The Bailiff’s dual role and
the separation of powers
David Marrani
It has long been argued that law, particularly
modern law, is structured like a language. Unfortunately, it is now quite
commonplace to use words and phrases without consideration of their real or
proper meanings. For instance, the separation of powers, a key constitutional
doctrine, has been used randomly to qualify systems of government or the
collaboration of institutions, by referring to the work of Montesquieu without
truly knowing it. Indeed, the classical sense that is often given to his ideas
on the separation of powers is absurd. Any argument based on a wrong
interpretation of Montesquieu is therefore also absurd. This article revisits
Montesquieu’s original ideas on the separation of powers and explains
what they really are. By applying this framework to a debate that has been part
of Jersey constitutional life for some time now, the dual role of the Bailiff,
the absurd will hopefully be left on one side and some truth brought to what
the separation of powers really means, when the Bailiff’s functions are
under consideration.
1 There has been much discussion and debate
around the dual role of the Bailiff of Jersey. Most comment has been
quite negative, arguing that the dual role was archaic and in effect
detrimental to a contemporary jurisdiction. As explained by Sir Philip Bailhache, Bailiff of Jersey from 1995 to
2009,
the principal functions of the Bailiff are the Presidency of the Royal Court
and ancillary functions deriving from it, and the Presidency of the States, and
ancillary functions deriving from that. Therefore “The Bailiff is the Chef Magistrat (Chief Justice) and presides over the Royal Court” but also “The
Bailiff is ex-officio the President of the States”. It was
once said that he—
“has no right to vote other than by a casting vote
when the votes of elected members are equally divided. Traditionally he
exercises his casting vote in order to preserve the status quo. Generally the
Bailiff acts as a speaker, as in any democratic assembly, ensuring good order
and the observance of the rules of the assembly.”
2 The casting vote was, however, abolished
by the States of Jersey Law 2005. The question of the dual role of the Bailiff
has been seen negatively by some local politicians. Most of the recent debates
have been triggered by members of one of the newly constituted parties in
Jersey, Reform Jersey. Its then party chairman, Senator Sam Mézec, wrote
that—
“Numerous reports have been published which have said that it is unhealthy that Jersey does
not have an effective separation of powers between the courts and the States,
and legal advice provided to the government has indicated that our current
system puts us at risk of human rights challenges in the future.”
3 In addition, the 2018 manifesto of Reform
Jersey recorded—
“An elected
Speaker of the States Assembly
The Clothier review, Carswell review and Independent
Jersey Care Inquiry have all recommended that the States Assembly should elect
its own Speaker to preside over parliamentary sittings, rather than have the
Bailiff removed from his court duties to preside. We believe it is not
compatible with the principle of the separation of powers to have our Chief
Justice act as parliamentary Speaker. We will support introducing an elected
Speaker to preside over States sittings and to undertake outreach work to promote
democracy in our Island by engaging with schools, businesses and civic groups
to improve how they interact with the States Assembly. Meanwhile, the Bailiff
can focus on his judicial duties and reduce the need of the courts to hire
expensive English Commissioners to do the work that he is qualified to
undertake. This will improve democratic accountability and provide better value
for money for the public.”
4 My
intention here is not to criticise the ideas developed by Reform Jersey or by
Senator Mezec, but rather to focus on the core issue that seems to be at stake,
viz. the question of the separation of powers and the alleged dual role
of the Bailiff of Jersey. According to the above statement, the principle of
the separation of powers makes it incompatible for the Bailiff to be at the
same time Chief Justice and president of the States of Jersey, the local
parliament. This is certainly a very topical debate because it concerns a quite
important figure in the Channel Islands political and legal institutional
setting. It is also very topical because it is built on a certain
understanding, or assumption, of what is or should be the separation of powers
and, impliedly, what is or is not democratic. The debate has the capacity to
undermine many ideas about what is or should be a Constitution and a democratic
government. Ultimately, the debate creates a sort of brouhaha that in effect
masks, intentionally or not, the clarity and reality of the Constitution of
Jersey. Indeed, the dual role of the Bailiff of Jersey has been criticised for
showing the archaic nature of that Constitution.
No Constitution should be archaic, and an accusation of that nature creates an
impression which is very negative. In consequence, it supports an argument for
a “modernisation” of the Constitution and changing the dual role of
the Bailiff, making the (negative) “archaic” Constitution a
(positive) “modern” one because that modernised Constitution would
also finally be democratic. The separation of the functions of the Bailiff
would be equivalent to showing respect for what is understood and perceived to
be the separation of powers, and offer a move to democracy. It would fit the
concept or at least one sort of idea as to what the separation of powers is,
and what a democratic Constitution should be.
5 The
rhetoric supporting the modern versus the archaic is much the same as the good
versus the bad argument. In the words of Althusser, we can understand that—
“Law is an art of the asymmetry controlled. This
asymmetry is the result of a hierarchy, a dogmatic appreciation of what is
here, what the ‘local’ ideology voices as normal, against what is
over there, that is not ‘as good as’, that is abnormal
. . .”
