SEPARATION OF POWERS AND THE JUSTICES OF PEACE IN
By:
SHAYYAN QAISER[1]
Introduction
This paper was prompted by the persistent controversy surrounding justices of peace. The Supreme Court of Pakistan has recently taken cognizance of this controversy, in a case in which it formulated certain queries regarding the vires of Section 22-A of the Code of Criminal Procedure, 1898[2]. The purpose of this research is to bring to light the issues surrounding the provisions regarding justices of peace contained in the Code of Criminal Procedure, and whether those provisions create inroads into the theory of separation of powers.
This paper is divided into four major sections. The first two Sections will expound upon the concept of separation of powers and justices of peace respectively. The third section will attempt to analyze the vires of Section 22-A. Lastly, the fourth section will offer a discussion, in light of the analysis in the third section, as to whether or not the concept of justices of peace should be removed from Pakistani Law.
Separation of Powers
One of the fundamental maxims of politics is that the legislative, executive and judicial branches ought to be separate and distinct. The maxim finds its basis in the concept of liberty. To elaborate — and as the supporters of the theory of separation of powers advocate — it is believed that the accumulation of all three powers, i.e. legislative, executive and judiciary, in the same hands, would result in tyranny, or in other words, a lack of liberty. Brohi identifies two elements of the theory: (i) “that the same person, or body of persons, should not be the repository of the powers of the legislature, executive and judiciary or of any two of them”; and (ii) “that legislation, execution and adjudication, should each be independent of the others and that there should be, as far as possible, absence of control or interference by one over the other”[3]. Montesquieu, while talking about the power of adjudication, stated that “were it joined to the executive power, the judge might behave with all the violence of an oppressor”.[4] This paper shall focus, in particular, on the separation of powers between the executive and judiciary.
The well-established political maxim of separation of powers is found in many constitutions of the world today. Various articles of the Constitution of the Islamic Republic of Pakistan reflect this maxim. Article 175(3) provides for a stipulated period within which the judiciary shall be progressively separated from the executive. Furthermore, that the independence of the judiciary shall be fully secured is provided for in the Objectives Resolution, which has been incorporated into the Constitution by virtue of Article 2-A. These constitutional principles, i.e. separation of powers in general, and independence of the judiciary from the executive in particular, have been endorsed by the Supreme Court of Pakistan in numerous cases, illustrating the indispensability of the doctrine[5].
Justices of the Peace
A notion that seemingly conflicts with the theory of separation of powers is that of justices of peace. Below is a brief history of the concept of justices of peace, followed by an embarkation upon an analysis of the veracity of the opening statement to this paragraph.
The concept of justice of peace dates back to the twelfth
century, when in
The institution of the justice of peace was first introduced in the Indian Sub-continent in Section 22 of the Code of Criminal Procedure 1989. Sections 23 and 24 dealt with the appointment of the justices of peace for Presidency Towns (repealed by the Criminal Law Amendment Act, 1923), and Section 25 provided for the offices that constituted ex-officio justices of the peace.
After independence, with respect to Pakistani Law, Section 22 went through several minor changes over the years, eventually becoming the Section 22 that exists today, by virtue of the Law Reforms Ordinance No. XII of 1972. This section empowers the Provincial Government to appoint any person as a justice of peace. The same Ordinance added Section 22-A (excluding sub-section (6)), which, in very broad terms, allows justices of peace to exercise certain police powers of arrest, and to require members of the police to render aid in certain circumstances. Section 22-B was also incorporated, which conferred various duties on justices of peace, including, inter alia, making inquiries regarding breach of the peace or commission of any offence and rendering assistance to the police vis-a-vis investigation of offences.
Section 25 also went through several changes over the years, and finally became the Section 25 that exists today by virtue of a Federal Statute, the Code of Criminal Procedure (Third Amendment) Ordinance No.CXXXI of 2002. According to this section, Sessions and nominated Additional Sessions Judges are deemed to be justices of peace. This Ordinance also added sub-section (6) to Section 22-A, which provides for powers of an ex-officio justice of peace, whereby they can issue appropriate directions to the police following a complaint regarding non-registration of a criminal case, transfer of investigation from one police officer to another, and neglect, failure or excess committed by the police in relation to its functions and duties.
Regarding post-independence India, the West Bengal Amendment
Act, 30 of 1955 made a State amendment to Section 22, added Section 22-A
(without sub-section (6)) and Section 22-B, and repealed Section 25.
Thereafter, the Code of Criminal Procedure 1973, Act 2 of 1974 was enacted in
which no new Sections corresponding to Sections 22 and 25 were inserted. Till
the complete removal of the concept of Justice of Peace in
Interestingly, the Sections introduced by the Law Reforms
Ordinance No. XII of 1972 were worded identically to the corresponding Sections
in the West Bengal Amendment Act 1955, i.e. Sections 22, 22-A (excluding
sub-section (6)) and 22-B. The only difference was that West Bengal repealed Section
25, and hence separated its judiciary from the executive as enunciated in its
Constitution, whereas
Is Section 22-A ultra vires the Constitution?
