Tuesday, July 26, 2005

Pakistan: Hasba Act - a tool for incitement.

Date: Tuesday 26 July 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.

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PAKISTAN: HASBA ACT – A TOOL FOR INCITEMENT
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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.

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NWFP HASBA ACT
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The full text of the North-West Frontier Province Hasba Act 2005 can be found at .

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 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

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