CPC Workshop F: 20 Years of the Latimer House Principles on the Separation of Powers: Is it Working?
Panel Chair: Joy Burch, MLA, CPA Small Branches Chairperson and Speaker of the Legislative Assembly of the Australian Capital Territory
Facilitator: Jarvis Matiya (CPA Secretariat)
This workshop session focused on the significance of the Commonwealth Latimer House Principles and examined strategies to strengthen the relationship among the three branches of government. It also highlighted best practices for embedding these Principles in Commonwealth Parliaments. For democracy to thrive, the Executive, the Legislature and the Judiciary must operate within their constitutional mandates. The Legislature makes laws, the Executive implements and the Judiciary, which is the final arbiter of a state, exercises the powers of adjudication and interpretation.
The CPA Small Branches Chairperson, Joy Burch, MLA, Speaker of the Legislative Assembly of the Australian Capital Territory, chaired the workshop session and introduced the panellists. She also recalled the role of the CPA in drafting the Commonwealth Latimer House Principles with other Commonwealth organisations and the role that all Commonwealth jurisdictions have in implementing them.
The first panellist, Senator Hon. Nigel de Freitas, President of the Senate of Trinidad and Tobago, examined the implementation of parliamentary democracy and the Commonwealth Latimer House Principles in Trinidad and Tobago. He stated that the Constitution as the fundamental and supreme law of the land establishes and defines the functions of the three branches of government, thereby ensuring their independent operation.
He mentioned that the Commonwealth Latimer House Principles have been effective in preserving the Legislature’s independence, its oversight role and its representative functions. He referred to a number of constitutional provisions in Trinidad and Tobago, especially Article 55 which guarantees the freedom of speech of Parliamentarians during parliamentary proceedings. However, it must be stated that, although this freedom as prescribed by the Constitution is well-intentioned from a privilege point of view, it must be exercised within the remit of the law. In addition to this constitutional freedom, Parliamentarians enjoy security of tenure, protection against expulsion and revocation of appointment.
Nevertheless, in benchmarking the Principles against the Edinburgh Plan of Action for the Commonwealth, the President of the Senate of Trinidad and Tobago highlighted some challenges. The Edinburgh Plan calls for the remuneration of Parliamentarians to be determined independently. In the current dispensation, the Parliament of Trinidad and Tobago still relies on funding from the Executive, thereby compromising on its independence. Moreover, the Commonwealth has not met its goal of having at least 30% women in political and decision-making positions, as outlined in the Edinburgh Plan of Action.
The discussion underscored the importance of enhancing gender diversity in government branches, aligning with Commonwealth standards. It was emphasised that while strict adherence to the separation of powers is mandated by the constitution, parliamentary oversight should be more robust. The effective discharge of this function serves as a check on the Executive. It also reduces the occurrence of arbitrary rule and leadership.
Senator H.E. Wan Junaidi Tuanku Jaafar, President of the Senate of Malaysia, explained how Malaysia applies the Commonwealth Latimer House Principles. He outlined the role of Malaysia’s three branches of government and the unique role of the Sultans in electing a Supreme King as head of state.
He outlined that the Legislature has its own internal checks and balances but the Judiciary has the mandate to determine the constitutionality of the laws passed by the Legislature. One of the main challenges in Malaysia lies in the independence of the Judiciary as members of the bench are appointed by the Executive.
The danger in this procedure is that there is the likelihood of Executive interference in the dispensation of Justice. He therefore called for the introduction of the relevant constitutional measures to ensure the independence of the Judiciary. Plans to introduce an independent commission for judicial appointments are in progress. He also stressed the need for the re-enactment of the Parliamentary Service Act in Malaysia.
The third panellist, Senator Hon. Sue Lines, President of the Senate of Australia, highlighted the application of the Commonwealth Latimer House Principles in Australia, emphasising the importance of honesty, probity and accountability. All the branches of government are guarantors of the rule of law. She acknowledged deviations from these Principles during the COVID-19 pandemic due to the need for extraordinary actions. Australia is actively working to adhere to the principles through dialogue and proactive measures.
Professor Hakeem Yusuf explored the ‘Power of Disallowance’ (a decision to veto an act of a Parliament or a provincial Legislature by a head of state or their representative) across Commonwealth states, discussing its historical origins and contemporary applications. He raised questions about its alignment with democratic principles, asking Members whether the veto power promotes democracy or is antithetical to it, and he sought support for ongoing research on its role and impact.
Hon. M. Appavu, Speaker of the Tamil Nadu Legislative Assembly, recognised the progress made in implementing the Latimer House Principles across the Commonwealth and noted that, while significant strides have been made, challenges persist in some member states. The level of development in these jurisdictions can affect their adherence to these principles and he suggested that all Members should demonstrate a strong commitment to the Latimer House Principles and emphasise the importance of cooperation among government branches.
Senator Hon. Paul Richards (Trinidad and Tobago) raised a critical question about how the Commonwealth Latimer House Principles can address inefficiencies in public service delivery when government branches are not functioning optimally. His question delved into the practical implications of implementing these principles.
The workshop also included valuable contributions from participants including Hon. Rockson-Nelson Kwami Etse Dafeamekpor, MP (Ghana), who discussed judicial disallowance and the Judiciary’s role in scrutinising legislation and Hon. Nontembeko Boyce, Speaker of the KwaZulu-Natal Provincial Legislature who emphasised public participation and constitutional mechanisms in fostering oversight.
Senator Hon. Nigel de Freitas responded by highlighting the significance of oversight mechanisms in the context of the separation of powers and the challenges in ensuring effective oversight over the Judiciary, emphasising the need for checks and balances among all branches of government. He further explored the challenges in overseeing the judiciary, particularly in the context of Trinidad and Tobago. Senator Wan from Malaysia discussed the courts’ role in parliamentary oversight, citing cases where laws were declared unconstitutional.
Hon. Mohamed F. Mwinyihaji, MP (Kenya) explained the appeal process in Kenya’s judicial system, stressing judicial integrity.
Justice Hafisata Amaleboba, a Justice of the Court of Appeal in Ghana, highlighted the effective implementation of the Commonwealth Latimer House Principles in Ghana, reaffirming the distinct roles of the Executive, the Parliament and the Judiciary.
Overall, the workshop session provided a comprehensive exchange of ideas and experiences on the separation of powers and good governance in the Commonwealth. It shed light on the complexities and practicalities in implementing these principles and facilitated shared learning among delegates. There was a general consensus among delegates as to the importance of the separation of powers and the checks and balances in the democratic process. The exercise of political power must be balanced constitutionally among the three arms of government to ensure that no organ or branch of government arrogates to itself excessive power.
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25/09/2024
