AMENDMENTS IN F.T.O. CLAUSES SOUGHT-VIS-A-VIS SEPARATION OF POWERS.

LIST OF NOTIFICATIONS REPRODUCED IN THE in the Pakistan Constitution. But as in the case of Constitutions of the United States Australia and Sri Lanka, such is the structure of the Constitution that is a concept inferred from its organization principles. Like many Constitutions on the Westminster model, the Pakistan Constitution deals, in separate parts, with the legislature, the executive and judicature and there can thus be discovered the vesting of the legislative, the executive and the judicial powers in three separate organs (Registrar v. Wali Muhammad 1997 SCMR 141, 154). Separation of power is, therefore, implicit in the Constitution. At one time, the view taken was that "it is a misnomer to say that the separation of powers is an accepted feature of our Constitution as a ground for striking off the impugned legislative instrument "(Fauji Foundation case PLD 1989 SC 457, 628, 636). But separation of powers is the basis of decision in the more recent leading Constitutional cases: "Sharaf Faridi v. Federation PLD 1989 Kar. 404 FB Government v. Aziziullah Memon. PLD 1993 SC 341; Al Jihad Trust v. Federation 1996 SC 324; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; and Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504". As has been said to hold otherwise "would seek to throw into serious disarray the pivotal arrangement in the Constitution regarding the division of sovereign power of the State among its principal organs, namely, the executive, the legislature and the judiciary, each being the matters of its assigned field under the Constitution" (Messrs Mamunkanjan Cotton Factory v. the Punjab Province PLD 1975 SC 50). We must, so run the observations in a recent case" look to 'the scheme of the Constitution which is based on the principle of trichotomy of power, meaning thereby that the power is divided between the executive, the legislature and the judiciary" (Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504). 2The vires of the Criminal Law (Special Provision) Ordinance, 1968 were challenged before the Balochistan High Court as violative of Article 21,9,14,25 and 175 of the Constitution. The High Court declared the impugned law as violative of the above provisions of the Constitution. The appeal was filed in the Supreme Court of Pakistan. 2. Constitutional law of Pakistan The main emphasis was that under the present Constitution, no judicial functions can be assigned to any executive officer as it was prevalent in Balochistan. Honourable Supreme Court rendered a detailed and beautifully worded judgment covering all the issues. The relevant paras. of the judgment are reproduced herein. "In fact the administration of justice cannot be made subject to or controlled by the executive authorities. The Constitution provides for separation fot judiciary from the executive. It aims at an independent judiciary which is an important organ of the State within the Constitutional sphere. The Constitution provides for progressive separation of the judiciary and had fixed a time limit for such separation. It expired in the year 1987 and from then onwards, irrespective of the fact whether steps have been taken or not, judiciary stands separated and does not and should not seek aid of executive authorities for its separation. Separation of judiciary is the cornerstone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of the executive officers. This is merely a semblance of establishing Courts which are authorized to decide cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities "without being under the control and supervision of the judiciary can hardly facet the demands of Constitution". Considering from this point of view we find that the impugned Ordinance, II of 1968 from the cognizance of the case till the revision is disposed of, the entire machinery is in the hands of the executive from Naib Tehsildar to the official of the Government in the Ministry. Such a procedure can hardly be conducive to the administration of justice and development of the area nor will it achieve the desired result of bringing law and order, peace and tranquillity or economic prosperity and wellbeing. The Constitution envisages independent judiciary separate from the executive. Thus any Tribunal created under the control' and superintendence of the executive for adjudication of civil or criminal cases will he in complete conflict with Articles 175, 9 and 25." Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341). Thus the extension of powers so sought for the office of the FTO, if granted, would (in my opinion) violate the Doctrine of Separation of Powers and would thus be violative of the provisions of Article 175 of the Constitution of Islamic Republic of Pakistan and therefore, the sought amendment needs to be twice considered before being passed (if at all).