THE DOCTRINE OF THE SEPARATION OF POWERS AND THE 1993 CONSTITUTION -BY ANTHONY FRANCIS T. FERNANDO, ATTORNEY-GENERAL |03 May 2008
Montesquieu in his work L’Esprit des Lois (The Spirit of Laws) stated that a fusion of power in one person or body leads to political absolutism, and in order to secure the liberty of the individual the three kinds of powers should serve as checks on each other. This came to be known as the Doctrine of the Separation of Powers. Montesquieu’s idea has found expression even in the works of Aristotle (Jowett’s translation of Politics, IV, 14), Bodin (Republic – 1576) and John Locke (Civil government – 1690).
Montesquieu’s main concern was not to make a close analysis of the nature of governmental functions, but rather to show that liberty cannot exist with a monopoly of power. Montesquieu wrote during the despotic government of Louis XIV in France which he contrasted with the 1688 Bill of Rights in England, which had settled the legislative supremacy of Parliament, and the 1701 Act of Settlement, which had established the independence of the judiciary by removing the judges from the King’s control and the servants of the Crown from the Parliament. According to James Madison, the accumulation of all powers in the same hands is the very definition of tyranny (The Federalist, XLVII).
Montesquieu did not mean to suggest that these departments ought to have no partial agency in, or no control over, the acts of the other. His view was that where the whole power of one department is exercised by the same hands that possess the whole power in another department, the fundamental principles of free constitution are subverted. He certainly did not mean that there should be a rigid separation of powers and functions.
Such a separation is neither practical nor desirable. It is of no practical use as a strict doctrine under which the powers and functions of government can be precisely defined and demarcated. A rigid separation would impede quick and efficient governmental action.
Under the American Constitution the executive power is vested in the President, the legislative power in the Congress and the judicial power in the Supreme Court. As stated in the case of United States vs Nixon (1974) US 683, 703-05 the separation of powers in the US did not make each branch autonomous but rather dependant on the others. Unlike the British Prime Minister in the House of Commons, the US President is not the leader of the Congress. He cannot hold over Congress the threat of dissolution as the British Prime Minister can with the House of Commons. He does not participate directly in the process of legislation.
However the President has the power of veto over all legislation. There is, in fact, a considerable presidential leadership in legislation. Congress acts as a check on some of the President’s executive powers. Appointments of ambassadors and judges of the Supreme Court require the consent of the Senate. The President can exercise the treaty-making power only with the concurrence of two-thirds of the members of the Senate. He may be impeached by Congress for grave crimes and misdemeanours.
Separation of powers under the 1993 Constitution:-
While the Constitution does not expressly provide for a separation of powers, the doctrine has been incorporated into the Constitution, as in the Constitution of the USA, by providing that “the legislative power of Seychelles is vested in the National Assembly…(article 85 of the 1993 Constitution – similar to article I section I of the US Constitution)”; “the executive authority of the Republic shall vest in the President…(article 66 of the 1993 Constitution – similar to article II section I of the US Constitution)”; and “the judicial power of Seychelles shall be vested in the judiciary…(article 119 of the 1993 Constitution – similar to article III section I of the US Constitution)”.
Under the Indian Constitution only executive power is vested in the President while provisions are simply made for a Parliament and judiciary without expressly vesting the legislative and judicial powers in any person or body. India has the same system of parliamentary executive as in England and the Council of Ministers, consisting as it does of the members of legislature, is like the British cabinet. A division of the three main functions of government has been recognised in the 1993 Constitution. Chapters IV and V deal essentially with the executive; Chapter VI essentially with the legislature and Chapter VIII essentially with the judiciary. Although the exercise of the powers of the executive, legislature and judiciary has been vested in different organs of government there is no rigid separation of powers and functions in the Constitution.
The President is the Head of State, Head of Government and Commander-in Chief of the Defence forces of Seychelles [articles 50, 162(2)].The executive authority of the Republic is vested in the President as stated earlier. However the National Assembly has the authority to confer executive functions on any other person or authority [article 66(4)]. The President is elected by the people and holds office for a fixed term of five years (article 52).This was designed by the framers of the Constitution to provide a strong and stable executive, seated in power for a fixed number of years, in order to implement a policy of economic development without being influenced by vagaries of political forces in the National Assembly.
