Daily Times

It was like a scene from a movie. The prime minister of Pakistan who before his ascension to the top executive office had lambasted other prime ministers for ignoring parliament and not being accountable to it sat in his chambers in the parliament building. He ordered his party cadre in the parliament to get all government sponsored bills passed while he waited in his chamber until the session was adjourned. The parliamentarians from his party and the theoretically neutral deputy speaker passed eleven presidential ordinances in half an hour. There was no application of mind; orders were followed as if the parliament was a subservient organisation to the prime minister. The situation created a ruckus in parliament, with the opposition also moving a no-confidence motion against the deputy speaker.

Ordinances are a favourite tool of dictators. The beginning of our tainted constitutional history was a result of challenges before the courts in relation to ordinances and presidential orders-from the Maulvi Tamizuddin Khan case to the Usif Patel case and the AG’s Reference of 1955, from Zia-ul-Haq’s presidential orders to amend the constitution and his ordinances to Islamisise the legal system to Pervez Musharraf’s attempts at enlightened moderation. It was this tool of ordinances that ensured their grip on power, centralisation of state power and monopoly over the policies of the state. But it was not only the dictators who used ordinances as a tool of effecting the state’s legal system. The Pakistan Muslim League-Nawaz government promulgated thirty-four ordinances while the Pakistan People’s Party government promulgated more than seventy!

The Supreme Court of Pakistan has, time and again, shown its disproval for ordinances taking the place of statutory law, which is a parliamentary creation. Ordinances are an encroachment on the legislative competence of parliament and must be resisted. The reason for this is that law making is the domain of the legislature not the executive. In the orthodox constitutional theory, it is parliament that makes the law, government that enforces it, and courts that interpret it. This theoretical foundation for constitutional law has been adopted as the scheme of our constitution and can be gauged from a plain reading of Articles 70, 90 and 141, amongst others.

When this scheme of the constitution is violated, the supervisory control of parliament over the executive branch guaranteed in the constitution is countermanded. While it is parliament that must hold the executive branch politically accountable, the actions of the prime minister in ordering parliament, and that too effectively, to adopt eleven ordinances destroys the credence and credibility that parliamentary oversight should have in a democracy. Political accountability by the legislative branch is as important as legal accountability by courts; taking over of parliament in such a way is tantamount to the executive taking over the courts in the future. It has to be remembered that it was because of this constitutional scheme of things that the courts were barred from inquiring into parliamentary procedures. Today, it seems as if that protection extended to parliament in actuality was an inequity towards it.

Ordinances are a favourite tool of dictators. The beginning of our tainted constitutional history was a result of challenges before the courts in relation to ordinances and presidential orders

The constitution does allow promulgation of ordinances but only as an exception where parliament is not in session, and circumstances exist that render it necessary to take immediate action. The purpose of an ordinance is thus to enable the executive branch to provide adequate legislation when faced with a situation where it is necessary, for example, in the case of a civil war. However, the understanding of the present government seems to be that they have been given an all-out licence to legislate as they may wish.

The merits of the ordinances under question aside, it has also raised questions on the neutrality of the offices of the speaker and deputy speaker. It is this neutrality that leads to admiration for the offices of speaker in both the US and the UK. Here, however, it seems as if the prime minister can order the speaker and the deputy speaker to do the executive’s dirty work. However, there was a ‘soft revolution’. The parliament fought back, and the government had to withdraw all the ordinances it had passed earlier in lieu of the opposition withdrawing a no-confidence motion against the National Assembly deputy speaker. This proves that parliament is alive and well; it may have been weakened but it is not yet dead.

It was a soft revolution when in 2007 the then chief justice of Pakistan refused to resign his office on the orders of the president and the chief of army staff after hearing politically sensitive cases. It was that fighting back that led to a free and independent judiciary. In the same way, parliament has to be lauded, on both sides of the benches, in fighting back against a government that considers parliament a joke and subservient to it even when for years their leader coached us about the supremacy of parliament, both on the floor of the house and outside. If the current events establish anything it is the importance of the continuity of the democratic process and an evolution where institutions fill in their respective constitutional positions with time. The answer to bad democracy is more democracy, hence proved.

The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law