Legislature, Executive And Judiciary: Conflicts And Cohesion

LEGISLATURE, EXECUTIVE AND JUDICIARY: CONFLICTS AND COHESION LEGISLATURE, EXECUTIVE AND JUDICIARY: CONFLICTS AND COHESION [This paper was contributed by the author in the Third SAARC LAW Conference held in New Delhi, India on 30‑1‑1994.] By Asif Saeed Khan Khosa Advocate Supreme Court of Pakistan Complete separation of powers between the Legislature, the Executive and the Judiciary is an ideal which has not been achieved completely in any part of the world so far. The quintessence of the doctrine of separation of powers is not easy to distil. This doctrine has emerged in several forms at different periods and in different contexts. It is traceable back to Aristotle; it was developed by Locke; its best formulation, by the French philosopher Montesquieu, was based on an analysis of the English Constitution of the early eighteenth century, but an idealized rather than real English Constitution; the disciples of Montesquieu, particularly numerous in the North American colonies, added their own refinements; and today the doctrine survives in a number of curious manifestations. The doctrine, as propounded by Montesquieu and his followers, may be stated briefly as follows:‑‑ (1) There are three main classes of governmental functions: the legislative, the executive and the judicial. (2) There are three main Organs of the government in a State: the Legislature, the Executive and the Judiciary. (3) To concentrate more than one class of functions in any one person or organ of government is a threat to individual liberty. The genesis of the principle is that one branch of the government should not be in a position to dominate the others, and matters may be so designed that each branch operates as a check on the others. But experience has shown that a rigorous segregation of functions sometimes becomes highly inconvenient and, therefore, different modifications and variations to the said rules are to be found in various countries in order to make the system more practicable. As the Constitutional set‑ups in most of the SAARC region have by and large adopted the Westminster model, therefore, a reference to the English constitution here seems inescapable. There never was a time in English Constitutional history when the functions of the Government were neatly compartmentalized. The medieval Curia Regis, the King's Council exercised all the three classes of functions. The Parliament was a High Court as well as a legislative body. For several centuries the local Government authorities in the countries were judicial officers, the Justices of the Peace: In the modern set up in Britain there is a Cabinet Government with a parliamentary executive; the Law Lords act both as judges and legislators; the Lord Chancellor is a Minister as well as the head of the Judiciary and an active member of the House of Lords in its legislative capacity. Legislative powers are also delegated by the Parliament to members of the Executive (the Queen in Council and Ministers) and powers to determine justiciable controversies are also conferred upon Ministers and other non judicial agencies. Thus, while separate identity and spheres of jurisdiction of each organ of the State are sought to be understood and maintained, a workable blending of the Executive, the Legislature and the Judiciary into a composite whole is a characteristic of the British system of Government. The same principle of cohesion was also adopted in the former British colonies in the Sub‑Continent which, even after becoming independent sovereign States, tried to uphold the concept of separation of powers and, at the same time, were happy with some merger of those powers purely for practical and administrative advantages. That was always justified on the ground of effective handling of the teething problems of the newly‑established States. Pakistan was no exception to that. On the one hand the Pakistani Constitution clearly recognized the concept of separation of powers while establishing the Legislature, the Judiciary and the Executive as the three independent Organs of the State yet on the other hand it did not forthwith discontinue the prevalent merger, blending or the marriage of convenience between the Executive and the Judiciary at the local District level. Unfortunately the marriage, which used to serve the colonial masters' interests quite well, proved to be unholy and unwholesome for a nation of free citizens. Sustained public pressure for fuller independence and separation of the Judiciary from the Executive ultimately led to the adoption of clause (3) in Article 175 of the Constitution of Pakistan, 1973 declaring as an obligation of the State that "The Judiciary shall be separated progressively from the Executive within three years from the commencing day". That stipulated period of three years was subsequently extended to five years and still later to fourteen years for achievement of the said objective. Unfortunately, initially due to suspension of the Constitutional machinery on account of the imposition of Zia‑ul‑Haq's Martial Law and later on due to other enormous administrative difficulties the said objective of separation of the Judiciary from the Executive could not be accomplished within the