Author: Jeevan A. Robinson - MNI Media | Date: 27 February 2018
Welcome once again to yet another edition of the joint Speaker’s Chair collaboration between MNI Media and the Office of the Legislature on Montserrat. You can listen to this week's feature presentation below, or also follow by the written copy that follows:
So far in this series, we have shared key information on "The history of Democracy and Parliament on Montserrat", and we also touched on the topic of why “Legislators are called Law-makers, and the differences between Cabinet and Parliament.
For today’s programme, our focus will now move on to “The Separation of Powers within the Different Branches of Government on Montserrat.”
Montserrat, as we have already established prior, practices representative parliamentary democracy based off of the Westminster model of the United Kingdom.
Within this system of representative parliamentary democracy the operations of government, and more particularly the pillars of governance, is a key area that often occupies the practice and exercise of power in the execution of the country’s daily operations.
As we examine the theme of the Separation of Powers, this can be described as a doctrine that provides for the functions of the three arms of government - which are carried out by separate and distinct bodies of people. This separation therefore of the arms of government enables a check on the concentration of power in the hands of a few, over the majority.
So, what are these branches of Government that are being referred to?
The Governance structure on Montserrat is comprised of three main pillars.
1) The Judiciary
2) The Executive Branch
2) The Legislative Branch
Within this representative system, it is critical that these three branches of government do not infringe nor interfere with each other.
The separation of the powers of these three branches of government is a fundamental requirement, so as to offer the public a system of checks and balances within the governance structure of the island.
Let us begin by looking at the three branches of government with an introduction to the functions The Judiciary.
The Judiciary is considered to be independent of both the Executive Branch of Government and also the Legislative Branch. Both the Legislative and the Executive Branches of government are subject to controls and checks of their power and decision making authority, and this is where the Judiciary comes in.
The Judiciary’s role, of course, extends beyond the Legislative and the Executive Branches, as they also administer the rule of law on an island wide basis.
Speaking towards the functioning of The Judiciary, the 2010 Constitution Order states under the section “Eastern Caribbean Supreme Court” in subsection 80 where it says:
“The Supreme Court Order 1967 (1) shall continue to apply to Montserrat as it applied immediately before the commencement of this Constitution, and accordingly the High Court and the Court of Appeal of the Eastern Caribbean Supreme Court shall continue to have jurisdiction in Montserrat.”
Speaking on the matter of subordinate courts and tribunals, the 2010 Constitution says in subsection 81 that: “There shall be such courts and tribunals in and for Montserrat subordinate to the Eastern Caribbean Supreme Court, and such courts and tribunals shall have such jurisdiction and powers, as may be prescribed by any law.”
The Judiciary therefore is a central arm of the three branches of Government, and can be the ultimate decider in matters of national importance, and interpretations of the Constitution of Montserrat that become contentious and would thus require oversight above that the Legislative and Executive Branches of Government.
If you recall, one of the foundations we established last week was that lawmakers do not have absolute authority in how they go about governing Montserrat.
The 2010 Constitution Order affords elected members key responsibilities. However, the public can be assured that the branches of government - the Executive, The Legislature and The Judiciary are so constituted that they all should operate independently from each other.
So let us thus look further into a breakdown of the three branches of Government and their functions:
Taking the Executive Branch, as our further look into the governance structure of Montserrat, we can say that Executive power on Montserrat lies with the government of the day. Within this, is the making of a Cabinet with the Governor or Deputy Governor sitting in Cabinet, but not having the same voting rights as elected members of Government do.
Within the Executive Branch sits the Premier of Montserrat, who is appointed by the Governor.
The Premier then has his Cabinet, made up of his elected Ministers from within the Legislative Assembly, and also two ex-officio members in the form of the Attorney General, and the Finance Secretary.
The Montserrat Constitution Order 2010 says under the heading looking at The Executive, where is speaks about “Executive authority” the Constitution says under section 31. —(1)
The executive authority of Montserrat is vested in Her Majesty.
(2) Subject to this Constitution, the executive authority of Montserrat may be exercised on behalf of Her Majesty by the Governor, either directly or through officers subordinate to him or her.
(3) Nothing in this section shall operate so as to prejudice any law in force in Montserrat whereby functions are, or may be, conferred on persons or authorities other than the Governor. “
Where the Constitution goes on to speak about Cabinet in reference to The Executive Branch, it says under the heading Cabinet in section 32.—(1) “There shall be a Cabinet in and for Montserrat which shall consist of a Premier, three other Ministers and two ex officio members, namely the Attorney-General and the Financial Secretary.”
