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Separation of Powers
Separation of Powers
POWERS
Checks and Balances: A Case Study
My Life: All
Rights
Submitted By:
Reserved!
SAMEEN
The meaning of this
title denotes to the
simple fact that each
15-38
human being is born
with his right to live
Submitted To:
his entire life till his
death meets him
Sir Taimoor
naturally. It could be
an accidental death
Khan
but no one ought to
be stolen of his right
to life by another no
matter what. Only
the individual
himself or God has
the right to that
human’s life.
Hence, law being the
protector of Human
Rights protects this
right to life as one of
the fundamental
rights and thus
approves of this
titled notion.
1
Contents
ABSTRACT..................................................................................................................3
INTRODUCTION.........................................................................................................3
THE CONCEPT ‘SEPARATION OF POWERS’........................................................1
PHILOSOPHICAL FOUNDATION OF SEPARATION OF POWERS.....................1
Aristotle.........................................................................................................................1
John Locke.....................................................................................................................2
Montesquieu..................................................................................................................2
SEPARATION OF POWERS
MORRISON V OLSON..........................................................................................10
KESAVANANDA BHARATI CASE.....................................................................10
CONCLUSION............................................................................................................10
3
SEPARATION OF
POWERS
Checks and Balances: A Case Study
has the purpose to protect the citizens safeguard for preserving liberties and
of the state from rash, tyrannical and property. In fact, all contemporary
unrestraint powers of the rulers. democratic constitutions do provide
Democracies all over world consider for a separation of powers in one way
that tyranny and arbitrary rule of the or the other.
Government can be minimized by
implementing the separation of powers INTRODUCTION
in its proper context. Separation of Separation of powers involves the
power laid down a governmental separation of political power between
structure. In Pakistan, the concept the government’s three branches – the
Separation of Powers could not find its executive, the legislature and the
place accurately. Since the judiciary. In a system where there is a
establishment of Pakistan (1947), separation of powers, each branch is
executive branch managed to possess constrained from intervening in the
judicial and legislative powers with area of responsibility of another
themselves. This practice fashioned the branch. The doctrine of separation of
fragile political system and instable powers or checks and balances
democracy in Pakistan. The Universal between independent and co- equal
Declaration of Human Rights, as branches of government, is derived
from the work of the French political
adopted by the UN General Assembly
and social philosopher Baron de
on 10 December 1948, also accepted
Montesquieu. The phrase check and
the principle of separation of powers.
balance implies that there are
The real and big support to this theory
competing sovereigns. “Check” refers
came from the founding fathers of the
to the ability, right and responsibility
4
equal and well-defined powers and The separation of powers concept was
independence. first originated in ancient Greece and
became widespread in the Roman
Republic as part of the initial
THE CONCEPT Constitution of the Roman Republic.4
‘SEPARATION OF
Aristotle (384-322 BC) since ancient
POWERS’ times, Greek philosopher mentioned
Generally, Governments have three
that the powers of the government rest
broader powers: the judicial, the
with three branches. He discussed in
executive and the legislature. These
his work “Politics”, “that there are
powers are performed by three
three elements in each constitution in
different branches of government:
respect of which every serious
Executive, Legislature and Judiciary.
lawgiver must look for what is
When power of the government is
advantageous to it, if these are well
broadly divided into three spheres, and
arranged, the constitution is bound to
activities of the government are
be well arranged, and the differences
performed by these three branches
in constitutions are bound to
separately, it is called separation of
powers.1 “Separation of Power is the 2
Ben rosamond and others, Politics: An
concept that maintains that three Introduction (First edn, Routledge 1997) 290
powers/elements of government 3
Resende, 2011, p.5
4
All Answers ltd, 'Historical Development Of
(executive, legislature, and judiciary)
Separation Of Powers' (Lawteacher.net,
should be separated in role and January 2019)
<https://www.lawteacher.net/free-law-essays/c
1
Ben rosamond , John Turner and onstitutional-law/historical-development-of-
others, Politics: An Introduction (First separation-of-powers-constitutional-law-
edn, Routledge 1997) 532 essay.php?vref=1>
5
On the basis of this theory, the power to legislate, to make laws and in
Supreme Courts was not given power addition to the enumerated powers it
to decide political questions so that has all other powers vested in the
there was not interference in the government by the Constitution.
