Mian Muhibullah Kakakhel,

Senior Advocate, Supreme Court of Pakistan

President Zardari of Pakistan promulgated an ordinance on 1 March, 2009, creating Mobile Courts and appointing Districts Magistrates to punish certain offenders found any where in the country. The ordinance came in a scenario where a call for Long March had been given by the lawyers, political parties and civil society. The people at large and the Parliamentarians were shocked to hear about the ordinance issued only a day before the session of the National Assembly was scheduled. On the criticism from within and out side the country at the issuance of the ordinance in peculiar situation of Long March, it was thought to be an act of mala-fide. The Prime Minister of Pakistan had to succumb to the pressure of his own parliament and had to declare at the floor of the House that the President stands advised to withdraw the ordinance and the ordinance was therefore, to the much embarrassment of the Government withdrawn.�During a current session in a previous regime of the senate, a senator recorded his complaint against the issuance of ordinances by the President of Pakistan on the issues within the exclusive domain of Parliament without any emergent need for its promulgation having arisen thus substituting the legislative powers of the Parliament by that of his own orders which in my humble view could in no way be justified under the constitution.There is no denying the fact that the people of Pakistan have for most of the time been ruled either by unconstitutional laws or the Presidential Orders and ordinances.Now, once we have a parliament reflecting the will of the people and a written constitution exists to govern them according to the law laid down by their own representatives, a prerogative ordinance by the President or an executive order from the government will need a thorough scrutiny as to its constitutional validity on the touch stone of the collective and codified will of the people living in the territory called Pakistan.

The promulgation of an ordinance is no more a prerogative of the President who is bound to carry out his duties under the provisions of and in accordance with the constitution and not to rule arbitrarily or capriciously. The superior courts of the country have been empowered by the constitution to test the justification of any executive discretion exercised by any Top-Wig in the governmental hierarchy including the President of Pakistan and the Prime Minister.The law relating to the promulgation of ordinances by the President or the governor of a province needs to be thoroughly gone though along with the constitutional limitations to this effect.

The President of Pakistan has been empowered to herald ordinances under the provisions of article-89 of the constitution when the National Assembly is not in session and there exists an emergency which renders an immediate executive remedial action essential and recourse to calling an urgent session of the National Assembly is not possible without an incurable damage to the national interests. Article-89 of the constitution authorizing the President of Pakistan to blazon ordinances can be conveniently quoted here for ready reference.Article-89 Power of President to promulgate ordinances:-

The President may, except when the 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 circumstances may requires.(2) An ordinance promulgated under this Article shall have the same force and effect as an Act of [Majlis-e-Shoora (Parliament)] and shall be subject to like restrictions as the power of [Majlis-e-Shoora (Parliament)] to make law, but every such ordinance,(a) Shall be laid:-(i) before the National Assembly if it (contains provisions dealing with all or any of the matters specified in clause (2) of Article 73), and shall stand repealed at the expiration of four months 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.(ii) before both Houses if it (does not contain provisions dealing with any of the matters referred to in Sub-paragraph(i), and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolutions; and(b) may be withdrawn at any time by the President.(3) Without prejudice to the provisions of clause (2), an ordinance laid before the National Assembly, shall be deemed to be a bill introduced in the National Assembly.

The same powers were conferred on the President by Article-69 of the constitution of Pakistan 1956. Section 42 of the government of India Act, 1935 empowered the Governor General to promulgate ordinances when the Federal Legislature was not in Session and circumstances existed rendering immediate action necessary however, such ordinances were to cease to operate at the expiration of six weeks from the re-Assembly of the legislature. A resolution dis-approving the ordinances even before the end of six weeks could also bring an end to the ordinance. Article-123 of the Indian Constitution also confers powers on the President of India to legislate subjectively in the absence of the Session of Parliament if he is satisfied that circumstances exist which render it necessary for him to take immediate action. An ordinance promulgated under the constitution by him has the same force and effect as an Act of Parliament and it is to cease to operate at the expiration of six weeks from the date of its promulgation unless approved by the parliament.

The word ordinance has a recognized meaning in legal terminology, namely, the expression of the legislative will of the Executive Head of the government when the National Assembly is not in session.The superior courts of Pakistan and India have under the Indian constitution, authority to review the ordinance making power of the President on the grounds of mala-fide or otherwise. Judicial review of the Presidential satisfaction regarding the necessity to issue an ordinance is very much competent under the constitution. The satisfaction of the pre-condition that circumstances exist to render an immediate legislative action by the President necessary could not be regarded as a purely political question and beyond judicial review.

Similarly where a constitutional authority is proved to have acted Mala-Fide in the making and promulgation of an ordinance, the courts of Law would be able to declare the exercise of the power as being invalid in law.A bare reading of Article-89 would show that it is only when the National exigencies so require that an ordinance may be made and promulgated. An ordinance, under the law is to have same force and effect as an act of Parliament for four months and in this period in which the ordinance must not only be placed before parliament but it must also be approved by it. The president, would not, normally issue an ordinance which would not, in due course of time be approved by the parliament because he cannot legislate by issuing ordinances against wishes of the people or for the purpose not approved by the nation. The promulgation of ordinances immediately before and after session of parliament shows the lack of communication between parliament, masses and the President. The lack of knowledge of and respect for the constitution is another factor contributing towards the reckless promulgation of prerogative ordinances. In fact Article-69 of 1956 constitution, Article-89 of 1973 constitution and Article-123 of the Indian constitution have been closely modelled on the government of India Act 1935.

The parliament has got the power to amend the constitution however even this power has very carefully been relegated to the legislators by the constitution where under Article-239 and extensive and meaningful procedure has been provided for introducing or altering even a single word of the constitution. The President of Pakistan being himself simply a part of Parliament under Article-50, can in no way be allowed to misuse the provisions of Article-89 by promulgating ordinances according to his caprice. The liberty conceded by the constitution cannot by exercised by the President arbitrarily, fancifully and whimsically. The ordinance must be in the best interest of the nation and the idea behind should not be to defeat or defy the parliament but to uphold the glory of law and the interests of the elected legislators of the people, who alone, under the constitution are to decide which way and how the wises of the people are to be expressed and codified.The President cannot be allowed to read into Article-89 that which is not there.

The legislative power of the President has to be exercised with reference and keeping in view the spirit of the constitution as a whole. No Article of a written constitution can be interpreted in Isolation is a golden rule of interpretation of the statutes.Our parliament, in the eyes of the people has lost its representative character and its duties are being performed by the President. Eternal Vigilance is the price of liberty. If a parliament cannot safeguard its rights and is unable to perform its duties under the constitution, it has no right to exist.

The incompetent parliament, history of Pakistan shows were done away with ruthlessly though deserving including the parliament headed by Mr. Junejo, Ms.Benazir Bhutto and Nawaz Sharif.The test of the competence or constitutional validity of a parliament lies in its functional capability. Illiterate Village jugglers can deliver comparatively better speeches if the speeches in the parliament and off the parliament have to yield the same results.

The frequency with which the ordinance are being issued despite the fact that the session of parliament can be called by just the blow of a whistle is a pointer to a very dreadful fact which if admitted at the very infancy of our National Assembly would mean the failure of the constitutional machinery once again and the history of Pakistan repeating itself by handing over to a civil or military de-facto sovereign, though foreign to constitution to promulgate ordinances at his subjective satisfaction. The powers of the President to issue ordinances in such a way if not curtailed by an appropriate amendment, the constitution will always be at a risk of losing its character to be an expression of the sovereign will of the people of Pakistan.