Separation of Powers

A Case Study of Pakistan

So a Ahmad
LLB-B
Fall 2021

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 Table of Contents

1.What is separation of power?

2.The doctrine of separation of power.
3.Difference between the USA and UK
4.The case of Pakistan in separation of powers
5.Comparison between the UK and USA.
6.Origin of the separation of power.
7.Importance of the separation of Power.
8.The Hypothetical separation of powers in Pakistan
9.Separations of Powers and Pakistan
10.Separation of powers and the justices of peace in Pakistan

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 What is Separation of Power?

Charles-Louis de Secondat Montesquieu advanced an idea of equal distribution of power

amongst three pillars of a democratic state; legislative, executive, and judiciary. He also
propagated a system of checks and balances to maintain this distribution. According to him this
separation of powers is pivotal for a smooth, uninterrupted and efficient democracy. However,
since its inception Pakistan has endured the viceregal system of governance-where executive has
always been the most powerful. Whether it was a military rule or a civilian government all
concentrated power in one man’s hand- the executive. This propelled the power mongering and
conflict ridden political culture amongst different pillars of the nation-state. Resultantly,
dysfunctional institutions emerged which led to political instability and polarization. This legacy
has severely damaged the democratic process in the country – even it continues today without
any interruption.

The Three Powers: Legislature, Executive, Judiciary

Checks and balances (rights of mutual control and influence) make sure that the three powers
interact in an equitable and balanced way. The separation of powers is an essential element of the
Rule of Law, and is enshrined in the Constitution.

1.The Legislative Power

The first of the three powers has the task of passing laws and supervising their implementation. It
is exercised by Parliament – i.e. the National and Federal Councils – and the Provincial Diets.

The implementation of laws is the task of the executive and judicial branches

2.The Executive Power

The executive branch has the task of implementing laws. It comprises the Federal Government,
the Federal President and all federal authorities including the police and the armed forces.

3.The Judicial Power (Judiciary)

Judges administer justice, viz. they decide disputes independently and impartially. It is their task
to ensure that laws are complied with. Judges cannot be deposed and cannot be assigned other
positions against their will.

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 The Doctrine of Separation of Power

Separation of powers or trias politica is a model of democracy that involves the separation of
political power between the government’s three branches – the executive, the legislature and the
judiciary. In a system where there is a separation of powers, each branch is constrained from
intervening in the area of responsibility of another branch.

The doctrine of separation of powers or checks and balances between independent and co- equal
branches of government, is derived from the work of the French political and social philosopher
Baron de Montesquieu. The latter in his Spirit of Law (1734)1 defined the principle of separation
of powers, based on a system of checks and balances in government.

The phrase check and balance implies that there are competing sovereigns (such as in a federal
system in a political structure). ‘Check’ refers to the ability, right and responsibility of each
power to monitor the activities of the other (s), while ‘balance’ refers to the ability of each entity
to use its authority to limit the power of the other.
In other words, the principle of separation of powers holds that in order to avoid a concentration
of power in the hands of a minority in a political system, the three principal constituents of
government – the executive, the legislature and the judiciary should be separate and enjoy equal
and well-defined powers and independence.

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 Difference between the USA and UK

USA UK

1. Doctrine of separations of powers has 1. The Doctrine of separation of power has not
been accepted and strictly adopted in the been accepted in the UK.
US.
2. Integration of power not adopted. 2. Integration of power is adopted.

3.Legislative powers are vested in the 3. In England, all three powers are vested in three
congress. Executive power vested in the separate organs of the government and each one
President. Judiciary power vested to the has its peculiar features but there is “sharing out”
supreme court and its subordinate courts of the powers of the government.
of the US.
4. Separations of Powers. 4. Fusion of Powers.

The Case of Pakistan in Separation of Powers

Throughout its history, Pakistan has been an executive dominated state and this trend is linked to
the Muslim era and to British rule in India .The Muslim sultan (monarch) was the chief
executive, the sole legislator and the chief judge in his dominion. The power of the executive, the
legislature and the judiciary were concentrated in him and he ruled by decrees.26 No written
constitution is known to have existed during the Muslim rule in the period beginning from the
twelfth century till the eighteenth century, when the British became supreme in the subcontinent.
The British came to the sub continent as merchants and slowly held sway of the whole
subcontinent, formally disbanding Muslim rule in 1858.

