What is separation of powers and how is it ineffective in Pakistan?

Group Members
–Mashif Mehboob (Group Leader)
–Muhammad Ali
–Rana Anees
–Raja Khan Nawab
–Sajjad/Rahoo Khan
–Hamid Mahmood

What is Separation Of Powers and
How is it Ineffective in Pakistan?

THEORY ON PRINCIPLES OF SEPARATION OF
POWERS AND THE CONCEPT OF CHECKS AND
BALANCES

INTRODUCTION
• Government is the agency through which the will of the sate is
formulated, espressed or realized.
• Power corrupts and absolute power corrupts absolutely.
• Concentration of authority degenerates into tyranny, corruption and
abuse of power.
• The function of the state are performed by the government through its
three branches-legislature, executive and judiciary.
• These three organs represent the people and their will in our country
and are responsible for the smooth running of democratic government
in our country.
• All the branches of the government have equal importance and
functions. So the great thinkers thought that each branch of the
government hold be made independent of the other for this concept of
separation of power was introduced.
• Jean bodin(1530-1596) the French publicist was the first modern writer
to demand a separation of power.

• Though the history of the doctrine of separation of powers is
traceable to ancient times of Aristotle and 16th and 17th century
philosophers such as John Bodin and Locke.
• It was the French Jurist, Montesquieu who gave it a systematic and
scientific formulation. In his book “Espirit De Lois”(the spirit of laws)
Montesquieu ,for the first time, extensively discussed the doctrine and
its form.
• According to Monstesquieu’s theory of separation, it means that no
one person or body should be vested with all three types of powers.
• In every state there are three kinds of powers,
1. The Legislative Power
2.The Executive Power
3.The Judicial Power
• There must be a division of functions on the following basis: the
legislature should make laws not enforce or administer them, the
executive must administer the made laws but neither influence the
legislature in the making of the laws nor stand in the judgement of
the same and the judiciary must determine rights and uphold justice
without taking over the functions of law making or administration.
MONTESQUIEU’S THEORY OF
POWER OF SEPARATION

• He further said that such separation is
necessary I order to ensure that justice does
not become arbitrary and capricious.
• Montesquieu states that “when the
legislature and the executive powers are
united in the same persons or in the same
body of magistrates there can be no liberty ,
because apprehensions may arise , lest the
same monarch or separate should enact
tyrannical laws.”
• There is no liberty if the judicial power is not
separated from the legislative and executive.

• No concentration of powers.
• Diffusion of power is needed.
• In short, the theory of separation of powers
merely means that a different body of
persons is to administer each of of the three
departments of government and that no one
of them is to have a controlling power over
either of them.
• Such a separation is necessary for the
purpose of preserving the liberty of the
individual and for avoiding tyranny.
PRINCIPLES OF THEORY OF
SEPARATION OF POWERS

• It aims at individual liberty. It is a safeguard against
despotism.
• Its basic principle that concentration of power s leads to
dictatorship is true for all time and ages.
• The separation of powers saves the people from arbitrary
rule of executive
• This theory lays down the principle that governments
should act according to well established rules or laws.
• Each organ acts a check upon others.
• It is desirable for maintaining the efficiency in the
administration.
IMPORTANCE OF THEORY OF
SEPARATION OF POWERS

Why is separation of powers
important?• Democratic government is characterised by the separation
of powers.
• There are ‘checks and balances’ within our political system
that limit the power of each branch in order to prevent the
abuse of power.
• Firstly, it ensures that the different branches control each
other. This is intended to make them accountable to each
other – these are the ‘checks’;
• Secondly, the separation of powers divides power between
the different branches of government – these are the
‘balances’. Balance aims to ensure that no individual or
group of people in government is ‘all powerful’. Power is
shared and not concentrated in one branch.
• That is why we also often refer to the ‘separation and
balance of powers’.

