The 1973 Constitution of Pakistan lays out principles of the theory of “Separation of Powers” with a credible system of checks and balances within the governance structure of the country. The theory was proposed by a political philosopher, Montesquieu in the 18th century. The principles of this theory are integral to democratic values promoting accountability, protecting individual rights, and ensuring that governance operates within a framework of law and justice. The doctrine of separation of powers remains a foundational principle in many democratic systems, including the U.S. Constitution. The principle of the theory of separation of powers aims to protect individual liberties and to prevent the concentration of power by ensuring that no single branch can dominate the government. Pakistan is a democratic country. The political system of the country is divided into three branches; the legislative (National Assembly and Senate, which makes laws), the executive (the President and the Prime Minister, responsible for implementing laws) and the Judicial (the judiciary, with Supreme Court as the highest authority), with a clear division of powers among these branches.
The idea of separation of powers is included in the 1973 Constitution, which establishes a delineated border that prevents any branch of government from going bbeyond its power, but this core principle of democracy has been violated many a times in 77 years of Pakistan’s political history and in 51 years history of the present Constitution. According to Article 5(2) of the 1973 Constitution, any branch of the government that deviates from its designated role is considered as violation of the constitution. Similarly, a violation of Article 6 of the Constitution occurs when someone attempts or conspires to any act of suppression, diversion or suspension of any one of three branches of the government. The issues like political instability, executive overreach, and challenges to judicial independence in Pakistan continue to affect the implementation of these constitutional articles in the country.
The 1973 Constitution stands as the supreme law of the country, but the constitution has undergone several amendments that have shaped its trajectory, reflecting political, social and institutional changes. The judiciary-establishment nexus in the history of political sphere of Pakistan had not only weakened our democratic norms but also severely impacted the country’s economy and foreign policy, resulting in loss of billions of dollars through damages at international forums. It has also undermined the country’s democratic standards. Pakistan has seen multiple military coups d’états (1958, 1977, 1999) during its political history, each of which resulted in a military dictatorship that disrupted the separation of powers and concentrated power in the executive branch. Every military regime often sought to undermine judicial independence and legislative authority in Pakistan that reflects the country’s struggles with governance, military intervention, and attempts to establish a stable democratic framework.
While the framework for separation of powers exists in the constitution of Pakistan, its practical application remains a challenge for its implementation. The challenge is often comprised of political dynamics and institutional challenges in the country. So the question that rises so far is that what are the possible steps that are crucial to implement the separation of powers as proposed by Zulfiqar Ali Bhutto in the Constitution of 1973 for securing the strength and independence of the three branches of government for better adherence to this theory?
The current constitution of the country provides directions to develop a strong governance system for political and economic rule of law, but the parliament needs to reconsider the self-accountability mechanism given in Article 209 of the 1973 constitution. Article 209 creates the Supreme Judicial Council tasked with upholding integrity and accountability of judiciary institutions, making the concentration of power within the highest authority of the judiciary. The parliament must ensure strict accountability and system of checks and balances on powers of judiciary as the highest court of the country failed to maintain its independence and its status as custodian of the constitution during military regimes while they were under the oath to uphold the 1973 Constitution and protect fundamental rights of citizens. The majority of judges preferred allegiance to provisional constitutional orders (PCOs), introduced by martial law administrators and these judges not only legalized unconstitutional actions of dictators, but also granted them power to amend the constitution in some cases.
There is also a severe need of application of constitutional safeguards within the governance structure of Pakistan, in order to ensure the independence of governmental branches, and maintain the rule of law. These safeguards provide mechanisms within a constitution to prevent the abuse of power and ensure accountability by clearly delineating the functions and powers of the three branches of the state to prevent any one branch from overstepping its authority. Its the core duty of all three branches of the government to ensure these constitutional safeguards in order to avoid the consequences of demolishing the separation of powers within the governance structure, that the country has already experienced in the history of its political sphere.
The constitution of Pakistan also needs to be rigid in terms of the procedure for its amendments by setting stringent processes for amending the constitution to prevent hasty changes that could undermine democratic principles of the country. The experiences of political instability and military rule in the past have led to a desire for a more stable and rigid constitutional framework, fostering a culture that values constitutional supremacy and democratic principles of the country. By ensuring these steps, Pakistan can better adhere to the theory of separation of power and strengthen its democratic institutions in its true letter and spirit.
Theory of separation of powers: Is it possible in Pakistan?
