Macht, media & Montesquieu. Over nieuwe vormen van publieke macht en machtsevenwicht
Wilk - van Baren, E.W. van der
Citation
Wilk - van Baren, E. W. van der. (2009, February 12). Macht, media & Montesquieu. Over nieuwe vormen van publieke macht en machtsevenwicht. Retrieved from
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SUMMARY
Power, Media & Montesquieu.
New forms of public power and the balance of power
In a democratic constitutional state, the state is subject to the law, just as its citizens are. In the way things are organized it is crucial to restrain the power that the state exerts on its citizens. The state has three functions, commonly known as powers: the legislative, executive and judicial powers. This three-part division of state functions is referred to as trias politica. In the 18th century, Montesquieu argued that, though these functions should be separated, they should be in balance too: countervailing power keeps power in balance. Both power and countervailing power are needed to prevent one from dominating the other. This is the so-called principle of the separation of powers that is at the basis of the rules that the state has to act in accordance with.
In this dissertation the democratic constitutional state is claimed to be in danger: the dividing lines between the public powers are disappearing. Though the principles of
„trias politica‟ and „separation of state powers‟ are on the lips of politicians and journalists, hardly anyone seems to be fully aware of their significance and implications. In fact, many do not appear to feel uneasy with their ignorance at all;
some even go so far as to reject these principles altogether. They find them obsolete and in fact a nuisance. However, on the basis of several telling examples and a study of the relevant literature through the ages, this dissertation claims that the separation of powers is actually very much alive in the Dutch constitutional practice. The separation of state powers is most evident in the autonomy of the judiciary; the other two state powers are more interwoven. Actually, a system of strict separation of powers has never existed in the Netherlands at all. That is why it would be better to speak of „balance of powers‟. In this study, however, the more familiar term
„separation of powers‟ will sometimes be used instead.
It is often said that times have changed and that the principle of separation of powers has become obsolete. Of course, new connections have originated in society, with growing pressure from citizens on the world of politics, which is widely mistrusted.
Even so, modern society too can greatly benefit from the system of separation of powers that was advocated by philosophers throughout the ages. They considered the system as almost self-evident, both as a prerequisite for a well-functioning state and as a guarantee against tyranny. An alternative, moreover, is simply not available, and so is neither fundamental political change nor a new philosophical paradigm.
This dissertation studies two new institutions within the classic state power: the Onderzoeks- en Verificatiebureau (OVB: Research and Verification Bureau) of the
„Tweede Kamer‟ (Lower House of Parliament) and the Raad voor de rechtspraak
(Rvdr: Council for the Judiciary) of the judicial power. The OVB was established to reinforce the position of the parliament vis-à-vis the executive power: the government. Together with the government, the parliament forms the legislative power. The Rvdr was established to safeguard the independence of the judiciary from the state. Both institutions exemplify the nature and scope of autonomy vis-à-vis the other state powers.
In addition, a third body (though not an institution in the strict sense of the word) is studied: the media. Just like the other two institutions they are not formally related to the executive power. On the contrary: they are supposed to keep careful watch of the executive. Being a public power, the media are not to be neglected. They are part of politics and of the political decision-making process. This goes for the parliamentary press in particular, but television programmes of an infotainment character prove to play a major role too. Media and politics need one another. Politicians need the media to get their message across to the public at large; journalists, on the other hand, need politicians to obtain content and substance for their reports. The media can be seen as a self-generative power. They are a political actor with public power in that they can cross all of the other powers: ministers, members of parliament, members of the judiciary. How does this public power – though outside the scope of the three regular powers – fit into the constitutional state? How can the media be held accountable for their choices and orientations in the public domain, how can their autonomy be safeguarded, and would safeguards identical to those for the OVB and the Rvdr apply to the media too?
The central question of this study is: in what way do these three new forms of public power demonstrate the independence of the three state powers? Are these powers in balance? A brief survey is given of the situation in several European countries, so as to find elements that deserve to be adopted. For the media, the survey deals with England, France, Belgium and Germany as well Italy; the latter mainly because of the unique position of Berlusconi, who is both prime minister and media tycoon. The same goal – what can be learnt from others? – led to a survey of several European institutions similar to that of the Rvdr, as well as a closer look at the American Congressional Budget Office, of which some elements have been adopted by the OVB.
An in-depth comparative study, however, was not intended within the scope of this dissertation.
