Validation Ordinance 2012
That an ordinance had to be promulgated by President Zardari to prevent actions taken by former Prime Minister Gilani during the period of his 'conviction' and 'disqualification' from being challenged in court is a development which was highly and widely expected. That his opponents would challenge him it was also expected. And in fact it has already happened as the Supreme Court has received a petition challenging the actions and decisions during that fateful interregnum requesting the court to hold them void ab initio. How will this showdown play out? Is it in the realm of the unknown? These are profoundly profound questions.
Copyright Business Recorder, 2012
The court's verdict, on the face of it, doesn't militate against the age-old constitutional practice of 'de-facto government doctrine'. During the time between conviction and disqualification - which was almost two months - the government had taken quite a few important decisions including adoption of federal budget. Also, in normal course it had made new appointments, postings and transfers and even signed some protocols with foreign governments. Obviously, reversal of those actions and decisions is neither contemplated, nor is it possible. But that said one cannot be unmindful of the fact that quite a few things done during that period cannot be justified under this doctrine. If the court is asked to deal with the latter category of actions and decisions, it should not offend anyone.
There can be no two opinions on the president's right to issue an ordinance if and when warranted by the circumstances and with parliament being out of session require immediate legal cover. Since the Supreme Court's verdict on Gilani tends to breed uncertainty, irrespective of it being right or wrong, the Validation Ordinance 2012 is a very much positive move. That as head of state he has inherited the right for concurrent legislative power is a fact which can always be debated in order to ascertain its exact and legal propriety. The framers of the 18th Constitutional Amendment did not find anything wrong with this power being kept with the president though they did deprive him of all the potent roles by abrogating Article 58 2(b). But if the president has the unchallengeable power to issue ordinances, the Supreme Court has the unquestionable right to interpret constitution. Paradoxically, both have legal, constitutional positions.