PRESIDENTIAL ORDINANCES
Article 89 of the Constitution firmly accords legislative powers to the President. In contrast to the elevated forms of contest that have been played out in reference to other executive and presidential powers, the grant of ordinance-making powers has rarely been the subject of controversy.
While the discussion surrounding the reincorporation of Executive Ordinances through the 1973 parliamentary debates was at times heated, all attempts to amend or abolish these powers were defeated by the government. Some previous PPP stalwarts who had lost favour with Bhutto argued from the position that the ordinance power was itself a ‘relic’ of our imperial history; amendments were tabled that would limit the exercise of Presidential Ordinances to the pendency of war and other disorder sufficient to constitute an emergency. On another pole, the need for ordinances to meet substantive conformity with Quran and Sunnah was also tabled.In many ways the more important amendment that also failed at this time was one seeking to restrict the use of the ordinance power against the making of laws that imposed new taxes.[302] It was against this proposed delimitation that Bhutto’s law and finance ministers both spoke to the need to rein-in rapacious capitalism, for which the rapid fire action of the executive ordinance was a necessary complement.[303] The original article as passed at this time has in fact no express delimitations on the substantive matters which can be legislated upon by the President. However, Presidential Order No 20 of 1985 introduced the change that a Presidential Ordinance that deals with any or all matters listed as describing the quality of a money Bill shall have to be considered by the National Assembly. This is in strict conformity with the process of money Bills more broadly being introduced and debated within the lower house after and recommendatory powers of the Senate regarding the same.
In the case of all ordinances, it is held that they will be valid for up to four months, and if at that point are either not voted into Acts of Parliament or extended for one additional period of 120 days, they will be considered to have been ‘repealed’.[304] Built into the constitutional structure are specific directives about the impact of repeal in Article 264. It has been held that these consequences apply when Parliament has repealed but not necessarily when an ordinance has been held to be ultra vires through judicial review[305]
Although the current Article 48 provides that in all ‘his functions’ the President shall act on the advice of the Prime Minister, whether or not there are explicit fetters on the President for the exercise of this legislative power remains somewhat unsettled. In a somewhat roundabout discussion, it has been suggested that where an assembly stands dissolved and a caretaker government is brought into being, there is ample reason to believe that ordinance powers are also nullified.[306] This seems to be in accord with what might be considered to be the original intent of constitutional framers who vociferously argued against detractors of the ordinance powers by citing ‘the whole of the constitutional instrument’ in which minimum numbers of days was prescribed for parliament to be ‘in session’, leaving very few days for exercise of the ordinance powers. Although two subsequent military coups and the two army generals’ refusal to constitute Parliament according to constitutional guarantees have proven them incorrect, it can only be surmised that the possibility of the Assembly being in session was a condition precedent for the exercise of ordinance powers granted in the 1973 Constitution.
Additionally, the criteria that circumstances necessitating immediate action must be in existence is the second of the conditions that might be construed to subject the exercise of ordinance-making powers to judicial review Integrally, this is related to questions of whether an act of President’s satisfaction itself can be reviewed.
It has, in general, been the rule that mala fide intent will not be attributed to a governmental official. However, by the same token, given that the rule for testing satisfaction extends to ensuring that it is well beyond mere opinion, the rule in general seems to be that this forms one mode of invoking judicial review.[307]In spite of what might seem to be a situation whereby ordinance powers are limited, by lapse or by the conditions constitutional defined as necessary for their operation, the expanse of law in this country proves that a far more permissive environment has prevailed. Additionally, their extension or normalisation into law has happened during the pendency of military rule through Articles 270A and 270AA. These provisions provide for the ‘Affirmation of Presidents’ Orders’ and ‘Declaration and Continuance of Laws’ for Zia- and Musharraf-era ordinances. Even otherwise, ordinances have often assumed a permanent character, as in the many passed by Ayub and Bhutto. The Sindh Lawyers Forum case, however, sought to close off possibilities of such further incorporations.[308]