Chapter two deals with the motives – in connection with the time of life and local circumstances – of several political philosophers. Locke‟s goal was to protect the citizens against the power of the king; Montesquieu argued the dispersion of power to strengthen the position of the nobility. Madison wanted to protect the state against the excesses of the people and sought to create democratic institutions, the citizens being the ultimate check. De Tocqueville warned the early American democracy
against the risk of having a tyranny of the majority. According to all political philosophers dealt with in this chapter, a balance needed to be created through establishing links between the state powers. Modern philosophers merely emphasize that people have wishes that may vary considerably. To a certain extent, this diversity should be bundled, but one should beware of too much power in one hand. Maynor is in favour of a strong judiciary in order to keep the other state powers in balance.
Pettit pleas for a system of accountability and mutual sanctioning of powers. Both Maynor and Pettit regard a strong civil society as a means to strengthen modern democracy. Viroli refers to Machiavelli‟s Italy, where being held accountable was the norm for non-democratic forms of government. Any person holding formal authority was to be investigated by a special syndicate as soon as his term in office had been terminated. Arendt emphasizes the multiple nature of human power: politicians have power through word and deed, “where words are not empty and deeds not brutal”.
Moreover, mechanisms are at work through which new forms of power are being generated continuously. Sharing power is not a symptom of decline, because checks and balances create more power. The heart of the matter is to organize counter power and underline each authority‟s distinct competence. Dispersion and balance of powers, as well as mechanisms of control and accountability, are of all ages. The philosophers dealt with in this chapter have all acknowledged the need to distinguish between various competences and organize (i.e. separate) the state powers accordingly. That power corrupts has been accepted as a fact of life for ages. The remedy, therefore, is not to grant all power to one person or group. Separation of powers in its pure form, however, does not exist and none of the philosophers mentioned does so advocate. They all aim at achieving balance and organizing a system that works. That they differ in how to achieve those goals is due mainly to the specific issues of their time rather than to their fundamentally different views.
In chapter three an outline, on the basis of examples, is presented of how to separate the state powers. The examples demonstrate the value of the separation of powers in daily public life. It is thanks to this separation that citizens can trust the powers that be. The outline can serve as a framework for the three institutions of this study. The examples show a certain pattern. They illustrate the logic behind the principle of balance of powers and help to understand why the system is as it is. The recurring principles appear to be the citizen‟s confidence in the rules of law and the need to separate responsibilities in order to – collectively – serve public interest most effectively. Moreover, certain underlying values prove to be common to most examples: natural authority, independence, representation, lack of self-interest and competition between state powers.
Chapter four attempts, on the basis of the writing of several philosophers, to find out what power actually stands for and why it is that certain persons and institutions are entrusted with power, whereas others are kept away from state power. It is
unthinkable that the police, the military or the civil service would be entrusted with public power. Power is the capacity to achieve certain goals. The central question is always to find out who has power, how power is divided and to what extent one is able to impose one‟s will. In view of these basic principles, public power is defined as:
the collectively accepted ability to influence groups of people through institutionalized authority and to let them do, not do or accept things that they would not do – or refrain from doing – or accept if it hadn‟t been for the authority in question. This public power is the accepted fiction of voluntary conveyance of power and finds its limitations in strictly specified competences and/or legislation, which serve as a guarantee to take good care of this public power. Arendt takes a unique position in that she considers cooperation to be essential in obtaining power and holding it. Sharing power generates new power. Power is a means to get things done that otherwise would or could not be done. Power, therefore, requires leadership and influence. Money, the media and a reputation will be helpful to achieve that.
Chapter five indicates that the media are a public power too; they decide on the character and content of their reports. They create a social construct that politicians respond to and act on. To a large extent the political agenda is determined by what the media carry as newsworthy. The times of compartmentalization have gone, and so has a considerable part of the framework of the political parties that the media used to be engaged with. Nowadays, they act according to media logic. The media have had several roles, from being a manifestation of the freedom of press and a watch dog for the state to expressing what citizens are occupied with. The original role of independent news reporter has been expanded to that of opinion maker and commentator. After selecting newsworthy items, journalists interpret that news, thus actually making their own news. Discussions are taking place both in academic and political circles as well as in the press itself. They show that the media reject the urgency of accountability or supervision and detest any form of coercion.
Selfregulation is the best, they argue. A couple of years ago, this discussion led to new instruments, such as the Nederlandse Nieuwsmonitor (Dutch Newsmonitor). These instruments, however, exclude the voice of the consumer of the media. Only the Stichting MediaDebat (Foundation of Media Debate) is open for citizens, but unknown to the public.
