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December 5, 2018

With opposition-dominated Senate...: Legislation through ordinances unrealisable

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December 5, 2018

ISLAMABAD: Prime Minister Imran Khan’s vows to do the essential legislation through presidential ordinances because of lack of numerical strength in the Senate is unlikely to materialise because of various factors including the Supreme Court judgments and the opposition’s position in the Upper House of the Parliament.

“If an ordinance that the opposition parties would not sanction is promulgated, they would obviously pass a resolution in the Senate disapproving it, and as this will be done, the piece of legislation would instantly stand annulled even before expiry of its 120-day life,” noted lawyer and former chairman of the Upper House of Parliament Wasim Sajjad told The News when approached for his legal opinion.

There will be no point in promulgating an ordinance that may be killed by the Senate by passing a disapproving resolution shortly after it being issued. Such a legislation will turn out to be inconsequential for having a brief life of just a few days as it would not be possible to achieve its intended objective. Wasim Sajjad said the apex court in various judgments has discarded the practice of doing “legislation by the Executive” when lawmaking is the domain of the parliament. He said that in one of its rulings, the Supreme Court has held that re-issuance of a presidential ordinance is an “abuse of the Constitution” because it doesn’t involve the legislature, which is assigned this job.

The prime minister has announced doing necessary legislative business through presidential ordinances to overcome a numerical parliamentary challenge. “Although we have no majority in the Senate to pass proposed laws smoothly, we will not go for any settlement with the Pakistan Muslim League-Nawaz (PML-N) and Pakistan People’s Party (PPP) to take their support and will make legislation through ordinances. A law, to be enacted through ordinance, would facilitate early disposal of cases. Similarly, women and widows would get their rights of inheritance.

The opposition parties control the Senate and no legislation can be done without the cooperation of particularly the PML-N and PPP, which have most of the members in the Upper House. Neither the prime minister is willing to take them on board nor are the two parties prepared to extend support in lawmaking which is hurtful for them.

Sajjad referred to Article 89, which deals with the issuance of presidential ordinances.

“It is an emergency measure to overcome an urgent issue when both the parliamentary Houses are not in session, but this resort has its own limitations.” Importantly, an ordinance pertaining to fiscal measures will be dealt with only by the National Assembly and the Senate will have nothing to do with it. However, the powers of both the parliamentary chambers are the same in such legislation covering all the other matters.

Under Article 89, the President may accept when the Senate or National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an ordinance as the situation may require. Such an ordinance will have the same force and effect as an act of Parliament and will be subject to like restrictions as the power of Parliament to make law. However, every such ordinance will be laid before the National Assembly if it contains provisions dealing with all or any of the matters specified in Article 73 (2) [financial and fiscal] and will stand repealed at the expiry of 120 days from its promulgation or, if before the expiry of that period a resolution disapproving it is passed by the assembly, upon the passing of that resolution.

However, the Assembly may by a resolution extend the ordinance for a further period of 120 days and it will stand repealed at the expiry of the extended period or if before the expiry of that period a resolution disapproving it is passed by the Assembly. Extension for further period may be made only once. All the other ordinances will be laid before both the Houses if they do not contain provisions dealing with any of the matters referred to Article 73 (2), and will stand repealed at the expiry of 120 days from its promulgation or, if before the expiry of that period a resolution disapproving it is passed by either House, upon the passing of that resolution.

However, either House may by a resolution extend it for a further period of 120 days and it will stand repealed at the expiry of the extended period, or if before the expiry of that period a resolution disapproving it is passed by a House, upon the passing of that resolution. The article also says that extension for a further period may be made only once; and may be withdrawn at any time by the President.

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