Assignment

On
Separation of Powers and the Intense
Overlapping
Submitted To: Sir. Usman Altaf
Submitted By: Waleed Wajid (19)
Ameer Irfan (10)
Abid Hussain Shah (08 iss)
Sajwar Ahmad (06)
M. Usama Zaffar (24)
Subject: Public Policy and Organization
Program: BS Public Policy 5th (E)
Department of Political Science
 Bahauddin Zakariya University
Multan.
Introduction:
Government is the agency through which the
will of the state is formulated. Power corrupts and absolute
power corrupts absolutely. Concentration of authority
degenerates into tyranny, corruption and abuse of powers. The
function of the state are performed by the government through
its three branches Legislature, executive and judiciary.
These three organs represent the people and their will in our
country and are responsible for the smooth running of
democratic government in our country. All the branches of the
government have equal functions. So the great thinkers thought
that each branch of the government hold be made independent of
the other for its concept of separation of power was introduced.
Jean Bodin (1530-1596) the French publicist was the first
modern writer to demand a separation of power.
 Montesquieu’s Theory
Separation of Power
Though the history of the doctrine of separation of powers
traceable to ancient times of Aristotle and 16th and 17th century
philosophers such as John Bodin and Locke.
It was the French Jurist, Montesquieu who gave it a systematic
and scientific formulation. In his book Espirit De Lois (the spirit
of laws) Montesquieu’s for the first time, extensively discussed
the doctrine and its form.
According to Montesquieu’s theory of separation, it means that
no one person or body should be vested with all three types of
powers.
In every state there are three kinds of powers:
1. The Legislative Power
2. The Executive Power
3. The Judicial Power
There must be a division of functions on the following basis: the
legislature should make laws not enforce or administer them, the
executive must administer the made laws but neither influence
the legislature in the making of the laws nor stand in the
judgment of the same and the judiciary must determine rights
and uphold justice without taking over the functions of law
making or administration.
 He further said that such separation is necessary I order to
ensure that justice does not become arbitrary and
capricious.
 Montesquieu states that “when the legislature and the
executive powers are united in the same persons or in the
same body of magistrates there can be no liberty, because
apprehensions may arise, lest the same monarch or separate
should enact tyrannical laws.”
 There is no liberty if the judicial power is not separated
from the legislative and executive.

Principles of Theory: Separation of

Powers
 No concentration of powers.
 Diffusion of power is needed.
 In short, the theory of separation of powers merely means
that a different body of persons is to administer each of the
three departments of government and that no one of them
is to have a controlling power over either of them.
 Such a separation is necessary for the purpose of
preserving the liberty of the individual and for avoiding
tyranny.
 Importance of Theory: Separation of
Powers
 It aims at individual liberty. It is a safeguard against
despotism.
 Its basic principle that concentration of powers leads to
dictatorship is true for all time and ages.
 The separation of powers saves the people from arbitrary
rule of executive
 This theory lays down the principle that governments
should act according to well established rules or laws.
 Each organ acts a check upon others.
 It is desirable for maintaining the efficiency in the
administration.

Why is Separation of Powers Important?

 Democratic government is characterized by the separation
of powers.
 There are ‘checks and balances’ within our political system
that limit the power of each branch in order to prevent the
abuse of power.
 Firstly, it ensures that the different branches control each
other. This is intended to make them accountable to each
other — these are the ‘checks’
 Secondly, the separation of powers divides power between
the different branches of government — these are the
‘balances’. Balance aims to ensure that no individual or
 group of people in government is ‘all powerful’. Power is
shared and not concentrated in one branch.
 That is why we also often refer to the ‘separation and
balance of powers’.
Criticism:
I. It is not desirable because if there is complete
separation of powers, the different organs of the
government will not be able to work in co-
operation and harmony. As a result, there would
be frequently deadlocks which may bring the
governmental machinery to a standstill.
II. According to Mill, “the separation of powers will
result in a clash between the three organs of
government, as each one will take interest only
in its own powers”.
III. If all branches are made separate and
independent of Each other’s, each branch will try
to safeguard its powers and will not protect the
powers of other branches. In such case
administrative efficiency cannot be attained.
IV. The theory of separation of powers makes a
mistake in assuming that the three branches of
government are equally powerful and can be
independent of one another.
V. The growth of administrative adjudication is
another redevelopment which is against the
doctrine of separation of powers. The executive
is being vested with judicial powers as well as
 other duties otherwise the officers do not feel
secure while performing their duties.
Role of Legislature
The legislative branch of government is responsible for
enacting the laws of the state, supervising their implementation
and appropriating the money necessary to operate the
government. The Government has to justify itself to Parliament
in respect of everything it does or causes the administration to
do.
• Jinnah saying:
“You are now a sovereign legislative body and you have got all
the powers. It, therefore, places on you the gravest responsibility
as to how you should take your decisions”.
National Assembly:
Work of National Assembly is to make laws and do work for the
public welfare.

Senate:
The Senate is the second chamber of the Parliament. It is
independent from and complements the work of the National
Assembly. The Senate shares the task of making and shaping
laws, checking and challenging the work of the government.

