Separation of Powers and Judicial Review Question.

(a) (i) State TWO functions of the judiciary. [4 marks]

Two functions of the judiciary is to interpret and apply laws to then distribute appropriate remedies to
settle disputes and protect the rights of citizens as the judiciary is entitled to safeguard the rights of
citizens in case their rights are threatened or violated.

(ii) State TWO functions of the legislature. [4 marks]

Two functions of the legislature is to create laws to ensure that the Constitution is upheld at all times
and to amend or change the Constitution to suit modern times if the law may seem unfair.
(b) With reference to ONE decided case, explain TWO principles of the doctrine of 'separation
of powers'. [6 marks]
The doctrine of ‘separation of powers’ refers to the separation of government responsibilities into
distinct branches to ensure each branch does not take on the functions of another. These branches are
broken down into three branches such as the legislature which is responsible for enacting laws, the
executive which is responsible for administering laws created by the legislative branch and the
judiciary which is responsible for interpreting the laws. With reference to the case of John Benjamin v
Minister of Information (1998) it is stated by J Saunders that a certain comity should exist between
the three branches and that each should respect the role of the other. He also states that the executive
should respect and obey the decisions and accept the imitations of the court and that if this comity
does not exist then democracy will turn into something dangerous. His remark helps to establish the
value of the doctrine that states that two principles are to ensure the branches are divided into
separate branches to ensure the individual functions of each and the need for cooperation between the
branches of government.

(c) The Parliament of the State of Plantaria passes the New Court Act. Section 5 of the Act
provides for the appointment of the Speaker of the House of Assembly as a High Court Judge
during his tenure as Speaker. The Leader of the Opposition wishes to challenge the
constitutionality of Section 5 of the Act in the High Court.

Using ONE decided case to support your answer, advise the Leader of the Opposition on
whether or not:
(i) he has locus standi
(ii) Section 5 of the Act is unconstitutional. [15 marks]
The Leader of the Opposition has locus standi as he has a legal right to bring this issue to court due to
the unconstitutionality of Section 5 of the Act in the High Court. To give a more in-depth explanation,
judges could have taken a liberal approach as he had an interest in the matter. With reference to the
case of Payne v AG of St Kitts (1982), Nevis came into effect in 1983. Every Bill's words of
enactment "must be" that the Queen enacted it by and with the advice and approval of the House of
Assembly of "St. Christopher, Nevis, and Anguilla," according to the St. Kitts Statutes Act of 1967.
Payne argued that the Bills' title, which stated that they were approved in "Saint Christopher and
Nevis," was incorrect since it omitted the term "Anguilla" from the State's official name. The
government opposed to Mr. Payne's application on the grounds that he lacked the authority to file it.
According to the court, there are numerous sorts of issues that can lead to a finding by the court that a
party has locus standi and can therefore commence an action in relation to those issues. It was held
that although Mr Payne's 'relevant interest' in bringing the matter was acknowledged by the Court, his
action failed on the issue. The Court of Appeal of the Eastern Caribbean Supreme Court agreed with
the High Court judge and held that 'Saint Christopher and Nevis' was the proper name of the State,
and the Bills were therefore correctly headed.
As the Speaker of the House of Assembly is part of the legislative branch and a High Court judge is
part of the judicial branch, the passing of the New Court Act goes against the prime principles of the
separation of powers doctrine as the main reason for the doctrine is to ensure the branches of
Government stay in their respective areas. Section 5 of the Act is unconstitutional as it goes against
the separation of powers doctrine, with the case of Hinds v R (1774), in allowing the appeal , the
Privy Council termined that the provisions of the Gun Court Act regarding the Circuit Court Division
and the Resident Magistrate's Division, which did nothing more than extend the jurisdiction of a
Supreme Court judge in a circuit court and a resident magistrate, were in fact valid and did not violate
the Constitution. The appellants were thus convicted and found guilty by a court with proper
jurisdiction. The Privy Council argued that the Jamaican Constitution strongly emphasised the
separation of powers doctrine and that Parliament lacked the authority to transfer that authority from
the judiciary to the new Review Board, where the majority of the members were not allowed to take
on judicial roles. This case gives evidence and reasoning as to why the section 5 Act is unconst as the
doctrine was created to separate the branches of government from intertwining with others.