Constitutional Checks and Balances: Conclusions

Why does separation of powers matter?

Mian Ashiq Hussain calls separation of powers an antidote to absolute power held by any one organ of the state. He notes it first entered a codified constitution in the United States, and that the All-India Muslim League wanted it in Pakistan's future constitution, yet he finds Pakistan's constitutions fell short of institutional balance.

Conclusion Separation of powers is an antidote to absolute power of any organ of the state. The concept was first incorporated in the codified constitution of the United States. In the backdrop of centralised British imperial power, separation of powers signified fair liberty of citizens from arbitrary monarchical rule. Similarly, against the backdrop of overcentralized state structure under the Government of India Act, 1935, the All-India Muslim League ardently supported adopting of the principles of separation of powers and checks and balances in the future constitution of Pakistan. Nonetheless, the successive constitutions of Pakistan drew on the colonial legacy; hence, fell short of essential requirements of institutional equilibrium. The institutions overstepping the fields of one another undermine the evolution of constitutionalism. Necessary amendments to the constitution are, thus, imperative.

Should checks and balances change as society changes?

Yes, in the author's view. He adds the caveat that a system of checks and balances lasts only if it adapts to social change, because constitutions exist for the common good of living people. He applies the same test to judicial review, once a celebrated US innovation and now seen by some as propping up the status quo.

A caveat may, however, be added—a system of checks and balances may endure if it rises with the changing social phenomena. Constitutions are made and revised for the common good of living people and for shared prosperity and equal access to opportunity for all citizens. The principles, therefore, need to be dynamically applied. The same is true about the judicial review, which was considered a great innovation of the US Constitutional system, but it is now viewed as a prop for prolonging status quo.

Do developing democracies need stronger checks and balances?

In brief, societies passing through democratic transition from centuries-old repressive rule urgently require effective checks and balances in their model of governance while in mature democracies consensual governance has mellowed in exercise of shared powers

Frequently asked questions

Where was separation of powers first written into a constitution?

According to the author, the idea first entered a written, codified constitution in the United States, where it stood for citizens' freedom from arbitrary monarchical rule after centralised British imperial power.

Why does the author say Pakistan's constitutions lacked balance?

He argues that Pakistan's successive constitutions drew on the colonial legacy and so fell short of institutional equilibrium. Institutions overstepping each other's fields, he says, undermine constitutionalism, which makes amendments necessary.

What did the All-India Muslim League want in Pakistan's constitution?

Reacting against the overcentralised 1935 Government of India Act, the League strongly supported separation of powers and checks and balances for the future constitution of Pakistan, according to the author.

How do checks and balances differ in new and mature democracies?

The author argues that societies emerging from long repressive rule urgently need effective checks and balances, while in mature democracies shared power has softened into consensual governance.

Related Minds

• Semi-Presidential Systems: Examples and Lessons
• The Basic Structure Doctrine: India, Germany and Pakistan
• How Judges Are Appointed: UK, India and Pakistan Compared
• Why Constitutions Fail, and What Makes Them Flourish

Read the full argument in the book How Constitutions Flourish or Fail by Mian Ashiq Hussain.