Daily Times

Power of the President to promulgate ordinances was not envisaged as a substitute to a legislative power of the parliament. The ordinances cannot be used as a tool to usurp the will of the people, much less, to undermine autonomy of the administrative agencies. If the will of the people can so easily be brushed aside or side stepped by promulgating an ordinance; then why have a tripartite structure of government with separation of powers? Might as well concentrate law making powers to the office of President instead and leave it to his discretion to make laws for his people or “subjects”! The Higher Education Commission (Amendment) Ordinance, 2021 is bad law. And it should be treated as such.

The Constitution prescribes certain necessary conditions before ordinances can be promulgated. The language reads “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.” It is the need for the immediacy of action by the President which is crucial here. Not only should there be no session of the Senate or National Assembly, the situation ought to be so dire making it impossible for session to be called to enact a law or to undertake a debate on the proposed bill. The conditions precedent as spelled out in the Constitution provide a high threshold for the President to exercise his discretion. His discretion is not unfettered. The President under our Constitution is not Louis the IV. And he cannot act as one – never mind any magnificent delusions that he may harbor!

The Higher Education Commission (Amendment) Ordinance, 2021 (IX of 2021) was promulgated with a singular aim to reduce the tenure of the chairman of HEC from four to two years. There is nothing in the preamble of the ordinance that justifies or even alludes to “circumstances” that “render it necessary to take immediate action” by the President. The lack of application of mind could never be so manifest. It is also rare, despite our chequered constitutional history, that an ordinance was rushed in a democratic regime with a singular aim to remove an individual from office. The framers have not provided any provision in the Constitution to legislate for or against one person alone. In terms of legal gaffes, Higher Education Commission (Amendment) Ordinance, 2021 only matches if not surpasses the yawning gaps left by the Federal Government during extension of the present army chief.

The Higher Education Commission (Amendment) Ordinance, 2021 (IX of 2021) was promulgated with a singular aim to reduce the tenure of the chairman of HEC from four to two years. There is nothing in the preamble of the ordinance that justifies or even alludes to “circumstances” that “render it necessary to take immediate action” by the President

The statutory bodies have been created in our administrative milieu, like administrative agencies elsewhere in the world, so that they can operate independently of the governments. If they are to be placed under the administrative or financial control of the government after their establishment, then our statutory bodies add little probative value as regulators. The most important office remains that of the chairman in any statutory body. And the most important aspect for such an office bearer to independently perform functions is the fixed tenure of the position. The courts in the past have time and again dilated upon the importance of the fixed tenure as they guarantee autonomy to the office of chairman in any statutory body. Reducing the term of fixed tenure from four to two years through an ordinance chips away at the autonomy of office. It effectively means if the chairman is not a yes man; his fixed term could be reduced overnight. It leaves us thus with only one inescapble conclusion: The chairman of HEC, only serves at the pleasure of the President. Let’s write that in our laws!

Is the amendment ordinance an instance of regulatory capture? Have the interests and lobbyists prevailed over the federal government clouding its better judgment or worse still those interests colluded with the federal government in curtailing HEC’s autonomy? We can all place our bets. One thing is certain and it is that this ordinance does not serve the best interest of HEC nor does it help promote the bests interests of higher education in Pakistan. This bit is alarming. One wonders about the breath of debate that takes place before such an ordinance is promulgated or if any debate takes place at all? Was the cabinet even consulted in this matter and their collective wisdom was completely behind this law? All these unanswered questions leave one frustrated over the state of affairs encompassing our government.

Here is a government that once championed meritocracy and institutional independence. Yet it has sacrificed both meritocracy and institutional independence, every time, at the altar political expediency. Shame!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn