THE EDITOR: Our country’s current affairs situation is exposing some revelations vis-a-vis the separation of powers principle between the judiciary and the executive. The occurrences within the major branches of government have led me to some research with regard to the separation of powers.
The principle states that the executive, legislative, and judiciary powers of government should be divided into different branches and not concentrated in one.
These departments should be separate and distinct because of the corrupting nature of power. If the body that made the laws could also enforce them and adjudicate disputes, it would likely do so in a preferential manner, undermining the rule of law and basic fairness.
The legislative branch is responsible for enacting the laws of the State and appropriating the money necessary to operate the government. The executive branch is responsible for implementing and administering the public policy enacted and funded by the legislative branch. The judicial branch is responsible for interpreting the Constitution and laws and applying their interpretations to controversies brought before it.
There is not a strict separation of powers between the legislative and the executive branches. The government personnel are provided by the Parliament. The prime minister and ministers must be members of either Houses of Parliament.
The powers of government are scrutinised by the Parliament.
The legislature checks the executive. Parliament exercises control over the executive, it checks the work of the executive arm and administrative institutions.
The government has to justify itself in Parliament in respect of everything it does or causes the administration to do. The interference of the executive branch in Parliament is seen through delegated legislation as the legislative functions are exercised by the executive in the Parliament. Question time, debates, and select committees are part of checks and balances which help to ensure the accountability of government to Parliament in any matters.
The judicial branch of government is often separated from the legislative and executive branches. Parliament cannot criticise judges. The only influence the legislature has on the judiciary is that it passes the laws that the courts have to comply with. Judges administer justice. They decide disputes independently and impartially.
For this reason the Prime Minister could choose to send the Chief Justice’s sabbatical matter to court. On the question of separation of powers between the judiciary and the executive, judicial review is a way that can be exercised by the courts to ensure that the executive does not abuse its powers and as a means to uphold the rule of law.
While separation of powers is key to the workings of a nation, no democratic system exists with an absolute separation of powers. Former chief justice Michael de la Bastide does not think it would be practical for the judiciary to have “complete independence” as it could lead to conflict. He said “since the terms and conditions for judges had an impact on the expenditure of the State, it cannot be left entirely to judges.”
In his view “the present arrangement, where the Salaries Review Commission recommends changes to terms and conditions which are subject to acceptance by Cabinet, is not an unreasonable impingement on the separation of powers.”
The separation of powers is important because it provides a vital system of checks and balances. The main purpose of the separation of powers is therefore to prevent the abuse of power.