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Experiments in Governance

From parliamentary democracy to the presidential system and martial law regimes,
Pakistan is still looking for an ideal system of governance. While the experiments
continue, the masses hurtle down the poverty line.

By Muhammad Waqar Rana | October 2020

A state survives and prospers if there is rule of law. The classical concept of rule of law is: a law, that, in its form and substance, conforms to the Constitution. The law-making power is vested in the Parliament under the Constitution. Successive governments in Pakistan have relied upon Ordinances to enact laws. Successive Parliaments have also almost abdicated their legislative business. Sometimes, a law or a constitutional amendment is passed in hours, not days. But when it comes to legislation for public good, it is hard to find a quorum.

An Ordinance is a colonial relic that adorns the Constitutions of Pakistan and India. Unlike a Governor General under the British Crown, who had carte blanche Ordinance-making powers, the Presidents in Pakistan and India have this constitutional legislative power which can be exercised under certain circumstances and conditions. This legislative power was conferred on the executive heads in all British colonies to meet a legal requirement back home in England, insisting on a ‘law’ to provide for the rights and duties that included draconian penal codes and revenue laws. The British Constitution recognized the principle of separation of powers for securing liberties, to which French scholar Montesquieu referred as legislative powers conferred on the Governors General of the colonies, as life, liberty and taxes could be dealt with under a law only.

The President has Ordinance-making powers under Article 89 of the Constitution. The Governor of a province has similar powers under Article 128. The said Articles prescribe prior circumstances or conditions whereunder this legislative power can be exercised by the President or the Governor. This emergent power can be exercised only when the President is satisfied that the requisite circumstances exist. But not when the Senate and National Assembly are in session. This satisfaction in fact is not the satisfaction of the President but of the Cabinet. Executive power is vested in the prime minister and his cabinet in the Parliamentary form of government. The matters of satisfaction and the existence of emergent circumstances are not justiciable. The other condition is that the Senate and National Assembly must not be in session. Under the original Constitution of 1973, the Senate was not mentioned in clause 1 of Article 89. It was inserted through the 18th Amendment in 2010.

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The writer is an advocate of the Supreme Court and former Additional Attorney General of Pakistan. He holds an LL.M. degree from Harvard Law School and is the co-author of a book ‘Comparative Constitutional Law.’ He can be reached at mwaqarrana@yahoo.com

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