Commentary·Issue Briefing

Commentary·Issue Briefing

[ADRN Issue Briefing] Executive powers of Ordinance versus Legislation: The Case of Pakistan

  • 2020-06-29
  • Ahmed Bilal Mehboob

ISBN  979-11-90315-84-5 95340

 You can visit our ADRN site to view the original text or download the pdf.

 

Editor's Note

In Pakistan, governments have promulgated a number of ordinances as a way to bypass legislative procedures in the Parliament. Over the years, governments, regardless of what type of the governments they are, have resorted to the practice of promulgating ordinances instead of engaging with oppositions and constructive debates, which is essential to retain the spirit of democracy. In this context, Mr. Ahmed Bilal Mehboob argues that the Constitution should be amended to omit the provision of ordinances so that the only legitimate route for legislations is one that should passes through the Parliament. Mr. Mehboob further stresses the importance of public awareness on the promulgation of ordinances as a highly undesirable practice in a democracy.

 


 

Pakistan is one of the few democratic countries that have retained the power to legislate by executive decree, or ordinances. In a classical democracy, legislation is the sole prerogative of the legislature but in Pakistan and a few other countries, the executive branch can be authorized to legislate under a constitutional provision.

Article 89 of the Constitution of Pakistan authorizes that 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.”

Apparently, this provision was meant to be used only under very extraordinary situations when the Parliament is neither in session nor can be summoned to meet at an early date while the legislation is of such an urgent nature that it cannot be deferred.

However, when we look back at the circumstances since the enactment of the 1973 Constitution in Pakistan in which ordinances have been issued, it is difficult to identify an ordinance of such urgent nature that could not have waited until the next parliamentary session.

An overwhelming majority of the ordinances have been promulgated in Pakistan out of convenience because the government at the time did not want to debate with the Parliament in order to justify the proposed legislation. Ordinances have become a handy tool for bypassing the Parliament. During several occasions, governments have resorted to ordinances in situations where they lack the majority in either of the two houses of the Parliament. In addition, instead of engaging with the opposition and incorporating their ideas into the proposed legislation, successive governments have adopted the shortcut approach of law-making through promulgating ordinances.

Prior to the adoption of the 18th Constitutional Amendment in 2010, which barred ordinances from being promulgated more than once, ordinances were issued multiple times to overcome their 120-day limitation. It was also common for ordinances to be promulgated a day or a few hours before the convening of the house of Parliament, which practically defied the very essence of the constitutional provision on ordinances.

Although India, Pakistan's neighbor, also has a constitutional provisions regarding ordinances, India has not used this provision with so much relish as Pakistan. Since August 1973, Pakistan has promulgated more than three times as many ordinances (1,774) compared with India (533).

Over the years, it has become very clear in Pakistan that the practice of promulgating ordinances runs counter to the spirit of democracy. There has hardly been a government during the past 46-plus years since the passing of the 1973 Constitution that has retained the spirit of democracy by refraining from enacting ordinances. This applies to a total of 28 governments led by an equal number of chief executives during the past 46 or so years including 16 elected governments, ten caretaker governments and two military governments.

The two military governments led by Gen Ziaul Haq and Gen Pervez Musharraf ran for a combined duration of almost 11 years (this does not include the periods when quasi-democratic setups was established under the presidency of the two military dictators). During these purely military governments, a total of 680 ordinances were promulgated which corresponds to over 63 ordinances per year. Ten caretaker governments lasted for a total duration of more than two years and issued 140 ordinances, translating to a little less than 59 ordinances per year. 16 elected governments, with a total duration of a little over 33 years, issued 954 ordinances. The average number of ordinances in this case works out to a little less than 29 per year.

The above analysis indicates that military governments, on average, have promulgated the highest number—more than 63 per year—of ordinances. Caretaker governments promulgated the next highest number — a little less than 59 ordinances per year during their combined duration. Elected democratic governments, although they carry the most scrutiny by the public, issued a relatively low number—of less than 29—ordinances per year during their total duration.

With regard to the two military governments, although Gen Zia’s government issued far more ordinances in absolute terms (407) compared to the ones promulgated by Gen Musharraf’s government (273), the average number of ordinances issued during Musharraf's government (around 88 per year) exceeded that of Zia's government (around 53 ordinances per year).

Among the caretaker setups, Malik Meraj Khalid’s government (November 1996 to February 1997) issued the highest number of ordinances, totaling 51 in just over three and a half months.

In terms of the performance of the 16 elected governments in promulgating ordinances, Mohtarma Benazir Bhutto’s second government (October 1993 to November 1996) issued the highest number of ordinances (357) while Mohammad Khan Junejo’s government (March 1985 to May 1988) issued the least number of ordinances (10).

Prime Minister Imran Khan’s current government, though criticized for issuing a large number of ordinances since August 2018, ranks ninth among the 16 elected governments since 1973 in terms of the average number of ordinances issued per year with 18 ordinances. Prime Minister Khan's Pakistan Tehreek-e-Insaf (PTI) government also has a thin majority in the National Assembly and lacks a majority by a considerable margin in the Senate.

The spirit of democracy demands that the Constitution be preferably amended to omit the provision of ordinances so that the only legitimate route for legislations is one that passes through the Parliament. In the meantime, awareness should be created so that the public can identify the promulgation of ordinances as a highly undesirable practice in a democracy. In doing so, voters will hold such a practice or excessive ordinance promulgation against any government and strive for a more inclusive legislation in the Parliament.

 

 

■ Ahmed Bilal Mehboob is the founder and president of PILDAT. He has over 25-year experience in senior management and advisory positions and over 15-year experience in design, planning and implementation of projects in the field of parliamentary development, strengthening democratic institutions, democratization, political discourse, election monitoring and dialogues for reconciliation. Ahmed Bilal Mehboob, one of Pakistan’s leading analysts of political, legislative, and electoral affairs, has been devoted to strengthening democracy and democratic institutions and providing thought leadership on crucial issues that affect quality of democracy and governance in the country. Mr. Mehboob has carved a non-partisan political research initiative from the platform of PILDAT and spearheaded objective and non-partisan, evidence-based analysis and policy reform initiatives on areas such as political and institutional reform including in areas of democracy, governance, rule of law, political parties, local governments, electoral processes, civil-military relations, federation-provinces relations, women and youth in politics, etc. Under the leadership of Mr. Mehboob, PILDAT, established in 2001, is widely recognized for quality, seriousness and objectivity of its policy analyses and reform proposals.

 

■ Typeset by Jinkyung Baek, Research Associate/Project Manager

            For inquiries: 02 2277 1683 (ext. 209) | j.baek@eai.or.kr

 

 

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