The Separation of Powers Doctrine

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Nations all over the world, in their Constitutions, regard the doctrine of the separation of powers as a guiding light. The framers of the Constitution of the United States of America called the separation of powers doctrine the sacred maxim of free government. Chang JAin theChue v AG (2006), pronounced that “…the principle of the separation of powers underlies the very structure of the [Guyanese] Constitution and inheres in its contents”.

The term was coined in the 17th century by Montesquieu, a French jurist, who was of the view that for liberty to exist separation of powers is necessary. In modern times, the separation of powers doctrine has become a unique aspect of democracy, a principle of good governance, as well as an inseparable part of the rule of law.
Whereas the concentration of power in the same hands would give rise to gross unaccountability and eventually tyranny, the separation of powers is the division of the state into three main branches: the executive which is the Government, the legislature which is Parliament and the judiciary which comprises the courts. This achieves, albeit imperfect, a balance of state powers, with mechanisms for cooperation and a system of checks and balances.

The Constitution of Guyana contains no provision explicitly declaring that the powers of the three branches of the Statemust be separated. However, in Chue v AG, it is stated that in Guyana, a democratic State, the separation of powers exists among the executive, legislature and judiciary and is implicit in the structure and in the contents of its Constitution.
Indeed, Article 99 of the Constitution vests executive authority in the President, who may also exercise this authority through his officers whereas under article 65(1) of the Constitution, Parliament must make laws for peace, order and good government. And notably, Article 122A of the Constitution mandates that the judiciary exercises its functions independently from control and direction of any other authority, whether political, executive or otherwise. All courts must be administratively and financially autonomous or self-governing (Articles122A and 222A).

The Executive: Government
The executive governs the country. It makes decisions for the country’s well-being by making and carrying out policies. The executive includes the President, the Prime Minister and the other Ministers of the Government.They conduct the day-to-day affairs of governance.

The Legislature: Parliament
Parliament makes the laws of the land. Parliament is made up of the National Assembly and the President. The National Assembly comprises 65 members who were elected by the citizens of Guyana. If the Speaker is a member of civil society (rather than a member of a Party’s list) then he, too, is a member of the National Assembly, as is our current Speaker, the Hon. Dr. Barton Scotland, CCH, MP. His Excellency’s Ministers sit in Parliament. In this way there is some overlap between the executive and the legislature.

The Judiciary: The Courts
The judiciary comprises the courts which are presided over by judges and magistrates of varying rank. They ensure that the legislature, the executive, and general society uphold the law by interpreting and applying the law. Above all laws is the Constitution, of which the separation of powers is part and parcel. Any law made by the legislature which is repugnant to or conflicts with the Constitution can be declared void and struck down by the High Court. The fundamental rights of persons guaranteed by the Constitution are safeguarded by the Courts so that the executive and the legislature cannot adversely interfere with these rights. Any unlawful act done by the executive can be challenged in the Courts who may then intervene.
An independent judiciary is one of the grand pillars of a democracy. In the exercise of its powers, the judiciary is constitutionally insulated from the improper influence or any control by the executive and legislature.

There are many instances where in effect a branch of the State relies upon, supervises, or affects another in a subtle way. Some examples are as follows:

The Law-Making Process
Take for instance how Parliament makes a law: First, the Bill – as a proposed law is called –must be approved by a specified majority of members of the National Assembly. The kind of majority required varies depending on the impact of the Bill, if any, on the Constitution. Second, the Bill must be approved or assented to by the President; and third, it must be published in the Official Gazette. The President can withhold his assent to a Bill approved by the National Assembly thereby effectively preventing it becoming law. The President thwarts the intent of the legislature when he withholds assent, which though constitutionally permissible, could adversely affect the aspirations of the people.

The Appointment of Judges
The Judges of the High Court are appointed by the President acting on the advice of the Judicial Service Commission. The Chancellor and the Chief Justice are appointed by the President after the Leader of the Opposition has signified agreement.

Public Expenditure
Each year, the National Assembly must approve the budget, prepared by the executive, for spending for the next year: the National Assembly is akin to the gate-keeperof the national treasury. The Public Accounts Committee, a standing committee of the National Assembly that is chaired by an opposition member, can examine the accounts showing the appropriation of the sums approved by the National Assembly to meet public expenditure and such other accounts laid before the Assembly.
Here we see the system of separation of powers at its finest where the National Assembly scrutinises, checks and balances the spending of the executive, ensuring that the treasury of the State is not abused.

It has been argued, and this writer must concur, that absolute or total separation of powers is neither desirable nor possible. In fact, the logical extension of this argument taken to its furthest would mean that our nation would have distinct rulers. And how can we serve two masters at any one time, let alone three? Absolute separation would thrust conflicting branches of the State into deadlock and restrain the momentum of national development.
At various levels, for an efficiently functioning government and society, there must be both clear separation as well as some necessary interdependence between the branches of the State. Absolute separation is a chimera and not the intent of the Constitution. The judiciary has a supervisory task to ensure that the other branches, as well as itself, confirm with the law.
The legislature must hold the government executive accountable. The executive must ensure that the infrastructural apparatus of all of the branches of the State are in consonance with the rule of law and do not offend against the principle of separation of powers to an unwarranted degree. And so the unending circle goes on, as each safeguards the other.

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Columns · Issue 21 · Judiciary · Publication

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