Separation of Powers – Importance of Judicial Independence

The Jamai lavatory typography (hereinafter the nature) came into loading with the Jamaica Independence dally of 1962. The Act was tabled to energise provision for and in connection with, the attainment by Jamaica of full responsible status indoors the Commonwealth. This chronicle formed the framework for Jamaicas policy-making independence and created the premise on which this dispatcher nation could carve aside its own sub judice governing body ground on its own moral, cultural and governmental understand.The genius though largely reflective of the former colonial relationship, has in spite of appearance it an innate difference of berth in the midst of the fortify of disposal that is theoretically and fundamentally military postureed to house the coarses self- face. This balance is so designed, to make haste the critical attend tos of government while ensuring that no single body so fully controls the reins of force play that its will nooky be impose d without the acquiescence of the new(prenominal) parties, and the greater society.This balance is grounded in the doctrine of the Separation of Powers, implied by the administration. With the tangled interp mystify of relationships, and the implication of power in spite of appearance the determination maker, the legislature and the bench, the last mentioned emerges as the keepers of the gate in maintaining this counterweight through its conk as the arbiters of evaluator. The teaching of the Separation of Powers was start-off proposed by the classical philosopher Aristotle (384-322BC), and made popular in the seventeenth century by French source Charles Louis de Montesquieu.Montesquieu argued that for an independent judiciary to experience, the three arms of government must hold disperse and independent powers within their argonas of obligation, separatewise we press the risk of there be no liberty, arbitrary control, violence and oppression. This dogma wh itethorn be applied to varying degrees in all judicial clay and may or may not be a legal restriction up to now it is a very effective mechanism used to protect the rights and liberties of citizens from tyranny.The organisation by virtue of segment 34, establishes Parliament (the Legislature) as the first arm of government and comprises the tycoon (represented by the governor General) and two nursing homes the Senate and the House of Representatives. Under theatrical roles 48 50, it is given power to make equitablenesss 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 authorship.By virtue of Section 68, the Governor General is given administrator power to be used on the Queens behalf either at one time or through officers low him. Section 69 establishes the Cabinet as the main body to direct policy. The Cabinet, consis ting of the vizor pastor and former(a)(a) Ministers chosen by him, manages the familiar administrative functions of the organisation and is accountable to Parliament. The Governor General together with the Cabinet comprises the executive director arm of Government, the second arm of government.The bench is the third arm of Government. It comprises labels and magistrates from the network of judiciarys that form the legal system. Sections 97 and 103 of the Constitution establish the Supreme come on and the chat up of Appeal, respectively. The Chief Justice and the President of the administration of Appeal be official by the Governor General on the advice of the Prime Minister in consultation with the drawing card of the Opposition.The other Puisne Judges argon appointed by the Governor General on the advice the legal Services Commission. It is important to tincture that there is about degree of inter-connectivity betwixt the executive and the Legislature, as member s of the Cabinet are also members of Parliament. The sharing of personnel amidst these two bodies compromises the strict activity of the doctrine of the separation of powers. It is thereof imperative that the judgeship inclines its functions in an independent manner.The Constitution supports the presumption that the Judiciary has not only the right, merely the responsibility to review the affairs and policies of the Executive and Legislature to ensure that their powers are cosmos exercised within the limits of the Constitution. In exercising this duty, a court can declare a integrity unconstitutional and therefore profitless and void as in the lineament of Adrian Nation, Kereen Wright v DPP and the attorney General of Jamaica. In Moses Hinds v. The Queen it was underscored that the fair and effective dministration of jurist constitutionally rests only within the powers of the Judiciary and in Independent Jamaica Council for Human Rights Ltd. and Others v. Marshall-Burnet t and the Attorney General of Jamaica, the Privy Council overruled the judgment of the Jamaican Appellate Court in purpose that the three mailings try oning to remove the Privy Council as the final examination appellate court were unconstitutional. This decision was based on their previous opinion in Hinds.As demonstrated in other Commonwealth jurisdictions, the Judiciary may indirectly place pressure on the Legislature to ensure that integritys are drafted intra vires, in the first instance. In attempting to avoid ultra vires rulings, the legislative often times tests its own legislating in the courts. This occurred in Suratt et al v Attorney General of Trinidad and Tobago wherein the Trinidad and Tobago Government defended an natural action on the cubic yard that a Bill seeking to promote e tincture was unconstitutional by virtue of its being discriminatory. This contest to legislation is another example of the mate and balance of the Separation of Powers. The Judiciar y is indeed required to rule on complex issues that cause direct implications for the members and institutions within society, including the other arms of government with ingenuousity and in accordance with the Rule of Law. The rule of law as proposed by A. V. Dicey asserts that no man should be punished miss for conduct in clear damp of the law. This assertion supports the concomitant that the legal system rests on the objectivity of the Judiciary.Where we are governed under a system which rests upon the impartial application of laws, and under which citizens rights and obligations are regulated by those laws, there must be an ceremonious and accepted system for making law. The law must be publicly known. incumbrance with rights and obligations must be justified within the law as the perception of rights, freedoms and equality in society is sourd by the quality of juridical rulings. In the spirit of Judicial Independence, the Judiciary must be impartial and may not be inf luenced by any source except the law.Within the Constitution, surety of tenure and security of salary are entrenched provisions designed to sequester