Issues involved in the Hasba Act controversy

(Part 1)

The controversial Hasba Act, was approved by the NWFP assembly on the 14th of July. It did not receive bi-lateral support from other parties and was passed solely on the majority of the MMA in the assembly. Coincidentally, this important legislation was piloted during the absence of the NWFP Chief Minister, who was in the USA on official business and also lobbied there for the bill; in a country, which has been the focus of MMA criticism in the past.

          The Hasba Act has ignited hostile comments; it has divided society and has caused alarm abroad. Before examining the main issues it will be instructive to look briefly to the events of 1953 because in that formative phase of Pakistan similar issues had arisen; the episode of the anti Ahmadiya riots in Lahore. Most of the issues relating to religion and the running of the affairs of Pakistan were discussed in the inquiry report, which was conducted by two judges of the Supreme Court, Justices Munir and Kayani.  

          The inquiry found the riots to have been the work of the religious parties; the Jamat e Islami, Ahrar party, Ahle-Hadith and others. Most of the issues that are confronting the state in the Hasba conundrum are the same that arose in 1953.  No one objected to the findings of the inquiry report, except the Jamat e Islami.

          Unfortunately, instead of the Munir report being used for the reformation of the state, the report was treated as secret and concealed from public scrutiny. Rumor has it that it is no longer available. However, Justice Munir mentioned portions of some of the important findings in his other written work.

          He accused weak state functionaries responsible for the riots; the Chief Minister of Punjab, who diverted the movement towards the Prime Minister Khawaja Nazimudin to embarrass him. Reportedly, the Prime Minister dilly-dallied and the agitation got out of hand. Stern Action could have neutralized the situation. Justice Munir thought that it only required a competent deputy commissioner and a superintendent of police to nip the evil in the bud and save the state from de-stabilization at that time.

          The death sentences passed by a court martial on the leader of the Jamat-e-Islami, Maulana Mawdudi and on Abdus Sattar Niazi  was set aside and the larger matter  of the limits of religion on state remained dormant. Twenty years latter, the religious forces took up the agenda of 1953; it forced Bhutto to declare the Ahmadis non-Muslims. His failed appeasement of the rightist PNA alliance led to his ultimate ouster and unfortunate execution by Ziaul Haq.

          The Munir inquiry report examined an enormous amount of literature and witnesses to reach its findings. Three of its conclusions are important for our present discussion.

          Firstly, that there was no single agreed definition of a Muslim. No two ulemas were in agreement on this crucial matter. Thus, the question as to who was a true muslim remained unanswered.

          Secondly, the inquiry found that there was no express text in the Quran to indicate imposition of death penalty for apostasy. According to the evidence led, apostasy happened when someone opted out of his inherited religion. Justice Munir said, The net result of all this is that neither Shias nor Sunnis nor Deobandis nor Ahl-I-Hadith nor Barelvis are muslims and any change from one view to the other must be accomplished in an Islamic State with the penalty of death, if the government (state) is in the hands of the party, which considers the other party to be kafirs.

          Thirdly, when Mian Muhammed Tufail, of Jamat-I-Islami was questioned by the inquiry, whether he accepted the concept of Quaid-I-Azam’s Pakistan as outlined in his speech of 11^th August, 1947 addressed to the constituent assembly, Mian Tufail demurred. In this speech, the Quaid stated that there would be only one Pakistani nation, consisting of Muslims and non-Muslims, having equal civil rights without any distinctions of race, religion or creed and that religion would be merely a private affair of the individual.

          While this agitation against the Ahmadis was building up in Lahore, the Interior Minister banned Ash-Shahab, a pamphlet written by Maulana Shabbir Ahmad Usmani, who later became Sheikh ul Islam-i-Pakistan. In it, the Sheikh had attempted to prove that the punishment for apostasy was death.

