SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

SEPARATION OF POWERS AND

ITS IMPLEMENTATION IN
PAKISTAN
RESEARCH THESIS

JUNE 9, 2023
SYED MUHAMMAD RAHEEM SHAH BL-1199
SYED AMMAR UL HASNAIN SHAH BL-1188

0|Page
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

SYED MUHAMMAD RAHEEM SHAH (BL-1199)

AMMAR UL HASNAIN SHAH (BL-1188)

Research Project

DR. TEHREEM FARRUKH

Co-Chairman Department of Law

Shaheed Zulfiqar Ali Bhutto University of Law

09.06.2023

1|Page
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

DECLARATION
We, Syed Muhammad Raheem Shah and Ammar ul Hasnain Shah as a result of this, declare

that the information in this document is true and correct. We believe it contains no material

we would not want to include in our research publication. Furthermore, we acknowledge

that this work was conducted under the supervision of our instructor Dr. Tehreem Farrukh.

Syed Muhammad Raheem Shah BL-1199……………………………

Ammar Ul Hassnain Shah BL-1188………………………….

DEDICATION
We dedicate this research to our Parents for their endless love, support encouragement.

Faculty Members at the Department of Law, Shaheed Zulfiqar Ali Bhutto University of Law,

and to every single person who has been a helping hand, guide, and mentor. Many of them

have remained a source of inspiration for us at every stage of our university studies. We have

learned a lot from them and will strive to pass on the knowledge we have gained to our

respected fellows. Moreover, I dedicate this work and special thanks to Miss Masooma Tariq

who helped us throughout the entire research project.

ACKNOWLEDGEMENT
We would like to express our deepest gratitude to Dr. Tehreem Farrukh for her invaluable

guidance, support, and expertise throughout the entire research process. Her insightful

feedback and constructive criticism have greatly contributed to the quality and depth of this

study.

2|Page
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

We would also like to extend our heartfelt appreciation to our family and friends who have

stood by us during this research journey. Your patience, understanding, and encouragement

have been instrumental in keeping us motivated and focused.

To all those who have played a part, big or small, in the completion of this research project,

we extend our deepest appreciation and gratitude. Thank you for bearing with us, embracing

our quirks, and providing much-needed laughter and light-hearted moments along the way.

Your presence and support have made this research journey not only academically fulfilling

but also incredibly memorable.

3|Page
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

TABLE OF CONTENTS
TITLE ................................................................................................................................................... 1

DECLARATION ......................................................................................................................................... 2

DEDICATION ............................................................................................................................................ 2

ACKNOWLEDGEMENT........................................................................................................................... 2

CHAPTER BREAKDOWN ....................................................................................................................... 6

ABSTRACT................................................................................................................................................. 7

CHAPTER 1 ............................................................................................................................................... 8

INTRODUCTION ........................................................................................................................................ 8

RESEARCH QUESTIONS .......................................................................................................................... 9

RESEARCH METHODOLOGY .................................................................................................................. 9

LIMITATION ........................................................................................................................................... 10

LITERATURE REVIEW .......................................................................................................................... 10

CHAPTER 2: INTRODUCTION TO SEPARATION OF POWERS ............................................... 14

Historical Development and Evolution of Separation of Powers: ................................................................ 14

Understanding of the concept of Separation of powers: .................................................................................. 16

Separation of powers in Pakistan: ............................................................................................................................. 18

CHAPTER 3: DOCTRINE OF CHECKS AND BALANCES .............................................................. 21

System of Checks and Balances: ................................................................................................................................. 21

Relationship between separation of powers and system of checks and balance: ................................. 23

CHAPTER 4: INDEPENDENCE OF STATE ORGANS .................................................................... 24

Constitutional provisions related to the powers, and roles of three branches: ..................................... 24

Extent of independence of state organs:................................................................................................................. 29

Potential influences that may compromise independence: ............................................................................ 31

CHAPTER 5: OVERLAPPING OF THREE BRANCHES OF GOVERNMENT ............................. 32

4|Page
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

Constitutional provisions that allow overlapping between branches: ...................................................... 32

Interaction of State Organs: ......................................................................................................................................... 35

REFERENCES ......................................................................................................................................... 37

5|Page
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

CHAPTER BREAKDOWN
SYED MUHAMMAD RAHEEM BL-1199 AND AMMAR UL HASNAIN SHAH BL-1188

Chapter 1: It provides the introduction, problem statement, objectives, and research

questions of the study, literature review, scope and limitations of research, research

methodology and outlines of chapters.

SYED MUHAMMAD RAHEEM BL-1199

Chapter 2: It describes the historical development, evolution of the concept of separation of

powers, definitions, understanding of the separation of powers and overview of the

separation of powers in Pakistan.

Chapter 3: It articulates the doctrine of check and balance, relationship between separation

of powers and check and balances and analysis of how check and balance operate within

three branches of government in order to prevent abuse of power.

AMMAR UL HASNAIN SHAH BL-1188

Chapter 4: It outlines the constitutional provisions related the powers, and roles of three

branches and their extent of independence and it delineates discussion of any potential

influences that may compromise independence.

Chapter 5: It describes the analysis of the constitutional provisions that allow overlapping

between branches, examination of the instances where all branches interact or share

responsibilities and discussion of the implications.

6|Page
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

ABSTRACT
This research project aims to address the significant gap in understanding the

implementation of the principle of separation of powers and its impact on the independence

and functioning of the three branches of government in Pakistan. The study explores the

extent to which the implementation of separation of powers ensures the independence of

the executive, legislative, and judicial branches, as outlined in the constitution of Pakistan.

The research investigates the potential strain and conflicts arising from the overlapping

powers of these branches, which have resulted in constitutional crises since the adoption of

the 1973 constitution. The study seeks to comprehensively assess the effectiveness of the

separation of powers in Pakistan and its implications for the stability and functioning of the

government.

