Presidential ordinances: IHC appoints Makhdoom, Awan , Rabbani and Manto as amici curiae

The Islamabad High Court (IHC) on Friday appointed advocates Makhdoom Ali Khan, Babar Awan, Raza Rabbani and Abid Hussain Manto as amici curiae (friends of the court) to assist in a petition against nine ordinances promulgated by the federal government.

A single bench of IHC comprising Chief Justice Athar Minallah, who heard the petition of PML-N MNA, said it is expected that Attorney General for Pakistan will assist the court on the next date regarding the matter.

The IHC directed the federal law secretary to submit written comments within fifteen days and adjourned the hearing until January 21. Pakistan Muslim League-Nawaz (PML-N) MNA Mohsin Ranjha through Advocate Umer Gilani requested the IHC to declare the impugned ordinances illegal, unconstitutional, ultra vires of Article 89 of the Constitution and having been promulgated in a malafide manner.

The President on 30th October 2019 promulgated eight ordinances including; Letter of Administration and Succession Certificates Ordinance, 2019; Enforcement of Women's Property Rights Ordinance, 2019; Benami Transactions (Prohibition) (Amendment) Ordinance, 2019; Superior Courts (Court Dress and Mode of Address) Order (Repeal) Ordinance, 2019; National Accountability (Amendment) Ordinance, 2019; Legal Aid and Justice Authority Ordinance, 2019; and Whistle-Blowers Act. The President on 27th December, 2019, promulgated another Ordinance i.e. NAB (Second Amendment) Ordinance, 2019.

The petitioner said despite passing of more than one-and-a-half-month, respondents have yet to file any reply. In the meanwhile, however, they have continued to promulgate new ordinances with full speed, while completely sidelining the Parliament. He submitted that the question of law raised in the petition goes to the essence of the democratic dispensation envisaged in the Constitution 1973.

The petitioner has assailed the ordinances, saying the impugned ordinances are ultra vires of Article 89 of the Constitution. The ordinance-making power is an emergency provision and is not meant for routine legislation.

The PML-N leader maintained that that Constitution places strict conditions on the exercise of ordinance-making power. It is to be exercised only when doing so is necessary for responding to an emergency situation (such as war, famine, epidemic or rebellion) which arises after the prorogation of one session of Parliament and where waiting for the next session would cause irreparable loss to the people of Pakistan.

He further said that the data suggests that, unfortunately, the ordinance-making power has been constantly abused by successive governments. It appears that more than 2,500 ordinance have been promulgated by the Presidents since 1947. This practice, which amounts to a transgression by the executive into the legislature's domain, is continuing even today.

He continued that "[i]t is emphatically the province and duty of the judicial department to say what the law is," as was famously held in Marbury vs Madison case (1803) and endorsed in countless other constitutional cases since then. The petitioner only seeks from this court a clarification and declaration of the law for the sake of future and nothing further, said the petition.