For governing the sub-continent, the British parliament passed the Government of India Act 1858
and then the Government of India Council Act 1861, the Minto-Morley Reforms of 1909, the
Government of India Act 1919 and finally the Government of India Act 1935. The 1935 Act drew
from previous Acts with some innovations.

• In the 1935 Act, the position of the Governor General (Viceroy) was unique. As the
representative of the British crown in India, he enjoyed final political authority and the widest

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 discretionary powers and special responsibilities. The supreme command of the army, navy and
air force was vested in him.
• The Governor General had extraordinary powers of legislation. He could however, seek the
advice of a council in all matters except defence, external affairs and the affairs which involved
his special responsibilities. Though he could seek ministerial advice, he was not bound to act
thereupon.
• The Act also contained a special provision stating that if the Governor General felt that the
government of the federation could not be carried on in accordance with the provisions of the
Act, he could declare that his functions now extended to all or any of the powers vested in or
exercisable by any federal body or authority, other than a federal court.

Comparison Between UK and the US

The position has been summed up by the Donoughmore Committee in the following words:-

“In the British Constitution there is no such thing as the absolute separation of legislative, executive and judicial
powers. In practice it is inevitable that they overlap. In such Constitutions as those of France and the United
States of America, attempts to keep them rigidly apart have been made, but have proved unsuccessful. The
distinction is nonetheless real and… important. One of the main problems of modern democratic State is how to
preserve the distinction whilst avoiding too rigid an insistence on it, in the wide border land where it is
convenient to entrust minor legislative and judicial functions to executive authorities.”

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 Origin of the Separation of Power

There is an old adage containing a lot of truth that “power corrupts and absolute power corrupts
absolutely”. To evolve effective control mechanism, man had been looking for devices to contain
the forces of tyranny and authoritarianism. “Separation of Powers” was conceived to be one
such device.

“There are three elements in each constitution in respect of which every serious lawgiver
must look for what is advantageous to it; if these are well arranged, the constitution is
bound to be well arranged, and the differences in constitutions are bound to correspond
to the differences between each of these three elements. The three are, first the
deliberative, which discusses everything of common importance; second, the officials . . .;
and third, the judicial element.”

The English political theorist, JohnLocke (1632-1704), also envisaged a threefold classification
of powers. Writing in The Second Treatise of Government (1689), Locke drew a distinction
between three types of power: legislative, executive and federative. . In Locke’s analysis, the
legislative power was supreme and although the executive and federative powers were distinct,
the one concerned with the execution of domestic law within the state and the other with a state’s
security and external relations, he nevertheless took the view that ‘they are always almost united’
in the hands of the same persons.

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 An Evaluation of Separation of Powers: A Case
Study of Pakistan (2007-2013)

The principle, 'separation of powers' has the purpose to protect the citizens of the state
from rash, tyrannical and unrestraint powers of the rulers. Democracies all over world
consider that tyranny and arbitrary rule of the Government can be minimized by
implementing the separation of powers in its proper context. In Pakistan, the concept
'Separation of Powers' could not find its place accurately. Since the establishment of
Pakistan (1947), executive branch managed to possess judicial and legislative powers
with themselves. This practice fashioned the fragile political system and instable
democracy in Pakistan. Resultantly, civilian's governments had been removed from
power by Military on several times. Courts were ready to justify the military takeover on
the grounds, such as 'law of necessity'. It was only after the restoration of chief justice
Chaudhry in 2009 that judicial branch started functioning on the line of real independent
institution in the country. This was considered the commencing of the separation of
powers for the first time in the political history of Pakistan. This article examines four
cases during the above mentioned era to understand whether or not separation of powers
practically exists in Pakistan.

The liberal democracies in world have the tradition of power sharing among the
state institutions. People's liberty is ensured when powers of the government are
divided between executive, judicial and legislative branches. It is hard fact that
political managers of Pakistan could not decide to establish and implement any of
the government system. Theoretically, they announced to run the state under
Islamic democracy but, practically they adopted neither democracy nor Islam.
They shaped their own system to manage the affairs of state.

