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November 13, 2019

Fate of legislation done by Executive: Actions taken under ordinance to become extinct

November 13, 2019

ISLAMABAD: All actions, including disbandment of an organisation, taken under a presidential ordinance will stand scrapped if this legislation done by the Executive is disapproved by the Senate or the National Assembly or both. “All the actions introduced will become void ab initio after the passage of a disapproving motion by either House,” prominent lawyer Barrister Omar Sajjad told The News.

He said an analogy can be withdrawn from a Supreme Court decision which ruled while striking down the new contempt law that the old piece on the same subject stands revived. The new law had repealed the previous legislation.

Omar Sajjad said that an ordinance is promulgated by the Executive which is a temporary legislation and not a permanent law. It can become a law only if the Parliament approves it.

Last week, President Dr Arif Alvi signed eight ordinances. One of them pertained to an amendment in the National Accountability Ordinance (NAO). The government is hesitant to introduce all or some of these ordinances in the Senate despite insistence by the opposition parties, fearing that it may disapprove them.

Under the rules, an ordinance instantly becomes extinct after the passage of a disapproving motion by either parliamentary chamber.

While the government pushed, ignoring the opposition's intense hue and cry, introduction and passage of the ordinances in the National Assembly, it is evident from the Constitution, a fact that the government also knows that none of them will become law unless it will be cleared by the Senate, which is in no mood to pass them. Despite bulldozing of a record number of 11 ordinances in a few minutes without debate through the National Assembly, they can be shot down by the opposition-dominated Upper House through disapproving motions.

Another legal expert said that various interpretations are available about the legality of the actions introduced under an ordinance when it is in operation for any length of life. Therefore, this question will eventually go to a superior court for elucidation and clarification of various constitutional provisions.

Sometime back, the opposition parties in the Senate discarded an ordinance relating to the Pakistan Medical & Dental Council (PM&DC) through a disapproving motion. The government waited for a few weeks and issued another ordinance, abolishing the PM&DC and bringing in an altogether new structure. The opposition plans to repeat its action against the new ordinance.

However, a question rises whether the action like the disbandment of the PM&DC which was taken when this ordinance was in force, would also stand reversed after the Senate will disapprove it.

The expert explained that one explanation is that an ordinance being an Executive act would become dead after either House would reject it. “Issuance of ordinance is an emergency measure taken by the Executive which can’t be liberally exercised.”

Another interpretation, he said, is provided in Article 89 of the Constitution. It says that an ordinance shall have the same force and effect as an Act of Parliament and shall be subject to like restrictions as the power of the legislature to make law.

An ordinance has 120-day life unless it is passed by the Parliament before that period or is extended only once for a similar period by either parliamentary chamber otherwise it will expire. It will die even before the end of its 120 days or 240 days’ life the moment it will be disapproved by either House.

The expert believed that another interpretation about the validity of actions during the operation of an ordinance is provided in Article 264. It says where a law is repealed, or is deemed to have been repealed by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution, revive anything not in force or existing at the time at which the repeal takes effect; affect the previous operation of the law or anything duly done or suffered under the law; affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed.

Elaborating, he said that for example a certain punishment was not available in a law when an offence under it was committed. Later, the law was amended providing for the punishment for the same crime. In that case, the accused would not be liable that punishment because he had committed it when the penalty was not specified in the law, he said.

Under Article 89, an ordinance shall be laid before the National Assembly if it contains provisions dealing with financial matters and shall stand repealed at the expiration of 120 days from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution.

The National Assembly may by a resolution extend the ordinance for a further period of 120 days and it shall stand repealed at the expiration of the extended period, or if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution.