Law making procedure is a continuous process to face the demand of the society. There is a specialized organ of the state, called the legislative to do this job. The modern trend is that, this body is usually composed of persons who are the representatives of the people. And these people’s representative can not and must not do this job through the whole year. The society can not standstill when they are not in session. So the executive has been vested with the power of making laws.Though the ordinance making power of the executive is the legislative will of the head of the state, it is not intended to be used by the executive frequently. Rather this provision has been made to meet the emergency situation by the executive when the Parliament is not in session.The word ‘emergency’ has been forgotten by the various governments who were in power after the independence. And this ordinance making power has been used by the executive frequently which may cause a permanent fracture in the history of our democracy. This system of enacting law by the executive has not been exercised by the two large democratic countries, i.e. United States of America and United Kingdom. This system was introduced in this Sub-Continent by the British colonial rulers to fulfil their economic, colonial and military interests. This ‘emergency’ provision must not be used as a regular power. This procedure is needed to keep pace with the society and changing demands thereof. And the power of making laws should not be given to an institution which does not or can not fulfil its duty when it is urgently needed. The history of Bangladesh regarding executive made laws is not that much well burnished. We failed to establish a well founded Parliamentary Democracy as well as a powerful Legislative organ.
The object of this paper is to examine the definition of ordinance. And this paper will also emphasize on the history of ordinance making power in Bangladesh. After analysing the number of ordinances made by the different governments it will be shown that this power has been used almost as a regular power of the executive. But recently this practice is being declined by the last three democratic governments.
The name of the Ordinances, which were published in Bangla, are given here in the Italic form. And the main object of this paper is to show mala fide intention of the government by promulgating ordinances a few days before or after the session of the parliament. Even in some cases ordinances were promulgated a few hours after the session of parliament ends. These ordinances, which in my opinion were, done or promulgated with the intention of abusing the power, entrusted to the executive, are given in Bold-Italic form. The ordinances made within 7days before or after the session of parliament are, in my opinion made with mala fide intention.
Introduction:
There are three organs of a state. Separation of power is the Constitutional doctrine of checks and balance upon three branches of government viz, Executive, Legislative, and Judiciary, by which individual liberty and welfare is secured. “All power corrupts” said Lord Acton, and “Absolute power corrupts absolutely.” The only way to ensure that power will not be abused is to limit it that is to make power a check upon power.
The function of the Legislative is to make laws for the country. The Judiciary is to interpret law, settle legal disputes, enforce rights of the citizens and impose penalty to the offenders, and the Executive is to determine the policies of the government and supervise the execution of the policies and enforcement of the laws.
So, from the analysis of the functions of different organs, it is clear that the law making is purely a function of the Legislative body. But the Executive can make Laws in some countries in certain circumstances. When a law has been made by the Parliament it is called an Act of parliament. But in case of a law made by the Executive it is called an Ordinance.
Definition of Ordinance:
As we have seen above, a law made by the executive authority of a State is called an ordinance. But this provision of making laws by the executive is not so frequent among the different legal systems.
According to Black's Law Dictionary, “Ordinance is an authoritative law or decree; especially a municipal regulation. Municipal governments can pass ordinances on matters that the state government allows to be regulated at the local level.”
Judith O'Gallagher said, “An ordinance.... may be purely administrative in nature, establishing offices, prescribing duties, or setting salaries; it may have to do with the routine and procedure of the governing body.”1
According to A Dictionary of Law, Ordinance is “Decree promulgated by Parliament without the consent of a constituent element, or a declaration by the sovereign made without Parliament’s consent”2
According to Osborn’s Law Dictionary, Ordinance may be called
“1. Formerly an Act of Parliament which lacked the consent of one of the three elements, Crown, Lords and Commons.
2. A declaration of the Crown, lacking the authority of Parliament.”3
According to Banglapedia, When Parliament stands dissolved or is not in session the President may make law by promulgating ordinances and such ordinances have the same
force and validity as an Act of Parliament.
Shawkat Mahmud said,
“1. The word ordinance has a recognized meaning in legal terminology mainly the expression of the legislative will of the head of the state when the National Assembly is not in session and is deemed to be an Act of Parliament.”4
Whereas no law enacted by Parliament can be set aside on the ground that it was passed mala fide, it is well settled that any action taken by the Union or the State Executive is open to challenge on the ground of mala fides. In the case of K. Roy Vs. Union (Popularly known as The National Security Case)5, it was held that, legislative powers of the executive had been assimilated to the power of the legislature.
The Necessity:
The main aim of making ordinances can easily be found in its definitions. It is to meet the emergency. But not all emergencies, it can only be promulgated and effective when the parliament or the law making body is not in session and a real urgent matter is to be considered by the executive. Another point is that the whole procedure should be done in the prescribed manner and all of the wants should be fulfilled.
The provision of making laws by the executive was first introduced in this Sub-continent by the Government of India Act, 1919 and Government of India Act, 1935. The Government of India Act, 1935 enabled the Governor General to promulgate ordinances.6
By the same Act7 it conferred on the Governors to promulgate ordinances in case of emergency.8 The British did it deliberately to safe guard their colonial interests. It is for the Act was called by Winston Churchill,
“A gigantic quilt of jumbled crochet work, a monstrous monument of
shame built by pigmies.9”
Ordinance in different Countries:
The modern democratic countries are not police states like the previous one. Rather these countries are now-a-days called welfare states. The history of ordinance making power lies in the system of Autocracies. The monarchs in different countries exercised the absolute power over everything within their respective boundaries including promulgating laws as their wishes. The first obstacle created on their way of exercising absolute power was by the famous Magna Carta of 1215. This charter challenged the untrammelled powers of the King of England. Later the absolute power of the King was
abolished through the passage of time and by various statutes made by Parliament. At
present the King of England has no power of making laws but can reject one, though a convention created for not to use it. So now the British monarchy does not have, or in truth, does not exercise this power. The same principle applies in the case of the United States of America. The President of U.S.A. has no power of making laws.
FRANCH
If we consider the case of the French Republic, Article 38 of its Constitution provides for provisions concerning making of laws by the executive. According to this article, Ordinances shall be enacted in the meeting of the Council of Ministers after consultation with the Council d’etat.
ITALY
Article 76 of The Constitution of Italy, adopted on 22nd December, 1947says, “The exercise of legislative functions may not be delegated by the government save by the laying down of principles and criteria and only for a limited period of time and for definite justice.”
NORWAY
Norway Constitution, which was adopted on 17th May, 1814, by its Article 17, make provision for the King to exercise the power of making laws. According to this article, ordinances may be made by the King, relating to commerce, customs, tariffs, all economic sectors and the police. But these must not be in conflict with a law made by the parliament, and shall remain in force till the next session of Parliament.
ARGENTINA
The Constitution of Argentina, adopted in 1853, in its article 99, provides for executive made laws, According to this article 99 clause 3 only when due to exceptional circumstances the ordinary procedure foreseen by this constitution for the enactment of laws are impossible to be followed and when rules are not referrer to criminal issues, taxation, electoral matters or the system of the political parties, the President shall issue decrees on grounds of necessity and urgency. But this decree must be, within a term of ten days, by the chief of ministerial cabinet, who shall personally submit the decision to the consideration of the Joint Standing Committee of Congress.
NAEPAL
Constitution of the Kingdom of Nepal, adopted on 9th November,1990, by its clause 1 of article 72, states that, when the Parliament shall not be in session and when the King shall be satisfied that circumstances exist to take immediate action; he may promulgate any ordinance which must not prejudice the provisions of the constitution.
But it is said in sub-clause (b) of clause 2 in Article 72 that, this ordinance may be repealed at any time by the King.
PAKISTAN
Article 89 of the Constitution of Federation of Pakistan, 1993 gives the President the power to make or promulgate ordinances. According to sub-clause (1) of this article, when the National Assembly is not in session, the President may promulgate ordinances after satisfying himself that circumstances exist which render it necessary to take immediate action. The ordinance shall stand repealed after the expiry of four months if it was not withdrawn by the President or introduced in the Parliament as a bill. Article 128 conferred the power of promulgating ordinances in the province by the subject to the same limitation and conditions. But the time limit was 3 months which in the case of President was 4 months.
INDIA
The largest Constitution is the Constitution of India. It says in its Article 123 about the power of President to promulgate ordinances during recess of Parliament. According to this article, when both of the Houses are not in session and the President is satisfied that immediate action is necessary he can promulgate ordinances. But all ordinances must be laid before Parliament within 6weeks from reassembly of Parliament. Otherwise it shall cease to operate and an ordinance may, at any time, be withdrawn by the President. Article 213 provides for the same power to the governors to promulgate ordinances.
Situation in Bangladesh:
Article 93 of the Constitution of Peoples Republic of Bangladesh made the provision of making laws through the means of executive. Or in other words, the President has been vested with the power of promulgating ordinances in case of necessity. This article alone constitutes a separate chapter, Chapter III in Part V. This part, with a title called “THE LEGISLATURE” provides for the body to make laws, with the procedures to be followed. Though it is usually said that the President can promulgate ordinance under article 93, to be more specific, the Head of the State can make ordinance under clause (1) of this article. This clause says that, the President may, if he is satisfied, which satisfaction is of Subjective in nature, that, circumstances exist which render immediate action necessary; he may make or promulgate ordinances. He must not exercise this power when the parliament is in session. That means when the Parliament stands dissolved or is not in session. An ordinance made or promulgated under this article has the same effect as an Act made by the Parliament.
The President may make ordinances on any matter, subject to some limitations, which are given in the proviso of this clause. Those conditions are given below:
· Any law which could not lawfully be made under the constitution by an Act of Parliament.
· An Ordinance can not be made for altering or repealing any provision of the constitution.
· An Ordinance can not provide for provision for continuing in force any provision of an Ordinance previously made.
An Ordinance promulgated by the President must be laid before the parliament at its first meeting. Or unless it is earlier repealed, cease to have effect at the expiration of thirty days after it is so laid for. 10
When the parliament stands dissolved the president may by ordinance authorising expenditure from the Consolidated Fund, Which shall have the same effect as a law made by parliament.11An ordinance authorising expenditure from consolidated fund must be laid before parliament on its next meeting.12
So it is clear that our constitution provides for provision for promulgating ordinance in case of necessity. But what is the reality? Was it used as an emergency provision or it was used as a weapon to make the legislative ineffective and thus creating an undemocratic situation? If we analyse the different ordinances made under various regimes, we may find the answer.
First Parliament:
Lifetime: 7 April, 1973 – 17 July, 1975
| Session | Total Law Passed by Parliament | Number of bills Passed which have been initiated from Ordinances | Total Ordinances promulgated between two sessions |
| 1st (7th April,1073 to 19th April,1973) | 0 | 0 | 0 |
| 2nd (2nd June,1973 to 17th July,1973) | 19 | 10 | 10 |
| 3rd (15th September,1973 to 26th September,1973) | 15 | 8 | 8 |
| 4th (15th January,1974 to 5th February,1974) | 31 | 15 | 16 |
| 5th (3rd June,1974 to 22nd July,1974) | 32 | 9 | 9 |
| 6th (19th November,1974 to 23rd November,1974) | 13 | 12 | 14 |
| 7th (20th January,1975 to 28th January,1975) | 2 | 1 | 3 |
| 8th (23rd June,1975 to 17th July,1975) | 42 | 34+1*=35 | 34 |
| Total | 154 | 90 | 94 |
*This Bill was introduced in the 7th Session but remained unresolved and was later passed in the 8th session.
The ordinances promulgated after 1st Session with their date of promulgation:
1. The Citizenship (Temporary provision) (Amendment) Ordinance, 23rd May, 1973.
The ordinances promulgated after 2nd Session with their date of promulgation:
1. Rajshahi University Ordinance, 28th July,1973
2. Jute Corporation Ordinance, 20th August,1973
3. B. D. R committee of Management (Temporary provision) (Amendment) Ordinance, 21st August,1973
4. Cadet College (Amendment) Ordinance, 22nd August,1973
5. B. D. R. (Amendment) Ordinance, 22nd August,1973
6. Printing of Process and Publication (Declaration Registration) Ordinance, 28th August.
7. Fisheries Development Corporation Ordinance, 28th August,1973
8. Bangladesh Cottage Industries Corporation Ordinance, 3rd September,1973
The ordinances promulgated after 3rd Session with their date of promulgation:
1. Anti –Corruption (Amendment) Ordinance, 17th October 19763.
2. Special Police Establishment (Repeal) Ordinance, 17th October,1973
3. Jatiya Rakki Bahini Ordinance, 18th October, 1973.
4. Primary School (Taking Over) Ordinance, 16th October, 1973.
5. State Owned Manufacturing Workers (Terms and Conditions of Service) Ordinance, 5th November, 1973.
6. Jute Research Institute Ordinance, 9th November,1973
7. Transfer of Railways Special (Repeal) Ordinance, 16th November, 1973.
8. Public Servants (Retirement) Ordinance, 23rd November, 1973.
9. Bangladesh Red Cross Societies (Amendment) Ordinance, 3rd December, 1973.
10. Pilotage (Amendment) Ordinance, 10th December, 1973.
11. Public Servants (Retirement) (Amendment) Ordinance, 12th December, 1973.
12. Comptroller and Auditor General (Additional functional) 14th December, 1973.
13. T. C. B (Amendment) Ordinance, 22nd December, 1973
14. Bangladesh Schedule Offences (Special Transfer) (Amendment) Ordinance, 29th December, 1973.
15. The Bangladesh Industries Enterprises (Nationalisation) (Amendment) Ordinance, 1st January, 1974.
The ordinances promulgated after 4th Session with their date of promulgation:
1. The Trade Marks (Invalidation & Summary Registration) (Amendment) Ordinance, 13th March, 1974.
1. The Enemy Property (Continuance of Emergency Provision) (Repeal) Ordinance, 23rd March, 1974.
2. The Vested & Non-resident Property (Amendment) Ordinance, 22nd March,1974.
3. Bangladesh (Restoration of Evacuation Property) (Amendment) Ordinance, 23rd March, 1974.
4. Central Excises & Salt (Amendment) Ordinance, 9th April, 1974.
5. Central Excises & Salt (Amendment) Ordinance, 13th April, 1974.
6. Co-operative Societies (Amendment) Ordinance, 22nd April, 1974.
7. Bangabondhu Award Fund (Amendment) Ordinance, 3rd May, 1974.
The ordinances promulgated after 5th Session with their date of promulgation:
