The Islamabad High Court (IHC) has been urged to direct the federal government to file a report on a petition seeking to declare the nine ordinances illegal, unconstitutional and ultra vires of Article 89 of the Constitution.
The IHC on 13-11-2019 had directed the government to file a report and para-wise comments on the petition within fortnight. Pakistan Muslim League-Nawaz (PML-N) MNA Mohsin Ranjha through 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; 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. The President on 27th December, 2019, promulgated Ordinance - the NAB (Second Amendment) Ordinance, 2019.
The petitioner said despite passing of more than one-and-a-half-months, 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 petitioner stated 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.
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.
"[I]t is emphatically the province and duty of the judicial department to say what the law is," was famously held in the Marbury vs Madison (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 petitioner.
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