The research questions focus on defining the concept of separation of powers, understanding

how the principle of checks and balances prevents the abuse of power within the three

branches of government, and examining the extent to which the implementation of

separation of powers ensures their independence. Additionally, the study explores the

enabling provisions within the constitution that allow for the overlap between branches and

investigates how this has contributed to constitutional crises.

By shedding light on the intricacies of the implementation of separation of powers in

Pakistan, this research aims to contribute to a deeper understanding of the challenges faced

by the government in maintaining a balance of power. The findings of this study can provide

valuable insights for policymakers, legal practitioners, and scholars interested in the

functioning of democratic systems and governance structures in Pakistan and beyond.

7|Page
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

CHAPTER 1

INTRODUCTION
The concept of separation of powers is a fundamental principle in modern democratic

systems, aimed at preventing the concentration of power in a single governing body and

ensuring a system of checks and balances. It divides governmental authority into three

distinct branches, namely the executive, legislative, and judicial branches. Each branch

possesses its own unique powers and functions, providing a system of accountability and

safeguarding against the abuse of power.

This research focuses on the implementation of the separation of powers in Pakistan, a

country with a parliamentary democratic system. Pakistan's Constitution provides

trichotomy of power. The executive branch, led by the Prime Minister, holds the power to

govern, while the legislative branch, consisting of the National Assembly and Senate, is

responsible for enacting laws. The judicial branch, headed by the Supreme Court, ensures

the protection of citizens' rights and interprets the Constitution.

However, the practical implementation of the separation of powers in Pakistan faces various

challenges. Political dynamics, institutional capacity, and historical influences have affected

the extent to which the three branches operate independently and effectively. Issues such as

executive dominance, weak legislative oversight, and judicial independence have often been

subject to scrutiny and debate.

This research aims to provide a comprehensive analysis of the constitutional framework and

the practical challenges associated with the separation of powers in Pakistan. It explores the

historical context, constitutional provisions, and relevant case law to understand the

8|Page
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

dynamics of power-sharing among the three branches of government. Additionally, it

examines the impact of these dynamics on governance, democracy, and the protection of

individual rights.

RESEARCH QUESTIONS
• What is meant by separation of powers?

• How does the principle of checks and balances prevent the abuse of power within the

three branches of government?

• To what extent did the implementation of separation of powers ensure the

independence of the three branches of government in Pakistan?

• How does the constitution of Pakistan enable the three branches of government to

overlap with each other?

RESEARCH METHODOLOGY
This qualitative study examines the concept of separation of powers and its implementation

in Pakistan. By adopting a qualitative approach, the research will seek to gain in-depth

insights into how three branches works in Pakistan, their overlapping between each other,

extent of independence and how judicial activism has affected the separation of powers. The

purpose of this research study is to obtain a comprehensive understanding of the underlying

causes and consequences of the non-implementation of absolute separation of powers in

Pakistan. Qualitative research is preferably designed for collecting multifaceted contextual

information and finding a variety of perspectives and experiences regarding our research

topic.

9|Page
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

LIMITATION
One limitation of this research is the availability of data and the potential challenges in

obtaining accurate and comprehensive information specifically related to our topic;

separation of powers and its implementation in Pakistan. Another factor that may impact the

research is the constraint of time and resources. The findings of this study are focused on

Pakistan.

LITERATURE REVIEW
This literature review highlights the diverse range of research conducted on the

implementation of the separation of powers in Pakistan. Scholars have analyzed the

constitutional framework, examined the roles and interactions of the branches, identified

challenges, explored judicial review and independence, and proposed reforms. By

synthesizing this body of literature, we gain a comprehensive understanding of the

complexities and dynamics of the separation of powers in Pakistan, providing valuable

insights for policymakers and researchers seeking to strengthen democratic governance in

the country.

Akash Trikha and Anwesha Tripathy (2020) explain that through centuries of political

and philosophical evolution, the principle of separation of powers has evolved. The history

can be traced back to the 4th Century BC when Aristotle identified the three government

agencies; The General Assembly, Police and the Judiciary. A somewhat similar system existed

in Republican Rome, consisting of public assemblies, senates and officials, all operating on

the principle of checks and balances. Following the fall of the Roman Empire,

10 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

Europe became fragmented into nation-states and from the end of the Middle Ages until the

18th Century the dominant governmental structure consisted of a concentrated power

residing in the hereditary ruler, the only exception was the development of the English

parliament in the 17th Century. The doctrine of three branches of government reappeared

with birth of the parliament.

Muhammad and Ayaz (2016) describes that in 1748, Montesquieu formulated the modern

version of this theory. He explained that in every government there are three kinds of

powers: the legislative, the executive and the judicial. Laws are made under the legislature

branch of the government; policies, both internal and external are executed by the executive

power. The third is judicial power, which is exercised by the separate body to interpret the

laws and check the authority of the executive. Montesquieu relates the liberty of the people

with separation of powers.

Sultana (2012) describes that ‘Check’ refers to the capability, right and duty of each organ

to administer activities of the other organs. Similarly, ‘balance’ refers to each organs capacity

to regulate its authority so as to curtail the excessive authority of the others. The checks and

balances system distributes power instead of concentrating it in one person or branch. It

prevents one branch from ever gaining too much power. These checks and balances protect

the people from authoritarian or arbitrary rule.

Muhammad and Ayaz (2016) describe that there is no pure and absolute Universal Model

of separation of powers. The court of South Africa in 1996 while clarifying the objection on

the constitution explained that “Under the Democratic systems of government it is general

11 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

practice that checks and balances result in the imposition of restraints by one branch of

government upon another. Thus, there is no absolute separation.”

Abeeda Qureshi and Saima Bazmi (2021) describes that according to the constitution of

Pakistan, the Judiciary and the Administration should be separated from each other. No

authority should encroach on the jurisdiction of others except where allowed by the law. The

powers of legislature and executive are enshrined in Article 7 of the 1973 constitution.

