Separation Of Powers 62x5w

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 istration to facilitate implementation of the government’s 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 ed 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 ed 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 GG’s 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 ed 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.