CRITICISM.
• It is not desirable because if there is complete
separation of powers , the different organs of the
government will not be able to work in co-operation
and harmony. As a result ,there would be frequently
deadlocks which may bring the governmental
machinery to a standstill.
• According to Mill, ”the separation of powers will result
in a clash between the three organs of government, as
each one will take interest only in its own powers”.
• If all branches are made separate and independent of
each others, each branch will try to safeguard its
powers and will not protect the powers of other
branches. In such case administrative efficiency
cannot be attained

CRITICISM.
• The theory of separation of powers makes a
mistake in assuming that the three branches of
government are equally powerful and can be
independent of one another.
• The growth of administrative adjudication is
another redevelopment which is against the
doctrine of separation o f powers. The
executive is being vested with judicial powers a
swell as other duties otherwise the officers do
not feel secure while performing their duties.

Clear Distinctions
• The separation of powers is also reflected in the
fact that certain functions must not be exercised
by one and the same person. Thus, the Federal
President cannot at the same time be a Member
of the National Council, or a judge who is
appointed Minister or elected to be a Member of
the National Council must be temporarily
suspended from his/her judicial duties.

Role ofLegislature
• The legislative branch of government is
responsible for enacting the laws of the state,
supervising their implementation and
appropriating the money necessary to operate
the government. The Government has to justify
itself to Parliament in respect of everything it
does or causes the administration to do.
• Jinnah saying:
• "you are now a sovereign legislative body and
you have got all the powers. It, therefore, places
on you the gravest responsibility as to how you
should take your decisions".

National Assembly
• Work of NA is to make laws and do work for
the public welfare.
• Senate
• The Senate is the second chamber of the
Parliament. It is independent from, and
complements the work of, the National Assembly.
The Senate shares the task of making and shaping
laws and checking and challenging the work of the
government.

Role of Executive
• The executive branch is responsible for
implementing and administering the public
policy enacted and funded by the legislative
branch. The executive branch has the task of
implementing laws. It comprises the Federal
Government, the Federal President and all
federal authorities including the police and
the armed forces.

NAB
• The National Accountability Bureau is an
autonomous and constitutionally established federal
institution responsible to build efforts against
corruption and prepare critical national economic
intelligence assessments against economic terrorism
to the Government of Pakistan.
FIA
• The Federal Investigation Agency is a border control,
counter-intelligence and security agency under the
control of the Interior Secretary of Pakistan, tasked
with investigative jurisdiction on undertaking
operations against terrorism, espionage, federal
crimes, ...

IB
• Work Profile of IB Intelligence Officers (ACIO) It is a
security agency so your job is related to the security
subject at national and central level. Usually, the
newly recruited candidates are posted on border
areas for the limited duration of time.
• Police
• As a police officer you'll work in partnership with
the communities you serve to maintain law and
order, protect members of the public and their
property, prevent crime, reduce the fear of crime
and improve the quality of life for all citizens.

Army
• It is to ensure the national security and
national unity of the country by defending it
against external aggression.

Role of Judiciary
• The judicial branch is responsible for
interpreting the constitution and laws and
applying their interpretations to controversies
brought before it.
• Judges administer justice, viz. they decide
disputes independently and impartially. It is
their task to ensure that laws are complied
with.

• Its main principle to eradicate
powers from one hand.

Separation of Powers And our
Constitution
• Executive:
• Article 41: 1) There shall be a President of Pakistan who
shall be the Head of State and shall represent the unity
of the Republic.
• 43 (2) The President shall not be a candidate for
election as a member of [Majlis-e-Shoora (Parliament)]
or a Provincial Assembly; and , if a member of [Majlis-
e-Shoora (Parliament)] or a Provincial Assembly is
elected as President, his seat in 1 [Majlis-e-Shoora
(Parliament)] or, as the case may be, the Provincial
Assembly shall become vacant on the day he enters
upon his office.

