The Judiciary and the Separation of Powers

Par Jean-Marc Sauvé, Vice-président du Conseil d'Etat
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Lecture by Jean-Marc Sauvé , Vice-President of the Conseil d’Etat, Chairman of the European Committee in charge with assessing candidates for the positions of judge and advocate general at the Court of Justice of the European Union and the General Court of the European Union on the occasion of 2nd Jeu de Paume Encounters organised on Friday 17 June 2011 by the Château de Versailles and the Université de tous les savoirs on the theme : "The effectiveness, merits and interests of the separation of powers"

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2nd Jeu de Paume Encounters organised by the Château de Versailles and the Université de tous les savoirs. Theeffectiveness, merits and interests of the separation of powers

Lecture by Jean-Marc Sauvé[1], Vice-President of the Conseil d’Etat, Chairman of the European Committee in charge with assessing candidates for the positions of judge and advocate general at the Court of Justice of the European Union and the General Court of the European Union

Versailles, Friday 17 June 2011

The Judiciary and the Separation of Powers

In the West, the separation of powers is based on a paradox. Originally designed to limit or even combat the absolute power exercised by the monarchies based on divine right, it was not adopted immediately, at least in Europe, as the true principle around which public powers should be organised. In consequence it was not able to fulfil its ultimate purpose, which was to protect the individual against the risks of tyranny that are latent within all forms of sovereignty, including the sovereignty of the people.

This paradox seems to have reached its apogee in France. Certainly, starting with Montesquieu, France was the country in which the principle whereby “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution”[2] received solemn affirmation. Our first attempt at a constitution—the Constitution of 3 September 1791, which only lasted a year—was supposed to be based on the separation of powers and explicitly established the existence of an independent judiciary[3].

However, in issuing the Declaration of the Rights of Man and the Citizen and in laying the foundations of democracy, the Revolutionaries were not able, or did not know how, to deal with the aporia that was latent within the regime they had created. By substituting the idea of an abstract general will, embodied in the all-powerful nature of the law and the law alone, for the person of the king as an expression of sovereignty, they created the conditions for the domination of one power over the others. From the Ancien Régime to the Revolution, the same state survived. The only thing that changed was the sovereign, and therefore the source of legitimacy: the people took the place of the king.

With respect to the judiciary, to this unitary vision of sovereignty was added the original sin by which it was tainted in the eyes of the revolutionaries: the parliaments of the Ancien Régime, which operated an unfair and even iniquitous judicial system, combined with regular rebellions against royal power, were remembered as an institution that was hostile to progress and even reactionary.

Therefore, in the democratic era, the judiciary emerged in France and, no doubt, in Europe as well, as a “hollow” power [4], without authority. However, what the revolutionaries and even their successors, the republicans of the 19th century, found difficult to understand, and even more difficult to put into practice, was the idea that there is more to democracy than the sovereignty of the nation or the people. Democracy is only complete when sovereignty is combined with the rule of law. So the latter cannot exist without a balance between the three separate powers and, therefore, without the recognition of the independence and authority of the judiciary. The lesson of history is clear: the emergence of the rule of law cannot be separated from this recognition (I). The judiciary can only perform the function that it has in a democracy—namely guardian of the social pact (II)— when it is independent and vested with authority. It is therefore the responsibility of the three powers to safeguard this independence and this authority (III).

I.-The emergence of the rule of law is indissociable from a balanced separation of powers and the recognition of the independence and authority of the judiciary.

This observation is the fruit of the history of political ideas, but also of the lessons of history.

A.- The philosophical theories that laid down the doctrinal fundamentals of the separation of powers showed the consubstantial link between rule of law and the independence of the judiciary, which is the equal of the other powers and acts in harmony with them.

1.- The best known of these theories, those of Locke and Montesquieu, prove this link a contrario. Both postulated the idea of an ordered separation of powers as the basis of civil and political liberty. In his Two Treatises of Government, Locke defined the legislature and executive as separate powers[5] that interacted for the public good. Montesquieu, in his analysis of the English constitution in L’Esprit des lois, also claimed that the separation of the three “powers” (puissances), as he called them, is the basis of freedom[6].

However, the ideas of Locke were not directly concerned with the concept that was not yet called, nor even thought of, as the rule of law, nor were those of Montesquieu. The work of Locke was primarily a fight for freedom against all forms of absolutism[7]. That of Montesquieu was, essentially, a critique of the doctrine of natural law, which aimed “to give political science a reach that had been considerably restricted by Thomism”, according to the analysis of Léo Strauss[8]. The role of the judiciary in the separation of powers was not, therefore, the direct subject of the doctrine of either philosopher and, in consequence, neither attached great importance to it. Locke refers only incidentally to the jurisdictional function, while for Montesquieu, the judicial power—one of his three powers—which is “so terrible to mankind”[9], must “as it were” be “invisible”. For him, judges are “no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigour”[10].

