Blurring the boundaries

Separation of power

The Supreme Court, in its recent judgment on the constitutionality of 18th and 21st amendment, seems to blur the boundaries between the executive, the legislature, and the judiciary. In other words, the court appears to relinquish its judicial power to some extent before the executive and the legislature allowing the executive to conduct trials of civilians and the legislature to enact a law offending fundamental rights ie, right to fair trial and due process of law. This decision seems to ignore the old-age wisdom enshrined in the constitutional doctrine of separation of powers guaranteeing the fundamental rights to the citizens against tyranny of a state.

Since 1947, the separation of power between the three organs of the state has been a key question in Pakistan. The legislature, the executive, and the judiciary have been struggling to secure their due role in the exercise of the state power

Historically, the doctrine traces back to Plato’s laws where he argues for the division of governmental powers to avoid tyranny and guarantee political stability. John Locke developed this concept further. He argued for the separated legislative power to make the established law, the authorised judges to decide the rights of the subjects according to the standing laws, and the executive powers to see the execution of the laws. The modern constitutional theory of separation of powers is commonly ascribed to the French philosopher Montesquieu, who analysed the doctrine in the context of the British constitution of the early eighteenth century. Montesquieu’s theory provided the basis for discussion in James Madison’s discourse on the separation of powers in The Federalist Papers. Alexander Hamilton disagreed with Madison and argued for an independent judiciary with limited powers. However, Madison stressed an independent judiciary with powers to strike down unconstitutional acts of the legislature.

Since 1947, the separation of power between the three organs of the state has been a key question in Pakistan. The legislature, the executive, and the judiciary have been struggling to secure their due role in the exercise of the state power. This ongoing struggle between these branches actually promotes a constitutional orientation (that this doctrine highlights a focus on the constitution in ways that promote the rule of law, balance of power, and the fundamental rights). In the more recent past, the issue of the separation of powers came into focus when President Musharraf removed Chief Justice Iftihar Chaudhary in 2007 and sacked sixty other judges from their position. This onslaught against the judiciary initiated ‘the lawyers movement’ resulting in the restoration of the judges in 2009. Thereafter, we see a constant contest for power between the three branches of the government. The debate on the separation of powers in Pakistan started from Moulvi Tamizudin Khan’s case (PLD 1955 Sind High Court 96) when the executive dissolved the constitutional assembly and thus interfered in the legislative function of the parliament. This case raised a question about the independence of the judiciary and the supremacy of the legislature. In recent years, superior court decisions in Baz Muhammad Kakar’s case (PLD 2012 SC 923), Mubashar Hassan’s case (PLD 2012 SC 265), Nadeem Ahmad’s case (PLD 2010 SC 1165), suo-moto case No.10 of 2007 (PLD 2008 SC 673) and Suo-moto Case No.23 of 2012 (Anita Turab Case) fuelled this debate further.

In the more recent past, the issue of the separation of powers came into focus when President Musharraf removed Chief Justice Iftikhar Chaudhary in 2007 and sacked sixty other judges from their position

The recent judgment of SC declaring the military courts constitutional has, once again, brought the issue of separation of powers in a public and constitutional domain. This time, however, the SC seems to allow the legislature and the executive to interfere into its constitutional domain (temporarily — till 2017). The SC appears to keep security of the State above other considerations like the rule of law, independence of the judiciary, separation of powers, obligations of the state under international law, and fundamental rights, etc. The Court has further acknowledged failure of the civil justice system in awarding punishment to terrorists.

Some argue that this decision brings the three branches of the government on the same page helping to combat terrorism in Pakistan. Some contend that this judgment is like a win-win situation for all — as the executive is happy to get the military courts, the legislature is happy that the amendments founds its way into the constitution without interruption by the judiciary, the judiciary is satisfied that it retains its ultimate authority to review acts of the executive and the legislature, and the people are happy that the terrorist will face the music in days. It could be argued that a broken civil justice system cannot be a valid ground for further breaking the civil justice system. Ultimate solution lies in reformation of each institution including the judiciary. Thus, terrorism can be effectively tackled without blurring the boundaries and thus violation of state obligations towards its citizens and international community. Long term peace and stability comes through elimination of corruption, disparity, and discrimination in the society and protection basic rights of the people.