mandated fourteen years, i.e. upto 1987. However, taking a bold initiative in keeping with the letter and spirit of the Constitution the Supreme Court of Pakistan has recently held in the case of Government of Sindh and others v. Sharaf Faridi and others (PLD 1994 Supreme Court 105) that the said mandate of the Constitution is self‑operating and the desired separation has Constitutionally taken effect since August 14, 1987. The Supreme Court has directed the Federal and Provincial governments to complete all the required administrative and legal steps in that direction by March 23, 1994 (which also happens to be our Republic Day when our first Constitution was adopted in the year 1956). Reverting to the topic of Conflicts and Cohesion in the three Organs of the State, i.e. the Legislature, the Executive and the Judiciary I must share with you here some of our interesting, though mostly unfortunate, experience in Pakistan in that respect. Most of those experiences may not be totally new to you as we in the SAARC region have been experiencing somewhat similar predicaments for some time. As our pre‑independence time was one of an unrepresentative Government dictated primarily by, colonial interests, therefore, no role was envisaged in the administrative laws of those days for any representative of the public. The, bureaucratic control of the administrative machinery was absolute and complete and any question of intereference therein by a representative of the local public did not arise. The Legislature was distant as well as not representative of the local population, the higher Judiciary was imported and the Executive was all powerful. The scenario changed abruptly upon achievement of Independence and democracy was adopted as the Constitutional way of life as well as the system of Government. Unfortunately, the administrative laws remained the same and the elected representatives continued to be kept away from having any role in the administrative set up or the day to day running of the State. Those elected representatives had no experience in law‑making and, keeping with our traditional ways of governance, they were more interested in having some sort of direct administrative control over the population they represented. The elitist and firmly entrenched bureaucracy obviously resisted this "illegal" and unexpected interference. This is how the long‑practised cohesion among the three Organs of the State started giving way to ever‑growing conflict amongst at least the Executive and the Legislature. The public representatives could take policy decisions but they‑had no direct control over the administrative officers inplementing those decisions. Those officers were protected by their Constitutional and legal safeguards and were legally answerable and accountable before their own superior officers rather than the public representatives. Convinced of their better education and training and fortified by their motivation of impartiality and balance the executive officers started perceiving their role as a check on the public representatives who, in their view, were ill‑trained, ill‑equipped, partisan and motivated in their decisions as well as approach. This situation remained simmering for some time but later on came to a boil. The ever‑strengthening bureaucracy of the 1960s in Pakistan faced a backlash from the public representatives in the early 1970s when hundreds of senior bureaucrats were shunted out of service on various charges by one stroke which was primarily intended by the politicians to overawe the Executive. That step obviously swung the balance in favour of the legislators who then started more successfully asserting themselves over administrative authorities even over matters which were not in the legislators' domain. The balance swung backwards again in favour of the Executive with the advent of another unrepresentative regime in the later half of the 1970s when the civil and military bureaucracy reigned supreme and the Legislatures were non existent. After restoration of the Constitutional machinery at the end of 1985 the Pakistani society has now embarked upon an era of democracy and Constitutionalism wherein the Legislature and the Executive are gradually settling down with better understanding of the constitutional concept of separation of powers and harmonious co‑existence. An assertive and ever‑vigilant Judiciary has really helped in this respect in defending the respective limits and restricting the parties to their respective domains. It will not be out of place to share here with you another interesting phenomenon that we in Pakistan have experienced in respect of cohesion and conflict between the Legislature, the Executive and the Judiciary. Unfortunately, due to mistakes of our politicians and adventurism of the armed forces, we had to suffer repeated and protracted periods of unrepresentative and unconstitutional rule. One obvious result of such deviations was that the three Organs of the State, i.e. the Legislature, the Executive and the Judiciary never found sufficient time to properly understand and experience their respective Constitutional roles. In the prolonged absence of any representative Legislature the law‑making was mainly done by the Executive in such