Separation of powers: Meaning and importance

1. What are the powers referred to in the term “separation of powers”?

The main powers of the Government are described as:

(i)Legislative (the making of laws),

(ii)Executive (the implementation of laws and making of policies) and,

(iii)Judicial (the interpretation of laws, determination of legal rights and obligations and their enforcement).

2. How is separation applied to these powers?

Essentially, it means that the same persons should not exercise the different powers or control the exercise of more than one such power.

3. What is the reason for this doctrine or principle?

In an effort to prevent dictatorship by the concentration of powers in one person or group of persons, the principle of separation of powers gained support and widespread acceptance.

4. How does it work?

In the complexities of modern Government, it is not possible or practical to achieve strict separation of powers so there have been compromises in different constitutional systems, such as giving the executive powers the right to make legislative instruments.

5. Is there true separation of powers in Jamaica?

In Jamaica, of the three powers only the judicial power can be said to be truly separate in the sense that in the determination of particular cases neither the executive nor the legislature can give directions to the judges. Neither the executive nor the legislature control their appointment (with the exception of the appointment of the chief justice and president of the Court of Appeal). Neither the executive nor the legislature can decide on the discipline or dismissal judges.

6. What is the position in respect of the legislative and executive branches of Government?

At the top of the executive, the prime minister and cabinet ministers are members of the legislature (the House of Representatives or Senate) and essentially control the majority vote. These executive officers therefore formulate the laws which are to be passed by the legislature. In many cases these laws give to the executive members the power to make extensive subordinate legislation, regulations or rules which give wide legislative powers to the executive.

7. Are there any provisions in the Constitution which limit the powers of the executive?

There are several provisions which limit or control the vast powers of the executive, including the appointment of independent officers such as the auditor general and the director of public prosecutions. The executive also has to conform with provisions of the Constitution relating to the protection of human rights and fundamental freedoms and conformity with an open parliamentary process.