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Govt defends right to legislate through ordinances

Mon, January 18, 2021

ISLAMABAD: As opposition members in the Senate on Monday assailed the government for what they called an attempt to rule through ordinances, the government defended the president’s power to promulgate ordinances.

“It is not something illegal. Article 89 of the Constitution which had not been touched at the time of the 18th Amendment gives the president power of issuing ordinances,” Law Minister Dr Farogh Naseem said during the discussion on a motion 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, especially the current case of attempted illegal land grab of Sindh and Balochistan’s islands as well as resources’.

The law minister pointed out that the ordinances had a temporary life and could not be re-promulgated under a judgement of the apex court.

“No ordinance has been promulgated to defeat the intent of legislation,” he said.

Complaining non-cooperation by the opposition over legislation, even those relating to the national interest, the minister said that even the crucial Financial Action Task Force-related legislation had to be taken to a joint session of parliament. He said that no ordinance had been promulgated while any of the two houses of parliament was in session. “Had it been done, the Supreme Cou­­rt would have voided it,” he remarked.

Dr Naseem said most of the ordinances promulgated during the present government’s term had already been converted into an act of parliament, while many others, including Pakistan Islands Deve­l­opment Authority Ordinance, had lapsed.

Over the islands ordinance controversy, he said the legislative powers were divided between the federation and the provinces. He referred to Articles 142, 143,144 and 87 of the Constitution and pointed out that entry 37 of the federal legislative list (fourth schedule) read: “Works, lands and buildings vested in, or in the possession of government for the purposes of the federation (not being military, naval or air force works), but, as regards property situated in a province, subject always to provincial legislation, save in so far as federal law otherwise provides.” He said the apex court had interpreted entry 37 in the Sindh government versus Dr Nadeem Rizvi case.

He said the islands ordinance had been promulgated after the Sindh government’s ‘consent’ was received on July 6, 2020. He said the ordinance had been promulgated on Sept 2 and it had lapsed on Dec 28, 2020. He said the letter conveying Sindh cabinet’s decision had been withdrawn after promulgation of the ordinance.

Dr Naseem said Article 264 of the Constitution applied after promulgation of the ordinance. The article reads: “Where a law is repealed or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not except as otherwise provided in the constitu­tion,(a) revive anything not in force or existing at the time at which the repeal takes effect;(b) affect the previous operation of the law or anything duly done or suffered under the law;(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law......”

Earlier, the opposition senators regretted that parliament was being bypassed and ordinances were being promulgated without fulfilling the preconditions ensh­rined in Article 89 of the Constitution.

They made it clear that a shortcut was in no way permissible under the law, which made it clear that an ordinance could not be promulgated when either house of parliament was in session.

Interestingly, some members from the opposition also demanded withdrawal of the islands ordinance that has already lapsed.

Senator Mir Kabir of the National Party criticised the president for frequently promulgating the ordinances and said that during two-and-a-half years of the Pakistan Tehreek-i-Insaf in power around 40 ordinances had been issued.

He regretted that the islands ordinance had been secretly promulgated in the darkness of night on Sept 2 and claimed that the step was in violation of Articles 152 and 172 of the Constitution. He said it was done on the pretext of promoting tourism, but reminded the rulers that tourism was a provincial subject after the passage of 18th Amendment.

‘Widening fault lines’

Former chairman of the Senate Mian Raza Rabbani said the state appeared to have decided to widen all the fault lines. He said the state seemed to be trying to revert the country to one unit. He critici­sed the government for its continuous attempts to usurp the rights of the provinces.

He also blasted the attempts to bypass and demean the parliament by frequent issuance of ordinances.

He said that under the garb of so-called transparency of the vote, the federal government wanted to destroy the pith of the Senate which was enshrined in Article 59 of the Constitution wherein it stated that the Senate elections would be held on ‘proportional representation’ and a ‘single transferable vote’. Doing away with this principle would also deprive the nationalist and religious parties of being a part of the mainstream of the federation, he said.

Mr Rabbani underlined the need for implementation of trichotomy of powers in accordance with the Constitution and suggested revival of the intra-institutional dialogue initiated during his days as Senate chairman.

Published in Dawn, January 12th, 2021

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