The main rules concerning the separation of powers in the Westminster export

model constitution in Jamaica and criticisms that have been put forward
concerning the working of these rules and the validity of these criticisms.

The concept of separation of powers has existed since time immemorial; philosophers who
predated the birth of Christ have put forward various arguments of the issue. The main
argument for a separation of powers is based on the premise that a state comprises of three
arms. These arms include; 1) The executive 2) The legislature and 3) The judiciary. The
relationship between these three arms of government is largely defined by the supreme law of
the land, defined as the constitution. The constitution largely defines how the various
institutions of the state operate and how they relate to each other According to the doctrine of
separation of power, these three branches of the state must be separated and perform their
functions individually without exerting its power on the other. In his work, the Politics,
Aristotle, identified three arms of the state similar to that previously mentioned. He stated that
if these three arms are well arranged, the constitution is bound to be well arranged.
In the Caribbean Commonwealth, specifically Jamaica, the constitution is largely based on that
of the United Kingdom. Though largely unwritten and not identified in any single document, the
constitution of the United Kingdom has largely been imported by Jamaica and several of the
arms of the state operate in a similar manner. The various arms of the state will be examined in
more detail. The Executive in the Westminster model of government consists of the elected
members of parliament and appointed members of the senate who form cabinet, headed by
the Prime Minister. Some members of the civil service are also a part of the executive. The
executive is charged with the responsibility of formulating and executing policy. The legislature
is bicameral and consists of two chambers which includes the senate or upper house and the
house of representatives or lower house. The upper house is unelected and consists of
government and opposition senators who are appointed by the Governor General acting on
advice from the Prime Minister and leader of the Opposition respectively. The Legislature is
largely responsible for enacting legislation. The judiciary headed by the Chief Justice consists of
judges who adjudicate on matters within the court system. The judiciary is independent and its
members can only be dismissed for not discharging their duties or misbehaviour.

The Westminster model is not without its critics, starting with the legislature and the executive,
both arms of the state tend to always overlap. Member of the executive are also members of
the legislature as the legislature consists of both houses of parliament. Vasciannie, in his article
Judges on the border of Border of Law and Politics (1996), identified a disadvantage where the
executive and the legislature overlap substantially. According to Vasciannie, this can lead to an
overcentralisation of power for the elected majority and undermine vigour in democratic
interaction. The term overcentralisation of power is in fact an issue to contend with, especially
where the executive has a substantial majority in the parliament. Where this is a reality, the
cabinet will always have the possibility of introducing legislation with little or no opposition as
the majority of their members tend to vote in accordance with the policy of the cabinet and as
such, the opposition who holds the minority in both houses of parliament will be of little
influence in passing legislation as a majority vote is needed for legislation to be passed. The
overconcentration of power, though it is a valid point, the Jamaican constitution safeguards any
arbitrary action on the part of the executive. According to section 69 (2) of the constitution
under chapter 6, the cabinet is accountable to parliament for its actions and to a larger extent
the electorate and as such their actions are guided by both. In addition to this Section 50 of the
Jamaican constitution require a two thirds Majority in both houses before an act of Parliament
can be passed. This would require support of both members of the government and the
opposition. This is a method by which the power of the executive is kept in check. Members of
government can comprise of more than two thirds in the house of representative as what
occurred in the Jamaican Elections of 1983, however the number of members who can sit
within the senate are fixed and the proportion of government members to that of the
opposition ensure that less than two thirds of senators belong to the government. This ensures
that executive does not exercise full control over the legislature.

According Laski, as cited in the Judges on the border of Border of Law and Politics (Vasciannie
1996), without the separation between the executive and the judiciary, the executive would be
able to influence judicial decisions and become the unlimited master of the state. This
essential mean that the executive will be all powerful. In the Privy Council decision of Hinds v
The Queen 1976 1 All ER 353, the independence of the judiciary as stated by the Jamaican
Constitution was highlighted, their Lordships stated that those who hold any salaried judicial
office in Jamaica shall be appointed on the recommendation from the Judicial Service
Commission, and that their independence from political pressure from parliament or by the
executive in exercise of their judicial functions shall be assured by granting them such degree of
security of tenure in their office as is justified by the importance of the jurisdiction that they
exercise . From this it can be argued that there is separation of powers between the Executive
and judiciary as enshrined in the Jamaican constitution. Judges security of tenure enables them
to carry out their duties in an impartial manner free from political interference.