exercise of power of the executive Where Congress does not make great
branch of government. Also overriding and sweeping delegations of its
power of judicial review is not given to authority, the Supreme Court has been
the Supreme Court. The President less rigid. One of the earliest cases
interferes with the exercise of powers involving the exact limits of non-
by the Congress through his veto delegation was Wayman v. Southard
power. He also exercises the law- (1825)20. Congress had delegated to the
making power in exercise of his treaty- courts the power to prescribe judicial
SEPARATION OF POWERS
Congress often writes legislation to the Supreme Court and inferior courts
restrain executive officials to the established by Congress. The judges
performance of their duties, as must be appointed by the president
authorized by the laws Congress with the advice and consent of the
passes. In INS v. Chadha (1983)23, the Senate, hold office for life and receive
Supreme Court decided (a) The compensations that may not be
prescription for legislative action in diminished during their continuance in
Article I, Section 1—requiring all office. If a court's judges do not have
legislative powers to be vested in a such attributes, the court may not
Congress consisting of a Senate and a exercise the judicial power of the
House of Representatives—and United States. Courts exercising the
Section 7—requiring every bill passed judicial power are called
by the House and Senate, before "constitutional courts." Congress may
becoming law, to be presented to the establish "legislative courts," which do
president, and, if he disapproves, to be not take the form of judicial agencies
repassed by two-thirds of the Senate or commissions, whose members do
and House—represents the Framers' not have the same security of tenure or
decision that the legislative power of compensation as the constitutional
the Federal Government be exercised court judges. Legislative courts may
in accord with a single, finely wrought not exercise the judicial power of the
and exhaustively considered United States. In Murray's Lessee v.
procedure. This procedure is an Hoboken Land & Improvement Co.
(1856)24, the Supreme Court held that a
22
ibid
23
INS v. Chadha, 462 US 919 24
Murray's Lessee v. Hoboken Land &
- 1983 - Supreme Court Improvement Co., 59 U.S. 272 (1856)
10
legislative court may not decide "a suit that our Constitution does not
at the common law, or in equity, or contemplate assumption, by one organ
admiralty," as such a suit is inherently or part of the state, of functions that
judicial. Legislative courts may only essentially belong to another.27
adjudicate "public rights.
Under the Indian Constitution, the
executive powers are vested with the
SEPARATION OF POWER President28 296 and Governors for
IN INDIA respective states.29 297 The President
is, therefore, regarded as the Chief
The Constitution of India shows that Executive of Indian Union who
the doctrine of Separation of Powers is exercises his powers as per the
accepted in India. Under the Indian constitutional mandate on the aid and
SEPARATION OF POWERS
which the President is closed with. of the superior courts can be removed
While exercising the power after the on an address from both Houses of
promulgation of emergency, he can Parliament.34
make laws for a state after the
The U.K. does have a kind of
dissolution of state legislature
separation of powers, but unlike
following the declaration of
United States it is informal.
emergency in a particular state, on
failure of the constitutional The U.K. is becoming increasingly
machinery. 301
33
concerned with the Separation of
powers, particularly because of Article
6 of the European Convention on
SEPARATION OF POWER
Human Rights which protects the
IN UK
SEPARATION OF POWERS
was the chief executive, chief judge They introduced the modern system of
and the sole legislator of the land. He administration and agricultural
concentrated all powers of the state, revenue, which still exists in both India
whether, judiciary, executive or and Pakistan. To run the affairs of the
legislature by himself. (Symonds, state, empire was divided into
1966, p.20)42 provinces and various departments.
Although there were heads of
Thus Sultans of Delhi were unrestraint
departments like, Khan-e-Saman
powerful in their personalities. Their
(imperial household), Dewans
whims and wishes were the laws of the
(imperial exchequer), Mir Bakhshi (the
land. Territory of the Sultan was
military pay department), Chief Qazi
divided into subas (provinces).