Often, we use
this idea of “modern v archaic” to advocate changes. Changes are “good”
because they show progress and they signify efficiency. And then we are of
course left with an atmosphere that has often very little impact on democracy,
and even sometimes has adverse effects. Let us consider here the “modernisation”
of the French Fifth Republic Constitution under the presidency of Nicolas
Sarkozy (2007–2012). The idea of change was brought in a bold attempt to
make a 60-year-old text more “contemporary”. The 1958 Constitution
was considered to be old, “archaic”, and in need of updating to
become once more a “good” text.
It also relates to what can be said about normal and abnormal readings of
Constitutional rules. One may consider that normal would be good and abnormal
bad (let us not forget that this could be a totally subjective appreciation)
and then argue for “necessary” changes in order to move from “archaic”
to “modern”, i.e. to some settings that are perceived as
more “democratic”.
We may also want to bear in mind the declaration of president Donald Trump on
the US Constitution, which he described, at its 200th anniversary, as an “archaic
system” because it limits the power of the president.
This argument is used quite often to justify changes or possible changes. So,
what really is the issue with the dual functions of the Bailiff in Jersey?
6 Because
the concern is around the separation of powers, the important point is to
analyse which institutions are actually present in Sir Philip’s account
of the functions of the Bailiff. Obviously, the Bailiff sits in the superior
courts of Jersey and in the local parliament, which are closely intertwined by
history.
7 In
France the baillis were
instituted under King Philippe Auguste at the beginning
of the 13th century. Acting alone or as delegate of the Curia Regis of the King, it seems that the institution of baillis came from the idea Philippe Auguste had to imitate the English public
administration of the time and therefore it was inspired by the English
sheriffs, the Norman baillys and the
itinerant judges.
Then, we have the top court but with, however, a little twist. The parlement, creation of the Curia
Regis, was a sovereign court that
used to sit at the apex of the court system. Parlements had judicial
functions as appeal courts from some decisions of the baillis. But they had legislative
functions in addition: they could interpret laws, record them or reject them.
That is what may cause some confusion with the bailiffs and their functions, as
they were first instance judicial officers.
The 1190 royal charters detailed the functions of the baillis: judicial officers, hearing appeals, recording fines at the monthly
assize, and reporting on the affairs of the realm. The link between baillis, courts of justice and parliament is an ancient affair. But the
confusion may be wider than expected. Indeed, parliaments in France were courts
of justice while Etats Generaux were the embryo of what we understand
nowadays as our parliaments. In fact, part of the confusion comes from the use
of similar terminology in the two countries at that time: the Parlement in France was a court of justice while in England it was a
consultative assembly.
What equates to the English parliament in France was the Etats Generaux, and that too causes some
issues. “A l’origine du Parlement, il y a la parole.” Parlements, “places where we speak”, from
the French verb parler, became of course the generic name of
bodies involved in making the law, while still carrying their original meaning
of courts. It does not mean that the baillis
had to be part of the “institution”
that makes the law as well as the chief of the court that is the parlement, but rather that there is without doubt some linguistic if not legal
reason for the bailiff’s dual functions.
8 In
the Channel Islands the genesis of the office of bailiff is less clear. After
the loss of Normandy by King John in 1204, the defence and the judicial
administration of the Islands were entrusted to an officer identifiable after the
mid-thirteenth century by the title of “warden”,
and although in early instances that term seems to have been interchangeable
with that of “bailiff”, the latter title came to attach to deputies
of the warden, namely
“the men who were in practice going to execute the king’s
orders”.
9 According
to Professor Le Patourel, it seems that after 1204
the assizes were no longer held by an itinerant justice but by a local officer.
It may have been a sub-warden or bailiff. It is only to 1277 in Jersey, and
1278 in Guernsey, that a bailiff with functions identifiably similar to those
of his successors can be traced back.
10 The
question of the dual role of the Bailiff is not specific to Jersey. It arose in
Guernsey, too, through a European Court of Human Rights (ECtHR) case in 2000, McGonnell v United Kingdom. The McGonnell judgment raises quite interesting issues.
The court found that the role of the Bailiff of Guernsey was sufficient to “cast
doubt on his impartiality” when acting in a judicial capacity on appeal
over a particular piece of legislation which had been adopted while the Bailiff
presided over the States of Deliberation (the legislative assembly of Guernsey).
It is quite important to read McGonnell together with Procola, another relevant
judgment focusing on the separation of powers, but with the specific caveat
that it comes from the angle of art 6 of the European Convention on Human
Rights and Fundamental Freedoms (ECHR) and therefore appears to some extent to
be focusing more on the question of fair trial than the principle of the
separation of powers.
