The extent of the judge's powers and their necessary limits

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European Colloquium on the Judiciary and PoliticsFriday 31 October 2014
The extent of the judge's powers and their necessary limits
Address by Jean-Marc Sauvé[1],Vice-president of the French Council of State

I would like to start by thanking the organisers of this conference for inviting me to share my ideas this evening about one of the main aspects of political theory, which is currently undergoing great change, particularly in connection with the construction of Europe. The relationship between the judiciary and politics forces us to question our conception of the rule of law and democracy, while raising the question of the separation of powers. It also invites us to think about the legitimate exercise of one of the major functions of the state, namely, justice. As such, what is the scope and what are the corresponding limits of the mission of judges nowadays ?

Although the concept of the "separation of powers", which looms over our discussions, appears to be illusively simple, history has exposed its theoretical fragility and practical complexity. It refers not so much to the functional specialisation of the relevant institutions, but rather to the division of the three functions of the state, namely the legislative, executive and judicial branches, each with its own domain of specialisation, but between which there exists some overlapping. Whatever the type of constitutional organisation, the separation of powers rests on a dynamic equilibrium in which the judiciary has a very special role : it is one of the powers that form the state, and at the same time, the guarantor of both the division of powers and the respect for constitutional principles.

Paradoxically, this special role can explain the historical weakness of the judiciary in comparison with the other two. The inherent tensions prevalent in the separation of powers have often been resolved by hierarchically organising the three powers to the benefit of the executive and legislative powers. However, these days, the order has been reversed: judges now oversee statutory compliance with constitutional and international norms, as well as the acts and activities of all public decision-makers. In noting the expansion of the areas within which judges may now intervene, should we fear the so-called "politicisation" of the judiciary, that is to say an encroachment by judges in the areas of competence of the other powers, along with the adoption of positions by judges in political, economic and social debates that have yet to be decided?

I will return to the factors which have lead to this assertion of the power of the judiciary, in order to show the benefits, as well as the limits. From its beginnings as a weakened, dominated body, has it become, as certain caricatures would have us believe, a dominant, hybrid power? When the threat of "government by judges" is made once again, what is the just and legitimate place of the judiciary in its relations with politics?

I. First, allow me to turn to judicial independence and the extension of the judiciary's powers of oversight

A. The mission of the judiciary is multifaceted. It determines which law is applicable. It interprets laws. It minimises obscurities. It settles uncertain or conflicting situations. Finally, it enacts measures that will provide a sustainable resolution to a dispute. In order to perform this function with total impartiality, judicial independence vis-à-vis the political powers is guaranteed: judges are irremovable and do not receive any instructions when exercising their functions. Their appointment, their promotion and their careers are usually determined by high councils of justice, which are themselves independent of the other powers. Their decisions are respected and executed.

It is true that judges were dependent for a long time and occasionally remain the target of laws intended to (1) remove them from office, (2) subject them to other powers or (3) challenge their decisions. In spite of this, in the second half of the 20th century, judges in Europe generally acquired a status that is consistent with the requirements of the separation of powers. The last century was also marked by two other changes: the promotion of fundamental rights and the emergence of new rights in economic, social and environmental matters. This twofold evolution drew lessons from the totalitarian experiences of the 20th century and the incapacity of judges to stand up to totalitarian governments, and was also influenced by the belief that the law should provide a framework to foster a more thriving society. As such, it went hand in hand with changes in the role of judges: their jurisdiction was extended; proceedings were diversified; their authority was expanded, particularly through the creation of new powers to make orders and impose penalties for non-compliance[2]; and their oversight became more rigorous and effective. Against this background, the contemporary legitimacy of the judiciary is linked to its ability to provide and enforce a guarantee of fundamental rights and ensure that ties in society are subject to the law.

B. This assertion of the power of the judiciary was made in the context of a crisis in political representation, which weakened national parliaments[3], and in the context of the loss of influence, even impotence, of national public authorities in the face of globalisation[4]. However, this assertion is also the fruit of internal transformations in the legal sphere, which I would now like to describe.

Firstly, it is insufficient to point out that most public decisions today are subject to judicial review. It should also be noted that judicial review has become more detailed and sophisticated everywhere. When a judge has to deal with a challenge to an operation in the public interest, any possible conflict between private and public interests[5] and between public interests[6] themselves is to be considered and analysed. The judge determines the extent to which a property right has been infringed, as well as the estimated cost and the disadvantages that may result from the operation for society as a whole. Finally, when assessing proportionality, the judge weighs these factors, an analysis which thus becomes intrusive or even subjective. At a later stage, judges are more concerned about the effectiveness of their rulings, which may be made as a matter of urgency at the same time as the political decisions: in a growing number of countries, political decisions are dependent upon judicial ones[7].

