Constitutional fraud: of the few, by the few and for the few
Khyber Pakhtunkhwa Bar Council conditionally called off a 23-days-long strike throughout the province against the amendment in Civil Procedure Code on January 30, 2020, when the government, through Khyber Pakhtunkhwa Civil Law Amendment Ordinance, 2020, had pigeonholed the amendments till April 15, 2020. However, it seems that the lawyers were given a wide berth by the PTI government; convincing them to give in most of their demands by fulfilling only one: deferring the commencement date. Even though the amendment was welcomed, the passing of an Ordinance by the governor once again raised eyebrows.
There are certain conditions required for ordinance-making. Firstly, the parliament shall not be in session. Secondly, the existence of circumstances that render it necessary to issue an ordinance. Thirdly, the element of emergency. Fourthly, Prior consideration of the cabinet, as added by the Supreme Court of Pakistan in Mustafa Impex Case reported as 2016 PTD 2269.
But to the distress of the masses, the said ordinance was enacted by Khyber Pakhtunkhwa Governor when a session of the provincial assembly was already summoned, rescheduled and later postponed; making it unconstitutional and against the ethos of democracy.
Present times are witnessing sharp practices against the spirit of democracy by the government, which prefers enacting temporary President/Governor passed Ordinances. Even though they are temporary having a life span of 120 days, only to be reissued once, before expiry or turned into permanent law (an Act of Parliament) by the Parliament or the respective Provincial Assembly. All this is done because ordinances are convenient and avoid the wrath of opposition in the shape of questioning. For its comfort, the government has put the whole system at stake.
The PTI-led government seems to be in the hobby to steer clear of the legislative process, which is the essence of democracy
Ever since the government of PTI has taken charge, a never-ending circumstance exists under article 89 of the Constitution of Pakistan, which renders it necessary to promulgate ordinances. This means hasty/temporary legislation to cope with an emergency. But a question arises that what circumstances require sidelining the democratic process of legislation through parliament to promulgate ordinances? Ordinances such as Administration and Succession Certificate 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 (Amendment) Ordinance, 2019; The Whistle-Blowers Act and more of the likes, which from its substance, poses no emergency.
Law-making is the only prerogative of the legislature throughout the world. We are, unfortunately, amongst the few democratic countries along with Sri Lanka, Bangladesh, India, Nepal, France and Australia, which have the dubious character of giving power of legislation to executives through a provision in their constitution. However, they don’t cherish it the way we do; making it a way of convenience rather than a necessity or emergency measure. This only needs to be used in response to an emergency such as war, famine, epidemic and rebellion, which puts the lives, liberties and properties of the people of Pakistan at stake. It is being used to usurp and replace the parliamentary system.
Back in time, governments relied on promulgating ordinances when they lacked the majority in either house of the parliament. However, the PTI-led government seems to be in the hobby to steer clear of the legislative process, which is the essence of democracy. Not only federally but they have also set examples in provinces by passing laws in haste without debating them or justifying its necessity by promulgating ordinances through the governor even though they have a clear majority. So much so that the constitution is defied by promulgating ordinances days or hours before the commencement of the session of the parliament, against the very spirit of democracy, supremacy of parliament and rule of law.
Some of the ordinances were even declared null and void for being ultra vires of the constitution by High Courts. The latest examples were that of Action in Aid of Civil Power Ordinance 2019, which was declared unconstitutional by Peshawar High Court and Fata Interim Regulations, which was declared ultra vires of the constitution by the Supreme Court of Pakistan. The rest were criticised for trying to fill the boots of the legislature.
While the creation of the constitution violates its creator, every authority is playing an active role in controlling the shortcuts taken by the government but in vain. The government wouldn’t learn, as it is said, “Power corrupts and absolute power corrupts absolutely.”
It is also enjoying powers without hesitation, outside the purview and scope of article 89 of the constitution.
Scope of ordinance-making was narrowed through the 18th amendment, by adding the words, “Shall stand repealed at the expiration of the extended period or, if before the expiration, a resolution disapproving it is passed by a House, upon the passing of that resolution.” Meaning thereby that an ordinance can be extended only once. The powers were further curtailed, and wings clipped of the president and governor when the Chairman of Senate ruled in 2016 that ordinance needed to be put forth in the first sitting of the House after the promulgation and reasons for same are to be justified. Back in time, ordinances with a lifespan of 120 days were repassed again and again, which was declared a fraud on the constitution and subversion of democratic legislative processes by the Supreme Court of Pakistan in Pakistan Medical & Dental Council versus Muhammad Fahad Malik (2018 SCMR 1956). It was further held in the case that:
“15. […] The germane question is this: what is the spirit of the Constitution while authorizing the President to enact temporary legislation, i.e. an Ordinance? As mentioned above, under Article 70 of the Constitution, Parliament has the absolute authority to make laws with respect to any matter in the Federal Legislative List. Parliament can pass any ordinance, time-bound or applicable for a limited period of time. However, it is Article 89 of the Constitution which empowers the President to promulgate an Ordinance […]
[…] it is clear that there are two riders to the power of the President to issue an Ordinance, namely, the Senate or National Assembly must not be in session, and the President must be satisfied that circumstances exist which render it necessary to take immediate action. Meaning thereby, the President’s authority to promulgate an Ordinance is not absolute, rather it depends upon the necessity of immediate action and the non-availability of a session of the Senate or National Assembly.”
However, despite the judgements of the superior courts and 18th amendment, the government continues to make laws through Ordinances. Once again, a court is moved against ordinance-making by the government, this time, by Member National Assembly, Barrister Mohsin Nawaz Ranjha. He has filed a writ petition in Islamabad High Court against eight ordinances passed in a single day by the President of Pakistan, who gave remarks in Court, “We have not challenged these ordinances but challenged the way of passing of these Ordinances.”
Since theatrics of government of the few by the few and for the few is going on, why should we spend so much money on elections and pay the representatives of the people salaries when they are kept away from the legislative process by the executives. Why not elect executives directly and give them all the authority directly, which they exercise indirectly? Why invest in a futile system when, in reality, it is just a shadow of itself?
Democracy demands that such provision shall be omitted, and the only route to law-making be through parliament after consideration and confidence of the opposition parties, which hold the confidence of 70 per cent of the country. Also, that the opposition doesn’t let go of government after the commission of these undesirable acts of usurpation of power by the executive playing fraud on the constitution, which is an indirect fraud against the nation.
By: Nouman Muhib Kakakhel, Advocate
The writer is a human rights activist and a lawyer based in Peshawar
Originally Published in Daily Times