi Anil Munkir\' were not religious duties and
questioned the purview of the Hasba Act, saying that it empowered the
ombudsman [Mohtasib] to do anything in the name of Islam." (Link 2)

You will note in the full text of the Hasba Act that the Mohtasib will
"monitor adherence of Islamic values" and "discourage un-Islamic
customs". Presumably when the Hasba Act states that the Mohtasib shall
"protect the rights of minorities, particularly to regard the sanctity of
their religious places and sites where they perform their religious
ceremonies", it means that Mohtasib is to preserve the "rights" of
religious minorities according to Islam, that is, as dhimmis: submissive,
second class citizens. This is quite different from the Universal
Declaration of Human Rights definition of religious liberty.

The Act also states that those who do not cooperate with the Mohtasib or
his staff during investigations may be charged with interfering with the
smooth functioning of government.

SHREWD POLITICAL STRATEGY

Pakistani commentator Irfan Husain, in a piece entitled "In the name of
faith", (Kjaleej Times (UAE) 21 July 2005), highlights the problem facing
the MMA. "I recently met an old friend who has served as a senior police
officer in the NWFP for many years. According to him, the rule of the
mullahs has been a huge disaster for the province. No development
activities are going on, corruption is rampant, and ordinary people are
miserable. ... whatever their expertise in theology, [the mullahs] are
hardly trained in economics and administration."

The fact is the MMA\'s popularity is in decline and the provincial
elections are fast approaching. (The first phase of Local Bodies polls
will be held on 18 August.)

If the Supreme Court declares the Hasba Act constitutional and the
governor signs it into law, the MMA will have won a great victory that
will provide legal precedence and leverage to demand the total
Islamisation and Talibanisation of all Pakistan.

However, if the Supreme Court cuts down the Act by declaring it
unconstitutional, the MMA\'s victory will be just a great as they will
become martyrs for Islam. The MMA would use a defeat in the Supreme Court
to demonise the federal government and Pakistan\'s judicial system as
anti-Islamic while whipping-up anger and stoking Islamic zeal. The MMA
would use the heightened Islamic zeal to restore their popularity and
fame as Pakistan\'s defenders of Islam, increase their majority at the
provincial elections, and then boast a "democratic" mandate for complete
Islamisation and Talibanisation of NWFP. It truly is a win-win situation
for the MMA – a masterful stroke of political genius – at least in the
short term.

IMPORTANT DEBATE

The debate in the Supreme Court concerning the constitutionality of the
Hasba Act will be interesting and important.

The Constitution of Pakistan
( http://www.pakistani.org/pakistan/constitution/)states in its Preamble,
"Wherein adequate provision shall be made for the minorities freely to
profess and practise their religions and develop their cultures..."

Also: Part II, "Fundamental Rights" Chapter 1, 20a) states, "every
citizen shall have the right to profess, practise and propagate his
religion."

These statements should give us confidence that Supreme Court will
quickly declare the Hasba Act to be unconstitutional.

Hamid Khan, Chairman Executive Committee Pakistan Bar Council said that
the Hasba Bill is unconstitutional and is repugnant to the fundamental
rights enshrined in the constitution and the institution of Mohtasib and
the sweeping powers given to him would undermine the freedom of religion
protected under constitution. He further opined that the citizens of
NWFP, particularly the minorities, would feel themselves as second class
citizen and would remain under constant threat of insecurity. (Link 3)

However, the Constitution of Pakistan also contains the standard Islamic
loophole: Part IX "Islamic Provisions", 227 (1) "All existing laws shall
be brought in conformity with the Injunctions of Islam as laid down in
the Holy Quran and Sunnah, in this Part referred to as the Injunctions of
Islam, and no law shall be enacted which is repugnant to such
Injunctions."

While the Supreme Court will be told that the Hasba Act contravenes
constitutional guarantees, in particular the fundamental right to
religious freedom, the MMA will doubtless argue that it is the Hasba Act,
rather than the Constitution, that is in conformity with Islamic
injunctions.

Pakistani Commentator Irfan Husain comments on the problem this presents:
"Modernists maintain that the interpretation of Islam being upheld and
enforced by the religious parties is far too literal and removed from the
modern world. Here, they are on slippery ground because mullahs can quote
chapter and verse to prove that the words of God as expressed in the Holy
Book are immutable and timeless." ("In the name of faith", Khaleej Times,
21 July 2005)

HASBA ACT: A TOOL FOR INCITEMENT

Without a doubt, the MMA is using the Hasba Act to gain political
mileage, to complete the "Talibanisation" of NWFP, and to widen the
divide between the federal government and NWFP.

But most seriously, the MMA is using the Hasba Act to destabilise society
by widening the divide between (in Musharraf\'s words) "orthodox Islamic
thought... and those that are enlightened and educated". (Link 4)

Coming, as the Hasba Act now does, on top of a nation-wide government
crack-down on pro-jihad imams, madrassas and militants, the MMA is likely
to have little difficulty convincing many of Pakistan\'s pious poor, as
well as many trained militants, that the Pakistani government is apostate
and an enemy of Islam.

After Friday prayers on 22 July, the MMA led a nation-wide Protest Day to
protest the government crack-down on extremism and militancy, and "to
condemn the global conspiracy against Islam". Protest rallies were staged
in Islamabad, Karachi, Lahore, Multan, Peshawar and Quetta.

Interestingly, the protest rallies were not at all well attended.
Islamabad saw the biggest and most violent rally, with some 700
Islamists, mostly youths (madrassa students), chanting anti-Musharraf and
pro-bin Laden slogans. It is estimated that a sum of only 2,000 Islamists
nationwide turned out to protest, indicating that most Pakistanis are not
as beholden to the MMA and not as displeased with the crackdown on
Islamic militancy and sectarian hate as the MMA believe.

The prayer of the Christian Church must surely be that the MMA strategy
will backfire, resulting in widespread disgust and a rejection of
divisive, repressive, barbaric Islamic mediaevalism, in preference to
national unity, progress, development and complete religious liberty.


- Elizabeth Kendal
rl-research@crossnet.org.au


Links

1) London Bombings and Pakistani Connection: An Indian View
By Kanchan Lakshman. South Asian Tribune. 20 July 2005.
http://www.satribune.com/archives/200507/P1_kl.htm

2) Hasba Bill contrary to Islam and Constitution
Daily Times, Staff Report, ISLAMABAD. 26 July 2005
http://www.dailytimes.com.pk/default.asp?page=story_26-7-2005_pg7_31

3) SC has jurisdiction to nullify any law
http://www.pakistanlink.com/Headlines/July05/18/11.htm

4) Musharraf looks two ways in extremist fight
By Aamer Ahmed Khan, BBC News, Karachi, 21 July 2005
http://news.bbc.co.uk/go/pr/fr/-/2/hi/south_asia/4705379.stm

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