1. Public Servants (Retirement) (Amendment) Ordinance, 10th August, 1974.
2. Printing Presses & Publications (Declaration & Registration) (Amendment) Ordinance, 14th August, 1974.
3. Exit From Bangladesh (Restriction) Ordinance, 14th August, 1974.
4. Record of Jute Growers (Border areas) Ordinance, 21st August, 1974.
5. Bangladesh Industrial Enterprises (Nationalisation) (Second Amendment), 22nd August, 1974.
6. Petroleum Ordinance, 22nd Ordinance1974.
7. Oil & Gas Development Corporation (Repeal) Ordinance, 22nd August, 1974.
8. Dacca Metropolitan Development Authority Ordinance, 29th August, 1974.
9. Pharmacy (Amendment) Ordinance, 23rd August, 1974.
10. Members of the P. S. C. (Terms & Conditions of Service) (Amendment) Ordinance, 21st September, 1974.
11. Water Pollution Control (Amendment) Ordinance, 9th October, 1974.
12. Exit from Bangladesh (Restriction) (Repeal) Ordinance, 22nd August, 1974.
13. Stamp Duties (Additional Modes of Payment) Ordinance, 4th November, 1974.
14. Special Powers (Second Amendment) Ordinance, 9th November, 1974.
The ordinances promulgated after 6th Session with their date of promulgation:
1. Electricity Duty (Amendment) Ordinance, 2nd December, 1974.
2. Services (Reorganization & Conditions) Ordinance, 10th December, 1974.
3. Emergency Powers Ordinance, 28th December, 1974.
The ordinances promulgated after 7th Session with their date of promulgation:
1. The Islami Development Bank Ordinance, 29th January, 1975.
2. The Bangladesh House Building Finance Corporation (Amendment) Ordinance, 29th January, 1975.
3. The Bangladesh Legal Practitioner & Bar Council (Amendment) Ordinance, 1st February, 1975.
4. The Bangladesh Krishi Bank (Amendment) Ordinance, 4th February, 1975.
5. The Blind Relief (Donation of Eye) Ordinance, 8th February, 1975.
6. The Bangladesh Bank (Amendment) Ordinance, 8th February, 1975.
7. The Vice-President’s (Remuneration & Privileges) Ordinance, 14th February, 1975.
8. The Prime Minister’s (Remuneration & Privileges) Ordinance, 14th February, 1975.
9. The Jatya Rakki Bahini (Amendment) Ordinance, 17th February, 1975.
10. The President’s (Remuneration & Privileges) Ordinance, 19th February,1975.
11. The Nationalised Bank’s (Transfer of Business) Ordinance, 269th February, 1975.
12. The Minister’s, Ministers of State& Deputy Ministers (Remuneration & Privileges) (Amendment) Ordinance, 28th February, 1975.
13. The Bangladesh Laws (Amendment) Ordinance, 10th March, 1975.
14. The ESSO Undertaking Acquisition Ordinance, 14th March, 1975.
15. The Record of Jute Growers (Border Areas) (Amendment) Ordinance, 21st, March, 1975.
16. Bangladesh (Restoration of Evacuee Property) (Effect of Expiry) Ordinance, 22nd March, 1975.
17. The Islamic Foundation Ordinance, 22nd March, 1975.
18. The Comptroller & Auditor General (Additional Function) (Amendment) Ordinance, 4th March, 1975.
19. The Bangladesh Inland Water Transport Corporation (Amendment) Ordinance, 7th April, 1975.
20. The Bangladesh Jute Corporation (Amendment) Ordinance, 7th April, 1975.
21. The Finance (Amendment) Ordinance, 5th April, 1975.
22. The Services (Reorganization & Conditions) Ordinance, 8th April, 1975.
23. The Railways (Amendment) Ordinance, 11th April, 1975.
24. The Import & Export (Control) (Amendment) Ordinance, 16th April, 1975.
25. The Hundred taka Demonetised Notes (Mode of Payment and Recovery of Taxes) Ordinance, 13th May, 1975.
26. The Bangladesh Nationalised & Private Organizations (Regulation of Salaries of Employees) (Amendment) Ordinance, 13th May, 1975.
27. The Bangladesh Small Cottage Industries Corporation (Amendment) Ordinance, 13th May, 1975.
28. The Finance (Amendment) Ordinance, 13th May, 1975.
29. The Bangladesh Local Government (Union Parishad & Pauroshava ) (Amendment) Ordinance, 21st May, 1975.
30. The Finance (Second Amendment) Ordinance, 30th May, 1975.
31. The Bangladesh Government & Semi-Autonomous Organizations (Regulation of Salary of Employees) (Amendment) Ordinance, 3rd June, 1975.
32. The Bangladesh Nationalised & Private Organizations (Regulation of Salary of Employees) (Amendment) Ordinance, 3rd June, 1975.
33. The Newspapers (Annulment of Declaration) Ordinance, 13th June. 1975.
34. The Government Owned Newspapers (Management) Ordinance, 13th June. 1975.
35. The Bangladesh Industrial Enterprises (Nationalisation) (Amendment) Ordinance, 22nd June, 1975.
Second Parliament:
2 April, 1979 – 2 March, 1982
| Session | Total Law Passed by Parliament | Number of bills Passed which have been initiated from Ordinances | Total Ordinances promulgated between two sessions |
| 1st (2nd April, 1979 to 7th April, 1979) | 1 | 0 | 268* |
| 2nd (21st May, 1979 to 30th June, 1979) | 5 | 0 | 0 |
| 3rd (9th February,1980 to 4th April, 1980) | 16 | 5 | 6 |
| 4th (22nd May, 1980 to 26th July, 1980) | 15 | 3 | 4 |
| 5th (28th November,1980 to 31st December,1980) | 14 | 4 | 4 |
| 6th (10th April,1981 to 2nd May,1981) | 4 | 3 | 4 |
| 7th (21st May,1981 to 10th July,1981) | 10 | 0 | 0 |
| 8th | 0 | 0 | 9 |
| Total | 65 | 15 | 295 |
*The 8th session of the First Parliament ended on 17th July, 1975. From this 17th July to 15th August, 1975 Mujib Promulgated 9 ordinances. Later before the start of the 2nd Parliament Mustaq promulgated 9. Sayem promulgated 123 and Zia promulgated 127 ordinances. Of these 159 (excluding 9 ordinances promulgated by Mujib before his death) were given auto-legality by the 5th Amendment. These ordinances 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.
