Separation of Powers

Question 1

What are the three arms of government?

Answer 1

• The Executive function relates to the formulation of policy and enforcement of laws
• The Legislative function is to make laws
• The Judicial function is to interpret the law.

Question 2

What is the doctrine of separation of powers derived from?

Answer 2

It is derived from the works of Montesquieu.

Question 3

What was the works of Montesquieu concerned with? And what was posited by him?

Answer 3

He was concerned with the preservation of political liberty and felt that this could only be found when there is no abuse of power.

He posited: “Experience has shown that every man invested with power is liable to abuse it and carry his authority as far as it will go” And to prevent such abuse he believed that one power should check on the other.

Question 4

Practically, what would happen if there was a complete separation of powers with 3 independent branches and no overlapping?

Answer 4

This would bring the Government to a standstill.

Question 5

What has the doctrine of separation of powers been interpreted to mean?

Answer 5

The doctrine has been interpreted to mean that tyranny would be prevented by the non-conferment of too much power on any one person and by the check of one power by another.

Question 6

Who said “Government involves the blending of the respective powers of the principal organs of the state since there can be no watertight compartments in government”

Answer 6

Albert Fiadjoe

Question 7

What 3 things did Fiadjoe state that the doctrine helps us to appreciate?

Answer 7

1. It helps us to appreciate that of modern government, there can only be shared powers among separate and quasi-autonomous yet interdependent state organs
2. It helps us to appreciate the truism that the system of government which we operate works on the assumption that there is a core function which can be classified as legislative, executive and judicial and that those core functions belong to their respective branches or organs.
3. It helps us to recognize the government involves the blending of the respective powers of the principal organs of State. Experience shows that we cannot have water-tight compartments in government.

Question 8

Expound on the case Dodo v State [2001] 4 LRC 318

Answer 8

Constitutional separation of powers is not strict. It embodies a system of checks and balances aimed at preventing an over concentration of power in any one arm of government, whilst at the same time, anticipating that the unavoidable intrusion on one branch on another requires that power should not be so diffuse as to unduly hinder government taking timely measures in the public interest.

Question 9

What was the issue with separation of powers in the Hinds v R case?

Answer 9

Lord Diplock in Hinds (must read) took it for granted that since Caribbean constitutions are based on the Westminster Model, then they embody the principles of separation of powers. There are however dissenting views as to the extent to which this doctrine applies in our legal system.

Question 10

Expound on the case Ahnee v DPP [1999] 2 WLR 1305

Answer 10

based on these characteristics, the constitution entrenches the principle of the separation of powers between the Executive, Legislative and the Judiciary. Under the constitution, one branch of government may not trespass upon the province of any other. The constitution gave to each arm of government such powers as were deemed to be necessary in order to discharge the functions of the Executive, Legislative and Judiciary. The principle of the separation of powers is therefore apparent upon the face of the constitution.

Question 11

Does the Caribbean adopt the full doctrine?

Answer 11

The Caribbean constitutions adopt a halfway house of the doctrine as it applies in the United States of America and in Britain.

Question 12

How does the doctrine of separation of powers operate in the USA?

Answer 12

In the USA the three organs of government, while operating separately, are connected by a system of checks and balances.

Question 13

How does the doctrine of separation of powers operate in Britain?

Answer 13

In Britain separation of powers means little more than an independent judiciary, there being no separation of powers strictly between executive and the legislative.

Question 14

How is the doctrine of separation of powers applied in Jamaica?

Answer 14

The Jamaican constitution does not expressly incorporate the general doctrine, of the separation of powers; it is fundamentally concerned with the protection of the principle of constitutionalism. This principle rests on the existence of an independent and impartial judiciary and on the protection of its powers and jurisdiction from usurpation by the executive or legislature. This is derived from the basic principle of constitutional law that the rights and obligations of persons ought to be determined by judicial bodies, which are not subject to the control or direction of the executive or legislature.

(alot of words, fix if you can)

Question 15

The issue of separation of powers can be examined in five instances:

Answer 15

1. Situations where the legislature is attempting to assume judicial power.
2. The transfer of judicial power to non-judicial bodies or persons
3. Situation where there is a transfer of judicial power. (Astaphan & Co. Ltd v Controller of Customs [1996] 54 WIR 153:
4. Situations where the judiciary exercises legislative or executive powers.

Question 16

What is the relationship between separation of powers and judicial review?

Answer 16

There is a view that powers, which are separate, should not interfere in each other’s functions and therefore the review of legislation or administrative action by the judiciary is impermissible as it would amount to an encroachment on the principle of separation of powers. Particularly, judicial review of legislation is most controversial because it amounts to a participation in a legislative function. Alternatively, judicial review may be considered to be a part of the judicial function itself. In which case, the principle would not be violated. Ultimately the question is whether the checking by one branch on another is really participation in that others function and thus a violation of the principle or whether it really fulfils the doctrine by carrying out the very purpose of separating and balancing the three branches of government. In this regard, judicial review may be said to be a part of such balancing and mutual checking and not a departure from a separation of powers theory.

Question 17

When did the Bail Act come into force in Jamaica?

Answer 17

December 29, 2000

Question 18

What did the Bail Act do? (State it’s purpose)

Answer 18

It stated among other things that every person charged with a criminal offence was entitled to be granted bail.

Question 19

What are the Anti-Crime bills and how did they come to be?

Answer 19

In answer to an outcry from citizens to reduce the crime rate, Parliament passed six Acts cumulatively called the Anti-Crime Bills. Two of these sought to amend the Bail Act.

