The calculus of ordinances | Dawn

This article was published in Dawn on December 15, 2015 and is available at the following link

THE promulgation of the Pakistan International Airlines Corporation (Conversion) Ordinance on Dec 7, merely 48 hours before the National Assembly was to begin its session, has once again stoked debate on how democratic is the practice of legislating through presidential decree.

Ordinances are nothing new in Pakistan’s legislative history. We seem to have inherited these from our colonial past when the British government wished to retain power to enact laws despite elected legislatures in place.

While India, Sri Lanka, Nepal and Bangladesh have inherited a similar tradition and continue to retain the provision for ordinances, the system is not confined to South Asia alone. France and Australia are two developed democracies which have the provision of legislation through decree when parliament is not in session. The same is the case in Singapore. Apparently, there seem to be very few countries, no more than 10, which have the provision for promulgation of ordinances though these are always made conditional to extraordinary circumstances.

Pakistan’s 1973 Constitution, widely acclaimed as democratic and enjoying broad national consensus, retains the provision for ordinances in the form of Article 89 which states 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”. The ordinance thus promulgated is valid for 120 days unless the National Assembly, in the case of money bills, and either of the two houses of parliament in other cases, passes a resolution disapproving the ordinance.

Successive governments have resorted to ordinances as a convenient tool of legislation.

The 18th Constitutional Amendment placed some restrictions on the executive’s unbridled powers to promulgate ordinances. Now the government cannot reissue an ordinance upon its expiry for an indefinite number of times; an ordinance can only be extended once for 120 days and that also upon passage of a resolution by the National Assembly, in case of money bills, and by either house in other cases, by a simple majority.

Successive governments have frequently resorted to ordinances as a convenient tool of legislation without any prior parliamentary scrutiny. In very rare cases, one can see the justification of promulgating an ordinance instead of presenting a bill to parliament. In many cases, as in the case of the recent PIA Ordinance, ordinances have been promulgated just hours before a house of parliament is to meet, indicating that the normal parliamentary route of legislation could have been easily utilised.

The federal government has so far promulgated 25 ordinances in its 30 months since June 2013 with an average of 10 ordinances per year or a little less than one per month. The previous PPP government promulgated almost twice as many ordinances per year during its five-year term, issuing 90 ordinances between 2008 and 2013, leading to an average of 18 per year or around three every two months. The 18th Amendment acted as a brake on the ordinances express. The PPP government promulgated 74 ordinances in the first half of its term but could roll out only 16 after the 18th Amendment. The trend indicates that while there is a slowdown in the ordinance factory the assembly line is very much active.

The Indian government also inherited the same constitutional legacy as Pakistan in the form of Government of India Act, 1935. The Indian constitution provides for ordinances but the use of this instrument has been far less popular than in Pakistan. Some 97 ordinances were promulgated by the Union Government in 15 years since 1999; a little over six ordinances per year. If we look at the past six years in India from 2008 to 2013, the average rate of promulgating ordinances comes further down to a little over five per year making it less than even one-third of the figure for the same period in Pakistan.

In some ways, the number of ordinances promulgated can be an indication of the quality of democracy. A more democratic society should abhor the idea of legislation by decree. The primary function of parliament is to legislate. It is here that all legislation should be introduced, debated, amended if necessary, and passed or defeated depending on the will of a sovereign house. The number of ordinances promulgated in Pakistan and India, therefore, indicate that although the quality of democracy here is somewhat weaker compared to India, the trend indicates an improvement in Pakistan over a period of time.

A democratic culture needs to be promoted so that governments do not seek autocratic short cuts and instead submit to the sovereign will of the people represented by the elected parliament.

The situation usually gets more complex when a ruling party fails to command a majority in both houses of parliament as is the case at present. Although the PML-N enjoys a comfortable majority in the National Assembly, it does not have even a simple majority in the Senate. Since a majority is required in both houses in order to pass legislation other than money bills, the government faces a rather difficult situation when a bill reaches the Senate after being passed by the National Assembly.

The democratic spirit demands the government reach out to other political parties in the Senate and introduce adjustments to the legislation, if required, to make it more inclusive and acceptable to the majority in the Senate. A split mandate in the two houses is not necessarily a negative factor. In fact, it is good for democracy and guards against the tyranny of the majority in the National Assembly. In a federation like Pakistan, taking the Senate on board strengthens the federation.

Ideally, the provision of ordinances in the Constitution should be abolished. Till such time, governments should limit the use of this instrument to the absolute minimum and during real emergencies when it is not practical to convene a session of parliament.

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