Powers remained personality centered instead of functioning through separate

institutions. The constitutions, adopted in Pakistan provide the separate role and
function of the three institutions, but in reality, judiciary remained passive to the
executive. Leading to this callous observation, it can be concluded that Pakistan's
Supreme Court has followed the path of least resistance and least fidelity to
constitutional principles.the courts has been the military's handmaiden in extra -
constitutional assaults on the democratic order

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 What is separation of powers and how is it ineffective
in Pakistan?

• Montesquieu states that “when the legislature and the executive powers are united in the
same persons or in the same body of magistrates there can be no liberty , because
apprehensions may arise , lest the same monarch or separate should enact tyrannical
laws.” • There is no liberty if the judicial power is not separated from the legislative and
executive.
• No concentration of powers. • Diffusion of power is needed. • In short, the theory of
separation of powers merely means that a different body of persons is to administer each
of of the three departments of government and that no one of them is to have a controlling
power over either of them. • Such a separation is necessary for the purpose of preserving
the liberty of the individual and for avoiding tyranny. PRINCIPLES OF THEORY OF
SEPARATION OF POWERS
• It aims at individual liberty. It is a safeguard against despotism. • Its basic principle that
concentration of power s leads to dictatorship is true for all time and ages. • The
separation of powers saves the people from arbitrary rule of executive •

• CRITICISM. • It is not desirable because if there is complete separation of powers , the

different organs of the government will not be able to work in co-operation and harmony.
As a result ,there would be frequently deadlocks which may bring the governmental
machinery to a standstill. • According to Mill, ”the separation of powers will result in a
clash between the three organs of government, as each one will take interest only in its
own powers”. •

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 • CRITICISM. • The theory of separation of powers makes a mistake in assuming that the
three branches of government are equally powerful and can be independent of one
another. • The growth of administrative adjudication is another redevelopment which is
against the doctrine of separation o f powers. The executive is being vested with judicial
powers a swell as other duties otherwise the officers do not feel secure while performing
their duties.
• Clear Distinctions • The separation of powers is also reflected in the fact that certain
functions must not be exercised by one and the same person. Thus, the Federal President
cannot at the same time be a Member of the National Council, or a judge who is appointed
Minister or elected to be a Member of the National Council must be temporarily
suspended from his/her judicial duties.
• Role ofLegislature • The legislative branch of government is responsible for enacting the
laws of the state, supervising their implementation and appropriating the money necessary
to operate the government. The Government has to justify itself to Parliament in respect of
everything it does or causes the administration to do. • Jinnah saying: • "you are now a
sovereign legislative body and you have got all the powers. It, therefore, places on you the
gravest responsibility as to how you should take your decisions".
• National Assembly • Work of NA is to make laws and do work for the public welfare. •
Senate • The Senate is the second chamber of the Parliament. It is independent from, and
complements the work of, the National Assembly. The Senate shares the task of making
and shaping laws and checking and challenging the work of the government.
• Role of Executive • The executive branch is responsible for implementing and
administering the public policy enacted and funded by the legislative branch. The
executive branch has the task of implementing laws. It comprises the Federal
Government, the Federal President and all federal authorities including the police and the
armed forces.
• NAB • The National Accountability Bureau is an autonomous and constitutionally
established federal institution responsible to build efforts against corruption and prepare
critical national economic intelligence assessments against economic terrorism to the
Government of Pakistan. FIA • The Federal Investigation Agency is a border control,
counter-intelligence and security agency under the control of the Interior Secretary of
Pakistan, tasked with investigative jurisdiction on undertaking operations against
terrorism, espionage, federal crimes, ...

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 • IB • Work Profile of IB Intelligence Officers (ACIO) It is a security agency so your job
is related to the security subject at national and central level. Usually, the newly recruited
candidates are posted on border areas for the limited duration of time. • Police • As a
police officer you'll work in partnership with the communities you serve to maintain law
and order, protect members of the public and their property, prevent crime, reduce the fear
of crime and improve the quality of life for all citizens.
• Army • It is to ensure the national security and national unity of the country by defending
it against external aggression.
• Role of Judiciary • The judicial branch is responsible for interpreting the constitution and
laws and applying their interpretations to controversies brought before it. • Judges
administer justice, viz. they decide disputes independently and impartially. It is their task
to ensure that laws are complied with.
• Its main principle to eradicate powers from one hand.

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 Importance of the separation of Power
1. It aims at individual liberty. It is a safeguard against despotism.

2. Its Basic principle that concentration of powers lead to dictatorship is true for all
time and ages.

3. The separations of powers save the people arbitrary rule of executive.

4. This theory lays down the principle that governments should act according to
well established rules or laws,

5. Each organ acts as a check upon others.

6. It is desirable for maintaining the efficiency in the administration.

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 The Hypothetical separation of Powers in Pakistan

The judicialization of politics and the politicization of judiciary have been on the rise
over the past few years. In order to understand the complexity of the above statement,
let’s take the example of the human body where each organ has a definitive purpose to
perform, like the heart is responsible for pumping blood carried by veins after
purification from the kidneys and the brain has to process sensory information. Any
interference by one organ into the affairs of the other will ultimately result in a collapse
of the whole system.

Similarly, the concept of separation of powers or trias politica adheres to strict checks and
balances between the three organs of the state namely the legislature, the executive and
the judiciary. In Pakistan, the powers of two out of three organs (except for the judiciary)
are derived from Article 7 of the Constitution of Pakistan, whereas the role of the
judiciary is mentioned in Part VII of the Constitution (which is to maintain order
between all organs). No authority, except where allowed by law, can encroach on the
jurisdiction of others. The firmer the trichotomy of powers, the stronger the governance
in the state.

Unfortunately, the judiciary has often been seen to step in where the executive has failed
to cope with the expectations or aspirations of the people.[1] In Pakistan, the meddling of
the court into the work of other organs can be traced back to the Tameezuddin case, the
revolution of judicial activism after the lifting of martial law in the 1980s, and the wave
of public interest litigation initiated by former Chief Justice Iftikhar Chaudhry through
cases involving hajj corruption, inhumane treatment in jails, missing persons and the
recent decisions in the Panama Papers and Dam Fund cases.

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“Under Article 184(3) of the Constitution, the Supreme Court of Pakistan has the
authority to exercise suo motu powers to take action on a matter if the issue at hand has
two aspects i.e. if it is of public importance and if there has been a violation of
fundamental rights as per Chapter 1, Part II of the Constitution. In a recent
case[2] relating to the reappointment/extension of tenure of the incumbent Chief of Army
Staff (COAS) where the Prime Minister had arbitrarily extended tenure, the Supreme
Court exercised its inherent jurisdiction under Article 184(3) but also showed judicial
restraint towards interfering in the matters of the executive and held that such powers
exclusively vested with the President. It was an example of respecting the trichotomy of
powers”.

However, the newly appointed Chief Justice of Pakistan (CJP), Justice Gulzar Ahmed,
exercising the original jurisdiction of the Supreme Court, took his first suo
motu action on 10th April 2020 in the awake of the recent COVID-19 outbreak. The
action was taken in light of the federal government’s incompetence and failure to
formulate a proper plan to overcome the pandemic. On the first hearing on Monday,
13th April 2020, the CJP showed reservation towards the appointment of Dr. Zafar Mirza
(Special Assistant to Prime Minister on Health Affairs) for being incompetent and
ordered his removal from the post, mentioning that he had done nothing in his capacity.

In this chaotic situation, it is pertinent to note that one of the two requirements, i.e. the
violation of fundamental rights as set out under article 184(3) for taking suo motu
action, has not been met. None of the fundamental rights given in Chapter 1, Part II of
the Constitution have been breached here. Instead, the matter falls more under
‘principles of policy’ given in Chapter 2, Part II of the Constitution which are clearly
not covered by article 184(3) of the Constitution. While the government, be it federal or
provincial, has indeed failed to provide people with the basic necessities of life covered
under article 38 of the Constitution, if a case has to be made for breach of any right it
would not be for fundamental rights rather for the promotion of social and economic
well-being of the people.

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While the Supreme Court’s power to exercise original jurisdiction has occasionally been
exceeded by judges over the course of time, other organs of the state have also been seen
to disrupt the separation of powers. For instance, the armed forces of Pakistan in the past
have transgressed executive jurisdiction by issuing a proclamation of emergency and
taking extra-constitutional steps to intervene in the affairs of the government. However,
in that situation the Supreme Court exercised its power of judicial review[3] and held that
neither the Provisional Constitutional Order of 1999 nor any principle of necessity
could restrain the power of judicial review vested in the superior courts.

