THE DOCTRINE OF SEPARATION OF POWERS

Separation of Power
Separation of powers a model of democracy that involves the separation of political power
between the governments three branches: the executive, the legislature and the judiciary. In a
system where there is a separation of powers, each branch is constrained from intervening in the
area of responsibility of another branch.
he doctrine of separation of powers or chec!s and balances between independent and co" e#ual
branches of government, is derived from the wor! of the $rench political and social philosopher
%aron de &ontes#uieu.
he purpose of separation of powers is to foster institutional chec!s and balances, as it is only
through these that safeguards can be built against potential abuse of power.
$ailure to institutionali'e these simply creates opportunities for tyrannywhether it is in the
shape of traditional dictatorshipmilitary ruleor absolutism in the guise of democratic rule.
(aw has different forms )sources* acts of the legislative bodies )statutes*, acts of the executive
bodies )they have different names orders, instructions, or other*, at last judicial precedents,
legal customs. (aw"ma!ing of each source of law has distinct features.
he doctrine+or, rather, the myth+of the separation of powers is aptly summari'ed by &.,.-.
.ile: /It is essential for the establishment and maintenance of liberty that the government be
divided into three branches or departments, the legislature, the executive, and the judiciary. o
each of these three branches there is a corresponding identifiable function of government,
legislative, executive, or judicial.0
.ile attaches two problematic conditions to the doctrine: /1ach branch of the government must
be confined to the exercise of its own function and not allowed to encroach upon the functions
of the other branches. $urthermore, the persons who compose these three agencies of
government must be !ept separate and distinct, no individual being allowed to be at the same
time a member of more than one branch.0
he phrase chec! and balance implies that there are competing sovereigns )such as in a federal
system in a political structure*. 2-hec! refers to the ability, right and responsibility of each
power to monitor the activities of the other )s*, while 2balance refers to the ability of each entity
to use its authority to limit the power of the other. In other words, the principle of separation of
powers holds that in order to avoid a concentration of power in the hands of a minority in a
political system, the three principal constituents of government the executive, the legislature
and the judiciary should be separate and enjoy e#ual and well"defined powers and
independence. It is these chec!s and balances that protect the people from authoritarian or
arbitrary rule. Separation of powers is a feature associated more with the presidential system of
government. In a typically parliamentary system, fusion of power is more common. In fusion of
power the elected legislature is supreme, while the other branches are subservient to it. In
separation of powers, each branch enjoys a considerable degree of independence from the other
branches. his independence derives from the fact that each branch is elected or selected
independently of the other branches and neither of them is beholden to any of the others for its
continued existence.
In a fusion of power system such as that of the 34, the people elect the legislature and the
elected legislature then chooses the executive. In contrast, in separation of powers, it is not the
national legislature which selects the executive, instead the executive is chosen by other
methods, for instance direct popular election, selection by 1lectoral -ollege etc. In a
parliamentary system, when the term of the legislature ends the tenure of the executive selected
1
THE DOCTRINE OF SEPARATION OF POWERS
by that legislature also ends5 however in a presidential system the executives term may or may
not coincide with the legislatures.
Separation of power in Pakistan
he -onstitution of 6a!istan provides for /separation of powers0 with in"built mechanism of
/chec!s and balances0 between the legislative, executive and judicial organs of the State. he
document calls for independence of the judiciary0 and ordains its /separation from the
1xecutive0. o complement the notion of judicial independence, the -onstitution contains
elaborate provisions for #ualifications and mode of appointment of judges of superior courts i.e.
Supreme -ourt and 7igh -ourts, their terms and conditions of service, compensation pac!age
and grounds8procedure for removal. he subordinate courts are created under legislative
enactment and the terms and conditions of service of judicial officers are prescribed. Such
courts wor! under the administrative control of the respective )provincial* 7igh -ourt. he
Supreme -ourt is the apex court of the country, the final appellate authority and guardian of the
-onstitution, hence the final arbiter of law and -onstitution. Its precedents are binding on 7igh
-ourts and all other courts. he -onstitution allows the established of special courts and
administrative tribunals for various $ederal8provincial subjects, through statutory enactment, by
the respective legislature i.e. 6arliament or 6rovincial 9ssembly. Such courts8tribunals operate
under the 1xecutive.
