THE good news is that the debate on the use of ordinances as the preferred mode of legislation in Pakistan has recently gained momentum. Not only is the PTI-led federal government being criticised for promulgating almost as many ordinances as the bills passed during the past 28 months of its rule, questions are also being raised about the past governments led by other parties like the PPP and PML-N in the context of promulgation of ordinances.
The most recent development in this context is the motion moved by 34 senators led by Raja Zafarul Haq, leader of the opposition in the Senate, on Jan 1, which sought discussion on “the alarming propensity of the federal government to usurp and subvert parliamentary and provincial rights guaranteed in the Constitution by attempting to rule the country by ordinances….” The motion, which equated the use of ordinances with ‘usurpation and subversion’ of constitutional rights, forced the government and its law minister to defend the frequent promulgation of ordinances on the weak ground of not having a majority in the Senate. The government line of thinking indicated that they believed in the principle of brute majority which they lack in the Senate at present and therefore they had to resort to ordinances. This approach is in stark contrast to the universally accepted democratic approach of seriously engaging with the opposition, striking a compromise and modifying legislation after incorporating the opposition’s point of view, of course, to the extent possible.
The government’s line of thinking indicates a belief in the principle of brute majority.
The opposition members pointed out the risks which the ordinances pose to the integrity of the federation especially the ones dealing with contentious issues between the federation and one or more provinces. Cited as an example was the Pakistan Islands Development Authority ordinance, which had been promulgated by the president on Aug 30, 2020, despite Sindh’s strong reservations over the ownership of the islands. The ordinance expired on Dec 30 because it was not passed by parliament. But, despite its expiry, the ordinance generated a great deal of controversy and further spoiled relations between the federation and the Sindh government. Instead of using a quasi-democratic instrument of ordinance, it would have been a far better idea to introduce a bill in one of the houses of parliament, debate it threadbare in the concerned parliamentary committee to develop consensus and then pass it through parliament. Ordinances are not only a bad parliamentary practice, they are also potentially dangerous to a diverse federation like ours.
While the current government was criticised for its spree of ordinances during the recent session of the Senate, PTI Senator Waleed Iqbal extensively quoted from an op-ed published in this space about a year ago, in December 2019, to prove that the PTI record of issuing ordinances was much better than other parties like the PPP and PML-N whose members criticised the PTI. He did not defend the practice of issuing ordinances but compared the PTI average of around 20 ordinances per year during the past 28 months to the PPP record of 117 ordinances per year, promulgated from October 1993 to November 1996. The PPP, however, improved as its average during the premiership of Syed Yousuf Raza Gilani from 2008 to 2012 and Raja Pervaiz Ashraf from 2012 to 2013 came down to 18 and 17 ordinances per year respectively. This journey of improvement continued during the PML-N rule as well when the average of ordinances promulgated per year during the three terms of Nawaz Sharif turned out to be 26 but came down to seven during Shahid Khaqan Abbasi’s term as prime minister. Mohammad Khan Junejo, prime minister from March 1985 to May 1988, however, secured the top position among the 16 elected governments of Pakistan in the post-1973 period as he promulgated the least number of ordinances — an average of three per year — during his term.
Besides questioning the conduct of various governments in parliament in the context of ordinances, the presidential powers to promulgate ordinances under Article 89 of the Constitution have been challenged in the Islamabad High Court by MNA Mohsin Ranjha in November 2019. The petition requested the court to declare that the president’s power to promulgate ordinances can be used only when the government needs 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.
The petitioner’s lawyer, Umer Gilani, submitted to the court that “The obvious reason why the federal government rushed with the ordinances is that it did not want to meaningfully engage with the opposition in parliament which represents a completely unconstitutional and authoritarian approach to govern and is against the spirit of our federal, democratic Constitution”. This “authoritarian approach”, not only on the part of successive governments but also opposition parties, seems to be at the heart of the practice of promulgating ordinances. It is because of this approach that Pakistan has promulgated almost three times as many ordinances as did India since 1973, although both countries have inherited similar constitutional provisions for ordinances.
It is heartening to see the debate about the correctness of the practice of promulgating ordinances flourishing. In an overwhelming majority of cases, Article 89 of the Constitution is misused because there is no urgency for enacting a law and it can wait for the next session of either of the two houses of parliament. This ‘facility’ of ordinance is also promoting the habit of not engaging with the opposition.
The time has come for the debate on the desirability of ordinances be taken to its logical conclusion. Either this power to legislate by decree should be completely done away with as is the case in most democratic countries or a strong public opinion should be developed against the arbitrary promulgation of ordinances.
The writer is president of the Pakistan Institute of Legislative Development And Transparency.
Published in Dawn, January 17th, 2021