days. Unfortunately, the Executive has taken a liking for that and even in the presence of a fully representative Legislature now the Executive has not been able to resist the temptation of legislating by issuing Ordinances and of repeating those Ordinances repeatedly in the absence of proper legislation by the Legislature itself. The‑Legislature has yet to get used to legislating and dawning of realization on the legislators that that is the only thing that they are supposed to do is yet a distant hope. Spending most of the time by them on motions pertaining to breaches of their privileges coupled with the fact that not a single Ordinance issued by the Executive has ever been discontinued upon a resolution of disapproval passed by them shows that our legislators have yet to properly understand their true role in the Constitutional set up before they start asserting themselves over their exclusive domain over legislation. Their extra‑ordinary interest in administrative affairs and development activity of their constituency indicates that they take more fancy for the jobs of the Executive than their own job of legislation. The Judiciary in Pakistan has one additional role to perform which probably no other judiciary in the world is required to undertake, i.e. testing the repugnance of any challenged legislation to Islamic Shariah and its striking down in case of a conflict therewith. In this process the Judiciary not only strikes down duly promulgated laws but also proposes necessary amendments thereto. Thus, it plays a significant role qua legislation as well. Apart from that the area of public interest litigation has also built an inroad for judicial intervention in a vast area of administrative action. All this will show that the Legislature, the Executive and the Judiciary in Pakistan, apart from performing their own respective roles assigned to them under the Constitution, are also experiencing a very curious cohesion (if not overlapping) of roles. The Executive is also habitually legislating, the Legislators are happy with additional influence and control over the executive administration, and the Judiciary is enjoying a sway over both the Legislature and the Executive. This "happy" cohesion is, obviously, a result of the lack of uninterrupted Constitutional growth that our society had to suffer in the past. The intellectuals in the society are certainly conscious of this unnatural cohesion and are sure that such cohesion has inbuilt seeds of conflict and, therefore, the situation has to be rectified as soon as possible. The Supreme Court of Pakistan has taken a lead in this respect and it is consistently trying to put the whole thing back on its proper Constitutional rails while ensuring that each Organ and each functionary of the State is restricted to its respective Constitutional role. Any overstepping of the jurisdiction or jumping over of a role is firmly corrected and the situation is appropriately rectified according to the spirit of the Constitution. In the case of "Miss Benazir Bhutto v. Federation of Pakistan and another" (PLD 1988 Supreme Court 416) the petitioner Miss Benazir Bhutto, Co‑Chairperson of the Pakistan Peoples Party, had, by invoking the original Constitutional jurisdiction of the Supreme Court of Pakistan, challenged certain amendments made by the administration of General Zia‑ul‑Haq in the Political Parties Act, 1962, including those relating to compulsory registration of the political parties before they could participate in any general election in the country, as violative of Articles 17 and 25 of the Constitution, the vires of the .Freedom of Association Order, 1978 as being unconstitutional and the constitutionality of Article 270‑A purportedly providing blanket immunity to all legislative measures taken during the period of Zia‑ul‑Haq's Martial Law. Those amendments were apparently introduced by the Executive so as to keep an undesirable political party out of the Legislature. That petition was ultimately accepted, the offending provisions of the Political Parties Act, 1962 were struck down, the Fundamental Right guaranteed by Article 17 of the Constitution was given its full effect and a major obstacle in the way of restoration of Constitutional democracy in our country was removed. In another case of "Mrs. Benazir Bhutto and another v. Federation of Pakistan and another" (PLD 1989 Supreme Court 66) the petitioner Mrs. Benzir Bhutto, Co‑Chairperson of the Pakistan Peoples Party, had, by invoking the original Constitutional jurisdiction of the Supreme Court of Pakistan again, challenged certain amendments made in the Representation of the People Act, 1976 and prayed for removing the clogs in the way of allocation of an election symbol to a political party contesting a general election as a party. That petition was also ultimately accepted, the offending provision of the Representation of the People Act, 1976 was struck down, the Fundamental Right guaranteed by Article 17 of the Constitution was given its fuller effect and another obstacle put by the then Executive in the way of restoration of Constitutional democracy in our country was removed. In the case of "Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others" (PLD 1989 Supreme Court 166) Haji Muhammad Saifullah