Published On: Sat, Dec 16th, 2017

DEMOCRACY and TRIAS POLITICA

The concept of a Democratic system of government and the Trias Politica philosophy is quite old. The term  “Trias Politica” or “Separation of powers” is widely acknowledged to be linked to Montesquieu, author of the popular work “The Spirit of Laws” (1748). The work combined his knowledge of law, history, economics, geography and political theory. Montesquieu was however not the first to write or talk about separating powers from ruling classes and politicians.  The main objective of this doctrine is to prevent the abuse of power within different spheres of government. Historically the powers were separated to avoid people in powerful positions to directly grab and abuse all powers at once. The model divides the political authority of the state into legislative, executive and judicial powers. To most effectively promote liberty, these three powers must be separate and act independently. ‘Separation of powers’ therefore refers to the division of government responsibilities into different branches, to limit any one branch from exercising the core functions of another.  The intent is to prevent the concentration of power and provide for checks and balances. Montesquieu especially emphasized that judges had to be independent to avoid legislative conflicts of interest.

To be affective the separation of powers has to be real by actually creating separate institutions within the state organization, as also laid down in our Constitution. Independency of each institution is key: * The legislative branch is responsible for enacting the laws of the state and approving the money necessary to operate the government. * The executive branch is responsible for implementing and administering the public policy and funds approved by the legislative branch. * The judicial branch is responsible for interpreting the constitution and laws, and applying their interpretations to conflicts brought before it. The Trias Politica as the basis of a democratic state provides that every citizen has the right to address and have his case heard by an independent judiciary. This principle is anchored in article 26 of the Constitution of Sint Maarten.

Even though separation of powers is key to the workings of government, no democratic system exists with an absolute separation of powers. Governmental powers and responsibilities (intentionally) overlap; they are too complex and interrelated to be neatly placed in boxes. As a result there is an obvious measure of competition and conflict among the branches of government, also experienced on Sint Maarten. The doctrine of separation of powers usually means that if one of the three branches of government is in charge for the sanction of rules of law, this body shall not also be charged with their implementation or with judicial decision about them. The same person should not form part of more than one of the three branches of government. To prevent the misuse of power within the two branches of government a Minister should not sit in Parliament.

The Constitution of Sint Maarten (“Staatsregeling”) places the legislative authority: the power to make, amend and repeal rules of law, in the hands of Parliament in cooperation with government. The executive authority: the power to execute and enforce rules of law, is the competence of the government, the Council of Ministers and the civil servants. The judicial authority is given to the judges of an independent court system; to resolve disputes, determine what the law is and how it should be applied in disputes. While the regular Courts on Sint Maarten interpret the laws in a dispute after they have been established, the Constitutional Court has the power, in the general interest of the public, to review laws before they take effect. This happens if a law is considered in conflict with the Constitution. These three branches form the basis of the Trias Politica, meaning that decisions and power within a democratic community cannot be made by one branch. All three spheres are independently organized, balancing the power within the country. As such the Constitution enforces checks and balances for accountability, openness and responsiveness for the well-being of everyone in the country. Separation of powers also avoids diffusing power to such an extent that the government is not able to take timely measures in the public interest.

How government services are being carried out by the civil servants to the people, is a matter of Public administration (often referred to as the fourth power). The Ministers and the civil servants  are responsible for the execution of the policies, government program. The Minister carries responsibility for the government departments.  This makes the Public administration  accountable to the Ministers and the Ministers in turn accountable to Parliament, representing the public. Public administration should at all times be governed by democratic values and principles, which will be discussed in another article.

The Trias Politica separates political powers, reduces conflicts of interest and can increase political transparency in the decision-making processes in a Democratic state.

Questions:

  • Do you recognize the Trias Politica concept on Sint Maarten? Discuss this with your friends.
  • Is there overlap of powers, which may compromise the independence of the three powers? If yes, are there signs of the division of powers being compromised?
  • In which article of the Constitution is the right of a citizen to be heard by an independent power, the judiciary, anchored?

THE LEGAL REVIEW COMMITTEE

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