As previously highlighted, the doctrine of the separation of powers advocates for the judiciary
to be separate from the control of the legislature. By this the judiciary should be able to
perform their constitutional function of adjudicating in the courts. This should be done without
the interference of parliament. Conversely the argument extends to the judiciary, who should
not interfere with the will of parliament by interpreting law in a manner that would amount to
usurpation of the function of the legislature and by extension the parliament. Hinds v The
Queen 1976 1 All ER 353, provides a potent illustration of the separation of powers between
the legislature and the judiciary. In Hinds, the Gun Court Act of 1974, was held to be
unconstitutional by the Privy Council as the act created a penalty of detention at hard labour
and the detainee can only be discharged by the Governor General acting in accordance with a
non-judicial review board. Their Lordships in Hinds, stated that the Jamaican Constitution
supported a separation of powers between the three branches of the state and as such, the
legislature or law making body of the state cannot make laws that are incompatible with the
constitution and such laws will be inapplicable. This argument supports the fact that a
separation of powers does exist between the legislature and judiciary in Jamaica and is guarded
by the Jamaican constitution.
As it relates to the judiciary, it is apparent that judges have considerable influence in how the
laws are applied. Some argue that indeed judges make laws. It can be asserted that judges can
interpret laws in a way as to create legal rights. In Earl Pratt and Ivan Morgan v The Attorney
General and The Superintendent of Prisons, Saint Catherine 30 JLR pg 471, The Privy Council
interpreted inhumane treatment under section 17(1) of the constitution of Jamaica to include
delay between conviction and the carrying out of the death penalty, though the constitution
was silent on this matter, the interpretation of inhuman treatment to include delay in carrying
out the death penalty amounted to a creation of a legal right that was not expressly stated
within the constitution of Jamaica. This had the effect of automatically reducing death penalty
convictions which experienced inordinate delay to be commuted to life imprisonment. Some
may argue that these rights always existed, however the influence of the judges in asserting
that right cannot go unnoticed. The decision in Pratt and Morgan has put the constitutionality
of the death penalty in question and it is very important to note that the death penalty has not
been carried in over 20 years. Though judges may interpret statutes and make law in the
process. Judges are charged with the responsibility of giving the intention of parliament when
adjudicating on a matter. Parliament can limit judges discretion by repealing legislation and
enacting laws which the judge must apply. In Jamaica the penalty for illegal possession of
firearm was increased to 15 years. The judge has no choice but to adhere to the statute before
him.

The separation of powers doctrine ensures that the balance of power is maintained within each
arm of the state. As it relates to Jamaica, separation of powers exists as there are safeguards
put in place to ensure that no institution overpowers the other or usurp its function. The
executive is kept in check by the parliament to which it is accountable to and by a large extent
the electorate. The judiciary also ensures that the executive does not abuse its power; the
process of judicial review of the actions of the executive ensures this. In addition, the judiciary
is given the power to declare legislation that goes against the constitution of Jamaica as void.
This safeguards the rights of the citizens and ensures that the executive does not wield
arbitrary power. Judges in their application of the law must interpret legislation in accordance
with the intention of parliament. Judges have had to interpret legislation which has been found
to be ambiguous. This has somewhat given them some room in creating legal rights. This was
identified in the case of Pratt and Morgan. Despite the creativity on the part of judges in
interpreting statutes, the doctrine of parliamentary sovereignty of which the Jamaican
parliament subscribes to prevails and the Jamaican parliament has the exclusive position of
being able to overrule legislation, this ensures that the power to make laws rests within the
parliament and not within the interpretation of statutes by judges. Separation of powers is alive
and well in Jamaica and is further enhanced by the Constitution.