This article was published in Dawn on October 27, 2019 and is available at the following link
IF there is a least democratic feature of our democratic Constitution, it is the power given to the executive to legislate in case parliament is not in session and the president is satisfied that the circumstances exist to warrant the promulgation of an ordinance.
Since the very essence of democracy lies in the framing of laws by legislatures elected by the people, any part of the responsibility of lawmaking taken away from the legislature under whatever pretext dilutes the democratic character of the Constitution. This is why an overwhelming
majority of democratic countries have no provision of legislation by decree or executive. Only a handful of countries, numbering no more than 10, retain such a provision in their Constitution, and in most such cases, it is the legacy from the time when colonial powers were experimenting with the handing over of powers to locals but retaining the power to legislate for themselves. Even the British parliamentary system that we inherited does not have any provision of legislation by the executive.
Legislation in a democratic system passes through a number of stages. Initial drafts of new laws are generated by political parties or their members. Political parties internally debate the draft informally or formally and refine it. The ruling party may decide to adopt it as a government bill, or an individual member from the treasury or the opposition may introduce it as a private member’s bill.
Our constitutional scheme intentionally wants the treasury and the opposition to engage with each other.
Government bills are examined by the ministry concerned, the law ministry, and approved by the cabinet. The bill is then introduced in one of the two houses of parliament where normally it is referred to the standing committee concerned. Committees, where members of almost all parliamentary parties are present, undertake a detailed scrutiny of the bill. Sometimes experts, officials and civil society representatives are also invited to committee meetings for consultation and input.
After the standing committee has passed the bill with or without amendments, the report is placed before the entire house. Usually the house does not debate the bill in depth if the committee has already examined it in detail. However, the full house has the power to further amend the bill. After the house passes the bill, it is referred to the other house where again the concerned standing committee reviews it and returns to the full house for approval. When a bill has been passed by both houses, it is forwarded to the president for assent. Obtaining that, it becomes a law.
Presidential assent is generally considered a formality though the president has the power to return the bill to the legislature for reconsideration. However, if a joint session of parliament passes the bill, it is considered final. In some rare cases, the two houses do not agree on a bill, and at that point, a joint session of parliament consisting of both the Senate and National Assembly eventually decides the final version of the bill.
The normal legislative procedure is narrated here to illustrate that the Constitution accords a high degree of importance to the system of checks and balances involved in legislation. In case the legislative process is cut short, as in the case of ordinances, a whole lot of necessary input, review and incorporation of diverse points of view from elected representatives of various geographic regions, parties, gender and ideologies goes missing. In a diverse country like Pakistan, short-circuiting the legislative process can be hazardous.
Article 89 of the Constitution allows the president to promulgate an ordinance under extraordinary circumstances but if we retrace the journey of ordinances since 1973, it would be difficult to identify an ordinance which could not wait the convening of the next session of either house of parliament. Most of the time, governments have resorted to ordinances for two main reasons.
First, our scheme of elections is such that when a new political party manages to gain a majority in the National Assembly and form the government, the Senate composition continues to reflect the party position at the time of the last Senate election. This results in a time lag of about two years or so when the Senate elections are held and the ruling party is able to gain a majority in the Senate. Till that time, the Senate generally has a majority of the opposition and unless the ruling party is ready to seriously engage with it, the opposition by its sheer numbers can block legislation in the Senate. Our constitutional scheme intentionally wants the treasury and the opposition to work in an inclusive manner so that a broad agreement on legislation may develop.
Sadly, governments often want to have their laws passed unilaterally and that’s where ordinances come in handy. There are occasions when ordinances are promulgated just a few hours before a house of parliament is to meet. On some other occasions, assembly sessions were prorogued so that an ordinance could be promulgated.
The second reason for favouring ordinances is that it saves the government team the hard work it has to put into the standing committees and the two houses of parliament in defending the legislation and answering questions including those asked by their treasury colleagues.
Unfortunately, our democratic system is becoming increasingly exclusive and engagement with the opposition has been given a bad name. Our parliament has been unable to appoint members of the Election Commission because of this approach and now our assemblies cannot pass laws.
Ordinances are no solution as the opposition majority can pass a resolution in the Senate and reject an ordinance. If we do not want our democratic system to become totally dysfunctional, we should make peace with the idea of engagement between the opposition and the treasury. We should not forget that the 18th Amendment, irrespective of its merits or demerits, was passed not too long ago by a government which lacked a two-third majority but engaged with the opposition parties to produce a near-unanimous package of constitutional amendments covering more than a quarter of the Constitution.