Promulgation of presidential ordinances has become a routine. The Pakistan Tehreek-e-Insaf (PTI)-led government, critics say, bypasses legislative processes, as set out in the Constitution of Pakistan. This practice is used as a political tool either to silence opponents or to avoid resistance from opposition benches.
A very recent example is the amendment to the Prevention of Electronic Crimes Act (PECA), a draconian law imposed through ordinance. Ex facie, its sole purpose is to curb the freedom of expression and to clip the wings of the media and the press. It is seemingly a means to one end i.e. silencing political opponents. Critics allege it to be a mala fide ordinance in that one has a fundamental right to express oneself but not to criticize government, its policies or ministers, while government supporters have a license to launch any attack on the opposition.
Separation of powers is a characteristic of our Constitution. It stands that legislature cannot exercise executive and judicial powers; the executive cannot exercise legislative and judicial powers; and the judiciary cannot exercise legislative and executive powers. These arms of the government of Pakistan must exercise their respective powers as defined for each of them in the Constitution.
Core legislative function is the sole prerogative of Parliament at the centre and Provincial Assemblies at the provincial level. The doctrine of separation of powers recognizes only the legislature as the law-making authority in the state.
The Constitution itself provides an exception to this general rule. Article 89 assigns this core legislative function to the President of Pakistan, who is to exercise this power on the advice of the Federal Government (the Prime Minister and his Cabinet as held in a case reported as ‘Mustafa Impex etc. v. Federation of Pakistan’ in PLD 2016 Supreme Court 808). This power is a remnant of the colonial era, for the colonialists needed this power to effectively rule the Indian sub-continent.
To find out the scope of ordinance making powers from a constitutional perspective, a bare reading of Article 89 of the Constitution reveals that the President of Pakistan may promulgate an ordinance only when: i) Senate and/or National Assembly is not in session; and ii) circumstances exist which require immediate action. Co-existence of these two constitutionally prescribed facts is sine qua non for promulgation of any ordinance. This power is thus not exercisable as a matter of routine. Compelling circumstances and reasons for taking immediate action are conditions precedent.
Another way of looking at Article 89 is that it is a dormant constitutional provision, as this power remains non-existent when either house of parliament is in session. It also remains dormant when either house of parliament is not in session unless compelling circumstances exist which make it necessary to take immediate action. If circumstances exist but they do not render it necessary to take immediate action, this power will still remain dormant.
An ordinance is a temporary legislation with a life span of 120 days. But it has the same force as an Act of Parliament. Ordinances have far-reaching implications, including abuse of the power.
To comprehend the Constitution, one must understand the contemplations of its framers and the will of the people. The Constitution vests legislative power in the Parliament. It is hence only the Parliament which shall legislate and in very compelling circumstances shall a President promulgate an ordinance: Provided an immediate action is necessary. Unfortunately, the PTI-led government has promulgated ordinances as a matter of routine.
In a federation like ours with a parliamentary form of government under a written constitution, the President is to act on advice of the prime minister and his cabinet i.e. Federal Government.
The Constitution and the Rules of Procedure and Business of the National Assembly and Senate provide mechanisms for stringent checks, monitoring and scrutiny of legislative business at every stage in parliament. It includes: prior Cabinet approval of a bill, tabling it in either house of parliament, its referral to committees and/or sub-committees for report, discussion in parliament (second and /or third reading) and its passage or rejection by the house where it originates. If passed, it goes to the other house where it undergoes an identical process. If the other house passes the bill, it goes to the President for assent. In case the other house suggests changes, the bill goes back to the house from where it originated. After another similar process, if passed, the bill goes for presidential assent to become an Act of Parliament.
But these requirements are dispensed in relation to laws made by ordinance. Did parliament ever eclipse any bill before its expiration? Is there a realization of the need for any constitutional amendment to whittle down the trend of hasty and nasty legislation through ordinances? The time has come to embark on this anomaly as a constitutional issue of public importance. It will help prevail parliamentary independence and constitutional supremacy.