Secondly, the powers of judges were asserted not only vis-à-vis the administrative authorities, but also vis-à-vis the legislature itself, thanks to the consecration of fundamental rights at constitutional and international levels, whereas the law was, in most constitutional traditions, protected from all judicial oversight and all risk of censure. Without claiming to possess a "general power of assessment and a decision-making authority comparable to that of Parliament"[8], constitutional and even ordinary judges verify, more and more frequently and in detail, that eminently political decisions, on which laws are based, comply with constitutional and international norms of which the courts are the guardians and interpreters. Judges have thereby taken on a new democratic role and acquired a new legitimacy[9]. Elections may come and go, political parties may perhaps alternate, but judges remain the keepers of the principles enshrined in the Constitution and laid down by the legislature itself. These principles are in fact at the summit of the hierarchy of norms.

Thirdly, national legal systems are now linked to European legal systems. This means, in principle, that European judges have the last word concerning the interpretation and application of European law. Rights in the European Union are protected by member-state constitutions on the one hand and by the European Convention on Human Rights and the Charter of Fundamental Rights on the other. These rights are indeed materially close and often formulated in the same way, but the concrete obligations that derive from these documents for the public authorities are specified in each individual case, not only by national courts but also European courts. It is up to both groups to set out their respective constructions of these norms and settle the concrete situations before them, with the interpretation of the European judge taking, in principle, precedence over that of national judges, as a result of the principles of primacy and effectiveness.

C. These three fundamental transformations explain the emergence of a new proximity and interaction between the judicial and political powers. As the judge’s sphere of competence overlaps more and more with the political realm, neither of the latter’s branches, whether executive or legislative, can now avoid judicial oversight, which is becoming increasingly substantial. A second reason for this development is that the principles inherent in the judicial process—impartiality, adversarial debate and transparency—have an increasing influence on the operation of public institutions and have thus become the model for an "ethic of collective deliberation"[10], separate from parliamentary debate. It is therefore natural to look beyond a confrontation between the judiciary and the political powers, as they are both affected by the same movement towards greater proximity and participation, thus creating more room for the consultation of the parties involved and for collective deliberation.

As such, I believe that the legitimacy of the judiciary is absolutely essential in a democracy.

II. I would now like to move on to the new responsibilities of the judiciary in today’s context which require judges to be more vigilant in the exercise of their functions in order to be more legitimate.

A. The intervention of judges in the public realm—which is sound in principle, as all powers must be subject to oversight—could be perceived as an illegitimate, and potentially anti-democratic interference, which could in turn antagonise other public powers or, at European level, give rise to uncooperative attitudes vis-à-vis the European courts. In order to avert these risks, national and European judges must take on new responsibilities, as illustrated through the following four points.

1- Firstly, an enhanced duty to explain the reasons behind judicial decisions. When judges give the reasons for their decisions, they should be fully aware that they are addressing not only the concerned parties, but also parliament, the government, other judges, the legal community as a whole and even public opinion. Faced with such a vast audience, it is incumbent upon them to explain what they do and what they decide. It is a facet of the responsibility and accountability that they bear and the corollary of the power that is entrusted to them. As such, explaining a judicial decision serves in fact a purpose of justification to the public authorities, subject to oversight, as well as to the citizens. This task is all the more important in that the cases in question deal with issues for which there is no consensus among states[11] or even within them.

2 – Secondly, a duty on national and European judges to cooperate honestly and transparently. Legitimate differences of opinion or assessment may certainly arise between judges, but these cannot be a source of legal insecurity. In such cases it is important that the judges concerned enter into an in-depth dialogue, which may either be formal, accompanied by preliminary questions, or informal. However, when a European Court has adopted a position, it is desirable —even necessary—that national judges abide by its ruling, unless there is a particularly serious, overriding reason not to do so.

