Overlapping of powers
PRIME MINISTER Andrew Holness has promised to provide us Jamaicans with job descriptions for our members of parliament (MPs) and Cabinet ministers so that we can hold them accountable. I suspect that the reason we have not yet received them is because, in our bastardisation of the Westminster parliamentary system, there is quite a bit of ambivalence and functional overlap.
In the three-tiered Westminster system of government, (in theory) the executive arm makes policy, the legislative arm passes laws, and the judicial arm interprets the law.
But that is not how we do it in practice. The executive (the Cabinet) sets policy, drafts the legislation, and introduces it into Parliament.
Individual members of the House do have the power to introduce legislation (private member’s motions), but these are usually treated with low priority, and may quickly fall off the Order Paper. In addition, individual legislators have a hard time getting access to the services of experts in the drafting of legislation, who will say that all their time is taken with drafting legislation coming out of the executive.
Are MPs real legislators, or are they simply rubber stamps for Cabinet decisions on the legislative agenda?
The website of the UK Parliament at Westminster gives the following as an answer to the question, “What do MPs do?”
“The UK public elects members of parliament (MPs) to represent their interests and concerns in the House of Commons. MPs consider and can propose new laws, as well as rais[e] issues that matter to you in the House. This includes asking government ministers questions about current issues, including those which affect local constituents.”
POOR IMITATION
Our system of governance is a poor imitation of Westminster.
With their legislative role largely appropriated by the Cabinet, and with little else to do, MPs have proceeded to trespass upon the portfolios of parish councillors. Central government has never allowed local government to come into its own, and MPs micromanage their constituencies, making local government redundant. This is where job descriptions are most needed: to protect parish councillors from interfering MPs.
Speaking this past week at a training workshop at The University of the West Indies, Caribbean Court of Justice President Adrian Saunders made the following statement: “In those instances when we are called upon, to engage in, perhaps, constitutional or human rights adjudication – when we are asked to make appropriate declarations and orders which we know will be deeply unpopular, orders which we know may be derided by the majority, or by the government, or by influential interest groups – in such moments, it is temptingly convenient to take the easy way out by resorting to sophistry, or to duck uncomfortable issues by declaring, for example, that it is the Parliament and not the judges that should provide the relief that the citizen is crying out for.”
If Justice Saunders is calling for judges to be courageous in handing down judgments that may be against the interests of the rich and powerful – especially of the governments (politicians) which pay their salaries – that encouragement is well placed. But if he is calling on Caribbean jurists to not be afraid to use their power to make new laws, or to change the law, it seems to me that the judiciary would be trespassing on the territory of the legislature.
The principle of separation of powers refers to the division of responsibilities between the branches of government to limit any one branch from exercising the core functions of another. The intent of separation of powers is to prevent the concentration of unchecked power by providing for checks and balances to avoid autocracy and overreaching by one branch over another.
What is the mechanism by which judicial activism and judicial overreach can be checked?
... If he is calling on Caribbean jurists to not be afraid to use their power to make new laws, or to change the law, it seems to me that the judiciary would be trespassing on the territory of the legislature.