Limits of power

Published March 28, 2017

POLITICAL power is vested in a branch of the government. A limit is then placed on that power. Power is the legal ability to change juridical relations. Power and liberty in public law are opposed to each other. Power negates liberty and liberty negates power. The doctrine of separation of powers is about securing liberty from power. The constitutional history of England and that of other parts of Europe demonstrate this phenomenon. The king used to have executive power, while the power of legislation was claimed by parliament. The king’s power of adjudication was vested in the judiciary.

The experience of Europe provided a blueprint for the Americans. The famous quote by Sir Edward Coke in Dr Thomas Bonham’s case (1610), not to mention the works of Locke, Hobbes, Rousseau’s social contract, and the American founding fathers when they adopted their constitution, illustrates a fundamental concern to secure the blessings of liberty for themselves and their posterity.

Power has two-way jural relations. One deals with the citizens and their liberties; and the other is exercised by the state to protect itself and the citizens against aggression, rebellion and insurrection. In the American constitution, the doctrine of separation of powers was recognised and applied: legislative powers are vested in the Congress through Article I, executive powers in the president through Article II while Article III vests judicial powers in the Supreme Court and other tribunals “as the Congress may from time to time ordain and establish”.

An additional safeguard in the form of checks and balances was another experiment that was made in the American constitution with the objective of ensuring that power vested in any branch of the government was put under check of another branch.


Exercise of power by the government which compromises citizens’ liberty may be legitimately questioned.


The invention — application, in a sense — of judicial review by chief justice John Marshall made the least dangerous branch into the most powerful. But the tool of judicial review was used to stop transgression by branches of the government on the liberty of citizens. The argument which provided jurisdictional basis for judicial review was that the constitution was supreme and when placed alongside a legal instrument or an action, the constitution shall prevail. Then came the unprecedented claim that it was the provenance of the court to say what the law was. Chief Justice Hamoodur Rahman only reiterated in The State vs Zia-ur-Rehman (1973) what CJ Marshall said over 200 years ago.

The Constitution of Pakistan when looked at in this context also recognises limits on the powers of all the three branches of the government. In Article 97 it is provided that the executive power is coextensive with the legislative authority of the federation (this is subject to other provisions of the Constitution). Under Article 142, a limitation has been placed on parliament’s legislative power. Similarly, a limitation has been placed on judicial power under Article 175(2).

From the perspective of a citizen, an exercise of power by any branch of the government which compromises his liberty may be legitimately questioned without getting exposed to the wrath of the state in different forms because the Constitution confers this right on the citizens.

Article 7 defines ‘state’ as the federal government, parliament, provincial government, provincial assemblies and other such authorities which have the power to impose any tax or cess. That is the reason the judiciary is conspicuously missing in this definition. In Article 199(5), ‘person’ has been defined as a body politic or corporate and other authority under the control of the federal government (which also shows that all regulatory authorities in order to be amenable to writ jurisdiction have to be under the control of federal or provincial governments). Courts all over the world are prone to expanding their jurisdiction and rightly so. The Supreme Court and high courts have been excluded from the definition of ‘person’. Thus when parliament transgresses its limits, a person may invoke the jurisdiction of a court. When the executive transgresses its limits, the jurisdiction of a court may be invoked.

Some legal theorists and scholars, however, have continued to question this premise. They also ask: what is the remedy against a transgression by the courts? After all, no one is infallible. The traditional argument that is advanced is that judges by virtue of their training and knowledge cannot transgress their jurisdiction. It is also claimed that judges are answerable to their conscience.

The counterargument is that this thin veil of a logically challengeable argument betrays reason and experience, not to mention history. It is stated that if such an argument was given by other branches of the government, it would be rejected outright. Parliament enacts laws and then those laws are declared unconstitutional by the courts on the grounds that they are inconsistent with the Constitution. Members of parliament cannot be held responsible for their excess of power because the power of judicial review saves citizens.

There is possibly an answer. This least dangerous branch has been entrusted by the Constitution with a duty to perform the function of maintaining a balance of power. Exercise of jurisdiction to protect civil liberties may be seen as a good thing and looked upon favourably. But this a priori is not sufficient. A similar claim on utilitarian logic may be made by another branch. Being a democratically elected body, parliament may in fact have a rather more justifiable claim. This and many other questions remain a grey area in jurisprudence.

John Ely’s well-known work Democracy and Distrust raises similar questions about judicial review. Like John Stuart Mill’s defence of “representative government”, the doctrine of judicial review is by far the single most venerable contribution of the science of law to the science of governance. Peoples’ faith in the institutions is the ultimate guarantee of their liberty. Political power, which includes all the three powers, is primarily meant to secure the blessings of liberty for the citizens of a state from the government and from others.

The writer is the additional attorney general. The views expressed are his own.

Published in Dawn, March 28th, 2017

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