Third Parliament:
10 July, 1986 – 13 July, 1987
| Session | Total Law Passed by Parliament | Number of bills Passed which have been initiated from Ordinances | Total Ordinances promulgated between two sessions |
| 1st (10th July, 1986 to 22nd July, 1986) | 0 | 0 | 307* |
| 2nd (10th November,1986) | 1 | 0 | 3 |
| 3rd (24th January,1987 to 25th March,1987) | 19 | 6+2**=8 | 6 |
| 4th (11th June,1987 to 13th July,1987) | 19 | 6 | 7 |
| Total | 39 | 14 | 323 |
*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 Ershad promulgated 307 ordinances. None of these ordinances was introduced on 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 7th Amendment Act and till now they exist as valid laws in the name of ordinances so far as they are not repealed or otherwise amended by parliament or by any subsequent ordinance.
**3 ordinances were introduced as Bills in the 2nd session but they were not passed i.e. they remained as unresolved Bills before the session ended. 2 of them were passed in the 3rd session.
The ordinances promulgated after 1st Session with their date of promulgation:
1. The Prime Ministers (Remuneration and Privileges) (Amendment) Ordinance, 20th August, 1986.
2. The Shahjalal University of Science and Technology Ordinance, 25th August, 1986.
3. The Presidential Election (Amendment) Ordinance, 10th September, 1986.
The ordinances promulgated after 2nd Session with their date of promulgation:
1. The Bangladesh Shilpa Bank (Amendment) Ordinance, 9th December, 1986.
2. The Bangladesh Shilpa Rin Sangstha (Amendment) Ordinance, 9th December, 1986.
3. The Building Construction (Amendment) Ordinance, 10th December,1986
4. The Dhaka Municipal Corporation (Amendment) Ordinance, 12th January,1987.
5. The Special Powers (Amendment) Ordinance, 18th January,1987
6. The Criminal Law (Amendment) Ordinance, 18th January.
The ordinances promulgated after 3rd Session with their date of promulgation:
1. The Town Improvement (Amendment) Ordinance, 29th April,1987
2. The Explosives (Amendment) Ordinance, 5th May,1987
3. Jatiya Tadanta o Somonnoy Ssongstha (Oddayadesh), 27th May,197
4. The Local government (Upazila Parishad and Upazila Administration) RE-organization (Amendment) Ordinance, 3rd June, 1987.
Forth Parliament:
25 April, 1988 – 25August, 1990
| Session | Total Law Passed by Parliament | Number of bills Passed which have been initiated from Ordinances | Total Ordinances promulgated between two sessions |
| 1st (25th April, 1988 to 11th July,1988) | 38 | 33 | 34 |
| 2nd (16th October, 1988 to 19th October, 1988) | 7 | 7 | 7 |
| 3rd (1st February, 1989 to 2nd March,1989) | 21 | 9 | 9 |
| 4th (22nd May, 1989 to 10th July,1989) | 17 | 4 | 4 |
| 5th (4th January,1990 to 8th February, 1990) | 29 | 26 | 26 |
| 6th (3rd June, 1990 to 1st August,1990) | 30 | 10 | 12 |
| 7th () | 0 | 0 | 0 |
| Total | 142 | 89 | 92 |
Fifth Parliament:
5 April, 1991 – 18 November, 1995
| Session | Total Law Passed by Parliament | Number of bills Passed which have been initiated from Ordinances | Total Ordinances promulgated between two sessions |
| 1st (5th April,1991 to 15th May,1991) | 18 | 18 | 44 |
| 2nd (11th June,1991 to 14th August,1991) | 10 | 1 | 1 |
| 3rd (11th October,1991 to 5th November,1991) | 4 | 2 | 10 |
| 4th (4th January,1992 to 18th February,1992) | 18 | 10+5=15 | 10 |
| 5th (12th April,1992 to 19th April,1992) | 0 | 0 | 0 |
| 6th (18th June,1992 to 13th August,1992) | 18 | 4 | 4 |
| 7th (11th October,1992 to 6th November,1992) | 18 | 4 | 4 |
| 8th (3rd January,1993 11th March,1993) | 12 | 4 | 4 |
| 9th (9th May,1993 to 13th May,1993) | 0 | 0 | 4 |
| 10th (6th June,1993 to 15th July,1993) | 9 | 3 | 0 |
| 11th (12th September,1993 to 27th September,1993) | 6 | 4 | 4 |
| 12th (21st November,1993 to 8th December,1993) | 7 | 4 | 4 |
| 13th (5th February,1994 to 7th March,1994) | 2 | 2 | 3 |
| 14th (4th May,1994 to 12th May,1994) | 6 | 1 | 1 |
| 15th (6th June,1994 to 11th July,1994) | 7 | 0 | 0 |
| 16th (30th August,1994 to 14th September,1994) | 4 | 0 | 0 |
| 17th (12th November,1994 to 8th December,1994) | 7 | 1 | 1 |
| 18th (23rd January,1995 to 23rd February,1995) | 9 | 3 | 4 |
| 19th (24th April,1995 to 27th April,1995) | 1 | 1 | 2 |
| 20th (15th June,1995 to 11th July,1995) | 8 | 1 | 2 |
| 21st (6th September,1995 to 26th September,1995) | 8 | 2 | 0 |
| 22nd (15th November,1995 to 18th November,1995) | 1 | 0 | 0 |
| Total | 173 | 70 | 102 |
The ordinances promulgated after 1st Session with their date of promulgation:
1. Mullo Songjojon Kor Ooddayash,31st May,1991
The ordinances promulgated after 2nd Session with their date of promulgation:
