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Misuse Of Ordinances Is Weakening Democracy

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Usman Khan writes about the PTI government’s frequent usage of ordinances as opposed to legislation and debates in parliament. Democratic governments ought to present the laws before the parliament and seek its approval instead of bypassing the legislature. 

On October 22nd, the federal cabinet decided to present 8 ordinances which range from NAB law amendments to CPC amendments. These ordinances were promulgated by the president of Pakistan on 31st October.

Given the three martial laws and constant breakage of assemblies, the phenomenon of ordinances is not new in Pakistan. It must be first clarified as to what the difference between an ‘Ordinance’ and an ‘Act’ is.

The most layman definition is that an ‘Act’ is the legislation passed by the parliament through proper procedure as stated in Chapter 2, Article 70-75 in the constitution of Pakistan 1973 whereas ‘Ordinances’ are the power of the president to promulgate without assembly vote as mentioned in article 89 of the constitution. Article 89 also provides for restrictions upon the Ordinance promulgated by the president. It states

  1. Power of President to promulgate Ordinances.—(1) The President may, except when  the 1[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.(2)  An Ordinance promulgated under this Article shall have the same force and effect as an Act of 2[Majlis-e-Shoora (Parliament)] and shall be subject to like restrictions as the power of 2[Majlis-e-Shoora (Parliament)] to make law, but every such Ordinance–(a)  shall be laid –

(i)  before the National Assembly if it 3[contains provisions dealing with all or any of the matters specified in clause (2) of Article 73], and shall stand repealed at the expiration of 4[one hundred and twenty days] from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution 4[ : ]

4[Provided that the National Assembly may by a resolution extend the Ordinance for a further period of one hundred and twenty days and it shall stand repealed at the expiration of the extended period, or if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution:

Provided further that extension for further period may be made only once.]

(ii)  before both Houses if it 5[does not contain provisions dealing with any of the matters referred to in sub-paragraph (i)], and shall stand repealed at the expiration of 6[one hundred and twenty days] from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution 6[ : ]

6[Provided that either House may by a resolution extend it for a further period of one hundred and twenty days and it shall stand repealed at the expiration of the extended period, or if before the expiration of that period a resolution disapproving it is passed by a House, upon the passing of that resolution:

Provided further that extension for a further period may be made only once; and]

(b)  may be withdrawn at any time by the President.

7[(3) without prejudice to the provisions of clause (2),—

(a) an Ordinance laid before the National Assembly under sub-paragraph (i) of paragraph (a) of clause (2) shall be deemed to be a Bill introduced in the National Assembly; and

(b) an Ordinance laid before both Houses under sub-paragraph(ii) of paragraph (a) of clause (2) shall be deemed to be a Bill introduced in the House where it was first laid.

Ordinance is deemed to be as an act passed by the legislative assembly yet it is placed with several restriction with the first one being that it can only be promulgated when the assembly is not in session and even then, it can only last 120 days, after which it will be expired unless the assembly passes a resolution to nullify it beforehand. Although they can extend it for 120 days more, the assembly can only do it once.

The reason behind these restrictions is that ordinance can be invoked only when there is some grave emergency, because legally speaking, the act is in violation of the framework of Pakistan which divides the state administration into three groups which is the concept of ‘Trichotomy of powers’. It was effectively highlighted in “2006 SCMR 276” and “2006 SCMR 606” that the trichotomy of powers which is delicately balanced in the constitution, cannot be disturbed as it grants powers to each organ to decide the matters in its allotted sphere.

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If the system of trichotomy, the judiciary has the right to interpret, the legislator has the right only to legislate and the executive has to implement only. However, ordinance allows the executive to disturb this balance and enter the domain of the legislative by legislating.

Ordinances were mostly used by dictators who neither wanted nor needed a legislative assembly, but when we witness an elected government with an intact legislative embark following the path of ordinances, then it is an utter failure.

Pakistan has had troubled democratic history and its legislative growth is stagnant on many fronts, thus the current government’s usage of ordinances to pass laws will weaken democracy and the legislative process.

If the president is to pass all the legislation, then why bother having the parliament in the first place? Is this a declaration that the government has no faith in its own majority assembly or that the government has no political acumen to bring together the opposition to pass a simple bill like the ‘Benami transaction ordinance 2019’ or the ‘Whistle blower ordinance 2019’? Has this administration completely failed?

This open failure is even more frustrating when the government so callously used an emergency article and abused it to pass ordinances which are anything but serious. This act of bypassing the parliament is against the democratic norms and a clear violation of the spirit of the constitution and these ordinances must be opposed, not just by the lawmakers but by the courts as well.

As justice Isa stated, “The ordinance [giving the status of authority to the Federal Government Employees Housing Foundation] was issued in July and nobody debated on the issue in the National Assembly. We are still trapped in a mindset typical of that during martial law,”

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True words as ordinances are the play of dictators, not an elected civilian government and when the current government is already marred by charges of being selected and being propped up by institution, such actions will only reinforce those thoughts and will strengthen the opposition resolve and narrative that this government is not democratic by any means.

The fiasco of article 149 has already ruined the government’s credibility in both being democratic and having knowledge of the law of the land that they are supposed to be governing.

It is about time the current administration stopped finding loopholes and shortcuts leading to abysmal results and took democratic steps to effectively uphold the constitutional framework.

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