Coming back to the politicization of judiciary owing to the actions of a few who have
misused powers granted by the Constitution and intervened in the domain of other
organs, it is submitted that it is high time for the executive to take charge in the midst of a
pandemic situation. The President could summon an emergency meeting of Parliament
under Article 54 of the Constitution or enact an Ordinance to save the government from
being judicialized.

Suo moto actions are only taken when no petition is listed for hearing in the Supreme
Court and the court is compelled to initiate action on its own. However, it has been
claimed by an advocate named Usama Khawar that he did bring forth a constitutional
petition pertaining to the same matter of reviewing the COVID-19 situation which had
been disregarded and a suo motu action had been taken by the court instead. The entire
matter has now raised serious concerns about the validity of the action taken by the Chief
Justice.

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 Separation of Powers and Pakistan
Charles-Louis de Secondat Montesquieu advanced an idea of equal distribution of power
amongst three pillars of a democratic state; legislative, executive, and judiciary. He also
propagated a system of checks and balances to maintain this distribution. According to
him this separation of powers is pivotal for a smooth, uninterrupted and efficient
democracy. However, since its inception Pakistan has endured the viceregal system of
governance-where executive has always been the most powerful. Whether it was a
military rule or a civilian government all concentrated power in one man’s hand- the
executive. This propelled the power mongering and conflict ridden political culture
amongst different pillars of the nation-state. Resultantly, dysfunctional institutions
emerged which led to political instability and polarisation. This legacy has severely
damaged the democratic process in the country – even it continues today without any
interruption. How far Pakistan would continue to live in this quagmire and what are the
means to get out of this conundrum? This is the fundamental question for all stakeholders
to ponder upon.

A shrewd analysis of the dynamics of Pakistan’s politics illustrate that since its very
creation institutional clash, though other factors would have also affected, has been a
major hurdle in its progress. A retrospective look reveals that struggle for the
centralization of authority has been at the centre stage in the politics of Pakistan. It
basically emerged from the feudal structure of the society. First, right after partition of
sub-continent Pakistan inherited The Government of India act 1935 and adopted it as its
constitution with slight modifications. This constitution vested strong discretionary
powers in the hands of Governor General. Only Governor General enjoyed absolute

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authority, even he had the authority to dismiss PM. This laid the foundation of one man
dominated political culture in the country. Second, the first constitution of the country
was promulgated in 1956 which abolished the office of Governor General. This replaced
the powers of Governor General with the President. Thereafter, the president enjoyed all
discretionary powers, earlier vested in Governor General, even dismissal of PM. Later on,
many office bearers exercised this authority, when they dismissed existing Prime
Ministers, destabilizing the country. This formed the bases of dysfunctional institutions.
Third, again in 1962 constitution, power was concentrated in the hands of president. With
the flavour of presidential form of government, this time, the president of the country
held sway over all matters. Fourth, though the façade of 1973 constitution was
parliamentary, however it established an authoritarian government with concentration of
power in the hands of the Prime Minister, Zulfiqar Ali Bhutto. Later on different
amendments in the constitution reinforced decentralization of power for smooth
democratic transition. However, this constitution is never practiced in its true essence.

The recent judicial activism is more or less a new challenge for democracy, because it
intervenes in the domains of legislative and executive. Undoubtedly, Judiciary is an
essential element of a state. It bears much importance, also, because it interprets the
constitution of a country. But this important role, in its part, can never be a justification
for intervening in the domain of others- either executive or legislative. In the post-
panama verdict Pakistan judiciary is trolling to tilt the balance of power in its favor.
However, undermining the powers of both legislative and executive the third pillar of
state is creating a mess.

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Whereas, at this critical moment of history, when our country is facing both internal and
external conventional and unconventional challenges. Would this power mongering
intervention serve in the best national interest of the country? Obviously, not. First,
though, ostensibly, the judiciary claims its moves for the better national interest of the
country, the result would be an aggressive but weak judiciary. History is the best judge of
events. Coming years would certainly clear many ambiguities in the current political cum
judicial fiasco. Already, the history of judicial verdicts is not free of biasness. Whether it
was Maulvi Tamizuddin case or Zulfiqar Ali Bhutto case verdict, these are clear
manifestations of judiciary’s political alignments. As, now, even judiciary does not
consider those decisions, once considered legitimate, accurate or unbiased. Even no one
in the institution dares to cite those decisions as a reference. All try to escape their
realities, because those were really flawed and biased decisions which undermined the
role of judiciary.

