ISLAMABAD: Under public criticism over opting for temporary legislation, the government on Wednesday assured the Islamabad High Court that the practice of frequent promulgation of presidential ordinances was about to come to an end.

During the hearing of a petition filed by a number of eminent academicians, rights activists and scholars against the promulgation of HEC Ordi­nance that reduced the term of chairman from four to two years and ‘curbed’ its autonomy, Attorney General (AG) Khalid Jawed Khan informed an IHC bench that the prime minister is determined to govern the country through parliamentary democracy.

He shared details of his recent meeting with Prime Minister Imran Khan where the issue of presidential ordinance was thrashed out in detail. The prime minister inquired about the past practice and then decided to exercise the constitutional provision judiciously, the AG added.

It may be mentioned that since July 2018 when the Pakistan Tehreek-i-Insaf (PTI) formed the government, at least 54 presidential ordinances have been promulgated to run even the routine business of the federal government. According to the National Assembly’s website, seven ordinances were promulgated in the 1st parliamentary year and 30 in the 2nd year. In the 3rd parliamentary year, which is continuing, more than 16 ordinances have already been promulgating.

As per statistics of the law ministry, 156 ordinances had been promulgated between 2008 and 2018 during the governments of Pakistan Peoples Party (PPP) and Pakistan Muslim League-Nawaz (PML-N), respectively.

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

During the hearing, when PML-N leader Ahsan Iqbal sought permission to speak on the matter being a legislator, the IHC bench comprising Chief Justice Athar Minallah and Justice Aamer Farooq asked him how many presidential ordinances had been promulgated when the PML-N was in power.

AG says prime minister has decided to exercise constitutional provision judiciously

Mr Iqbal replied that “two wrongs do not make one right” and admitted that his government was at fault and regretted for this.

Senior lawyer Farooq H. Naek, who was present in the courtroom to argue the bail petition of former president Asif Ali Zardari, said almost every government had exercised the power to promulgate ordinances. He said the power conferred on the president under Article 89 of the Constitution was co-extensive with the power of parliament to make the law.

Clause (2) of Article 89 states that an ordinance will have the same force and effect as an Act of Parliament and will be subject to restrictions similar to that of the parliament’s powers to make laws. The power to issue an ordinance during the recess of parliament is based on the satisfaction of the president that the existing situation made it necessary for him to take immediate action.

Senator Naek said the only reason given by every president for promulgation of an ordinance was that parliament was not in session.

Justice Minallah reminded the legislators that it was their responsibility to examine the powers given under Article 89 in parliament or standing committees of law and justice or other parliamentary forums.

Senator Naek informed the court that a parliamentary committee is examining an ordinance relating to electronic voting machine and may examine the said article as well.

Advocate Faisal Siddiqui drew the court’s attention to the HEC Ordinance and said that this issue related to common people.

Javed Jabbar, Dr Pervez Hoodbhoy, Mosharraf Ali Zaidi, Prof Dr M. Asif Khan, Syed Ahmed Masood, Prof Dr A.H. Nayyar, Prof Dr Naazish Attaullah, Prof Salima Hashmi, Khawar Mumtaz, Dr Rubina Saigol, former Pakistan Bar Council vice chairman Abid Hussain Saqi, Karamat Ali, Nazim Fida Hussain Haji, Prof Dr Syed Tipu Sultan and Mohammad Tahseen are petitioners in the case.

The present government had de-notified HEC chairman Tariq Banuri after promulgation of the ordinance.

Advocate Faisal Siddiqui contended that the notifications issued in pursuance of the presidential ordinance were flawed. He said the ordinance did not apply to the vested right of tenure of Mr Banuri at all. Secondly, the mere fact that his appointment was notified through a notification dated May 29, 2018 is merely an executive action and it is not that notification itself which creates and confers the right of the security of tenure of four years upon Mr Banuri.

He pointed out that the federal cabinet deliberated upon this matter when parliament was in session.

AG Khan defended the ordinance, saying the government has streamlined the affairs of the Higher Education Commission and it was part of the overall reforms programmes.

Ahsan Iqbal termed it a discriminatory legislation and said that had the government promulgated such ordinances for other regulators like Nepra, Ogra, PPRA and so on, it could have justified the claim of reforming the overall system.

Advocate Siddiqui argued that since the government has no other option to remove Mr Banuri, he has been eliminated through the ordinance.

The petition said the ordinance did not lead to the conclusion that it took away the vested rights of the former HEC chairman, adding that the government authorities misinterpreted the law and curtailed the tenure of Mr Banuri from four to two years. According to the petition, it is a settled principle that laws should be saved through the process of interpretation, including the principle of reading down, especially if reading of the statutory text leads to violation of fundamental rights, including the right of non-discrimination. Even if the interpretation is accepted, it is in contradiction of Article 25 of the Constitution, the petition added.

The hearing was adjourned to August 11.

Published in Dawn, July 29th , 2021