Dr Richard Cornes, who commented on the case, criticised the views of the court
and its reasoning. He argued that the structural impartiality of an
institution should not be damaged simply by a duality of roles of one of its
members. Building on his traditional subjective analysis on the work of judges,
Dr Cornes argued that what was at stake was the nature of the view of a judge,
and how it was expressed. As Dr Cornes highlighted,
Procola clearly referred to the “structural impartiality” of
the dual role of an institution. The question of
separation of powers was merged here with the more subjective matter of
impartiality of the institution conducting two or more functions. It should be
noted that, while the impact of McGonnell was minimal in the Channel
Islands, the outcome was very different in the UK. According to Le Sueur,
“It seems likely that the McGonnell ruling
was a driver in the decline of the Law Lords’ participation in
parliamentary debates and it was part of the constitutional backdrop to Tony
Blair’s intention in 2003 to abolish the office of Lord Chancellor and
the subsequent debates over remodelling the post.”
Indeed —
“In McGonnell v. United Kingdom, the Strasbourg
court found that there was a lack of separation of powers that violated Article
6 (1) of the ECHR. This line of reasoning directly questioned the separation of
powers in much of the British judiciary: The Lord Chancellor had executive,
legislative, and judicial duties while the Lords of Appeal in Ordinary had
judicial and legislative duties.”
11 The question of the dual role of the
Bailiff has become a poison for the institution to the extent that Sir William
Bailhache, Bailiff of Jersey from 2015 to 2019, in one of his last interviews
with the Jersey Evening Post,
declared that:
“. . . there were three principles which
caused ‘sensitivity about the Bailiff expressing a point of view’—that
he could influence States Members, that the Bailiff must be seen to be
impartial due to presiding over debates, and that some issues may end up in the
Royal Court.”
12 He continued by explaining—
“I thought I would raise the issue because the role
of the Bailiff in the States continues to cause much debate. It has bedevilled
my time as Bailiff, making it more difficult for me to express views which do
not breach the principles set out above, and which might have been helpful in
the context of the overall administration.”
What is the separation
of powers?
13 This
brief article will revisit the doctrine which is the basis of the argument
around the dual role of the Bailiff, viz. the separation of powers. In
order to do so, reference will be made to the writing of a leading French
academic, Michel Troper, who spent most of his career working on the question.
The nature of the separation of powers, notably the classic conception, will
first be addressed; then the separation of powers and political systems of
government, and the separation of powers and the constitution; and finally what
the separation of powers really meant for Montesquieu and its relevance to the
institution of the Bailiff of Jersey.
14 What, then, is the separation of powers?
The separation of powers is without doubt one of the fundamental principles of
modern constitutional law. It is said to be an ideal or a standard “to
which the legal and constitutional arrangements of a modern state ought to
conform.”
The doctrine is said to originate with Montesquieu.
15 Charles-Louis de Secondat,
Baron de La Brède et de Montesquieu, one of the most influential
political philosophers of the 18th century, was a lawyer from Bordeaux. He
published L’Esprit des Lois (the Spirit of Laws) in 1748. It is principally in Book XI, Chapter 6, De
La Constitution d’Angleterre, that we can find reference to the
separation of powers—
“Il y a dans chaque État trois sortes
de pouvoirs: la puissance législative, la puissance exécutrice
des choses qui dépendent du droit des gens, et la puissance
exécutrice de celles qui dépendent du droit civil.”
[In each
state there are three sorts of power: legislative power, executive power over
things which belong to international law, and executive power over those things
which belong to the civil law.]
Somehow, whenever someone mentions the separation of
powers, Montesquieu always comes to mind, and when someone mentions
Montesquieu, the mind turns automatically to L’Esprit des Lois.
16 However,
this association is not without obstacles. For a start, Montesquieu never used
the expression “separation of powers” in his work. A quick search
through the various books and chapters of L’Esprit des Lois for
the phrase “separation of powers” would prove the point. What we
find is a reference to the question of having the power to judge separated from
the legislative power and the executive power. Montesquieu wrote that
“Il n’y a point encore de
liberté si la puissance de juger n’est pas séparée
de la puissance législative et de l’exécutrice.”
[There is no longer any freedom if the power of
judging is not separated from the power of the legislature and the power of the
executive.]
That proposition is found quite early in Book XI.
Chapter 6 may well be considered the basis for the belief that Montesquieu is
indeed the creator of the doctrine that was later named the separation of
powers. But we need to be very clear: Montesquieu never referred to or named
this doctrine as the separation of powers. That said, he may have named this
doctrine something other than the separation of powers.
17 What is then the real link between
Montesquieu and the separation of powers? In order to find out, we may want to
research first what we “normally” consider to be the doctrine of
separation of powers, and then to examine whether this doctrine may truly be
found in L’Esprit des Lois.
