JLP style separation of powers

Robert Buddan, Contributor

On June 25, the People's National Party (PNP) members of the Senate brought a motion of censure against Minister of Justice Dorothy Lightbourne, citing assault on the "rule of law, scant respect for the administration of justice and gross dereliction of ministerial responsibility."

This concerned the extradition of Christopher Coke. The minister made her defence in the Senate on July 1. Her defence overturns the fundamental principles of judicial separation of powers upon which the Westminster system is based.

Her boss, Bruce Golding himself, had advocated a separation-of-powers model when he formed the National Democratic Movement (NDM) in 1995. By 2006, after he had rejoined the Jamaica Labour Party (JLP), he had abandoned the idea. Now, his minister has discarded that doctrine as well.

Separation of powers has two meanings. One is political. It means that the executive and legislature cannot dissolve each other and they are elected independently. This is what it means in the United States and for those countries following its pattern.

Judicial meaning

The other meaning is judicial. This refers to the independence that the judiciary enjoys from the executive. In the Westminster parliamentary system, it is sometimes also referred to as independence of powers between executive and judiciary. The idea is the same. Lawyers tend to mean this when they speak of separation of powers in the Westminster (as against American) system. It is this independence that Mrs Lightbourne does not understand.

Judicial separation of powers means that neither the executive nor the judiciary can dissolve the other. Furthermore, the roles and responsibilities of the executive and judiciary are functionally independent and separate being prescribed by law, such as the constitution and the extradition treaty. Ultimately, the rule of law counts above everything else.

What Mrs Lightbourne, has done is place executive power and prero-gative above the rule of law. She has invented a new doctrine of the rule of politics. She posits that politics may override and intrude on law. This is precisely why judicial separation of powers failed in the Coke case and, with it, so did democracy.

The minister of justice rests her entire argument on the assertion that "the decision to extradite a Jamaican citizen is a matter for the executive and not the courts. This is so, because no person can be extradited without the minister first issuing an authority to proceed and, even after the interposition of judicial proceedings, the Act gives the minister the final authority to determine whether the person should be extradited or not. It is the minister of justice, a member of the executive, who is empowered to make critical decisions under the Act."

She followed this to say, "The concept of the separation of powers has no relevance in such a scheme and, it is a profound misunderstanding of the duties placed upon the minister under the Act, to contend that issues affecting compliance with the Treaty should be referred to the Court for decision. There is no legal basis for this assertion and it is entirely without merit."

Role of the executive

This is shocking. Jamaican-born law professor David Rowe has been consulted on many occasions for his opinion on the Coke extradition. Having read Mrs Lightbourne's speech, he remarked, "It appears that the minister's grasp of the separation-of-powers doctrine is somewhat flimsy. One should not confuse political diatribe with constitutional analysis."

He felt that "the minister's speech is an extremely unfortunate one. The minister is trying to create a new jurisprudence which hitherto did not exist."

He explained: "The fact is, that once the extradition packet is presented, the commissioner of police should act as a matter of protocol and arrest the defendant named in the treaty warrant. The rights of the defendant are protected at the prima facie hearing by the magistrate and his lawyer. The minister has no standing to invoke Coke's rights."

He dismissed the speech saying, "Any excuse or combination of excuses can be used or found to violate the treaty. They should all be rejected in favour of the rule of law. The executive in the Westminster system is always bound by the rule of law."

The practitioner's view

The professor's view is supported by the practitioner's experience. On March 24, former minister of justice and attorney general, A.J. Nicholson wrote about how the extradition process ought to work. When the minister of justice signs a 'warrant to proceed', the matter is sent to a magistrate for a warrant to be issued for the subject's arrest and to the director of public prosecutions (DPP), who is the authority designated to present the issues in court. The matter remains out of the hands of the minister and does not return to his desk until the DPP sends to him a 'warrant of surrender' for his signature."

High level of secrecy

Legal officers then take over. "After the magistrate makes an order that a case has been made out that the person be committed, the DPP, or a prosecutor in his office, has to liaise with the registrar of the Supreme Court to determine whether any further proceedings have been filed on the subject's behalf, before he can submit to the minister the 'warrant of surrender'."

Operationally, the executive and justice systems are separated this way. Requests for the person to be extradited "never bear the name of the person whose telephone communication is sought to be intercepted. For common-sense reasons, the name is known only to the security forces when the document is placed before the attorney general." Mr Nicholson explained that an 'X' is placed where the name is to be affixed, so that, for example, the attorney general would not know whether the subject was his relative or his next-door neighbour. So, "the rationale is for the security forces to ensure the highest level of secrecy."

This is to avoid a situation where "an attorney-general, past or present, in signing such a request, may be influenced by any oblique consideration, including the name that may appear on the document."

Human rights view

In a newspaper article on June 6, Yvonne McCalla-Sobers takes on Golding over his flip-flopping, in general, and citing his treatment of separation of powers as one example. She said, "He was a firm believer that the judiciary should act independently of the executive. Yet, he is proposing anti-crime bills in which the executive dictates to the judiciary on matters of bail and sentencing."

She points Golding's flip-flopping on Coke's human rights, saying, "He stood up for the right to liberty of an individual charged with committing transnational crimes. Yet, he proposed anti-crime laws that would deprive individuals of the right to liberty, even when they are not charged with any crime."

In 2007, Carolyn Gomes of Jamaicans for Justice complained that the Westminster parliamentary systems in the Caribbean "concentrate astonishing power on the hands of the prime minister." This is true of prime ministers who flip-flop on executive and judicial powers for reasons of politics that predominate over the rule of law.

Robert Buddan lectures in the Department of Government, UWI, Mona. Email: Robert.Buddan@uwimona.edu.jm or columns@gleanerjm.com.