Adumbration on the three branches of government

Aug 20, 2016 Letters

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Dear Editor,
I am responding to the following articles “Presidential powers granted to Lands Commissioner ridiculous – Opposition” and the article entitled “AG wants powers reduced after Deputy Registrar appointment” which were published in the Kaieteur Newspaper dated Tuesday, the 16th day of August, 2016. I penned this letter for the edification of the writers and the public in general on the following topics: (1) Delegation of powers from the Executive Arm of Government (the Cabinet) to administrative bodies or authorities and (2) Politics, the Law and Separation of the powers of the Judiciary and Executive Arm of government.
(1) Delegation of powers from the Executive Arm of Government (the Cabinet) to administrative bodies and/or authorities. It is generally in accord with common sense and in the interest of the proper functioning of governmental bodies that in a democratic society government may choose to delegate certain functions to governmental bodies and/or authorities. Article 65 of the Constitution of Guyana provides that “parliament may make laws for the peace, order and good government of Guyana.” Therefore, by virtue of this constitutional power the Legislature is empowered to make laws for the proper governance of the country. As a point of possible contention or by a stretch of imagination even in the absence of a written Article 65, the common law based on its appeals to such principles as are just and reasonable, common sense and justice would have demanded the Legislative arm of government make laws which are necessary for good governance of the country. Political Science and Constitutional Law embraces the unfettered rule of governmental science that there are generally three arms of government; namely the Executive, Legislative and Judiciary. In a democratic society which adheres to the rule of law clear separation of the powers and functions of three different arms of government must be manifestly practiced and evident in the performance of the different governmental arms’ functions. In a truly democratic society there must be a clear demarcation of the powers generally vested in the different arms of government and no arm of government can legally usurp or perform the powers normally vested in another arm of government.
The very constitution which gives the Executive power to make laws for good government and which he undeniably did by passing the Order giving the Lands Commissioner power ‘to exercise on behalf of the President the functions relating to the sanctioning of renting and granting of leases, licences and permission of occupancy of all Public Lands….’ provides for the Separation of powers doctrine and would sanction against any attempt of unconstitutional law making by the Legislature/Political Officials. Further, it is undoubtedly clear that the President is constitutionally authorised to grant such powers as he did when he made the Order. Therefore, it is reasonable, just and in accord with common sense to conclude that it is not unconstitutional, null and void and of no effect to grant to the Lands Commissioner the functions which were usually perform by cabinet.
This is for the very fact that it does not negate the Separation of Powers of doctrine. By vesting the powers in the Land Commissioner who is undeniably neither a member of the judiciary nor the legislature the separation of powers doctrine remains unaffected by the Order of the Legislature/Legislative arm of government. The functions being performed by a ministerial/governmental official still remain an executive/cabinet function and will continue to be performed by the Executive arm of government. Furthermore, the Order must have been made by the President and Cabinet adopting the correct process and its legislative functions (Articles 164,165 and 170 of the Constitution of Guyana). In the absence of so doing this might be a possible and reasonable ground for contention. In conclusion, I would like to think that the constitution brilliantly recognised since time immemorial that the Executive arm of government or the cabinet will have much more pressing issues to attend to and would need to clear its schedule of functions which can be reasonably, just and based on common sense be performed by other governmental bodies or authorities.
(2) Politics, the Law and Separation of the powers of the Judiciary and Executive Arm of Government.
It has been indicated in the numbered one topic above the law of Politics and Constitutional Law recognize and follows the unfettered doctrine of governmental science, that there are three main arms of government and these are the Executive, Legislative and Judiciary. The Separation of Powers doctrine requires that there be no usurpation of the functions performs by the different arms of government. This is necessary to ensure that there is a clear system of check and balances between and/or among the different arms and to ensure that citizens enjoy the benefit of the rule of law and to protect the rights, fundamental human rights and other rights of individuals. It is fundamental to the moral fabric of any society that there is an independent Judiciary. Judicial Powers should not be performed by any other arm of government. In the Kaieteur News article it is indicated that the AG is of the opinion that the Deeds Registry and Commercial Registry falls under the Executive arm of government.
Marsha Archer

Editor’s note; because of the length of this letter, it will conclude in a forthcoming edition

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