Is The Doctrine Of “Separation Of Powers” Necessary For Smooth Functioning Of The State’s Affairs In This Modern Day Democracy? – Part II

Is The Doctrine Of “Separation Of Powers” Necessary For Smooth Functioning Of The State’s Affairs In This Modern Day Democracy? – Part II

 

Some Articles of US Constitution in support of Separation of Powers;

Although, the phrase ‘Separation of Powers’ is nowhere expressly mentioned in the US Constitution but the concept of Separation of Powers is clearly mentioned in the First Section of every Article (Article I, Article II and Article III). For the clarity these Articles are reproduced hereunder:[1]

Section I of Article I: All legislative powers herein granted shall be vested in a Congress of the United State, which consists of a Senate and House of Representatives.

Section I of Article II: The Executive powers shall be vested in a President of the United States of America.

Section I of Article III: The Judicial powers of United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Where, the US Constitution has separated the powers of every organ of the State, in the same Constitution, it has created a system of checks and balances by giving each organ such power to limit the power of another organ, a few example such restrictions and checks and balances are given below:[2]

  • Congress has the right to pass legislation, but the president may veto those bills.
  • The president may veto bills passed by the Congress, the legislature may override that veto.
  • The president may make treatise with foreign powers, but the Senate must ratify those treaties.
  • The president is commander in chief of the army and navy, but Congress must pass legislation to raise armies, regulate the military, and declare war.
  • The president may nominate federal judge, but the Senate must confirm them.
  • The judiciary may interpret the law and even strike down laws as being in violation of the Constitution, but Congress may pass new legislation or propose constitutional amendments.
  • Congress may pass law, but the executive must enforce them.

Indian Context:

In India, Supreme Court while deciding the case of  Kesavananda Bharti v State of Kerala[3], a landmark case which established the doctrine of ‘Basic Structure in Constitution’ and defined it  as follows:

  1. Supremacy of the Constitution
  2. Republican and Democratic form of Government
  3. Secular character of the Constitution
  4. Separation of powers between the legislature, the executive and the judiciary
  5. Federal character of the Constitution.

The above views were reaffirmed in the subsequent cases by the Indian Supreme Court in Indira Nehru Gandhi v Raj Narain.[4]

It is very ironic that on one side Indian Supreme Court had recognized the doctrine of Separation of Powers as basic structure theory and on the other side Indian Supreme Court has many a time struck down constitutional amendment. Here Indian Supreme Court itself encroached upon the separation of powers.

Pakistani Context:

As the terms rule of law, due process of law (now mentioned in 18th Amendment) have not been mentioned expressly in the Constitution in Pakistan, similarly term Separation of Powers has also not been mentioned in the Constitution. But the Constitution of Pakistan has derived this theory from the different part of it. Judiciary has been declared separate from the executive and legislature for ensuring its independence to protect the right and liberty of  people. The historic Objective Resolution which has been the preamble of every Constitution, now a substantive part in shape of Article 2A, gives the direction for the separation of power, when it say that legislative power shall be vested in the people of Pakistan through their chosen representatives and the independence of judiciary shall be protected from the executive and legislature. The relevant clauses of the 2A reads as “Wherein the State shall exercise its powers and authority through the chosen representatives of the people and wherein the independence of the judiciary shall be fully secured”[5]

In Pakistani context, the case Sharaf Faridi v Federation of Pakistan,[6] a landmark/foundation case on separation of powers, Justice Saleem Akhtar of Sindh High Court, in his agreeing but a separate note said that:

“In a set-up where the Constitution is based on trichotomy of powers, the Judiciary enjoys a unique and supreme position within the framework of the Constitution as it creates balance amongst the various organs of the State and also checks the excessive and arbitration exercise of power by the Executive and the Legislature…… The jurisdiction and the perimeters for exercise of powers by all three organs have been mentioned in definite terms in the Constitution. No organ is permitted to encroach upon the authority of the other and the Judiciary by its power to interpret the Constitution keeps the Legislature and the Executive within the spheres and bounds of the Constitution.…….Therefore justice can only be done if there is an independent Judiciary which should be separate from the Executive and not at its mercy or dependent on it.”[7]

Explaining and equating the independence of superior judiciary from the executive also meant that lower and district courts equally needs independence from executive and legislature:

“I am inclined to hold that the supervision and control over the subordinate judiciary vested in the High Court under Article 203 the Constitution keeping in view Article 175, is exclusive in nature, comprehensive in extent and effective in operation. It comprehends the administrative power as to the working of the subordinate Courts and disciplinary jurisdiction over the subordinate judicial officers. In this view of the matter, any provision in an Act or any rule or a notification empowering any executive functionary to have administrative supervision and control over the subordinate judiciary will be violative of above Article 203 of the Constitution. Besides, it will militate against the concept of separation and independence of judiciary as envisaged by Article 175 of the Constitution and the Objectives Resolution”[8]

Mr. Hamid Khan,[9] while talking about the Separation of Powers of the Judiciary from the Executive has narrated a political and administrative history of Constitution. He said for the first 9 years Pakistan was governed under The Government of India Act 1935, wherein concept of separation of judiciary from the Executive was nowhere and as per practice of colonial era, Deputy Commissioner was performing dual responsibility; one as Land Revenue Collector and other as controlling judicial magisterial powers. The 1956 and 1962 Constitutions did not discuss the separation of judiciary from executive. But 1973 Constitution, which, while taking up the issue, given timeframe for purging the judiciary from executive within three years. The Article 175 (3) of the Constitution reads as “The Judiciary shall be separated progressively from the Executive within three years from the commencing day.” It took fourteen years to get judiciary separated from executives that was meant to do in just three years. The reluctance shown by executive to separate judiciary, force the Bar members to file a Writ Petition under Article 199 of the Constitution in the Sindh High Court praying to issue writ of mandamus against federal and provincial governments to fulfill their constitutional obligations i.e. to separate Judiciary from the Executive.[10] A seven member bench decided this petition with 6:1 ratio wherein Court explained while directing what it does mean of Separation of Judiciary from Executive:[11]

