The federal government has adopted the stance that the president has absolute discretionary power to issue ordinances under the Constitution and that courts cannot review if an ordinance was issued in exceptional circumstances or otherwise.
“Under Article 89 of the Constitution, the president has discretionary power to issue ordinances and that courts cannot review if he issued an ordinance under exceptional circumstances or not,” said Additional Attorney General (AAG) Aamir Rehman on Monday.
The AAG was presenting the government’s stance before an Islamabad High Court (IHC) division bench, hearing a slew of petitions against the frequent use of the presidential ordinances during the almost three-year rule of the PTI.
Article 89 which deals with power of the president says: “The president may, except when the (Senate or) 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 require.”
During the argument, the presiding judge – Justice Athar Minallah – asked the AAG what if the president, through an ordinance, reduced the number of IHC judges to half.
“What would happen then? Would the court be allowed then to review if the president issued the ordinance in exceptional circumstances or not and why he took this decision without the consent of the parliament?” the IHC chief justice asked.
Justice Aamer Farooq, the other member of the bench, noted that one of the petitions is filed against the presidential ordinance that has paved the way for use of electronic voting machines (EVMs).
“Suppose the parliament does not endorse this ordinance. Who will then be accountable for the financial loss that the state will incur due to purchase of the EVMs?”
Justice Farooq noted that apparently the AAG’s argument didn’t hold water. “However, we will like to hear your complete arguments,” he added.
The court asked the AAG to tell the court at the next hearing as to how many ordinances have been issued in the United Kingdom, whose legal and constitutional system is replicated in the country.
The bench will hear the final arguments of the government and the petitioners on June 15 with regard to the power of the president under Article 89 of the Constitution.
Earlier, counsel for the petitioners Umar Gillani Advocate told the court that since independence in 1947, different presidents have issued almost 2,500 ordinances while the PTI government has so far issued 54 ordinances.
“We have challenged the eight ordinances which were issued in a single day. It seems that the president is issuing ordinances not just in exceptional circumstances but in every circumstance. We have filed petitions to stop this unconstitutional tendency,” he said.