1. The Comptroller and Auditor General (Remuneration and privileges)(Amendment) Ordinance, 27th August,1991
2. The President’s (Remuneration and privileges) (Amendment) Ordinance, 27th September, 1991.
3. The Prime Minster’s (Remuneration and privileges) (Amendment) Ordinance, 27th September, 1991.
4. The Speaker and Deputy Speaker (Remuneration and privileges) (Amendment) Ordinance, 27th September, 1991.
5. The Ministers of State and Deputy ministers (Remuneration and privileges) (Amendment) Ordinance, 27th September, 1991.
6. The Supreme court Judges (Remuneration and privileges)(Amendment) Ordinance, 27th September, 1991
7. Rastropoti Nirbachon (Songshodhon) Oddyadesh, 28th September, 1991.
8. The Members of the Bangladesh Public Service Commission (Terms & Conditions & Services) (Amendment) Ordinance, 28th September,1991
9. The Comptroller and Auditor General (Remuneration and privileges) (Second Amendment) Ordinance, 28th September,1991
10. Rastropoti Nirbachon ( Ditio Songshodhon) Oddyadesh, 4th October,1991.
The ordinances promulgated after 3rd Session with their date of promulgation:
1. The Local Government (Upazila & Upazila Administration) (Repeal) Ordinance, 23rd November,1991
2. The Pourashava (Amendment) Ordinance, 2nd October,1991
3. The Chittagong City Corpoation(Amendment) Ordinance, 2nd October,1991
4. The Dhaka City Corporation (Amendment) Ordinance, 2nd October,1991
5. The Khulna City (Amendment) Ordinance, 2nd October,1991
6. Rajshahi City Corporation (Songshodhon) Oddadesh, 2nd October,1991
7. Biniog Board (Songshodhon) Oddadesh, 2nd October,1991
8. The Local Government (Union Parishad) (Amendment) Ordinance, 14th December,1991
9. The Co=operative Societies (Amendment) Ordinance,18th December,1991
10. Pani Sompod Porikalpana Oddyadesh,22nd December,1991
No Ordinances Promulgated in between the 4th and 5th Session.
The ordinances promulgated after 5th Session with their date of promulgation:
1. The Presidential Security Force (Amendment) Ordinance, 6th May,1992
2. Eit Porano (Niontron)(Songsodhon) Oddyadesh, 18th May,1992
3. Ortho Rin Adalot (Songsodhon) Oddyadesh, 27th May,1991
4. Rajshahi Mohanogor Police Oddyadesh, 10th June,1992.
The ordinances promulgated after 6th Session with their date of promulgation:
1. The Supreme Court Judges (Remuneration & Privileges) (Second Amendment) Ordinance, 8th September,1992
2. The Supreme Court Judges (Travelling Advances) (Amendment) Ordinance. 6th September,1992
3. Sontrashmulok Oporadh Domon Oddyadesh, 15th September,1992
4. The Excise & Salt (Amendment) Ordinance,21st September,1992
The ordinances promulgated after 7th Session with their date of Promulgation:
1. The Banglades Shilpa Rin Songstha (Amendment) Ordinance, 19th November,1992
2. Rangamati Parbotto Jela Sorkar Porishad (Ditio Songshodhon) Oddayadesh,12th December,1992
3. Khagrachori Parbotto Jela Sorkar Porishad (Ditio Songshodhon) Oddayadesh,12th December,1992
4. Bandirban Parbotto Jela Sorkar Porishad (Ditio Songshodhon) Oddayadesh, 12th December, 1992.
The ordinances promulgated after 8th Session with their date of Promulgation:
1. Bank Company (Songshodhon) Oddyadesh,13th April,1993
2. The Bangladesh (Freedom Fighters) Welfare Trust (Amendment) Ordinance,20th April,1993
3. Security & Exchange Commisision Oddyadesh, 2nd April,1993
4. The Securities and Exchange (Amendment) Ordinance, 3rd April, 1993.
The ordinances promulgated after 9th Session with their date of Promulgation:
1. The Supreme Court Judges (Leave, Pension & Privileges) (Amendment) Ordinance, 4th August,1993
2. Arthik Protisthan Oddyadesh, 14th August, 1993.
3. Bangladesh Jute Corporation (Repeal) Ordinance, 28th August, 1993.
4. The Acquisition and Requisition of Immovable property (Amendment) Ordinance, 4th September, 1993.
No Ordinances Promulgated in between the 10th and 11th Session.