          The reason given for banning the pamphlet was that it would project Islam as a religion of fanatics, as it proscribed all independent thinking. The Quran itself lays repeated stress on reasoned thought, toleration and preaches against compulsion in religious matters. Who is right? The answer is self evident; it is the Quran, which holds supremacy. If Maulana Shabbir’s view is accepted, then as Munir said, Islam becomes an embodiment of complete intellectual paralysis. A direction, which has already been taken. It is evident that under the clergy’s control the Hasba Act, if implemented would take Pakistan further down the road of theocratic control over society and personal thought. A frightful prospect indeed. It would also negate the concept that the Quaid had for Pakistan.           Furthermore, the Act permits the invasion of privacy and makes personal conduct relating to religion cognizable by the Hasba authorities. Thus contradicting Quaid, who said that religion would be a private matter in the new state.

          Over a period of time, the rightist forces in Pakistan have succeeded in changing the basic state philosophy. Much of the pressure for this was built up during the Afghan jihad years and our dalliance with the Afghan talibans from 1980-2000. Unwittingly, the US while propagating this strategy ignored both the blow-back factor and the radicalization of Pakistan and the Muslim world.         Simultaneously, the US sponsored visible anti-muslim policies in Palestine and the Middle East. Its only pro-muslim interventions were in Yugoslavia. It would give credence to the conclusion that the US policy in the Middle East is more a reflection of internal US politics rather than a general anti-Islamic bias.

          After the first tabling of the Hasba bill last year, it went `to the Council of Islamic Ideology for its opinion. It returned with the observation that the bill was controversial on constitutional and legal grounds.

          The MMA, without satisfying the CII or reaching a consensus in the assembly, moved the bill and passed it. The MMA made two errors of judgment. Firstly, they did not clear the objections of the CII. It is correct that there is no specific clause in the constitution laying such a procedure. However, in this case, a state organ had raised objections and they required to be addressed. Secondly, if the MMA believed in democracy then it ought to have evolved a consensus in the house.

          Common sense, history and experience of mature states in Europe indicate that politics and the pulpit are two opposite subjects and have little in common; secondly, that the cause of civil liberty and civil government gain as little as religion by this confusion of duties. The reason for such a conclusion is quite simple.

          The affairs of state take place in the physical world and are prone to both error and confrontation with new situations; in matters of state, there is no such thing as the only approach since it is not a matter of faith. Changes in positions and building of consensus are always taking shape to drive the political process forward. In a democracy, this is only possible with the support of different interest groups. However, when politics is managed through a belief system, and when approaches are tested on the yardstick of religion, then progress is stopped. A belief rooted system can only operate under conditions where every one is the same.

          The Quran propagates study, research and the development of reason. If this window to change and progress is closed, then we have no future. We already suffer from a poor educational system, spending only about 1.4% of our GDP on this crucial area. The result of this failure is that we have left the education field open to the influence of some of the most reactionary elements in society. Networks have developed for collection of funds and propagation of a medieval philosophy. In Jungian terms we are developing a negative collective un-conscious. Such system will turn out misfits who do not possess societal skills to integrate into the world; creating social monsters rather than integrated personalities. In the image of Hasan Ibn al-Sabbah, the Old Man of the mountain, who terrorized the Middle East, rather than intellectual giants with enlightened minds like Ibne  Khalidun.

          Allama Iqbal was gripped with similar fears, which he expressed so eloquently in his 1920, series of lectures on the Reconstruction of Religious Thought in Islam. Because of the fear of a back-lash from the clergy, he refused to pursue the matter further. What a tragedy!

          There can be a question asked, Look at what is happening to the Muslims in Palestine, Iraq or Afghanistan; fellow Muslims are being killed and yet you are advocating the creation of educated and well rounded personalities integrating into a western dominated world. They will not be able to force change of attitudes in the west. These suicide bombers will do.

          My view remains the same. A system based on sacrificial death does not contain the seeds of bringing forth practical solutions. It is the enlightened muslims, who would be of help.       