As argued earlier, every power should operate within its own territory. The powers as a whole, each entrusted with specific competences, offer the citizen guarantees concerning the reliability of the state. The media have their own territory, which is accepted by the other state powers. The exertion of public power requires that the authority is not only held accountable, but also that its autonomy is guaranteed and hence protected from interference by other state powers. However, for a power to be in balance, counterpower needs to be organized. But what is essential for a counterpower to serve as such? And to whom should the media (which, after all, are
no official state power) be held accountable? Chapters six to nine present how the media as well as the OVB and Rvdr relate to the concept of balance of power.
Findings
(1) Onderzoeks- en Verificatiebureau (OVB: Research and Verification Bureau of the Lower House of Parliament)
This bureau does not turn out to act as a new public power. It is a body that does not operate in the public domain, but within the institution of the Lower House of Parliament. The bureau is not a legitimized body and has no budget of its own. It can never obtain a public status or be an accepted authority. Its function is to reinforce the power of the parliament, which serves as a countervailing power against the government whom it is supposed to keep an eye on. The OVB is not an autonomous body either: its daily routines are being managed by the Clerk of the House, but formally the OVB resides under the exclusive supervision of the presidium of the House.
A comparison between the OVB and the Congressional Budget Office in the United States (though virtually incomparable as far as size and authority are concerned) shows what is needed for an institution to obtain a substantial level of authority:
legalize the competence and position of its president and staff at the level of Congress (or Parliament, mutatis mutandis) and make the institution operate in the full spotlight of public life. Constitutionally speaking the OVB is not a „power within a power‟. The position of the OVB is basically bureaucratic in nature and is therefore proof of the Parliament‟s inability to actually strengthen its position as a watch dog of the government.
(2) Council for the Judiciary
Like the OVB, the Council for the Judiciary has no budget of its own. It was on this matter that great controversy arose during the preparatory legislation procedure before the actual inauguration of the Council in 2002. The top of the Supreme Court, for instance, held onto the view that the Council would be part of the judiciary power and should therefore be independent, like the judges themselves. The Minister of Justice, however, has kept a basic authority over the Council, for instance through the principle of ministerial accountability. The Supreme Court strongly opposed this concept and considered any interference by the Minister of Justice to be contrary to the principle of the separation of powers. Besides, ministerial accountability for the Council would imply that the Council is part of the executive – which it is definitely not – for it is an executive power (and an executive only!) that a minister can be held accountable for. So, the powers of the executive and the judiciary are actually not in balance. The connection between these powers remains unclear.
Curiously enough however, despite these fundamental discrepancies, the parties concerned have so far acted as if the separation of powers does exist. The formal connection between the minister and the members of the Council thrives on harmonious personal relations. Should there be any differences, these are kept behind closed doors. Attempts are made to reach a consensus, because both parties are aware of their delicate constitutional position. So far, the system has worked thanks to prudent action and mutual trust; neither party wants to antagonize the other. It is precisely because they cooperate, that balance of power has arisen. Actually, this practice is a modern manifestation of the ancient Dutch tradition of give and take, of striving for a consensus. It is a form of unwritten law, which, according to ruling constitutional practice, should be accepted as law.
This study recommends to have this practice formalized and/or or described properly.
Despite the success of the current practice, one should remain watchful. After six years of pioneering, time has come to reinforce the position of the Council vis-à-vis the Minister of Justice. It is of very little use to look at the way things are organized in other European countries; the differences between the Council and similar institutions elsewhere are simply too large to make a helpful comparison possible. It is remarkable, though, that all European countries studied have a form of ministerial accountability. The competence of the Dutch Minister of Justice, however, exceeds that of his European colleagues.
(3) Media
Journalists are delegate representatives of the people. They form a group of citizens who can get access to state information and state authorities in order to inform their fellow citizens. It is important to keep in mind that the media do recognize their political and public significance as well as the need to organize their own countervailing power. The concept of neo-republican citizenship is based on the notion of the press being a dynamic initiative of the „office‟ of citizen. The media should account for this double function of journalists: they are ordinary citizens as well as citizens with the public status associated with the press. Citizens need to keep their trust in the media. The premise that the media are a public power and that journalists are citizens with a special office, implies that it is inevitable for this institution to act and be treated as a public power: by being accountable and transparent on the one hand, and enjoy protection by certain exclusive competences on the other hand. It is on this basis only that there will be balance of powers.