(judiciary), Sadrus Sudur (Religious
Provincial governors/subedars were
SEPARATION OF POWERS
48
Ibid, 86
16
interpret, construe, and apply the law, to question the wisdom of the
or that department of Government legislature in making a particular law
which is charged with the declaration if it has made it completely without
of what the law is, and its construction, transgressing the limitation of the
so far as it is written law.49 (The State constitution. Again if a law has been
V. Zia-ur-Rehman, PLD 1973 SC49) competently and validly made the
judiciary cannot refuse to enforce it
Concept of Trichotomy even if the result of it be to nullify its
The power it is said, is inherent in
own decisions. The legislature also has
judiciary by reason of the system of
every right to change, amend or clarify
division of powers itself under which,
the law if the judiciary has found that
as chief Justice Marshal put it, “the
the language used by the legislature
legislation makes, the executive
conveys an intent different from that
executes, and the judiciary construes,
which was sought to be conveyed by
the law” Thus the determination of hat
it. The legislature which establishes a
the existing law is in relation to
particular court may also, if it so
something already done or happened is
desires, abolish it.51 (The State v. Zia-
the function of judiciary while
ur-Rehman, PLD 1973, SC 49)
redetermination of what the law shall
be for the regulation of all future cases
falling under its provisions is the
function of the Legislature. 50
49
The State V. Zia-ur-Rehman, PLD 1973
SC49 commentary Vol. 1 (802) 2005
50
Justice Syed Shabbar Rizvi, Constitutional 51
The State v. Zia-ur-Rehman, PLD 1973, SC
law of Pakistan Text, Case Law and analytical 49)
19
57
PLD 1983 S.C. 457.
58
ibid
21
question of policy are all formulated with four judges took oath under the
by them. PCO and oath of office order 2007. On
the other hand, judges including chief
In the space, Supreme Court held that
justice who refused to take oath under
the impugned legislative ordinance
the Musharraf extra constitutional
could not be tested on the touchstone
steps were prevented from performing
of the principle of separation of
their duties. Most of the judges were
powers, but on the footing of the
sent to house arrest. Thus Abdul
competence of the Legislature to
Hameed Dogar became the chief
legislate on that subject. And as for the
justice of Pakistan. This new court
character of this Ordinance it did not
under the new chief justice validated
attempt to decide the question of the
the proclamation of emergency on the
guilt or innocence of any of the
SEPARATION OF POWERS
emergency period. In the case of Sind parliament and set the precedent of
High Court Bar Association (SHCBA), separation of powers.
Court announced on 31 July 2009 that
Musharraf was usurper and all his NINETEENTH
actions of post 3rd November 2007 CONSTITUTIONAL
were invalid and illegal. He had AMENDMENT AND
apprehension that he might be RESISTANCE OF SUPREME
disqualified as a candidate of COURT
presidential election from the ruling of Another case relevant to the separation
eleven member bench of Supreme of powers is the reaction of the
Court. It was also held by the court judiciary on the enactment of the
that since the judges could not be eighteenth constitutional amendment.
