The Evolution Of Ordinances To Laws In Pakistan

In Pakistan, an ordinance is a law that is issued by the President when the National Assembly is not in session. This is done under Article 89 of the Constitution of Pakistan, which states that the President may make and promulgate an ordinance if circumstances exist which render it necessary to take immediate action. Ordinances are meant to be used in extraordinary situations where legislation is urgently required and cannot be deferred until the next parliamentary session. They are temporary in nature and usually remain in force for 120 days, after which they must be approved by the Parliament to continue as law. The Supreme Court of Pakistan can also review the validity of ordinances and strike them down if they are deemed unconstitutional.

The role of the President of Pakistan

The President of Pakistan is the constitutional head of state and a figurehead who represents the 'unity of the federation' or 'unity of the republic'. The President is elected for a five-year term by both houses of parliament and the four Provincial Assemblies. The President resides in an estate in Islamabad known as Aiwan-e-Sadaṝ (lit. Presidency).

The President holds the legal title de jure and is a civilian commander-in-chief of the Pakistan Armed Forces. The Constitution of Pakistan vests the President with the powers of granting pardons, reprieves, and the control of the military. However, all appointments at higher commands of the military must be made by the President on a 'required and necessary' basis, upon consultation and approval from the Prime Minister. The President also makes important appointments, such as the chief justice, chiefs of the armed forces, and chairman joint chief of staff committee, on the advice of the Prime Minister.

The President cannot run the government and must act on the advice of the Prime Minister. The Prime Minister keeps the President informed on all matters of internal and foreign policy and on all legislative proposals.

In terms of the role of the President in the process of how an ordinance becomes a law, an ordinance is a law promulgated by the President when the National Assembly is not in session, in exercise of the powers vested in him by Article 89 of the Constitution. All legislation made by parliament needs the assent of the President before coming into force.

The role of the National Assembly

Ordinances are temporary laws promulgated by the President of Pakistan, allowing the government to address urgent matters that cannot wait for the standard legislative process. These are usually in effect for 120 days and carry the same legal weight as laws enacted by Parliament during this time.

For an ordinance to become a permanent law, it must be presented to the Parliament for approval. This is where the National Assembly plays a key role. The National Assembly debates and justifies the proposed legislation, and if it is passed by a simple majority, it becomes an Act of Parliament. This is a critical step in the legislative process, as it ensures that the ordinance is scrutinised and discussed by the elected representatives of the people.

The National Assembly can also propose amendments to the ordinance during the legislative process. Amendments are suggestions for changes or additions to the ordinance, which can be made by any member of the National Assembly. These amendments are then debated and voted on, and if passed, they become part of the ordinance. This allows the National Assembly to shape and influence the final form of the law.

In addition to approving or amending ordinances, the National Assembly also has the power to repeal or revoke them. If the National Assembly believes that an ordinance is no longer necessary or is detrimental to the public interest, it can pass a motion to repeal it. This power of oversight ensures that the executive branch, which promulgates ordinances, is held accountable to the legislative branch.

The National Assembly's role in the ordinance-making process is essential to maintaining the balance of powers between the different branches of government and ensuring that the laws passed are in line with the will of the people.

The role of the Senate

The Senate of Pakistan is the upper house of the bicameral Parliament of Pakistan. It was first convened in 1973, and its composition and powers are established by Article 59 of the Constitution of Pakistan. The Senate has 100 senatorial seats, with 96 members and a minimum of 17 women Senators, as required by the Pakistani constitution. Senators are elected for six-year terms, with half of the house up for election every three years.

The Senate has several exclusive powers not granted to the National Assembly, including the power to make parliamentary bills that can be enforced into law. The Senate shares the task of making and shaping laws and checking and challenging the work of the government. It has three main roles: legislation, accountability and oversight of the executive, and representation of federating units.

