M Ali Siddiqi talks about a very relevant issue
The concept and practice of separation of powers has been in vogue since a considerably long time and it is an accepted governance principle in modern day and age. This principle gradually evolved along with the entity recognised as state. The many vicissitudes the evolutionary state experienced also included the system of its governance and gave rise to a potent body devised specifically to manage its affairs. For this purpose a multi-dimensional outfit emerged known as government holding sway over the territories recognised as a state. Amongst many complications the evolving apparatus of government faced was the precise nature of power assigned to respective organs of the government. It was witnessed to the chagrin of operatives of government that they could not assign arbitrary authority to any singular organ of the government that gave rise to profound deliberations about the matter.
It was decided after quite a long time that multiple aspects of government could be suitably discharged with some kind of operating balance between them otherwise the entire process would be mired in consistent tug-of-war between them. It was accordingly decided that a suitable separation of powers within the organs of a government was the only way forward. This concept detailed the nature and extent of the powers to be possessed and exercised by each organ of the government. In its essence separation of powers emphasised that individuals enjoy liberty only when the powers of the government are separated in a balanced manner. This concept held its relevance in terms that government, being an agency through which the will of the state is formulated, expressed and realised. Both angles of the government dealing with territorial and functional aspects have separate areas of responsibility.
In this context separation of powers point out that the territorial organisation of the government relates to the splitting up of the territory of the state into several political divisions. Each political division is entrusted with certain powers and functions. As against this, functional organisation of government is related to the distribution of powers among the three organs namely legislature, executive and judiciary. It therefore becomes clear that the concept of separation of powers is concerned with the functional distribution of governmental powers. This is where the relevance of this concept is emphasised and it is quite clear that any deviation from it usually results in a perpetual imbalance within a state. Any deviation from this concept directly impinges upon the liberty of individuals inhabiting territories of a state as they could enjoy liberty only when there is no abuse of powers.
The emphatic consideration of abuse of power was the underlying factor in keeping powers separate and for this purpose an adequate system of checks and balances was put in place. It was pointed out that proper and prudent government required moderate powers as any lopsided tilt towards more power was bound to be abused. It was added that in a system where power was concentrated or combined in any governmental organisation individual liberty cannot be maintained and preserved. In this context it was mentioned that if legislative and executive powers are combined in the same person or body of persons, the same agency acts as the law maker and law executor with the consequence that the power contained therein could be abused.
The separation of power principle underscored that powers of the government, under no circumstances, should be concentrated in one person or a body of persons. It strongly advocates that power should be appropriately distributed among the three organs of government that evolved with the state. This concept is totally against the fusion of powers of the government either in one organ or the two as this balance is the essence of equitable governance and proper exercise of governmental functions. The concept puts in place a structure assigning specific and special powers to each organ of the government favouring the provision of powers in a balanced manner. It states that such exercise of power should be done with restraint and in a democratic manner ensuring smooth functioning of the state and its people.
The separation of power principle is strongly based upon the system of checks and balances and accordingly emphasises introduction of checks and balances as supplementary to the separation of power. It enables each organ to wield a limited degree of control over the others either by participating to some extent in the exercise of powers allocated primarily to a particular branch or by making effective functioning of each organ contingent upon the supporting action by the others. This aspect of the principle is currently considered an essential reality of political science and is widely practiced even in states that do not adhere to the notions of democratic governance.
This principle advocates the provision of special and specific powers to each organ of the government. It made each organ as an independent and supreme organ its own sphere with relevant powers assigned to it. It is also favoured special identity to each organ clarifying its area of responsibilities. Such designation of specific powers leads to the specialisation of functions and increase in the efficiency of each organ with the ultimate aim of coordinating exercise of governance. This principle has proved its validity over a period of time and it has also evolved with the changing aspects of governmental functioning. There is hardly any doubt that the principle of separation of powers has proved its relevance in modern day governmental activity. Modern states follow this principle that is usually enshrined in their constitutions and is correctly adhered to.
Though this principle was and is still considered a very valuable reality in modern governance yet it is also conceded that absolute separation of powers is almost impossible and the reason for it is that for all intents and purposes government is an integrated body with many of its organs interconnected and cannot be divided into water-tight compartments. It is also pointed out that efficient and prudent governance demands proper articulation and not separation of powers. As this theory is essentially functional in context therefore it is difficult to maintain their separateness as the values resulting from such separation and the problem of how best to combine these separate institutions of government are commensurate with the structure of society.
While conceding that separation of powers is deeply instrumental in ensuring efficient and equitable governance yet this essential principle is grossly violated in Pakistan. It is also conceded that the powers and functions of executive have increased tremendously thereby making the legislature and judiciary less powerful but in the way they are ignored in Pakistan is simply traumatic. The emphasis this principle lays on separating powers with a view that no single organ could exert its own impact, either directly or indirectly upon the other organs but Pakistan’s governance structure is extremely lopsided with an organ of the state impinges upon the functions of other organs in such a fashion that it has smothered them all. This extraordinary dominance has completely disfigured the governance structure in Pakistan and has deeply and negatively impacted the governmental functionality. In these trying times for Pakistan it is absolutely imperative that the principle of separation of powers should be revisited and adhered to in letter and spirit. TW