3 – Thirdly, a duty to adapt the oversight of the courts in order to preserve the margins of appreciation of political authorities or of national judges. The oversight of the courts must stop where the discretionary power of parliaments and governments begins. It cannot lead to a judge taking the place of the political power, nor to a judge interfering with the functions of that power: as each has its own democratic legitimacy, and their legitimacies are in fact complementary, neither may nor should enter into a conflict in this regard. For instance, constitutional judges should not, under the cover of an interpretation, perform their duties of oversight in such a zealous manner as to make the constitutional rules excessively rigid and unnecessarily restrict parliament's powers of appreciation. Similarly, European judges must refrain, without sufficient justification, from making extensive interpretations of transfers of power granted by the states within the Union, as they must show prudence in their teleological or finalist interpretations of primary or derived law, to the detriment of a literal reading of the texts. These judges must make every effort, without harming the unity and consistency of European law, to further the principle of subsidiarity , i.e., granting states certain margins of appreciation and allowing their respective courts to show a certain degree of restraint when identifying the points of consensus among national constitutional traditions. This "buffer zone" between the principles of primacy and subsidiarity will allow the European project to survive in the long term.

Whether national or European, judges can only find their proper place in the separation of powers if they show a certain degree of "restraint" or "judicial deference" vis-à-vis democratically elected or responsible bodies. This deference will naturally vary from state to state, but it is essential in maintaining the balance of all the powers.

4 – Fourthly and finally, stricter ethical obligations and more restrictive personal duties. Because judges are called upon to oversee democratically elected bodies in the exercise of their powers, they must show great reserve when expressing their opinions outside judicial debates, act with the greatest impartiality and avoid all risk of conflicts of interest.

B. These long-standing responsibilities, which have now taken on a new intensity and scope, limit the judiciary's role, preventing it from becoming excessively powerful. By accepting these responsibilities, the judiciary agrees to limit its own powers, while pursuing its objective to protect and ambitiously promote the rule of law. To borrow the metaphors employed by François Ost, those who now defend a Jovian or Herculean type of judiciary might well become tomorrow's denigrators of a "government of judges", depending on the nature of their own interests. The legitimacy of the judiciary can only be maintained if, while fully assuming its own responsibilities, it manages to identify, preserve, and protect the margins of appreciation of the two other powers. Moreover, as the judiciary derives its authority and legitimacy from the constitution and the law—and therefore the will of the people—, it is always open to the sovereign, that is to say, the people, to clarify its wishes by amending the Constitution or the law, in order to prevent potential unwanted judicial interpretations of the texts currently in force. In fact there is nothing more democratic than this method of resolving disagreements between the judiciary and the political powers, provided naturally that it is not used as a pretext to attack the independence of judges and the mission of the judiciary.

For more than 20 years, as the judiciary has asserted its authority, relations between this power and the political powers have not ceased to change and become more complex, without necessarily reaching a crisis point. I do not doubt that the work within this conference will make it possible to analyse this phenomenon, to clarify the challenges arising, to point out the risks that are involved, and to identify the means of harmonious coexistence and even peaceful cooperation between the judiciary and the other public powers or between European and national judges. This will certainly be beneficial for our societies, for the rule of law and for European construction.

[1]Text written in collaboration with Mr Stéphane Eustache, administrative judge and special assistant to the Vice-President of the Council of State.

[2]See J.M. Sauvé, "L’injonction – la loi du 8 février 1995 après vingt ans de pratique", 5 September 2014.

[3]On this point, see P. Rosanvallon, La légitimité démocratique, impartialité, réflexivité, proximité, Le Seuil, coll. Points Essais, 2008, p. 12 and p. 59: "la légitimité d’identification à la généralité".

[4]On this point, see P. Rosanvallon, La légitimité démocratique, impartialité, réflexivité, proximité, Le Seuil, coll. Points Essais, 2008, p. 101: "la grande transformation".

[5]CE [Council of State], Ass., 28 May 1971, Ville Nouvelle Est, no. 78825.

[6]CE, Ass., 20 October 1972, Société civile Sainte-Marie de l’Assomption, no. 78829.

[7]See J.M. Sauvé, "L’urgence devant le Conseil d’Etat : procédures, méthodes de travail et défis nouveaux", 23 September 2014.

[8]Wording adopted by the Constitutional Council: see note CC no. 2013-669 DC [Oversight of constitutionality of laws] of 17 May 2013, Loi ouvrant le mariage aux couples de personnes de même sexe, cons. 14.

[9]On this point, see P. Rosanvallon, La légitimité démocratique, impartialité, réflexivité, proximité, Le Seuil, coll. Points Essais, 2008, p. 222 "Constitutionnalisme et réflexivité".

[10]A. Garapon, "La question du juge", Pouvoirs, no. 74, 1995.

[11]On this point, see the reasoning behind decisions: ECHR 26 June 2014, Mennesson v. France, no. 65192/11, relating to the conditions for the transcription of birth certificates in civil status registers of children born to surrogate mothers; ECHR 1 July 2014, S.A.S. v. France, no. 43835/11, relating to the prohibition on covering one's face in public spaces.