          The MMA had been doing reasonably well as the provincial government. It is a million dollar question why it opted for confrontation by passing the Act at this particular time? Some murmurs suggest that the MMA alliance was pushed into pursuing the controversial legislation by members of the more doctrinaire Jamat e Islami. The JUI(F) advising caution against such a course of Action.  The final answer would lie in the internal dynamics of the alliance and the views of the two major components, the JI and the JUI(F). Apparently, the rumors have some weight.

          Let us now look at the case of the MMA in support of the Hisba Act. After all, they too have done a lot of home work. An indication of the strength of their approach lies in the following construction;

          Presidential Order no 14 of 1985, issued by Ziaul Haq introduced Art 2 A into the Constitution. It made the Objectives Resolution, reproduced in the annex as part of the constitution, {critics say that this version is different from the Actual one}. According to it, the state religion will be Islam.

          The above intention was transformed into law of the land by the Enforcement of Shariah Act, 1991, passed by the National Assembly. Accordingly, it was obligatory on all the Muslims to regulate their lives according to the Quran and the Sunnah. Some of the other matters enjoined in this legislation are the following;

1. Provision of speedy justice through an independent Islamic system of justice
2. Islam enjoins establishment of social order based on amr bil Ma� roof wa nahi anil Munkar, (bidding what is right and forbidding what is wrong).
3. According to section 3, Shariah will be the supreme law of the land
4. According to section 5, all muslims will conduct their lives according to Shariah and they will Act according to it
5. According to the same section, the conduct of government functionaries will be according to Shariah for which laws will be enacted.
6. According to section 9, mass media will promote Islamic values and forbid obscene material.
7. Legal and administrative measures will be taken to eliminate bribery, corruption, and malpractices.
8. Steps to eradicate social evils and promoting Islamic virtues and providing punishments will be taken.
9. According to section 14, the state shall take measures for Islamization of the judiciary with the intent to limit multiplicity of proceedings, litigation, and ensuring the quest for truth by the court.
10. According to section 21, all laws shall be made by the national or the provincial assemblies.  

(Part 2)

Issues involved in the Hasba Act controversy

(by Khalid Aziz)

The Shariah Act 1991, has very clearly given the authority to the provincial assembly to make legislation of the kind enacted in the Hasba Act. It must be said, that the MMA has very faithfully remained within the boundaries of the law. Whatever, the other basis of criticism, it will be hard for the Supreme Court to find fault with purely legal aspects of the Act. Technically, the MMA is on strong grounds. It is another matter whether the drafting of the law has been good. Is it the case that the MMA could have perhaps done better by bringing out separate legislation for each matter instead of jumbling different matters it into an omnibus law and thereby creating conflict with other provisions of the constitution?

          Secondly, it is a point for consideration, whether all the steam being let out on the MMA was not better vented on the Shariah Act 1991, which is the source of the Hasba Act? That is the real source of this agitation. It has allowed the anomalies to develop because of lack of clarity on many issues, including meaning of its intent. I think this is one area that the Attorney General will definitely exploit in his arguments before the Supreme Court.          

          Now that the President has approached the Supreme Court under Article 186, what can be expected?

          Given the jumbling up of too many issues into one law by the MMA, the Supreme Court is likely to give a finding against the Hasba Act. It apparently contravenes provisions of fundamental rights. Secondly, the Act will create a parallel system of judiciary and police. Something not acceptable under the constitution. The Shariah Act of 1991 created this confusion and not the MMA legislation.

          The Mohtasib being put directly under the Chief Minister makes it similar to the religious police in S. Arabia. It could also be misused against dissent and opposition. Secondly, is the police so superior in its own personal morality that it can regulate the moral conduct of others? I have serious doubts.

          A Supreme Court opinion against the Act will put a temporary stop to the momentum for the transformation of NWFP into a Taliban province. The religious forces however will await another opportunity to strike back; at a time of their choosing.

