ISLAMABAD: A presidential ordinance was issued on Sunday to give constitutional protection to all legislative and administrative measures taken by Yousuf Raza Gilani as the prime minister between April 26 and June 19.
It restrains the courts, including the Supreme Court, from entertaining any challenge to them.
The federal budget approved by parliament and transfers, postings and promotions of officials made under executive orders and protocols signed with foreign countries are among major steps taken by the government which if left unprotected would create serious problems for the government of Raja Pervez Ashraf.
The “Validation Ordinance 2012” was issued by President Asif Ali Zardari to validate the “acts, orders and instruments etc done, made and issued by the prime minister” from April 26, when he was convicted by the Supreme Court on contempt charges, and June 19, when a three-judge bench headed by Chief Justice Iftikhar Muhammad Chaudhry disqualified him with retrospective effect.
The ordinance was issued hours after the chief justice made the remark that parliament could not frame laws repugnant to the Constitution.
But the president’s move may trigger a new controversy with a number of prominent lawyers inclined towards the opposition criticising the ordinance and indicating that it would be challenged in the apex court.
On the other hand, the Pakistan People’s Party (PPP) is defending the ordinance and said it had become necessary since the Supreme Court’s short order of June 19 was silent about the legal status of the decisions taken by Mr Gilani as prime minister from April 26 to June 19.
The Supreme Court has already received a petition challenging the acts of Mr Gilani and requesting it to declare them void. The petitioner has also asked the court to put the name of Mr Gilani on the exit control list and cancel his diplomatic passport.
Sub-section 1 of the two-page ordinance states: “Notwithstanding anything contained in any law for the time being in force or any order or judgment of any court, including any order or judgment of the Supreme Court, anything done, functions, including parliamentary functions, performed, actions taken, orders passed, directions issued, instruments made, MoUs executed, national and international commitments made, process or communication issued, advice given to the president in any matter, including in respect of acts and ordinances, SROs and other legal instruments issued, powers confirmed, assumed or exercised, or appointments made, by Syed Yousuf Raza Gilani, Prime Minister of Pakistan, from 26-04-2012 to 19-06-2012 (both days inclusive), shall be deemed to have been validly done, performed, taken, passed, issued, made, given, confirmed, assumed, executed, exercised and provisions of this ordinance shall have, and shall be deemed to always to have had, effect accordingly.”
A clause of the ordinance which may ignite a controversy says: “No suit, prosecution or other legal proceedings, including writ petition, shall lie in any court or forum, including the Supreme Court, against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done, for or advice given whether in the exercise or purported exercise of the powers or functions referred to in Sub-section 1 or in execution of or in compliance with orders made or functions performed or actions taken in exercise or purported exercise of such powers.”
When asked for the reason behind the move, presidential spokesman Farhatullah Babar said: “The ordinance has been issued in accordance with past practices to fill the void that had been created after the Supreme Court’s June 19 short order.”
Legal expert Justice (retd) Wajeehuddin said there was no need to issue the ordinance as the courts applied the “de facto doctrine” in such cases which meant that all the legal acts committed during a period were automatically considered valid. He said the government should have waited for the detailed judgment of the court instead of rushing with the ordinance.
The former judge said that after this ordinance, no-one would be able to challenge even any obvious “illegal act” and transfers and postings made by Mr Gilani during the 54 days when he was a de facto prime minister.
Moreover, he said, through the ordinance the government had actually curtailed an important power of the Supreme Court as it would not be able to entertain any petition under Article 184(3) of the Constitution which dealt with the fundamental rights of the citizens.
According to Mr Wajeehuddin, someone would soon challenge the ordinance in the apex court.
Senior lawyer Syed Zafar Ali Shah of the opposition Pakistan Muslim League-N also said that the ordinance could be challenged in courts. He alleged that “ill intentions” were behind the government’s move of issuing the ordinance.
The president and the people in the government knew since April 26 that Mr Gilani had been disqualified as the prime minister after his conviction, but they allowed him to continue to function, he said.