he Supreme -ourt, through successive rulings, further amplified the scope and strengthened
the principles of judicial independence. It issued directions for complete separation of judiciary
from the 1xecutive at all levels of judicial hierarchy, which was duly complied with by the
:overnment. Slowly and gradually the judiciary attained institutional, administrative and
functional independence. In yet another judgment, the Supreme -ourt ruled, and the
:overnment granted, a degree of financial autonomy to superior courts, in as much as, the -hief
,ustices of the Supreme -ourt and 7igh -ourts were authori'ed to ma!e re"appropriation of
funds within their budgetary allocation. 9ttaining separation and exercising institutional,
financial and functional independence, posed challenges: to account for judges conduct,
functions and performance. It therefore had to plan and strategi'e for improved judicial
administration and efficient court management to address the lingering problems of bac!log and
delay in trial proceeding. It further had to demonstrate a clean image of the judiciary, with the
judges observing the prescribed code of conduct and following the norms of judicial propriety.
It had to raise the standard of efficiency and integrity within the judicial system. 9nd to do so,
the judiciary had to put its house in order and strive to improve its performance. 6ractically
though, there were legal gaps and procedural impediments in the way of judiciary becoming a
unified branch, co"e#ual of the legislative and executive organs.
Legislature
The legislature is a representative body with the power to make and change laws.
Legislatures around the world are diverse in structure, in nomenclature and in power.
(egislatures may have one chamber )unicameral* or two chambers )bicameral* and the members
of the legislature may be elected or appointed. (egislatures have different appellations5 these
include parliament, congress, and senate, national council or national assembly. here are also
country"specific names such as the Sejm )in 6oland* the Storting of ;orway or the Iranian
&ajlis.
2
THE DOCTRINE OF SEPARATION OF POWERS
-ontemporary legislatures are the result of a historical process which began in medieval 1urope.
<riginally, the legislatures were assemblies of aristocrats, convened occasionally by !ings in
order to get peoples support for taxation or for waging war.
:radually, they began to be convened regularly and started to provide essential communication
between the monarch and powerful groups of their subjects.
he term legislature for such an assembly came into use in seventeenth century revolutionary
1ngland. he legislature became the instrument of liberal democracy in the nineteenth century.
(iberal democracy is based on the notion that people should have an important role in
government and the representatives of the people should be held accountable for their actions.
7owever, legislatures do not only exist in democracies, they often play a role in non democratic
regimes. he former communist states had legislatures and so do the existing ones. In some
third world states where military dictators organi'e fa!e elections and announce puppet
assemblies, the latter act as rubber stamp for the dictators.
In a genuine democracy, the legislature provides an opportunity to the people to be represented
in the political system and through this representation5 the overall political process draws
legitimacy.
he main role of a legislature is to ma!e laws. 9nother role of legislature is to approve and
regulate the collection and distribution of government finance in terms of agreeing upon
taxation levels, debating and approving the national budget and scrutini'ing government
expenditure and accounts.
Role of Legislature in Pakistan
(egislature is the organ of the state that ma!es laws. (aws regulate the conduct of the people.
