TRIAS POLITICA AND THE CONSTITUTIONAL LAW OF PAKISTAN

Tehreema Khan Swati

Lawyer at Treklaw 

The term “trias politica” or “separation of powers” was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18th century French social and political philosopher. His publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States. Under his model, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently. 

One of the fundamental maxims of politics is that the legislative, executive and judicial branches ought to be separate and distinct. The maxim finds its basis in the concept of liberty. To elaborate and as the supporters of the theory of separation of powers, it is believed that the accumulation of all three powers, i.e. legislative, executive and judiciary, in the same hands, would result in tyranny, or in other words, a lack of liberty Separation of powers refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another.

These three separate branches of government are endowed with certain powers. The legislative branch is responsible for creating laws and handling the budget of the federal government. The executive branch is responsible for implementing the public policy enacted by the legislative branch. Lastly, the judicial branch is responsible for interpreting the constitutionality of laws.

The branches work together, and it is unconstitutional for any branch to overstep its authority. For example, the executive branch cannot interpret the Constitution, the judicial branch cannot make laws and the legislative branch cannot enforce public policy. In this way, each branch “checks” the power of the other two. This concept of check and balances prevents any one part of the government from overstepping.

Brohi identifies two elements of the theory: 

(i) “That the same person, or body of persons, should not be the repository of the powers of the legislature, executive and judiciary or of any two of them”; and

(ii) “That legislation, execution and adjudication, should each be independent of the others and that there should be, as far as possible, absence of control or interference by one over the other”( Brohi, A. K. (1958), Fundamental Law of Pakistan), p.72..

Montesquieu, while talking about the power of adjudication, stated that 

“were it joined to the executive power, the judge might behave with all the violence of an oppressor” (Montesquieu, B. (1748), L’Esprit Des Lois. In Davidson, J. F. and Grundstein, N. D. (1952), Cases and Readings on Administrative Law, p.46)

BACKGROUND

Similarly, the concept of separation of powers or trias politica adheres to strict checks and balances between the three organs of the state namely the legislature, the executive and the judiciary. However, since its inception Pakistan has endured the viceregal system of governance-where executive has always been the most powerful. Whether it was a military rule or a civilian government all concentrated power in one man’s hand- the executive. This propelled the power mongering and conflict ridden political culture amongst different pillars of the nation-state. Resultantly, dysfunctional institutions emerged which led to political instability and polarisation. This legacy has severely damaged the democratic process in the country – even it continues today without any interruption. How far Pakistan would continue to live in this quagmire and what are the means to get out of this conundrum? This is the fundamental question for all stakeholders to ponder upon.

A shrewd analysis of the dynamics of Pakistan’s politics illustrate that since its very creation institutional clash, though other factors would have also affected, has been a major hurdle in its progress. A retrospective look reveals that struggle for the centralization of authority has been at the centre stage in the politics of Pakistan. It basically emerged from the feudal structure of the society. First, right after partition of sub-continent Pakistan inherited The Government of India act 1935 and adopted it as its constitution with slight modifications. This constitution vested strong discretionary powers in the hands of Governor General. Only Governor General enjoyed absolute authority, even he had the authority to dismiss PM. This laid the foundation of one man dominated political culture in the country. Second, the first constitution of the country was promulgated in 1956 which abolished the office of Governor General. This replaced the powers of Governor General with the President. Thereafter, the president enjoyed all discretionary powers, earlier vested in Governor General, even dismissal of PM. Later on, many office bearers exercised this authority, when they dismissed existing Prime Ministers, destabilizing the country. This formed the bases of dysfunctional institutions. Third, again in 1962 constitution, power was concentrated in the hands of president. With the flavour of presidential form of government, this time, the president of the country held sway over all matters. Fourth, though the façade of 1973 constitution was parliamentary, however it established an authoritarian government with concentration of power in the hands of the Prime Minister, Zulfiqar Ali Bhutto. Later on different amendments in the constitution reinforced decentralization of power for smooth democratic transition. However, this constitution is never practiced in its true essence.

The recent judicial activism is more or less a new challenge for democracy, because it intervenes in the domains of legislative and executive. Undoubtedly, Judiciary is an essential element of a state. It bears much importance, also, because it interprets the constitution of a country. But this important role, in its part, can never be a justification for intervening in the domain of others- either executive or legislative. In the post-panama verdict Pakistan judiciary is trolling to tilt the balance of power in its favour. However, undermining the powers of both legislative and executive the third pillar of state is creating a mess.

