Press Interpreter

02/28/06 -- Point of View -- Yves Michaud's article, published in Le Monde on February 24, 2006, presents a twofold epistemological inquiry: establishing the relevance of a dialogue between philosophical and juridical schools of thought and demonstrating that the truth is just the momentary correction of errors. It's a mistake to write that the Superior Council of the Magistracy (CSM) is composed of people nominated "by the President for the basic essentials" when in fact, out of eighteen members, only one is nominated by the head of State! It's also inaccurate to write that the CSM rarely sanctions magistrates when the figures from annual reports demonstrate the opposite. And it's always wrong to write that the CSM is the arrogant defender of the narrow interests of the magistrates, when in fact it is, to put it modestly, one of the authorities constitutionally charged with ensuring checks and balances!

Let's take up history for a moment. Rendering justice is an attribute of the sovereign: of the king, before 1789, and then of the nation, which, in order to assure political freedom, distinguished three functions: legislative, executive, and judicial. The principle of the separation of powers finds its connection with the principle of national sovereignty according to a layout described in 1959 by Dean Georges Vedel: "Each representative body exercising sovereignty that does not mainly belong to it has no competence to do so except to the extent that power is delegated to it; Parliament only represents national sovereignty through its legislative power, the Administration only represents it in through its executive power, and a judge cannot speak in the name of the nation unless he is executing a judicial task; thus, none of the representative bodies of the nation can speak on the nation's behalf, since each exercises only one of the attributes of sovereignty."

Clearly, in order to avoid political disorder, it is appropriate, writes Montesquieu, that these separate government bodies are able to "act in concert" and mutually balance themselves out within each of their respective spheres of competence. And ensuring this balance is exactly the constitutional role of the CSM. Its role is not the exercise of one of the three powers -- another of Yves Michaud's errors. The CSM does not have the judicial power. Constitutionally, it is situated at the boundaries of the three powers in order to ensure their balance. And it is this situation that allows it to intervene to protect and defend the independent exercise of the judicial function, resisting pressures that could come just as well from the executive and legislative branches as from the judiciary. In this role, the CSM protects not the magistrates, but the citizenry. Just as freedom of the press has as its essential object the reader and not the journalist, the independence of magistrates benefits not "their status or profession" as Yves Michaud still writes, but instead those subject to trial, who should be able to count on adjudication free from any pressure.

Nevertheless, the CSM performs this role as the "assistant" of the President of the Republic, since it is to the President that article 64 entrusts the protection of the judiciary's independence. But things could change. During the plenary session of the CSM held at the Elysee* on February 24, 2006, the President of the Republic let it be known, with good reason, that he could not guarantee the independence of the judiciary from the eventual reach of the legislative power since, being the head of the executive branch, he could be accused of involving himself in the functioning of the parliamentary body, in violation of the principle of separation of powers. The argument, perfectly well-founded, clearly exposes the constitutional impossibility of a president, as chief of the executive branch, simultaneously being the protector of the judiciary's independence. The CSM could thus become, through reform, the fully empowered to assure, within its ambit, the sound balance of powers. Total horror for those who, like Yves Michaud, make of electoral representation the only source of all powers, but philosophical wisdom for those who think that democracy is based on a subtle balancing of equally legitimate powers. The discussion is open.

Dominique Rousseau is a professor at the University of Montpellier-I and a member of the Superior Council of the Magistracy.

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* The Elysee is the official residence of the President of France.

--Translated by Chris Drake

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