18 The question is not simply a question of
historical or philosophical interest, and it has nothing to do with whether or
not Montesquieu actually invented, named or expounded the doctrine of
separation of powers. The discussion around the paternity of Montesquieu and
the origin of the doctrine has more to do with theoretical and practical
issues. For instance, what are the political and/or legal functions of the
State? How do we manage to divide and distribute the various political and/or
legal functions of the State to guarantee freedoms, while keeping at the same
time an efficient political power? In other words, how do we manage at the same
time to split the political and/or legal functions of the State and at the same
time avoid a paralysis of political power? Montesquieu brings
answers to those questions that are more pertinent and specific when confronted
by other doctrines than the one expounded in what is referred to as the
separation of powers. Let us briefly describe the classic conception of the
separation of powers
The classic
conception of the separation of powers
19 The classic conception of the separation
of powers can be found in almost every public law text book since the middle of
the 19th century. According to this conception, the separation of powers
appears to be a piece of constitutional engineering designed to protect
freedom/s. We could consider indeed that it has been articulated by
Montesquieu, and we could generally speaking explain it via various
extracts taken from L’Esprit des Lois. But we should certainly
focus more on “separation” than on “powers”. What is
meant here by “separation” is a way of distributing the political
and/or legal functions of the State between its various authorities or bodies.
We may want first to consider what are those powers.
Powers
20 The State exercises a large variety of
socio-political functions. This exercise is most of the time conducted through
the law. This means that it is done through a specific process that produces
general rules and commands, as the legislator creates “general, abstract,
impersonal and permanent laws to be applied impartially”. The socio-political
functions ultimately involve the exercise of various legal functions. In legal
terminology, but also in ordinary language, “power” has many
meanings. Sometimes powers can mean legal functions. Sometimes it can mean the
powers necessary to exercise those legal functions, and sometimes it can mean
the authority or body that exercises those legal functions. For example it can
mean what we find as the definition of “the State” in Marxist
theory: as stated by Althusser “the State (and its existence in its
apparatus) has no meaning except as a function of State power.”
21 The legislative power, the power to make
law, therefore could be either the function of making the law or the body (the
institution) making the law. In a modern democracy, it can therefore be either
the function of making a statute or the political institution of parliament.
Therefore, the expression “separation of powers” seems to refer
either to a mere distribution of functions or to a separation of bodies.
22 From there, we may be able to consider
that whenever two State functions appears to be distinct, we categorise them
specifically as the legislative power and the executive power. Those are
defined as follows. The legislative power is that which is concerned with making
laws that are defined as “general, abstract, impersonal and permanent
laws to be applied impartially”, while the executive power is that which
applies those rules to concrete cases. Whenever there is a third function, we
have what is called the judicial power or the judiciary. That said, the
judiciary may be treated either as a third function or not. The first
possibility is to look upon the judiciary as the power that is concerned with
managing different results from the application of the law. If so, the
judiciary must be considered as a part of the executive function, and not as a
third one. The second possibility is to consider that different results cannot
simply be arrived at by the sole application of the law, and that a third
party, the judge, needs to intervene as an actor who will, in fact, have the
capacity or the ability to decide what should be done.
23 On this theoretical basis, the separation
of powers appears to be the combination of two distinct rules, the rule of
specialisation and the rule of independence which will be described below.
Specialisation
24 The rule or concept of specialisation is
quite easy to grasp. There should be an equal number of authorities or bodies
in the State to mirror the number of functions. Each authority or body should
then be specialised. Specialisation will mean here exercising one function and
only one. In addition, it also means not participating to the exercise of other
functions.
Independence
25 The rule or concept of independence
signifies that each body should be protected from the influences of the others.
This is quite logical, as otherwise there would be no independence. This is the
result of the absence of power in one body to revoke the order of another body.
Sometimes it could result, for example, from the impossibility of allowing that
other body to appoint people to the first body, or to finance this other body
or to sue this other body, etc. In
fact, it becomes quickly evident that no absolute independence is possible, but
that various levels between the absence of independence and full independence
do exist.
26 In practice, those two rules are quite
essential to understand the separation of powers. Each power can be opposed to
each other so as to create a balance. That balance is supposed to prevent
despotism and to preserve freedoms. This is what is attributed to Montesquieu.
But this is never completely correct. Some authors would consider that the
separation of powers may be used to qualify only the specialisation of bodies
that are not independent, or the independence of bodies that are not
specialised, or any equilibrium obtained without specialisation or
independence. They estimate that the application of one of the two rules that
constitute the separation of powers, does not compromise the doctrine itself.
But it creates an edulcorated form of separation that allows the right balance
between the powers. As a consequence, most political systems of government
should qualify as regimes based on the separation of powers.
Separation of powers and political systems of
government
27 The separation of powers is also used to
classify constitutions. Jurists distinguish systems of government where powers
are confused from systems where powers are strictly separated. We also find
systems of government where the separation is rather “soft”,
meaning that the powers are collaborating. This classification is largely
accepted in academia.
