President, Parliament And Separation Of Powers
“It is the will of the people which turns an ordinance from ‘having effect and force of law’ to ‘law in force and in effect’. That is the distinction between the will of the President and will of the people.”
Article 50 of the Constitution of Islamic Republic of Pakistan defines the composition of Parliament in the following words:
“ARTICLE 50: There shall be a Majlis-e-Shoora (Parliament) of Pakistan consisting of the President and two Houses to be known respectively as the National Assembly and the Senate.”
The concept of separation of powers is read, meant and understood in the context of three organs of state i.e. legislature, executive and judiciary. However, President being part of the Parliament in terms of Article 50 of the Constitution has never been thought or conceived as a threat to the legislative process. The exercise of powers by the President and the Houses of Parliament has always been always understood as independent of the other. Theoretically speaking, it is true but practically the President has one power which may clash with the legislative functions performed by the two Houses of Parliament i.e. Senate and the National Assembly. This likely clash in the legislative process within Parliament can only be conceived when a ‘Presidential Ordinance’ is promulgated when Parliament is in session. In the mid of December 2016 this clash took place in the Senate of Pakistan i.e. upper house of the Parliament of Pakistan when the President of Pakistan without much application of mindfulness and without exercising self restraint promulgated the Companies Ordinance 2016.
The upper house of Parliament i.e. Senate struck down the Companies ordinance 2016 on the 15th of December, 2016 in terms of Article 89(2)(ii)(first proviso) by denying the authority of the Presidential Ordinance over the will of the people represented through Parliament. Senate voted out the Ordinance on the ground that the matter should be promulgated through Parliament. This important constitutional matter was reported in all newspapers of the country the very next day. A part of the news report published in newspapers is reproduced for reference and further analysis:
“Ruling Pakistan Muslim League-Nawaz (PML-N) was frowned upon in Senate on Thursday (15-12-2016) as it watched helplessly a strident joint opposition backed by some government allies including Pakhtunkhwah Milli Awami Party (PkMAP) and National Party (NP) that disapproved ‘The Companies Ordinance 2016’ by 50 to 18 votes. After going for a voice vote, Chairman Senate Raza Rabbani opted for a headcount and many were surprised to see not only PkMAP and NP but also some FATA Senators and Mohsin Leghari from the Treasury benches vote for the Resolution.
The Resolution was signed by as many as 40 Senators for the requisitioned session to disapprove the Ordinance. As Mandviwalla moved the Resolution, Minister for Law and Justice Zahid Hamid stood up to oppose it, triggering a heated debate in the House and forcing the opposition in the Senate to come down hard on the government for bringing ordinances of its choice. The Senators said the Ordinance was designed to change the entire economic and legal structure meant for companies and it was in fact a well-calculated move to circumvent the facility under Article 89 of the Constitution and termed it a joke with the Constitution.”
– Excerpt from a news report published in the daily newspaper Business Recorder on 16th December, 2016.
Promulgation of an Ordinance by President under Article 89 of the Constitution of Pakistan 1973 is an exceptional power provided to the President only on the condition and in circumstances when Senate or National Assembly is not in session. Furthermore to set Article 89 in motion the President needs to take into account “immediate need of action” as well as the “circumstances” in which the Ordinance is promulgated. Article 89(2) speaks about the effect of an Ordinance with the words, “Ordinance promulgated under this Article shall have the same force and effect as an Act of Majlis-e- Shoora (Parliament)”. Article 89 of the Constitution may be read for reference. Article 89(1) is reproduced here for reference, convenience and understanding;
“ARTICLE 89: Power of President to promulgate Ordinances—(1) The President may, except when the [Senate or] National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.”
Gathering the meaning and underlying interpretation of Article 89(1) and (2) three vital conditions to exercise powers under Article 89 of the Constitution of Pakistan can be pointed out; firstly, that promulgation of the Ordinance is against the intent, spirit and word of the Constitution when Parliament is in session; secondly, even when Parliament is not in session the President has to qualify immediate need of action and circumstances before promulgation of the Ordinance; and lastly, the Ordinance not being an Act of the Parliament shall only have the effect and force of the ‘Act’.
Bare reading of the provisions of Article 89 suggests that an Ordinance is an exclusive power available to the President of Pakistan which is exercisable only in exceptional circumstance when Parliament is not in session. This exception in its nature may be unfolded in two arguments: firstly, that the President is not a lawmaker as lawmaking is the sole prerogative of the Parliament; and secondly, Presidential Ordinances issued in absence of the Parliament shall only have the “effect and force” of an Act of the Parliament, meaning thereby that Ordinances themselves cannot be called or termed as ‘Acts’ of Parliament.
Ideals or ethics behind law-making are limited to the representation of the will of the people in a representative democracy for upholding values that a democracy can confer upon the populace living in a state. An Ordinance as a single person’s law, be that the President of the country, shall always require validation by the two Houses of Parliament to ensure that the Ordinance has the will of the people behind it. It is the will of the people which turns an Ordinance from ‘having effect and the force of law’ to ‘law in force and in effect’. That is the distinction between the will of the President and the will of the people.
When the two Houses of Parliament are in session, the President must always give space to them during the presentation of a Bill, a debate on the Bill and converting the same in a piece of legislation. Promulgation of an Ordinance under Article 89 of the Constitution by the President during the times when Houses of Parliament are in session is nothing but violating the mandate of the Constitution. It is also noteworthy that calling or summoning the session of either house or both houses of Parliament in joint-sitting is always within the powers of the President under Article 54 (summoning and prorogation of Majlis-e-Shoora) of the Constitution of Pakistan 1973. Therefore the President can always summon Parliament and in particular when any special needs to legislate arise. This power of summoning and prorogation of Majlis-e-Shoora clips the power of the President to promulgate an Ordinance, as calling a session of Parliament is always within the power of the President. In short, an Ordinance promulgated while Parliament is in session is a grave violation of the Constitution, which should be avoided by the President by exercising self-restraint on the power to promulgate an Ordinance.
It is a matter of pride, honor and responsibility for any person acting as the President of Pakistan to respect the democratic values enshrined in the Constitution of Pakistan, abiding by every word of the Constitution and observing the oath taken under Article 42 of the Constitution to preserve, protect and defend the Constitution of the Islamic Republic of Pakistan. Any act of an individual (acting as President of Pakistan) bringing ridicule to that office is not an ordinary matter and when any House of Parliament disapproves of any Ordinance on constitutional grounds for its validity, it is surely a disgrace not only to that individual but to the office of the President as well and in particular to the Constitution of Pakistan. It is pertinent to add that violating the Constitution by issuing the Ordinance while superseding the two Houses of Parliament is one of the grounds of impeachment of President. We as a nation expect more care, due diligence, due process and more respect towards the will of the people from the office of the President in future, by giving testimony to the fact that the will of the people is surely more important and sacred than the wishes of one person holding the office of President.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.