ISLAMABAD: Since ind­ependence in 1947, successive governments in Pakistan iss­ued over 2,500 ordinances as an alternative to the routine legislative business.

It has been highlighted in the arguments on a petition filed by PML-N lawmaker Barrister Mohsin Shahna­waz Ranjha in the Islam­abad High court. The petition says the president, under Article 89 of the Constitution, is empowered to promulgate ordinances which are a form of temporary legislation subject to two expressly stipulated conditions: when neither the Senate nor the National Assembly is in session, and if circumstances exist which render it necessary to take immediate action.

Umar Gillani, the petitioner’s counsel, informed the court on Thursday that over 2,500 federal-level ordinances had been passed since the country came into being in 1947.

At a previous hearing, the law and justice ministry had said that 156 ordinances had been passed between 2008 and 2018.

PML-N lawmaker assails vires of eight ordinances promulgated by president on Oct 30 last year

Mr Ranjha, a member of the National Assembly, has assailed the vires of eight ordinances promulgated by the president on Oct 30, 2019. These ordinances, he said, were passed shortly before the upcoming Senate and National Assembly sessions starting on Nov 5 and Nov 7, respectively, which the president had good reason to be aware of since house business committees of both houses of parliament had prepared tentative schedules months ahead of the sessions. Without waiting for these upcoming sessions of parliament, the president rushed to promulgate the eight ordinances in a single day, he added.

Giving historical background, the petition said the word “ordinance” meant “an authoritative direction, decree, or command” which became legally significant in England itself for a very short period of time — 1642 to 1660. This was a period in which the king and parliament were at war with each other. As a result, the normal constitutional machinery of England, whereby law-making is done through consensus-building bet­ween the king and parliament, had been suspended. Therefore, the laws passed without Royal assent, were referred to as “ordinances”. After 1660, with the restoration of constitutional monarchy, all the ordinances lapsed and no new ordinances were passed.

In British India, the term “ordinance” was first used in the Indian Councils Act, 1861. Under the law, normal legislature in India was the Governor General-in-Cou­ncil — a cou­ncil headed by the governor general — which included both British and Indian nat­ionals appointed by the British government.

In Pakistan, provisions regarding ordinances were incorporated in Article 69 of the 1956 Constitution. In 1960, the Constitution Commission headed by Sir Shahabuddin strongly criticised the idea of ordinances. However, it was retained in Article 29 of the 1962 Constitution framed by General Ayub Khan. The president’s power to promulgate ordinances found its way in Article 89 of the 1973 Constitution.

The facts were that former president Iskandar Mirza had passed an ordinance to dissolve an elected local government and replaced it with a handpicked administrator, allegedly in order to benefit his Republican Party in the upcoming election. Justice Kaikaus struck down this totally unnecessary ordinance and emphasised that the ordinance-making power could not be used in a routine manner.

“In view of the foregoing arguments, it is humbly submitted the court should clarify the scope of the ordinance-making power once and for all. It should be dec­lared that the power to make laws belongs to the par­liament, which compri­ses of both treasury benches and opposition benches and which comprises not just the National Assembly but also the Senate,” pleaded the petition.

According to the petitioner, ordinances can only be used to bring about only such legislation which is: (a) necessary to enable the federal government to respond to an emergency situation such as war, famine, epidemic or rebellion which has put the life, liberty or property of the people of Pakistan at stake; (b) where the emergency which is being responded to arose after the prorogation of the last session of parliament; and (c) where waiting for the summoning of the next session of either house of parliament would cause irreparable loss of life, liberty or property to the people of Pakistan.

Furthermore, the petit­ion said, it should be dec­lared that at least in the future any ordinance, which was passed in excess of the powers given under Article 89, would be liable to be declared ultra vires. And if such a declaration is issued then all acts done under such an illegal ordinance would have no legal sanctity.

IHC Chief Justice Athar Minallah adjourned the hearing till last week of March as amicus curiae Makhdoom Ali Khan sought time to file a reply in this matter.

Published in Dawn, March 13th, 2020