There is, however, a likelihood of conflict between the President and the majority in the National Assembly when they belong to rival political parties. Such conflict could be minimised only if there is between them some form of accommodation or “cohabitation” as it has been called under the somewhat similar system of government of the French Fifth Republic. The powers and functions of the President are set out in articles 41, 42(2), 60, 62, 64, 65, 66, 69, 70, 76, 87, 90, 92, 94(3), 107, 109, 110, 115(1), 116(4)-(5), 123, 124, 127, 128, 131(2), 131(4), 134(3)-(4), 140(2)-(4), 142(2), 143(1), 144(2), 148(1)-(4), 150, 158(1), 160(1), 162(2), 165(4)-(5) and 166(2)&(4) of the Constitution.
The legislative power of Seychelles is vested in the National Assembly as stated earlier. This power is exercised by bills passed by the National Assembly (article 86). The National Assembly may by an Act confer power on a person or authority to make subsidiary legislation (article 89). Article 136(1) of the Constitution has conferred power on the president of the Court of Appeal to make rules for the Court of Appeal and articles 46(10) and 136(2) on the chief justice to make rules for the Supreme Court. The principle of the separation of powers cannot be said to be infringed by this. The delegated power should not act outside the scope of the power granted by the Constitution or the National Assembly. The powers and functions of the National Assembly are set out in articles 101, 102, 104 and 111 of the Constitution.
The judicial power of Seychelles is vested in the judiciary as stated earlier. According to article 119(2) the judiciary shall be independent and is subject only to the Constitution and the other laws of Seychelles. The powers and functions of the Court of Appeal, the Supreme Court and the Constitutional Court are set out in articles 46, 119, 120, 125, 129, 130 and 136.
The role of the executive in the legislature:-
The President may at any time attend and address the National Assembly. A message of the President shall be read at the first convenient sitting of the Assembly after it is received by the speaker (article 92). The President shall at the beginning of each year and before a dissolution pursuant to article 106(2) (a) or (b) deliver to the Assembly a message on the state of the nation. The Vice-President or a minister may attend meetings of the Assembly for the purpose of presenting a Bill and in connection with proceedings relating to the passing of a Bill and for the purpose of explaining any matter to the Assembly (articles 93, 94). As a result they are subject to questions and other methods of control exercised by the National Assembly.
It is the President who by Proclamation summons the first meeting of the National Assembly in a session after the end of the immediately preceding session (article 107). He is also empowered to summon a meeting of the National Assembly at any time (article 109). A Bill passed by the National Assembly becomes law only upon its assent by the President and publication in the Gazette. The President is obligated under article 116(4) to cause to be laid before the National Assembly the draft of an order by the President for giving effect to the recommendations contained in the report relating to changes in the number or boundaries of the electoral areas referred to in the report of the electoral commissioner.
The Role of the executive in the judiciary:-
It is the President who appoints the president of the Court of Appeal and the justices of appeal [articles 123 and 134(4)]; acting president of the Court of Appeal and the acting justices of appeal (article 124); judges and masters of the Supreme Court (article 127) and acting chief justice and acting judges of the Supreme Court (128) from candidates proposed by the Constitutional Appointments Authority. A justice of appeal or judge may resign by writing to the President and the Constitutional Appointments Authority [article 131(1) (c)].
Check on the executive by the legislature:-
A Declaration of a state of emergency by the President [article 41(1)] may continue beyond the seven- day period only if approved by a resolution passed by not less than two-thirds of the number of members of the National Assembly. The National Assembly has the power not to continue with a state of emergency or revoke it [article 41(2) (4), (5)]. A person detained under emergency law has a right to have his detention reviewed by an independent and impartial tribunal [article 43(4) (c)]. Thus there is a check on the President’s power during a time of emergency by the legislature and the judiciary.
In the Sri Lankan case of Yasapala v Wickramasinghe, Fundamental Rights Decisions, Vol I, 143 it was held that: “The existence of a state of emergency is not a justiciable matter which the court could be called upon to determine by applying an objective test. The President’s belief in the necessity or expediency of an emergency regulation is conclusive of its validity and he is not bound as a matter of law to disclose the reasons for the Proclamation.” In Te Cheng Poh V Public Prosecutor, Malaysia (1980) A.C. 458 it was held that the failure to revoke a proclamation by the Malaysian Head of State, after he no longer considers it to be necessary, would be an abuse of his discretion.
It is only with the approval of a majority of members of the National Assembly that the President may appoint a person as Ambassador, High Commissioner or any other principal representative of Seychelles to represent Seychelles abroad [article 64(1)]. A treaty, agreement or convention in respect of international relations entered into by the President shall bind the Republic only if approved by a majority of members of the National Assembly by an Act or Resolution [article 64(4)].
The President has to obtain the approval of a majority of members of the National Assembly before appointing a person as minister and designated minister [article 69(2) and 75(2)] and in certain instances the vice-president [article 66A (10)].
