LECTURE 5 : SEPARATION OF POWERS PT 2

THINGS MENTIONED IN HINDS :

- The supreme court division should be the only one dealing with serious crimes

- Substantial civil matters should only be heard by supreme court judges

- The supervision of inferior tribunals is a function of a superior court judge [you cannot

review this without generating a separation of powers problem]

- The supreme court had jurisdiction to hear constitutional matters.

SURATT V AG
A tribunal was created to deal with discrimination and equal opportunity. It was created by
ordinary legislation and was to be led by a judicial officer.

The tribunal dealt with discrimination cases [the powers covered on wider grounds than the
Constitution]

Was this tribunal in violation of the separation of powers doctrine?

BARONESS HALE’S EXPLANATION [it was not unconstitutional]

- Complainant has chose the tribunal rather than the court

- Tribunal can refer questions to the High Court on request of Respondent

- Not removing jurisdiction except with consent of parties

- Jurisdiction extend beyond the Constitution

- Jurisdiction in Bill of Rights matters is not exclusive High Court/Supreme Court

jurisdiction constitutions presume there are other remedies.

INTRA BRANCH SEPARATION OF POWERS

- Only judges can sentence
- Ad hominem rule

ZUNIGA : GENERAL PRINCIPLES RELATING TO SEPARATION OF POWERS

It may be said that in the post-independence Anglophone Caribbean the doctrine of separation of

powers derives its force from the fact that the fundamental law upon which the legal order rest

[the Constitution dispersed the power of sovereign state among various branches, insulates the

judicial branch from interference by the political branches and enshrines the paramount principle

of constitutional supremacy ]
ZUNIGA : NO INTERFERENCE WITH THE DECISIONAL AUTHORITY OR INDEPENDENCE OF
JUDICIARY
To offend the doctrine it must be shown that the legislature is undermining the decisional

authority or independence of the judicial branch by compromising judicial discretion. The court’s

ability to address legal principles in a pending case [its adjudicative process, must be

negatively impacted so that it can truly be said that the legislature, in order to guarantee a

particular outcome, is prescribing or directing or constraining the court in its application or

interpretation of those principles]

SENTENCING

It is shared by all three organs but in very different ways :

- Judges must decide in an individual case

- Parliament decisive what should be criminalized and punished : can limit judges through

mandatory sentences but can't then give executive the role ; can prescribe individual

sentences

- Executive carries punishment out : cannot decide a sentence in an individual case; a

variable punishment subject to judicial control is fine.

[Hinds, Mollison, Zuniga]

R v MOLLISON : only judges can sentence ; A case of judicial review of legislation that
almost failed.

- What LAW was being reviewed?

● The Juveniles Act 1951 [before Independence in Jamaica]

- What did the Act say?

● A juvenile convicted of murder should not suffer death but should be held at the
pleasure of the Governor General

- How did this case come to court?

● 17 year old Kurt Mollison was convicted of murder and pursant to the Juvenile Act
was sentenced to be held at the pleasure of the Governor General.

- What did Mollison want?

● Judicial Review of the law, Juveniles Act

- What did Mollison’s lawyer argue?

● That this sentence violated his right to personal liberty
● That this sentence violated the separation of powers doctrine?

AD HOMINEM RULE
 - The appellants were attempted coup leaders in British Ceylon [ Sri Lanka]

- Subsequent to their activities, Parliament enacted the Criminal Law Act that :

● Modified elements of the offence, the mode of trial and the rules of evidence

applicable to it

❏ Deprived them retrospectively of their right to trial by jury providing for

their trial by three judges appointed by the Minister

● Impose a minimum sentence of ten years

● Legalized their detention ex post facto for 60 days

● Prescribed a heavy minimum sentence for those convicted

● Provided for forfeiture of their property

HELD :

- Parliament was usurping the functions of the judiciary to sentence in specific cases and

had enacted a law aimed at these men

- The law created new offences ‘tailored to meet the circumstances of these acts and were

made to lapse after the trial.

- Their aim was to ensure that the judges in detailing with these particular persons on

these particular charges were deprived of their normal discretion with respect to

sentences.