  • that executive should place adequate annual funds at the disposal of the judiciary for operating them without any interference by any agency of the executive;
  • that appointment of the Chief Justice and judges of the Supreme Court and Chief Justices and judges of the High Courts by the President, in consultation with the Chief Justice of Pakistan and Chief Justice of the concerned High Court, as the case may be, should be meaningful;
  • that transfer of a High Court judge to another High Court without his consent or his appointment to the Federal Shariat Court without his consent, militates against the concept of independence/separation of the judiciary as envisaged by the Constitution;
  • that denial and failure to establish independent courts and tribunals by separating them from the executive would negate the fundamental right to life and liberty guaranteed to citizens by the Constitution.

The Court in this judgment also issued further direction to the Sindh Government:

  1. to issue necessary notification for bifurcating magistrates into judicial and executive magistrates and to place the judicial magistrates under the administrative control of the High Court within a period of six months;
  1. to issue necessary notification for placing the judicial magistrates under the departmental control of the High Court including their disciplinary matters;
  1. to initiate legislative measures within a period of six months in order to make the necessary amendments in the relevant statues to bring them in conformity with Articles 175 and 203 of the Constitution.

The Sindh government filed an appeal in Supreme Court of Pakistan, against the judgment of Sindh High Court, which showed its reluctance to separate the judiciary from executive. The Supreme Court upheld the decision of the Sindh High Court and explained the meaning of independence of judiciary:[12]

  • that every judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influence, inducements or pressures, direct or indirect, from any quarter or for any reason; and
  • that the Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature.

In a recent case,[13] Supreme Court of Pakistan while speaking through the then Chief Justice Nasir ul Mulk has, in categorical manner, expressed that it has no power to judicially review  any constitutional amendment made by the Parliament. He went on to say that Supreme Court lackS the jurisdiction to strike down any constitutional amendment, even if amendments are made to infringe the Fundamental Rights. In another case, Ghulam Rasool v Govt of Pakistan,[14]the then Chief Justice Nasir ul Mulk, had overruled a case Khawaja Muhammad Asif v Federation of Pakistan[15], by saying that to make policies is the exclusive powers of Executive under Articles 90 and 91, so this Court does not have powers to intervene the domain of Executives.

But, in my view, earlier judgment decided by the then Chief Justice Iftikhar Muhammad Chaudhry, Khawaja Asif v Federation of Pakistan[16] had just guided the Executives for appointment of Heads of various corporations and regulatory authorities to observe meritocracy, he did not impose any restrictions on the executive to appoint any specific person.

Conclusion

There are two other concepts of core function theory and theory of checks and balances which are interrelated with the concept of separation of powers. The core function of the Legislature is to make laws, and Executive to execute laws made by legislature, the Judiciary has to decide the dispute and interpret the laws and Constitution. The core function means that every organ of the state has been given a separate core function and no other organ should do the same function, and to avoid tyranny and break down of state machinery, one organ should not encroach upon of the core function of the other organ. These checks and balances of practice, which is a distinct feature of the American Constitution, gives such power to each and every organ of the State to check the abuse of powers by other organ of the State. United State of American is one of the leading countries of the world which has defined practically the doctrine of separation of power with a robust system of checks and balances. This is the reason that the country faces less tyrannical behavior by any organ of the state and  helps to save and protect the liberty, life and property of its people and thus qualifying as a land of opportunities for everyone.[17]

 

[1] United States Constitution.

[2]Epstein, Lee and G. Walker, Thomas, “Constitutional Law for a Changing America: Institutional Powers and Constraints”. Congress Quarterly Inc, 1992 at 29.

[3]AIR 1973 SC 4 SCC 225.

[4] AIR 1975 SC 2299.

[5]http://pakistanconstitutionlaw.com/liaquat-on-objectives-resolution-2/ accessed on 2nd July 2015.

[6] PLD 1989 Karachi 404.

[7]Ibid at footnote 28.

[8] Ibid at footnote No.

[9] Senior Advocate of Supreme Court of Pakistan and a former President of Supreme Court Bar Associations, Pakistan.

[10] Khan, Hamid, “Constitutional and Political History of Pakistan”, Oxford University Press, at page 906

[11] Sharaf Faridi v Federation of Pakistan, PLD 1989 Karachi 404.

[12] Government of Sindh v. Sharaf Faridi, PLD 1994 SC 105.

[13] District Bar Association Rawalpindi v Federation of Pakistan, PLD 2015 SC 401.

[14] PLD 2015 SC 6.

[15] 2013 SCMR 1205.

[16] Ibid at 37.

[17] Justice (Retd) Fazal Karim, “Judicial Review of Public Action” Pakistan Law House, Karachi 2006 at 75.

 

This paper on the Doctrine of Separation of Powers consists of two parts. Part I is also available on the Commentary section of the website.

The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.

Muhammad Imran

The writer holds a degree in LL. B (Punjab University) and M. Phil (Islamic Studies) and is an LL. M Candidate at University of Lahore. He has avid interest in Constitutional Law and is currently working at the Shaikh Ahmad Hassan School of Law (SAHSOL), Lahore University of Management Sciences (LUMS).



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