ISLAMABAD: A lawmaker of the opposition Pakistan Muslim League-Nawaz (PML-N) has informed the Islamabad High Court (IHC) that the Pakistan Tehreek-i-Insaf (PTI) government has promulgated 18 ordinances during the pendency of his petition filed against ‘excessive’ presidential ordinances.

MNA Mohsin Nawaz Ranjha, who filed the petition through Barrister Umar Gillani, challenged the powers of President Dr Arif Alvi to issue ordinances to run the affairs of the government instead of making proper legislation through parliament. Initially, it challenged eight ordinances.

The case of the petitioner is that the ordinance-making power is an emergency provision and is not meant for routine legislation. This is clear from Article 89 of the Constitution which places strict conditions on the exercise of ordinance-making power. It is to be exercised only when doing so is necessary for responding to an emergency situation (such as war, famine, epidemic or rebellion) which arises after the prorogation of one session of Parliament and where waiting for the next session would cause irreparable loss to the people of Pakistan.

MNA Ranjha says govt is unfairly taking advantage of pendency of petition

That data suggests that, unfortunately, the ordinance-making power has been constantly abused by successive governments. It appears that more than 2,500 ordinances have been promulgated by presidents of Pakistan since 1947. This practice, which amounts to transgression by the executive into the legislature’s domain, is continuing in Pakistan, the petition pointed out.

The petitioner has assailed eight Ordinances promulgated by the President on Oct 30, 2019. Vide order dated Nov 13, 2019, the court admitted the petition and issued notices. Since then, the case has been taken up for hearing on many dates.

According to the petition, the government is unfairly taking advantage of the pendency of the petition and is promulgating fresh ordinances related to ordinary legislative matters, at full throttle, thereby sidelining Parliament. The ordinances promulgated during the pendency of this petition include, Special Technology Zones Authority Ordinance, 2020, Federal Medical Teaching Institutes Ordinance, 2020, Pakistan Islands Development Authority Ordinance, 2020, International Court of Justice (Review and Re-consideration) Ordinance, 2020, Companies (Amendment) Ordinance, 2020, Corporate Restructuring Companies (Amendment) Ordinance, 2020, Companies (Second Amendment) Ordinance, 2020, Public Private Partnership Authority (Amendment) Ordinance, 2020, Public Procurement Regulatory Authority (Amendment) Ordinance, 2020, Covid-19 (Prevention of Hoarding) Ordinance, 2020, Tax Laws (Amendment) Ordinance, 2020, Covid-19 (Prevention of Smuggling) Ordinance, 2020 (III of 2020), Financial Institutions (Secured Transactions) (Amendment) Ordinance, 2020 (IV of 2020), Pakistan Penal Code (Amendment) Ordinance, 2019 (No.XXV of 2019), Tax Laws (Second Amendment) Ordinance, 2019, Enfor­cement of Women’s Property Rights (Amendment) Ordinance, 2019, National Accountability (Second Amendment) Ord­inance, 2019, China-Pakistan Economic Corridor Authority Ordinance, 2019.

It said that none of these Ordinances can be considered as emergency legislation.

The petition says the president, under Article 89 of the Constitution, was empowered to promulgate ordinances which were 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.

An amicus in this matter Senator Raza Rabbani has stated in the report that an ordinance was a temporary legislation undertaken by the president while parliament was not in session and could be set aside if found inconsistent with the scheme of constitution.

According to him, the power conferred on the president under Article 89 is co-extensive with the power of the 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 the parliament is based on the satisfaction of the president that the existing situation made it necessary for him to take immediate action.

Published in Dawn, January 17th, 2021