The Concept of Separation of Powers Embodied in the Jamaican Constitution

The concept of Separation of Powers is embodied in the Jamaica Constitution.

According to The Oxford Encyclopedic English Dictionary, ‘a Constitution is a body of fundamental principles or established precedents according to which a State or other organization is acknowledged to be governed’. An important task for a constitutional system is to determine how power is to be distributed across different institutions and public offices. The main roles within the constitutional system are usually referred to as the executive, legislative and judicial roles. The relationships between these roles and the institution and processes through which they are carried out are held by the principle that powers should be separated.

The Jamaican Constitution Order in Council came into being by virtue of exercise of powers of Her Majesty under section 5 of West Indies Act, 1962 “by and with the advice of the Privy Council”. The Act was tabled to ‘make provision for and in connection with, the attainment by Jamaica of fully responsible status within the Commonwealth’. This document formed the framework for Jamaica’s political independence and created the premise on which this developing nation could carve out its own legal system based on its own moral, cultural and political experience.

Separation of powers is the division of the Legislation, the Executive and the Judicial functions of government among separate and independent bodies. The doctrine may be traced to ancient and medieval theories of mixed government, but the first modern formulation of the doctrine was by the French writer Montesquieu in De l’esprit des Lois (1748). Montesquieu argument was that liberty is most effectively safeguarded by the separation of powers and his ideology later inspired the development of the English constitution. However, it has been argued by some that separation limits the possibility of arbitrary excesses by government, since the sanction of all three...