An “Ordinance” is a piece of legislation the President makes in the case of the federal government and by the Governor in case of the Provincial government. Recently, controversy erupted in the parliament when President Dr Arif Alvi issued more than a half-dozen Ordinances and subsequently PTI government managed to pass the Ordinance from the national assembly by ignoring the prescribed procedure of legislation. The hullaballoo was witnessed in the national assembly, and heated debates were made. Even impeachment for Deputy Speaker Qasim Suri was also considered as an option for the reasons he has bulldozed the parliamentary norms. Though all this legislation is necessary for the country the manner through which it is created a stir amongst the opposition.

The promulgated Ordinances included the Letter of Administration and Succession Certificate Ordinance, 2019; the Enforcement of Women’s Property Rights Ordinance, 2019; the Benami Transactions (Prohibition) (Amendment) Ordinance, 2019; the Superior Courts (Court Dress and Mode of Address) Ordinance, 2019; the Legal Aid and Justice Authority Ordinance, 2019; National Accountability Ordinance (Amendment) 2019 and Whistle-Blowers Ordinance 2019.

The question arises whether the Constitution of Pakistan grants the power to the President and Governor to promulgate the Ordinance. The simple answer to this question is ‘Yes’. Article 89 of the Constitution provides that the President has the power to promulgate an Ordinance when the parliament is not in session, and the circumstances render it necessary to take immediate action that it should be promulgated. Similarly, Article 128 of the Constitution also allows the Governor to promulgate Ordinance with the same conditions. Article 260 (2) further fortified that Act of Parliament also includes the Ordinance. When the Constitution itself empowers the President and Governor, then why the opposition parties in the parliament oppose this kind of law-making power is another question worthasking?

The wisdom of the legislature can be gauged that they have already put restrictions on the issuance of the Ordinance in the same Articles of the Constitution that give the power to promulgate it. These include when the national assembly is not in session and when there is such emergent situation that cannot be tackled without issuing the Ordinance to advert deadlock in the country. If we carefully read these restrictions, it can be concluded that to promulgate Ordinance is not a routine matter but has to take in exceptional circumstances. The ‘parliament or national assembly not in session’ means when it is on recess, and some jurists exclude ‘dissolution of parliament’ from this meaning and rightly done so. Bangladesh’s Constitution has also included dissolution in this bracket but with reasonable restrictions. The word recess is used in the Indian Constitutional, and the corresponding Article is Article 123 for President to issue Ordinance; the article is more or less exactly the same as of Pakistani article 89.

The sub-continent used to be a colony of Britain for a considerable time, and the state machinery in countries carved out of it have statutes and constitutions having colonial flavour. The Indian, Bangladeshi and Pakistani Constitutions retain Ordinance as a legislating tool. The wording of all the constitutional provisions in these three countries is almost the same. However, the Bangladeshi Constitution is more explicit and leaves no ambiguity in its text. Article 93 of the Bangladesh Constitution empowers President to promulgate Ordinance. Under Article 123 of the Indian Constitution, the President can legislate via issuance of an Ordinance. In Pakistan, the age of Ordinance promulgated by the President is 120 days, and a Governor’s Ordinance lasts for 90 days. Only after the 18th Amendment, the President cannot re-promulgate the Ordinance. Now this power is vested with the national assembly or the parliament; this can be exercised to extend this once only. In India, the life of the Ordinance is six weeks only. On the question of re-promulgation repeatedly, in Krishna Kumar Singh v State of Bihar (2017 (2) SCJ 136) a seven-member bench declared re-promulgation of Ordinance as a fraud with the Constitution and democracy.

The parliament in a democracy plays a vital role to protect the rights of the peoples. The parliament, being the representatives of the peoples, has to work for the welfare of the peoples; otherwise, the parliament will lose its sanctity if it allows bulldozing the rules for making law. Though the Constitution grants the law-making power to the President through Ordinance, this power is not unbridled. It cannot be exercised as a routine matter. The Ordinance is to be issued in exceptional situations where the President finds promulgation of an Ordinance necessary for running the affairs of the country. The parliament as the democratic branch must pay attention to ensure the full and meaningful debate in the parliament before making any legislation. The government should give less chance to the executive for enacting laws.

The parliament is the collective wisdom of the people of Pakistan. Therefore, any legislation that intends to serve the country and people of Pakistan must be debated thoroughly in the parliament. After all, the parliament is called the People’s Branch, for it is the body where people’s representatives sit and legislate according to the collective wishes and will of the people. The government has to prove that this is the government that respects people’s collective will. Failing to legislate in the parliament will make the government go down the history as a government run through Ordinances. The government should not earn a title of Ordinance Raj. Parliamentarians complain about the sovereignty of the parliament. Still, when they have a chance to strengthen it, they close their eyes and act in a manner that only weakens the body. If they are interested in making parliament a real legislative body, then they have to make it by themselves. Though it is welcome that the government has retracted all the ordinances that it had moved earlier, would it not have been better if had not done so in the first place?