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When judiciary’s jurisdiction is breached

The Separation of Powers—Part 2
Monday, July 29, 2013
Law Made Simple

The previous article in this series examined the principle of separation of powers and its application to the constitutional structure of this country. This article focuses on specific instances where there have been apparent breaches of the principle. The defining feature of separation of powers is that the executive, legislature and judiciary—which are the key institutions of the State—exercise aspects of the State’s overall power to make and administer laws.



The Constitution of Trinidad and Tobago is closely aligned with this principle as it creates the office of the President, who is head of the executive; sets out powers of the executive; and establishes the Parliament and the judiciary and outlines their respective powers. However, there are some instances which, on their face, breach the principle of separation of powers. Some examples are:



Mandatory sentences:
It is the judiciary that holds the power to sentence offenders for breaches of laws. A law which requires the courts to impose only one sentence on an offender infringes the principle by effectively removing the judiciary’s power of sentencing.



Detention at the President’s pleasure:
In the recent past, minors and mentally-ill people convicted of murder could only be sentenced to detention “at the President’s pleasure.” This law was recently declared unconstitutional as it infringed the judiciary’s power of sentencing. Such offenders are now to be detained “at the court’s pleasure,” with their cases periodically reviewed by the court.



Refusal of bail upon arrest:
The discretion to grant bail is part of the judiciary’s powers. Therefore, laws which prohibit judges and magistrates from granting bail infringe the doctrine of separation of powers by usurping the judiciary’s power.



Transferring the jurisdiction of the judiciary to another body:
In other countries, the executive has attempted to create new courts and transferred the jurisdiction over those courts to individuals who were not appointed in the same manner and under the same terms and conditions of members of the judiciary. This infringes the doctrine as the transfer of powers erodes the jurisdiction of the judiciary and places it in the hands of individuals who may be appointed by the executive.


Despite the above, certain areas of overlap in the powers of the various institutions of the State may be necessary for the proper and efficient functioning of the State. As such, the President is permitted to exercise the prerogative of mercy, which is a sentencing power. 



Government ministers can in certain cases make regulations which have the effect of law, which would be exercising legislative powers. And the Government may think it necessary in certain cases that people accused of certain offences should be denied bail for national security reasons. 


In these instances, the Constitution requires that a proposed law which may breach the principle must be passed with a two-thirds majority of Parliament. Once this majority has been obtained, these laws are saved from being declared unconstitutional and in breach of the principle of separation of powers.


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