28 Systems of government with confusion of
powers are those where one authority or body exercises all functions or
controls the exercise of all the functions. Sometimes we object to the
confusion of powers in the hands of the executive power, as in the case of a
military dictatorship, or confusion in the hands of the legislative power, as
seen in the period of the National Convention between 1792 to 1795 in France
after the Revolution. Systems of government with absolute, or strict,
separation of powers are those where authorities or bodies are at the same time
specialised and independent, and where the specialisation and the independence
are strictly applied, without exception. Here we can use as examples the 1791
French constitution, the Constitutional Monarchy, or the US constitution. Every other system
belongs to the category of “soft” separation, which is a category
quite heterogenous. It comprises all representative regimes of government like
the “Westminster” one which is characterised by specialisation of
bodies and mutual dependency, or the “Washington” one where bodies
are independent but not specialised.
29 Montesquieu has been portrayed as the father
of modern constitutionalism. He was one of the first to propose the idea that
powers should be organised in a way that protects freedoms, and that this
organisation should be expressed in a set of rules or a document that is a
Constitution. In his mind, this Constitution should put in place specialised
and independent powers. He is therefore supposed to have established a strong
link between the Constitution and separation of powers, to the extent that the
separation of powers would become consubstantial to the term
“Constitution” itself. That said, specialised bodies may only
become opposed to each other and be blamed if their powers are similar. But the
functions have a clear hierarchy. For instance, the execution of the law can
only “exist” if the law is enacted first. It is a question of
logic: the execution of the law is subordinated to the law. In other words, if
the bodies are specialised, the executive power must be subordinated to the
legislative function. Consequently, a hierarchy of bodies follows the hierarchy
of functions while a subordinated power will never be able to stop or block a
superior power.
30 According to Troper,
it is the work of Eisenmann that enlightens. He helps us by analysing L’Esprit des Lois in a way which
is quite different from the separation of powers normally portrayed as the work
of Montesquieu. First, Montesquieu was conscious that there is a hierarchy of
functions. When he classified the State functions, and particularly the
executive function, he was not precise. He offered an account of the separation
between the three powers, that is often very confusing. For instance, he wrote
that the executive function was only linked to international relations (la
puissance exécutrice des choses qui dépendent du droit des gens)
but later that it was also concerned with the execution of laws.
31 The legislative function may be described
as the function that expresses the general will of the people while the
executive function is the execution of that general will. Seeking an equilibrium
between the two would be illogical, because one cannot block the execution of
the general will enunciated or proclaimed by the other one. That equilibrium is
only imaginable between bodies that are not specialised and that are not
independent like the system of the English constitution that Montesquieu
described. Here we do not find specialised bodies because the legislative power
is conferred not to one but to three distinct bodies, the House of Commons, the
House of Lords and the Monarch, who in addition has a right of veto. A statute
can only be approved with the consent of the three bodies and only one has the
possibility to veto it. This structure is described by the well known
expression “the Crown in Parliament” (Queen in Parliament; King in
Parliament).
But each body, far from being specialised, also exercises other functions. The
Monarch exercises, at least theoretically, the executive function while the
House of Lords until recently exercised the judicial function, and the House of
Commons, at least theoretically, can scrutinise the executive function. But
what about independence? Montesquieu does not give an account of a system that
shows specialisation and independence but quite the contrary. In addition, no
one during the 18th and 19th centuries ever thought that L’Esprit des
Lois was advocating specialisation and independence. Montesquieu is in fact
only concerned with political freedom. It means that he is only concerned with
obedience to laws or to the law. Montesquieu proposes to apply two principles
that are slightly different. The first one may be called separation of powers,
even though he does not use this expression at all. He does not prescribe
specialisation and he does not prescribe independence. His separation of powers
is a negative principle, with only one object: to indicate what should not be
done. What should be avoided, according to Montesquieu’s negative
principle, is that all powers are in the hands of one body.
32 Montesquieu used the verb séparer,
to separate, not as the equivalent to the verb isoler, to isolate, but as distinguer,
to distinguish,
and as an antonym to the verb confondre,
to confuse, or unir, to unite. It
does not mean that Montesquieu is not in favour of the separation of powers. It
simply means that the idea of separation of powers is something quite different
for Montesquieu from what its 20th century interpretations might suggest.
Montesquieu did not invent it, nor defend it, nor advocate it. In fact, the
political philosophers of Montesquieu’s time all voiced their hostility
towards despotism. It became quite mainstream at that time that someone who
makes the laws should not execute them. This is the negative principle that
would become during the Enlightenment a sort of common value.
Its justification is simple and resides in a concept that is similar to
political freedom. If political freedom is submission to the law, this negative
principle, i.e. that all powers in the hands of the same body should be
avoided, becomes the guarantee of freedom. Consequently, the body that makes
the laws cannot execute them, and the body that executes them cannot make them.
In doing so, we should arrive at the logical conclusion that individuals
exercising executive power should be indirectly following only the law. This
principle should not be confused with specialisation. It could be said to be
satisfied for instance if one body exercises one function, but also if one body
exercises one function “fully” and participates to the exercise of
another. That would be the case for example, if the executive power were to
participate in the normative function of legislating, while not being allowed
to modify the law alone, and therefore not having control of all the powers.
