Separation of Powers - Importance of Judicial Independence

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Separation of Powers - Importance of Judicial Independence

By | October 2012
Page 1 of 7
The Jamaican Constitution (hereinafter “the Constitution”) came into effect with the Jamaica Independence Act of 1962.  The Act was tabled to ‘make provision for and in connection with, the attainment by Jamaica of fully responsible status within the Commonwealth.’ This document formed the framework for Jamaica’s political independence and created the premise on which this fledgling nation could carve out its own legal system based on its own moral, cultural and political experience. The Constitution though largely reflective of the previous colonial relationship, has within it an innate balance of power between the arms of government that is theoretically and fundamentally positioned to support the country’s self-governance. This balance is so designed, to facilitate the critical functions of government while ensuring that no single body so fully controls the reins of power that it’s will can be imposed without the acquiescence of the other parties, and the greater society. This balance is grounded in the principle of the Separation of Powers, implied by the Constitution. With the complex interplay of relationships, and the significance of power within the Executive, the Legislature and the Judiciary, the latter emerges as the keepers of the gate in maintaining this equilibrium through its function as the arbiters of justice.  

The Doctrine of the Separation of Powers was first proposed by the Greek philosopher Aristotle (384-322BC), and made popular in the 17th century by French writer Charles Louis de Montesquieu.  Montesquieu argued that for an independent judiciary to exist, the three arms of government must have separate and independent powers within their areas of responsibility, otherwise we run the risk of there being no liberty, arbitrary control, violence and oppression. This principle may be applied to varying degrees in any legal system and may or may not be a legal restriction; however it is a very effective tool used to protect the rights and...