The ordinances promulgated after 11th Session with their date of Promulgation:
1. Ponno Utpadonshil Rastrio Shilpa Protisthan Sromik (Chakurir Shortaboli) Oddyadesh, 16th October,1993
2. Rangamati Parbotto Jela Sthanio Sorkar Porishad (Ditio Songshodhon) Oddayadesh, 4th November, 1993.
3. Khagrachori Parbotto Jela Sthanio Sorkar Porishad (Ditio Songshodhon) Oddayadesh, 4th November, 1993.
4. Bandorban Parbotto Jela Sthanio Sorkar Porishad (Ditio Songshodhon) Oddayadesh, 4th November, 1993.
The ordinances promulgated after 12th Session with their date of Promulgation:
1. The Bangladesh Industrial Enterprises (National Sation) (Amendment) Ordinance, 6th January,1994
2. Ortho Rin Adalot (Songshodhon) Oddyadesh, 10th January,1994
3. Institute of Post Graduate Studies in Agriculture (IPSA) Oddyadesh, 5th January, 1994.
The ordinances promulgated after 13th Session with their date of Promulgation:
1. The Police Officers (Special Provisions) (Amendment) Ordinance 3rd April,1994
No Ordinances Promulgated in between the 14th, 15th &16th Session.
The ordinances promulgated after 16th Session with their date of Promulgation:
1. Sontrasmulok Oporadh Domon (Bishes Bidhan) Oddyadesh, 31st October, 1994.
The ordinances promulgated after 17th Session with their date of Promulgation:
1. The Representation of People (Second Amendment) Ordinance, 29th December, 1994.
2. Rangamati Parbotto Jela Sthanio Sorkar Porishad (Songshodhon) Oddayadesh, 31st December, 1994.
3. Khagrachori Parbotto Jela Sthanio Sorkar Porishad (Songshodhon) Oddayadesh, 31st December, 1994.
4. Bandorban Parbotto Jela Sthanio Sorkar Porishad (Songshodhon) Oddayadesh, 31st December, 1994.
The ordinances promulgated after 18th Session with their date of Promulgation:
1. Supreme Court Judges (Remuneration &Privileges) (Amendment) Ordinance, 27th February,1995
2. Bichar Proshashon Proshikkon Institute Oddyadesh, 23rd May, 1995.
The ordinances promulgated after 19th Session with their date of Promulgation:
1. Bank Company (Songshodhon) Oddyadesh, 2nd May, 1995.
2. Bank Companies profits (Workers Participation) (Amendment) Ordinance, 17th May,1995
No Ordinances Promulgated in between the 20th, 21st &22nd Session.
Sixth Parliament:
19 March, 1996 – 25 March, 1996
| Session | Total Law Passed by Parliament | Number of bills Passed which have been initiated from Ordinances | Total Ordinances promulgated between two sessions |
| 1st(19th March, 1996 to 25th March, 1996) | 1 | 0 | 19 |
| Total | 1 | 0 | 19 |
Seventh Parliament:
14th July, 1996 – 13 July, 2001
| Session | Total Law Passed by Parliament | Number of bills Passed which have been initiated from Ordinances | Total Ordinances promulgated between two sessions |
| 1st (14th July,1996 to 2nd September,1996) | 19 | 15 | 15 |
| 2nd (1st November,1996 to 20th November,1996) | 1 | 0 | 0 |
| 3rd (15th January,1997 to 13th March,1997) | 13 | 4 | 4 |
| 4th (10th May,1997 to 15th May,1997) | 0 | 0 | 1 |
| 5th (10th June,1997 to 10th July,1997) | 4 | 0 | 0 |
| 6th (30th August,1997 to 4th September,1997) | 4 | 0 | 0 |
| 7th (2nd November,1997 to 16th December,1997) | 4 | 0 | 0 |
| 8th (14th January,1998 to 13th May,1998) | 12 | 0 | 0 |
| 9th (10th June,1998 to 9th July,1998) | 4 | 0 | 0 |
| 10th (7th September,1998 to 8th September,1998) | 0 | 0 | 0 |
| 11th (5th November,1998 to 26th November,1998) | 8 | 1 | 1 |
| 12th (25th January,1999 to 7th April,1999) | 14 | 0 | 0 |
| 13th (6th June,1999 to 8th July,1999) | 8 | 0 | 0 |
| 14th (29th August,1999 to 9th September,1999) | 0 | 0 | 0 |
| 15th (1st November,1999 to 9th November,1999) | 1 | 0 | 0 |
| 16th (1st January,2000 to 30th January,2000) | 8 | 0 | 0 |
| 17th (28th March,2000 to 6th April,2000) | 4 | 0 | 0 |
| 18th (5th June,2000 to 9th July,2000) | 16 | 0 | 0 |
| 19th (6th September,2000 to 14th September,2000) | 8 | 0 | 0 |
| 20th (9th November,2000 to 23rd November,2000) | 7 | 0 | 0 |
| 21st (11th January,2001 to 31st January,2001) | 5 | 0 | 0 |
| 22nd (29th March,2001 to 12th April,2001) | 21 | 0 | 0 |
| 23rd (6th June,2001 to 12th July,2001) | 29 | 0 | 0 |
| Total | 190 | 20 | 21* |
*One progressive feature is very much evident in the 7th parliament and this is the gradual slowing down of the resorting to ordinance making in between two sessions of parliament.