Role of Executive
• The executive branch is responsible for implementing and
administering the public policy enacted and funded by the
legislative branch. The executive branch has the task of
implementing laws. It comprises the Federal Government, the
Federal President and all federal authorities including the police
and the armed forces.
NAB:
The National Accountability Bureau is an autonomous and
constitutionally established federal institution responsible to
build efforts against corruption and prepare critical national
economic intelligence assessments against economic terrorism
to the Government of Pakistan.
FIA:
The Federal Investigation Agency is a border control, counter-
intelligence and security agency under the control of the Interior
Secretary of Pakistan, tasked with investigative jurisdiction on
undertaking operations against terrorism, espionage, federal
crimes.

Police:
As a police officer you’ll work in partnership with the
communities you serve to maintain law and order, protect
members of the public and their property, prevent crime, reduce
the fear of crime and improve the quality of life for all citizens.
Army:
 It is to ensure the national security and national unity of the
country by defending it against external aggression.

Role of Judiciary
• The judicial branch is responsible for interpreting the
constitution and laws and applying their interpretations to
controversies brought before ¡t.
• Judges administer justice, they decide disputes independently
and impartially. It is their task to ensure that laws are complied
with.

Separation of Powers and our

Constitution
Executive:
 Article 41: 1) There shall be a President of Pakistan who
shall be the Head of State and shall represent the unity
of the Republic.
 43 (2) The President shall not be a candidate for election
as a member of [Majlis-e-Shoora (Parliament)] or a
Provincial Assembly; and, if a member of [Majlis-e-
Shoora (Parliament)] or a Provincial Assembly is
elected as President, his seat in 1 [Majlis-e-Shoora
(Parliament)] or, as the case may be, the Provincial
Assembly shall become vacant on the day he enters
upon his office.
 48. (1) in the exercise of his functions, the President
shall act [on and] in accordance with the advice of the
Cabinet [or the Prime Minister].
 58(2) a situation has arisen in which the Government of
the Federation cannot be carried on in accordance with
the provisions of the Constitution and an appeal to the
electorate is necessary. “With the consequence of
dismissing the Prime Minister and his or her Cabinet.
 8th & 13th amendment.
 91 (7) 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 majority of the members 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.
 248 (1): The President, a Governor, the Prime Minister,
a Federal Minister, a Minister of State, the Chief
Minister and a Provincial Minister shall not be
 answerable to any court for the exercise of powers and
performance of functions of their respective offices or
for any act done or purported to be done in the exercise
of those powers and performance of those functions

Legislature:
 5O: 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.
 69: courts not to inquire into proceedings of Majlis-e-
Shoora.
 239: (5) No amendment of the Constitution shall be
called in question in any court on any ground
whatsoever.
 D 75: President (b) in the case of a Bill other than a
Money Bill, return the Bill to the Majlis-e-Shoora
(Parliament) with a message requesting that the Bill or
any specified provision thereof, be reconsidered and
that any amendment specified in the message be
considered.
 (2) The President shall give his assent within ten days,
failing which such assent shall be deemed to have been
given.
Judiciary:
 175. Establishment and jurisdiction of courts (1) there
shall be a Supreme Court of Pakistan, a High Court for
 each Province [and a High Court for the Islamabad
Capital Territory] and such other courts as may be
established by law.
 175(3) he Judiciary shall be separated progressively
from the Executive.
 PLD 1994 SC 105
 The independence of judiciary means:
 That every judge is free to decide matters before him in
accordance with his assessment of the facts and his
understanding of the law without improper influences,
inducements or pressures, direct or indirect, from any
quarter or for any reason.
 That the Judiciary is independent of the executive and
legislative and has jurisdiction directly or by way of
review, over all issues of judicial nature.

How is it ineffective in Pakistan?

Judiciary in Contradiction to concept
of separation of powers
 The recent judicial activism is more or less a new
challenge for democracy.
 1.8 Million Cases Pending.
 The history of judicial verdicts is not free of biasness.
 Intervention of an institution in the domain of another
(judiciary, executive) has dualistic affect.
 Whereas, at this critical moment of history, when our
country is facing both internal and external conventional
and unconventional challenges.
Would this power mongering intervention serve in the
best national interest of the country? Obviously, not.
 204(b):Contempt of Court
 Scandalizes the Court or otherwise does anything which
tends to bring the Court or a Judge of the Court into
hatred, ridicule or contempt.
 The criminal justice system of the country helps the
strong and wealthy against the weak and poor.
 As Montesquieu says, “There is no liberty, if the
judiciary power be not separated from the legislative
and executive. Were it joined with the legislative, the
life and liberty of the subject would be exposed to
arbitrary control; for the judge would then be legislator.
Were it joined to the executive power, the judge might
behave with violence and oppression”.

Powerful Bureaucracy and Army Intervention

 Create a lot of problem in good governance.
 5 Dictatorship Attacks on rule and order.
 Negates Separation of Powers concept.
 Asghar Khan Case and Pervaz Musharraf case.
 23rd Amendment was passed to re-establish the
military courts for further two years till 6 January 2019.