Separation of Powers - Importance of Judicial Independence

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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 liberties of citizens from tyranny.  

The Constitution by virtue of Section 34, establishes Parliament (the Legislature) as the first arm of government and comprises the Queen (represented by the Governor General) and two Houses: the Senate and the House of Representatives.  Under Sections 48 –50, it is given power to make laws for the peace, order and good governance of Jamaica, decide special rights, immunities and powers of the Senate, the House of Representatives and its members; and the conditional power to alter the Constitution.    

By virtue of Section 68, the Governor General is given Executive power to be used on the Queen’s behalf either directly or through officers under him.  Section 69 establishes the Cabinet as the main body to direct policy.  The Cabinet, consisting of the Prime Minister and other Ministers chosen by him, manages the general administrative functions of the Government and is accountable to Parliament.   The Governor General together with the Cabinet comprises the Executive arm of Government, the second arm of government.  

The Judiciary is the third arm of Government. It comprises judges and magistrates from the network of courts that form the legal system. Sections 97 and 103 of the Constitution establish the Supreme Court and the Court of Appeal, respectively. The Chief Justice and the President of the Court of Appeal are appointed by the Governor General on the advice of the Prime Minister in consultation with the Leader of the Opposition. The other Puisne Judges are appointed by the Governor General on the advice the Judicial Services Commission.  

It is important to note that there is some degree of inter-connectivity between the Executive and the Legislature, as members of the Cabinet are also members of Parliament. The sharing of personnel between these two bodies compromises the strict application of the doctrine of the separation of powers. It is therefore imperative that the Judiciary executes its functions in an independent...
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