Khan and others had, through Writ Petitions filed before the Lahore High Court, Lahore, challenged the dissolution of the National Assembly of Pakistan ordered by General Zia‑ul‑Haq on May 29, 1988 exercising the President's power under Article 58(2) (b) of the Constitution. The High Court had declared the dissolution of the National Assembly to be unconstitutional but had refused the relief of restoration of the National Assembly. The matter then came to the Supreme Court of Pakistan where the judgment of the High Court was ultimately upheld. Through an interpretative approach the Supreme Court declared the discretionary executive power of the President to dissolve the National Assembly to be justiciable and then found the exercise of that discretion by the President to be unconstitutional as the same had no sufficient nexus with the grounds upon which the Constitution permitted a dissolution. Mr. Justice Dr. Nasim Hasan Shah (the present Chief Justice of the Supreme Court of Pakistan) had written the main judgment in that case and he had observed therein that: "True enough, it is within the discretion of the President to determine whether these conditions are met or not but this discretion has to be exercised in terms of the words and spirit of the Constitutional provision ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ The discretion conferred jay Article 58(2)(b) of the Constitution on the President cannot. Therefore, be regarded to be an absolute one, but is deemed to be a qualified one in the sense that is circumscribed by the object of the law that confers it.‑‑‑‑‑‑‑‑‑ The circumstance that the impugned action has political overtones cannot prevent the Court from interfering, therewith, if it is shown that the action taken is violative of the Constitution. The superior Courts have an inherent duty, together with the appurtenant power in any case coming before them to ascertain and enforce the provisions of the Constitution and as this duty is derivable from the express provisions of the Constitution itself the Court will not be deterred from performing its Constitutional duty, merely because the action impugned had political implications." Just a week after the decision of Haji Saifullah's case the Supreme Court of Pakistan had decided the case of "Federation of Pakistan and another v. Malik Ghulam Mustafa Khar" (PLD 1989 Supreme Court 26) which significantly diluted the immunity granted by Article 270‑A of the Constitution to the convictions recorded by the Military Courts during the days of Zia‑ul- Haq's Martial Law. It was held that: "Acts, actions or proceedings which could not be treated as relatable or having nexus with the "previous operation" of the Martial Law Orders and Regulations would hardly fall within the protection offered by this paragraph. As observed by Kaikaus, J., in Abdur Rauf v. Abdul Hamid Khan PLD 1965 SC 671 no Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power; a mala fide order is a fraud on the statute. Apart from that, in view of the assurance given to the citizens by Article 4 of the Constitution Such acts action or proceedings which suffered from lack or excess of Jurisdiction or were mala fide or were coram non judice could not conceivably be regarded as done taken or held in connection with the previous operation of a Martial aw Regulation or Martial Law Order." In the case of "Hakim Khan and others v. Government of Pakistan and others" (PLD 1992 Supreme Court 595) the Supreme Court of Pakistan had to clarify the true position regarding the newly‑added Article 2‑A of the Constitution and in that judgment the Supreme Court had observed that: "The role of the Objectives Resolution, accordingly in my humble view, notwithstanding the insertion of Article 2‑A in the Constitution (whereby the said Objectives Resolution has been made a substantive part thereof) has not been fundamentally transformed from the role envisaged for it at the outset; namely that it should serve as beacon -light for the Constitution‑makers and guide them to formulate such provisions for the Constitution which reflect ideals and objectives set forth therein. Thus, whereas after the adoption of the Objectives Resolution on 12th March, 1949, the Constitution‑makers were expected to draft such provisions for the Constitution which were to conform to its directives and the ideals enunciated by them in the objectives Resolution and in case of any deviation from these directives, while drafting the proposed provisions for the Constitution the Constituent Assembly, before whom these draft provisions were to be placed, would take the necessary remedial steps itself to ensure compliance with the principles laid down in the objective Resolution. However, when a Constitution already stands framed (in 1973) by the National Assembly of Pakistan exercising plenary powers in this behalf wherein detailed provisions in respect of all matters referred to in the objectives Resolution have already been made and Article 2‑A was made a mandatory part thereof much later i.e. after 1985 accordingly now when a question arises whether any of the provisions of the 1973 Constitution exceeds in any particular respect, the limits prescribed by Allah Almighty (within which His People alone can act) and