          To prevent future exploitation of religion for political purposes, it is an excellent opportunity for the re-iteration of the principles of state management and to bring them on par with the principles enunciated by the Quaid on 11^th August 1947. Both the Shariah Act and the Pakistan Resolution need to be re-visited to analyze the long term implications for the state of Pakistan.

          Secondly, it would serve the interest of the country, if the 1954 Munir Inquiry Report into the Lahore riots is taken note of while disposing the reference (make it public please). It will help in planning the future course of state transformation.

          The findings of the Supreme Court under Art 186 are advisory in nature. However, in the hands of the President they could become a powerful weapon, when read with Art 149(4).  The finding could also be used as grounds for the dissolution of the provincial set up at an opportune time, if the circumstances so dictated. However, this will create a sympathy vote bank for the MMA.

           The MMA on the other hand, expects that its stand on the Hasba Act will mobilize votes for the forthcoming L.B elections.  Being in power and equipped with a ready excuse that the federal government is not permitting it to Islamize society through the Hasba Act, are two important arguments for victory in the present L.B elections. However, internationally a MMA success in the L.B elections will be negative for Pakistan. It will prove to the world that the NWFP is still sympathetic towards extremism; our previous support for the Taliban and the participation of NWFP residents in the Afghan jihad will give additional material to our detractors. They will be right too!        

          An un-biased examination of the Hasba Act bring out the following weaknesses in it;

1. a) There is a duplication of objectives, by undertaking to accomplish accountability and enforcing Islamic moral conduct in the same law. What does Islamic conduct have to do with accountability? One relates to the personal world of a person and which deals with morality, while accountability deals with officers of government. The law is too wide and diffused. It misses on specificity.
2. b) There is no definition of pious and virtuous conduct on different occasions in the Act. Without a definition of offences, how would people know what is right and what is wrong? Further, which school of thought’s definition will the Mohtasib follow? The Deobandi, the Jamat’s or the Ahle-Hadith’s? Since the government is going to appoint the Mohtasibs, they will naturally enforce the Deobandi and JI variants. There is no unanimity of view on this issue; various schools of thought have given different interpretations. This opens the door to potential despotic and oppressive behavior by the Hasba authorities. It is also open to resistance on religious grounds.
3. c) A person proceeded against would not know which clause of virtue was infringed by him; consequently how would he defend himself. This also flies against the provisions of Art 9, 12, 14, and 20 of the constitution.
4. d) By favoring a particular interpretation of Islam through the Hasba Act, a monopoly over religion is created. Let us not forget that religion for many is politics as well as money and jobs. Is this aimed to entrench the right people in the seminaries and the maktabs? That will be dangerous and is akin to religious cleansing (echoes of ethnic cleansing?).
5. e) The Mohtasib is permitted to follow any/all methods of evidence to reach a finding. What does this mean? If no evidence has been formally recorded how will a person defend himself and how will any appellate forum adjudicate regarding the guilt or otherwise of an accused? Such an Act would be a bill of attainder, criminalizing designated persons, who fall on the other side of a religious divide.
6. f) Section 30 of the bill makes this law superior to all other laws. Does it mean that other laws would now become redundant? Who will decide under which law should the state proceed against a citizen?
7. g) Special coercive provisions have been included in the law to force government functionaries into Action; it would create chaos and harassment in government departments. What little initiative has survived NAB will be extinguished; the recruitment of some of the best minds in the bureaucracy has already slowed; it will now become more difficult to attract good brains to the civil services any more.
8. h) Enactments regarding conduct are reminiscent of totalitarian states – Communism, Nazism, Fascism and the S.Arabian version of Wahabism. Is the MMA in the process of creating another ism? Is the Shariah Act the base for this drift towards a form of totalitarian control?
9. i) Besides shifting the emphasis from a rule of law justice system to another one, the Hasba Act will also create hundreds of new jobs. Obviously, these would go to the favorites with the right religious affiliations. New faculties of law will spring up. Will it make the present lawyers redundant? At present, the services of the existing police force will be obtained. This would create a gap in the normal police strength. So new jobs are likely to be created there. The budgetary impact will be large. The long term annuity effect will be even higher. It also makes the Hasba Act a money bill.
10. j) If the Deputy Commissioner office had remained, it would not have permitted space for the new innovation through the Hasba Act. The Chief Minister perhaps feels, that with the L.B reform and the abolition of the district and tehsil magistracy, he has lost the ability to intercede effectively in administrative matters. For example, look at the list of Actions a Hasba Mohtasib can undertake U/S 22. It includes controlling of prices, crime control, and other similar provisions previously dealt by the district administration. Evidently, the NWFP Chief Minister intends to cover this vacant regulatory space through the Mohtasib.