Eighth Parliament:
28th October, 2001 – 27th October, 2006
| Session | Total Law Passed by Parliament | Number of bills Passed which have been initiated from Ordinances | Total Ordinances promulgated between two sessions |
| 1st(28th October,201 to 29th November,2001) | 5 | 2 | 2 |
| 2nd (31st January,2002 to 10th April,2002) | 11 | 0 | 0 |
| 3rd (31st January,2002 to 10th April ,2002) | 7 | 0 | 0 |
| 4th (12th September,2002 to 17th September,2002) | 2 | 0 | 0 |
| 5th (14th November,2002 to 27th November,2002) | 13 | 2 | 2 |
| 6th (26th January,2003 to 6th March,2003) | 13 | 1 | 1 |
| 7th (8th May,2003 to 13th May,2003) | 2 | 0 | 0 |
| 8th (10th June,2003 to 15th July,2003) | 21 | 0 | 0 |
| 9th (11th September,2003 to 18th September,2003) | 3 | 0 | 0 |
| 10th (16th November,2003 to 19th November,2003) | 1 | 0 | 0 |
| 11th (18th January,2004 to 17th May,2004) | 14 | 0 | 0 |
| 12th (9th June,2004 to 14th July,2004) | 9 | 0 | 0 |
| 13th (12th September,2004 to 16thy September,2004) | 0 | 0 | 0 |
| 14th (28th October,2004 to 2nd December,2004) | 7 | 0 | 0 |
| 15th (31st January,2005 to 15th March,2005) | 13 | 0 | 0 |
| 16th (12th May,2005 to 17th May,2005) | 1 | 0 | 0 |
| 17th (7th June,2005 to 10th July,2005) | 5 | 0 | 0 |
| 18th (8th September,2005 to 21st September,2005) | 9 | 0 | 0 |
| 19th | 0 | 0 | 0 |
| 20th | 15 | 1 | 1 |
| 21st | 5 | 0 | 0 |
| 22nd | 13 | 0 | 0 |
| 23rd | 15 | 0 | 0 |
| Total | 184 | 6 | 6 |
Only 6 ordinances were promulgated in this parliament. So we may conclude that, this government did not abuse this power.
Evaluation:
The nature and result of power and duty is depended upon the way of application of the power and perform of duty. The Ordinance making power of President is conferred by the Constitution so that it will be practiced honestly.
What was the situation in our country?
If we analyze the statistics given above then it is clear that the ordinance making power o the President was abused in some regimes. If we consider the case of the First Parliament, we shall find it has promulgated in total 6 ordinances, which were promulgated within 7 days before or after the session of parliament. In case of Third parliament the number is 2 and in case of Fifth parliament it is also 3.
Then let us see the total number of ordinances promulgated by each parliament.
First Parliament promulgated total 94 ordinances while it passed 154 laws.
Second Parliament promulgated total 295 ordinances while it passed 65 laws.
Third Parliament promulgated total 323ordinances while it passed 39 laws.
Forth Parliament promulgated total 92 ordinances while it passed 142 laws.
Fifth Parliament promulgated total 102 ordinances while it passed 173 laws.
Sixth Parliament promulgated total 19 ordinances while it passed 1 law.
Seventh Parliament promulgated total 21ordinances while it passed 190 laws.
Eighth Parliament promulgated total 6 ordinances while it passed 184 laws.
One point which is very important to mention here is that whether the law made by ordinance is a democratic one or not is not the real question; the question is that such laws are made by-passing parliament. It, therefore, negates all the safeguards of law-making on the one hand, and it reduces the role of parliament into a minimum on the other hand and it institutionalised only backdoor democracy. And in that case if the convention grows into making laws by the executive then some day may come when we will no more need any parliament to make laws and to represent the people in making laws. Then the executive can make laws and amend laws as it wishes, so it may cause a serious damage in the democratic process of the country.
.
Conclusion:
From the above discussion it is evident that, the governments just after the independence were mainly focused on ordinances as a regular power. But recently or to be more specific last three governments, though used it with a mala fide intention, did not abuse it as much as its predecessors. And if we consider the case of 5th, 7th & 8th Parliament; 5th Parliament promulgated 102 ordinances, 7th Parliament 21 Ordinances & 8th Parliament only 6 ordinances.
Any ordinance promulgated within 7 days of the parliament’s session, unless it is of grave importance shows the tendency of by-passing the parliament. And this tendency shows utter disregard to the supremacy of the parliament and it is the violation of the important rule to be followed by today’s world. That is separation of the three organs of the state
1. Municipal Ordinances; 1a.01 at 3, 2nd ed. 1998
2. A Dictionary of Law; L. B. Curzon; 2nd ed. 1983
4. Constitution of Pakistan; Shawkat Mahmud and Nadim Shawkat.
5. (’82) A. S. C. 710 (1982) 2 S. C. R. 272
6. Section 72, schedule 7 of the Government of India Act, 1935.
7. Section 88 of the Government of India Act, 1935.
8. Lakhi Narayan Das Vs. Bihar (1949) F. C. R. 693 (‘50) A. F. C. 59
11. Clause (3) of Article 93 of the Constitution of Peoples Republic of Bangladesh.
References:
1. Judith O'Gallagher, Municipal Ordinances; 1a.01 at 3, 2nd ed. 1998
2. L. B. Curzon, A Dictionary of Law;; 2nd ed. 1983
3. Osborn’s Concise Law Dictionary; 7th ed. 1983
4. Hodson, H.V, The Great divide: Britain-India-Pakistan, (Karachi: Oxford University Press,1985), p.48
5. Constitution of Pakistan; Shawkat Mahmud and Nadim Shawkat.
6. Constitution of the Peoples Republic of Bangladesh.
7. Hilaire Barnett: Constitution and Administrative Law, 5th Ed., 2004
H. M. Seervai: Constitutional Law of India, 2002
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