Prime Minister Imran Khan told a press delegation that his government was considering overcoming its lack of a majority in the Senate, and its consequent inability to pass legislation, by promulgating ordinances. He not only showed the limit of his government’s power, but also exposed one of the problems of the separation of powers: the government (in other words, the executive) often wants, and sometime needs, the power to legislate.
The separation of powers may well serve as an Enlightenment ideal, but actually it is not that easy to implement. It is all very well for a legislature to pass laws, but they must be implemented by the executive, or government. The instruments of the executive might need more than just the laws, but rules as well. That is why so many acts of the legislature include at the end an enabling clause which says the competent authority may make rules for the implementation of the law. Subordinate authorities (the officials of the bureaucracy) thus implement those rules on people, rather than the law itself. This is known therefore as delegated or subordinate legislation.
An important dimension of delegated legislation is that it is treated by the judiciary as of the same status as enacted legislation. A necessary corollary is that those who have to implement the law, the administration, the executive, actually make sure that their interpretation of the laws agrees with that of the courts. If there is no court decision holding the field, the administrators must second-guess the courts. After all, no one wants to go to all the trouble of making a decision only to have it thrown out by the courts (and if the courts disagree with the executive’s interpretation, they will have no choice but to rule that decisions are void).
Thus, it may be seen that the rule of law, of governmental decisions being uniform, is not just in the interest of the ruled, but of the rulers. It is only when someone among the rulers finds that the usual interpretation prevents him from getting some benefit that the temptation arises to bend the law in favour that the trouble begins. When there is the rule of law, all those involved in administration take a deep interest in the interpretation of the law, and it is the executive, not the judiciary, which is in the forefront of suggesting changes to the law.
Because of this, the executive power is entrusted to those who have the power to change the law; in short, those who have a majority in the legislature. A problem arises where the legislature is bicameral, like the UK’s. Is the majority necessary in either Houses, or does one in the Lower House suffice? To obtain executive power, it is sufficient to have a majority in the Lower House, but to legislate, it is necessary to have a majority in both Houses.
In a way, the PTI is like the Labour Party in 1923, which emerged as the largest party in the House of Commons, though it lacked an absolute majority, and thus formed the government. However, it lacked any members in the House of Lords, which meant that its government was unrepresented there. The solution used, which was instant elevation of party members, is not available to Pakistani governments. Unlike the House of Lords, the Pakistani Senate has a fixed membership, and its members are elected at a fixed time. The last Senate election took place earlier this year, before the general election, and the next will be in 2021, when the PTI will bring to bear its majority in the Punjab Assembly. Only if the PTI repeats its performance at the next general election, due by 2023, will it be able to obtain a Senate majority in that House’s 2024 election.
It is within this context that Imran spoke of bringing ordinances. Those are supposed to be pieces of emergency legislation, and are promulgated by the President (on the advice of the Prime Minister) when Parliament is not in session. Emergency legislation for World War II was rushed through British Parliament in 24 hours, with one House passing it in the morning, and the other by evening. If Parliament is in session, legislation can be made, but if it is not, then ordinances are to suffice.
Ordinances are actually similar to British orders-in-council, and are a carry-over from the Raj, when Governors had the power of legislating by promulgating ordinances. Both Orders-in-Council and ordinances are supposed to be legislated by the executive, bypassing the legislature, and also be passed for permanence by the legislatures. A practice had developed, of promulgating ordinances as a matter of routine, and then re-promulgating them a day or two before they expired, all the while making sure that the Assembly concerned was not in session. This practice was finally taken notice of by the Supreme Court, so any ordinance that the PTI government had promulgated could not be re-promulgated, but would need to be passed within the time it is in force. That would mean achieving a compromise with either the PPP or PML(N) or both, so as to cobble together a Senate majority.
Imran seems to have come up against a major function of the legislature, oversight of the executive. In this case, the legislature is provided a method of watching over the executive’s exercise of its legislative power. Another possibility is that Imran does not see any need for legislation, though he has not expressed the view that the country’s laws are good, and it is the executive which has not done its job. Even then, when someone says the system must be changed, it is odd indeed if he does not work for the revision of the laws, because what is a system if it is not a collection of laws?
An additional problem with ordinances is that they can be disapproved by one House even before their natural expiry. If the PTI was to use ordinances for its legislative programme, the Senate could pass disapproving resolutions.
It would be a frank admission for the most hardened conservative, that he had found a means of subverting the Constitution (which is how the Indian Supreme Court has characterised this practice), but for an avowed reformer to do so, can only be forgiven if one assumes a very low intellect.
It is also noticeable that Imran has not mentioned the joint session mechanism, which is invoked when the Houses disagree on any Act, even to the extent of one House passing amendments to a bill passed by the other. Though at the moment, the PTI may lack a majority there too (as might happen to any government with a thin majority in the Nation Assembly), that will be overcome in 2021, when the PTI may well not get a majority in the Senate, but will definitely gain one in the joint session.
Apart from the optics, the lack of a legislative component might make the PTI unable to implement its anti-corruption drive. While the PTI might present its lack of a Senate majority as the reason for any failure to do so, its opponents would be only human if they harped on this failure. So as to get laws passed with the help of those very parties whose leaders would be hit by them requires the sort of political acumen the PTI leadership has so far not shown.

The writer is a veteran journalist and founding member as well as executive editor of The Nation.

An additional problem with ordinances is that they can be disapproved by one House even before their natural expiry. If the PTI was to use ordinances for its legislative programme, the Senate could pass disapproving resolutions.