participation and security against abuse of power.
115
3.3 Doctrine of Separation of Powers
The doctrine of separation of powers is a key factor of a democratic federal system
in the sense proposed in this thesis, because it ensures power is equally distributed
within a state, which in turn pre-empts the abuse of power and maintains
democracy.
The separation of powers is useful for any state but especially plays a vital role in a
democratic federal arrangement. Separation of powers is a doctrine advocated by
Montesquieu, who supported the idea of separate government branches that would
112
William E. Nelson, 'Constitutional History' 1966 Annual Survey of American Law 687.
113
Steven S. Smith, Jason M. Roberts, Ryan J. Vander Wielen, The American Congress (4th edn,
Cambridge University Press 2006).
114
Anne M Cohler, Basia C Miller, Harold S Stone (ed), Montesquieu: The Spirit of the Laws (Anne M.
Cohler, Basia Carolyn Miller, Harold Samuel Stone tr, Cambridge University Press 1989) 157.
115
ibid.
33
check and be independent of each other to prevent abuse of power.
116
In
Montesquieu’s original doctrine of separation of powers there are essentially two
branches of government i.e., the executive and the legislature.
117
The third branch,
the judicature, according to Montesquieu, is invisible as judicial power rests with
the jury.
118
According to Montesquieu, a government must have certain features to provide its
citizens with the greatest possible liberty.
119
People invested with power are likely to
abuse it and it is therefore important to define boundaries.
120
Separation of the
executive, legislative and judicial powers of government can prevent the abuse of
powers. Different bodies exercising these powers can check the others if they try to
abuse their powers.
Locke also claims that legitimate government is based on the idea of separation of
powers.
121
He does not mention judicial power as a separate power and says that
the legislative is supreme over the executive.
122
If Locke’s formulation of separation of powers is compared to the ideas of
Montesquieu, they do not appear very different. Montesquieu also reaffirms the
superiority of the legislative power and describes the executive power as having to
do with international affairs and the judicial power as concerned with the domestic
execution of the laws.
123
One aspect of Locke’s theory of separation of powers is that
it does not preclude unelected officials from having some of the legislative power.
124
The researcher believes that it is important in a federation to have elected members
in the upper house so that they can best protect the interest of their federating unit.
Locke's theory is more relevant to the British constitutional system where, unlike
the US Senate, the upper house is composed of unelected members. Locke's theory
116
Anne M Cohler, Basia C Miller, Harold S Stone (ed), Montesquieu: The Spirit of the Laws (Anne M.
Cohler, Basia Carolyn Miller, Harold Samuel Stone tr, Cambridge University Press 1989).
117
Pierre Manent, 'Modern democracy as a system of separations' (2003) 14(1) Journal of Democracy
114.
118
Anne M Cohler, Basia C Miller, Harold S Stone (ed), Montesquieu: The Spirit of the Laws (Anne M.
Cohler, Basia Carolyn Miller, Harold Samuel Stone tr, Cambridge University Press 1989) 157.
119
ibid.
120
ibid 162.
121
John Locke, Second Treatise of Government (Peter Laslett ed, 2nd edn, Cambridge University
Press 1967) 71.
122
ibid.
123
Anne M Cohler, Basia C Miller, Harold S Stone (ed), Montesquieu: The Spirit of the Laws (Anne M.
Cohler, Basia Carolyn Miller, Harold Samuel Stone tr, Cambridge University Press 1989) 157.
124
John Locke, Works, 10 vols. London, 1689, Two Treatises of Government, P. Laslett (ed)
(Cambridge: Cambridge University Press, 1988) 149.
34
is therefore less functional when it comes to equal representation in a bicameral
legislature in the sense discussed in this thesis.
Montesquieu’s separation of powers greatly influenced the framers of the
constitution of the United States of America, the comparator jurisdiction in the
comparative analysis in Chapter 5.
125
In September 1787, when the US Constitution
defined the new government, it resolved the differences among the federating units
on the issue of equal representation by adopting a bicameral legislature.
126
The
Constitution provides for a government composed of three branches: the legislative,
executive, and judicial. Each is given certain powers over the others to ensure that
there are appropriate checks and balances.
127
The Constitution balances the authority of the states and the federal government
and collectively the federal government being divided into three branches
safeguards the nation by ensuring that no one gains too much control.
128
Each branch of government can change acts of the other branches. Below are the
examples from the US model, which are explained in more detail in Chapter 5, but
briefly highlighted here as:
• The president's power to veto laws passed by Congress and vice versa.
• The president's power to appoint Supreme Court judges.
• Congress has the power to ratify appointments made by presidents.
• Congress has the power to impeach the president, for example three
presidents have been tried historically, nevertheless, none of the presidents
has ever been impeached.
• The Supreme Court can nullify unconstitutional laws.
Unlike the USA, judicial power in the sub-continent, along with other powers, was
all vested in the executive (Sultan), i.e. the monarch until 1858, when, as described
125
Facts On File Library of American History, 'Montesquieu, Charles-Louis de Secondat, Baron de La
Brède et de' in Michael A Genovese (ed), Encyclopedia of the American Presidency (Revised edn,
Infobase 2010) 348.
126
Hastings Lyon, The Constitution and the Men Who Made It: The Story of the Constitutional
Convention (The Riverside Press Cambridge 1936) 94.
127
William E. Nelson, 'Constitutional History' 1966 Annual Survey of American Law.
128
ibid.
35
in Chapter 3, the British took over from the Mughals.
129
To govern and effectively
rule this new colony, the British parliament passed some items of legislation such
as the Government of India Act 1858, 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.
130
Discussed in more detail in Chapter 4, In the early constitutional history of
Pakistan, the Governor General (or later the President), enjoyed enormous
powers.
131
He, as an executive head, had the power to appoint the prime minister,
the federal ministers, the heads of the armed forces, the governors of the provinces
and the judges of the higher judiciary.
132
Discussion in Chapter 4 and then Chapter 6 will show that the unbalanced
distribution of powers between the three branches has caused instances of political
instability in Pakistan, which has not only diminished the growth of democracy in
the country but also caused one successful and several attempted secessions. These
secession attempts are explored further in detail in Chapter 4.
In the next section, the doctrine of state necessity is discussed. For the purpose of
this thesis, it is particularly important to understand the concept of equal
representation in terms of its relationship with this doctrine in the Pakistani
context.
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