2.- In the Metaphysics   of Morals particularly, Kant was certainly one of the first people to clearly identify the link between the rule of law and the existence of three balanced powers, involving an independent judiciary endowed with authority. For Kant, the three powers are the holders of sovereignty. They are distinct but “co-ordinated [...] like three legal entities”[11]. These powers are therefore complementary and subordinate to each other, in such a way that none of them is able to take priority over the others. It is in this balanced division of supreme power that, according to Kant, “the state is autonomous, i.e. it comes into being and remains in being in accordance with the laws of freedom”.[12] It is in this balanced division of power that its “salvation” is to be found, i.e. “the state of the greatest concordance between the constitution and the principles of law”[13], in other words, the rule of law, “towards which reason, by a categorical imperative, impels us”[14].

B.- History has also shown the indissociable nature of the rule of law and a balanced separation of powers, implying the acknowledgement of the independence and authority of the judiciary.

1.- Few, if any, European political regimes, whether democratic or supposedly so, have managed to survive without three balanced powers.

Our national history in the 19th century bears witness to this: the succession of regimes and the difficult emergence of the Republic are inseparable from the permanent subordination of the judiciary to the other powers. To the legislature, obviously: the procedure known as the “référé législatif”, which was introduced by the Law of 16 and 24 August 1790, lasted until 1837. It required judges particularly, to refer to the legislature “whenever they thought it was necessary, either in order to interpret the law, or to pass a new law”. The subordination of the judiciary to the executive may be illustrated by the recurring practice of purging the judiciary: every regime appointed new judges, on a massive scale, on coming to power. The judiciary was purged by the Empire in 1808[15] and 1810[16], at the second Restoration in 1815[17], by the “July Monarchy” in 1830[18], the second Republic in 1848[19] and to a lesser extent, paradoxically, the second Empire[20]. The third Republic did not depart from this practice: in the period 1879-1883 nearly all the members of the Conseil d’Etat were replaced and there was a massive purge amongst civil judges.

Closer to our time, the inadequacies and inability of European judges to ward off the attacks on fundamental rights in the inter-war period and under the Nazi occupation now appear to reveal, a contrario, the close link between the independence and authority of the judiciary and the emergence of the rule of law, as the regimes concerned overthrew the guarantees of rights that had been patiently constructed during the previous century. Obviously many factors contributed to this brutal regression. However, there can be no doubt that the absence of a judiciary with sufficient authority to restate the foundations of the democratic pact contributed to this, whether, structurally, it did not have sufficient powers to oppose the drives of the national representative bodies or of the peoples, or whether, in spite of the powers that it did hold, it was too timid or even reserved vis-à-vis the democratic regime. In consequence an ersatz democracy and popular sovereignty was able to lead to the negation of the person and even the human race, without any power, even the judiciary, making any attempt to stop or put a brake on this process.

2.- Conversely, history also bears witness to the fact that the separation of powers and the independence of the judiciary were prerequisites for and even the matrix of the guarantee of fundamental rights, without which there can be no democracy.

The history of the United States illustrates this point. The American Constitution, which was adopted on 17 September 1787, was founded, at the outset, on a balanced separation of powers following the principle of checks and balances, including a strong judiciary, which was symbolised and embodied by the Supreme Court. Even if several judgments throughout the history of this court were and remain controversial, the durability of the American Constitution and the strengthening of the guarantee of rights in the United States clearly show the capacity of a democracy organised around a balanced separation of powers, including a real judicial power, to guarantee social cohesion and overcome the tests of time, by preserving the foundations of the rule of law through crises of all kinds.

The second example is that of Europe after the Second World War. In spite of the gradual movement towards universal suffrage and the institution of executive responsibility before national representative bodies, the ordeals that Europe went through in the course of the 20th century underlined the inability of a representative body to represent democracy alone and to guarantee rights in the long term. In fact, the aftermath of the Second World War saw a rebalancing of powers, in which judiciaries grew in authority and were also endowed with the guarantees necessary to ensure their independence. The Reconstruction was in fact a period in which the status of the judiciary was affirmed and protected [in France] by the higher judicial councils, such as the High Council for the Judiciary (Conseil Supérieur de la Magistrature) which was created by the French Constitution of 27 October 1946. It led to the establishment of an independent judiciary in the Constitution of many countries, such as Germany[21] and Italy[22]. The constitutional judiciaries that had emerged timidly in the inter-war years, expanded rapidly in western Europe after 1945 and spread to eastern Europe after 1989 with the fall of communism. In a regime with a true separation of powers, a judge must be able to cause the fundamental law to be complied with, including by the legislature itself. Finally, the creation of international courts, particularly the Court of Justice of the European Union and the European Court of Human Rights, has helped to strengthen national judiciaries and the guarantee of fundamental rights in Europe.

II.- The consubstantial link between the separation of powers and the rule of law has a cause: the judiciary can only perform its function in a democracy, that of guardian of the social pact, which is enshrined in the Constitution and the law, when it is independent and endowed with authority.