Second, intervention of an institution in the domain of another has dualistic affect. On the
one hand it destabilizes the intervened; while on the other it weakens the aggressor.
Consequently, by initiating an organizational clash and conflict ridden politics, this
institutional power mongering leads to an institutionally incapacitated, politically
destabilized and economically retrogressive country. As, Montesquieu explained, “There
is no greater tyranny than that which is perpetrated under the shield of the law and in the
name of justice”. Therefore, the need is to restrain from political alignments and biases
when deciding the fate of our future generations.

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Given the realities of criminal justice system of the country, judiciary needs more to
reform its institution. Putting its own institution in order would be a better option rather
destabilizing the country by disrupting cooperation and coordination between institutions.
For example, the existing lacunas in the criminal justice system are challenge for
judiciary. Free and fair trial based speedy justice is the fundamental right of every citizen.
However, the criminal justice system of the country helps the strong and wealthy against
the weak and poor. The honorable Chief should do the needful in this regard.

A judiciary separated from the legislative and executive would serve the best national
interest. Whereas, interventionism would only exacerbate the problems not only for
judiciary but also the whole country. Because, this would sabotage the fundamental
liberties of the populace. As Montesquieu says, “There is no liberty, if the judiciary
power be not separated from the legislative and executive. Were it joined with the
legislative, the life and liberty of the subject would be exposed to arbitrary control;
for the judge would then be legislator. Were it joined to the executive power, the
judge might behave with violence and oppression”.

In order to conclude, since its inception Pakistan has been facing the menace of political
instability and polarization. At the root lies the problems of institutional clash, power
mongering, and feudalistic structures which have constructed the political culture of the
country. Therefore, the power is not equally distributed amongst different branches of
nation-state. Montesquieu’s separation of powers theory, if applied in letter and spirit,
would create a peaceful environment for the progress and prosperity of this country. For
that, all stakeholders should collaboratively struggle for fusion of power at national level.

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The power must be decentralized and equally distributed amongst three pillars of country;
legislative, executive and judiciary, with a system of “checks and balances” for all these
branches. The prosperous future of Pakistan lies in the “separation of powers” as desired
by Montesquieu.

SEPARATION OF POWERS AND THE JUSTICES OF PEACE IN

PAKISTAN

Separation of Powers
One of the fundamental maxims of politics is that the legislative, executive
and judicial branches ought to be separate and distinct. The maxim nds its basis in the
concept of liberty. To elaborate — and as the supporters of the theory of separation of
powers advocate — it is believed that the accumulation of all three powers, i.e.
legislative, executive and judiciary, in the same hands, would result in tyranny, or in
other words, a lack of liberty. Brohi identi es two elements of the theory: (i) “that the
same person, or body of persons, should not be the repository of the powers of
the legislature, executive and judiciary or of any two of them”; and (ii) “that
legislation, execution and adjudication, should each be independent of the others
and that there should be, as far as possible, absence of control or interference by
one over the other”. Montesquieu, while talking about the power of adjudication,
stated that “were it joined to the executive power, the judge might behave with all
the violence of an oppressor”.This paper shall focus, in particular, on the separation
of powers between the executive and judiciary.

The well-established political maxim of separation of powers is found in

many constitutions of the world today. Various articles of the Constitution of the
Islamic Republic of Pakistan re ect this maxim. Article 175(3) provides for a stipulated
period within which the judiciary shall be progressively separated from the executive.
Furthermore, that the independence of the judiciary shall be fully secured is provided

LEGAL SYSTEM OF PAKISTAN 20

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for in the Objectives Resolution, which has been incorporated into the Constitution by
virtue of Article 2-A. These constitutional principles, i.e. separation of powers in
general, and independence of the judiciary from the executive in particular, have been
endorsed by the Supreme Court of Pakistan in numerous cases, illustrating the
indispensability of the doctrine[5].

