Academic journal article South Asian Studies

An Evaluation of Separation of Powers: A Case Study of Pakistan (2007-2013)

Academic journal article South Asian Studies

An Evaluation of Separation of Powers: A Case Study of Pakistan (2007-2013)

Article excerpt

Introduction

The liberal democracies in world have the tradition of power sharing among the state institutions. People's liberty is ensured when powers of the government are divided between executive, judicial and legislative branches. It is hard fact that political managers of Pakistan could not decide to establish and implement any of the government system. Theoretically, they announced to run the state under Islamic democracy but, practically they adopted neither democracy nor Islam. They shaped their own system to manage the affairs of state. Powers remained personality centered instead of functioning through separate institutions. The constitutions, adopted in Pakistan provide the separate role and function of the three institutions, but in reality, judiciary remained passive to the executive. Leading to this callous observation, it can be concluded that Pakistan's Supreme Court has followed the path of least resistance and least fidelity to constitutional principles.the courts has been the military's handmaiden in extra - constitutional assaults on the democratic order". (Rajshree, 2012, p.1-7)

Practically, the ruling elites, somehow or the others, managed to make executive branch more powerful than the legislature and judiciary. According to Niaz (2012), since partition of India in 1947, the rulers in Pakistan have been treating the state with support of civil bureaucracy as their personal estate. He further argued that the manners, in which the executive exercised power and authority in Pakistan, have undermined the institutional norms and principles left by the British in the sub-continent. (Niaz, 2012, p. 1)

There are few cases when judiciary asserted its role as an independent institution. During the period of 2007-2013 the relationships between judiciary and executive became very tense. President suspended the Chief Justice on his suo motu actions. As a reaction, a powerful mass movement started to restore the chief justice. Resultantly, chief justice was restored and judiciary became so powerful institution that it convicted one Prime Minister. This paper highlights four cases to understand the position of separation of powers in Pakistan since the judicial independence. The factors supported the independence of judiciary are also discussed. The first part of this paper deals with the philosophical foundation of the concept, separation of powers. The second part consists on the historical overview of the separation of powers in Pakistan, while the third one is related to the most relevant cases of the separation of powers after the restoration of judiciary.

The Concept 'Separation of Powers'

Generally, Governments have three broader powers: the judicial, the executive and the legislature. These powers are performed by three different branches of government: Executive, Legislature and Judiciary. When power of the government is broadly divided into three spheres, and activities of the government are performed by these three branches separately, it is called separation of powers. According to Axford and other (1997), "It is the concept that maintains that three powers/elements of government (executive, legislature, and judiciary) should be separated in role and responsibility and that such a separation will ensure good and just government". (Axford, Browning and Turner, 1997, p. 290) This concept rests on democratic values that all branches of government are bound by the rule of law and defined powers with competencies. (Resende, 2011, p.5)

Philosophical Foundation of Separation of Powers

Since ancient times, Greek philosopher Aristotle (350 B.C) mentioned that the powers of the government rest with three branches. He discussed in his work 'Politics' "that there are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it, if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these three elements. …

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