Above and beyond the law

Though seen as an encroachment on the authority of the parliament, ordinances are a favourite legislative tool of the governments

Above and beyond the law

Last month, President Arif Alvi signed eight new ordinances that had been approved by the federal cabinet earlier. These laws came into force right away. This move was later challenged by the opposition in the form of a protest sit-in in the Senate. The protesting legislators disapproved of the government’s practice of introducing new laws and amendments through ordinances, saying this undermined the role of the parliament and comprised both the lower and the upper house.

They called this practice a violation of the norms of parliamentary democracy that require law-making process to be comprehensive and participatory. The laws, they demanded, should be passed only after a debate among legislators from both the treasury and opposition benches, and after vetting by standing committees.

The promulgation of these ordinances was defended by Law Minister Farogh Naseem on grounds that the opposition’s attitude had not left the government with any other option. Addressing a press conference, he said, the government would have preferred to enact these laws through the parliament but feared resistance or non-cooperation from the opposition.

The minister said that the Pakistan Peoples Party government had promulgated 14 ordinances during its first year in power and 54 ordinances during the second year, and the Pakistan Muslim League-Nawaz had promulgated 34 ordinances when it was in power. Why was only the PTI government being shamed for this, he questioned.

The debate over the acceptability of ordinances as valid legislation is getting louder and the government is being accused of targeting opposition members in the parliament. For example, the National Accountability (Amendment) Ordinance 2019 is contested by the opposition, which says that it directly targets its members who are in NAB’s custody at the moment.

Under this ordinance, anyone facing charges of corruption matching or exceeding Rs 50 million would be confined to a C-class prison. Even more controversial is the provision that this clause would apply to the accused during the inquiry or investigation stage. The other recommendation regarding improvements in the NAB Ordinances, shared by the law minister earlier, were not even considered at the time of approving the law.

Zafarullah Khan, a former executive director of the Pakistan Institute for Parliamentary Services (PIPS) headed by chairman of the Senate, says promulgation of ordinances is a chronic issue faced by Pakistan since its inception. He says there are no ordinances in the US or UK and only a few countries including Pakistan, India and Bangladesh use this vehicle for legislation.

The debate over the acceptability of ordinances as valid legislation is getting louder and the government is being accused of targeting opposition members in the parliament.

Khan says that even during the British rule in the region, ordinances were promulgated only in war-like or emergency situations, for example during the two World Wars. The Supreme Court of Pakistan, he says, has declared ordinances an undesirable form of legislation. It was the former chief justice of Pakistan, Iftikhar Chaudhry, who sent ordinances including the controversial NRO to the parliament to decide on what to retain and what not. "Ordinances are no doubt an encroachment on the legislative competence of the parliament and must be resisted."

Khan has conducted a research on the legislative history of the country and has compiled interesting results. As per his findings, a total of 740 laws have come up on the federal legislative list since 1839. The number does not include the laws introduced by the incumbent PTI government. Of these 740 laws, 203 were passed during the British era and 537 in the post-Independence era. Surprisingly, the number of ordinances out of these 537 laws is 230. This means that the percentage of ordinances comes to around 43 per cent of all federal laws passed in the country since 1947.

Khan believes that the sitting government is shying away from negotiation and is bargaining with the opposition regarding law-making in the parliament as it fears resistance, especially in the Senate where the opposition is in majority. It was negotiation with the opposition that the PPP government allowed to bring about constitutional amendments when it did not even enjoy simple majority in the house, he adds.

The main question here is: Will the PTI government follow the constitutional procedure to get ordinances approved by the parliament? An ordinance cannot be extended without the approval of the parliament and has to be repealed if there is a resolution against it in any of the houses. There is no provision for a third-time extension for an ordinance.

Salman Abid, a political commentator and head of the Institute of Democratic Education and Advocacy (IDEA) tells The News on Sunday that the practice of legislation through ordinances has survived because of the desire of successive governments to centralise governance. "In this case, it’s the Executive that performs the function of the Legislature."

Abid says that legislation through parliament is a lengthy, exhaustive and comprehensive process and may take time but in the end leads to quality legislation. In democratic forms of government, the quality of legislation is more important than numbers. Quality legislation includes the input of interest groups other than the legislators, he adds.

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Abid, who has drafted the communication strategy of the Punjab Assembly, shares the example of the European Parliament which has websites offering real-time streaming of their meetings for citizens. If there is an issue on a specific piece of legislation in any of the European Union (EU) countries, they organise seminars around it and target the youth recognising them as a major stakeholder and get their input.

Similarly, he says, the European Parliament has set up the ‘Parlamentarium’ museum and the House of European History to explain parliamentary processes to the visitors and brief them about major historical developments in the region. Similarly, legislative proposals presented in the Swedish parliament are forwarded to referral bodies including government agencies, special interest groups and local government authorities in order to seek their input.

In Scotland, Abid says, the citizens can submit or support a public petition asking the Scottish parliament to look into a matter of national public interest or concern, to change existing laws or to introduce new laws. They can raise a petition online to attract a wider audience and all they need is an online account that can be created easily, he explains.

Unfortunately in Pakistan, he says, the parliamentarians are not taken on board during legislative consultations - what to talk about the citizens.

Above and beyond the law