The primary purpose of the judiciary is to settle disputes in law by rendering judgments in the cases submitted to it, in the name of the sovereign people. It is this purpose which fundamentally distinguishes the judiciary from the other powers, which are powers of initiative. The judiciary performs its office in response to external appeals which it neither instigates nor inspires. It only reaches decisions in specific cases. It renders its decisions on the basis, firstly, of legal rules, which it does not create but interprets and, secondly, of the disputes referred to it, which it cannot take up on its own initiative. In reality, the judge in principle is bound by the parties’ submissions and arguments, and is not able to rule ultra petita [23].

The constituent assembly conferred this purpose—namely to settle disputes in law in the name of the sovereign people—upon the judiciary, and gave it special authority, in the organisation of the public authorities, allowing it not only to perform this function concretely, hic et nunc, but also to fulfil its function as guardian of the social pact[24].

A.- 1.- Firstly, the judiciary helps maintain social cohesion.

This cohesive function is a consequence of the cathartic effect of the trial. The judiciary is an institutionalised stage, a theatre of conflict, a place in which passions are controlled, but also ultimately the place in which they are calmed. It is also a place in which the truth is revealed—a theatre of truth—provided one does not give the term “truth” an absolute value. The judicial system reveals what is hidden to the parties and society and makes what is complex intelligible. This applies to criminal, civil and administrative trials. In an administrative trial, the individual and society on the one hand, are in conflict with the public authorities, particularly the state, on the other. The trial process, particularly the presentation by the public rapporteur, who presents the terms of the dispute and the solution that he thinks is most appropriate, independently, to the hearing, and the public hearing at which both parties are represented, provide an opportunity for an in-depth learning experience.

In addition to the cathartic effect of the trial, the social control function performed by the judiciary also stems from the fact that it organises the existential conflict of democracy: it socialises and pacifies the conflict of interests which, in a state of nature, would irremediably lead to war between all comers. By performing this function, the judiciary “provides a stage for those holding power, the social link and the subject”[25]. It arbitrates between interests, ensuring that the victory of one party does not lead to the annihilation of the other. It highlights the fundamental balance of democracy: the balance between society and the freedom of the individuals who make up society.

2.- If the judiciary is the guardian of the social pact, this is also because it is the ultimate guardian of the values and principles that are entrusted to the people in the Constitution and the law. In the long term, it ensures the continuity and effectiveness of the great democratic principles, i.e. the fundamental rights that are expressed in the Constitution and the international instruments for the protection of human rights to which states are parties.

The constitutional judiciary is, without doubt, one of the most complete expressions of this function, as it requires constitutional judges to set aside, even censure, the law, in the name of the rights and freedoms that are guaranteed by the supreme law, the Constitution. This is the purpose, for example, of the French Conseil Constitutionnel (Constitutional Council) or the Supreme Court in the United States[26]. In our revised constitutional tradition, the law can only be the expression of the general will insofar as it does not infringe the Constitution[27]. The contrary “would subvert the very foundations of all written constitutions”[28], in the words of John Marshall, Chief Justice of the United States Supreme Court, in his opinion in the famous  Marbury v. Madison case of 24 February 1803, in which the Supreme Court recognised that it had authority to check the compliance of a law with the Constitution.

The function of guardian of the fundamental principles and values of democracy, is fulfilled by all judges. In France, all judges may apply the Constitution[29] directly or question the compliance of laws with its provisions[30]. In monistic States, such as France, all judges may directly apply international treaties, particularly those guaranteeing fundamental rights, such as the European Convention on Human Rights and Fundamental Freedoms and henceforth the Charter of Fundamental Rights of the European Union, rejecting laws that are contrary to them, when necessary. The general principles of the law, identified by the administrative judge, also derive from the judge’s function as guardian of the fundamental principles. In the absence of law, their purpose is to require the executive to comply with norms, such as the right of the defence, the equality of access to public services or the principle that administrative acts do not have retroactive effect. These general legal principles are the expression of the judge’s legitimate normative power in a state operating under the doctrine of the separation of powers.

Due to his function as the guardian of the fundamental values of democracy, the judge cannot refuse to give judgment on the pretext that the law is silent, obscure or inadequate[31]. The judge derives the legitimacy required to interpret the law and, where necessary, to produce the norms that complete it, without being able to create the law, from the constituent assembly[32]. This is the function of case law, whose place is metaphorically expressed in the Glorification de la loi by the painter, Paul Baudry, which decorates the ceiling of the Great Chamber of the Court of Cassation: the figure of case law certainly looks up submissively to the figure of law on her pedestal, who hands down order, but she has a strong presence standing in the foreground.

B.-The status of the judiciary is the legal expression of its function within a regime operating under the doctrine of the separation of powers, namely that of guardian of the social pact. As Article 12 of the Declaration of Rights of Man and the Citizen states with respect to the forces of law and order (force publique), this status is not instituted for the particular use of judges, but for the benefit of all: it must allow the judiciary to enjoy the independence and authority necessary to exercise its function fully.

