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preceding section, the first legislation Pakistan ever adopted was the Government
of India Act 1935.
The questions for the sake of clarity are reiterated below:
1. Does the political system address issues of equal representation?
194
2. Does the political system provide for separation of powers and checks and
balances?
195
3. Are there elements of self-interest exercised by influential individuals that
can override the controls in the system?
196
The first question, whether there is or is not equal representation can be examined
by
taking a subjective, interpretivist approach. This factor was selected for the
purpose of this test because it is important for a Political System to have a balanced
representation whereby not only the population but also the federating units are,
as explained at 3.2, equally represented. It is also, as explained in Chapter 5, a key
component of the US political system.
The answer to the second question can be established objectively. In this question
reliance is placed on a positivist approach to determine whether or not a rule exists
in an established system.
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This factor was selected for the purpose of this test
because this factor adds to political stability and reduces the risks of premature
dissolution. It is also, as explained in Chapter 5, a key component of the US system.
The third question is not a question of fact and can be examined only by taking a
subjective, interpretivist approach alongside a legal realist approach in which any
possible influences behind the judges’ reasoning are examined.
This factor was
selected for the purpose of this test because of its detrimental nature towards the
progression of democracy since this element stems from the vice regal time.
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Equal Representation: refers to democratic representation of people of the state and federal
representation of
federating units, resulting in formation of a government based on balanced
representation at both democratic and federal level.
195
Separation of Powers and checks and balances: where all three branches of government are
independent of
and keeps check on each other, in addition in a bicameral arrangement, both houses
keep a check on each other in a balanced manner.
196
Self-interest: where one office or official has enormous power to
alter the constitution or
government.
197
HLA Hart, 'Positivism and the Separation of Law and Morals' (1958) 71(4) Harvard Law Review
593.
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It is conceded that these factors come from the US political system, and the test
may appear redundant at first glance since it can be foreseen that these factors are
not present in the political systems of Pakistan and it is inevitably going to fail.
However, the purpose of the test is to conduct a thorough analysis in terms of how
it fails and to what extent these factors are not employed. In addition, this analysis
will also uncover why these factors are so important and explore in the next section
as to how useful these can be if implemented.
The constitutional history of Pakistan is divided in four phases in this section, where
an analysis of the cases involving judicial encouragement (of premature dissolution)
is carried out. From a legal realist standpoint, it is
noted whether this judicial
encouragement was affected by some coercive or other influence over the judges
who made such decisions.
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