Question 20

Expound on the case Adrian Nation and Kerreen Wright v Director of Public Prosecution and Attorney General of Jamaica 2011 [Unreported]

Answer 20

On December 29, 2000 The Bail Act came into force in Jamaica. It stated among other things that every person charged with a criminal offence was entitled to be granted bail. In answer to an outcry from citizens to reduce the crime rate, Parliament passed six Acts cumulatively called the Anti-Crime Bills. Two of these sought to amend the Bail Act. The Claimants Nation and Wright were both arrested and charged for murder. The applications for bail were denied on more than one occasion. The Resident Magistrate used the amendments as the reason for such refusal. The two Acts that sought to amend the Bail Act limited the accused entitlement to bail. The amendments were found to be offensive to the principle of separation of powers. It was removing the authority of the judiciary by ordinary legislation. Found to be unconstitutional and therefore void.

Question 21

Why were the amendments to the Bail Act found to be offensive to the principle of separation of powers?

Answer 21

The two Acts that sought to amend the Bail Act limited the accused entitlement to bail. It was removing the authority of the judiciary by ordinary legislation. Found to be unconstitutional and therefore void.

Question 22

Expound on the case Commissioner of Police v Davis.

Answer 22

The appellants were apparently convicted under the Dangerous Drugs Act 1988 of The Bahamas. They were given a penalty of a $100,000 fine and five years’ imprisonment in a resident magistrate’s division. The main question was whether the said court could lawfully exercise jurisdiction, which was reserved by the Constitution to the Supreme Court. Per Lord Goff - the jurisdiction so transferred constituted a significant part of the jurisdiction that is characteristic of a Supreme Court, having regard to the maximum punishment that the inferior court was empowered to inflict.

Question 23

Expound on the case Hinds v R in relation to the constitution.

Answer 23

Per Lord Diplock: What Parliament cannot do consistently with the separation of powers, is to transfer form the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of punishment to be inflicted upon an individual member of a class of offenders…the fact remains that a majority of the members of the review board are not qualified by the constitution to exercise judicial powers.

Question 24

Explain the Management Act 1990 reviseed edition a best as possible.

Answer 24

permitted the forfeiture of the excess payment. In his appeal, the appellant applied for Declarations and Orders predicated on the unconstitutionality and invalidity of s. 27 (3), (4) and (6) of the Customs (Control and Management Act. The argument was that the ‘further sum’ under the Act purported to be either a tax or duty or a penalty. If it was a tax or duty, then s 27 (4) is inconsistent with the basic principle of separation of powers implicit in the Constitution. If the ‘further sum’ purported to be a penalty, s 27(4) either contravened s 6 of the Constitution (which protected the individual from compulsory acquisition of his property without constitutional authority therefore) or was inconsistent with the basic principle of separation of powers. Flossaic CJ said: “the power to impose taxes and duties is inherently a legislative power constitutionally vested in the Legislature. If the ‘further sum’ within s 27 (4) of the Act has authorized the proper officer to demand a tax or a duty, the Dominica legislature has delegated or transferred its legislative power of taxation to the executive (that is, the proper officer). The question arises as to whether such delegation or transfer of legislative power offends the basic principle of separation of powers. I concede that the delegation of transfer of legislative power by the t with Legislature to the executive is not per se inconsistent with the principle of separation of powers. There is no such inconsistency if the legislature retains effective control over the executive in the latter’s exercise of the delegated or transferred legislative power. Such effective control may be retained by circumscribing the power or by prescribing guidelines or a policy for the exercise of the power…The legislature reserves the right to repeal its own legislation and to revoke any legislative power which it has delegated or transferred to the executive. To that extent, the legislature retains ultimate control over the executive in relation to the exercise by the executive of the delegated or transferred legislative power…” He concluded that if the legislature delegates or transfers its legislative power to the executive and does so without circumscribing guidelines or a policy for its existence, the legislature should be deemed to have surrendered or abdicated the power. In that event, the delegation or transfer of legislative power is inconsistent with the basic principle of separation of powers.

Question 25

In Benjamin, Vanderpool & Gumbs v. Minister of Information and Broadcasting & The Attorney General for Anguilla [2001] 1 WLR 1040 Justice Saunders noted: “Our democracy rests on three fundamental pillars, the legislative, executive and the judicial. All must keep within the bound of the constitution. The judiciary has the task of ensuring that legislative and executive action does not stray outside the boundaries onto forbidden territory. If that occurs and a citizen has a standing complain, the court declares the trespass and grants appropriate remedies. Within their constitutional parameters the legislature and the executive are responsible for the enacting and implementing of such policy measures as in their wisdom they consider to be most appropriate for the people. The judiciary has to be careful that it too does not stray from its function and usurp the authority and the role reserved for the other two pillars. There is a fine line, which the court must tread in these circumstances. On the one hand it must protect the citizens and guarantee them rights and freedoms, which the constitution proclaims. On the other hand, the court should not intrude into the preserve of the other branches of the State. For our democracy to operate effectively, it is said that it is necessary that a certain comity 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 is intra vires the constitution. The executive should respect and obey the decisions and accept the intimations of the court. If this comity does not exist, then the wheels of democracy would not turn smoothly…”

Answer 25

hi

Question 26

In the Caribbean generally, the principle of the separation of powers, have received its principal application by securing the independence of the courts from the control of the Executive. In the Boilermakers Case [1957] AC 288, Lord Simmons said that the “absolute independence of the judiciary is the bulwark of the constitution against encroachment, whether by the legislature or the executive. To vest in the same body executive and judicial power, is to remove a vital constitutional safeguard.”

Answer 26

:3