Assignment On

Ordinance making power of President

Course: Constitutional Law of Bangladesh

Definition
Generally the supreme power to make laws for a country
belongs to the 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

In the sub-continent traces back 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 case of emergency, make
and promulgate ordinance for the peace and goods
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 circumstances 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 and 102.
Constitution of Bangladesh also retained this colonial
provision.
Under Article 93 of the Constitution of Bangladesh, the
President may make Ordinance in following two
circumstances:
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 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”.
Limitations 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. Once the Ordinance is placed in the Parliament, a
corresponding bill must be passed in 30 days,
otherwise it will cease to have any effete at the
expiration of 30 days.
What is an ordinance and why makes it?
An ordinance made to take special measures for the
purpose of maintaining the security and interests of the
state and population and preserving public order and
keeping the economic life unimpaired and securing the
delivery of supplies and services essential to the life of
the community Whereas, in exercise of the powers
conferred to him by Article 93 of the constitution, the
President has proclaimed a state of emergency and
whereas it is expedient to take special measures for the
purpose of maintaining the security and interests of the
state and population and preserving public order and
keeping the economic life unimpaired and securing the
supply of goods and services essential to the life of the
community ,
And whereas Parliament is not session and the President
is satisfied that circumstances exist which render
immediate action necessary;
Now, therefore, in exercise of the powers conferred on
him by Article 93 of the constitution, the president is
pleased to make and promulgate the following
Ordinance:
1. Short title and term; This Ordinance may be called
the Emergency Power Ordinance, 1987.
2. It shall have effect as long as the proclamation of the
state of emergency by the President on the 27 th
November of 1987 is in force.
3. Pre-eminence of the Ordinance; Notwithstanding
anything to the contrary contained in any other law
or contract or document for the time being in force,
the provisions of this Ordinance or rules made
thereunder and the orders issued under the rules
shall have effect.
4. Power to make rules; The Government may, by
notification in the official Gazette, make such rules
 as it thinks expedient for the purpose of maintaining
the security and interests of the state and
population.

Demerits and Effect of Ordinance Making Over

Constitutionalism in Bangladesh:
As mentioned earlier the philosophy underlying the
Ordinance making power is that to meet an unforeseen
and urgent situation which may suddenly arise during the
recess of parliament the executive should be armed with
legislative measures. But this discretionary power has a
danger because it carries with it the risk of abuse of
power for political end that has been the fact of
Ordinance making in Bangladesh.
Firstly, during the recess of parliament the president may
promulgate Ordinance if he is satisfied that circumstance
exist which render immediate action necessary. The
Ordinance making power, therefore, depends absolutely
upon the subjective satisfaction of the President. It is not
an objective satisfaction in the sense that whether or not
the President is satisfied that circumstance exist
rendering immediate action necessary is a matter which
is not a justifiable one and the courts cannot be called
upon to determine its existence by the application of any
objective test. It is to be noted here that the satisfaction
here is not the personal satisfaction of the President. In
reality it is the satisfaction of the cabinet on whose
advice the President exercises this power.
Reference
1. Indian Constitution, Article -123
2. Bangladesh Constitution,Article-93
3. Brohi,A.K, Fundamental Law of Pakistan,lbid.p.283
4. The Daily Star, April 9,
5. Law opinion