6a!istan is an Islamic =epublic and will of the people is expressed through their elected
representatives who perform the function of law ma!ing. &ain thing is the welfare of the people
and development in all spheres of life in a democratic manner where rule of law is observed. In
6a!istan we have our own -onstitution called the -onstitution of the Islamic =epublic of
6a!istan. Its preamble as articulated and made justifiable by 9rticle >"9 is reproduced for ready
reference: /6reamble.?hereas sovereignty over the entire 3niverse belongs to 9lmighty 9llah
alone, and the authority to be exercised by the people of 6a!istan within the limits prescribed by
7im is a sacred trust5 9nd whereas it is the will of the people of 6a!istan to establish an order
:"?herein the State shall exercise its powers and authority through the chosen representatives of
the people5 ?here in the principles of democracy, freedom, e#uality, to clearance and social
justice, as enunciated by Islam, shall be fully observed5 ?here in the &uslims shall be enabled
to order their lives in the individual and collective spheres in accordance with the teachings and
re#uirements of Islam as set out in the 7oly @uran and Sunnah5 ?here in ade#uate provision
shall be made for the minorities freely to profess and practice their religions and develop their
cultures5 ?here in the territories now included in or in accession with 6a!istan and such other
territories as may hereafter be included in or accede to 6a!istan shall form federation wherein
the units will be autonomous with such boundaries and limitations on their powers and authority
as may be prescribed5 here in shall be guaranteed fundamental rights, including e#uality of
status, of opportunity and before law, social, economic and political justice, and freedom of
thought, expression, belief, faith, worship and association, subject to law and public morality5
?here in ade#uate provision shall be made to safeguard the legitimate interests of minorities
and bac!ward and depressed classes5 ?here in the independence of the judiciary shall be fully
secured5 ?here in the integrity of the territories of the $ederation, its independence and all its
3
THE DOCTRINE OF SEPARATION OF POWERS
rights, including its sovereign rights on land, sea and air, shall be safeguarded5 So that the
people of 6a!istan may prosper and attain their rightful and honored place amongst the nations
of the ?orld and ma!e their full contribution towards international peace and progress and
happiness of humanity :
Executives
he president who heads the executive branch serves as the head of state, commands the
military and ma!es political appointments under the chec!s and balances system. The executive
branch has the power of veto over the legislative branch. he members of the judiciary are
appointed by the executive branch, which also has the power to pardon.
In an authoritarian system such as a dictatorship or an absolute monarchy all the powers of
government are assumed by one person or a small group of persons. he separation of powers
system is designed to transfer some authority away from the executive branch in order to protect
individual liberty from tyrannical leadership.
In a presidential system such as that of the 3nited States, the leader of the executive branch
performs a dual role, being at the same time, head of state and head of government. <n the
other, in a parliamentary system such as that of the 34, the prime minister, a member of the
legislature, heads the government, while the role ofhead of state is assumed by a ceremonial
monarch. In other countries with a parliamentary form of government, a president may be head
of state.
In a presidential system, the president is in charge of all the affairs of the state. he ministers
loo! after their respective departments and are solely answerable to the president. his is
particularly the case in authoritarian presidencies or in military regimes
Role of Executive in Pakistan
$irstly, the power of the executive has been vested either in the president or the prime minister
at different times in 6a!istan. he ABCD -onstitution and the ADth and AEth 9mendments greatly
empowered the prime minister whereas the Fth and ACth 9mendments shifted power to the
presidents office. Stri!ing the right balance has therefore been a major bone of contention.
7aving a presidential chief executive in a parliamentary system creates a level of complexity
and undermines the ability of the legislators to exercise chec!s on the executive. he solution to
this lies in fashioning structural provisions of the constitution to separate powers.
Secondly, the other complicating factor with regard to separation of powers is inherent to the
differences between presidential and parliamentary forms of government, which are the two
ways in which executive authority is organi'ed in constitutional democracies. Separation of
powers, also !nown as trias politica, a model for governance in democratic states, is a feature
inherent to the presidential system whereas 2fusion of powers is characteristic of parliamentary
systems. In the latter, the executive which consists of the prime minister and the cabinet are
drawn from the legislature. :iven this fusion, the role of an independent judiciary becomes all
the more important in a parliamentary system.
he solutions to the lac! of parliamentary oversight on the functioning of the government are
not confined to amending the constitution. <verall systems of accountability need to be
revamped to ensure that institutional instruments and arrangements are in place to enable direct
and indirect political, administrative and financial accountabilityboth ways, involving the
legislators and the executive. In doing so decision ma!ers must scope beyond the current narrow
4
THE DOCTRINE OF SEPARATION OF POWERS
ambit of accountability, as is being envisioned in the 9ccountability %ill. In order to ingrain
appropriate chec!s and balances, many relevant institutions and instruments need to be
restructured to address administrative dysfunction, mismanagement and political manipulation
all of which are pervasive in the system.
In sum therefore, two !ey instruments need to be reshaped in order to institutionali'e a system
of chec!s and balances between the three pillars of the state5 one, the -onstitution and two, a
holistic accountability framewor!. he potential within these normsif appropriately cascaded
into implementationto shape the destiny of this country must not be underestimated.