Whereas, the power of judiciary is explained in part VII “The Judicature” of the 1973

constitution. The Executive cannot use judicial powers just as the Judiciary is not able to use

administrative powers.

In Qumber’s (2016) study, prominent Pakistani scholars have argued that the 1973

Constitution of Pakistan clearly set the boundaries for the three main branches of

government defining the powers of the Executive, the Judiciary and Legislature. The aim is

to avoid any confrontation in the system.

Muhammad Ikram Ullah Khan (2007) points out that unlike the constitution of 1956, the

constitution of 1962 provided the presidential system, which is generally based on the

separation of powers. But the presidential system adopted under the 1962 constitution,

some powers were overlapping. The then President Ayub, maneuverer to concentrate the

powers in his hand. Khan (2009) argued that “the president under the constitution was like

the clock tower of Faisalabad (third largest city of Pakistan) where all bazaars converged.”

In the eighteenth amendment, ninety-eight articles were amended with the insertion of new

articles also, the prime achievement was the empowering of the provinces by abolishing the

concurrent list (which had given the overlapping powers to the federal legislature).

12 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

Saima Bazmi (2022) describes in her journal that the 1973 constitution of Pakistan

provides the opportunity to implement the doctrine of separation of power but the dogma

has never been implemented according to its true spirit or the system of check and balances

prevailed in the country. The key success of democracy requires the balance of power among

the institutions of Pakistan. If one institution dominates the other it will not be probable to

maintain democratic values.

13 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

CHAPTER 2: INTRODUCTION TO SEPARATION OF POWERS

(Syed Muhammad Raheem Shah BL-1199)

Historical Development and Evolution of Separation of Powers:

The concept of separation of powers grew out of centuries of political and philosophical

development. This idea has its earliest historical roots in ancient Greece and was part of the

Roman Constitution which was adopted widely in the Roman Republic. The history can be

traced back to the 4th Century BC when Aristotle identified the three government agencies;

The General Assembly, Police and the Judiciary 1. After the decline of the Roman Empire,

Europe experienced a fragmentation into nation-states. From the conclusion of the Middle

Ages until the 18th Century, the prevailing form of government entailed a centralized

authority vested in the hereditary ruler, except for the emergence of the English parliament

in the 17th Century. The concept of three branches of government resurfaced with the

establishment of parliament. However, this theory was not developed by Montesquieu

rather ancient Athens; Plato and Aristotle recognized that a government's foundation for

protecting an individual's freedom was one that forbade the accumulation of power in one

body. At the time of Edward I (1272-1307), the separation of powers was emerged in

England, with the appearance of Parliament, the Council of King and the courts. 2

The modern English political theorist John Locke (1632-1704) also in his book; Two

Treatises of Government (1689) recognized three classes of power which he styled as

legislative, executive, and federative. Executive power referred to the work of internal

1.(Akash Trikha and Anwesha Tripathy, 2020)

2 https://www.lawteacher.net/free-law-essays/constitutional-law/historical-development-of-separation-of-
powers-constitutional-law-essay.php
14 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

affairs, including the judges the justices of the peace, who at this time besides judicial duties

controlled almost the whole of local administration. Federative power had to do with

external affairs; "war and peace, leagues and alliances." But while he considered these three

powers to be distinct, Locke did not consider it necessary to place them in the hands of

independent authority. In 17th century England, the struggles that culminated in the glorious

revolution of 1688 reflected in part the struggle to establish a separation of power between

king and the common law courts. 3

Later on, Montesquieu was looking for principles of constitutional law, applicable to all

forms of governments, which prevent decay and preserves people’s liberty. This pursuit led

him travelled extensively through Europe and tarried for three years at England (1729 to

1731) where he closely studied the English Constitution. In England, he realised to have

found the government’s principles. One of the most valuable attributes of his book was the

description of the separation of powers by making an analogy with the Constitution of

England. In his book; Spirit of Laws (1748); he referred to English form of government

where laws were made by parliament, enforced by the crown, more likely by the crown’s

ministers, and interpreted as well as applied by the courts. Montesquieu’s theory provided

basis for Madison’s discussion of separation of powers in the federalist paper. A

constitutional system of the separation of powers has come to be known as Madison model

of government. An underlying premise of the model is that there is natural division of

governmental power into the legislative, executive and judicial categories. 4

3 Comparative constitutional law by Hamid Khan and M,Waqar Rana page, 152
4 Comparative constitutional law by Hamid Khan and M,Waqar Rana page ,153
15 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

However the case of Marbury vs. Madison (1803) also played a significant role in the

development and understanding of the concept of separation of powers particularly in the

context of the United States. It established judicial review, giving the judiciary the power to

interpret the Constitution and declare laws or executive actions unconstitutional. The case

clarified the limits of executive authority and emphasized the importance of an independent

judiciary. It shaped constitutional interpretation and reinforced the judiciary's role as a

check on the other branches of government.

Understanding of the concept of Separation of powers:

The concept of separation of powers is a fundamental principle in democratic systems that

aim to distribute and balance power among different branches or institutions of government.

It is based on the idea that concentrating power in a single authority can lead to tyranny and

abuse of authority. In separation of powers, each branch enjoys a considerable degree of

independence from the other branches. Montesquieu, a French philosopher, is often

credited with popularizing the concept of separation of powers in his 1748 book “The Spirit

of Laws.” argued that in order to prevent tyranny, the powers of government should be

separated and balanced against each other. 5 . According to Montesquieu, the separation of

powers involves the division of government functions among three distinct branches: the

legislative, executive, and judicial branches.

