Separation of Powers Doctrine

Separation of Powers: Historical Background

Aristotle conceived the idea of separating government organs in the 3rd Century B.C., dividing them into deliberative, magistracy, and judicial branches.

Locke, in the 17th century, prioritized legislation, executive, and 'federative' functions.

Montesquieu in the 18th century emphasized that political liberty exists only when there is no abuse of power, advocating for checks and balances among powers to prevent tyranny.

O. Hood Phillips and P. Jackson suggest that extreme separation of powers would be impractical, potentially halting government functions.

Branches of Government:

  • Legislature: Decides and enacts policy.
  • Executive: Administers and implements policy.
  • Judiciary: Interprets and applies law, resolves disputes, and defends the Constitution.

Meaning & Purpose

Marshall notes the doctrine yields a 'cluster of overlapping ideas':

  • Differentiation of legislative, executive, and judicial concepts.
  • Legal incompatibility of office holding between branches.
  • Isolation/independence of branches from interference.
  • Checking/balancing of branches.
  • Coordinate status and lack of accountability between branches.

Separation of Powers & Commonwealth Caribbean Constitutions

Caribbean constitutions reflect British principles, implying the applicability of the separation of powers.

Hinds v. R (1977) established its application, adopting a middle ground between the USA and British models.

Fiadjoe suggests that in the UK, it means an independent judiciary with limited separation between the executive and legislative.

Sir Allen Lewis argued for cooperation between the legislature, executive, and administration in developing countries to facilitate government policies.

Benjamin et al v. Minister of Information et al

Saunders J emphasized the need for comity between the legislative, executive, and judicial branches.

Each branch must respect the role of the other within constitutional parameters.

The judiciary ensures the other branches stay within constitutional boundaries.

Hinds v. R [1977] AC 195

Privy Council ruling on Jamaica's Gun Court Act 1974:

  • Extended geographical boundaries were constitutional.
  • In camera trials were permissible absent evidence of bad faith.
  • Separation of powers is implicit in the Constitution.
  • Parliament cannot transfer judicial power to a non-judicial body.
  • Inconsistent provisions were severed, valid provisions subsisted.

Adrian Nation and Kereen Wright v Director of Public Prosecution and Attorney General of Jamaica (2011)

2000 Bail Act in Jamaica was amended in 2010 with "Anti-Crime Bills" to restrict bail.

Amendments shifted the burden of proof to the accused and extended the holding period without bail.

Claimants argued their constitutional rights were violated.

The court found the amendments encroached upon judicial function and violated the Constitution.

General Caribbean Application

The principle primarily secures the independence of courts from executive control.

Boilermakers Case [1957] AC 288: absolute independence of the judiciary is a vital constitutional safeguard.

Barnett: Jamaican constitution protects constitutionalism through an independent judiciary, safeguarding its powers from executive or legislative usurpation.

Relationship Between Separation of Powers and Judicial Review

Judicial review's permissibility is debated, with some viewing it as encroachment while others see it as part of the judicial function.

The core question is whether checking by one branch on another violates or fulfills the doctrine by balancing the three branches.

Ahnee v DPP [1999] 2 WLR 1305: Lord Steyn argued the Constitution entrenches separation of powers, preventing branches from trespassing on each other's functions. The judiciary must enforce its orders to maintain a fair administration of justice.