The vice-president, the designated minister or a minister may be removed by a resolution approved by the votes of not less than two-thirds of the number of members of the National Assembly[article 73(2),74(1),66A(9)].
Government (executive) cannot withdraw any moneys from the Consolidated Fund (fund to which all revenues or other moneys raised or received for the purposes or on behalf of the Republic are paid) unless it has the approval of the National Assembly by passing the Appropriation Act. This is the biggest control the legislature has over the executive. The legislature controls the government’s purse.
The National Assembly may move for the removal of the President for mental or physical incapacity or violation of the Constitution or gross misconduct on a motion signed by not less than half of the members of the National Assembly and by a vote of not less than two-thirds of the members without the necessity of a debate. When the copy of a motion for removal is delivered to the chief justice, he shall, where the allegation is one of incapacity, appoint a medical board to inquire into the matter and where the allegation is for violation of the Constitution or gross misconduct, he shall refer the matter to the Constitutional Court.
If the medical board makes a finding that the President is incapable of discharging his functions on the ground of incapacity or where the Constitutional Court makes a finding that the allegation of violation of the Constitution or gross misconduct constitutes a prima facie case for removal of the President, the Chief Justice will report such matter to the speaker. If the National Assembly, by not less than two-thirds of its members, resolves by vote that the medical board’s finding or the Constitutional Court’s finding be adopted, the President shall cease to hold office (articles 53, 54).
President Richard Nixon of the US resigned when impeachment proceedings were initiated against him as a result of the Watergate scandal. This shows that the President is responsible to the National Assembly for the due exercise, performance and discharge of his powers, duties and functions under the Constitution.
Check on the legislature by the executive:-
The President may refer a Bill presented for his assent to the Constitutional Court if he is of the opinion that it infringes or may infringe the Constitution (article 87). Although the Constitution does not specifically state what would become of a Bill which the Constitutional Court declares as infringing the Constitution when referred to under article 87, it must be taken that the National Assembly will not be able to proceed on it any further in view of article 5 [“This Constitution is the supreme law of Seychelles and any other law found to be inconsistent with this Constitution is, to the extent of the inconsistency, void.”] of the Constitution and the absence of any specific provision in the Constitution in this regard. It is to be noted that the legislative power of Seychelles according to article 85 shall be exercised subject to and in accordance with the Constitution, which necessarily includes article 5.
The President is empowered under article 88 to withhold assent to a Bill that has been presented to him, after it has been passed by the National Assembly, and return the Bill to the speaker. However the National Assembly may at any time after a period of three months from the date by which the President should have assented to the Bill (namely within 14 days of it being presented) resolve by the votes of two-thirds of the number of members of the Assembly that the bill be presented for the President’s assent. Where a Bill is presented again for the President’s assent, notwithstanding that he withholds assent again, the President is deemed to have assented to the Bill at the expiration of a period of 14 days.
The National Assembly shall not proceed on a Bill or motion, including an amendment to a Bill or motion, for the imposition of taxation or the alteration of taxation otherwise than by reduction or for the imposition of any charge on the Consolidated Fund or any other public fund or the alteration of any such charge otherwise than by reduction or for the payment, issue or withdrawal from the Consolidated Fund or any other fund of any moneys not charged thereon or any increase in the amount of such payment, issue or withdrawal or for the composition or remission of any debt due to the government except on the recommendation of the President signified by the minister responsible for finance (article 90).
The President is empowered to dissolve the National Assembly in accordance with article 110. He may do so for any reason he considers to be in the national interest. He may during a term of his office do so twice for this same reason. But when he does it for a second time he too must resign. The President may also dissolve the National Assembly if it were to vote against any proposal of the government and on a referendum a majority of the votes cast supports such a proposal and the National Assembly votes against such a proposal for a second time or where a proposal to alter the entrenched provisions of the Constitution has been approved on a referendum and a Bill to give effect to such a proposal is not supported in the National Assembly. However the President shall not dissolve the National Assembly during a period of public emergency or where proceedings for the President’s removal are proceeding.
Check on the legislature and the executive by the judiciary:-
The Constitutional Court has the power to declare as void any law passed by the National Assembly if it is found to be inconsistent with the Constitution or any act or omission of the executive or legislature which is the subject of the application, to be a contravention of the Constitution [articles 5, 46(5)(a) and (b),130(4)(a) and(b)].
