WORKSHOP G - SEPARATION OF POWERS
being sovereign. He elaborated on how a dispute of transgression of power between two organs could be resolved, sometimes at the level of Head of State and other times through the courts. He summed up with reference to the Swiss system where provisions exist for both initiative and referendum to decide specific issues by popular vote. In conclusion he referred to the role of the press in upholding the tenets of democracy.
accountability by an independent and vibrant media which is responsible, objective and impartial should also be encouraged.
In conclusion he stated that the three branches should recognize the role that civil society plays in the implementation of Commonwealth’s fundamental values and should strive for a constructive relationship with civil society.
He was heartened to note that Commonwealth Heads of Government have acknowledged the critical importance of a proper working relationship between the three branches. It is for Parliaments, Judiciaries and the Executive to guard these principles jealously whilst at the same time recognizing the need for appropriate interaction between them.
From the floor
Hon. Wade Mark, MP, Trinidad and Tobago, suggested that the principle of the doctrine should also be analyzed alongside the distinction between developed and developing states.
This is because some developed countries have a situation where Parliament is supreme with an unwritten constitution, while others
have a written constitution that is supreme. Because of these differences the operationalization of the doctrine and the independence of the Legislature from the Executive is problematic. In countries where the Legislature’s budget is controlled by the Executive and where the Legislature cannot appoint its own support staff, challenges with the doctrine are likely to be more profound. He concluded that there could be no accountability and transparency if the Legislature is not financially and administratively independent.
Dr Charanjit Singh Atwal, MLA, Punjab, India, argued that democratic institutions should be able to adapt, reflect and satisfy the aspirations of the people. He referred to the writers of India’s constitution who had the foresight to conceive the principles which should be fundamental in the governance of the country and in the interests of its citizenship. Its preamble expresses the solemn resolve of constituting India into a Democratic Republic. Contrasting various systems used for instance in the United Kingdom and in the United States, he concluded that there was no question of any organ of the state
Mr Simon Thomas, AM, Wales, made two points related to the doctrine. The first was that many Legislatures have a quasi-federal model where Parliaments legislate for their own jurisdictions but these can be subject to the sanction of the national Parliament. Recently they passed a Bill but it was taken to the Supreme Court, undermining its independence and legislative authority. The second point related to the importance of independent advice and the ability of a Legislature to appoint its own support staff. This was very serious matter that required the necessary consideration as it directly impacted on the independence of the Legislature.
Mr Chandreshwar Singh, MLA, Jharkhand, explained that the doctrine is the idea that a government functions best when its powers are not concentrated in a single authority but divided among different groups. Relating the theoretical foundations, he stated that even when the different powers act within the ambit of their own power, overlapping functions tend to appear among these organs. He reiterated that the accumulation of all powers, Legislative, Executive and Judiciary, in the same hands could embody the very definition of tyranny. He concluded that “power corrupts and absolute power tends to corrupt absolutely”. Listing relevant cases testing the doctrine in India and lessons that could be gained from it, he stated that constitutional provisions to support a parliamentary form of government cannot be rigorously followed. Constitutionalism, the philosophical concept of the
constitution, also insists on limitation being placed upon governmental power to secure basic freedoms of the individual. Hence, the conclusion is that there is no strict separation of powers but the functions of the different branches of the government have been sufficiently differentiated. Rt Hon. Rebecca Kadaga, MP, Uganda, shared with the workshop that there is a major challenge in her country regarding the position of the Attorney General. While the latter advises the Executive on the one hand, on the other they are also expected to defend the Legislature, not only creating a conflict of interest but also compromising the independence of the Judiciary. This is also in contradiction to the professional service that should be expected from this office if the doctrine of the separation of powers is to be fully operationalized.
Recommendations from the Workshop
Recommendation One: “The concepts of the separation of powers and good governance must take into account the need for rapid political, social and economical development.”
Recommendation Two: “Parliamentarians must be able to operate independently of the executive through scrutiny mechanisms that are invested with significant powers and provided with adequate resources.” Recommendation Three: “Commonwealth Parliaments should ensure the promotion of awareness of the Latimer House Principles and enact legislation to preserve Judicial Independence and Judicial Accountability.”
Recommendation Four: “Radical constitutional reform is necessary to ensure the successful existence of the doctrine of the separation of powers and by extension, continued good governance.”
The Workshop concluded with the endorsement of the four recommendations.
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