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P L D 1999 LAHORE 320

MAHMOOD HASAN HARV

V/S

FEDERATION OF PAKISTAN Through Secretary Interior,
Government of Pak.

Per Rashid Aziz Khan, C.J.

(a) Constitution of Pakistan(1973) Art. 89

We have heard the learned counsel for the parties at length. The Ordinance making power of the President is provided by Article 89 of the Constitution of Islamic Republic of Pakistan, 1973. The said provision is reproduced below for facility of reference:–

“89. (1) The President may, except when the 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.

(2) An Ordinance promulgated under this Article shall have that same force and effect as an Act of Majlis-e-Shoora (Parliament) and shall be subject to like restrictions as the power of Majlis-e-Shoora (Parliament) to make law, but every such Ordinance—

(a) Shall be laid–

(i) before the National Assembly if it contains provisions dealing with all or any of matters specified in clause (2) of Article 73, and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution;

(ii) before both Houses if it does not contain provisions dealing with any of the matters referred to in sub-paragraph (i), and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution, and

(b) may be withdrawn at any time by the President.

(3) Without prejudice to the provision of clause (2), an Ordinance laid before the National Assembly shall be deemed to be a Bill introduced in National Assembly.” [p. 323, 324] A

A similar power is given to the Governor of a Province by Article 128 of the Constitution.

The Ordinance making power has a historical background. For the first time, the British Parliament, by section 26 of the East India Company Act, 1773, empowered the Governor-General and the Council to make Ordinances from time to time with the consequential power of repeal. The same position was India Act, 1915 (section 72) and the Government of India Act, 1935 (section 42). Similar provisions exist in the Constitutions of India (Article 123), Malaysia (section 150), Nepal (Article 57) and Philippines (Section 26).

By Article 69 of the 1956 Constitution, a power similar to that of Article 89 of 1973 Constitution was given to the President of Pakistan to promulgate an Ordinance. However, by clause (2) of Article 69 of the said Constitution, an Ordinance promulgated by the President was required to be laid before the National Assembly and would cease to operate at the expiration of six weeks from the next meeting of the Assembly, or upon a resolution by the Assembly disapproving it. Thus, under the 1956 Constitution, the effect of expire of a statute and not that of repeal was given toan Ordinance. It seems that Article 69 of the 1956 Constitution was enacted in the light of similar provision of Article 123 of the Constitution of India.

However, a departure was made in the 1962 Constitution by Article 29 whereunder in the case of non-approval or disapproval by the National Assembly, an Ordinance promulgated by the President was to be deemed to have been repealed on the expire of 180 days. The Interim Constitution of 1972 also empowered the President by Article 94 to make an Ordinance.
[P. 324, 325]B.

It would be clear that the legislative power of the President/Head of the State in an emergent situation has always been there albeit under certain conditions. The power to make an Ordinance under Article 89 of the Constitution is co-extensive e with the power of the Parliament to make the law. Clause (2) of Article 89 of the Constitution states that the Ordinance shall have the same force and effect as an Act of Parliament and shall be subject to like restrictions as the power to make laws. It means that in exercise of Ordinance making power, the President cannot overreach the Parliament to do what the Parliament cannot do in exercise of its legislative power. Not only that by clause (2) of Article 260 of the Constitution an Act of Parliament or a federal law shall include an Ordinance promulgated by the President. An Ordinance by the President or the Governor is on the same footing as that of an Act of Parliament or a Provincial Assembly, as the case may be. However, there are some inbuilt limitations on the exercise of the legislative power by the President as provided by Article 89 of the Constitution. This power is not exercisable when National Assembly. It shall stand repealed at the expiration of four months from its promulgation or upon the passing of the resolution by the National Assembly disapproving it.

The Constitution although provides for the life of an Ordinance but does not limit the number of times it may be promulgated. There are no other specific provisions inhibiting the exercise of Ordinance-making power of the President. Article 89 of the Constitution may be invoked by the President on his satisfaction that circumstances exist which render it necessary to take immediate action. An Ordinance has to be promulgated to bring forth and emergent legislation when the National Assembly is not in session or existence. Such a situation may arise from time to time. Article 52 of the Constitution specifically provides that 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 President is not only the head of the State and a representative of the unity of the republic, he is also an integral part of the Parliament. No bill passed by the Parliament can become law without the assent of the President.[p. 325]C.

Constitution of Pakistan(1973) Art. 89

Federation of Pakistan through Secretary, Ministry of Law and Justice Islamabad and 3 others (PLD 1993 Lahore 70) wherein it was laid down that the President was fully competent to re-enact an Ordinance even if subsequent Ordinance was word by word the same as the preceding Ordinance. The judgment by the Full Bench has since been affirmed by the Hon’ble Supreme Court in appeal in the case of Noor Muhammad and others v. Ghulam Mustafa and others (1999 SCMR 264). The judgments referred to by the learned counsel for the petitioners were noticed in the cases of Riaz Ahmad and Noor Muhammad (supra).[p 326]D.

In view of the recent pronouncements of the superior Courts, it is too late in the day for the learned counsel for the petitioners to raise objection as to the competence of the President to promulgate successive Ordinances on the same subject-matter. It was not denied at the bar that the Ordinances in question had been laid before the National Assembly and Ordinance in question had been laid before the National Assembly and eventually the Control of Narcotic Substances Act. 1997 was passed.[p.327]E.

The learned counsel for the petitioners admitted that in all these cases the succeeding Ordinance Ordinances were promulgated during the lifetime of the previous onces. In such a case, the provisions of section 6 of the General Clauses Act, 1897, will be attracted. Under the said provisions, where an act repeals any earlier enactment then unless a different intention appears the repeal shall not affect any right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed or affect any investigation, legal proceedings or remedy which may be instituted, continued and enforced as if the repealing Act has not been passed. Article 264 of the Constitution of the Islamic Republic of Pakistan is also in pari materia to the provisions of section 6 as aforesaid.[p.327]F.

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