Whereas, at this critical moment of history, when our country is facing both internal and external conventional and unconventional challenges. Would this power mongering intervention serve in the best national interest of the country? Obviously, not. First, though, ostensibly, the judiciary claims its moves for the better national interest of the country, the result would be an aggressive but weak judiciary. History is the best judge of events. Coming years would certainly clear many ambiguities in the current political cum judicial fiasco. Already, the history of judicial verdicts is not free of biasness. Whether it was Maulvi Tamizuddin case or Zulfiqar Ali Bhutto case verdict, these are clear manifestations of judiciary’s political alignments. As, now, even judiciary does not consider those decisions, once considered legitimate, accurate or unbiased. Even no one in the institution dares to cite those decisions as a reference. All try to escape their realities, because those were really flawed and biased decisions which undermined the role of judiciary.

Second, intervention of an institution in the domain of another has dualistic affect. On the one hand it destabilizes the intervened; while on the other it weakens the aggressor. Consequently, by initiating an organizational clash and conflict ridden politics, this institutional power mongering leads to an institutionally incapacitated, politically destabilized and economically retrogressive country. As, Montesquieu explained, “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice”. Therefore, the need is to restrain from political alignments and biases when deciding the fate of our future generations.

Given the realities of criminal justice system of the country, judiciary needs more to reform its institution. Putting its own institution in order would be a better option rather destabilizing the country by disrupting cooperation and coordination between institutions. For example, the existing lacunas in the criminal justice system are challenge for judiciary. Free and fair trial based speedy justice is the fundamental right of every citizen. However, the criminal justice system of the country helps the strong and wealthy against the weak and poor. The honourable Chief should do the needful in this regard.

A judiciary separated from the legislative and executive would serve the best national interest. Whereas, interventionism would only exacerbate the problems not only for judiciary but also the whole country. Because, this would sabotage the fundamental liberties of the populace. As Montesquieu says, “There is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be legislator. Were it joined to the executive power, the judge might behave with violence and oppression”.

CONSTITUTION OF PAKISTAN AND  SEPERATION OF POWERS

The Constitution of Pakistan deals with the superior judiciary in a fairly comprehensive manner and contains elaborate provisions on the composition, jurisdiction, powers and functions of these courts. The Constitution provides for the “separation of judiciary from the executive” and the “independence of judiciary” Preamble and Art 175 (3) as given below;

Article 175(3) provides for a stipulated period within which the judiciary shall be progressively separated from the executive. Furthermore, that the independence of the judiciary shall be fully secured is provided for in the Objectives Resolution, which has been incorporated into the Constitution by virtue of Article 2-A.

PREAMBLE

Wherein the independence of the judiciary shall be fully secured; Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution. It entrusts the superior courts with an obligation to “preserve, protect and defend” the Constitution. Art 178 & 194, read with the 3rd Schedule

175: Establishment and jurisdiction of courts

(3) The Judiciary shall be separated progressively from the Executive within 3 [fourteen] years from the commencing day

These constitutional principles, i.e. separation of powers in general, and independence of the judiciary from the executive in particular, have been endorsed by the Supreme Court of Pakistan in numerous cases, illustrating the indispensability of the doctrine in following case laws:

1. Separation of powers is a model of a democratic system whereby the political powers are distributed among three governmental branches: legislature, executive, and the judiciary. It is concluded that there should be complete separation of judiciary from the executive as Constitution is based on trichotomy of power. 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 Executive within the spheres and bounds of the Constitution. The apex Supreme Court and Honorable High Courts have recently been given a degree of financial autonomy. This measure followed the Supreme Court ruling in the below mentioned cases :

1. PLD 1994 SC 105
2. 2021 PLD 45

• P L D 1989 Karachi 404

1. 2000 Y L R 2724
2. PLD 2000 SC 869
3. P L D 2014 Supreme Court 1

2. Appointments (procedure and qualifications of judges for appointment to the Supreme Court and High Court and appointment)

