OF late, there has been an uptick in the hearing of constitutional cases concerning the ordinance-making power of the president. Every now and then, ordinances enacted by the president are being challenged in Pakistan’s constitutional courts.

Two cases are worth mentioning. The federal government, through a notification dated March 26, 2021, announced the ‘removal’ of the chairperson of the Higher Education Commission Dr Tariq Banuri. This notification was challenged in the Sindh High Court, which stayed the appointment of a new chairperson. As Dr Banuri was removed pursuant to the Higher Education (Amendment) Ordinance, 2021, which reduced the tenure of the chairperson from four to two years, the government argued there were no ulterior motives behind his ‘removal’; rather, he ‘ceased to hold office’ by the operation of law. Similarly, MNA Mohsin Shahnawaz Ranjha challenged the legality of eight ordinances promulgated by the president in a single day (Oct 30, 2019) in the Islamabad High Court.

The proceedings and arguments presented in both cases discussed in detail the president’s power to promulgate ordinances, from constitutional arguments and case law to colonial history. Within Pakistan’s jurisprudential history, the first case to discuss the ordinance-making power of the president was Banaori Lal vs Emperor, which resulted in the high court striking down an ordinance, on the touchstone of excessive delegation. Whether it is the Banaori Lal case in 1943, or the Tariq Banuri case in 2021, the power to promulgate ordinances remains a contentious issue.

This government, in particular, has placed increased reliance on ordinances to resolve routine governance and policy challenges. It has tried to resolve matters related to the Pakistan Medical Commission, Elections Act, 2017, FATF and the provision of consular access to RAW spy Kulbhushan Jadhav through ordinances. However, upon close examination of the constitutional provisions which grant this power to the president, it is clear that the invocation of these powers should be the exception rather than the norm.

Article 89 has been flouted time and again.

Article 89 of the Constitution allows the president to promulgate ordinances. However, the president has to satisfy a two-pronged test to enact ordinances. Firstly, the Senate or National Assembly must not be in session and, secondly, there must exist circumstances that render it necessary to take immediate action.

Taking a closer look at most ordinances passed in Pakistan’s history, it is evident that the requirements laid down in Article 89 have been flouted time and again by various presidents. The questions raised by the petition filed in the Islamabad High Court by MNA Ranjha, represented by legal counsel Umer Ijaz Gilani, are, therefore, timely and relevant. The petitioner’s case is that ordinance-making power is an emergency provision and is not meant for routine legislation.

This is clear from Article 89 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. The aforementioned cases, therefore, present a welcome opportunity for the court to lay down and define parameters within which the ordinance-making power must be exercised by the president.

Pakistan has earned the dubious distinction of being one of the very few parliamentary democracies where legislation via ordinances is in vogue. In fact, it is thriving. When compared to the neighbour, Pakistan has promulgated 1,774 ordinances since 1973 while India has only enacted 533, despite the latter being a bigger federation with complex policy and governance challenges. This points to a menacing trend. Such power impedes deliberation and consensus-building which is part and parcel of any vibrant democracy. Doing away with the president’s ordinance-making powers will prevent the government from unilaterally passing laws. It will also force the treasury to have much-needed discussions and do its homework at various stages of formal legislation in parliament. Ordinances make a mockery of parliamentary democracy and widen the gulf between the opposition and government.

As Justice Fazal Karim, who is considered an authority on constitutional issues, notes in Change Is the Only Constant: “Pakistan should immediately get rid of lawmaking by ordinances — which in reality is lawmaking by the Executive. That will be proof of our maturity as an independent democratic nation, capable of living unfettered by the past. After all, the past we are so dutifully adhering to, is not our past; it is a relic of colonial hegemony.”

Aman Rehan is a Karachi-based lawyer. Muhammad Usman is a Lahore-based lawyer. They are alumni of the Sheikh Ahmed Hasan School of Law, Lums.

Published in Dawn, July 7th, 2021