Constitution
 48.(1) In the exercise of his functions, the
President shall act [on and] in accordance with
the advice of the Cabinet [or the Prime Minister].
58(2)b:"a situation has arisen in which the
Government of the Federation cannot be carried
on in accordance with the provisions of the
Constitution and an appeal to the electorate is
necessary."with the consequence of dismissing
the Prime Minister and his or her Cabinet.
8th & 13th ammendment.

Constitution
• 91 (7 ) The Prime Minister shall hold office
during the pleasure of the President, but the
President shall not exercise his powers under
this clause unless he is satisfied that the Prime
Minister does not command the confidence of
the majority of the members of the National
Assembly, in which case he shall summon the
National Assembly and require the Prime
Minister to obtain a vote of confidence from
the Assembly.

Constitution
• 248.(1): The President, a Governor, the Prime
Minister, a Federal Minister, a Minister of
State, the Chief Minister and a Provincial
Minister shall not be answerable to any court
for the exercise of powers and performance of
functions of their respective offices or for any
act done or purported to be done in the
exercise of those powers and performance of
those functions

Constitution
Legislature:
50:There shall be a Majlis-e-Shoora
(Parliament) of Pakistan consisting of the
President and two Houses to be known
respectively as the National Assembly and the
Senate.
69:courts not to inquire into proceedings of
Majlis-e-Shoora .

Constitution
239:(5) No amendment of the Constitution shall be
called in question in any court on any ground
whatsoever.
75:President(b)
in the case of a Bill other than a Money Bill, return the
Bill to the Majlis-e-Shoora (Parliament) with a
message requesting that the Bill or any specified
provision thereof,be reconsidered and that any
amendment specified in the message be considered.
(2) the President shall give his assent within ten days,
failing which such assent shall be deemed to have been
given.

Constitution
• Judiciary:
• 175. Establishment and jurisdiction of
courts(1) There shall be a Supreme Court of
Pakistan, a High Court for each Province [and a
High Court for the Islamabad Capital Territory]
and such other courts as may be established
by law.

Constitution
• 175(3) he Judiciary shall be separated
progressively from the Executive.
• PLD 1994 SC 105
• The independence of judiciary means:
• 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 influences, inducements or pressures,
direct or indirect, from any quarter or for any
reason; and

Constitution
• 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.

Constitution
• 68:Restriction on discussion in Majlis-e-Shoora
• (Parliament) No discussion shall take place in
[Majlis-e-Shoora (Parliament)] with respect to
the conduct of any Judge of the Supreme
Court or of a High Court in the discharge of his
duties.
• Clarify the concept that actually exist in
Constitution.

How is it ineffective in Pakistan?

Judiciary in Contradiction to
concept of separation of powers

Judiciary in Contradiction to concept
of separation of powers
• The recent judicial activism is more or less a
new challenge for democracy.
• 1.8 Million Cases Pending.
• The history of judicial verdicts is not free of
biasness.
• Intervention of an institution in the domain of
another(judiciary, executive) has dualistic
affect.

• 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.

• 204(b):Contempt of Court
• scandalizes the Court or otherwise does
anything which tends to bring the Court or a
Judge of the Court into hatred, ridicule or
contempt.
• The criminal justice system of the country
helps the strong and wealthy against the weak
and poor.
• Article 10(a)

• 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”.

Powerful beaurucracy and Army
Intervention
• Create a lot of problem in good governance.
• 5 Dictatorship Attacks on rule and order.
• Negates Separation of Powers concept.
• Asghar Khan Case and Pervaz Musharraf case.
• 23rd Amendment was passed to re-establish
the military courts for further two years till 6
January 2019.

Legislative process and powerful
executive in hurdle of applying
concept of separation of powers

1935 ACT
• In the beginning when Pakistan
came into being the legislator at
that time adopted 1935 act of
BRITISH gave full powers to
GOVERNOR GENERALS

1956 CONSTITUTION
• The First CONSTITUTION Of PAKISTAN
• Abolish the office of GOVERNOR
GENERAL and gave powers to the
PRESIDENT even dismissal of PM.
• 1962 CONSTITUTION was made in
accordance with the will of AYUB KHAN
and gave full powers to the PRESIDENT.