For a bill to become a law, it must go through the following steps in both Houses of Parliament:

• First reading: The bill arrives.
• Second reading: The main debate on the purpose and key areas of the bill takes place.
• Committee stage: A detailed line-by-line scrutiny of the text is conducted, with amendments (proposed changes) considered. Votes may take place to decide whether to make the changes.
• Report stage: The text is further examined, and more amendments are debated. Additional votes take place to decide on the changes.
• Third reading: After clause-by-clause consideration of the bill, the member-in-charge can move a motion for the bill to be passed. At this stage, the debate is confined to arguments in support or rejection of the bill without referring to its details.
• Presidential Assent: When both Houses agree on the final content, the bill is assented to by Parliament and becomes a law or 'Act of Parliament'.

The temporary nature of an ordinance

Ordinances in Pakistan are temporary laws that are enacted by the President of Pakistan when the National Assembly is not in session. They are intended to address urgent and critical matters that require immediate attention and cannot be deferred. The Constitution of Pakistan, specifically Article 89, authorises the President to promulgate ordinances when "circumstances exist which render it necessary to take immediate action".

• Time-bound: Ordinances have a limited duration and are typically valid for a maximum of 120 days from the date of their promulgation. This time frame is crucial as it allows for swift action in emergencies while also providing a check on the executive's power.
• Parliamentary Approval: For an ordinance to become a permanent law, it must be presented before both houses of Parliament (the National Assembly and the Senate) and approved by them within the stipulated timeframe. If Parliament does not pass the ordinance, it will expire and cease to have any legal force after the initial 120-day period.
• Emergency Measure: Ordinances are meant to be used in extraordinary situations where immediate action is required. They are not intended to bypass the standard legislative process or to avoid parliamentary debate. However, in practice, there have been instances where ordinances have been promulgated for convenience rather than genuine urgency.
• Judicial Review: The judiciary plays an important role in scrutinising ordinances. The courts have the authority to review the validity and constitutionality of ordinances. If an ordinance or any of its provisions are found to be ultra vires (beyond the powers granted by the Constitution), the judiciary can declare it null and void.
• Limited Use: Ordinances should not be used to amend the Constitution or any provisions relating to the judiciary. They are meant to address specific issues or situations that require immediate attention and cannot be addressed through the regular legislative process due to the urgency of the matter.
• Impact on Governance: While ordinances provide a mechanism for swift action, it is essential to ensure that their temporary nature does not undermine the principles of good governance, transparency, and accountability. The promulgation of ordinances should not become a substitute for inclusive legislation passed by Parliament.

In conclusion, the temporary nature of ordinances in Pakistan is a crucial aspect of the country's legal framework. It allows the President to take immediate action in emergencies, but it also has checks and balances in place through parliamentary approval and judicial review. However, the overuse of ordinances can run counter to the spirit of democracy, and it is important to ensure that their use aligns with the principles of good governance.

The process of an ordinance becoming a law

Ordinances are temporary laws that address urgent matters and carry the same legal weight as laws enacted by Parliament during their active period. They are meant to be used in extraordinary situations where the standard legislative process would be too slow to address the issue at hand. Ordinances are typically valid for a maximum of 120 days, after which they expire unless approved by Parliament.

• Identification of the need for immediate action: The government identifies an urgent issue that requires immediate attention and cannot wait for the Parliament to convene.
• Drafting of the ordinance: Legal experts draft the ordinance, ensuring it comprehensively addresses the identified issue.
• Approval by the President: The drafted ordinance is presented to the President for approval. The President has the authority to approve or reject it.
• Publication and enforcement: Once approved, the ordinance is published in the official gazette and becomes enforceable as law.
• Presentation to Parliament: For an ordinance to remain in effect beyond 120 days, it must be presented to and approved by both houses of Parliament. If Parliament does not pass it within the stipulated timeframe, the ordinance expires.
• Judicial review: The courts have the authority to review the validity and constitutionality of ordinances. If any provision is found to be beyond the powers of the government, the courts can declare it null and void.

While ordinances allow the government to take swift action in emergencies, they have been criticised for undermining the spirit of democracy by bypassing the legislative process.

Frequently asked questions