Ordinance Making Power of President

Definition
Generally the supreme power to make laws for a country belongs to parliament. But
constitution of some developing countries provide for provision of legislation by
the head of the executive in some special situation.

History of the Ordinance Making Power

The real history of ordinance making power in the sub-continent traces bake to the
colonial constitution, The Government of India Act, 1395. This Act introduced in
India, for the first time representative legislatures at both the provinces and
center.

Firstly, Article 72 of the 9th Schedule states that,

The
Governor-General may, in cases of emergency, make and promulgate ordinance for the
peace and good government of British India and any part.

Secondly, Section 42 of the Government of India Act, 1935 states that,

If at any time when the Federal Legislature is not session the Governor-
General is satisfied that circumstances exist which render it necessary for him to
take immediate action, he may promulgate such ordinance as the circumstance appear
to him to require.

The pattern of the Ordinance law as provided for in Article 42 of the Government
of India Act, 1935 was retained in both the Indian and Pakistan Constitution.
Indian constitution 1949 gives power to President to promulgate Ordinance by
Article 123.Pakistan constitution 1956 gives power to President and Governor to
promulgate Ordinance by Article 69 & 102.Constitutinal of Bangladesh also
retained this colonial Provision.
Under Article 93(1) of the Constitutional Bangladesh the President may make
ordinance in following two situations----
1. Parliament not in session.
2. Parliament stands dissolved.
In those two situations the President can promulgate ordinance only when he is
satisfied that circumstance render exist which render immediate action necessary.

Legal status of an Ordinance

The Article 93 (1) states that an Ordinance shall, form its promulgation, have the
same force and effect as an Act of Parliament. Because the power to issue an
Ordinance is not an executive power of the President, it is legislative power
which is devised to meet urgent situations and necessary for peace and good
government in the country. There is an only difference between an Act and
Ordinance, which is duration.

Limitation of an Ordinance
1. What cannot lawfully be made under the Constitution by an Act cannot be done
by an ordinance.
2. An ordinance cannot alter or repeal any provision of the constitution.
3. An ordinance cannot continue in force any provision of an ordinance
previously made.
Ordinance becomes an Act of Parliament
1. Every ordinance made during the recess of parliament must be laid before
parliament at its meeting following the promulgation of it, if it is not replaced
earlier.
2. Ones the ordinance is placed in parliament, a corresponding Bill must be
passed in 30 days, otherwise it will cease to have any effete at the expiration of
30 days.
3. 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.

mahbubulkarim
Statesman_mahbu@yahoo.com