The principle of the trichotomy of powers is enshrined in the constitution
he principle of the trichotomy of powers is widely acknowledged to be enshrined in the Constitution of the Islamic Republic of Pakistan. Essentially, this means that the Legislature, the Judiciary and the Executive form the fundamental pillars of the state and that each of these is responsible for exercising legitimate authority in their respective sphere.
The Legislature is tasked with making new laws and amending the existing ones to meet the needs of the people or respond to urgent state matters. The Judiciary is responsible for interpreting laws, particularly in cases where a law contravenes the fundamental principles of the constitution or infringes upon basic human rights. Additionally, the Judiciary is responsible for ensuring that laws are consistent with the teachings of Islam. The Executive is responsible for enforcing laws and court orders to establish the writ of the state and uphold the rule of law.
The Legislature’s authority to create or modify laws has never been questioned. However, laws may be challenged on various legal grounds outlined in the constitution or legal procedures, except for the claim of mala fide, as this cannot be attributed to the Legislature. The Judiciary has traditionally refrained from interfering in the law-making process. The recent application of the pre-emption principle by the Judiciary to prevent the implementation of a law related to the powers of the chief justice of Pakistan represents a significant departure from this tradition. The action has effectively resulted in an injunction or stay order. Some legislators and jurists have criticised this as an anomaly in terms of the apex courts’ jurisdiction.
Historically, the Judiciary has had a crucial role in interpreting, upholding and overturning laws based on the standards laid out in the constitution and precedents established by the Judiciary. However, the recent incident of the Judiciary preemptively preventing the implementation of a law related to the chief justice’s powers has caused a perception among the public that the Judiciary may be overstepping its bounds and acting unreasonably.
The Judiciary’s primary responsibility is to interpret laws after they have been enacted, rather than intervening in the legislative process itself. This intervention thus conveyed a sense of distrust not only in the Legislature but also in the Judiciary itself.
The Executive, which includes the cabinet, as well as the military and civil bureaucracy, often referred to as the establishment, is highly politicised. While it is appropriate for the government to be political, it is inappropriate for the establishment to be so. Unfortunately, the recent actions by the Executive have led to a stalemate.
A Supreme Court bench preemptively preventing the implementation of a law related to the chief justice’s powers has caused a perception that the Judiciary may be overstepping its bounds.
Rather than upholding the rule of law, the Executive has been implementing directives from political and other leaders, regardless of whether the directives are legally sound. This has resulted in a loss of the true spirit of the law.
The situation has deteriorated to the point where individuals must file constitutional petitions before the superior courts for the resolution of even the most straightforward everyday issues. While it is the courts’ responsibility to remind officials of their obligations and duties to the public, this must be done within the limits of the constitution.
When a chief justice starts visiting health and educational institutions to assess officials’ performance and threatens them, it represents a new low for the Judiciary. Such actions serve only to further erode the public’s trust in the Judiciary.
Currently, the trichotomy of powers has weakened and various organs of the state appear to be attempting to overstep their constitutional boundaries. The Legislature is seen attempting to create laws that limit the Judiciary’s powers and Executive attempting to prevent the implementation of judicial orders. Meanwhile, judicial interpretations are being questioned by some political parties and labelled as ‘political’ decisions. In the process, some of the explicit provisions of the constitution are being ignored.
In the recent conflict, the Legislature is apparently addressing a need. However, the timing of the action has raised some concerns. Also, while there is no disagreement that Article 224 mandates a 90-day time limit for holding elections in the event of assemblies being dissolved, a dispute has arisen due to the use of suo motu powers. While judgments may be discussed publicly, judges’ personal lives should not be subject to similar scrutiny.
Currently, the society has become divided into blind followers and haters. Rational evaluation of public statements is increasingly rare. The society has also become obsessed with social media. This polarisation has affected not only lay people but also the state institutions,
We must not forget that our constitution is the source of power for every pillar of the state. It is a living document that we must return to. Upholding the supremacy of the constitution is crucial, as it defines the powers of each state organ and requires their forbearance to ensure the organic functioning of our political system.
Dr Muhammad Abrar Zahoor has a PhD in history from Quaid-i-Azam University, Islamabad. He heads the History Department at University of Sargodha. He has worked as a research fellow at Royal Holloway College, University of London. He can be reached at abrar.zahoorhotmail.com. He tweets AbrarZahoor1
Rai Ahmad Raza is an advocate of High Court and practices law in Lahore. He tweets raiahmed2004