SEPARATION OF POWERS
“From this day, I pledge my loyalty to used with great care and
Canada and her majesty Elizabeth the circumspection and the judiciary has to
second, queen of Canada. I promise to extremely careful to see that behind
respect our country‟s rights and the beautiful veil of public interest an
freedoms, to uphold our democratic ugly private malice, vested interest…”
values, to faithfully observe our laws It was further held that, „it is to be
and fulfill my duties and obligations as used as an effective weapon in the
a Canadian citizen.” On the other hand armory of law for delivering social
the citizenship act of Pakistan 1951, justice to the citizens…it should not be
section 14(1)reads, “ if any person is used for suspicious products of
citizen of Pakistan, and is at the same mischief. It should be aimed at
time a citizen or a national of any other redressal of genuine public wrong or
SEPARATION OF POWERS
country renouncing his status as citizen public injury and not publicity oriented
or national thereof, cease to be a or founded on personal vendetta.” (15
citizen of Pakistan.” This disqualifies a March, 2013, the News International)
person from the membership of the
The appointment of the CEC and other
parliament. The article 63(1) reads as,
members of the ECP were
“A person shall be disqualified from
constitutionally made with the
being elected or chosen as…a member
notification on 16th July, 2012 and
of Majlis-e-Shoora (parliament), if,
16th June, 2011 respectively. These
under the section(c) of the same
appointments were not criticized by
article, “he ceases to be a citizen of
the other population of nearly 189 to
Pakistan, or acquires the citizenship of
120 million and the people‟s
a foreign state” (15 March, 2013, the
representatives in the parliament,
News International) 67
including the members of the
As for as the article 184(3) of the opposition party. Surprisingly, it was
public interest litigation case is highlighted by the person, who showed
concerned, it is pertinent to see his loyalty to the foreign country. 68
whether or not the instant case decided
Tahirul Qadri claimed the restructuring
by the court falls under the public
the entire electoral process when the
interest category. In this regards, the
next general elections were scheduled
interpretation of the Indian Supreme
to be held after the completion of five
Court is relevant to quote. It was held
years terms of the assembly. People of
in the Ashok Kumar Pandey v state of
Pakistan were ready to elect their
West Bengal that, “public interest
representative through election. Under
litigation is a weapon which has to be
67
ibid 68
ibid
26
such critical circumstances, duty lies court cleared the situation and proved
on the court to realize the facts about the balance of powers among the state
the person approaching the court, as a institution. The instant issue was the
bona fide and without his personal or memorandum in which Mansoor Ijaz,
political motives or any other indirect a Pakistani businessman settled in
concerns in the guise of public interest. America, wrote an article in financial
It was widely believed that Qadri was Times. It was exposed in the article
supported and backed by the non that he was asked by Hussain Haqqani
political entity to affect the democratic (Pakistani ambassador in America) to
process by obtaining the legal cover convey the message of President Asif
from the court. However, court Ali Zardari. The message was a
dismissed the petition on the ground request from president Zardari to
SEPARATION OF POWERS
that under the instant case, there was Admiral Mike Mullen. Zardari
no matter of fundamental rights requested the Mullen to convince
violation. Thus court proved its General Kayani (commander of
impartiality and augmented its role Pakistan armed forces) not to topple
against the political elite and the down the PPP government in Pakistan.
military. (15 March, 2013, the News
Judgment of the Supreme Court
International)
Petitions were filed before the
MEMO GATE SCANDAL69 Supreme Court under article 184(3). It
Memo gate scandal was one of the
accepted a petition filed by Nawaz
most critical issues that shook the very
Sharif, the leader of Pakistan Muslim
edifice of the government. It was the
League (N) and recommended to
direct tussle between the government
appoint a three member judicial
and the armed forces of Pakistan. It
commission to probe into the memo
was alleged that on 10 May 2011,
gate scandal. According to the findings
Hussain Haqqani, the then ambassador
of the commission released on 12th
to America, wrote a memorandum to
June, 2012, “it has been
the chairman of the joint chiefs of staff
incontrovertibility established that the
of the US Armed Forces, Admiral
Memorandum was authentic and Mr.
Mike Mullen. This caused tense
Haqqani was the originator and
relation between army and the
architect of the Memorandum.” 70
government. The intervention of the
Thus the long term political deadlock
69
Details of memo gate can be find in case, between army and government was
Watan party and others v Federation of averted by the mediation of the court.
Pakistan and others
70
PLD 2004 SC 583
27
The complete blames was put on Mr. The executive can affect the
Haqqani and thus the military and the functioning of the judiciary by making
civil government were safely rescued appointments to the office of Chief
from the case. Once again the Justice and other judges. One can go
precedent was set by the court as on listing such examples yet the list
institutional balance in the democratic would not be exhaustive.
system of Pakistan.
INDIRA NEHRU GANDHI V.
I.C. GOLAK NATH V. STATE
RAJ NARAIN
OF PUNJAB, in it was observed:
“The Constitution brings into existence It was observed:
different constitutional entities,
“That in the Indian Constitution there
SEPARATION OF POWERS