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saiyan0321

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Jan 9, 2012
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I also failed to see either overt or implicit reference to any ‘Troika’ in Pakistan’s 1973 Constitution or need to balance the power of Army Chief, Chief Justice, and the Executive.
Separation of powers is very much a part of our constitutional setup since the Troika recognizes three powers that balance each other out and they are

Parliament aka the legislative which would be the Majlis e Shura

Executive which would be the administrative setup ranging from President, Prime Minister, Cabinet and all the Administrative staff underneath

The Courts, the legal system.

The Separation of powers was influenced by Locke as the constitutional thought process was placed to have three powers that would keep each other in check rather than provide a single supreme institution that would tower over all. Here are some examples where separation of powers played an important role and was displayed in Pakistan.

PLD SC 2015 401 was a major case in this where the courts declared, citing precedents from all over the world and from previous judgments that the separation of powers is the backbone of the Pakistani constitution and the power of Judicial Review is the power that the courts have to create their balance. They stated this while striking down the limitation placed in Article 239 (5). The Pakistani courts have used this power to strike down laws passed by the parliament and the parliament has submitted to that and its most recent example would be the amendment passed in the Political Parties Act by N league in 2017.

Supremacy is defined as a something that is unquestioned and has no bar on its power whereas the parliament is home to several bars and those bars arent just constitutional but stem from other powers as mentioned. Any legislation can be brought to the court and the court can decide if it abrogates the Fundamental Right or is against the injunctions of Islam and if it deems so then that legislation will be declared void. This separation of power is very identical to the one Locke envisioned and is part of the US system.

Let me give another example. A simple case that became a landmark judgment in relationship between courts and executive. Khizer Hayat case. A very famous case. Now i wont detail the premise of the case but will tell you that it once more scrutinized the relationship between the executive and court at ground level. the question in play was whether the filing of FIR through justice of Peace using 22A and 22B and whether such was an interference into the domain of the executive by the legislative since Police investigation was the domain of the executive and not the courts and this was against the principle of separation of powers. the court held that the concept of separation of powers does indeed demand that powers wont interfere in the affairs of the other but are also given the duty to restrict the domain of the other so that no person can face injustice and where it concerns justice, it becomes the domain of the courts. This was again brought forth when it was held that ASJ or magistrates could also be made Justice of Peace and this was filed as encroachment into the powers of the executive and the courts declared that no. the JOP is quasi judicial and it complements the investigation of the police and thus is not an interference and the JOP is not executive per se nor administrative.

Then there was another case named PLD 2007 539 SC where the courts declared that the JOP is not authorized to reject any request to file FIR under 22A and 22B which was a massive bar and check on the powers of the executive since the executive would be the SHO who is empowered to file an FIR.


This is ground level separation of power and if we climb the ladder, we get to the Supreme Court questioning a legislation. So does this mean that the courts are supreme. Not at all. The courts have their own bars like the appointment of the judges by the executive or not questioning legislations passed that do not bring to question fundamental rights or islam or constitutional framework. Even the Presidential Pardon is evidence of the troika of power as punishment is the domain of the judicature and not the executive. Remember the recent case where Nawaz was asking to leave and Imran wanted him to pay bail bonds. Well that case also brought in the troika of power where the court openly asked under what authority can the executive demand bail bonds when it is the power of the judicature. I wrote about it here sometime ago




The Army chief is not part of the troika. He is powerful in Pakistan due to other factors but if we are talking constitutional then the Army chief is part of the executive, under the executive just like the police. The influence of Locke on our constitution is true in the sense of both the Social Contract and Separation of Power, however what we didnt do is bring in his concept of Separation of religion and state, which the US did.
 

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