Unconstitutional ordinances

On October 31, 2019, President Arif Alvi promulgated eight new ordinances. These ordinances include three for reforming the civil justice system, three for toughening up accountability laws, one for securing women’s right to inheritance and one for setting up a legal aid agency.

While the objects may be salutary, the means adopted are definitely not. The PTI is trying to implement the government’s reform agenda through the use of ordinances, while sidelining parliament. This is patently unconstitutional. Here’s why.

First, bear in mind the general rule that law-making is the job of the legislature, ie parliament, not government (Article 141). The job of the government is simply to enforce laws already in existence (Article 90) and, where necessary, to introduce fresh bills (Article 70). This separation of powers between the executive and the legislature is an important feature of our constitutional scheme.

Secondly, note that our parliament has been structured in a way that the government is not always in control of what happens there. While a government must, of necessity, command the confidence of the National Assembly, rare is the government which commands a Senate majority for all five years of its existence. It is a direct result of this constitutional scheme that insofar as the business of legislation goes, the government depends upon the opposition. Without winning over least some members of the opposition, the government generally cannot get laws passed – other than fiscal and budgetary laws. And there’s good reason behind this scheme.

In our electoral system, which is based on the first-past-the-poll method, the government is generally elected to power by less than 30 percent of the voters. The remainder of the voters cast their ballot for the opposition. Since the government’s voter base is so narrow, it is only fair that something as long-term as ‘legislation’ should not be left to be made by the government alone. Taxes can be instantly levied and budgets passed. But law-making, which leaves a more permanent mark, requires slow and painstaking parliamentary consensus-building.

Ordinances represent a glaring exception to this general scheme of separation of powers. But the exception is nowhere a broad as the PTI government seems to think. Article 89 states that ordinances can only be passed when: (a) parliament is not “in session”; and (b) when “circumstances exist which render it necessary to take immediate action.”

The power to issue ordinances was meant to enable the government to respond to emergencies without delay. When faced with emergencies like riots, war, plague and famine, it would not be prudent in such situations to wait for the next parliamentary session. But governance reforms, albeit important, are a different matter altogether. They can’t honestly be fit into the scope of Article 89.

This is not a novel point. Court have stated it at least far back as 1958. In Ikhlas v Noorunnabi (PLD 1958 WP 283), the high court of Sindh held: “The normal legislative authority is parliament. The president’s powers of making ordinances are confined to emergencies which require immediate legislation and which arise when the Aasembly is not in session.”

In Qaseem-ud-din v West Pakistan (PLD 1959 W.P 76), the Lahore High Court actually struck down an ordinance on grounds of being mala fide and stated: “The general rule as to the motives of the legislature not being liable to be inquired into has no application to the case of an ordinance.” There many other judgments of the superior courts which clarify that ordinance-making cannot be used as a ruse to systematically by-pass parliament.

The recent spate of ordinances passed by President Arif Alvi relate to important national issues. But these ordinances definitely do not respond to any emergency which had arisen after the expiry of the last parliamentary and which could not wait till the next parliamentary session – scheduled only a few days later. It is quite clear that the reason why these ordinances have been promulgated – and many more are likely to be promulgated in the near future – is because the government unfortunately does not want to meaningfully engage with opposition in parliament. This is why, in my humble view, these ordinances are unconstitutional and should be struck down.

The writer is a partner at The Law and Policy Chamber.

Email: umer.gilani@gmail.com