Separation of Powers and Constitutional Conventions

Based on the Westminster Model, Caribbean constitutions embody the separation of powers among the Executive, Legislative, and Judiciary.
One branch cannot infringe upon another's domain; each has necessary powers to fulfill its functions.
Securing judicial independence from executive control is a principal application.
Absolute independence of the judiciary protects against encroachment from the legislature or executive.
The Jamaican constitution protects constitutionalism through an independent judiciary.

Legislature assuming judicial power:
- Liyanage case: legislature deemed unconstitutional when assuming judicial power.
Transfer of judicial power to non-judicial bodies:
- Hinds v R: Parliament can't transfer discretion on punishment severity to an executive body.
- Astaphan & Co. Ltd v. Comtroller of Customs: Delegation of legislative power to the executive without guidelines is unconstitutional.
Transfer of judicial power from higher to lower judiciary:
- Hinds: Transferring significant Supreme Court jurisdiction violates separation of powers.
- Farrell v AG: Industrial Court Act shouldn't grant High Court status or jurisdiction normally vested in the High Court.
Executive assuming legislative power:
- Mentioned in Astaphan & Co. Ltd v. Controller of Customs [1996] 54 WIR 153
Judiciary exercising legislative or executive powers:
- South African Association of Personal Injury Lawyers v. Health [2001] 4 LRC 99: A judge heading a Special Investigating Unit (SIU) was deemed unconstitutional.

Judicial review and separation of powers:
- Judicial review's legitimacy is debated, with some viewing it as encroachment and others as part of judicial function.
- Judicial review may balance branches of government.

Differentiation: Legislative, Executive, and Judicial branches differentiated.
Incompatibility: Restrictions against holding offices across different branches.
Independence: Each branch operates without interference from others.
Checks and Balances: Branches have mechanisms to check each other.
Coordinate Status: Branches function independently without accountability to each other.

The Caribbean constitutions balance USA and British approaches, where the UK relies more on social norms while the USA Constitution ensures no override.

The American Model might not be appropriate because a subdued executive with assigned powers defined in writing may lead to conflicts and tensions and is ubsuited to the needs of developing countries which need to move at a much faster pace than that at which developed countries move over so many centuries

Maintain constitutional boundaries, guaranteeing rights without usurping other branches' roles.
Respect each branch’s function; comity ensures smooth democracy.

Conventions may help to interpret the law, regulate the relationship between the different branches of government and act as useful tools in adjusting the strict letter of the law to meet the imperatives of the times.

West Indian constitutions incorporate principal conventions, regarded as conventions rather than laws.
Local adaptation, such as depoliticizing judge appointments.
Non-justiciability clauses are treated more as conventions.

Conventions are essential, even if not enforced by courts, due to political expediency and respect for traditions.