Ordinances in court

IHC calls out the PTI govt for its extensive use of presidential ordinances, bypassing Parliament

The Islamabad High Court recently called out the PTI government for its extensive use of presidential ordinances, bypassing Parliament. “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,” observed IHC Chief Justice Athar Minallah as head of a division bench hearing a slew of petitions against the promulgation of ordinances by the ruling coalition.

This observation matters because the court is trying to determine whether the constitutional requirements for passing ordinances were being met. The implication in the petitioners’ cases is that the government does not table controversial legislation in the parliament and instead waits till the house is out of session to pass ordinances. However, according to the petitioners, many of these ordinances are not emergencies and could easily be debated in a later session of Parliament.

A great example is the electronic voting machines (EVM) ordinance, which the court also picked up. Despite over two years still to go for the next elections, the government is trying to acquire EVMs through an ordinance. But instead of getting the parliament on board to pass the related legislation, the government’s decision risks letting all the money spent on EVMs go to waste if parliament rejects the ordinance later.

However, the additional attorney general’s argument in a previous hearing also bordered on irrationality — that the president has absolute power and the legality of his decisions cannot be reviewed by a court. Let us ignore for a moment that such language does not even occur in Article 89 of the Constitution. If the president did have such powers, why have a parliament at all? The fact of the matter is that the president of Pakistan is not a king or supreme leader. It is embarrassing that a lawyer for a democratically elected government would wade anywhere close to making such an argument.

Attorney General Khalid Javed Khan also made a surprising comment, reportedly telling the court that after a meeting with the PM, it had been decided that high standards would be adopted for the issuance of ordinances “from now” onwards. That would imply that even the government knows it had previously had low standards – an admission that instead of governing by consensus, it would prefer to rule by decree.

Published in The Express Tribune, August 1^st, 2021.

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