Power tends to corrupt, and absolute power corrupts absolutely! (Lord Acton, 1834-1902). This phrase aptly demonstrates the reason for the separation of powers, which is meant to prevent abuse of power in a democracy and preserve each and every citizen’s rights through the division of government responsibilities into distinct branches, averting one branch from gaining absolute power or abusing the power they are given. The intent is to avoid the concentration of power and provide for checks and balances. Though it can be traced as far back as ancient Greece, the first modern interpretation of the separation of powers was introduced by the French enlightenment writer Charles Montesquieu in De L’Esprit des Lois (The Spirit of the Laws) in 1748.
He believed that for liberty and freedom to be maintained a safeguard against centralisation of power in one person should be provided. Montesquieu wrote that a nation’s freedom depended on the three powers of governance – legislative, executive and judicial – and that these three powers must be separate and act independently to effectively promote liberty.
This principle has been widely used in the development of many democracies since that time. The question is asked though: ‘Is the separation of powers truly separate?’ This essay would be focussing on the separation of powers in Trinidad and Tobago and the question of whether there exists true separation of powers in this country. For this purpose we will also examine the differences of the Unitary and Federal State and will be using the USA as an example of a Federal State.
Trinidad and Tobago is a Unitary State governed by a democratic system. Unitary States exists in homogenous societies; there is one central government and all taxes goes back to the central government; one law making body and the laws made applies to the entire State. It is a single state. Federal states consists of a heterogeneous society, it is a combination of states and each state has the authority to make certain laws which may differ from state to state but Federal laws can override State laws; power is shared; and there is a State and Federal tax system. The USA is a Federal State. These two countries are governed under a democratic system which abides by the separation of powers and whose governmental systems both consist of an executive, judicial and legislative branch.
The legislative branch is responsible for the making and changing of laws. Trinidad and Tobago has a Bicameral Parliament, which means there are two houses, the Upper House or Senate and the Lower House or the House of Representatives. The Senate consists of 31 members: 16 government senators appointed on the advice of the Prime Minister, 6 appointed senators on the advice of the Leader of the Opposition, and 9 independent senators appointed by the President to represent other sectors of society. They are all appointed by the President. The ratio in the Senate is always fixed because that is what is allowed in the Constitution. The number of members in the House of Representatives is not a fixed ratio because it all depends on the voting process during elections, which are supposed to be free and fair and free from fear, meaning that you can choose to vote for whoever you want without any victimisation or force to do otherwise. Whoever wins the seat will be appointed a Member of Parliament, by the President, and allowed to sit in the House of Representatives. Currently the House of Representatives, in Trinidad and Tobago consists of: 27 People Partnership seats, 1 ILP seat and 13 People National Movement seats. The party who wins the majority of seats would form the Government for the next 5 years.
The United States Congress is also a bicameral legislature consisting of two houses: the House of Representatives and the Senate. Both representatives and senators are chosen through direct election. Members are affiliated to the Republican Party or to the Democratic Party and only rarely to a third-party or as independents. Congress has 535 voting members: 435 Representatives and 100 Senators. The Vice President is also the President of the Senate.The Congress debates on and approves bills concerning various matters and approves all treaties and all nominations to key foreign policy postings. The most important authority given to Congress overall is the power to declare war. But there has always been a tension between this and the president’s constitutional role as commander-in-chief of the armed forces.
According to the Constitution of Trinidad and Tobago, Ch 5 (74) and (75),
Executive authority is vested in the President and, subject to the Constitution, may be exercised by him either directly or through officers subordinate to him. Supreme command of the armed forces is also vested in the President and the exercise of this power shall be regulated by law. Under Ch 5 (80) 1, “In the exercise of his functions under the Constitution or any other law, the President shall act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet”. The Cabinet falls under the Executive arm and have the general direction and control of the government of Trinidad and Tobago, and is collectively responsible to Parliament. The Cabinet is headed by the Prime Minister who is appointed by the President.
The leader of the political party that won the majority of seats via the voting system in a general election usually becomes the next Prime Minister. The Prime Minister is responsible for the allocation of function among Government Ministries. Other members of the Cabinet include the Attorney General and other Ministers of government appointed by the Prime Minister. Apart from the Prime Minister the Attorney General is the only member of the Cabinet specifically mentioned in the constitution relating to the executive branch of government, which is why they must be present for this arm to function. The constitution also provides that in exercising his powers, the Attorney General shall not be subjected to the direction or control of any other person or authority. Also, the Prime Minister can remove any member of Cabinet or a Government Senator because they are chosen by the Prime Minister, but not a member of the House of Representatives because they were voted into office by the people. The functions of Cabinet include the initiating and deciding on policies, the supreme control of the government and the coordination of government departments. According to the Constitution Ch 5 (77) 1, where the House of Representatives passes a resolution, supported by the votes of a majority of all the members of the House, declaring that it has no confidence in the Prime Minister and the Prime Minister does not within seven days of the passing of such a resolution either resign or advise the President to dissolve Parliament, the President shall revoke the appointment of the Prime Minister from office by members of the legislature on a vote of no confidence, but this is unheard of since the members of both arms share the same political agenda.
