The Doctrine of Separation of Powers in Pakistan: Theory, Practice, and Judicial Interpretation

Abstract

The history of Pakistan constitutionally indicates that there has always been an existent disparity between the theory and the practice of the separation of powers. The paper explores how the legislature, executive, and judiciary powers have been delimited and how they have been practiced in reality since independence in 1947 to date as defined in the law. It results that in the series of constitutions, authority was formally divided among the branches; but in fact power has been concentrated in a single branch the executive, or the military at the other cost. The historical events such as several military coups and the reign of a civilian government are evaluated and compared to major court decisions to comprehend the position of the judiciary in unconstitutional absolutism or unconstitutional disobedience. As discussed in this paper, the institutions in Pakistan have often not lived up to the principles of checks and balances as envisaged by theorists such as Montesquieu, whereby the judiciary has at times demonstrated the rule of law and at other times gone along with the executive, or necessity. New laws and constitutional amendments, which have influenced judicial authority and military powers, in recent years are important reminders that there is still tension in the attainment of a working separation of powers. The paper has conclusively found that unless significant reforms are made to the structure and the culture of constitutionalism is enhanced the separation of powers in Pakistan is not going to become a reality but rather a mere illusion because it is endangering the very process of protecting democracy and fundamental rights.