1.-The purpose of the status is, first of all to ensure that the legitimate action of the other powers vis-à-vis the judiciary does not cause its guardian function, which derives from the Constitution, to be challenged.

The status of the judiciary, therefore, protects the independence and fundamental powers of the courts. This is why the independence of the judiciary and its function as guardian of individual freedom is mentioned in Articles 64 and 66 of the French Constitution. This is also why the independence[33] and essential powers[34] of the French administrative courts are acknowledged as a fundamental principle, recognised by the laws of the Republic. In Germany, Title IX of the Basic Law of 23 May 1949, relating to the “judicial power”, precisely defines the powers of the Federal Constitutional Court and those of the federal supreme courts. Article 101 of the Basic Law also classifies the right of the legal judge with the fundamental principles of the organisation of powers[35]. In the United Kingdom, while the issue of the powers of the courts is expressed differently, the independence of the judiciary is also guaranteed, even without a written constitution, by a custom that is sufficiently ancient and strong to have constitutional value. The Supreme Court of the United Kingdom was created in 2005, replacing the Appellate Committee of the House of Lords, according to the Constitutional Reform Act[36].

The status of the judiciary may derive from explicit provisions laid down in the Constitution or other laws, or it may derive from custom, as in the United Kingdom or in France, with respect, in many ways, to the Conseil d’Etat. Whatever its source, the status of the judiciary protects every judge from the influences that the other powers may exercise over him, particularly the executive: hence the principle that judges cannot be removed during their term of office[37], and the universal prohibition, in states governed by the rule of law, on issuing instructions to judges in the exercise of their judicial functions.

2.-Alongside independence, the status of the judiciary also ensures that it has the authority necessary to exercise its function as guardian of the social pact.

Its impartiality clearly derives from the fundamental principles of its status, whether subjective, i.e. the requirement for personal impartiality, which is inherent in the judge’s role, or objective, namely the need for the judiciary to show that it is impartial to those who rely upon the courts. It offers the parties and society the assurance that the settlement of a dispute and the principles cited or identified by the judge in a particular case do indeed result from the fundamental pact and not from any particular interest that the judge himself may have in the dispute. Its impartiality therefore contributes to the judiciary’s role as a source of social cohesion and as guardian of certain values.

The guarantees that surround the appointment of judges also contribute to the independence, impartiality, and competence of judges and, therefore, of the authority of the judiciary. The guiding principles that frame the trial—particularly the principle that both parties should be represented, the public nature of court proceedings and the equality of arms—also contribute to the social regulatory function of the judiciary: they ensure the fairness and impartiality of judicial procedures, and therefore the acceptability of the judgment rendered, and allow the judiciary to fulfil its purpose, which is both legal and social. The principles that govern the judiciary show the essential difference between it and the other powers: they establish the principle that the judge and the judged must be independent of each other, on which Aristotle based the idea of justice. Justice can only exist when there is a distance between the judge and the parties, the judge and the dispute.

III.- Since independence and authority are central to the role of the judiciary under the rule of law, it is the responsibility of the three powers to uphold them.

The extent to which each of the powers can legitimately influence the others is crucial. Rooted in the Constitution and in the law, the limits of such influence require each of the powers to be exercised with exceptional vigilance and great restraint. In short, as far as the judiciary and the other powers are concerned, they involve duties which are also, equally, responsibilities.

A.- The duties of the judiciary under the doctrine of the separation of powers are based on the judiciary as a whole and on each individual judge.

1.- First of all bothof thesemust respect the core function entrusted to them by the sovereign power, that of guardian of the social pact.

a.- For the judiciary, this means obeying one absolute rule: not to give in to the complexity of the law, nor to the pressures of lack of time, frequent changes in norms, political upheavals or fluctuations in opinion. In its role as guardian, the duty of the judiciary is therefore to be consistent, and in exceptional circumstances, to resist.

The duty of consistency lies at the very heart of the guarantee of rights. It applies to the courts. They must avoid frequent, unforeseen or random contradictions and reversals; endeavour to preserve the safety and stability of legal positions; and order the enforcement of increasingly numerous standards which are sometimes contradictory and confusing.

This duty of consistency also stems from the coexistence of different legal systems, independent, admittedly, but similar to each other and constantly interacting. One of the features of the French system of the separation of powers is that it is based on a multiplicity of independent jurisdictions: constitutional, administrative and ordinary. This structure derives its legitimacy from the principle of specialisation, which enables judicial reviews of decisions to be carried out more efficiently and therefore assists with the guarantee of rights. But specialisation also entails greater responsibility for the courts, all the more so since the two European legal systems, those of the European Union and the European Convention on Human Rights, have superimposed themselves on the domestic legal system. It is for the highest court in every State, and to a lesser extent, every judge, to help harmonise the various legal systems within which they work. When the same principle is guaranteed both by domestic law and by an international commitment to protect human rights, it is undesirable for a supreme court to depart from the interpretation of this principle given by the other courts, whether constitutional, European or other supreme national court, without very serious grounds for doing so.