Montesquieu stated the importance of separation of powers in these words: “When the

legislative and executive powers are united in the same person, or in the same body or

Magistrate, there can be no liberty; because apprehensions may arise, lest the same monarch

5 Montesquieu Espirit deslois (The spirit of laws)

16 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

or senate should enact tyrannical laws, to execute them in a tyrannical manner…there would

be an end of everything, were the same man or the same body, whether of the nobles or of

the people, to exercise these three powers, that of enacting laws, that of executing the public

resolutions, and of trying the causes of individuals.”6

Madison in Federalist No. 47 described, “the accumulation of all powers, legislative,

executive, and judiciary, in the same hands, whether of one, a few, or many, and whether

hereditary, self-appointed, or elective, may justly be pronounced the very definition of

tyranny.” This statement reflects the core idea of separation of powers, which is to ensure

that no single person or group has too much power over others7

Hans Kelsen, a prominent legal scholar and philosopher, who is best known for his work on

legal positivism and the legal theories. While he did not develop the concept of separation of

powers but provided significant contributions to the understanding and interpretation of

this principle. According to Hans Kelsen (1881-1973), the primary objective of the

separation of powers is to prevent the concentration of power in any single entity or branch,

thereby safeguarding against tyranny and abuse. He believed that the key aspect of

separation of powers is not the strict division of functions, but rather the existence of a

system of checks and balances, which ensures that no branch becomes dominant and can

control the others.

6 Harmon, 2000, p.281-282).

7 Federalist No,47
17 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

Separation of powers in Pakistan:

Throughout its history, Pakistan has been an executive dominated state. Pakistan's

constitutional system is often characterized as having a blend of both separation of powers

and fusion of powers. The principle of separation of powers is not expressly enunciated in

constitution of Pakistan like USA, Australia etc. it is a concept inferred from the principles

underlying the constitution of Pakistan itself8. In practice, the executive branch, headed by

the Prime Minister, has historically held significant influence and power in Pakistan. This has

sometimes led to a fusion of powers, with the executive branch exerting considerable control

over the legislative and judicial branches.

In Pakistan also, the parliamentary form of government was adopted under the constitution

of 1973. In a parliamentary form of government particularly owing to the party system, there

is no scope for real separation of powers between the executive and legislative branch 9. In

a parliamentary form of government the people elect the legislature and the elected

legislature then chooses the executive from among the members of national assembly who

simultaneously plays both roles of executive and legislature which reflects the

characteristics of fusion of power.

The implementation of separation of powers in Pakistan has been undermined by the

government and judiciary, who often invoke the doctrine of necessity to justify their abuses.

Despite the hope that this doctrine would be discarded, political parties continue to exploit

it for their own gain. Article 89 of constitution empowers the President of Pakistan

8 Comparative constitutional law by Hamid Khan and M,Waqar Rana page, 152
9 Comparative constitutional law by Hamid Khan and M,Waqar Rana page, 152
18 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

(executive) to act as legislature in order promulgate ordinance in specific circumstances by

bypassing the whole legislative procedure while Article 70 of constitution provides a

comprehensive procedure that reflects the true essence of democracy; it emphasizes the

vital roles played by both the upper and lower houses of parliament and underscores the

importance of engaging in extensive debates on proposed legislation that will govern our

nation's citizens. Moreover, it serves as a reminder of the value of inclusivity, the significance

of opposition participation, and the collective wisdom that emerges from such deliberations.

Following this prescribed legislative procedure is essential to safeguard the interests of

diverse stakeholders and to address any potential flaws in the proposed bills that may not

be immediately apparent. Regrettably, some members of our political elite seem unwilling

to subject themselves to this scrutiny and are exploiting Article 89 to resurrect the principle

of the doctrine of necessity.

Constitution of Pakistan under Articles 183 and 199 empowers judiciary without

accountability. Judiciary has power to check executive and legislative actions and make them

unconstitutional but the executive and legislature cannot review judicial actions. Article 58

(2) (b) which had been used in the past to sack elected governments had been undone by the

18th Amendment but elected governments are still helpless before judicial activism. The

judiciary began using Article 184 (3) to send home elected PMs. During the last decade, two

out of three prime ministers have been sent home by judges. 10 The judiciary's excessive

concentration of power drew negative attention on the international scale, In September

2011; a high-level mission of the International Commission of Jurists (ICJ) came to

10 https://www.thenews.com.pk/amp/1059720-judicial-imperialism-threat-to-democracy
19 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

Pakistan and met serving and retired judges, members of the bars and politicians. The

mission declared the Supreme Court was “exceeding the limits of use of suo motu powers”

and there was “no transparency and a clearly laid down criteria in allocating cases to

different benches”.

Next year, in 2012, the president of the International Crisis Group Justice Louise Arbour

visited Pakistan. Her comments were no less poignant. She declared that judges have become

“intoxicated with their own independence” and predicted that the current direction of the

court “threatens to upend the very democratic order that restored them to the bench”.

Aitzaz Ahsan, who is a renowned politician and a well reputed lawyer, however, argues that

our constitution is “hybrid” and there exists a stark difference between theory and practice.

In Pakistan, the Judiciary acts beyond their territorial jurisdiction and enjoys a far superior

status. They have such an enormous equity of tenure that the judges can only be removed

after a decision by their peers, or by the Supreme Judicial Council made up of other judges,

and to date no judge has actually been removed, although one or two have been forced to

resign. Hence, judges remain an island unto themselves; they have stretched the concept of

‘independence of judiciary’ to such an extent that they have become independent, not under

the constitution but of the constitution.