Judiciary
he third pillar of government is the judiciary. In a democratic state, the judiciary has a very
important role, i.e. it safeguards the liberties of the individual and enforces the laws made
by the executive and the legislature. he judiciary plays the role of a watch dog in a
democratic system. Strong and independent courts can declare an act carried out by the
executive or legislature as unconstitutional, invalid or vice versa. he judiciary also !eeps the
constitution of a country alive by reinterpreting it to adapt to changing socio"economic and
political conditions.
<wing to these important functions of the judiciary, the 3nited ;ations has endorsed the
importance of an independent judiciary by adopting the basic principles on the independence of
the judiciary at its seventh congress in ABFG.
1ach member state is expected to guarantee the independence of judiciary in its constitution or
the laws of the country. he modern concept of judicial independence is based on the theory of
separation of powers that enables the judiciary to function independently of the legislative and
executive arms of government.
Role of Judiciary in Pakistan
hroughout its history, 6a!istan has been an executive dominated state and this trend is lin!ed
to the &uslim era and to %ritish rule in India .he &uslim sultan )monarch* was the chief
executive, the sole legislator and the chief judge in his dominion. he power of the executive,
the legislature and the judiciary were concentrated in him and he ruled by decrees. ;o written
constitution is !nown to have existed during the &uslim rule in the period beginning from the
twelfth century till the eighteenth century, when the %ritish became supreme in the
subcontinent.
he judiciary is meant to exercise chec!s on the parliament. he power of judges to review
public laws and declare them in violation of the nations constitution serves as a fundamental
chec! on any potential abuse of power by the government. he constitution has a supreme
status, which means that any law that violates the constitution or conducts that conflict with it
can be challenged and struc! down by courts. his prerogative of the judiciary has not been
widely exercised in the past. 7owever, with increasing trend towards judicial activism, the
judiciary has increasingly made use of this privilege. So in its ruling on the legal validity of the
;ational =econciliation <rdinance );=<* and terming it void ab initio for being ultra vires of
the constitution, the judiciary exercised a fundamental chec!. Stri!ing down the recent
notifications as being in violation of the constitution is also a chec! on the executives authority
and must be perceived in the same spirit.
5
THE DOCTRINE OF SEPARATION OF POWERS
he judiciary can also exercise similar chec!s on the executive. 7owever, some of the recent
2chec!se.g. he suo moto actions with regard to setting sugar pricesare controversial, as
there are many economic considerations determining price increase. Shortcomings in
governance, though a proximate cause, are not a violation of the constitution, per se.
his aspect notwithstanding, the recent trend towards independence of the judiciary is a positive
trend and one that holds promise of impact with regard deinstitutionali'ing chec!s and balances,
provided 2impendence does not transcend into 2judicial imperialism, as an expert has recently
emphasi'ed. 9dditionally, in order to fully reali'e its impact in a sustainable manner, two things
must be ensured. <ne, He"politicising the superior judiciary and two, elimination of graft at all
levels through reform of the judicial system.
Conclusion
he doctrine of separation of powers rests upon the recognition of the universal truth that the
concentration of absolute power in one man or one body inevitably leads to exploitation and
tyranny.
In any constitutional democracy, the powers of the government are divided, so that the
legislature ma!es the laws, the executive implements them and runs the day"to"day
administration, while the judiciary interprets the laws and operates independently. 6a!istans
founding father declared that the country would have a parliamentary form of government, but
at various times in the countrys history executive power has either been vested in the office of
the head of state or the head of government.
In 6a!istan, after every long era of military rule there have been short lived periods of civilian
rule. -ivilian leaders have shown mar!ed authoritarian tendencies. (aurence ?hitehead has
pointed out that liberali'ation does not automatically lead to democracy. he opposition of a
dictator is the product of the oppressive regime it has succeeded. Such an opposition cannot
automatically become democratic after getting power. Hemocrati'ation can only be achieved
through regular, free and fair elections and accountability of the political leadership. In the
context of 6a!istan, while stic!ing to the parliamentary system, there should be a separation of
powers, with chec!s and balances, to ensure that untrammeled executive power does not
emerge.