In times of real crisis, the duty to resist forces the courts to continue to be vigilant guardians of the social pact and of democracy. When a society is confronted with a massive decline in rights and freedoms, or, worse still, the negation of the human person, courts have a duty to recall the requirements and bases of the rule of law. The individual heroism of a small number of judges, as shown in the darkest hours of our history, cannot compensate for the impotence of the entire judicial system.

b.- The personal duties of judges vis-à-vis their role as guardian of the social pact are duties of restraint. Every judge must respect the quintessential nature of the judicial task entrusted to him, and equally, the fundamental principles of justice.

Dispensing justice is not synonymous with delivering a just sentence. The judge cannot be a righter of wrongs without running the risk of failing in his task and breaching his duty of impartiality. Dispensing justice also means recognising that judges do not have the same discretion as parliament or the government. This is the meaning of the concept of judicial deference which Anglo-Saxon judges use to mark the limits of the control they exercise over the law or the government, whose discretionary power is doubtless more widely protected than in continental Europe or in France. This is also what lies behind the reservations expressed by French constitutional judges over the actions of the legislature[38]. This is how the administrative judge operates; he exercises particularly detailed control, but does not have jurisdiction to assess the desirability of a decision[39]. However, the separation of powers cannot have the effect of guaranteeing immunity to the legislature, the executive or their representatives.

Judicial restraint must lead judges to demonstrate their full commitment to the principles of independence and impartiality. This means that they refrain from performing their judicial duties when they believe that they could not be impartial or independent, or not be perceived as such by those whose cases are dealt with by the courts. Judicial restraint also means that judges have a duty of discretion when expressing themselves in public and in their relationships. This duty threatens neither their freedom of thought nor their individual liberty, but compels them to act virtuously, taking care not to put themselves in situations where they are suspected of being too close, or even subservient, to the other public authorities, or the de facto authorities such as political, economic and social groups, and the media. Nor must the independence of judges be compromised by corporatism and lead [them] to oppose the legitimate action of the other authorities in relation to the judiciary.

2.- The duties of the judiciary and of judges are also duties vis-à-vis the society that they help to regulate.

a.- For the institution, the main priority is to dispense justice of high quality, contributing to the authority of the judiciary and the confidence that citizens have in it. One element of this quality is speed, which is closely linked to the right to a fair trial. Court decisions must be delivered within reasonable timescales, compatible with the real situations of those whose cases are dealt with by the courts and responsive when time is short. Quality also means taking into account the accessibility of justice and the transparency of proceedings and information. Quality must also include intelligible court decisions; reading a court judgment must not feel like a semantic obstacle course for the parties involved, who are usually unfamiliar with arcane legal terminology.

b.- The personal duties of a judge vis-à-vis society are competence, open-mindedness and responsibility.

Competence because the authority of the judiciary is based not only on impartiality but also on scrupulous respect for rigour in legal argument, and in the conduct of trials.

Open-mindedness, because judges cannot stand aloof from society. It follows from the very social control which is part of their remit. This assumes that court decisions are not only founded in law, but are also relevant and applicable. It implies that these decisions are capable of taking account of economic, social, and even political issues on which they are likely to have an impact. It postulates that judges know how to weigh and take on the consequences of the judgments they deliver.

Responsibility, meanwhile, is a cornerstone of democracy and of life in society, and judges cannot escape from it. Their disciplinary offences must, therefore, be punished. In principle, their judicial activity can only be controlled within the framework of legal remedies: appeals, reversals of judgment (cassation) or reviews. But in exceptional circumstances, the personal responsibility of judges must be open to challenge for this reason, on condition that strict safeguards are provided against any risk of confusion between the function of the judge with disciplinary responsibility and that of the appeal or cassation judges. As with the judges of the Conseil Constitutionnel[40], this responsibility can only be incurred in case of a serious and deliberate breach of a procedural rule that constitutes an essential guarantee of the rights of the parties and on condition that the breach has itself been confirmed by a final court decision.

B.- Preserving the separation and balance of powers also implies that the executive and legislature fully recognise the independence and authority of the judiciary. Their responsibility in this respect is expressed in a coherent set of positive and negative obligations or obligations to abstain.

1.- The first positive obligation of these powers is to establish the regulatory framework for judicial activity and to give the judiciary the means necessary to run it under conditions that do not undermine the independence of the courts. It is also necessary to give effective scope for the principle of law to the statutory judge in order to establish the jurisdiction and composition of the courts on an objective basis and overcome the temptation of every prince to “choose his judge”. For its part, the executive must take the necessary measures to organise the public service offered by the judiciary, while upholding the constitutionally important objective that justice must be properly administered. It must also, if the constituent assembly so chooses, take individual measures relating to judges’ careers—particularly appointments, promotions, and transfers—while complying with the rules and procedures surrounding its assessment of such measures, such as the principle of security of office, prior consultation of the higher councils that guarantee the independence of the judiciary, or respect for the assent of these same bodies, when such assent is required.

