The trichotomy myth
By I. A. Rehman, Dawn, March 20, 2008
THE last regime will be remembered for governance by myths, all of which deserve demolition. But at the moment there is an urgent need to address the myth of the trichotomy of powers because it is one of the major roadblocks the new order faces.
The ‘whereas’ part of the Nov 3 Proclamation of Emergency consisted of 13 paragraphs: two described the situation created by terrorists, one repeated the myth that “the Constitution provides no solution to this situation” and another one referred to the army chief’s consultations, while nine paragraphs accused the judiciary of undermining the trichotomy of powers. In simpler words, if the judiciary tried to question the executive for acting outside the law it violated the Constitution.
Regrettably, the post-November Supreme Court endorsed the manifestly flawed myth of trichotomy of powers.
According to the establishment’s trichotomy myth, to the extent it can be logically interpreted, the three organs of the state — the legislature, the executive and the judiciary — are autonomous, and none of them can have anything to do with the other two. The emergency was the result of a collision between the judiciary and the executive, and now the legislature has been warned against collision with the presidency.
This myth needs to be buried at the earliest as otherwise the federation cannot function in accordance with the Constitution.
Every layman knows that all three organs of state are subject to the Constitution which derives its sanction from the will of the people. None of them (and not the judiciary alone) is allowed to violate the Constitution.
The executive is required to function in accordance with law but it has no power to make laws. Even where it has some power to regulate matters through rules these must remain within the four walls of law.
The legislature alone is competent to make laws, but always within the limits prescribed by the Constitution. It has no power to directly enforce the law except for such matters as punishment for its contempt or regulation of its own business.
The judiciary is responsible for deciding matters according to law and also according to the basic law. It is not competent to make laws (the power apparently allowed to the Shariat Court is an aberration clearly in violation of constitutional practice). What makes the legislature and executive envious of the judiciary is its power to oblige them to stay within the limits prescribed by the Constitution.
In this scheme if the legislature chooses to revise the powers that the executive should have, it cannot be accused of collision. Likewise the judiciary’s decisions aimed at preventing the legislature from making a law in violation of the Constitution cannot be described as a violation of the principle of division of powers.
Despite the principle of separation of powers, no state organ is prohibited from proposing to another organ to remove a flaw or fill a gap in its scheme of things. The executive has easy access to the legislature and is all the time persuading it to revise the laws (the amendment game). Instances when the judiciary has suggested changes in laws or new legislation are legion.
The Punjab Judicial Commissioner (this was before the province had its highest court) asked the executive and the legislature to make a law to prevent moneylenders from depriving landlords, Muslims in particular, of their lands, and the result was the Punjab Land Alienation Act. Some time ago the superior courts told the executive and the legislature both that the provision of death penalty as the only punishment for some offences sometimes obliged them to acquit persons who were not completely innocent but their guilt was not proved to the extent that warranted capital punishment. They called for alternative punishment. When in the 1990s the executive tried to establish military courts to hear cases of heinous crimes and the judiciary put its foot down, nobody shouted foul or war.
A remarkable example of the judiciary’s friendly advice to the executive was noted days before the November 2007 putsch when the Supreme Court requested the government to regularise the disappearances (or regularise detention of suspects) so that it did not have to pass orders that might embarrass the latter.
Nonetheless, the possibility that the human beings representing the state organs can interpret each other’s initiatives as spoiling for confrontation or collision can never be ruled out. In 1954 parliament reviewed the powers of the governor-general and the latter took this as a challenge to a duel and replied by sacking parliament. When Prime Minister Nawaz Sharif flew to Choti (D.G. Khan) in 1997 to tell President Leghari that parliament was going to deprive him of his powers under Article 58-2(b) he was not in a position to warn the legislature against confrontation with the presidency, against undermining the trichotomy of powers.
Incidentally, more often that not it is the chief executive of the federation who warns the other state organs against collision; the legislature and the judiciary have hardly ever been able to warn the executive of undermining their rights or violating the principle of trichotomy. The judiciary did not pick a fight with the executive (or extra-constitutional agents functioning as the executive) when a PCO came in 1981 or in 2000 or in 2007. Without issuing a call to war the legislature did challenge the executive’s fatal assaults on it in 1954, 1977, 1988, 1990, 1993 and 1999 and lost every time except in 1993.
There have been occasions when the outcome of an intra-executive confrontation has decided the course of events. In 1958 President Iskander Mirza was the supreme commander of the armed forces but he could not overrule the army chief. Likewise Field Marshal Ayub Khan, Prime Minister Zulfikar Ali Bhutto and President Rafiq Tarar, all supreme commanders, failed to overrule the army chiefs in 1969, 1977 and 1999. When President Farooq Leghari thought he was being challenged by the government and realised that the supreme commander did not have the armed forces on his side he quietly resigned. He didn’t even say that talk of his impeachment by parliament amounted to threatening the presidency with confrontation.
This discussion leads to two conclusions. First, when an organ of the state is perceived to be rocking the trichotomy boat it may be merely fulfilling its constitutional duty. Thus, howsoever the extra-constitutional removal of judges may be undone it will amount to ending the executive’s bid to supplant the judicial organ.
The second conclusion is that all threats to the constitutional scheme of the three organs of the state — from 1954 to 2007 — were resolved in favour of the party enjoying the support of the army chief. The outcome of a new confrontation, if it does materialise, will not be determined otherwise.
Does Pakistan wish to be recognised for ever as the state where all of its organs exist and function during the pleasure of the army chief? The time has come for the legislature, the judiciary and the executive (that includes the armed forces) to say ‘No!
This is the only issue in Pakistan now; all else is detail.