ISLAMABAD - The Islamabad High Court (IHC) Wednesday directed the Attorney General for Pakistan (AGP) to present arguments on the next hearing in different petitions challenging the promulgation of various ordinances including Elections (Second Amendment) Ordinance about electronic voting in the elections, Higher Education Commission (Second Amendment) Ordinance, 2021 and others.

A division bench of IHC comprising IHC Chief Justice Athar Minallah and Justice Aamer Farooq conducted hearing of petitions filed against the frequent use of the presidential ordinances during the almost three-year rule of the Pakistan Tehreek-e-Insaf (PTI). During the hearing, the petitioner’s counsel argued that the government promulgated all the ordinances in haste. He added that there is no example of issuing ordinances in such haste.  

The IHC Chief Justice asked that when has the President summoned the Parliament’s session and also directed to provide the details about date of issuance of these ordinances.  Then, the court also directed the AGP to present his arguments in this regard on the next hearing and deferred the proceedings till July 27. In this matter, the petitioners including Mosharraf Ali Zaidi, Prof. Dr. Pervez Hoodbhoy, Prof. Dr. M. Asif Khan, Syed Ahmed Masood, Prof. Dr. A. H. Nayyar, Prof. Dr. Naazish Attaullah, Prof. Ms. Salima Hashm and others moved the court through Faisal Siddiqui Advocate against the Higher Education Commission (Amendment) Ordinance, 2021 and Higher Education Commission (Second Amendment) Ordinance, 2021 and the removal of Tariq Banuri as the Chairman of the commission.

Previously, the IHC single bench had refrain the government from appointing a new chairman and also issued notices to secretaries of the Cabinet Division, law, education, HEC and the former HEC chairman and directed them to submit their responses in this matter.

They stated in the petition that to the shock and horror of the petitioners, the Respondent No.3 (Federal Ministry of Education and Professional Training) clearly acting in a malafide manner on the dictates of the present federal government suggested amendments in the Ordinance, 2002, on the ridiculous pretext that “in [the] post Covid era, the paradigm of Higher Education System and its delivery mode has undergone tremendous changes,” and furthermore that the process and criteria of tenured appointments need to be reviewed in order to “keep pace with the changing eco-system of 21st century skills.”

Therefore, he prayed to the court to permanently restrain the Respondents from again removing Dr. Tariq Banuri from his tenure post of four years as Chairperson of the HEC during his tenure of four years ending on 29-5-2022 (plus the entire time period during which he was illegally removed) and also permanently restrain the Respondents from appointing any other person as Chairperson of the HEC during the tenure of Banuri ending on 29-5-2022 (plus the entire time period during which he was illegally removed)

In another petition, Barrister Mohsin Nawaz Ranjha Member of the National Assembly (MNA) belonging to Pakistan Muslim League-Nawaz (PML-N) challenged the newly promulgated Elections (Second Amendment) Ordinance about electronic voting in the elections.  In the petition, Ranjha stated that President of Pakistan has promulgated Elections (Second Amendment) Ordinance, 2021 and even though this Ordinance is only a one-pager, it makes important legislative overhauls of the electoral procedure regime in Pakistan. 

The petitioner told the court that after the imposition of the Ordinance, Section 103 of the Elections Act, 2017 has been substituted with the following words: “103. Electronic voting. The Commission shall procure electronic voting machines (EVMs), for casting of votes in general elections.” 

He contended that in effect the Ordinance has made EVMs compulsory instead of being optional and has eliminated the role of Parliament and piloting in this decision. 

Similarly, Ranjha also filed a petition challenging promulgation of eight ordinances by the Pakistan Tehreek-e-Insaf (PTI) government and requested the court to declare the ordinances illegal, unconstitutional being ultra vires of Article 89 of the Constitution. 

The President Dr Arif Alvi promulgated on 30th October, 2019, eight ordinances including Letter of Administration and Succession Certificates Ordinance, 2019; Enforcement of Women’s Property Rights Ordinance, 2019; Benami Transactions (Prohibition) (Amendment) Ordinance, 2019; Superior Courts (Court Dress and Mode of Address) Order (Repeal) Ordinance, 2019; National Accountability (Amendment) Ordinance, 2019; Legal Aid and Justice Authority Ordinance, 2019; Whistle-Blowers Act. President on 27th December, 2019, promulgated another Ordinance i.e. NAB (Second Amendment) Ordinance, 2019.The petitioner assailed the ordinances saying the impugned ordinances are ultra vires of Article 89 of the Constitution. The ordinance-making power is an emergency provision and is not meant for routine legislation. 

The PML-N leader maintained that the constitution places strict conditions on the exercise of ordinance-making power. It is to be exercised only when doing so is necessary for responding to an emergency situation (such as war, famine, epidemic or rebellion) which arises after the prorogation of one session of Parliament and where waiting for the next session would cause irreparable loss to the people of Pakistan. 

He further said that the data suggests that, unfortunately, the ordinance-making power has been constantly abused by successive governments. It appears that more than 2,500 ordinances have been promulgated by Presidents since 1947. This practice, which amounts to a transgression by the executive into the legislature’s domain, is continuing even today. 

He continued, “[i]t is emphatically the province and duty of the judicial department to say what the law is”, as was famously held in Marbury v. Madison (1803) and endorsed in countless other constitutional cases since then. The petitioner only seeks from this Court a clarification and declaration of the law for the sake of future and nothing further.