In Al-Jehad Trust v Federation (PLD 1996 SC 324) and Asad Ali v Federation (PLD 1998 SC 33) Supreme Court further interpreted various provisions in the Constitution and clarified the procedure and qualifications of judges for appointment to the Supreme Court and High Court and appointment of the Chief Justices of the said courts. This procedure was changed by the Constitution 18th & 19th (Amendments) Acts 2010. Before such amendments, the standing practice was that the Chief Justice of Pakistan used to recommend a panel to the President and the President would select a suitable judge from the said panel. Similarly, for the appointment of judges in the High Courts, the respective Chief Justice would forward a panel to the President which was routed through the Governor of the Province and Chief Justice of Pakistan. The recommendation of the Chief Justice was binding on the President, except for sound reasons to be recorded by the President.

1. P L D 1996 Supreme Court 324
2. P L D 2010 Lahore 160

3. The supervision and control over the judiciary vested in the High Court under Article 203 of Constitution, keeping in view Article 175, is exclusive in nature and any notification empowering any executive functionary to have control over the subordinate judiciary will be violation of the above Article 203 of the Constitution.

The Subordinate Courts (civil and criminal) have been established and their jurisdiction defined by law Art 175. They are supervised and controlled by the respective High Court Art 203. The administration of justice, however, is a provincial subject and thus the Subordinate Courts are organised and the terms and conditions of service of judicial officers determined under the provincial laws and rules. The issues of recruitment, promotions and other terms and conditions of service, together with disciplinary proceedings, etc, are dealt with under the provincial civil servants acts and the High Court rules. Until recently, the appointing authority for judicial officers happened to be the provincial government but with the separation of judiciary from the executive, such authority has been transferred to the High Court. Initial recruitment as Civil Judge-cum-Judicial Magistrate is made through written tests and viva voce examination, conducted by the respective High Court.

1. P L D 2011 Supreme Court 407

4. Independence of judiciary also means the elimination of financial control of the Executive over the judiciary

1. P L D 1998 Supreme Court 1445
2. P L D 2008 Supreme Court 522

• PLD 2011 Karachi 451

1. P L D 1993 Supreme Court 341

National Judicial Policy

In an effort to reduce the backlog and streamline the judicial system in the country, and make it responsive to the present-day requirements of society, the National Judicial Policy 2009 was framed. The Policy was formulated by the National Judicial (Policy Making) Committee, headed by the Chief Justice of Pakistan, with Chief Justices of Federal Shariat and High Courts as members. The National Judicial Policy was aimed at ensuring easy access to justice at the grassroot level. It was formulated in the aftermath of Judges-Restoration Movement (2007-2009), with a view to improve the performance of justice sector in order to enhance public trust in the administration of justice. The salient features of the Policy were: strengthening the independent of judiciary, its complete separation from the executive, eradication of corruption and expeditious disposal of cases.

In order to conclude, since its inception Pakistan has been facing the menace of political instability and polarisation. At the root lies the problems of institutional clash, power mongering, and feudalistic structures which have constructed the political culture of the country. As per the constitution of Islamic republic of Pakistan, 1973 and aforementioned case laws of Apex Supreme court and Honorable High courts that there are three pillars and each organ should be independent and there should be separation of powers between them. The concept of separation of powers or trias politica adheres to strict checks and balances between the three organs of the state namely the legislature, the executive and the judiciary. In Pakistan, the powers of two out of three organs (except for the judiciary) are derived from Article 7 of the Constitution of Pakistan, whereas the role of the judiciary is mentioned in Part VII of the Constitution (which is to maintain order between all organs). No authority, except where allowed by law, can encroach on the jurisdiction of others. The firmer the trichotomy of powers, the stronger the governance in the state. Separation of powers theory, if applied in letter and spirit, would create a peaceful environment for the progress and prosperity of this country. For that, all stakeholders should collaboratively struggle for fusion of power at national level. The power must be decentralized and equally distributed amongst three pillars of country; legislative, executive and judiciary, with a system of “checks and balances” for all these branches. The prosperous future of Pakistan lies in the “separation of powers”.

https://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx

https://www.pljlawsite.com/2015art51.htm

https://courtingthelaw.com/2020/04/28/commentary/the-hypothetical-separation-of-powers-in-pakistan/

https://nation.com.pk/14-Mar-2018/separation-of-powers-and-pakistan