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THE good news is that the debate on the use of ordinances as the
preferred mode of legislation in Pakistan has recently gained
momentum. Not only is the PTI-led federal government being criticised
for promulgating almost as many ordinances as the bills passed during
the past 28 months of its rule, questions are also being raised about the
past governments led by other parties like the PPP and PML-N in the
context of promulgation of ordinances.
The most recent development in this context is the motion moved by 34 senators led
by Raja Zafarul Haq, leader of the opposition in the Senate, on Jan 1, which sought
discussion on “the alarming propensity of the federal government to usurp and
subvert parliamentary and provincial rights guaranteed in the Constitution by
attempting to rule the country by ordinances….” The motion, which equated the use
of ordinances with ‘usurpation and subversion’ of constitutional rights, forced the
government and its law minister to defend the frequent promulgation of ordinances
on the weak ground of not having a majority in the Senate. The government line of
thinking indicated that they believed in the principle of brute majority which they
lack in the Senate at present and therefore they had to resort to ordinances. This
approach is in stark contrast to the universally accepted democratic approach of
seriously engaging with the opposition, striking a compromise and modifying
legislation after incorporating the opposition’s point of view, of course, to the extent
possible.
While the current government was criticised for its spree of ordinances during the
recent session of the Senate, PTI Senator Waleed Iqbal extensively quoted from an
op-ed published in this space about a year ago, in December 2019, to prove that the
PTI record of issuing ordinances was much better than other parties like the PPP and
PML-N whose members criticised the PTI. He did not defend the practice of issuing
ordinances but compared the PTI average of around 20 ordinances per year during
the past 28 months to the PPP record of 117 ordinances per year, promulgated from
October 1993 to November 1996. The PPP, however, improved as its average during
the premiership of Syed Yousuf Raza Gilani from 2008 to 2012 and Raja Pervaiz
Ashraf from 2012 to 2013 came down to 18 and 17 ordinances per year respectively.
This journey of improvement continued during the PML-N rule as well when the
average of ordinances promulgated per year during the three terms of Nawaz Sharif
turned out to be 26 but came down to seven during Shahid Khaqan Abbasi’s term as
prime minister. Mohammad Khan Junejo, prime minister from March 1985 to May
1988, however, secured the top position among the 16 elected governments of
Pakistan in the post-1973 period as he promulgated the least number of ordinances
— an average of three per year — during his term.
The petitioner’s lawyer, Umer Gilani, submitted to the court that “The obvious
reason why the federal government rushed with the ordinances is that it did not want
to meaningfully engage with the opposition in parliament which represents a
completely unconstitutional and authoritarian approach to govern and is against the
spirit of our federal, democratic Constitution”. This “authoritarian approach”, not
only on the part of successive governments but also opposition parties, seems to be at
the heart of the practice of promulgating ordinances. It is because of this approach
that Pakistan has promulgated almost three times as many ordinances as did India
since 1973, although both countries have inherited similar constitutional provisions
for ordinances.