The main question formulated by the Supreme Court while
granting leave to appeal in Younas Abbas was whether Section 22-A is ultra vires the Constitution inasmuch as
it confers executive powers onto a judicial officer. To state the obvious, it
is clear that Section 22-A does not involve any judicial power. As rightly
stated by the superior Courts of
The ultra vires issue with Section 22-A, and specifically sub-section (6) arises not due to Section 22-A itself, but by virtue of Section 25. Section 22-A(6) bestows upon an ex-officio justice of peace certain powers. An ex-officio justice of peace in plain terms means a person who is given the title of justice of peace by virtue of his office. That office could be that of a Commissioner or a Zila Nazim, etc. However, the problem here arises due to the fact that Section 25 defines an ex-officio justice of peace as a judicial officer.
The same issue lies with Section 22. Although one may not necessarily term the powers under Section 22-A(1) to (5) as “executive” per se, even if we assume that they are executive powers in the strict sense, then by virtue of Section 22, any person appointed by the Provincial Government as a justice of peace can exercise those powers. This can include a judicial officer as there is no bar in Section 22 that prevents a judicial officer from being appointed.
In light of the foregoing, the issue lies not with the powers under Section 22-A, but to whom those powers are conferred. Declaring Section 22-A, and sub-section (6) in particular, to be ultra vires the constitution would render the remaining Sections regarding the justices of peace practically redundant. This is because, although justices of peace and ex-officio justices of peace would nevertheless be appointed under Sections 22 and 25 respectively, the primary powers exercised by them today are those under Section 22-A, and particularly sub-section (6).
Should the concept of
justice of peace be removed?
One perspective is that Section 25 authorises the same person
to be the repository of the powers of the executive and judiciary, hence it is
in contravention of the theory of separation of powers, Article 175(3) of the
Constitution and the Objectives Resolution. Section 22 falls prey to the same
criticism due to the absence of any bar against judicial officers becoming
justices of peace. Therefore, either we remove the concept of justice of peace
from our law entirely, as
Another point of view is that the theory of separation of powers entails that the whole power of one department is exercised by the same hands which possess the whole power of another department. However it certainly does not mean that each department may not have control over the other[7]. Should we adopt this interpretation of the theory of separation of powers, then it may be said that none of the Sections of the Code of Criminal Procedure pertaining to justices of peace are ultra vires the Constitution, as the justices of peace are not exercising the whole power of the executive, in addition to the whole power of the judiciary. They are merely exercising a certain control over the executive — a check and balance mechanism, if one may. Section 22-A(6) consists only of certain types of directions that an ex-officio justice of peace may give to a police official with regard to complaints relating to police investigations, and not actual exercise of investigative powers. Hence it is not necessary that in such a situation, the justice of peace will become an “oppressor” as Montesquieu believes, due to the presence of succinct guidelines regarding the limits of the exercise of power under Section 22-A(6) as laid down by the superior Courts of Pakistan”[8]. As Montesquieu maintains, “But constant experience shows us that every man invested with power is apt to abuse it and to carry his authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limitation? To prevent this abuse, it is necessary from the very nature of things that power should be a check to power”[9].
Conclusion
Whether or not the concept of justices of peace is ultra vires the Constitution thereby justifying its removal, ultimately depends on the definition one adopts regarding the theory of separation of powers as to what extent is the separation required, between the judiciary and executive. Whether our Constitution contemplates for, and can accommodate a certain amount of control of one department over another, is open to interpretation. Which interpretation is adopted by the Supreme Court of Pakistan remains to be seen: the verdict in Younas Abbas is highly anticipated.
[1]. Barrister Shayyan Qaiser (Bar-at-Law,
[2]. Younas
Abbas v ASJ Chakwal and others [Civil Appeal No.1491/2013].
[3]. Brohi, A. K. (1958), Fundamental Law of
Pakistan, p.72.
[4]. Montesquieu, B. (1748), L'Esprit Des
Lois. In Davidson, J. F. and Grundstein, N. D. (1952), Cases and
[5]. Wasim
Sajjad and others v Federation of
[6]. Khizer
Hayat and others v Inspector-General of Police (Punjab)
[7]. Madison, J. (1906), No. XLVII (1788) Ed.
Lodge (1906) pp.299-307. In Davidson, J. F. and Grundstein, N. D. (1952), Cases
and
[8]. Khizar Hayat, supra note 5, paragraph FF,
pp.559-567.
[9]. Montesquieu, B. (1748), L'Esprit Des Lois
(Nugent's Transl. 1909, Bk.XI, 160, p.161). In Brand, J. T. (1933), Montesquieu
and the Separation of Powers, 12 Or. L. Rev. 175, p.179.