Separation of powers and Pakistan.
Charles-Louis de Secondat Montesquieu advanced an idea of equal distribution of power amongst three pillars of a democratic state; legislative, executive, and judiciary. He also propagated a system of checks and balances to maintain this distribution. According to him this separation of powers is pivotal for a smooth, uninterrupted and efficient democracy. However, since its inception Pakistan has endured the viceregal system of governance-where executive has always been the most powerful. Whether it was a military rule or a civilian government all concentrated power in one man's hand- the executive. This propelled the power mongering and conflict ridden political culture amongst different pillars of the nation-state. Resultantly, dysfunctional institutions emerged which led to political instability and polarisation. This legacy has severely damaged the democratic process in the country even it continues today without any interruption. How far Pakistan would continue to live in this quagmire and what are the means to get out of this conundrum? This is the fundamental question for all stakeholders to ponder upon.
A shrewd analysis of the dynamics of Pakistan's politics illustrate that since its very creation institutional clash, though other factors would have also affected, has been a major hurdle in its progress. A retrospective look reveals that struggle for the centralization of authority has been at the centre stage in the politics of Pakistan . It basically emerged from the feudal structure of the society. First, right after partition of sub-continent Pakistan inherited The Government of India act 1935 and adopted it as its constitution with slight modifications. This constitution vested strong discretionary powers in the hands of Governor General. Only Governor General enjoyed absolute authority, even he had the authority to dismiss PM. This laid the foundation of one man dominated political culture in the country. Second, the first constitution of the country was promulgated in 1956 which abolished the office of Governor General. This replaced the powers of Governor General with the President. Thereafter, the president enjoyed all discretionary powers , earlier vested in Governor General, even dismissal of PM. Later on, many office bearers exercised this authority, when they dismissed existing Prime Ministers, destabilizing the country. This formed the bases of dysfunctional institutions. Third, again in 1962 constitution, power was concentrated in the hands of president. With the flavour of presidential form of government, this time, the president of the country held sway over all matters. Fourth, though the facade of 1973 constitution was parliamentary, however it established an authoritarian government with concentration of power in the hands of the Prime Minister, Zulfiqar Ali Bhutto. Later on different amendments in the constitution reinforced decentralization of power for smooth democratic transition. However, this constitution is never practiced in its true essence.
The recent judicial activism is more or less a new challenge for democracy, because it intervenes in the domains of legislative and executive. Undoubtedly, Judiciary is an essential element of a state. It bears much importance, also, because it interprets the constitution of a country. But this important role, in its part, can never be a justification for intervening in the domain of others- either executive or legislative. In the post-panama verdict Pakistan judiciary is trolling to tilt the balance of power in its favour. However, undermining the powers of both legislative and executive the third pillar of state is creating a mess.
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. First, though, ostensibly, the judiciary claims its moves for the better national interest of the country, the result would be an aggressive but weak judiciary. History is the best judge of events. Coming years would certainly clear many ambiguities in the current political cum judicial fiasco. Already, the history of judicial verdicts is not free of biasness. Whether it was Maulvi Tamizuddin case or Zulfiqar Ali Bhutto case verdict, these are clear manifestations of judiciary's political alignments. As, now, even judiciary does not consider those decisions, once considered legitimate, accurate or unbiased. Even no one in the institution dares to cite those decisions as a reference. All try to escape their realities, because those were really flawed and biased decisions which undermined the role of judiciary.
Second, intervention of an institution in the domain of another has dualistic affect. On the one hand it destabilizes the intervened; while on the other it weakens the aggressor. Consequently, by initiating an organizational clash and conflict ridden politics, this institutional power mongering leads to an institutionally incapacitated, politically destabilized and economically retrogressive country. As, Montesquieu explained, 'There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice'. Therefore, the need is to restrain from political alignments and biases when deciding the fate of our future generations.
Given the realities of criminal justice system of the country, judiciary needs more to reform its institution. Putting its own institution in order would be a better option rather destabilizing the country by disrupting cooperation and coordination between institutions. For example, the existing lacunas in the criminal justice system are challenge for judiciary. Free and fair trial based speedy justice is the fundamental right of every citizen. However, the criminal justice system of the country helps the strong and wealthy against the weak and poor. The honourable Chief should do the needful in this regard.
A judiciary separated from the legislative and executive would serve the best national interest. Whereas, interventionism would only exacerbate the problems not only for judiciary but also the whole country. Because, this would sabotage the fundamental liberties of the populace. 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'.
In order to conclude, since its inception Pakistan has been facing the menace of political instability and polarisation. At the root lies the problems of institutional clash, power mongering, and feudalistic structures which have constructed the political culture of the country. Therefore, the power is not equally distributed amongst different branches of nation-state. Montesquieu's separation of powers theory, if applied in letter and spirit, would create a peaceful environment for the progress and prosperity of this country. For that, all stakeholders should collaboratively struggle for fusion of power at national level. The power must be decentralized and equally distributed amongst three pillars of country; legislative, executive and judiciary, with a system of 'checks and balances' for all these branches. The prosperous future of Pakistan lies in the 'separation of powers' as desired by Montesquieu.
The writer has completed masters in International Relations from Quaid-I-Azam University Islamabad. Currently, he writes in different journals and newspapers on Foreign policy and Security issues. His articles include 'New world order and Pakistan', and 'Evaluating our foreign policy' etc.