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
members of parliament and appointed members of the senate who form the
cabinet. Headed by the Prime Minister, some members 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 members 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 members 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
members 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 passing legislation as a majority vote is needed for
legislation to be passed. 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 accountable 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 members of parliament to
agree. This is a method by which the power of the executive is kept in check.
Members 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 members who can sit within the senate are fixed and
the proportion of government members 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 supported 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
passed. This argument supports 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 judges 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 accountable 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.