ISLAMABAD: Former Sen­ate chairman Mian Raza Rabb­ani has informed the Islamabad High Court (IHC) that an ordinance issued without meeting requirements of Article 89 of the Constitution can be scrapped.

Senator Rabbani, an amicus in the petition filed against promulgation of ‘excessive’ ordinances, told the court that when an ordinance is promulgated in violation of the requirements of pre-promulgation of an ordinance under Article 89, it is in violation of the Constitution, has no legal effect and can be struck down.

The lawmaker submitted a 61-page report on Saturday in response to the direction of IHC Chief Justice Athar Minallah on a petition filed by PML-N lawmaker Barrister Mohsin Shahnawaz Ranjha.

The petition says the president, under Article 89 of the Constitution, was empowered to promulgate ordinances which were a form of temporary legislation subject to two expressly stipulated conditions — when neither the Senate nor the National Assembly is in session, and if circumstances exist which render it necessary to take immediate action.

Senator’s response to petition on president’s powers to issue ordinances

Mr Rabbani stated in the report that an ordinance was a temporary legislation undertaken by the president while parliament was not in session.

According to him, the power conferred on the president under Article 89 is co-extensive with the power of the parliament to make the law. Clause (2) of Article 89 states that an ordinance will have the same force and effect as an Act of Parliament and will be subject to restrictions similar to that of the parliament’s powers to make laws.

The power to issue an ordinance during the recess of the parliament is based on the satisfaction of the president that the existing situation made it necessary for him to take immediate action.

“The satisfaction referred in Article 89 of Constitution 1973, is the satisfaction of the President, acting on the advice of the Cabinet. The unequivocal intention of the Constitution that legislation is essentially the domain of Parliament can be gathered from Article 70 to 88, Constitution, 1973 therefore, the President has been given limited power to legislate in extraordinary circumstances, to address certain unavoidable and grave circumstances during the recess of Parliament. There is no bar to call in question the satisfaction of the President in such type of cases where the satisfaction is absurd or perverse or mala fide or based on wholly extraneous or irrelevant grounds,” Senator Rabbani said.

Earlier on Thursday, the petitioner informed the court that over 2,500 federal-level ordinances had been passed since the country came into being in 1947.

According to the petitioner, ordinances can only be used to bring about such legislation which is (a) necessary to enable the federal government to respond to an emergency situation such as war, famine, epidemic or rebellion which has put the life, liberty or property of the people of Pakistan at stake; (b) where the emergency which is being responded to arose after the prorogation of the last session of parliament; and (c) where waiting for the summoning of the next session of either house of parliament would cause irreparable loss of life, liberty or property to the people of Pakistan.

Published in Dawn, October 25th, 2020