20 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

CHAPTER 3: DOCTRINE OF CHECKS AND BALANCES

(Syed Muhammad Raheem Shah BL-1199)

System of Checks and Balances:

Polybius, an eminent ancient scholar, analyzing the Roman Empire, came to the conclusion

that it was made of a mixture of aristocracy, monarchy and despotism. He was the first

analyst to say that despotism is prevalent only when one power is concentrated in one single

hand. To check the despotic tendencies, he introduced the system of checks and balances in

the organs of state; the executive, the legislative and the judiciary. Later, a large number of

philosophers propounded the concept of the theory of separation of powers and of putting

checks and balances within the systems of governance11. The system of checks and balances

is a fundamental aspect of democratic governance that aims to prevent the abuse of power

and to maintain accountability among different branches of government. It ensures that no

single branch becomes too dominant or oversteps its authority. The Checks and Balances

system provides each branch of government with individual powers to check the other

branches and prevent any one branch from becoming too powerful. For example, In the

United States; Congress has the power to create laws, the President has the power to veto

them, and the Supreme Court may declare laws unconstitutional. Congress consists of two

houses: the Senate and the House of Representatives, and can override a Presidential veto

with a 2/3 vote in both houses.12

11 https://www.dawn.com/news/1733693/the-missing-link-in-pakistani-system
12https://www.law.cornell.edu/wex/separation_of_powers_0#:~:text=The%20Checks%20and%20Balances

%20system%20provides%20each%20branch%20of%20government,branch%20from%20becoming%20too
%20powerful.
21 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

THE FEDERALIST PAPER:

In Federalist No. 51, James Madison discusses the need for a system of checks and balances

to safeguard against the concentration of power. Madison explains how the separation of

powers, along with checks and balances, prevents tyranny by ensuring that each branch has

the means to restrain and balance the actions of the other13. Madison emphasized that each

branch should have the means to check the others and prevent an accumulation of power.

He wrote, "Ambition must be made to counteract ambition" to ensure that no single branch

becomes dominant.

In this system, each branch possesses specific powers and responsibilities, while also holding

the ability to limit or influence the actions of the other branches. This interplay of powers

helps maintain a delicate equilibrium and prevents any one branch from dominating the

others or abusing its authority.

This system of checks and balances not only prevents the concentration of power in a single

branch but also encourages collaboration and compromise among the branches. It

necessitates cooperation and negotiation between the executive, legislative, and judicial

branches to achieve effective governance and maintain the rule of law.

By incorporating the principles of checks and balances, the separation of powers ensures

that no branch can become too dominant or tyrannical.

13 Federalist No.51
22 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

Relationship between separation of powers and system of checks and balance:

The concepts of separation of powers and checks and balances are closely intertwined and

interdependent. While separation of powers refers to the division of governmental powers

among different branches, checks and balances are the mechanisms by which each branch

exercises some control over the others.

Separation of Powers in the United States is associated with the Checks and Balances

system14. Separation of powers establishes distinct branches of government with specific

functions; the legislative branch makes laws, the executive branch enforces laws, and the

judicial branch interprets laws. This separation is designed to prevent the concentration of

power in a single entity and to ensure a system of checks and balances.

Checks and balances, on the other hand, are the tools or mechanisms through which each

branch exercises some control over the actions of the other branches. They serve to prevent

one branch from becoming too powerful or abusing its authority, ensuring a system of

mutual accountability and constraint.

For example, the legislative branch checks the executive branch by approving or rejecting

appointments, passing or blocking legislation, and conducting oversight through committees

and investigations. The executive branch, in turn, checks the legislative branch by vetoing

legislation and proposing budgets. The judiciary, as an independent branch, checks both the

legislative and executive branches by interpreting laws and determining their

constitutionality.

14https://www.law.cornell.edu/wex/separation_of_powers_0#:~:text=Separation%20of%20Powers%20in%

20the,branch%20from%20becoming%20too%20powerful.
23 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

Both concepts are essential for the functioning of democratic systems because they foster

accountability, prevent abuses of power, and safeguard the rights and interests of the people.

They work together to maintain the stability, balance, and integrity of a government,

promoting a system where power is dispersed and checked to prevent tyranny and ensure

the rule of law.

CHAPTER 4: INDEPENDENCE OF STATE ORGANS

(Ammar ul Hasnain BL-1188)

Constitutional provisions related to the powers, and roles of three branches:

The concept of separation of powers was recognized and advocated for since the

independence of Pakistan in 1947. According to the statement attributed to Sir Mian Abdul

Rashid, the then Chief Justice of the Federal Court of Pakistan in 1949, he emphasized that

the judiciary's independence could only be attained if it remained separate and independent

from the executive and legislative branches of government.

There have been three constitutions enacted in Pakistan; in the 1956, 1962 and 1973. The

first two abrogated while the constitution of 1973 is functioning in Pakistan with various

amendments. The constitution of 1973 is based on Westminster model. Under this model of

government, Prime Minister is the head of Executive branch, which necessarily comes from

the parliament and is answerable to it unlike the US President in the World. In this way, the

elected parliament runs the executive organ of the state. The 1973 constitution establishes

a parliamentary democratic system in which power is distributed among various state

organs; among the Legislature, Judiciary and the Executive which play specific roles and have

distinct functions.

24 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

EXECUTIVE:

The President:

The President of Pakistan is chosen by a secret ballot through an Electoral College

comprising of the Members of the Senate, National Assembly and the Provincial

Assemblies. The President is elected for a term of 5 years and is authorized to appoint the

Attorney General, Judges of Supreme Court and High Courts, and the Chief Election

Commissioner. In the Provincial Government, each province was to have a Governor

appointed by the President. He could be re-elected but could not hold office for more than

two terms.

The Prime Minister:

The Prime Minister is appointed by the President from among the members of the National

Assembly, and has to demonstrate majority support in the House. The Prime Minister is

assisted by the Federal Cabinet; a council of ministers whose members are appointed by the

President on the advice of the Prime Minister. The Federal Cabinet comprises the ministers,

ministers of state, and advisers.

Cabinet:

The Cabinet consists of ministers appointed by the Prime Minister. Each minister heads a

specific government ministry or department and is responsible for managing and

implementing policies related to their respective portfolios. The Cabinet collectively makes

decisions on important issues and advises the Prime Minister on policy matters.