A very recent example is the amendment to the Prevention of Electronic Crimes Act (PECA), a draconian law imposed through ordinance. Ex facie, its sole purpose is to curb the freedom of expression and to clip the wings of the media and the press. It is seemingly a means to one end i.e. silencing political opponents. Critics allege it to be a mala fide ordinance in that one has a fundamental right to express oneself but not to criticize government, its policies or ministers, while government supporters have a license to launch any attack on the opposition.
Separation of powers is a characteristic of our Constitution. It stands that legislature cannot exercise executive and judicial powers; the executive cannot exercise legislative and judicial powers; and the judiciary cannot exercise legislative and executive powers. These arms of the government of Pakistan must exercise their respective powers as defined for each of them in the Constitution.
Core legislative function is the sole prerogative of Parliament at the centre and Provincial Assemblies at the provincial level. The doctrine of separation of powers recognizes only the legislature as the law-making authority in the state.
An ordinance is a temporary legislation with a life span of 120 days. But it has the same force as an Act of Parliament. Ordinances have far-reaching implications, including abuse of the power.
The Constitution itself provides an exception to this general rule. Article 89 assigns this core legislative function to the President of Pakistan, who is to exercise this power on the advice of the Federal Government (the Prime Minister and his Cabinet as held in a case reported as ‘Mustafa Impex etc. v. Federation of Pakistan’ in PLD 2016 Supreme Court 808). This power is a remnant of the colonial era, for the colonialists needed this power to effectively rule the Indian sub-continent.
To find out the scope of ordinance making powers from a constitutional perspective, a bare reading of Article 89 of the Constitution reveals that the President of Pakistan may promulgate an ordinance only when: i) Senate and/or National Assembly is not in session; and ii) circumstances exist which require immediate action. Co-existence of these two constitutionally prescribed facts is sine qua non for promulgation of any ordinance. This power is thus not exercisable as a matter of routine. Compelling circumstances and reasons for taking immediate action are conditions precedent.
Another way of looking at Article 89 is that it is a dormant constitutional provision, as this power remains non-existent when either house of parliament is in session. It also remains dormant when either house of parliament is not in session unless compelling circumstances exist which make it necessary to take immediate action. If circumstances exist but they do not render it necessary to take immediate action, this power will still remain dormant.
An ordinance is a temporary legislation with a life span of 120 days. But it has the same force as an Act of Parliament. Ordinances have far-reaching implications, including abuse of the power.
To comprehend the Constitution, one must understand the contemplations of its framers and the will of the people. The Constitution vests legislative power in the Parliament. It is hence only the Parliament which shall legislate and in very compelling circumstances shall a President promulgate an ordinance: Provided an immediate action is necessary. Unfortunately, the PTI-led government has promulgated ordinances as a matter of routine.
In a federation like ours with a parliamentary form of government under a written constitution, the President is to act on advice of the prime minister and his cabinet i.e. Federal Government.
The Constitution and the Rules of Procedure and Business of the National Assembly and Senate provide mechanisms for stringent checks, monitoring and scrutiny of legislative business at every stage in parliament. It includes: prior Cabinet approval of a bill, tabling it in either house of parliament, its referral to committees and/or sub-committees for report, discussion in parliament (second and /or third reading) and its passage or rejection by the house where it originates. If passed, it goes to the other house where it undergoes an identical process. If the other house passes the bill, it goes to the President for assent. In case the other house suggests changes, the bill goes back to the house from where it originated. After another similar process, if passed, the bill goes for presidential assent to become an Act of Parliament.
But these requirements are dispensed in relation to laws made by ordinance. Did parliament ever eclipse any bill before its expiration? Is there a realization of the need for any constitutional amendment to whittle down the trend of hasty and nasty legislation through ordinances? The time has come to embark on this anomaly as a constitutional issue of public importance. It will help prevail parliamentary independence and constitutional supremacy.