The executive has another duty: to ensure that judgments are enforced. This duty derives from the fundamental principle of the right to a fair trial. It involves providing assistance to ensure that judgments are enforced, by the forces of law and order (force publique)[41] if necessary, and also respecting any final judgment rendered against it, even if an appeal has been lodged against it[42].

2.- The first of the negative obligations or obligations to abstain of the executive and legislature is not to misuse the legitimate rights that they have over the judiciary.Thanks to the checks and balances inherent in the system of the separation of powers, the right of judges to censure, in the course of their duties, the actions of the legislature or the executive is balanced by the right of the constituent assembly or the legislature to modify, for the future, the rules applicable to a question, or the interpretation of it given by the judge, when the other public authorities disagree with previous precedents. This is the meaning, particularly, of the validation laws and of what [the professor of public law] Dean Vedel called “the constitutional bed of justice” when the constituent assembly wishes to give a constitutional basis to a law censured by the judge.

a.- Yet in exercising this right the sovereign power must not encroach upon the independence and authority of the judiciary to the point of damaging disproportionately the separation of powers.

This requirement led the European Court of Human Rights and the Conseil Constitutionnel in France to strictly control the power of the legislature to validate the illegal or incorrect enforcement of the law. Such validation must respect the authority of a final court judgment and, also, be prompted by compelling grounds of public interest[43].

These limits also mean that neither the constituent assembly nor the legislature can revise the organisation of the courts or the statutory guarantees enjoyed by the judges for partisan reasons, to penalise the lack of a legal basis or erroneous basis, whether real or supposed, of a judgment, or to attempt to influence the result of a case or the meaning of a precedent. It must unfortunately be acknowledged that such temptations and practices have not disappeared from Europe, as can be seen from several cases or examples from European states including France, in the last decade.

Accordingly the constituent assembly should not be able to drastically reduce the retirement age of judges so that almost all judges sitting in the highest courts are replaced. Nor can it deprive a constitutional court of an important part of its powers in response to a court decision. It should not make the guarantee of security of office for judges dependent upon their having previously served for an abnormally long period. The legislature cannot use a serious economic crisis as a pretext to make a drastic cut in the salaries of judges alone, or of some of them, such as those sitting in the constitutional court. Nor can it increase the number of members of a supreme court without good cause, solely in order to “dilute” the supposedly rebellious judges. Nor can the legislature, in the name of the proper administration of justice, modify the internal organisation of a court nor replace a trial bench that it has just created, in order to penalise this court or to influence the decisions that it may be led to take. The Law of 1 March 1899, which removed applications to reopen proceedings from the Criminal Division of the Court of Cassation at the height of the Dreyfus case is an unfortunate precedent which, as a matter of principle, we should take care not to repeat[44].

b.- At home and beyond our borders, the legislature and the executive cannot exercise the authority they derive from the Constitution for an illegitimate purpose.

Therefore the executive, which has been granted a kind of de facto monopoly on public speech, cannot use its power of communication to criticise publicly or “to discredit […] a judicial decision or judgment”, as expressly prohibited by our Criminal Code[45]. This negative obligation is the minimum counterbalance to the judicial deference that I mentioned earlier. Court decisions must be respected by all.

In order to uphold the independence and the authority of the judiciary, the other powers must show the same restraint as the judiciary shows towards them. Pressures such as muffled warnings, or even direct or veiled threats, have no place in a State ruled by the separation of powers and should be blamed. Nor are amnesty laws any more acceptable, because in reality their only purpose is to conceal, directly or indirectly, and for reasons unrelated to the public interest, the activities of one or more determined people. The same is true of laws which, when legal proceedings are in progress, give the parties the right to challenge their judges on grounds of reasonable suspicion in order to delay the outcome of the court action. This also applies to laws that establish immunity for very limited categories of defendant or which reduce the limitation period in such a way that one or more persons benefit. Similarly repudiated are caveats or appeals regarding the nature of the responsibilities notified to the judges, or even heads of the supreme court, duly convened by the senior representatives of the executive before the trial of sensitive cases, or the reprimands addressed to them afterwards by the same people, if the judgments delivered do not meet with their approval.

All this meddling and interference in the course of the judicial process, which is reprehensible and futile more often than not, puts the separation of powers and the stability of the constitutional pact to the test. From this point of view, the history of the last few decades, although marked by excellent progress in Europe, is not entirely reassuring. While exceptional, attempts to charm, intimidate or subvert members of the judiciary still occur on this continent. But, regrettable as they undoubtedly are, these abuses and excesses can neither undermine the generally harmonious relationship between the judiciary and the other powers, nor impair the confidence that citizens can and must have in the judicial system.