As it relates to the governor /deputy governor’s standing within this Executive Branch of Government, the Constitution says:
(4) The Deputy Governor shall have the right to attend and take part in any meeting of the Cabinet, but shall not have the right to vote in the Cabinet
But who then holds the Executive Branch to account?
Here is where the other Branch of Government the Legislative Branch comes in.
One of the roles of Legislature in Montserrat is to hold the executive to account.
The Executive Branch within the governance structure of Montserrat is collectively responsible to the legislature for all its actions, its decisions, and its policies under the parliamentary system of government practiced on island.
a) The Legislature can exert some control over the executive through the vote of no-confidence; in that it has the power to remove the executive body by moving and seeking to have passed a vote of no-confidence. The provision therefore for such a motion to be used when necessary can, to some extent, serve to keep the Government of the day in check.
B) The provision of question time on the Order Paper is another mechanism the Legislature can use to hold the Executive to account.
Also, the Legislature can reject a budget or law that the Executive Branch would like to have passed with enough votes to block such a passage. In Montserrat’s current Legislative make-up this may be quite unlikely.
Referencing the Montserrat Constitution Order 2010, where under the section “Legislature”– under section titled “Power to make laws”, subsection 71 states that;
“Subject to this Constitution, the Legislature shall have power to make laws for the peace, order and good government of Montserrat. “
Other functions of the Legislative Branch are to also include:
Deliberating upon matters of national importance; public issues, problems and the needs of Montserrat. What this affords is that through the Legislators in the Assembly, there can be a wide cross-sectional reflection of the views of citizens of Montserrat on the varying issues; for these Legislators have been placed in their positions of power by the people who elected them to look after their interests. Thus their actions and representations in the Assembly should reflect this fact.
Custodian of National Finances also lies within the remit of Legislature.
The Legislature is the ultimate overseer of the nations finances in that the Executive Branch without the approval of The Legislature can spend no money. Thus each year the leader of the Executive Branch of Government - The Premier - has to prepare and present a budget to The Legislature for the upcoming financial year, and this has to be passed by the Legislature before any spending is allowed.
The Legislature exercises supervision over the financial administration of the Government through the Public Accounts Committee.
Now let us move on to discuss more widely this matter of the separation of powers and why it is necessary for Montserrat as a small developing island.
The separation of powers should so ensure that the judicial, legislative and executive branches operate within an atmosphere of checks and balances.
Political thinkers within the Western system of government are aware that no branch of government has the power to do everything. The independent exercising of each branch's powers is essential to successful democratic government.
In a paper entitled "The Separation of Powers and Democratic Renewal" by Mark E. Warren and Hilary Pearse from the Department of Political Science at the University of British Columbia, the authors outline clearly why the judicial process should not be interfered with.
"The judiciary should be differentiated from the legislatures for two reasons. First, because the judiciary has access, in principle, to administrative power, the judiciary must be separated from the legislature and prevented from programming itself that is; it must borrow its authority from legislatures. Second, because the judiciary is concerned with application of law rather than with the making of law, its discourse is distinct from the less bounded discourse of legislatures, which in turn preserves distinctly legal justifications of decisions, and, with this, the rule of law."
The judiciary, legislature and the executive all have their distinct functions and the argument that persists within modern democratic governments is: How does one ensure checks and balances allow no overstepping of boundaries across the various bodies?
In light of this, one can ask whether politicians should have the power, without consequence, to cross barriers and intervene in a judicial process?
Furthermore, can an officer of the court cross boundaries and solicit a member of the legislature to take responsibility for a matter that sits before the court without considering that this may be a breach of the separation of powers principle?
Within a society that bounds itself on the ideals of fairness and compliance to the separation of powers, there must be seen to be no infringement on the independence of each branch of government. The court must be seen to be operating independently.
Taking into account the overall advancement of the human condition within developing societies, the separation of powers exists to protect the electorate from those who believe they can operate without any checks, within the systems of governance.
There are protections from certain factions who may seek to excuse of justify unacceptable political or social behaviour.
As President Bill Clinton said a speech once; "Government and society work best through cooperation."
Unchecked display of power amongst Legislators, The Executive Branch and the Judiciary can serve to blur the dividing lines that are relevant for effective checks and balances.
That concludes today’s feature on the Separation of Powers within the Different Branches of Government on Montserrat.
Next week, Theo Semper will be presenting on” Role of the Opposition and the Need for an Opposition”
I am Jeevan Robinson and this has been a collaboration between the Office of the Legislature and MNI Media.