Therefore, the principle might be satisfied if various attributions are
distributed between different bodies. After the question of systems of
government and the separation of powers, the next crucial question is one of
the Constitution and the separation of powers.
Separation of powers and the constitution
33 The separation of powers should not be
confused with the Constitution. According to King—
“A constitution is the set of rules that regulate
the relations among the different parts of the government of a given country
and also the relations between the different parts of the government and the
people of the country.”
34 Professor Bogdanor
considers that a constitution is—
“a code of rules which aspire to regulate the
allocation of functions, powers and duties among the various agencies and
officers of government and defines the relationship between these and the
public.”
A constitution is the set of rules that has one aim:
the repartition of the State attributions. That is found, for instance, in art
16 of the French Declaration of the Rights of Man and Citizen in 1789, which
provides that “Any
society in which no provision is made for guaranteeing rights or for the
separation of powers, has no Constitution.” That first principle,
solely negative as mentioned above, and generally accepted by those who are not
in favour of any form of absolutism, calls for a second one. The second
principle should determine how State attributions should be shared out. During the
18th century, two rival principles existed, with one only attributed to
Montesquieu. The first one is specialisation because of the hierarchy of
functions. It was adopted by Rousseau in his writing on the Constitution of
Poland:
“C’est un vice dans la Constitution
polonaise que la législation et l’administration n’y soient
pas assez distinguées, et que la Diète exerçant le pouvoir
législatif y mêle des parties d’administration, fasse
indifféremment des actes de souveraineté et de gouvernement.”
[It is a
vice of the Polish constitution that the legislature and the executive
are not sufficiently separated, and that the Diet, exercising legislative
power, mixes within it parts of the executive and undertakes indiscriminately
acts of sovereignty and of government.]
35 Such a vice was later found in the French
Convention in 1793. If the bodies are
specialised, the one that exercises the legislative function will, or logically
should, always dominate the body exercising the executive function. An obvious
hierarchy then results, where the legislative power is superior, and the
executive is subordinate. For those who are in favour of specialisation, it
would seem a trivial matter. The legislative power is after all, normally or at
least theoretically, the people sovereign, as stated in art 7 of the 1793
Constitution. It may in other cases be representatives of the people. It would
be strange, therefore, for the executive power to be opposed to the will of the
sovereign or of its representatives. Specialisation then would mean “being
in a democratic system of government”. Some would challenge this point on
the basis of ideological or political reasons. But they may also do so for
technical reasons. Specialisation is, one may say, auto-destructive. Indeed,
the legislative power dominates all the others and may even absorb them. The
result would be quite negative, with no specialisation or separation of powers
anymore. This is in substance what we have in the 1793 French Constitution,
with a dictatorship of the French National Convention or, as Marx put it, “a
revolutionary, dictatorial assembly”. So what Montesquieu was
really describing?
The real separation
of powers according to Montesquieu
36 Montesquieu considers that the system of
government should be quite different. It should contain checks and balances.
Far from being self-destructive, this is conceived as being more moderate,
balanced and capable of self-regulation. It should run itself easily and allow
for the conservation of each power through its internal organisation “automatically”.
For Montesquieu, seeking an automatic principle is linked to the theory of the
form of government. He explains that, “there are three species of
government; republican, monarchical and despotic”. His distinction between
the three differs from that of other authors because it refuses to have only
one criterion based on the number of governors (one, all or some). Adopting
more complex multiple criteria, he states that each government is defined by
its nature, and is characterised by its principle and object. Its nature, or
its essence, is what makes one type of government what it is. The principle is
what allows the system to function according to its nature. The object is what
a government produces according to its nature. A republican government is a government where “the people or part of
it is the sovereign. This constitutes its nature”. Its principle is virtue. For
the monarchy, its nature is to be the government of one, but through law. It
functions through honour for the glory of the prince. Despotism is the
government of one by the action of the prince. It functions through fear,
without virtue, and for the pleasure of the despot.
37 There is a mechanical relationship
between nature and principle on the one hand and object on the other. By
understanding the first two, it is easy to determine the second. This is that relationship that
Montesquieu seeks to invert. If a government has political freedom as its
object, what should be its nature and its principle? As it cannot be the
monarchy, despotism or the republic, because their objects are different, this
government can only be mixed. In Montesquieu’s view, it does not need to
be invented because it already exists: the mixed government is the government
of England. He wrote—
“Il y a aussi une nation dans le monde qui a
pour objet direct de sa constitution la liberté politique. Nous allons
examiner les principes sur lesquels elle la fonde. S’ils sont bons, la
liberté y paraîtra comme dans un miroir.”
[There
is also a nation in the world which has political freedom as the direct
object of its constitution. We are going to examine the principles upon which
it is founded. If they are good, freedom will appear as in a mirror.]—
and we know that he is referring to England. That is in fact not
really original because, since the time of Charles I, an interpretation of the
English constitution as a mixed government or mixed monarchy has existed.
