Constitutional governance does not survive on political slogans or institutional ambition; it survives on restraint. At the heart of this restraint lies the doctrine of separation of powers an organizing constitutional principle designed to prevent the concentration of authority and to safeguard the rule of law. Pakistan’s Constitution of 1973 formally embraces this doctrine, yet constitutional practice increasingly demonstrates that while the framework remains intact on paper, it is under persistent pressure in application.
Constitutional Architecture and Functional Separation
The Constitution distributes state authority with deliberate clarity:
Legislative power vests in Parliament (Articles 50–89).
Executive authority is exercised by the Federal and Provincial Governments (Articles 90, 129).
Judicial power is entrusted to an independent judiciary (Article 175), with Article 175(3) expressly mandating separation of the judiciary from the executive.
This architecture reflects functional separation supported by checks and balances, not the supremacy of one institution over others. The Constitution does not envisage institutional rivalry; it demands institutional discipline.
Early Jurisprudence and the Distortion of Constitutional Balance
Pakistan’s early constitutional jurisprudence reveals a troubled beginning. Judicial validation of executive dominance through the doctrine of necessity—most notably in Federation of Pakistan v. Maulvi Tamizuddin Khan (PLD 1955 FC 240) and State v. Dosso (PLD 1958 SC 533)—seriously disrupted institutional equilibrium. These decisions weakened constitutionalism by legitimizing departures from constitutional order and subordinating constitutional supremacy to political expediency.
A decisive correction came in Asma Jilani v. Government of Punjab (PLD 1972 SC 139), where the Supreme Court rejected extra-constitutional authority and reaffirmed the supremacy of the Constitution. This judgment remains a defining moment in Pakistan’s constitutional history, restoring separation of powers as a foundational constitutional value rather than a negotiable principle.
Judicial Review: Necessity, Expansion, and Limits
Judicial review is an indispensable constitutional function. Yet its expansion into governance presents complex challenges. In Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC 869), the Supreme Court attempted to stabilize constitutional order during political breakdown, while permitting limited deviation from constitutional norms—illustrating the judiciary’s delicate position in moments of institutional crisis.
The expansion of public interest litigation and suo motu jurisdiction has further altered institutional dynamics. The consequences have been mixed:
Enhanced access to constitutional justice
Increased judicial visibility in governance
Growing concerns regarding judicial overreach
Importantly, in District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401), the Supreme Court itself cautioned that suo motu powers must be exercised sparingly and strictly within constitutional confines, acknowledging the real risk of institutional imbalance.
Executive Authority and Constitutional Discipline
Executive discretion has repeatedly tested constitutional limits, particularly in governance and public finance. The judgment in Mustafa Impex, Karachi v. Government of Pakistan (PLD 2016 SC 808) stands as a clear reaffirmation of constitutional discipline, holding that fiscal decisions must be taken by the Federal Cabinet rather than by individual office-holders.
The case reinforces a core principle of separation of powers:
authority must flow through institutions, not personalities.
Parliamentary Supremacy and Judicial Oversight
Parliamentary supremacy, though constitutionally recoganised, is inseparable from constitutional responsibility. In Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), the Supreme Court acknowledged Parliament’s authority to amend the Constitution while asserting judicial review where amendments alter the basic constitutional framework.
This equilibrium reflects the true spirit of separation of powers: not isolation, but mutual accountability.
Constitutional Amendments, Institutional Culture, and the 26th Amendment
Pakistan’s constitutional evolution through successive amendments—up to and including the Twenty-Seventh Constitutional Amendment—demonstrates repeated attempts to recalibrate institutional relationships. Yet constitutional amendments alone cannot preserve separation of powers. Without institutional restraint, procedural fidelity, and constitutional culture, structural reform offers only temporary stability.
In this context, the Twenty-Sixth Constitutional Amendment (2024) represents the most consequential recent intervention affecting separation of powers. By altering the method of appointment of the Chief Justice of Pakistan and introducing permanent Constitutional Benches, the Amendment has recalibrated the internal functioning of the judiciary itself.
While proponents argue that the reform enhances efficiency and predictability, critics view it as a structural shift with profound implications for judicial independence and intra-judicial autonomy. More significantly, it illustrates how constitutional engineering—when driven by political consensus rather than constitutional culture can reshape institutional power without necessarily strengthening constitutional restraint. The Amendment thus exemplifies how separation of powers may be formally preserved while substantively strained.
Consequences of Institutional Imbalance
The consequences of blurred institutional boundaries are neither abstract nor academic. When constitutional limits weaken:
Courts risk being drawn into governance,
Executives encroach upon legislative space, and
Legislatures become reactive rather than directive.
The result is institutional friction, governance paralysis, and erosion of public trust. The doctrine of separation of powers exists not to elevate institutions, but to protect citizens from unchecked authority.
Restoration Through Restraint
The separation of powers in Pakistan has not collapsed. It has, however, weakened through incremental encroachments and institutional abdications. Its restoration requires neither constitutional reinvention nor institutional dominance—only constitutional fidelity.
A constitutional order survives not by the ascendancy of one institution, but by the restraint of all.