• Justices of the Peace

A notion that seemingly con icts with the theory of separation of powers is
that of justices of peace. Below is a brief history of the concept of justices of peace,
followed by an embarkation upon an analysis of the veracity of the opening statement
to this paragraph.
The concept of justice of peace dates back to the twelfth century, when in
England, there were knights who were deployed by the King in order to maintain peace
in unruly areas of the kingdom. They became to be known as keepers or conservators
of the peace. At that time their role was only to maintain peace, as the name suggests,
and nothing more. Subsequently, the keepers or conservators were slowly given
judicial powers, such as the power to try minor cases, thereby causing the name to
evolve to justice of peace.
The institution of the justice of peace was rst introduced in the Indian Sub-
continent in Section 22 of the Code of Criminal Procedure 1989. Sections 23 and 24
dealt with the appointment of the justices of peace for Presidency Towns (repealed by
the Criminal Law Amendment Act, 1923), and Section 25 provided for the of ces that
constituted ex-of cio justices of the peace.
After independence, with respect to Pakistani Law, Section 22 went through
several minor changes over the years, eventually becoming the Section 22 that exists

LEGAL SYSTEM OF PAKISTAN 21

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today, by virtue of the Law Reforms Ordinance No. XII of 1972. This section
empowers the Provincial Government to appoint any person as a justice of peace. The
same Ordinance added Section 22-A (excluding sub-section (6)), which, in very broad
terms, allows justices of peace to exercise certain police powers of arrest, and to
require members of the police to render aid in certain circumstances. Section 22-B was
also incorporated, which conferred various duties on justices of peace, including, inter
alia, making inquiries regarding breach of the peace or commission of any offense and
rendering assistance to the police vis-a-vis investigation of offenses.

Section 25 also went through several changes over the years, and nally
became the Section 25 that exists today by virtue of a Federal Statute, the Code of
Criminal Procedure (Third Amendment) Ordinance No.CXXXI of 2002. According to
this section, Sessions and nominated Additional Sessions Judges are deemed to be
justices of peace. This Ordinance also added sub-section (6) to Section 22-A, which
provides for powers of an ex-of cio justice of peace, whereby they can issue
appropriate directions to the police following a complaint regarding non-registration of
a criminal case, transfer of investigation from one police of cer to another, and neglect,
failure or excess committed by the police in relation to its functions and duties.

Regarding post-independence India, the West Bengal Amendment Act, 30 of

1955 made a State amendment to Section 22, added Section 22-A (without sub-section
(6)) and Section 22-B, and repealed Section 25. Thereafter, the Code of Criminal
Procedure 1973, Act 2 of 1974 was enacted in which no new Sections corresponding to

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Sections 22 and 25 were inserted. Till the complete removal of the concept of Justice of
Peace in India in 1973, India did not have an equivalent to Section 22-A(6), as we do in
our law.
Interestingly, the Sections introduced by the Law Reforms Ordinance No. XII
of 1972 were worded identically to the corresponding Sections in the West Bengal
Amendment Act 1955, i.e. Sections 22, 22-A (excluding sub-section (6)) and 22-B. The
only difference was that West Bengal repealed Section 25, and hence separated its
judiciary from the executive as enunciated in its Constitution, whereas Pakistan
retained it.

• Is Section 22-A ultra vires the Constitution?

The main question formulated by the Supreme Court while granting leave to
appeal in Younas Abbas was whether Section 22-A is ultra vires the Constitution
inasmuch as it confers executive powers onto a judicial of cer. To state the obvious, it
is clear that Section 22-A does not involve any judicial power. As rightly stated by the
superior Courts of Pakistan, a justice of peace merely possesses an administrative or
ministerial role[6]. So then how does Section 22-A allegedly confer executive powers
on the judiciary? It is worth noting at the outset, that the powers under sub-Sections (1)
to (5) are exercisable for all justices of peace, including an ex-of cio justice of peace.
However, the powers under Section 22-A(6) are exercisable only by an ex-of cio
justice of peace.

