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System creates checks and balances within the State

The separation of powers—Part One
Published: 
Monday, July 22, 2013
Law Made Simple

Separation of powers is a principle of constitutional law with its roots in the political teachings of the Greeks and Romans. In modern democracies based on the British Westminster model, this important principle sets limits on the manner in which State institutions exercise their powers. This principle exists alongside other constitutional principles such as parliamentary sovereignty and the rule of law to establish the bedrock of the democratic legal and political system.

 

 

These principles create a tripartite model of the State, where power is exercised by three institutions: the executive, legislature and judiciary. Each institution is limited to exercising those powers attributed to it, so that no one institution is able to have total power. This creates a system of checks and balances within the State.

 

In T&T, the executive comprises the President, the Prime Minister and Cabinet, their ministries and their functionaries. The legislature refers to Members of the House of Representatives and the Senate while the judiciary comprises judges, magistrates and other special courts and tribunals which exercise judicial functions, such as the Industrial Court and Environmental Commission.

 

Expressed simply, the powers of the executive are limited to proposing laws and policies and implementing them; the legislature’s powers are limited to deciding whether proposed laws and policies should be made into law; and the judiciary’s role is limited to interpreting laws should any dispute arise concerning its meaning, and also to impose penalties for breaches of those laws.

 

In this model, the citizenry has an effective voice in the legislature, as Members of Parliament are elected officials who are expected to voice the views of their constituents in debates on proposed laws and policies. 

 

 

In reality, there is a significant overlap between the powers of the executive and legislature because of their very close relationship. The Prime Minister and some members of Cabinet are also members of the House of Representatives, and most laws which are proposed by the executive may be readily passed in Parliament as the government in power, and by extension the executive, enjoys a majority vote in Parliament.

 

Most commentators argue, therefore, that the most important division of powers to maintain is the independence of the judiciary, as this arm of State is seen as having the responsibility of protecting citizens against unjust laws and guaranteeing them those rights and freedoms which are provided for in the Constitution.

 

The Constitution of T&T, which is the supreme law of the State, is based on the principle of separation of powers. The Constitution establishes the various institutions which exercise power and sets out the limits and divisions of that power in relation to each institution, to ensure that the doctrine of separation of powers is observed.

 

However, even within the Constitution there are instances in which the principle of separation of powers has not been observed. The next article in this series will examine some of these instances, and other examples of apparent breaches of the principle.

 

 

This column is not legal advice. If you have a legal problem you should consult a legal adviser. Co-ordinator: Roshan Ramcharitar

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