Foot Notes
ords !efinition
(egislative belonging to the branch of government that is
charged with such powers as ma!ing laws,
levying and collecting taxes, and ma!ing
financial appropriations
1xecutive responsible for ma!ing sure laws are carried
out and for managing the affairs of a nation
,udiciary the courts of law and judges in a country : the
branch of government that includes courts of
law and judges
Hoctrine a statement of government policy especially in
international relations
6
THE DOCTRINE OF SEPARATION OF POWERS
9bsolutism a political theory that absolute power should be
vested in one or more rulers
6recedent something done or said that can be used as an
example or rule to be followed in the future
Sovereign having unlimited power or authority
9rbitrary not planned or chosen for a particular reason :
not based on reason or evidence
1lectoral college a body of electors5 especially : one that elects
the president and prime minister
6rovision something that is done in advance to prepare
for something else
9pex court the top or highest court
(ingering to be slow in parting or in #uitting something
&onarch a person who reigns over a !ingdom or empire:
as a sovereign ruler
Hemocracy a form of government in which people choose
leaders by voting
=egimes a form of government : a particular government
(egitimacy allowed according to rules or laws
Scrutini'ing to examine )something* carefully especially in
a critical way
erritories an area of land that belongs to or is controlled
by a government
-onstitution the system of beliefs and laws by which a
country, state, or organi'ation is governed
rias politica a theory about separation of powers in a
government
6arliament the group of people who are responsible for
ma!ing the laws in some !inds of government
6ervasive existing in every part of something : spreading
to all parts of something
Hominion the power to rule : control of a country, region,
etc.
9ct a law made by a group of legislators
.irtual very close to being something without actually
being it
6romulgate to ma!e )a new law* !nown officially and
publicly
Secession the act of separating from a nation or state and
becoming independent
=eferendum an event in which the people of a county, state,
etc., vote for or against a law that deals with a
specific issue : a public vote on a particular
issue
.ested fully and unconditionally guaranteed as a legal
7
THE DOCTRINE OF SEPARATION OF POWERS
right, benefit, or privilege
Hiscretionary available to be used when and how you decide
9mendment the act or process of changing the words or
meaning of a law or document : the act or
process of amending something
yranny a government in which all power belongs to
one person : the rule or authority of a tyrant
6revailed to defeat an opponent especially in a long or
difficult contest
-ivilian a person who is not a member of the military or
of a police or firefighting force
Hictator a person who rules a country with total
authority and often in a cruel or brutal way
3ntrammeled to limit or restrict fairly
Heinstitutionali'ing the reform or modification of an institution to
remove or disguise its institutional character
ranscend to rise above or go beyond the normal limits of
)something*
1nvisaged to picture )something* in your mind
Hissolution the dissolving of an assembly or organi'ation
"i#liograp$y
http:88www.experiencefestival.com8separationIofIpowersIchec!sIandIbalances .
http:88www.indianofficer.com8forums8>JK>"separation"powers"vs"fusion"powers.html .
%arrie 9xford, 6olitics: 9n Introduction, DDK"DC.
.ernon %ogdanor)ed.*, he %lac!well 1ncyclopedia, D>B.
http:88www.socialstudieshelp.com8(essonIADI;otes.htm .
http:88www.boo!rags.com8essay">JJE8A>8E8AGGF8GDKKD
,ournal of 1uropean Studies &ontes#uieus Hoctrine of Separation of 6owers: 9 -ase
Study of 6a!istan by asneem Sultana
Separation of powers by Hr. Sania ;ishtar
H.&.<lson. Hemocratic (egislative Institutions. 9 comparative view. ABBE. 6.D"E.
$1H1=9(IS& 9;H 71 S169=9I<; <$ 6<?1=S 9 71 S3%;9I<;9(
(1.1(
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THE DOCTRINE OF SEPARATION OF POWERS
&axwell 9. -ameron, 6rofessor ,Hepartment of 6olitical Science, -EC>"AFKK &ain
&all, 3niversity of %ritish -olumbia, .ancouver, %-
=ole of the (egislature in 6a!istan by ,ustice Hr. &unir 9hmad &ughal
9