Judicial review of the constitutionality of legislation:
The supremacy of the Constitution is secured by the power of judicial review of the constitutionality of legislation. The courts are the ultimate arbiters of constitutionality of law. The Constitutional Court and, where there is an appeal, the Court of Appeal have the power to strike down legislation which they consider as repugnant to the Constitution. Under such a system of judicial review of legislation, “the Constitution” as Chief Justice Hughes of the United States remarked, “is what the judges say it is”. The principles of interpretation which are applied to strike down legislation are laid down by the judges themselves. “Its logic is created by them.” It has also been said that their decisions sometimes depend upon what Justice Holmes once called the “inarticulate major premise” from which they proceed, as in the case of other human beings. The convictions of their beliefs are necessarily reflected in their judgments. Critics of this system of judicial review under which judges can strike down legislation even after a long period since their enactment call it “government by unelected judges”. It is also said that through such a system of review, the court sometimes tend to become another chamber of the legislature or even a “super-legislature”.
When the question of judicial review of the constitutionality of legislation became the subject of debate during the framing of the first Republican Constitution of Sri Lanka (1972) the Minister of Constitutional Affairs, Dr Colvin R. de Silva stated: “If he have the power of judicial review of the constitutionality of legislation you will have to restore the egg from the omelette into which it was beaten and cooked”, if a court were to strike down legislation after it had been implemented for several years. Certain fundamental rights are guaranteed in the Constitution simultaneously with permissible restrictions which may be imposed by a law necessary in a democratic society in the public interest. The determination by the legislature of what constitutes “necessary” is not final. It is subject to supervision by the Constitutional Court.
In evaluating such elusive factors and forming their conception of what is necessary in a democratic society the Constitutional Court must bear in mind that the Constitution is meant not only for the people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of restrictions, considered them to be necessary. In determining the necessity for such restrictions the Constitutional Court should apply an objective standard, the restrictions should not be greater than what is necessary taking into consideration the circumstances and there should be a proximate connection between the restriction and the object sought to be achieved. In order to ensure constitutionality of legislation a review of such legislation by the Constitutional Court is therefore necessary.
In England Parliament is sovereign and there is no written Constitution to control or limit that sovereignty and therefore the courts lack the power to adjudicate upon the constitutionality of the laws of Parliament though they may restrict their reach and scope through interpretation in the light of constitutional principles and also under EEC laws.
Judicial powers of the legislature:-
Members when performing the functions of a member of the National Assembly are subject only to the jurisdiction of the National Assembly and not to that of any court. Where the National Assembly is in session an arrest shall not be effected against a member in a way which will interfere with his functions in the National Assembly. In matters relating to the privileges, immunities and powers of the National Assembly and of its members the National Assembly directly exercises judicial power.
Judiciary:-
Article 119(2) states that the judiciary shall be independent and subject only to this Constitution and the other laws of Seychelles. The main application of Montesquieu’s principle of separation of powers lies in relation to the independence of the judiciary from legislative and executive control and influence.
The judges, justices of appeal and magistrates are appointed by the President on the recommendation of the Constitutional Appointments Authority as stated earlier. Thus the Constitution does not give absolute discretion to the President in the appointment of judges. The Judiciary is dependant on the executive and the legislature for its budget. The salary, allowances and gratuity payable to judges are determined by the National Assembly [see article 133(1)]. In India the expenditure in respect of the salaries and allowances of the judges is not put to the vote of the legislature. It can be argued that the President’s Power of Pardon under article 60 is a usurpation of the powers and functions of the judiciary.
The Constitution has provided a mechanism to ensure the independence of judges by providing for the security of their tenure. Once appointed, unless removed from office under article 134, a Seychellois justice of appeal or judge holds office until he attains the age of 70 and a non-Seychellois for the duration of his term of office. A non-Seychellois may be appointed for only one term of office of not more than seven years. The President may, on the recommendation of the Constitutional Appointments Authority, in exceptional circumstances reappoint a non-Seychellois for a second term of office, whether consecutive or not (article 131).
A justice of appeal or judge may be removed from office by the President only for inability to perform the functions of the office due to physical or mental incapacity or misbehaviour on a finding of a tribunal appointed by the Constitutional Appointments Authority consisting of three members, all selected from among persons who hold or have held office as a judge of a court having unlimited original jurisdiction, or a court having jurisdiction in appeals from such court or from persons who are eminent jurists of proven integrity(article 134). The salary, allowances and gratuity payable to and the term and other conditions of service of a justice of appeal or judge shall not be altered to his disadvantage after appointment [article 133(2)].
In order to secure the independence of the judiciary, Standing Order 24(1) (g) makes provision that a question in the National Assembly shall not reflect on the decision of a court of law and no question shall be asked on any matter which is sub judice.
(This contribution by AG Fernando is in line with this year’s national theme Our Constitution: the Voice of Our Nation)