THE authority to legislate by executive decree such as exists in Pakistan is not, for obvious reasons, often found in democratic countries. However, the power to promulgate ordinances is far from unfettered, and on Thursday the Supreme Court reminded the PTI government of the stringent preconditions in the Constitution that are attached to the process. Ruling against the excessive promulgation of ordinances, the two-judge bench observed that an ordinance could only be issued in “emergent matters”, where a situation warrants “immediate action”, and at a point in time when neither the Upper nor Lower House is in session. According to the bench: “In the absence of even one of the stated preconditions, neither the president nor the governors can promulgate ordinances.” It also underscored the importance of observing the limits prescribed in the fundamental law of the land, saying: “History is testament to the fact that whenever the Constitution is violated it disrespects the people for whom it was made.”

To forestall debate is to smother the spirit of democracy. That is why the promulgation of ordinances is to be seen as an exception and not the norm. The fact that ordinances automatically lapse unless passed by the relevant representatives of the people within a stipulated period of time illustrates the primacy that the Constitution accords to the legislatures. The apex court’s ruling throws a spanner in the works of what has become the PTI government’s well-oiled ordinance production line, which it has repeatedly used to sidestep parliament and ride roughshod over the opposition. Last month for instance, it went to the extent of cancelling a scheduled session of parliament at the eleventh hour — an unprecedented step — and then proceeded to issue the draconian Peca ordinance two days later, which was a Sunday. Such arbitrary use of powers meant to be used judiciously in only extraordinary situations is a stepping stone towards autocracy. The Islamabad High Court was informed last year that the PTI government had promulgated at least 54 presidential ordinances in the first three years of its tenure. However, the fact is, almost all governments have been guilty of this ‘sin of commission’. While military regimes have, unsurprisingly, issued the highest number of ordinances at over 63 per year, elected governments too have promulgated around 30 ordinances annually on average. This speaks to the inherent weakness of democratic institutions in the country, and the apex court’s ruling has come none too soon.

Published in Dawn, March 13th, 2022