ISLAMABAD: The Islam­abad High Court (IHC) on Friday framed questions to determine the scope of powers vested in the president under Article 89 of the Constitution and the fate of the ordinances promulgated by Dr Arif Alvi to run routine business of the federal government, on a petition.

The court appointed senior lawyers Babar Awan, Abid Hassan Minto, Raza Rabbani and Makhdoom Ali Khan as amici curiae to seek their opinions besides asking the attorney general for assistance in the matter.

IHC Chief Justice Athar Minallah put several questions to determine the legality of the ordinances.

The court wanted to know the scope of powers vested under Article 89 of the Constitution and whether said powers can be exercised “in a routine manner to bypass the legislative procedure prescribed under Article 70 to 88?”

It also asked “whether the ordinances, passed by the president in exercise of powers under Article 89 of the Constitution…are of the nature which meet the prescribed requirements in this regard.” The IHC also sought their legal opinion about the fate of the ordinances passed “in violation of the explicit conditions mentioned under Article 89 of the Constitution”.

Chief Justice Minallah also directed the law and justice secretary to ensure that written comments are filed within a fortnight.

The petition, which was filed by Pakistan Muslim League-Nawaz lawmaker Barrister Mohsin Shahnawaz Ranjha, urged the court to declare the presidential ordinances issued by the incumbent regime “illegal, unconstitutional being ultra vires Article 89 of the Constitution of the Islamic Republic of Pakistan and having been promulgated in a mala fide manner”.

Advocate Umer Gillani, the counsel for the petitioner, apprised the court that the presidential ordinance that could be promulgated in “emergent situation” was being promulgated to run the “routine business” of the federal government.

Accusing the president of not exercising his discretionary powers “judiciously”, Barrister Ranjha said that court had already held that Dr Alvi had violated the Constitution and sought his impeachment.

According to the petition, the president under Article 89 is empowered to promulgate ordinances, which are a form of temporary legislation subject to “two expressly stipulated conditions”: (a) when neither the Senate nor the National Assembly is in session; and (b) if circumstances exist which render it necessary to take immediate action.

As the president was bound to act on and in accordance with the advice of the federal government, the ultimate responsibility for the promulgation of the impugned ordinances fell upon the federal government, the petition said.

It mentioned that President Alvi promulgated as many as eight ordinances on Oct 30, 2019 including “Letter of Administration and Succession Certificates Ordinance, 2019; Enforcement of Women’s Property Rights Ordinance, 2019; Benami Transactions (Prohibition) (Amendment) Ordinance, 2019; Superior Courts (Court Dress and Mode of Address) Order (Repeal) Ordinance, 2019; National Accountability (Amendment) Ordinance, 2019; Legal Aid and Justice Authority Ordinance, 2019; The Whistle-Blowers Act”.

The official website of the lower house of the parliament indicates that President Alvi had promulgated at least 20 ordinances since Sept 24, 2018. It seemed the ruling Pakistan Tehreek-i-Insaf had adopted ordinances as “normal and routine method for legislation” to avoid parliamentary law-making as much as possible.

The counsel for the petitioner apprised the court that the legislative procedure prescribed under Articles 70 to 88 of the Constitution could not be bypassed in a routine manner and that too when the eventualities contemplated under Article 89 of the Constitution were not in existence.

While referring to the relevant constitutional provisions, the petition said Article 89 represented a narrow exception to the general procedure for bringing about legislation. “Bare reading of the text shows that the power to legislate conferred on President by Article 89 is meant only for dealing with emergencies and not handling routine matters,” the petition added.

It said the ordinances did not represent a bona fide exercise of the power conferred by Article 89, as apparently all the impugned ordinances were meant to bring about long-term governance reform which fell squarely in the category of “routine legislation”.

Subsequently, the petitioner requested the court to declare the presidential ordinances issued by the incumbent regime “illegal, unconstitutional being ultra vires Article 89 of the Constitution of the Islamic Republic of Pakistan and having been promulgated in a mala fide manner.”

The court adjourned further proceedings till Jan 21.

Published in Dawn, January 4th, 2020