The Separation of Powers

• Pages: 17-23

CHAPTER 4

In his L’Esprit de Lois, Montesquieu expressed the view that liberty cannot exist when

there is a merger between the executive and the legislature. He also quite appropriately

maintained that liberty would be impossible if there was no division between the judicial

arm on the one hand and the executive and legislative arms on the other.1

According to Lawson and Bentley,2this doctrine had a decisive influence upon those

who framed the American Constitution and particularly on those who devised the

Massachusetts Constitution and who made the famous declaration:

In the Government of this Commonwealth the legislative department shall never exercise

the executive and judicial powers or either of them; the executive shall never exercise the

legislative and judicial powers or either of them; the judicial shall never exercise the

executive and legislative powers or either of them.

But clear-cut as this statement may be, it is not a principle which has ever conformed with

the facts of constitutional realities, as will be illustrated later. Britain has always witnessed

some overlap between the three branches: the most glaring example being the way the

House of Lords operates as the second chamber of the legislature and as the final Court of

Appeal. Government ministers sit and vote with the Law Lords and the Lord Chancellor

(who presides) is a member of the Cabinet, a legislator and a judge.

What is more, when the history of British colonial policy is examined one finds that,

at the time Montesquieu was making his statement in the 17th century (and even beyond

that time), such a separation was completely absent in countries abroad over which

Britain claimed suzerainty or developed settlements. Thus, Chief Justice William Hey (the

then Canadian Chief Justice), who was entrusted in 1773 with preparing the Quebec Act,

was at the same time also the Member of Parliament for Kent at Westminster. While the

Lord Chancellor of England avidly sought his advice, the then Governor of Canada did

the same in so far as Government policy was concerned. The record shows that all the Chief

Justices of Canada at the time were legislators, administrators and judicial officers rolled

into one. It should also be recorded that, at the same time, governors in the rest of the

then British Empire presided over the legislature and over courts of justice while

administering the countries where they held commissions.

THE PROPER BASIS FOR THE SEPARATION CONCEPT

In his treatise on Caribbean Public Law, Professor Albert Fiadjoe goes to the root of the

matter when he propounds that government activities cannot be compartmentalised. He

writes:3

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THE SEPARATION OF POWERS

1 Montesquieu, 1989, Book XI, Chapter VI.

2 See Lawson and Bentley, 1961, Chapter 9, p 70.

3 See Fiadjoe, 1999, p 161.