Charles I used the theory of mixed government “in a form that came to be
known as the classical theory of the English constitution.” In addition, Montesquieu’s
theory should be linked to a tradition going back to antiquity, acknowledging
the merits of mixed government, and affirming its advantages over the simple
forms of governments, without the inconveniences. Indeed, “Since Plato and Aristotle, balanced government
meant mixing monarchy, aristocracy and democracy.”
38 It is easy to present the government of
England as a mixed government. The House of Commons represents an element of
democracy, the House of Lords represents an element of aristocracy, and there
is the Monarch, viz. the King or the
Queen. According to Weston—
“Charles I refused further concessions to the Long
Parliament in his epoch-making Answer to the Nineteen Propositions
. . . To justify his rejection, Charles used the theory of mixed
government . . . After noting that the English government of King,
House of Lords and House of Commons contained a mixture of monarchy,
aristocracy, and democracy—the three pure forms of government that the
political theorists derived from Aristotle—he explained that political
power was already so well divided among members of this trinity that tyranny
was impossible in England.”
39 But if its nature is mixed what is its
principle? This is the conflict of interest. Three bodies sharing the
legislative powers will benefit from being in opposition. The King will oppose
the two chambers to keep his executive role; the House of Lords will oppose the
House of Commons to defend privileges; and the House of Commons will defend
taxpayers. As stated by Montesquieu—
“La liberté politique ne se trouve que
dans les gouvernements modérés. Mais elle n’est pas
toujours dans les États modérés; elle n’y est que
lorsqu’on n’abuse pas du pouvoir; mais c’est une
expérience éternelle que tout homme qui a du pouvoir est
porté à en abuser; il va jusqu’à ce qu’il
trouve des limites. Qui le dirait! la vertu même a besoin de limites.
Pour qu’on ne puisse abuser du pouvoir, il faut que, par la disposition
des choses, le pouvoir arrête le pouvoir. Une constitution peut
être telle que personne ne sera contraint de faire les choses auxquelles
la loi ne l’oblige pas, et à ne point faire celles que la loi lui
permet.”
[Political
liberty can only be found in moderate governments. But it is not always
found in moderate States; it is only found when power is not abused; but it is
a perennial experience that every man who has power is driven to abuse it; he
will continue until he finds some limits. Who would deny that! Even virtue
needs limits. In order that power cannot be abused, it is necessary that, by
the very order of things, powers constrains power. A constitution must be such
that no one can be compelled to do things which the law does not oblige him to
do, and not to do things which the law allows him to do.]
40 The principle of separation of powers, in
its negative sense, is well preserved here. Those three bodies together exercise
legislative powers, but only the King exercises executive power. In addition,
the judiciary is separated. But they all co-operate with each other. The object
should be realised in two ways. First, the principle of separation of powers
should be clearly respected. In addition, the system of balance of powers
guarantees its preservation, contrarily to specialisation. Indeed, the Monarch’s
right of veto in the legislative function means that the legislative power will
never be able to dominate totally the executive power. The Monarch will be able
to execute the laws when he or she consents to them, and therefore the laws
will only reflect his or her express will. To obey the King or the Queen will
equate to obeying the law, and political freedom should be established.
Secondly, the law will be moderate because of the opposition between various
interests within the legislative power. In fact, the law will only have been
adopted after compromises and through a consensual approach. Again, a balanced
outcome will prevail.
41 This result does not simply come from a
game of checks and balances, and through constitutional engineering. It also
comes from the opposition between economic interests and social interests
represented by and through the various legislative bodies. The social
equilibrium will be guaranteed by the constitutional equilibrium.
Socio-economic interests are well preserved if they are represented within the
legislative bodies, and therefore capable of blocking laws that would menace
those interests. This is why the Constitution of England as described by
Montesquieu is not only the Constitution of a State but it is also, and maybe
more importantly, the Constitution of a society.
42 On the technical constitutional side, the
result does not come from specialisation or
independence but from co-operation between the various bodies and various
functions, and the independence of those bodies. This is what Montesquieu well
understood, but its importance has been forgotten. That said, his ideas were
used in the 18th century, notably in the doctrine of checks and balances that
inspired the work of the Constitutional Convention of Philadelphia, the French
National Assembly in 1789, and also the various monarchies at the beginning of
the 19th century. If it was later forgotten, it was because it did not seem
compatible with the development of representative democracy, which triumphed
over the monarchy and aristocracy, and also over the mixed system of
government. For instance, it seems inadmissible from a democratic point of view
to have representatives sharing legislative power, the supreme power, one might
say, with non-democratic elements. Modern constitutions should have a greater
balance of powers.
