Separation of Powers in Pakistan
Alishba Fazal
Separation of powers, also known as Trias Politica, is the idea that the government must be based on “three separate branches” where power is wielded, so they can keep a check on each other. This idea was proposed by Charles De Montesquieu, French philosopher (1689 – 1755). In essence, there are three organs in almost every state, entrusted with specific functions under the Constitution; legislative, executive, and judiciary. The different tasks are assigned to them to run the country. The distribution of powers among these three organs is not absolute. Under the doctrine of Separation of Powers, a system of check and balance establishes to avoid tyranny and abuse of power. This doctrine is adopted in the light of the fact that a single institution holding all power may act arbitrarily as it would not be accountable to anyone for its actions, which may affect the state negatively. This doctrine is a key feature of democracy.
The doctrine of separation of powers divides the powers of State among three organs in such a way that one organ keeps a check on and is accountable to, the other organ. For example, the legislative organ is responsible to make laws and pass financial bills but they require the authorization of the President who is a part of the executive organ. The executive organ is responsible for daily administration work but they are responsible to the legislature for their actions. The judicial organ is responsible to interpret the laws and settle disputes but appointments to the judiciary and their removal are governed by legislative and executive organs. Judicial organs also keep a check on legislations and administrative order made. It may declare them null and void if they are inconsistent with fundamental rights or the constitution of the state. For this judiciary has to be impartial and non-political. Thus, each organ is accountable to and monitored by the other.
The design of separation of powers differs from country to country. In some countries, there’s a complete separation not only with reference to functions but also between each person of the separate branches. In such a system, a person cannot serve in more than one branch. Members of the cabinet representing the executive organ can be part of the National Assembly which represents a part of parliament. It is impossible to achieve absolute separation of power, some overlapping will occur especially between the legislature and executive branches. However, the separation between the judiciary and the other two branches is very strict, as the judiciary must be independent and free from political influence. In Pakistan, the judiciary has the power to pronounce upon the accent decision of executive and legislative power of government. The judicial power can decide on the constitutionality of laws and declare invalid any exercise of power that is not authorized by law and conflicts with the constitution. This is known as a judicial review. Under Article 184(3) of the Constitution of Pakistan, the Supreme Court can take action by exercising Suo moto power. For instance, the newly appointed Chief Justice of Pakistan, Justice Gulzar Ahmed exercise his first Suo moto power on 10th April 2020 in the wake of a recent Covid-19 outbreak. The action was taken in light of the federal government’s failure towards this pandemic. Upon the first hearing on Monday 13 April 2020, Justice Gulzar Ahmed showed his doubts towards the appointment of Dr. Zafar Mirza (special assistant to the prime minister on health affairs) for being ineffective and ordered his removal. The Chief Justice believes that Dr. Mirza have not done enough in his capacity.
Meanwhile, the Supreme Court of Pakistan has become more powerful after the disqualification of Prime Minister Nawaz Sharif. The apex courts asked the government for their doings about the hospital’s condition, mismanagement of Karachi, etc. The judiciary is involving itself in executive matters for which the Chief Justice was criticized, by political parties.
Conclusively, it could be interpreted that the judiciary rather than holding separation of power, are busy doing checks on the executives, involving themselves in their matters, therefore, bringing minimal benefit to Pakistani society.
It is being circulated that there are now not three but rather six powers. Those are bureaucracy, media, and external advisors. Let’s consider Bureaucracy first, the bureaucrats have the power to implement laws that congress promulgates, creating their own rules and settling disputes through the process of administrative adjudication. Technically, bureaucracy is part of the executive branch, but it’s influence spans so wide that it also includes the power of the other two branches. Bureaucracy is not just about enforcing laws but rather it also serves to make new regulations and in a way act as the legislature since that rule has the force of law and people can be punished by breaking them. For example, the Federal communication commission (FCC), a US Government agency, set a rule that after your radio license expired you cannot continue your work but the utility continued to these stations after the expiration. Then FCC issued a notice and proposing a fine of $20,800. Similarly, in 2014, congress called for the mandatory notice of a common period. FCC issues its own rules on the issue of net neutrality and any person can read those that which are difficult to understand and can suggest his ideas. The bureaucracy is required to read that suggestion and incorporate them with the final rules that are in the federal register. In a way, federal rulemaking is more democratic than law-making but it’s currently not formalize in the Constitution.
Throughout the history of Pakistan, it has been evident that former bureaucrats such as Ghulam Muhammad and Iskander Mirza have been highly involved in political and Constitutional infrastructure. Hence although sixty years have passed, Pakistan’s bureaucracy is nothing but the ruling class being neither responsive nor accountable for their actions and we can fairly say that the Pakistan bureaucracy believes that their work is to rule rather than to serve. I shall quote the opening remarks of the International Crises Groups Report on “Reforming Civil Services in Pakistan” (2010):
“Decades of mismanagement, political manipulation and corruption have rendered Pakistan’s civil service incapable of providing effective governance and basic public services. In public perceptions, the country’s 2.4 million civil servants are widely seen as unresponsive and corrupt, and bureaucratic procedures cumbersome and exploitative[1].”
In regards to Media, sometimes called the fifth branch or fifth pillar in the central role of government, is considered as a bridge between the government and people. The main goal of the media is to ensure transparency in reporting on governmental issues and to provide information to the people so they can make an opinion and be involved to held the government accountable. Media plays important role in narrative buildings and political landscape shaping. Moreover, the media reports should include the politicians wrongdoings. Similar to the function of the judiciary, They should interview politicians not as a way to direct public opinion but rather to present truth, stay away from bias and prejudice. The media has to be unbiased as it plays the main role in narrative building and public opinion. As seen in the election held in Pakistan in 2018, different media outlets were promoting the policy of Imran khan and many people voted for him by being influenced through media. Recently, journalist Iqrar-ul-Hassan was facing many attacks because he talked about various issues with un-biasness.
Finally, we have the sixth power which are the external advisors. The external advisors include the advisory board and lobby group. They are hired by the government to report or advise on the issues the government does not know, as a result, influencing legislation and its execution, or at times even arguably manipulating it. In Pakistan, we have different advisory boards such as an economic advisory council, maritime advisory committee, technical advisory committee, etc. As in April 2019, PM Imran Khan formed an 18 member economic advisory council to advise the government on the economic and financial situation, in which minister of finance, Asad Umer and other members presented different proposals, giving professional advice about the formulation and implementation of its economic policies. Another advisory board is the council of Islamic ideology, who are responsible for giving Islamic advice to the government. Like in the case of Zainab, the people were demanding to hang the rapists, the Senate Standing Committee on Law and Justice sent a bill to the Council of Islamic Ideology for review that either the amendment in law is needed. The council of Islamic ideology advised against the public hanging and they clearly said that there is no amendment needed in law just for the execution of people. It could be said that the council of Islamic ideology is capable of influencing policies[2].
In conclusion, we have seen the first three powers check the actions of each other but the question which arises is that who will check the power of the other three? Some people will say the seventh power which rests with people, but from my analysis, the people are busy paying their financial debts and fulfilling their basic needs. The answer can be found by the famous quote of Montesquieu “It is necessary from the very nature of the things that power should be a check to power”.
References:
[1] International Crises Group, “Reforming Pakistan’s Civil Service”, op.cit.
[2] https://www.dawn.com/news/1390060
The writer is a Research Associate and second-year law student at ZFL.
Published in ZU-BLAWGS, August 10th, 2021