- ‘Case at an entirely different point in the spectrum’ Saunders J in Zuniga

ZUNIGA : raised the issue of ad hominem legislation

- The Government of Belize has had a series of continuing disputes with members of both the

Zuniga and the BCB Holdings group. These disputes relate back to an : Accommodation

Agreement [entered into in 2005 between Belize Telemedia Limited and the former

Government]

- Under the agreement the then Government granted certain finicalia concessions, assurances

and inducements to Telemedia.

- Upon assuming office in 2008, the present Prime Minister disavowed the Accommodation

Agreement. He flatly stated that his Government would not be bound by its terms.

- The Prime Minister consistently cast matters in terms of a battle between his government

and Lord Michael Ashcroft, member of the Zuniga group.

- Government passed legislation amending the Supreme Court of Judicature Act :

● Included strengthening provisions related to contempt of court

 ● Mandatory minimum sentences for anyone found guilty of knowingly breaching an

injunction.

- One big question was whether the law targeted Zuniga etc. [NO]

- Esp [38], [40], [41], [43]

ZUNIGA : Judiciary must have the ability, independence and freedom to interpret and apply the

law

- The constitution having conferred particular functions on the judicial branch,

constitutional supremacy requires that, among other things, in the exercise of these

functions,the judiciary is not undermined by action taken by another branch of the State.

Specifically in the context of the point being discussed here, the judiciary must possess

the ability, independence and freedom to interpret and apply substantive legal principles

so as to guarantee to litigants in a particular case a just outcome that itself is

protected from executive and legislative interference. Application of the separation of

powers doctrine upholds the Constitution, advances the rule of law and promotes the

description of Belize as a sovereign democractic State.

ZUNIGA : Parliament cannot interfere with the judicial process by prescribing or directing the
outcome in specific and pending proceedings.
- Parliament may not interfere with the judicial process itself in the sense of compromising

judicial discretion by prescribing or directing the outcome in specific and pending

proceedings.

ZUNIGA : the law does not direct the court on how to deal with the case

- There is absolutely no doubt that the legislation here is not ad hominem in relation to

any precise proceedings. Although it might be correct to characterize the Act as having

been passed with the appellants and the interest parties in mind, it is not expressed to

apply to specific individuals or to be applicable to any pending criminal or other

proceedings. It is expressed in terms of general application.

FERGUSON : the section 34 case

 - Ferguson was suspected of and charged with acts of corruption in the building of the

Piarco Airport.

- Section 34 allowed individuals who were charged with particular offences to have the cases

dismissed if the trial did not start after ten years after the charges were laid.

- The section required the accused to apply to the High Court to have the matter dismissed

and more than 40 applicants petitioned the Court.

- Ferguson petitioned to have his case dismissed.

- There was an uproar before the applications were considered by the High Courts and the

Parliament repealed the section of law.

Liyanage case was distinguished.

The legislation considered in Liyanage would have been valid if its operation had been wholly

prospective .

It was invalid because :

- It influenced or determined how inherently judicial functions would be exercised, notably

in the matter of the admission of evidence and the minimum sentence

- It was retrospective in the sense that it applied to current judicial proceedings

- The sunset clause and the fact that the legislation dealt with specific issues in the

criminal proceedings against the plotters of the coup

The law in Ferguson covered a very large number of persons and cases.

‘The motives of Parliamentarians are irrelevant. They are also inconclusive because statements by

individual Parliamentarians in the course of debates are not evidence even of the subjective

thoughts of the whole body’

HELD :

The board concludes that the Amending Act did not violate the principle of the separation of

powers.

WHAT THE DOCTRINE MEANS IN RELATION TO LEGISLATIVE POWER ?

 - Parliament has the right to control its internal proceedings [Bahamas Methodist v

Symonette]

- Parliament must retain effective control of legislative power including taxation

❏ Parliament delegates powers intrinsic to it must retain effective control

[Astaphan v Comptroller of Customs]

❏ Parliament cannot abdicate wholly its power to determine taxation [BCB Holdings]

- Parliament maintains a meaningful power of oversight of the executive budget approval

FIRST PARAGRAPH
 - Existing law [subject to the general savings law clause]

- DPP v Mollison

- Nervais ; McEwan

SECOND PARAGRAPH

- Concept [must be explained] : Entrenchment

- Case : IJCHR

- Procedure for change in the constitution [entrenchment provisions]

- Section 110 : gives the right to appeal to the JCPC

- Barguy requires a two-thirds majority to amend section 110

- There is a declaration in Barguy ; there is none in Jamaica