some inconsistency is shown to exist between the existing provision of the Constitution and the limits to which the man‑made law can extend; this inconsistency will be resolved in the same manner as was originally envisaged by the authors and movers of the Objectives Resolution namely the National Assembly itself. In Practical terms this implies in the changed context, that the impugned provision of the Constitution shall be corrected by suitably amending it through the amendment process laid down in the Constitution itself." That case set the whole controversy over Article 2‑A of the Constitution at rest and conclusively established the supremacy of the Constitution in that respect by declaring that in case of a conflict between different provisions of the Constitution it is the Legislature and not the Judiciary which is to remove that conflict. The high water‑mark in this march towards supremacy of the Constitution came in the recent case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 Supreme Court 473) when the dissolution of the National Assembly ordered on April 18, 1993 by President Ghulam Ishaq Khan was set aside as unconstitutional and the National Assembly as well as the Government and the Cabinet of Mian Muhammad Nawaz Sharif was restored by the Supreme Court of Pakistan. An apparently discretionary executive order passed by the Head of the State against the Legislature of the country was found to be constitutionally defective by the Judiciary of Pakistan. Chief Justice Dr. Nasim Hasan Shah had observed in that judgment that: "Unfortunately, this belief that he [the President] enjoys some inherent or implied powers besides these specifically conferred on him under Article 46, 48(6), 101, 242(1‑A) and 243(2)(e) is a mistaken one. In a Constitution contained in a written document wherein the powers and duties of the various agencies established by it are formula with precision it is the wording of the Constitution itself that is enforced and allied and this wording can never be overridden or supplemented by extraneous principles or non‑specified enabling powers not explicitly incorporated in the Constitution itself. In view of the express provisions of our written Constitution detailing with fulness the powers and duties of the various agencies of the Government that it holds in balance there is no room of any residual or enabling powers inhering in any authority established by it besides those conferred upon it by specific words." After carefully analyzing the grounds of dissolution given by the President the same were found by the Supreme Court to be falling short of the requirements of Article 58(2)(b) of the Constitution. Chief Justice Shah had concluded his judgment in that case in the following words: "The people of Pakistan have willed to establish an order wherein the State shall exercise its powers and authority through the chosen representatives of the people; wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed (Article 2‑A). No one man howhighsoever can, therefore, destroy an organ consisting of the chosen representatives of the people unless cent proper and sufficient cause exists for taking such a grave action. Article 58(2)(b). no doubt. empowers the President to take this action but only where it is shown that "a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution": ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ In these circumstances, the dismissal of the Prime Minister alongwith his Cabinet and the dissolution of the National Assembly under the purported exercise of powers conferred on the President under Article 58(2)(b) cannot be upheld. The action taken did not fall within the ambit of this provision. This unlawful action moreover was also violative of Fundamental Right 17. As this Court is duty bound to enforce Fundamental Rights and will not hesitate to enforce them whenever it is established that the have been violated the necessity for taking action under Article 184(3) of the Constitution arose in this case. Thus, through a judicial verdict, a discretionary order of the highest functionary of the State, i.e. the President of Pakistan, was set aside and the action taken thereunder was rolled back. This, probably, was the first time in the known history of democratic and civilized world that an overthrown executive and legislature were put back in power through a judicial verdict having no coercive force other than commitment to Constitutionalism. The acclaim received nationally as well as internationally by that judgment of the Supreme Court of Pakistan has not only acknowledged the undaunted independence of our judiciary but has also demonstrated it as a fact that, having achieved the cherished goal of supremacy of the Constitution and adopted Constitutionalism as a way of life, the Pakistani society has come of age. In that backdrop, and given the commitment that we all have towards Constitutionalism, I am quite confident that we in Pakistan are quite close to achieving the cherished objective of separation of powers and the day is not far away when the three organs of our State, i.e. the Legislature, the Executive and the Judiciary will overcome all conflicts and achieve perfect harmony and cohesion within the framework of our Constitution.