The New Nation - Internet Edition

Barrister Md. Abdul Halim

One of the most important politico-legal issues at the moment is the fate of 110 Ordinances issued by the out-going Caretaker Government. Generally the supreme law making power of the nation is reposed on the Parliament. However, Article 93 of the Constitution provides for law making by the President in some situations by way of promulgating ordinances. Under Article 93(1) of the Constitution the President may make ordinances in following two situations: (i) when the parliament is not in session; or (ii) when the parliament stands dissolved. Under these two situations the President can promulgate ordinance only when he is satisfied that circumstances exist which render immediate action necessary. On 27th October 2006 the 4 Party led Alliance government handed over power as it completed its five years rule. However, because of huge political unrest, partisan role of the then Chief Election Commissioner MA Aziz and the President, the military interference into politics led the President to go for declaration of state of emergency on 11th January 2007 with a fresh Caretaker Government headed by the present Chief Adviser Dr. Fakhruddin Ahmed. This Caretaker Government took necessary steps to give the Election Commission neutral and acceptable shape and finally almost uncertain and long awaited 9th parliamentary election was held under this government on 29th December, 2008 paving way for democracy. However, during this period of two years the caretaker government made as many as 117 ordinances covering the issues not only of election and day to day matters but of policies on different national aspects.

Legal status of an ordinance: As to the legal status of an ordinance article 93(1) says that an ordinance shall, from its promulgation, have the same force and effect as an Act of parliament. This is because the power to issue an ordinance is not an executive power of the president; it is his legislative power which is devised to meet urgent situations and necessary for peace and good government in the country. The only difference between an Act and Ordinance is with regard to the duration. Like an Act of parliament an ordinance may repeal parliamentary enactments or an earlier ordinance or may give retrospective effect to its provisions.

Conditions subsequent to an ordinance: Every ordinance made during the recess of parliament must be laid before parliament at its first meeting following the promulgation of it, if it is not repealed earlier.

Once the ordinance is placed in parliament, a corresponding Bill must be introduced within 30 days; otherwise it will cease to have any effect at the expiration of 30 days.

Before the expiration of 30 days parliament may pass a resolution disapproving the ordinance and if such a resolution is passed, the ordinance will cease to have any effect upon the passing of the resolution.

If a corresponding bill is introduced from ordinance into the first parliamentary session, the bill will proceed to all stages of a normal procedure of legislation. That means once bill is introduced it may not be passed in the same session and in such a case it will remain as an unresolved bill to be considered by the next session of the parliament. For instance, a bill via ordinance was introduced in the 7th session of the first parliament but remained unresolved and was later passed in the 8th session of the first parliament. Likewise, 3 ordinances were introduced as Bills in the second session of third parliament but they were not passed i.e. they remained as unresolved/ immatured Bills before the session ended. 2 of them were passed in the 3rd session of it.

How an ordinance becomes an Act of Parliament: All ordinances promulgated before the session starts must be, by operation of law i.e. under the authority of Article 93 of the Constitution, laid before parliament at its first meeting of the session. 'Lay before parliament' means to inform parliament i.e. to distribute the copies of ordinances to all members of parliament. This is the first stage (i.e. laying before parliament). After so laying the minister-in-charge (here the Minister of Law and Parliamentary Affairs) must give notice to the Secretary of Parliament of his intention to move for leave to introduce Bill relating to any or all of those ordinances. In the mean time the Government will prepare bills on the basis of those ordinances. On the basis of the notice the motion for leave to introduce the Bill or Bills shall be entered in the orders of the Day for a day meant for government business. When the item is called, the minister-in-charge shall move for leave to introduce the Bill or Bills. The leave being granted by the Speaker, the minister shall introduce the Bill. After this introduction the Bill shall follow the regular procedure of an ordinary Bill. Article 93(2) of the Constitution speaks for 'laying before parliament' and not passing the same within 30 days.

Comparative study of ordinances approved by different parliaments:

Auto-legality to ordinances: The 8th session of the First Parliament ended on 17th July, 1975. From this 17th July to 15th August, 1975 President Sheikh Mujib promulgated 9 ordinances. Later before the start of the 2nd Parliament President Mustaq promulgated 9 ordinances. President Sayem promulgated 123 and President Zia promulgated 127 ordinances. Of these 268 ordinances 159 (excluding 9 ordinances promulgated by Mujib before his death) were given auto-legality by the 5th Amendment to the Constitution of Bangladesh. These ordinances were not formally introduced as Bill in parliament and as a result, they were not transformed into Acts of Parliament; they exist till today as valid law in the name of ordinances so far as they are not repealed or otherwise amended by parliament or by any subsequent ordinance.

Martial Law was re-imposed on 24th March, 1982. Article 93 of the Constitution was revived under the Martial Law Proclamation and before the start of the 3rd Parliament President Ershad promulgated 307 ordinances. None of these ordinances was introduced in the 1st session of the 3rd Parliament as Bill and they could not become Acts of Parliament. But all of them were given auto-legality by the Constitution 7th Amendment Act and till now they exist as valid laws in the name of ordinances.

Fate of 120 ordinances: This will be a policy choice by the newly formed cabinet. If the cabinet decides to introduce them all as bills in the first session of parliament, then they will follow the normal process of law making. But there is no condition at all that all these bills are to be passed within the first session; some of them might be sent to any committee and in that case they would be passed in some later sessions following the reports of the committee. However, if some bills from ordinances are not passed within 30 days, there might appear some practical problems of legal vacuums in the administration of government. For example, the Caretaker Government has made some ordinances on local government like, Upzilla Parishad Ordinance, Gram Sarkar Ordinance and the election on local governmet is under way on 22nd of January. If ordinances on local government are not passed within 30 days as Acts, those ordinances will lapse after 30 days and it will be impossible for the Election Commission to conduct election.

(Barrister Md. Abdul Halim is a practising advocate in the Supreme Court.)