Experiments in Governance

Then comes Article 89(2). It provides that an Ordinance shall have the same force and effect as an Act of Parliament and it shall be subject to similar restrictions as are placed on Parliament. This essentially means fundamental rights and Article 142 of the Constitution regarding the legislative competence of Parliament as Pakistan is a Federation. Under this clause, the legislative powers of the President and Parliament are at par. A close reading of this clause also shows that it is a permanent power except when the Parliament is in session as there cannot be two law-giving powers at the same time. Moreover, under Article 51, the Parliament includes the President. When Parliament passes a Bill it becomes an Act of Parliament if assented to by the President under Article 69. This explains the way Article 89(1) has been formulated.

The President has Ordinance-making powers under Article 89 of the Constitution.

There is another condition. Every Ordinance promulgated by the President is to be placed before the National Assembly if it relates to money matters as provided under Article 73. In other matters, it must be placed before the Senate as well. The National Assembly or the Senate, as the case may be, can disapprove it and, in the absence of disapproval, the Ordinance stands repealed at the expiry of 120 days. Under the 18th Amendment, another limitation has also been placed. An Ordinance can now only be repromulgated for another term of 120 days if a resolution is passed for its extension by the National Assembly.

It has been held by the Courts that an Ordinance is temporary legislation and, for this reason, it has a counted life of 120 days. It is a time-bound piece of legislation. An Ordinance has the same effect and force as an Act of Parliament that is expressly provided in Article 89(2). Thus, insofar as its legal validity and efficacy is concerned, the Constitution equates an Ordinance with an Act of Parliament.
The word ‘effect’ used in clause (2) of Article 89, takes away the ‘temporariness’ for legal purposes. Moreover, there is a departure from the Indian provision (Article 123) which states that an Ordinance shall ‘cease to operate’ after the expiry of six weeks. There is a difference between a repeal and ‘cease to operate’. The effect of repeal has been given under Article 264 of the Constitution. This aspect has been overlooked by the Supreme Court in its numerous judgments, the last being the PMDC case (2018).

Do numbers matter? If a Bill is passed by five hundred people sitting in Parliament, it does not become an Act of Parliament unless assent has been given by the President. Moreover, in the context of Pakistan, the country has been governed by various permanent Ordinances promulgated by martial law regimes. The Parliament passes constitutional amendments in two days. Where Parliamentary business is hardly a priority for the legislators, emphasis on mere form than substance sounds strange. There is no difference between an Ordinance and an Act passed by the Parliament when it comes to the substance. While the Constitution is in force the only guarantee people have for the protection of their rights, are the Courts, provided they are manned by independent and upright judges.

It is not only the PTI government which has governed through Ordinances and this is a continuing saga. Ordinance-making is a constitutional power and while it remains in the Constitution, it cannot be questioned on some higher notions. This will go on unless the people of Pakistan realize that they are the true source of state authority and they start electing people who are mindful of their constitutional duties towards their voters and the Constitution. No Government can survive for a long time if this power is taken away frm it. The Parliament must realize its powers and duties.