the Judiciary from pressure intended to influence their rulings. Judicial Impartiality is defined as the freedom of each individual judge to reach a decision within the law without undue meddlence or pressure from government, other judges, the media or any other source. While attempts to directly interfere with the fair and effective administration of judge may be limited, it can be argued that several factors undoubtedly affect the courts exponent to properly execute its role.Particularly within the Jamaican context, financial constraints arising out of cost-cutting measures of Parliament and limitations in Ministerial budgets have severely affected the resources and physical radix required for the efficient operations of the machinery of the Judiciary. In recent times, influential voices in the Jamaican legal fraternity have h ighlighted the withdraw to address the issue of limited resources. The managing director of Public Prosecutions, Paula Llewellyn have stated that the farming is struggling with a low capableness court situation and that is affecting how the wheels of justice turn.. ou should have been building to a greater extent than courtrooms and making sure you have more personnel, court reporters, prosecutors, resident magistrates. and that was not being done. The Judiciary also provides guidance to the citizens and other branches of government on matters relating to the Constitution, through statutory definition and application of general principles of law while settling disputes brought before them. Their ability to be fair and impartial is oddly challenged when called upon to interpret and rule on legal documents that are poorly drafted or ambiguous.Although the law lends itself to flexibility and expediency, the question arises in some instances whether the ruling accurately represe nts the will of the legislative as some appeals have been travel on the grounds of statutory mistake as in the elusion of R v East Berkshire Help empowerment ex parte Walsh. Judges may perplex themselves inadvertently assuming the role of creating legal rights when required to make plain issues not explicitly addressed by legislation.It has been debated that these alleged(prenominal) created laws are not in fact created but are legal principles which lay dormant until judges interpretations unearth them. This was the position taken by Brett, M. R, in Munster v Lamb. However, the perception is that this power does indeed exist as, in plural societies right and hurt are just as plural and judges must ensure that conclusions sufficiently represent a fair walker of justice. If the Judiciary were acting solely as the mouth piece of the Legislature and the Executive with no independent thought or justice-driven compass, this arm of government would hardly be relevant.In Earl Pratt and Ivan Morgan v The Attorney General and The super of Prisons, Saint Catherine, the Privy Council interpreted beastly treatment under section 17(1) of the Constitution of Jamaica to include delay between credendum and the carrying out of the death penalty though the constitution was silent on this matter. This interpretation created a legal right which had the effect of automatically commuting death penalty convictions for convicts on death row in excess of five years to flavour imprisonment.The Judiciary also exercises its constitutional decree through a process of Judicial review which is the means by which Government departments, local authorities or others with law-making and administrative powers are confined by the courts within powers granted by the Constitution. . Although Jamaica does not have a specific Judicial look into Act, provisions for judicial and constitutional claims strickle under Administrative Law Claims in section 56 of the Supreme Court of Civil Pr ocedure Rules, 2002. Judicial Review is an important tool of the Judicial Branch.It is considered a grave and ominous responsibility which the courts must not shirk from or attempt to shift to Parliament as this responsibility in and of itself is a system of checks and balances and then seen as the last bulwark of citizenry. The grounds for Judicial Review includes error of law, mischance to observe the principles of equity, abdication of functions, improper deputation of authority, and unreasonableness of a decision. All are keep grounds for the argument that the maintenance of fair justice is eally what is at the heart of the function of the Judiciary. Remedies for judicial review include Certiorari, for quashing unlawful acts, Prohibition, for prohibiting unlawful acts and Mandarmus, (now mandatory order), for requiring performance of a public duty, including a duty to make a decision or determination, or to hear and determine any case6. The fair administration of justice b y Jamaicas courts is influenced by the fact that its final court of appeal rests outside its jurisdiction. accord to the principle of stare decisis or Judicial Precedence, courts are bound follow the ruling of higher(prenominal) or equal courts. With the Privy talk over being retained by the Constitution as Jamaicas final appellate court, the discussion arises whether the rulings of that external body are sympathetic to the Caribbean experience and thus a fair and effective administration of Justice. According to Sharma JA of the Trinidadian Court of Appeal in Boodram v.AG and Another, even after our independence, our courts have move to develop our law very oft in accordance with English jurisprudence. The intrinsical danger and pitfall in this approach is that, since Independence our society has developed other than from the English and now requires a rugged examination in order to gift our Constitution and common law meaningful. The Jamaican Constitution was so designed to support and to be supported by the belief of Separation of Powers between the Legislative, the Executive and the Judiciary.Though not free of limitations, the Doctrine effectively balances power among the three bodies, ensuring that encroachments that are not in the interest of justice are held more or less in check. The sharing of personnel between the Executive and the Legislative bodies in the Jamaican Parliament, however, can lead to cynicism and has the potential for corruption. It is therefore imperative that the Judiciary be allowed to function independently and be protected from interposition from those who would seek to influence its decisions.Despite the intent of the Constitutions authors, the justice system can only be determined to be fair or faulty based on human factors, the judges. The Constitution is a function as well as a reflection of the society it serves and as such our moral, cultural and economic experience will determine how our justice system evolves an d whether the tenets on which it is founded are sufficiently well-knit and rooted to support Jamaicas political and legal independence.