Jamaica Gleaner

Overlappin­g of powers

- Peter Espeut is a sociologis­t and developmen­t scientist. Email feedback to columns@gleanerjm.com.

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.

 ?? FILE ?? Sir Patrick Allen (right), governor general of Jamaica, conducts the swearing-in of Justice Adrian Saunders as president of the Caribbean Court of Justice during a ceremony held at the Hyatt Ziva Rose Hall, St James, on July 4.
FILE Sir Patrick Allen (right), governor general of Jamaica, conducts the swearing-in of Justice Adrian Saunders as president of the Caribbean Court of Justice during a ceremony held at the Hyatt Ziva Rose Hall, St James, on July 4.
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