Article published on February 10, 2024 in L'Obs
Faced with the regular questioning of the legitimacy of independent bodies, the economist reminds us, in an article for L'Obs, of the three reasons why we need them.
From Putin to Erdogan, from Netanyahu to Orban, autocrats who have come to power through the ballot box strive to consolidate it by progressively eradicating the checks and balances: the media and the independent branches of the state that can emancipate themselves from the powers that be. Nothing new or surprising here.
On the other hand, a symptom of a faltering democracy is the denunciation of a so-called "Republic of Judges" by political party leaders who claim to respect the Constitution but are unhappy with a particular ruling. Recently, the French Constitutional Council, whose decision on the pension reform had already been the subject of vituperation from the radical left, was accused by the right of a "coup d'état" or "democratic hold-up" for having censured a large part of the immigration law, even though it had merely read the Constitution. More generally, the legitimacy of independent bodies is regularly called into question. Should the people be sovereign?
Separation of powers requires vigilance
Let's be clear: while the independence of judges and authorities is a cornerstone of our modern democracies, it is not a panacea. Firstly, independent authorities are only as good as the quality of the selection process used to select their leaders: impeccable competence and the ability to internalize the mission by detaching oneself from ideological preconceptions (the recent decisions of the US Supreme Court show the relevance of this last criterion!). Secondly, their mission must be clear and delimited, as I argued recently [in "Socially Responsible Agencies", published in Competition Law and Policy Debate, volume 7, no. 4, April 2023, pp. 171-177]. A precise mission limits the amount of subjectivity that inevitably lends itself to criticism.
In this respect, we are concerned by the legislator's tendency to pass increasingly vague laws, encouraging judges to rule in areas that normally fall within the latter's remit, thus undermining the principle of separation of powers. Partisan politics, media strategies and unfounded amendments sometimes overshadow the less visible but infinitely more important task of working on the texts...
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Picture comes from: https://www.elections.interieur.gouv.fr/comprendre-elections/pourquoi-je-vote/institutions-democratiques, consulted on February 15, 2024.