          Where does this legislation place us? Personally, I think it puts Pakistan into a difficult situation. It will not be long before our citizens are called nationals of a dangerous state, known for excelling in bigotry.

          We have only ourselves to blame. We have failed to make the right choices. Bhutto kow-towed to the rightists and lost his power in 1977. The US defeated the USSR in Afghanistan through a Pakistani based Jihad, which radicalized the country including its armed forces. Zia ul Haq transformed our legal structure by bringing in his version of the Islamic criminal justice system. At each stage, we have traveled further down the road of religious particularism, which has taken us away from integrating with the wider world or investing in our people. Yes, I agree that we have the cultural right to live our lives according to our needs. But we also have to ensure that when we do does not hurt others.

          Since 1947, compromises with the religious right, has given them a dominating influence on state machinery, either directly or indirectly through private Islamic organizations like the Tablighi Jamaat, (many western observers look at it as a Muslim version of the Masonic brotherhood). Agreed that the Tablighi Jamat is doing excellent social work but vested interests are also using it for other purposes. The Hasba Act is yet another step in the conversion of the state purpose but within the space already made available to it by the 1991 Shariah Act. Is this a prescription for our future as a happy and a prosperous country?        

          The Supreme Court can play a major role in the re orientation of the Pakistani polity, by shifting the Islamic paradigm from medievalism towards its inner intellectual core, which is both humanistic and dynamic; a religion, which would produce men and women with social-skills necessary for universal citizens; people able to deal with the problems of the present and create a future built on love and compassion instead of hate and death.

          Whatever the final outcome, the Hasba Act has caused a huge political controversy, further delaying the resolution of the actual problem of the poor  meaningful employment. The MMA, which was moving with considerable adroitness in handling the issues of this province, has put its previous good work in jeopardy by center staging a non-issue. Monasteries deal with such matters not government; the latter’s role is to provide services for improving the difficult livelihood circumstances facing the people.

           When muslim states fail to invest in human beings, hope is destroyed; religion then is the only solace of the people and it also begins to dominate political space. The decay of quality public sector education has been one of our greatest failures. An average person does not have the income to obtain reasonable education for his children in the private sector, which is fleecing the public because of poor regulation. The madrassah is the poor man’s solution made possible by private donations; estimated today to be about $ 1.5 billion dollars annually. The donators do not trust the state any more! These are very serious disconnects and should be cause of a huge concern both to the Pakistan government and its allies.

          The answer is to invest heavily in education, health, employment generation and to improve our regulatory regime. We should reach a 6% level of GNP investment in education and health in the next 3 years, by making cuts in defense expenditure and seeking matching debt relief; if we don’t pay the bill here, we will be forced to make much higher payments for maintenance of internal and external security; One of the causes of the condemnable London explosions lies in this conundrum.  This relationship is being enacted before our eyes.

          Let the donor community give debt relief, which is matched by an equal amount of appropriation from the defense budget. It will be a start of a meaningful war against terrorism; it is the internal version of, getting to the root cause of terrorism.

          What little co-operation the NWFP was receiving earlier from the federal government is now endangered. This will be the biggest loss to the people of NWFP; not the theological hair splitting, whether we are good or bad Muslims?