25 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

Provincial Governments:

Pakistan has four provincial governments, each headed by a Chief Minister. The Chief

Minister and their cabinet are responsible for implementing policies at the provincial level

and managing the affairs of their respective provinces.

LEGISLATURE:

The bicameral federal legislature is the Majlis-i-Shoora (parliament), consisting of the

Senate (upper house) and National Assembly (lower house)

Powers of Senate and National Assembly:

Both the Senate and the National Assembly have the authority to propose and pass legislation

except for money bills which are exclusively handled by the National Assembly. The National

Assembly has the power to approve the federal budget and all money-related bills. If one

house passes a bill with a majority vote, it is sent to the other house. If the bill is passed by

the second house without any amendments, it is presented to the President for approval. If

the bill is not passed within ninety days or is rejected by the second house, a joint sitting of

both houses is summoned upon the request of the house from where the bill originated. In

the joint sitting, if the bill is passed, with or without amendments, by a majority vote of

members from both houses, it is presented to the President for approval. The President must

give assent to bills passed by both houses within ten days. However, in all bills except the

Finance Bill, the President has the option to return the bill to parliament with a message

requesting reconsideration and the consideration of a specified amendment. The parliament

is required to reconsider the bill in a joint sitting. If the bill is passed again, with or without

26 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

amendments, by a majority vote of the members present and voting, it is presented to the

President. The President must give assent within ten days, and if not, it is deemed that the

assent has been given.

JUDICIARY:

The 1973 Constitution provided for a free and independent Judiciary. The Constitution

guarantees a right to the citizens to be protected by law, and imposed two duties on them;

loyalty to the Republic and obedience to the law. The Constitution conferred several kinds of

fundamental rights to the people such as the right to life, liberty, equality and freedom of

speech, trade and association.

The judiciary includes the Supreme Court, provincial High Courts, and other lesser courts

exercising civil and criminal jurisdiction. The Supreme Court is the apex court in Pakistan’s

judicial hierarchy, the final arbitrator of legal and constitutional disputes. The Supreme

Court of Pakistan consists of a Chief Justice and not more than 16 other Judges appointed by

the President.

The judiciary has the power of judicial review, which allows it to review the constitutionality

of laws, executive actions, and government policies. This power enables the judiciary to

strike down laws that are found to be inconsistent with the Constitution. In certain instances,

the judiciary in Pakistan has shown a proactive approach by taking suo motu actions.

Branches Provisions Statement

“There shall be a president of Pakistan who shall be the

Executive Article 41(1) head of state and shall represent the unity of the republic.”

27 | P a g e
SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

“Subject to the constitution, the executive authority of the

federation shall be exercised in the name of the president
by the federal government, consisting of the prime minister
Article 90(1)
and the federal ministers who shall act through the prime
minister, who shall be the chief executive of the
federation.”
“In the exercise of his functions, the president shall act in
accordance with the advice of the cabinet or the prime
minister. Provided that (within fifteen days) the president
may require the cabinet or, as the case may be, the prime
Article 48(1)
minister to reconsider such advice, either generally or
otherwise, and the president shall (within ten days) act in
accordance with the advice tendered after such
reconsideration.”
“The president shall dissolve the national assembly if so
advised by the prime minister; and the national assembly
Article 58(1) shall, unless sooner dissolved, stand dissolved at the
expiration of forty-eight hours after the prime minister has
so advised.”
President can also dissolve the national assembly by using
his discretion powers as “a vote of no confidence having
been passed against the prime minister, no other member
of the national assembly is likely to command the
Article 58(2)(a)
confidence of the majority of the members of the national
assembly in accordance with the provisions of the
constitution as ascertained in a session of the national
assembly summoned for the purpose”.
“A situation has arisen in which the government of the
federation cannot be carried on in accordance with the
Article 58(2)(b) provisions of the constitution and an appeal to the
electorate is necessary”.
“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
Article 91(5)
majority of the member 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.”

28 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

“There shall be a Majlis- e-Shoora (parliament) of Pakistan

consisting of the president and the two houses to be
Legislature Article 50
known as national assembly and the senate.”

“There shall be a Supreme Court of Pakistan, a High Court

for each province and a High Court for the Islamabad
Judiciary Article 175 Capital Territory and such other courts as may be
established by law.”

Source: Constitution of Pakistan 1973

Extent of independence of state organs:

The Constitution of Pakistan establishes the framework for the independence of state organs;

the practical implementation and maintenance of independence have faced challenges

throughout Pakistan's history. The executive enjoys a significant degree of independence in

decision-making, policy formulation, and day-to-day administration. However, its actions

are subject to legal and constitutional limitations and can be challenged by the judiciary for

violations of the law or constitutional provisions. The executive also has the power to

appoint key officials, such as judges, and influence the implementation of policies through

administrative measures.

Judicial independence is crucial to maintaining the integrity and impartiality of the judiciary

and Judges are expected to be free from external influence and pressure when making

decisions. The judiciary has the power of judicial review, allowing it to strike down laws and

executive actions that are inconsistent with the Constitution. The judiciary's role is to

interpret the law and ensure that the actions of the executive and legislature comply with

the legal framework.

29 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

The legislature is independent in its lawmaking function; its actions can be influenced by the

executive and judiciary. The executive may propose legislation, and the legislature debates

and passes bills, subject to constitutional provisions and judicial scrutiny. The judiciary has

the authority to review the constitutionality of laws passed by the legislature. Additionally,

the executive can exercise influence over the legislative process through its control over the

parliamentary agenda and its ability to veto bills.

