Keith L. Miller, ContributorThe doctrine of separation of powers has become topical due to its prominence in the MOU between Bruce Golding and the JLP. It is a key feature of the NDM's constitutional reform proposals. The paucity of any serious critique of this doctrine, as to its usefulness in the Jamaican context, suggests an acceptance at face value of the claim that its adoption is the answer to the excessive centralisation of power, and will provide an effective safeguard against the arbitrary use of power by the executive.
I strongly support a fundamental reform of the constitution, and in particular the need to curb the excessive concentration of power at the centre. However, I take issue with the claim that separation of powers is the best, or even a very effective, means of providing checks and balances on the executive, and of diluting the excessive centralisation of power in the executive.
A myth propagated by the separation of powers school is that excessive power in the executive (and some say the Prime Minister), is an inherent feature of the Westminster model. Proceeding from this premise, this school argues that it is the presence of the executive in the legislature which inhibits the Parliament from exercising effective oversight of the executive. Therefore, if the executive is removed from Parliament, this body will become effective in curbing the arbitrary exercise of power by the executive.
However, weak parliamentary oversight of the executive is not inherent in the Westminster model but rather arises from the dominance of very strong political parties, which enables the imposition of rigid party discipline. Thus, it hardly matters whether the legislators are in a separate house from the executive or not. So long as both are from the same party, party considerations will curb any real independence among legislators.
Real diffusion of power will not come from separation of powers per se, but from meaningful devolution of power from the centre to sub-national levels of government, whether these are local, regional or municipal authorities. Substantial devolution of power to such bodies, allied with the empowerment of civil society and their incorporation into the processes of governance, will significantly transform the ways in which power is exercised in the society, for the following reasons:
Devolution of power, including significant fiscal decentralisation, will lead to the emergence of local/regional sub-centres of power and thereby foster greater pluralism and a wider dispersal of power in the society. It reduces the dominance of a centralised power structure over all aspects of public affairs, since a significant amount of such affairs will now be delegated to the local/regional level.
With devolution, each parish, region or municipality will develop a clear understanding of itself and its distinctive interests. This will form the basis on which local/regional groups will seek to influence formation of national policies, programmes and plans, and judge the actions of their representatives.
Political representatives will now carry out their representational and legislative functions in the full gaze of their local constituents, and will be aware that they will be held to account if they fail to make the advancement of the interests and wishes of their constituents a primary consideration.
Devolution facilitates the empowerment of communities and civil society, which then become a new and powerful force for influencing the exercise of power at both the local and national levels, and for ensuring that power is exercised in accordance with the tenets of good governance.
The devolution approach is a far more effective means of diffusing power and curbing its arbitrary use than the doctrine of separation of powers, although the two are not necessarily mutually exclusive.
Most importantly however, devolution accomplishes the task in a manner which facilitates complementary rather than fostering further adversarialism and confrontation between the different branches and levels of government.
This is critical, as a paramount pre-requisite for creating a united and purposeful nation is the reversal of adversarialism, and the promotion of co-operation, collaboration and co-ordination.
Devolution does not weaken or inhibit the central executive. Rather, it focuses it, re-directs it, and ensures that it operates in a manner which is transparent, accountable and responsive to the perspectives and interests of both local and national stakeholders. At the same time it creates space and increases the capacity of a broad range of new players to become involved in identifying and solving their own problems, and contributing to nation-building, thus reducing the burden and over-reliance on the central executive.
These views are presented in the hope that they will stimulate and contribute to a vigorous and healthy national dialogue. Such a dialogue is important in helping the public to understand the issues, and in particular, to differentiate between the good intentions of proposals which are put forward, and whether such proposals are the best or most effective means of achieving desired goals. The separation of powers doctrine is one such proposal, but there are several others which are in need of more rigorous examination.
Keith L. Miller is a consultant with the Ministry of Local Government
