Governance through ordinance

Bypassing parliament in this manner does not bode well for the democratic project.

Published Oct 10, 2019 04:21pm
Prime Minister Imran Khan addressing the parliament. – White Star
Prime Minister Imran Khan addressing the parliament. – White Star

Earlier this year, the Buzdar-led government in Punjab dissolved all elected local governments in the province, midway through the five-year term assured to them under the relevant law.

The dissolution was effected through the Punjab Government Local Act, 2019 pursuant to which around 58,000 sacked councillors have been replaced by a handful of bureaucrats.

Ostensibly, the new legislation is aimed at bringing about far-reaching changes in local government; however, given that local governments in Punjab were dominated by the Pakistan Muslim League Nawaz-affiliated councillors, the primary reason for dissolution is not hard to identify. Fresh elections have been promised within a year, but it is noteworthy that the new legislation does not contain any deadline in this regard.

The radical measure can be seen as a grave setback to institution-building and grassroots democracy in the province. Unsurprisingly, the premature dissolution has been challenged before the Lahore High Court (LHC) by certain de-seated councillors. The petitions, which are currently under adjudication, raise several important questions regarding the constitutional position of local governments and the powers of provincial governments to terminate elected councils.

Related: PTI's one year in Punjab

In order to appreciate the issues involved, it is necessary to begin with Article 140-A of the Constitution, which was first introduced in 2001 and provides as follows: “Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments.”

The challenge of the petitioners before the LHC revolves around Article 140-A and may be summarised as follows. Firstly, Article 140-A, for the first time, made it mandatory for the provinces to establish local government systems. Previously, the Constitution provided that the state will “encourage” local government institutions, but stopped short of placing a constitutional obligation to ensure setting up of such institutions.

Moreover, the words used in Article 140-A are “local government” instead of “local bodies” which was the term used in prior legislation. According to the petitioners, this demonstrates the intent of the framers of the Constitution to make Pakistan a three-tier federation with local governments being on a par with federal and provincial governments.

In other words, local governments are autonomous and not a mere subset of provincial governments. Consequently, just as the parliament does not have the power to remove or dissolve provincial governments under the Constitution, provincial governments do not have the power to remove elected local governments.

Secondly, the word used in Article 140-A is “devolve” instead of “delegate” or “confer”. While delegated or conferred authority can be taken away, the petitioners contend that “devolution” implies an irreversible transfer of power. To buttress this argument, reference is made to other instances where the word “devolution” is used in the Constitution to refer to irreversible transfer of rights. Therefore, any attempt to snatch away devolved power is ultra vires the Constitution and should be struck down by the LHC.

It is likely that the response of the Punjab government will centre around the fact that there is no express prohibition contained in the Constitution regarding dissolution of local governments. The Punjab government may also argue that it is, in fact, following the mandate and requirement of Article 140-A by introducing a more suitable and better form of local government through new legislation.

Read next: Has Punjab just taken a step towards unlocking the potential of its cities?

Whatever the ultimate fate of the petitions (and the matter is likely to land up in the Supreme Court eventually), this development illustrates an underlying malaise, namely a lack of due respect on the part of the government for participatory decision-making and elected institutions.

Another recent manifestation of this attitude, this time by the federal government led by the same party, is the flurry of legislation by ordinances, prompting the Supreme Court in a recent case to observe that parliament should be shut down if laws are to be promulgated through ordinances.

It is true that the Constitution allows laws to be promulgated through ordinances; however, in terms of Article 89 of the Constitution, this can only be done when the National Assembly is not in session and the president is satisfied that circumstances exist that render it necessary to take immediate action.

In other words, extraordinary circumstances must exist to justify legislation by ordinances, which must then be placed before parliament in the manner contemplated by Article 89.

According to the Pakistan Institute of Legislative Development and Transparency, the legislation done through presidential ordinances between August 2018 and August 2019 was equal in quantity to the legislation done by parliament during the same period. This shows that legislation by ordinance is business as usual for the government instead of being a measure of last resort in rare cases.

It appears, and so much was stated by the prime minister himself in December last year, that due to the Pakistan Tehreek-i-Insaf not commanding a majority in the Senate, the government has been introducing legislation through ordinances.

Bypassing parliament in this manner does not bode well for the democratic project and is tantamount to usurpation of parliamentary power. To strengthen parliament, the government should engage with the opposition and ensure that legislation is passed after due debate and consideration, including debate in the Senate which is the representative of the federation.

Pakistan currently faces a multitude of external and internal threats ranging from national security to the instability of the economy. In such circumstances, the politics of consensus, built through participatory decision-making and institutional strengthening, is the order of the day.

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The writer is a barrister practising in Lahore and an adjunct faculty member of the Lahore University of Management Sciences.

The views expressed by this writer and commenters below do not necessarily reflect the views and policies of the Dawn Media Group.

Comments (12) Closed

N Abidi
Oct 10, 2019 06:10pm
If PTI can bypass the parilment to pass the bills,and get the job done,more power to them!
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Muhib E Watan
Oct 10, 2019 07:44pm
We endorse this, as parliament has been irrelevant because of their attitude not to support and get any legislation done and help the PTI government. This is probably going towards the Presidential system, scraping existing constitution replacing with the workable system which can take the country upward.
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aslam khan
Oct 10, 2019 08:07pm
Government through orders from the top.
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Abraham D Haque
Oct 10, 2019 08:44pm
@aslam khan, thank you
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Syed A. Mateen
Oct 10, 2019 09:01pm
There are always two opposite sides of the same picture. When it becomes impossible for the govt. to get a bill approved by the parliament then govt. is left with no alternate choice to govern the country through ordinances. The attitude of the opposition is as such that if govt. want to do some thing better for the country and its people the opposition parties always object to it and interpret in such a way that people think that govt. would like to take such steps which will go against the people. Frankly speaking that certain ordinances which have gone against the people e.g. the quota system in the country . It was also imposed by the govt. on the people of Pakistan through an ordinance and despite its expiry the ordinance been renewed for couple of times without consulting the stake holders. Though governance through ordinance is not a good practice for a democratically elected government but what shall one do if opposition does not want to hear what government want to do?
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Oct 10, 2019 11:59pm
A parliamentary system functions when both sides of the house work for the betterment of the people and the country..... today sadly the opposition does not allow this to the other option just has to be used.
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Oct 11, 2019 02:15am
Past govts in last decade made an average 21 ordinance every year, pti made only 11 in it's first. Your aurgument is invalid
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Faheem Ahmed
Oct 11, 2019 02:51am
Nothing wrong if the PTI bypass the parliament, the oppositions will cry, because they have money laundering cases over their heads, for which they are crying to get relief from the Govt. NO WAY !!! The PTI Govt should move on and should look as to what is best for the country first.
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A Khan
Oct 11, 2019 05:01am
Have you seen a session of Pakistan's parliament? Its like a fish market. The opposition's objective is to only block everything. Having a considered debate on anything is not on the menu.
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Oct 11, 2019 05:23am
Send useless parliament packing, reduce the cost atleast.
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Oct 11, 2019 11:58am
@Syed A. Mateen, was PTI doing any better when in opposition.
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Oct 11, 2019 06:00pm
Very bad for PTI.
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