The ultra vires issue with Section 22-A, and speci cally sub-section (6) arises
not due to Section 22-A itself, but by virtue of Section 25. Section 22-A(6) bestows
upon an ex-of cio justice of peace certain powers. An ex-of cio justice of peace in
plain terms means a person who is given the title of justice of peace by virtue of his

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 of ce. That of ce could be that of a Commissioner or a Zila Nizam, etc. However, the
problem here arises due to the fact that Section 25 de nes an ex-of cio justice of peace
as a judicial of cer.

The same issue lies with Section 22. Although one may not necessarily term
the powers under Section 22-A(1) to (5) as “executive” per se, even if we assume that
they are executive powers in the strict sense, then by virtue of Section 22, any person
appointed by the Provincial Government as a justice of peace can exercise those
powers. This can include a judicial of cer as there is no bar in Section 22 that prevents
a judicial of cer from being appointed.
In light of the foregoing, the issue lies not with the powers under Section 22-
A, but to whom those powers are conferred. Declaring Section 22-A, and sub-section
(6) in particular, to be ultra vires the constitution would render the remaining Sections
regarding the justices of peace practically redundant. This is because, although justices
of peace and ex-of cio justices of peace would nevertheless be appointed under
Sections 22 and 25 respectively, the primary powers exercised by them today are those
under Section 22-A, and particularly sub-section (6).

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 • Should the concept of justice of peace be removed?
One perspective is that Section 25 authorizes the same person to be the
repository of the powers of the executive and judiciary, hence it is in contravention of
the theory of separation of powers, Article 175(3) of the Constitution and the
Objectives Resolution. Section 22 falls prey to the same criticism due to the absence of
any bar against judicial of cers becoming justices of peace. Therefore, either we
remove the concept of justice of peace from our law entirely, as India has done. Or, that
Section 25 should be declared ultra vires, and Section 22 should be amended or
interpreted to re ect the idea that “any person” should exclude a judicial of cer.

Another point of view is that the theory of separation of powers entails that
the whole power of one department is exercised by the same hands which possess the
whole power of another department. However it certainly does not mean that each
department may not have control over the other. Should we adopt this interpretation of
the theory of separation of powers, then it may be said that none of the Sections of the
Code of Criminal Procedure pertaining to justices of peace are ultra vires the
Constitution, as the justices of peace are not exercising the whole power of the
executive, in addition to the whole power of the judiciary. They are merely exercising a
certain control over the executive — a check and balance mechanism, if one may.
Section 22-A(6) consists only of certain types of directions that an ex-of cio justice of
peace may give to a police of cial with regard to complaints relating to police
investigations, and not actual exercise of investigative powers.

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 Hence it is not necessary that in such a situation, the justice of peace will
become an “oppressor” as Montesquieu believes, due to the presence of succinct
guidelines regarding the limits of the exercise of power under Section 22-A(6) as laid
down by the superior Courts of Pakistan”. As Montesquieu maintains, “But constant
experience shows us that every man invested with power is apt to abuse it and to carry
his authority as far as it will go. Is it not strange, though true, to say that virtue itself
has need of limitation? To prevent this abuse, it is necessary from the very nature of
things that power should be a check to power”.

• Conclusion
Whether or not the concept of justices of peace is ultra vires the Constitution
thereby justifying its removal, ultimately depends on the de nition one adopts
regarding the theory of separation of powers as to what extent is the separation
required, between the judiciary and executive. Whether our Constitution contemplates
for, and can accommodate a certain amount of control of one department over another,
is open to interpretation. Which interpretation is adopted by the Supreme Court of
Pakistan remains to be seen: the verdict in Younas Abbas is highly anticipated.

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References:

1.https://nation.com.pk/14-Mar-2018/separation-of-powers-and-pakistan\

2.https://www.mytutor.co.uk/answers/56419/A-Level/Politics/Compare-the-powers-
contained-in-the-UK-and-US-constitutions-12/

3.https://courtingthelaw.com/2020/04/28/commentary/the-hypothetical-separation-
of-powers-in-pakistan/

4.https://www.parlament.gv.at/ENGL/PERK/PARL/POL/ParluGewaltenteilung/
index.shtml

5.https://www.pljlawsite.com/2015art51.htm

6.https://pgil.pk/wp-content/uploads/2014/05/An-Article-on-Separation-of-
Powers.pdf

Roll No: 247 FSL LLB/S21/5Y

Submitted to: Dr. Mudasara Sabreen

The End

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