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The duties of each of the powers towards the others form, not merely a pact, but also a commitment and a pledge which maintain and broaden the oath uttered here by Bailly on 20 June 1789, in the name of the 578 assembled deputies of the Tiers Etat. They vowed “never to separate, and to meet wherever circumstances demand, until the Constitution of the kingdom is established and supported by firm foundations”. Like the Jeu de Paume Oath, the pact drawing the three powers together is a founding act in respect of democracy and the rule of law. But the pact is fragile. We are all responsible for ensuring its survival: each of the three powers—the judiciary, legislature, and executive—and also every citizen and society as a whole. We must take on this responsibility in order to preserve the values and principles accepted by our sovereign people, which are enshrined in our Constitution. The European and international commitments, in which our Constitution allows us to participate, giving them particular authority, also help defend these values and principles that we share with the whole of humanity. These commitments open new horizons for us onto the universal and constitute invaluable sources of support, useful ties to hold us steady for the duration, strengthening what remains for us a legacy and a pledge: the building up of democracy and the rule of law, which are the best guarantors of freedom, social cohesion, the efficient and harmonious functioning of the public authorities, and perhaps, the creation of a world where peace and happiness have a stronger hold.



[1] Text written in collaboration with Mr Timothée Paris, senior judge at an administrative court and an administrative court of appeal, special assistant to the Vice-President of the Conseil d'Etat.

[2] Article 16 of the Declaration of the Rights of Man and of the Citizen, 1789.

[3] Constitution of 3 September 1791, Chapter III, Section III.

[4] J.-P. Royer et al, Histoire de la justice en France, PUF, Paris, 4th edition, 2010, p. 254.

[5] Locke, Two Treatises of Government, Chapter XII The Legislative, Executive and Federative Power of the Commonwealth

[6] Montesquieu, De l’esprit des lois (The Spirit of Laws), Book XI, Chapter VI, De la Constitution d’Angleterre, (Of the Constitution of England), GF Flammarion, Paris, 1979, p. 294: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; […] Again, there is no liberty, if the judiciary power be not separated from the legislative and executive.” 

[7] On this point see S. Goyard-Fabre, in Locke, Two Treatises of Government, op. cit. ibid. Introduction.

[8] L. Strauss, Natural Right and History.

[9] Montesquieu, De l’esprit des lois, op. cit. ibid. p. 296.

[10] Idem, p. 301.

[11] Kant, Metaphysics of Morals, “Doctrine of Law”.

[12] Kant, Metaphysics of Morals, “Doctrine of Law”.

[13] Idem.

[14] Idem.

[15] The Decree of 24 March 1808, adopted a short while after the “Sénatus-consulte” of 12 October 1807, removed from office 68 judges and law officers, including 12 presiding judges. A Decree issued the same day sought the resignation of 94 judges and law officers. See J.-P. Royer, op. cit. ibid. pp. 483 et sq. § 302.

[16] The Law of 20 April 1810, which was passed in order to improve the operation of the judiciary, radically reformed the organisation of the courts, replacing most of the judges in the process, particularly in the appeal courts. See J.-P. Royer, op. cit. ibid. p. 484 et sq. § 303.

[17] An Order of 18 September 1815 purged a significant proportion of the judges in most courts: 15 of the 23 Appeal Court presidents were removed. See J.-P. Royer, op. cit. ibid. p. 649 et sq. § 397.

[18] See J.-P. Royer, op. cit. ibid. pp. 652 et sq. § 399 et seq.

[19] The Circular of 12 March 1848 sent by Ledru-Rollin to the commissioners is particularly revealing: “you will require the prosecuting authorities to provide devoted support” and “with respect to the permanent judges and law officers, you will watch them and, if one of their members is publicly hostile, you may use your power to suspend him that you enjoy by reason of your sovereign authority”. J.-P. Royer, op. cit. ibid. pp. 659-660, § 404.

[20] See J.-P. Royer, op. cit. ibid. p 642: only ten or so judges and law officers were removed from office.

[21] The Basic Law for the Federal Republic of Germany of 23 May 1949, Title IX “The Judiciary”. See Article 97 “The Independence of the Judges”, particularly.

[22] Constitution of the Italian Republic of 27 December 1947. See, in particular, Part 2, Title IV, entitled “The Judiciary”, particularly Section I, “Organisation of the Judiciary” and, within this Section, Article 104.

[23] This analysis adopts that of Alexis de Tocqueville in Democracy in America, Chapter VI, “Judicial Power in the United States and its Influence on Political Society” in particular: “The second characteristic of judicial power is that it pronounces on special cases, and not upon general principles. […] The third characteristic of the judicial power is that it can act only when it is called upon, or when, in legal phrase, it has taken cognizance of an affair”.

[24] For an in-depth analysis of the role of guardian that is entrusted to the judiciary in a democracy and the link between this role and the authority that the judiciary must have, see A. Garapon, Le gardien des promesses (The Guardian of Promises), Odile Jacob, February1996.

