PAKISTAN is one of the few democratic countries which have the dubious distinction of having the power to legislate by executive decree. In a classical democracy, legislation is the sole prerogative of the legislature but Pakistan and a few other countries have the constitutional provision to authorise the executive to legislate. Article 89 of the Constitution of Pakistan authorises that “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”.
Apparently, this provision was meant to be used only under very extraordinary situations when parliament is neither in session nor can be summoned to meet at an early date and the legislation is of such an urgent nature that it cannot be deferred. But if we look back at the circumstances in which ordinances have been issued since the enactment of the 1973 Constitution, we hardly find an ordinance which could not wait for the convening of the next parliamentary session.
An overwhelming majority of the ordinances were promulgated out of convenience because the government of the day did not want to face parliament to debate and justify the proposed legislation. Ordinances became handy tools to bypass parliament. Many a time, governments resorted to ordinances when they lacked the majority in either of the two houses of parliament, and instead of engaging with the opposition and incorporating their ideas into the proposed legislation, the governments adopted the shortcut approach of ordinances.
The practice of promulgating ordinances runs counter to the spirit of democracy.
Before the 18th Constitutional Amendment, which barred the promulgation of an ordinance more than twice, was adopted in 2010, ordinances were promulgated multiple times to overcome the limitation of their limited life of 120 days. It was also common for ordinances to be promulgated a day or a few hours before the convening of a house of parliament practically defying the very essence of the constitutional provision on ordinances.
Although our next-door neighbour, India, also has similar constitutional provisions regarding ordinances, it has not used this provision with so much relish as we have in Pakistan. Since August 1973, Pakistan has promulgated 1,774 ordinances compared to only 533 by India — more than three ordinances in Pakistan compared to one in India.
Over the years, it has become very clear in Pakistan that the practice of promulgating ordinances runs counter to the spirit of democracy. There is hardly any government during the past 46-plus years since the passage of 1973 Constitution which has not defied the spirit of democracy by resorting to ordinances.
There has been a total of 28 governments led by an equal number of chief executives during the past 46 or so years including 16 elected governments, 10 caretaker governments and two military governments.
The two military governments led by Gen Ziaul Haq and Gen Pervez Musharraf ran for a combined duration of almost 11 years and this does not include the periods when quasi-democratic setups was established under the presidency of the two military dictators. During these purely military governments a total of 680 ordinances were promulgated which corresponds to over 63 ordinances per year. Ten caretaker governments lasted for a total duration of more than two years and issued 140 ordinances which translates into a little less than 59 ordinances per year. Sixteen elected governments, with a total duration of a little over 33 years, issued 954 ordinances. The average number of ordinances in this case works out to a little less than 29 per year.
The analysis indicates that military governments, on average, promulgated the highest number — more than 63 per year — of ordinances. Caretaker governments promulgated the next highest number — a little less than 59 ordinances per year during their combined duration. Elected democratic governments, despite carrying the greatest burden of blame, issued relatively the least number — less than 29 — ordinances per year during their total duration.
Between the two military governments, although Gen Zia’s government issued far more ordinances in absolute terms — 407 — compared to the ones promulgated by Gen Musharraf’s government — 273 — the average number of ordinances issued during the latter’s time were more (about 88 per year ) compared to the average of 53 ordinances per year issued by Gen Zia’s government. Among the caretaker setups, Malik Meraj Khalid’s government (November 1996 to February 1997) issued the highest number of ordinances totalling 51 over just three and a half months.
Comparing the performance of 16 elected governments in terms of promulgating ordinances, Mohtarma Benazir Bhutto’s second government (October 1993 to November 1996) issued the highest number of (357) ordinances over a period of about three years while Mohammad Khan Junejo’s government (March 1985 to May 1988) issued the least number of ordinances in about three years.
Prime Minister Imran Khan’s government, though criticised for issuing a large number of ordinances during the past 15 months, ranks ninth among the 16 elected governments since 1973 in terms of the average number of ordinances issued per year which work out to be 18 for the incumbent government. This is despite the fact that the PTI government has a thin majority in the National Assembly and lacks a majority by a considerable margin in the Senate.
The spirit of democracy demands that preferably the Constitution be amended to outright omit the provision of ordinances so that only the route of legislation should pass through parliament. In the meantime, awareness should be created among the people that the promulgation of ordinances is a highly undesirable practice in a democracy so that voters hold such a practice against any government which resorts to excessive promulgation of ordinances rather than going for more inclusive legislation in parliament.
The writer is president of the Pakistan Institute of Legislative Development And Transparency.
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Published in Dawn, December 8th, 2019