Ordinances have the status of laws. Made by the executive, they amount to setting the state’s direction by the executive instead of the Parliament. They are framed in secrecy, without discussion or debate by a few people in the executive, unlike legislation made in the Parliament which comes after discussion and debate among all political parties and provinces. That is why ordinance promulgation is supposed to be resorted to only under exceptional circumstances.
The brief submitted to the committee also acknowledged, “majority of countries have no provision of legislation by decree or executive and only a handful of countries, no more than 10, retain such a provision in their constitutions.” It is a remnant of our colonial history. After all, colonial rulers, while experimenting with power transfer to locals, retained powers to legislate with themselves. But even the British parliamentary system inherited by Pakistan does not have any provision of legislation by the executive, the brief said.
The 1973 Constitution of Pakistan, in its Article 89 provided thus, “the President may, except when the Senate or National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an ordinance, as the circumstances may require.” This power was restricted under the 18th Amendment. Now an ordinance can no longer be reissued again and again indefinitely. It can be extended only once and “shall stand repealed at the expiration of the extended period or, if before the expiration, a resolution disapproving it is passed by a House, upon the passing of that resolution.”
In the period between 1989 and 2019, the president issued 1,198 ordinances. The largest number issued in a year: 137 in 2002
A landmark ruling by the Senate chairman in July 2016 further restricted the powers of the executive. The ruling required that an ordinance has to be laid on the first day of the sitting of House after the promulgation, and the reasons that necessitated the President to promulgate it would have to be explained. The House can condone the delay in laying it for no more than 10 days, and only after the reasons for delay of each day are explained by the minister concerned in the House.
However, despite the 18th Amendment and the chairman’s ruling, the executive has continued to operate the ordinance-making workshop. The three fundamental requirements - namely the Parliament shall not be in session, existence of circumstances that render it necessary to issue an ordinance, and the immediacy factor - continue to be ignored and fraud has continued to be played on the Constitution.
With an aversion to Parliament, Imran Khan announced soon after coming into power to make laws through ordinances because he had no majority in the Senate. Of the 21 ordinances issued last year, 11 were passed in a single day and retracted only after protests. In September last year, four ordinances were laid by the government in the Senate on the day it was being prorogued and only towards the end of the proceedings to avoid any discussion. Notices already submitted for disapproving the ordinances were disregarded. Worse still, the most controversial Gas Infrastructure Development Cess (GIDC) Ordinance was not included in the four ordinances to avoid any media focus. An agitated opposition walked out. The quorum bells were rung for five minutes. When the House reassembled, someone pointed out the quorum and the House was adjourned sine die.
Some interesting disclosures were made in the meeting: “The data regarding promulgation of ordinances is not available in detail in any government website, including the Ministry of Law and Ministry of Parliamentary Affairs. The data compiled by the Ministry of Parliamentary Affairs from various sources showed that in the 30-year period (1989 to 2019), the President issued 1,198 ordinances. The largest number issued in a year: 137 ordinances. These were during the peak days of Musharraf’s dictatorship in 2002. Significantly, the rate dropped after the 18th Amendment. While during the 20-year period (1989-2009), a total of 1,087 ordinances were issued, during the post-amendment decade (2010-19) only 111 ordinances were issued.
Some ordinances promulgated in the past were subsequently amended by the Parliament at the time of approval. No one knows who benefitted and in what manner between the time it was promulgated and when it was passed with amendments by the Parliament. Hopefully, the Senate committee’s latest initiative will expose those who benefitted.
The committee must also examine the Rules and Regulations, whether framed under ordinances or normal legislation through parliamentary processes. Rules are subordinate to legislations and must truly reflect the spirit of the legislation itself. The Parliament has had no role in framing the rules and it has seldom been provided copies of rules even when demanded. In the case of the extension in service of the army chief recently, it transpired that rules and regulations under the Army Act were a closely-guarded secret. Fortunately, the Supreme Court declared that all rules and regulations were subordinate legislation and thus a public document that cannot be kept under the wraps.
The committee also learnt that the National Command Authority (Amendment) Ordinance, 2016 dealing with the nation’s strategic assets was laid in the Senate after an inexplicable delay of 92 days. A participant pointed out that the rules framed under the Act were not provided even after repeatedly demanded both by the defence and the delegated legislation committees of the Senate for several years. He urged the committee to probe why the executive avoided laying of the NCA (Amendment) Ordinance in the House, who framed the rules, and under which framework, and why these rules were not being provided to the Parliament.
Senator Sassui Palejo and Committee on Parliamentary Affairs are up against a daunting task, the Supreme Court ruling notwithstanding.
The writer served on Senate Committees of Defence and Delegated Legislation