Ordinances justified only in emergencies: IHC

The Islamabad High Court (IHC) has noted that the PTI government still has 2 years to rule and its decision to introduce the electronic voting machines (EVMs) or to bring about changes in the High Education Commission (HEC) should be routed through the parliament rather than through ordinances.

“An ordinance can be passed only in an emergency situation when a law is needed to be imposed immediately and the parliament is not in session,” IHC Chief Justice Athar Minallah said on Wednesday as head of a division bench hearing a slew of petitions filed against PTI government’s ordinances.

The chief justice observed that it is necessary to view the condition under Article 89 of the Constitution which set guidelines for issuance of presidential ordinances.

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.”

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Justice Minallah said the next election is supposed to be held after three years but the ordinance for the EVMs has been promulgated. “If this ordinance is not approved by the parliament as an act then the money spent on the EVMs would go wasted,” he added.

Justice Aamer Farooq, the other member of the bench, also noted an ordinance can be issued if the matter is urgent as it takes time to call a parliament's session. The chief justice said this court always tries to strengthen the parliament but still the parliamentary issues are being dragged into the courts.

The bench remarked that the court is not reviewing the reasons under which HEC Chairman Tariq Banuri was removed from his post; instead the question is whether the ordinance through which he was removed is legal or not.

The chief justice said the HEC is also a constitutional institution like the IHC. “So can the government decide to reduce the number of IHC judges to two through an ordinance?” he asked.

Attorney General for Pakistan (AGP) Khalid Javed Khan informed the court that he had held a meeting with the prime minister and discussed the matter. He said now high standards are being adopted for the issuance of an ordinance.

The AGP said he had to leave for a Judicial Commission of Pakistan (JCP) meeting and requested the court to grant him time for further arguments on the matter. The court asked him to present his arguments at the next hearing.

When PML-N leader Ahsan Iqbal stepped up to the rostrum, the chief justice asked as to how many ordinances were issued by the last PML-N government. Iqbal said he apologized on behalf of his party if his government also relied on ordinances. Later the court adjourned the hearing till August 11.

At one of the previous hearings of the case, the federal government had 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 June 7.