The Islamabad High Court (IHC) on Wednesday issued notices to the federation and the Attorney General for Pakistan (AGP) in a case against the promulgation of presidential ordinances.
A single bench of IHC comprising Chief Justice Athar Minallah after issuing the notices deferred the hearing in this matter for two weeks for further proceedings.
The ordinances were related to conversion of the Pakistan Medical and Dental Council into the Pakistan Medical Commission, the protection of whistleblowers informing about any benami property and asset, rights of ownership of women in property, speedy mechanism for issuance of letter of administration and succession certificates, establishment of legal aid and justice authority to provide justice to the poor and vulnerable segments of society, court dress and mode of address to judges, recovery of mortgage-backed securities by financial institutions and the national highway safety.
PML-N's lawmaker Barrister Mohsin Shahnawaz Ranjha challenged these ordinances in the IHC through Barrister Umer Gillani and made President Dr Arif Alvi, principal secretary to the Prime Minister and secretaries of law, National Assembly and Senate respondents.
The petitioner contended that the President, under Article 89 of the Constitution of Pakistan, is empowered to promulgate ordinances, which are a form of temporary legislation subject to two expressly stipulated conditions: (a) when neither the Senate nor the National Assembly is in session; and (b) if circumstances exist which render it necessary to take immediate action.
It further said that the President was bound to act on and in accordance with the advice of the federal government. This means that the ultimate responsibility for the promulgation of the impugned ordinances falls upon the federal government.
The petition adopted that on October 30, 2019, President Alvi promulgated eight ordinances in a single day including "the Letter of Administration and Succession Certificates Ordinance, 2019; the Enforcement of Women's Property Rights Ordinance, 2019; the Benami Transactions (Prohibition) (Amendment) Ordinance, 2019; the Superior Courts (Court Dress and Mode of Address) Order (Repeal) Ordinance, 2019; the National Accountability (Amendment) Ordinance, 2019; the Legal Aid and Justice Authority Ordinance, 2019; and The Whistle-Blowers Act.
He claimed that at the time of promulgating these ordinances, the President had good reason to be aware of the upcoming Senate session starting on November 5 and the National Assembly session starting on November 7. However, without waiting for these sessions of the Parliament, the President rushed to promulgate eight ordinances in a single day.
He contended, "The website of the National Assembly indicates that since September 24, 2018, the President has promulgated at least 20 ordinances. It appears that the ruling party has adopted ordinance-making as the normal and routine method for legislation while avoiding parliamentary law-making as far as possible."
While referring to relevant constitutional provisions, the petition said that "Article 89 represents a narrow exception to the general procedure for bringing about legislation. Bare reading of the text shows that the power to legislate conferred on the president by Article 89 is meant only for dealing with emergencies and not handling routine matters".
The petition said that these ordinances did not represent a bona fide exercise of the power conferred by Article 89, adding that all the impugned ordinances were meant to bring about long-term governance reform, which, albeit important, fell squarely in the category of routine legislation.
The petitioner further pointed out that the federal government could not promulgate law without following the procedure set forth by the Constitution which mandated them to introduce the bill before the houses of Parliament and gain a simple majority.
"Thus, the federal government cannot be allowed to bulldoze their legislative agenda using the emergency presidential powers to promulgate ordinances under Article 89 to subvert the Parliament," the petition said.
Therefore, the petitioner prayed to the court to declare the presidential ordinances issued by the incumbent government as illegal, unconstitutional and being ultra vires of Article 89 of the Constitution of the Islamic Republic of Pakistan and having been promulgated in a "mala fide" manner.
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