Separation of Powers

The 18th Century French philosopher, Montesquieu described the doctrine of

separation of powers as : political liberty is to be found only where there is no
abuse of power but constant experience shows that every man invested with power
is liable to abuse it, and to carry his authority as far as it will go. To prevent this
abuse, it is necessary from the nature of things that one power should be a check
on another. There would be an end to everything if the same person or body were to
exercise all three powers.
The United States constitution is regarded that which best enunciates the doctrine
of separation of powers. The three organs of government while operating
separately, are connected by a system of checks and balances. The president may
veto a decision made by congress but his veto may be overridden by a two-thirds
vote of the house or senate. Each cabinet or judicial appointment must be
confirmed by the senate and in recent times there have been some interesting
hearings after the appointees have been rejected.
The fact that our written constitutions reflect to some extent the ethos and
principles of the unwritten british constitution, it means that if the doctrine of
separation of powers is applicable in Britain, then we should find it in our
constitution as well. While our scholars and judges are agreed that we do have the
doctrine in our legal system, the extent to which it applies has been viewed
differently. Prof. Fiadjoe on the doctrine of separation of powers in the CWC
constitutions stated that :
What is clear is that the Caribbean constitutions adopt a halfway house between
the doctrine as understood in the constitutional law of the USA and as applied in the
british constitution. Most commentators would agree that in the UK, separation of
powers means little more than an independent judiciary there being no separation
of powers strictly speaking between the executive and the legislative.
Fiadjoe refers to an article by the distinguished scholar and former chancellor of
UWI, Sir Allen Lewis who wrote that the doctrine of separation of powers as it
applies in the united states of America is unsuitable for our legal system. Sir Allen
suggested that : For practical purposes it is essential if developing countries are to
be moved forward quickly, that there be the utmost trust and co-operation between
the legislature and the executive and the administration to facilitate implementation
of the governments economy and social policies. The co-operation which must exist
among the three arms of government is intrinsic to the rule of law. Fiadjoe again
insightfully stated : For our democracy to operate effectively, it has been said that
a certain committee should exist between the three branches. Each should respect
the role and function of the other. The court is subject to and must enforce laws
passed by parliament that are intra vires to the constitution. The executive shudl
respect and obey the decisions and accept the limitations of the court. If the
committee does not exist, then the wheels of democracy will not turn smoothly.
Hinds v R (1977) Separation on Powers,judicial review, constitutional supremacy
case.

In 1974 the parliament of Jamaica passed the gun court act under which a gun court
was established to deal specifically with gun crimes. The court was to sit in three
divisions, resident magistrate court division, comprising a resident magistrate, a
circuit court division comprising a sumpreme court judge; and a full court division
comprising three resident magistrates. The act provided that all trials would be held
in camera and that for certain offences the gun court should impose a mandatory
sentence of detention at hard labour. It also provided that the full court division had
jurisdiction over the whole island, , a jurisdiction which prior to the act was
exercisable by a circuit court judge, and was what maintain at the time the
constitution came into force. A review board was also set up to advise the G.G. on
mandatory sentence. Only one member of the board was a member of the judiciary.
The defendants were convicted in the magistrates division and were given the
mandatory sentences of detention at the GGs pleasure. They appealed to the court
of appeal against their convictions and sentences on the grounds, inter alia (among
other things) that the gun court act was in conflict with the constitution of Jamaica
and therefore void. It was held by the judicial committee of the privy council as
follows:
1. The provisions of the act extended the geographical boundaries through the
circuit court and rM court divisions were not contrary to the constitution.
2. The presumption in camera trials could have been rebutted of bad faith in
Parliament but the appellants had adduced no such evidence.
3. The principle of separation of powers was implicit in the constitution and
parliament had no power to transfer from the judiciary to the review board
established under the act, the board not being comprised of a majority of persons
who were qualified to exercise judicial powers and the provision establishing the
board was therefore contrary to the constitution and null and void and the
sentences passed were unlawful.
The inconcistent provisions of the act would be severed and the valid procisions
could subsist. The appeals against conviction and sentences remitted to the court of
appeal.

Principles of Public Law.

The doctrine of separation of powers no longer claims the meaning that was
conceived by early writers. Discuss the sentence with reference to the constitution
of your state.