Essay On The Separation Of Powers In Jamaica 3k1n2p

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 powers, the 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 also 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 the three arms of the state operate in a similar manner. The various arms of the state will now be examined in more detail. The Executive in the Westminster model of government consists of the elected of parliament and appointed of the senate who form the cabinet. Headed by the Prime Minister, some 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 and consists of judges who adjudicate on matters within the court system.

The judiciary is independent and its 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 of the legislature as the legislature consists of both houses of parliament. Professor Stephen 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 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 ing legislation as a majority vote is needed for legislation to be ed. 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 able to parliament for its actions and to a larger extent the electorate and as such their actions are guided by both. In addition Section 50 of the Jamaican constitution requires a two thirds majority in both houses of parliament before certain sections of the Constitution (Section 13 to 26) can be amended. Sections which require such a vote include The Charter of Fundamental Rights and Freedoms which protect the basic human rights of Jamaican Citizens. A two thirds majority vote requires both the government and opposition of parliament to agree. This is a method by which the power of the executive is kept in check. 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 who can sit within the senate are fixed and the proportion of government 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 highlighted, the doctrine of the separation of powers advocates for the judiciary to be separate from the control of the legislature or parliament. 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 ed 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 if ed. This argument s 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 judge’s 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 able 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 prevails. 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.