They may also vacate office by replacement or by ceasing to be a member of the house to which they belong. Apart from being the leader of the Cabinet which has effective control of the nation’s affairs, it is most certain that by the power vested in this arm of government it is easy for intimidation to occur, contradicting the very back bone of Montesquieu’s theory on the hallmark of democracy with regards to the separation of powers, with his main argument being for liberty and freedom to be maintained the three arms of government should be separated and apart – entrusted to different people.
In a Federal State the President is the head of the executive branch of government. The Cabinet also consist of the vice president and fifteen executive departments – the Secretaries of agriculture, commerce, defence, education, energy, health and human services, homeland security, housing and urban development, interior, labour, state, transport, treasury, veterans affairs and the Attorney General. The purpose of the cabinet is to advise the president on matters relating to the duties of their respective offices. These members of cabinet are appointed by the president and must be confirmed by a majority vote of the Senate. They cannot be a member of congress or hold any other elected office. They can be dismissed at any time by the President, without the approval of Cabinet.The President is responsible for implementing and enforcing the laws written by congress. The main duties of the executive are making sure that the laws of the States are obeyed. They deliver programs and services to the population within the framework of laws, expenditures and tax measures approved by legislature.
The Judiciary is known as the third arm of government in a unitary or federal state. The Judiciary of Trinidad and Tobago is headed by the Chief Justice, and in a democratic country as this, the Judiciary is established by the Constitution to operate independently from the executive arm. They interpret and enforce the laws, and acts as a forum for the resolution of legal disputes among citizens of the State. The hierarchical order of the courts is as follows; magistrate, supreme, appeal and Privy Council which is the last and highest level located in England. The Chief Justice is appointed by the President after consultation with the Prime Minister and Leader of the Opposition. Under the constitution the judicial and legal services commission (JLSC) which is made up by the Chairman of the Public Services Commission, one person who was a Judge, two persons with legal qualifications and the Chief Justice, is charged with the tasks of appointing Justices of Appeal, High Court Judges, Masters of the High Court, Magistrates, Registrars of the Supreme Court and the Administrative Secretary to the Chief Justice, all of whom are judicial officers.
Although the law clearly protects the Judiciary from political interference, the Judiciary is economically dependent on the executive arm of government for the allocation of funds causing them to not be as independent as proposed. The Attorney General, who is the second in command in Cabinet under the Executive, is the Minister responsible for the administration of legal affairs. There were complaints made by the Chief Justice in 1999, about the Attorney General’s plans to make the Judiciary a department under his Ministry, requiring the Chief Justice and his staff to report to him on matters concerning the operation of the courts in general. A detailed report by the Attorney General to the Parliament argued that a dispute did exist concerning his role in relation to the administration of justice, and he asserted his right of control over administrative matters not pertaining to the judicial function. He saw it fit that he should superintend the administrative affairs of the Judiciary. Another issue facing the judiciary is the national awards. The Chief Justice heads the committee which receives recommendations of citizens deserving of the award, this is then passed to the Prime Minister who has the power to insert and delete nominees.
This has caused major concern in the real independence of the Judiciary as it pertains to the separation of powers between the executive and the judiciary and some may see this as being politically motivated. In the past an inquiry into the interference by the other arms of government in the Judiciary was investigated by one of the Lords at the Privy Council. His findings gave no comfort to the allegations made, instead he noted that the real issue was the lack of co-operation by the Executive and the Judiciary arm of government and stressed that they should work together for the good of the country.
In a federal judicial system such as the USA more than 600 judges sit on
district courts, almost 200 judges sit on courts of appeals, and 9 justices make up the Supreme Court. Federal judges have life terms, therefore, no single president will make all of these appointments.The Supreme Court is the highest court and consists of the Chief Justice and 8 other associates. The Constitution provides broad parameters for the judicial nomination process giving the responsibility for nominating federal judges and justices to the President, who relies on many sources to recommend appropriate nominees for judicial posts.Recommendations are received from the Department of Justice, the Federal Bureau of Investigation, members of Congress, sitting judges and justices, and the American Bar Association. Some judicial hopefuls even nominate themselves. Nominations are also required to be confirmed by the Senate. A special, very powerful tradition for recommending district judges is called senatorial courtesy. This practice allows senators from the state in which there is a vacancy, and who is also of the same political party as the President, to send a nomination to the President, who almost always follows the recommendation.