1973 CONSTITUTION
• This Constitution was Parliamentary
• Gave powers to the PM
• Later on different amendments in the
constitution reinforced decentralization of power
for smooth democratic transition.
• But 8th amendment in the CONSTITUTION
changed Pakistan's government from a
Parliamentary system to a Semi-presidential
system .
• Article 45

PRESIDENTIAL POWERS
17TH AMENDMENT to the
constitution of Pakistan.
18TH AMENDMENT
removed the power of
President to dissolve the
Parliament.

DICTATORSHIP
 AUTOCRACY
Supreme power is concentrated in the hands
of one person.
• 1958
• 1969
• 1977
• 1999
• Article 269: validation of law, acts, etc

Powerful Executive in all eras
• Since its inception Pakistan has endured the
vice regal system of governance-where
executive has always been the most powerful.
• 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.
• Man who is minister is also legislative.

Political Pressure
• Throughout history of Pakistan ,the baron
class remains involved in legislation.
• The growth in public pressure groups can be
partially explained by a change in Pakistani
attitudes towards the Federal government.
• Danger for Independency of Institutions.
• More strong political groups, more threat to
instability of country.

WHAT HAPPENS IF ONE BRANCH GOT
ALL POWERS:
• 1)If one branch were somehow to usurp powers
from the other two,it would be able to act in any way
that it wanted.
• 2)For example; If somehow the president were to
gain the powers to rule by decree then he or she
would be able to make any laws he/she wanted
without having them objected/rejected by
parliament , senate or supreme court.
• 3)If this happens then the rights of the state, citizens
can be harmed and there is always a continuous
THREAT.

THE DIFFERENCE BETWEEN
PARLIAMENTARY SYSTEM AND
PRESIDENTIAL SYSTEM:• The major difference between these two systems is that in
a Presidential system, the executive leader, the President, is
directly voted upon by the people (Or via a body elected
specifically for the purpose of electing the president, and
no other purpose), and the executive leader of the
Parliamentary system, the Prime Minister, is elected from
the legislative branch directly.
• In the Presidential System, it is more difficult to enact
legislation, especially in the event that the President has
different beliefs than the legislative body. The President
only responds to the people, the legislative branch can't
really do anything to threaten the President. As a result, he
can make it more difficult for the legislative body to do
anything.

THE DIFFERENCE BETWEEN
PARLIAMENTARY SYSTEM AND
PRESIDENTIAL SYSTEM:
• In the Parliamentary system, if the Parliament
doesn't like the Prime Minister, they can cast a vote
of no confidence and replace him. This tends to
make the executive leader subservient to the
Parliament.
• Bottom line is, if you believe that government
should have more checks and balances, then a
Presidential system will give you that. If you believe
that it should have the power to enact laws quickly,
then you should go for a Parliamentary system.

Policy Recommendation
• The solutions to the lack of parliamentary oversight on the
functioning of the government are not confined to amending the
constitution.
• Overall 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
accountability–both ways, involving the legislators and the
executive.
• In doing so decision makers must scope beyond the current narrow
ambit of accountability, as is being envisioned in the Accountability
Bill.
• In order to ingrain appropriate checks 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.

Conclusion
• Throughout history of Pakistan, the concept of
separation of power not adopted but now
situation is changing and after damages of long
period ,some time is required to attain this
equilibrium position.
• Constitution provides the separate role and
functions of the three institutions.
Unfortunately, judicial branch of the
government could not perform its role as an
independent institution.

Conclusion
• In sum therefore, two key instruments need to
be reshaped in order to institutionalize a
system of checks and balances between the
three pillars of the state; one, the Constitution
and two, a holistic accountability framework.
The potential within these norms–if
appropriately cascaded into implementation–
to shape the destiny of this country must not
be underestimated.

What is separation of powers and how is it ineffective in Pakistan?

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