Blow to the independence of judiciary came in the form of 5th amendment. Bhutto's Fifth

Amendment to the Constitution, implemented on September 15, 1976, brought significant

changes to the judiciary in Pakistan. The amendment extended the period of keeping the

judiciary separate from the executive from three to five years and imposed fixed terms for

chief justices. It also introduced compulsory transfers of judges between courts and imposed

restrictions on high courts' ability to grant bail. These changes were aimed at curbing the

powers and jurisdictions of the courts. The amendment created an insecure environment for

judges, with the constant threat of transfer hanging over them. It eliminated the option for

chief justices and other high court judges to refuse an elevated post in the Supreme Court.

Additionally, the amendment withdrew the judiciary's powers to penalize for contempt of

court, further undermining its authority. As a result, the judiciary was subjected to executive

control and its independence was compromised, leading to a situation where the separation

of powers became dormant15

In Pakistan, the concept separation of powers was signified and suggested right from the

independence (1947). Abdul Rashid, the then chief justice of federal court of Pakistan

15 Khan, 2009, p.300

30 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

expressed on 1949, that the independence of judiciary can only be achieved if it is separate

and independent from the executive and legislature. 16

The power dynamics between the executive and legislature can impact the independence of

both branches. The ability of the executive to influence legislative decisions, such as through

controlling the parliamentary agenda and party discipline, can affect the independence of

the legislature. Similarly, the executive's control over key appointments and decision-

making processes can impact its own independence. 17

Potential influences that may compromise independence:

The independence of the three branches of government, can be compromised by various

potential influences arise from both internal and external factors, and they can affect the

separation of powers and the ability of each branch to function independently. Political

interference is a significant threat to the independence of all three branches of government.

It can manifest in the form of undue influence exerted by the ruling party or powerful

individuals within the government over decision-making processes, appointments, and

policy implementation.

Mr Hamid Khan said the judiciary was burdened with the image of being weak and pliable

particularly towards the military regimes. It has been bending backwards to justify violation

and subversion of the constitution at the hands of the military rulers. It has been legitimising

the military regimes and, in the process, enjoying the fruits of power. Therefore, the judicial

16 Mirza, 2015, p.41

17 Rehman, M. U. 2019
31 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

organ of the state has been politicised with irreparable damage to its reputation and

credibility. A few good judgments here and there are exception rather than the rule.18

When there are limited or ineffective oversight mechanisms, checks and balances, and

transparency, it becomes easier for the branches to be influenced or manipulated.

Corruption, nepotism, and favouritism can erode the independence of institutions and

compromise the integrity of their actions. When the rule of law is weak, the executive may

abuse its powers, the judiciary may be subject to political pressure, and the legislature may

fail to provide effective checks on the other branches. Weak enforcement of laws, arbitrary

decision-making, and lack of judicial independence can all undermine the separation of

powers. Economic dependencies, geopolitical considerations, and international agreements

can potentially compromise the decision-making autonomy of the branches of government.

When institutions do not have the necessary resources, including finances, technology, and

skilled personnel, their ability to function independently and effectively may be

compromised. This can lead to a reliance on external actors or political interference.

CHAPTER 5: OVERLAPPING OF THREE BRANCHES OF GOVERNMENT

(Ammar ul Hasnain Shah BL-1188)

Constitutional provisions that allow overlapping between branches:

The Constitution of Pakistan allows for some degree of overlapping between the branches of

government, which is primarily a result of its parliamentary system of governance. In the

parliamentary system, the executive branch is derived from and remains accountable to the

legislature. The Prime Minister, who is the head of the executive branch, is typically the

18 https://www.dawn.com/news/245355/independent-judiciary-must-for-rule-of-law
32 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

leader of the majority party or coalition in the National Assembly; this close relationship

between the executive and legislature allows for overlapping roles and functions. Ministers,

who are part of the executive, are also members of the legislature and are responsible for

proposing and implementing legislation. This overlap ensures a direct connection between

the executive and legislature, promoting coordination and cooperation.

The Constitution grants the legislature significant powers to oversee and control the

executive branch. The National Assembly and the Senate have the authority to scrutinize the

actions of the executive, question government ministers, and hold them accountable through

mechanisms such as no-confidence motion and parliamentary committees. This legislative

control over the executive ensures checks and balances and prevents the executive from

becoming too dominant. Through judicial review, the judiciary acts as a check on the other

branches and ensures that their actions are in line with constitutional provisions. This power

allows the judiciary to resolve conflicts and maintain the balance of power between the

branches.

Article 91 establishes the role of the Prime Minister as the head of the executive branch, who

is responsible to the National Assembly. It highlights the connection between the executive

and legislature, allowing for overlapping functions. Article 175 establishes the independence

of the judiciary. It outlines the appointment process of judges, their security of tenure, and

grants them the power of judicial review, enabling them to examine the actions of the

executive and legislature. Article 190 of the constitution stressed that “all the executive and

judicial authorities throughout the country to assist the Supreme Court in the

implementation of its decisions”.

33 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

Article 184 (3) of the Constitution of Pakistan provides a measure of last resort for citizens

of Pakistan to move the highest court of law for the collective protection of their fundamental

rights from an overreaching executive or legislature. In deviation from standard legal

procedure, the Supreme Court can also exercise this jurisdiction on its own initiative, ie suo

motu. What sets apart suo motu actions from normal judicial cases is that they require no

petition and no aggrieved party. The court can take judicial notice of any matter and it

becomes the prosecutor and the decider of the matter all at the same time.19

Before the enactment of 18th Amendment, it was the exclusive power of the Chief Justice to

appoint the judges of the courts. Article 175(A) introduced by this amendment, deprived the

chief justice from the right to appoint judges. Under the Article 175(A) inserted in the 18th

Amendment, the powers of the Chief Justice were shared with the judiciary, executive and

the legislature.

