The Social Contract doctrine was developed by Thomas Hobbes (d. 1679) John Locke (1704) and JJ Rousseau (d. 1778) to explain that it is the people who have set up state institutions and only they have the right to rule. ‘Enlightenment is man’s emergence from his self-imposed nonage. ‘Nonage is the inability to use one’s own understanding without another’s guidance. What a people may not decide for itself, may even less be decided for it by a monarch’, explains Immanuel Kant (d. 1804). French social philosopher, Montesquieu (1689-1755) argued in his book ‘The Spirit of Law’ that the division of the branches of the government (legislative, executive and judicial) is the only way to get rid of the menace of despotism, arbitrary or absolute rule. This ideological movement established the right of the people to rule through dispersing power amidst three state institutions.
2. The concept of separation of powers grew out of centuries of political and philosophical developments. Its origins can be traced to 4th century B.C., when Aristotle, in his treatise entitled ‘Politics,’ described the three agencies of the government viz. the General Assembly, the Public Officials, and the Judiciary. In republican Rome, there was a somewhat similar system consisting of public assemblies, the senate and the public officials, all operating on the principle of checks and balances. Following the fall of the Roman Empire, Europe fragmented into nation states, and from the end of the middle ages until the 18th century, the dominant governmental structure consisted of a concentrated power residing in the hereditary ruler, the sole exception being the development of English Parliament in the 17th century. With the birth of the Parliament, the theory of the three branches of government reappeared, this time in John Locke‘s ‘Two Treatise of Government’ (1689), where these powers were defined as ‘legislative‘, ‘executive‘, and ‘federative’. He considered the legislative branch to be supreme.
3. The separation of powers suggests that the principal institutions are the Executive, the Legislature and the Judiciary. These three pillars must be functionally independent with coordinate powers. In today’s world, it is a well-established principle that institutions should be divided and dependent upon each other so that one power would not be able to exceed that of the other two. Therefore, the UN General Assembly has enlisted Separation of Powers in 2004 among the top seven ‘essential elements’ of democracy.
4. The doctrine of ‘rule by the people’ and ‘separation of powers’ are Grundnorm of our Constitution, 1973. Its Preamble declares: ‘And whereas it is the will of the people of Pakistan to establish an order: - Wherein the State shall exercise its powers and authority through the chosen representatives of the people.’ The order so established envisages separation of power and details separate powers and functions of three organs of State i.e. Legislative is to make laws, Executive to implement laws and formulate and implement policies and Judiciary to adjudicate (and interpret the laws).
5. Now these doctrines are not only blurred but it is practically finished through judicial interpretations, which are, to the best of my understanding, against the letter and spirit of the Constitution of 1973. For example: (a) Executive makes a policy and a court declares it illegal. Executive appoints an official in Grade-1 and a court declares it null and void. Executive transfers Grade-1 officer, and a court annuls its transfer. It is the case even in disciplinary proceedings. Now the popularly elected head of the Executive is at the mercy of judiciary that too without a right to a single appeal against all judicial norms of civilised world. Executive which cannot make a policy or appoint and transfer a clerk of its choice, how can it implement its manifesto on which it has taken mandate from the people and how it can be held responsible when its hands are tied absolutely by another organ of state i.e. the Judiciary?
(b) An Act of Parliament passed by two houses consisting of 436 elected representatives of people is declared ultra-vires by a single judge of a high court or sometimes its operation is suspended on day one of hearing. In military courts cases, the Supreme Court of Pakistan has declared that there is a basic structure doctrine available in Pakistan; hence, court will see whether a constitutional amendment validly made by the both Houses of the Parliament by two-third majority is valid or un-valid in the light of the basic structure of the Constitution to be determined by Judiciary itself. This is total negation of right to rule by the people of Pakistan who have given this power to their elected Parliament under articles 238 and 239 of the Constitution.
6. The vague and arbitrary doctrine of basic structure is only available in India out of 200 countries of the world (Kesavananda Bharati case 1973); hence, Pakistan is the second country in the world where courts have declared this doctrine to be available to Judiciary. In actual words, the chosen representatives of 220 million people of Pakistan cannot amend their Constitution but the 3 judges of the Supreme Court or even a single judge of a high court can declare a Constitutional amendment as un-constitutional.
7. On the other hand, Executive or Legislature cannot post, transfer or take any action whatsoever, even against a civil judge. Judiciary itself has an absolute control on the appointment, transfer, disciplinary action and removal of the judges from civil judge to Supreme Court judge without having any slightest possible role of Executive or Parliament. The experience of the parliamentary committee for the appointment of superior court judges under Article 175-A inserted through 18th Amendment has totally failed as the committee is totally powerless and it cannot practically reject the recommendations of the Judicial Commission, therefore, the committee has not been meeting in protest.
8. In the 70 years history of Pakistan, the Supreme Judicial Council has dismissed or removed from service only two judges of the high court i.e. M/s. Justices Akhlaq Hussain and Mr. Shaukat Ali (both from Lahore) out of its hundreds of judges whereas it has removed and convicted many members of Executive and Legislature.
9. It appears from the above discussion that that it is high time that all the stakeholders shall immediately address this issue of constitutional imbalance resulting from abandonment of doctrine of separation of power by Judiciary in its own benefit by usurping the powers of Executive and Legislature. This is against the time-tested doctrine of checks and balances advocated from Aristotle to Montesquieu to 1973 Constitution, and is negation of the people’s right to rule.
10. It is suggested to amend the Article 175A of the Constitution so that Parliament shall have a final say in the appointment of the judges, as is the case in many jurisdictions. Similarly, Article 209 of the Constitution regarding the Supreme Judicial Council shall be amended to institutionalise parliamentary oversight on the disciplinary proceedings against the judges of the superior courts, as is the case in India from where our Judiciary has borrowed the doctrine of basic structure. This is only way to restore the checks and balances in the Constitution and polity. This is what is advocated by all sages of the ages, from Aristotle to Montesquieu and Lord Action who has very aptly said that 'power corrupts and absolute power corrupts absolutely'.
The author is Special Assistant to PM on Law and these are his personal views.