To ignore it would be a great affront to the senator, as well as an invitation for conflict between the President and the Senate. The Constitution guarantees that judges would be protected by any reduction in salaries and removal from office. This concept is the backbone of the judicial independence which was establish by Brittan. The judiciary arm of government in a federal state may serve different purposes. Their functions can range from judicial to non-judicial with its main function being the administration of laws, interpretation of laws, guardianship of the constitution, advisory jurisdiction, protector of the fundamental rights and supervisory to smaller courts. Whilst stressing on the independence of the judiciary in the separation of powers external threats arise from the powers that the Constitution leaves to congress and the president to control the judiciary’s resources.
In both the Unitary State which is Trinidad and Tobago and the Federal State which is the USA there exist a system in place for the separation of powers but in Trinidad and Tobago there is an overlapping in the system. The Parliament and the Cabinet has some of the same people, for example the Prime Minister, Attorney General and Government Ministers form the Cabinet but they are also members of the Parliament. This means that there is no true separation of powers between the Parliament and the Executive because according to Montesquieu to ensure that liberty and freedom is maintained the three arms of government should be entrusted to different people and this has not happened with these two branches. The only one that remains totally separate is the Judiciary. In an article from the Guardian Newspaper, Tony Fraser wrote on the Separation of Powers, he said: “Having an operational separation of powers is important to achieve democratic and quality governance. It is absolutely dangerous for the Government/Cabinet and the Prime Minister to have full control of the passage of legislation, to be in a position to implement policies and programmes, the vast majority of which have a base in the laws passed, and to then have control of the judiciary whose responsibility is to interpret the laws.
Imagine the power of a prime minister as CEO who could pass legislation which does not require a special majority, have a majority to alter the Constitution to take away the right to free expression, have total control of all major appointments to state office — including the President of the Republic and the Chief Justice, the Commissioner of Police, the operations of the Elections and Boundaries Commission, the Service Commissions — and appoint independent senators and on and on. Imagine, too, a Prime Minister having full control of the operations of the judiciary so that judges and magistrates would have to make judgements based on the desires of the CEO. Effectively, this would mean that the PM could determine who among the political opponents of the Government should “make a jail” and who among the supporters of the ruling party could engage in corrupt activity “la blash,” free sheet without fear of prosecution. If the doctrine of the separation of powers does not function effectively, the Prime Minister would have total legislative power and power too over the judiciary, and all of this in addition to being in total control of the establishment and functioning of the Cabinet including, for instance, deciding which minister should be fired, who should be protected, and what policies and programmes are to be implemented without a continuing check on the power.” This article clearly illustrates the importance of the separation of powers, and the corruption that could ensue without it. In Trinidad and Tobago the separation of powers does not truly exist because too much power is centralised in one person – the Prime
In a federal state there is true separation of powers because each branch is entrusted to different people. The only exception is that the Vice President is also the President of the Senate, which can lead to abuse of power, such as in the case of Senators who gives recommendations to the President, forcing the President to choose the person they recommended or face conflict in the Senate.
Lord Acton could not have said it any better, power truly corrupts but he also said that “Great men are almost always bad men.” If no one else believed what his words conveyed then a need for the separation of powers would never have been realised. Checks and balances are not just needed for Government officials but also in everyone else’s daily lives. Businesses has managers, supervisors and labourers and they all have different degrees of power which helps to keep staff in check and ensure that everything is running efficiently, if they all had the same status then there would not be an incentive to keep others in check and chaos would reign supreme. There must always be a mechanism to help maintain order/good governance and even though it may not be a perfect system, some abusers of the laws have been brought to justice, more so in the federal system. We do, however, look forward to the day that it works efficiently in a Unitary State.
Constitution of the Republic of Trinidad and Tobago, Act 4 of 1976. http://www.ag.gov.tt/Portals/0/Documents/TT%20Constitution.pdf Constitution of the Republic of Trinidad and Tobago. Retrieved from http://rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/1.01.pdf Encyclopædia Britannica Contributors, Gaurav Shukla, Grace Young, Separation of Powers, The Editors Encyclopaedia Britannica. Retrieved from http://www.britannica.com/topic/473411/contributors http://www.worldatlas.com/webimage/countrys/europe/az.htm
Martin Kelly, Separation of Powers, About.com American History
http://americanhistory.about.com/od/usconstitution/g/sep_of_powers.htm NCSL, Separation of Powers – an Overview. Retrieved from http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx Parliament of Trinidad and Tobago. Retrieved from http://www.ttparliament.org/members.php?mid=25 The Phase Finder: Retrieved from http://www.phrases.org.uk/meanings/absolute-power-corrupts-absolutely.html Tony Fraser, Separation of Powers, Guardian Newspaper Article. Retrieved from https://guardian.co.tt/columnist/2012-12-19/separation-powers Wikipedia: The United States Congress, http://en.wikipedia.org/wiki/United_States_Congress