According to the constitution of Pakistan, the Judiciary and the Administration should be

separated from each other. No authority should encroach on the jurisdiction of others, except

where allowed by the law. The powers of legislature and executive are enshrined in article 7

of the 1973 constitution. Whereas the power of judiciary are explained in part VII “The

Judicature” of the 1973 constitution. The Executive cannot use judicial powers, just as the

Judiciary is not able to use administrative powers.20

19 Omer Imran Malik – Published in dawn newspaper June 18th 2020

20 Bellamy, 2005
34 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

Interaction of State Organs:

The executive branch, represented by the government, proposes bills to the legislature for

consideration and passage. The legislature, consisting of the National Assembly and Senate,

reviews and debates these bills, suggesting amendments if necessary. However, if the

executive dominates the legislative process, it can compromise the independence of the

legislature and undermine the separation of powers. The judiciary has the power of judicial

review, enabling it to review the constitutionality of laws and actions taken by the executive

and legislature. When the judiciary interprets and clarifies constitutional provisions, it

influences the functioning of both the executive and legislature. This interaction ensures the

adherence to constitutional principles and acts as a check on potential abuses of power.

However, if the judiciary oversteps its boundaries or becomes excessively active; it can

encroach upon the domains of the other branches and upset the balance of power. The

executive, through the Ministry of Finance, prepares the annual budget proposal, which is

then presented to the legislature for approval. The legislature, particularly the National

Assembly, reviews and scrutinizes the budget, making amendments or suggestions. This

collaborative process allows for transparency and accountability in the allocation of public

funds. However, if the executive dominates the budgetary process and restricts the role of

the legislature, it can lead to unchecked spending or the exclusion of important priorities.

Government departments take decisions on matters beyond their domain. Ministries

overstep boundaries defined in the Rules of Business. Advisers and special assistants to the

PM/ CMs squabble with their counterpart ministers over equivalence. Ministers battle over

satrapies. Courts trump each other over jurisdiction and superior authority. Serving civil

35 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

servants cock a snook at district judges. NAB, the bloodhound that pursued its accused with

ferocity, suddenly finds itself the quarry, hounded by the FIA.21

The legislative organ is responsible to make laws and pass financial bills but they require the

authorization of the President who is a part of the executive organ. The executive organ is

responsible for daily administration work but they are responsible to the legislature for their

actions. The judicial organ is responsible to interpret the laws and settle disputes but

appointments to the judiciary and their removal are governed by legislative and executive

organs. Judicial organs also keep a check on legislations and administrative order made. It

may declare them null and void if they are inconsistent with fundamental rights or the

constitution of the state. For this judiciary has to be impartial and non-political. Thus, each

organ is accountable to and monitored by the other.22

21 https://www.dawn.com/news/1661470
22 Alishba Fazal-ZU BLAWGS 2021
36 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

Bibliography/References

1. Akash Trikha & Anwesha Tripathy, Separation of Powers: Indian Perspective -

Palarch’s Journal of Archaeology of Egypt/Egyptology 17(6). ISSN 1567-214x

2. Muhammad Ikramullah Khan & Ayaz Muhammad, An Evaluation of Separation of

Powers: A Case Study of Pakistan (2007-2013), South Asian Studies; A Research

Journal of South Asian Studies Vol. 31, No. 1, January – June 2016, pp. 257 – 27

3. Tasneem Sultana, Montesquieu’s Doctrine of Separation of Powers: A Case Study of

Pakistan, Journal of European Studies, Volume (28) Issue (2) Publisher, AsiaNet

Pakistan (Pvt) Ltd

4. An Evaluation of Separation of Powers: A Case Study of Pakistan (2007-2013), South

Asian Studies, A Research Journal of South Asian Studies Vol. 31, No. 1, January – June

2016, pp. 257 – 274

5. Saima Bazmi & Abeeda Qureshi, Pakistan Journal of Social Sciences (PJSS) Vol. 41, No.

4 (2021), pp. 875-885

6. Qumber, G. (2016), Independent judiciary and its role in nation building: case study

of Pakistan, www.grrjournal.com

7. Saima Bazmi: Politico-Judicial Activism in Pakistan: A Historical Overview: Pakistan

journal of social research: Vol3, No.3, September 2022, pp.97-104

8. Historical Development of Separation of Powers published on 8th Aug 2019

https://www.lawteacher.net/free-law-essays/constitutional-law/historical-

developmentof-separation-of-powers-constitutional-law-essay.php

37 | P a g e
 SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

9. Comparative constitutional law, A Study of the Principles of Constitutional Law by

Hamid Khan and M,Waqar Rana page ,152-56.

10. The Second Treatise of Civil Government Book by John Locke, Published by

Cambridge university press.

11. Montesquieu, Charles de Secondat, baron de, 1689-1755. The Spirit of Laws.

London :Printed for J. Collingwood, 1823.

12. Author James Madison ( 1951-1836),Federalist No.47. Published in The New York

Packet and The Independent Journal.

13. From an article by Farhat ullah Babar published in The news on April 12,2023

https://www.thenews.com.pk/amp/1059720-judicial-imperialism-threat-to-

democracy

14. From an Article by Abdul Qadeer Seelro published in Dawn newspaper

https://www.dawn.com/news/1733693/the-missing-link-in-pakistani-system

15. https://www.law.cornell.edu/wex/separation_of_powers_0#:~:text=The%20Check

s%20and%20Balances%20system%20provides%20each%20branch%20of%20gov

ernment,branc h%20from%20becoming%20too%20powerful

16. Author James Madison ( 1951-1836),Federalist No.51. Published in The New York

Packet and The Independent Journal.

17. https://www.law.cornell.edu/wex/separation_of_powers_0#:~:text=Separation%2

0of%20 Powers%20in%20the,branch%20from%20becoming%20too%20powerful

18. From an article by Omer Imran Malik published in Dawn newspaper (June 18th, 2020)

38 | P a g e
SEPARATION OF POWERS AND ITS IMPLEMENTATION IN PAKISTAN

39 | P a g e