‘Legal reforms’: Govt all set to bypass parliament again

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–PTI govt to table drafts of presidential ordinances in Monday’s cabinet meeting

–Article 89 stipulates that only in exceptional circumstances can the federal govt legislate through ordinances

 

ISLAMABAD: The Pakistan Tehreek-e-Insaf (PTI) government has decided to introduce legal reforms through presidential ordinances and Prime Minister Imran Khan has given his nod to table the draft of these ordinances before the federal cabinet on Monday for approval, it has been learnt.

According to sources, some ordinances will be tabled in the upcoming federal cabinet meeting to initiate legal reforms in the country and these ordinances are drafted by the Ministry of Law and Justice.

The meeting is likely to grant its approval to the proposed ordinances for initiation of law reform, informed sources told Pakistan Today.

“On finding difficulty to get an approval from parliament over the proposed law reforms, the government has decided to initiate the reforms through presidential ordinances,” said the sources, adding that the opposition has been creating hindrances in the passage of bringing these reforms so the government decided to adopt the uninterrupted procedure.

Sources also said that the federal government, in order to initiate legal reforms, had earlier constituted a task force under the chairmanship of Minister of Law and Justice Dr Farogh Naseem to propose laws with the primary objective to alleviate the hardships of people of Pakistan.

To secure and promote the rights of people in particular women, the task force has recommended new laws for the protection of women property rights, setting up of legal aid mechanism for the poor and vulnerable and a mechanism for issuance of succession certificates by National Database and Registration Authority (NADRA).

Similarly, they said that to introduce the law reforms, the law regulating the court dress and mode of address may be repealed to allow the superior courts to decide the appropriate dress code and the manner in which the advocates must conduct themselves in the court of law will be table during the course of next cabinet meeting.

The agenda of federal cabinet meeting, which is scheduled to be held on Oct 14, confirms that the Law and Justice Division will seek cabinet’s approval on the ordinances for initiation of law reforms.

The Ministry of Law and Justice, in its summary for the cabinet, has sought approval of the ordinances for initiation of law reforms.

According to the summary of the Law and Justice Ministry, ordinances named as “the letters of administration and succession certificates ordinance, 2019, the enforcement of women’s property rights ordinance, 2019, the Benami transaction (prohibition) (amendment) ordinance, 2019, the superior courts (court dress and mode of dress) order (repeal) ordinance, 2019, the National Accountability (Amendment) Ordinance, 2019, the legal aid and justice authority ordinance, 2019” are prepared  as the legislative process will take substantial time.

In order  to expose Benami transactions and to deal with individuals arrested under the National Accountability Ordinance, 1999, the Law and Justice also prepared two bills named as ‘The Benami Transaction (Prohibition) (Amendment) Bill, 2019 and  the National Accountability (Amendment) Bill, 2019” which will be presented before the cabinet for approval.

“Keeping in view the urgency involved in this case, the aforesaid ordinances are proposed to be promulgated immediately,” said a summary of the Law and Justice Ministry. “Minister for Law and Justice has approved and authorized the submission of this summary.”

It is pertinent to mention here that draft bills namely the letters of administrations and succession certificates bill, 2019, the enforcement of women’s property rights bill, 2019, the legal aid and justice authority act, 2019, and the superior courts (court dress and mode of address) order (repeal) bill, 2019 were prepared and introduced in the National Assembly, and the same were pending in the Standing Committee on Law and Justice.

However, the cabinet directed the law minister to examine and recommend the best course for the enactment of the above draft laws relating to matters of public interest.

Accordingly, the law minister examined the issue proposed that the legislative process will take substantial time so the bills may be promulgated as ordinances.

LEGISLATION THROUGH ORDINANCES:

Article 89 of the constitution defines in detail the process of legislation through ordinances. It stipulates that only in exceptional circumstances can the federal government exercise such an authority.

The clause further lays out those special cases. The president, it adds, may promulgate an ordinance when the Senate or the National Assembly is not in session, and only if the president is “satisfied that circumstances exist which render it necessary to take immediate action.”

Now, while an ordinance is deemed to have the same force and effect as an act of Parliament, it stands expired at the end of 120 days of its promulgation.

In April 2010, the 18th amendment to the constitution barred the government from re-promulgation of the same ordinance. Earlier, no such bar existed. The ruling party had the power to push through an ordinance, after its expiry, and for as many times as it deemed fit.

An ordinance, once promulgated for 120 days, can only be extended once more by the parliament, through a resolution, that can originate and be passed in either national assembly or the Senate. This means an ordinance, if extended by a house, can only be valid for 240 days (2 terms only). Also, after the promulgation of an ordinance, the passage of a resolution in either house can reject the ordinance, which means it stands void the day the resolution is passed so it can’t even be on the books for 120 days.

The intent of the constitution, therefore, is very clear. Legislation through ordinances can only be used as a stopgap arrangement, when either house of parliament is not in session. Article 89 does not allow the government to bypass the National Assembly and the Senate, who have the constitutionally defined mandate to legislate “with respect to any matter in the federal legislative list”, as per article 70 (1) of the constitution.

The major opposition parties — the Pakistan Muslim League-Nawaz (PML-N) and Pakistan People’s Party (PPP) — have already rejected the government’s act of setting up the CPEC Authority through a presidential ordinance, terming it an “illegal” move in violation of recommendations of the parliamentary committee concerned.

Condemning the government’s act of establishing the authority through a presidential ordinance, PML-N leader Ahsan Iqbal said the “rulers have expressed no confidence in civil institutions”.