The media should be accountable to those that they represent: the citizens. The citizens are not only the representees but also the consumers of the news and they make the final judgment. Codes of conduct will not do, because it implies that one is one‟s own judge. Moreover, instruments are missing to actually enforce one to act according this code, and anyone who fails to do so will not be called to account for his
actions. Civil society gave rise to the birth of the mass media; it is time for her to take up responsibility again. A study of the situation abroad did not bring any drastic solution other than a decent code of conduct and commissions for press complaints in Great-Britain and Flanders, as well as a definition – in Flanders – of the profession of journalist. The latter may be a workable instrument for the media in the Netherlands too. Although the media meet the definition of a public power, there are also differences with the other two newly-founded institutions: the media have not been initiated by the state and do not have any formal public authority, let alone instruments to impose it. In fact, the media are a private-public power and journalists are not just private persons. Workers in the media should be aware that they operate in the public domain and that they hold a powerful position. It is accepted that the power of the media is different from that of the OVB and the Council for the Judiciary: budget is of no meaning, but independence, freedom of speech and free exercise of the profession all the more.
Although the current system of checks and balances for the media – e.g. by editors‟
statutes and ombudsmen as well as a tv programme like De leugen regeert („Lie rules‟) – do have some effect, they are inadequate, even in united action with the instruments of self-regulation that have been introduced since 2003: News Monitor, Media Debate, several codes and conduct and – most recently – the Stichting Mediaombudsman Nederland (Foundation of Netherlands Media Ombudsman).
Moreover, criticism of the media is ill accepted by the media themselves. The Raad voor de Journalistiek (Council for Journalism) lacks both authority and an effective way of dealing with complaints, and can therefore hardly be regarded as an effective means of self-regulation. It is evident that we are in need of an institutionalized form of countervailing power. In view of their role in democratic society, the media themselves should act on their responsibility and take measures to define their competence in interaction with society at large. But the media as well as society itself lay back. Despite the threats of restrictive measures being imposed upon the media by the state, a sense of urgency is lacking.
The major objection of the media against legislation is the fear to lose (part of) their freedom of speech. This fear, however, is without grounds; there is no evidence to this effect whatsoever. The terms of employment for judges shows that, although the Minister of Justice is charged with the payments of their salaries, he has no say whatsoever in their judgments in court. Even if the current form of self-regulation does have some effect – which, at present, it hardly has – it would still be insufficient, for it lacks the indispensible instrument of coercion. Society itself, however, fails as much as the media do; no pressure group has stood up yet.
Now that both the media and society itself are failing, the time has come for the government to take action. Bearing in mind the fundamental right of freedom of speech (expressed both in the Constitution of the Netherlands and in the European
Convention of Human Rights), this study recommends to take the following steps: (1) A media and media consumer covenant – drawn up in consultation with society – that contains the rights and responsibilities of the journalist in connection to society as well as the commitment by society to support heterogeneity of the news. (2) Legislation to enable free journalistic practice. Laws of this kind could both serve as a guideline on the basis of which the media, being a private-public power, account for their journalistic practice and as a safeguard against interference from other powers with activities in the very domain – journalism – in which the media have unique public power. These recommendations include the basic notions that are concerned with power: free conveyance of power – though the existence thereof is a actually an accepted fiction – by citizens to the media, and institutional embedding of competences in legislation; all in order to preserve the power of the media.
Separation / balance of power
The principle of separation of powers is a clear and manageable model to pinpoint the various positions and competences in the state and to prevent supremacy of one of the public powers over (any of) the others. The media as well the other new bodies – OVB and Council for the Judiciary – within the classic public powers are all based on the notion of separation and balance of powers: they are all meant to serve the public interest and, thanks to their separated competences, help to maintain the confidence of the public in the rule of law.
Montesquieu‟s plea to separate state powers found its origin in the 18th century situation that, in order to prevent tyranny, it was necessary to break down the absolute power of the king. In modern times the media act as a fourth power, to restrain the other powers. It is commonly believed that bureaucracy in general and the civil service in particular are the fourth power. But they are not, just like the police or the military are not: none has any autonomy whatsoever. On the contrary, they are all instruments of the executive and/or the legislative power. Though they serve the public interest, they cannot be held publicly accountable.
It is clear that the principle of separation of powers is not a static construct but a dynamic one that changes according to changes in society and politics. The spirit, however, of Montesquieu‟s notion is still valid and not at all outdated, let alone superfluous. The state functions most effectively with public powers being in balance, without the supremacy of one over the other. The system may need regular reform; at the root of any reform, however, is the willingness to do so if needs be. The same goes for cooperation: it is thát disposition only that builds power as well as balance of power.