[25] A. Garapon, Le gardien des promesses, op. cit. ibid. p. 176.

[26] See the opinion of Judge Marshall in Marbury v. Madison 24 February 1803 (Judgment 5 US 137) and the analysis of Chief Justice Rehnquist, in W. H. Rehnquist, The Supreme Court, First Vintage books ed. February 2002, particularly pp. 32-34.

[27] Conseil Constitutionnel, Decision no. 85-197 DC of 23 August 1985, Law on the evolution of New Caledonia.

[28] “would subvert the very foundations of all written constitutions”. [As in the French version. Retained here in order to ensure that the footnotes in the English version correspond to the footnotes in the French version. Translator.]

[29] For example, CE assembly, 3 October 2008, Commune d’Annecy, Lebon. p. 322.

[30] By posing the preliminary question of constitutionality: Constitution, Article 61-1 and organic Law no. 2009-1523 of 10 December 2009 relating to the application of Article 61-1 of the Constitution.

[31] Article 4 of the French Civil Code: “A judge who refuses to give judgment on the pretext of legislation being silent, obscure or inadequate, may be prosecuted for being guilty of a denial of justice”.

[32] Article 5 of the French Civil Code: “Judges are forbidden to decide cases submitted to them by way of general and regulatory provisions”. 

[33] Conseil Constitutionnel, Decision no. 80-119 DC of 22 July 1980, Law validating administrative acts.

[34] Conseil Constitutionnel, Decision no. 80-224 DC of 23 January 1987, Law transferring disputes surrounding the decisions of the competition regulator to the ordinary courts: “The principle by which, except for issues reserved by their nature to the judiciary, the cancellation or revision of decisions taken by authorities exercising the executive power, their agents, the local authorities of the Republic or public bodies placed under their authority or control, in the exercise of their powers as public authorities, fall within the remit, in the last instance, of the administrative courts, is included among the “fundamental principles acknowledged by the laws of the Republic””.

[35] Basic Law of the Federal Republic of Germany, Article 101 [prohibition of exceptional courts]: “(1) Extraordinary courts shall not be allowed. No one may be removed from the jurisdiction of his lawful judge. (2) Courts for particular fields of law may be established only by a law”.

[36] Constitutional Reform Act of 24 March 2005. On 1 October 2009, the Supreme Court took over the function of highest court of appeal that had been exercised by the House of Lords since 1399.

[37] See for example Article 4 of Order no. 58-1270 of 22 December 1958, an organic law relating to the status of judges and law officers: “Judges may not be removed from office./ In consequence, a judge may not be appointed to a new position, even a promotion, without his consent”. See also Article L. 231-3 of the French Code of the Administrative Courts (Code de justice administrative) “When exercising their functions as judges or law officers in an administrative court, the personnel of the administrative courts and administrative appeal courts may not be appointed to a new position, even a promotion, without their consent”.

[38] See Conseil Constitutionnel, Decision no. 2010-92 QPC of 28 January 2011, one of many precedents.

[39] See for example, on the monitoring of the public utility of a project, Conseil d’Etat assembly, 28 May 1971, Ministre de l’équipement et du logement c/ Fédération de défense des personnes concernées par le projet dit « Ville nouvelle est », Lebon p. 409 and Conseil d’Etat 20 October 1972, Société civile Sainte-Marie de l’Assomption, Lebon p. 657.

[40] Conseil Constitutionnel, 1 March 2007, decision no. 2007-551 DC, Organic law on the recruitment, training and responsibilities of judges and law officers.

[41] Conseil d'Etat, 30 November 1923, Couitéas, Lebon p. 789: “a litigant holding a judicial verdict duly bearing the executory formula has the right to count on the support of the police force to ensure the execution of the title issued to him; that if, […] the government has a duty to assess the conditions of this execution and the right to refuse the assistance of the police, as long as it believes there is a danger to [public] order and safety, the harm that may result from this refusal cannot, if it exceeds a certain period, be regarded as a liability normally incumbent on the interested party”.

[42] This is the meaning, for example, of the decision of the Conseil d’Etat of 5 November 2003, Association "Convention vie et nature pour une écologie radicale", which mentioned that, even if the decisions of the urgent applications judge do not, in the main proceedings, have the authority of the final judgment, they are nevertheless enforceable and binding, by virtue of the authority attached to court decisions (Conseil d’Etat section, 5 November 2008, Association "Convention vie et nature pour une écologie radicale" et Association pour la protection des animaux sauvages et autres, Lebon p. 444).

[43] European Convention on Human Rights (ECHR) gr. ch. 28 October 1999, Zielinski, Pradal, Gonzales et al. v. France, appeals no. 24846/94, 34165/96 and 34173/96.

[44] Moreover this Law was ineffective since, as we know, on 3 June 1899 the Plenary Assembly of the Court of Cassation annulled the judgment convicting Dreyfus.

[45] Article 434-25.