SAPARATION OF POWES

ASAD SADDIQUE
BSE173063

COURSE: PROFESSIONAL ETHICS AND LEGAL ISSUES SE (2)

ASSIGNMENT 01

OCTOBER 4, 2020
SUBMITTED TO
Miss. ALEENA SIDDIQUE
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Separation of Powers

The separation of powers is a constitutional principle introduced to ensure that the three

major institutions of the state namely; the legislative, the executive and the judiciary are not

concentrated in any single body whether in functions, personnel or powers. [1]

“It is the will of the people which turns an ordinance from ‘having effect and force of law’ to ‘law

in force and in effect’. That is the distinction between the will of the President and will of the

people.”

Article 50 of the Constitution of Islamic Republic of Pakistan defines the composition of

Parliament in the following words:

“ARTICLE 50: There shall be a Majlis-e-Shoora (Parliament) of Pakistan consisting of the

President and two Houses to be known respectively as the National Assembly and the Senate.”

The concept of separation of powers is understood in the context of three organs of state

i.e. legislature, executive and judiciary. According to the Article 50 of the constitution, President

shall be the part of Parliament and has never been thought or conceived as a threat to the legislative

process. The Powers of President and House of Parliament has always been considered as

independent to each other. It is true that both have independent powers but there is one power in

the hands of President that can create problem in legislative functions performed by the two house

of Parliament. There may be clash or problems can occur when a ‘Presidential Ordinance’ is

promulgated while Parliament is in session.

In December 2016 this clash occur in the upper house of the Parliament of Pakistan when

the President of Pakistan without exercising self-restraint promulgated the Companies Ordinance
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2016. The Senate struck down the Companies ordinance 2016 on the 15th of December, 2016 in

terms of Article 89(2)(ii)(first proviso) by denying the authority of the Presidential Ordinance over

the will of the people represented through Parliament. Senate voted out the Ordinance so that the

matter should be promulgated through Parliament.

“Ruling Pakistan Muslim League-Nawaz (PML-N) was frowned upon in Senate on Thursday

(15-12-2016) as it watched helplessly a strident joint opposition backed by some government

allies including Pakhtunkhwah Milli Awami Party (PkMAP) and National Party (NP) that

disapproved ‘The Companies Ordinance 2016’ by 50 to 18 votes. After going for a voice vote,

Chairman Senate Raza Rabbani opted for a headcount and many were surprised to see not only

PkMAP and NP but also some FATA Senators and Mohsin Leghari from the Treasury benches

vote for the Resolution.

The Resolution was signed by as many as 40 Senators for the requisitioned session to disapprove

the Ordinance. As Mandviwalla moved the Resolution, Minister for Law and Justice Zahid

Hamid stood up to oppose it, triggering a heated debate in the House and forcing the opposition

in the Senate to come down hard on the government for bringing ordinances of its choice. The

Senators said the Ordinance was designed to change the entire economic and legal structure

meant for companies and it was in fact a well-calculated move to circumvent the facility

under Article 89 of the Constitution and termed it a joke with the Constitution.”

– Excerpt from a news report published in the daily newspaper Business Recorder on

16th December, 2016.

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Article 89 of the Constitution of Pakistan 1973 some exceptional powers provided to

President on some circumstances or conditions when Senate or National Assembly not in session.

Furthermore to set Article 89 in motion the President needs to take into account “immediate need

of action” as well as the “circumstances” in which the Ordinance is promulgated. Article 89(2)

speaks about the effect of an Ordinance with the words, “Ordinance promulgated under this Article

shall have the same force and effect as an Act of Majlis-e- Shoora (Parliament)”.

“ARTICLE 89: Power of President to promulgate Ordinances—(1) The President may, except

when the [Senate or] National Assembly is in session, if satisfied that circumstances exist which

render it necessary to take immediate action, make and promulgate an Ordinance as the

circumstances may require.”

After reading Article 89, it is clear that President exclusive power when there is no session

in Parliament. There are two main points, first is that President cant not lawmaker and second

point is that , Presidential Ordinances issued in absence of the Parliament shall only have the

“effect and force” of an Act of the Parliament. The will of the people is totally ignored like this. It

is violating the mandate of the Constitution. It should be done in proper session of Parliament.

There is distinction between the will of the President and the will of the people.

When the two Houses of Parliament are in session, the President must always give space

to them during the presentation of a Bill, a debate on the Bill and converting the same in a piece

of legislation.

The Eighth Amendment to the Constitution of Pakistan allowed the President to

unilaterally dissolve the National Assembly and elected governments. The National Assembly of
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Pakistan amended the Constitution of Pakistan in 1985 and the law stayed on the books until its

repeal in 1997. The bill was passed in the absence of the elected Parliament. [2]

General Zia-ul-Haq first used the amendment to dismiss Prime Minister Mohammad Khan

Junejo for alleged corruption in May 1988. [3]

The use of Article 58-2 (b) when President Ghulam Ishaq Khan dismissed the governments

of Benazir Bhutto and Mohammad Nawaz Sharif in 1990 and 1993, and President Farooq Leghari

dismissed the government of Benazir Bhutto in 1996. These were the elected Prime Ministers of

Pakistan according to the constitution of 1973. All the governments were dismissed on corruption

charges, but corruption charges could not be proved against any of them in a court of law.

President Asif Ali Zardari has decided in principle to abdicate his power to dissolve

National Assembly and the Provincial Assemblies, and he will make a formal announcement in

this regard during his address to joint sitting of the Parliament on March 28.
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References
1. https://www.lawteacher.net/free-law-essays/constitutional-law/principle-of-the-separation-of-powers-
constitutional-law-essay.php

2. https://en.wikipedia.org/wiki/Eighth_Amendment_to_the_Constitution_of_Pakistan

3. https://en.wikipedia.org/wiki/Eighth_Amendment_to_the_Constitution_of_Pakistan

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