WHAT is the scope of the president’s powers as defined in the fundamental law of the land? On Friday, the Islamabad High Court raised this important question while hearing a petition challenging the presidential ordinances issued under the PTI government as being illegal, ultra vires the Constitution and “promulgated in a mala fide manner”. Appointing senior lawyers as amicus curiae, IHC Chief Justice Athar Minallah framed several questions to help arrive at a decision. First, does Article 89 of the Constitution allow the head of state to exercise his powers “in a routine manner to bypass the legislative procedure prescribed under Article 70 to 88?” Second, are the ordinances, “passed by the president in exercise of powers under Article 89 of the Constitution … of the nature which meets the prescribed requirements in this regard?” The third query pertains to the fate of the ordinances if they were passed “in violation of the specific conditions” stipulated under the relevant article.
The issue is particularly relevant under the incumbent government. Unfortunately, rather than giving due importance to parliament’s legislative role in a democracy, it has relied excessively on presidential ordinances. Given that the 18th Amendment in 2010 had drastically clipped presidential powers, it becomes all the more ironic that the head of state’s limited and conditional legislative power is being deployed so frequently. Article 89 expressly stipulates two conditions that must be met if an ordinance is to be promulgated: that neither the Senate nor the National Assembly is in session at the time, and that “circumstances exist which render it necessary to take immediate action”. Moreover, the 18th Amendment had laid down that the lifespan of an ordinance cannot exceed two 120-day periods. Such time-bound legislation cannot have any durable effect or address system flaws, making it all the more baffling why the government repeatedly chooses to resort to it. According to the National Assembly website, President Arif Alvi has issued 24 ordinances since Sept 24, 2018, most of which seem to be based on no apparent circumstantial exigency. While previous governments too have at times employed the mechanism, the prevailing pattern seems an extension of the PTI government’s oft-expressed contempt for many fellow legislators that are not part of its coalition. The opposition has frequently decried this legislation-by-ordinance route as a way to bypass parliament and render it irrelevant. It is moreover a short-sighted approach that will stymie the PTI’s own reforms agenda.
Published in Dawn, January 6th, 2020