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The 1973 Constitution of Pakistan lays out principles of the theory of “Separation of Powers” with a credible system of checks and balances within the governance structure of the country. The theory was proposed by a political philosopher, Montesquieu in the 18th century. The principles of this theory are integral to democratic values promoting accountability, protecting individual rights, and ensuring that governance operates within a framework of law and justice. The doctrine of separation of powers remains a foundational principle in many democratic systems, including the U.S. Constitution. The principle of the theory of separation of powers aims to protect individual liberties and to prevent the concentration of power by ensuring that no single branch can dominate the government. Pakistan is a democratic country. The political system of the country is divided into three branches; the legislative (National Assembly and Senate, which makes laws), the executive (the President and the Prime Minister, responsible for implementing laws) and the Judicial (the judiciary, with Supreme Court as the highest authority), with a clear division of powers among these branches.
The idea of separation of powers is included in the 1973 Constitution, which establishes a delineated border that prevents any branch of government from going bbeyond its power, but this core principle of democracy has been violated many a times in 77 years of Pakistan’s political history and in 51 years history of the present Constitution. According to Article 5(2) of the 1973 Constitution, any branch of the government that deviates from its designated role is considered as violation of the constitution. Similarly, a violation of Article 6 of the Constitution occurs when someone attempts or conspires to any act of suppression, diversion or suspension of any one of three branches of the government. The issues like political instability, executive overreach, and challenges to judicial independence in Pakistan continue to affect the implementation of these constitutional articles in the country.
The 1973 Constitution stands as the supreme law of the country, but the constitution has undergone several amendments that have shaped its trajectory, reflecting political, social and institutional changes. The judiciary-establishment nexus in the history of political sphere of Pakistan had not only weakened our democratic norms but also severely impacted the country’s economy and foreign policy, resulting in loss of billions of dollars through damages at international forums. It has also undermined the country’s democratic standards. Pakistan has seen multiple military coups d’états (1958, 1977, 1999) during its political history, each of which resulted in a military dictatorship that disrupted the separation of powers and concentrated power in the executive branch. Every military regime often sought to undermine judicial independence and legislative authority in Pakistan that reflects the country’s struggles with governance, military intervention, and attempts to establish a stable democratic framework.
While the framework for separation of powers exists in the constitution of Pakistan, its practical application remains a challenge for its implementation. The challenge is often comprised of political dynamics and institutional challenges in the country. So the question that rises so far is that what are the possible steps that are crucial to implement the separation of powers as proposed by Zulfiqar Ali Bhutto in the Constitution of 1973 for securing the strength and independence of the three branches of government for better adherence to this theory?
The current constitution of the country provides directions to develop a strong governance system for political and economic rule of law, but the parliament needs to reconsider the self-accountability mechanism given in Article 209 of the 1973 constitution. Article 209 creates the Supreme Judicial Council tasked with upholding integrity and accountability of judiciary institutions, making the concentration of power within the highest authority of the judiciary. The parliament must ensure strict accountability and system of checks and balances on powers of judiciary as the highest court of the country failed to maintain its independence and its status as custodian of the constitution during military regimes while they were under the oath to uphold the 1973 Constitution and protect fundamental rights of citizens. The majority of judges preferred allegiance to provisional constitutional orders (PCOs), introduced by martial law administrators and these judges not only legalized unconstitutional actions of dictators, but also granted them power to amend the constitution in some cases.
There is also a severe need of application of constitutional safeguards within the governance structure of Pakistan, in order to ensure the independence of governmental branches, and maintain the rule of law. These safeguards provide mechanisms within a constitution to prevent the abuse of power and ensure accountability by clearly delineating the functions and powers of the three branches of the state to prevent any one branch from overstepping its authority. Its the core duty of all three branches of the government to ensure these constitutional safeguards in order to avoid the consequences of demolishing the separation of powers within the governance structure, that the country has already experienced in the history of its political sphere.
The constitution of Pakistan also needs to be rigid in terms of the procedure for its amendments by setting stringent processes for amending the constitution to prevent hasty changes that could undermine democratic principles of the country. The experiences of political instability and military rule in the past have led to a desire for a more stable and rigid constitutional framework, fostering a culture that values constitutional supremacy and democratic principles of the country. By ensuring these steps, Pakistan can better adhere to the theory of separation of power and strengthen its democratic institutions in its true letter and spirit.
Zainab Shehzadi
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