43 Nowadays, the doctrine of the separation
of powers has different interpretations. The 18th century negative principle
was never really contested. Even an authoritarian regime, in the name of unity
of power of the State, would use it as a justification. But it has become a
dogma for representative regimes. No bodies should act against another and/or
against the law. The idea of hierarchy is truly present here. In a strange way,
however, the interpretation of the principle, attributed to Montesquieu, that
considers bodies of the State specialised and independent, and balanced, is
still present in the doctrine today. But it has many exceptions. Sometimes, one
must mention that specialisation is not necessary and affirm that various
bodies can co-operate in the exercise of various functions. Independence exists
in some bodies because of the absence of reciprocal powers, as in the USA,
where the president cannot dissolve the legislature. Sometimes, one might
consider that the specialisation and the balance come from exceptions to
independence, with reciprocity, as in a parliamentary system of government,
where parliament may override the executive body, and the executive body may
dissolve the parliament.
44 However, this edulcorated
style of separation of powers is quite wrong because of the development of
democracy and various democratic political systems. If various authorities are
composed of representatives of political parties, then most of the powers are
concentrated in the parties or coalitions. This concentration may bring a new
hierarchy. The House of Commons, as we know, has the legislative power and the
cabinet has the executive power. The cabinet may ask the Queen to dissolve the
elected chamber but as the Prime Minister, in the system, is the leader of the
majority at the House of Commons, it seems quite difficult in fact to trigger
this dissolution. What makes this regime not a despotism, according to the
Montesquieu analysis, is the equilibrium of political forces within the
parliamentary majority. Regular elections ensure the possibility of change and
therefore a different sharing of the legal functions of the state. We may want
to believe that the separation of powers has been replaced by an equilibrium
majority v opposition or even an equilibrium between the various components of
a parliamentary majority. But this equilibrium is not really true until a Prime
Minister is removed in a general election or as the result of a revolution.
That is until he exercises the power.
What about the
Bailiff of Jersey and the real separation of powers?
45 The doctrine of the separation of powers
is then anything but the idea described by many commentators. It is surely not
a principle or a doctrine that requires the dual roles of the Bailiff to be
exercised by separated authorities. What Montesquieu advocated is a balance
between the various politico-legal functions of the State. It is quite easy to
distinguish between the functions of the Bailiff. This is primarily done by a “real”
separation of the spaces where the Bailiff operates. When he acts as a judge he
is in a court. When he acts as president of the States, he in in the States
Chamber. After all, the creation of the UK Supreme Court led to a geographical
move of the Appellate Committee from the Palace of Westminster to the new
building of the Supreme Court, so as to give the appearance of independence. Perhaps one suggestion
might be to separate geographically even further the Royal Court and the States
Chamber, although in such a micro-jurisdiction that does not seem to make any
sense. In addition, if we use Montesquieu original version of the separation of
powers, and not a modern or contemporary interpretation, we have the idea of
mixed government, something moderated and balanced, and not an absolute
division between the powers. But even if we had, it would be impossible for the
argument of a lack of separation of powers to be valid. This has to do with a
very simple point, which is the actual or “real” legislative
function of the Bailiff. Presiding over the States and having no power to vote
is very far from exercising legislative power. In addition, a mixed
government is constituted by the balance between the legislature and the
executive, not with the judicial power. If the Bailiff could enact and then
execute the laws enacted, then there would certainly be no separation of
powers. But an institution that presides over the debates of a parliament and
then steps in to be the top judge is far from infringing the principle.
Particularly, if one takes into account the historical context of the Bailiff’s
office as described earlier, and the size of the micro-jurisdiction that is
Jersey, it is finally, as Cornes wrote, about a simple idea: that a single
person having two roles does not lead automatically to a lack of impartiality.
46 That said, the rule of specialisation
works quite well when applied to the Bailiff’s functions. We have seen
that under this rule there should be an equal number of authorities,
specialised, to mirror the number of functions, and that a body should not be
participating in the exercise of other functions. As the Bailiff is simply
presiding over the legislative debates and not truly participating in those
debates, we cannot say that he does not specialise only in the judicial
function. The judicial function is actually his specialisation. The rule of
independence that is concerned with the absence of influence between bodies,
also works here. The Bailiff does not influence the work of the legislative
power, but solely polices the debates of the legislative body in order to
ensure that it complies with its own rules. One might argue that that is some
sort of influence, but Montesquieu made it clear that no strict independence
was necessary but that various levels, ranging between the absence of
independence and a full independence, could exist. Then again, in Montesquieu’s
words, the important point is the co-operation of the various powers. Here too
we can consider that even if the Bailiff were participating in the legislative
power if analysed from a very specific angle, it would mean that two bodies
were exercising together the legislative power, that the Government was
exercising the executive power while the judiciary was completely separated:
according to the writings of Montesquieu, that does not contradict the doctrine
of the separation of powers.
Professor David
Marrani, Ph.D, is the former Dean at the Institute of Law in Jersey and former
Senior Lecturer at the University of Essex, UK. He is currently the Director of
the International Centre of Law and Business and the Avant Garde
Interdisciplinary Research Group. The author would like to thank Me Emmanuel
Araguas for his help.